Op-Ed: Hasty introduction of tough bail laws by Agnes Chong Print E-mail
Monday, 21 June 2004


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 granted.


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



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