It is too soon to review the state’s fledgling bail laws and the government’s decision to do so is little more than an attempt to demonstrate it is tough on crime, legal experts say.
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Premier Mike Baird announced the review on Friday after a number of contentious bail decisions, including the release of two men – Mahmoud "Mick" Hawi and Steven Fesus – who were accused of separate murders.
These decisions drew an angry response from sections of the media and victims' rights groups who demanded the laws be revoked. The laws replaced the presumption against bail for serious offences, such as murder, with a broad consideration of whether the accused posed an "unacceptable risk" of re-offending.
Just days ago, the Attorney-General Brad Hazzard defended the change, but on Friday he joined the Premier in announcing the review.
“The new laws were introduced following concerns the old system was overly complicated and not working well,” said Mr Baird. “However, the Attorney-General and I have become concerned that some recent bail decisions do not reflect the government’s intention to put community safety front and centre."
The former Labor attorney-general John Hatzistergos has been commissioned to conduct the review, which will examine all recent bail decisions and consider potential enhancements. It will report back in time for the next parliamentary sitting.
The president of the NSW Law Society Ros Everett said it was too soon to consider changing laws that had been in place for just over a month.
“Every time there’s a new piece of legislation it has to be interpreted by the courts,” Ms Everett said. “I would have thought that it’s a matter of letting the new laws work through the system of judicial review [before conducting a parliamentary review].”
Ms Everett pointed to the Supreme Court’s decision to revoke the bail of Sydney underworld figure, Hassan “Sam” Ibrahim as evidence the process of judicial review was working.
Mr Ibrahim, who is awaiting trial on gun supply charges, was granted bail on June 16. But on Friday, Justice Peter Hidden upheld the Crown’s argument that the former Nomads' bikie boss represented an “unacceptable risk” of committing a further offence that could endanger the community.
The director of the NSW Bureau of Crime Statistics and Research Don Weatherburn echoed Ms Everett’s comments, declaring there was "no evidence" bail was easier to get under the new laws or that the risk of offending on bail had risen.
Criticism of the laws was based on "anecdote" and the bureau would have a "clearer picture" of whether the rates of refusal of bail had fallen in about three months, Dr Weatherburn said.
University of Wollongong law academic Julia Quilter said the review smacked of a “law and order auction”.
“We have a situation where there’s outrage coming from sections of the community in the context of an election, and the Premier and the Attorney-General not wanting to be seen as soft on crime,” Dr Quilter said.
“These laws came into effect on May 20 and they decided to review the Bail Act now? It’s madness.”
Victims of Crime Assistance League vice-president Howard Brown welcomed the review but said the laws had been in force a short time and "we need to be very careful we don't engage in a knee-jerk reaction".
It would be dangerous to "go back to the old act", he said. "I think that there are ways that we can resolve these issues without huge amendments required."
Mr Brown said one solution might be to provide guidelines to judges and magistrates about what constituted an "unacceptable risk" to ensure consistency across decisions.
