South Australia

Bail (Mentally and Intellectually Impaired Offenders) Amendment Bill 2004

A Bill For

An Act to amend the Bail Act 1985.

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Amendment provisions

Part 2—Amendment of Bail Act 1985

4 Amendment of section 3—Interpretation

5 Substitution of heading to Part 2

6 Insertion of section 6A

6A Bail undertakings to replace bail agreements in certain circumstances

7 Amendment of section 7—Guarantee of bail

8 Amendment of section 11—Conditions of bail

9 Amendment of section 12—Refusal of application

10 Amendment of section 14—Review of decisions of bail authorities

11 Amendment of section 15—Telephone review

12 Amendment of section 15A—Review of magistrate's decision by Supreme Court

13 Substitution of section 17A

17A Guarantor must inform member of police force of failure by bailed person to comply with bail agreement or bail undertaking

14 Amendment of section 18—Arrest of bailed person on non-compliance with bail agreement or bail undertaking

15 Amendment of section 19—Estreatment

16 Amendment of section 20—Termination of bail agreement or bail undertaking

17 Amendment of section 21—Evidence

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Bail (Mentally and Intellectually Impaired Offenders) Amendment Act 2004.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Bail Act 1985

4—Amendment of section 3—Interpretation

(1) Section 3(1)—after definition of bail authority insert:

bail undertaking—see section 6A;

(2) Section 3(1), definition of financial condition—delete the definition and substitute:

financial condition, in relation to bail, means a condition requiring—

(a) an applicant for bail to provide security or obtain guarantees; or

(b) a person entering into a bail undertaking in relation to a mentally or intellectually impaired person to provide security or guarantees; or

(c) a guarantor to provide security,

and non-financial condition has a corresponding meaning;

(3) Section 3(1)—after definition of guardian insert:

mental or intellectual impairment does not include a temporary condition resulting from the consumption of alcohol or a drug;

5—Substitution of heading to Part 2

Heading to Part 2—delete the heading and substitute:

Part 2—Bail agreements, bail undertakings and guarantees

6—Insertion of section 6A

After section 6 insert:

6A—Bail undertakings to replace bail agreements in certain circumstances

(1) Where a bail authority decides that a person should be released on bail but is of the opinion that the person, because of a mental or intellectual impairment, does not have the capacity to enter into a bail agreement, the authority may grant bail on some other person entering into a bail undertaking in relation to the bailed person.

(2) A bail undertaking entered into by a person is an agreement under which the person undertakes to the Crown or the court (as the case may require)—

(a) that the bailed person will be present throughout all court proceedings described in the undertaking; and

(b) that the bailed person will reside at a place or with a person specified in the undertaking; and

(c) that the person entering into the undertaking or the bailed person will do (or refrain from doing) such other things as may be specified in the undertaking.

(3) A bail undertaking—

(a) must be in the prescribed form; and

(b) may be entered into before the bail authority or, unless the bail authority otherwise directs, before any person before whom the bailed person could (apart from any incapacity) have entered into a bail agreement.

(4) A person entering into a bail undertaking must be of or above the age of 18 years.

(5) In deciding on conditions of a bail undertaking, the bail authority should give special consideration to any submissions made by the Crown on behalf of a victim of the alleged offence.

(6) A financial condition must not be imposed under this section unless the bail authority is of the opinion that the object of ensuring compliance with the bail undertaking cannot be properly secured by a non-financial condition or combination of non-financial conditions.

(7) A condition of a bail undertaking must be stipulated in the undertaking.

(8) If it is a condition of a bail undertaking that the person released in pursuance of the undertaking will remain at a particular place of residence, a member of the police force or a community corrections officer authorised by the Minister for the purpose may enter the residence at any time for the purpose of ascertaining whether or not the person is complying with the condition.

(9) A person must not hinder a person referred to in subsection (8) in the exercise of powers under that section.

Maximum penalty: $2 500.

(10) If a bail authority imposes a condition requiring a person—

(a) to remain at a particular place of residence while on bail; or

(b) to be under the supervision of a community corrections officer,

the bail authority must ensure that a copy of the bail undertaking is furnished to the relevant responsible Minister.

(11) A bail authority may, for any sufficient reason, on the application of the person who entered into a bail undertaking or the Crown, or of its own motion, vary the conditions of or revoke a bail undertaking.

(12) If a bail authority revokes a bail undertaking, the bail authority (not being a member of the police force) may, if it is necessary to do so, issue a warrant for the arrest of the bailed person.

7—Amendment of section 7—Guarantee of bail

(1) Section 7(1)(a)—after "bail agreement" insert:

or bail undertaking

(2) Section 7(1)(a)(i)—after "agreement" insert:

or undertaking

(3) Section 7(1)(a)(ii)—after "agreement" insert:

or undertaking

(4) Section 7(1)(b)—after "bail agreement" insert:

or bail undertaking

(5) Section 7(5)—after "bail agreement" (wherever occurring) insert in each case:

or bail undertaking

8—Amendment of section 11—Conditions of bail

(1) Section 11(1)—after "in subsection (2)" insert:

in a bail agreement

(2) Section 11(2)(a)(v)—delete subparagraph (v) and substitute:

(v) to surrender any passport that is in or comes into the possession of the applicant; or

(va) not to apply for a passport; or

(3) Section 11(2a)—after "grant of bail" insert:

in a bail agreement

9—Amendment of section 12—Refusal of application

Section 12(1)—delete subsection (1) and substitute:

(1) If a bail authority decides to refuse an application for release on bail, the bail authority must—

(a) make a written record of the reasons for the decision; and

(b) ensure that a written explanation, in the prescribed form, of the right to seek a review of the decision under Part 4 and the appropriate form for making an application for such a review are given to—

(i) the applicant;

(ii) if the applicant is a child, any guardian of the applicant who is present;

(iii) if a person is present who has sought to enter into a bail undertaking in relation to the applicant, that person.

10—Amendment of section 14—Review of decisions of bail authorities

(1) Section 14(2)—delete "on the application of the Crown, the person applying for release on bail or, where the person applying for release on bail is a child, the child or a guardian of the child" and substitute:

, on application

(2) Section 14—after subsection (2) insert:

(2a) An application for review under this section may be made by—

(a) the Crown;

(b) the applicant for release on bail ;

(c) if the applicant for release on bail is a child, the applicant or a guardian of the applicant;

(d) if a person has sought to enter into a bail undertaking in relation to the applicant for release on bail, the applicant or that person.

11—Amendment of section 15—Telephone review

(1) Section 15(1)—delete "on the written application of the applicant or, where the applicant is a child, on the written application of the child or a guardian of the child" and substitute:

, on application,

(2) Section 15—after subsection (1) insert:

(1a) An application under subsection (1) may be made in writing by—

(a) the applicant for release on bail ;

(b) if the applicant for release on bail is a child, the applicant or a guardian of the applicant;

(c) if a person has sought to enter into a bail undertaking in relation to the applicant for release on bail, the applicant or that person.

12—Amendment of section 15A—Review of magistrate's decision by Supreme Court

Section 15A(2)—delete subsection (2) and substitute:

(2) An application for review under this section may be made by—

(a) the Crown;

(b) the applicant for release on bail ;

(c) if the applicant for release on bail is a child, the applicant or a guardian of the applicant;

(d) if a person has sought to enter into a bail undertaking in relation to the applicant for release on bail, the applicant or that person.

13—Substitution of section 17A

Section 17A—delete the section and substitute:

17A—Guarantor must inform member of police force of failure by bailed person to comply with bail agreement or bail undertaking

Where a guarantor knows, or has reasonable cause to suspect, that—

(a) the person released under the bail agreement has failed to comply with a term or condition of the agreement in relation to which his or her guarantee has been given; or

(b) the conditions of a bail undertaking in relation to which his or her guarantee has been given have not been complied with,

the guarantor must take reasonable steps to inform a member of the police force that the failure or non-compliance has, or may have, occurred.

Maximum penalty: $1 250.

14—Amendment of section 18—Arrest of bailed person on non-compliance with bail agreement or bail undertaking

(1) Section 18(1)—after "bail agreement" insert:

or that the conditions of a bail undertaking have not been complied with

(2) Section 18(1)(a)—delete paragraph (a) and substitute:

(a) cancel the right of the person released on bail to be at liberty in pursuance of the agreement or undertaking; and

(3) Section 18(2)—delete subsection (2) and substitute:

(2) A member of the police force may arrest without warrant a person released on bail if the member has reasonable grounds for believing—

(a) that the person intends to abscond; or

(b) that the person is contravening or failing to comply with, or has contravened or failed to comply with, a bail agreement; or

(c) that the conditions of a bail undertaking in pursuance of which the person was released on bail are not being, or have not been complied with.

15—Amendment of section 19—Estreatment

(1) Section 19(1)—after "bail agreement" (first occurring) insert:

or a bail undertaking

(2) Section 19(1)—after "the agreement" insert:

or undertaking

(3) Section 19(1)—delete "bail agreement" (second occurring) and substitute:

bail agreement, a bail undertaking

(4) Section 19(3)—delete "bail agreement" and substitute:

bail agreement, bail undertaking

16—Amendment of section 20—Termination of bail agreement or bail undertaking

Section 20—after "agreement" insert:

or undertaking

17—Amendment of section 21—Evidence

Section 21—delete "agreement" wherever occurring and substitute in each case:

agreement, bail undertaking