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PARLIAMENT OF VICTORIA
Bail Amendment Bill 2010
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2--BAIL ACT 1977 3
3 New Part 1 heading inserted 3
4 Definitions 3
5 New section 3A inserted 4
3A Determination in relation to an Aboriginal person 4
6 New Part 2 heading inserted 4
7 Accused person held in custody entitled to bail 4
8 Section 5 substituted 5
5 Conditions of bail 5
9 Power to return accused to youth justice centre 7
10 Surety for bail 7
11 Court or bail justice to grant or refuse bail 10
12 Conditions of bail 11
13 Extension of bail 11
14 New Part 3 heading inserted 11
15 Section 18 substituted 12
18 Further application for bail where bail refused or
revoked 12
18AA Certain circumstances required before application
may be heard 12
18AB Hearing and determination of further application for
bail 13
18AC Application for variation of bail conditions 13
18AD Determination of application for variation of the
amount of bail or bail conditions 14
18AE Application for revocation of bail 15
18AF Determination of application for revocation of bail 15
18AG Appeal against refusal to revoke bail 15
18AH Preservation of the right of application or appeal to
the Supreme Court or County Court 15
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Clause Page
18AI Notice of application for variation to be given to
sureties 16
18AJ Surety entitled to attend on application for variation 16
16 New Part 4 heading inserted 17
17 Appeal by Director of Public Prosecutions against inadequacy
of bail etc. 17
18 New Part 5 heading inserted 18
19 Arrest on another charge not to vacate bail 18
20 Section 21 substituted and section 22 repealed 19
21 Abolition of right of a surety to apprehend a principal 19
21 Surety may apply for discharge 19
22 Arrest of person released on bail 19
23 Arrest where bail insufficient 20
24 Notice of trial 20
25 Failure to answer bail 20
26 Transitional provisions 20
PART 3--MAGISTRATES' COURT ACT 1989 21
27 Warrants to arrest 21
28 Search warrants 21
29 Section 120 substituted 21
120 Definitions 21
120A Appointment of bail justices 22
120B Application for appointment as bail justice 23
120C Re-appointment of bail justices 23
120D Application for re-appointment as bail justice 24
120E Appointment of acting bail justices 24
120F Application for appointment or re-appointment as
acting bail justice 26
120G Resignation 26
120H Oath of office 26
120I Judge or magistrate may exercise power of bail
justice 26
30 Certain office-holders to be bail justices 27
31 Section 122 substituted 27
122 Suspension from office 27
122A Investigation of bail justice 28
122B Removal of bail justice from office 29
32 Vacation of office 30
33 New sections 124AA and 124AB inserted 30
124AA Professional development and training 30
124AB Guidelines 31
34 Regulations 31
35 Schedule 8 amended 33
46 Transitional provisions--Bail Amendment Act 2010 33
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Clause Page
PART 4--CONSEQUENTIAL AMENDMENTS 35
36 Criminal Procedure Act 2009 35
37 Crown Proceedings Act 1958 35
38 Family Violence Protection Act 2008 36
39 Interpretation of Legislation Act 1984 36
40 Stalking Intervention Orders Act 2008 36
41 Victims' Charter Act 2006 37
PART 5--REPEAL OF AMENDING ACT 38
42 Repeal of amending Act 38
ENDNOTES 39
561391B.I-27/7/2010 iii BILL LC INTRODUCTION 27/7/2010
PARLIAMENT OF VICTORIA
Introduced in the Council
Bail Amendment Bill 2010
A Bill for an Act to amend the Bail Act 1977 and the Magistrates'
Court Act 1989 and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purposes of this Act are--
(a) to amend the Bail Act 1977--
5 (i) to clarify and amend the law relating to
conditions of bail, sureties and deposits,
variation of bail, revocation of bail,
further bail applications and appeals;
and
561391B.I-27/7/2010 1 BILL LC INTRODUCTION 27/7/2010
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Part 1--Preliminary
s. 2
(ii) to require a decision maker to take into
account any issues that arise due to the
Aboriginality of a person when making
a determination under the Act in
5 relation to the person; and
(b) to amend the Magistrates' Court Act 1989
to create a new legislative framework for bail
justices; and
(c) to make consequential amendments to those
10 and other Acts.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
15 operation before 1 January 2011, it comes into
operation on that day.
__________________
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Bail Amendment Bill 2010
Part 2--Bail Act 1977
s. 3
PART 2--BAIL ACT 1977
3 New Part 1 heading inserted
Before section 1 of the Bail Act 1977 insert--
"PART 1--PRELIMINARY".
5 4 Definitions
(1) In section 3 of the Bail Act 1977 insert the See:
Act No. 9008.
following definition-- Reprint No. 9
as at
"Aboriginal person means a person who-- 23 April 2007
and
(a) is descended from an Aborigine or amending
Act Nos
10 Torres Strait Islander; and 97/2005,
52/2008,
(b) identifies as an Aborigine or Torres 68/2008,
Strait Islander; and 68/2009,
69/2009 and
13/2010.
(c) is accepted as an Aborigine or Torres LawToday:
Strait Islander by an Aboriginal or www.
legislation.
15 Torres Strait Island community;". vic.gov.au
(2) In section 3 of the Bail Act 1977, in the definition
of bail justice--
(a) in paragraph (a), for "section 120" substitute
"section 120A or 120C"; and
20 (b) after paragraph (a) insert--
"(ab) acting bail justice appointed under
section 120E of the Magistrates'
Court Act 1989; or".
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Part 2--Bail Act 1977
s. 5
5 New section 3A inserted
After section 3 of the Bail Act 1977 insert--
"3A Determination in relation to an Aboriginal
person
5 In making a determination under this Act in
relation to an Aboriginal person, a court
must take into account (in addition to any
other requirements of this Act) any issues
that arise due to the person's Aboriginality,
10 including--
(a) the person's cultural background,
including the person's ties to extended
family or place; and
(b) any other relevant cultural issue or
15 obligation.
Note
When considering bail for an Aboriginal person
charged with a Commonwealth offence, a court must
have regard to section 15AB(1)(b) of the Crimes Act
20 1914 of the Commonwealth.".
6 New Part 2 heading inserted
After section 3A of the Bail Act 1977 insert--
"__________________
PART 2--GRANTING OF BAIL AND
25 ADMISSION TO BAIL".
7 Accused person held in custody entitled to bail
(1) Section 4(2)(b) of the Bail Act 1977 is repealed.
(2) In section 4(2A) of the Bail Act 1977, for
"Despite subsection (2)(b), a court" substitute
30 "A court".
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Part 2--Bail Act 1977
s. 8
(3) In section 4(3) of the Bail Act 1977--
(a) in paragraph (e), for "bail." substitute
"bail;";
(b) after paragraph (e) insert--
5 "(f) any conditions that may be imposed to
address the circumstances which may
constitute an unacceptable risk.".
8 Section 5 substituted
For section 5 of the Bail Act 1977 substitute--
10 "5 Conditions of bail
(1) A court considering the release of an accused
on bail must impose a condition that the
accused will surrender into custody at the
time and place of the hearing or trial and
15 then will not depart without leave of the
court and, if leave is given, will return at the
time specified by the court and again
surrender into custody.
(2) A court considering the release of an accused
20 on bail must consider the conditions for
release in the following order--
(a) release of the accused on his or her own
undertaking without any other
condition;
25 (b) release of the accused on his or her own
undertaking with conditions about the
conduct of the accused;
(c) release of the accused with a surety of
stated value or a deposit of money of
30 stated amount, with or without
conditions about the conduct of the
accused.
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Part 2--Bail Act 1977
s. 8
(3) A court considering the release of an accused
on bail may only impose a condition in order
to reduce the likelihood that the accused
may--
5 (a) fail to attend in accordance with his or
her bail and surrender into custody at
the time and place of the hearing or
trial; or
(b) commit an offence while on bail; or
10 (c) endanger the safety or welfare of
members of the public; or
(d) interfere with witnesses or otherwise
obstruct the course of justice in any
matter before the court.
15 (4) If a court imposes one or more conditions,
each condition and the number of
conditions--
(a) must be no more onerous than is
required to achieve the purposes of
20 subsection (3); and
(b) must be reasonable, having regard to
the nature of the alleged offence and
the circumstances of the accused.
(5) If a court is considering imposing a condition
25 that requires a deposit of money of stated
amount, the court must have regard to the
means of the accused in determining--
(a) whether to impose the condition; and
(b) the amount of money to be deposited.
30 (6) If a court is satisfied under subsection (5)
that the accused does not have sufficient
means to satisfy a condition requiring a
deposit of money of stated amount, the court
must consider whether any other condition
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Part 2--Bail Act 1977
s. 9
would achieve the purposes of
subsection (3).
(7) If a court is considering imposing a condition
that requires a surety of stated value, the
5 court must have regard to the means of a
proposed surety in determining--
(a) whether to impose the condition; and
(b) the value of the surety.
(8) If a court is satisfied under subsection (7)
10 that the accused is unable to provide a surety
with sufficient means, the court must
consider whether any other condition would
achieve the purposes of subsection (3).
Note
15 Sections 12 and 21 of the Charter of Human Rights and
Responsibilities set out a right of freedom of movement and
a right to liberty and security of the person.
Sections 23 and 25 of the Charter of Human Rights and
Responsibilities set out the rights of children in the criminal
20 process and the rights of an adult in criminal proceedings.
Section 7(2) of the Charter of Human Rights and
Responsibilities sets out how a human right may be limited
after taking into account all relevant factors, including any
less restrictive means reasonably available to achieve the
25 purpose that the limitation seeks to achieve.".
9 Power to return accused to youth justice centre
In section 5A(1)(d)(i) of the Bail Act 1977 omit
"special".
10 Surety for bail
30 (1) After section 9(2) of the Bail Act 1977 insert--
"(2A) If an objection to a proposed surety is raised,
the suitability of the proposed surety is to be
determined by a magistrate or judge.".
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Part 2--Bail Act 1977
s. 10
(2) For section 9(3)(a)(ii) of the Bail Act 1977
substitute--
"(ii) lodge a document that is evidence of the
ownership and the value of property or any
5 other asset to the amount of the bail; and
Note
Examples of documents that may be required are a
copy of a certificate of title for the property or a
search of the title of the land, a current rate notice that
10 includes a valuation of the property, an independent
valuation of the property or a bank statement of a
mortgage account in relation to the property.".
(3) For section 9(3)(b) of the Bail Act 1977
substitute--
15 "(b) require the surety or sureties to make before
it or him (as the case may be) an affidavit of
justification for bail; and
(c) require the surety or sureties to sign the
undertaking of bail.".
20 (4) For section 9(3A) and (3B) of the Bail Act 1977
substitute--
"(3A) For the purposes of this section--
(a) a surety may appear before a court
within the meaning of section 3(1) of
25 the Evidence (Miscellaneous
Provisions) Act 1958 by audio visual
link or audio link in accordance with
Part IIA of that Act; or
(b) a surety may give information to any
30 other person authorised by section 27
by audio visual link or audio link
within the meaning of section 42C of
that Act.
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Part 2--Bail Act 1977
s. 10
(3B) If an audio visual link or an audio link is
used as provided in subsection (3A)--
(a) the undertaking of bail may be
constituted by--
5 (i) the undertaking signed by the
accused; and
(ii) a copy of the undertaking signed
by the accused which is
transmitted to the surety by any
10 means and signed by the surety;
and
(iii) a copy of the document referred to
in subparagraph (ii) which is
transmitted back to the court or
15 other person authorised by
section 27 who is admitting the
accused to bail;
(b) the affidavit of justification for bail
may be constituted by--
20 (i) the affidavit of the surety sworn
before any person authorised by
Part IV of the Evidence
(Miscellaneous Provisions) Act
1958 to take affidavits; and
25 (ii) a copy of that sworn affidavit
which is transmitted to the court
or other person authorised by
section 27 who is admitting the
accused to bail.
30 (3C) The court or other person authorised by
section 27 may act on a copy of a document
which is transmitted in accordance with
subsection (3B).
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Part 2--Bail Act 1977
s. 11
(3D) A surety who under subsection (3B)--
(a) signs a copy of an undertaking of bail;
or
(b) transmits a copy of a sworn affidavit of
5 justification for bail--
without delay must send the signed copy of
the undertaking or the original sworn
affidavit (as the case may be) to the court or
other person authorised by section 27 who
10 admitted the accused to bail.".
(5) For section 9(7) of the Bail Act 1977
substitute--
"(7) If a surety has lodged a document that is
evidence of ownership of property or any
15 other asset under subsection (3), the surety
may lodge in cash the amount of the bail and
receive the document in return.
(7A) If a surety lodges cash under subsection (7),
the affidavit of justification of bail made by
20 the surety must be endorsed to the effect that
the type of security has been changed.".
11 Court or bail justice to grant or refuse bail
(1) In section 12(1) of the Bail Act 1977--
(a) for "or to commit him to prison during an
25 adjournment" substitute "in custody"; and
(b) omit "or the case adjourned"; and
(c) for "warrant of remand or the warrant of
commitment (as the case may be)"
substitute "remand warrant"; and
30 (d) in paragraph (a) omit "special".
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Part 2--Bail Act 1977
s. 12
(2) For section 12(1A) of the Bail Act 1977
substitute--
"(1A) If a bail justice refuses bail to a person
referred to in subsection (1), the bail justice
5 must remand the person in custody to appear
before a court--
(a) on the next working day; or
(b) if the next working day is not
practicable, within 2 working days.".
10 (3) In section 12(2) of the Bail Act 1977--
(a) for "committed to prison to take his trial"
substitute "committed for trial"; and
(b) after "upon his trial" insert "or on a date
before trial fixed by the magistrate"; and
15 (c) for "warrant of commitment" substitute
"remand warrant"; and
(d) in paragraph (a) omit "special".
12 Conditions of bail
Section 15 of the Bail Act 1977 is repealed.
20 13 Extension of bail
In section 16(2) of the Bail Act 1977, for
"commitment of the person charged to prison"
substitute "remand of the person charged in
custody".
25 14 New Part 3 heading inserted
After section 17 of the Bail Act 1977 insert--
"__________________
PART 3--FURTHER APPLICATION FOR BAIL,
VARIATION OF BAIL CONDITIONS,
30 REVOCATION OF BAIL".
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Part 2--Bail Act 1977
s. 15
15 Section 18 substituted
For section 18 of the Bail Act 1977 substitute--
"18 Further application for bail where bail
refused or revoked
5 (1) An accused who has been refused bail and is
in custody pending the hearing or trial of a
charge may make a further application for
bail.
(2) A person whose bail has been revoked under
10 section 18AE or 24(3) may make a further
application for bail.
(3) Subject to section 144(2)(c) of the Criminal
Procedure Act 2009, an application under
subsection (1) or (2) is to be made--
15 (a) in the case of a person charged with
treason or murder, to the Supreme
Court or a judge of the Supreme Court;
(b) in any other case, to the court to which
the person is remanded to appear.
20 18AA Certain circumstances required before
application may be heard
(1) A court must not hear an application under
section 18 unless--
(a) the applicant satisfies the court that new
25 facts or circumstances have arisen since
the refusal or revocation of bail; or
(b) the applicant was not represented by a
legal practitioner when bail was refused
or revoked; or
30 (c) the order refusing or revoking bail was
made by a bail justice.
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Part 2--Bail Act 1977
s. 15
(2) Nothing in this section derogates from the
right of a person in custody to apply to the
Supreme Court for bail.
18AB Hearing and determination of further
5 application for bail
An application under section 18 must be
conducted as a fresh hearing and determined
in accordance with section 4.
18AC Application for variation of bail
10 conditions
(1) A person who has been granted bail, whether
or not the person is in custody, may apply for
variation of the amount of bail or the
conditions of bail.
15 (2) The informant or the Director of Public
Prosecutions may apply for--
(a) variation of the amount of bail or the
conditions of bail; or
(b) the imposition of conditions in respect
20 of bail which has been granted
unconditionally.
(3) An application under subsection (1) or (2) is
to be made--
(a) in the case of a person charged with
25 treason or murder, to the Supreme
Court or a judge of the Supreme Court;
(b) in any other case, to the court to which
the person is required to surrender
under his or her conditions of bail.
30 (4) A person may apply for variation of the
amount of bail or the conditions of bail if--
(a) the person has been granted bail by a
bail justice or the Magistrates' Court;
and
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Part 2--Bail Act 1977
s. 15
(b) within 24 hours after the grant of bail,
the person is unable to meet the
conditions of bail.
(5) An application under subsection (4) is to be
5 made to the bail justice who granted the bail
or to the Magistrates' Court.
18AD Determination of application for variation
of the amount of bail or bail conditions
(1) On an application under section 18AC, the
10 court or bail justice may vary the amount of
bail or the conditions of bail if it appears to
the court or bail justice that it is reasonable
to do so having regard to all the
circumstances including, if relevant--
15 (a) the nature and seriousness of the
offence;
(b) the character, antecedents, associations,
home environment and background of
the accused;
20 (c) the history of any previous grants of
bail to the accused;
(d) the strength of the evidence against the
accused;
(e) the attitude, if known, of the alleged
25 victim of the offence to the proposed
variation of the amount of bail or the
conditions of bail.
Note
Section 5 provides for the imposing of conditions of
30 bail.
(2) In any other case, the court or bail justice
must dismiss the application under
section 18AC.
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Part 2--Bail Act 1977
s. 15
18AE Application for revocation of bail
(1) The informant or the Director of Public
Prosecutions may apply for revocation of
bail granted to a person.
5 (2) An application under subsection (1) is to be
made--
(a) in the case of a person charged with
treason or murder, to the Supreme
Court or a judge of the Supreme Court;
10 (b) in any other case, to the court to which
the person is required to surrender
under his or her conditions of bail.
18AF Determination of application for
revocation of bail
15 On an application under section 18AE, the
court may either--
(a) revoke bail; or
(b) dismiss the application.
18AG Appeal against refusal to revoke bail
20 The Director of Public Prosecutions may
appeal to the Supreme Court in the same
manner as is provided in section 18A against
a refusal to revoke bail if the Director is
satisfied that an appeal should be brought in
25 the public interest.
18AH Preservation of the right of application or
appeal to the Supreme Court or County
Court
(1) Nothing in section 18, 18AA, 18AC or 18AE
30 derogates from any other right of application
or appeal to the Supreme Court or the
County Court.
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Part 2--Bail Act 1977
s. 15
(2) Section 18AI applies to an application to the
Supreme Court or the County Court made
other than under this Act by an accused for
an order to vary the amount of bail or a
5 condition of bail.
18AI Notice of application for variation to be
given to sureties
(1) If an accused who has been admitted to bail
with a surety or sureties applies for variation
10 of the amount of bail or the conditions of
bail, the accused must give written notice of
the application to each surety.
(2) Notice under subsection (1) must be--
(a) in the prescribed form; and
15 (b) given a reasonable time before the
hearing of the application; and
(c) given personally or by post or by
causing the notice to be delivered at the
place of residence of the surety shown
20 in the affidavit of justification for bail.
18AJ Surety entitled to attend on application
for variation
(1) A surety for a person admitted to bail is
entitled to attend and give evidence at the
25 hearing of an application made by that
person for variation of the amount of bail or
the conditions of bail.
(2) The court may adjourn the hearing of an
application referred to in subsection (1) to
30 enable a surety to attend.".
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Part 2--Bail Act 1977
s. 16
16 New Part 4 heading inserted
Before section 18A of the Bail Act 1977 insert--
"__________________
PART 4--APPEALS".
17 Appeal by Director of Public Prosecutions against
5 inadequacy of bail etc.
(1) Insert the following heading to section 18A of the
Bail Act 1977--
"Appeal by Director of Public Prosecutions
against insufficiency of bail etc.".
10 (2) For section 18A(1) of the Bail Act 1977
substitute--
"(1) If a person is granted bail, the Director of
Public Prosecutions may appeal to the
Supreme Court against the order granting
15 bail if--
(a) the Director is satisfied that--
(i) the conditions of bail are
insufficient; or
(ii) the decision to grant bail
20 contravenes this Act; and
(b) the Director is satisfied that it is in the
public interest to do so.".
(3) For section 18A(6) of the Bail Act 1977
substitute--
25 "(6) On an appeal under this section, if the
Supreme Court thinks that a different order
should have been made, the Supreme Court
must set aside the order that is the subject of
the appeal and, without limiting the powers
30 of the Supreme Court with respect to bail,
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Part 2--Bail Act 1977
s. 18
conduct a fresh hearing in relation to the
grant of bail to the respondent.".
(4) In section 18A(8) of the Bail Act 1977 for
"commit the respondent to prison" substitute
5 "remand the respondent in custody".
(5) In section 18A(9) of the Bail Act 1977 for
"commit him to prison" substitute "remand him
in custody".
(6) After section 18A(11) of the Bail Act 1977
10 insert--
"(12) The respondent or the Director of Public
Prosecutions may appeal to the Court of
Appeal from a decision of a single judge of
the Supreme Court made under this section.
15 Note
Sections 18AG and 24(4) also provide for certain appeals.".
18 New Part 5 heading inserted
After section 18A of the Bail Act 1977 insert--
"__________________
20 PART 5--MISCELLANEOUS".
19 Arrest on another charge not to vacate bail
(1) In section 19(2) of the Bail Act 1977 for "commit
him to prison" substitute "remand him in
custody".
25 (2) In section 19(3) of the Bail Act 1977 for
"committed to prison" substitute "remanded in
custody".
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Part 2--Bail Act 1977
s. 20
20 Section 21 substituted and section 22 repealed
For sections 21 and 22 of the Bail Act 1977
substitute--
"21 Abolition of right of a surety to apprehend
5 a principal
The common law right of a surety to
apprehend the principal and to bring him or
her before a bail justice or a court is
abolished.".
10 21 Surety may apply for discharge
In section 23(4) of the Bail Act 1977 for "commit
him to prison" substitute "remand him in
custody".
22 Arrest of person released on bail
15 (1) In section 24(3)(a) of the Bail Act 1977--
(a) for "commit the person to prison" substitute
"remand the person in custody"; and
(b) for subparagraph (ii) substitute--
"(ii) if the direction is given by a bail
20 justice, that the person be brought
before the court to which the person
was required to surrender in answer to
his or her bail on the next working day
or, if the next working day is not
25 practicable, within 2 working days--".
(2) For section 24(4) of the Bail Act 1977
substitute--
"(4) The Director of Public Prosecutions may
appeal to the Supreme Court in the same
30 manner as is provided in section 18A against
a refusal to revoke bail if the Director is
satisfied that it is in the public interest to do
so.".
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Part 2--Bail Act 1977
s. 23
(3) In section 24(5) of the Bail Act 1977 for "18(6B)"
substitute "18".
23 Arrest where bail insufficient
In section 26(1) of the Bail Act 1977, for "commit
5 him to prison" substitute "remand him in
custody".
24 Notice of trial
In section 29(1) of the Bail Act 1977, for "sent by
post or by telegram or cablegram" substitute
10 "given".
25 Failure to answer bail
In section 30(3) of the Bail Act 1977, for "sending
by post or by telegram or cablegram" substitute
"giving".
15 26 Transitional provisions
After section 34(5) of the Bail Act 1977 insert--
"(6) Subject to subsection (7), this Act as
amended by a provision of Part 2 of the Bail
Amendment Act 2010 applies only with
20 respect to an application made, or an appeal
commenced, or an admission to bail made,
under this Act on or after the commencement
of that provision of that Act.
(7) Section 3A as inserted by section 5 of the
25 Bail Amendment Act 2010 applies to a
determination made under this Act on or
after the commencement of section 5 of that
Act, including the determination of a charge
for an offence against section 30, irrespective
30 of when the charge-sheet was filed.".
__________________
561391B.I-27/7/2010 20 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 27
PART 3--MAGISTRATES' COURT ACT 1989
27 Warrants to arrest
(1) After section 64(4) of the Magistrates' Court Act See:
Act No.
1989 insert-- 51/1989.
Reprint No. 15
5 "(4A) If a person is brought before a bail justice or as at
5 April 2010
the Court in accordance with subsection and
(2)(a), the bail justice or the Court is not amending
Act Nos
bound by the endorsement on the warrant 51/2006,
when determining any matter in relation to 52/2008,
12/2010,
10 bail.". 29/2010,
30/2010,
(2) In section 64(5) of the Magistrates' Court Act 34/2010 and
1989, for "and (4)" substitute ", (4) and (4A)". 40/2010.
LawToday:
www.
legislation.
vic.gov.au
28 Search warrants
After section 78(4) of the Magistrates' Court Act
15 1989 insert--
"(4A) If a person is brought before a bail justice or
the Court in accordance with subsection
(2)(a), the bail justice or the Court is not
bound by the endorsement on the warrant
20 when determining any matter in relation to
bail.".
29 Section 120 substituted
For section 120 of the Magistrates' Court Act
1989 substitute--
25 "120 Definitions
In this Division--
bail justice, except in sections 120A, 120B,
120C, 120D,120G and 120H, includes
an acting bail justice;
561391B.I-27/7/2010 21 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 29
code of conduct means the code of conduct
prescribed by the regulations.
120A Appointment of bail justices
(1) The Attorney-General, by instrument, may
5 appoint as many bail justices as are
necessary to perform the functions of bail
justices under the Bail Act 1977 and the
Children, Youth and Families Act 2005.
(2) A person is not eligible for appointment as a
10 bail justice unless--
(a) the person is of or over the age of
18 years and under the age of 65 years;
and
(b) the person is an Australian citizen; and
15 (c) the person is not a bankrupt; and
(d) the property of the person is not subject
to control under the law relating to
bankruptcy; and
(e) the person has completed a prescribed
20 course of training for appointment to
the satisfaction of the Attorney-
General; and
(f) the person is fluent in the English
language; and
25 (g) the person ordinarily resides in
Victoria.
(3) Subject to this Division, a bail justice
appointed under this section holds office for
a period of 5 years.
30 (4) The Public Administration Act 2004 does
not apply to a bail justice appointed under
this section in respect of the office of bail
justice.
561391B.I-27/7/2010 22 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 29
120B Application for appointment as bail
justice
(1) A person may apply to the Attorney-General
for appointment as a bail justice.
5 (2) An application must--
(a) include the prescribed particulars; and
(b) authorise the conduct of a police record
check on the applicant; and
(c) be verified by statutory declaration.
10 120C Re-appointment of bail justices
(1) The Attorney-General, by instrument, may
re-appoint a person as a bail justice.
(2) A person is not eligible for re-appointment as
a bail justice unless--
15 (a) the person has completed a prescribed
course of training for re-appointment to
the satisfaction of the Attorney-
General; and
(b) during the immediately preceding
20 period of appointment as a bail
justice--
(i) the person was reasonably
available to be rostered for duty as
a bail justice; and
25 (ii) when rostered for duty as a bail
justice, the person was reasonably
available to perform that duty; and
(c) the person is not a bankrupt; and
(d) the property of the person is not subject
30 to control under the law relating to
bankruptcy; and
561391B.I-27/7/2010 23 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 29
(e) the person ordinarily resides in
Victoria.
(3) Subject to this Division, a bail justice
re-appointed under this section holds office
5 for a period of 5 years.
(4) The Public Administration Act 2004 does
not apply to a bail justice re-appointed under
this section in respect of the office of bail
justice.
10 120D Application for re-appointment as bail
justice
(1) A person may apply to the Attorney-General
for re-appointment as a bail justice.
(2) An application must--
15 (a) include the prescribed particulars; and
(b) authorise the conduct of a police record
check on the applicant; and
(c) be verified by statutory declaration.
120E Appointment of acting bail justices
20 (1) The Attorney-General, by instrument, may
appoint as many acting bail justices as are
necessary to perform the functions of bail
justices under the Bail Act 1977 and the
Children, Youth and Families Act 2005.
25 (2) A person is not eligible for appointment as
an acting bail justice unless--
(a) the person is of or over the age of
70 years and under the age of 75 years;
and
30 (b) immediately before appointment, the
person was a bail justice for at least
5 years; and
561391B.I-27/7/2010 24 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 29
(c) during the immediately preceding
period of appointment as a bail justice
or acting bail justice--
(i) the person was reasonably
5 available to be rostered for duty as
a bail justice; and
(ii) when rostered for duty as a bail
justice, the person was reasonably
available to perform that duty; and
10 (d) the person is not a bankrupt; and
(e) the property of the person is not subject
to control under the law relating to
bankruptcy; and
(f) the person ordinarily resides in
15 Victoria.
(3) Subject to this Division, an acting bail justice
holds office for the period of 12 months from
the date of his or her appointment.
(4) An acting bail justice--
20 (a) has the same powers and the same
protection and immunity as a bail
justice; and
(b) is subject to the same requirements as
to conduct as a bail justice.
25 (5) An acting bail justice is eligible for
re-appointment as an acting bail justice.
(6) An acting bail justice may only be removed
from office in the same manner and on the
same grounds as a bail justice is liable to be
30 removed from office.
(7) The Public Administration Act 2004 does
not apply to an acting bail justice in respect
of the office of acting bail justice.
561391B.I-27/7/2010 25 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 29
120F Application for appointment or
re-appointment as acting bail justice
(1) A person may apply to the Attorney-General
for appointment or re-appointment as an
5 acting bail justice.
(2) An application must--
(a) include the prescribed particulars; and
(b) authorise the conduct of a police record
check on the applicant; and
10 (c) be verified by statutory declaration.
120G Resignation
(1) A bail justice appointed under section 120A
or re-appointed under section 120C may
resign his or her office as bail justice by
15 delivering to the Attorney-General a signed
letter of resignation.
(2) An acting bail justice appointed under
section 120E may resign his or her office as
acting bail justice by delivering to the
20 Attorney-General a signed letter of
resignation.
120H Oath of office
Every person who is appointed or
re-appointed as a bail justice or acting bail
25 justice must, before so acting, take an oath of
office in the prescribed form and manner.
120I Judge or magistrate may exercise power
of bail justice
A judge of the Supreme Court, a judge of the
30 County Court or a magistrate may exercise
any power conferred on a bail justice by or
under any Act.".
561391B.I-27/7/2010 26 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 30
30 Certain office-holders to be bail justices
Before section 121(3)(a) of the Magistrates'
Court Act 1989 insert--
"(aa) before acting as a bail justice, must complete
5 a prescribed course of training to the
satisfaction of the Attorney-General; and".
31 Section 122 substituted
For section 122 of the Magistrates' Court Act
1989 substitute--
10 "122 Suspension from office
(1) In this section--
bail justice means a bail justice appointed
under section 120A, 120C or 120E.
(2) The Secretary may suspend a bail justice
15 from office if the Secretary believes that--
(a) the bail justice has contravened the
code of conduct; or
(b) the bail justice has unreasonably failed
to comply with a direction given to the
20 bail justice under section 124AA(1); or
(c) there may otherwise be grounds for
removal of the bail justice from office.
(3) As soon as practicable after the Secretary
suspends a bail justice from office, the
25 Secretary may either--
(a) direct the bail justice to do one or more
of the following--
(i) undertake specified training;
(ii) complete a prescribed course of
30 training for re-appointment;
(iii) attend counselling with a person
nominated by the Secretary; or
561391B.I-27/7/2010 27 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 31
(b) nominate a person for appointment
under section 122A to undertake an
investigation into the bail justice's
conduct.
5 (4) If the Secretary makes a direction under
subsection (3)(a) and the bail justice
complies with the direction to the
satisfaction of the Secretary, the Secretary
must lift the suspension.
10 (5) If the Secretary makes a direction under
subsection (3)(a) and the bail justice
unreasonably fails to comply with the
direction, the Secretary may nominate a
person under subsection (3)(b).
15 122A Investigation of bail justice
(1) As soon as practicable after the Secretary
suspends a bail justice from office under
section 122 and nominates a person to
undertake an investigation into the bail
20 justice's conduct, the Attorney-General must
appoint the person nominated by the
Secretary to undertake the investigation.
(2) A person appointed under subsection (1)
must--
25 (a) investigate the bail justice's conduct;
and
(b) report to the Attorney-General on the
investigation; and
(c) give a copy of the report to the bail
30 justice and the Secretary.
(3) A report under subsection (2)(b) may include
a recommendation that the bail justice be
removed from office.
561391B.I-27/7/2010 28 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 31
(4) After receiving a report under subsection
(2)(b) recommending removal, the Attorney-
General, after consulting the Secretary, may
recommend to the Governor in Council that
5 the bail justice be removed from office.
(5) The person who conducted the investigation
and the Attorney-General may only
recommend that a bail justice be removed on
the ground of proved misbehaviour,
10 incapacity or dereliction of duty.
(6) The Attorney-General must not make a
recommendation under subsection (4) unless
the bail justice has been given a reasonable
opportunity to make written and oral
15 submissions to the person who conducted the
investigation and the Secretary.
(7) In making a recommendation under
subsection (4), the Attorney-General is
entitled to rely on any findings contained in
20 the report under subsection (2).
(8) If the Attorney-General decides not to make
a recommendation under subsection (4)--
(a) the Attorney-General must inform the
Secretary as soon as practicable after
25 receiving the report under subsection
(2)(b); and
(b) the Secretary must lift the suspension.
122B Removal of bail justice from office
The Governor in Council may remove a bail
30 justice from office on the recommendation of
the Attorney-General under section 122A but
not otherwise.".
561391B.I-27/7/2010 29 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 32
32 Vacation of office
In section 123 of the Magistrates' Court Act
1989--
(a) for paragraph (a) substitute--
5 "(a) attains the age of 70 years or, in the
case of an acting bail justice, 75 years;
or
(ab) becomes a bankrupt or the property of
the person becomes subject to control
10 under the law relating to bankruptcy;
or";
(b) in paragraph (b), for "section 122" substitute
"section 122B".
33 New sections 124AA and 124AB inserted
15 In Part 6 of the Magistrates' Court Act 1989,
after section 124 insert--
"124AA Professional development and training
(1) The Secretary may direct--
(a) all bail justices; or
20 (b) a specified class of bail justices; or
(c) a specified bail justice--
to participate in a specified professional
development or continuing education and
training activity.
25 (2) A direction under subsection (1) may be
given orally or in writing.
(3) A bail justice must comply with a reasonable
direction under subsection (1) that is given to
him or her.
561391B.I-27/7/2010 30 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 34
124AB Guidelines
(1) The Secretary may make guidelines for or
with respect to--
(a) the process for applications for
5 appointment as a bail justice;
(b) the processes and administration of bail
justices;
(c) the handling of complaints about bail
justices.
10 (2) The Secretary may from time to time amend
or revoke any guidelines made under
subsection (1).
(3) As soon as practicable after making,
amending or revoking guidelines under this
15 section, the Secretary must give to each bail
justice--
(a) a copy of the guidelines or the
amendment; or
(b) notice of the revocation of the
20 guidelines.
(4) The guidelines, or an amendment or
revocation of the guidelines, take effect on
the date that is specified in the guidelines,
amendment or revocation (as the case
25 requires).".
34 Regulations
(1) After section 140(1)(h) of the Magistrates' Court
Act 1989 insert--
"(i) prescribing a code of conduct for bail
30 justices and acting bail justices; and
561391B.I-27/7/2010 31 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 34
(j) prescribing training courses for appointment
as a bail justice and training courses for re-
appointment as a bail justice for the purposes
of Division 2 of Part 6; and
5 (k) prescribing training courses for the purposes
of section 121(3)(aa); and
(l) prescribing particulars to be included in
applications under Division 2 of Part 6; and
(la) prescribing the form of an oath of office as a
10 bail justice or an acting bail justice and the
manner of taking that oath; and".
(2) In section 140(3)(c) of the Magistrates' Court
Act 1989, for "application." substitute
"application; and".
15 (3) After section 140(3)(c) of the Magistrates' Court
Act 1989 insert--
"(d) so as to differ according to differences in
time, place or circumstances; and
(e) so as to require matters affected by the
20 regulations to be--
(i) in accordance with specified standards
or specified requirements; or
(ii) approved by or to the satisfaction of a
specified person or body or a specified
25 class of persons or bodies; or
(iii) as specified in both subparagraphs (i)
and (ii); and
(f) so as to leave any matter or thing to be from
time to time determined, applied, dispensed
30 with or regulated by a specified person.".
561391B.I-27/7/2010 32 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 35
35 Schedule 8 amended
At the end of Schedule 8 to the Magistrates'
Court Act 1989 insert--
"46 Transitional provisions--Bail Amendment
5 Act 2010
(1) On the commencement of section 29 of the
Bail Amendment Act 2010, a bail justice
holding office immediately before that
commencement (other than a bail justice
10 referred to in section 121 of this Act) is
deemed to be a bail justice appointed under
section 120A of this Act whose term of
office expires--
(a) in the case of a bail justice appointed
15 before 1 January 1991, 1 year after the
commencement of section 29 of that
Act or on the bail justice attaining the
age of 70 years, whichever first occurs;
(b) in the case of a bail justice appointed on
20 or after 1 January 1991 and before
1 January 2000, 2 years after the
commencement of section 29 of that
Act or on the bail justice attaining the
age of 70 years, whichever first occurs;
25 (c) in the case of a bail justice appointed on
or after 1 January 2000 and before the
commencement of section 29 of that
Act, 3 years after the commencement of
section 29 of that Act or on the bail
30 justice attaining the age of 70 years,
whichever first occurs.
561391B.I-27/7/2010 33 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 3--Magistrates' Court Act 1989
s. 35
(2) On the commencement of section 29 of the
Bail Amendment Act 2010--
(a) an application for appointment as a bail
justice that has been made but not
5 determined before that commencement
is to be taken to be an application made
under section 120B of this Act; and
(b) the applicant's completion before that
commencement of the whole or part of
10 a course of training that is subsequently
prescribed for the purposes of section
120A(2)(e) may be relied on for the
purposes of the application.
(3) Section 121 as amended by section 30 of the
15 Bail Amendment Act 2010 applies to a
person who commences to hold a prescribed
office within the meaning of section 121 on
or after the commencement of section 30 of
that Act.
20 (4) Section 122 as in force immediately before
the commencement of section 31 of the Bail
Amendment Act 2010 continues to apply to
any proceeding under section 122 existing
immediately before the commencement of
25 section 31 of that Act.".
__________________
561391B.I-27/7/2010 34 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 4--Consequential Amendments
s. 36
PART 4--CONSEQUENTIAL AMENDMENTS
36 Criminal Procedure Act 2009 See:
Act No.
7/2009.
In section 333(1)(d)(i) of the Criminal Reprint No. 1
Procedure Act 2009 omit "special". as at
1 January
2010
and
amending
Act Nos
7/2009,
13/2009,
6/2010,
30/2010 and
34/2010.
LawToday:
www.
legislation.
vic.gov.au
5 37 Crown Proceedings Act 1958 See:
Act No.6232.
Reprint No. 4
In section 6(1A) of the Crown Proceedings as at
Act 1958-- 24 September
1998
(a) omit "or lodged by way of security a pass- and
amending
book, stock card or other document for Act Nos
10 operating an account"; and 74/2000,
18/2005 and
(b) omit "or that the amount of the bail be 68/2009.
LawToday:
withdrawn from the account (as the case may www.
be)". legislation.
vic.gov.au
561391B.I-27/7/2010 35 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 4--Consequential Amendments
s. 38
See: 38 Family Violence Protection Act 2008
Act No.
52/2008 In section 52(2)(b)(i) of the Family Violence
and Protection Act 2008 omit "special".
amending
Act Nos
52/2008,
51/2009,
55/2009,
68/2009,
69/2009,
7/2010,
18/2010 and
30/2010.
LawToday:
www.
legislation.
vic.gov.au
5 See: 39 Interpretation of Legislation Act 1984
Act No.
10096.
Reprint No. 10
In section 38 of the Interpretation of Legislation
as at Act 1984 in the definition of bail justice--
20 May 2010
and (a) in paragraph (a), for "section 120" substitute
amending
Act Nos "section 120A or 120C"; and
10/2010,
10 11/2010 and (b) after paragraph (a) insert--
13/2010.
LawToday: "(ab) acting bail justice appointed under
www.
legislation.
section 120E of the Magistrates'
vic.gov.au Court Act 1989; or".
See: 40 Stalking Intervention Orders Act 2008
Act No.
68/2008
15 and
In section 48(2)(b)(i) of the Stalking
amending Intervention Orders Act 2008 omit "special".
Act Nos
55/2009,
69/2009,
18/2010 and
30/2010.
LawToday:
www.
legislation.
vic.gov.au
561391B.I-27/7/2010 36 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 4--Consequential Amendments
s. 41
41 Victims' Charter Act 2006 See:
Act No.
In section 10(1)(b) of the Victims' Charter Act 65/2006
2006 omit "special". and
amending
Act Nos
21/2008,
52/2008,
68/2009 and
91/2009.
LawToday:
www.
legislation.
vic.gov.au
__________________
561391B.I-27/7/2010 37 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Part 5--Repeal of Amending Act
s. 42
PART 5--REPEAL OF AMENDING ACT
42 Repeal of amending Act
This Act is repealed on 1 January 2012.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
561391B.I-27/7/2010 38 BILL LC INTRODUCTION 27/7/2010
Bail Amendment Bill 2010
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561391B.I-27/7/2010 39 BILL LC INTRODUCTION 27/7/2010
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