Commentary of Commonwealth laws, Anti Terrorism and how Bail is difficult to achieve;
Commentary on the existing NSW Bail Laws (as of 2016)
Commentary on section 74 of the Bail Act
Bail refused –anti terror laws our response to hitting hard and isolating the imminent threat in Australia.
Based on events in Sydney Australia September 2016,
We recently saw the response of police to quickly engage two young persons in Sydney’s south-west last month. They remain bail refused. Much resources and federal funding go into weeding out the allegations and charges against persons engaged with anti terror behavior.
Since September 11, Australia has developed and surged, almost excelled with its response to legislating against ‘terrorism’. We formed authorities such as specialised police units, federal police divisions and of course, ASIO.
It is estimated 54 pieces of anti terrorism legislation have been created, 48 passed under the Howard Government.
The response has led to the convictions of some 25 men over a period of about 15 years since the disaster of September 11.
The laws are designed to expose and un-foil ‘any act’, even the initial phase of ideas or perhaps even what can only be deemed ‘anti social behaviour’ that is commonly identified as acts of terrorism.
The first main set of offenders among 25 men who have been convicted since the commencement of these laws involved the terrorist 5 who were tried before Justice Whealy in Sydney in 2010. The were convicted for a term of 20 years after being charged with ”conspiracy to do an act connected with preparation for a terrorist act”,
The case involved the men purchasing items of chemicals, ammunition and other lab equipment. No actual plans or targets were identified. The mere suggestion of planning and thought process brought the group under suspicion and validly permitted authorities to charge them under the federal based laws.
Justice Whealy stated: ”The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community.”
The Bail Laws in New South Wales
The Bail Act NSW 2013
In 2013 a change to the Bail laws in New South Wales occurred.
Persons applying for Bail will need to consider a few things:
- do they have a record of committing a serious offence?
- does their Bail application attract the new “show cause” element. This requires an additional step to seeking Bail
3. have they been refused Bail in a court for the offence
already ? The prior Bail act did contain a similar hurdle pursuant to s22A that is now called s74 of the New Bail act.
- A Show Cause: A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.
S.16B Show Cause Offence:
(a) life imprisonment,
(b) a serious indictable offence that involves:
(i) sexual intercourse <16 by a AP who is 18 >
(ii) AOABH w intent to have sexual intercourse with a person <16 by a AP who is 18 >,
(d) any of the following offences:
(e) any of the following offences:
(iii) a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,
(f) an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,
(i) while on bail, or
(ii) while on parole,
(k) a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section.
“Serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.
s.17 Bail Concerns:
(a) fail to appear at any proceedings for the offence, or
(b) commit a serious offence, or
(c) endanger the safety of victims, individuals or the community, or
(d) interfere with witnesses or evidence.
s.18 Matters to be considered as part of assessment:
(a) the accused person’s background, including criminal history, circumstances and community ties,
(b) the nature and seriousness of the offence,
(c) the strength of the prosecution case,
(d) whether the accused person has a history of violence,
(g) whether the accused person has any criminal associations,
(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
(m) the need for the accused person to be free for any other lawful reason,
(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,
(2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered:
S.20 Bail Conditions
(f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.
In that case the five men were convicted on evidence that they had purchased ammunition, chemicals and laboratory equipment and possessed extremist propaganda and military instructional material. However, they did not have a plan and had not picked a target, and did not necessarily intend to kill innocent civilians. All were sentenced to jail terms of more than 20 years.