The politics of bail reform: the New South Wales Bail Act, 1976-2013

Many aspects of the criminal justice system have since the beginning of the 1980s been associated with what is described as a ‘punitive turn’. By this is meant a more severe approach to issues such as sentencing. A range of reasons are given for this turn of events, some international, some local. Interaction between politicians and the public to produce a more punitive approach to the criminal justice system is associated with less attention to the advice of experts. This thesis considers whether such a punitive turn occurred in relation to bail law in NSW. If there was a punitive turn, when did it occur? Was it the only cause of changes in bail law in NSW? Was any punitive turn a result of local or international factors or both? Bail is associated with two of the basic principles that underpin Western societies – the presumption of innocence and the emphasis on freedom of the citizen. If there was a punitive turn associated with international trends, then the prospect for major reform by local campaigning becomes a very difficult task. Those who wrote the NSW Bail Review Committee Report in 1976 and the Attorneys-General who made the decisions leading to changes in bail law in NSW have in the past not been systematically interviewed in relation to the reasons for these decisions that led to changes in bail law in NSW. The interviewing of those decision-makers is the central feature of this thesis. The interviews have been compared with written material such as second reading speeches, journal articles, print media and statistical material. Material on the campaign for bail reform in the years 2010-2013 is also considered, as is the response by Governments. Consideration of the material in this thesis leads to the conclusion that, in every decade, factors such as spectacular crime or type of crime, media attention, personal views of decision makers, government reports and government policy have to varying degrees been central to changes to bail law in NSW. The contention in this thesis is that a punitive turn is not apparent in relation to changes in bail law in NSW until 1995. It is also contended that the punitive turn from that year was locally based until the year 2000. The punitive turn was an addition to factors that had been causing change in every decade since the 1970s. It is contended that because bail was never a matter that sat easily with a punitive approach it was possible to have the bail campaign and public debate about bail reform in 2010-2013. The limits of a punitive turn can be seen in the public and media support for the bail reform campaign run from 2010 to 2013. The Bail Act proposed by the Labor Government in 2010 did not eliminate punitive elements that had been created by decades of amendments. The attempted introduction was not successfully completed. The Bail Act introduced by the Liberal Government in 2013, while not introducing all of the major reforms recommended by the NSW Law Reform Commission, cannot simplistically be described as punitive. It introduces important reforms in some areas and remains punitive in other areas. The 2012 Report of the NSW Law Reform Commission on bail is available as a benchmark for a new generation of campaigners to pursue bail reform in future years.