Bail - Additional show cause offences

On 10 September 2014, and on 14 January 2015, the Attorney General asked us to consider proposals to make amendments to the Bail Act 2013 (NSW) in relation to the categories of offences for which bail must be refused unless an accused can "show cause" why their detention is not justified. 

Report

We transmitted our Report: Bail: Additional show cause offences (PDF, 341.5 KB) to the Attorney General on 22 May 2015. It was released on 28 August 2015.

In response to our recommendation the Bail Amendment Act 2015 (NSW) sch 1 [2]-[3] provided that a person would be required to show cause when charged with a serious violent offence if previously convicted of a similar offence in any jurisdiction. The Act was assented to on 5 November 2015 and commenced on 6 December 2016.

Other documents

The following documents were part of the consultation process for our Report:

• Submissions (responding to the terms of reference)

Terms of reference

We received the following terms of reference on 10 September 2014:

A proposal has been put forward by the NSW Police Association (NSWPA) to amend the show cause provisions to include circumstances where an accused person is charged with a serious indictable offence committed:

a) while subject to a good behavior bond, intervention program order, intensive correction order; or

b) while serving a sentence in the community; or

c) while in custody.

I would like the SC to consider the NSWPA proposal to extend a show cause requirement to the circumstances referred to above (‘on sentence offences’).

As part of this review the SC should consider and advise on:

(1) the extent to which concerns raised by ‘on sentence offences’ can be mitigated by the existing unacceptable risk test and show cause categories in the Bill

(2) the expected impact of expanding show cause requirements to ‘on sentence offences’

(3) taking into account the above, whether there is a need to create a new show cause category for ‘on sentence offences’; and if so what the appropriate limitations on this category should be in terms of:

a) the type of offences it applies to; and

b) the type of conditional liberty (or custody) that should trigger the show cause requirement, if an offence is committed.

We received the following additional terms of reference on 14 January 2015:

In addition to considering the NSWPA proposal, I ask that the SC undertake an ongoing role in monitoring and reviewing the show cause categories. I will also refer specific issues to the SC for consideration as they arise. 

Two issues have already arisen that I ask you to consider. The Office of the Director of Public Prosecutions have raised another possible expansion, suggesting that the show cause category for repeat serious violent offenders should be more closely aligned with the similar category of offences which had a presumption against bail under the Bail Act 1978. There has also been significant stakeholder concern expressed about the breadth of the show cause requirement applying to all serious indictable offences committed while on bail.