JESSICA TRUONG 11LST2
Evaluate the effectiveness of law reform in relation to bail in achieving just outcomes for
individuals and society.
Law reform in relation to bail has been mostly ineffective in achieving just outcomes for individuals
and society, as it has failed to achieve enforceability and justice in order to protect the community as
well as the accused’s rights. Bail is an authority where the accused is granted release from custody
from officers of the law, allowing them to be free to live in the community until the court case is
heard. Bail is granted on the condition that the accused must agree to attend court at a later date to
answer a criminal charge. The Bail Act 1978 (NSW) failed to protect the accused’s rights, as well as
achieving enforceability due to limitations such as Section 22A. However, it was effective to an
extent to provide the safety for the community. Moreover, the Bail Act 2013 (NSW) was limited in its
effectiveness to achieve enforceability, protecting individual’s rights and meeting society’s needs
through flaws such as the unacceptable risk test. The quick introduction of the Bail Amendment Act
2014 (NSW) is ineffective in achieving just outcomes for individuals and society as it failed to succeed
with enforceability, justice and meeting society’s needs through limitations such as show cause.
The Bail Act 1978 (NSW) was ineffective in achieving just outcomes for individuals and society as it
failed to achieve enforceability and protection of individual rights. The Act had different
requirements for bail based on the type of offence that was alleged upon the accused, as well as the
characteristics of the person. This allowed the criteria to be applied by police and courts, giving them
authority to determine the applications for bail and assessing the likeness that the accused will
appear in court. When the Bail Act 1978 (NSW) was first enacted, it was in favour of bail for all but a
few number of offences. From 1978 to 2013, the Bail Act 1978 was amended 80 times, to introduce
presumptions for and against bail for specific offences. However, this soon became complex and
difficult to navigate for the legal profession, judiciary and police, making it more difficult for
enforceability to be achieved, leaving many people in remand. The Rule of Law states that in 2012,
26 percent of prisoners in NSW jails were on remand, spending an average of 5.7 months in jail. A
major controversial factor of the Act that did not protect individual’s rights was section 22A which
stated that a person can only get one chance to apply for bail, so solicitors advise to not apply for
bail at the first appearance. According to the Sydney Morning Herald, “No bail- go directly to jail”
(2010), former magistrates believe that Section 22A puts many accused in jail for dubious reasons
and instead increases the number of people on remand. On the other hand, the Act was effective in
achieving justice to meet society’s needs for the safety of individuals. The effectiveness of the Bail
Act 1978 (NSW) is evident in the R v Jacobs 2008 where bail was denied, as safety for the community
was paramount. Therefore, the Bail Act 1978 (NSW) was effective to the extent of achieving justice
for society, however, after 80 amendments the Bail Act 1978 (NSW) was too hard to navigate and
the introduction of Section 22A made it difficult for enforceability and protection of individual’s
rights to be effectively achieved.
The limitations from the Bail Act 1978 (NSW) required reform in order to effectively achieve
enforceability and meeting society’s needs to protect the community. The Sydney Morning Herald,
along with other media companies, played a large role in pressuring for a change in the Bail Act 1978
(NSW). The news article “Tough bail as counter to violence” (1978) by The Herald (now known as
The Sydney Morning Herald) provides an example of the role the media played by addressing the
upsurge of violent crimes to the public to pressure for a change for tougher laws. The Bail Act 2013
(NSW) removed all presumptions related to bail and instead introduced an unacceptable risk test to
decide if the accused will pose a risk to safety, committing an offence, interfering with a witness or
failing to appear in court. The Bail Act 2013 (NSW) better reflected the seriousness of the alleged
crime and the risk that the accused poses to the community. Through this, adults could only apply
JESSICA TRUONG 11LST2
for bail once and juveniles twice. Nevertheless, the new reform was limited in achieving successful
effectiveness of enforceability and meeting society’s needs to an extent. However, the Bail Act 2013
(NSW) failed to fully meet society’s needs to protect the community as well as protecting the
accused’s rights. The Sydney Morning Herald states that over the last 15 years there has been a
decline in crime in NSW due to tougher conditions in bail laws with fewer robberies and assaults
being recorded. This reinstates that the reform introduced tougher bail laws which are effective in
reducing crime rates achieving enforceability to protect the community to an extent. However, the
case of R v Fesus 2014 highlights the flaws seen in the Act. Fesus was initially denied bail under the
Bail Act 1978 (NSW) but then was granted bail under the Bail Act 2013 (NSW). The judge granted bail
through Section 17(2) stating that the applicant does not present unacceptable risk that will put the
community in danger. Despite murdering his wife and initially being refused bail, the Bail Act 2013
(NSW) allowed bail to be granted, putting the community at risk. In addition, the R v Hawi (2014)
brought attention in the media after Hawi sought bail when he successfully appealed a murder
conviction. He was originally sentenced to 28 years in 2012 but, appealed this decision and applied
for bail in 2014, now following the Bail Act 2013 (NSW). To conclude, the Bail Act 2013 (NSW) was
effective to a limited extent to achieve successful enforceability and meeting society’s needs,
however, it failed to protect the community allowing bail for serious offences that was initially
denied.
The Bail Act 2013 (NSW) had many limitations that required a reform, introducing the Bail
Amendment Act 2014 (NSW). Three major agencies played a role in the reform. Due to several
concerns for bail decisions such as R v Fesus (2014) as previously mentioned and R v Hawi (2014)
where both cases were granted bail under controversial decisions. These cases also brought upon
media attention such as The Sydney Morning Herald’s article “Bikie killed in Sydney Airport brawl”
(2009). This quickly prompted the NSW Government to change the Act. Secondly, a former NSW
Attorney General named John Hazistergos wrote “Review of the Bail Act 2013” in which the
government accepted the recommendations from Hatzistergos’s review and amended the Bail Act
2013 (NSW). The Bail Act 2014 (NSW) removed the presumption of innocence and general right to
liberty from Section 3 of the Bail Act 2013 (NSW) instead, putting in the Preamble where it has no
legal force. The Bail Amendment Act 2014 (NSW) was ineffective in achieving enforceability as well
as justice to protect the safety of the community. ABC News states that the Act has been ineffective
in making it harder for defendants charged with serious offences to apply for bail. The number of
defendants refused bail only increased by six percent from 27.6 percent to 32.6 percent. This implies
that the bail law is ineffective as enforceability and justice has not been achieved as defendants
charged with serious offences are still able to receive bail, putting the community at risk. Also, the
case of R v Boyd (2015) demonstrates how the Bail Amendment Act 2014(NSW) was ineffective to
achieve enforceability and meet society’s needs to protect the community. In the case, the accused
was granted bail after committing multiple offences while on parole from an earlier offence. It was
proven that the accused failed to meet Section 16A from the Bail Amendment Act 2014 (NSW) to
provide a show cause of why his continued detention is not justified in which the accused did not
meet due to current offences and criminal history. The granted bail proves that enforceability was
not achieved, thus not achieving justice which puts the community’s safety in danger. The Bail
Amendment Act 2014 (NSW) quickly received criticism with many people believing that the changes
had come too soon, without allowing proper time for the Bail Act 2013(NSW) to demonstrate
whether it was effective. The Sydney Morning Herald reports that veteran director of NSW Bureau of
Crime Statistics and Research (BOCSAR), Don Weatherburn states that there has not been enough
time allowed to review whether or not the prison population has increased or decreased. Therefore,
the short, quick introduction of the Bail Amendment Act 2014(NSW) was ineffective in achieving
JESSICA TRUONG 11LST2
enforceability and achieving justice in order to protect the community due to the limitation of
Section 16A.
In conclusion, law reform in relation to bail has been mostly ineffective in achieving just outcomes
for individuals and society. The Bail Act 1978 (NSW) was effective to an extent to achieve justice for
society, but limitations such as Section 22A and 80 amendments caused the Act to be ineffective as
enforceability and protection of individuals rights were not able to be achieved. The Bail Act 2013
(NSW) was effective to a limited extent that achieved enforceability and meeting society’s need but,
failed to protect the community due to limitations of the unacceptable risk test of Section 17. Finally,
the quick introduction of the Bail Act 2014 (NSW) was ineffective in achieving enforceability and
justice for society, failing to protect the community with flaws such as Section 16A to provide a show
cause that still enables for serious offenders to be granted bail. All three Acts were effective in
particular circumstances but overall has been mostly ineffective to achieve just outcomes for
individuals and society.