Former prominent NSW Magistrate and Dean of Law at Southern Cross University, Professor David Heilpern has written to the NSW Chief Magistrate challenging new bail laws including a 12-noon cutoff he described as ‘radical’.

A new bail division designed to streamline bail hearings across the state and deliver consistency in bail outcomes was introduced on July 7, where 6 virtual courtrooms will cover bail hearings from different regions.

The 6 courtrooms which operate via audio-visual link open at 9.30am on weekdays and have a daily cutoff time of 12 noon.

In a letter to NSW Chief Magistrate, Michael Allen, Professor Heilpern says this will lead to more people spending overnight in custody to wait for a bail hearing if they are refused bail by police.

Professor Heilpern challenges the legality of a clause in the Practice Note concerning the 12-noon cutoff for bail hearings.

“As I have previously written, under the previous system fresh custody matters were determined right up to the late afternoon – at least 3.30,” Professor Heilpern wrote.

“If someone was arrested at 10am, the interview and processing can easily take until 1pm or later, and of course the Local Court should, and until now was available if a defendant was refused bail by police.

“No Local Court in NSW has ever had a 12-noon cut-off to my knowledge.

“This means many, many more people will be spending a night in prison without access to the courts.”

Professor Heilpern said section 71 of the Bail Act NSW 2013 is the legislative expectation that the courts must get a detained person before them as a matter of urgency and with speed.

“And the reasoning behind all this is obvious,” Prof Heilpern wrote.

“Where police refuse bail, the courts will often grant it.

“Deprivation of liberty is the ultimate and most serious punishment that is available to the criminal justice system, and innocent people (i.e. those charged but not convicted) must not be detained without access to the courts wherever practicable.

“In my view the 12-noon cut-off is inconsistent with s71, in that it creates a scheme where urgency gives way to arbitrary determination of timing and resources which will inevitably lead to greater levels of incarceration.

“This is entirely within the court’s control.”

Professor Heilpern has previously raised concerns that the centralised bail process will be conducted by Magistrates with limited local knowledge of the area people are from when they are determining bail applications.

“Any scheme of subordinate legislation which means that the resources of the entire court system are driven into a limited funnel with time constrains that increase incarceration ought to be either disallowed by parliament or the subject of challenge in the courts,” he wrote.

“The aim to relieve regional courts of bail matters on a list day may well be sound, but surely it is possible to design a system that ensures greater not lesser access to justice for the person charged but not convicted on their crucial first appearance in court.

“Any systemic process change should have as its absolute litmus test whether or not more or less people will be spending time in cells without access to the courts after bail refusal by police.

“Parliament demands urgency and rapid access to justice, not efficiency and centralisation as the primary focus.

“The 12-noon cut-off will not deliver urgency or access and is thus potentially unlawful as well as untenable.”

For more information on the centralised bail courts Practice Note visit https://nswbar.asn.au/the-bar-association/publications/inbrief/view/ac940ac2bcd9961ec36b1ee51802dd2d or scan the QR code:

This article appeared in the Clarence Valley Independent, 16 July 2025.