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NSW parliament has introduced sweeping new domestic violence bail laws aimed at making it more difficult for accused persons to be released after being charged.

The government has hailed the changes as a response to the outpouring of community sentiment to be tougher on domestic violence offences after a spate of publicised domestic violence incidents.

However, critics of the changes suggest that they will result in more potentially innocent persons being detained as well as increasing the already disproportionate number of Aboriginal persons who are incarcerated.

Show cause for serious domestic violence offences

One of the main amendments is increasing the ambit of offences to which the “show cause” requirement under section 16B of the Bail Act 2013 (NSW) applies.

This means that defendants will now have to show cause for serious domestic violence offences.

A serious domestic violence offence is an offence under Part 3 of the Crimes Act 1900 (NSW) against an intimate partner which carries a maximum penalty of 14 years imprisonment or more.

The changes come shortly before the introduction of section 54D of the Crimes Act 1900 (NSW) which criminalises coercive control – being controlling and abusive behaviour by an intimate partner.

Electronic monitoring for domestic violence bail

Electronic monitoring is now a mandatory bail condition for a serious domestic violence offence unless sufficient reasons exist, in the interests of justice, to justify not imposing electronic monitoring.

Section 28B of the Bail Act 2013 also makes clear that electronic monitoring is not sufficient to show cause why an accused’s detention is not justified. It is also not sufficient to establish that there is no unacceptable risk.

Electronic monitoring will be paid for by Community Corrections once the amendments come into force.

Other Amendments

Serious domestic violence and coercive control offences have been included under section 40 of the Bail Act 2013 and are now subject to stays of release. Sydney bail application lawyers explain this means that even if a Local Court Magistrate grants bail, the prosecutor can apply for the accused to remain in custody until a superior court hears the matter.

Section 18 of the Bail Act 2013 has also been amended to allow the court to consider physical abuse or violence, including strangulation and sexual assault, as well as any history of animal abuse or stalking in deciding whether to grant bail. These are set out in section 6A(2) of the Crimes (Domestic and Personal Violence) Act,

Molly Ticehurst Murder

Daniel Billings was charged with the Molly Ticehurst murder after her body was found in the New South Wales town of Forbes.

At the time he was on bail for domestic violence offences against her. He was also subject to an apprehended violence order (AVO).

A groundswell of public anger after this resulted in the government amending bail laws for domestic violence offences. On 15 May, the Bail and Other Legislation Amendment (Domestic Violence) Bill 2024 was rushed through parliament and quickly became law.

Support for new domestic violence bail laws

NSW Labor Attorney General Michael Daley spoke in support of the new laws and suggested, “Many of the representations I received from Forbes and from all over NSW requested that the government change the law to provide better protections for people who have been subjected to serious domestic violence”.

The Minister for Corrections Anoulack Chanthivong said, “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.”

Criticism of new domestic violence bail laws

However, the changes have not been without criticism. Indigenous Australians will bear the brunt of the reforms. Sydney domestic violence lawyers explain that they are already overrepresented in the prison system. While 3 percent of people in NSW are Indigenous, they make up 31 percent of prisoners.

Speaking more generally, the more stringent bail laws will increase an already burgeoning prison population. This is because approximately 44 percent of inmates are refused bail and awaiting trial. This means that almost half the prison population are persons who may in fact be innocent.

As the calls for tougher laws rose in the constituency, these other measures, that apply to the community and attempt to prevent crime before it is committed, are what the DFV sector has been calling for, not another tough-on-crime crackdown that does nothing to stop domestic violence.