Bail laws

Recorded as police ministers and the Attorney General met nationally, and the NSW Cabinet held an emergency meeting, on bail laws and gendered violence. Matt Ward explains that most offences in NSW carry no presumption of bail at all, sets out the two tests courts actually apply (unacceptable risk, and show cause), and warns against a knee-jerk tightening of bail that wouldn’t address the wider service gaps in policing, victim support and education.

Interviewer: You’re listening to ABC Illawarra. It’s quarter to eight here on ABC Illawarra. Well, police ministers across the country are meeting today, and the Attorney General is meeting, with the New South Wales Cabinet also holding an emergency meeting today, all talking about what to do about gendered violence. Bail laws will be discussed by police ministers and attorneys-general across the country. So how do these bail laws actually work? Is domestic and family violence considered a serious enough offence for the presumption of bail to no longer be considered by courts? Matt Ward is with Morrisons, Criminal and Traffic Law Specialists here in Wollongong, and joins me now. Matt, good morning.

Matt Ward: Good morning.

Interviewer: Look, I wanted to just set the scene first here in terms of bail laws, because I think this will occupy a lot of the discussion that’s being held today by police ministers and attorneys-general. In New South Wales, we have the presumption of bail, which means that people will not be locked up unless there’s a very high likelihood of reoffending. But when do you not have the presumption of bail in this state?

Matt Ward: So to set that scene, there isn’t a presumption of bail in most offences or allegations before the courts in New South Wales. Whilst I understand and fully appreciate there’s a lot of media coverage and interest in bail at the moment, bail is actually quite difficult to get, depending on the circumstances of an individual. But generally speaking, there’s really two tests that apply. The first is an assessment of risk, seeing whether someone poses an unacceptable risk to being released. And secondly, if they have certain types of offences, or they have a certain record or are on bail and commit certain types of offences, they’ve got to show cause, that is, the onus is on the person trying to get bail to show cause why their detention is not justified. There’s a very, very small number of types of charges where there is a presumption in favour of bail, but they are very, very minor in the scheme of the Bail Act within New South Wales.

Interviewer: Okay, so you’re saying that under the current system, it’s very difficult to get bail, particularly if you have a prior record or a violent history. So why are we talking about this? It still must be failing in some respects.

Matt Ward: Well, I’m all for the review of legislation to see if things can be done better, and to see if things can be made better for courts, for people making these decisions. But I don’t accept that generally speaking it’s easy to get bail. Bail laws are tough in this state in a general sense. Domestic violence, the breach of AVOs, serious domestic violence is taken very seriously by the courts. Breaching court orders in a domestic context is taken very seriously, and those people are often refused bail. The only thing that I’m concerned about in relation to these meetings, and in relation to people’s opinions, is that we do a knee-jerk reaction to an awful and tragic situation that doesn’t have an intended impact and doesn’t fix the problem that needs to be addressed on a wider scale.

Interviewer: Are there some failures, though, of the system that need to be fixed? A lot of people say the AVO system doesn’t really work because it’s breached so regularly. I don’t know what you think about the AVO system and how difficult that is to police, and whether anything can happen there. I mean, the AVO system also takes up a lot of the court’s time. Anyone who’s spent time in a court knows that there is a huge list of matters listed every day for AVOs.

Matt Ward: Absolutely, and that I think is a reflection that police and the courts are taking any type of domestic violence really seriously. The reason I think it’s complicated is the court, the law and bail is definitely one part of the equation, but it’s not the only part of the equation. It’s policing. It’s the support services for victims of crime and people in domestic violent relationships. It needs to be, in my view, a whole service-based approach: the law is one of those things. But if we can do education, if we can provide services, if we can have appropriate sentences and recognition in the community, that will all go to helping those issues. But the volume of breaches before the court doesn’t always mean that there’s been a huge increase in issues. There’s just a better awareness, people coming forward, police charging, police being active. And that’s not always a bad thing.

Interviewer: A lot was made of the judge who heard the Bruce Lehrmann defamation case, Michael Lee, about how his judgment reflected a real change in attitudes towards sexual assault, for example. Have you noticed over time attitudinal changes among magistrates and judges in relation to domestic violence, and a greater understanding of some of the myths that surround it, for example?

Matt Ward: I think over time the law has changed, and as the court should, it observes things that are important. We get more information, more studies are done, more understanding is obtained. But in my view, the courts, at least the courts that I practice in, have a very clear understanding of the impact of domestic violence, how serious it is, how it can start, and the impact that it has on not just a victim but families and communities. Anyone who wants to come to the Wollongong Local Court or District Court on a daily basis will see that. But a tougher stance, refusing bail to everyone whose charge is a domestic violence offence, I understand why people would want that, but it will not, unfortunately, fix this problem, and there are a variety of scenarios where I think if people knew that information, they wouldn’t want that to happen either.

Interviewer: Well, we’ll see what police ministers and attorneys-general come up with today, and of course the New South Wales Cabinet having their emergency meeting as well. I really appreciate your insights this morning. Thanks very much, Matt.

Matt Ward: No problem, great to chat to you.

Interviewer: That’s Matt Ward, a lawyer here in Wollongong with Morrisons, Criminal and Traffic Law Specialists. You are listening to ABC Illawarra.

Transcript lightly edited for readability (false starts, crosstalk removed).