Under the new law, people charged with serious domestic violence offences will be required to show cause why they should not be detained until their case is determined – reversing the presumption of bail.
This will apply to those charged with offences, in the context of intimate partner relationships, that carry a maximum penalty of 14 or more years jail.
These offences include sexual assault, kidnapping, and choking to render someone unconscious with intent to commit another indictable offence.
If granted bail, these accused offenders will be subject to electronic monitoring, unless the bail authority is satisfied sufficient reasons exist – in the interests of justice – to justify not imposing the condition.
The show cause provision will apply to coercive control, which will be a criminal offence from 1 July 2024.
The amendments also strengthen the unacceptable risk test in the Bail Act. Under these changes, before granting bail, decision makers must consider:
- ‘red flag’ behaviour that could constitute domestic abuse, such as behaviour that is physically abusive or violent; behaviour that is sexually abusive, coercive or violent; behaviour that is stalking; behaviour that causes death or injury to an animal; behaviour that is verbally abusive; or behaviour that is intimidation.
- the views of victims and their family members, where available, about safety concerns.
The new legislation will also:
- expand the categories of offences for which bail decisions can be ‘stayed’, meaning the accused person remains in custody while prosecutors bring a detention application before the Supreme Court.
- make it easier to prosecute perpetrators who use tracking devices in a domestic violence context.
- ensure magistrates or judges, rather than registrars, make all bail decisions (not just bail decisions related to domestic violence).
Up to 6 additional magistrates will be employed and the Government will provide funding to ensure audio-visual link facilities are available to support remote bail hearings.
This reform comes after the NSW Government announced a $230 million package to improve the response to domestic and family violence through primary prevention, early intervention and crisis response measures.
The Bail and Other Legislation Amendment (Domestic Violence) Act 2024 amends both the Bail Act 2013 and the Surveillance Devices Act 2007.
Premier Chris Minns said:
“These laws are long overdue and make it harder for alleged domestic violence offenders to get bail.
“They will help keep women and children safer.
“These changes are important as part of work across Government to improve responses to domestic, family and sexual violence.”
Attorney General Michael Daley said:
“The NSW Government has taken urgent action to address the unacceptable rate of domestic violence in our community.
“People accused of serious domestic violence offences against intimate partners will now have to ‘show cause’ why their detention is not justified, and if they are granted bail, they will be subject to electronic monitoring.
“In an important change, all bail matters will now be heard by magistrates and not registrars. This is not a criticism of registrars, who perform important work for their communities.
“These changes to the bail framework are a critical step in addressing domestic violence in NSW.”
Minister for the Prevention of Domestic Violence and Sexual Assault Jodie Harrison said:
“This reform complements the $230 million package the NSW Government recently announced to improve NSW domestic violence prevention and support.
“Domestic, family, and sexual violence is preventable, and we continue to look for ways to better support the safety of women and children.”
Minister for Corrections Anoulack Chanthivong said:
“Any act of domestic violence is abhorrent, and women have a right to feel safe everywhere in our community.
“Corrections has specialists right now electronically monitoring offenders on parole or serving orders in the community. We are ready to deploy our expertise and know-how to help expand electronic monitoring to the bail system.
“Electronic monitoring forms part of the government’s coordinated approach to disrupt domestic violence across multiple fronts.”
