The Bail Act 2013 (‘the Act’) was assented to on the 27 May 2013 and is due to commence in May 2014. To see the respective provisions of the Act – click this link. The Legislative Assembly, Second Reading speech is also set out below, to give some insight as to what the government was trying to achieve re this overhaul. One of the major changes includes the removal of offence based presumptions and the adoption of a risk management approach to the grant or refusal of bail.
There is a flow chart within the Act – section 16 – which sets out the key features of a bail decision – see flow chart below. Section 17(3) sets out the factors that the court is to take into account in determining whether there is any unacceptable risk, such as the seriousness of the offence, the person’s criminal history, the likelihood of a custodial sentence, strength of the prosecution case etc.
Should the court grant conditional bail – bail conditions are not to be more onerous than necessary to mitigate the unacceptable risk (section 24(3)). Another major change is the introduction of enforcement conditions (section 30) – where for example, a condition is imposed that the person not consume drugs or alcohol whilst on bail, an enforcement condition could include drug and alcohol testing.
The rules of evidence do not apply to bail determinations – the bail authority may take into account any evidence or information that the bail authority considers credible or trustworthy (section 31). All procedural determinations relating to exercising a function in relation to bail are to be determined on the balance of probabilities (section 32).
The new Act also retains restrictions or provisions (section 74(3)) relating to the making of a fresh application for bail or a release application. In that, a fresh release application cannot be made unless:
- The accused was not legally represented when the initial release application was made and they have now subsequently obtain legal representation.
- Information relevant to the grant of bail is to be presented that was not presented in the previous application.
- Circumstances relevant to the grant of bail have changed since the previous application was made.
- The accused is a child and the previous application was made on a first appearance for the offence (hence, children are able to make two applications for release as of right).
Bail Decision – Flow Chart:
Second Reading Speech – Legislative Assembly 1st May 2013
Bill introduced on motion by Mr Greg Smith, read a first time and printed. Second Reading
Mr GREG SMITH (Epping—Attorney General, and Minister for Justice) [8.03 p.m.]: I move:
That this bill be now read a second time.
The Government is pleased to introduce the Bail Bill 2013. In June 2011, consistent with our pre-election commitments, the Government announced that the New South Wales Law Reform Commission would be undertaking a review of the Bail Act 1978. The Government provided the Law Reform Commission with wide-ranging terms of reference for the review so that it could take a fundamental look at bail laws in New South Wales. The commission’s report on the review was tabled in both Houses of Parliament on 13 June 2012.
In its report the Law Reform Commission noted that the Bail Act 1978 has been amended by more than 80 other Acts since its introduction. Those amendments have made the Act difficult to comprehend and navigate, even for those with legal training. The commission made a number of recommendations proposing a significant overhaul of bail laws including the drafting of a new plain English Bail Act. The Government published its response to the commission’s review in November 2012.
The Government agreed to adopt a large number of the recommendations made by the review. However, rather than implement a justification approach to bail, as favoured by the Law Reform Commission, the Government decided to adopt a risk-management approach to bail decision-making. The bill has been drafted in accordance with the Government response and its key feature is a simple unacceptable-risk test for bail decisions. This test will focus bail decision-making on the identification and mitigation of unacceptable risk, which should result in decisions that better achieve the goals of protection of the community while appropriately safeguarding the rights of the accused person.
A significant feature of the bill is that it operates without the complex scheme of offence- based presumptions contained in the existing Act. Under current bail laws, some offences carry a presumption in favour of bail, others carry a presumption against and there are offences where no presumptions apply. This has added a layer of significant complexity to bail decision-making which the bill’s unacceptable-risk test is intended to avoid. Bail presumptions generally apply based on the particular section under which the accused is charged. This means that they may not reflect the actual seriousness of the alleged offending or the risk the accused poses to the community.
Rather than rely on presumptions, the bill requires that the bail authority consider particular risks when determining bail, namely, the risk that the accused will fail to appear, commit a serious offence, endanger the safety of individuals or the community, or interfere with witnesses. The bill incorporates a number of key considerations that need to be taken into account in deciding whether there are any risks of this nature and whether they are unacceptable. These considerations incorporate matters relevant to the protection of the community and the criminal justice system as well as the rights of the accused person.
If the bail authority is satisfied that the accused person presents an unacceptable risk, it will have to assess whether that risk can be sufficiently mitigated by the imposition of bail conditions. If satisfied that the risk can be sufficiently mitigated, the person will be released to conditional bail. If the risk cannot be so mitigated, bail will be refused.
The Government considers that applying its unacceptable-risk test is a much simpler and more responsive way to make bail decisions than applying the complex scheme of presumptions in the existing Bail Act. Simplifying bail laws so that they are easier to understand and apply is one of the key goals of this bill.
The Law Reform Commission recommended that the bill be drafted in plain English, and Parliamentary Counsel consulted with the Plain English Foundation during the drafting process. I note that the provisions governing the unacceptable-risk test in part 3 of the bill have been distilled into a flowchart which should greatly assist police, legal practitioners and courts when applying the legislation. The bill has also been the subject of targeted consultation with the heads of jurisdiction, key legal stakeholders and police.
Simplifying the decision-making process and focusing on risk rather than offence-based presumptions should also achieve the goal of ensuring that bail decisions are more consistent with the terms of the law. This is an outcome not always evident in decisions under the existing Act. For example, an analysis by the Bureau of Crime Statistics and Research has shown that those who are charged with an offence carrying no presumption in relation to bail face a greater risk of being remanded in custody than those charged with an offence carrying a presumption against bail.
The Government is grateful to the Law Reform Commission for its hard work in undertaking the review of bail laws. Whilst not all of the commission’s recommendations have been adopted, many of its proposals have been incorporated in the bill. The commission’s report has proved invaluable in laying the groundwork for this important piece of reform.
I now turn to the main detail of the bill. Part 1 of the bill sets out preliminary matters. Proposed section 2 of part 1 states that the bill will commence upon proclamation. I pause to note that the Government expects the new Act to commence operation approximately 12 months from the date of its assent.
The Government is aware that its new bail model is a paradigm shift. Therefore, the period between passage of the legislation and its commencement will be used to mount an education and training campaign for police, legal practitioners and courts regarding the new legislation. Further, changes will be made to the courts’ JusticeLink system, the New South Wales Police information technology systems and bail forms to ensure a smooth transition to the new regime. Supporting regulations for the
new legislation will also be drafted in anticipation of its commencement.
Proposed section 3 sets out the purpose of the Act which, at its essence, is to provide a legislative framework for bail decisions. This provision also requires a bail authority making a bail decision under the Act to have regard to the presumption of innocence and the general right to be at liberty. It is appropriate that these important legal principles be considered as part of the bail decision-making process.
Proposed section 4 contains definitions relevant to the Act. Notably, this section defines a “bail authority” as a police officer, an authorised justice or a court. Proposed section 5 defines “proceedings for an offence” to mean criminal proceedings, including committal proceedings, proceedings relating to bail or sentence, and proceedings on an appeal against conviction or sentence. Under the bill proceedings for an offence are generally treated as substantive proceedings unless they relate to bail or are interlocutory in nature.
Proposed section 6 stipulates that proceedings for an offence conclude when a court finally disposes of the proceedings. It makes clear that proceedings do not conclude until a person convicted of an offence has been sentenced. This provision is important as the bill provides that bail, once imposed, remains in place without further order until the proceedings have concluded. Part 2 of the bill sets out general provisions governing bail.
Proposed section 7 of part 2 explains that bail is authority to be at liberty for an offence and can be granted under the Act to a person accused of an offence. It provides that a person in custody who is granted bail is entitled to be released, subject to the provisions of proposed section 14, which I will come to shortly.
Proposed section 8 sets out the bail decisions that can be made, including a decision to release a person without bail; to dispense with bail; to grant bail, with or without conditions; and to refuse bail. Proposed sections 9 to 11 of part 2 provide restrictions on who can make particular bail decisions.
Proposed section 9 provides that a decision to release without bail can only be made by a police officer who has power to make that decision under the Act. Proposed section 10 provides that a decision to dispense with bail can only be made by a court or authorised justice. Proposed section 11 provides that a decision to grant or refuse bail can be made by a police officer, authorised justice or court with power to make the relevant decision under the Act.
Proposed section 12 provides that bail ceases to have effect if it is revoked or substantive proceedings for the offence conclude. This means that if bail is granted to an accused, that bail and any conditions attaching to it continue to apply until the matter is finalised, unless varied or revoked sooner.
The Law Reform Commission recommended implementation of a system of continuous bail to remove the need to formally continue bail every time the accused appears before the court, thereby streamlining court bail procedures. Proposed section 12 (3) allows for the imposition of bail for a specified period should that be considered necessary.
Proposed section 13 provides that a person who is granted bail, or for whom bail is dispensed with, is required to appear in court, and to surrender to the custody of the court, as and when required to do so in the relevant proceedings. Those granted bail are required to appear in accordance with their bail acknowledgement.
Pursuant to proposed section 14 of the bill, an accused person granted bail will have to sign a bail acknowledgement before they can be released. The substantive provisions governing bail acknowledgements are contained in part 4 of the bill. Proposed section 14 also stipulates that a person granted bail will have to comply with any pre-release requirements of bail conditions before being released to bail.
Part 3 of the bill sets out the process for making and varying bail decisions. It implements the Government’s new unacceptable risk test as the primary decision-making tool for bail authorities. Proposed section 16 contains a flowchart which depicts the decision-making process that the bail authority is required to undertake when applying the Government’s unacceptable risk test. Courts and police have been consulted in relation to the bill and feedback provided confirms that the flowchart is a welcome addition to the legislation.
The provisions in division 2 of part 3 reflect the decision-making process depicted in the flowchart. Pursuant to proposed section 17, the first step a bail authority will be required to take before making a bail decision is to consider whether there are any unacceptable risks. In particular, the bail authority will be required to consider whether there is an unacceptable risk that the accused, if released, will fail to appear in any proceedings for the offence; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. If the accused is not in custody at the time of the bail decision, the bail authority is to consider this question as though they were in custody and would be released as a result of the bail decision.
Proposed section 17 (3) sets out an exhaustive list of matters that the bail authority will be required to consider when determining whether or not there is an unacceptable risk. They include matters such as the accused’s background and criminal history, the nature and seriousness of the offence, the strength of the prosecution case and any special vulnerability or needs the accused has because of youth, because they are an Aboriginal or Torres Strait Islander, or because they have a cognitive or mental health impairment. Whilst some of the considerations do not go directly to the existence of one of the risks identified in proposed section 17 (2), they will be relevant to the question of whether or not any such risk is unacceptable, which is part of the determination the bail authority must make.
Proposed section 17 (4) sets out the matters the bail authority will need to consider in determining whether an offence is a serious offence for the purposes of making the unacceptable risk assessment. As I have noted, pursuant to proposed section 3, the bail authority will also need to have regard to the presumption of innocence and the general right to be at liberty.
If a bail authority is satisfied that there is no unacceptable risk then, in accordance with the bail decision flowchart and proposed section 18 of the bill, it can either release the person without bail, dispense with bail or grant unconditional bail. However, if the bail authority is satisfied that there is an unacceptable risk, it can either grant or refuse bail pursuant to proposed section 19. In deciding between these alternatives, the bail authority must determine whether or not the unacceptable risk or risks identified can be sufficiently mitigated by the imposition of bail conditions. If bail conditions can sufficiently mitigate the risk, then conditional bail will be granted.
However, if conditions cannot sufficiently mitigate the risk, then in accordance with the flowchart and proposed section 20, bail will be refused. Proposed section 21 creates a right to release for minor offences, including all fine-only offences and most offences under the Summary Offences Act 1988. Certain summary offences involving knives, laser pointers and others of a relatively serious nature have been excluded from the right to release.
For offences with a right to release, the bail decision flowchart does not apply as bail authorities will not be permitted to refuse bail for these offences. However, the unacceptable risk test will still apply and it will be possible to impose conditions on bail where appropriate. Proposed section 21 (4) provides that an offence will no longer attract a right to release if the accused fails to comply with their bail acknowledgement or a bail condition imposed for the offence. Should this occur, the offence will be treated as any other offence under the Act.
Proposed section 22 provides that a court is not to grant or dispense with bail on an appeal against conviction or sentence to the Court of Criminal Appeal, or on appeal from that court to the High Court, unless it is established that special or exceptional circumstances justify the decision. The same test applies to appeals of this nature under the existing Act and the Law Reform Commission recommended that it be retained.In determining appeals for these matters, the accused will need to establish that special or exceptional circumstances exist to justify a decision not to refuse bail; should that occur, the court will also be required to apply the unacceptable risk test before making the bail decision.
Division 3 of part 3 provides for the imposition of conditions on bail. In its report the Law Reform Commission noted concerns expressed by many stakeholders about the increasing use of bail conditions to address issues related to the welfare of the accused rather than achieving the traditional aims of bail, such as ensuring the accused’s attendance at court. The Government agrees that there needs to be appropriate guidance in the legislation regarding the permissible purposes for bail conditions and the restrictions which apply to them so that unnecessary conditions are not imposed. Clause 24 of the bill therefore sets out a number of rules for bail conditions.
Consistent with the Government’s risk-based approach to bail, it provides that bail conditions can be imposed only for the purpose of mitigating an unacceptable risk. Conditions must be reasonable, proportionate to the alleged offence and appropriate to address the unacceptable risk in relation to which they are imposed. Further, they must not be more onerous than is necessary to mitigate that risk. The court will also need to ensure that compliance with the bail conditions is reasonably practicable.
Proposed sections 25 to 27 set out types of conditions that can be imposed on bail, including conditions imposing requirements as to conduct, the provision of security for bail and the provision of character acknowledgements. These conditions are generally consistent with the types of conditions that can be imposed under the existing Act. Proposed section 28 permits courts and authorised justices to impose an accommodation requirement being a bail condition requiring that suitable accommodation be arranged before a person is released to
bail. The Law Reform Commission recommended that the new Act should provide for a condition of this nature in relation to children, and proposed section 28 implements this recommendation. The Children’s Court has faced a recurring difficulty when dealing with children whom it wishes to release to bail but who do not have suitable accommodation available. Under the existing Act, the court’s only option in those circumstances is to refuse bail to the young person and then reconsider it when accommodation is organised.
However, proposed section 28 allows the court to impose bail, including the accommodation requirement, and, once suitable accommodation has been found, the accused can be released to bail without the matter having to be relisted before the court. The bill incorporates safeguards recommended by the Law Reform Commission including a requirement that the court relist the matter at least every two days for further hearing until the condition is met, to ensure that the person is not detained for an unduly lengthy period beyond the grant of bail. Whilst the provision is presently targeted at children, it includes a regulation-making power to allow for the extension of these requirements to adults, for example, to facilitate the imposition of a residential rehabilitation condition.
As I have noted, under clause 14 of the bill the accused must comply with any pre-release bail requirements before being released to bail. Proposed section 29 provides that the only requirements that can be imposed as pre- release requirements are those relating to accommodation, surrender of passport and provision of security and/or character acknowledgements.
Proposed section 30 of the bill provides for the imposition of enforcement conditions on bail. An enforcement condition is a bail condition that requires the accused to comply, while on bail, with one or more specified kinds of police directions imposed for the purpose of monitoring or enforcing compliance with an underlying bail condition.
The Government introduced amendments to the Bail Act 1978 last year to authorise the imposition of enforcement conditions in response to the Supreme Court’s decision in Lawson and Dunlevy. As noted at the time, the Law Reform Commission had recommended the inclusion of provisions to authorise enforcement conditions in its report on bail. The bill incorporates the same provisions added to the existing Act last year.
Division 4 of part 2 includes evidentiary provisions relating to the exercising of functions in relation to bail consistent with provisions in the existing Act, notably that the rules of evidence do not apply to the exercise of bail functions by a bail authority under the Act and that bail decisions are to be made on the balance of probabilities.
Part 4, division 1, of the bill sets out procedures that must be followed after a bail decision is made. Proposed section 33 sets out requirements for bail acknowledgements. Under the existing Act, the accused is required to sign a bail undertaking; however, the Law Reform Commission recommended that bail undertakings be scrapped and replaced with a new system of notices. The new concept of a bail acknowledgement implements this recommendation.
Pursuant to the bail acknowledgement, the accused will be required to appear before the court at the times specified in a notice of listing provided to them and to notify the court of any change of address. The bail acknowledgement will set out the conditions of bail and include
important information regarding matters such as the variation of a bail decision. The balance of division 1 sets out procedures that must be followed after a bail decision is made. Proposed sections 34 and 35 require the provision of certain notices and information to the accused person where bail is varied or refused.
Proposed sections 36 and 37 impose obligations regarding the provision of information to a person who has agreed to provide bail security or a character acknowledgement under a bail condition. Proposed section 38 requires the bail authority to give reasons for making certain decisions including setting out the unacceptable risks identified.
Division 2 of part 4 remakes a number of important provisions in the existing Act. Proposed section 40 provides for the prosecution to seek a stay of a decision to grant or dispense with bail in relation to a serious offence where such a decision is made on the first appearance by the accused so that a detention application can be made to the Supreme Court.
Proposed section 41 restricts the maximum period for which certain officers and courts can adjourn a matter if bail is refused. Proposed section 42 imposes notice requirements where bail is granted but the accused person is not released.
Part 5 sets out the powers of bail authorities to make and vary bail decisions. Division 1 provides for bail decisions by police officers. Consistent with the existing Act, proposed section 43 provides that a police officer can make a bail decision in relation to a person present at a police station if they are of or above the rank of sergeant, or in charge of the police station at the relevant time.
Proposed sections 44 to 46 recreate existing safeguards in relation to police bail decisions, including a requirement that a bail decision be made as soon as reasonably practicable after a person is charged and that a person who is not released on bail be taken before a court or authorised justice as soon as practicable to be dealt with according to law.
These proposed sections also retain existing requirements in relation to information and facilities that must be provided to accused people by police. I note that proposed section 44 incorporates a provision allowing police to defer a bail decision if a person is intoxicated, as defined in clause 4 of the bill, but stipulates that this deferral must not cause delay in bringing the person before a court or authorised justice.
It is not appropriate for a bail decision to be made in circumstances where a person’s intoxication means they are unlikely to understand it. The existing Act provides that intoxication is a general consideration when making a bail decision; however, the Law Reform Commission recommended against such a consideration being retained. The bill therefore provides for a deferral of a bail decision in these circumstances with appropriate safeguards. A complementary deferral power for courts has also been provided in clause 56 of the bill.
Proposed section 47 implements recommendations made by the Law Reform Commission to clarify the circumstances in which a bail decision of a police officer can be reviewed by a more senior officer. Consistent with those recommendations, it provides that a police officer who is more senior to the one who made the bail decision may review a decision to refuse bail or to impose conditional bail. Such a review can be conducted on the senior officer’s own initiative and must be conducted if requested by the accused person. However, a review is not to be carried out if it would cause delay in bringing the accused person before a court.
Division 2 of part 5 sets out the powers of courts and authorised justices in relation to bail applications. The Law Reform Commission noted that the existing scheme for review by a court of a previous bail decision can be confusing, as it may be unclear whether a new application is being made or a review of the previous decision is being sought.
The commission therefore recommended that the review system be scrapped and that a simplified application regime be implemented whereby three forms of bail application can be made, depending on what outcome is sought. The bill implements this recommendation. Proposed section 49 provides for the accused to make a release application, being an application to have bail granted or dispensed with.
Proposed section 50 provides for the prosecution to make a detention application, being an application to have the accused’s bail refused or revoked. In relation to both of these types of application, the relevant bail authority may, after hearing the application, dispense with bail, grant bail or refuse bail and may vary or affirm a previous bail decision made. A detention application cannot be heard unless the accused has been provided with reasonable notice, subject to the regulations.
Proposed section 51 provides for the third type of application recommended by the Law Reform Commission, being an application for variation of bail conditions. The provision sets out the parties who may make such an application, including the complainant where the accused is charged with a domestic violence offence or where bail is granted on an application for an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007, the person for whose protection the order would be made.
Proposed section 51 (8) makes clear that when a variation application is made by the complainant or person in need of protection, the prosecutor in the matter has standing in relation to the application and must be provided with a reasonable opportunity to be heard. After hearing a variation application, the bail authority may refuse the application or vary the bail decision. However, proposed section 51 (9) stipulates that bail may not be revoked unless the prosecution has requested revocation.
Proposed section 52 replicates existing powers for authorised justices to hear variation applications in relation to bail decisions made by courts. Proposed section 53 implements a recommendation of the Law Reform Commission, providing power to courts and authorised justices to grant or vary bail on a person’s first appearance for an offence without an application having to be made. However, this power can be exercised only if it is to benefit the accused person.
Proposed section 54 clarifies that a court can refuse bail, or affirm a decision to refuse bail, if a person in custody appears before the court and does not make a bail application on a first appearance. Proposed section 55 replicates powers in the existing Act that allow courts and authorised justices to reconsider bail in relation to an accused person who has been granted bail but who has remained in custody because they have not complied with a bail condition.
Proposed section 56 provides courts with the power to defer a bail decision and adjourn the proceedings where an accused person is intoxicated but not for more than 24 hours. I have already outlined the rationale for this provision in relation to proposed section 44. Proposed sections 57 and 58 impose restrictions on the powers of the Local Court and authorised justices in relation to varying bail conditions.
Part 6 sets out the powers of courts and authorised justices to hear bail applications. These provisions have been drafted so as to give effect to the recommendations of the Law Reform Commission while retaining, where possible, the existing powers of courts and authorised justices to hear applications and review bail decisions. Whilst the bill does not retain the concept of reviewing a bail decision, the new application regime and the powers provided to courts to hear bail applications following an earlier bail decision will ensure that the accused and the prosecution have appropriate avenues available to them to have a bail decision reconsidered, either in the same court or in a higher court. I note that these provisions have also been the subject of consultation with the relevant heads of jurisdiction.
Proposed section 61 provides the general rule that a court has power to hear a bail application for an offence if proceedings for the offence are pending before it. However, proposed section 62 provides that a court that convicts a person for an offence may still hear a bail application for the offence after an appeal is lodged against the conviction or sentence, up until the person makes their first appearance in the appeal proceedings.
Proposed division 3 sets out the powers of particular courts to hear bail applications. I will not set out these provisions in detail. However, I note that proposed section 66 allows the Supreme Court to hear a variation application or detention application where a bail decision has already been made by the District Court. This differs from the existing Act whereby decisions of the District Court can be reviewed only by the Court of Criminal Appeal.
Division 4 of part 6 imposes some restrictions on the powers of courts to hear bail applications. These restrictions have largely been carried over from the existing Act. Part 7 contains a number of important safeguards in relation to bail applications, including the requirement that they be dealt with as soon as reasonably practicable.
Proposed section 72 imposes a mandatory requirement on courts and authorised justices to hear an application for release or variation made by an accused person on their first appearance in substantive proceedings for an offence. Proposed section 72 (2) provides that the bail authority is not to decline to hear the application because notice has not been provided to the prosecution, but may adjourn the hearing if it is necessary in the interests of justice. This proposed section implements a recommendation made by the Law Reform Commission.
Proposed section 73 sets out discretionary grounds on which a court may refuse to hear a bail application including because it is frivolous, vexatious or without substance. Proposed section 73 (3), however, preserves the requirement in proposed section 72 to hear applications made on first appearance.
Proposed section 74 largely remakes provisions in existing section 22A of the Bail Act 1978 restricting second or subsequent release applications made to the same court. This has been the most controversial provision, particularly in relation to juveniles.The proposed section also extends these restrictions to second or subsequent detention applications made by the prosecution. It stipulates that a court is to refuse to hear a second or subsequent release or detention application unless there are grounds for a further application.
In relation to release applications, proposed section 74 (3) sets out the grounds for a further application, including where there is relevant information that was not presented on the previous application and where relevant circumstances have changed since the last application.
However, this provision includes an additional ground for a further application, not contained in the existing section 22A, which applies where the accused person is a child and the previous application was made on their first appearance for the offence. The Law Reform Commission’s review noted the particular difficulties that can be faced by legal practitioners when taking instructions from juveniles at the early stages of proceedings. This additional ground for a further application has been included in recognition of that difficulty.
The grounds for a further detention application in proposed section 74 (4) also include a change in circumstances and where there is new information relevant to the grant of bail. An example of circumstances that may qualify as grounds for a further detention application is where the accused enters a plea of guilty or is convicted of the offence following a hearing.
Detention applications have been included in this provision because they are a new form of application, not provided for in the existing Act, and it is appropriate that a second or subsequent application to the same court not be heard unless grounds for the application are demonstrated. This will not prevent the prosecution from making a detention application in another jurisdiction with power to hear such an application. For example, where a detention application is refused in the Local Court, the prosecution can make a further application in the Supreme Court without having to demonstrate grounds for the application.
Part 8 of the bill deals with enforcement of bail requirements. The Law Reform Commission recommended that the legislation set out the options open to police when responding to a breach or threatened breach of bail and the matters that should be considered by police when doing so. Section 77 (1) therefore stipulates the actions that a police officer may take in relation to a person who the officer reasonably believes has failed, or is about to fail, to comply with a bail acknowledgement or bail conditions. In those circumstances the officer may decide to take no action, issue a warning, issue an application notice or court attendance notice to the person requiring them to attend court, arrest the person, or apply for an arrest warrant.
Section 77 (3) sets out the considerations that a police officer is required to take into account when deciding whether to take action, and what action to take. They include the seriousness of the failure or threatened failure, whether the person has a reasonable excuse, the personal attributes and circumstances of the person and whether an alternative to arrest is appropriate in the circumstances. Section 77 (2) also makes clear that if an officer arrests a person for a breach, the officer may decide to discontinue the arrest and instead issue a warning, application notice or court attendance notice.
Section 78 sets out the powers of courts and other bail authorities when dealing with an
alleged breach of bail. Section 78 (2) stipulates that bail may be revoked or refused only when the authority is satisfied that the person has failed or was about to fail to comply with their bail and, having considered all possible alternatives, the decision to refuse bail is justified. Consistent with section 21, which governs offences with a right to release, section 78 (4) provides that bail may be revoked or refused for these offences and that an offence no longer has a right to release if bail is so revoked or refused.
Sections 79 and 80 recreate the offence of failing to appear which the Law Reform Commission recommended should be retained. It will be an offence when a person, without reasonable excuse, fails to appear before a court in accordance with their bail acknowledgement. The offence attracts the same maximum penalty as the offence for which bail is granted, but any penalty imposed is not to exceed three years imprisonment and/or a fine of 30 penalty units, which is $3,300. Part 9 remakes and simplifies provisions in the existing Act relating to bail security requirements. I will not set these provisions out in detail.
Part 10 contains a number of miscellaneous provisions which are generally consistent with ancillary and machinery provisions in the existing Act. Some significant provisions in part 10 include section 89, which restricts publication of certain information regarding association conditions; sections 93 and 94, which are evidentiary provisions; and section 95, which provides for the delegation of functions of bail authorities. Section 100 provides for the repeal of the Bail Act 1978.
Section 101 provides that the new Bail Act is to be reviewed after three years in operation, with the review to consider whether the policy objectives of the Act remain valid and the terms of the Act remain appropriate for securing those objectives. A report on the review is to be tabled in each House of Parliament within 12 months after the end of the period of three years.
Schedule 1 to the bill extends the application of the legislation to bail proceedings under other Acts and to proceedings relating to the administration of sentences. Schedule 2 remakes and simplifies provisions in the existing Act governing the forfeiture of security in bail proceedings. Again, I will not set these provisions out in detail.
Schedule 3 contains savings and transitional provisions. These provisions will ensure that bail granted under the existing Act will continue to have effect when the new legislation commences. Further, they will apply the provisions of the new legislation to bail undertakings and bail applications that are on foot at the time of its commencement.
The Bail Act is referred to in a number of other pieces of legislation and consequential amendments will need to be made to those Acts when the new Act commences. Later in the year the Government will bring forward a further bill to make those consequential amendments. I commend the bill to the House.
Debate adjourned on motion by Mr Paul Lynch and set down as an order of the day for a future day.
