Bail presumption abolished in NSW reforms - Sydney Morning Herald

AAP

The presumption for or against bail will be abolished in NSW and replaced with a new risk assessment system, under the first major overhaul of the Bail Act in 34 years.

Under changes to be introduced into parliament next year, police, magistrates and judges will be asked to decide if the accused poses a risk to safety, of committing an offence, interfering with a witness or failing to appear in court when considering bail.

The reforms - on Wednesday dubbed simpler and more consistent by Premier Barry O'Farrell - will replace the current system of presumption for or against bail, where decisions are made based on the type of offence.

Mr O'Farrell said the Bail Act had been amended 85 times since being introduced in 1978, with the system of presumptions leading to decisions that "sometimes don't make sense".

"(The Bail Act) has become more and more complex - like the rest of the community, I struggle at times, I question why decisions are being made to release people on bail," Mr O'Farrell told reporters in Sydney.

"Currently it is harder to get someone who is found with an unregistered gun in public behind bars than it is for someone who is with a paintball gun in public. Now that is absurd, and it is due to the complex way in which the Bail Act currently operates.

"This provides consistency, it provides simplicity, it will be reviewed after three years and I think it lands exactly where it should - whether there is a risk to the community."

The government changes fell short of recommendations of the Law Reform Commission, which had called for a universal presumption in favour of bail.

But Mr O'Farrell said while some critics may say the changes were too tough, "I'm happy in where we've landed".

Attorney General Greg Smith said the reforms were "not aimed at reducing or increasing (those granted bail)".

"It's aimed at making it clearer, and it's aimed at protecting the community," he said.

"That's our foremost interest, and not locking up people who aren't a risk to the community and letting out people who are."

The bail reforms, to come into affect in 2014, were welcomed by Police Commissioner Andrew Scipione, who said they took "a piece of legislation that was crafted in the previous century and brings it into the 21st century".

Legal group the Public Interest Advocacy Centre said the reforms were "common-sense", and would make bail laws "fairer, more consistent and better suited to the whole community".

However, Greens MP David Shoebridge said the new risk management approach created legal uncertainty.

"The key question any judge will be asking when a bail application comes before them under these new laws is who bears the onus and who has to prove their case?" Mr Shoebridge said in a statement.

"If the defence has to prove that the accused is not an unacceptable risk to the community then this legislation is a major step backwards and will see more, not less, people held in gaol."