The calls for tougher bail laws in the aftermath of the Sydney siege are misplaced. NSW bail laws already undermine fundamental human rights, writes Greg Barns.

The so-called Sydney siege is generating a discussion about even tougher bail laws than already exist in New South Wales.

Change.org has a petition running on the topic and there is outrage that Haron Monis was on bail when he entered the Lindt Chocolate Café in Martin Place on Monday and held a group of innocent individuals hostage.

But NSW bail laws already undermine fundamental human rights and, in any event, the changes made to those laws in the past two years might not have made any difference to Monis's case.

The facts in Monis's case seem to be, as far as one can glean from media reports, on the side of the Sydney magistrate* who granted him bail in December last year. Monis was facing an accessory to murder charge. The magistrate took into account the weakness of the prosecution case.

He no doubt looked at the risk of Monis offending while on bail and on the material before him decided to grant bail with strict conditions that included daily reporting to Campsie police station, surrendering his passport, not going within 500 metres of an overseas departure point and not contacting the prosecution witness. Some will say why didn't the court take account of Monis's mad rants and his previous offences relating to sending offensive letters to soldiers? The answer to that question is that you can't lock people away simply because what they say is offensive.

If the magistrate's decision had been so outside the realm of judicial discretion then it could have been appealed by the police or DPP. It wasn't and that says something of the reasonableness of the magistrate's decision. Bail was also granted in relation to sexual assault charges, relating to incidents alleged to have occurred some 11 years ago, by Magistrate Joan Baptie at Parramatta Local Court earlier this year. Monis's bail conditions included those imposed in 2013 and he needed to find a $10,000 surety and live at a particular address.

Once again these bail conditions were onerous and the decision by Magistrate Baptie seems entirely reasonable given the material she had before her.

The fact that Monis, as his lawyer has said, might have decided at a later point that he was facing a legal Armageddon in relation to the charges he faced and had nothing to lose by doing what he did in Martin Place, was not relevant at the time he was granted bail. Magistrates and judges cannot be expected to gaze into a crystal ball when granting bail.

Bail is a very important feature of the justice system and is an expression of that fundamental human right, the right to liberty and the English common law right of the presumption of innocence. Detaining an individual who has not been found guilty by a court of committing an offence is a very serious incursion on liberty and should not be undertaken lightly.

Unfortunately, and due to the unseemly coalition of police, victims groups and tabloid media outlets, in the past couple of decade's legislators have whittled away that presumption of innocence and right to liberty by making it very difficult for individuals to get bail.

The NSW Government, led by Barry O'Farrell and Mike Baird, have cavalierly disregarded the right of people presumed innocent to remain on bail until their charges are heard by a court. The Monis case does not change that fact.

Here's why. The former NSW Attorney-General Greg Smith introduced changes to the bail laws in 2013 that, despite recommendations from highly experienced former judges Hal Sperling and James Wood, removed the presumption for or against bail.

Instead, the court was to undertake an "assessment of risk". This change represented a substantial diminution of the presumption of innocence. But this change has nothing on the appalling changes the current Attorney-General, Brad Hazzard, has introduced and that will come into force in January next year.

Under these changes there is a presumption against a grant of bail in cases of sexual assault of children; use of a firearm; trafficking commercial quantities of drugs; serious personal violence; that the alleged offence was committed while the accused was on bail or parole; or that the alleged offence carries a potential life sentence. Being an accessory to a crime such as murder is included here.* And even if a person can show that keeping them in custody while they await their trial is unjust, they then have to answer the assessment of risk exercise that a court carries out.

In the Monis case, the Magistrate found the prosecution case on the accessory charge had significant weaknesses.

Nicholas Cowdery, a former director of public prosecutions in New South Wales, is not sure that the Bail Amendment Bill 2014 would have changed anything in the Monis case. He told ABC's PM:

There will always be, unfortunately, some exceptional events which laws and controls put in place before the event could not have prevented. And I think this is one of those cases, and we just need, unfortunately, to deal with it.

The new bail laws in NSW represent a serious attack on the right to liberty that all people should enjoy if they have not been sentenced to imprisonment after a fair trial. In effect, it means people who are subsequently found not guilty of criminal offences have to languish in prison for months or years despite their having not committed any offence.

Liberty of individuals and the right to the presumption of innocence should not be undermined lightly, but in NSW fundamental rights have been cast aside. Calls for even tougher laws are misplaced. The death of individuals in Martin Place this week is tragic but it is no reason to trash the rule of law.

*Editor's note (December 18): This article originally misidentified the magistrate involved in the Monis bail decision in December 2013. The article was also corrected (on December 17) to include that being an accessory to a serious crime including murder is covered by the Bail Amendment Bill 2014. The Drum regrets these errors.

Greg Barns is a barrister and a spokesman for the Australian Lawyers Alliance. View his full profile here.