REFORMS to the NSW Bail Act were not given enough time before being dumped, the Law Society of NSW says.
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Law Society president Ros Everett said her organisation, along with the Law Reform Commission, Bar Association and other professional groups, was part of a major review of the Bail Act of 1978.
However, the new laws that came into effect in May this year were given only five weeks before the State Government announced a review – after two high-profile cases involving alleged murderers released on bail while awaiting trial were pounced on by shock jocks and tabloid media.
The new laws replaced the presumption against bail for serious offences - such as murder or sexual abuse of a child - with a broad test of whether the accused poses an ‘‘unacceptable risk’’ of re-offending.
In assessing that risk, the judge or magistrate has to consider four factors - whether the accused might not turn up at court, whether they might commit an offence while on bail, whether they might be a danger to their alleged victim or to the community, and whether they might interfere with evidence or witnesses while at liberty.
“Our judicial system remains entrenched with the presumption of innocence…[but with the new amendments] someone potentially innocent bears the burden of the onus on proof,” Ms Everett said.
“People have to show why they aren’t a risk to the community, not the other way around.
“To spend six weeks on remand for an innocent person is a life-changing experience.”
Ms Everett said the old Bail Act had become “unworkable” and was “very complicated, with numerous amendments made on the run”.
To carve out new laws, she said they focussed on two things – protecting the community and protecting the rights of individuals.
“We thought there was nothing wrong with the new bail laws at the start of the year,” Ms Everett said.
“We all made sure there were no unintentional circumstances.
“Now these amendments are creating a reversal of the burden of proof – it’s going back to the bad old days,” she said.
“You can’t tell how the new act is working until it’s gone through the full time of appeal.”
Ms Everett said she would not comment on specific cases such as Maurice Van Ryn’s guilty plea on multiple child sex offences.
“You can’t generalise as each case rests on its own individual circumstances and facts of the case,” she said.
“It is up to the alleged offender to show cause they are not a risk to the community and up to the prosecutor to show they are.
“But if the DPP didn’t think stringent bail conditions are enough they would appeal it and it would go to a higher court for bail to be revoked.”