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Research Report: By the people, for the people?  Community participation in law reform
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By the people, for the people? Community participation in law reform  ( 2010 )  Cite this report

4. Case studies



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4.4 Bail Amendment Act Case Study


The Bail Amendment Act Case Study concerns the Bail Amendment (Repeat Offenders) Act 2002 (Repeat Offenders Amendment 2002), and explores how the issue of repeat offenders emerged onto the government’s legislative agenda and was formulated into legislation.

This Bail Amendment Act Case Study is an example of law reform intended to close an identified gap in the operation of bail law with respect to ‘offenders who commit less serious offences and are likely to do so again’ (Marien and Hickey, 2002). Like the Acceptable Behaviour Agreements Case Study, this case study is an example of legislation formulated within government without opportunities for public participation, and with minimal external stakeholder consultation, during the pre-parliamentary stage.

Bail is defined under the Bail Act 1978 as authorisation to be at liberty instead of in custody.59 Bail gives permission for a person charged with a criminal offence to be released from custody on the basis that they undertake to attend court and comply with any specified conditions. Failure to comply with a bail undertaking or condition may be an offence and lead to bail being revoked.60

Bail law underpins fundamental principles concerning a person’s right to be at liberty unless otherwise lawfully held in custody according to the rule of law, and based on the principle of the presumption of innocence. Bail law, however, is also intended to protect the community from harm, and therefore strikes a balance between competing individual and community rights. In this case the government sought to ‘offer further protection to the community from the risk of repeat offenders’ (Debus, Hansard, Legislative Assembly, Second Reading, 20 March 2002: 818).

The Bail Act 1978 has different requirements for bail depending on the type of offence alleged to have been committed, and the characteristics of the person. It prescribes the criteria to be applied by police and courts in determining applications for bail and assessing the probability that an accused person will appear in court.61

When first enacted, the Bail Act 1978 prescribed a presumption in favour of bail for all but a small number of offences (Brignell, 2002). Since then it has been frequently amended — a total of 78 times between 1979 and 2007, at an average of 2.7 times per year, or approximately once every 4.5 months, making it one of the most frequently amended statutes. A feature of bail law reform has been the progressive restriction on the presumption in favour of bail by successive amendments, intended to provide greater protection to the community. Table 4.1 outlines changes made to the presumption in favour of bail in the years preceding the Repeat Offenders Amendment 2002.

Table 4.1: Amendments reducing the presumption in favour of bail 1986–2002

Amendment ActRemoved presumption in favour of bail with respect to:
Bail (Amendment) Act 1986Serious drug offences
Bail (Personal and Family Violence)

Amendment Act 1987

Certain domestic violence offenders
Bail (Domestic Violence) Amendment Act 1993Murder, domestic violence or contravention of an apprehended domestic violence order where the person has a ‘history of violence’
Criminal Legislation Amendment Act 1995Murder-related offences
Drug Misuse and Trafficking Amendment (Ongoing Dealing) Act 1998Offences concerning supply of prohibited drugs on an ongoing basis
Bail Amendment Act 1998Certain serious offences of a sexual or violent nature
Police Powers (Drug Premises) Act 2001Offences under Firearms Act 1996, s 7
Crimes Amendment (Aggravated Sexual

Assault in Company) Act 2001

New offence of aggregated sexual assault in company
Bail Amendment (Repeat Offenders) Act 2002Defendants on bail, parole, or serving a non-custodial sentence, and those previously convicted of an indictable offence or failing to appear in court

Many of these amendments have been attributed to public outrage concerning particular shocking, abhorrent and high profile incidents (see Brignell 2002).

The particular circumstances of the Repeat Offenders Amendment 2002 has been described as a period of intense legislative activity occurring in the lead up to the New South Wales State election in 2003, during which ‘at a rough count over 30 criminal justice statutes’ were enacted as the government and opposition vied to persuade the electorate that they were tougher on law and order (Brown 2002: 64).

According to Marien and Hickey (2002), the Repeat Offenders Amendment 2002 had its genesis in studies by NSW Police and the Bureau of Crime Statistics and Research (BOCSAR), which were interpreted to suggest that a ‘gap’ in bail law was being exploited by offenders as:


    … literature, research and anecdotal evidence all pointed to the fact that the problem concerning bail being granted to repeat offenders was due to the types of offences these persons are alleged to have committed. These offences are generally lower down the scale in criminality in comparison to say, murder, malicious wounding, or drug trafficking, and would include the offences of theft, receiving, break and enter, shoplifting, driving offences and minor assaults.

Taken together the NSW Police and BOCSAR research suggested that people committing minor offences were responsible for a disproportionate amount of crime, continued to offend while on bail, and had a greater tendency to abscond whilst on bail (Marien and Hickey, 2002).62

Law reform issue

The issue of repeat offenders getting bail was seen as a problem to be solved by targeted law reform. Repeat offenders were characterised as a significant drain on NSW Police and court resources and exposed the community to an unacceptable risk of crime (Marien and Hickey, 2002).

One important issue stemming from the NSW Police and BOCSAR research concerned how much crime could be attributed to people on bail. A figure provided in a press release by the Minister of Police was later relied upon during parliamentary debate to substantiate the need for legislative reform:


    We have to get tough on repeat offenders. Police research shows that they commit 80 per cent to 90 per cent of all crimes. That means that if those people are stopped, we are well on the way to stopping crime … (Iemma, Hansard, Legislative Assembly, Second Reading, 10 April 2002: 1276)

This figure had been refuted by BOCSAR, as was subsequently clarified by the Attorney General:

    According to the Bureau of Crime Statistics and Research 14 per cent of persons who have been convicted more than twice account for 40 per cent of all court appearances in the Local Court. That is somewhat less than the 80 per cent figure that has been cited by a number of speakers today. That figure is one that is promulgated by the Police Service … I suspect that the amount of crime committed by repeat offenders lies somewhere between the two estimates I have just mentioned. Either way, what is significant is that this figure represents a significant concern to both our police and our community. (Debus, Hansard, Legislative Assembly, Second Reading in reply, 10 April 2002: 1340)

Preventing further offending was therefore portrayed as having potentially significant and far reaching implications with respect to reducing the general level of crime in the community.

The Repeat Offenders Amendment 2002 proposed to enact additional exceptions to the presumption in favour of bail where the person accused was on bail, parole or serving a non-custodial sentence, or was subject to a good behaviour bond, at the time the offence was allegedly committed,63 or had been previously convicted of the offence of failing to appear before a court in accord with their bail undertaking.64 The presumption would also be removed for persons accused of committing an indictable offence who had previously been convicted for one or more indictable offences.65

As evidenced in parliamentary debate in the Legislative Council, a number of concerns about the possible effects of the Repeat Offenders Amendment 2002 were raised by individuals and groups. These include further increasing the remand population and the number of Aboriginal people accused and denied bail, remandees preferring to plead guilty so as to get a classification and sentence rather than wait on remand for a court date, increasing the proportion of suicides by remandees, further draining limited legal aid and court resources as increasing numbers of defendants are refused bail by police, and that the Bail Act 1978 already adequately dealt with the issue of repeat offenders (see Hansard, Legislative Council, Second Reading, 7 May 2002: 1557–15649; and 9 May 2002: 1888–1919).

Law reform process

The Bail Amendment (Repeat Offenders) Bill 2002 (Bail Bill 2002) was principally formulated within government and provided little scope for public participation other than by making representations directly to members of parliament. Therefore while there was no formal public consultation, we found that some individuals and organisations made representations to parliamentarians that led to modifications in parliament.

The New South Wales Government formed an inter-agency working party to formulate legislation and other policy in response to the identified gap in bail law. The working party included representatives from a number of government agencies — NSW Legal Aid Commission, Department of Juvenile Justice, Probation and Parole Service, Department of Corrective Services, NSW Police, Police Ministry and Attorney General’s Department — and developed a ‘generally agreed upon’ proposal (Marien and Hickey, 2002).

The Bail Bill 2002 was introduced by the New South Wales Government in the Legislative Assembly where it passed without amendment. After several successful amendments moved by crossbench members of the Legislative Council, the Bail Bill 2002 returned to the Legislative Assembly where it was subsequently passed in its amended form.

Members of the Legislative Council cited a variety of research and reports by parliamentary committees, advisory bodies and law reform commissions during parliamentary debate. The parliamentary record also indicates a number of people and organisations made representations to members of the Legislative Council, which led to some amendments concerning the special needs of particular groups of people.

Individuals and organisations who made representations to parliamentarians included legal professional associations, advocacy organisations, religious organisations, Indigenous leaders and organisations, and academics with particular interest in the criminal justice system. The Law Society drew particular attention to, among other things, a report of the then Aboriginal Justice Advisory Council concerning the application of bail to Aboriginal defendants.

Crossbench members proposed 12 amendments to the Bill, of which four were agreed and supported by government members on the basis they were consistent with the government’s intent and did not affect its determination to remove the presumption in favour of bail for repeat offenders.

Two successful motions to amend the Bail Bill 2002 were moved by the Greens to add Aboriginal and Torres Strait Islander persons to the categories of persons whose ‘special needs’ were to be considered,66 and also to provide for the background and community ties of Aboriginal and Torres Strait Islander people to be assessed. Two more amendments were successfully moved by the Independent member, the Hon. Helen Sham-Ho MLC, to add mentally ill persons to the category of persons whose special needs were to be considered,68and also provide that the mentally ill be added to the category of offenders to be considered in the statutory review of the Repeat Offenders Amendment 2002.69 These amendments were motivated by concerns that leaving the mentally ill out of the categories of people with special needs had been an oversight (see Hansard, Legislative Council, Second Reading, 9 May 2002: 1888–1889).

Another amendment, moved by the Independent member, the Hon. Richard Jones MLC, provided that the Minister of Corrective Services should ensure that adequate and appropriate accommodation for placing persons on bail was available. This amendment was not agreed to by the government, but was nevertheless successfully made with the support of the opposition and sufficient members of the crossbench (Hansard, Legislative Council, Second Reading, 9 May 2002: 1904–1907).

Key features

A key feature of this case study is the lack of public consultation opportunities provided by government, which is reported to be a common feature of how the law reform process tends to operate for criminal justice issues (Brown 2005; Weatherburn 2004). Criminal justice law reforms such as the Repeat Offenders Amendment 2002 are generally crafted within government agencies without the provision of public or non-government consultation opportunities (see Brown 2005: 347–348). The details of these reforms usually first become public when they are introduced by government into parliament, although consultations may occur with prominent stakeholder bodies such as legal professional associations.

Law and order issues were repeatedly identified by many of our informants as having a wider political imperative that significantly affects how the law reform process operates:


    When it’s law and order type laws the processes used are not very consultative. (Legal CSO)

The often heated public, media and political debate surrounding law and order issues tends to sideline both external advisory bodies and public consultation as governments prefer to use in-house departmental research and policy units to formulate its proposed legislation (Brown, 2005: 348).

Popular support for ‘tough’ criminal justice law reform is a key factor affecting how these issues are framed:


    … the public generally seems to support strong law and order, and you can present all the arguments in the world that, a whole range of offences have gone down and, you know … it just tends to be ignored … (Parliamentarian)

Some informants reported that when the major political parties ‘sing from the same song’, such as with the same ‘tough’ on crime rhetoric, it is very difficult for anyone to offer dissenting views (non-legal CSO; legal CSO). An informant suggested that the political nature of the parliamentary debate in reforms like the Repeat Offenders Amendment 2002 is such that it may not be possible for concerned people to do much more than attempt to ‘tone down’ the scope of the proposal and seek minor amendments to protect identified groups of vulnerable people (legal CSO). In this case minor amendments were successfully made to provide some safeguards for Aboriginal and Torres Strait Islander and mentally ill persons.

We found however that only a small number of individuals and organisations were able to make representations to parliamentarians, mainly:


    … social welfare groups, legal professional bodies and groups like the Council for Civil Liberties … so that’s still pretty much one fairly small voice in the scheme of things. (Legal CSO)

The ability of the general public and disadvantaged people to participate in this case was therefore predominantly limited to their elected representatives or to their representation by a narrow set of civil society organisations having direct contact with parliamentarians.

In this case participants not only had to quickly analyse the implications of the proposed reform, they also had to get to grips with the statistics and research evidence which inspired the reform. This left a relatively small window of opportunity in which interested participants could seek to make representations to parliamentarians. The case also demonstrates how law reform issues which emerge from within government departments or agencies can quickly become law.

Together these circumstances suggest there are times when the ability of the public, as well as disadvantaged people, to participate is restricted to those individuals or organisations with the capacity to make representations during the parliamentary stage of the legislative process.

In the following chapters we identify features which affect the ability of people and organisations to participate in law reform and, in particular, how knowledge of law reform, the wider political context, and status, expertise and networks can facilitate participation notwithstanding that formal public or stakeholder consultation opportunities have not been provided.



Bail Act 1978 s 4.
Bail Act 1978 ss 50 and 52.
Bail Act 1978 ss 31 and 32.
That is, fail to attend court in accordance with their bail undertakings.
Bail Act 1978 s 9B(1).
Bail Act 1978 s 9B(2).
Bail Act 1978 s 9B(3).
See Bail Act 1978 s 32(1)(b)(vi).
See Bail Act 1978 s 32(1)(a)(i). These amendments were accepted by the government as being based on research of the Aboriginal Justice Advisory Council documenting difficulties Aboriginal and Torres Strait Islander defendants have with satisfying the criteria used to determine bail and because of the unique disadvantages they experience within the criminal justice system.
See Bail Act 1978 s 32(1)(b)(vi).
See Bail Act 1978 cl 17(2), Schedule 1.

59  Bail Act 1978 s 4.
60  Bail Act 1978 ss 50 and 52.
61  Bail Act 1978 ss 31 and 32.
62  That is, fail to attend court in accordance with their bail undertakings.
63  Bail Act 1978 s 9B(1).
64  Bail Act 1978 s 9B(2).
65  Bail Act 1978 s 9B(3).
66  See Bail Act 1978 s 32(1)(b)(vi).
67  See Bail Act 1978 s 32(1)(a)(i). These amendments were accepted by the government as being based on research of the Aboriginal Justice Advisory Council documenting difficulties Aboriginal and Torres Strait Islander defendants have with satisfying the criteria used to determine bail and because of the unique disadvantages they experience within the criminal justice system.
68  See Bail Act 1978 s 32(1)(b)(vi).
69  See Bail Act 1978 cl 17(2), Schedule 1.


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Nheu, N & McDonald, H 2010, By the people, for the people? Community participation in law reform, Law and Justice Foundation of NSW, Sydney