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This is a Bill, not an Act. For current law, see the Acts databases.
BAIL AMENDMENT BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Bail
Amendment Bill 2003
Contents
Page
Part
2.1 Crimes Act 1900 40
Part 2.2 Magistrates
Court Act 1930 40
Part 2.3 Mental
Health (Treatment and Care) Act 1994 42
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
A Bill for
An Act to amend the
Bail Act 1992, and for
other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Bail Amendment Act 2003.
(1) This Act (other than section 40) commences 3 months after its
notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
(2) Section 40 commences—
(a) if the Crimes (Industrial Manslaughter) Amendment Act 2003 has
commenced before the remainder of this Act commences—on the commencement
of the remainder of this Act; and
(b) otherwise—on the commencement of the Crimes (Industrial
Manslaughter) Amendment Act 2003.
(3) If the Crimes (Industrial Manslaughter) Amendment Act 2003 has
not commenced within 6 months beginning on the day the remainder of this Act
commences, section 40 expires at the end of that period.
This Act amends the Bail Act 1992.
Note This Act also amends the following legislation (see sch
2):
• Crimes Act 1900
• Magistrates Court Act 1930
• Mental Health (Treatment and Care) Act 1994.
4 InterpretationSection
3 (3)
omit
substitute
Part 2 Availability of
bail
Division 2.1 When bail may be granted and
rights following
5 When may bail be granted?
(1) An accused person may be granted bail in relation to any period when
the person is not required to attend court in relation to the offence with which
the person has been charged.
(2) However, an accused person who is in custody in relation to an offence
must not be granted bail in relation to any period when—
(a) the person is in custody for another offence or reason in relation to
which the person is not entitled to be granted bail; or
(b) the person is serving a sentence of imprisonment.
6 Rights following grant of bail
(1) This section applies if—
(a) bail is granted to an accused person in relation to an offence;
and
(b) the person gives an undertaking to appear; and
(c) if a bail condition mentioned in section
25 (1) (b) (ii) or (c) is imposed—the security is given or
the deposit made.
(2) The person is entitled—
(a) if the person is in custody—to be released from custody;
and
(b) to remain at liberty in relation to the offence until required to
appear before a court in accordance with the undertaking.
(3) This section is subject to section 56A (Arrest without warrant of
person on bail).
Division 2.2 Presumption for
bail
7 Div 2.2 subject to div 2.3 and div
2.4
This division is subject to division 2.3 (No presumption for bail) and
division 2.4 (Presumption against bail).
8 Entitlement to bail—certain minor offences
etc
(1) This section applies to—
(a) a person charged with an offence not punishable by imprisonment
(except in default of payment of a fine); and
(b) a person charged with an offence punishable by imprisonment for not
longer than 6 months; and
(c) a person arrested for a breach of the peace or apprehended breach of
the peace; and
(d) a person arrested under a warrant because of failure to comply with a
summons or subpoena; and
(e) a person arrested for a breach of a periodic detention order;
and
(f) a person brought up to attend a trial or hearing following the issue
of a writ of habeas corpus.
(2) The person is entitled—
(a) to be granted bail; and
(b) if the person is in custody—to be released from custody as soon
as the person gives an undertaking to appear.
(3) However, if no further appearance is required for a person arrested
for a breach of the peace or an apprehended breach of the peace, the person may
be released from custody without giving an undertaking to appear.
(4) A condition to keep the peace may be imposed on a grant of bail to a
person arrested for a breach of the peace or an apprehended breach of the
peace.
Note For other conditions that may be imposed on a grant of bail,
see s 25 and s 26.
(5) In this section:
periodic detention order means an order under the Periodic
Detention Act 1995, section 4 (Power to order periodic detention).
9 Limitations on entitlement to
bail
(1) A person charged with an offence mentioned in section 8 (1) (a) or (b)
is not entitled to be granted bail if—
(a) the person has previously failed to comply with an undertaking to
appear, or a bail condition imposed, in relation to the same or a similar
offence; or
(b) in the opinion of the court or authorised officer, the person is
incapacitated by intoxication, injury or use of drugs or is otherwise in danger
of physical injury or in need of physical protection.
(2) A person arrested for a breach of the peace or apprehended breach of
the peace is not entitled to be granted bail if the person has previously,
without reasonable excuse, failed to comply with an undertaking to appear, or a
bail condition imposed, in relation to a breach of the peace or apprehended
breach of the peace.
9A Entitlement to bail—offences other than
minor offences
(1) This section applies to—
(a) a person in relation to an offence other than an offence mentioned in
section 8 (1) (a) or (b) (Entitlement to bail—certain minor offences etc);
and
(b) a person who is not entitled to bail under section 8 (2) because of
section 9 (1) or (2).
(2) The person is entitled to be granted bail unless the court or
authorised officer is satisfied that refusal is justified after
considering—
(a) for an adult—the matters mentioned in section 22 (Criteria for
granting bail to adults); or
(b) for a child—the matters mentioned in section 23 (Criteria for
granting bail to children).
Division 2.3 No presumption for
bail
9B Div 2.2 not to apply to certain
offences
Division 2.2 (Presumption for bail) does not apply to the grant of
bail—
(a) to a person accused of an offence mentioned in schedule 2 (Offences to
which presumption for bail does not apply); or
(b) to a person accused of any of the following offences, if the person
has in the previous 10 years been found guilty of an offence involving violence
or the threat of violence:
(i) an offence against the Crimes Act 1900, section 30 (Threat to
kill);
(ii) an offence against the Crimes Act 1900, section 31 (Threat to
inflict grievous bodily harm);
(iii) an offence against the Crimes Act 1900, section 35
(Stalking);
(iv) an offence against the Protection Orders Act 2001, section 34
(Offence for contravention of protection order); or
(c) to a person accused of an offence against the Criminal Code Act
1995 (Cwlth), section 80.1 (Treason); or
(d) to a person convicted of an indictable offence but not
sentenced.
Division 2.4 Presumption against
bail
9C Bail for murder
(1) This section applies to a person accused of murder.
Note A reference to an offence against a Territory law includes a
reference to a related ancillary offence, eg attempt (see Legislation Act, s
189).
(2) A court or authorised officer must not grant bail to the person unless
satisfied that special or exceptional circumstances exist favouring the grant of
bail.
(3) However, even if special or exceptional circumstances are established,
the court or officer must refuse bail if satisfied that refusal is justified
after considering—
(a) for an adult—the matters mentioned in section 22 (Criteria for
granting bail to adults); or
(b) for a child—the matters mentioned in section 23 (Criteria for
granting bail to children).
9D Bail for serious offence committed while charge
for another pending or outstanding
(1) This section applies if—
(a) a person is accused of a serious offence; and
(b) the person is alleged to have committed the offence while a charge
against the person for another serious offence is pending or
outstanding.
Example
Claude is served with a summons to attend the Magistrates Court to answer a
charge that he has committed the offence of taking a vehicle without authority
(punishable by 5 years imprisonment under the Crimes Act 1900, section
111, and so a serious offence for this section). Before the court date, Claude
is arrested and charged with having committed an armed robbery the day after
being served with the summons (punishable by 25 years imprisonment under the
Crimes Act 1900, section 92, and so also a serious offence for this
section). At the time of the alleged armed robbery, the charge of taking a
vehicle without authority was still pending. This section will apply to any
decision about the grant of bail to Claude in relation to the armed robbery
charge.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A court or an authorised officer must not grant bail to the accused
person unless satisfied that special or exceptional circumstances exist
favouring the grant of bail.
(3) However, even if special or exceptional circumstances are established,
the court or officer must refuse bail if satisfied that refusal is justified
after considering—
(a) for an adult—the matters mentioned in section 22 (Criteria for
granting bail to adults); or
(b) for a child—the matters mentioned in section 23 (Criteria for
granting bail to children).
(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is
a domestic violence offence, an authorised person must not grant bail to the
accused person if satisfied that refusal of bail is required under section 9F
(Domestic violence offence—bail by authorised officer).
(5) This section does not affect the application of section 9F (4) and (5)
to the accused person if—
(a) the serious offence mentioned in subsection (1) (a) or (b) is a
domestic violence offence; and
(b) an authorised person grants bail to the accused person.
(6) In this section:
outstanding—a charge against a person for an offence is
outstanding—
(a) until the charge is finally dealt with in any of the following
ways:
(i) the charge is withdrawn;
(ii) the charge is dismissed by a court;
(iii) the person is discharged by the Magistrates Court following a
committal hearing;
(iv) the person is acquitted or found guilty by a court of the offence;
and
(b) if the person is acquitted or found guilty by a court of the offence
charged, but a new trial on the charge (or a charge based on the same facts) is
later ordered on appeal—from the date the new trial is ordered until the
earliest of the following happens—
(i) the charge (or a charge based on the same facts) is finally dealt with
as mentioned in paragraph (a) (i), (ii) or (iv);
(ii) the order for the new trial is reversed on a further
appeal.
Note Found guilty, of an offence, includes having the offence
taken into account under the Crimes Act 1900, s 357 and having an order
made in relation to the offence under the Crimes Act 1900, s 402 or the
Children and Young People Act 1999, s 98 (see Legislation Act, dict, pt
1).
pending—a charge against a person for an serious
offence is pending if the person has not yet been charged with the
offence, but the person has—
(a) been arrested for the offence (unless the person is later released
without being charged with a serious offence); or
(b) been served with a summons to appear before a court to answer a charge
for the offence; or
(c) at the invitation of a police officer, signed an agreement to attend
court to answer a charge for the offence.
serious offence means an offence punishable by imprisonment
for 5 years or longer.
9E Bail for person sentenced to
imprisonment
(1) This section applies if—
(a) a person has been convicted of an offence by a court and sentenced to
a period of imprisonment for the offence; and
(b) an appeal is pending in relation to the conviction or
sentence.
(2) A court must not grant bail to the person unless satisfied that
special or exceptional circumstances exist favouring the grant of
bail.
(3) In this section:
appeal includes an appeal against a decision on appeal.
9F Domestic violence offence—bail by authorised
officer
(1) This section applies to a person accused of a domestic violence
offence.
(2) An authorised officer must not grant bail to the person unless
satisfied that the person poses no danger to a protected person while released
on bail.
(3) However, even if the authorised officer is satisfied under
subsection (2), the officer must refuse bail if satisfied that the refusal
is justified after considering—
(a) for an adult—the matters mentioned in section 22 (Criteria for
granting bail to adults); or
(b) for a child—the matters mentioned in section 23 (Criteria for
granting bail to children).
(4) Also, the person must not be released on bail under this section
unless the person gives an undertaking to appear within 48 hours of being
released.
(5) If the authorised officer grants bail to the person under this
section, the officer must, in the record made under section 27 (Recording of
certain bail decisions), state why the officer is satisfied that the person
poses no danger to any protected person.
(6) In this section:
protected person, in relation to a domestic violence
offence—
(a) means a person against whom the alleged conduct making up the offence
was directed; and
(b) includes a relevant person in relation to that person.
9G Special or exceptional
circumstances
(1) This section applies if a court or authorised officer is required
under this part to be satisfied of the existence of special or exceptional
circumstances favouring the grant of bail to a person.
(2) A circumstance that would be an applicable bail criteria for the
person is not a special or exceptional circumstance only because it is an
applicable bail criteria.
(3) Also, the court or authorised officer must consider the applicable
bail criteria for the person only after the court or authorised officer is
satisfied of the existence of the special or exceptional
circumstances.
Examples for s (3)
1 Damien is before the court charged with having committed an armed
robbery. He has earlier been charged with having committed armed robbery.
Section 9D applies and there is a presumption against bail unless there are
special or exceptional circumstances. Damien argues that there are special
circumstances as he needs to support his child, he may lose his job and he may
lose an opportunity to take up public housing. The court considers that the
circumstances are not special or exceptional. Bail is not granted and the
criteria in section 22 are not considered.
2 Jason is facing similar charges. Jason has had a car accident before his
arrest for the second offence. His kidneys are damaged requiring dialysis every
3 days. Jason argues that his need for regular treatment and his reduced
mobility mean that he is highly unlikely to abscond. The court considers these
circumstances are special or exceptional. The court then considers the criteria
in section 22 in deciding whether to grant bail.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
6 Dispensing
with bailSection 10 (5) (a) and
(b)
substitute
(a) section 9D (Bail for serious offence committed while charge for
another pending or outstanding);
(b) section 9E (Bail for person sentenced to imprisonment).
7 Grant
of bail by authorised officersSection
14 (2)
substitute
(2) An authorised officer must not grant bail to a person accused of an
offence if—
(a) a decision about bail in relation to the offence has been made by a
court; or
(b) the offence is a domestic violence offence of murder.
Note A reference to an offence against a Territory law includes a
reference to a related ancillary offence, eg attempt (see Legislation Act, s
189).
8 Determination
of questions of bail by authorised
officersSection 15 (3)
(b)
omit
8A (1)
substitute
9F (2)
9 General
provisions relating to court bailSection 19
(5) (b)
substitute
(b) the accused person can show—
(i) that since the most recent application to a court for bail there has
been a significant change in circumstances relevant to the granting of bail;
or
(ii) that there is fresh evidence or information of material significance
to the granting of bail to the person that was unavailable on the most recent
application to a court for bail.
substitute
20 Limitations on power of
magistrate
(1) A magistrate must not grant bail to a person under section 19 in
relation to an offence if the person has appeared before the Supreme
Court—
(a) after the person’s committal for trial or sentence for the
offence; or
(b) on appeal against a conviction, order or sentence imposed on the
person for the offence.
(2) A magistrate must not enlarge, vary or revoke bail granted to an
accused person following the person’s committal for trial.
11 Sections
22, 23 and 23A
substitute
22 Criteria for granting bail to
adults
(1) In making a decision about the grant of bail to an adult in relation
to an offence, a court or authorised officer must consider—
(a) the likelihood of the person appearing in court in relation to the
offence; and
(b) the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone;
or
(iii) interfering with evidence, intimidating a witness, or otherwise
obstructing the course of justice, in relation to the person or anyone else;
and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
2 the period that the person may be held in custody if bail is refused and
the conditions under which the person would be held
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) Also, if the person is convicted of an indictable offence, or the
elements of an indictable offence are proven in relation to the person, but the
person has not been sentenced, a court must consider the likelihood of the
person being given a sentence of imprisonment.
(3) In considering the matters mentioned in subsection (1) or (2), the
court or authorised officer may have regard to any relevant matter,
including—
(a) the nature and seriousness of the offence; or
(b) the person’s character, background and community ties;
or
(c) the likely effect of a refusal of bail on the person’s family or
dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing
in court in relation to the offence, the court or authorised officer may have
regard to whether the person failed to comply with a bail condition
previously.
(4) The reference in subsection (1) (b) (i) to an offence
includes a reference to an offence against a law of the Commonwealth, a State or
another Territory (including an external Territory).
23 Criteria for granting bail to
children
(1) In making a decision about the grant of bail to a child in relation to
an offence, a court or authorised officer must consider—
(a) the matters mentioned in section 22 (1) (a) and (b), (2) and (3);
and
(b) the principles in the Children and Young People Act 1999,
section 68; and
(c) if the decision is being made by a court and a report has been given
to the court under the Children and Young People Act 1999, section
73 (Powers of court in relation to reports) in relation to the child—the
report.
(2) In addition, the court or authorised officer must consider, as a
primary consideration, the best interests of the child.
23A Victim’s concern about need for protection
(1) If a court is making a decision about the grant of bail to an accused
person—
(a) the prosecutor must tell the court about any concern of which the
prosecutor is aware expressed by a victim about the need for protection from
violence or harassment by the accused person; and
(b) the court must receive any submission in relation to the concern and
consider it in the context of the matter mentioned in section 22 (1)
(b).
(2) If an authorised officer who is making a decision about the grant of
bail to an accused person is aware that a victim has expressed concern about the
need for protection from violence or harassment by the accused person, the
authorised officer must consider that concern in the context of the matters
mentioned in section 9F (Domestic violence offence—bail by authorised
officer) and section 22 (1) (b).
12 Conditions
on which bail may be granted to
adultsSection 25 (1)
substitute
(1) The following conditions may be imposed on a grant of bail to an
adult:
(a) conditions about the person’s conduct while released on bail;
(b) a condition that the person, an acceptable person or each of a number
of acceptable people—
(i) pays to the Territory a stated amount if the person fails to appear in
court in accordance with his or her undertaking; or
(ii) gives acceptable security for the payment to the Territory of a
stated amount if the person fails to appear in court in accordance with his or
her undertaking;
Note For acceptable people and acceptable security, see s 32
(Acceptable people and security for bail).
(c) a condition that the person, an acceptable person or each of a number
of acceptable people—
(i) deposits a stated amount with a court or authorised officer;
and
(ii) forfeits the amount if the person fails to appear in court in
accordance with his or her undertaking.
(1A) With the consent of a person who makes a deposit or gives security
under subsection (1) (b) (ii) or (c), it may be a condition of bail that the
deposit or security continues to apply if bail is continued.
(1B) It must not be a condition of bail that a person gives consent under
subsection (1A).
13 New
section 25 (2) (da)
insert
(da) a requirement that the person—
(i) accept supervision by the director of corrective services;
and
(ii) comply with any reasonable direction of the director; and
Examples of directions
1 a direction to attend a program
2 a direction to comply with a mental health assessment or treatment order
made by the mental health tribunal
3 a direction to attend drug or alcohol counselling
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
renumber paragraphs when Act next republished under Legislation
Act
omit
subsection (1) (d) or (e)
substitute
subsection (1) (b) or (c)
omit
renumber subsections when Act next republished under Legislation
Act
18 Conditions
on which bail may be granted to
childrenSection 26 (1)
substitute
(1) The following conditions may be imposed on the grant of bail to a
child—
(a) the conditions mentioned in section 25 (1) (other than a requirement
mentioned in section 25 (2) (da); and
(b) any other conditions that the court or authorised officer considers
appropriate—
(i) having regard to the principles in the Children and Young People
Act 1999, section 68; and
(ii) considering, as a primary consideration, the best interests of the
child.
(1A) Without limiting section 25 (1), the requirements that a child may be
required to comply with about his or her conduct while released on bail include
a requirement that the child—
(a) accept supervision by the chief executive under the Children and
Young People Act 1999, chapter 6 (Young offenders); and
(b) comply with any reasonable direction of the chief executive.
Examples of directions
1 a direction to attend a program
2 a direction to comply with an order for assessment or a treatment order
made by the mental health tribunal
3 a direction to attend drug or alcohol counselling.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
19 Section
26 (3) (a) (ii)
omit
sections 12 and 68
substitute
section 68
renumber subsections when Act next republished under Legislation
Act
21 Notice
to victim of bail decisionsSection
27A
omit
substitute
28 Undertakings to appear
(1) A person may be released on bail only if the person gives a written
undertaking—
(a) to appear before a stated court at the place, date and
time—
(i) stated in the undertaking; or
(ii) notified to the person by a police officer; and
(b) to comply with the bail conditions (if any).
Note If a form is approved under s 58 for an undertaking, the form
must be used.
(2) For a continuation of bail, the person may undertake to appear at any
time when, and at any place where, proceedings in relation to the offence with
which the person has been charged may be continued.
(3) An undertaking may be given in relation to more than 1
offence.
(4) A court must accept an undertaking given under this section as proof
of the matters stated in it if there is no evidence to the contrary.
(5) Subsection (1) (a) does not apply to a person in relation to a breach
of the peace or apprehended breach of the peace if no further appearance is
required.
substitute
31 Bail requirements
(1) An undertaking to appear may be given to—
(a) a court; or
(b) a registrar or deputy registrar; or
(c) an authorised officer; or
(d) for an accused person who is in a remand centre or prison—the
person in charge of the remand centre or prison.
(2) An amount may be deposited, or security given, in accordance with a
bail condition, to—
(a) a court; or
(b) registrar or deputy registrar; or
(c) an authorised officer.
(3) In this section:
deposit includes a payment by cash or electronic funds
transaction.
security includes security given by way of bond or bank
guarantee.
32 Acceptable people and security for
bail
(1) A court or authorised officer imposing a condition on bail may
decide—
(a) the person, people or class of people who are acceptable people for a
condition mentioned in section 25 (1) (b) or (c); and
(b) the number of people required for the condition; and
(c) the security acceptable for a condition mentioned in
section 25 (1) (b) (ii).
(2) If a decision has not been made when the undertaking to appear is
given, the court or person to whom the undertaking to appear is given may
decide.
(3) Without limiting subsections (1) and (2), an acceptable person for a
condition includes an entity prescribed under the regulations for this
subsection.
24 Continuation
of bail and undertakingsSection 33 (2), new
note
insert
Note A court continuing bail must give notice of the continuation,
bail conditions and place, date and time to which the proceedings are adjourned,
postponed or deferred (see s 34 (4)).
substitute
(3) If no direction is made by the court in relation to bail, whether or
not the accused person appears in accordance with the
undertaking—
(a) the court is taken to have continued bail; and
(b) the undertaking to appear and any bail conditions continue to
apply.
(4) If the hearing of a charge against an accused person is adjourned or
postponed, the court may—
(a) continue the person’s bail; or
(b) make another order about bail.
(5) However, if a deposit has been made, or security given, by a surety in
accordance with a bail condition, the court must not continue bail without the
surety’s consent unless it is a condition of bail that the deposit or
security continues to apply if bail is continued.
(6) If bail is continued—
(a) the undertaking to appear is taken to be an undertaking to appear an
any time when, and at any place where, proceedings in relation to the offence
with which the person has been charged may be continued; and
(b) any bail conditions continue to apply.
26 Warning
to person making acknowledgmentSection 35
omit
substitute
36 Discharge of surety
(1) A surety may, at any time apply to be discharged from his or her
liability under a bail condition—
(a) if bail has been granted by a court—
(i) to the court that granted bail; or
(ii) to the court of appearance; or
(b) if bail has been granted by an authorised officer—to the court
of appearance.
(2) However, an application may not be made if the person granted bail has
failed to comply with a bail condition or undertaking to appear.
(3) If the person granted bail is not in custody or before the court when
the application is made, the court must—
(a) issue a warrant to apprehend the person and bring the person before
the court; or
(b) issue a summons for the person’s appearance before the
court.
(4) On the person’s appearance before the court, the court must,
unless the court considers it would be unjust to do so—
(a) direct that the applicant be discharged from his or her liability;
and
(b) release the security or deposit.
(5) If the court discharges the applicant from liability, the court
may—
(a) impose further bail conditions; and
(b) remand the person granted bail into custody until the further
conditions are satisfied.
(6) In this section:
court of appearance means the court before which the accused
person is required to appear in accordance with his or her undertaking to
appear.
substitute
37 Payment of amounts to
Territory
(1) This section applies if—
(a) a person granted bail fails to appear in court in accordance with his
or her undertaking; and
(b) a bail condition mentioned in section 25 (1) (b) or (c) requires the
person or someone else (the person required to pay) to pay, or
forfeit, an amount to the Territory if the person fails to appear.
(2) If the amount has been deposited in accordance with a condition
mentioned in section 25 (1) (c), the amount is forfeited to the Territory.
(3) If the amount has not been deposited, the court may order the person
required to pay to pay the amount to the Territory.
(4) Notice of the order must be given to the person required to pay as
soon as practicable.
Note For how documents may be served, see Legislation Act,
pt 19.5.
(5) If, after the end of 28 days after the day the notice is given, the
amount has not been paid the amount may be recovered under the Magistrates
Court Act 1930, division 9.2 (Enforcement of fines) as if it were a fine
within the meaning of that division.
(6) Subsection (4) applies to an amount even if the amount exceeds
$50 000.
insert
41A Court may review on its own initiative
(1) A court that has made a decision in relation to bail may review the
decision on its own initiative if the court considers it is in the interests of
justice to do so.
(2) The court may issue a warrant for the arrest of the person and for
bringing the person before the court at the time and place stated in the
warrant.
substitute
42 Power of magistrate to review
(1) A magistrate may review any decision made by an authorised officer or
a magistrate (including his or her own decision) in relation to bail.
(2) However, a magistrate may review a decision made by the magistrate
only if the application for review is based on—
(a) a significant change in circumstances relevant to the granting of
bail; or
(b) the availability of fresh evidence or information of material
significance to the granting of bail to the person that was unavailable on the
most recent application to the magistrate.
31 Power
of Supreme Court to reviewNew section 43
(1A)
insert
(1A) However, a judge may review a decision made by the judge only if the
application for review is based on—
(a) a significant change in circumstances relevant to the granting of
bail; or
(b) the availability of fresh evidence or information of material
significance to the granting of bail to the person that was unavailable on the
most recent application to the judge.
32 General
limitation on power of court to
reviewSection 44
omit
33 MiscellaneousDivision
6.3
omit
insert
47A Notice to victim of bail
decisions
(1) This section applies if—
(a) a court or authorised officer makes a decision about a grant of bail,
or reviews a bail decision, in relation to a person; and
(b) the informant is aware that a victim has expressed concern about the
need for protection from violence or harassment by the person.
(2) The informant must tell a police officer assigned to liaise with
victims of crime (a victim liaison officer) that the victim has
expressed the concern.
(2) If a victim liaison officer is told about a victim’s concern,
the victim liaison officer must take all reasonable steps to tell the victim
(or, if the victim is a child, a person who has care and control of the child)
about the bail decision as soon as practicable.
35 False
statements in acknowledgmentsSection
50
omit
substitute
56 No right of surety to arrest
A surety for an accused person does not have the right to arrest the
accused person because the surety is a surety for the accused person.
37 New
sections 56A and 56B
insert
56A Arrest without warrant of person on
bail
(1) This section applies if a person has been granted bail in the ACT, a
State or another Territory.
(2) A police officer may arrest the person without warrant if the officer
believes on reasonable grounds that the person—
(a) has failed to comply with a bail condition; or
(b) will not comply with a bail condition.
(3) The police officer must bring the person before a court as soon as
practicable.
(4) The court may—
(a) for a person granted bail in the ACT—exercise the same powers in
relation to bail as it has in relation to any other accused person in custody;
or
(b) for a person granted bail in a State or another
Territory—
(i) release the person unconditionally; or
(ii) grant the person bail subject to the conditions that the court
considers appropriate; or
(iii) remand the person in custody for a reasonable time while a warrant
for the person’s arrest is obtained from the State or other
Territory.
(5) A release mentioned in subsection (4) (b) (i) does not affect the
grant of bail in the State or other Territory.
56B Arrest for breach of condition by person outside
ACT
(1) This section applies if a police officer reasonably believes
that—
(a) a person who has been granted bail in the ACT has failed to comply
with a bail condition; and
(b) the person is in a State or another Territory.
(2) An issuing officer may, on the information of a police
officer—
(a) issue a warrant to arrest the person in the State or other Territory
and bring the person before a court; or
(b) issue a summons for the person’s appearance before a
court.
(3) In this section
issuing officer, for a warrant, means—
(a) a judge, the registrar or a deputy registrar of the Supreme Court;
or
(b) a magistrate; or
(c) if authorised by the Chief Magistrate to issue a warrant—the
registrar or deputy registrar of the Magistrates Court.
38 Approved
formsSection 58 (3)
omit
25,
39 Regulation-making
powerSection 59
omit
The Executive
substitute
(1) The Executive
insert
(2) Without limiting subsection (1), the regulations may make provision in
relation to the management (including the investment) of an amount deposited in
accordance with a condition mentioned in section 25 (1) (c).
41 Dictionary,
new definition of accused person
insert
accused person includes—
(a) a person charged with, convicted of, or found guilty of, an offence;
and
(b) a person mentioned in section 8 (1) (c), (d), (e) or (f);
and
(c) a person whose conviction for an offence is stayed; and
(d) a person discharged under the Crimes Act 1900, section 402
(Conditional release of offenders without proceeding to conviction) on giving
security under that section; and
(e) a person in relation to whom an appeal relating to an offence is
pending; and
(f) a person in relation to whom a new trial has been ordered to be held
for an offence.
substitute
Schedule 1 Offences to which presumption of
bail does not apply
(see s 9B (a) and (b))
Part 1.1 Offences against Crimes Act
1900
column 1
item
|
column 2
provision
|
column 3
description of offence
|
1
|
15
|
manslaughter
|
2
|
19
|
intentionally inflicting grievous bodily harm
|
3
|
51
|
sexual assault in the first degree
|
4
|
52
|
sexual assault in the second degree
|
5
|
54
|
sexual intercourse without consent
|
6
|
55 (1)
|
sexual intercourse with young person under 10 years old
|
7
|
92
|
armed robbery
|
8
|
94
|
aggravated burglary
|
Part 1.2 Offences against Drugs of
Dependence Act 1989
column 1
item
|
column 2
provision
|
column 3
description of offence
|
11
|
161
|
manufacture of drug of dependence or prohibited substance
|
12
|
162 (3)
|
cultivation, or participation in cultivation of, prohibited plants for sale
or supply
|
13
|
163
|
wholesale selling of prohibited substance or drug of dependence
|
14
|
164
|
sale, supply etc of prohibited substance or drug of dependence
|
Part 1.3 Offences against Customs Act
1901 (Cwlth)
column 1
item
|
column 2
provision
|
column 3
description of offence
|
15
|
231 (1)
|
assembly for unlawful purposes
|
16
|
233AC
|
master allowing use of ship for smuggling etc narcotic goods
|
17
|
233B
|
special provisions about narcotic goods
|
43 Schedule
1, part 1.1, new items 1A and 1B
insert
1A
|
49C
|
industrial manslaughter (employer offence)
|
1B
|
49D
|
industrial manslaughter (senior officer offence)
|
Schedule
1 Technical
amendments
(see s 3)
substitute
1 Name of Act
This Act is the Bail Act 1992.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘domestic violence
offence—see the Crimes Act 1900,
dictionary.’ means that the term ‘domestic violence offence’
is defined in that dictionary and the definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
Explanatory note
This amendment brings the naming provision of the Act into line with
current drafting practice.
This amendment also adds a standard dictionary provision consequential on
the insertion of a new dictionary by another amendment.
The definitions in section 3 (1) are inserted into the new dictionary. The
substance of section 3 (4) and (5) has been included in definitions. Section 3
(2) has been amended and included in the new dictionary in another amendment.
Section 3 (3) has been omitted as the expression entering into a bail
condition is no longer used.
This amendment also adds a standard provision about the legal status of
notes.
substitute
4 Act applies to children
This Act applies to a person whether or not the person is an
adult.
Explanatory note
This amendment updates language. Adult is defined in the
Legislation Act, dictionary, part 1.
[1.3] Section
30 (4), note
substitute
Note 1 For how documents may be served, see Legislation Act,
pt 19.5.
Note 2 If a form is approved under s 58 for a notice, the form must
be used.
Explanatory note
This amendment is consequential on the following amendment and inserts a
standard note about the service of documents.
[1.4] Section
30 (5) and (6)
omit
Explanatory note
This amendment omits provisions made unnecessary by the service provisions
of the Legislation Act.
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the previous amendment.
omit
or the Bail (Consequential Amendments) Act 1992,
Explanatory note
This amendment omits an obsolete reference to transitional
provisions.
substitute
(2) This Act does not affect the Bill of Rights 1688 1 Will and
Mary sess 2 c 2.
Explanatory note
This amendment updates language and omits an obsolete reference to the
Imperial Acts Application Act 1986.
insert
Dictionary
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• Act (see s 7)
• adult
• child
• Chief Magistrate
• chief police officer
• director of corrective services
• domestic partner (see s 169 (1))
• indictable offence (see s 190 (1))
• judge
• magistrate
• Magistrates Court
• mental health tribunal
• penalty unit (see s 133)
• police officer
• public trustee
• State
• Supreme Court
• the Territory.
appeal includes an application for leave to appeal and an
appeal proceeding.
applicable bail criteria, for a decision about bail, means
criteria under any of the following provisions applying to the
decision:
(a) section 9D (Bail for serious offence committed while charge for
another is pending or outstanding);
(b) section 9F (Domestic violence offence—bail by authorised
officer);
(c) section 22 (Criteria for granting bail to adults);
(d) section 23 (Criteria for granting bail to children).
authorised officer means—
(a) the chief police officer; or
(b) a police officer exercising the functions of a superintendent or
sergeant; or
(c) another police officer authorised in writing by the chief police
officer.
bail means an authorisation granted to a person under this
Act to be at liberty.
bail condition means a condition on which bail is
granted.
child, of a person, includes a child—
(a) who normally or regularly lives with the person; or
(b) of whom the person is a guardian.
court means the Supreme Court or Magistrates Court.
domestic violence offence—see the Crimes Act
1900, dictionary.
grant, in relation to bail (other than in section 22
(Criteria for granting bail to adults) or section 23 (Criteria for granting bail
to children)), includes continue.
offence includes—
(a) an alleged offence; and
(b) except for sections 8 (1) (a) and 9 (1)—
(i) a breach of the peace or an apprehended breach of the peace;
and
(ii) breach of a periodic detention order.
relevant person—see the Crimes Act 1900,
dictionary.
surety, in relation to an accused person, means a person
other than the accused person who is subject to a liability under a bail
condition mentioned in section 25 (1).
undertaking to appear means an undertaking given under
section 28 (1).
victim in relation to an accused person,
means—
(a) a person (the primary victim) who suffers
harm—
(i) in the course of, or because of, the commission of an offence of which
the accused person is accused; or
(ii) in the course of assisting a police officer in the exercise of the
officer’s power to arrest the accused person or to take action to prevent
the commission of an offence of which the accused person is accused;
or
(b) if a primary victim dies because of the commission of an offence of
which the accused person is accused—anyone who was financially or
psychologically dependent on the primary victim immediately before his or her
death.
Explanatory note
This amendment inserts a dictionary that incorporates all the definitions
currently in section 3 (Interpretation) that are still needed. The definitions
have, where necessary, been revised to bring them more closely into line with
current drafting practice and, if there are equivalent definitions in the
Crimes Act 1900, been signposted to that Act.
The definition of clerk is no longer needed.
The definition of judge is unnecessary because the term is
defined in the Legislation Act, dictionary, part 1.
The signpost definition of outstanding is unnecessary because
it is not used outside section 9D, where it is defined.
The signpost definition of pending is unnecessary because it
is not used, in the sense in which it is defined, outside section 9D, where it
is defined for that section.
The definition of relative has been omitted because it
defines an expression used in the definition of relevant person
only and is therefore picked up by the signpost definition of relevant
person.
The definition of remand centre is unnecessary because the
term is defined in the Legislation Act, dictionary, part 1.
The signpost definition of serious offence is not necessary
because it is not used outside section 9D, where it is defined.
Schedule
2 Other
amendments
(see s 3)
[2.1] Sections
215 and 216
omit
[2.2] Section
309 (4), definition of authorised officer
substitute
authorised officer—see the Bail Act, dictionary.
[2.3] Dictionary,
definition of bail undertaking
omit
Part
2.2 Magistrates Court Act 1930
substitute
70 Remand of defendant
(1) This section applies if the court considers it is necessary or
desirable to adjourn the hearing of a proceeding for an indictable
offence—
(a) because of the absence of witnesses; or
(b) for any other reasonable cause.
(2) The court may—
(a) adjourn the hearing; and
(b) remand the defendant into the custody of the
administrator—
(i) by warrant; or
(ii) if the period of remand is not longer than 3 days—by an order
made orally.
(3) Any single period of remand under this section must be no longer
than—
(a) 28 days; or
(b) if the defendant chooses to be remanded for a longer period without
review—a longer period that the court considers reasonable.
(4) The warrant or order must direct the administrator to—
(a) keep the defendant in custody for a stated period; and
(b) bring the defendant before the court at a stated time and place for
the hearing.
(5) If the warrant or order gives a transfer direction to all police
officers, the direction is taken to be given to each police officer and may be
executed by any police officer.
(6) If the warrant or order gives a transfer direction to all escorts, the
direction is taken to be given to each escort and may be executed by any
escort.
(7) In this section:
transfer direction means a direction that the defendant be
taken, safely transported and delivered into the custody of the administrator.
Part
2.3 Mental Health (Treatment and Care)
Act 1994
[2.5] Section
4, definition of referring officer, paragraph (c)
substitute
(c) a member of the staff of the director of public prosecutions who is
responsible for the prosecution of an offence against the person; or
(d) if the person is required to accept supervision by someone else as a
condition of bail under the Bail Act 1992—that other
person.
Note Under the Bail Act 1992, s 25 (2) and s 26 (2), an adult
may be supervised by the director of corrective services and a child may be
supervised by the chief executive under the Children and Young People
Act 1999, ch 6 (Young Offenders).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2003.
2 Notification
Notified under the Legislation Act on 2003.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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