Victorian Bills Victorian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Bail Amendment (Stage One) Act 2017
No. of 2017
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
Part 2--Amendment of Bail Act 1977 3
3 New sections 1A and 1B inserted 3
4 Definitions 4
5 Accused held in custody entitled to bail 5
6 New section 5 substituted and new sections 5AAA and 5AAB
inserted 8
7 Application for bail 14
8 New sections 10 and 10A substituted 14
9 New section 12 substituted 17
10 New section 13 substituted 18
11 New section 13 amended 18
12 Transitional provisions 18
13 New Schedules 1 and 2 inserted 19
14 Consequential amendments 27
15 Amendments consequential on Fines Reform Act 2014 29
16 Amendments consequential on National Domestic Violence
Order Scheme Act 2016 30
Part 3--Amendment of Family Violence Protection Act 2008 31
17 New sections 175AA and 175AB inserted 31
18 New section 175AC inserted (consequential on National
Domestic Violence Order Scheme Act 2016) 32
Part 4--Consequential amendment of other Acts and repeal of
amending Act 33
Division 1--Consequential amendment of other Acts 33
19 Children, Youth and Families Act 2005 33
20 Corrections Act 1986 33
21 Crimes Act 1958 34
22 Criminal Procedure Act 2009 34
23 Fines Reform Act 2014 34
24 Magistrates' Court Act 1989 34
i
Clause Page
25 Sentencing Act 1991 35
26 Sex Work Act 1994 35
27 Victims' Charter Act 2006 35
28 Victorian Civil and Administrative Tribunal Act 1998 35
Division 2--Repeal of amending Act 36
29 Repeal of amending Act 36
═════════════
Endnotes 37
1 General information 37
ii
Bail Amendment (Stage One) Act 2017
No. of 2017
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to amend the Bail Act 1977--
(i) to make fresh provision about the
circumstances in which bail may be
granted or refused and who may grant
bail; and
1
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 1--Preliminary
(ii) to provide for conditions about the
conduct of an accused to continue to
have effect until varied or revoked; and
(b) to make consequential amendments to
various 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
operation before 1 July 2018, it comes into
operation on that day.
2
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
Part 2--Amendment of Bail Act 1977
3 New sections 1A and 1B inserted
After section 1 of the Bail Act 1977 insert--
"1A Purpose
The purpose of this Act is to provide a
legislative framework for the making of
decisions as to whether a person accused of
an offence should be granted bail, with or
without conditions, or remanded in custody.
1B Guiding principles
(1) The Parliament recognises the importance
of--
(a) maximising the safety of the
community and persons affected by
crime to the greatest extent possible;
and
(b) taking account of the presumption of
innocence and the right to liberty; and
(c) promoting fairness, transparency and
consistency in bail decision making;
and
(d) promoting public understanding of bail
practices and procedures.
(2) It is the intention of the Parliament that
this Act is to be applied and interpreted
having regard to the matters set out in
subsection (1).".
3
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
4 Definitions
(1) In section 3 of the Bail Act 1977 insert the
following definitions--
"bail decision maker means any of the following
empowered under this Act to grant bail--
(a) a court;
(b) a bail justice;
(c) a police officer;
(d) the sheriff or a person authorised
under section 84(5) of the
Infringements Act 2006;
family violence has the same meaning as in the
Family Violence Protection Act 2008;
family violence intervention order has the
same meaning as in the Family Violence
Protection Act 2008;
family violence offence means--
(a) an offence against section 37(2),
37A(2), 123(2), 123A(2) or 125A(1)
of the Family Violence Protection
Act 2008; or
(b) an offence where the conduct of the
accused is family violence;
family violence safety notice has the same
meaning as in the Family Violence
Protection Act 2008;".
(2) In section 3 of the Bail Act 1977--
(a) in the definition of conduct condition,
for "section 5(2A)" substitute
"section 5AAA(4)";
(b) the definition of court is repealed;
4
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(c) insert the following definitions--
"Schedule 1 offence means an offence
specified in Schedule 1 and, if
circumstances are specified in
Schedule 1 in relation to that offence,
means an offence committed in those
circumstances;
Schedule 2 offence means an offence
specified in Schedule 2 and, if
circumstances are specified in
Schedule 2 in relation to that offence,
means an offence committed in those
circumstances;";
(d) for the definition of undertaking
substitute--
"undertaking--see section 5.".
5 Accused held in custody entitled to bail
(1) In section 4(2) of the Bail Act 1977--
(a) for "a court" substitute "a bail decision
maker";
(b) in paragraphs (aa) and (b), for "the court"
substitute "the bail decision maker";
(c) in paragraph (d), for "the court" substitute
"the bail decision maker".
(2) In section 4(2) of the Bail Act 1977, for
paragraphs (a), (aa) and (b) substitute--
"(a) in the case of a person charged
with a Schedule 1 offence, unless the bail
decision maker is satisfied that exceptional
circumstances exist that justify the grant of
bail; or";
(3) In section 4(2)(d)(i) of the Bail Act 1977, for
"members of the public" substitute "any person".
5
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(4) At the foot of section 4(2)(d)(i) of the
Bail Act 1977 insert--
"Example
An unacceptable risk that the accused if released on
bail would commit a family violence offence.".
(5) In section 4(2A) of the Bail Act 1977, for
"A court" substitute "A bail decision maker".
(6) In section 4(3) of the Bail Act 1977, for
"the court" (where twice occurring) substitute
"the bail decision maker".
(7) In section 4(4) of the Bail Act 1977--
(a) in paragraphs (b)(ii), (ba)(ii) and (bb)(ii) for
"the court" substitute "the bail decision
maker";
(b) for "court shall refuse bail unless the accused
shows cause" substitute "bail decision
maker must refuse bail unless the accused
shows compelling reason";
(c) for "court grants bail the court" substitute
"bail decision maker grants bail the bail
decision maker".
(8) For section 4(4) of the Bail Act 1977
substitute--
"(4) A bail decision maker must refuse bail for
a person accused of a Schedule 2 offence
unless the accused shows compelling reason
why their detention in custody is not
justified.
(4A) A bail decision maker who grants bail for
a person accused of a Schedule 2 offence
must--
(a) if a court, include in the order a
statement of reasons for granting bail;
or
6
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(b) in any other case, provide a statement
of reasons as required by the
regulations.".
(9) Before section 4(5) of the Bail Act 1977 insert--
"(4B) Subsection (4C) applies in relation to an
application for bail made by or on behalf of
a person accused of an offence of causing
injury to another person.
(4C) A bail decision maker may refuse bail if at
the time of deciding the application it is
uncertain whether the person injured will
die or recover from the injury.
(4D) A bail decision maker may adjourn the
hearing of a matter for up to 4 hours if
satisfied that the accused appears to be
seriously affected by alcohol or another
drug or a combination of drugs.
(4E) On adjourning a hearing under subsection
(4D), the bail decision maker may remand
the accused in custody until the further
hearing of the matter.
(4F) Subsection (4G) applies if, on the first
further hearing of a matter adjourned under
subsection (4D), the bail decision maker is
satisfied that the accused still appears to be
seriously affected by alcohol or another drug
or a combination of drugs.
(4G) The bail decision maker may adjourn the
hearing of the matter for one further period
of up to 4 hours and remand the accused in
custody until the next hearing of the matter.
(4H) A bail decision maker considering the
release of an accused on bail must make
inquiries of the informant or prosecutor or
any person appearing on behalf of the Crown
as to whether there is in force--
7
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(a) a family violence intervention order
made against the accused; or
(b) a family violence safety notice issued
against the accused.
(4I) A bail decision maker considering the
release on bail of an accused charged with a
family violence offence must consider--
(a) whether, if the accused were released
on bail, there would be a risk that the
accused would commit family violence;
and
(b) whether that risk could be reduced by--
(i) the imposition of a condition; or
(ii) the making of a family violence
intervention order.".
(10) For section 4(5) of the Bail Act 1977
substitute--
"(5) In granting bail, a bail decision maker may
impose conduct conditions.".
(11) After section 4(5) of the Bail Act 1977 insert--
"(6) For the purposes of this section, an offence
that is both a Schedule 1 offence and a
Schedule 2 offence must be taken to be a
Schedule 1 offence.".
6 New section 5 substituted and new sections 5AAA
and 5AAB inserted
For section 5 of the Bail Act 1977 substitute--
"5 Bail undertaking
(1) A grant of bail must require the accused to
enter into a written undertaking to surrender
into custody at the time and place of the
hearing or trial specified in the undertaking
and not to depart without leave of the court
8
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
and, if leave is given, to return at the time
specified by the court and again surrender
into custody.
(2) A bail decision maker, considering the
release of an accused on bail, must consider
whether to release the accused--
(a) on their own undertaking without any
other condition; or
(b) on their own undertaking with conduct
conditions; or
(c) with a surety or sureties for a specified
amount or a deposit of money of a
specified amount, with or without
conduct conditions.
(3) Any surety that is required must also enter
into an undertaking to pay the specified
amount if the accused fails to comply with
the undertaking entered into by them.
Notes
1 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.
2 Sections 23 and 25 of the Charter of Human Rights
and Responsibilities set out the rights of children in the
criminal process and the rights of an adult in criminal
proceedings.
3 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 purpose that the limitation
seeks to achieve.
9
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
5AAA Conduct conditions
(1) A bail decision maker considering the
release of an accused on bail must impose
any condition that, in the opinion of the bail
decision maker, will reduce the likelihood
that the accused may--
(a) endanger the safety or welfare of any
person; or
(b) fail to attend in accordance with their
bail and surrender into custody at the
time and place of the hearing or trial; or
(c) commit an offence while on bail; or
(d) interfere with witnesses or otherwise
obstruct the course of justice in any
matter before the court.
Example
A bail decision maker may impose a condition in
order to reduce the likelihood that the accused may
commit a family violence offence.
(2) If a bail decision maker imposes one or more
conditions, each condition and the number of
conditions--
(a) must be no more onerous than is
required to reduce the likelihood that
the accused may do a thing mentioned
in subsection (1)(a) to (d); and
(b) must be reasonable, having regard to
the nature of the alleged offence and
the circumstances of the accused; and
(c) subject to subsection (3), must be
consistent with each condition of each
family violence intervention order or
family violence safety notice to which
the accused is subject.
10
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(3) A bail decision maker may impose a
condition that is inconsistent with a
condition of a family violence intervention
order or family violence safety notice if the
bail decision maker is satisfied that the
proposed condition will better protect the
safety or welfare of--
(a) an alleged victim of the offence with
which the accused is charged; or
(b) a protected person (within the meaning
of the Family Violence Protection
Act 2008).
Note
Sections 175AA and 175AB of the Family
Violence Protection Act 2008 provide that if it is
not possible to comply with both a bail condition and
a family violence safety notice or a family violence
intervention order, the safety notice or intervention
order prevails to the extent of the inconsistency.
(4) Without limiting section 4(5) or 5(2), a bail
decision maker may impose all or any of the
following conditions about the conduct of an
accused--
(a) reporting to a police station;
(b) residing at a particular address;
(c) subject to subsection (5), a curfew
imposing times at which the accused
must be at their place of residence;
(d) that the accused is not to contact
specified persons or classes of person;
Example
Witnesses, alleged victims or co-accused.
(e) surrender of the accused's passport;
11
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(f) geographical exclusion zones, being
places or areas the accused must not
visit or may only visit at specified
times;
Example
Not attending a gaming venue, a venue
that sells alcohol or a point of international
departure.
(g) attendance and participation in a bail
support service;
(h) that the accused not drive a motor
vehicle or carry passengers when
driving a motor vehicle;
(i) that the accused not consume alcohol
or use a drug of dependence within the
meaning of the Drugs, Poisons and
Controlled Substances Act 1981
without lawful authorisation under that
Act;
(j) that the accused comply with any
existing intervention orders;
(k) any other condition that the bail
decision maker considers appropriate to
impose in relation to the conduct of the
accused.
(5) If a bail decision maker imposes a curfew on
an accused as a conduct condition, the period
of curfew imposed must not exceed 12 hours
within a 24-hour period.
(6) A condition imposed by a bail decision
maker continues to be binding on the
accused until it is varied or revoked or the
matter in relation to which it was imposed
is finally determined by a court.
12
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
5AAB Sureties
(1) If a bail decision maker is considering, in
accordance with section 5(2)(c), imposing a
condition that requires a deposit of money of
a specified amount, the bail decision maker
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.
(2) If a bail decision maker is satisfied under
subsection (1) that the accused does not
have sufficient means to satisfy a condition
requiring a deposit of money of a specified
amount, the bail decision maker must
consider whether any other condition would
reduce the likelihood that the accused may
do a thing mentioned in section 5AAA(1)(a)
to (d).
(3) If a bail decision maker is considering
imposing a condition that requires a surety
for a specified amount, the bail decision
maker must have regard to the means of a
proposed surety in determining--
(a) whether to impose the condition; and
(b) the amount of the surety.
(4) If a bail decision maker is satisfied under
subsection (3) that the accused is unable to
provide a surety with sufficient means, the
bail decision maker must consider whether
any other condition would reduce the
likelihood that the accused may do a thing
mentioned in section 5AAA(1)(a) to (d).".
13
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
7 Application for bail
After section 8(1)(c)(ii) of the Bail Act 1977
insert--
"(iia) to show that there is a risk that the accused
may subject another person to family
violence;".
8 New sections 10 and 10A substituted
For section 10 of the Bail Act 1977 substitute--
"10 Power of police officer, sheriff or
authorised person to grant or refuse bail
(1) This section applies if a person is arrested
and it is not practicable to bring the person
before a court immediately after the person
is taken into custody or, if questioning or
investigation under section 464A(2) of
the Crimes Act 1958 has commenced,
immediately on the expiration of the
reasonable time referred to in section
464A(1) of that Act.
(2) A police officer of or above the rank of
sergeant or for the time being in charge
of a police station, the sheriff or a person
authorised under section 84(5) of the
Infringements Act 2006 (as the case
requires) must, without delay, consider
whether to grant bail to the person in
accordance with this Act.
(3) If the person is a child, the bail decision
maker must ensure that a parent or guardian
of the child, or an independent person, is
present during the proceeding in relation to
bail.
Note
See also section 5AA (conditions of bail granted to a
child in certain circumstances).
14
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(4) An independent person present in
accordance with subsection (3) may take
steps to facilitate the granting of bail, for
example, by arranging accommodation.
(5) The police officer, the sheriff or person
authorised under section 84(5) of the
Infringements Act 2006, in accordance
with this Act, may grant or refuse bail.
Note
Section 13 imposes restrictions on who may grant
bail to a person accused of treason or murder.
(6) If bail is refused under subsection (5), the
bail decision maker must--
(a) advise the arrested person that they are
entitled, should they so desire, to apply
for bail to a court or, if it is then outside
ordinary court sitting hours, to a bail
justice ; or
(b) give the person a written statement
setting out the provisions of this
subsection.
(7) If the arrested person elects under subsection
(6) to apply for bail, the arrested person
must be brought before a court as soon as
practicable or, if it is then outside ordinary
court sitting hours, before a bail justice.
10A Power of bail justice to grant or refuse
bail
(1) This section applies if a person in custody is
brought before a bail justice in accordance
with section 10(7) or section 64(2)(a)
or 78(2)(a) of the Magistrates' Court
Act 1989.
15
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(2) The bail justice must hear and determine
any application made for bail, or for remand
in custody, in respect of the person.
(3) If the person is a child, the bail justice must
ensure that a parent or guardian of the child,
or an independent person, is present during
the hearing of the application.
Note
See also section 5AA (conditions of bail granted to a
child in certain circumstances).
(4) An independent person present in accordance
with subsection (3) may take steps to
facilitate the granting of bail, for example,
by arranging accommodation.
(5) The bail justice, in accordance with this Act,
may grant or refuse bail.
Note
Section 13 imposes restrictions on who may grant bail
to a person accused of treason or murder.
(6) A bail justice who refuses bail must remand
the person in custody to appear before a
court--
(a) on the next working day; or
(b) within 2 working days if--
(i) the next working day is not
practicable; or
(ii) the person is a child and the
proper venue of the Children's
Court is in a region of the State
prescribed under the Children,
Youth and Families Act 2005.".
16
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
9 New section 12 substituted
For section 12 of the Bail Act 1977 substitute--
"12 Power of court to grant or refuse bail
(1) This section applies if a person in custody
is before a court, whether as a result of
being brought before it in accordance with
section 10(7) or 10A(6) of this Act or
section 64(2)(a) of the Magistrates' Court
Act 1989 or being otherwise before it.
(2) The court must hear and determine any
application made for bail, or for remand in
custody, in respect of the person.
(3) The court, in accordance with this Act, may
grant or refuse bail.
Note
Section 13 imposes restrictions on who may grant bail
to a person accused of treason or murder.
(4) If the court refuses bail, it must--
(a) remand the person in custody to appear
before a court at a later date, which
must not be for a period longer than
21 clear days in the case of a child; and
(b) certify on the remand warrant a
statement of the refusal and of the
grounds for it.
(5) If a child is brought before a court on the
expiry of a period of remand in custody, the
court must not remand the child in custody
for a further period longer than 21 clear
days.".
17
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
10 New section 13 substituted
For section 13 of the Bail Act 1977 substitute--
"13 Treason and murder
(1) Only the Supreme Court may grant bail to a
person accused of treason.
(2) Only the Supreme Court, or the Magistrates'
Court on committing the person for trial,
may grant bail to a person accused of
murder.".
11 New section 13 amended
(1) For the heading to section 13 of the Bail Act 1977
substitute "Treason, murder and other
Schedule 1 offences".
(2) After section 13(2) of the Bail Act 1977 insert--
"(3) Only a court may grant bail to a person
accused of any other Schedule 1 offence.".
12 Transitional provisions
After section 34(17) of the Bail Act 1977
insert--
"(18) An amendment made to this Act by a
provision of Part 2 of the Bail Amendment
(Stage One) Act 2017 applies to an
application made, or an appeal commenced,
under this Act on or after the commencement
of that provision, regardless of when the
offence is alleged to have been committed.".
18
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
13 New Schedules 1 and 2 inserted
After Part 5 of the Bail Act 1977 insert--
"Schedule 1--Offences--exceptional
circumstances
1. Treason.
2. Murder.
3. A Schedule 2 offence that is alleged to have been
committed by the accused--
(a) while on bail for any Schedule 1 offence or
Schedule 2 offence; or
(b) while subject to a summons to answer to a charge
for any Schedule 1 offence or Schedule 2 offence;
or
(c) while at large awaiting trial for any Schedule 1
offence or Schedule 2 offence; or
(d) during the period of a community correction order
made in respect of the accused for any Schedule 1
offence or Schedule 2 offence or while otherwise
serving a sentence for any such offence; or
(f) while released under a parole order made in
respect of any Schedule 1 offence or Schedule 2
offence.
4. An offence against section 77B of the Crimes Act 1958
(aggravated home invasion).
5. An offence against section 79A of the Crimes Act 1958
(aggravated carjacking).
6. An offence against any of the following provisions of the
Drugs, Poisons and Controlled Substances Act 1981--
(a) section 71 (trafficking in a quantity of a drug or
drugs of dependence that is not less than the large
commercial quantity applicable to that drug or
those drugs);
19
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(b) section 71AA (trafficking in a quantity of a drug
or drugs of dependence that is not less than the
commercial quantity applicable to that drug or
those drugs);
(c) section 72 (cultivation of a narcotic plant in a
quantity of a drug of dependence, being a narcotic
plant, that is not less than the large commercial
quantity applicable to that narcotic plant);
(d) section 72A (cultivation of a narcotic plant in a
quantity of a drug of dependence, being a narcotic
plant, that is not less than the commercial quantity
applicable to that narcotic plant);
(e) section 79(1) (conspiracy) in circumstances where
the conspiracy is to commit an offence referred to
in paragraph (a), (b), (c) or (d).
7. An offence against any of the following provisions of
the Drugs, Poisons and Controlled Substances Act 1981
(as in force immediately before the commencement of the
Drugs, Poisons and Controlled Substances
(Amendment) Act 2001)--
(a) section 71(1) (trafficking in a drug of dependence)
in circumstances where the offence is committed
in relation to a quantity of a drug of dependence
that is not less than the commercial quantity
applicable to that drug of dependence;
(b) section 72(1) (cultivation of narcotic plants) in
circumstances where the offence is committed in
relation to a quantity of a drug of dependence,
being a narcotic plant, that is not less than the
commercial quantity applicable to that narcotic
plant;
(c) section 79(1) (conspiracy) in circumstances where
the conspiracy is to commit an offence referred to
in paragraph (a) or (b).
20
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
8. An offence against section 302.2, 302.3, 303.4, 303.5,
304.1, 304.2, 305.3 or 305.4 of the Criminal Code of the
Commonwealth in circumstances where the offence is
committed in relation to a substance in respect of a
quantity that is not less than the commercial quantity
(as defined in section 70(1) of the Drugs, Poisons and
Controlled Substances Act 1981) applicable to the drug
of dependence as defined in that Act constituted by that
substance.
9. An offence against section 307.1, 307.2, 307.5,
307.6, 307.8 or 307.9 of the Criminal Code of the
Commonwealth in circumstances where the offence is
committed in relation to a substance in respect of a
quantity that is not less than the commercial quantity
(as defined in section 70(1) of the Drugs, Poisons and
Controlled Substances Act 1981) applicable to the drug
of dependence as defined in that Act constituted by that
substance.
10. An offence under section 231(1), 233A or 233B(1) of
the Customs Act 1901 of the Commonwealth (as in force
immediately before the commencement of the Law and
Justice Legislation Amendment (Serious Drug Offences
and Other Measures) Act 2005 of the Commonwealth) in
circumstances where the offence is committed in relation
to narcotic goods within the meaning of that Act in respect
of a quantity that is not less than the commercial quantity
(as defined in section 70(1) of the Drugs, Poisons and
Controlled Substances Act 1981) applicable to the drug
of dependence as defined in that Act constituted by those
narcotic goods.
11. An offence against section 4B(1) or 21W of the
Terrorism (Community Protection) Act 2003.
12. An offence of conspiracy to commit, incitement to commit
or attempting to commit an offence referred to in any other
item of this Schedule.
21
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
Schedule 2--Offences--show
compelling reason
1. An indictable offence that is alleged to have been
committed by the accused--
(a) while on bail for another indictable offence; or
(b) while subject to a summons to answer to a charge
for another indictable offence; or
(c) while at large awaiting trial for another indictable
offence; or
(d) during the period of a community correction
order made in respect of the accused for another
indictable offence or while otherwise serving a
sentence for another indictable offence; or
(e) while released under a parole order.
2. Manslaughter.
3. Child homicide.
4. An offence against section 15A(1) of the Crimes
Act 1958 (causing serious injury intentionally in
circumstances of gross violence).
5. An offence against section 15B(1) of the Crimes
Act 1958 (causing serious injury recklessly in
circumstances of gross violence).
6. An offence against section 16 of the Crimes Act 1958
(causing serious injury intentionally).
7. An offence against section 20 of the Crimes Act 1958
(threats to kill) that is also a family violence offence.
8. An offence against section 21A(1) of the Crimes
Act 1958 (stalking) and--
(a) the accused has within the preceding 10 years
been convicted or found guilty of an offence
against that section in relation to any person or
an offence in the course of committing which the
22
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
accused used or threatened to use violence against
any person; or
(b) the bail decision maker is satisfied that the
accused on a separate occasion used or threatened
to use violence against the person whom the
accused is alleged to have stalked, whether or not
the accused has been convicted or found guilty of,
or charged with, an offence in connection with
that use or threatened use of violence.
9. An offence against section 38(1) of the Crimes Act 1958
(rape).
10. An offence against section 39(1) of the Crimes Act 1958
(rape by compelling sexual penetration).
11. An offence against section 42(1) of the Crimes Act 1958
(assault with intent to commit a sexual offence).
12. An offence against section 47(1) of the Crimes Act 1958
(abduction or detention for a sexual purpose).
13. An offence against section 49A(1) of the Crimes
Act 1958 (sexual penetration of a child under the age
of 12).
14. An offence against section 49B(1) of the Crimes
Act 1958 (sexual penetration of a child under the age
of 16) in circumstances other than where at the time of
the alleged offence the child was 12 years of age or more
and the accused was not more than 2 years older than the
child.
15. An offence against section 49J(1) of the Crimes Act 1958
(persistent sexual abuse of a child under the age of 16).
16. An offence against section 49P(1) of the Crimes Act 1958
(abduction or detention of a child under the age of 16 for a
sexual purpose).
23
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
17. An offence against any of the following provisions of
Subdivision (8C) of Division 1 of Part I of the Crimes
Act 1958 (incest) in circumstances other than where both
people are aged 18 or older--
(a) section 50C(1) (sexual penetration of a child
or lineal descendant);
(b) section 50D(1) (sexual penetration of a
step-child);
(c) section 50E(1) (sexual penetration of a parent,
lineal ancestor or step-parent);
(d) section 50F(1) (sexual penetration of a sibling
or half-sibling).
18. An offence against section 37, 37A, 123 or 123A of the
Family Violence Protection Act 2008 of contravening
a family violence intervention order or family violence
safety notice (as the case requires) in the course of
committing which the accused is alleged to have used
or threatened to use violence and--
(a) the accused has within the preceding 10 years
been convicted or found guilty of an offence in the
course of committing which the accused used or
threatened to use violence against any person; or
(b) the bail decision maker is satisfied that the
accused on a separate occasion used or threatened
to use violence against the person who is the
subject of the order or notice, whether or not the
accused has been convicted or found guilty of, or
charged with, an offence in connection with that
use or threatened use of violence.
19. An offence against section 125A(1) of the Family
Violence Protection Act 2008 (persistent contravention
of notices and orders).
24
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
20. An offence against section 100 of the Personal Safety
Intervention Orders Act 2010 of contravening an order
in the course of committing which the accused is alleged
to have used or threatened to use violence and--
(a) the accused has within the preceding 10 years
been convicted or found guilty of an offence in the
course of committing which the accused used or
threatened to use violence against any person; or
(b) the bail decision maker is satisfied that the
accused on a separate occasion used or threatened
to use violence against the person who is the
subject of the order, whether or not the accused
has been convicted or found guilty of, or charged
with, an offence in connection with that use or
threatened use of violence.
21. An offence against section 63A of the Crimes Act 1958
(kidnapping).
22. An offence against any of the following provisions of the
Crimes Act 1958--
(a) section 75A(1) (armed robbery);
(b) section 77 (aggravated burglary);
(c) section 77A (home invasion);
(d) section 79 (carjacking);
(e) section 197A (arson causing death);
(f) section 318(1) (culpable driving causing death);
(g) section 319(1) or (1A) (dangerous driving causing
death or serious injury);
(h) section 319AA(1) (dangerous or negligent driving
while pursued by police).
25
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
23. Any indictable offence in the course of committing which
the accused, or any person involved in the commission of
the offence, is alleged to have used or threatened to use a
firearm, offensive weapon, or explosive as defined by
section 77 of the Crimes Act 1958.
24. An offence against any of the following provisions of the
Drugs, Poisons and Controlled Substances Act 1981--
(a) section 71AB (trafficking in a drug or drugs of
dependence to a child);
(b) section 71AC (trafficking in a drug of
dependence);
(c) section 72B (cultivation of narcotic plants);
(d) section 79(1) (conspiracy) in circumstances
where the conspiracy is to commit an offence
referred to in paragraph (a), (b) or (c).
25. An offence against any of the following provisions of
the Drugs, Poisons and Controlled Substances Act 1981
(as in force immediately before the commencement of the
Drugs, Poisons and Controlled Substances
(Amendment) Act 2001)--
(a) section 71(1) (trafficking in a drug of
dependence);
(b) section 72(1) (cultivation of narcotic plants);
(c) section 79(1) (conspiracy) in circumstances
where the conspiracy is to commit an offence
referred to in paragraph (a) or (b).
26. An offence against section 302.2, 302.3, 303.4, 303.5,
304.1, 304.2, 305.3, 305.4, 306.2, 307.1, 307.2, 307.5,
307.6, 307.8, 307.9, 307.11, 309.3, 309.4, 309.7, 309.8,
309.10, 309.11, 309.12, 309.13, 309.14 or 309.15 of the
Criminal Code of the Commonwealth.
26
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
27. An offence under section 231(1), 233A or 233B(1) of
the Customs Act 1901 of the Commonwealth (as in force
immediately before the commencement of the Law and
Justice Legislation Amendment (Serious Drug Offences
and Other Measures) Act 2005 of the Commonwealth) in
circumstances where the offence is committed in relation
to a commercial or trafficable quantity of narcotic goods
within the meaning of that Act.
28. An indictable offence that is alleged to have been
committed while the accused is the subject of a
supervision order, or interim supervision order,
within the meaning of the Serious Sex Offenders
(Detention and Supervision) Act 2009.
29. An indictable offence, and the accused, at any time
during the proceeding with respect to bail, is the subject
of a supervision order, or interim supervision order,
within the meaning of the Serious Sex Offenders
(Detention and Supervision) Act 2009.
30. An offence against this Act.
31. An offence of conspiracy to commit, incitement to commit
or attempting to commit an offence referred to in any other
item of this Schedule.".
14 Consequential amendments
(1) In section 3A of the Bail Act 1977--
(a) for "a court must take" substitute "a bail
decision maker must take";
(b) in the Note at the foot of the section, for
"a court" substitute "a bail decision maker".
(2) In section 3B(1) and (2) of the Bail Act 1977,
for "a court" substitute "a bail decision maker".
(3) In section 5AA(2) of the Bail Act 1977, for
"section 5(4)" substitute "section 5AAA(2)".
27
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(4) In section 7(1) of the Bail Act 1977, for
"the court" (wherever occurring) substitute
"the bail decision maker".
(5) In section 8(1) of the Bail Act 1977, for
"the court" (wherever occurring) substitute
"the bail decision maker".
(6) In section 8(1)(e) of the Bail Act 1977, for
"it" substitute "the bail decision maker".
(7) In section 9(3) of the Bail Act 1977, for
"the court" substitute "the bail decision maker".
(8) In section 9(3A)(b) of the Bail Act 1977, after
"any other" insert "bail decision maker or to a".
(9) In section 9(3B)(a)(iii) and (b)(ii), (3C) and (3D)
of the Bail Act 1977, omit "authorised by
section 27".
(10) For the Note at the foot of sections 10(5), 10A(5)
and 12(3) of the Bail Act 1977 substitute--
"Note
Only a court may grant bail to a person accused of a
Schedule 1 offence. See section 13.".
(11) Section 14 of the Bail Act 1977 is repealed.
(12) In section 16(1) of the Bail Act 1977, for
"no court" substitute "no bail decision maker".
(13) In section 16B of the Bail Act 1977--
(a) for "court or bail justice" substitute
"bail decision maker";
(b) omit "or a police officer discharging a child
on bail under section 10";
(c) for "court or bail justice or police officer"
substitute "bail decision maker".
28
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
(14) In section 17(1) and (2) of the Bail Act 1977,
for "A court" substitute "A bail decision maker".
(15) In sections 18(3)(a), 18AC(3)(a) and 18AE(2)(a)
of the Bail Act 1977 omit "or a judge of the
Supreme Court".
(16) In section 26(1) of the Bail Act 1977--
(a) for "a court by which" substitute
"bail decision maker by whom or which";
(b) for "the court" substitute "the bail decision
maker".
(17) In section 27(1) of the Bail Act 1977--
(a) for "the court"(where twice occurring)
substitute "the bail decision maker";
(b) for "any other court" substitute "any court".
15 Amendments consequential on Fines Reform
Act 2014
(1) In section 3 of the Bail Act 1977, for
paragraph (d) of the definition of bail decision
maker substitute--
"(d) the sheriff or a person authorised under
section 115(5) of the Fines Reform
Act 2014;".
(2) In section 5AA(1) and (2) of the Bail Act 1977,
for "section 84(5) of the Infringements
Act 2006" substitute "section 115(5) of the
Fines Reform Act 2014".
(3) In section 10(2) and (5) of the Bail Act 1977, for
"section 84(5) of the Infringements Act 2006"
substitute "section 115(5) of the Fines Reform
Act 2014".
29
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 2--Amendment of Bail Act 1977
16 Amendments consequential on National Domestic
Violence Order Scheme Act 2016
(1) In section 3 of the Bail Act 1977, insert the
following definition after the definition of
prison--
"recognised DVO has the same meaning as in the
Family Violence Protection Act 2008;".
(2) In section 4(4H) of the Bail Act 1977--
(a) in paragraph (b), for "accused." substitute
"accused; or";
(b) after paragraph (b) insert--
"(c) a recognised DVO made against the
accused.".
(3) In section 5AAA(2)(c) of the Bail Act 1977,
for "or family violence safety notice" substitute
", family violence safety notice or recognised
DVO".
(4) In section 5AAA(3) of the Bail Act 1977, for
"or family violence safety notice" substitute
", family violence safety notice or recognised
DVO".
(5) For the Note at the foot of section 5AAA(3) of the
Bail Act 1977 substitute--
"Note
Sections 175AA, 175AB and 175AC of the Family
Violence Protection Act 2008 provide that if it is not
possible to comply with both a bail condition and a family
violence safety notice, a family violence intervention order
or a recognised DVO, the safety notice, intervention order
or recognised DVO prevails to the extent of the
inconsistency.".
30
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 3--Amendment of Family Violence Protection Act 2008
Part 3--Amendment of Family Violence
Protection Act 2008
17 New sections 175AA and 175AB inserted
After section 175 of the Family Violence
Protection Act 2008 insert--
"175AA Relationship between bail conditions and
family violence safety notice
(1) This section applies if--
(a) a person is on bail subject to
conditions; and
(b) the person is subject to a family
violence safety notice; and
(c) there is an inconsistency between a
bail condition and the family violence
safety notice; and
(d) the inconsistency makes it impossible
for the person to comply with both the
bail condition and the family violence
safety notice.
(2) The family violence safety notice prevails to
the extent of the inconsistency referred to in
subsection (1)(c) and (d).
175AB Relationship between bail conditions and
family violence intervention order
(1) This section applies if--
(a) a person is on bail subject to
conditions; and
(b) the person is subject to a family
violence intervention order; and
(c) there is an inconsistency between a
bail condition and the family violence
intervention order; and
31
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 3--Amendment of Family Violence Protection Act 2008
(d) the inconsistency makes it impossible
for the person to comply with both the
bail condition and the family violence
intervention order.
(2) The family violence intervention order
prevails to the extent of the inconsistency
referred to in subsection (1)(c) and (d).".
18 New section 175AC inserted (consequential on
National Domestic Violence Order Scheme
Act 2016)
Before section 176 of the Family Violence
Protection Act 2008 insert--
"175AC Relationship between bail conditions and
recognised DVO
(1) This section applies if--
(a) a person is on bail subject to
conditions; and
(b) the person is subject to a recognised
DVO; and
(c) there is an inconsistency between a bail
condition and the recognised DVO; and
(d) the inconsistency makes it impossible
for the person to comply with both the
bail condition and the recognised DVO.
(2) The recognised DVO prevails to the
extent of the inconsistency referred to in
subsection (1)(c) and (d).".
32
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 4--Consequential amendment of other Acts and repeal of amending Act
Part 4--Consequential amendment of other
Acts and repeal of amending Act
Division 1--Consequential amendment
of other Acts
19 Children, Youth and Families Act 2005
(1) In section 346(2)(b) of the Children, Youth
and Families Act 2005, for "under section 10 of"
substitute "in accordance with".
(2) For the Note at the foot of section 346 of the
Children, Youth and Families Act 2005
substitute--
"Note
The Bail Act 1977 contains provisions that are particular
to children. These include the following--
• section 3B (determination in relation to a child);
• section 5AA (conditions of bail granted to a child
in certain circumstances);
• section 10(3) (power of police officer, sheriff or
authorised person to grant or refuse bail);
• section 10A(3) and (6) (power of bail justice to
grant or refuse bail);
• section 12(4) and (5) (power of court to grant or
refuse bail);
• section 16B (capacity of child to enter into
undertaking);
• section 24(3A) (arrest of person released on bail).".
20 Corrections Act 1986
In section 78D(3)(b) of the Corrections
Act 1986, for "under section 4 of" substitute
"in accordance with".
33
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 4--Consequential amendment of other Acts and repeal of amending Act
21 Crimes Act 1958
At the foot of section 464A(1) of the Crimes
Act 1958 insert--
"Note
Section 10 of the Bail Act 1977 applies at the expiration of
the reasonable time referred to in subsection (1).".
22 Criminal Procedure Act 2009
For the Note at the foot of section 144(2)(c) of the
Criminal Procedure Act 2009 substitute--
"Notes
1 Section 13 of the Bail Act 1977 prevents the
Magistrates' Court granting bail to a person
committed for trial on a charge of treason.
2 See section 333 where the accused is undergoing a
sentence of detention in a youth justice centre.".
23 Fines Reform Act 2014
Section 250 of the Fines Reform Act 2014 is
repealed.
24 Magistrates' Court Act 1989
(1) At the foot of section 64(2) of the Magistrates'
Court Act 1989 insert--
"Note
Section 10A or 12 of the Bail Act 1977 applies on a
person being brought before a bail justice or the Court
at the expiration of the reasonable time referred to in
subsection (2)(a).".
(2) In section 64(3) of the Magistrates' Court
Act 1989, for "under section 10 of" substitute
"in accordance with".
34
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 4--Consequential amendment of other Acts and repeal of amending Act
(3) At the foot of section 78(2) of the Magistrates'
Court Act 1989 insert--
"Note
Section 10A or 12 of the Bail Act 1977 applies on a
person being brought before a bail justice or the Court
at the expiration of the reasonable time referred to in
subsection (2)(a).".
(4) In section 78(3) of the Magistrates' Court
Act 1989, for "under section 10 of" substitute
"in accordance with".
25 Sentencing Act 1991
In section 69F(1) of the Sentencing Act 1991, for
"under section 10 of" substitute "in accordance
with".
26 Sex Work Act 1994
In section 64(6) of the Sex Work Act 1994, for
"under section 10 of" substitute "in accordance
with".
27 Victims' Charter Act 2006
Section 10(2) of the Victims' Charter Act 2006
is repealed.
28 Victorian Civil and Administrative Tribunal
Act 1998
In sections 134(5)(b) and 137(4)(b) of the
Victorian Civil and Administrative Tribunal
Act 1998, for "court" substitute "bail decision
maker".
35
Bail Amendment (Stage One) Act 2017
No. of 2017
Part 4--Consequential amendment of other Acts and repeal of amending Act
Division 2--Repeal of amending Act
29 Repeal of amending Act
This Act is repealed on 1 November 2019.
Note
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).
═════════════
36
Bail Amendment (Stage One) Act 2017
No. of 2017
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Bail Act 1977 to make fresh provision about the circumstances in which
bail may be granted or refused and who may grant bail, to amend the
Family Violence Protection Act 2008, to make consequential
amendments to other Acts and for other purposes."
By Authority. Government Printer for the State of Victoria.
37
[Index] [Search] [Download] [Related Items] [Help]