Proposed changes to bail laws in NSW threaten the presumption of innocence underpinning the criminal justice system and mark a return to the "bad old days" that existed under older laws, legal experts have warned.
The state government unveiled a suite of proposed changes on Tuesday to the state's fledgling bail laws, which came into effect on May 20.
Under the new rules, adults accused of one of six categories of "serious offence" – including firearms offences and those carrying a penalty of life in prison – must "show cause" why their detention awaiting trial is not justified.
If the defendant can show cause, or the offence does not fit into one of those categories, the court considers whether the person poses an "unacceptable risk" of reoffending, failing to turn up to the trial, or interfering with witnesses while on bail.
Former NSW director of public prosecutions Nick Cowdery said the proposed changes reintroduced by the "back door" the presumption against bail for certain offences that existed under previous laws.
The presumptions were scrapped in the new regime that started in May and replaced with a two-step test as to whether the accused posed an "unacceptable risk" of reoffending and whether the risk could be mitigated by bail conditions.
Mr Cowdery said the changes also "watered down" the presumption a defendant was innocent until proven guilty by deleting it from the section setting out the purpose of the laws and adding it as a "motherhood statement" in a new preamble.
The government commissioned former Labor attorney-general John Hatzistergos to conduct an urgent review of the bail laws in June, a month after they took effect. It followed ouctry from some media commentators over three decisions, including the release on bail of Sydney underworld figure Hassan "Sam" Ibrahim, whose bail was revoked days later.
Mr Hatzistergos said he had "embraced" aspects of the bail laws in Victoria and Queensland.
"This is not a popularity contest," he said. "People are entitled to their views, I’ve expressed mine."
Mr Cowdery said there were some minor changes that were "quite positive". It reduces the two-step "unacceptable risk" test to a one-step test, including the consideration of whether the risk could be mitigated by bail conditions.
But the changes added "unnecessary" risk factors that must be taken into account under this test, including the views of the victim or their family in the case of serious offences, which would already be considered.
NSW Law Society president Ros Everett said the proposed changes marked “a return to the bad old days of bail in NSW" and were a "complete rewrite" of existing laws.
“This government, which calls itself an infrastructure government, is increasingly looking like a prison infrastructure government."
Jane Needham, SC, president of the NSW Bar Association, said the changes were a "retrograde step which have the potential to threaten fundamental legal rights".
"Nearly 50 per cent of all persons who are charged are ultimately acquitted," Ms Needham said. "These changes will have the effect of dealing with all crimes in certain categories in the same way, irrespective of the facts of the case. For instance, a wife who loses control and kills her husband after decades of violent abuse will be subject to the same just cause test as a member of a crime gang who kills a rival gang member in cold blood."