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1998
Explanatory note
This explanatory note relates to this Bill as introduced into
The Bail Amendment Bill 1998 is cognate with this Bill.
( a ) to amend the Bail Act 1978 so as to provide for the enforcement of bail
agreements under that Act. and
(b) to amend the Justices Act 1902 so as to abolish various recognizances
under that Act. and
( c ) to make consequential amendments to certain other Acts.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the Bail
Act 1978 set out in Schedule 1.
Clause 4 is a formal provision giving effect to the amendments to the
Justices Act 1902 set out in Schedule 2.
Clause 5 is a formal provision giving effect to the amendments to other Acts
set out in Schedule 3.
Amendment of Bail Act 1978
Schedule 1 [l] substitutes the definition of court in section 4 ( 1 ) so as to
ensure that the definition applies to all courts exercising criminal jurisdiction.
Schedule
l [2] amends section 6 as a consequence of the substitution by
Schedule 2 [17] of section 123 of the Justices Act 1902.
Schedule 1 [3] amends section 34 so as to make it part of an accused
person's bail undertaking to a court that the person notify the court of any
change in the person's residential address.
Schedule 1 [4] amends section 36 so as to ensure that any person who gives a
bail undertaking is made aware of the nature and effect of the undertaking.
Schedule 1 [5] inserts proposed sections 42A and 42B. Proposed section 42A
makes i t an offence (punishable by imprisonment for 2 years) for a person to
dispose of bail security for the purpose of preventing the security from being
realised. Proposed section 42B enables a court to revoke a person's bail if i t
appears that the person's bail security is no longer intact, subject to the
person being given an opportunity to demonstrate that the security is still
intact or. if i t is not. to arrange for replacement or supplementary security.
Schedule l [6] omits section 53 as a consequence of the insertion by
Schedule 1 [ 7 ] of proposed Part 7A.
Schedule 1 [7] inserts proposed Part 7A. The new Part (containing 4
Divisions) provides a mechanism for the enforcement of bail agreements
entered into under section 36. A bail agreement is an agreement under section
36 under which an accused person. or some other person. agrees to forfeit
money if an accused person's bail undertaking is not complied with. A bail
agreement may or may not be supported with security.
Explanatory note page 2
Division 1 (Preliminary) contains a single provision (proposed section 53)
that defines certain expressions for the purposes of the proposed Part.
Division 2 (Forfeiture orders) contains provisions for the way in which
forfeiture orders are made. confirmed and enforced. including provisions:
allowing a court to make a forfeiture order if a person fails to appear
(a)
before the court in accordance with a bail undertaking (proposed
section 53A). and
requiring the registrar of the court to notify all persons affected by a
(b)
forfeiture order of the making of the order (proposed section 53B). and
allowing persons affected by a forfeiture order to make formal
(c)
objections to the confirmation of the order (proposed section 53C). and
providing for the hearing and determination of formal objections
(d)
(proposed section 53D). and
allowing for the making of informal objections to the confirmation of a
(e)
forfeiture order and providing for the hearing and determination of
informal objections (proposed section 53E). and
providing that a forfeiture order takes effect when the time for making
(f)
formal Objections ends or. if a formal objection is made before then.
when the order is confirmed (proposed section 53F). and
providing that bail money guaranteed by a baiI agreement is forfeited
(g)
to. or becomes payable to. the Crown when a forfeiture order takes
effect (proposed section 53G). and
requiring the resistrar of the court to notify all persons affected by a
(h)
forfeiture order of the fact that the order has taken effect (proposed
section 53H). and
providing for the reference of a forfeiture order to the State Debt
(i)
Recovery Office for enforcement (proposed section 531). and
specifying to which public authority bail money is payable after a
(j)
forfeiture order has taken effect (proposed section 535).
Division 3 (Late applications to set aside forfeiture orders) contains
provisions allowing a forfeiture order to be set aside in certain restricted
circumstances. including provisions:
( a ) allowing an application for the setting aside of a forfeiture order at any
time within 1 2 months after the order was made in circumstances
where no objection to the order has been made (proposed section 53M).
and
Explanatory note page 3
(b)
providing for the hearing and determination of such an application,
subject to the restriction that the application will not be dealt with
unless the court is satisfied that notice of the making of the forfeiture
order has not been served on the applicant and the applicant has
otherwise been unaware of the fact that the order has been made
(proposed section 53L).
Division 4 (Miscellaneous) contains other provisions with respect to
forfeiture orders. including provisions:
(a)
requiring the return of forfeited bail money in the event that a
forfeiture order is set aside (proposed section 53M), and
(b)
providing that appeals from a Local Court's decision on certain matters
under the proposed Part may be made under section 122 of the Justices
Act 1902 (proposed section 53N). and
(c) allowing the Court of Criminal Appeal to authorise other courts to
exercise its functions under the proposed Part (proposed section 530).
and
(d) making the Crown a party to all proceedings under the proposed Part
(proposed section 53P).
Schedule 1 [8]. amends proposed section 53N as a consequence of the
amendments to the Justices Act 1902 proposed by the Justices Legislation
Amendment (Appeals) Bill 1998.
Schedule 1 [9], [10] and [11] amend section 54 as a consequence of the
proposed amendment by Schedule 3.6 of the Forfeited Recognizances and
Bail Act 1954.
Schedule l [12] amends Schedule 1 (Savings and transitional provisions) so
as to apply the provisions of proposed sections 42A and 42B. and of
proposed Part 7A. to bail agreements entered into before the commencement
of those provisions and so as to enable the regulations to make further
provisions of a savings or transitional nature.
Amendment of Justices Act 1902
Schedule 2 [ l ] amends section 3 (Definitions) so as to define bail to have the
same meaning as i t has in the Bail Act 1978.
Schedule 2 [2] amends section 25 so as to remove a reference to
recognizances.
Schedule 2 [3] amends section 31 so as to provide that a person arrested
under a warrant under section 26 or 31 may be set at large on bail rather than.
as at present. on a recognizance.
Explanatory note page 4
Schedule 2 [4] repeals Subdivision 8 of Division 1 of Part 4 (dealing with the
procedures for accepting and enforcing recognizances) as a consequence of
31. the amendments to be made by Schedule 2 [3] to section
Schedule 2 [5] amends section 66 so as to provide that a person arrested
under a warrant under section 61, 66 or 80AA may be set at large on bail
rather than. as at present. on a recognizance.
Schedule 2 [6] substitutes section 69 so as to provide for the committal of a
person to custody. or the release of a person on bail (rather than. as at present.
on a recognizance), during the adjournment of proceedings. The new section
69 continues the power of a Justice under the existing section to call a person
up from custody at any time during the period of adjournment.
Schedule 2 [7] repeals Subdivision 9 of Division 2 of Part 4 (dealing with the
procedures for accepting and enforcing recognizances) as a consequence of
the amendments to be made by Schedule 2 [5] and [6] to sections 66 and 69.
Schedule 2 [8] amends section 100C so as to exclude from the operation of
Part 4A all forfeiture orders made under proposed Part 7A of the Bail Act
1978.
Schedule 2 [9] omits section 102. so abolishing the requirement that an
appellant must give security for the prosecution in the Supreme Court of
proceedings on a stated case under section 101.
Schedule 2 [10], [11], [12] and [14] amend sections 102A and 104. and
repeal section 110. as a consequence of the proposed repeal by Schedule 2 [9]
of section 102.
Schedule 2 [13] amends section 107 (as to be inserted by the proposed
Justices Legislation Amendment (Appeals) Act 1998) so as to provide that an
appeal under that section against an apprehended violence order does not
bring about an automatic stay of execution of that order.
Schedule 2 [15] amends section 121B so as to remove a reference to sureties
and recognizances.
Schedule 2 [16] omits subsection (5) of section 122, so abolishing the
requirement that an appellant must give security for the prosecution of an
appeal to the District Court under that section.
Schedule 2 [17] substitutes section 123 so as to restate the circumstances in
which execution of a sentence or order is stayed following an application for
statement of a case to the Supreme Court under section 101 or an appeal to
the District Court under section 122.
Explanatory note page 5
Schedule 2 [18], [19] and [21] repeal sections 124 and 125A. and Division 5
of Part 5, as a consequence of the proposed repeal by Schedule 2 [9] of
section 102 and proposed omission by Schedule 2 [16] of subsection (5) of
section 122.
Schedule 2 [20] amends section 127 (as to be inserted by the proposed
Justices Legislation Amendment (Appeals) Act 1998) so as to provide that an
appeal under that section against an apprehended violence order does not
bring about an automatic stay of execution of that order.
Schedule 2 [22] repeals section 153 partly as a consequence of the proposed
repeal by Schedule 2 [9] of section 102 and proposed omission by Schedule 2
[16] of subsection (5) of section 122 and partly as a consequence of the
existing
153
provisions of the Bail Act 1978 which. together. render section
obsolete.
Schedule 2 [23] substitutes section 153A so as to provide for the committal
of a person to custody. or the release of a person on bail (rather than. as at
present. on a recognizance). during the period between the person's arrest
under a bench warrant issued by the Judge of a court and the person's being
court. brought before that
Schedule 2 [24] and [25] amend section 154 (the regulation-making power)
as a consequence of the proposed abolition by Schedule 2 of recognizances
under the Justices Act 1902 and of the proposed amendment by Schedule 3.6
of the Forfeited Recognizances and Bail Act 1954.
Schedule 2 [36] amends the Second Schedule so as to give effect to certain
savings, transitional and other provisions consequent on the amendments and
repeals to be effected by the proposed Act, both by Schedule 2 and Schedule
3.
Amendment of other Acts
Children (Criminal Proceedings) Act 1987 No 55
Schedule 3.1 omits section 42 ( 2 ) as a consequence of the proposed abolition
by Schedule 2 of recognizances under the Justices Act 1902.
Conveyancing Act 1919 No 6
Schedule 3.2 [ l ] and
[2] amend sections 186 and 189 so that the references
i n those sections to recognisances include references to bail agreements.
Coroners Act 1980 No 27
Schedule 3.3 substitutes section 40 so as to provide that a person arrested
under a warrant under section 35 or 39 may be committed to custody or may
be set at large on bail rather than. as at present. on a recognizance.
Explanatory note page 6
Evidence Act 1995 No 25
Schedule 3.4 amends section 194 so that the references in that section to
recognisances include references to bail agreements.
Fines Act 1996 No 99
Schedule 3.5 [l], [2] and [3] amend the heading to Part 7, and sections 111
and 112, as a consequence of the proposed enactment by Schedule 1 [7] of
Part 7A of the Bail Act 1978.
Schedule 3.5 [4] amends section 112 so as to ensure that the State Debt
Recovery Office may not take action under Part 4 to recover forfeited bail
money the subject of an application or appeal under Part 7A of the Bail Act
1978 until proceedings on the application or appeal have been finally
determined.
Schedule 3.5 [5] inserts a new section 112A so as to apply the provisions of
section 72 to the enforcement of forfeited bail securities under the Bail Act
1978.
Forfeited Recognizances and Bail Act 1954 No 25
Schedule 3.6 [1]-[7] amend the Act so as to remove all provisions relating to
bail as a consequence of the proposed enactment by Schedule 1 [7] of Part
7.4 of the Bail Act 1978.
Inebriates Act 1912 No 24
Schedule 3.7 [l],
[2] and [3] amend sections 7 and 12, and insert a new
section 17A, so as to apply proposed Part 7A of the Bail Act 1978 to the
enforcement of recognizances under the Inebriates Act 1912.
Local Courts (Civil
Act 1970 No 11
Schedule 3.8 amends section 72 so as to apply the provisions of section 66 of
the Justices Act 1902 to any witness who is arrested under a warrant for
failure to comply with a subpoena to appear at proceedings before a Local
Court exercising civil jurisdiction.
Protected Estates Act 1983 No 179
Schedule 3.9 [ l ] and [2] amend section 9 so as to abolish the power of the
Protective Commissioner to take recognizances.
Schedule 3.9 [3] amends section 31 as a consequence of the abolition by
Schedule 3.9 [1] and [2] of the power of the Protective Commissioner to take
recognizances.
Schedule 3.9 [3] amends section 31 so as to apply proposed Part 7A of the
Bail Act 1978 to the enforcement of bonds under the Protected Estates Act
1983.
Explanatory note page 7