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· reverse the presumption in favour of bail in relation to an accused person charged with a serious sexual offence;
· require the court to consider additional criteria, such as the protection of an alleged victim of a sexual offence, in deciding whether to grant bail; and
· give effect to Recommendation 35 of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse.
The Bill achieves these aims by inserting new definitions into the
Bail Act, by amending section 7A dealing with offences for which the presumption of bail is reversed, and by amending section 24 dealing with criteria the court or authorised member must take into account in determining whether to grant bail.
In order to give practical recognition to these criteria, and to regulate the behaviour of the accused, the Bill also creates a system of
“conduct agreements” by which an accused person submits to particular conduct requirements while he or she is released on bail.
NOTES ON CLAUSES
Clause 1. Short Title
This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Bail Amendment Act 2007.
Clause 2. Commencement
This clause provides that the amendments will commence on the date fixed by the Administrator by gazettal notice.
Clause 3. Act amended
This clause sets out that the amendments made by the Bill are amendments to the Bail Act.
Clause 4. Amendment of section 3 (Interpretation)
This clause provides for the insertion of definitions of “child”,
“conduct agreement”, “Commonwealth sexual offence”, “pornographic material” and “Territory sexual offence” in section 3 of the Bail Act.
A Commonwealth sexual offence is an indictable offence against the law of the Commonwealth containing one or more of the elements set out in the definition. These elements form part of Commonwealth offences contained in the Crimes Act 1914, the Criminal Code Act 1995, and the Customs Act 1901.
A Territory sexual offence is an indictable offence containing one or more of the elements sets out in the definition. These elements form part of offences contained in the Criminal Code.
Clause 5. Insertion of section 3A
This clause inserts a definition of “serious sexual offence”.
A serious sexual offence is a Commonwealth sexual offence or Territory sexual offence for which a maximum penalty of imprisonment for
seven or more years is prescribed and includes an offence for which a lesser maximum penalty is prescribed of:
· procuring a child under the age of 16 years to engage in sexual intercourse or an indecent act; or
· an indecent assault of a child under 16 years by an adult; and
· an act of gross indecency, committed by an adult in the presence of a child.
Clause 6. Amendment of section 7A (Presumption against bail for certain offences)
This clause inserts a reference to “serious sexual offence” in the list of offences for which the presumption in favour of bail is reversed.
Clause 7. Amendment of section 24 (Criteria to be considered in bail applications)
Sections 24(1)(c) and (d) are repealed.
Sections 24(1)(c), (d) and (e) are inserted. New sections 24(3) to 24(6) are inserted.
This clause provides that the court must take various factors into account when considering a grant of bail including:
· the risk that the accused person would interfere with evidence, witnesses or jurors;
· the risk that the accused person would commit an offence, a breach of the peace or a breach of the conditions of bail; and
· the risk that would result from the accused person’s release on bail to the safety or welfare of the alleged victim, close relatives of the alleged victim, the caregiver of a child victim or any other person whose safety and welfare could, in the circumstance of the case,
be at risk.
This clause inserts a new section 24(3) which sets out the risks the court must have regard to when assessing risks which might flow from the release of the accused person on bail, such as the risk of violence or intimidation and a risk of property damage.
New section 24(4) provides that the safety and welfare of the alleged victim must be considered with particular care when the victim is a child, or the offence with which the accused person is charged is a serious sexual offence or serious violence offence.
New section 24(5) sets out matters which are to be taken into account when considering the safety and welfare of a child, including such factors as:
· the age of the child and of the accused person;
· the living arrangements for the child and the accused person; and
· the desirability of preserving the child’s living arrangements and family and community relationships.
New section 24(6) provides that where an alleged victim expresses concern to the prosecutor that the victim’s safety or welfare is at risk as a result of the accused person’s release on bail, the prosecutor must, wherever practicable, inform the court or authorised member about that concern and the reasons for it.
Clause 8. Amendment of section 27 (Conditions of bail)
Section 27(2A) is repealed. The non-association and place restriction conditions referred to in section 27(2A) are replaced at new section 27A with a system of conduct agreements.
Clause 9. Substitution of sections 27A and 28
Existing sections 27A and 28 are repealed.
New sections 27A and 28 are substituted.
The capacity of the court or authorised member to impose a condition of non-association and place restriction under section 27A is replaced by a system of conduct agreements set out in the new section 27A.
The new section 27A provides for the constraints that may be the subject of a conduct agreement including prohibitions on an accused person:
· associating or communicating with specified persons;
· being within or moving outside a specified locality; and
· consuming alcohol or other drugs.
It provides that contravention of a conduct agreement is to be regarded as a breach of a bail condition, and that the court may excuse a contravention if satisfied that the accused had a reasonable excuse for the contravention.
New section 28 provides that in granting bail, the court or authorised member must impose the bail conditions necessary to minimise risks to the safety and welfare of others or to the proper administration of justice that may result from the accused person’s release on bail.
Section 28 further provides that these conditions must be proportionate to the risks.
Clause 10. Amendment of section 29 (Entry into agreement)
This clause amends section 29 to remove the reference to repealed section 27A.