The NSW Law Reform Commission Bail: Firearms and Criminal Associations report responds to a direction to review three aspects of the Bail Act 2013 (NSW):
- Whether the existing list of firearms offences treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.
- Whether further legislative guidance should be provided on the meaning of ‘criminal associations’ under the Bail Act 2013 (NSW).
- Whether the list of offences relating to criminal associations that are treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.
The Commission comments
The consensus among stakeholders, with one exception, was that the present bail framework has not caused any specific problems in respect of firearms offences or offences relating to criminal associations. Risks can be, and are, dealt with adequately under the existing framework, including the unacceptable risk test.
Instead, concerns were expressed that the contemplated changes would likely:
- unnecessarily capture conduct that does not constitute a high degree of criminality
- increase the rate of bail refusals, including for people who may not receive a custodial penalty if found guilty
- lead to further growth in an already significant remand population, which would adversely affect individuals and the community
- frustrate government initiatives to address the overrepresentation of Aboriginal people in custody
- add further complexity to an already intricate statutory framework, and
- increase court workloads and backlogs by adding to the complexity of bail
applications.
It states
... the show cause provisions are a serious impingement on the principle that a person should not be imprisoned except following conviction beyond reasonable doubt. They are said to be justified by the protection of the public. However, the exceptional nature of show cause offences weighs against their extension. The unacceptable risk test is more than adequate to protect the public in most, if not all, situations.
The Commission's recommendations are
Show cause and firearms offences
Recommendation 3.1: Expanding show cause to include further firearms offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further firearms offences.
Recommendation 3.2: Unlawful private possession of a pistol or prohibited firearm
Section 16B(1)(d)(ii) of the Bail Act 2013 (NSW) should not be amended to include the unlawful possession of a pistol or prohibited firearm in a private place as a show cause offence.
Recommendation 3.3: Possession in breach of a firearms prohibition order
Section 16B of the Bail Act 2013 (NSW) should not be amended to include the possession of a pistol or prohibited firearm in breach of a firearms prohibition order as a show cause offence.
Show cause and criminal association offences
Recommendation 4.1: Expanding show cause to further criminal association offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further offences relating to criminal associations.
Recommendation 5.1: Legislative guidance on “criminal associations”
The Bail Act 2013 (NSW) should not be amended to include further legislative guidance on the meaning of “criminal associations”.
Other issues raised in this review
Recommendation 6.1: Adding other orders to section 18(1)(f) of the Bail Act 2013 (NSW)
Firearm prohibition orders and serious crime prevention orders should not be added to the list of orders in section 18(1)(f) of the Bail Act 2013 (NSW).
In discussing the meaning of 'criminal associations' the Commission states
The Act does not define “criminal associations”. Further legislative guidance should not be provided
We recommend against amending the Bail Act 2013 (NSW) (Bail Act) to provide further legislative guidance on the meaning of “criminal associations”.
The Act does not define “criminal associations”
As outlined in chapter 2, bail authorities must assess any bail concerns before making a bail decision. A bail concern is a concern that an accused person will, if released:
· fail to 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.
One of the matters bail authorities must consider in assessing bail concerns is “whether the accused person has any criminal associations” (s 18(1)(g) of the Bail Act). The Bail Act does not define the expression “criminal associations”.
This factor was introduced to target associations with organised crime. In the first report from his review of the Bail Act, John Hatzistergos concluded:
Given the direct impact that an applicant’s links to organised crime networks can have on their level of risk, there is value in making criminal associations an explicit factor ...
Similarly, the then Attorney General explained when s 18(1)(g) was introduced:
Further legislative guidance on the meaning of “criminal associations” under the Bail Act 2013 (NSW) is unnecessary and may have unintended consequences. New factors added to section 18 include a requirement to consider whether the accused has any criminal associations. An applicant’s links to organised crime networks can have a direct impact on his or her level of risk. For example, it may give a person access to the means to flee the jurisdiction or the means to continue criminal activity.
Published bail decisions suggest s 18(1)(g) is often considered in the context of associations with organised crime groups, primarily outlaw motorcycle gangs and other networks. Notably, the Court of Criminal Appeal found in Mariam v Director of Public Prosecutions (NSW) (Mariam) that “[t]he apparent association ... by the applicant with persons considered by police to be involved in organised criminal activity enhances” the bail concern of committing a serious offence.
Expanding on the decision of the Court of Criminal Appeal in Mariam, the NSW Police Force (NSWPF) proposed that the following definition be included in the Bail Act:
Criminal association means an apparent connection between the applicant and another person or persons who are likely to be involved in organised criminal activity.
The phrase “criminal associations” is capable of a wider meaning. In other published cases, prosecutors have alleged the accused person to have criminal associations where they associate with people engaged in criminal activity unconnected to organised crime networks. For example, in one case associates of the accused person had been “arrested for drug supply and firearms offences” in another state.
Further legislative guidance should not be provided
We are not persuaded that the Bail Act should include further guidance on the meaning of “criminal associations”.
In saying this, we recognise that a legislative definition may have certain benefits. In particular, the NSWPF argued that a definition “would help to ensure that the Act is applied predictably and efficiently, particularly in busy Local Courts”.
It could also help ensure the law only covers genuine criminal associations. For instance, Corrective Services NSW recognised that one potential benefit of a specific definition is that it could avoid capturing people who, by virtue of their family or community, associate with people with criminal histories or people who have been involved with the criminal justice system.
There was also some support for giving specific statutory expression to what appears to have been Parliament’s intention in enacting s 18(1)(g), that is, to target links with organised crime. For instance, the Law Society proposed the term could be amended to read “whether the accused person has any associations with organised crime”. This could assist to ensure s 18(1)(g) is not interpreted more widely than was originally intended.
We acknowledge some merit to these arguments. If anything, the present concept of criminal associations may be too broad. However, there is no need for a definition, unless narrowing the scope to an association with organised crime is necessary to avoid consequences unintended by Parliament. Moreover, there is no particular reason why a criminal association other than with organised crime should not be relevant.
However, consultations did not reveal any widespread problem with the interpretation of s 18(1)(g). Instead, the common view was that courts typically interpret the term to mean a person’s association with organised crime, as was intended by Parliament.
Most submissions did not support further legislative guidance. Some observed that interpretation should be left to the discretion of sufficiently skilled and experienced judicial officers. Another view was that further guidance is unnecessary, as there is no practical difficulty or tension with applying s 18(1)(g).
The Bar Association and the NSW Council for Civil Liberties both opposed the introduction of a definition. If any definition was introduced, they insisted it should contain safeguards to specify that simply associating with someone who has a criminal history is not sufficient to establish a person has criminal associations.
Furthermore, significant concerns were expressed that defining the term may itself have unintended consequences. For instance, care must be taken to avoid a disproportionate impact on Aboriginal people, young people or people with disability who may be required to associate with people with criminal histories due to their family, living or caring arrangements.
Conversely, there is always the potential for a statutory definition to narrow the expression, and unduly constrain judicial discretion. The NSWPF recognised it would be “undesirable to be overly prescriptive in the definition” as “the ways in which a person may be criminally associated are many and varied”. A definition that went beyond that provided in Mariam would at least arguably do that.
In our view, there is insufficient reason for further legislative guidance on “criminal associations”. In Mariam, the Court of Criminal Appeal provided a reasonable and workable statement of the law. It does not need the force of statute. Courts are capable of exercising their discretion to determine whether, on the materials before them, a person’s criminal associations indicate an unacceptable risk.
