The New South Wales Parliament is currently debating the Bail Bill 2013 which was introduced into parliament on 1 May 2013. The Bill states that its object is to make provision for bail in connection with criminal and other proceedings and to repeal and replace the Bail Act 1978 (the 1978 Act).
The general legal principle behind Bail is to grant authority to an accused to be at liberty for an offence (including one that is alleged) until proceedings in the matter have been concluded. Thus a person who is in custody because of an offence is, if granted bail for the offence, entitled to be released from custody.
The Bill which proposes the new Bail legislation sets out a new scheme for the making of bail decisions in respect of accused persons. Presenting the Bill the government outlined the proposed new legislation's key features as being as follows:
The Bill empowers the bail authorities (namely, certain police officers, authorised justices and the courts) to make bail
decisions in respect of accused persons.
Under the legislation proposed by the Bill there are to be four types of bail decision that can be made, they are:
a decision to release a person without bail (which can only be made by a police officer); or
a decision to dispense with bail (which can only be made by a court or authorised justice); or
a decision to grant bail, with or without conditions; or
a decision to refuse bail.
The Bill establishes a simplified test for making bail decisions, based on "unacceptable risk", and applies that test to all offences (replacing the test in the 1978 Act requiring a presumption for or against bail to be applied to specified offences, and requiring some offences to be treated as offences for which there is no presumption).
Under the legislation proposed by the Bill's scheme a bail authority is required, before making a bail decision, to consider whether there is any unacceptable risk that an accused person, if released from custody, will:
fail to appear at any proceedings for the offence; or
commit a serious offence; or
endanger the safety of victims, individuals or the community; or
interfere with witnesses or evidence.
The Bill provides that bail can be refused only if there is an unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions.
Under the legislation proposed by the Bill bail conditions can be imposed only for the purpose of mitigating an unacceptable risk and are subject to certain general rules (such as reasonableness and proportionality).
For certain offences the Bill provides that there is a right to release, which means that bail cannot be refused.
The Bill provides bail has effect (unless a bail authority specifies otherwise) until substantive proceedings for the offence conclude (this differs from the 1978 Act which provided for the grant of bail for specified periods).
The Bill provides that it will be mandatory for an accused person to be granted bail for an offence to appear before a court in proceedings for the offence and to comply with any bail conditions (unlike the 1978 Act which requires an accused person to agree to appear and to agree to conduct restraints imposed by bail conditions).
Under the legislation proposed by the Bill three distinct types of bail application can be made, namely:
a release application;
a detention application; or
a variation application.
The Bill also purports to simplify the rules for determining whether a court or authorised justice has power to hear a bail application.
Source: Explanatory Notes relating to Bill as introduced into Parliament.
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