[1] In April 2012, the Commission reported that the previous law had become complex, making it difficult even for legal practitioners to understand and apply.

The "justification" decision-making process to detain or release was recommended over the "unacceptable risk" model used in the Bail Act 1977 (Vic.).

[2] In November 2012, the Government decided to create a new Bail Act that was easier to understand, with aims to further protect the community and promote consistent decision-making.

Greens MLC David Shoebridge explained this as Smith wanting a "more rational" set of laws that removed complexity and unfairness, and Gallacher "fighting the reforms".

[4] Max Taylor, a former magistrate, characterised the change in the proposal to a risk-based approach as "the police shouted and the government trembled".

[6][11] In May 2013, on the second reading of the Bail Bill, Attorney General and Minister for Justice Greg Smith described the Government's approach as one of "risk-management".

[14][15] It was noted by a member of the NSW Bar Association that, while they were not "unusual or unfamiliar", not all of the factors the bail authority may consider are directly related to the "unacceptable risk" test.

[16] Shoebridge noted that determination of who bore the burden of proof as to whether an accused person constitutes an unacceptable risk was not well covered in the law.

[17] However, in the decision of R v Lago [2014] NSWSC 660, Hamill J held at [5] that the Bail Act 2013 does not place an onus on either party to prove whether there is or is not an unacceptable risk.

[21][22][23] Don Weatherburn of the NSW Bureau of Crime Statistics and Research has raised concerns that police are using future Court Attendance Notices instead of refusing bail as much as they were before.

At around the same time as the new Bail Act commenced, the NSW Police Force put into practice a new custody system.

[36][37] Lesley Townsley argues that instead of balancing the need for community protection with the rights of the individual, the amendments consider the community's safety as "paramount", and argues that the "show cause" clause introduced by the amendments effectively introduces a "justification" model for release, which Townsley states is "a punitive turn in bail policy which counteracts the weight given to the presumption of innocence and the general right to liberty".

The suggestion was that "a new show cause category [should] include people charged with a serious indictable offence while 'on sentence'.

[44] Brad Hazzard stated that if the amendments from 2014 had been in force, it was "very unlikely" that Monis would have been free,[43] but Greg Barns of the Australian Lawyers Alliance stated that the laws "already undermine fundamental human rights" and that "changes made to those laws in the past two years might not have made any difference".

Opposition Leader Luke Foley stated that "Anybody who has been caught up in surveillance and been assessed by the security agencies as being a risk of carrying out a terrorist-related offence should not be given any benefit of the doubt".