Submission: In response to the NSW Law Reform Commission's Questions for Discussion

While RLC does not generally represent people in court who have been charged with criminal matters, we have regular contact with people who are subject to bail conditions and are experiencing other consequences as a result.

RLC has a Police Powers practice and receives regular complaints about the exercise of powers in relation to bail by police. We regularly advise on Police failures to exercise lawful authority. 

Our views in summary

  • The presumption of innocence is the foundation of our criminal justice system and the prima facie right to liberty is an essential characteristic of a civil society. Bail can only be permitted to limit the liberty and presumed innocence of the accused to the extent necessary to protect against foreseeable risks to the administration of justice and the safety of the community. 
  • Our submission supported the offence categories used in the current section 8.
  • The entitlement to bail should be modified. Failure to comply with bail conditions for a minor offence should not raise the possibility of remand.
  • The presumptions in the present legislation do not accord with the broader, essential purpose. They do serve their intended and advocated purposes but these purposes do not give due weight to the presumption of innocence and the prosecutorial burden of proof. 
  • Where a presumption is valid, its purpose should be achieved by reference to the evidence supporting the charge, rather than the selected charge itself. 
  • There should be a uniform presumption in favour of bail. The guiding approach should be that both refusal of bail and conditional bail, be based on evidence.