Bail (Amendment) Act
reports on the passage of the Bail Amendment Bill through
Parliament have, in some cases, not been reflective of either
the existing law or the differences in the proposed law.
While there may be valid grounds for criticising the provisions
in the bill, it must be emphasised that they have constituted
the law for the past three years. The law was extended periodically
at three-month, six-month and (last year) one-year intervals.
The difference with the 2008 bill is that the Government proposed
to make the law permanent. As with most other laws, there
would be no sunset clause stipulating that the
law would end by a particular date.
The Senate, and in particular the Independent bench, has been
criticised for its support of the bill in at least one newspaper
Ironically, some three years ago, this same bill was touted
by the media as part of the anti-crime legislation agreed
to jointly by the Government and the Opposition.
Make no bones about it; in 2005, the Opposition supported
the first bill, of which the provisions were almost the same
as the current one.
The bill was dubbed the No bail for kidnappers
and was widely-supported by the public.
The bill, although promoted in its first incarnation as dealing
with no bail for kidnappers has greater impact
on repeat offenders. The original law in the 1994 Bail Act
had just two classes of offenders who by law were not entitled
Part I lists offences for which a person (accused of committing)
would never obtain bail: murder, piracy, treason and hijacking.
Part II included a variety of serious offences, some violent,
where a person charged who had at least three convictions
over ten years for any of them would not be entitled to bail.
However, he could obtain bail if he could convince a court
that he should get bail. In respect of people charged for
offences, who fell outside of Parts I and II, a court had
the usual discretion to grant bail taking into account
the seriousness of the offence and/or if the applicant had
pending charges (though not convictions).
The amending law targets people accused of kidnapping for
ransom and repeat offenders. Four classes of offenders are
The original Part I remains (no bail for murder, etc), but
Part II is split into two: Parts II and III. The more violent
and serious offences are in Part III and the less serious
in Part II.
Some new offences were added in the first amendment in 2005,
and since then each version of the law has clarified the list
Otherwise, the law re Part II offences, remains the same as
in 1994the entitlement to bail is lost to a person with
three convictions in the last ten years for such offences
as larceny of a motor vehicle, receiving, etc.
The accused, however, may get bail if he can convince the
court he is deserving (the onus is on him).
The draconian nature of the law is revealed in respect of
Part III offences. These include offences such as manslaughter,
shooting or wounding with intent, rape, possession of a firearm,
all forms of robbery, trafficking drugs, buggery and kidnapping.
A person who has even two convictions for any of these in
the past 15 years will get no bail.
To appreciate this, compare it with Part II offences. In such
cases, there must be three convictions in ten years for the
accused to fall within the law, and then he is not even totally
denied bailthe onus just shifts.
Now, a person who comes before the court charged with robbery
shall not be granted bail if he has two convictions for Part
III offences, even if they arose from one incident.
Similarly, a person charged with kidnapping for ransom, or
knowingly negotiating a ransom may not be granted bail initially
for a period of 60 days.
If the case is started within those 60 days (some evidence
is taken), he is not entitled to bail, but if it is not he
may apply to the court for bail, which the court has a discretion
to refuse or grant.
The concern of some about the bill was the intention to make
the above permanent law.
The Government had its three-fifths majority in the House
of Representatives and passed the law. In the Senate, all
that was needed were four votes outside of the Government.
From the course of the debate, it was clear that there was
support from at least four Independent senators. There is
no whip in the Independent bench, so these senators vote their
While the Government promised to review the law after a few
years, there was nothing in place to ensure this. A sunset
clause was the only hope, and at the end of day a compromise
position was achieved.
The law will last for five years. At that time, the country
will make a decision whether to renew it or not.