Quick questions on Police powers, arrest and bail: HSC Legal Studies

In NSW, police powers are codified in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The key powers:

Bail is the release of an accused person on conditions pending the next court date. Governed in NSW by the Bail Act 2013 (NSW).

A central check on police power is that evidence obtained improperly or in breach of LEPRA may be excluded at trial. Under the Evidence Act 1995 (NSW) s 138, a court has a discretion to exclude evidence that was illegally or improperly obtained unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained that way. This gives practical effect to police powers: an unlawful search (one conducted without reasonable suspicion under s 21) may render the resulting evidence inadmissible, which discourages misuse of power and protects the integrity of the trial.

The whole investigation regime is an exercise in balance. Society needs police to have effective powers to detect crime, gather evidence and protect the community, and the bail system needs to manage genuine risks to victims, witnesses and the public. At the same time, the individual has rights, the presumption of innocence, the right to silence, the right to liberty, and protection from arbitrary search and detention, that the law protects through the requirement of reasonable suspicion, time limits on detention, custody safeguards and the unacceptable risk test for bail. Evaluating the process means asking whether this balance is being struck fairly, and the evidence (over-representation of Indigenous accused, the rise in the remand population, and concerns over strip searches) shows the balance is contested.

The bail authority refuses bail if there is an unacceptable risk that the accused will fail to appear, commit a serious offence, endanger any person, or interfere with witnesses or evidence. Bail conditions can be imposed to mitigate risk.

For specified serious offences (e.g. murder, serious drug offences, offences while on bail for other serious offences) the accused must "show cause" why their detention is not justified before the unacceptable risk test is applied. Show cause categories were expanded in 2014 amendments.

The Bail Amendment Act 2022 (NSW) and subsequent amendments tightened bail for repeat offenders and for offences while on bail. Critics including the Aboriginal Legal Service NSW/ACT argue the reforms increase remand of Indigenous accused; the 2023 NSW Bureau of Crime Statistics and Research (BOCSAR) report on remand trends documented a sustained rise in the remand population.