Challenging Bail Conditions

Important disclaimer: This is written as a guide for people arrested at Maules Creek who want their bail conditions changed. It is not written by a lawyer and is not legal advice, but just based on experience of other people who have successfully challenged their bail conditions. If you need legal advice on challenging bail conditions, you should speak to a lawyer. There are many community legal centres who are able to give free advice.

Bail is one of the oldest rights in the Commonwealth legal systems and was won through civil disobedience and written into the Magna Carta. Roughly speaking, bail is a contract between you and the police, or you and a court, that means you are free until your court case is over, unless the court decides to change your bail. Sometimes, in order to get bail, you need to agree to certain conditions, and this is called conditional bail. The main reason that most people whose court cases are still going on are granted bail is that the courts consider you to be innocent of what you have been accused of until you plead guilty or are proven to be guilty. The Bail Act 2013 strikes a balance between your right to be free when you are accused of breaking the law and the need to ensure you turn up to court, you do not break the law whilst on bail, the community is not at risk and you do not try to influence police witnesses. Whether you have been arrested at a peaceful protest and charged with a minor offence like obstruction, or whether you are accused of serious violent crime like murder, you can be granted bail.

Unfortunately, the first bail decision you get after you are arrested will be made by a police officer, not an independent magistrate. Our experience is that police at Narrabri often abuse their power to make bail decisions by giving bail conditions that are ridiculously excessive and would not stand up in court. Luckily, asking a court to change your bail conditions is easy to do, and everybody who has tried this has had their bail conditions overturned by a magistrate.

Under the Bail Act 2013, a police officer or magistrate has to give you unconditional bail (which means you are free while your court case is ongoing as long as you keep turning up to court), unless there is an unacceptable risk that you will fail to turn up to court, break the law again before your court case has finished, endanger your “victim” (e.g. Whitehaven Coal) or the general community, or interfere with police witnesses (for example, threaten or bribe a security guard who was there when you were arrested to lie about the fact that you were asked to leave). The police officer or magistrate can take into account any relevant information when deciding whether there is an unacceptable risk, but they can’t assume there is a risk without any reason. So if you have never been arrested before and never failed to appear at court, and you won’t have any trouble getting to court, there shouldn’t be any reason why you would have bail conditions.

Despite this, the police have often made people arrested at Maules Creek sign a condition banning them from being within 20km, 30km or sometimes 100km from a Whitehaven Coal operation. As a magistrate from Newtown Local Court recently observed, this excludes you from a huge area of NSW (that magistrate dropped all the bail conditions for the activist who challenged them in court). Less commonly (and only for people living outside of NSW), the police have asked for an amount of money to be paid before you can be released, and on a couple of occasions (both people who had ‘Wando’ as their legal residence) the police have even made activists report regularly to Narrabri police station. If you don’t like your bail conditions, you can always refuse to sign them, spent a night in lock-up, and apply for bail before a magistrate the next morning, but it’s easier (and more comfortable) to agree to the bail conditions and apply to a local court to have them changed later on.

You can apply to have your bail conditions changed at any local court in NSW. It is free and you don’t need a lawyer to do it. Here’s how to do that.

  1. Download this form:

  2. Fill in the form, leaving out any questions that don’t apply to you, print it out and sign it.

  3. Walk into any courthouse in NSW during opening hours and find the registry. Tell them that you are applying for a variation of bail conditions, give them the form and ask for a listing date. If you are lucky, you might be able to do it in court that day, but if the court is busy you might have to wait a week.

  4. Make sure you are well-dressed on the day you have your bail review hearing. On the day, find the court officer (they will be wandering around with a clipboard reading out names) and tell them you are there for a review of bail conditions. They will either ask you to sit in the courtroom until you are called (which means you will probably be heard earlier in the day), or ask you to wait outside until you hear your name (which means you will probably have to wait around all day).

  5. Once your name is called, walk up to the microphone, which will usually be to the left of the table where all the lawyers sit and wait until the magistrate addresses you. The most important thing to remember in court is that magistrates are very busy and like to get things over and done with as quickly as possible, so the less you say, the better.

  6. If it is the first time you have been arrested, it helps to tell the magistrate that, but don’t say anything that isn’t true. You could say that you don’t understand why the police imposed bail conditions because you don’t agree there is an unacceptable risk, and that you don’t intend to break the law or fail to appear at court. You could also point out that 20km is a very big area. It can help to give the magistrate good reasons why you want to be in Maules Creek. For example, if you are doing research on biodiversity offsets, doing independent journalism, or have family or friends in the area, you should tell the magistrate that. Otherwise you could just say that you enjoy the area and have formed friendships with people at Maules Creek, but make sure the magistrate understands that you don’t intend to interfere with the mine or break the law. Whatever you say, keep it short – less than 30 seconds is a good guide. Honestly answer any questions the magistrate asks you. If they ask you what area you think would be suitable, suggest a kilometre or two, but remember that any more than four kilometres would mean you can’t turn onto Cliff’s road leading to camp. Don’t suggest an area unless the magistrate asks because it is more likely they will release you on unconditional bail.

  7. Once the magistrate has announced their decision, wait until the court clerk (who will usually be sitting right in front of the magistrate on the side closest to you) gives you a blue sheet of paper which is your record of the magistrate’s bail decision. Make sure you comply with any of those conditions because if you break them, you will have to spent at least a night in lock-up and it will be harder to get bail again. Let camp know how you went so that we can keep a record of bad police bail decisions.

The new bail act

Parliament has just passed a new bail act which has not been signed into law yet (the Bail Amendment Act 2014). It is worse than the 2013 Act because it means you can get bail conditions even if there is no unacceptable risk. However, the conditions still have to be specific and reasonable and the huge exclusion zones would probably still not stand up in court, so it is still worth challenging your bail conditions if the new bail act becomes law.