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BAIL ACT 1977 - NOTES

Version No. 137

No. 9008 of 1977
Version incorporating amendments as at
5 April 2018

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Version No. 137

Bail Act 1977

No. 9008 of 1977
Version incorporating amendments as at
5 April 2018

Endnotes

    1     General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Bail Act 1977 was assented to on 10 May 1977 and came into operation on 1 September 1977: Government Gazette 17 August 1977 page 2654.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

    2     Table of Amendments

This publication incorporates amendments made to the Bail Act 1977 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Statute Law Revision Act 1977, No. 9059/1977

Assent Date:

29.11.77

Commencement Date:

29.11.77: subject to s. 2

Current State:

All of Act in operation

Age of Majority Act 1977, No. 9075/1977

Assent Date:

6.12.77

Commencement Date:

1.2.78: Government Gazette 11.1.78 p. 97

Current State:

All of Act in operation

Bail (Amendment) Act 1978, No. 9158/1978

Assent Date:

30.5.78

Commencement Date:

1.10.78: Government Gazette 6.9.78 p. 2869

Current State:

All of Act in operation

Statute Law Revision Act 1980, No. 9427/1980

Assent Date:

27.5.80

Commencement Date:

27.5.80: subject to s. 6(2)

Current State:

All of Act in operation

Penalties and Sentences Act 1981, No. 9554/1981

Assent Date:

19.5.81

Commencement Date:

S. 44 on 26.9.80: s. 1(3); ss 1, 36–46 on 3.6.81: Government Gazette 3.6.81 p. 1778; rest of Act on 1.9.81: Government Gazette 26.8.81 p. 2799

Current State:

All of Act in operation

Bail (Amendment) Act 1981, No. 9690/1981

Assent Date:

5.1.82

Commencement Date:

5.1.82

Current State:

All of Act in operation

Director of Public Prosecutions Act 1982, No. 9848/1982

Assent Date:

21.12.82

Commencement Date:

Ss 1–8, 17 on 12.1.83: Government Gazette 12.1.83 p. 80; rest of Act on 1.6.83: Government Gazette 11.5.83 p. 1146

Current State:

All of Act in operation

Statute Law Revision (Repeals) Act 1982, No. 9863/1982

Assent Date:

5.1.83

Commencement Date:

5.1.83

Current State:

All of Act in operation

Statute Law Revision Act 1983, No. 9902/1983

Assent Date:

15.6.83

Commencement Date:

15.6.83: subject to s. 2(2)

Current State:

All of Act in operation

Drugs, Poisons and Controlled Substances (Amendment) Act 1983, No. 10002/1983

Assent Date:

13.12.83

Commencement Date:

18.12.83: Government Gazette 14.12.83 p. 3954

Current State:

All of Act in operation

Crimes (General Amendment) Act 1984, No. 10084/1984

Assent Date:

22.5.84

Commencement Date:

1.7.84: Government Gazette 27.6.84 p. 2119

Current State:

All of Act in operation

Statute Law Revision Act 1984, No. 10087/1984

Assent Date:

22.5.84

Commencement Date:

22.5.84: subject to s. 3(2)

Current State:

All of Act in operation

Coroners Act 1985, No. 10257/1985

Assent Date:

10.12.85

Commencement Date:

Ss 1–3, Pt 9 on 12.2.86: Government Gazette 12.2.86 p. 382; rest of Act on 1.6.86: Government Gazette 30.4.86 p. 1115

Current State:

All of Act in operation

Courts Amendment Act 1986, No. 16/1986

Assent Date:

22.4.86

Commencement Date:

Ss 1–11, 13–27, 29–34 on 1.7.86: Government Gazette 25.6.86 p. 2180; s. 28 on 1.9.86: Government Gazette 27.8.86 p. 3201; s. 12 on 1.1.88: Government Gazette 7.10.87 p. 2701

Current State:

All of Act in operation

Bail (Amendment) Act 1986, No. 89/1986

Assent Date:

16.2.86

Commencement Date:

Pts 1, 2 on 15.2.87: Government Gazette 11.2.87 p. 291; Pt 3 on 3.8.87: Government Gazette 24.6.87 p. 1600

Current State:

All of Act in operation

Community Services Act 1987, No. 16/1987

Assent Date:

12.5.87

Commencement Date:

Ss 1–6, 9–13, Sch. 1 on 22.2.89: Government Gazette 22.2.89 p. 386; Sch. 2 items 1–13 on 15.3.89: Government Gazette 15.3.89 p. 587; rest of Act on 25.6.92: Government Gazette 24.6.92 p. 1532

Current State:

All of Act in operation

County Court (Amendment) Act 1989, No. 19/1989

Assent Date:

16.5.89

Commencement Date:

16.5.89: Government Gazette 26.7.89 p. 1858

Current State:

All of Act in operation

Magistrates' Court Act 1989, No. 51/1989

Assent Date:

14.6.89

Commencement Date:

S. 16(4) on 15.6.89: Special Gazette (No. 32) 15.6.89 p. 1; ss 16(5), 52, 141(3)(a)–(f) on 1.9.89: Government Gazette 30.8.89 p. 2210; rest of Act on 1.1.90: Government Gazette 25.7.90 p. 2216

Current State:

All of Act in operation

Children and Young Persons Act 1989, No. 56/1989

Assent Date:

14.6.89

Commencement Date:

S. 286 on 31.1.91: Special Gazette (No. 9) 31.1.91 p. 2; Sch. 2 item 2.1 on 23.9.91: Government Gazette 28.8.91 p. 2368; Sch. 2 items 2.2 and 2.3 on 30.9.92: Government Gazette 26.8.92 p. 2470

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989

Assent Date:

14.6.89

Commencement Date:

S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette 30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217

Current State:

All of Act in operation

Medical Practice Act 1994, No. 23/1994

Assent Date:

17.5.94

Commencement Date:

Ss 1, 2 on 17.5.94; rest of Act on 1.7.94: Government Gazette 23.6.94 p. 1672

Current State:

All of Act in operation

Crimes (Amendment) Act 1994, No. 95/1994

Assent Date:

13.12.94

Commencement Date:

Pt 1 (ss 1, 2) on 13.12.94; ss 3–10 on 23.1.95: Government Gazette 19.1.95 p. 121; rest of Act on 13.6.95: s. 2(3)

Current State:

All of Act in operation

Legal Practice Act 1996, No. 35/1996

Assent Date:

6.11.96

Commencement Date:

S. 453(Sch. 1 items 8.1–8.3) on 1.1.97: s. 2(3)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Sentencing and Other Acts (Amendment) Act 1997, No. 48/1997

Assent Date:

11.6.97

Commencement Date:

Ss 48, 49 on 1.9.97: s. 2(2)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Law and Justice Legislation (Further Amendment) Act 1997, No. 84/1997

Assent Date:

2.12.97

Commencement Date:

Ss 3–10 on 1.1.98: s. 2(2)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Bail (Amendment) Act 1998, No. 64/1998

Assent Date:

4.11.98

Commencement Date:

1.1.99: s. 2

Current State:

All of Act in operation

Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001, No. 11/2001

Assent Date:

8.5.01

Commencement Date:

S. 3(Sch. item 5) on 1.6.01: s. 2(2)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Drugs, Poisons and Controlled Substances (Amendment) Act 2001, No. 61/2001

Assent Date:

23.10.01

Commencement Date:

S. 13 on 1.1.02: s. 2(2)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Criminal Justice Legislation (Miscellaneous Amendments) Act 2002, No. 35/2002

Assent Date:

18.6.02

Commencement Date:

Ss 25(1), 28(Sch. item 1) on 19.6.02: s. 2(1)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Crimes (Property Damage and Computer Offences) Act 2003, No. 10/2003

Assent Date:

6.5.03

Commencement Date:

Ss 10, 11 on 7.5.03: s. 2

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Justice Legislation (Sexual Offences and Bail) Act 2004, No. 20/2004

Assent Date:

18.5.04

Commencement Date:

Ss 10–12 on 19.5.04: s. 2

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Legal Profession (Consequential Amendments) Act 2005, No. 18/2005

Assent Date:

24.5.05

Commencement Date:

S. 18(Sch. 1 item 9) on 12.12.05: Government Gazette 1.12.05 p. 2781

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Children and Young Persons (Miscellaneous Amendments) 2005, No. 21/2005

Assent Date:

31.5.05

Commencement Date:

S. 60 on 1.7.05: s. 2(6)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005, No. 93/2005

Assent Date:

29.11.05

Commencement Date:

S. 13 on 30.11.05: s. 2(1)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Health Professions Registration Act 2005, No. 97/2005

Assent Date:

7.12.05

Commencement Date:

S. 182(Sch. 4 item 4) on 1.7.07: s. 2(3)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Infringements (Consequential and Other Amendments) Act 2006, No. 32/2006

Assent Date:

13.6.06

Commencement Date:

S. 91 on 1.7.06: Government Gazette 29.6.06 p. 1315

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Children, Youth and Families (Consequential and Other Amendments) Act 2006, No. 48/2006

Assent Date:

15.8.06

Commencement Date:

S. 42(Sch. item 4) on 23.4.07: s. 2(3)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Family Violence Protection Act 2008, No. 52/2008

Assent Date:

23.9.08

Commencement Date:

S. 233 on 8.12.08: Special Gazette (No. 339) 4.12.08 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Stalking Intervention Orders Act 2008, No. 68/2008

Assent Date:

18.11.08

Commencement Date:

S. 63 on 8.12.08: Special Gazette (No. 339) 4.12.08 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date:

24.11.09

Commencement Date:

S. 97(Sch. item 11) on 1.1.10: Government Gazette 10.12.09 p. 3215

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date:

24.11.09

Commencement Date:

S. 54(Sch. Pt 1 item 4), (Sch. Pt 2 item 6) on 1.1.10: s. 2(2)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Statute Law Amendment (National Health Practitioner Regulation) Act 2010, No. 13/2010

Assent Date:

30.3.10

Commencement Date:

S. 51(Sch. item 7) on 1.7.10: s. 2(2)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Personal Safety Intervention Orders Act 2010, No. 53/2010

Assent Date:

7.9.10

Commencement Date:

S. 221(Sch. item 1) on 5.9.11: Special Gazette (No. 271) 23.8.11 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Bail Amendment Act 2010, No. 70/2010

Assent Date:

19.10.10

Commencement Date:

Ss 3–26 on 1.1.11: s. 2(3)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Justice Legislation Amendment (Protective Services Officers) Act 2011, No. 43/2011

Assent Date:

6.9.11

Commencement Date:

S. 6 on 28.11.11: Special Gazette (No. 379) 22.11.11 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Justice Legislation Amendment (Family Violence and Other Matters) Act 2012, No. 83/2012

Assent Date:

18.12.12

Commencement Date:

S. 31(1) on 17.4.13: Special Gazette (No. 141) 16.4.13 p. 2

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Bail Amendment Act 2013, No. 44/2013

Assent Date:

27.8.13

Commencement Date:

20.12.13: Special Gazette (No. 419) 26.11.13 p. 1

Current State:

All of Act in operation

Legal Profession Uniform Law Application Act 2014, No. 17/2014

Assent Date:

25.3.14

Commencement Date:

S. 160(Sch. 2 item 10) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Honorary Justices Act 2014, No. 32/2014

Assent Date:

13.5.14

Commencement Date:

S. 56 on 1.9.14: s. 2(2)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date:

3.6.14

Commencement Date:

S. 10(Sch. item 8) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Fines Reform Act 2014, No. 47/2014 (as amended by No. 59/2017)

Assent Date:

1.7.14

Commencement Date:

Ss 250, 251 on 31.12.17: Special Gazette (No. 443) 19.12.17 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Crimes Amendment (Abolition of Defensive Homicide) Act 2014, No. 63/2014

Assent Date:

9.9.14

Commencement Date:

S. 7(1)(2) on 1.11.14: Special Gazette (No. 350) 7.10.14 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Serious Sex Offenders (Detention and Supervision) and Other Acts Amendment Act, No. 52/2015

Assent Date:

13.10.15

Commencement Date:

Ss 40, 41 on 14.10.15: s. 2(1)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Bail Amendment Act 2016, No. 1/2016

Assent Date:

16.2.16

Commencement Date:

Ss 3–17 on 2.5.16: Special Gazette (No. 103) 19.4.16 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Crimes Amendment (Carjacking and Home Invasion) Act 2016, No. 50/2016

Assent Date:

18.10.16

Commencement Date:

S. 7 on 7.12.16: Special Gazette (No. 375) 6.12.16 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Sentencing (Community Correction Order) and Other Acts Amendment Act 2016, No. 65/2016

Assent Date:

15.11.16

Commencement Date:

Ss 18, 19 on 20.3.17: Special Gazette (No. 17) 31.1.17 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, No. 43/2017

Assent Date:

26.9.17

Commencement Date:

S. 37 on 26.2.18: Special Gazette (No. 406) 28.11.17 p. 1; s. 38 on 5.4.18: Special Gazette (No. 136) 27.3.18 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017, No. 45/2017

Assent Date:

26.9.17

Commencement Date:

S. 50 on 1.4.18: Special Gazette (No. 136) 27.3.18 p. 3

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Corrections Legislation Further Amendment Act 2017, No. 64/2017

Assent Date:

19.12.17

Commencement Date:

S. 28 on 20.12.17: s. 2(1)

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017, No. 65/2017

Assent Date:

19.12.17

Commencement Date:

S. 20 on 5.4.18: Special Gazette (No. 136) 27.3.18 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Bail Amendment (Stage Two) Act 2018, No. 3/2018

Assent Date:

27.2.18

Commencement Date:

S. 28 on 5.4.18: Special Gazette (No. 136) 27.3.18 p. 1

Current State:

This information relates only to the provision/s amending the Bail Act 1977

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

    3     Amendments Not in Operation

This publication does not include amendments made to the Bail Act 1977 by the following Act/s.

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Bail Amendment (Stage One) Act 2017, No. 26/2017

Assent Date:

27.6.17

Commencement Date:

Ss 3–16 not yet proclaimed

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017, No. 65/2017

Assent Date:

19.12.17

Commencement Date:

Ss 21, 22 not yet proclaimed

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Bail Amendment (Stage Two) Act 2018, No. 3/2018

Assent Date:

27.2.18

Commencement Date:

Ss 3–24 not yet proclaimed

Current State:

This information relates only to the provision/s amending the Bail Act 1977

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:

27.2.18

Commencement Date:

S. 68(Sch. 2 item 13) not yet proclaimed

Current State:

This information relates only to the provision/s amending the Bail Act 1977

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

At the date of this publication, the following provisions amending the Bail Act 1977 were Not in Operation:

Amending Act/s:

Bail Amendment (Stage One) Act 2017, No. 26/2017

        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).".

        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;

        (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".

    (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

        (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—

        (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 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.

        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.

    (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;

        (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.

        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).".

        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).

    (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.

    (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.".

        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.".

        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.".

        13     New Schedules 1 and 2 inserted

After Part 5 of the Bail Act 1977 insert



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