Mrs SALLY QUINNELL (Camden) (16:53): I support the Justice Legislation Amendment (Miscellaneous) Bill 2023. The object of the bill is to make various amendments to Acts and regulations relating to courts, crimes and other Communities and Justice portfolio matters. Regularly reviewing and updating legislation is an important mechanism to ensure the law is fit for purpose and keeps pace with developments in the community and the legal system. This miscellaneous bill is focused on updating legislation within the Communities and Justice portfolios. The bill was developed in consultation with stakeholders across government and external stakeholders in the legal sector.
The stakeholders who participated in the process involved heads of jurisdiction, including the Supreme Court, the District Court, the Chief Magistrates' court and the Children's Court; NSW Civil and Administrative Tribunal; Office of the Director of Public Prosecutions; Legal Aid Commission of New South Wales; Court Services NSW; NSW Police Force; Corrective Services NSW; Victims Services; Youth Justice NSW; New South Wales Crime Commission; NSW Trustee and Guardian; the Cabinet Office; Treasury; Aboriginal Legal Service (NSW/ACT) Limited; Law Society of New South Wales; and New South Wales Bar Association. Targeted consultation with stakeholders impacted by specific proposals also occurred, including Revenue NSW, the NSW Sheriff's Office and the Children's Guardian.
New South Wales has some of the strongest bail laws in Australia, which are primarily contained in the Bail Act 2013. The bill makes two amendments to the Bail Act. The first amendment brings necessary clarity to section 22B, which was introduced in 2022. Currently it requires a bail authority to refuse bail following conviction and prior to sentencing if the offender will be sentenced to full‑time detention unless special or exceptional circumstances can be established to justify the decision. Section 22B does not specify that, for detention applications, "the decision" referred to is a decision to grant or dispense with bail, although this is the intent of the legislation. In Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938, Justice Garling described this as an "infelicity of drafting".
In applying this provision, courts have adopted an approach consistent with the original intent of the legislation expressed by the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171. This amendment remedies this drafting anomaly to clarify the legislative text and ensure consistent application of the law. This does not change the substance of the provision. Significant policy changes are outside the scope of the miscellaneous bill process. Repealing or narrowing the application of section 22B would be a significant policy change and is not contemplated as part of this bill.
The second amendment to the Bail Act 2013 is the creation of a new prerelease requirement available to bail authorities to impose when granting bail. A prerelease requirement is a condition that must be met before a person can be released on bail. Unlike other bail conditions, the Bail Act 2013 limits the prerelease requirements that a bail authority can impose when making a bail decision. The available prerelease requirements are listed at section 29 of the Bail Act 2013. Section 29 is not currently drafted to permit a court to make a prerelease requirement that the accused be accompanied by a nominated person upon release. Nevertheless, courts in fact endeavour to make orders in these terms on a regular basis when imposing such a requirement is considered necessary to meet a bail concern.
The New South Wales Court of Criminal Appeal found that, to the extent an accompaniment condition imposes an obligation on the accused, it is a conduct requirement and cannot be imposed as a prerelease requirement. If an accompaniment condition is imposed as a conduct condition rather than prerelease requirement, a person may choose to enter bail and leave custody even if the condition is not met. This has the undesirable outcome of an accused potentially entering bail and leaving remand directly into breach. This bill makes conditions available as prerelease requirements. Where imposed, a person will not be able to leave custody until a nominated person is present for the purpose of accompanying them away from the facility. This will provide clarity for Corrective Services NSW and other law enforcement agencies about when an accused person is eligible to leave custody. This amendment is one of many amendments in the bill that are necessary to bring the law up to current standards and practices that are in place. For that reason, I commend the bill to the House.
