Show Cause aspects of the NSW Bail Act

We have all been the victim of some form of discrimination at one point or another. However this is the face of injustice via the Victorian justice system. The photo is of Farah Jama who was wrongfully convicted of rape and then served 15 months in prison based on contaminated DNA testing. Now Mr Jama is a Somali man who is a Muslim. He has some factors against him when he denied that was anywhere near the crime scene and the result the jury did not trust him or his family. 

This case demonstrates how important the criminal investigation phase of the justice system is.

'Innocent until proven guilty' is an essential principle in the legal system that ensures everyone is believed to be innocent until proven by the prosecution. However in the case of Mr Jama he was judged guilty on poor and faulty evidence in 2006.

So now we move to the complex and intricate nature of bail. Bail allows a person charged with an offence to stay within the community given certain conditions. The accused person then must court at a later date. However if the person is not free then they are left to sort out their defence whilst held on remand. After lengthly debate and discussion over many years and recommendations from the NSW Law reform commission a new act was introduced. The Bail Act 2013 (NSW) came into force in May 2013. After the media highlighted two particular cases the NSW government announce a review the following month into the law that had only been in use for less than 1 month. 

The end result an amended Bail Act that came into force in January 2015. So after consultation and review the simplified piece of legislation only lasted a month before the government reacted in a 'knee jerk fashion' to public and media pressure.

We now have a two step process in the Bail Act (amendment 2014)

so that people charged with a serious indictable offence must ' show cause' why there continued detention prior to being convicted is not warranted.

Then the bail authority (police or court) can attempt to prove there is an 'unacceptable risk' as to why the suspect should not be free.

Are you confused since the reason for the original change was to make the new Bail Act simple and less complex plus allowing people to be free until trial unless absolutely necessary. Well so is most of the legal community. In fact the NSW Sentencing Council has requested that any future requests for investigations into a new legislation not happen until after 6 months. This is due to the fact that evidence is needed to find out whether laws are not working. Judgement cannot be made purely because a noisy few in the media are criticising a law.

ps see the previous post on the Bail Law changes to see some of the media headlines.

   

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.
  

Message from an old intelligent guy

Greetings Year 12 Legal punters.
I read this article a few weeks ago and thought that I would pass it on to you. It is from the Head of the Univeristy of Sydney regarding the HSC.

A reminder there is life beyond the HSC

In case you do not wish to read it I will paraphrase a few things for you.

The first and most important for all you is that the HSC is super hard work and requires a marathon effort not an all nighter brought to you by a special energy drink.

Secondly the HSC is not the only path to get where you want to go, it is one method of gaining employable credentials or going to univeristy. It is defintely not the only way.

From a personal perspective I was a little directionless in my HSC (only a couple of years ago) so when I finished I decided to do a Business degree. I missed out on getting into UTS Business by 0.5 of the ATAR equivalent.     Bugger.
My ATAR got me into uni, I then started a Social Science course at UTS and in the second semester I did three Business subjects which I received Distinctions and High Distinctions for and I promptly applied for an internal transfer. Mission successful. 

Or so I thought. The facts are that the six months of univeristy studying politics, Sociology, Philosophy and Australian Constituional law exposed me an incredible world of ideas and people who I had not met whilst at school. Here I was a 17 year old from the northern beaches who thought that arguing with my parents about why I had been sent off from the football field knew how the world worked. All of a sudden I was in tutorials with a mixture of ages, sexual preferences and life experience I could only read about. It was this 6 months that provided the backbone for me later to become a public school teacher with the aim of involving myself in my local community of Sydney and contributing to the lives of young people.

The underlying messages- your intended path will not always be the destination  and many unexpected paths may surface which all require  hard work, being open to new opportunities and a little magic sparkle here and there in order to reach the end of that path.

Enjoy your journey Year 12.

Return of Volatility- $A no longer considered safe bet

The zombies have hit the streets in the US to protest the protection of the financial markets whilst the ordinary citizen receives little support. There are no zombies in Australia (yet) in fact normality has returned.

In what is a return to normality for the $A it has fallen to 95c/US. (this is fall of 13%) Ironically this is due to the concerns with the European markets and failing US economy as investors have dramatically left so called risky currencies for the 'safety' of the US$.
This is despite the solid news regarding the Australian economy. In summary the information that has surfaced in the last week;
# The Trade surplus is the second highest on record at $3.1 billion.
# Building approvals have improved signalling increased confidence in the domestic economy.
# The terms of trade have continued to rise (highest in 140 years) Chinese manufacturing continuing to expand.
# Despite the EU market voting to allow stability expenditure of E440 Billion contagion in the European market continues with Greece close to default, previously Portugal, Spain and Ireland have been mentioned as having financial risk. The risk has now spread to Italian and French banks.
# Protests regarding corporations being saved whilst people continue to lose their jobs spread across the United States.
# News of global financial issues has meant that the RBA is now preparing the market for a cut in interest rates. Interestingly 'jawboning' regarding a cut in interest rates will mean the $A will fall further which will be positive news for sections of the Australian economy.

external stability update 2011

More PowerPoint presentations from Cam Sutton