Emily Hewitt-Park takes us through the case for bail reform laws, as Australia’s political and social landscape continues to change.
Many of us can recall where we were the morning Man Haron Monis held eighteen individuals hostage in a Lindt cafe in Martin Place.
I was twelve years old and in Year 6. A thick unease hung within the walls of our colourful, cardboard-coated classroom, teachers mumbled nervously to each other in doorways and on playground duties, and students spoke, of a “terrorist attack” in the city. Primary schoolers pronounced the word “terrorist” clumsily yet solemnly, with widened eyes and in fearful whispers that indicated they knew little more about it than the fact it was something to be afraid of.
Little did we know at the time, the social and legal aftermath of this siege would be felt for years. Widespread shock and fear held by the public following the siege grew quickly into anger when it emerged that Monis had been granted bail, that is, the temporary release of an accused person awaiting trial, at a Local Court the year before. In response to this community upset, the NSW government introduced the Bail Amendment Act 2015, which amended previous laws to remove the discretion of judges to provide bail to an individual that has any prior affiliation with terrorism or extremism. In other words, all those that are deemed to possess links to terrorism in or outside of Australia, are to be held in custody until their trial.
With education and experience we now, thankfully, can comprehend the word “terrorist” with more complexity than that of a primary schooler. We have lived eight years of its publication in headlines and of its connotations in the community.
Though after all this time, why is it that we still associate the word with the same fear as we did at twelve?
I recognise the panic that terrorist events stir within us and our worlds. We are only human, and the threat of something foreign destabilising something we know is secure and safe is a thought that would unsettle any reasonable person.
That said, I do question the ways in which our legal system responded to the Lindt Cafe siege, and what this tells us of our society. There is a symbiosis between law and society after all – but how much of criminal law is enacted just as a public policy tool? In examining public and media responses to this event in time, many answers to these questions become clear, and while the word “terrorist” is scary, the repercussions of our so-called ‘solutions’ to it are equally consequential.
Historically, the primary purpose of bail was to ensure accused perpetrators do not abscond. However, the legislative and operational changes that have been made to bail laws now prioritise the notion of “unacceptable risk”, specifically, the threat posed to the legal concepts of safety and justice that our society relies upon.
Upon examining changes made to the bail act in the past thirty-five years, neatly laid out in the Legal Aid report: The Recent Bail Act Changes, it occurred to me that this mutation of the purpose of bail has repeatedly been shown to occur in a two-step cycle. This cycle begins in the wake of large-scale criminal incidents, such as the Lindt Cafe siege, that rattle our public faith in the justice system, and results in an overreaching response by governments that is chiefly concerned with appeasing the social malaise toward crime.
In particular, the Lindt Cafe siege demonstrates that this cycle today has been deeply shaped by the intersection of law with technological and cultural paradigms of the 21st century. In particular, digital media and counterterrorism have dug deep chasms between the public and politicians, the judiciary and executive, and victims and offenders, so much so that the law these days seems to rest on mediating the interests of “us”, a vulnerable community, and the rights of “them”, a dangerous underclass.
As such, bail now serves as a proxy for punishment. No longer does bail concern itself with the legal rights of the individual, but rather, the social and cultural pressures of the collective.
Where we consider the law as a complex system headed by legislatures, courts, governments and criminal justice agencies, we often do not think to position ourselves as writers and makers of law. Yet somewhat paradoxically, it is members of the public and our broader social psyche that is itself the most dominating force when it comes to defining and enforcing criminal behaviour.
Importantly, the presence of digital journalism in the 21st century has significantly bridged the authority between the public and the government, with media now bearing the ability to rouse and focus immense public pressure on lawmakers. This pressure fuels what we call ‘penal populism’: a form of governance whereby lawmakers choose criminal penalties through social popularity. This populism in turn accelerates reform and pushes governments to placate middle-class concerns of security so as to prevent episodes of the same nature ever recurring.
The bail reform occurring against the backdrop of the Lindt Cafe siege is the most potent example of this pressure. The event highlighted a publicly viewable deficiency in the court system, which had allowed a dangerous individual to slip through rigorous safeguards. Public responses to the incident were intensified by the high influx of digital and traditional media criticisms, which exacerbated the social and cultural divide placed between offender and community.
The media ostensibly advocated on behalf of the public for legislative reform. Journalists were quick to label the event as a “terrorist attack”, immediately lobbying for greater legal measures to protect society from the threat of Islamic extremism. The revelation that Monis had been provided asylum in Australia from Iran two decades prior also led the public to call for tightened immigration policies, particularly for applicants from Muslim-majority countries. Most notably, NSW Police and the judicial system were criticised for the decision to grant Monis bail, spurring demand for stricter bail laws.
At the heart of this commentary was condemnation of the law’s failure to uphold what we all view as the law’s primary obligation: to provide protection. It is important to also factor in the cultural landscape at the time of the event, whereby domestic and international events over the previous decade such as the September 11 attacks, the ‘Tampa’ incident, and the Cronulla riots, had already strained public confidence in this law and order.
Salient features across all media stories covering the siege were the framing of the incident as a terrorist attack and a fixation on the tragic loss of life, one report declaring Monis had “brought ISIS to Australia”, while another asserts: “the long and the short of it was that the victims were killed by an extremist Muslim savage”. All blame was apportioned to the justice system, one article headlined: “Police bullets killed Sydney siege hostage Katrina Dawson”.
It is in these ways that the media was a driver of the Bail Amendment Act 2015, and for the deep social and cultural divide that permeated the Australian conscience thereafter.
To best explore the impact of this divide, let us return to the historical purposes of bail, whereby legislation has long-sought to achieve three goals: ensuring credibility of the justice system, protecting the community, and safeguarding the rights of the defendant.
Under our recent reforms, these outcomes have become more and more conflicting. In particular, the capacity for the law to fulfil compounding community expectations of protection, now interferes with its ability to preserve the individual rights and freedoms of the defendant.
The rise of penal populism throughout the media and its accompanying reverberations upon legal and political spheres is largely accountable for this conflict, having caused a profound power realignment between those who write the law, and those whom the law governs. As there is now expanding emphasis upon public thought, significant social events that induce doubts toward the protection of the legal system, such as the Lindt Cafe siege, in turn become catalysts for major, overreaching reform.
It should be noted that the siege, and its social and legal corollaries, is not an isolated incident but rather one of many iterations in increasingly politicised bail reform laws. History is stamped with this temporal pattern of crime problems being ‘discovered’ and rendered in themes of social cataclysm.
What’s more, in response to these waves, state governments have time and time again harnessed the bail regime for political purposes, specifically to send a “tough on crime” message, often creating simple legal responses to what are highly complex social issues.
This is not to say that the court’s initial decision to grant Monis bail was at all fathomable. Although, this ‘crackdown’ has posed implications that transcend beyond counterterrorism motivations, and have contributed to a wider removal of discretion that has tampered with the court’s consideration of liberty.
Of the adults held in prisons around NSW in 2021, 35% were unsentenced. In 2001, this figure stood at 14%. This growth shows no sign of decline, despite being financially and socially unsustainable. Furthermore, research has shown that 55% of people denied bail are later released without conviction, and that 40% of remandees will be found either not guilty or will be sentenced to a period equal to, or less than, the time they have already served on remand.
With these alarming statistics in mind, we must not forget that the presumption of innocence and right of the individual to enjoy freedom until trial are bedrocks to Australian law, separating our criminal justice system from the absence of procedural fairness and arbitrary sentencing that runs amok in totalitarian states.
Crime is just as much a social phenomenon as it is a legal sector. “Terrorist” is just as much a word as it is a highly controversial, deeply dividing debate. As such, the notion that all matters of crime are dealt with in a courtroom or parliament, is false. In reality, crime is reformed everyday within the folds of our society: enshrined in a public moral code among our universities, workplaces, dining-room tables and even in our colourful, cardboard-coated Year 6 classrooms.
As the former federal Attorney-General Philip Ruddock stated: “We live in a world of trade-offs. There will always be a trade-off between national security and individual rights”.
However, as we live in the wake of the Lindt Cafe siege, with its ongoing legal and social consequences, I ask you to question your compliance to live in a world where our protection from what are, for the most part, politically endorsed social and cultural tropes, are traded-off with the integral civil liberties Australian law rests upon.
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