Bail Amendment Bill FAQs
What are the changes proposed by the Bail Amendment Bill?

Increasing the number of situations, such as for serious offences, where a
defendant will be subject to a ‘reverse burden of proof’ in bail decisions.

Removing the strong presumption in favour of bail for young defendants aged
17 if they have previously been sentenced to imprisonment. These
defendants will now be subject to the same bail test as adults.

Defendants aged 18 and 19 will also now be subject to the same bail test as
adults.

New powers to deal with defendants under 17 who breach their bail conditions
– for example, Police will now be able to arrest a young defendant who
repeatedly breaches their bail conditions

Increasing the penalty for failing to answer Police bail (not appearing in court)
to up to three months imprisonment, as an alternative to the existing max fine
of $1,000.

Legislating the electronically monitored bail regime to ensure consistent
practices in courts across New Zealand.
What is a reverse burden of proof?
In most cases where bail is opposed, it is up to the prosecutor to prove to the court
that the defendant should not be granted bail.
However, in some situations where the defendant has a history of serious offending,
especially a history of offending while on bail, the defendant must prove that they
should be granted bail. This is called a reverse burden of proof.
The Bail Amendment Bill proposes to extend the number of situations where a
reverse burden of proof applies.
Does a reverse burden of proof mean the defendant will definitely not get bail?
No. However, in marginal cases a reverse burden of proof increases the likelihood
that the defendant will be remanded in custody. This is because it is more difficult to
prove that the defendant should be released on bail than to rebut the prosecution’s
arguments that the defendant should not be released.
Reverse burdens of proof generally only apply in situations where the defendant’s
offending history means they are high risk.
Should the reverse burden of proof be extended to all situations?
No – it is not appropriate to apply this in every bail decision, as our criminal justice
system is based on the principle that a person is innocent until proven guilty. This
means that a person charged with a criminal offence should not be detained without
good reason.
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Why is it currently easier for defendants aged 17-19 years to get bail?
Young defendants, aged 17-19 years, are protected through a strong presumption in
favour of bail. A court may currently only remand a defendant of this age in custody
if it is satisfied that no other course of action is acceptable in the circumstances, or if
a reverse burden of proof applies.
The presumption is intended to prevent young defendants from being held in
custody, both for their own safety and to prevent them from being exposed to more
hardened criminals. However, these considerations carry less weight if a young
defendant has previously served a sentence of imprisonment.
Will this change under the amendments to the Bill?
Yes - the Bill removes the strong presumption in favour of bail for defendants aged
17 who have previously been imprisoned. These defendants will instead be subject
to the standard adult tests for bail (or a reverse burden of proof, if it applies).
For 17 year old defendants who haven’t previously been imprisoned, the strong
presumption in favour of bail will still apply.
The presumption will be removed for those aged 18-19, as the Government
considers that they should be treated the same as other adults facing the same or
similar charges. Under the Bill, 18-19 year olds will be subject to the standard adult
test for bail.
How does the Bail Amendment Bill improve the ability of Police to respond to
young defendants who breach bail?
Currently, if a defendant under the age of 17 breaches their bail conditions, Police
may only arrest them without a warrant if it is considered necessary to ensure that
they don’t abscond, interfere with witnesses or evidence, or offend.
The Bill gives Police new powers to deal with defendants under 17 who breach their
bail conditions, including the ability to arrest a young defendant where it is believed
on reasonable grounds that they have repeatedly breached a condition of bail.
This is in response to concerns that some young defendants are aware of the
difficulties faced by Police when dealing with those found in breach of their bail
conditions, and therefore often disregard their bail conditions as a result.
Why does the Bail Amendment Bill no longer give Police the ability to arrest
those young defendants that have been found to have significantly breached
their bail conditions? Isn’t that allowing these kids to ‘get away with it’?
The Select Committee agreed with the view raised by a number of submitters that
the term ‘significant’ is potentially ambiguous and could complicate frontline decision
making. The Government accepted the recommendation of the Committee that the
term ‘significant’ be removed from the Bill.
The Government believes that the existing powers in section 214(1) of the Children,
Young Persons, and Their Families (CYPF) Act are likely to be sufficient to deal with
situations where the defendant’s breach indicates a heightened risk of offending,
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absconding or interfering with witnesses while on bail (and is therefore what could be
considered significant).
Why does the Bail Amendment Bill now allow Police to arrest children for
repeated bail breaches? Isn’t this a step too far?
The Bail Amendment Bill as introduced gave Police the power to arrest a young
person (those aged between 14-17 years) where it is believed on reasonable
grounds that they have repeatedly breached a condition of bail.
However, the Government intended that anyone – including those under 14 – who
has been granted bail under the Act should be subject to the same conditions. As a
result the new power for Police to arrest without a warrant for repeated breaches of
bail has been extended to include children (those aged under 14 years).
For the new arrest power to be enforced, proceedings must have already
commenced against the child i.e. they have been arrested for an offence and then
released on bail and go on to repeatedly breach their bail conditions.
Section 272 of the CYPF Act provides that criminal proceedings can only be
commenced against a child in three situations:
o Where the child is over 10 years of age and the offence is murder or
manslaughter.
o Where the child is 12 or 13 years of age and the maximum penalty for the
offence is imprisonment for life or for at least 14 years.
o Where the child is 12 or 13 years of age and is a “previous offender” and the
maximum penalty for the offence is imprisonment for at least 10 years but less
than 14 years.
It is envisaged that the new power to arrest will affect very few children, and then
only the most serious of child offenders.
What safeguards will apply to those young persons arrested?
On arrest, the existing safeguards in the Children, Young Persons, and Their
Families Act 1989 will still apply. The defendant must either be released by Police or
brought before a Youth Court as soon as possible, and the defendant may be
transferred in to the custody of the Ministry of Social Development if they cannot be
brought before a court within 24 hours.
How is the Government changing the bail tests for defendants charged with
serious violent and sexual offences?
Where a defendant charged with a serious violent or sexual offence has a previous
history of serious violent or sexual offending, a reverse burden of proof will apply.
The Government is extending the list of serious violent and sexual offences that
qualify a defendant for a reverse burden of proof to include:
o sexual conduct with a child under 12
o sexual conduct with a young person under 16,
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o kidnapping (including abduction for the purposes of marriage or sexual
connection)
o aggravated burglary and;
o assault with intent to rob.
How is the Government changing the bail tests for defendants charged with
murder?
The Government has also decided that a reverse burden of proof is appropriate for
defendants charged with murder, as this is the most serious offence in New Zealand
law.
A reverse burden proof takes into account the very serious nature of a murder
charge and the impact on the victim’s family and friends, while recognising that the
court is best placed to appropriately weigh the important considerations of public
safety and the defendant’s criminal process rights.
Defendants charged with murder will also be required to satisfy the Court that they
will not commit any offence involving violence while on bail and public safety will be
the court’s paramount consideration in these cases.
What is the Government doing to address the high rate of offending on bail by
defendants charged with serious class A drug offences?
The Bail Amendment Bill will impose a reverse burden of proof in bail decisions for
defendants charged with serious class A drug offences.
The defendant will also be required to satisfy the court they will not commit any drug
dealing offence while on bail.
What is electronically monitored bail (EM bail)?
EM bail is a bail condition that requires a defendant to stay at a particular residence
at all times unless absent for an approved purpose, such as work. Compliance is
monitored through an electronic bracelet attached to the defendant’s ankle.
Who is eligible for EM?
EM bail is intended to be an alternative to remand in custody. Only defendants who
have already been remanded in custody can apply for EM bail.
Why is EM bail being set out in legislation?
The Government believes that it is important for EM bail to be covered by legislation
to ensure that the regime continues to be administered consistently and effectively.
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What do the EM bail provisions in the Bail Amendment Bill cover?
The Bill will ensure that:

Courts have all relevant information about the suitability of the defendant
for EM bail, as Police will be required to submit a report to the court before
EM bail can be granted.

EM bail is not granted inappropriately in situations where the defendant has
a previous history of domestic violence against another person in the EM
bail residence or any other relevant person.

Time spent on EM bail is taken into account in a consistent way when a
defendant is sentenced.
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