On an average day half the young people in NSW juvenile detention haven't been sentenced to jail. They are on remand awaiting trial.
Over the last 15 years the number of remand prisoners has more than trebled to 2,500. The proportion of the prison population who are there because they were denied bail has doubled to 26 per cent. When they got to trial many weren't given a jail sentence. Average time spent in remand is six months – the second longest in Australia.
Under current laws, every charge carries an automatic presumption on bail – either in favour, against or neutral depending on the charge. NSW now has the toughest bail laws in Australia, with presumptions against bail for charges of violence and serious drug offences.
Many felt the balance has swung too far against bail and justice isn't being served. The government asked the NSW Law Reform Commission to review bail laws. It was a stinging rebuke to the justice system. The Commission released a 408 page report recommending there be a uniform presumption in favour of bail for all crimes, except where there could be a danger to the community or individual, or the charged person absconding.
The government rejected that major recommendation, saying it will change the laws so that every bail application will be assessed on a case-by-case risk assessment model. Those who pose a serious risk to public safety will be presumed not to get bail.
Law leaders were disappointed. Law Society president Justin Dowd and Bar Association vice president Philip Boulten SC said it was an improvement but unfortunately didn't go further.
Former Law Society president and chairman of Stacks/The Law Firm, Maurie Stack OAM, said it was disappointing the government hadn't accepted there be a universal presumption in favour of bail.
"It would have meant the prosecution bears the onus of establishing it is in the public interest that a person charged with an offence needs to be detained pending trial," Mr Stack said.
"Instead we continue with the discredited system that in many cases the accused has to prove their getting bail is safe for the community. It's particularly disappointing the impact of the harsh bail laws on young people hasn't been addressed.
"We have record numbers being held on bail, more than other States and for longer. This is a huge financial cost to the community, and it has a terrible effect of those held in jail awaiting trial.
"It's disappointing that we as a community, and therefore the government we elect listen more to right wing radio shock jocks than reasoned carefully considered views of respected law people on the Law Reform Commission," Maurie Stack said.
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