NSW Government stoops to new low with hasty introduction of tough bail law
Within 48 hours of Bilal Khazal being granted bail on 2 June 2004 after
he was arrested and charged for allegedly collecting or making documents
to facilitate terrorist acts, the NSW Parliament rushed through
amendments to reverse the presumption of bail for terrorism-related
offences, facilitating the anticipated appeal by Crown Prosecutors.
Prior to these changes, the Bail Act (NSW) 1978 (‘the Act’) classified
crimes into three general categories. Those charged with certain minor
offences as listed in section 8 are entitled to be released on bail
except for certain circumstances. For certain serious drug offences
listed under section 8A, there was a presumption against bail, which
places the burden on the applicant to show that bail should not be
refused. For all other offences there is a presumption for bail, and
the burden is on the Crown to satisfy the court that bail should not be
For the court to grant bail to a person charged with a section 8A
offence, the applicant must show that bail should not be refused, for
example, that there are ‘special’ countervailing circumstances that are
particular to the applicant. The prime consideration that is taken into
account is the strength of the Crown case, rather than the
countervailing circumstances common to bail applications. In deciding
whether or not to grant bail, the Court must also consider the factors
in s 32 of the Act, which include the probability of the defendant
appearing in court, the interests of the defendant, the protection of
any particular person, and the protection and welfare of the community.
Prior to the amendment, there was no specific mention of terrorism
offences in either section 8 or 8A of the Act, hence the presumption was
for bail, and Khazal was accordingly granted bail on 2 June 2004 on a
surety of $10,000.
The very next day, the Bail Amendment (Terrorism) Bill (NSW) 2004 was
introduced into Parliament. On that same day, the Commonwealth Director
of Public Prosecutions announced that it would make a request to the
Supreme Court to review the bail decision. The review was listed for
hearing on 16 June 2004, but has been adjourned twice. The matter will
be before the court again on Tuesday 22 June 2004.
The Bill was assented to on 4 July 2004 and the amendments were
incorporated into the Act immediately. The amendment is also
specifically allowed to operate retrospectively, hence the new section
8A will apply in respect of an offence committed before the amendment,
whether or not the person was charged after it. In particular, this
presumption against bail will apply to appeal decisions.
The legislators then have made clear that the amending bill was brought
forward in haste as a result of the decision of the Khazal case. As the
law is retrospective, Mr Khazal’s case on appeal will be heard under the
new law, which significantly reduces the possibility of his being
released on review.
It is a basic civil right of a person to be presumed innocent until it
is proven that they are guilty; and every person has the right to
liberty and security of person. Article 9 of the United Nations
International Covenant on Civil and Political Rights states that ‘it
shall not be the general rule that persons awaiting trial shall be
detained in custody.’ The presumption against bail is contrary to these
principles as it requires defendants to prove that they should not be
locked up even before their guilt is established in court, even before
they have had the chance to face their accusers and the accusations.
Legislation that deals with important principles such as the onus of
proof, and the presumption that people should not be detained until and
unless they are found guilty needs careful deliberation and analysis.
The introduction of legislation in such haste without proper public
consultation and debate inevitably leads to bad law.
Another worrying concern is the application of the amendment
retrospectively, and in particularly, to the case of Bilal Khazal. The
government’s unabashed admission of its intentions in this aspect is
disturbing. If legislators shift the goalposts in the middle of a game
by openly making or changing laws in reaction to particular cases, and
indeed, to affect the outcome of those cases, how can anyone guarantee
that they will be afforded any semblance of a fair trial?
Most importantly, as the NSW minor parties argued, the whole process
shows a blatant disrespect for the judicial system, its impartiality and
fairness, and undermines the principles of due process in the criminal
justice system. The Crown Prosecutor in Khazal’s case was reportedly
‘neutral’ on the bail issue, and left it up to the court. Given that
even the prosecutor, who should know the evidence better than any
politician or the general public, didn’t demand that bail be refused,
what kind of position are politicians in to interfere in the process?
The political timing of the amendment is alarming, justified only by
‘embarrassment’, and fed on only by the public’s ‘fear’ and ‘outrage’.
The Commonwealth anti-terrorism laws already have an adversely
disproportionate impact on civil rights in Australia. There is great
fear that the reversal of the presumption of bail for these offences is
yet further erosion of our civil rights.
by Agnes Chong, with
assistance from Lesley Townsley, UTS Community Law Centre,
The Civil Rights Network, 21 June 2004