Regulatory impact statement

Executive summary

The test for bail/remand in custody was changed in 2007. The Government considers that this has exposed the public and the administration of justice to an unacceptable level of risk. To rectify this, the Bail Amendment Bill restores the main aspects of the pre-2007 test for bail/remand in custody.

It is estimated that, in combination, the 2007 changes may have accounted for a total reduction of 50 to 100 remand beds. If reversing the changes has an equal and opposite effect, increasing the number of remand beds by 75, this will cost an estimated $7 million per year in additional operating expenditure and a total of $38 million in capital expenditure (the actual costs will depend on wider factors and other policies). However, it is likely that the effect will be greater.

Restoring the pre-2007 test is expected to result in more defendants being remanded in custody with the primary benefits being that those defendants will be prevented from offending in the community and failing to appear in court.

Adequacy statement

The Ministry of Justice considers this regulatory impact statement to be adequate given the time frame.

Status quo and problem

The Government’s law and order policy focuses on public safety. The Government is concerned that changes to the test for bail/remand in custody in 2007 have lowered the threshold for bail, resulting in some defendants, who would have previously been remanded in custody, being released on bail. The Government is concerned that these defendants pose an unacceptable risk of offending while on bail, absconding, or interfering with witnesses or evidence.

Objectives

The overall objective is to protect the public and the administration of justice from defendants who pose an unacceptable risk of offending while on bail, absconding, or interfering with witnesses or evidence.

Alternative options

Decisions on bail are made by judicial officers. The executive’s options for influencing discretionary decisions by judicial officers are limited in accordance with the separation of powers. Such options inevitably have a legislative basis.

Given the specific nature of the Government’s policy (to restore the pre-2007 test for bail/remand in custody), no other options were considered.

Preferred option

The preferred option is to amend the Bail Act 2000 by—

• restoring the pre-2007 test for remand in custody (a risk rather than a real and significant risk); and

• repealing the provision limiting how the courts may take breach of bail conditions into account in bail decisions.

It is difficult to estimate the impact that reversing the 2007 changes will have on the number of people remanded in custody, because the impact of the 2007 amendments is itself uncertain.

From the bail/remand trends, it is estimated that the 2007 amendments (both the change to the test and the avoidance of doubt provision) may have accounted for a total reduction of 50 to 100 remand beds. If repeal of the amendments has an equal and opposite effect, increasing the number of remand beds by 75 (the midpoint between 50 and 100), the estimated cost to the Department of Corrections (Corrections) will be approximately $7 million per year in additional operating expenditure and a total of $38 million in capital expenditure. However, the actual costs will depend on current and planned prison capacity and the interplay of various Government policies impacting on prisoner numbers. The impact of repealing the amendments will be immediate and the full effect is likely to be achieved after approximately 1 year.

An increase in the number of people remanded in custody will also have an impact on court and judicial resources. For example, it is likely there will be additional appeals. The impact is not likely to be significant.

The estimates above are based on repeal of the amendments restoring the pre-2007 status quo. However, repealing the amendments will send a clear signal to the judiciary that the threshold for bail has been raised (and conversely the threshold for remand in custody lowered). As a result, it is likely that the effect on the number of people remanded in custody (and attendant costs) will be greater than simply restoring the status quo. The Ministry of Justice (Justice) will monitor the effect of the changes on the number of people remanded in custody and will provide advice to the Government as trends develop.

The amendments are expected to result in more defendants being remanded in custody. The benefits are that those additional defendants will be prevented from—

• offending in the community. On average, between 1996 and 2002, approximately 20% of defendants offended while on bail. Between 2003 and 2005 the rate of offending was lower, at an average of 16%; or

• failing to appear in court, which causes court delays. Convictions for breach of bail (failing to appear) increased by 76% between 1997 and 2006 (from 3 959 to 7 263). At least part of this increase can be attributed to an increase in the number of people on bail.

In addition to these benefits, repealing the provision limiting how the courts may take breach of bail conditions into account will reinforce the importance of complying with bail conditions and court orders in general, and will provide the courts with a sanction for non-compliance.

Implementation and review

The proposal will be implemented by way of the Bail Amendment Bill to be introduced in December 2008. Justice operational staff will liaise with the Heads of Bench to inform them of the legislative change when it is passed. Justice will keep Corrections and Police informed of the Bill’s progress, to ensure that they are prepared to manage the impact of the policy when the legislation is passed. The public, particularly offenders, will be notified of the proposal by way of Government media release, and media coverage of Parliament and of court hearings.

Justice will conduct ongoing monitoring of the impact of the proposal.

Consultation

Corrections and New Zealand Police were consulted. The Treasury, the Department of the Prime Minister and Cabinet, Te Puni Kōkiri, the Ministry of Pacific Island Affairs, the Office of Ethnic Affairs, and the Ministry of Women’s Affairs were informed. Consultation was by way of provision of the draft Cabinet Committee paper for comment.