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Bail Amendment (Stage Two) Bill 2017 Introduction Print EXPLANATORY MEMORANDUM General Following the Bourke Street tragedy on 20 January 2017, the government asked former Supreme Court Judge and Director of Public Prosecutions, the Hon Paul Coghlan QC, to urgently review Victoria's bail system. Mr Coghlan provided his advice on legislative reform in his first report on 3 April 2017 and on other relevant matters in a second report on 1 May 2017. The Bail Amendment (Stage One) Act 2017, passed by Parliament on 23 June 2017, implemented or went beyond a number of the recommendations in Mr Coghlan's first report. These were, namely, recommendations 1, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 21, 22, 23(a) and 24. This Bill will implement the remainder of the government's response to the legislative recommendations contained in Mr Coghlan's first report. The Bill will amend the Bail Act 1977 to reformulate and clarify how the tests for bail should be applied (recommendations 2, 3 and 5); introduce a police remand system to enable police to remand an adult accused until a court is available (recommendation 29(d)); require an accused, other than a child, Aboriginal person or vulnerable adult, who is already on 2 undertakings of bail for indictable offences, to be brought before a court in relation to any bail decision in relation to particular serious offences (recommendation 15); provide an express power for a court to bail or remand a person appearing on summons (recommendation 33); and make other minor and technical amendments to the Bail Act 1977 and other Acts. The Bill will also make a number of technical amendments to the reforms introduced by the Children and Justice Legislation Amendment (Youth Justice) Act 2017. 581455 1 BILL LA INTRODUCTION 12/12/2017
Clause Notes Part 1--Preliminary Clause 1 sets out the main purposes of the Bill, which are-- • to make further amendments to the Bail Act 1977 in relation to the grant or refusal of bail; and • to empower police officers to remand in custody certain persons who have been refused bail by a police officer; and • to amend the Children, Youth and Families Act 2005 in relation to how a child taken into custody is to be dealt with if only a court may grant bail to the child; and • to make amendments to certain Acts related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. Clause 2 sets out when the provisions of the Bill come into operation. Subclause (1) provides that, subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. Subclause (2) provides that, if a provision of this Act does not come into operation before 1 October 2018, it comes into operation on that day. Part 2--Amendment of Bail Act 1977 Clause 3 amends and inserts definitions in section 3 of the Bail Act 1977. Subclause (1) amends the definition of bail decision maker to clarify that bail decision makers are empowered not only to grant bail, but also extend bail, vary the amount of bail or the conditions of bail or revoke bail. Subclause (2) inserts a number of definitions. Prosecutor is defined to include the informant, a police prosecutor and any other person appearing on behalf of the Crown. The terms surrounding circumstances, unacceptable risk test and vulnerable adult are defined by reference to new sections dealing with those terms. 2
Subclause (3) amends punctuation at the end of the definition of undertaking to indicate that other definitions will follow that definition. Clause 4 inserts new section 3AAAA in the Bail Act 1977. New section 3AAAA introduces the concept of a vulnerable adult. Subsection (1) defines the term to mean a person who is 18 years of age or more and has a cognitive, physical or mental health impairment that causes that person to have difficulty in understanding their rights or making a decision or communicating a decision. Subsection (2) enables a bail decision maker to consider a person to be a vulnerable adult even if the bail decision maker cannot identify the particular impairment referred to in subsection (1). Clause 5 inserts new sections 3AAA and 3AA in the Bail Act 1977. New section 3AAA introduces the concept of surrounding circumstances. Surrounding circumstances are matters to be taken into account in bail-related matters, where required in the Bail Act 1977. The surrounding circumstances are circumstances relevant to the matter, including but not limited to a number of enumerated factors. These factors correspond with and expand upon the factors currently listed in section 4(3) of the Bail Act 1977 and in recommendation 5 of Mr Coghlan's first report. They are-- • the nature and seriousness of the alleged offending, including whether it is a serious example of the offence; • the strength of the prosecution case; • the accused's criminal history; • the extent to which the accused has complied with the conditions of any earlier grant of bail; • whether, at the time of the alleged offending, the accused-- • was on bail for another offence; or • was subject to a summons to answer to a charge for another offence; or • was at large awaiting trial for another offence; or 3
• was released under a parole order; or • was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence; • whether there is in force-- • a family violence intervention order made against the accused; or • a family violence safety notice issued against the accused; or • a recognised DVO made against the accused; • the accused's personal circumstances, associations, home environment and background; • any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness; • the availability of treatment or bail support services; • any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail; • the length of time the accused is likely to spend in custody if bail is refused; • the likely sentence to be imposed should the accused by found guilty of the offence with which the accused is charged; • whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation. New section 3AA provides that an offence that is both a Schedule 1 offence and a Schedule 2 offence must be taken to be a Schedule 1 offence. This provision replicates and replaces section 4(6) of the Bail Act 1977, as inserted by section 5(11) of the Bail Amendment (Stage One) Act 2017, as section 4 of the Bail Act 1977 is repealed by clause 7 of this Bill. 4
Clause 6 inserts new section 3D in the Bail Act 1977. New section 3D inserts a number of flow charts to the Bail Act 1977, to illustrate the key features of the decision-making processes in relation to Schedule 1 offences, Schedule 2 offences and all offences. These flow charts are only intended as a guide to the reader, as the substantive obligations in relation to the decision-making process are set out in other provisions of the Bail Act 1977, as amended by the Bail Amendment (Stage One) Act 2017 and this Bill. Clause 7 repeals section 4 and substitutes a new section 4 and inserts new sections 4A, 4B, 4C, 4D and 4E in the Bail Act 1977. These new provisions concern the entitlement to bail, the tests for bail and the bail decision-making process. They are intended to address recommendations 2, 3 and 5 of Mr Coghlan's first report. Replacement provisions as to other aspects of current section 4 of the Bail Act 1977, and of the Bail Act 1977 as amended by the Bail Amendment (Stage One) Act 2017, are dealt with through other provisions in this Bill. New section 4 sets out the general entitlement to bail, and implements recommendation 2(a) of Mr Coghlan's first report. It provides that a person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by the Bail Act 1977. New section 4 replaces current section 4(1) of the Bail Act 1977, which sets out the general entitlement to bail in circumstances related to when a person is in custody or has a pending court hearing. New sections 4A to 4E reformulate the tests for bail, and in so doing address recommendations 2(b) and (c) of Mr Coghlan's first report but require the "exceptional circumstances" and "show compelling reason" tests to be applied prior to the "unacceptable risk" test. New sections 4A and 4B set out the bail decision-making process applicable to a person accused of a Schedule 1 offence. It replaces the process currently described in section 4(2)(a), (b), (d)(i) and (3) of the Bail Act 1977 (or section 4(2)(a), (d)(i) and (3) of the Bail Act 1977 as amended by the Bail Amendment (Stage One) Act 2017) for a person accused of an "exceptional circumstances" offence. 5
New section 4A sets out the first step in relation to bail decisions for an accused person charged with a Schedule 1 offence. The first step is the application of the exceptional circumstances test, which requires a bail decision maker to refuse bail to an accused unless satisfied that exceptional circumstances exist that justify the grant of bail. The onus of demonstrating that exceptional circumstances exist is on the accused. In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances, as defined in new section 3AAA. The reformulation of the "exceptional circumstances" test is not intended to alter the existing threshold of the burden required to demonstrate exceptional circumstances. If the bail decision maker is satisfied that exceptional circumstances exist, the bail decision maker must then apply the unacceptable risk test described in new section 4B. New section 4B sets out the second step in relation to bail decisions for an accused person charged with a Schedule 1 offence. It requires a bail decision maker to apply the unacceptable risk test if the bail decision maker, under new section 4A, is satisfied that exceptional circumstances exist that justify the grant of bail. The onus of satisfying the unacceptable risk test is on the prosecutor. The unacceptable risk test requires the prosecutor to show that there is a risk of a kind mentioned in new section 4E(1)(a) and that the risk is an unacceptable risk. On applying the unacceptable risk test under this provision, bail must nevertheless be refused if required by new section 4E, which sets out the requirements of the general unacceptable risk test. New sections 4C and 4D set out the bail decision-making process applicable to a person accused of a Schedule 2 offence. It replaces the process currently described in section 4(2)(d)(i), (3) and (4) of the Bail Act 1977 (as it currently is and as it is amended by Bail Amendment (Stage One) Act 2017) for a person accused of a "show cause" (or, after the commencement of the Bail Amendment (Stage One) Act 2017, "show compelling reason") offence. New section 4C sets out the first step in relation to bail decisions for an accused person charged with a Schedule 2 offence. The first step is the application of the show compelling reason test, which requires a bail decision maker to refuse bail to an accused unless satisfied that a compelling reason exists that 6
justifies the grant of bail. The onus of demonstrating that a compelling reason exists is on the accused. In considering whether a compelling reason exists, the bail decision maker must take into account the surrounding circumstances, as defined in new section 3AAA. The reference to a compelling reason includes a reference to a number of compelling reasons. If the bail decision maker is satisfied that a compelling reason exists, the bail decision maker must then apply the unacceptable risk test described in new section 4D. New section 4D sets out the second step in relation to bail decisions for an accused person charged with a Schedule 2 offence. It requires a bail decision maker to apply the unacceptable risk test if the bail decision maker, under new section 4B, is satisfied that a compelling reason exists that justifies the grant of bail. The onus of satisfying the unacceptable risk test is on the prosecutor. The unacceptable risk test requires the prosecutor to show that there a risk of a kind mentioned in new section 4E(1)(a) and that the risk is an unacceptable risk. On applying the unacceptable risk test under this provision, bail must nevertheless be refused if required by new section 4E, which sets out the requirements of the general unacceptable risk test. New section 4E sets out the unacceptable risk test, which is applicable to a person accused of any offence. This provision replaces the substance of current section 4(2)(d)(i) and (3) of the Bail Act 1977. Subsection (1) sets out the unacceptable risk test, which requires a bail decision maker to refuse bail for an accused if-- • there is a risk that the accused would, if released on bail-- • endanger the safety or welfare of any person; or • commit an offence while on bail; or • interfere with a witness or otherwise obstruct the course of justice in any mater; or • fail to surrender into custody in accordance with the conditions of bail; and • the risk is an unacceptable risk. 7
Subsection (1) replaces the substance of current section 4(2)(d)(i), and paragraph (a) reorders the list of risks as recommended by Mr Coghlan in recommendation 3 of his first report, to emphasise the importance of risks to safety and welfare. Subsection (2) provides that the prosecutor bears the burden of satisfying the unacceptable risk test. Subsection (3) provides that in considering whether a risk is an unacceptable risk, the bail decision maker must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk. The requirement to take into account the surrounding circumstances is a requirement which replaces the substance of current section 4(3) of the Bail Act 1977. The requirement to consider mitigating conditions is intended to complement the requirement under section 5AAA(1) of the Bail Act 1977, as inserted by section 6 of the Bail Amendment (Stage One) Act 2017, for a bail decision maker to impose conditions to reduce risks. Clause 8 modifies section 5 of the Bail Act 1977, as substituted by section 6 of the Bail Amendment (Stage One) Act 2017. Subclause (1) inserts a new subsection (1A) in section 5 of the Bail Act 1977 as substituted by section 6 of the Bail Amendment (Stage One) Act 2017. New subsection (1A) states that an accused who enters into a bail undertaking is under a duty to attend court for the hearing or trial specified in the undertaking and surrender into custody on so attending. This provision replaces the substance of current section 6 of the Bail Act 1977, which is repealed by clause 23(3) of this Bill. Subclause (2) makes a minor wording change to section 5(2) of the Bail Act 1977 as substituted by section 6 of the Bail Amendment (Stage One) Act 2017, to clarify that a bail decision maker has the power to release an accused on their own undertaking or otherwise. Clause 9 inserts new section 5AAAA in the Bail Act 1977. Subsection (1) requires a bail decision maker to make enquiries of the prosecutor as to whether there is in force a family violence intervention order, family violence safety notice or recognised DVO against the accused. 8
Subsection (2) requires a bail decision maker to consider whether, if released on bail, there is a risk that the accused would commit family violence, and whether that risk can be reduced by the imposition of bail conditions or a family violence intervention order. New section 5AAAA replaces the substance of section 4(4H) and (4I) of the Bail Act 1977, as inserted by section 5(9) and amended by section 16(2) of the Bail Amendment (Stage One) Act 2017, as section 4 of the Bail Act 1977 is repealed by clause 7 of this Bill. Clause 10 substitutes paragraphs (a) to (d) of section 5AAA(1) of the Bail Act 1977, as inserted by section 6 of the Bail Amendment (Stage One) Act 2017. This is a minor amendment to ensure that the wording of the risk factors listed in section 5AAA(1) is consistent with the wording of the risk factors listed in new section 4E(1)(a) of the Bail Act 1977 as inserted by clause 7 of this Bill. Clause 11 inserts new subsections (3), (4), (5) and (6) in section 8 of the Bail Act 1977. The new subsections concern situations where an accused appears to be seriously affected by alcohol or another drug or a combination of drugs. They replicate and replace the substance of new section 4(4D) to (4G), as inserted by section 5(9) of the Bail Amendment (Stage One) Act 2017, as section 4 is repealed by clause 7 of this Bill. Clause 12 inserts new sections 8A and 8B in the Bail Act 1977. New section 8A provides that a bail decision maker may refuse bail for a person accused of any offence if satisfied that it has not been practicable to obtain sufficient information for the purpose of deciding the matter, because of the shortness of the period since the commencement of the proceeding for the offence. This provision replaces the substance and updates the language of current section 4(2)(d)(iii) of the Bail Act 1977, which is repealed by clause 7 of this Bill. New section 8B concerns situations where there is uncertainty as to a victim's death or recovery. Subsection (1) provides that subsection (2) applies in relation to an application for bail made by or on behalf of a person accused of an offence of causing injury to another person. Subsection (2) provides that a bail decision maker may refuse bail if at the time of deciding the 9
application it is uncertain whether the person injured will die or recover from the injury. New section 8B is intended to replace section 4(4B) and (4C) of the Bail Act 1977, as inserted by section 5(9) of the Bail Amendment (Stage One) Act 2017, as section 4 of the Bail Act 1977 is repealed by clause 7 of this Bill. Section 4(4B) and (4C) in turn had been intended to replace current section 14 of the Bail Act 1977, which itself is being repealed by section 14(11) of the Bail Amendment (Stage One) Act 2017. Clause 13 amends section 10 of the Bail Act 1977, as substituted by section 8 of the Bail Amendment (Stage One) Act 2017. Section 10 concerns bail decisions made by a police officer of or above the rank of sergeant or for the time being in charge of a police station, the sheriff or a person authorised under section 84(5) of the Infringements Act 2006. Subclause (1) inserts new subsections (5A), (5B) and (5C) in section 10 of the Bail Act 1977. Subsection (5A) provides that a bail decision maker, who is prohibited from making a bail decision by virtue of section 13 of the Bail Act 1977, must refuse to consider whether to grant or refuse bail and must bring the person before a court as soon as practicable. The intention of this provision is to clarify that a police officer of or above the rank of sergeant or for the time being in charge of a police station, the sheriff or a person authorised under section 84(5) of the Infringements Act 2006 cannot make bail decisions where the Bail Act 1977 provides that the bail decision must be made by a court. It does not create a new obligation, but is intended to complement existing obligations that such persons be brought before a court as soon as practicable in order for a bail decision to be made. Subsections (5B) and (5C) apply in situations where a person has been arrested in relation to matters arising from the Infringements Act 2006. These new provisions are intended to explicitly enable the sheriff, and authorised persons under section 84(5) of the Infringements Act 2006 who are not police officers, to take and safely convey the arrested person to a bail decision maker who is a police officer where the arrested person refuses to enter into an undertaking. 10
Subclause (2) substitutes section 10(6) of the Bail Act 1977 with new subsections (6) and (6A). The substance of section 10(7), as inserted by section 8 of the Bail Amendment (Stage One) Act 2017, is also transposed and modified within new section 10(6). Section 10(6) of the Bail Act 1977, as inserted by section 8 of the Bail Amendment (Stage One) Act 2017, requires the bail decision maker to advise the arrested person of their entitlement to apply for bail and to provide the arrested person a written statement setting out the provisions of that subsection. This provision will be replaced and expanded upon with a new subsection 10(6). New subsection (6) sets out what the bail decision maker is required to do once that bail decision maker has refused bail under section 10(5) in relation to a person for whom section 10AA does not apply (see clause 14 for information about section 10AA). New section 10(6)(a) reinstates the substantive requirement under current section 10(3) of the Bail Act 1977 (prior to its repeal by section 8 of the Bail Amendment (Stage One) Act 2017) for the bail decision maker to record reasons for refusing bail. New section 10(6)(b) applies if it is within ordinary court sitting hours. It requires the bail decision maker to cause the arrested person to be brought before a court as soon as practicable and advise the arrested person that they are entitled, should they so wish, to apply for bail when they appear before the court. It replaces the aspects of section 10(6)(a) and (7) of the Bail Act 1977, as inserted by section 8 of the Bail Amendment (Stage One) Act 2017, that require an arrested person to be advised of their entitlement to bail and, if the arrested person wishes to apply for bail, to be brought before a court as soon as practicable. The intention of this change is to ensure that decisions which can result in the remand of a person are afforded scrutiny by an independent bail decision maker. New section 10(6)(c) applies if it is outside ordinary court sitting hours. It replaces and replicates the aspects of section 10(6)(a) and (7) of the Bail Act 1977, as inserted by section 8 of the Bail Amendment (Stage One) Act 2017, that require an arrested person to be advised of their entitlement to bail and, if the arrested person wishes to apply for bail, to be brought before a bail justice as soon as practicable. It also introduces 11
an additional requirement in circumstances where the arrested person does not wish to apply for bail from a bail justice. In such circumstances, the bail decision maker must cause the arrested person to be brought before a court as soon as practicable and advise the arrested person that they are entitled, should they so wish, to apply for bail when they appear before the court. The intention of this change is to ensure that decisions which can result in the remand of a person are afforded scrutiny by an independent bail decision maker. New section 10(6)(d) requires the bail decision maker to cause to be produced before the court or bail justice (as relevant) a copy of the reasons set out in paragraph (a). This provision reinstates the requirement outlined in current section 10(2)(b) of the Bail Act 1977, repealed by section 8 of the Bail Amendment (Stage One) Act 2017, as it applies to persons for whom bail has been refused. New section 10(6)(e) requires the bail decision maker to give the arrested person a written statement setting out the provisions of section 10(5) and (6). This provision replaces and expands upon section 10(6)(b) as inserted by the Bail Amendment (Stage One) Act 2017, by requiring the arrested person to be given information on additional relevant legislative provisions, which together set out what needs to happen if that person has been refused bail. New subsections (6A), (7) and (8) apply in situations where bail has been granted, but where the arrested person objects to the amount of bail or any condition of bail. New section 10(6A) requires the bail decision maker to advise the arrested person that they are entitled to apply to a court or bail justice for a variation of the amount of or conditions of bail. The bail decision maker is also required to give the arrested person a written statement setting out the provisions of section 10(5), (6A), (7) and (8). These 2 requirements are intended to reinstate the equivalent requirements outlined in current section 10(2) of the Bail Act 1977, repealed by section 8 of the Bail Amendment (Stage One) Act 2017, as it applies to persons who object to the amount of or conditions of bail. 12
Subclause (3) replaces section 10(7) of the Bail Act 1977, as inserted by section 8 of the Bail Amendment (Stage One) Act 2017, with new section 10(7) and (8). New subsections (7) and (8) apply to a person who has elected to apply for a variation of the amount or conditions of bail under new section 10(6A), and requires them to be brought before a court as soon as practicable or, if it is then outside ordinary court sitting hours, before a bail justice. These provisions reinstate and replace the substance of the requirement outlined in current section 10(2)(a) of the Bail Act 1977, repealed by section 8 of the Bail Amendment (Stage One) Act 2017, as it applies to persons who object to the amount of or conditions of bail, for a person to be brought before a bail justice as soon as practicable. Clause 14 inserts new section 10AA in the Bail Act 1977. New section 10AA provides a mechanism for police, in certain circumstances, to remand an arrested person in custody until they can be brought before a court. This provision expands the current power of police to remand persons in custody pending a decision on bail or remand. Subsections (1), (2) and (3) set out when section 10AA applies. Subsection (1) provides the section applies to an arrested person who is accused of a Schedule 1 offence and for whom bail has been refused under section 10(5) of the Bail Act 1977 by a police officer of or above the rank of sergeant or for the time being in charge of a police station. Note that clause 19 of this Bill introduces amendments relevant to who may grant bail in relation to Schedule 1 offences and that clause 23(7) of this Bill makes an amendment to new section 10AA(1). Subsection (2) provides that this section does not apply to an arrested person who is a child, a vulnerable adult, an Aboriginal person or a person arrested on an infringement warrant issued under the Infringements Act 2006. This means the section applies to persons who do not fall within those preceding categories. The intention of these exclusions is to minimise the time spent by these persons in police custody prior to a bail decision, given their vulnerable status and given the nature of the conduct leading to an arrest under infringement warrants. For these persons, the decision-making processes under new section 10(6) will apply. 13
Subsection (3) qualifies how a person may be considered to be a vulnerable adult or Aboriginal person for the purposes of this section. A person may be considered an Aboriginal person or vulnerable adult if the police officer is of the opinion that the person is such a person. The police officer is also required to have regard to any statement made by the arrested person as to whether they are an Aboriginal person. The intent of this subsection is to enable police to determine whether section 10AA applies to an arrested person, without the need to definitively determine whether the person is actually a vulnerable adult or an Aboriginal person. Subsections (4), (5), (6) and (7) set out the requirements for the exercise of the police remand power under section 10AA. New section 10AA(4) sets out what the police officer is required to do once the officer has refused bail under section 10(5) for a person who is not a child, a vulnerable adult, an Aboriginal person or a person arrested on an infringement warrant issued under the Infringements Act 2006. New section 10AA(4)(a) requires the police officer to record reasons for refusing bail. It is analogous to the requirement in new section 10(6)(a), as inserted by clause 13(2) of this Bill, and current section 10(3) of the Bail Act 1977 (prior to its repeal by section 8 of the Bail Amendment (Stage One) Act 2017). New section 10AA(4)(b) requires the police officer to remand the arrested person in custody to appear before a court as soon as practicable within 48 hours after being so remanded. This means that the arrested person--regardless of whether they wish to apply for bail--will be required to be brought before a court as soon as practicable. This requirement is analogous to the requirement of new section 10(6)(b). Unlike section 10(6), the arrested person does not have the option of applying to a bail justice for bail. Therefore, the arrested person will be remanded until such time as a court is available, so long as that time is within 48 hours. The intention of this is to ensure decisions which can result in the remand of a person are afforded scrutiny by a court. 14
New section 10AA(4)(c) requires the police officer to cause to be produced before the court a copy of the reasons set out in paragraph (a). This provision is analogous to the requirement under new section 10(6)(d), as inserted by clause 13(2) of this Bill, and current section 10(2)(b) of the Bail Act 1977 (prior to its repeal by section 8 of the Bail Amendment (Stage One) Act 2017). New section 10AA(4)(d) requires the police officer to advise the arrested person that they are entitled to apply for bail when they appear before the court. This provision is analogous to the equivalent requirements under new section 10(6)(c) as inserted by clause 13(2) of this Bill. New section 10AA(4)(e) requires the police officer to give the arrested person a written statement setting out the provisions of this section and of section 10(5). This provision is analogous to the requirement under new section 10(6)(e) as inserted by clause 13(2) of this Bill. Subsections (5), (6) and (7) concern situations where the arrested person is unlikely to be brought to a court within 48 hours. Subsection (5) prohibits a police officer from remanding a person in custody under new section 10AA(4)(b), if the police officer considers it is not practicable for the person to be brought before a court within the next 48 hours. This includes being brought before a court by audio visual link. In such circumstances, subsection (6) requires the person to be brought before a bail justice instead, as soon as practicable. Subsection (7) applies to a person has been remanded under new section 10AA(4)(b), but who is not brought before a court within 48 hours after being so remanded. It requires that person to be brought before a bail justice as soon as practicable after the expiry of that period of 48 hours. Clause 15 amends section 10A of the Bail Act 1977, as inserted by section 8 of the Bail Amendment (Stage One) Act 2017. Section 10A concerns the power of bail justices to grant or refuse bail. Subclause (1) amends section 10A(1) of the Bail Act 1977, which sets out when section 10A applies. Paragraphs (a) and (c) of subclause (1) make minor amendments to ensure that section 10A applies to any person brought before a bail justice for a determination on a question of bail or remand. 15
This will ensure that the procedural protections afforded to the arrested person under section 10A will apply in any situation where a person is brought before a bail justice as required by other laws. Paragraph (b) of subclause (1) makes an amendment consequential on clause 13 of this Bill to update the reference from section 10(7) to section 10(6) or (8), as those provisions cover situations where a person is required to be brought before a bail justice. Note that the equivalent amendment to reference persons brought before a bail justice in accordance with new section 10AA, as inserted by clause 14 of this Bill, is provided for in clause 23(8) of this Bill. Subclause (2) inserts new subsection (2A) to section 10A of the Bail Act 1977. It enables a bail justice to rely on the opinion of a police officer as to whether an arrested person is an Aboriginal person or a vulnerable adult. This provision is intended to complement the operation of sections 10 and 10AA, and empower bail justices to make a bail decision with respect to any person before them. This is to avoid situations where police may call out a bail justice, who then may determine that a person should be dealt with under section 10AA of the Bail Act 1977 rather than section 10(6) and refer the matter back to police. Subclauses (3) and (4) insert new subsections (5A) and (7) respectively in section 10A of the Bail Act 1977. New subsection (5A) applies where bail is granted, and requires the bail justice to certify on the remand warrant their consent to the person being bailed, the amount of any surety or sureties and any conditions of bail. New subsection (7) applies where bail is refused, and requires the bail justice to certify on the remand warrant a statement of the refusal of bail and the grounds for it. These provisions reinstate the recording requirements, insofar as they apply to bail justices, of section 12(1) of the Bail Act 1977 prior to that section's substitution by section 9 of the Bail Amendment (Stage One) Act 2017. 16
Clause 16 amends section 12 of the Bail Act 1977, as substituted by section 9 of the Bail Amendment (Stage One) Act 2017. Section 12, as substituted, concerns the power of courts to grant or refuse bail. Subclause (1) makes an amendment consequential on clause 13 of this Bill to update the reference in section 12(1) of the Bail Act 1977 from section 10(7) to section 10(6) or (8), as those provisions will set out when a person is required to be brought before a court. Note that the equivalent amendment to reference persons brought before a court in accordance with new section 10AA, as inserted by clause 14 of this Bill, is provided for in clause 23(10) of this Bill. Subclause (2) inserts new subsection (3A) in section 12 of the Bail Act 1977. New subsection (3A)(a) requires a court granting bail for a person accused of a Schedule 1 offence to include in the order a statement of reasons for granting bail. New subsection (3A)(b) requires a court granting bail, in any case, to record on the remand warrant, file or other papers its consent to the person being bailed, the amount of any surety or sureties and any conditions of bail. New subsection (3A)(b) reinstates the substance of the recording requirements, insofar as they apply to courts, of section 12(1)(a) and (2)(a) of the Bail Act 1977 prior to that section's substitution by section 9 of the Bail Amendment (Stage One) Act 2017. Clause 17 inserts new section 12A in the Bail Act 1977. This section requires a bail decision maker who grants bail for a person accused of a Schedule 2 offence to record their reasons for granting bail, and, if not a court, to also transmit the reasons as required by the regulations. This insertion is a consequential amendment, as new section 12A replaces the substance of the recording requirements at the foot of current section 4(4) of the Bail Act 1977, which is repealed by clause 7 of this Bill. Clause 18 inserts a new section 12B in the Bail Act 1977. Subsection (1) provides that section 12B applies if a person subject to a summons to answer a charge for an offence is before a court, other than the Children's Court, on a hearing in the criminal proceeding relating to the charge, and the hearing of the criminal proceeding is to be adjourned. 17
Subsection (2) provides that the court may, on application by the prosecutor or on its own initiative, remand the accused in custody to appear before the court on the resumption of the hearing or, in accordance with the Bail Act 1977, grant the accused bail. Subsection (3)(a) provides that nothing in section 12B affects the operation of section 331 of the Criminal Procedure Act 2009, which concerns the power of a court to adjourn proceedings. Subsection (3)(b) similarly provides that nothing in section 12B prevents the court allowing the accused person to go at large, including on refusing an application for bail made by the prosecutor. New section 12B is intended to implement recommendation 33 of Mr Coghlan's second report. The intention of new section 12B is not to limit any existing power of the courts, but to provide an express power to a court to bail or remand a person appearing on summons. Section 12B is also different from recommendation 33 in that it is not limited to situations where an application has been made by the prosecution. Clause 19 amends section 13 of the Bail Act 1977, as amended by sections 10 and 11 of the Bail Amendment (Stage One) Act 2017. Clause 19 amends the operation of section 13(3) of the Bail Act 1977, as inserted by section 11 of the Bail Amendment (Stage One) Act 2017, which concerns bail decisions for Schedule 1 offences other than treason and murder. It does this by allowing non-court bail decision makers to grant bail for certain persons accused of certain Schedule 1 offences involving relatively lower levels of offending. Subclause (1) amends section 13(3) to ensure that section 13(3) is interpreted subject to new subsections (4) and (5). Subclause (2) inserts new subsections (4), (5) and (6) in section 13 of the Bail Act 1977, as inserted by sections 10 and 11 of the Bail Amendment (Stage One) Act 2017. New subsection (4) contains the first exception to section 13(3), and is applicable only to a person who is a child, a vulnerable adult or an Aboriginal person. This exception applies where the person is accused of a Schedule 1 offence, where the only Schedule 1 offence the person is accused of is a Schedule 1 offence solely due to other provisions--namely item 3 and 18
item 12 in relation to item 3 of Schedule 1--which have uplifted that offence to Schedule 1. Item 3 of Schedule 1 refers to a Schedule 2 offence committed while on some form of conditional liberty in relation to a Schedule 1 or 2 offence, and item 12 in relation to item 3 refers to conspiracy, incitement or attempts in those circumstances. The exception does not apply where the person is accused of an offence which is a Schedule 1 offence by virtue of items other than items 3, and 12 in relation to item 3, of Schedule 1. This means that, for example, a child who is charged with attempting a carjacking (a Schedule 2 offence) while subject to a summons on a charge of dangerous driving while pursued by police (another Schedule 2 offence), will be able to have their bail determined in accordance with section 10 of the Bail Act 1977, meaning that decisions to grant or refuse bail can be made by police or a bail justice. The child will still be required to show "exceptional circumstances" as to why bail should be granted, and not be an unacceptable risk, in order to be granted bail. The effect is to enable vulnerable persons, who are charged with a Schedule 2 offence (or an inchoate offence in relation to a Schedule 2 offence) while on some form of conditional liberty in relation to a Schedule 1 or 2 offence, to have their bail determined by persons who are empowered to make bail decisions in relation to Schedule 2 offences generally and to minimise the time spent by these persons in police custody prior to a bail decision, given their vulnerable status. New subsections (5) and (6) relate to the second exception to section 13(3), and are targeted towards relatively lower level offending in Schedule 1. New subsection (5) contains an exception which applies to a person who is accused of a Schedule 1 offence, where the only Schedule 1 offence the person is accused of is a "relevant Schedule 1 offence". New subsection (6) defines relevant Schedule 1 offence for the purposes of subsection (5). There are 2 aspects which determine whether an offence is a relevant Schedule 1 offence. 19
The first, described in paragraph (a) of new subsection (6), is that the offence must be an offence referred to in item 1 or 30 of Schedule 2 (and not referred to in any other item of Schedule 2) or in item 31 of Schedule 2 in relation to an offence referred to in item 1 or 30. Item 1 of Schedule 2 refers to an indictable offence committed while on some form of conditional liberty for another indictable offence. Item 30 of Schedule 2 refers to offences against the Bail Act 1977. Item 31, in relation to item 1 or 30, refers to conspiracy, incitement or attempts in relation to the offences in item 1 or 30. Offences covered by item 3, and item 31 in relation to item 3, are offences which are indictable offences uplifted to Schedule 2 only by virtue of having been committed while on some form of conditional liberty for another indictable offence. A person may be uplifted to a Schedule 2 position, for example, by committing a shop theft while subject to a summons on a charge for an assault. Such offences therefore cover lower level offending when compared to other offences in Schedule 2, such as manslaughter. Similarly, offences covered by item 30, and item 31 in relation to item 30, cover offences against the Bail Act 1977. These are summary offences which are only applicable because of the person's involvement with other offending. The second aspect that determines whether an offence is a relevant Schedule 1 offence, described in paragraph (b) of new subsection (6), is whether the offence is a Schedule 1 offence only because of item 3 of Schedule 1, or item 12 in relation to item 3 of Schedule 1. These are essentially Schedule 2 offences, and inchoate offences in relation to Schedule 2 offences, which are uplifted to Schedule 1 only because they were committed on some form of conditional liberty in relation to a Schedule 1 or 2 offence. This means that, for example, an adult who is charged with contravening their bail conditions (a Schedule 2 offence) while subject to a summons on a charge of dangerous driving while pursued by police (another Schedule 2 offence), will be able to have their bail determined in accordance with sections 10 and 10AA of the Bail Act 1977, meaning that decisions to grant or refuse bail can be made by police. The adult will still be required to show "exceptional circumstances" as to why bail should be granted, and not be an unacceptable risk, in order to be granted bail. 20
The effect is to enable persons who are charged with a lower level Schedule 2 offence (or an inchoate offence in relation to a lower level Schedule 2 offence) while on some form of conditional liberty in relation to a Schedule 1 or 2 offence, to have their bail determined by police at the first instance. Clause 20 inserts a new section 13A in the Bail Act 1977. Subsections (1) and (2) provide that only a court may grant bail to a person who is accused of a relevant Schedule 2 offence, and who is already on 2 or more undertakings of bail in relation to other indictable offences. This requirement does not apply to a child, a vulnerable adult or an Aboriginal person, who may still have their bail applications determined by other bail decision makers in accordance with the Bail Act 1977. Subsection (3) defines the term relevant Schedule 2 offence. A relevant Schedule 2 offence is any Schedule 2 offence other than-- • an offence referred to in item 1 of Schedule 2 (and not referred to in any other item of that Schedule); or • an offence referred to in item 30 of Schedule 2; or • in relation to an offence referred to in item 1 of Schedule 2 (and not referred to in any other item of that Schedule), an offence referred to in item 31 of that Schedule; or • in relation to an offence referred to in item 30 of Schedule 2, an offence referred to in item 31 of that Schedule. A "relevant Schedule 2 offence" therefore includes Schedule 2 offences other than the Schedule 2 offences listed in new section 13(6)(a) (see clause 19). The offences listed in new section 13(6)(a) are lower level Schedule 2 offences which include indictable offences committed while on some form of conditional liberty in relation to other indictable offences, offences against the Bail Act 1977, and inchoate offences in relation to those offences. This means that a relevant Schedule 2 offence is a relatively more serious Schedule 2 offence. 21
New section 13A is intended to implement recommendation 15 of the Coghlan Bail Review, that any accused who is already on 2 undertakings of bail with respect to indictable offences should not be able to be granted bail by a police officer or bail justice in relation to a further indictable offence, but must be brought before a court for the question of bail or remand to be determined. However, it differs from recommendation 15 in that instead of the requirement for bail to be determined by a court applying in relation to a "further indictable offence", the requirement will apply in relation to a relevant Schedule 2 offence. This is narrower than recommendation 15 in one sense, as it excludes lower level indictable offences, but is broader in another, as it covers certain summary offences in Schedule 2, including certain family violence offences. Clause 21 substitutes section 18AD of the Bail Act 1977 with a new section 18AD. New section 18AD requires that on application for a variation of the amount or conditions of bail under section 18AC of the Bail Act 1977, the bail decision maker must take into account the surrounding circumstances and may vary the amount or conditions of bail or dismiss the application. This reformulation of section 18AD is intended to replicate current section 18AD, but with a minor amendment to refer to the surrounding circumstances rather than to an inclusive list of enumerated factors. This is for consistency with other provisions of this Bill specifying that circumstances relevant to the matter must be taken into account. Clause 22 inserts new subsection (19) in section 34 of the Bail Act 1977. New section 34(19) is a transitional provision. It provides that an amendment made by this Part of the Bill applies to a bail application made, or appeal commenced on or after the commencement of that provision. This Bill will make a number of changes to the Bail Act 1977 that will affect the decision making process for bail decision makers. This transitional provision will ensure that the Bail Act 1977 will operate in the same way on any given day, regardless of when the offence which gave rise to the bail application was alleged to have been committed. 22
Clause 23 makes a number of minor and consequential amendments to the Bail Act 1977. Subclause (1) repeals the definition of serious offence in section 3 of the Bail Act 1977. This definition will no longer serve a purpose following the commencement of the relevant provisions of the Bail Amendment (Stage One) Act 2017. This is because the term will no longer be used once the offences listed in section 4(4) of the Bail Act 1977 are replaced by the offences listed in Schedule 2. Subclause (2) replaces the reference in section 3C of the Bail Act 1977 to "the court" with references to "the bail decision maker". No substantive change is intended by this amendment. Section 3C was inserted to the Bail Act 1977 by section 37 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, which at the time of drafting, had adopted the meaning of "court" as defined in the Bail Act 1977 prior to its amendment by the Bail Amendment (Stage One) Act 2017, which in turn updated the terminology of the Bail Act 1977. Subclause (3) repeals section 6 of the Bail Act 1977. Section 6 is being replaced in substance by new section 5(1A) of the Bail Act 1977, inserted by clause 8(1) of this Bill, and is therefore no longer required. Subclause (4) replaces the references in sections 7(1) and 8(1)(c) of the Bail Act 1977 to "informant or prosecutor or any person appearing on behalf of the Crown" with references to "prosecutor". No substantive change is intended by this amendment. This change follows the introduction of the definition of prosecutor by clause 3(2) of this Bill. Subclause (5) inserts a reference to new section 13A in new section 10(5A) of the Bail Act 1977. New section 10(5A), inserted by clause 13(1) of this Bill, specifies the obligations of section 10 bail decision makers where they are prohibited from granting bail under section 13 of the Bail Act 1977, as section 13 specifies situations where only a court may grant bail. New section 13A, inserted by clause 20 of this Bill, relates to the requirement that only a court may grant bail to a person accused of a relevant Schedule 2 offence while on 2 or more undertakings of bail for other indictable offences. The change updates new section 10(5A) to specify that section 10 bail 23
decision makers are also prohibited from granting bail under new section 13A, and is contingent on section 13A coming into effect. Subclause (6) updates the notes at the foot of sections 10(5) and 10A(5) of the Bail Act 1977. These notes refer to situations where only a court may grant bail. Currently, only section 13 of the Bail Act 1977 specifies when a court may grant bail, but new section 13A, inserted by clause 20 of this Bill, will also insert another set of circumstances where only a court may grant bail. The change updates the notes to refer to both section 13 and to new section 13A as situations where only a court may grant bail, and is contingent on new section 13A coming into effect. Subclause (7) amends section 10AA(1) of the Bail Act 1977, as inserted by clause 14 of this Bill, to remove the stipulation that section 10AA only applies to a person accused of a Schedule 1 offence, thereby allowing for the police remand power under section 10AA to apply to a broader range of arrested persons. Subclause (8) amends section 10A(1) of the Bail Act 1977, as inserted by section 8 of the Bail Amendment (Stage One) Act 2017, which sets out when section 10A applies. The amendment inserts references to new section 10AA(6) and (7), as inserted by clause 14 of this Bill, and ensures that section 10A applies to a person who is brought before a bail justice in accordance with new section 10AA. These amendments are contingent on new section 10AA coming into effect. Subclause (9) amends sections 10A(2) and 12(2) of the Bail Act 1977, as inserted and substituted by sections 8 and 9 respectively of the Bail Amendment (Stage One) Act 2017, to specify that a bail justice or court must also hear and determine any application made for the variation of the amount of bail or conditions of bail--in addition to any application for bail for remand in custody. This amendment is meant to clarify that bail justices and courts are empowered to hear and determine matters related to variation of bail, and not just questions relating to the grant of bail or remand in custody. 24
Subclause (10) amends section 12(1) of the Bail Act 1977, substituted by section 9 of the Bail Amendment (Stage One) Act 2017, which sets out when section 12 applies. The amendment inserts references to new section 10AA(4), as inserted by clause 14 of this Bill, and ensures that section 12 applies to a person who is brought before a court in accordance with new section 10AA. These amendments are contingent on new section 10AA coming into effect. Subclause (11) replaces the reference in section 13(2) of the Bail Act 1977, as substituted by section 10 of the Bail Amendment (Stage One) Act 2017, to "the Magistrates' Court" with a reference to "a court". This change is intended to clarify that bail may be granted by any court which is empowered to commit a person to trial, subject to the restrictions elsewhere in the Bail Act 1977. Subclause (12) corrects the numbering of the paragraphs in item 3 of Schedule 1 to the Bail Act 1977, as inserted by section 13 of the Bail Amendment (Stage One) Act 2017. This amendment fixes a typographical error by changing the numbering of the last paragraph from "(f)" to "(e)", there being currently no paragraph "(e)" in item 3. Clause 24 makes a number of amendments consequential on the Fines Reform Act 2014. The Fines Reform Act 2014 reforms the infringement system in Victoria. Subclause (1) replaces references in new section 10(5B) to section 84(5) of the Infringements Act 2006 with references to section 115(5) of the Fines Reform Act 2014. These provisions provide who may execute infringement warrants. Subclause (2) inserts new subsection (6B) in section 10 of the Bail Act 1977, as amended by clause 13 of this Bill. New subsection (6B) specifies that section 10(6A) does not apply to a person arrested on an enforcement warrant issued under the Fines Reform Act 2014. New section 10(6A) applies in situations where bail has been granted, but where the arrested person objects to the amount of bail or any condition of bail, and requires the bail decision maker to advise the arrested person of certain matters. The non-application of section 10(6A) to persons arrested on enforcement warrants reflects the fact that such persons may be granted bail with conditions or sureties, and 25
the fact that the Sheriff does not have facilities to hold a person while waiting to bring the person before a court or bail justice. Subclause (3) replaces the reference in new section 10AA(2)(d) to an infringement warrant issued under the Infringements Act 2006 with a reference to an enforcement warrant issued under the Fines Reform Act 2014. Part 3--Amendment of Children, Youth and Families Act 2005 Clause 25 makes a number of amendments to sections 346 and 347 of the Children, Youth and Families Act 2005 consequential on the Bail Amendment (Stage One) Act 2017. Sections 346 and 347 of the Children, Youth and Families Act 2005 concern matters relating to children in custody. Subclause (1) amends section 346(2) of the Children, Youth and Families Act 2005, which specifies what must happen after a child is taken into custody, to ensure that it is interpreted subject to new subsection (3), as inserted by subclause (2). Subclause (2) inserts new subsection (3) in section 346 of the Children, Youth and Families Act 2005 to specify that where bail may only be granted to a child by a court, the child must be brought before the Children's Court as soon as practicable and no later than the next working day after being taken into custody, or, if the proper venue of the Children's Court is in a prescribed region of the State, within 2 working days after being taken into custody. The intention of this change is to avoid the situation where a child must be brought before a bail justice by virtue of section 346(2)(d) of the Children, Youth and Families Act 2005, but where the bail justice cannot make a decision about the bail or remand of the child because the bail justice is prohibited from making such a decision under other legislative provisions, such as section 13 of the Bail Act 1977. It also provides a time limit, different to that in section 346(2)(c), within which a child must be brought before the Children's Court in such circumstances, as the Children's Court may not be sitting at any convenient venue at the relevant time. Subclause (3) inserts new subsection (1A) in section 327 of the Children, Youth and Families Act 2005. Section 327 of the Children, Youth and Families Act 2005 sets out the requirements for the remand of a child. New subsection (1A) requires a child to whom bail may only be granted by a court, 26
and who is detained in police custody pending being brought before the Children's Court, to be placed in a remand centre except as otherwise provided by the regulations. Part 4--Amendments related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 Clause 26 amends the Children, Youth and Families Act 2005 as amended by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. Subclause (1) substitutes section 356(9) of the Children, Youth and Families Act 2005 with a new provision that will require the Children's Court to hear and determine a serious youth offence summarily that has been returned to it by a higher court. Under the amendment, the Children's Court cannot return such a case to a higher court. This is consistent with the requirement for adult cases in section 168(3) of the Criminal Procedure Act 2009. Subclause (2) inserts section 628 in the Children, Youth and Families Act 2005 to provide that the transitional provisions in Schedule 6 to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 have effect. Subclause (3) amends the transitional provision in clause 1(1) of Schedule 6 to the Children, Youth and Families Act 2005. The amendment will extend the operation of the transitional arrangements to include the hearing of a charge. This will ensure that transitional arrangements apply to the uplift of serious youth offences from the Children's Court under Division 2 of Part 4 of the Children, Youth and Families Act 2005. Subclause (4) inserts new section 629 into the Children, Youth and Families Act 2005 which relates to the amendment being made by subclause (1). The transitional provision provides that the amendment made by section 26(1) will apply to the hearing of a charge for an offence alleged to have been committed on or after the commencement of that section. Clause 27 amends the Criminal Procedure Act 2009 as amended by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. This clause amends section 333(3) of the Criminal Procedure Act 2009 to replace the prosecution objection to a young offender being returned to a youth justice centre by the Magistrates' Court, with an objection by the Secretary to the Department of Justice and Regulation. This will enable the 27
Secretary to provide information to the court about matters relevant to the accused, particularly regarding their behaviour in custody. Clause 28 amends section 5A(3) of the Bail Act 1977 as inserted by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. The amendment introduces an objection requirement by the Secretary to the Department of Justice and Regulation and will apply to decisions of the County and Supreme Courts to return a young offender to a youth justice centre in the same way as the amended section 333(3) of the Criminal Procedure Act 2009 will apply to the Magistrates' Court. Clause 29 amends section 33(1A) of the Sentencing Act 1991 as inserted by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. Section 33(1A) applies a presumption of cumulation in relation to any period of detention imposed for escape from or property damage to a youth justice facility. The presumption of cumulation in section 33(1A) may only apply in relation to a young offender who received a period of detention imposed when that offender was a child. Clause 29 amends section 33(1A) to clarify that the presumption of cumulation applies to young offenders who were sentenced to a period of detention either as a child or as an adult. Part 5--Repeal of amending Act Clause 30 provides for the repeal of the Act on 1 October 2019. The repeal of the Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 28