Pre-Trial Liberty: Right or Privilege?

Marilyn McMahon1
1Deakin University, Burwood, Australia

Holding those charged with criminal offences in custody prior to trial has traditionally been subject to considerable restrictions. Bail has functioned as the key site that protects citizens from unjustified detention. However, recent statutory reform in many jurisdictions in Australia has constructed bail law to justify depriving more people of their liberty prior to trial. Restricting eligibility for bail and expanding the categories of applicants who carry the ‘reverse onus’ of demonstrating that they should be granted bail has been justified by reference to the need to protect the community. Using developments in Victoria as a case example, this paper analyses how contemporary reform of bail law has constructed risk and notions of ‘community protection’ and re-calibrated the traditional balancing of the rights of accused and the community. This has resulted in pre-trial liberty increasingly being viewed as a privilege, rather than a right.

Dr Marilyn McMahon is Deputy Dean and an Associate Professor in the School of Law at Deakin University. She has undergraduate degrees in law and psychology and postgraduate degrees in both disciplines. Her research is primarily in the areas of criminal law, criminal procedure and evidence. Dr McMahon is a member of the Mental Health Tribunal (Victoria), the Forensic Leave Panel and the Australian Forensic Reference Group (a committee of scientists established within Victoria Police to assist with ‘cold case’ investigations).


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