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Schwartz, Melanie --- "The NSW Bail Act and Aboriginal Defendants" [2005] IndigLawB 14; (2005) 6(9) Indigenous Law Bulletin 18


The NSW Bail Act and Aboriginal Defendants

By Melanie Schwartz

What is the Problem with the Bail Act 1978 (NSW)?

When drafting the bail regime in 1976, the aim of the New South Wales (‘NSW’) Bail Review Committee was to reduce reliance on monetary bail conditions. To this end, they required that bail be granted unconditionally unless the court thought conditions were called for,[1] and then required that less onerous conditions be considered before more onerous ones were applied.[2] The least burdensome conditions involved regulating the conduct of the accused while on bail, escalating through the requirement that an acceptable person vouch for the accused before arriving at the employment of financial conditions.[3]

However, while the structure of the legislation may have evidenced a preference for non-monetary conditions, the discretionary application of the conditions provisions does not, in practise, bear out this philosophy. NSW has the largest population of remand prisoners in Australia.[4] There seems to be an increasing trend toward police and magistrates being less willing to grant bail: in NSW local courts, the majority of offence categories showed a greater than 25 per cent increase in the proportion of persons refused bail between 1994 and1999.[5] Financial conditions account for as many as 70 per cent of conditional bail grants.[6]

These statistics illustrate the importance of understanding how the bail regime functions to the detriment of Indigenous defendants. The discretionary conditions regime of the Bail Act 1978 (NSW) (‘Bail Act’) arguably takes its place among other ‘equal’ laws which, in operation, have ‘unequal’ results for Aboriginal people. Such laws can entrench cycles of disadvantage and criminality and are as old as European interaction with Aboriginal communities. The mandatory sentencing regimes of Western Australia and the Northern Territory[7] and the uneven enforcement of public order offences[8] are but two instances of general law operating discriminatorily for Aboriginal communities.

Figures for 1999 local court appearances show that Aboriginal defendants are more likely to be refused bail or have heavier conditions placed upon bail where it is granted.[9] Yet approximately 11 per cent of Aboriginal defendants taken into custody after being refused bail[10] had the case against them dismissed at hearing. In 2000-2001, over 45 per cent of Aboriginal remand inmates did not receive a custodial sentence when their matter was finalised. Of these inmates, 41 per cent had spent between eight and 30 days in custody while bail was refused.[11]

Of the 99 deaths investigated by the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’), 30 per cent involved unconvicted prisoners being held in prison on remand.[12] RCIADIC recommended that, wherever possible, discretion should be exercised to ensure that Aboriginal people are not incarcerated.[13] The current functioning of the bail regime in NSW falls short of this recommendation, raising the question of whether bail is a form of pre-trial punishment aimed more at social marginality and disadvantage than at crime.

Appropriate Bail Conditions and Aboriginal Applicants: An Overview

In 2001, the Aboriginal Justice Advisory Committee (‘AJAC’) reviewed the way that the NSW bail regime operates for Aboriginal defendants. Through an examination of 100 bail cases from five NSW court locations, AJAC found that:

Monetary bail conditions were overwhelmingly employed. One court required financial security in 92 per cent of cases where bail was granted. The court was situated in a location where more than half of the Aboriginal residents have an income of less than $300 per week. Despite this, the court routinely required bail sureties of up to $5000, and in one case, demanded a $1000 surety for a 17-year-old defendant accused of offensive language.[14] A court in a second location, with the same average income, called for security in 61 per cent of cases, with the average amount required being $1800.[15] The average security varied by almost 200 per cent between locations, relative offences and with the same reasons stated for imposition of conditions.[16]

These findings are evidence of several truths. First, they confirm the degree of the court’s discretion and the critical impact that the exercise of this discretion can have. Secondly, they show that awareness and sensitivity of both advocates and decision-makers will be crucial in ensuring that reasonable bail outcomes are reached. This is true not only in the imposition of monetary bail conditions, but in the general exercise of discretion in determining suitable conditions. A brief example from each end of the spectrum is illustrative:

Case Study One

The neighbours of a 55-year-old Aboriginal woman called the police when, in the course of an argument with her husband, she threw a shoe at him which went through the window of their rented house. She was charged with malicious damage. The magistrate imposed a bail condition that she reside five kilometres from her husband. Having come into town purely for the purposes of attending court, neither the magistrate nor the defendant’s solicitor realised that the town was less than five kilometres wide. The accused, intimidated by the court process, did not speak up. She believed that the choice she was being offered was either to camp in the bush or go to prison. She chose prison and spent months in remand waiting for her case to be heard, at which time it was dismissed without conviction.[17]

Case Study Two

A Bail Justice in one north-western NSW town instituted a practice of ensuring that a defendant’s family be present at bail determinations to discuss with them what bail conditions would be appropriate and what they could do to ensure the accused’s compliance. Needless to say, the court recorded very few breaches of bail conditions during the time this practice was implemented.[18]

As in all areas of the criminal law, measures are most fair and effective when they have been formulated with involvement and sanction from community, and when they are appropriate to the specific circumstances of Aboriginal defendants.

The Problem of ‘Acceptable Persons’

Determining Acceptability

Section 36 of the Bail Act provides a list of conditions that may be imposed on the grant of bail, some of which require that an ‘acceptable person’ provide financial security for the accused person. There are no criteria for acceptability in the Act. Section 36(3) states that a determination of acceptability, along with determination of the amount of surety, is at the discretion of the authorised officer or court imposing the bail condition.

Nevertheless, the public information sheet, Being a Bail Guarantor, states that a surety, in addition to being in a position to monitor the defendant, must ?be of good character: ‘(if you have committed serious criminal offences or committed crimes involving dishonesty you may not be an acceptable person)’.[19] Moreover, the Commissioner’s Instructions state that a person need only be similar in name, age and description to a person with an active criminal record in order to be unacceptable.[20] Given the ongoing over-policing of Aboriginal people and the well-documented vagueness in identification evidence, such provisions have a real prospect of functioning to the detriment of Indigenous applicants living in impoverished or high-crime areas.

Acceptable Persons and Financial Sureties

The Bail Act states that acceptable persons can be employed in setting bail conditions where it will promote effective law enforcement (s 37(1)(a)). It also provides that ‘conditions shall not be imposed that are any more onerous for the accused person than appear to the authorised officer or court to be required by the circumstances of the accused person’ (s 37(2)(c)). With this in mind, we may move to consider the relevant provisions of the Act.

Solicitors of the Sydney Regional Aboriginal Corporation Legal Service (‘SRACLS’) state that two types of bail sureties prove most problematic for Aboriginal defendants:

1. Where acceptable persons must forfeit a sum of money without security if the accused fails to comply with their bail undertaking (s 36(2)(d));
2. Where acceptable persons must forfeit a sum of money with security if the accused fails to comply with his or her bail undertaking (s 36(2)(f),(h)).

Acceptable Persons Agreeing to Forfeit Money without Security

Where an agreement to pay in the future is imposed, there has been a requirement that the acceptable person show that they currently have the money that would have to be paid if the accused person defaults on their bail conditions. Being a Bail Guarantor states that ‘you may be asked to produce documents like your bank book’ (emphasis added).[21] The language here highlights the fact that this requirement is to be found nowhere in the Act, but is a discretionary measure available to the court. The information sheet further states that a surety needs to ‘have savings and possessions that are worth more than the security required in the bail undertaking and be able to prove their ownership of the security’.[22] Again, the requirement of personal ownership of the savings/possessions is nowhere reflected in the legislation.

A policy position that requires an Aboriginal ‘acceptable person’ to show, at the time of their pledge, possession of the entire amount of money that they might be required to pay at a future date, may properly be considered unreasonably onerous. This requirement fails to take into account the fact that many Aboriginal people may not have any substantial sum of money consistently in a bank account. This does not, of course, prevent them from being a perfectly good surety.

The argument presented here, that a person should not be deemed ‘unacceptable’ if they do not have personal possession of the entire required sum at any one time, is supported by the forfeiture scheme in place in the Act. Where bail conditions are breached and the surety is to be paid, the court will issue a forfeiture order to this effect. Section 53B(2)(c) states that a forfeiture order made to the acceptable person is presumed to have been served on the person at the end of the seventh day after it was posted. The forfeiture order then takes effect at the end of 28 days (s 53C(2)). Effectively, then, the acceptable person has 35 days from the time of the breach of the bail condition in which to tender the forfeited amount into court. There is every possibility that an acceptable person might be successful in collecting the requisite amount in that time regardless of whether they had the full amount in their bank account at the time of their initial pledge. The balance of the acceptable person’s bank account at any given time has no direct correlation to their capacity to fulfil their role as surety.

Acceptable Persons who Agree to Forfeit Money with Security

In cases where security is required up front, there has been a policy requirement that the acceptable person show that the money being deposited into court has been in their bank account for seven days. Again, there is no hint of such a condition in the Act. This discretionary measure can be understood as unacceptably onerous under s37(2) in relation to Aboriginal defendants. As noted above, individuals who may not have savings sitting consistently in a bank account may yet be able to access sufficient funds from other sources.

The NSW Attorney General’s Department Criminal Law Review Division confirmed that this practice is aimed at ensuring that the security is not put forward by an ‘unacceptable person’ masked behind the fronted acceptable person. In practice, however, there is nothing to stop an ‘unacceptable’ or any other person from providing money to sit in the bank account of the ‘acceptable person’ for the requisite seven days until the court allows it to be tendered. In the meantime, the defendant is deprived of their liberty.

The Acceptable Person Information Form requires a statutory declaration of acceptance of one’s obligations as a provider of surety,[23] with a knowingly incorrect declaration carrying a penalty of five years imprisonment.[24] This clearly obviates the need for any further guarantee of ability to fulfil these obligations. The additional burden of the acceptable person providing bank details should not therefore be required.

Conclusions: Recommendations for Reform

There are a number of ways that the current bail regime can be revised to address the problems noted above. The Act does not require that ‘acceptability’ be bound up with financial status: acceptable persons may vouch for the accused without any monetary aspect.[25] This non-financial acceptability provision has not yet provided an avenue for respected local Aboriginal community members to play a role in enforcing bail conditions. AJAC has suggested that the Attorney General’s Department keep a database of respected senior members of local communities who could be called upon to serve as non-financial guarantors.[26] As well as providing better outcomes in bail determinations, this may provide an opportunity for community to play a positive normative role in the lives of offenders, expanding communal capacity and strengthening relationships within the community.

As is evident from the AJAC report, there is also an urgent need to ensure that where security is required, the amount is set equitably to ensure that it is not unreasonably onerous for the poorest parts of the NSW community. AJAC suggests that this might be achieved by determining security with reference to a defendant’s income or assets.[27]

Further, s 36(2A) of the Bail Act states that in considering the suitability of a bail condition that requires the defendant to live in special accommodation, the court must have regard to the Aboriginality of the accused. Here, the legislation has recognised that conditions must be culturally appropriate. There seems to be no reason why such culturally sensitive determinations should not be extended to other bail conditions, especially to the function of the acceptable person.

Finally, the forfeiture provisions of the Act suggest that the ability to pay ‘up-front’ cannot be the operative determinant of acceptability. However, this is not reflected in current policy and practice in the courts. Such practice should be reviewed to fall in line with the intention of the Act, the economic reality of the Aboriginal community in NSW, and the recommendations of RCIADIC.

The analysis above highlights the significant impact of criminal justice legislation on disadvantaged groups and the devastating effects of discriminatory application of discretion. The Criminal Law Review Division of the NSW Attorney General is currently undertaking a review of the Bail Act 1978 (NSW). The observations raised in this paper formed part of a submission by SRACLS to that review. It is hoped that ensuing legislative reform will go some way towards affecting a just and effective bail regime.

Melanie Schwartz is a recent graduate of the UNSW law school and holds a Masters in Peace and Conflict Studies from Sydney University.


[1] Bail Act 1978 (NSW) s 37(1).

[2] Bail Act 1978 (NSW) s 37(3).

[3] See s 36, which is arranged in order of least to most onerous conditions (as stated in s37(3)).

[4] NSW Parliamentary Library Research Service, Bail in New South Wales (1998) 5.

[5] NSW Bureau of Crime Statistics, Increases in the NSW Remand Population (2000) 2.

[6] F Devine, Bail in Australia (1989) 31.

[7] See Heather McRae, Garth Nettheim, Laura Beacroft and Luke McNamara, Indigenous Legal Issues: Commentary and Materials (3rd ed, 2003) 535-8.

[8] Ibid 503-8.

[9] In that year, 47 per cent of Aboriginal people had bail dispensed with, compared with 72 per cent of non-Aboriginal people. 10 per cent of Aboriginal defendants were refused bail, compared with four per cent of non-Aboriginal offenders: see Aboriginal Justice Advisory Committee, Aboriginal People and Bail Courts in NSW (2001) 6.

[10] It is unclear in how many cases bail was outright refused and in how many the applicant was unable to meet conditions imposed.

[11] Ibid 7. 42 per cent spent two to seven days in custody, and seven per cent were released within a day.

[12] R Hogg, ‘Policing and Penalty’ in Morris (ed.), Politics, Prisons and Punishment – Royal Commissions and ‘Reforms’, (1991) Special Issues Journal for Social Justice Studies 2.

[13] RCIADIC (1991) Vol 3, 64. Chapter 22 of the report is a discussion of imprisonment as a last resort: 59-130.

[14] Aboriginal Justice Advisory Committee, above note 9, 11.

[15] Ibid 12.

[16] Ibid 14.

[17] Ibid 12.

[18] Ibid 15.

[19] Being a Bail Guarantor, <http://www.lawlink.nsw.gov.au/lc.nsf/pages/info_sureties> at 5 January 2005.

[20] Instruction 155 at 7.15, quoted in NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System: Policing Issues, Discussion Paper 29 (1993) at 8.15.

[21] Above n 19.

[22] Ibid.

[23]At <www.lawlink.nsw.gov.au/forms> at 5 January 2005.

[24]Oaths Act 1900 (NSW) s 25.

[25] Bail Act (NSW) s 36(2)(b).

[26] Ibid 20 (Recommendation 12).

[27] Ibid 19 (Recommendation 3).


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