By Tim Anderson
SYDNEY — Following the killing of two schoolgirls on the south coast last year, and the revelation that one of those charged with murder had been on bail for another offence, a review of the Bail Act 1978 was directed by the NSW attorney general.
The Council for Civil Liberties (CCL), noting a 30% rise in remandees in the past year, called for urgent measures to facilitate bail and the repeal of existing provisions which breach human rights obligations. The Law Society ran similar arguments.
The CCL called for the repeal of those sections of the Bail Act which deny bail on the basis of category of offence and which breach Australia's human rights commitments, in particular article 9(3) of the International Covenant on Civil and Political Rights 1966 which states: "It shall not be the general rule that persons waiting trial shall be detained in custody".
The CCL also urged that reasonable time limits be placed upon remand. Currently, remand prisoners may await trial for a year or more.
The Law Society expressed concern at the "high rate of full-time imprisonment and the large number of prisoners on remand". It proposed, among other reforms: the repeal of section 8a, which raises a presumption against bail for those charged with certain drug offences; the relaxing of section 22A, which blocks most second applications for bail in the Supreme Court; that the District Court be empowered to review magistrates' bail decisions; and that registrars of all the higher courts be empowered to review bail conditions.
On the other side, the late Bev Lawson, as acting commissioner of police, argued for amendment of the Bail Act "to create a presumption against bail for all serious sexual offences" and also for all "serial" offences. This would add to existing sections which breach human rights obligations.
Lawson also wanted the review of the act to consider "the views of a victim towards bail", giving power to senior police to review bail set by junior officers and requiring an applicant for bail to directly inform the complainant.
The director of public prosecutions, Nicholas Cowdery, urged the review to consider creating "a barrier" to bail pending District Court appeals; adding to the considerations in granting bail a phrase "promoting effective law enforcement" and a provision intended to refuse bail where witnesses from certain ethnic groups may be pressured by persons on bail, as well as being influenced by a reluctance to inform which is "deep-rooted in the culture of the original homeland"; and introducing a "discretion to forfeit security" if a bail condition is breached, even if the person appears in court.
A paper by Juris Laucis of the DPP also attacks the presumption of innocence, claiming: "The exceptions to the presumption in favour of bail ... clearly indicate that the original philosophy, based on the presumption of innocence, whilst serving the altruistic approach of legal purists, failed to come to grips with the reality that the community needs to be protected".
Cowdery proposes a presumption against bail for accused persons "requiring drug rehabilitation"and a presumption against bail for all those "charged with offences of a non-trivial nature, whilst on bail".
The CCL has written to Cowdery asking that he dissociate himself from Laucis' outrageous attack on two basic principles of human rights: the presumption of innocence and the right to bail.