The landscape of domestic violence legislation in New South Wales underwent a significant transformation with the introduction of the Bail and Other Legislation Amendment (Domestic Violence) Bill 2024, which marked a crucial reform in the justice system’s approach to domestic violence bail laws.
One of the most significant recent developments in NSW criminal law, the 2024 reform has had a major impact on the bail process, its role in promoting a safer society, and the experiences of alleged domestic violence offenders navigating remand since its introduction.
Key Takeways
- The Bail and Other Legislation Amendment (Domestic Violence) Bill 2024 significantly tightened NSW bail laws for those accused of serious domestic violence offences.
- Alleged offenders charged with serious domestic violence offences now face a "Show Cause" requirement, meaning they must prove why they should not be held in custody.
- Bail authorities must now weigh specific "red flag" factors, including histories of animal cruelty, prior domestic abuse, and victim safety concerns, when assessing unacceptable risk.
- The reforms shifted bail decisions from administrative registrars to magistrates or judges, increasing judicial oversight and scrutiny.
- Self-representation in domestic violence bail applications is now significantly riskier, making early legal advice essential to avoiding remand.
Background on Bail Laws in NSW
Prior to the 2024 reforms, Bail laws for domestic violence offences in New South Wales were governed by the Bail Act 2013.
Courts are required to perform a two-stage assessment involving a “show cause” test and an “unacceptable risk” test before granting bail.
Defendants seeking bail were first subjected to the “Show Cause” requirement, which placed the onus of proof on the defendant to show why their detention was not justified, rather than on the prosecutor to prove why they should be detained.
However, this requirement applied only to a specific list of serious crimes, including:
- Offences involving serious personal violence or firearms.
- Crimes resulting in a penalty of life imprisonment.
- Commercial-level drug manufacture or importation.
- Serious sexual violence offences against children.
- Serious indictable offences committed while already on bail or parole.
Unless an offence fell within these categories, serious domestic violence offences were not automatically subjected to the “Show Cause” test.
The second step in the process, the “Unacceptable Risk” test, was then faced if the defendant successfully showed cause or if the offence did not require it.
A bail authority had to refuse bail if they identified an “unacceptable risk” that the accused would fail to appear, commit a serious offence, interfere with witnesses, or endanger victims or the wider community if granted bail.
The Bail Act Reform 2024
The Bail and Other Legislation Amendment (Domestic Violence) Bill 2024 was introduced to substantially strengthen New South Wales’ domestic violence prevention through the bail framework in response to a series of major allegedly domestic violence-related offences.
A primary driver for these changes was the intense public outrage following the murder of Milly Ticehurst in Forbes, NSW. Ticehurst’s former partner, who allegedly committed the murder, was out on bail at the time for previous domestic violence offences against her.
This matter sparked a demand for urgent legislative action from the NSW government to provide better protection for victims of serious domestic violence offences.
Main Features of the New Bail Laws
The introduction of these new bail laws applied several stringent barriers for individuals accused of a domestic violence offence navigating the NSW legal system. The new laws reversed the presumption of bail for those charged with a serious offence that carries a maximum penalty of 14 years or more.
The “Show Cause” requirement was mandated within bail applications for serious domestic violence offences, closing the gap in the previous regime. Under the new bail laws, alleged domestic violence offenders must prove why they should not be detained until their case is settled by demonstrating that sufficient reasons exist. A serious domestic violence offence, defined under Part 3 of the Crimes Act 1900, is an offence committed against an intimate partner that carries a maximum penalty of 14 years or more (such as sexual assault, kidnapping, or strangulation).
In assessing “Unacceptable Risk”, bail authorities are now required to consider specific “red flag” factors drawn from the Crimes (Domestic and Personal Violence) Act 2007, including:
- Any history of animal cruelty or abuse.
- Prior behaviour constituting domestic violence, including physical domestic abuse, sexual assault, or strangulation.
- The views and safety concerns of the victim or the victim’s family, or the victim’s previous history of stalking.
The reform also increased judicial oversight and safeguards after bail was granted. Applications must now be determined by a magistrate or judge rather than a registrar, with expanded visual link technology allocated to support remote bail hearings in regional areas. Courts are also generally required to impose bail conditions that involve electronic monitoring of offenders for certain serious offences.
In addition, the new bail laws allow prosecutors to apply for a stay (delay) of release for serious domestic violence offenders, meaning the accused can remain in custody until a higher court reconsiders bail.
Rationale Behind the Changes
The core purpose of the 2024 reform was to ensure that victim safety is the paramount consideration of the domestic violence bail system. The law aims to make it significantly more difficult for those accused of serious domestic violence offences or coercive control to be released into the community by tightening the loopholes that were seemingly allowing this to occur.
Impact on Domestic Violence Perpetrators
The implementation of the 2024 bail reform means that alleged offenders now face a much higher threshold for release. These changes were met with divided perspectives. While some strongly advocated an immediate focus on victim protection, others raised concerns about the potential impact on civil liberties and the risk of exacerbating systemic inequality under the reforms.
Critics, including legal experts, civil liberties groups, and indigenous advocates, described the reforms as a response that may exacerbate social problems rather than solve them.
Concerns were raised about further overcrowding the prison population with individuals who had not yet been convicted. At the time, 44% of inmates in NSW were already on remand, many of whom might ultimately be found not guilty.
The DFV (Domestic and Family Violence) sector argued that a tough-on-crime crackdown approach does nothing to stop violence before it starts, advocating instead for primary prevention and social programs that address community attitudes and the underlying causes of domestic violence.
Protections for Victims
Nonetheless, the reform was viewed by many, including the NSW Government and community members, as essential for public safety and a direct response to preventable cases of serious domestic violence such as Molly Ticehurst.
Proponents argued that making victim safety the “paramount consideration” is a necessary shift to protect vulnerable individuals from high-risk offenders.
Moving bail decisions from administrative registra to experienced magistrates has continued to ensure that serious applications undergo rigorous judicial scrutiny.
The new “stay” provisions allow the state to keep potentially dangerous individuals in custody while a higher court reviews a release decision, preventing immediate harm.
DV Bail Applications Today
The impact of the Bail and Other Legislation Amendment (Domestic Violence) Bill 2024 is ongoing, with practical impacts still affecting the NSW justice system and those applying for bail well into 2026.
For domestic violence perpetrators, especially repeat offenders, the legal landscape has become significantly more difficult to navigate, especially with the first court appearance in a matter now having much higher stakes when it comes to the opportunity of being granted bail.
Magistrates now expect a high level of evidentiary support, such as employment letters and character references, early on in the court proceedings, reflecting the emphasis now placed on the “show cause” and “unacceptable risk” tests.
Consequently, self-representation in bail applications has become far more challenging and poses a greater risk to defendants. Failing to properly address and argue these complex legal requirements significantly reduces the likelihood of being granted domestic violence bail, often resulting in costly and stressful Supreme Court appeals for individuals seeking to challenge bail refusals
How Hamilton Janke Can Help
If you are being charged with a criminal offence in NSW, or are looking to file a bail application, it is vital that you seek legal advice and legal representation. Contact our expert Criminal Defence Lawyers now.
