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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Bail Amendment (Persons Linked to Terrorism) Bill 2018 Contents 1. Short title 2 2. Commencement 2 3. Act amended 2 4. Section 3 amended 2 5. Section 6 amended 4 6. Section 7 amended 5 7. Section 16 amended 5 8. Section 16B inserted 5 16B. Person linked to terrorism 5 9. Section 26 amended 6 10. Section 54 amended 6 11. Section 66C inserted 7 66C. Protection of terrorist intelligence information in bail proceedings 7 66D. Annual report to include information about application of s. 66C 8 12. Section 67A inserted 9 67A. Review of amendments made by Bail Amendment (Persons Linked to Terrorism) Act 2019 9 13. Schedule 1 Part C amended 9 3E. Bail in cases of person linked to terrorism 10 112--2 page i Western Australia LEGISLATIVE ASSEMBLY (As amended in Committee) Bail Amendment (Persons Linked to Terrorism) Bill 2018 A Bill for An Act to amend the Bail Act 1982 to provide for a presumption against bail being granted to persons linked to terrorism. The Parliament of Western Australia enacts as follows: page 1 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 1 1 1. Short title 2 This is the Bail Amendment (Persons Linked to Terrorism) 3 Act 2018. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation. 9 3. Act amended 10 This Act amends the Bail Act 1982. 11 4. Section 3 amended 12 In section 3(1) insert in alphabetical order: 13 14 Commonwealth Criminal Code means the Criminal 15 Code set out in the Schedule to the Criminal Code 16 Act 1995 (Commonwealth); 17 confirmed control order has the meaning given in the 18 Commonwealth Criminal Code section 100.1(1); 19 interim control order has the meaning given in the 20 Commonwealth Criminal Code section 100.1(1); 21 person linked to terrorism means a person who -- 22 (a) is charged with, or has been convicted of, a 23 terrorism offence; or 24 (b) is the subject of an interim control order or 25 confirmed control order, or has been the subject 26 of a confirmed control order within the last 27 10 years; page 2 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 4 1 terrorism offence means -- 2 (a) an offence against the Commonwealth Criminal 3 Code Division 72 Subdivision A; or 4 (b) an offence against the Commonwealth Criminal 5 Code Division 80 Subdivision B; or 6 (c) an offence against the Commonwealth Criminal 7 Code Part 5.3, except an offence against 8 section 104.22, 104.27, 104.27A, 105.41 or 9 105.45; or 10 (d) an offence against the Commonwealth Criminal 11 Code Part 5.5; or 12 (e) an offence against either of the following 13 provisions of the Charter of the United Nations 14 Act 1945 (Commonwealth) -- 15 (i) Part 4; or 16 (ii) Part 5, to the extent that it relates to the 17 Charter of the United Nations 18 (Sanctions -- Al-Qaida) 19 Regulations 2008 (Commonwealth); 20 or 21 (f) an offence against the Crimes (Foreign 22 Incursions and Recruitment) Act 1978 23 (Commonwealth) (repealed); or 24 (g) an offence against the Crimes (Internationally 25 Protected Persons) Act 1976 (Commonwealth) 26 section 8; or 27 (h) an offence under a written law or a law of the 28 Commonwealth, another State, a Territory or 29 another country, that substantially corresponds 30 to an offence in paragraphs (a) to (e) and (g); or 31 (i) an offence of attempting, inciting or conspiring 32 to commit an offence referred to in 33 paragraphs (a) to (h); page 3 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 5 1 terrorist act has the meaning given in the Terrorism 2 (Commonwealth Powers) Act 2002 section 3; 3 terrorist intelligence information means information 4 relating to an actual or suspected terrorist act (whether 5 in this State or elsewhere) the disclosure of which 6 could reasonably be expected -- 7 (a) to prejudice national security; or 8 (b) to endanger a person's life or physical safety; 9 or 10 (c) to threaten significant damage to infrastructure 11 or property; or 12 (d) to prejudice a criminal investigation; or 13 (e) to reveal intelligence-gathering methodologies, 14 investigative techniques or technologies or 15 covert practices; or 16 (f) to enable the discovery of the existence or 17 identity of a confidential source of information 18 relevant to law enforcement; 19 20 5. Section 6 amended 21 (1) In section 6(6) delete "(9) or (10)" and insert: 22 23 (9), (10) or (11) 24 25 (2) After section 6(10) insert: 26 27 (11) If section 16B applies, the arrester must bring the 28 accused or cause the accused to be brought before a 29 court constituted by a judicial officer other than a 30 justice, who must consider the accused's case for bail 31 as soon as is practicable. 32 page 4 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 6 1 6. Section 7 amended 2 In section 7(5) delete "3A and 3D." and insert: 3 4 3A, 3D and 3E. 5 6 7. Section 16 amended 7 In section 16(1) delete "14 and 15" and insert: 8 9 14, 15 and 16B 10 11 8. Section 16B inserted 12 After section 16A insert: 13 14 16B. Person linked to terrorism 15 (1) This section applies if a person linked to terrorism is in 16 custody -- 17 (a) awaiting an appearance in court before 18 conviction for an offence; or 19 (b) waiting to be sentenced or otherwise dealt with 20 for an offence of which the person has been 21 convicted. 22 (2) The power to grant bail to the person can be exercised 23 only by a court constituted by a judicial officer other 24 than a justice. 25 page 5 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 9 1 9. Section 26 amended 2 (1) In section 26(2)(aa) delete "3A or 3D" and insert: 3 4 3A, 3D or 3E 5 6 (2) After section 26(4) insert: 7 8 (5) A bail record form, or the record of a decision and 9 reasons for it, must not include information that is 10 terrorist intelligence information. 11 12 10. Section 54 amended 13 In section 54(1): 14 (a) in paragraph (b)(iii) delete "diligence." and insert 15 16 diligence; or 17 18 (b) after paragraph (b)(iii) insert: 19 20 (iv) new facts have been discovered, new 21 circumstances have arisen or the 22 circumstances have changed since bail 23 was granted (including that the accused 24 is, or has become, a person linked to 25 terrorism). 26 page 6 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 11 1 11. Section 66C inserted 2 After section 66B insert: 3 4 66C. Protection of terrorist intelligence information in 5 bail proceedings 6 (1) In proceedings on a case for bail, the judicial officer 7 must take all reasonable steps to maintain the 8 confidentiality of information that the judicial officer 9 considers is terrorist intelligence information, including 10 steps -- 11 (a) to receive evidence and hear argument about 12 the information in private and in the absence of 13 any person other than the prosecutor and any 14 other person to whose presence the prosecutor 15 consents; and 16 (b) to prohibit the publication of, or a reference to, 17 terrorist intelligence information; and 18 (c) to order that the following documents must be 19 provided in a redacted form -- 20 (i) an approved form given under section 8; 21 (ii) a report made in accordance with 22 section 24 or 24A. 23 (2) If the judicial officer considers that the information is 24 not terrorist intelligence information, the judicial 25 officer must -- 26 (a) give the prosecutor the opportunity to withdraw 27 the information from consideration; and 28 (b) if the information is withdrawn, prohibit the 29 publication of, or a reference to, the 30 information. page 7 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 12 1 (3) Despite subsections (1) and (2), the judicial officer may 2 disclose terrorist intelligence information or 3 information withdrawn under subsection (2) to any of 4 the following -- 5 (a) the Attorney General; 6 (b) a court; 7 (c) a person to whom the prosecutor authorises 8 disclosure. 9 66D. Annual report to include information about 10 application of s. 66C 11 (1) The accountable authority, as defined in the Financial 12 Management Act 2006, of the department of the Public 13 Service principally assisting in the administration of 14 this Act must, in each annual report submitted under 15 the Financial Management Act 2006 Part 5, include 16 information relating to action taken under 17 section 66C(1) in proceedings on a case for bail in the 18 financial year to which the annual report relates. 19 (2) The information referred to in subsection (1) must, 20 without disclosing terrorist intelligence information, 21 specify -- 22 (a) the number of proceedings in which action was 23 taken under section 66C(1); and 24 (b) in each of those proceedings whether the 25 accused had access to the terrorist intelligence 26 information received by the judicial officer and 27 whether -- 28 (i) evidence by or on behalf of the accused 29 was received; and 30 (ii) argument by or on behalf of the accused 31 was heard. 32 page 8 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 12 1 12. Section 67A inserted 2 After section 67 insert: 3 4 67A. Review of amendments made by Bail Amendment 5 (Persons Linked to Terrorism) Act 2019 6 (1) The Minister must review the operation and 7 effectiveness of the amendments made to this Act by 8 the Bail Amendment (Persons Linked to Terrorism) 9 Act 2019 and prepare a report based on the review -- 10 (a) as soon as practicable after the 3rd anniversary 11 of the day on which the Bail Amendment 12 (Persons Linked to Terrorism) Act 2019 13 section 12 comes into operation; and 14 (b) after that, at intervals of not more than 3 years. 15 (2) The Minister must cause the report to be laid before 16 each House of Parliament as soon as practicable after it 17 is prepared, but not later than 90 days after the 18 3rd anniversary or the expiry of the period of 3 years, 19 as the case may be. 20 21 13. Schedule 1 Part C amended 22 (1) In Schedule 1 Part C clause 1 delete "3C and 3D," and insert: 23 24 3C, 3D and 3E, 25 26 (2) Delete Schedule 1 Part C clause 2(3)(a) and insert: 27 28 (a) clauses 3A, 3C, 3D and 3E; and 29 page 9 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 13 1 (3) After Schedule 1 Part C clause 3D insert: 2 3 3E. Bail in cases of person linked to terrorism 4 (1) This clause applies where an accused who is a person linked 5 to terrorism is in custody -- 6 (a) awaiting an appearance in court before conviction 7 for an offence; or 8 (b) waiting to be sentenced or otherwise dealt with for 9 an offence of which the accused has been convicted. 10 (2) Despite clause 1, 2 or 4 or any other provision of this Act, 11 and in addition to clauses 3A to 3D, where this clause 12 applies the judicial officer in whom jurisdiction is vested 13 must refuse to grant bail for the offence unless the judicial 14 officer is satisfied that -- 15 (a) there are exceptional reasons why the accused 16 should not be kept in custody; and 17 (b) bail may properly be granted having regard to the 18 provisions of clauses 1 and 3 or, in the case of a 19 child, clauses 2 and 3. 20 (3) The judicial officer must, in making any decision for the 21 purposes of subclause (2)(a) -- 22 (a) have regard to the nature and seriousness of the 23 offence or offences (including any other offence or 24 offences for which the accused is awaiting trial) and 25 the probable method of dealing with the accused for 26 it or them, if the accused is convicted; and 27 (b) have regard to the conduct of the accused since the 28 accused was -- 29 (i) charged with or convicted of a terrorism 30 offence; or 31 (ii) made the subject of the relevant interim 32 control order or confirmed control order; 33 and page 10 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 13 1 (c) consider whether it would be appropriate to refuse 2 bail and make a hospital order under the Criminal 3 Law (Mentally Impaired Accused) Act 1996 4 section 5; and 5 (d) in the case of a child, consider the Young Offenders 6 Act 1994 section 6(d) as an objective of this Act 7 with the safety of the community being an 8 overriding objective. 9 (4) Subclause (3) does not limit the matters that the judicial 10 officer may take into account for the purposes of 11 subclause (2)(a). 12 (5) Despite section 7(1), where an accused is refused bail under 13 subclause (2) the accused's case for bail need not be 14 considered again under that subsection for an appearance for 15 that offence unless the accused satisfies the judicial officer 16 who may order detention that -- 17 (a) new facts have been discovered, new circumstances 18 have arisen or the circumstances have changed 19 since bail was refused; or 20 (b) the accused failed adequately to present the case for 21 bail on the occasion of that refusal. 22 (6) Where an accused is granted bail under subclause (2), on 23 any subsequent appearance in the same case a judicial 24 officer may order that bail is to continue on the same terms 25 and conditions. 26 (7) Where a child accused is refused bail under subclause (2), 27 the child accused shall be dealt with in accordance with the 28 Young Offenders Act 1994 section 19(2). 29 Note for this clause: 30 The Crimes Act 1914 (Commonwealth) section 15AA provides that 31 a bail authority must not grant bail to a person charged with, or 32 convicted of, a terrorism offence as defined in section 3(1) of that 33 Act unless the bail authority is satisfied that exceptional 34 circumstances exist to justify bail. 35 page 11 Bail Amendment (Persons Linked to Terrorism) Bill 2018 s. 13 1 (4) In Schedule 1 Part C clause 4(1) delete "3C and 3D," and insert: 2 3 3C, 3D and 3E, 4 5
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