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Crimes Amendment (Bail and Sentencing) Bill 2006

Schedule 1 Amendments

   

Crimes Act 1914

1  Subsection 3(1)

Insert:

bail authority means a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory.

2  Subsection 15AA(5) (definition of bail authority )

Repeal the definition.

3  After section 15AA

Insert:

15AB   Matters to be considered in certain bail applications

             (1)  In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Commonwealth, or in determining conditions to which bail granted to such a person should be subject, a bail authority:

                     (a)  must take into consideration the potential impact of granting bail on:

                              (i)  any person against whom the offence is, or was, alleged to have been committed; and

                             (ii)  any witness, or potential witness, in proceedings relating to the alleged offence, or offence; and

                     (b)  must not take into consideration any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or rendering less serious the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

             (2)  If a person referred to in subparagraph (1)(a)(i) or (ii) is living in, or otherwise located in, a remote community, the bail authority must also take into consideration that fact in considering the potential impact of granting bail on that person.

             (3)  In paragraph(1)(b):

criminal behaviour includes:

                     (a)  any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

                     (b)  any fault element relating to such a physical element.

             (4)  To avoid doubt, except as provided by subsections (1) and (2), this section does not affect:

                     (a)  any other matters that a bail authority must, must not or may take into consideration in determining whether to grant bail or in determining conditions to which bail should be subject; or

                     (b)  the operation of a law of a State or a Territory.

Note:          Subsections (1) and (2) indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903 .

4  Paragraph 16A(2)(m)

Omit “cultural background,”.

5  After subsection 16A(2)

Insert:

          (2A)  However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or rendering less serious the criminal behaviour to which the offence relates.

          (2B)  In subsection (2A):

criminal behaviour includes:

                     (a)  any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

                     (b)  any fault element relating to such a physical element.

6  Application of amendments

(1)       The amendments made by items 1 to 3 of this Schedule apply, after the commencement of this Act, in relation to offences committed, or alleged to have been committed, before or after that commencement.

(2)       The amendments made by items 4 and 5 of this Schedule do not apply in relation to offences committed before the commencement of this Act.