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Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

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2016-2017-2018

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

 

 

(1)     Title, page 1 (line 2), after “ customs ”, insert “ , bail ”.

[presumption against bail]

(2)     Page 10 (after line 13), at the end of the Bill, add:

Schedule 9 Presumption against bail

Part 1 Court records

Crimes Act 1914

1  After subsection 15AA(3)

Insert:

       (3AA)  If the bail authority is a court and it grants bail, the court must:

                     (a)  state its reasons in writing; and

                     (b)  cause those reasons to be entered in the court’s records.

2  Application provision

The amendment made by this Part applies in relation to a decision, made on or after the commencement of this Part, by a bail authority to grant bail to a person charged with, or convicted of, an offence (whether the person was charged with, or convicted of, the offence before, on or after that commencement).

Part 2 Commonwealth child sex offenders

Crimes Act 1914

3  After section 15AA

Insert:

15AAA   Bail not to be granted to various persons charged with, or convicted of, certain Commonwealth child sex offences

             (1)  Despite any other law of the Commonwealth, a bail authority must not grant bail to a person who:

                     (a)  is charged with, or convicted of, an offence described in column 1 of an item in the table in section 16AAA; or

                     (b)  is charged with, or convicted of, an offence described in column 1 of an item in the table in subsection 16AAB(2) and who has previously been convicted of a child sexual abuse offence;

unless the bail authority is satisfied by the person that circumstances exist to grant bail.

             (2)  In addition to any other matters, in determining whether the bail authority is satisfied that circumstances exist to grant bail to a person, the bail authority must take into account such of the following matters as are relevant and known to the bail authority:

                     (a)  whether the bail authority considers that the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail;

                     (b)  whether the bail authority considers that the person would be likely to commit a further offence if the person were granted bail;

                     (c)  whether the bail authority considers that the person would be likely to put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail;

                     (d)  whether the bail authority considers that the person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail;

                     (e)  whether the person was aged 18 years or over when the offence was committed;

                      (f)  if the person has pleaded guilty to the charge in respect of the offence or been convicted of the offence—whether the bail authority considers that the person would not be likely to undertake a rehabilitation program, or not be likely to comply with any bail conditions relating to rehabilitation or treatment, while released on bail.

             (3)  If the bail authority is a court and it grants bail, the court must:

                     (a)  state its reasons in writing; and

                     (b)  cause those reasons to be entered in the court’s records.

             (4)  Despite any law of the Commonwealth, the Director of Public Prosecutions or the person may appeal against a decision of a bail authority:

                     (a)  to grant bail to the person despite subsection (1) on the basis that the bail authority is satisfied that circumstances exist to grant bail; or

                     (b)  to refuse to grant bail to the person on the basis that the bail authority is not satisfied that circumstances exist to grant bail.

             (5)  An appeal under subsection (4):

                     (a)  may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (4), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and

                     (b)  is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.

             (6)  If:

                     (a)  a bail authority decides to grant bail to the person; and

                     (b)  immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision mentioned in subsection (4);

the decision to grant bail is stayed with effect from the time of the notification.

             (7)  A stay under subsection (6) ends:

                     (a)  when a decision on the appeal is made; or

                     (b)  when the Director of Public Prosecutions notifies:

                              (i)  the bail authority; or

                             (ii)  if an appeal has already been instituted in a court—the court;

                            that he or she does not intend to proceed with the appeal; or

                     (c)  72 hours after the stay comes into effect;

whichever occurs first.

             (8)  To avoid doubt, except as provided by subsections (1), (4), (5), (6) and (7), this section does not affect the operation of a law of a State or a Territory.

Note:          These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903 .

4  Application provisions

(1)       The amendment made by this Part applies in relation to a decision, made on or after the commencement of this Part, by a bail authority whether to grant bail to a person charged with, or convicted of, an offence (whether the person was charged with, or convicted of, the offence before, on or after that commencement).

(2)       If conduct that occurred before the commencement of this Part:

                     (a)  constituted a Commonwealth child sex offence before that commencement; and

                     (b)  does not constitute a Commonwealth child sex offence on or after that commencement;

section 15AAA of the Crimes Act 1914 as inserted by this Part applies in relation to that conduct as if, on or after that commencement, that conduct constituted a Commonwealth child sex offence.

[presumption against bail]