Is the NSW gaol population rise a positive thing?

In the last two years the NSW gaol population has risen by 13% (quotable from the Bureau of Crime Statistics and Research - BOCSAR)
So this demonstrates that the law enforcers and the law are working on the level of practicality (compliance and enforceability). It also should mean that with decreased criminals on the streets that society should be a safer place (in logical theory anyway).

Source BOCSAR report April 2014


Why has the gaol population increased?-

• Strict application of Bail Act, including an increase in the amount of people on remand who may be found innocent at a later stage. (remember law reform has meant that the Bail Act has now been changed so that from May 2014 the law is now less complex and applies remand is applied when a person poses an "unacceptable risk". Combined with the fact that young people can now apply for Bail more than once means that less people should be in remand and thus in gaol.)
• It appears that society and thus court attitudes have hardened towards sexual assault meaning more people are spending custodial time for this offence.
• Policing practices and amount of resources available to police.

So in conclusion is the increase a positive in the long term?
Aspects to consider-

• Our gaols are effectively overcrowded which reduces the ability for rehabilitation and increases the likelihood of recidivism.
• The cost of gaol is expensive $119 a day and needs to be balanced against the benefit to society. Whilst deterrence and retribution exist as important purposes of punishment gaol lowers the ability of rehabilitation to be successful.
• What is interesting is that there is considerable evidence that crime in most categories has fallen. This means the reason for more people in gaol is due to policing and the courts not people committing more crimes.

Overall whilst gaol as a punishment may reflect the desire for justice which for many in society is represented by locking someone up the long term ethical consideration and benefit for society must be balanced against a 'get tough approach'. This tension or clash must be balanced by the judiciary who can never satisfy everyone.

Unconscionable conduct- what is it?

When a person is desperate to get money prior to being paid but they know in 2 weeks they will be able to access the money what do they do?
Well for some people they would suffer quietly.
Others well they go to a payday lender who they then repay when they are paid.
Apart from the interest charge no major issue in a capitalist, cruel world.

What if the person taking out the short term loan is on Centrelink payments as their main form of income and is sold consumer credit insurance. The insurance then covers if you are sick, ill or unfit for work and cannot repay the loan on time.

When consumers are sold insurance and are highly unlikely to not use the insurance or the loan conditions do not take into account the financial position of the borrower this is considered to be 'unscionable'.
The Australian Securities and Investment Commission states taht unconscionable is beyond harsh and unfair, it actually involves deliberate misconduct.

This could mean-

• Taking advantage of the other parties position (e.g CBA v Amadio 1983)
• Use of unfair influence
• Acting in good faith  (ACCC v Lux 2013)
• Unfair tactics by the stronger party

So in a recent case involving two payday lenders the Federal Court found that The Cash Store and Assistive Finance Australia had engaged in unconscionable conduct.
see Federal Court shoots down payday lender.

This case demonstrates increased enforeability, compliance to the law and the protection of the National Consumer Credit Act 2009.

End of innocent until proven guilty

* This refers to a liberal as aperson who favours freedom and equality. Conservative= a person opposed to change and wants traditional values e.g Australian Liberal party


In 2011 the NSW government decided to instigate a comprehensive review of the Bail Act due to its complex nature, the fact that a high amount of young people were on remand (many later found not guilty) and criticisms from within the criminal justice system.

The NSW government asked the NSW Law Reform Commission to report on law reform.
The report was released a year later and delivered it recommedations in 2012. It was described as 'unitelligible' and was very difficult for judges and magistrates due to its contradictory nature.

The last was enacted last year and came into operation in May 2014.

Since May 20 the headlines and comments from the tabloid media have included:

Another bail disgrace
Society loses when accused walk free- the laws are an obscene joke
Comparisons were made with the Victorian Jill Meagher case
The laws are 'buggered' and 'broken'

The result- after a long and comprehensive review and reform process. The Baird NSW government decided to review the new Bail Act from 2013. During this time a number of cases have been highlighted by the media. It appears that an accused person who is an 'unacceptable risk' and then denied bail is not strong enough for the media.

So after a short review by one person (the previous Attorney General) the new law was altered so that now a person charged with a serious offence has to prove that they should be granted bail. In order to gain liberty prior to being found guilty the accused has the onus of proof not the prosecution.

Read the ABC link for more info.

Lets look again at why the laws were originally reviewed.

• Remand has a large impact upon the recidivist rate of those people who are in a prison
• The difficulty in gaining bail had a significant impact on juveniles and Aboriginal accused.
• 34% of accused found guilty in the Local Courts (on remand) were not given a custodial sentence, plus 8% found not guilty yet held on remand
• For children 26% found guilty were not given a control order plus 8.7% found not guilty in Children's Courts (after being held on remand)
• The average period held whilst on remand after bail was denied was close to 6 months.
  
  Questions remain as to why the Bail Act has been changed after such damaging evidence. Politics and keeping the tabloid media happy rather than an effective well balanced criminal justice system appear to be the driving force in law making.