Changing the Rules on Bail: An Analysis of Recent Legislative Reforms in Three Australian Jurisdictions

Abstract

Bail decisions are a high-volume and hugely consequential component of the Australian criminal justice system, and yet, laws governing access to bail have rarely been the subject of systematic analysis. This article sheds new light on how bail laws have changed and what this reveals about how and why governments employ the criminal law as a public policy tool. Working with a dataset of 71 statutes enacted in New South Wales, Queensland and Victoria during the 10-year period between 2009 and 2018, we employ a combination of quantitative and qualitative analysis to illuminate key features and patterns. Our main findings are that bail law remains an active site of statutory reform, and that the object of mitigating harm- risk routinely takes priority over the fundamental rights of the accused. As a consequence, the strong trajectory of contemporary bail law reform has been to restrict rather than expand access to bail.