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The Politics of Bail Reform: the New South Wales Bail Act, 1976–2013

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The Politics of Bail Reform: the New South Wales Bail Act, 1976–2013 1 THE POLITICS OF BAIL REFORM: THE NEW SOUTH WALES BAIL ACT, 1976–2013 MAXWELL FRANCIS TAYLOR Bachelor of Arts (University of NSW), Bachelor of Laws (University of NSW), Bachelor of Arts (Honours) (Macquarie University) Macquarie University Law School 9 October 2013 This thesis is presented for the degree of Doctor of Philosophy 2 TABLE OF CONTENTS ABSTRACT: ………………………………………………………………………………………………………………… 6 STATEMENT: ……………………………………………………………………………………………………………… 8 ACKNOWLEDGMENTS ……………………………………………………………………………………………….. 9 CHAPTER 1. INTRODUCTION 1.1 Introduction ………………………………………………………………………………………………………… 10 1.2 Background …………………………………………………………………………………………………………. 11 1.3 Research Question ………………………………………………………………………………………………. 15 1.4 Methodology ………………………………………………………………………………………………………. 18 1.5 Literature Review ………………………………………………………………………………………………… 26 1.5.1 Literature on the big picture crisis …………………………………………………………………. 26 1.5.2 Literature considering the right to bail and the erosion of the presumption in favour of bail …………………………………………………………………………………………………. 27 1.5.3 Literature concerning the effects of bail laws and other changes to bail law on disadvantaged and indigenous accused …………………………………………….. 33 1.5.4 Literature considering the role of the media in bringing about changes to bail law …………………………………………………………………………………………………………. 35 1.5.5 Literature considering public attitudes …………………………………………………………. 37 1.6 Chapter outline ………………………………………………………………………………………….. 38 CHAPTER 2. THE IMPORTANCE OF BAIL AND THE HISTORY OF BAIL IN ENGLAND AND NEW SOUTH WALES 2.1 Introduction ………………………………………………………………………………………………………. 44 2.2 What is bail? ………………………………………………………………………………………………………. 44 2.3 The English background to bail in NSW ………………………………………………………………. 45 2.4 What English law on bail was applied in NSW …………………………………………………….. 49 2.5 The law of bail in the twentieth century in NSW …………………………………………………. 52 2.6 The importance of bail according to the Attorneys-General ……………………………….. 55 2.7 Conclusion ………………………………………………………………………………………………………….. 57 CHAPTER 3. THE NEW PUNITIVENESS – GENERAL THEORY AND ITS APPLICATION TO CHANGES TO BAIL LAW IN NSW 3.1 Introduction ………………………………………………………………………………………………………… 60 3.2 What is the punitive turn? …………………………………………………………………………………… 60 3.3 Explanations of the punitive turn ………………………………………………………………………… 62 3.4 Use of the punitive turn to explain changes in bail law in NSW …………………………… 68 3.5 Conclusion: Issues raised by the material on the punitive turn for the research question in this thesis ………………………………………………………………………………………………... 69 CHAPTER 4. THE REPORT OF THE BAIL REVIEW COMMITTEE 1976 4.1 Introduction ……………………………………………………………………………………………………… 72 4.2 Personalities and political background ……………………………………………………………… 72 4.3 Research reports on bail for the Australian Law Reform Commission and the 3 Australian Government Commission of Inquiry into Poverty ………………………………….. 75 4.4 The immediate background to the setting up of the Bail Review Committee In 1976 …………………………………………………………………………………………………………………… 80 4.5 The Bail Review Committee Report ………………………………………………………………….. 82 4.6 Conclusion ……………………………………………………………………………………………………….. 94 CHAPTER 5. THE BAIL ACT 1978 5.1 Introduction ……………………………………………………………………………………………………… 98 5.2 The two year delay between the Bail Review Committee Report in 1976 and the Bail Act in 1978 …………………………………………………………………………………………. 98 5.3 The important role played by violent robbery in the production of a Bail Bill ….. 102 5.4 The Bail Bill 1978 ……..……………………………………………………………………………………….. 106 5.5 Conclusion ………………………………………………………………………………………………………… 111 CHAPTER 6. THE 1980S: AMENDMENTS TO THE BAIL ACT IN THE LAST YEARS OF THE LABOR GOVERNMENT 6.1 Introduction ……………………………………………………………………………………………………… 113 6.2 Background ………………………………………………………………………………………………………. 114 6.3 Drug supply ………………………………………………………………………………………………………. 114 6.4 Important research on absconding by big time drug dealers becomes available in 1987 …………………………………………………………………………………………………….. 126 6.5 Amendment to the Bail Act as it related to the Court of Criminal Appeal ………….. 127 6.6 New laws to deal with family violence and the implications for the Bail Act ……….129 6.7 Media coverage of violence towards women …………………………………………………….. 133 6.8 Violence towards women and children: legislation …………………………………………… 136 6.9 Conclusion …………………………………………………………………………………………………………. 139 CHAPTER 7. THE 1988 NSW STATE ELECTION 7.1 Introduction ………………………………………………………………………………………………………. 142 7.2 The issues in the 1988 NSW State election ………………………………………………………… 142 7.3 Conclusion …………………………………………………………………………………………………………. 148 CHAPTER 8. THE LIBERAL GOVERNMENT 1988-1995 8.1 Introduction ………………………………………………………………………………………………………. 149 8.2 The Liberal Government policy ………………………………………………………………………….. 149 8.3 Drug offences …………………………………………………………………………………………………….. 151 8.4 Domestic and personal violence …………………………………………………………………………. 161 8.5 The 1993 amendments concerning domestic violence ……………………………………….. 167 8.6 The Summary Offences Act 1988 (NSW) …………………………………………………………….. 173 8.7 Restrictions on the power of the Supreme Court to grant bail and the original Intention of s 22A …………………………………………………………………………………………………….. 177 8.8 Conclusion …………………………………………………………………………………………………………. 179 CHAPTER 9. THE 1995 NSW STATE ELECTION 9.1 Introduction ………………………………………………………………………………………………………. 184 4 9.2 Long term problems for the coalition ………………………………………………………………… 184 9.3 The campaign issues ………………………………………………………………………………………….. 186 9.4 Conclusion …………………………………………………………………………………………………………. 190 CHAPTER 10. THE EARLY YEARS OF THE LABOR GOVERNMENT: 1995-2000 10.1 Introduction ……………………………………………………………………………………………………. 191 10.2 Some prominent media issues in late 1994 and 1995 ……………………………………… 192 10.3 The Criminal Legislation Amendment Bill 1995 ……………………………………………….. 193 10.4 Victims’ rights ………………………………………………………………………………………………….. 197 10.5 Ongoing dealing in drugs ………………………………………………………………………………… 201 10.6 The presumption in favour of bail and violent crime other than homicide ……… 206 10.7 Conclusion ………………………………………………………………………………………………………. 214 CHAPTER 11. THE MIDDLE YEARS OF THE LABOR GOVERNMENT: 2001-2006 11.1 Introduction …………………………………………………………………………………………………….. 218 11.2 The Premier’s announcement on crime in Cabramatta ……………………………………. 218 11.3 Anti-gang legislation ……………………………………………………………………………………….. 224 11.4 Stopping people from associating with other people ………………………………………. 232 11.5 Confiscating passports in cases of death …………………………………………………………. 233 11.6 Restrictions on the ability of repeat offenders to get bail ………………………………… 235 11.7 Commonwealth offences concerning drug supply ……………………………………………. 243 11.8 Bail only in exceptional circumstances …………………………………………………………….. 244 11.9 Further legislation on firearms and property offences …………………………………….. 250 11.10 Terrorism ………………………………………………………………………………………………………. 254 11.11 The response to riot ………………………………………………………………………………………. 257 11.12 Gang related car and vessel theft ………………………………………………………………….. 261 11.13 Lifetime parole and the presumption in favour of bail …………………………………… 261 11.14 Domestic violence 2006 ………………………………………………………………………………… 262 11.15 Extended supervision and continuing detention of serious sex offenders …….. 265 11.16 Conclusion …………………………………………………………………………………………………….. 268 CHAPTER 12. THE FINAL YEARS OF THE LABOR GOVERNMENT: 2007-2011 12.1 Introduction …………………………………………………………………………………………………….. 275 12.2 The 2007 NSW State election …………………………………………………………………………… 275 12.3 Further reforms in relation to domestic violence …………………………………………….. 279 12.4 Extended supervision orders, continuing detention orders and bail only in exceptional circumstances ……………………………………………………………………………. 281 12.5 Limiting the right to second and later bail applications …………………………………….. 283 12.6 Further legislation concerning gangs, weapons and firearms …………………………… 292 12.7 Conclusion ……………………………………………………………………………………………………….. 296 CHAPTER 13. THE CAMPAIGN FOR BAIL REFORM – THE LABOR GOVERNMENT 2010 13.1 Introduction …………………………………………………………………………………………………… 299 13.2 The Bail Act at the end of 2009 ……………………………………………………………………… 300 13.3 The setting up of the Bail Reform Alliance ……………………………………………………… 300 5 13.4 The campaign for bail reform ………………………………………………………………………… 303 13.5 The Bail Bill 2010 …………………………………………………………………………………………… 311 13.6 The withdrawal of the Bail Bill ……………………………………………………………………….. 318 13.7 Conclusion ……………………………………………………………………………………………………… 327 CHAPTER 14. THE NSW STATE ELECTION 2011 14.1 Introduction …………………………………………………………………………………………………… 330 14.2 The substantive issues …………………………………………………………………………………… 330 14.3 Discussion of law and order during the election period ………………………………… 331 14.4 Conclusion ……………………………………………………………………………………………………… 335 CHAPTER 15. THE LIBERAL GOVERNMENT 2011 – 2012 15.1 Introduction …………………………………………………………………………………………………… 337 15.2 Gangs and firearms ……………………………………………………………………………………… 337 15.3 Government policy on gang violence and drive-by shooting ………………………… 339 15.4 Legislation on gangs and firearms ………………………………………………………………… 340 15.5 Conclusion ……………………………………………………………………………………………………. 342 CHAPTER 16. THE CAMPAIGN FOR BAIL REFORM – THE LIBERAL GOVERNMENT 2011-2012 16.1 Introduction ………………………………………………………………………………………………… 344 16.2 The lead up to the announcement of the NSW Law Reform Commission Report on Bail …………………………………………………………………………………………………….. 344 16.3 The NSW Law Reform Commission Report on Bail ……………………………………… 347 16.4 The media during the lead
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