Background on "show cause" and the "unacceptable risk" test

This page includes some background information to help guide submissions on our review of aspects of the Bail Act relating to "show cause" and the "unacceptable risk" test.

An overview of the bail decision-making framework

Bail is the "authority to be at liberty for an offence" (s 7). It can be granted to an accused person with or without conditions. Part 3 of the Bail Act sets out how a bail authority is to make a decision about whether to grant an accused person bail. A bail authority is a police officer, an authorised justice or a court (s 4).  

For some offences, the accused person needs to "show cause"

The decision-making process for bail is different depending on whether the relevant offence is a "show cause" offence. Where an offence is a "show cause" offence, the accused person needs to "show cause" why their detention is not justified. If the accused person does not "show cause", the bail authority must refuse bail (s 16A).

The "show cause" requirement was introduced in 2014 in response to concerns that the existing Bail Act did not do enough to address community safety.

"Show cause'" offences are outlined in s 16B. Some "show cause" offences are:

• serious indictable offences under Part 3 or Part 3A of the Crimes Act 1900 (NSW) (Crimes Act) or under the Firearms Act 1996 (NSW) (Firearms Act) that involve the use of a firearm (as defined in the Firearms Act)
• serious indictable offences under Part 3 or 3A of the Crimes Act or under the Weapons Prohibition Act 1998 (NSW) (Weapons Prohibition Act) that involves the use of a military-style weapon (as defined in the Weapons Prohibition Act)
• indictable offences that involve the unlawful possession of a pistol or prohibited firearm (as defined in the Firearms Act) in a public place
• indictable offences that involve the unlawful possession of a military-style weapon
• serious indictable offences under the Firearms Act that involve acquiring, supplying, manufacturing or giving possession of a pistol, prohibited firearm, or a firearm part that relates solely to a prohibited firearm, and
• serious indictable offences under the Weapons Prohibition Act that involve buying, selling or manufacturing a military-style weapon or selling, on three or more occasions, any prohibited weapon.

A "serious indictable offence" is an indictable offence which has a maximum penalty of imprisonment for 5 years or more, or for life (Crimes Act, s 4). Offences will be "indictable" unless they are an offence which either can be or must be dealt with summarily under the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) or any other Act (Criminal Procedure Act, ss 5-6). For certain indictable offences, the accused person can elect for it to be heard summarily (Criminal Procedure Act, Table 1 and Table 2 of Schedule 1).

"Summary" offences include most offences where the maximum penalty is less than 2 years of imprisonment (Criminal Procedure Act, s 6).

Bail must be refused if there is an unacceptable risk of a "bail concern"

If an accused person fulfils the "show cause" requirement, the bail authority moves to the second step of considering the "unacceptable risk" test (s 16A).  

If the offence is not a "show cause" offence, the bail authority will go straight to this test.

In summary, the "unacceptable risk" test operates as follows:

• Before making a bail decision, a bail authority must assess any relevant "bail concerns", which are outlined in s 17 (see below).
• The bail authority must refuse bail if satisfied there is an "unacceptable risk" in respect of any of the bail concerns (s 19).
• If there are no unacceptable risks, the bail authority must grant bail, either with or without conditions, release the accused without bail or dispense with bail (s 20).

The listed "bail concerns" are concerns that an accused person, if released from custody, will:

• not appear at any proceedings for the offence
• commit a serious offence
• endanger the safety of victims, individuals or the community, or
• interfere with witnesses or evidence.
  

When assessing the bail concerns, the bail authority must consider the matters outlined in s 18 and cannot consider anything else.

One of those matters is the "nature and seriousness of the offence". In deciding the seriousness of an offence, the bail authority must consider the three factors outlined in s 18(2), as well as any other factor they consider relevant. This includes considering whether the offence involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act (s 18(2)(a)).

In the Crimes Act, "offensive weapon or instrument" is defined at s 4 as a dangerous weapon, anything made or adapted for offensive purposes, or anything that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes. A "dangerous weapon" is defined as a firearm or imitation firearm as those terms are defined in the Firearms Act, a prohibited weapon as defined in the Weapons Prohibition Act, or a speargun.

Some issues to consider

Should the show cause list include other firearms offences?

As noted above, some firearms offences are already subject to the "show cause" test. For example:

• Possessing an unregistered pistol or prohibited firearm (as opposed to other firearms) in a public place without authorisation (Crimes Act, s 93I(2)-(3)).
  
• Giving possession of a pistol or prohibited firearm (as opposed to other firearms) or part to an unauthorised person (Firearms Act, s 50B).
• Possessing or using a military-style weapon (as opposed to other prohibited weapons) (Weapons Prohibition Act, s 7).  
• Selling a military-style weapon (as opposed to other prohibited weapons) without the buyer holding a permit and the seller either seeing that permit or knowing that the buyer is authorised (Weapons Prohibition Act, s 23A(2)).

There are a range of other "show cause" firearms offences in the Firearms Act and Crimes Act.

However, other firearms offences are not currently "show cause" offences as they do not fall within the categories of "show cause" offences outlined in s 16B of the Bail Act.

For example, indictable offences involving the unlawful possession of a pistol or prohibited firearm in a private place, as opposed to a public place, are not included as "show cause" offences (Bail Act, s16B(1)(d)(ii)).

Some specific examples include:

• Possessing an unregistered firearm (which is not a pistol or prohibited firearm) in a public place without authorisation (Crimes Act, s 93I(1)).
  
• Giving possession of a firearm (which is not a pistol or prohibited firearm) or firearm part to an unauthorised person (Firearms Act, s 50B).
  
• Possessing or using a prohibited weapon (other than a military-style weapon) (Weapons Prohibition Act, s 7).
  
• Selling a prohibited weapon (which is not a military-style weapon) without the buyer holding a permit and the seller either seeing that permit or knowing that the buyer is authorised (Weapons Prohibition Act, s 23A(1)).
  
• Offences relating to cross-border firearms trafficking and international firearms trafficking under Part 9.4 of the Commonwealth Criminal Code.

This is not an exhaustive list of the firearms offences not currently subject to "show cause". An issue is whether offences such as these should be included in the "show cause" list. 

Some may argue the significant risk to community safety posed by firearms justifies adding other firearms offences to the "show cause" list. On the other hand, it could be argued that the existing law already addresses safety concerns.

Should "criminal associations" be defined in the unacceptable risk test?

In assessing bail concerns, bail authorities must consider "whether the accused person has any criminal associations" (s 18(1)(g)).

The Second Reading Speech to the Act which introduced s 18(1)(g) observed that an accused person's links to organised crime networks can affect their level of risk, such as by giving them the means to flee the jurisdiction or continue criminal activity.

"Criminal associations" is not defined in the Bail Act. We have been asked whether it should be.

On one hand, it may be desirable to leave this expression undefined in the interests of flexibility. However, left undefined, there is a risk it could be applied to relationships other than those involving organised crime.

Any definition will need to be well-drafted to avoid any unintended consequences for individuals or communities. Another relevant question is whether any further safeguards should apply to the definition to ensure the law serves its intended purpose and does not overreach.

Should the show cause test be expanded to include other offences related to "criminal associations"?

Some offences related to criminal associations are not currently "show cause" offences. For instance:

• Offences outlined in Part 9.9 of the Commonwealth Criminal Code, which includes offences relating to criminal associations and organisations
• Participating in a criminal group (Crimes Act, s 93T)
• Habitually consorting with convicted offenders (Crimes Act, s 93X)
• Associating between members of declared criminal organisations which are subject to interim control orders or control orders (Crimes (Criminal Organisations Control) Act 2012 (NSW), s 26)

These are examples of criminal association offences which are currently not "show cause" offences. It is not an exhaustive list of all criminal association offences in this category.

An issue is whether any criminal association offences should be added to the "show cause" list to target, for instance, activities linked to organised crime.

Some may argue such reforms are required in the interests of community safety. Another view is these concerns can be addressed within the existing bail framework, as bail authorities are required to consider the seriousness of the offence when assessing bail concerns.