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Bail Amendment Act 2016 No. 1 of 2016

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 2

Part 2—Amendment of the Bail Act 1977 3

Division 1—Terrorism related offences 3

3 Definitions 34 Refusal of bail except in exceptional circumstances 35 Refusal of bail in the case of unacceptable risk 4

Division 2—Serious offences and failure to answer bail 4

6 Definitions 47 Refusal of bail unless accused shows cause why detention in

custody is not justified 48 Failure to answer bail 5

Division 3—Children 5

9 Definitions 510 New section 3B inserted 511 New section 5AA inserted 612 Where impracticable to bring person arrested before court 713 Court or bail justice to grant or refuse bail 714 New section 16B inserted 815 Arrest of person released on bail 916 Offence to contravene certain conduct conditions 9

Division 4—Transitional provisions and consequential amendments 9

17 Transitional provisions 918 Consequential amendments 10

Part 3—Amendment of the Children, Youth and Families Act 2005 12

19 Definitions 1220 Section 345 substituted 1221 Restriction on publication of proceedings 1322 Consequential amendments 13

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Part 4—Repeal 14

23 Repeal of amending Act 14═══════════════

Endnotes 15

1 General information 15

Bail Amendment Act 2016†

No. 1 of 2016

[Assented to 16 February 2016]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purposes

The purposes of this Act are—

(a) to amend the Bail Act 1977 in relation to—

(i) certain terrorism related offences; and

(ii) serious offences; and

(iii) failure to answer bail; and

(iv) children; and

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(b) to amend the Children, Youth and Families Act 2005 in relation to—

(i) the commencement of criminal proceedings against children; and

(ii) the suppression of youth offending information; and

(c) to make consequential amendments to certain Acts.

2 Commencement

(1) This Part comes into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (4), Division 1 of Part 2 comes into operation on a day to be proclaimed.

(3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4) If a provision of this Act does not come into operation before 5 December 2016, it comes into operation on that day.

Section Page

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Part 2—Amendment of the Bail Act 1977

Division 1—Terrorism related offences3 Definitions

In section 3 of the Bail Act 1977 insert the following definitions—

"terrorist act has the same meaning as in the Terrorism (Community Protection) Act 2003;

terrorist organisation means an organisation that is directly or indirectly—

(a) engaged in; or

(b) preparing for; or

(c) planning; or

(d) assisting in; or

(e) fostering—

the doing of a terrorist act;".

4 Refusal of bail except in exceptional circumstances

After section 4(2)(aa) of the Bail Act 1977 insert—

"(b) in the case of a person charged with an offence under section 4B(1) or 21W of the Terrorism (Community Protection) Act 2003 unless the court is satisfied that exceptional circumstances exist which justify the grant of bail;".

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5 Refusal of bail in the case of unacceptable risk

After section 4(3)(b) of the Bail Act 1977 insert—

"(ba) whether the accused has expressed publicly support for—

(i) a terrorist act or a terrorist organisation; or

(ii) the provision of resources to a terrorist organisation;".

Division 2—Serious offences and failure to answer bail

6 Definitions

In section 3 of the Bail Act 1977 insert the following definition—

"serious offence means—

(a) an offence (other than murder) referred to in the definition of serious offence in section 3(1) of the Sentencing Act 1991; or

(b) an offence (other than murder) that, at the time it was committed, was an offence referred to in the definition of serious offence in section 3(1) of the Sentencing Act 1991;".

7 Refusal of bail unless accused shows cause why detention in custody is not justified

After section 4(4)(a) of the Bail Act 1977 insert—

"(ab) with a serious offence and the accused, as an adult, has within the preceding 5 years been

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convicted or found guilty of an offence against section 30(1); or".

8 Failure to answer bail

For the penalty at the foot of section 30(1) of the Bail Act 1977 substitute—

"Penalty: Level 7 imprisonment (2 years maximum).".

Division 3—Children9 Definitions

In section 3 of the Bail Act 1977 insert the following definitions—

"child has the same meaning as in the Children, Youth and Families Act 2005;

parent has the same meaning as in the Children, Youth and Families Act 2005;".

10 New section 3B inserted

In Part 1 of the Bail Act 1977, after section 3A insert—

"3B Determination in relation to a child

(1) In making a determination under this Act in relation to a child, a court must take into account (in addition to any other requirements of this Act)—

(a) the need to consider all other options before remanding the child in custody; and

(b) the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and

(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and

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(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and

(e) the need to minimise the stigma to the child resulting from being remanded in custody; and

(f) the likely sentence should the child be found guilty of the offence charged; and

(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.

(2) In making a determination under this Act in relation to a child, a court may take into account any recommendation or information contained in a report provided by a bail support service.

(3) Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.".

11 New section 5AA inserted

After section 5 of the Bail Act 1977 insert—

"5AA Conditions of bail granted to a child in certain circumstances

(1) This section applies if an accused who is a child is granted bail by a bail justice, police officer, the sheriff or a person authorised under section 84(5) of the Infringements Act 2006.

(2) The court, at the first hearing following the grant of bail at which the child is present,

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must ensure that the conditions of bail imposed by the bail justice, police officer, sheriff or person authorised under section 84(5) of the Infringements Act 2006 comply with the requirements of section 5(4).

(3) The court may make any variations to the conditions of bail that are necessary for the purposes of subsection (2).".

12 Where impracticable to bring person arrested before court

(1) At the foot of section 10(1) and (1A) of the Bail Act 1977 insert the following Note—"Note

See also section 5AA (conditions of bail granted to a child in certain circumstances).".

(2) After section 10(1A) of the Bail Act 1977 insert—

"(1B) A police officer referred to in subsection (1) or the sheriff or person authorised under section 84(5) of the Infringements Act 2006 referred to in subsection (1A), must ensure that, in the case of a child in custody, a parent or guardian of the child or an independent person is present during the inquiry.

(1C) An independent person present in accordance with subsection (1B) may take steps to facilitate the granting of bail, for example, by arranging accommodation.".

13 Court or bail justice to grant or refuse bail

(1) After section 12(1) of the Bail Act 1977 insert—

"(1AA) If a court refuses bail to a child, the court must not remand the child in custody for a period longer than 21 clear days.

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(1AB) When a child is brought before a court on the expiry of a period of remand in custody, the court must not remand the child in custody for a further period longer than 21 clear days.".

(2) For section 12(1A)(b) of the Bail Act 1977 substitute—

"(b) in the case of a child, if the proper venue of the Children's Court is in a region of the State prescribed under the Children, Youth and Families Act 2005, within 2 working days; or

(c) in any other case, if the next working day is not practicable, within 2 working days.".

(3) After section 12(2) of the Bail Act 1977 insert—

"(3) A bail justice who is considering an application for bail in respect of a child must ensure that a parent or guardian of the child or an independent person is present during the application.

(4) An independent person present in accordance with subsection (3) may take steps to facilitate the granting of bail, for example, by arranging accommodation.".

14 New section 16B inserted

After section 16A of the Bail Act 1977 insert—

"16B Capacity of child to enter into undertaking

If, in the opinion of a court or bail justice granting bail to a child or a police officer discharging a child on bail under section 10, the child does not have the capacity or understanding to enter into an undertaking, the child may be released on bail if the child's parent or some other person enters

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into an undertaking, in any amount which the court or bail justice or police officer thinks fit, to produce the child at the venue of the court to which the hearing of the charge is adjourned or the court to which the child is committed for trial.".

15 Arrest of person released on bail

After section 24(3) of the Bail Act 1977 insert—

"(3A) Despite subsection (3), if a child is arrested under subsection (1) and is brought before a court, the court must not remand the child in custody for a period longer than 21 clear days.".

16 Offence to contravene certain conduct conditions

(1) In section 30A(1) of the Bail Act 1977, for "subsection (2)" substitute "subsections (2) and (3)".

(2) After section 30A(2) of the Bail Act 1977 insert—

"(3) Subsection (1) does not apply to a child.".

Division 4—Transitional provisions and consequential amendments

17 Transitional provisions

At the end of section 34 of the Bail Act 1977 insert—

"(14) The amendments made to this Act by Division 1 of Part 2 of the Bail Amendment Act 2016 apply to an application made, or an appeal commenced, under this Act on or after the commencement of Division 1 of Part 2 of that Act.

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(15) The amendment made to section 4 of this Act by section 7 of the Bail Amendment Act 2016 applies to an application made, or an appeal commenced, under this Act on or after the commencement of section 7 of that Act.

(16) Section 5AA as inserted by section 11 of the Bail Amendment Act 2016 applies to the first hearing following the grant of bail at which the child is present that occurs on or after the commencement of section 11 of that Act, regardless of when the bail was granted.

(17) The amendments made to section 30A of this Act by section 16 of the Bail Amendment Act 2016 apply on and after the commencement of section 16 of that Act, regardless of when the offence is alleged to have been committed.".

18 Consequential amendments

(1) In the Children, Youth and Families Act 2005—

(a) section 346(3), (4), (5), (7), (8), (9) and (10) are repealed;

(b) section 348 is repealed.

(2) At the foot of section 346(6) of the Children, Youth and Families Act 2005 insert—"Note

The Bail Act 1977 contains provisions that are particular to children. These include the following—

section 3B (determination in relation to a child);

section 5AA (conditions of bail granted to a child in certain circumstances);

section 10(1B) and (1C) (where impracticable to bring person arrested before court);

section 12(1AA), (1AB), (3) and (4) (court or bail justice to grant or refuse bail);

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section 16B (capacity of child to enter into undertaking);

section 24(3A) (arrest of person released on bail).".

(3) In section 6D(2)(a) of the Corrections Act 1986, after "2005" insert "or the Bail Act 1977".

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Part 3—Amendment of the Children, Youth and Families Act 2005

19 Definitions

In section 3(1) of the Children, Youth and Families Act 2005, for the definition of publish substitute—

"publish has the same meaning as in the Open Courts Act 2013;".

20 Section 345 substituted

For section 345 of the Children, Youth and Families Act 2005 substitute—

"345 Children to be proceeded against by summons

(1) There is a presumption in favour of proceeding by summons if an accused is a child.

(2) A police officer must have regard to this presumption in commencing a criminal proceeding against a child.

(3) For the avoidance of doubt, subsection (2) does not affect the ways in which a criminal proceeding against a child may be commenced by a police officer.

(4) On the filing of a charge-sheet against a child a registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that the circumstances are exceptional.

(5) Subsection (4) has effect despite anything to the contrary in section 12 of the Criminal Procedure Act 2009.".

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21 Restriction on publication of proceedings

(1) In section 534(1) of the Children, Youth and Families Act 2005, after "President" (wherever occurring) insert "or of a magistrate under subsection (1A)".

(2) After section 534(1) of the Children, Youth and Families Act 2005 insert—

"(1A) On application to the Court, a magistrate may grant permission for the publication if the magistrate is satisfied that—

(a) the circumstances giving rise to the request for permission to publish are an emergency; and

(b) publication is reasonably necessary for the safety of—

(i) the child, other party or witness referred to in subsection (1); or

(ii) any other person or the community.".

22 Consequential amendments

(1) At the foot of section 459(1) of the Crimes Act 1958 insert—"Note

There is a presumption in favour of proceeding by summons if an accused is a child—see section 345 of the Children, Youth and Families Act 2005.".

(2) At the foot of sections 12(1) and 14(1) of the Criminal Procedure Act 2009 insert—"Note

There is a presumption in favour of proceeding by summons if an accused is a child—see section 345 of the Children, Youth and Families Act 2005.".

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Part 4—Repeal23 Repeal of amending Act

This Act is repealed on 5 December 2017.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Endnotes


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http://www.legislation.vic.gov.au/

† Minister's second reading speech—

Legislative Assembly: 25 November 2015

Legislative Council: 10 December 2015

The long title for the Bill for this Act was "A Bill for an Act to amend the Bail Act 1977 in relation to terrorism related offences, serious offences, failure to answer bail and children, to amend the Children, Youth and Families Act 2005 in relation to the commencement of criminal proceedings against children and youth offending information, to make consequential amendments to certain Acts and for other purposes."

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