Bail Amendment (Repeat Offenders)
Bill 2003

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Bail Act 1978:

(a) to provide for a presumption against bail for certain offences where the
offender committed the offence concerned while on bail for another
offence, while on parole for another offence, while subject to a sentence
(but not in custody) or to a good behaviour bond or an intervention
program order relating to another offence or while in custody, and

(b) to provide for a presumption against bail where the offender has
previously been convicted of the offence of failing to appear before a court
in accordance with a bail undertaking, and

(c) to provide for a presumption against bail in respect of indictable offences
where the offender has previously been convicted of one or more
indictable offences, and

(d) to require a court or authorised officer, when determining whether to grant
bail to an offender referred to in paragraph (c), and when considering the
interests of the person, to take into account the nature of the criminal
history of the person, having regard to the nature, seriousness and number
of those offences and the periods between them, and

(e) to make other consequential amendments and provision of a savings and
transitional nature.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of
assent.

Clause 3 is a formal provision that gives effect to the amendments to the Bail
Act 1978 set out in Schedule 1.

Schedule 1 Amendment of Bail Act 1978
Presumption against bail for repeat offenders
Currently, section 8 of the Bail Act 1978 (the Principal Act) provides a right to
release on bail for persons accused of certain minor offences, including offences
not punishable by imprisonment and other minor summary offences. In relation
to other more serious offences (with some exceptions relating to drug-related
offences, domestic violence offences and other specified offences), the Principal
Act (in section 9) provides for an entitlement to bail subject to consideration of
the matters set out in section 32 that are to be taken into account when
determining whether to grant bail. For specified drug-related offences, the
Principal Act provides for a presumption against bail. The Principal Act also
provides for exceptions from the presumptions in favour of bail established by
section 9 of the Principal Act in certain cases (including, in section 9B, in
relation to repeat offenders). For offences in relation to which there is no
entitlement to bail under section 8 or 9 of the Principal Act, there still remains
an ability to be granted bail (see section 13).

The proposed Act provides for a presumption against bail in relation to repeat
offenders. However, bail will still be available as referred to in section 13 of the
Principal Act, subject to consideration of the matters listed in section 32.

Schedule 1 [2] inserts proposed section 8B. The proposed section provides for
a presumption against bail if, at the time the person is alleged to have committed
the offence concerned, the person was on bail or parole for another offence or
was serving a sentence but was not in custody, or was subject to a good
behaviour bond or an intervention program order, in relation to another offence,
or was in custody. The proposed section also provides for a presumption against
bail in a case where:

(a) a person has previously been convicted of the offence of failing to appear
before a court in accordance with a bail undertaking, or

(b) a person is accused of an indictable offence and has previously been
convicted of one or more indictable offences.

Schedule 1 [6] omits section 9B of the Principal Act which is inconsistent with
the operation of proposed section 8B. (Section 9B removes the presumption in
favour of bail established by section 9 of the Principal Act in the same
circumstances as those in which a presumption against bail is to arise under
proposed section 8B, as referred to in the outline of Schedule 1 [2] above).

Criteria to be considered in bail applications
Section 32 of the Principal Act sets out the only matters that may be taken into
account by a court or authorised officer in all cases when determining whether
to grant bail. Currently, the section requires the court or authorised officer, in
considering the interests of a person for whom the presumption of bail has been
removed under section 9B (3), to consider the nature of the person’s criminal
history, having regard to the nature, seriousness and number of previous
offences and the period of time between them. Schedule 1 [7] updates the
reference to section 9B (3) with a reference to proposed section 8B (2) (b).

Savings and transitional and consequential amendments
Schedule 1 [1], [3], [4], [5], [8], [10] and [11] make consequential amendments.

Schedule 1 [9] makes provision of a savings and transitional nature consequent
on the amendments made by Schedule 1 [7] and [8] (but only to the extent that
it amends section 32 (6)).

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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