PIAC’s submission to the NSW Sentencing Council has raised concerns that further proposed changes to the NSW Bail Act will disadvantage and criminalise vulnerable people, especially those who are homeless.
The Sentencing Council consultation follows the passing by the NSW Parliament earlier this year of the Bail Amendment Act 2014, which introduced categories of offences under which bail must be refused unless an accused can ‘show cause’ why his or her detention before trial is not justified. The Sentencing Council is considering whether these categories ought to be extended to include individuals who are already subject to a minor sentence, such as a good behavior bond, when they allegedly commit another serious offence.
Based on our casework experience representing homeless and other disadvantaged people, PIAC is concerned that the inclusion of ‘show cause’ offences for bail principally will remove the presumption of innocence and will be likely to impact disproportionately on disadvantaged and vulnerable people.
Shifting the heavy evidentiary burden will make it more likely that an individual will be imprisoned to await trial where they may not, in all the circumstances of the case, pose a risk to the community.
‘We know that if the show cause category is expanded more people will be incarcerated contributing to disadvantage and potentially leading to re-offending,’ said Edward Santow, PIAC’s CEO.
PIAC also submitted there is no evidence that change is needed. The current test in the Act, which considers whether a person poses an unacceptable risk to the community that cannot be mitigated by imposing bail conditions, has not been shown to be failing to meet the objectives of the bail regime. Until there is evidence to the contrary, PIAC recommended to the Sentencing Council that the expansion proposals be rejected.