Those who are charged with ‘serious domestic violence offences’ in New South Wales will now have to wear ankle bracelets and be electronically monitored, if they are granted bail.
Those who are charged with ‘serious domestic violence offences’ in New South Wales will now have to wear ankle bracelets and be electronically monitored, if they are granted bail.
The New South Wales government has announced that the changes would take effect on Friday, 11 October 2024, with the devices equipped with around the clock GPS technology.
Alleged offenders (meaning those who are charged but not yet determined by a court) on bail will be tracked by Corrective Services NSW (‘CSNSW’) in accordance with any geographic bail conditions.
These changes mean that by certain Bail or Apprehended Domestic Violence Order conditions, alleged offenders can be excluded from certain residential addresses, school and work locations, or suburbs or areas within a city, close to a ‘person in need of protection’.
What are the consequences of this on an alleged offender?
If an alleged offender enters a restricted zone, Corrective Services’ electronic monitoring officers are immediately notified.
They will then contact NSW Police to advise that a potential breach of bail conditions has occurred, with the police then responding.
Previously, Corrective Services only electronically monitored those on parole orders or Intensive Correction Orders.
It has been revealed that the number of adults in custody for domestic violence offences is at an all-time high of 3,008, with over half on remand (i.e., refused bail and awaiting determination of their court proceedings).
What is the amendment?
The Bail and Other Legislation Amendment (Domestic Violence) Bill 2024 amended the Bail Act 2013 (NSW), to introduce a provision reflecting that domestic violence bail conditions must impose electronic monitoring for certain offences, under section 28B.
The section applies to those who are charged with a serious domestic violence offence and are granted bail.
What is a serious domestic violence offence?
A serious domestic violence offence is defined as an offence under Part 3 of the Crimes Act 1900 (NSW) with a maximum penalty of 14 years imprisonment or more, if the offence is committed by a person against an intimate partner.
Part 3 relates to ‘offences against the person’, with such offences including murder, manslaughter, sexual intercourse without consent, strangulation with intent to commit a further offence, wounding or grievous bodily harm with intent, as well as kidnapping.
An intimate partner refers to a person who is or has been married, a de facto partner, or is in or has been in an intimate relationship, whether or not this was of a sexual nature.
How does this affect the granting of bail?
It prescribes that the granting of bail must involve a bail condition that the accused person be subject to electronic monitoring, unless the bail authority is satisfied that sufficient reasons exist, in the interests of justice, to justify not imposing the condition.
This section does not interfere with or alter the existing powers of bail authorities to make orders for electronic monitoring, in other cases to which the section does not apply.
Furthermore, it specifies that electronic monitoring (in cases which the section applies to) cannot be a reason why an accused person is either able to ‘show cause’ or is able to satisfy a court that there is no ‘unacceptable risk’.
What is ‘Show Cause’?
The show cause requirement applies to adults accused of certain offences (i.e., those involving serious personal violence, firearms, commercial level drug manufacture, importation, serious sexual offending against children, and offences which carry a penalty of life imprisonment). It also applies to those who are alleged to have committed a serious indicatable offence whilst on bail or parole, or whilst subject to an arrest warrant.
The provision has also been amended to encapsulate those charged with a serious domestic violence offence or abusive behaviour towards current or former intimate partners (otherwise referred to as ‘coercive control’).
The requirement provides that a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person ‘shows cause’ as to why their detention is not justified.
Showing cause may be done through a combination of different factors and it does not necessarily involve something ‘special or exceptional’. It may include stringent bail conditions, familial vulnerability, delay to be faced in custody, or issues with the strength of the prosecution’s case, among a multitude of other factors.
If the accused person shows cause, the application will then proceed to the ‘unacceptable risk’ test.
What is an ‘unacceptable risk test’?
The ‘unacceptable risk’ test involves the accused person demonstrating that there is no unacceptable risk that cannot be mitigated by the imposition of reasonable bail conditions.
Whether there is an unacceptable risk involves an assessment of bail concerns.
Bail concerns refer to concerns that an accused person may 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.
In the second reading speech of the bill, Attorney General Michael Daley remarked that: “the purpose of the electronic monitoring provision is to capture those people who are granted bail after satisfying the show cause and unacceptable risk tests.”
A requirement that the accused person be subject to electronic monitoring can be imposed as a pre-release requirement, which means that the condition must be complied with before the accused person is released on bail.
