Bail is a core part of the criminal justice system and allows a person to be released from custody pending the outcome of a case against them with certain conditions.



Because the decision to refuse bail can impact on a person’s liberty before they are convicted of an offence, it involves a careful assessment of the potential risks posed to the community, the presumption of innocence and a number of other factors.

In the case of Man Haron Monis there are now understandable questions being asked over whether the right decisions were made to allow Monis to be released on bail.

Monis was granted bail first in December 2013 while facing charges of being an accessory in the murder of his ex-wife.

He was refused bail in April 2014, but then granted bail in May. While he had a series of conditions on his bail, he maintained relative freedom to move and associate around Sydney.

Part of the criticism has focused on changes to the Bail Act that were made in a series of amendments in 2013.

There was an overwhelming view in the legal community that the old Bail Act was cumbersome, confusing and led to unusual and erroneous outcomes at times. There had been over 80 amendments to the act since it came into force in 1978, and different tests were applied for a whole different range of offences.

So the NSW government threw out the old act and rebuilt it largely from scratch. It created just one single test that would determine whether there was an “unacceptable risk” that cannot be mitigated by bail conditions.

This new act was based on changes recommended by the New South Wales Law Reform Commission in a major 2012 study.

When the bill was introduced the government said: “The government considers that applying its unacceptable-risk test is a much simpler and more response way to make bail decisions than applying the complex scheme of presumptions in the existing Bail Act”.

But despite the act only operating for months, some commentators have suggested this too led to undesirable outcomes, most notably by making it too easy for people to be released.

The former NSW attorney general John Hatzistergos conducted another review into how the revised act was operating. He recommended that the “unacceptable risk” test be modified with a one-stage test and further considerations such as an applicant’s criminal associations and previous noncompliance be added. The New South Wales government made fresh amendments to the act to meet some of the recommendations of Hatzistergos.

However, these changes do not come into force until January, which means Monis was released on bail in the interim period before the amendments were introduced.

What is critical is that at the moment we still don’t know exactly the full basis the magistrate that released Monis on bail made their decision on. There are no transcripts that are available from his cases, although Guardian Australia has lodged requests for each of the bail hearings and the magistrate’s reasoning.

While it has been suggested that the new bail laws would have led to a different outcome for Monis’s bail application, it is virtually impossible at the moment to make an informed assessment about the strength of the bail applications until we see those documents.