In this blog, we will look at the parliamentary reading speech in relation to the new Section 22C of the Bail Act and we will take a deep dive into definitions of this new section.


’High degree of confidence’’– is not defined in the Bail Act. In the Second Reading Speech to the Bail Amendment on 12 March 2024, the Attorney- General Michael Daley said:


‘’The Government’s bespoke test of "a high degree of confidence" is intended to set

an appropriately higher bar for a young person’s release when they are charged

with repeated serious breaking and entering and motor theft offending, including

offending whilst on bail.’’


In the Second Reading Speech to the Bail Amendment5, the Attorney General stated that the onus is not on the young person (as compared to the “show cause” test):


‘’If there is an unacceptable risk, there is no need for the decision-maker to go on to

consider the new test, as bail will be refused. In contrast to the "show cause"

requirement, where the onus is reversed and rests on the accused, the onus for the

new provision will continue to rest on the prosecution to establish that bail should

not be granted. This is consistent with the recommendation of the Hatzistergos

review of the Bail Act that "show cause" and the reverse onus for bail should not apply to children.‘ (Emphasis added.)


The Attorney General also stated:


‘’When committed by adults, this type of repeat alleged offending whilst on bail

would attract the "show cause" test, which would require a bail authority to refuse

bail unless the accused person could show cause why their detention is not

justified. The "show cause" provisions do not apply to children and this additional

test does not impose a show cause requirement or a reverse onus. Instead, the

new test will create an additional threshold for a bail decision maker, directed at the

consideration of the risk of certain young persons committing further serious indictable offences whilst on bail. Bail authorities, including courts, are responsible for applying this new test and determining whether it has been satisfied in each individual case. The unacceptable risk test will also continue to apply.’’ Please see: New South Wales, Parliamentary Debates, Legislative Assembly, 12 March 2024 (Michael Daley, Attorney

General) <’HANSARD-



‘’Importantly, proposed section 22C does not impose an onus of proof on the

accused person in the way that the show cause test does. It is crucial to

understand that. That is an appropriate safeguard, given the difficulties young

people experience in navigating the criminal justice system. This new test targets

only risk of future offending and not other broader bail concerns which can be

considered as part of the unacceptable risk test. The reform is intended to ensure

that, if necessary, a young person can be remanded to address the risk of further

offending. The amendment introduces a bespoke test that sets a higher bar for a

young person’s release when they are charged with that type of serious repeat

offending.’’ (Emphasis added.)


During the Parliamentary Debates, the Attorney-General said:


‘’As I clearly stated in my second reading speech, the Government does not intend

for the new bespoke bail test to reverse the onus. However, simply for the avoidance of doubt and to respond to concerns raised by a number of stakeholders, the New South Wales Government is moving this amendment to clarify that the requirement to establish that bail should be refused rests with the prosecution under the new test in proposed section 22C.’’

For Criminal Defence lawyers representing young person(s) it must be noted that the new provisions place a significant emphasis on the requirement that the onus to establish that bail should be refused for the relevant young person remains with the prosecution as this is a high bar, as it is important to note that the language used is that the prosecution is to ‘’establish that bail should be refused.’’

Other important things to note from the new legislation:

A ‘’relevant offence’’ is a:

·       Motor theft offence (Crimes Act 1900, ss 154A, 154C, 154F)

·       Serious breaking and entering offence(Crimes Act, Pt 4, Div 4 offence with a maximum penalty of 14 years imprisonment or more), or

·       performance crime offence (Crimes Act, s 154K, if the underlying offence is a motor theft offence or serious breaking and entering offence): s 22C(6).

A relevant offence does NOT include an attempted offence: R v KO [2024] NSWSC 679 at [11].

In such cases, bail must not be granted unless the court has a “high degree of confidence” the person will not commit a serious indictable offence while on bail: s 22C(1).

This determination may be made only after an assessment of bail concerns and whether any conditions could reasonably address the risk of the person committing a further serious indictable offence: s 22C(2).

The requirement to establish that bail should be refused remains with the prosecution: s 22C(3).

The transitional provision for s 22C in Sch 3, Pt 4, cl 14 Bail Act states the provision applies retrospectively to offences alleged prior to its commencement on 3 April 2024 (Sch 3).

In R v RB [2024] NSWSC 471, Lonergan J held that, in respect of the transitional provision, the Second Reading Speech makes clear s 22C applies when the offence for which bail is being sought is alleged to have been committed after the provision commenced: [39]. The provision expires 12 months after commencement: s 22C(5).


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*This article correctly reflects the Laws of NSW as at 5th June 2024.


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