​The impact of the NSW Bail Act 2013 on trends in bail

Full report - A follow-up on the impact of the Bail Act 2013 (NSW) on trends in bail (pdf, 348Kb)

Release date: 10.30am, Monday 26 September 2016


The NSW Bail Act (2013) and subsequent amendments have had only a modest effect on the percentage of defendants refused bail, according to the NSW Bureau of Crime Statistics and Research (BOCSAR).

The Act replaced a complex set of presumptions concerning bail with a single ‘unacceptable risk’ test. Shortly after it commenced, however, series of controversial bail decisions granting bail prompted the State Government to announce a review of the new Bail Act by former Attorney General (now Judge) John Hatzistergos.

On the advice of Judge Hatzistergos, the Act was amended to require bail refusal for certain specified offences (known as ‘show cause’ offences) unless the accused person ‘shows cause why his or her detention is not justified.’

The operation of the unacceptable risk test was also altered. An accused person is now judged to be of ‘unacceptable risk’ if bail concerns cannot be mitigated by bail conditions. People deemed to be of unacceptable risk are now required to be bail refused.

BOCSAR examined trends in the percentage of defendants refused bail before and after the Act commenced and found that, among ‘bail eligible’ defendants (i.e. not including defendants where bail was dispensed with), the percentage refused bail increased slightly, from 27.6 per cent to 32.6 per cent.

However when all defendants were included in the analysis (i.e. including those defendants for whom bail was dispensed with) rates of bail refusal were found to be increasing at the same rate after the Act as they had been before the Act commenced. 

According to BOCSAR, the failure to find any change in the overall percentage of defendants refused bail is because the number of cases where bail is dispensed with may also have increased.

According to the director of BOCSAR, Dr Don Weatherburn, the growth in the remand population (prisoners held in custody awaiting trial) is not primarily the result of an increase in the percentage of defendants refused bail.

“There are three factors pushing the remand population up,” he said.

“The first is a growth in the number of persons charged with offences that are likely to result in bail refusal. The second is a growth in the time it is taking for matters to come to trial. The third is an increase in the number of people arrested for breach of bail.”

Further enquiries: Dr Don Weatherburn (02) 8346 1100
Copies of the report: www.bocsar.nsw.gov.au