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NSW Bail Act: some freedoms more equal than others

Date

Jacqueline Maley

<i>Illustration: michaelmucci.com</i>

Illustration: michaelmucci.com

Yo! Calling all privileged white dudes who get professionally angry from podiums in radio, television and newspapers! You know who you are. You love liberty as much as you hate wind farms. You despise the curtailment of our common law rights. Indeed, you will shout loud and long from your bully pulpits when these freedoms are threatened. You believe these freedoms to be noble, the very foundation of our liberal democracy!  After all, they have been passed straight from the hand of John Stuart Mill to the anger-pinched lips with which you defend the rights of guys like you to be bigots.

To be fair, you freedom crusaders have got a lot on your plates right now. There are so many things to denounce. The aforementioned wind farms, the carbon tax (at least for another few weeks), and the terrors of particular religions. But in all your excitement over the caliphate and your self-congratulation at having invented a new rude name to call female newspaper columnists, you seem to have neglected what looks to be one of the most egregious attacks on fundamental liberties in recent times – the likely junking of the new NSW Bail Act.

The NSW government has announced a ‘‘review’’ of the new bail laws, barely a month after their commencement. The new laws replaced the presumption against bail for serious offences, such as murder, 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 s/he might commit an offence while on bail, whether s/he might be a danger to their alleged victim or to the community, and whether s/he might interfere with evidence or witnesses while at liberty.

The new Bail Act, which came into effect on May 20, was the result of a huge, comprehensive review into the old Bail Act of 1978. The old Act had become a Frankenstein’s monster – amended 85 times, so tortured by procedural restrictions and contradictory criteria that magistrates and judges struggled to apply it. The NSW Law Reform Commission called it ‘‘unintelligible’’.

In 2011 then premier Barry O’Farrell’s government asked the commission to review it. The commission spent nearly a year doing so and delivered recommendations to the government in 2012. They were largely adopted and the new Bail Act was legislated last year and came into operation on May 20 this year, with a plan to review the legislation in three years. A better and more orderly public policy process you would struggle to find.

That’s when the liberty lovers hit. One shock jock pronounced the laws ‘‘buggered’’ and ‘‘broken’’ after sensationalised tabloid coverage of two cases of accused men who were released on bail under them. A little over a month after they came into effect, Premier Mike Baird announced a review of the laws.

The first case was Mahmoud Hawi, a 34-year-old former Comanchero boss who was convicted of murdering a Hell’s Angel bikie by bashing him with a bollard at a Sydney airport brawl in 2009. The conviction was later quashed and while Hawi awaits his retrial, he has been released under the new bail laws. The second case was Steven Fesus, a 47-year-old accused of murdering his young wife in 1997. He was released pending his trial.

Both of these men, unsavoury though their alleged crimes may be, are, in the eyes of the law, innocent as you or me before conviction. As such, society takes very seriously any deprivation of their right to liberty. This right, to move freely, to come and go as one chooses, is not one you often hear being defended by the freedom-fighters of the libertarian right, despite it being most ancient and fundamental.

‘‘It is in the Universal Declaration of Human Rights, it is in the International Covenant on Civil and Political Rights. It is enshrined in civil and case law in Australia,’’ former NSW Director of Public Prosecutions Nicholas Cowdery says.

This liberty sits alongside another ancient and fundamental common law right, that is, the right to habeas corpus, or a fair hearing. As Cowdery says: ‘‘A presumption of innocence has to be more than a collection of words.’’ Habeas corpus is the only thing that sits between individual freedom and the arbitrary action of the state, so it is rather important when it comes to the healthy functioning of liberal society.

Sadly, it is not a right Andrew Bolt et al often raise their considerable voices to defend. While Senator George Brandis gave a speech when in opposition on his plans to redirect the human rights debate towards traditional common law rights and freedoms, this doesn’t yet seem to be one of them. As far as I’m aware Freedom Commissioner Tim Wilson has not spoken out about the Bail Act either, and how important it is to get the legal formula right if you are going to take away an individual’s right to personal liberty.

Even if we cast aside fancy debates about enlightenment philosophy, there are good social and economic reasons to keep people out of jail where appropriate. The state’s prison population is at a record high of 11,000. This is despite the fact that crime rates have fallen across all categories over the past decade. It costs $100,000 a year to keep a person in jail, so that is an annual taxpayer bill of roughly $1.1 billion. Jailing more people does not push crime rates down. In fact, many argue it has the opposite effect.

In any case, as Cowdery and other experts point out, it is impossible to review the efficacy of laws that have been in place a month. The data doesn’t exist yet. 

But it is possible, and oh-so-easy, to make a precipitous, knee-jerk response to the confected outrage of a few people with loud voices – voices which seem to holler, rather self-interestedly, that while all freedoms are equal, some are more equal than others.

44 comments so far

  • Jacqueline whilst I share your indignation against some who profess to be professionally angry from podiums in radio, television and newspapers. I do however take exception to your hypothesis on the new bail laws, it is your fellow journalists who have told us all infinitum that the killer of Thomas Kelly, the killer of Jill Meagher were both on bail, it is your fellow journalists who are telling us about the release of Hawi, not once have I heard one of your colleagues giving a balanced comment why they are being released. I also take exception to you calling "white dudes", firstly if I was to say black or women I would be first called racists and secondly sexists, although it is fair for you to be so obvious.I do not get that people listen tom some of the so called shock jocks especially when one was recently served AVO by his then wife and the next week was the savior of decency.I suspect your colleagues are scared of bringing these shock jock to account as they tend to sue, so who are the bigots now?

    Commenter
    Taffy
    Location
    Ingleburn
    Date and time
    July 05, 2014, 1:03AM
    • Jacqueline most people do not care about the change in the law because they know it is highly unlikely to affected then. the only way it might is if the see their daughter or wife killed by one of these un saviour characters that you feel good lefties love supporting.

      Commenter
      GD
      Date and time
      July 05, 2014, 8:05AM
    • Thank you Jacqueline - such sweet juxtaposition.
      Make no mistake, you're either for us or against us with this one. It's right or wrong - it's black and white.
      There are dark souls who walk not the righteous path - there is only one 'truth' here. Surely, those who have a different opinion from ours have no humanity - there are no good people in the 'other' camp.
      The blustering rant of the redneck rabble - those Neanderthals who would ditch 18c and Habeas corpus in one fell swoop.
      The namby-pamby morally superior Lefties - those naive habitués of fashionable coffee shops who largely feed off the public teat.
      Is there anything worthwhile that the 'other' side could offer in this debate - I get the sense that the answer is no

      Commenter
      Howe Synnott
      Location
      Sydney
      Date and time
      July 05, 2014, 8:14AM
    • We seem to forget that there are women shock jocks as well. It isn't just a male preserve. Also, I'll never forget that during the Bosnian war it was the grandmothers who were urging the soldiers to dispense with the innocents of the other ethnic group. Virtue does not reside solely in one gender.

      Commenter
      Good Logic
      Date and time
      July 05, 2014, 9:44AM
    • To Howe Synnott - you are very, very good at stringing together long cliches with lots of big words. Very impressive! Trouble is, you forgot to put the meaning in. What exactly are you trying to say?

      Commenter
      lola
      Date and time
      July 05, 2014, 10:44AM
    • G'day Lola - thank you.
      I am saying there is no 'absolute' truth (no 'correct' view) here - people with opinions that differ from those outlined by Jacqueline are not necessarily 'wrong'; well intentioned and 'good' people can simply have a different view.
      In my opinion, Jacqueline's pejorative characterisations of those with a view that is different from the one she champions, merely diminishes her.
      Those who see the world through a different prism are not necessarily bigots - with 'confected outrage'.
      To make the point, I described caricatures that are often used to depict those on the 'other' side - when people get into a slanging match, and seek to denigrate those with whom they disagree. However, this is an indulgence of which we are all guilty.

      Commenter
      Howe Synnott
      Location
      Sydney
      Date and time
      July 05, 2014, 12:17PM
  • Does the SMH honestly believe that us white male heterosexuals cant see that we are the bane of all existence?How many more times will the "sisterhood" need to let us know?I get it,your white middle class feminist hatred is painful.We will continue to work like dogs and kowtow to your perpetual victim status...can we get sunday off my oppressed sister?Help a brother out.

    Commenter
    farkennel
    Location
    realityville
    Date and time
    July 05, 2014, 1:25AM
    • Mr Blair (nee farkennel),

      nothing to read in the Murdoch press today? Trolling the SMH for fright bats? No?

      Commenter
      John B
      Location
      Ryde
      Date and time
      July 05, 2014, 2:41PM
    • I suspect that most commentators have no actual idea about bail, how it works and what it is meant to do. Most commentators see bail as a form of punishment which it is not. Bail is designed to ensure that the alleged offender appears before the court, doesn't offend while on bail and does not interfere with witnesses and nothing else. It appears that most commentators think that the alleged offender is getting off lightly this is not the case when viewed objectively. The recent cases of the alleged bikie and alleged spouse murder. The alleged bikie had been in gaol for a number of years and had to face a new trial (up to 2 years from now) due to a legal error. It is common and has been common for decades that prisoners awaiting trial for a number of years who have that period extending by legal error are granted bail (even in allegations of murder if the other factors about risk can be dealt with) That fellow would have been released under the old Act (using the exceptional circumstances provision). The other case the murder case allegation is 17 years old. It has always been easier to get bail on a historical allegation as the evidence is not usually as strong as a recent allegation. That person would have most likely got bail under the old Act as well.
      I submit that those two examples do not fit the normal pattern and should not be used to define the new Act as they would have occurred under the old Act as well. The fact is that most people on remand do not receive a custodial sentence when their matters are finalised.

      Commenter
      Fundamental Misunderstanding
      Location
      Sydney
      Date and time
      July 05, 2014, 4:41PM
  • Rah Rah Rah these criminal scum should rot in jail and we should throw away the key etc etc etc

    Here is what I suggest to anyone who thinks that the criminal justice system is too lenient or is a "holiday camp."

    Would you like what is done to them, to suddenly be done to you?

    If you honestly think prison is soooo wonderful, I don't see a line of people wanting to go in for the benefits to their physical and mental health.

    Commenter
    WKCIA
    Date and time
    July 05, 2014, 2:34AM

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