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This is a Bill, not an Act. For current law, see the Acts databases.
Bail Bill 2013
No , 2013
A Bill for
An Act to make provision for bail in connection with criminal and other proceedings.
Clause 1 Bail Bill 2013
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Bail Act 2013. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Purpose of Act 7
(1) The purpose of this Act is to provide a legislative framework for a 8
decision as to whether a person who is accused of an offence or is 9
otherwise required to appear before a court should be detained or 10
released, with or without conditions. 11
(2) A bail authority that makes a bail decision under this Act is to have 12
regard to the presumption of innocence and the general right to be at 13
liberty. 14
4 Definitions 15
(1) In this Act: 16
accommodation requirement--see section 28. 17
accused person or person accused of an offence includes the 18
following: 19
(a) a person who has been charged with or convicted of an offence, 20
(b) a person whose conviction for an offence is stayed, 21
(c) a person in respect of whom proceedings on an appeal against 22
conviction or sentence for the offence are pending, 23
(d) a person in respect of whom a new trial has been ordered to be 24
held for an offence. 25
apprehended violence order has the same meaning as it has in the 26
Crimes (Domestic and Personal Violence) Act 2007. 27
authorised justice means: 28
(a) a registrar of the Local Court or the Children's Court, or 29
(b) an officer of the Department of Attorney General and Justice who 30
is declared, by order of the Minister, whether by reference to his 31
or her name or office, to be an authorised justice for the purposes 32
of this Act, or 33
Page 2
Bail Bill 2013 Clause 4
Preliminary Part 1
(c) a person, or member of a class of persons, declared by the 1
regulations to be an authorised justice for the purposes of this 2
Act. 3
bail--see section 7. 4
bail acknowledgment means the bail acknowledgment for a decision to 5
grant bail given to the accused person under section 33. 6
bail application means: 7
(a) a release application, or 8
(b) a detention application, or 9
(c) a variation application. 10
bail authority means a police officer, an authorised justice or a court. 11
bail condition means a condition of bail. 12
bail decision--see section 8. 13
bail guarantor means any person who enters into a bail security 14
agreement, other than the accused person granted bail. 15
bail money means money agreed to be forfeited under a bail security 16
agreement. 17
bail security means security for the payment of bail money deposited 18
with a bail authority. 19
bail security agreement means an agreement entered into, or required 20
to be entered into, under a security requirement of a bail condition 21
(whether by the accused person or by any other person). 22
character acknowledgment--see section 27. 23
child means a person under the age of 18 years. 24
conclusion of proceedings--see section 6. 25
conduct requirement--see section 25. 26
conviction includes a finding of guilt. 27
correctional centre means a correctional centre within the meaning of 28
the Crimes (Administration of Sentences) Act 1999 and includes a 29
detention centre within the meaning of that Act (subject to the Children 30
(Detention Centres) Act 1987). 31
court means: 32
(a) the Court of Criminal Appeal, the Supreme Court, the Land and 33
Environment Court, the Industrial Court, the District Court or the 34
Local Court, or 35
(b) any other court which, or person who, exercises criminal 36
jurisdiction. 37
detention application--see section 50. 38
enforcement condition--see section 30. 39
Page 3
Clause 4 Bail Bill 2013
Part 1 Preliminary
fail to appear offence means an offence against section 79. 1
fine-only offence means an offence not punishable by a sentence of 2
imprisonment. 3
first appearance means a first appearance of an accused person before 4
a court or authorised justice in proceedings for an offence. 5
function includes a power, authority or duty and exercise a function 6
includes perform a duty. 7
intoxicated person means a person who appears to be seriously affected 8
by alcohol or another drug or a combination of drugs. 9
Local Court includes the Children's Court exercising jurisdiction under 10
the Children (Criminal Proceedings) Act 1987. 11
offence includes an alleged offence. 12
personal violence offence means a personal violence offence of a kind 13
referred to in section 4 (a) of the Crimes (Domestic and Personal 14
Violence) Act 2007. 15
pre-release requirement--see section 29. 16
proceedings for an offence--see section 5. 17
proceedings on an appeal against conviction or sentence--see 18
section 5 (2). 19
release application--see section 49. 20
security requirement--see section 26. 21
substantive proceedings for an offence--see section 5 (3). 22
unacceptable risk--see section 17. 23
variation application--see section 51. 24
(2) A reference in this Act to a person charged with an offence includes a 25
reference to a person who has been issued with a court attendance notice 26
for the offence under the Criminal Procedure Act 1986. 27
(3) In this Act, a power to vary a bail decision includes: 28
(a) a power to revoke the bail decision and substitute a new bail 29
decision, and 30
(b) a power to vary bail conditions. 31
(4) In this Act, a power to vary bail conditions includes: 32
(a) a power to revoke a bail condition, and 33
(b) a power to revoke a bail condition and substitute a new bail 34
condition, and 35
(c) a power to impose a new bail condition. 36
(5) Notes in this Act do not form part of this Act. 37
Page 4
Bail Bill 2013 Clause 5
Preliminary Part 1
5 Proceedings for an offence 1
(1) In this Act, proceedings for an offence means criminal proceedings 2
against a person for an offence (whether summary or indictable), and 3
includes the following: 4
(a) committal proceedings, 5
(b) proceedings relating to bail, 6
(c) proceedings relating to sentence, 7
(d) proceedings on an appeal against conviction or sentence, 8
(e) any other proceedings of a kind prescribed by the regulations. 9
(2) Proceedings on an appeal against conviction or sentence include: 10
(a) proceedings on an application for annulment of a conviction or 11
sentence made under section 4 or 5 of the Crimes (Appeal and 12
Review) Act 2001, and 13
(b) proceedings on an appeal against an order imposed by the Land 14
and Environment Court on conviction for an offence. 15
(3) Proceedings for an offence are substantive unless the proceedings are: 16
(a) proceedings relating to bail, or 17
(b) proceedings on an appeal against any interlocutory judgment or 18
order given in proceedings, or 19
(c) proceedings declared to be non-substantive by the regulations. 20
6 Conclusion of proceedings 21
(1) Proceedings for an offence conclude when a court finally disposes of 22
the proceedings concerned. 23
(2) If a court convicts an accused person of an offence, and a sentence is to 24
be imposed, proceedings for the offence do not conclude until the 25
sentence has been imposed. 26
(3) The committal of a person for trial or sentence is not a conclusion of 27
proceedings for an offence. 28
(4) If a person's conviction or sentence for an offence is stayed on or before 29
the conclusion of proceedings for an offence, the proceedings do not 30
conclude while the stay is in force. 31
(5) The regulations may make further provision for the time at which 32
proceedings for an offence are to be regarded as concluded and this 33
section has effect subject to the regulations. 34
Page 5
Clause 7 Bail Bill 2013
Part 2 General provisions
Part 2 General provisions 1
7 What is bail 2
(1) Bail is authority to be at liberty for an offence. 3
Note. An offence includes an alleged offence. 4
(2) Bail can be granted under this Act to any person accused of an offence. 5
(3) A person who, because of bail, is entitled to be at liberty for an offence 6
is entitled (if in custody) to be released from custody. 7
Note. Limitations to the entitlement to be at liberty are specified in section 14. 8
8 Bail decisions that can be made 9
(1) The following decisions (each of which is a bail decision) can be made 10
under this Act in respect of a person accused of an offence: 11
(a) a decision to release the person without bail for the offence, 12
(b) a decision to dispense with bail for the offence, 13
(c) a decision to grant bail for the offence (with or without the 14
imposition of bail conditions), 15
(d) a decision to refuse bail for the offence. 16
Note. Part 3 sets out how a bail decision is to be made by a bail authority. 17
(2) A bail decision cannot be made if substantive proceedings for the 18
offence have concluded and no further substantive proceedings for the 19
offence are pending before a court. 20
(3) A bail decision can also be made in respect of a person who is not 21
accused of an offence in the circumstances specified in Schedule 1. 22
Note. Schedule 1 provides for the grant of bail where a person is required to 23
appear in proceedings otherwise than because he or she is accused of an 24
offence. In such cases, this Act applies as if the person were accused of an 25
offence. 26
9 Decision to release without bail 27
A decision to release a person without bail can be made only by a police 28
officer with power to make that bail decision under this Act. 29
10 Decision to dispense with bail 30
(1) A decision to dispense with bail can be made only by a court or 31
authorised justice with power to make that bail decision under this Act. 32
(2) If bail for an offence is dispensed with, the person accused of the 33
offence is entitled to be at liberty for the offence, in the same way as if 34
bail had been granted. 35
Page 6
Bail Bill 2013 Clause 11
General provisions Part 2
(3) A court or authorised justice is taken to have dispensed with bail for an 1
offence if: 2
(a) a person accused of the offence appears before the court or 3
authorised justice in proceedings for the offence, and 4
(b) the person has not previously been granted or refused bail for the 5
offence, and 6
(c) the court or authorised justice does not grant or refuse bail for the 7
offence. 8
11 Decision to grant or refuse bail 9
A decision to grant or refuse bail can be made only by a police officer, 10
authorised justice or court with power to make that bail decision under 11
this Act. 12
12 Duration of bail 13
(1) Bail ceases to have effect if: 14
(a) it is revoked, or 15
(b) substantive proceedings for the offence conclude and, at the 16
conclusion of the proceedings, no further substantive 17
proceedings for the offence are pending before a court. 18
(2) Bail is not revived if, after the conclusion of substantive proceedings for 19
an offence, further substantive proceedings for the offence are 20
commenced. However, a new bail decision for the offence can be made 21
under this Act. 22
Note. Proceedings for an offence generally conclude if a person is convicted of 23
and sentenced for the offence. If an appeal against the conviction or sentence 24
is lodged after that conclusion, bail is not revived, but a new bail decision can 25
be made. 26
(3) If bail is granted by a bail authority for a specified period, bail ceases to 27
have effect at the end of that period, unless sooner revoked. 28
(4) An authorised justice or a court before which an accused person is 29
required to appear under a bail acknowledgment may continue bail if: 30
(a) bail would otherwise cease to have effect, and 31
(b) substantive proceedings for the offence have not concluded. 32
13 Requirement to appear 33
(1) A person granted bail, or in respect of whom bail is dispensed with, is 34
required to appear in person before a court, and surrender to the custody 35
of the court, as and when required to do so in proceedings for the 36
offence for which the bail decision is made. 37
Page 7
Clause 14 Bail Bill 2013
Part 2 General provisions
(2) A requirement to appear is: 1
(a) if bail is granted--a requirement to appear in accordance with the 2
accused person's bail acknowledgment, or 3
(b) if bail is dispensed with--a requirement to appear as and when 4
required by the court or by any notice or other process by which 5
a person can be required to appear before a court. 6
(3) The time at which a person is required to appear is the time at which the 7
matter relating to the offence is called at court premises (whether or not 8
the matter is dealt with at that time). 9
(4) This section does not prevent a court before which a person is required 10
to appear from excusing a failure to appear. 11
(5) The regulations may make further provision for the requirement to 12
appear. 13
14 Limitation on entitlement to be at liberty 14
(1) Bail does not entitle a person to be at liberty until: 15
(a) the person signs, and gives to the bail authority, a copy of the bail 16
acknowledgment for the decision to grant bail, and 17
(b) all pre-release requirements of bail conditions have been 18
complied with. 19
Note. Pre-release requirements are dealt with in Part 3. For example, a bail 20
condition may require an accused person, before being released on bail, to 21
surrender his or her passport. Bail acknowledgments are dealt with in Part 4. 22
(2) Bail does not entitle a person to be at liberty on those occasions on 23
which the person is required to appear before a court under his or her 24
bail acknowledgment. 25
(3) Bail does not entitle a person to be at liberty while the person is in 26
custody for some other offence, or reason, because of which the person 27
is not entitled to be at liberty. 28
Note. For example, a person may be in custody for 2 offences. If bail is granted 29
for one offence only, the person is not entitled to be released. 30
Page 8
Bail Bill 2013 Clause 15
Making and variation of bail decisions Part 3
Part 3 Making and variation of bail decisions 1
Division 1 Preliminary 2
15 Bail decision to be made in accordance with this Part 3
(1) A bail decision is to be made in accordance with this Part. 4
(2) This Part applies to the making of a decision to affirm a bail decision, 5
or to vary a bail decision, after hearing a bail application in the same 6
way as it applies to the making of a bail decision. 7
(3) A bail authority must exercise any function in relation to bail conferred 8
by Part 5, 8 or 9 in accordance with this Part, except as otherwise 9
provided by this Act. 10
16 Flow chart--key features of bail decision 11
(1) The following flow chart shows the key features of a bail decision for 12
an offence (other than an offence for which there is a right to release). 13
(2) In the flow chart: 14
conditional release means a decision to grant bail with the imposition 15
of bail conditions. 16
unconditional release means a decision: 17
(a) to release a person without bail, or 18
(b) to dispense with bail, or 19
(c) to grant bail without the imposition of bail conditions. 20
Page 9
Clause 17 Bail Bill 2013
Part 3 Making and variation of bail decisions
Flow chart--bail decision 1
Division 2 How a bail decision is to be made 2
17 Requirement to consider unacceptable risk 3
(1) A bail authority must, before making a bail decision, consider whether 4
there are any unacceptable risks. 5
(2) For the purposes of this Act, an unacceptable risk is an unacceptable 6
risk that an accused person, if released from custody, will: 7
(a) fail to appear at any proceedings for the offence, or 8
(b) commit a serious offence, or 9
Page 10
Bail Bill 2013 Clause 17
Making and variation of bail decisions Part 3
(c) endanger the safety of victims, individuals or the community, or 1
(d) interfere with witnesses or evidence. 2
(3) A bail authority is to consider the following matters, and only the 3
following matters, in deciding whether there is an unacceptable risk: 4
(a) the accused person's background, including criminal history, 5
circumstances and community ties, 6
(b) the nature and seriousness of the offence, 7
(c) the strength of the prosecution case, 8
(d) whether the accused person has a history of violence, 9
(e) whether the accused person has previously committed a serious 10
offence while on bail, 11
(f) whether the accused person has a pattern of non-compliance with 12
bail acknowledgments, bail conditions, apprehended violence 13
orders, parole orders or good behaviour bonds, 14
(g) the length of time the accused person is likely to spend in custody 15
if bail is refused, 16
(h) the likelihood of a custodial sentence being imposed if the 17
accused person is convicted of the offence, 18
(i) if the accused person has been convicted of the offence and 19
proceedings on an appeal against conviction or sentence are 20
pending before a court, whether the appeal has a reasonably 21
arguable prospect of success, 22
(j) any special vulnerability or needs the accused person has 23
including because of youth, being an Aboriginal or Torres Strait 24
Islander, or having a cognitive or mental health impairment, 25
(k) the need for the accused person to be free to prepare for their 26
appearance in court or to obtain legal advice, 27
(l) the need for the accused person to be free for any other lawful 28
reason. 29
(4) The following matters (to the extent relevant) are to be considered in 30
deciding whether an offence is a serious offence (or the seriousness of 31
an offence), but do not limit the matters that can be considered: 32
(a) whether the offence is of a sexual or violent nature or involves the 33
possession or use of an offensive weapon or instrument within 34
the meaning of the Crimes Act 1900, 35
(b) the likely effect of the offence on any victim and on the 36
community generally, 37
(c) the number of offences likely to be committed or for which the 38
person has been granted bail or released on parole. 39
Page 11
Clause 18 Bail Bill 2013
Part 3 Making and variation of bail decisions
(5) If the person is not in custody, the question of whether there are any 1
unacceptable risks is to be decided as if the person were in custody and 2
could be released as a result of the bail decision. 3
18 Bail decisions possible when there are no unacceptable risks 4
The following bail decisions can be made if there are no unacceptable 5
risks: 6
(a) a decision to release the person without bail, 7
(b) a decision to dispense with bail, 8
(c) a decision to grant bail (without the imposition of bail 9
conditions). 10
19 Bail decisions possible when there is an unacceptable risk 11
The following bail decisions can be made if there is an unacceptable 12
risk: 13
(a) a decision to grant bail, 14
(b) a decision to refuse bail. 15
20 When can bail be refused 16
(1) A bail authority may refuse bail for an offence only if the bail authority 17
is satisfied that there is an unacceptable risk that cannot be sufficiently 18
mitigated by the imposition of bail conditions. 19
(2) Bail cannot be refused for an offence for which there is a right to release 20
under this Part. 21
21 Special rule for offences for which there is a right to release 22
(1) The following decisions are the only bail decisions that can be made for 23
an offence for which there is a right to release: 24
(a) a decision to release the person without bail, 25
(b) a decision to dispense with bail, 26
(c) a decision to grant bail to the person (with or without the 27
imposition of bail conditions). 28
(2) There is a right to release for the following offences: 29
(a) a fine-only offence, 30
(b) an offence under the Summary Offences Act 1988, other than an 31
excluded offence, 32
(c) an offence that is being dealt with by conference under Part 5 of 33
the Young Offenders Act 1997. 34
Page 12
Bail Bill 2013 Clause 22
Making and variation of bail decisions Part 3
(3) Each of the following offences under the Summary Offences Act 1988 1
is an excluded offence: 2
(a) an offence under section 5 (obscene exposure) if the person has 3
previously been convicted of an offence under that section, 4
(b) an offence under section 11A (violent disorder) if the person has 5
previously been convicted of an offence under that section or of 6
a personal violence offence, 7
(c) an offence under section 11B, 11C or 11E (offences relating to 8
knives and offensive implements) if the person has previously 9
been convicted of an offence under any of those sections or of a 10
personal violence offence, 11
(d) an offence under section 11FA (custody or use of laser pointer in 12
public place), 13
(e) an offence under section 11G (loitering by convicted child sexual 14
offenders near premises frequented by children). 15
(4) An offence is not an offence for which there is a right to release if the 16
accused person has previously failed to comply with a bail 17
acknowledgment, or a bail condition, of a bail decision for the offence. 18
22 General limitation on court's power to release 19
Despite anything to the contrary in this Act, a court is not to grant bail 20
or dispense with bail for any of the following offences, unless it is 21
established that special or exceptional circumstances exist that justify 22
that bail decision: 23
(a) an offence for which an appeal is pending in the Court of 24
Criminal Appeal against: 25
(i) a conviction on indictment, or 26
(ii) a sentence imposed on conviction on indictment, 27
(b) an offence for which an appeal from the Court of Criminal 28
Appeal is pending in the High Court in relation to an appeal 29
referred to in paragraph (a). 30
Division 3 Bail conditions 31
23 Bail can be granted with or without conditions 32
(1) Bail can be granted subject to conditions or unconditionally. 33
(2) Bail conditions can be imposed when bail is granted or a bail decision 34
is varied. 35
Page 13
Clause 24 Bail Bill 2013
Part 3 Making and variation of bail decisions
24 General rules for bail conditions 1
(1) A bail condition can be imposed only for the purpose of mitigating an 2
unacceptable risk. 3
(2) Bail conditions must be reasonable, proportionate to the offence for 4
which bail is granted, and appropriate to the unacceptable risk in 5
relation to which they are imposed. 6
(3) A bail condition is not to be more onerous than necessary to mitigate the 7
unacceptable risk in relation to which the condition is imposed. 8
(4) Compliance with a bail condition must be reasonably practicable. 9
(5) This section does not apply to enforcement conditions. 10
25 Bail conditions can impose conduct requirements 11
(1) Bail conditions can impose conduct requirements on an accused person. 12
(2) A conduct requirement is a requirement that the accused person do or 13
refrain from doing anything. 14
(3) A conduct requirement cannot require an accused person to provide 15
security for compliance with a bail acknowledgment. Such a 16
requirement (if any) is a security requirement and is subject to the rules 17
for imposing security requirements. 18
26 Bail conditions can require security to be provided 19
(1) A bail condition can require security to be provided for compliance with 20
a bail acknowledgment. 21
(2) For that purpose, a bail condition can include the following 22
requirements: 23
(a) that the accused person, or one or more other persons, or both, 24
enter into an agreement under which the person agrees to forfeit 25
a specified amount of money if the person granted bail fails to 26
appear before a court in accordance with his or her bail 27
acknowledgment, 28
(b) that a specified amount of money be deposited with the bail 29
authority (and agreed to be forfeited under such an agreement if 30
the person granted bail fails to appear before a court in 31
accordance with his or her bail acknowledgment), 32
(c) that acceptable security be deposited with the bail authority as 33
security for the payment of the money agreed to be forfeited 34
under such an agreement. 35
(3) A requirement of a kind referred to in this section is a security 36
requirement. 37
Page 14
Bail Bill 2013 Clause 27
Making and variation of bail decisions Part 3
(4) A decision as to whether security is acceptable security for the purposes 1
of a security requirement is to be made by: 2
(a) the bail authority imposing the bail condition, or 3
(b) the officer or court to whom the bail acknowledgment is given (if 4
no decision has been made under paragraph (a)). 5
(5) A security requirement can be imposed only for the purpose of 6
mitigating an unacceptable risk that the accused person will fail to 7
appear at any proceedings for the offence. 8
(6) A bail authority is not to impose a security requirement unless of the 9
opinion that the purpose for which the security requirement is imposed 10
is not likely to be achieved by imposing one or more conduct 11
requirements. 12
(7) The regulations may make further provision for security requirements 13
and bail security agreements. 14
Note. Part 9 contains further provisions about security requirements. 15
27 Bail conditions can require character acknowledgments 16
(1) Bail conditions can require one or more character acknowledgments to 17
be provided. 18
(2) A character acknowledgment is an acknowledgment, given by an 19
acceptable person, other than the accused person, to the effect that he or 20
she is acquainted with the accused person and that he or she regards the 21
accused person as a responsible person who is likely to comply with his 22
or her bail acknowledgment. 23
(3) A decision as to which person or persons, or class or description of 24
persons, is an acceptable person for a character acknowledgment is to 25
be made by: 26
(a) the bail authority imposing the bail condition, or 27
(b) the officer or court to whom the bail acknowledgment is given (if 28
no decision has been made under paragraph (a)). 29
(4) A bail authority is not to require a character acknowledgment unless of 30
the opinion that the purpose for which the acknowledgment is required 31
is not likely to be achieved by imposing one or more conduct 32
requirements. 33
(5) The regulations may make further provision for character 34
acknowledgments and requirements to provide character 35
acknowledgments. 36
Page 15
Clause 28 Bail Bill 2013
Part 3 Making and variation of bail decisions
28 Bail condition can impose accommodation requirements 1
(1) A bail condition imposed by a court or authorised justice on the grant of 2
bail can require that suitable arrangements be made for the 3
accommodation of the accused person before he or she is released on 4
bail. 5
(2) A requirement of a kind referred to in this section is an accommodation 6
requirement. 7
(3) An accommodation requirement can be imposed only: 8
(a) if the accused person is a child, or 9
(b) in the circumstances authorised by the regulations. 10
(4) The court responsible for hearing bail proceedings must ensure that, if 11
an accommodation requirement is imposed in respect of a child, the 12
matter is re-listed for further hearing at least every 2 days until the 13
accommodation requirement is complied with. 14
(5) The court may direct any officer of a Division of the Government 15
Service to provide information about the action being taken to secure 16
suitable arrangements for accommodation of an accused person. 17
(6) The regulations may make further provision for accommodation 18
requirements. 19
Note. The court can also impose a bail condition requiring the accused person 20
to reside at the relevant accommodation while at liberty on bail (a conduct 21
requirement). 22
29 Limitation on power to impose pre-release requirements 23
(1) The following requirements (and no other requirements) can be 24
imposed by a bail authority as pre-release requirements: 25
(a) a conduct requirement that requires the accused person to 26
surrender his or her passport, 27
(b) a security requirement, 28
(c) a requirement that one or more character acknowledgments be 29
provided, 30
(d) an accommodation requirement. 31
(2) A requirement of a bail condition is a pre-release requirement if the 32
bail condition specifies that the condition must be complied with before 33
the accused person is released on bail. 34
(3) A pre-release requirement (other than an accommodation requirement) 35
is complied with when the requirements specified in the bail condition 36
that imposes the pre-release requirement, and any requirements 37
specified in the regulations, are complied with. 38
Page 16
Bail Bill 2013 Clause 30
Making and variation of bail decisions Part 3
(4) An accommodation requirement is complied with when the court is 1
informed by an appropriate Government representative, in writing or in 2
person, that suitable accommodation has been secured for the accused 3
person. 4
(5) If all pre-release requirements are complied with, the accused person is 5
entitled to be released (subject to the other provisions of this Act) 6
without any rehearing of the matter. 7
(6) In this section, an appropriate Government representative means: 8
(a) the Director-General of the Department of Family and 9
Community Services or a delegate of the Director-General (if the 10
accused person is a child), or 11
(b) the Director-General of the Department of Attorney General and 12
Justice or a delegate of the Director-General, or 13
(c) the Commissioner of Corrective Services or a delegate of the 14
Commissioner, or 15
(d) any other person prescribed by the regulations. 16
30 Bail conditions may include enforcement conditions 17
(1) Bail conditions can include one or more enforcement conditions that are 18
imposed for the purpose of monitoring or enforcing compliance with 19
another bail condition (the underlying bail condition). 20
(2) An enforcement condition is a bail condition that requires the person 21
granted bail to comply, while at liberty on bail, with one or more 22
specified kinds of police directions (given for the purpose of monitoring 23
or enforcing compliance with the underlying bail condition). 24
(3) An enforcement condition can be imposed: 25
(a) by a court only, and 26
(b) only at the request of the prosecutor in the proceedings. 27
(4) An enforcement condition is to specify: 28
(a) the kinds of directions that may be given to the person while at 29
liberty on bail, and 30
(b) the circumstances in which each kind of direction may be given 31
(in a manner that ensures that compliance with the condition is 32
not unduly onerous), and 33
(c) the underlying bail condition or conditions in connection with 34
which each kind of direction may be given. 35
Note. For example, an enforcement condition imposed in connection with an 36
underlying bail condition that requires a person to refrain from consuming drugs 37
or alcohol may require the person to undergo testing for drugs or alcohol as 38
Page 17
Clause 31 Bail Bill 2013
Part 3 Making and variation of bail decisions
directed by a police officer and may include specifications as to when such 1
directions may be given. 2
(5) An enforcement condition can be imposed only if the court considers it 3
reasonable and necessary in the circumstances, having regard to the 4
following: 5
(a) the history of the person granted bail (including criminal history 6
and particularly if the person has a criminal history involving 7
serious offences or a large number of offences), 8
(b) the likelihood or risk of the person committing further offences 9
while at liberty on bail, 10
(c) the extent to which compliance with a direction of a kind 11
specified in the condition may unreasonably affect persons other 12
than the person granted bail. 13
Division 4 Procedural requirements 14
31 Rules of evidence do not apply 15
(1) A bail authority may, for the purpose of exercising any of its functions 16
in relation to bail, take into account any evidence or information that the 17
bail authority considers credible or trustworthy in the circumstances and 18
is not bound by the principles or rules of law regarding the admission of 19
evidence. 20
(2) This section does not apply: 21
(a) to proceedings for an offence in relation to bail, or 22
(b) to proceedings under Schedule 2 (Forfeiture of security). 23
32 Matters to be decided on balance of probabilities 24
(1) Any matter that must be decided by a bail authority in exercising a 25
function in relation to bail is to be decided on the balance of 26
probabilities. 27
(2) This section does not apply to proceedings for an offence in relation to 28
bail. 29
Page 18
Bail Bill 2013 Clause 33
Procedures after decision is made or varied Part 4
Part 4 Procedures after decision is made or varied 1
Division 1 Functions of bail authorities 2
Note. This Division sets out the procedures applicable to all bail decisions. Additional 3
procedures apply to police under Division 1 of Part 5. 4
33 Bail acknowledgment to be given on grant of bail 5
(1) A bail authority that grants bail to an accused person must, as soon as 6
practicable, ensure the person is given a bail acknowledgment for the 7
decision. 8
(2) A bail acknowledgment is a written notice that: 9
(a) requires the accused person to appear before a court, on such day 10
and at such time and place as are from time to time specified in a 11
notice given or sent to the person as prescribed by the regulations, 12
and 13
(b) requires the accused person to notify the court before which the 14
accused person is required to appear of any change in the 15
person's residential address. 16
Note. An accused person is not entitled to be released on bail under Part 2 until 17
he or she signs the bail acknowledgment and gives it to the bail authority. 18
(3) An accused person who is granted bail is under a duty to comply with 19
the requirements of the bail acknowledgment. 20
Note. An accused person who fails to appear as required by the bail 21
acknowledgment commits an offence. Contravention of the requirements of a 22
bail acknowledgment can also lead to bail being revoked. 23
(4) The bail acknowledgment must also: 24
(a) warn the person that committing an offence while on bail could 25
result in a more severe penalty being imposed on conviction for 26
the offence for which bail is granted, and 27
(b) set out the bail conditions (if any), and 28
(c) explain the consequences that may follow if the person fails to 29
comply with his or her bail acknowledgment or bail conditions, 30
and 31
(d) include any information regarding the review or variation of the 32
decision the regulations require to be provided when bail is 33
granted. 34
(5) The bail authority is to take reasonably practicable steps to ensure that 35
the person granted bail understands the bail acknowledgment. 36
(6) The regulations may make further provision for bail acknowledgments. 37
Page 19
Clause 34 Bail Bill 2013
Part 4 Procedures after decision is made or varied
34 Notice of refusal of bail to be given 1
(1) A court or authorised justice that refuses bail or that revokes bail must, 2
as soon as practicable, ensure the accused person is given: 3
(a) a written notice setting out the terms of the decision, and 4
(b) any information regarding the review or variation of the decision 5
the regulations require to be provided when bail is refused. 6
(2) The regulations may make further provision for the requirement to give 7
notice under this section and this section has effect subject to the 8
regulations. 9
35 Notice of variation of bail conditions to be given 10
A bail authority that varies any bail condition must ensure the accused 11
person is given a written notice setting out the terms of the bail 12
condition as varied. 13
36 Information to be provided about bail security agreements 14
(1) A bail authority must take all reasonable steps to ensure that a person 15
who enters into a bail security agreement is made aware of: 16
(a) the obligations of the person under that agreement, and 17
(b) the consequences that may follow if the person granted bail fails 18
to comply with his or her bail acknowledgment. 19
(2) A bail authority must ensure that any person (other than an accused 20
person) who enters into a bail security agreement in compliance with a 21
bail condition is given a written notice setting out the terms of the 22
condition. 23
(3) A bail authority that varies a bail condition that requires entry into a bail 24
security agreement must ensure that any person (other than the accused 25
person) who entered into a bail security agreement in compliance with 26
the bail condition is given a written notice setting out the terms of the 27
condition as varied. 28
37 Information to be provided about character acknowledgments 29
(1) A bail authority must, before a person provides a character 30
acknowledgment, take all reasonable steps to ensure that the person is 31
informed that providing false or misleading information in a character 32
acknowledgment is a serious offence. 33
Note. The provision of false or misleading information to a public authority or to 34
a person exercising functions under a law of the State is an offence under 35
section 307B of the Crimes Act 1900. 36
Page 20
Bail Bill 2013 Clause 38
Procedures after decision is made or varied Part 4
(2) A bail authority must ensure that any person who provides a character 1
acknowledgment is given a written notice setting out the terms of the 2
bail condition under which the acknowledgment is required. 3
(3) A bail authority that varies a bail condition that requires provision of a 4
character acknowledgment must ensure that any person who provided a 5
character acknowledgment in compliance with the bail condition is 6
given a written notice setting out the terms of the condition as varied. 7
38 Reasons for decision to be recorded 8
(1) A bail authority that refuses bail must immediately record the reasons 9
for refusing bail, including the unacceptable risk or risks identified by 10
the bail authority. 11
(2) A bail authority that imposes bail conditions must immediately make a 12
record that: 13
(a) specifies the reasons for not granting bail unconditionally, and 14
(b) sets out the unacceptable risk or risks identified by the bail 15
authority. 16
(3) The record must include the bail authority's reasons for imposing any 17
security requirement or requiring any character acknowledgments. 18
(4) If an accused person requests that certain bail conditions be imposed, 19
and other bail conditions are imposed, the bail authority must record 20
reasons for imposing the other conditions. 21
(5) The regulations may make provision for the making of records under 22
this section and the manner of retaining and otherwise dealing with 23
those records. 24
39 Power to issue warrant of commitment 25
(1) A court or authorised justice may, if bail is refused to an accused person 26
or is revoked, issue a warrant remanding the accused person to a 27
correctional centre or other place of security. 28
(2) A court or authorised justice may, if a person granted bail fails to sign a 29
bail acknowledgment, issue a warrant remanding the accused person to 30
a correctional centre or other place of security until the person signs the 31
acknowledgment concerned. 32
(3) A court or authorised justice may, if a person granted bail has not 33
complied with any pre-release requirement of a bail condition, issue a 34
warrant remanding the accused person to a correctional centre or other 35
place of security until the bail condition is complied with. 36
Page 21
Clause 40 Bail Bill 2013
Part 4 Procedures after decision is made or varied
Division 2 General 1
40 Stay of release decision if detention sought 2
(1) A decision of a court or authorised justice to grant bail or dispense with 3
bail for a serious offence on a first appearance by an accused person is 4
stayed if a police officer or Australian legal practitioner appearing on 5
behalf of the Crown immediately: 6
(a) informs the court or authorised justice that a detention application 7
is to be made to the Supreme Court, and 8
(b) provides the court or authorised justice with a copy of the written 9
approval of an authorised officer or the Director of Public 10
Prosecutions to make a detention application to the Supreme 11
Court if bail is granted or dispensed with. 12
(2) The stay of the decision has effect until one of the following occurs 13
(whichever happens first): 14
(a) the Supreme Court affirms or varies the decision, or substitutes 15
another decision for the bail decision, or refuses to hear the 16
detention application, 17
(b) a police officer or some other person acting on behalf of the 18
Crown files with the Supreme Court, or such other court as may 19
be prescribed by the regulations, notice that the Crown does not 20
intend to proceed with the detention application, 21
(c) 4pm on the day that is 3 business days after the day on which the 22
decision was made. 23
(3) A bail decision does not entitle a person to be at liberty while the 24
decision is stayed. 25
(4) A detention application made to the Supreme Court when a decision is 26
stayed under this section is to be dealt with as expeditiously as possible. 27
(5) In this section: 28
authorised officer means the Commissioner of Police or a member of 29
the NSW Police Force authorised by the Commissioner of Police to 30
exercise the functions of an authorised officer under this section. 31
business day means a day that is not a Saturday, a Sunday or a public 32
holiday throughout New South Wales. 33
serious offence means: 34
(a) the offence of murder or any other offence punishable by 35
imprisonment for life, or 36
(b) an offence under or mentioned in a provision of Part 3 of the 37
Crimes Act 1900 involving sexual intercourse, or an attempt to 38
have sexual intercourse, with a person under the age of 16 years. 39
Page 22
Bail Bill 2013 Clause 41
Procedures after decision is made or varied Part 4
41 Limitation on length of adjournments if bail refused 1
(1) If an accused person is refused bail for an offence: 2
(a) an authorised justice or the Local Court is not to adjourn the 3
hearing of the matter for a period exceeding 8 clear days, except 4
with the consent of the accused person, and 5
(b) an authorised justice who is not a registrar of the Local Court is 6
not to adjourn the hearing of the matter, on a first adjournment, 7
for a period exceeding 3 clear days, and 8
(c) any second or subsequent adjournment of the hearing by an 9
authorised justice who is not a registrar of the Local Court must: 10
(i) be for a period not exceeding 48 hours, and 11
(ii) be to the Local Court constituted by a magistrate, if a 12
magistrate is reasonably available to deal with the case. 13
(2) Subsection (1) does not apply to an adjournment of a hearing if: 14
(a) the accused person is in custody for some other offence, and 15
(b) the authorised justice or court is satisfied that there are reasonable 16
grounds for a longer period of adjournment, and 17
(c) the accused person would be in custody for the other offence for 18
the balance of the longer period. 19
(3) The consent of the accused person is not to be sought or given for the 20
purposes of subsection (1) (a) unless the authorised justice or court first 21
advises the person whether or not bail will be granted to the person and 22
the proposed bail conditions (if any). 23
42 Notice required if accused person granted bail remains in custody 24
(1) A person who has custody of an accused person granted bail must cause 25
a court to be given notice that the accused person is still in custody if the 26
accused person is still in custody because a bail condition has not been 27
complied with. 28
(2) The notice must be given to a court that has power to hear a variation 29
application before the expiration of 8 days after the person is received 30
into custody. 31
(3) A notice is required to be given only once for any particular grant of 32
bail. 33
(4) For the purposes of this section, the person who has custody of an 34
accused person is: 35
(a) the general manager or other person who has the control and 36
management of the correctional centre where the accused person 37
is in custody, or 38
Page 23
Clause 42 Bail Bill 2013
Part 4 Procedures after decision is made or varied
(b) the person in charge of the lock-up or police station where the 1
accused person is in custody. 2
(5) The regulations may make provision for the form of a notice under this 3
section and for the information to accompany the notice. 4
(6) This section does not affect the requirement that an accused person in 5
police custody who is not released on bail granted by a police officer be 6
brought before a court or authorised justice as soon as practicable. 7
Page 24
Bail Bill 2013 Clause 43
Powers to make and vary bail decisions Part 5
Part 5 Powers to make and vary bail decisions 1
Note. Additional powers are conferred by Parts 8 and 9. 2
Division 1 Powers of police officers 3
43 Police power to make bail decision at a police station 4
(1) A police officer may make a bail decision for an offence if the person 5
accused of the offence is present at a police station and the officer is: 6
(a) a police officer of or above the rank of sergeant and present at the 7
police station, or 8
(b) for the time being in charge of the police station. 9
(2) The police officer may: 10
(a) release the person without bail, or 11
(b) grant bail (with or without the imposition of bail conditions), or 12
(c) refuse bail. 13
(3) A police officer cannot make a bail decision if: 14
(a) a bail decision for the offence has been made by a court or 15
authorised justice, or 16
(b) the accused person has already made a first appearance for the 17
offence and bail has been dispensed with. 18
(4) A police officer cannot grant bail or release a person without bail if the 19
accused person has been arrested under a warrant to bring the person 20
before a court for sentencing. 21
(5) Despite subsection (4), a police officer may grant bail to a person 22
arrested as referred to in that subsection if the police officer is satisfied 23
that exceptional circumstances justify the grant of bail. 24
44 Bail decision to be made after person is charged 25
(1) A police officer must ensure that, as soon as reasonably practicable after 26
a person in police custody is charged with an offence: 27
(a) a bail decision is made for the offence by a police officer with 28
power to make a bail decision, or the person is brought before a 29
court or authorised justice to be dealt with according to law, and 30
(b) the person is given the bail eligibility information. 31
(2) A record is to be kept, in the form prescribed by the regulations, 32
verifying that the person charged has been given the bail eligibility 33
information. 34
Page 25
Clause 45 Bail Bill 2013
Part 5 Powers to make and vary bail decisions
(3) It is not necessary to give the bail eligibility information to a person if 1
the person is released without bail. 2
(4) A police officer may defer making a bail decision in respect of an 3
intoxicated person while the person is an intoxicated person, but only if 4
the deferral does not cause delay in bringing the person before a court 5
or authorised justice. 6
(5) In this section, bail eligibility information means written information, 7
of a kind prescribed by the regulations, about eligibility for bail and the 8
entitlement to request a review of a bail decision made by a police 9
officer. 10
45 Procedures after bail decision is made 11
(1) A police officer who grants or refuses bail must, without unreasonable 12
delay: 13
(a) ensure that the accused person is informed that the person may 14
communicate with an Australian legal practitioner or other 15
person of the person's choice about bail, and 16
(b) subject to the regulations, ensure the accused person is provided 17
with any facilities the person requests to enable the person to 18
make that communication that the officer is reasonably able to 19
provide. 20
(2) A police officer is not required to comply with subsection (1) if the 21
officer believes on reasonable grounds that it is necessary to do so in 22
order to prevent: 23
(a) the escape of an accomplice of the accused person, or 24
(b) the loss, destruction or fabrication of evidence relating to any 25
offence. 26
46 Duties if bail refused or accused person not released 27
(1) A police officer must ensure any accused person charged with an 28
offence who is refused bail by a police officer with power to grant bail, 29
or is not released on bail granted by a police officer, is brought before a 30
court or authorised justice as soon as practicable to be dealt with 31
according to law. 32
(2) A police officer must, if it is reasonably practicable to do so, ensure that 33
the facilities prescribed by the regulations are made available to any 34
accused person in police custody who is to be brought, on a first 35
appearance for an offence, before a court or authorised justice more than 36
4 hours after the person came into custody. 37
Page 26
Bail Bill 2013 Clause 47
Powers to make and vary bail decisions Part 5
47 Review of police decision by senior police officer 1
(1) A senior police officer may carry out a review of a bail decision made 2
by a police officer if: 3
(a) bail was refused, or 4
(b) bail conditions were imposed. 5
(2) A senior police officer must carry out a review if the person the subject 6
of the bail decision requests the review. 7
(3) A senior police officer may carry out a review on the police officer's 8
own initiative. 9
(4) A senior police officer may, after carrying out a review of a bail 10
decision: 11
(a) affirm the bail decision, or 12
(b) vary the bail decision. 13
(5) A review is not to be carried out if to do so would cause a delay in 14
bringing the person the subject of the bail decision before a court. 15
(6) A review is not required if the bail decision has previously been 16
reviewed by a senior police officer. 17
(7) In this section, senior police officer means a police officer who has 18
power to make a bail decision and is senior to the police officer who 19
made the relevant bail decision. 20
Division 2 Powers of courts and authorised justices--bail 21
applications 22
48 Powers of courts and authorised justices to hear bail applications 23
(1) A court or authorised justice may make or vary a bail decision, in the 24
manner provided for by this Division, after hearing a bail application. 25
Note. There are 3 types of bail application: 26
(a) a release application (which can be made by the accused person), or 27
(b) a detention application (which can be made by the prosecutor), or 28
(c) a variation application (which can be made by any interested person). 29
(2) A bail application can be made to, and heard by, a court or authorised 30
justice only if the court or authorised justice has power to hear the 31
application. 32
(3) A court or authorised justice has power to hear a bail application in the 33
circumstances specified in Part 6. 34
Note. In general, a court has power to hear a bail application if: 35
(a) proceedings for the offence are pending in the court, or 36
Page 27
Clause 49 Bail Bill 2013
Part 5 Powers to make and vary bail decisions
(b) proceedings on an appeal against a conviction or sentence of the court 1
are pending in another court and the accused person has not made a 2
first appearance before the other court, or 3
(c) the bail decision to be varied was made by the court. 4
However, additional powers, and restrictions on powers, also apply under 5
Part 6. 6
49 Accused person may make release application 7
(1) A person accused of an offence may apply to a court or authorised 8
justice for bail for the offence to be granted or dispensed with. 9
(2) An application under this section is a release application. 10
(3) A court or authorised justice may, after hearing the release application: 11
(a) dispense with bail, or 12
(b) grant bail (with or without the imposition of bail conditions), or 13
(c) refuse bail. 14
(4) If a bail decision has already been made, a court or authorised justice 15
may, after hearing the release application: 16
(a) affirm the bail decision, or 17
(b) vary the bail decision. 18
50 Prosecutor may make detention application 19
(1) The prosecutor in proceedings for an offence may apply to a court or 20
authorised justice for the refusal or revocation of bail for an offence. 21
(2) An application under this section is a detention application. 22
(3) A court or authorised justice may, after hearing the detention 23
application: 24
(a) dispense with bail, or 25
(b) grant bail (with or without the imposition of bail conditions), or 26
(c) refuse bail. 27
(4) If a bail decision has already been made, a court or authorised justice 28
may, after hearing the detention application: 29
(a) affirm the bail decision, or 30
(b) vary the bail decision. 31
(5) A court or authorised justice is not to hear a detention application unless 32
satisfied that the accused person has been given reasonable notice of the 33
application by the prosecutor, subject to the regulations. 34
Page 28
Bail Bill 2013 Clause 51
Powers to make and vary bail decisions Part 5
51 Interested person may make variation application 1
(1) An interested person may apply to a court or authorised justice for a 2
variation of bail conditions. 3
(2) An application under this section is a variation application. 4
(3) Each of the following persons is an interested person: 5
(a) the accused person granted bail, 6
(b) the prosecutor in proceedings for the offence, 7
(c) the complainant for a domestic violence offence, 8
(d) the person for whose protection an order is or would be made, in 9
the case of bail granted on an application for an order under the 10
Crimes (Domestic and Personal Violence) Act 2007, 11
(e) the Attorney General. 12
(4) A court or authorised justice may, after hearing the variation 13
application: 14
(a) refuse the application, or 15
(b) vary the bail decision the subject of the application. 16
(5) An authorised justice may vary a bail decision only to the extent 17
permitted by this Division. 18
(6) A court or authorised justice is not to hear a variation application made 19
by a person other than the accused person unless satisfied that the 20
accused person has been given reasonable notice of the application, 21
subject to the regulations. 22
(7) A court or authorised justice is not to hear a variation application made 23
by a person other than the prosecutor in the proceedings unless satisfied 24
that the prosecutor has been given reasonable notice of the application, 25
subject to the regulations. 26
(8) A court or authorised justice must not vary a bail decision on the 27
application of a person referred to in subsection (3) (c) or (d) unless the 28
prosecutor in the proceedings has been given a reasonable opportunity 29
to be heard on the application. 30
(9) A court must not revoke bail on a variation application unless 31
revocation is requested by the prosecutor in the proceedings. 32
(10) For the purposes of this section, the Commissioner of Police is, in the 33
case of bail granted on an application for an order under the Crimes 34
(Domestic and Personal Violence) Act 2007, taken to be the prosecutor 35
in the proceedings. 36
Page 29
Clause 52 Bail Bill 2013
Part 5 Powers to make and vary bail decisions
52 Powers of authorised justices to vary court decisions 1
(1) An authorised justice may vary a bail decision of a court on a variation 2
application only if the variation application relates to bail conditions 3
that are reviewable by a justice. 4
(2) The following bail conditions are reviewable by a justice: 5
(a) a reporting condition, which is a bail condition that requires the 6
person granted bail to report to a police station while at liberty on 7
bail, 8
(b) a residence condition, which is a bail condition that requires the 9
person granted bail to reside at a specified address, 10
(c) an association condition, which is a bail condition (however 11
expressed) that requires the person granted bail to refrain from 12
associating with a specified person or class of persons or to 13
refrain from frequenting a specified place or class of places, 14
(d) a curfew condition, which is a bail condition (however 15
expressed) that imposes a curfew on the person. 16
(3) After hearing the variation application, the authorised justice may: 17
(a) vary a reporting condition, or 18
(b) vary (but not revoke) a residence condition, an association 19
condition or a curfew condition. 20
(4) An authorised justice is not to vary a bail condition under this section 21
unless satisfied that: 22
(a) in the case of a variation application made by a person other than 23
the accused person--the accused person has been notified of the 24
application and no objection to the application has been made by 25
the accused person, and 26
(b) in the case of a variation application made by a person other than 27
the prosecutor in the proceedings--the prosecutor has been 28
notified of the application and no objection to the application has 29
been made by the prosecutor. 30
(5) An authorised justice is not to vary a bail condition under this section: 31
(a) at any time before the determination of summary or committal 32
proceedings against the accused person, if the bail condition was 33
imposed by the Supreme Court, or 34
(b) at any time after the determination of summary or committal 35
proceedings against the accused person. 36
Page 30
Bail Bill 2013 Clause 53
Powers to make and vary bail decisions Part 5
(6) Subsection (5) does not prevent an authorised justice from varying a 1
reporting condition: 2
(a) to vary the days on which, or the times at which, an accused 3
person must report to a police station, or 4
(b) to vary the police station to which the accused person must 5
report. 6
Division 3 Additional powers of courts and authorised 7
justices 8
53 Discretion to make or vary bail decision without bail application 9
(1) A court or authorised justice with power to hear a bail application may, 10
of its own motion, on a first appearance by an accused person for an 11
offence: 12
(a) grant bail to the person (with or without the imposition of bail 13
conditions), or 14
(b) vary a previous bail decision made for the offence (but not so as 15
to refuse bail). 16
(2) A court or authorised justice may exercise a power under this section 17
only to benefit the accused person. 18
(3) This section does not limit the powers of a court when a bail application 19
is made. 20
54 Discretion to refuse bail if no application is made 21
A court or authorised justice with power to hear a bail application may, 22
of its own motion, refuse bail to an accused person or affirm a decision 23
to refuse bail if: 24
(a) the accused person is in custody and is brought before the court 25
or authorised justice on a first appearance for an offence, and 26
(b) a bail decision has not been made, or bail has been refused, and 27
(c) a bail application is not made. 28
55 Variation of bail decision if accused person remains in custody 29
(1) A court or authorised justice that has power to hear a variation 30
application may conduct a hearing (without application) if an accused 31
person granted bail has remained in custody because a bail condition 32
has not been complied with. 33
(2) The purpose of the hearing is to review the bail conditions imposed on 34
the grant of bail, not the decision to grant bail. 35
Page 31
Clause 56 Bail Bill 2013
Part 5 Powers to make and vary bail decisions
(3) The court or authorised justice may conduct the hearing of its own 1
motion or at the request of the accused person or a police officer. 2
(4) A hearing under this section is not to be conducted at the request of a 3
police officer unless the court is satisfied that the request was made: 4
(a) to benefit the accused person, and 5
(b) with the consent of the accused person. 6
(5) If the court or authorised justice decides to conduct a hearing, this Act 7
applies (subject to the regulations) as if the hearing were a hearing of a 8
variation application, except that the powers of the court or authorised 9
justice are the powers conferred by this section. 10
(6) The court or authorised justice may, after hearing a variation application 11
of a kind referred to in this section: 12
(a) affirm the bail decision (as to the conditions of bail), or 13
(b) vary the bail decision, but not revoke or refuse bail. 14
56 Discretion to defer decision if accused person is intoxicated 15
(1) A court or authorised justice may defer making a bail decision if an 16
accused person is an intoxicated person. 17
(2) For that purpose, the court or authorised justice may: 18
(a) adjourn the hearing of the matter, but not for more than 24 hours, 19
and 20
(b) issue a warrant remanding the accused person to a correctional 21
centre or other place of security until the further hearing of the 22
matter. 23
Division 4 Restrictions on powers of courts and authorised 24
justices 25
Note. Part 6 also provides that a court (other than the Supreme Court) must not hear a bail 26
application if a bail decision has been made by the Supreme Court, unless special facts or 27
circumstances justify hearing the application. 28
57 Bail conditions not to be varied contrary to court direction 29
(1) The Local Court must not vary a bail condition imposed by a higher 30
court that the higher court has directed is not to be varied by the Local 31
Court, unless both the accused person and the prosecutor in the 32
proceedings agree to the variation. 33
(2) An authorised justice must not vary a bail condition imposed by a court 34
if the court that imposed the bail condition has directed that the 35
condition is not to be varied by an authorised justice. 36
Page 32
Bail Bill 2013 Clause 58
Powers to make and vary bail decisions Part 5
(3) This section does not affect the powers of the Local Court or authorised 1
justice under Part 8 or 9. 2
Note. Part 8 permits the Local Court or an authorised justice to revoke or refuse 3
bail for a failure or threatened failure to comply with a bail acknowledgment. Part 4
9 permits bail to be revoked or a bail condition to be varied in connection with 5
security requirements. 6
58 Authorised justice must not vary or impose enforcement conditions 7
(1) An authorised justice must not vary enforcement conditions or impose 8
new enforcement conditions. 9
(2) However, an enforcement condition imposed by a court may be 10
reimposed by an authorised justice who makes or varies a bail decision. 11
Page 33
Clause 59 Bail Bill 2013
Part 6 Powers to hear bail applications
Part 6 Powers to hear bail applications 1
Division 1 Interpretation 2
59 Meaning of pending proceedings 3
In this Part, a reference to proceedings for an offence pending in a court 4
is a reference to substantive proceedings pending in the court. 5
Note. See definition in section 5. 6
60 Part applies to bail applications only 7
To avoid doubt, this Part does not limit the powers of a court or 8
authorised justice under Part 8 or 9. 9
Note. Parts 8 and 9 confer powers to vary bail decisions in connection with 10
enforcement and security requirements. 11
Division 2 General powers 12
61 Power to hear bail application if proceedings are pending in court 13
A court may hear a bail application for an offence if proceedings for the 14
offence are pending in the court. 15
62 Power to hear bail application if sentence or conviction appealed 16
A court may hear a bail application for an offence if: 17
(a) the court has convicted a person of the offence, and 18
(b) proceedings on an appeal against sentence or conviction are 19
pending in another court, and 20
(c) the person has not yet made his or her first appearance before the 21
court in the appeal proceedings. 22
63 Power to hear variation application for own decision 23
(1) A court may hear a variation application for a bail decision made by the 24
court (however constituted). 25
(2) An authorised justice may hear a variation application for a bail 26
decision made by an authorised justice. 27
Division 3 Additional powers 28
64 Powers specific to Local Court and authorised justices 29
Note. The Local Court includes: 30
(a) the Children's Court, and 31
(b) the Drug Court (because of section 24 of the Drug Court Act 1998). 32
Page 34
Bail Bill 2013 Clause 65
Powers to hear bail applications Part 6
(1) The Local Court or an authorised justice may hear a release application 1
or detention application in respect of a person: 2
(a) brought or appearing before the Court or authorised justice and 3
accused of an offence, or 4
(b) not brought or appearing before the Court or authorised justice, if 5
the person is an appellant under Part 3, 4 or 5 of the Crimes 6
(Appeal and Review) Act 2001. 7
(2) Subsection (1) (b) is subject to any exceptions provided for by the 8
regulations. 9
(3) The Local Court may hear a bail application for an offence if a bail 10
decision for the offence has been made by an authorised justice or police 11
officer. 12
(4) The Local Court may hear a variation application for an offence if a bail 13
decision has been made by a higher court. 14
Note. Section 57 permits the Local Court to vary bail conditions imposed by a 15
higher court only with the consent of the accused person and the prosecutor. 16
65 Powers specific to District Court 17
Note. The District Court includes the Drug Court (because of section 24 of the 18
Drug Court Act 1998). 19
The District Court may hear a bail application if: 20
(a) the District Court has made an order under section 104 of the 21
Criminal Procedure Act 1986 for the continuation of proceedings 22
before a magistrate and the accused person is before the District 23
Court, or 24
(b) the District Court has made an order under section 20 (1) of the 25
Children (Criminal Proceedings) Act 1987 for the remission of a 26
matter to the Children's Court and the accused person is before 27
the District Court. 28
66 Powers specific to Supreme Court 29
(1) The Supreme Court may hear a release application for an offence if bail 30
for the offence has been refused by another court, an authorised justice 31
or a police officer. 32
(2) The Supreme Court may hear a detention application or variation 33
application for an offence if a bail decision has been made by the 34
District Court, the Local Court, an authorised justice or a police officer. 35
Page 35
Clause 67 Bail Bill 2013
Part 6 Powers to hear bail applications
67 Powers specific to Court of Criminal Appeal 1
(1) The Court of Criminal Appeal may hear a bail application for an offence 2
if: 3
(a) the Court has ordered a new trial and the new trial has not 4
commenced, or 5
(b) the Court has made an order under section 8A (1) of the Criminal 6
Appeal Act 1912 and the person is before the Court, or 7
(c) the Court has directed a stay of execution of a conviction and the 8
stay is in force, or 9
(d) an appeal from the Court is pending in the High Court, or 10
(e) a bail decision has been made by the Land and Environment 11
Court, the Industrial Court or the Supreme Court. 12
(2) Despite subsection (1) (e), a Judge of the Court of Criminal Appeal 13
sitting alone cannot hear a bail application if a bail decision has been 14
made by the Supreme Court (however constituted) unless the rules 15
made under the Supreme Court Act 1970 permit the Judge to do so. 16
Division 4 Restrictions on powers 17
68 Limited powers when proceedings pending in another court 18
(1) The Local Court or an authorised justice cannot hear a bail application 19
if: 20
(a) proceedings for the offence are pending in a court (other than the 21
Local Court) and the accused person has made his or her first 22
appearance before the court in those proceedings, or 23
(b) summary proceedings for the offence are pending in the Supreme 24
Court, or 25
(c) the accused person has made his or her first appearance before the 26
Supreme Court after being brought up by a writ of habeas corpus 27
following summary conviction for the offence. 28
(2) Subsection (1) does not prevent the hearing of a release application in 29
respect of a person if: 30
(a) the person is arrested under a bench warrant (as referred to in 31
section 312 of the Criminal Procedure Act 1986), or 32
(b) the person's appearance is consequent on the making of an order 33
under section 20 (1) of the Children (Criminal Proceedings) 34
Act 1987 (a provision that allows a court to remit an offence to 35
the Children's Court for sentencing), or 36
Page 36
Bail Bill 2013 Clause 69
Powers to hear bail applications Part 6
(c) proceedings for the offence concerned are continued before a 1
magistrate under section 104 of the Criminal Procedure Act 1986 2
or section 8A (2) of the Criminal Appeal Act 1912. 3
(3) The District Court or the Land and Environment Court cannot hear a 4
bail application if: 5
(a) proceedings for the offence are pending in the Supreme Court or 6
the Court of Criminal Appeal and the accused person has made 7
his or her first appearance before the court in those proceedings, 8
or 9
(b) the accused person has made his or her first appearance before the 10
Supreme Court after being brought up by a writ of habeas corpus 11
following summary conviction for the offence. 12
69 Limited powers when decision made by Supreme Court or Court of 13
Criminal Appeal 14
(1) The Local Court, the District Court, the Land and Environment Court or 15
the Industrial Court (a relevant court) may hear a bail application for an 16
offence when a bail decision has been made by the Supreme Court 17
(however constituted) or the Court of Criminal Appeal only if: 18
(a) proceedings for the offence are pending in the relevant court, and 19
(b) the person appears before the relevant court in those proceedings, 20
and 21
(c) the relevant court is satisfied that special facts or special 22
circumstances justify the hearing of the bail application. 23
(2) This section has effect subject to any exceptions or other limitations 24
prescribed by the regulations. 25
(3) This section does not prevent a court from hearing a detention 26
application under Part 8. 27
Note. Part 8 permits bail to be revoked because of a failure or threatened failure 28
to comply with a bail acknowledgment or bail conditions. 29
70 Authorised justice cannot revoke or grant bail contrary to decision of 30
court 31
(1) An authorised justice cannot hear a release application if a decision to 32
refuse or revoke bail has been made by a court. 33
(2) An authorised justice cannot hear a detention application if a decision 34
to grant bail has been made by a court. 35
(3) This section does not prevent an authorised justice: 36
(a) from hearing a release application made by a person brought or 37
appearing before the authorised justice after having his or her bail 38
Page 37
Clause 70 Bail Bill 2013
Part 6 Powers to hear bail applications
revoked for a failure or threatened failure to comply with a bail 1
acknowledgment or bail condition, or 2
(b) from hearing a detention application under Part 8. 3
Note. Part 8 permits bail to be revoked because of a failure or threatened failure 4
to comply with a bail acknowledgment or bail conditions. 5
Page 38
Bail Bill 2013 Clause 71
General provisions about bail applications Part 7
Part 7 General provisions about bail applications 1
71 Bail applications to be dealt with expeditiously 2
A bail application is to be dealt with as soon as reasonably practicable. 3
72 Application by accused person must be heard on first appearance 4
(1) A court or authorised justice must hear any release application or 5
variation application made by an accused person on a first appearance 6
in substantive proceedings for an offence. 7
(2) The court or authorised justice is not to decline to hear the application 8
because notice of the application has not been given to the prosecutor in 9
the proceedings, but may adjourn the hearing, to enable notice to be 10
given, if the court or authorised justice considers it necessary in the 11
interests of justice. 12
73 Discretionary grounds to refuse to hear bail application 13
(1) A court may refuse to hear a bail application if satisfied that: 14
(a) the application is frivolous or vexatious, or 15
(b) the application is without substance or otherwise has no 16
reasonable prospect of success. 17
(2) A court (other than the Local Court) may refuse to hear a bail 18
application if satisfied that the application could be dealt with as a 19
variation application by the Local Court or an authorised justice. 20
(3) This section does not apply to a release application or a variation 21
application made by an accused person on a first appearance in 22
substantive proceedings for the offence. 23
74 Multiple release or detention applications to same court not permitted 24
(1) A court that refuses bail for an offence, or that affirms a decision to 25
refuse bail for an offence, after hearing a release application is to refuse 26
to hear another release application made by the accused person for the 27
same offence, unless there are grounds for a further release application. 28
(2) A court that grants or dispenses with bail for an offence, or that affirms 29
a decision to grant or dispense with bail for an offence, after hearing a 30
detention application is to refuse to hear another detention application 31
made by the prosecution for the same offence, unless there are grounds 32
for a further detention application. 33
Page 39
Clause 75 Bail Bill 2013
Part 7 General provisions about bail applications
(3) For the purposes of this section, the grounds for a further release 1
application are: 2
(a) the person was not legally represented when the previous 3
application was dealt with and the person now has legal 4
representation, or 5
(b) information relevant to the grant of bail is to be presented in the 6
application that was not presented to the court in the previous 7
application, or 8
(c) circumstances relevant to the grant of bail have changed since the 9
previous application was made, or 10
(d) the person is a child and the previous application was made on a 11
first appearance for the offence. 12
(4) For the purposes of this section, the grounds for a further detention 13
application are: 14
(a) information relevant to the grant of bail is to be presented in the 15
application that was not presented to the court in the previous 16
application, or 17
(b) circumstances relevant to the grant of bail have changed since the 18
previous application was made. 19
(5) In this section, court does not include an authorised justice. 20
75 Fresh application to be dealt with as new hearing 21
Any bail application heard by a court or authorised justice is to be dealt 22
with as a new hearing, and evidence or information may be given in 23
addition to, or in substitution for, the evidence or information given in 24
relation to an earlier bail decision. 25
76 Regulations relating to bail applications 26
The regulations may make provision for the following: 27
(a) the manner of making bail applications, 28
(b) the giving or sending to persons of notices relating to bail 29
applications, 30
(c) the circumstances in which a bail application may be heard in the 31
absence of the accused person or the accused person's legal 32
representative, as if the person or representative were present. 33
Page 40
Bail Bill 2013 Clause 77
Enforcement of bail requirements Part 8
Part 8 Enforcement of bail requirements 1
Note. For enforcement of security given for the grant of bail, see Schedule 2. 2
77 Actions that may be taken to enforce bail requirements 3
(1) A police officer who believes, on reasonable grounds, that a person has 4
failed to comply with, or is about to fail to comply with, a bail 5
acknowledgment or a bail condition, may: 6
(a) decide to take no action in respect of the failure or threatened 7
failure, or 8
(b) issue a warning to the person, or 9
(c) issue a notice to the person (an application notice) that requires 10
the person to appear before a court or authorised justice, or 11
(d) issue a court attendance notice to the person (if the police officer 12
believes the failure is an offence), or 13
(e) arrest the person, without warrant, and take the person as soon as 14
practicable before a court or authorised justice, or 15
(f) apply to an authorised justice for a warrant to arrest the person. 16
(2) However, if a police officer arrests a person, without warrant, because 17
of a failure or threatened failure to comply with a bail acknowledgment 18
or a bail condition, the police officer may decide to discontinue the 19
arrest and release the person (with or without issuing a warning or 20
notice). 21
(3) The following matters are to be considered by a police officer in 22
deciding whether to take action, and what action to take (but do not limit 23
the matters that can be considered): 24
(a) the relative seriousness or triviality of the failure or threatened 25
failure, 26
(b) whether the person has a reasonable excuse for the failure or 27
threatened failure, 28
(c) the personal attributes and circumstances of the person, to the 29
extent known to the police officer, 30
(d) whether an alternative course of action to arrest is appropriate in 31
the circumstances. 32
(4) An authorised justice may, on application by a police officer under this 33
section, issue a warrant to apprehend a person granted bail and bring the 34
person before a court or authorised justice. 35
Page 41
Clause 78 Bail Bill 2013
Part 8 Enforcement of bail requirements
(5) If a warrant for the arrest of a person is issued under this Act or any other 1
Act or law, a police officer must, despite subsection (1), deal with the 2
person in accordance with the warrant. 3
Note. Section 101 of the Law Enforcement (Powers and Responsibilities) Act 4
2002 gives power to a police officer to arrest a person in accordance with a 5
warrant. 6
(6) The regulations may make further provision for application notices. 7
78 Powers of bail authorities 8
(1) A relevant bail authority before which an accused person is brought or 9
appears may, if satisfied that the person has failed or was about to fail 10
to comply with a bail acknowledgment or a bail condition: 11
(a) release the person on the person's original bail, or 12
(b) vary the bail decision that applies to the person. 13
(2) The bail authority may revoke or refuse bail only if satisfied that: 14
(a) the person has failed or was about to fail to comply with a bail 15
acknowledgment or bail conditions, and 16
(b) having considered all possible alternatives, the decision to refuse 17
bail is justified. 18
(3) Part 3 applies to the exercise by the bail authority of its functions under 19
this section. 20
(4) However, a bail authority may revoke or refuse bail under this section 21
even if the offence is an offence for which there is a right of release 22
under Part 3. An offence ceases to be an offence for which there is a 23
right to release if bail is revoked or refused under this section. 24
(5) This section does not give an authorised justice power to vary 25
enforcement conditions or impose new enforcement conditions. 26
However, an enforcement condition imposed by a court may be 27
reimposed by an authorised justice. 28
(6) In this section, a relevant bail authority means: 29
(a) an authorised justice, or 30
(b) the Local Court, or 31
(c) a court before which the person is required to appear by his or her 32
bail acknowledgment. 33
79 Offence of failing to appear 34
(1) A person who, without reasonable excuse, fails to appear before a court 35
in accordance with a bail acknowledgment is guilty of an offence. 36
(2) The onus is on the person granted bail to prove reasonable excuse. 37
Page 42
Bail Bill 2013 Clause 80
Enforcement of bail requirements Part 8
(3) The maximum penalty for an offence against this section (a fail to 1
appear offence) is the maximum penalty for the offence for which bail 2
was granted, subject to this section. 3
(4) A penalty of imprisonment for a fail to appear offence is not to exceed 4
3 years and a monetary penalty for an offence against this section is not 5
to exceed 30 penalty units. 6
80 Proceedings for fail to appear offence 7
(1) Proceedings for a fail to appear offence may be commenced at any time. 8
(2) Proceedings for a fail to appear offence are to be dealt with summarily: 9
(a) by the court dealing with the offence for which the person failed 10
to appear, constituted in the same way, or 11
(b) where the court referred to in paragraph (a) is the Court of 12
Criminal Appeal, the Supreme Court, the Land and Environment 13
Court or the District Court--by that Court constituted in any 14
other way, or 15
(c) in any case--by the Local Court. 16
(3) A fail to appear offence, if dealt with by the Court of Criminal Appeal, 17
is to be disposed of in accordance with: 18
(a) such rules made under the Supreme Court Act 1970 as are 19
expressed to apply to offences against this section, and 20
(b) subject to paragraph (a), Part 5 of Chapter 4 of the Criminal 21
Procedure Act 1986 (as if references to the Supreme Court were 22
references to the Court of Criminal Appeal). 23
Note. The Criminal Procedure Act 1986 makes provision for the summary 24
disposal of matters by the Local Court, the District Court and the Supreme 25
Court. 26
(4) A person convicted by the Supreme Court, the Land and Environment 27
Court, the Industrial Court or the District Court of a fail to appear 28
offence is taken, for the purposes of section 5 (1) of the Criminal Appeal 29
Act 1912, to have been convicted of the offence on indictment. 30
Accordingly, an appeal to the Court of Criminal Appeal is available 31
under that section. 32
81 Giving of directions under enforcement conditions 33
If bail is granted subject to an enforcement condition, a police officer 34
may give a direction of a kind specified in the enforcement condition: 35
(a) in the circumstances specified in the enforcement condition, or 36
(b) at any other time the police officer has a reasonable suspicion that 37
the accused person has contravened the underlying bail condition 38
in connection with which the enforcement condition is imposed. 39
Page 43
Clause 82 Bail Bill 2013
Part 9 General provisions about security requirements
Part 9 General provisions about security 1
requirements 2
82 Deposit of bail money or bail security 3
(1) A receipt is to be given for any bail money or bail security deposited 4
with a bail authority under a security requirement of a bail condition. 5
(2) Any such money or security must, subject to the provisions of any other 6
Act, be dealt with as prescribed by the regulations. 7
(3) An officer or court with whom bail money or bail security is deposited 8
under a security requirement of a bail condition may require the person 9
who provides the money or security to provide information, or to agree 10
to a means, to enable the return of the money or security if it is to be 11
returned. 12
83 Bail guarantor may apply to be discharged of liability 13
(1) A person who enters into a bail security agreement (other than the 14
person granted bail) may at any time apply to a court to be discharged 15
of his or her liability under the agreement. 16
(2) An application may be made to the court that granted bail or to the court 17
of appearance. 18
(3) An authorised justice must, if an application for discharge of liability is 19
made and the person granted bail is not then before the court or 20
otherwise in custody: 21
(a) issue a warrant to apprehend the person and bring the person 22
before the court, or 23
(b) issue a summons for the person's appearance before the court. 24
(4) When the person granted bail appears before the court, the court must, 25
unless satisfied that it would be unjust to do so, direct that the applicant 26
be discharged from the applicant's liability. The applicant is discharged 27
accordingly. 28
(5) A court that discharges an applicant from liability under a bail security 29
agreement may: 30
(a) vary the bail conditions of the person granted bail, and 31
(b) by warrant commit the person to a correctional centre or other 32
place of security until those conditions are complied with. 33
(6) In this section, court of appearance means the court before which a 34
person granted bail is required to appear by that bail. 35
Page 44
Bail Bill 2013 Clause 84
General provisions about security requirements Part 9
84 Bail guarantor must not dispose of bail security 1
A person who enters into a bail security agreement under which he or 2
she deposits bail security must not dispose of the bail security, or cause 3
or allow the bail security to be disposed of, for the purpose of preventing 4
the bail security from being realised. 5
Maximum penalty: imprisonment for 2 years. 6
85 Revocation of bail if bail security no longer intact 7
(1) A court may at any time revoke a person's bail if it appears that any bail 8
security deposited with the bail authority under a bail condition of that 9
bail has ceased to be intact. 10
(2) Bail security ceases to be intact if: 11
(a) it ceases to exist, or 12
(b) its value is diminished, or 13
(c) it ceases to be available as security for any reason (for example, 14
because it ceases to be in the ownership or control of the person 15
by whom it was deposited). 16
(3) The court must not revoke a person's bail under this section unless: 17
(a) it has caused written notice of the proposed revocation to be 18
served on the person, and 19
(b) it has given the person at least 28 days from the date on which the 20
notice was served: 21
(i) to demonstrate to the court that the bail security is still 22
intact, or 23
(ii) to arrange for the deposit of replacement or supplementary 24
security (whether by the same person or another person). 25
(4) The written notice: 26
(a) must contain such information as the regulations require, and 27
(b) must be sent by post to the person at the person's address 28
specified in the relevant bail acknowledgment or, if the person 29
has subsequently notified the court of a change of address, to the 30
person's address most recently notified, and 31
(c) is presumed to have been served on the person at the end of the 32
seventh day after it was posted, unless the person establishes that 33
it was not delivered to that address within that time. 34
Page 45
Clause 86 Bail Bill 2013
Part 9 General provisions about security requirements
86 Offence of indemnifying bail guarantor 1
(1) A person who indemnifies another person, or agrees to indemnify 2
another person, against any forfeiture that the other person may incur 3
under a bail security agreement is guilty of an offence. 4
Maximum penalty on indictment: 30 penalty units or imprisonment for 5
3 years, or both. 6
(2) A person who is indemnified by, or enters into any agreement under 7
which the person is to be indemnified by, another person against any 8
forfeiture the first person may incur under a bail security agreement is 9
guilty of an offence. 10
Maximum penalty on indictment: 30 penalty units or imprisonment for 11
3 years, or both. 12
(3) An offence is committed against this section: 13
(a) whether an agreement is entered into before or after a person to 14
be indemnified enters into a bail security agreement, and 15
(b) whether the compensation is or is to be in money or in money's 16
worth. 17
(4) This section does not apply to any indemnity given by the Minister 18
administering the Children and Young Persons (Care and Protection) 19
Act 1998 against any forfeiture that a member of the Government 20
Service may incur as a result of entering into a bail security agreement 21
for the purpose of fulfilling a condition imposed on the grant of bail to 22
a person under the parental responsibility of that Minister. 23
(5) Proceedings for an offence against this section may be instituted only 24
with the consent of the Minister. 25
87 Bail guarantor does not have right to arrest 26
A person who enters into a bail security agreement does not have a right 27
to arrest an accused person as a result of entering into the agreement. 28
88 Return of bail money and security 29
A court that makes a finding that a person granted bail is guilty or not 30
guilty of an offence must consider whether to make an order for the 31
return of any bail money or bail security deposited in connection with 32
the grant of bail for the offence. 33
Page 46
Bail Bill 2013 Clause 89
Miscellaneous Part 10
Part 10 Miscellaneous 1
89 Restrictions on publication of association conditions 2
(1) A person must not publish or broadcast: 3
(a) the fact that a named person is a prohibited associate of an 4
accused person, or 5
(b) any information calculated to identify a person as a prohibited 6
associate of an accused person. 7
Maximum penalty: 10 penalty units. 8
(2) A person is a prohibited associate of an accused person if a bail 9
condition prohibits or restricts the accused person from associating with 10
the person. 11
(3) Subsection (1) does not apply to the disclosure of information to any of 12
the following persons: 13
(a) the accused person, 14
(b) the prohibited associate of the accused person, 15
(c) any member of the NSW Police Force, 16
(d) any person involved in the administration of bail or of any 17
penalty to which the accused person is subject while on release 18
on bail, 19
(e) any person involved in proceedings for an alleged failure to 20
comply with a bail acknowledgment or a breach of bail 21
conditions, 22
(f) any other person specified in the bail condition as a person to 23
whom such information may be disclosed, 24
(g) any other person to whom such information is required to be 25
disclosed under any other Act or law. 26
(4) In the case of bail granted by a court, subsection (1) does not apply to 27
the publication or broadcasting of an official report of the proceedings 28
of the court. 29
90 Bail for contempt not affected 30
(1) This Act does not affect any power or duty that a court, tribunal or 31
person has to grant bail, or to grant relief in the nature of bail, for any 32
contempt or alleged contempt. 33
(2) Any such power or duty is additional to any power or duty that a court, 34
tribunal or person may have under this Act in relation to any contempt 35
or alleged contempt. 36
Page 47
Clause 91 Bail Bill 2013
Part 10 Miscellaneous
(3) This section does not apply to a contempt or alleged contempt that 1
constitutes an offence and proceedings for which may be commenced 2
by way of information or complaint. 3
91 Powers in relation to writs of habeas corpus not affected 4
This Act does not affect the powers of the Supreme Court in relation to 5
a writ of habeas corpus. 6
92 Time from which accused person is in custody of court 7
A person granted bail for an offence who is present in a courtroom or 8
court premises when the matter is called is taken to be in the custody of 9
the court on and from the calling of the matter concerned until the court 10
completes its dealing with the matter (whether or not the person 11
surrenders to the custody of the court). 12
93 Facilitation of proof of bail acknowledgments and decisions 13
(1) A document purporting to be, or to be a copy of, a bail acknowledgment 14
given to or signed by an accused person, and to be certified by a bail 15
officer to be or to be a copy of the acknowledgment, is admissible in 16
evidence in any proceedings and is prima facie evidence of the terms of 17
the acknowledgment. 18
(2) A document purporting to be a copy of the decision by which a bail 19
condition was imposed, and to be certified by a bail officer to be or to 20
be a copy of the decision, is admissible in evidence in any proceedings 21
and is prima facie evidence of the terms of the bail condition. 22
(3) A certificate purporting to be signed by a bail officer certifying the 23
following is admissible in evidence in any proceedings and is prima 24
facie evidence of the matters certified: 25
(a) that a bail condition has been varied under this Act, 26
(b) that a bail condition has been varied under this Act in a specified 27
manner and has not otherwise been varied. 28
(4) A document purporting to be, or to be a copy of, a bail security 29
agreement, and to be certified by a bail officer to be or to be a copy of a 30
bail security agreement, is admissible in evidence in any proceedings 31
and is prima facie evidence of the making of or entry into the agreement 32
and its terms. 33
(5) A document purporting to be, or to be a copy of, a character 34
acknowledgment, and to be certified by a bail officer to be or to be a 35
copy of the acknowledgment, is admissible in evidence in any 36
proceedings and is prima facie evidence of the making of the 37
acknowledgment and its terms. 38
Page 48
Bail Bill 2013 Clause 94
Miscellaneous Part 10
(6) In any document, the words "bail officer" after a signature are evidence 1
that the person whose signature it purports to be is in fact a bail officer. 2
(7) In this section, bail officer means: 3
(a) an officer of a court that has custody of the copy of the bail 4
acknowledgment applicable to an accused person granted bail, or 5
(b) a police officer with power to make a bail decision under this Act, 6
or 7
(c) a person prescribed by the regulations as a bail officer. 8
94 Facilitation of proof of failure to appear 9
(1) A document purporting to be a copy of any notice given or sent to an 10
accused person granted bail that specified when he or she was required 11
to appear before a court, and to be certified by a court officer to be a 12
copy of the notice, is admissible in evidence in any proceedings and is 13
prima facie evidence of the terms of the notice. 14
(2) A certificate purporting to be signed by a court officer certifying that a 15
notice referred to in subsection (1) was given or sent to the accused 16
person in a specified manner on a specified day is admissible in 17
evidence in any proceedings and is prima facie evidence of the matters 18
certified. 19
(3) A certificate purporting to be signed by a court officer and stating that 20
a specified person did not appear before a specified court, at a specified 21
place, on a specified day and at a specified time or during a specified 22
period, is admissible in evidence in any proceedings and is prima facie 23
evidence of the matters so certified. 24
(4) In any document, the words "court officer" after a signature are 25
evidence that the person whose signature it purports to be is in fact a 26
court officer. 27
(5) In this section, court officer means: 28
(a) a Judge, registrar or assistant registrar of the Court of Criminal 29
Appeal, the Supreme Court, the Land and Environment Court, 30
the Industrial Court, the District Court or the Drug Court, or 31
(b) a Magistrate of the Local Court or a Children's Magistrate, or 32
(c) an authorised justice, or 33
(d) a person prescribed by the regulations as a court officer. 34
Page 49
Clause 95 Bail Bill 2013
Part 10 Miscellaneous
95 Exercise of functions of bail authority by appropriate officers 1
(1) An appropriate officer acting as, or on behalf of, a bail authority may 2
exercise any of the following functions of the bail authority under this 3
Act: 4
(a) giving an accused person a bail acknowledgment or any other 5
notice required to be given by the bail authority, 6
(b) accepting a signed bail acknowledgment from the accused 7
person, 8
(c) accepting a character acknowledgment, 9
(d) entering into a bail security agreement, 10
(e) accepting money or security deposited under a bail condition, 11
(f) accepting any notice that demonstrates compliance with an 12
accommodation requirement, 13
(g) any other functions prescribed by the regulations. 14
(2) In this section, appropriate officer means: 15
(a) a Judge, registrar or assistant registrar of the Court of Criminal 16
Appeal, the Supreme Court, the Land and Environment Court, 17
the Industrial Court, the District Court or the Drug Court, or 18
(b) a Magistrate of the Local Court or a Children's Magistrate, or 19
(c) an authorised justice, or 20
(d) a police officer with power to grant bail, or 21
(e) an officer of the Department of Attorney General and Justice 22
authorised by the Commissioner of Corrective Services for the 23
purposes of this section, or 24
(f) a person prescribed by the regulations as an appropriate officer. 25
96 Court attendance notices and warrants 26
(1) The provisions of Chapter 4 of the Criminal Procedure Act 1986 apply 27
(with any necessary adaptations) in relation to a warrant or court 28
attendance notice issued or to be issued under this Act in the same way 29
as they apply to a warrant or court attendance notice of a corresponding 30
kind issued or to be issued under that Act. 31
(2) This section is subject to the regulations. 32
97 Proceedings for offences 33
(1) Proceedings for an offence under this Act or the regulations, other than 34
an offence for which a maximum penalty on indictment is specified, are 35
to be dealt with summarily before the Local Court. 36
Page 50
Bail Bill 2013 Clause 98
Miscellaneous Part 10
(2) Chapter 5 of the Criminal Procedure Act 1986 applies to an offence 1
under this Act for which a maximum penalty on indictment is specified. 2
(3) This section does not apply to proceedings for an offence under this Act 3
for a fail to appear offence. 4
98 Regulations 5
(1) The Governor may make regulations, not inconsistent with this Act, for 6
or with respect to any matter that by this Act is required or permitted to 7
be prescribed or that is necessary or convenient to be prescribed for 8
carrying out or giving effect to this Act. 9
(2) The regulations may apply, with modifications, any of the provisions of 10
the Road Transport (Safety and Traffic Management) Act 1999 or the 11
Road Transport Act 2013 relating to drug or alcohol testing to or in 12
respect of directions specified in enforcement conditions that require a 13
person to undergo drug or alcohol testing. 14
99 Court rules 15
(1) Rules (being rules not inconsistent with this Act) may be made under 16
the Supreme Court Act 1970 with respect to the powers, authorities, 17
duties or functions of the Supreme Court and the Court of Criminal 18
Appeal in respect of bail. 19
(2) Those rules may prescribe forms to be used in connection with those 20
powers, authorities, duties or functions. If such forms are prescribed, 21
they may be used instead of forms prescribed by regulations made under 22
this Act. 23
100 Repeal of Bail Act 1978 No 161 24
The Bail Act 1978 and any regulations made under that Act are 25
repealed. 26
101 Review of Act 27
(1) The Minister is to review this Act to determine whether the policy 28
objectives of the Act remain valid and whether the terms of the Act 29
remain appropriate for securing those objectives. 30
(2) The review is to be undertaken as soon as possible after the period of 31
3 years from the repeal of the Bail Act 1978. 32
(3) A report on the outcome of the review is to be tabled in each House of 33
Parliament within 12 months after the end of the period of 3 years. 34
Page 51
Bail Bill 2013
Schedule 1 Application of Act to non-offenders
Schedule 1 Application of Act to non-offenders 1
(Section 8) 2
1 Bail decisions in proceedings for the administration of sentence 3
(1) A court may make a bail decision in respect of a person if the person is 4
brought or appears before the court in proceedings for the 5
administration of sentence. 6
(2) The following proceedings are proceedings for the administration of 7
sentence: 8
(a) proceedings under the Crimes (Sentencing Procedure) Act 1999 9
for an alleged failure by the person to comply with the conditions 10
of a good behaviour bond imposed for an offence, 11
(b) proceedings under the Children (Criminal Proceedings) Act 12
1987 for an alleged failure by the person to comply with the 13
conditions of a good behaviour bond or probation imposed for an 14
offence, or a failure to comply with an outcome plan determined 15
under the Young Offenders Act 1997 for an offence, 16
(c) proceedings under the Crimes (Administration of Sentences) Act 17
1999 on an application for the extension or revocation of a 18
community service order imposed on the person for an offence, 19
(d) proceedings under the Children (Community Service Orders) Act 20
1987 on an application for the revocation of a children's 21
community service order imposed on the person for an offence, 22
(e) proceedings of a kind prescribed by the regulations. 23
(3) In such a case, this Act applies, with any modifications provided for by 24
the regulations, as if: 25
(a) the person brought or appearing before the court is accused of an 26
offence (for which there is no right to release under Part 3), and 27
(b) the proceedings for the administration of sentence are 28
proceedings for that offence. 29
2 Bail decisions made under other Acts 30
If another Act confers power on a person, body or court to make a bail 31
decision in respect of a person otherwise than for an offence, this Act 32
applies with any modifications provided for by that other Act. 33
Note. The following are examples of provisions of other Acts that confer a 34
power to grant bail, otherwise than for an offence: 35
(a) section 109U of the Children and Young Persons (Care and Protection) 36
Act 1998, 37
(b) section 71 of the Coroners Act 2009, 38
Page 52
Bail Bill 2013
Application of Act to non-offenders Schedule 1
(c) section 230 of the Criminal Procedure Act 1986. 1
Page 53
Bail Bill 2013
Schedule 2 Forfeiture of security
Schedule 2 Forfeiture of security 1
Part 1 Preliminary 2
1 Definitions 3
(1) In this Schedule: 4
appropriate State authority means such person or body as is declared 5
by the regulations to be the appropriate State authority for the purposes 6
of this Schedule. 7
automatic forfeiture order means an order under clause 3. 8
forfeiture notice means a notice under clause 4. 9
forfeiture order means an order under clause 2 and includes, unless the 10
context otherwise requires, an automatic forfeiture order. 11
person affected by a forfeiture order means the person whose bail 12
money is forfeited to the Crown by operation of the order. 13
statutory review period, for a forfeiture order, means the period of 14
28 days after service of a forfeiture notice for the order during which a 15
person affected by the order may file an objection to the confirmation 16
of the order. 17
(2) For the purposes of this Schedule, bail money is associated with a bail 18
acknowledgment if the bail money is money agreed to be forfeited 19
under a bail security agreement if an accused person fails to appear 20
before a court in accordance with the bail acknowledgment. 21
Part 2 Forfeiture orders 22
2 Court may make forfeiture order if accused person fails to appear 23
(1) A court may make an order requiring the forfeiture to the Crown of any 24
bail money associated with a bail acknowledgment if satisfied that a 25
person granted bail has failed to appear before a court in accordance 26
with the bail acknowledgment. 27
(2) An order under this clause is a forfeiture order. 28
(3) A forfeiture order may be made only by: 29
(a) the court that granted bail, or 30
(b) the court before which the person granted bail was required to 31
appear under the bail acknowledgment. 32
(4) A forfeiture order may not be made if more than 3 years have elapsed 33
since the accused person allegedly failed to appear before the court in 34
accordance with the relevant bail acknowledgment. 35
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Forfeiture of security Schedule 2
3 Forfeiture after conviction for offence of failing to appear 1
(1) A court is taken to have made a forfeiture order under this Schedule in 2
respect of any bail money associated with a bail acknowledgment if the 3
court convicts a person of a fail to appear offence in connection with the 4
bail acknowledgment. 5
(2) An order under this clause is an automatic forfeiture order. 6
(3) This clause does not affect the power of a court to make a forfeiture 7
order in relation to a person who has not been convicted of a fail to 8
appear offence. 9
4 Persons affected to be notified of forfeiture order 10
(1) The registrar of the court by which a forfeiture order is made must cause 11
written notice of the making of the order to be served on each person 12
affected by the order as soon as practicable after it is made. 13
(2) A notice under this clause is a forfeiture notice. 14
(3) A forfeiture notice: 15
(a) must contain such information as the regulations require, and 16
(b) must be sent by post to the person at the person's address 17
specified in the relevant bail acknowledgment or, if the person 18
has subsequently notified the court of a change of address, to the 19
person's address most recently notified, and 20
(c) is presumed to have been served on the person at the end of the 21
seventh day after it was posted, unless the person establishes that 22
it was not delivered to that address within that time. 23
(4) This clause ceases to apply if, before the notice is sent, an oral objection 24
to the confirmation of the forfeiture order is made under this Part. 25
5 Formal objection to confirmation of forfeiture order 26
(1) Any person affected by a forfeiture order may file an objection to the 27
confirmation of the order in the Local Court. 28
(2) Such an objection may not be made more than 28 days after service of 29
the forfeiture notice issued for the forfeiture order. 30
(3) An objection must be made in accordance with rules of court and must 31
include the grounds on which the applicant intends to rely. 32
(4) The Local Court must ensure that notice of such an objection is given to 33
the appropriate State authority in accordance with the regulations. 34
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Schedule 2 Forfeiture of security
6 Hearing of formal objection to confirmation of forfeiture order 1
(1) If an objection to a forfeiture order is duly made to the Local Court, the 2
Local Court must conduct a hearing to determine whether or not the 3
order should be confirmed. 4
(2) After conducting a hearing, the Local Court must confirm the forfeiture 5
order unless it is satisfied that the accused person did not fail to comply 6
with the relevant bail acknowledgment, in which case it must set the 7
forfeiture order aside. 8
(3) However, if it is satisfied that in the circumstances of the case it would 9
be unjust for the forfeiture order to be confirmed in full in respect of a 10
particular person affected by the order, the Local Court: 11
(a) may vary the order so as to reduce the amount of bail money to 12
be forfeited by that person, and 13
(b) in that event, must confirm the order as so varied. 14
(4) The Local Court may be satisfied that it would be unjust for a forfeiture 15
order to be confirmed in full in respect of a particular bail guarantor if 16
it is satisfied that the guarantor took all reasonable steps to ensure that 17
the person granted bail complied with the bail acknowledgment. 18
(5) This clause does not apply in respect of an automatic forfeiture order. 19
7 Hearing of formal objection to automatic forfeiture order 20
(1) If an objection to the confirmation of an automatic forfeiture order is 21
duly made to the Local Court, the Local Court must conduct a hearing 22
to determine whether or not the order should be confirmed. 23
(2) After conducting a hearing, the Local Court must confirm the forfeiture 24
order unless it is satisfied as referred to in subclause (3). 25
(3) If the Local Court is satisfied that in the circumstances of the case it 26
would be unjust for the forfeiture order to be confirmed in full in respect 27
of a particular person affected by the order, the Local Court: 28
(a) may vary the order so as to reduce the amount of bail money to 29
be forfeited by that person, and 30
(b) in that event, must confirm the order as so varied. 31
(4) The Local Court may be satisfied that it would be unjust for a forfeiture 32
order to be confirmed in full in respect of a particular bail guarantor if 33
it is satisfied that the guarantor took all reasonable steps to ensure that 34
the accused person complied with the relevant bail acknowledgment. 35
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Bail Bill 2013
Forfeiture of security Schedule 2
8 Informal objection to forfeiture order 1
(1) If, after a forfeiture order is made but before a forfeiture notice is served, 2
a person affected by the order appears before the court by which the 3
order was made, that person may make an oral objection to the court 4
against the confirmation of the order. 5
(2) The court must ensure that notice of the objection is given to the 6
appropriate State authority in accordance with the regulations. 7
(3) The court may deal with the objection as if it had been an objection filed 8
in the Local Court in response to a forfeiture notice. 9
9 When forfeiture order takes effect 10
(1) A forfeiture order takes effect: 11
(a) at the expiry of the statutory review period, or 12
(b) if an objection to the confirmation of the order is duly made to a 13
court before the expiry of the statutory review period, when the 14
order is confirmed by the court. 15
(2) A forfeiture order does not take effect if it is set aside under this 16
Schedule. 17
(3) No action may be taken to enforce a forfeiture order until the date the 18
order takes effect. 19
10 Effect of forfeiture order 20
(1) As soon as a forfeiture order takes effect, the bail money to which it 21
relates: 22
(a) is forfeited to the Crown, in the case of bail money that is 23
deposited with a bail authority, or 24
(b) becomes payable to the Crown, in the case of bail money that is 25
agreed to be paid to an authorised officer or court. 26
(2) In the case of unpaid bail money, any bail security becomes enforceable 27
in accordance with its terms. 28
(3) No action is to be taken to enforce any bail security the subject of an 29
unconfirmed forfeiture order until 12 months after the date on which the 30
order was made. 31
(4) In this clause, an unconfirmed forfeiture order means any forfeiture 32
order that was not objected to during the statutory review period. 33
11 Persons affected to be notified that forfeiture order has taken effect 34
(1) As soon as practicable after a forfeiture order takes effect, the registrar 35
of the court by which the order was made must cause written notice that 36
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Schedule 2 Forfeiture of security
the order has taken effect to be served on each person affected by the 1
order. 2
(2) The notice: 3
(a) must contain such information as the regulations require, and 4
(b) must be sent by post to the person at the person's address 5
specified in the relevant bail acknowledgment or, if the person 6
has subsequently notified the court of a change of address, to the 7
person's address most recently notified, and 8
(c) is presumed to have been served on the person at the end of the 9
seventh day after it was posted, unless the person establishes that 10
it was not delivered to that address within that time. 11
12 Notice of forfeiture order for enforcement 12
(1) The registrar of the court by which a forfeiture order is made is to notify 13
the State Debt Recovery Office if any bail money to which a forfeiture 14
order relates remains unpaid after the order takes effect and of the 15
amount of bail money that remains unpaid as at the date of the notice. 16
(2) A registrar who gives notice under this clause must, on the request of 17
the State Debt Recovery Office, provide the State Debt Recovery Office 18
with one or more of the following: 19
(a) a copy of the forfeiture order, 20
(b) a copy of the bail decision and the relevant bail security 21
agreement, 22
(c) a copy of all documents evidencing any relevant bail security, 23
(d) a copy of a certificate, prepared by the registrar who made the 24
notification, indicating the amount of bail money that remained 25
unpaid as at the date notification was given. 26
(3) A copy of the certificate referred to in subclause (2) (d) is admissible in 27
any legal proceedings and is evidence of the matters stated in the 28
certificate. 29
13 Payment of forfeited bail money 30
(1) Bail money that becomes payable to the Crown as a consequence of a 31
forfeiture order taking effect must be paid: 32
(a) if paid before the State Debt Recovery Office is notified of the 33
order--to the registrar of the court by which the order was made, 34
or 35
(b) if paid after the State Debt Recovery Office is notified of the 36
order--to the State Debt Recovery Office. 37
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Bail Bill 2013
Forfeiture of security Schedule 2
(2) A bail guarantor by whom an amount of bail money is payable is 1
entitled to the return of any bail security deposited for that amount if he 2
or she pays that amount in money to the court by which the forfeiture 3
order was made or to the State Debt Recovery Office, as the case 4
requires. 5
Part 3 Power to set aside forfeiture orders 6
14 Application to set aside forfeiture order 7
(1) Any person affected by a forfeiture order may file in the Local Court an 8
application to have the order set aside. 9
(2) An application may be made by the person only if the person did not 10
object to the confirmation of the forfeiture order within the statutory 11
review period. 12
(3) An application must be made within 12 months after the date on which 13
the forfeiture order was made. 14
(4) An application must be made in accordance with rules of court and must 15
include the grounds on which the applicant intends to rely. 16
(5) The relevant registrar of the Local Court must ensure that copies of such 17
an application are given: 18
(a) to the appropriate State authority, and 19
(b) to the State Debt Recovery Office. 20
(6) Action to enforce the order may not be commenced or continued until 21
proceedings on an application under this clause are finally determined. 22
15 Hearing of application to set aside forfeiture order 23
(1) If an application to have a forfeiture order set aside is duly made to the 24
Local Court and the Court is satisfied that the applicant can be excused 25
for failing to lodge an objection to the order, the Court must conduct a 26
hearing to determine whether or not the order should be set aside. 27
(2) An applicant can be excused for failing to lodge an objection to a 28
forfeiture order if and only if: 29
(a) notice of the making of the order was not served on the applicant, 30
and 31
(b) the applicant did not otherwise become aware that the order had 32
been made before the expiry of the statutory review period. 33
(3) After conducting a hearing on the application, the Local Court has the 34
same powers to confirm or set aside the order, or vary the order, as it has 35
in respect of an objection to the making of a forfeiture order (subject to 36
Page 59
Bail Bill 2013
Schedule 2 Forfeiture of security
the same limitations as would apply if the application had been an 1
objection). 2
Note. See clauses 6 and 7. 3
(4) Notice of the Local Court's determination of the application is to be 4
given to the State Debt Recovery Office. 5
Part 4 Miscellaneous 6
16 Effect of setting aside forfeiture order 7
(1) If a court sets aside a forfeiture order, each person affected by the order 8
is entitled to the return of: 9
(a) any bail money or bail security that has been provided by that 10
person, or seized from that person, in relation to the bail 11
acknowledgment to which the order relates, and 12
(b) the proceeds of sale of any bail security so provided or seized. 13
(2) If a court varies a forfeiture order so as to reduce the amount of money 14
forfeited by a particular person affected by the order, that person is 15
entitled to the return of: 16
(a) any bail money or bail security that has been provided by that 17
person, or seized from that person, in relation to the bail 18
acknowledgment to which the order relates, and 19
(b) the proceeds of sale of any bail security so provided or seized, 20
to the extent to which the amount of any such bail money, bail security 21
or proceeds of sale exceeds the reduced amount of money forfeited. 22
(3) A court that sets aside a forfeiture order may make such orders as are 23
necessary to effect the return of any such bail money, bail security or 24
proceeds of sale. 25
(4) The Consolidated Fund is appropriated to the extent necessary to enable 26
money that has been paid into that Fund to be returned in accordance 27
with this clause. 28
17 Appeals 29
(1) An appeal may be made to the District Court under Part 3 of the Crimes 30
(Appeal and Review) Act 2001 against: 31
(a) the Local Court's determination of an objection to a forfeiture 32
order, or 33
(b) the Local Court's determination of an application to have a 34
forfeiture order set aside. 35
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Bail Bill 2013
Forfeiture of security Schedule 2
(2) Part 3 of the Crimes (Appeal and Review) Act 2001 applies, with such 1
modifications as are made by or in accordance with the regulations 2
under this Act, to the appeal as if the Local Court's determination were 3
a determination of a court attendance notice under Part 2 of Chapter 4 4
of the Criminal Procedure Act 1986. 5
(3) The relevant registrar of the Local Court must ensure that notice of the 6
appeal is given: 7
(a) to the appropriate State authority, and 8
(b) to the State Debt Recovery Office. 9
(4) Action to enforce the order may not be commenced or continued until 10
proceedings on an appeal under this clause are finally determined. 11
18 Court of Criminal Appeal may authorise other courts to take action 12
If a person granted bail is under a duty to appear before the Court of 13
Criminal Appeal in connection with an appeal: 14
(a) the Court of Criminal Appeal may instead authorise the court 15
from which the appeal arose to take any action under this 16
Schedule that the Court of Criminal Appeal is authorised to take, 17
and 18
(b) in that event, the court from which the appeal arose may take such 19
action. 20
19 Crown is a party to forfeiture proceedings 21
The Crown, and the appropriate State authority, are entitled to appear 22
and be heard at, and are taken to be parties to, all proceedings under this 23
Schedule. 24
Page 61
Bail Bill 2013
Schedule 3 Savings, transitional and other provisions
Schedule 3 Savings, transitional and other 1
provisions 2
Part 1 General 3
1 Regulations 4
(1) The regulations may contain provisions of a savings or transitional 5
nature consequent on the enactment of this Act or any Act that amends 6
this Act. 7
(2) Any such provision may, if the regulations so provide, take effect from 8
the date of assent to the Act concerned or a later date. 9
(3) To the extent to which any such provision takes effect from a date that 10
is earlier than the date of its publication on the NSW legislation website, 11
the provision does not operate so as: 12
(a) to affect, in a manner prejudicial to any person (other than the 13
State or an authority of the State), the rights of that person 14
existing before the date of its publication, or 15
(b) to impose liabilities on any person (other than the State or an 16
authority of the State) in respect of anything done or omitted to 17
be done before the date of its publication. 18
Part 2 Provisions consequent on enactment of this 19
Act 20
2 Definitions 21
In this Part: 22
existing security agreement means an agreement of a kind referred to 23
in section 36 (2) (c)-(h) of the 1978 Act entered into before the repeal 24
of that Act. 25
the 1978 Act means the Bail Act 1978 as in force immediately before its 26
repeal by this Act. 27
3 Saving of actions taken under 1978 Act 28
(1) Any act, matter or thing that, immediately before the repeal of the 1978 29
Act, had effect under that Act continues to have effect under this Act. 30
(2) In particular, any bail granted under the 1978 Act that had effect 31
immediately before the repeal of that Act is taken, on that repeal: 32
(a) to have been granted under this Act, and 33
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Bail Bill 2013
Savings, transitional and other provisions Schedule 3
(b) to continue in force until it would have ceased to have effect 1
under the 1978 Act, unless sooner revoked under this Act. 2
(3) A power under this Act to continue bail extends to bail referred to in 3
subclause (2). 4
(4) A power under this Act to revoke or vary a bail decision extends to a 5
decision to grant or refuse bail, or to dispense with the requirement for 6
bail, made under the 1978 Act. 7
(5) Any variation made to a bail condition under the 1978 Act has effect on 8
the repeal of the 1978 Act as if it had been made under this Act. 9
4 Bail undertakings given under 1978 Act 10
(1) A bail undertaking given by a person under section 34 of the 1978 Act 11
and in force on the repeal of that Act is taken, on that repeal: 12
(a) to be a bail acknowledgment for the decision to grant bail, and 13
(b) to have been given to the person under this Act. 14
(2) Accordingly, the obligations imposed on an accused person under such 15
a bail undertaking are taken, on the repeal of the 1978 Act, to be 16
obligations imposed on the accused person under a bail 17
acknowledgment. 18
5 Obligations under bail agreements continued 19
(1) A bail agreement entered into under the 1978 Act and in force 20
immediately before the repeal of that Act continues to have effect. 21
(2) Anything an accused person is required to do or to refrain from doing 22
under the bail agreement is taken, on that repeal, to be a bail condition. 23
(3) A court or authorised justice may vary the requirements of the bail 24
agreement in the same way as a bail condition (including by releasing 25
the accused person from any of the requirements of the bail agreement). 26
(4) To avoid doubt, subclauses (2) and (3) do not apply to the bail 27
undertaking given to a court under section 34 of the 1978 Act. 28
(5) In this clause, bail agreement means an agreement entered into by an 29
accused person in compliance with a condition of bail granted under the 30
1978 Act, other than a security agreement. 31
6 Obligations under existing security agreements continued 32
(1) An existing security agreement in force immediately before the repeal 33
of the 1978 Act is taken, on that repeal, to be a bail security agreement. 34
(2) However, the 1978 Act continues to apply in respect of any forfeiture 35
order made under Part 7A of that Act before its repeal. 36
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Bail Bill 2013
Schedule 3 Savings, transitional and other provisions
(3) Except as provided by subclause (2), this Act extends to bail money 1
agreed to be forfeited under an existing security agreement or bail 2
security deposited, before the repeal of the 1978 Act, as security for the 3
payment of bail money under an existing security agreement. 4
(4) In Schedule 2, a reference to a fail to appear offence includes a reference 5
to an offence under section 51 of the 1978 Act. 6
(5) A reference in any existing security agreement to a bail undertaking is 7
taken, for the purposes of this Act, to include a reference to a bail 8
acknowledgment. 9
7 History of compliance with bail under 1978 Act 10
In sections 17 and 21: 11
(a) a reference to a bail acknowledgment includes a reference to any 12
bail undertaking given under section 34 of the 1978 Act, and 13
(b) a reference to a bail condition includes a reference to a bail 14
condition imposed under the 1978 Act. 15
8 Pending bail applications 16
(1) An application to a court or authorised justice in relation to bail made 17
by an accused person under the 1978 Act (other than an application 18
referred to in subclause (2)) that is pending on the repeal of that Act is 19
taken, on that repeal, to be a release application. 20
(2) An application for a review of a decision to grant bail made to a court 21
or authorised justice under Division 2 of Part 6 of the 1978 Act that is 22
pending on the repeal of that Act is taken, on that repeal, to be: 23
(a) a detention application (if the application is an application for 24
revocation of bail made by the prosecutor in the proceedings), or 25
(b) a variation application (in any other case). 26
9 Multiple release applications to same court not permitted 27
An application for the grant of bail for an offence that was refused by a 28
court under the 1978 Act is taken, for the purposes of section 74, to have 29
been refused by the court on a release application under this Act. 30
10 Facilitation of proof of things done under 1978 Act 31
(1) Section 60 of the 1978 Act continues to apply to a document or 32
certificate relating to anything that occurred before the repeal of the 33
1978 Act. 34
(2) This clause does not prevent things that occurred before the repeal of the 35
1978 Act being certified as provided for by section 93 or 94 of this Act. 36
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Savings, transitional and other provisions Schedule 3
11 Abolition of common law by 1978 Act not affected 1
The repeal of the 1978 Act does not revive any power or duty that would 2
exist, apart from statute, to grant bail. 3
Page 65
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