Politics and the presumption in favour of bail: consideration of aspects of the Bail Act, NSW, 1978, in the period to the end of 2008. Discussion of the relative importance of various political factors that led to the neutralisation or reversal of the concept that is associated with the presumption of innocence

“The determination of bail is a delicate balancing act between principles that are the foundation of the rule of law in a society such as ours and the protection of the community. The community is right to expect that it will be protected, but that must be done within a framework that continues to observe fundamental principles, such as the presumption of innocence. Several speakers in this debate and in a debate earlier today seem not to understand that there is such a thing as the presumption of innocence, as fundamental as that is to the very essence of our democracy.” The above quote contains many of the basic assumptions that underpin a Western democracy regarding the role that law plays in a democratic society. The twin roles of law as both protector of the people against crime and also as protector of the people against unjust prosecution is intertwined with the concept of liberty which is also central to the Western political ideal. Avoidance of unjust prosecution and the assurance of liberty is pursued via the concepts of a fair trial and the presumption in favour of bail (the presumption). However, for serious crime, in N.S.W, in the years since 1978 there has been a radical shift away from the right to the presumption. This thesis seeks to address how and why this shift occurred and what the implications might be for the liberal/democratic nature of our society. This thesis will consider those provisions of the New South Wales Bail Act, 1978, that deal with the presumption and specifically consider changes to those provisions. It will be the contention of this thesis that these changes have led to an erosion of democratic principles and furthermore, that some elements of the process by which these changes have been engendered are a threat to the basic tenets of democracy. It is beyond the scope of this thesis to analyse every change to the Bail Act since its inception in 1978. A number of key changes will be outlined and discussed in detail, in order to highlight the pattern of change to the presumption. Aggravated robbery, drug supply, domestic violence and sexual assault will be discussed. Crime in company, gang related offences, repeat offenders, firearm offences and special circumstances provisions will not be considered. Chapter Two will examine “What is bail?” and specifically the presumption. It will consider why the presumption is important in relation to the presumption of innocence and liberal democracy. It will show that institutionalism in the form of rules in use underpinned the availability of the presumption for major crimes. Theories used in the thesis are explained below. The differences between the relevant sections of the Bail Act in 1978 and 2008 will also be set out. The material will show that for thirty years Attorneys General have been conscious of the presumption as a pillar of our society. However, Table 1 will provide clear evidence that by 2008 the presumption had been severely eroded through a series of amendments. Chapter Three will consider the relevant sections of the Report of the 1976 Bail Review Committee and the development of the subsequent 1978 Bail Act. In particular the reasons, for and implications of, excluding aggravated forms of robbery e.g (being armed with an offensive weapon) from the presumption will be considered. The material will show that in the lead up to the Bail Review Committee, interest groups and those within government institutions were working, consistent with both multiple stream and punctuated equilibrium theory, towards a new Bail Act. However, both before the Committee was set up and before the subsequent new Act equilibrium was punctuated by intense media coverage of armed robberies. The media did not meet Fourth Estate commitments in relation to explaining the presumption's importance. Social construction of armed robbers required such 'deviant' behaviour to be dealt with. Structural circumstances led to the rational choice to not provide the presumption for such offences even though the statistics did not and do not support such an approach. There was no convergence of party policy at this point but the first step towards erosion of the separation of powers occurred. Chapter Four will consider amendments from 1986 relating to illegal drug supply. The material will show that neither punctuated equilibrium nor multiple stream theory provide adequate explanation for the continuation of the presumption up to 1986. Institutionalism in place since 1978 supported the presumption and was only overcome when bail became directly connected to public debate and the rational choice was to erode the presumption. Major change only occurred after the 1988 election which was fought on law and order issues. This macro level punctuation, described as disruptive dynamics, led to a convergence of political party position on law and order issues and a clear erosion of the separation of powers. Once again the statistics did not and do not support these changes. Chapter Five relates to amendments from 1986 concerning domestic violence and sexual assault. The material will show that an amalgam of theory is required to explain the changes to the presumption in relation to these issues. Significant incremental change had been occurring for many years through the efforts of policy networks without threat to the presumption. However, in the 1990's punctuation of equilibrium occurred because of macro level changing attitudes, rising rates of recorded domestic violence, media coverage and the post 1988 election convergence on toughness towards crime. Institutional acceptance of the presumption as adequate was replaced in this period of disruptive dynamics by institutional acceptance of no presumption. The separation of powers was further eroded. The materials will show that the 1998 amendments in relation to a range of sexual offences while involving a media driven punctuation actually extended the new approach to a wider range of crimes rather than introducing a complete change. Statistics which are included at various points in the thesis often show no justification for the removal of the presumption. This leads to the conclusion that broader socio-political factors have acted as the impetus for amendments to the law in this area. These include reporting of crime in the media, political reaction to that, the influence of pressure groups, association with broad and necessary social change and convergence of political party policy. A number of theories of public policy development will be applied in explaining the shift away from the presumption in favour of bail for many crimes. It will be contended that because the reasons for the changes are multifaceted and complex they can only be fully understood through an amalgam of these theories. Punctuated equilibrium theory helps to explain why periods of incremental change in policy making concerning the presumption were punctuated from time to time by dramatic major change. For example media concern about a particular crime combined with community concern resulting in the particular issue being elevated to priority by policy makers. There are, at any one time, numerous policies which expert policy sub groups can consider through parallel processing. Incremental change occurs through the bargaining of interest groups, however, Parliament can only deal with a more limited group of issues. Dramatic change occurs when the policy image of a particular policy issue is heightened. In such a situation small changes in objective circumstances can cause large changes in policy, a process known as positive feedback. Social construction theory posits that “public policy makers typically socially construct target populations in positive and negative terms and distribute benefits and burdens so as to reflect and perpetuate these constructions.” Those thought of as criminals are given a negative social construction and have low political power. They are described in the theory as 'deviant'. Owners of homes and small businesses are examples of 'advantaged' groups with a positive image. These target groups will be apparent in the decisions regarding the erosion of the presumption. At times competing belief systems have attempted to create the social construction that reflects such beliefs. However, in the case of the presumption the belief in the civil liberty of individuals has repeatedly been overwhelmed by assertions about the need for a firm approach to protecting the community. Multiple stream theory explains that the problem stream consists of data on various problems. Proponents of policy reform on various issues (such as bail) are found in the policy stream. For any change to occur the political stream including elections and elected officials must be combined with the problem and policy streams. The theory contends that only when a compelling problem opens a window of opportunity will there be the potential for such combination to take place and policy entrepreneurs will attempt to take advantage of this. Agenda setting, that is “what makes some problems or events political issues, how do they get onto the agenda, and what causes their relevance to wax and wane?” and non decisions that keep troublesome issues off the agenda will be considered in relation to the various theories. The presumption's placement on the agenda has fluctuated in relation to broader legislative initiatives that could have included it. Institutions of the State and institutional rational choice theory are relevant. Government has on occasions been significant as a driving force in changing the presumption. Path Dependency whereby “'even the most innovative creations are decisively shaped by the content of previous policy,'” will be tested. Institutional support for the presumption will be considered as part of resistance to its modification.