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Bail Amendment (Stage One) Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
Following the Bourke Street tragedy on 20 January 2017, the Government
asked former Supreme Court Judge and Director of Public Prosecutions,
the Hon Paul Coghlan QC, to urgently review Victoria's bail system.
Mr Coghlan provided his advice on legislative reform in his first report on
3 April 2017 and on other relevant matters in a second report on 1 May 2017.
The Bill amends the Bail Act 1977, and various other Acts including
the Family Violence Protection Act 2008, to implement, or go beyond,
a number of the recommendations in Mr Coghlan's first report.
The Bill will insert a purpose and guiding principles section into the Bail
Act 1977; expand the circumstances in which the presumption in favour
of bail is reversed; clarify powers of police, bail justices and the courts to
grant bail; make amendments to the Bail Act 1977 recommended by the
Royal Commission into Family Violence; and clarify provisions relating
to bail conditions.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
• 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; and
581289 1 BILL LA INTRODUCTION 24/5/2017
• provide for conditions about the conduct of an
accused to continue to have effect until varied
or revoked; and
• to make consequential amendments to various Acts.
Clause 2 sets out when the provisions of the Bill come into operation.
Subclause (1) provides that, subject to subsection (2), that this
Act comes into operation on a day or days to be proclaimed.
Subclause (2) provides that, if a provision of this Act does not
come into operation before 1 July 2018, it comes into operation
on that day.
Part 2--Amendment of Bail Act 1977
Clause 3 inserts new sections 1A and 1B into the Bail Act 1977.
New section 1A provides that the purpose of the Bail Act 1977 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.
The Bail Act 1977 does not currently include a purpose section.
New section 1A is inserted to provide legislative guidance to
inform the community and to remind bail decision makers about
the purpose of the Victorian bail system.
New section 1B provides guiding principles for the application
and interpretation of the Bail Act 1977. These principles specify
the importance of--
• maximising the safety of the community and persons
affected by crime to the greatest extent possible; and
• taking account of the presumption of innocence and the
right to liberty; and
• promoting fairness, transparency and consistency in
bail decision-making; and
• promoting public understanding of bail practices and
procedures.
The Bail Act 1977 does not currently provide guiding principles.
New section 1B is included to inform the community and remind
bail decision makers of the legal principles engaged in
considerations regarding bail.
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Clause 4 amends the definitions in the Bail Act 1977.
Subclause (1) inserts new definitions in section 3 of the Bail
Act 1977 relating to bail decision makers and family violence.
Bail decision maker is defined to mean a court, bail justice,
police officer, or the sheriff or a person authorised under
section 84(5) of the Infringements Act 2006, who are
empowered under the Bail Act 1977 to grant bail. This term
is intended to replace the current definition of court in the Bail
Act 1977, which is repealed by subclause (2)(b). Currently,
the term "court" is used in the Bail Act 1977 to mean both a
court in the ordinary sense of the word, as well as a court in its
meaning under section 3--in which "court" means a court or
judge and, in any circumstances where a police officer or other
person is empowered under the provisions of the Bail Act 1977
to grant bail, includes that member or person. The insertion
of the term "bail decision maker" is intended to clarify the
distinction between an entity empowered to make decisions
as to bail, and a court in the ordinary sense of that word.
The definitions of family violence, family violence intervention
order and family violence safety notice adopt the meaning used
in the Family Violence Protection Act 2008. Family violence
offence is defined to mean an offence against certain sections
of the Family Violence Protection Act 2008, or any other
offence where the conduct of the accused is family violence.
These definitions are necessary as these terms are used in
provisions that will be inserted into the Bail Act 1977 by
subsequent clauses in this Bill.
Subclause (2) substitutes, repeals or inserts a number of
definitions in section 3 of the Bail Act 1977.
Paragraph (a) amends the definition of conduct condition, to
replace the reference to section 5(2A) with section 5AAA(4).
This amendment is necessary to reflect the provisions in clause 6
of this Bill which replace the substance current section 5(2A)
with new section 5AAA(4).
Paragraph (b) repeals the definition of court. This definition will
be unnecessary upon the commencement of the definition of bail
decision maker, inserted by subclause (1), and other provisions
of this Bill which substitute the term "court" with "bail decision
maker".
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Paragraph (c) inserts the definitions of Schedule 1 offence and
Schedule 2 offence. Schedule 1 offence is defined to mean an
offence specified in Schedule 1 to the Bail Act 1977 and, if
circumstances are specified in Schedule 1 in relation to that
offence, means an offence committed in those circumstances.
Schedule 2 offence is defined similarly in relation to offences
specified in Schedule 2 to the Bail Act 1977. These terms refer
to the offences specified in new Schedules 1 and 2 to the Bail
Act 1977, which are in turn inserted by clause 13 of this Bill.
These definitions are necessary as they are used in provisions that
will be inserted into the Bail Act 1977 by subsequent clauses in
this Bill.
Paragraph (d) replaces the definition of undertaking with a
new definition referring to section 5 of the Bail Act 1977, as
substituted by clause 6 of this Bill. The current definition of
undertaking will be unnecessary following the commencement
of new section 5, as inserted by clause 6, which provides for bail
undertakings.
Clause 5 amends section 4 of the Bail Act 1977.
Subclause (1) amends various provisions in section 4(2) of the
Bail Act 1977 to substitute the term "court" with "bail decision
maker". The use of the term "court" in these instances refer to an
entity making decisions about bail. These substitutions reflect
the changes introduced by clause 4 of this Bill, inserting the
definition of bail decision maker and repealing the definition of
court.
Subclause (2) substitutes current section 4(2)(a), (aa) and (b)
with new section 4(2)(a). New section 4(2)(a) provides that a
bail decision maker shall refuse bail to 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.
Current section 4(2)(a), which refers to current section 13,
and section 4(2)(aa) and (b), variously provide that a court
shall refuse bail to an accused charged with certain very
serious offences unless the court is satisfied that exceptional
circumstances exist to justify a grant of bail. New Schedule 1,
as inserted by clause 13 of this Bill, lists the offences referred
to in current section 4(2)(a), (aa) and (b) as well as additional
offences. The purpose of listing the offences in new Schedule 1,
rather than in current sections 4(2)(a), (aa) and (b), is to set out
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more clearly and effectively the offences to which the
exceptional circumstances requirement applies.
Subclause (3) amends current section 4(2)(d)(i). This section
currently provides that a court must refuse bail to an accused if
the court is satisfied that the accused, if released on bail, would
do one of a number of things, including "endanger the safety or
welfare of members of the public". Subclause (3) will amend
this provision to replace the words "members of the public"
with "any person".
Subclause (4) inserts an example at the foot of current
section 4(2)(d)(i) of the Bail Act 1977. This example makes
clear that an unacceptable risk for the purposes of this provision
includes an unacceptable risk that the accused, if released on bail,
would commit a family violence offence.
Subclauses (5) and (6) substitute the term "court" with
"bail decision maker" in sections 4(2A) and 4(3) respectively.
The use of the term "court" in these instances refer to an entity
making decisions about bail. These substitutions reflect
the changes introduced by clause 4 of this Bill, inserting the
definition of bail decision maker and repealing the definition
of court.
Subclause (7) amends current section 4(4) of the Bail Act 1977.
Current section 4(4)(a)-(d) provides that a court shall refuse bail
to an accused charged with certain serious offences unless the
accused shows cause why his or her detention in custody is not
justified. The term "shows cause" in current section 4(4) is
replaced with the term "shows compelling reason". The intent
of this change is to ensure that proper weight is given to the
onus placed on accused persons charged with an offence listed in
current section 4(4)(a)-(d). The term "court" is also substituted
with the term "bail decision maker". The use of the term "court"
in these instances refer to an entity making decisions about bail.
These substitutions reflect the changes introduced by clause 4
of this Bill, inserting the definition of bail decision maker and
repealing the definition of court.
Subclause (8) substitutes subsection (4) of section 4 with new
subsections (4) and (4A).
New section 4(4) provides that 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.
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Current section 4(4)(a)-(d) provides that a court shall refuse bail
to an accused charged with certain serious offences unless the
accused shows cause why his or her detention in custody is not
justified. When amended by clause 5(7)(b) of this Bill,
section 4(4) will provide that the bail decision maker must refuse
bail unless the accused "shows compelling reason" rather than
"shows cause". New Schedule 2, as inserted by clause 13 of this
Bill, lists the offences referred to in current section 4(4)(a)-(d) as
well as additional offences. The purpose of listing the offences in
new Schedule 2, rather than in current section 4(4), is to set out
more clearly and effectively the offences to which the show cause
(or show compelling reason, after commencement of certain
provisions of this Bill) requirement applies.
The intent of replacing the term "shows cause" with the term
"shows compelling reason" is to ensure that proper weight is
given to the onus placed on accused persons charged with
Schedule 2 offences.
New section 4(4A) provides that a bail decision maker who
grants bail for a person accused of a Schedule 2 offence must
provide reasons for that decision. This section replicates the
requirement in current section 4(4) to record reasons for
"show cause" offences.
Subclause (9) inserts new subsections (4B), (4C), (4D), (4E),
(4F), (4G), (4H) and (4I) into section 4 of the Bail Act 1977.
New section 4(4B) provides that 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.
New section 4(4C) provides that 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.
New subsections (4B) and (4C) are intended to replace current
section 14, which is repealed by clause 14(12) of this Bill.
New section 4(4D)-(4G) concern situations where an accused
appears to be seriously affected by alcohol or another drug or a
combination of drugs.
New section 4(4D) provides that 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 combination of drugs.
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New section 4(4E) provides that upon adjourning a hearing under
subsection (4D), the bail decision maker may remand the accused
in custody until further hearing of the matter.
New section 4(4F) provides that subsection (4G) applies upon the
first further hearing, after the adjournment of the hearing under
new section 4(4D), if 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.
New section 4(4G) provides that 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. This means that a bail matter may be adjourned for
up to 8 hours under new section 4(4D)-(4G).
New section 4(4H) requires a bail decision maker to make
enquiries of the informant, prosecutor, or other person appearing
for the Crown as to whether there is in force a family violence
intervention order or safety notice against the accused.
New section 4(4I) requires a bail decision maker to consider
whether, if released on bail, there is a risk that the accused would
commit family violence, and whether that risk can be reduced by
the imposition of bail conditions or a family violence intervention
order.
Subclause (10) substitutes current section 4(5), to provide that a
bail decision maker may impose conduct conditions in granting
bail. New section 4(5) replicates the substance of current
section 4(5), but with amendments to reflect other changes to
the bail condition provisions of the Bail Act 1977 introduced
by other clauses in this Bill.
Subclause (11) inserts new section 4(6), and provides that for the
purposes of section 4 of the Bail Act 1977, an offence that is
both a Schedule 1 offence and a Schedule 2 offence must be
taken to be a Schedule 1 offence.
Clause 6 substitutes section 5 and inserts new sections 5AAA and 5AAB
to the Bail Act 1977. These provisions concern bail undertakings
and conditions.
New section 5 concerns bail undertakings. New section 5(1)
provides that a grant of bail must require the accused to enter
into a written undertaking to surrender into custody and not to
depart without leave of the court. New section 5(1) is intended
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to replace current section 5(1), and provide explicitly that the
accused must enter into a written undertaking before bail can be
granted.
New section 5(2) provides that a bail decision maker, considering
the release of an accused on bail, must consider whether the
accused should be released on conditions, including a written
undertaking, conduct conditions, a surety or a deposit of money.
New section 5(2) is intended to replicate and clarify the current
requirements of section 5(2).
New section 5(3) provides that any surety must enter into an
undertaking to pay the specified amount if the accused fails
to comply with their own undertaking. The intention of this
provision is to make explicit the obligation on a surety to pay.
The notes at the end of section 5 refer to the Charter of Human
Rights and Responsibilities to remind bail decision makers of the
human rights considerations that should be taken into account
when deciding bail conditions. These notes replicate the Note at
the foot of current section 5 of the Bail Act 1977.
New section 5AAA concerns conduct conditions.
New section 5AAA(1) provides that a bail decision maker
considering the release of an accused on bail must impose any
condition that will reduce the likelihood that the accused may
endanger the safety or welfare of any person, fail to attend bail,
commit an offence or interfere with witnesses or otherwise
obstruct the course of justice. An example is also inserted at
the foot of new section 5AAA to make clear that a bail decision
maker may impose a condition in order to reduce the likelihood
that the accused may commit a family violence offence.
New section 5AAA(1) replaces the substance of current
section 5(3).
New section 5AAA(2) provides that any conditions imposed
must be no more onerous than required to reduce the likelihood
the accused may do a thing mentioned in subsection (1), must
be reasonable having regard to the nature of the nature of the
alleged offence and the circumstances of the accused, and
subject to subsection (3), must be consistent with each condition
of each family violence intervention order or safety notice.
New section 5AAA(2) replaces the substance of current
section 5(4).
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New section 5AAA(3) provides that a bail decision maker may
impose a condition that is inconsistent with a family violence
intervention order or safety notice if satisfied that the proposed
condition will better protect the safety or welfare of an alleged
victim of the accused or a "protected person" (within the meaning
of the Family Violence Protection Act 2008).
A note is also inserted to reference sections 175AA and 175AB
of the Family Violence Protection Act 2008, which are inserted
by clause 17 of this Bill. New sections 175AA and 175AB
provide that conditions of a family violence intervention order
or safety notice prevail over bail conditions to the extent of any
inconsistency.
New section 5AAA(4) provides that without limiting section 4(5)
or 5(2), which refer to the power of bail decision makers to
impose bail conditions, a bail decision maker may impose any
or all of the conditions listed in new section 5AAA(4). The list
of conditions in new section 5AAA(4) replicate the list of
conditions in current section 5(2A).
New section 5AAA(5) provides that 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. New section 5AAA(5) replaces the substance
of current section 5(2B).
New section 5AAA(6) provides that a bail condition continues
to bind an accused until it is varied or revoked or the matter in
relation to which it was imposed is finally determined by a court.
New section 5AAB concerns sureties, and replaces the substance
of the surety provisions in current section 5.
New section 5AAB(1) provides that 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 whether to impose the condition and
the amount of money to be deposited. New section 5AAB(1)
replaces the substance of current section 5(5).
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New section 5AAB(2) provides that if a bail decision maker is
satisfied under subsection (1) that the accused does not have
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).
New section 5AAB(2) replaces the substance of current
section 5(6).
New section 5AAB(3) provides that if a bail decision maker is
considering imposing a condition requiring a surety, the bail
decision maker must have regard to the means of a proposed
surety in determining whether to impose the condition and the
amount of the surety. New section 5AAB(3) replaces the
substance of current section 5(7).
New section 5AAB(4) provides that 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). New section 5AAB(4) replaces
the substance of current section 5(8).
Clause 7 inserts a new subparagraph (iia) into section 8(1)(c) of the
Bail Act 1977. Section 8(1)(c) deals with evidence which the
informant, prosecutor, or other person appearing for the Crown,
may submit in bail proceedings. New subparagraph (iia) will
make clear that this includes evidence to show that there is a risk
that the accused may subject another person to family violence.
Clause 8 substitutes section 10 and inserts new section 10A into the
Bail Act 1977. Together, these sections replace current
section 10 and aspects of current section 12 concerning bail
justices. New sections 10 and 10A set out separately how a
police officer, sheriff or other authorised person may grant or
refuse bail in circumstances where it is impracticable to bring
an accused before a court, and how a bail justice may grant or
refuse bail.
New section 10 sets out the powers of a police officer, sheriff or
other authorised person to grant or refuse bail in circumstances
where it is impracticable to bring an accused before a court.
10
New section 10(1) provides that the section applies where 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 of the
Crimes Act 1958 has commenced, immediately upon the
expiration of the reasonable time referred to in that section.
New section 10(1) is intended to clarify the time period for which
it is impracticable to bring an accused person before a court.
New section 10(2) provides that a police officer of or above
the rank of sergeant or for the time being in charge of a police
station, or the sheriff of a person authorised under section 84(5)
of the Infringements Act 2006, must, without delay, consider
whether to grant bail. New section 10(2), in conjunction with
new sections 10(1) and 10(5), replaces current sections 10(1)
and 10(1A).
New section 10(3) provides that if a 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. A note is inserted to refer to section 5AA of the
Bail Act 1977, which concerns conditions of bail granted to a
child in certain circumstances. New section 10(3) replaces the
substance of current section 10(1B).
New section 10(4) provides that an independent person present
in accordance with subsection (3) may take steps to facilitate
the granting of bail, for example, by arranging accommodation.
New section 10(4) replicates the substance of current
section 10(1C).
New section 10(5) provides that the police officer, the sheriff
or person authorised under section 84(5) of the Infringements
Act 2006 may grant or refuse bail. A note is also inserted at
the foot of new section 10(5) to refer to section 13 of the Bail
Act 1977, which, as amended by subsequent clauses of this Bill,
stipulate circumstances in which only a court may grant bail.
New section 10(5) is intended to explicitly set out the power of
a police officer, sheriff or person authorised under section 84(5)
of the Infringements Act 2006 to grant or refuse bail.
11
New section 10(6) provides that if bail is refused under
subsection (5), the bail decision maker--being a police officer,
the sheriff or person authorised under section 84(5) of the
Infringements Act 2006--must either advise the arrested person
that they are entitled to apply to a court or bail justice for bail
or give the arrested person a written statement setting out the
provisions of new section 10(6). New section 10(6) replaces
the part of current section 10(2) which provides that if a police
officer, the sheriff or person authorised under section 84(5) of the
Infringements Act 2006 refuses to discharge a person from
custody, the person must either be advised of their entitlement
to apply to a bail justice for discharge from custody, or be given
a statement setting out the provisions of current section 10(2).
New section 10(7) provides that if the arrested person elects to
apply for bail under new section 10(6), 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.
New section 10(7) replaces the part of current section 10(2)
which provides that an accused, if electing to apply to a bail
justice for discharge from custody, must be brought before a bail
justice as soon as practicable.
New section 10(6) and 10(7) differ from current section 10(2) in
that it requires an accused to be brought before a court instead of
a bail justice, and only before a bail justice when the court is not
sitting. Further, an accused who is granted bail with conditions
will not automatically be required to be brought before a court or
bail justice if they wish to vary their bail conditions. If an
accused wishes to vary the amount of bail or the conditions of
bail, they can apply for a variation under section 18AC of the
Bail Act 1977 to the court to which they are required to surrender
under their conditions of bail.
New section 10A sets out the power of bail justices to grant
bail. New section 10A(1) provides that the section applies
where a person in custody is brought before a bail justice.
New section 10A(2) requires the bail justice to hear and
determine any application made for bail, or for remand in
custody, in respect of that person. New sections 10A(1) and
10A(2) are intended to explicitly specify when a bail justice
is empowered to make a decision as regards bail.
12
New section 10A(3) provides that if a 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 proceeding in relation
to bail. A note is inserted to refer to section 5AA of the Bail
Act 1977, which concerns conditions of bail granted to a child
in certain circumstances. New section 10A(3) replaces the
substance of current section 12(3).
New section 10A(4) provides that an independent person
present in accordance with subsection (3) may take steps to
facilitate the granting of bail, for example, by arranging
accommodation. New section 10A(4) replicates the substance
of current section 12(4).
New section 10A(5) provides that the bail justice may grant
or refuse bail. A note is also inserted at the foot of new
section 10A(5) to refer to section 13 of the Bail Act 1977,
which, as amended by subsequent clauses of this Bill,
stipulate circumstances in which only a court may grant bail.
New section 10(5) is intended to explicitly set out the power
of a bail justice to grant or refuse bail.
New section 10A(6) provides that a bail justice who refuses bail
must remand the accused person in custody to appear before a
court on the next working day or within 2 working days if the
next working day is not practicable or if the accused 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. New section 10A(6) replicates the substance of
current section 12(1A) of the Bail Act 1977.
Clause 9 substitutes section 12 of the Bail Act 1977. New section 12
sets out the powers of courts to grant or refuse bail. It replaces
current section 13(1) and the aspects of current section 12
concerning courts.
New section 12(1) provides that the section applies if a person in
custody is brought before a court. New section 12(2) provides
that the court must hear and determine any application made
for bail, or for remand in custody, in respect of that person.
New sections 12(1) and 12(2) are intended to explicitly specify
when a court is empowered to make a decision as regards bail.
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New section 12(3) provides that the court may grant or refuse
bail. A note is also inserted at the foot of new section 12(3) to
refer to section 13 of the Bail Act 1977, which, as amended by
subsequent clauses of this Bill, stipulate circumstances in which
only a court may grant bail. New section 12(3) is intended to
explicitly set out the power of a court to grant or refuse bail.
New section 12(4) provides that if a court refuses bail, it must
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 certify on the remand warrant a statement
of the refusal and of the grounds for it. New section 12(4)
replaces the substance of current sections 12(1AA), 12(1)(b)
and 12(2)(b).
New section 12(5) provides that 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. New section 12(5) replicates the substance of
current section 12(1AB).
Clause 10 substitutes section 13 of the Bail Act 1977. As clause 9 of this
Bill provides for the substance of current section 13(1), new
section 13 concerns only the substance of current section 13(2)
which relates to bail for an accused charged with treason or
murder.
New section 13(1) provides that only the Supreme Court may
grant bail to a person accused with treason. New section 13(1)
replicates the substance of current section 13(2)(a), but removes
the reference to "exceptional circumstances". This is because
the reference will no longer be necessary upon commencement of
clause 5(2), clause 13 and the definition of Schedule 1 offence in
clause 4 of this Bill. Treason will be specified as a Schedule 1
offence upon commencement of clause 13 of this Bill, and new
section 4(2)(a), as substituted by clause 5(2) of this Bill, will
require the court to refuse bail for an accused charged with
treason unless satisfied that exceptional circumstances justify the
grant of bail.
New section 13(2) provides that only the Supreme Court, or
the Magistrates' Court on committing the person to trial, may
grant bail to a person accused with murder. New section 13(2)
replicates the substance of current section 13(2)(b), but removes
the reference to "exceptional circumstances". This is because
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the reference will no longer be necessary upon commencement
of clause 5(2), clause 13 and the definition of Schedule 1
offence in clause 4 of this Bill. Murder will be specified as a
Schedule 1 offence upon commencement of clause 13 of this Bill,
and new section 4(2)(a), as substituted by clause 5(2) of this Bill,
will require the court to refuse bail for an accused charged with
murder unless satisfied that exceptional circumstances that justify
the grant of bail.
Clause 11 amends new section 13 of the Bail Act 1977.
Subclause (1) amends the heading to new section 13 of the Bail
Act 1977 to "Treason, murder and other Schedule 1 offences".
Subclause (2) inserts new section 13(3) into new section 13, to
provide that only a court may grant bail to a person accused of
any other Schedule 1 offence.
Clause 11 is intended to commence at the same time or after the
commencement of new section 13, as substituted by clause 10
of this Bill. Currently, and upon commencement of any other
clauses of this Bill, any bail decision maker is empowered to
grant or refuse bail with respect to "exceptional circumstances"
offences other than treason and murder. After the
commencement of clause 11, only courts will be able to grant
bail with respect to "exceptional circumstance" offences, with the
existing restrictions on treason and murder continuing to apply.
Clause 12 inserts a new subsection (18) in section 34 of the Bail Act 1977.
New section 34(18) is a transitional provision. It provides that an
amendment made by this Part of the Bill applies to a bail
application made, or appeal commenced on or after the
commencement of that provision.
This Bill will make a number of changes to the Bail Act 1977
that will affect the decision making process for bail decision
makers. This transitional provision will ensure that the Bail
Act 1977 will operate in the same way on any given day,
regardless of when the offence which gave rise to the bail
application was alleged to have been committed.
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Clause 13 inserts new Schedules 1 and 2 to the Bail Act 1977.
Current section 4(2) of the Bail Act 1977 provide that a person
accused of certain offences shall be refused bail unless the bail
decision maker is satisfied that exceptional circumstances exist
which justify the grant of bail.
Clause 5(2) of the Bill will amend section 4(2) to remove the list
of offences referred to in current sections 4(2)(a), (aa) and (b),
and provide that bail be refused for a person charged with a
Schedule 1 offence unless the decision maker is satisfied that
exceptional circumstances exist which justify the grant of bail.
Clause 4 will insert a definition of the term Schedule 1 offence
to mean any offence listed in Schedule 1 to the Act.
This clause will insert Schedule 1. Schedule 1, as inserted by this
clause, will include all the offences with which a person charged
must be refused bail unless the decision maker is satisfied that
exceptional circumstances exist which justify the grant of bail,
under current section 4(2) of the Bail Act 1977.
Schedule 1 will also include additional offences not currently
listed under current section 4(2) of the Bail Act 1977.
These offences are--
• any Schedule 2 offence committed by the accused in a
range of circumstances, including while on bail for any
Schedule 1 offence or Schedule 2 offence (item 3);
• aggravated home invasion (item 4);
• aggravated carjacking (item 5);
• a range of drug trafficking offences found in the
Commonwealth Criminal Code, where the quantity
involved is not less than the commercial quantity
(as defined in the Drugs, Poisons and Controlled
Substances Act 1981 (item 9); and
• an offence of conspiracy, incitement, or attempting to
commit any other offence listed in Schedule 1 (item 12).
This clause will also insert Schedule 2 to the Act, which is also a
list of offences.
16
Current section 4(4)(a)-(d) provides that a court shall refuse bail
to an accused charged with certain serious offences unless the
accused shows cause why his or her detention in custody is
not justified. When amended by clause 5(7)(b) of this Bill,
section 4(4) will provide that the bail decision maker must refuse
bail unless the accused "shows compelling reason" rather than
"shows cause".
Clause 5(8) of the Bill will substitute a new section 4(4) which
will provide that a bail decision maker must refuse bail for a
person charged with a Schedule 2 offence unless the accused
shows compelling reason why their detention in custody is not
justified.
This clause inserts the Schedule 2 to which new section 4(4), as
substituted by clause 5(8) of this Bill, refers. Schedule 2 includes
all offences listed in current section 4(4) of the Bail Act 1977.
Schedule 2 will also include additional offences not currently
listed under current section 4(4) of the Bail Act 1977.
These additional offences are--
• an indictable offence alleged to have been committed
in a range of circumstances, including while on bail for
another indictable offence (item 1);
• manslaughter (item 2);
• child homicide (item 3);
• causing serious injury intentionally in circumstances
of gross violence (item 4);
• causing serious injury recklessly in circumstances
of gross violence (item 5);
• causing serious injury intentionally (item 6);
• threats to kill, but only where the offence is a family
violence offence (item 7). A definition of the term
family violence offence will be added to the Act by
clause 4 of this Bill. It includes an offence where the
conduct of the accused is family violence. A definition
of the term family violence is also being added to the
Act by clause 4. It will have the same meaning as in
the Family Violence Protection Act 2008;
17
• a range of sexual offences found in the Crimes
Act 1958 (items 9-17);
• an offence against section 125A of the Family
Violence Protection Act 2008 (item 19).
Currently, an offence against section 125A of the
Family Violence Protection Act 2008 is only a
"show cause" offence when committed in certain
circumstances. The effect of this change is to make
an offence against section 125A of the Family
Violence Protection Act 2008 a Schedule 2 offence
when committed in any circumstances, rather than
just in the limited circumstances listed in item 18,
which replicates current section 4(4)(ba);
• kidnapping (item 21);
• armed robbery (item 22(a));
• carjacking (item 22(d));
• culpable driving causing death (item 22(f));
• dangerous driving causing death or serious injury
(item 22(g));
• dangerous or negligent driving while pursued by police
(item 22(h));
• offences against sections 302.2, 302.3, 303.4, 303.5,
304.1, 304.2, 305.3, 305.4, 306.2, 307.11, 309.3, 309.4,
309.7, 309.8, 309.10, 309.11, 309.12, 309.13, 309.14
and 309.15 of the Criminal Code of the Commonwealth
(item 26); and
• conspiracy to commit, incitement to commit or
attempting to commit an offence referred to in any
other item in Schedule 2 (item 31).
Clause 14 makes a number of consequential amendments to the Bail
Act 1977.
Subclause (1) replaces references to a court in section 3A of
the Bail Act 1977 and in the Note at the foot of that section
to references to a bail decision maker. Clause 4 defines a
bail decision maker to mean a court, a bail justice, a police
officer or the sheriff or a person authorised under the
18
Infringements Act 2006 who are empowered under the
Bail Act 1977 to grant bail.
Subclause (2) replaces references in sections 3B(1) and (2) of
the Bail Act 1977 to "a court" with references to "a bail decision
maker".
Subclause (3) substitutes a reference to section 5(4) in
section 5AA(2) of the Bail Act 1977 with a reference to new
section 5AAA(2). New section 5AAA(2), inserted by clause 6
of this Bill, replaces the substance of current section 5(4) and
provides that any conditions imposed must be no more onerous
than required to reduce the likelihood the accused may do a
thing mentioned in section 5AAA(1), must be reasonable having
regard to the nature of the nature of the alleged offence and the
circumstances of the accused, and subject to section 5AAA(3),
must be consistent with each condition of each family violence
intervention order or safety notice.
Subclause (4) substitutes references in section 7(1) of the
Bail Act 1977 to "the court", wherever they occur in that
section, for references to "the bail decision maker".
Subclause (5) substitutes references in section 8(1) of the
Bail Act 1977 to "the court", wherever they occur in that
section, for references to the "bail decision maker".
Subclause (6) replaces the word "it" in section 8(1)(e) of the
Bail Act 1977 with a reference to "the bail decision maker".
Subclause (7) replaces a reference to "the court" in section 9(3)
of the Bail Act 1977 with a reference to "the bail decision
maker".
Subclause (8) inserts a specific reference to a bail decision maker
into section 9(3A)(b) of the Bail Act 1977. This will provide that
a surety may give information by audio visual link to any bail
decision maker.
Subclause (9) removes references in section 9(3B)(a)(iii)
and (b)(ii), (3C) and (3D) of the Bail Act 1977 to require that a
person be authorised under section 27. These changes are
required to enable section 9(3B)(a)(iii) and (b)(ii), (3C) and (3D)
to continue to apply to a court, a bail decision maker who is not a
court, and a person authorised under section 27.
19
Subclause (10) substitutes the Note that appears at the foot of
new sections 10(5) and 10A(5) of the Bail Act 1977, which are
inserted by clause 8 of this Bill. The substituted Note provides
that only a court may grant bail to a person accused of
committing a Schedule 1 offence, and refers to section 13.
Subclause (10) also substitutes the Note that appears at the foot
of new section 12(3) of the Bail Act 1977, which is inserted by
clause 9 of this Bill. The substituted Note provides that only a
court may grant bail to a person accused of committing a
Schedule 1 offence, and refers to section 13.
The commencement of subclause (10) is contingent on the
commencement of clause 11 of this Bill, which amends new
section 13 of the Bail Act 1977.
Subclause (11) repeals section 14 of the Bail Act 1977.
Section 14 provides for the refusal of a bail application which
relates to charges for causing injury to a person, where it is
uncertain if the person will die or recover. New sections 4(4B)
and 4(4C), introduced by clause 5, will now provide for refusing
bail in these circumstances. This provision has been moved so
that it is among other provisions in the Bail Act 1977 which
relate to deferral of bail.
Subclause (12) replaces "no court" in section 16(1) of the
Bail Act 1977 with a reference to "no bail decision maker".
Subclause (13) makes a number of amendments to section 16B
of the Bail Act 1977. Subclause (13)(a) replaces "court or bail
justice" with "bail decision maker". Subclause (13)(b) removes
the words "or a police officer discharging a child on bail under
section 10" and subclause (13)(c) replaces the words "court or
bail justice or police officer" with "bail decision maker".
These changes update the language of section 16B of the
Bail Act 1977 to reflect the changes introduced by clause 4 of
this Bill, inserting the definition of bail decision maker and
repealing the definition of court.
Subclause (14) replaces 2 references to "A court" in section 17(1)
and (2) of the Bail Act 1977 with references to "A bail decision
maker".
20
Subclause (15) removes the words "or a judge of the Court"
from sections 18(3)(a), 18AC(3)(a) and 18AE(2)(a) of the Bail
Act 1977. These sections will continue to refer to the Supreme
Court.
Subclause (16) replaces 2 references to "court" in section 26(1) of
the Bail Act 1977 with references to "bail decision maker".
Subclause (17)(a) substitutes 2 references in section 27(1) of the
Bail Act 1977 to "the court" with references to "the bail decision
maker". Subclause (17)(b) substitutes the words "any other
court" with "any court". These changes update the language of
section 27 of the Bail Act 1977 to reflect the changes introduced
by clause 4 of this Bill, inserting the definition of bail decision
maker and repealing the definition of court.
Clause 15 makes a number of amendments consequential on the Fines
Reform Act 2014. The Fines Reform Act 2014 reforms the
infringement system in Victoria. Clause 15 replaces references
to section 84(5) of the Infringements Act 2006 with references
to section 115(5) of the Fines Reform Act 2014.
These provisions provide who may execute infringement
warrants.
Subclause (1) makes this substitution in the definition of
bail decision maker inserted by clause 4(1) of this Bill.
Subclause (2) makes this substitution to section 5AA(1) and (2)
of the Bail Act 1977.
Subclause (3) makes this substitution to section 10(2) and (5) of
the Bail Act 1977.
Clause 16 makes a number of amendments consequential on the National
Domestic Violence Order Scheme Act 2016.
Subclause (1) inserts the definition of recognised DVO into
section 3 of the Bail Act 1977. Recognised DVO will have the
same meaning as in the Family Violence Protection Act 2008.
Subclause (2) inserts a reference to a recognised DVO into
new section 4(4H) of the Bail Act 1977, which is created by
clause 5(9). This will require a bail decision maker considering
the release of an accused on bail to inquire whether a recognised
DVO is in force against the accused.
Subclause (3) inserts a reference to a recognised DVO into new
section 5AAA(2)(c).
21
Subclause (4) inserts a reference to a recognised DVO into new
section 5AAA(3).
Subclause (5) substitutes the Note at the foot of new
section 5AAA(3) so that the note includes a reference to
recognised DVOs.
Part 3--Amendment of Family Violence Protection Act 2008
Clause 17 inserts new sections 175AA and 175AB into the Family
Violence Protection Act 2008.
New section 175AA deals with the relationship between bail
conditions and family violence safety notices. It applies only
where a person is subject to both bail conditions, and a family
violence safety notice, and there is an inconsistency between a
bail condition and the safety notice such that it would be
impossible to comply with both the bail condition and safety
notice. If these circumstances apply, new section 175AA(2)
provides that the family violence safety notice prevails to the
extent of the inconsistency.
An example of where this provision might be applicable is where
a safety notice prohibits a person from being present at a certain
address, while a bail condition requires the person to reside at the
address. In these circumstances new section 175AA(2) would
operate to ensure the safety notice prevailed; that is, the person
would be prohibited from attending that address and would not
be required to comply with the inconsistent bail condition.
New section 175AB deals with the relationship between bail
conditions and family violence intervention orders. It applies
only where a person is subject to both bail conditions, and a
family violence intervention order, and there is an inconsistency
between a bail condition and the intervention order such that it
would be impossible to comply with both the bail condition
and intervention order. If these circumstances apply, new
section 175AB(2) provides that the family violence intervention
order prevails to the extent of the inconsistency.
An example of where this provision might be applicable is
where an intervention order prohibits a person from being
present at a certain address, while a bail condition requires
the person to reside at the address. In these circumstances new
section 175AB(2) would operate to ensure the intervention order
prevailed; that is, the person would be prohibited from attending
22
that address and would not be required to comply with the
inconsistent bail condition.
Clause 18 inserts new section 175AC into the Family Violence Protection
Act 2008.
This clause is consequential on the National Domestic Violence
Order Scheme Act 2016. That Act will establish a scheme to
recognise in Victoria certain orders made in other States.
These orders are called "recognised DVOs".
New section 175AC deals with the relationship between bail
conditions and a recognised DVO. It applies only where a person
is subject to both bail conditions, and a recognised DVO, and
there is an inconsistency between a bail condition and the DVO
such that it would be impossible to comply with both the bail
condition and DVO. If these circumstances apply, new section
175AC(2) provides that the recognised DVO prevails to the
extent of the inconsistency.
An example of where this provision might be applicable is where
a recognised DVO prohibits a person from being present at a
certain address, while a bail condition requires the person to
reside at the address. In these circumstances new section
175AC(2) would operate to ensure the DVO prevailed; that is,
the person would be prohibited from attending that address and
would not be required to comply with the inconsistent bail
condition.
Part 4--Consequential amendment of other Acts and
repeal of amending Act
Division 1--Consequential amendment of other Acts
Clause 19 contains amendments to the Children, Youth and Families
Act 2005.
Subclause (1) amends section 346(2)(b) of this Act. It replaces
the words "under section 10 of" in the expression "released on
bail under section 10 of the Bail Act 1977" with the words
"in accordance with".
This change is necessary because amendments in the Bill
will mean the power to release a person on bail is no longer
exclusively found within section 10 of the Bail Act 1977,
but in a number of provisions.
23
Subclause (2) substitutes the Note at the foot of section 346 of
the Children, Youth and Families Act 2005. This is a note that
sets out certain provisions in the Bail Act 1977 that are particular
to children. This subclause updates the note to reflect changes
made by this Bill.
Clause 20 amends section 78D(3)(b) of the Corrections Act 1986.
It replaces the words "under section 4 of" in the expression
"granted bail under section 4 of the Bail Act 1977" with the
words "in accordance with".
This change is necessary because, following changes contained
in this Bill, bail will be able to be granted under a number of
provisions in the Bail Act 1977, not just section 4.
Clause 21 inserts a note at the foot of section 464A(1) of the Crimes
Act 1958. The note specifies that section 10 of the Bail
Act 1977 applies at the expiration of the "reasonable time"
referred to in this subsection.
Section 464A(1) of the Crimes Act 1958 deals with detention
of a person in custody and provides that every person taken into
custody for an offence must be released unconditionally, released
on bail, or brought before a bail justice or the Magistrates' Court.
It does not however provide a power to grant bail.
Mr Coghlan noted that there was some ambiguity about the
interaction between this provision and provisions in the
Bail Act 1977. The purpose of the note inserted by this clause,
and other amendments in this Bill, is to clarify the interaction
between this provision and the Bail Act 1977, in accordance
with recommendations 12(a) and 13 of Mr Coghlan's advice.
Clause 22 amends section 144(2)(c) of the Criminal Procedure Act 2009
by substituting the Note that appears at the foot of that section.
The new Note consists of 2 notes, the second of which replicates
the current Note at the foot of that section.
The first note clarifies that section 13 of the Bail Act 1977
prevents the Magistrates' Court granting bail to a person
committed for trial on a charge of treason. Section 144 of the
Criminal Procedure Act 2009 deals with procedure before
and on committing accused for trial and might, if not read in
conjunction with section 13 of the Bail Act 1977, suggest that
24
the Magistrates' Court could grant bail to a person committed for
trial on a charge of treason.
Clause 23 repeals section 250 of the Fines Reform Act 2014. This section
contains amendments to the Bail Act 1977 that have not yet
commenced, and are no longer necessary due to clause 15 and
other amendments in this Bill.
Clause 24 contains amendments to the Magistrates' Court Act 1989.
Subclause (1) inserts a Note at the foot of section 64(2) of that
Act. That section deals with a person being brought before a
bail justice or the Magistrates' Court within a reasonable time
of being arrested. The Note indicates the provisions of the
Bail Act 1977 which apply to a person so brought before a bail
justice or the Court.
Subclause (2) amends section 64(3) of the Magistrates' Court
Act 1989 to replace the words "under section 10 of" in the
expression "may be discharged from custody on bail under
section 10 of the Bail Act 1977" with the words "in accordance
with".
This change is necessary because amendments in the Bill
will mean the power to release a person on bail is no longer
exclusively found within section 10 of the Bail Act 1977,
but in a number of provisions.
Subclause (3) inserts a note at the foot of section 78(2) of the
Magistrates' Court Act 1989. That section deals with a person
being brought before a bail justice or the Magistrates' Court
within a reasonable time of being arrested. The note indicates
the provisions of the Bail Act 1977 which apply to a person so
brought before a bail justice or the Court.
Subclause (4) amends section 78(3) of the Magistrates' Court
Act 1989 to replace the words "under section 10 of" in the
expression "may be discharged from custody on bail under
section 10 of the Bail Act 1977" with the words "in accordance
with".
This change is necessary because amendments in the Bill
will mean the power to release a person on bail is no longer
exclusively found within section 10 of the Bail Act 1977,
but in a number of provisions.
25
Clause 25 amends section 69F(1) of the Sentencing Act 1991. This clause
replaces the words "under section 10 of" in the expression
"released on bail (either in accordance with the endorsement on
the warrant or under section 10 of the Bail Act 1977)" with the
words "in accordance with".
This change is necessary because amendments in the Bill
will mean the power to release a person on bail is no longer
exclusively found within section 10 of the Bail Act 1977,
but in a number of provisions.
Clause 26 amends section 64(6) of the Sex Work Act 1994. This clause
replaces the words "under section 10 of" in the expression
"may be discharged from custody on bail under section 10 of
the Bail Act 1977" with the words "in accordance with".
This change is necessary because amendments in the Bill
will mean the power to release a person on bail is no longer
exclusively found within section 10 of the Bail Act 1977,
but in a number of provisions.
Clause 27 repeals section 10(2) of the Victims' Charter Act 2006.
This section provides that in having regard to the safety or
welfare of members of the public in accordance with the
Bail Act 1977, the safety or welfare of the victim or family
members of the victim and the attitude of a victim towards
the granting of bail may be taken into account by a court in
determining whether to grant bail to a person accused of a
criminal offence.
This provision is no longer necessary as the amendments
contained in this Bill will ensure that the Bail Act 1977
itself states that these matters may be taken into account.
Clause 28 amends sections 134(5)(b) and 137(4)(b) of the Victorian
Civil and Administrative Tribunal Act 1998 to replace
the word "court" with the expression "bail decision maker".
This amendment is consequential upon amendments in this
Bill that will replace the word "court" with the expression
"bail decision maker" where appropriate throughout the
Bail Act 1977.
26
Division 2--Repeal of amending Act
Clause 29 provides for the repeal of the Bill on 1 November 2019.
The repeal of this Bill does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
27