STATUTES AMENDMENT (ARREST PROCEDURES AND BAIL) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (18:06): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Bill aims to achieve greater efficiencies in the bail process by amendments to the Bail Act 1985 and the Summary Offences Act 1953 and to clarify some ambiguities in the Bail Act 1985 that have led to some variations in court practice.

A number of interested parties, including the courts and legal profession, were consulted on the form of the draft Bill. Submissions from these parties were considered by the Government in finalising the Bill.

Bail Act amendments

Definitions

To insert definitions of a 'designated police facility' (to have the same meaning as in section 78 of the Summary Offences Act 1953) and 'officer in charge' in relation to a police station (to mean the police officer for the time being in charge of the police station).

To insert a definition of the term 'responsible officer' in relation to a police station (to mean the officer in charge of the police station or, if a police officer has, for the time being, been designated by the officer in charge of the police station as the officer with responsibility for persons accepted into custody at the police station, that officer). The reality is that it is often the case that the position of officer in charge of a police station is a nominal administrative position, and the police officer who is actually in charge of the cells is someone other than that officer. This amendment will reflect that practice.

To clarify that a bail authority who is a police officer must be a police officer who is of or above the rank of sergeant or is the responsible officer for a police station.

These definitions are also consistent with amendments proposed to the Summary Offences Act 1953.

Procedure on arrest

Currently, section 13 of the Bail Act sets out the requirements once a person has been arrested when the person is eligible to apply for bail. It is proposed to repeal the current section and substitute a new section 13 that will clarify how a person may be brought before the appropriate court (either the Youth Court of South Australia or the Magistrates Court) for the purposes of the section. A number of other minor technical changes are also proposed that do not alter the substantive effect of the current section. The substituted section will clarify that a person may be brought before the appropriate court either in person or by video link or, if the person is in custody in a police station or designated police facility that is situated in a remote area and there is no video link available, by audio link. A remote area is defined as being 400 kilometres or more from the nearest appropriate court (but some other distance may be prescribed by the regulations in substitution for that distance).

This amendment formalises current practices of the Magistrates Court and will mean that an arrested person could appear via video link on an application for bail wherever the appropriate facilities are available, including metropolitan police stations and police stations in remote areas. If the arrested person is in custody in a remote area where video link is not available, the person could be brought before the court via audio link (for example, by telephone). This should assist arrested persons and free the police from having to transport defendants long distances for a brief court appearance. Instead of using valuable police resources to transport bail applicants, those resources can be put to better use in managing police stations and patrolling the regions.

Telephone reviews

Section 15 of the Bail Act makes provision for a review by a magistrate of a decision of a bail authority that is a police officer or a court constituted of justices by an applicant for bail who is dissatisfied with the decision of the bail authority. The section does not apply in relation to a decision made on application to a police officer on arrest if the arrested person (not being a child) can be brought before the Magistrates Court constituted of a magistrate not later than 4 pm on the next day following the arrest.

Currently, the police officer who made the original decision is required, on application by a dissatisfied person to whom the section applies, to contact the duty magistrate by telephone for the purpose of having the decision reviewed by the magistrate. However, it is often the case that the police officer to whom an applicant applies is not in fact the same officer as the one who made the decision the subject of the review because, for example, that officer has completed his or her shift and has been relieved by another officer.

It is proposed to repeal the current section and substitute a new section 15. The new section will allow another police officer of or above the rank of sergeant or in charge of the police station to contact the magistrate for the purposes of a telephone review if the police officer who was the original decision maker is not immediately available to do so. The new section preserves the right for an arrested child always to have the right to a telephone review on request of the child or a guardian of the child and, in addition, reflects the amendments proposed in new section 13 in relation to how a person may be 'brought before' the Magistrates Court.

Other changes

Proposed substituted section 16 will allow the court to extend the time limit for deferral or a stay of release on bail where the Crown or police immediately indicate that an application for review of a magistrate's bail decision will be made. The amendment provides for an extension beyond 72 hours where there is approval either by a magistrate or the Supreme Court. The amendment will allow for the time necessary to provide information to the Office of the Director of Public Prosecutions (such as charge sheets, antecedent reports, bail papers), especially in cases where the criminal justice services are closed over a weekend or public holiday. The effort that goes into preparing written bail review applications is not only time consuming but resource intensive and this amendment will allow for sufficient time for prosecuting authorities to prepare the necessary documents.

The Bill will also amend sections 18 and 19A of the Bail Act so as to clarify that a court may, if a person has breached a term or condition of a bail agreement, revoke the bail agreement. Currently the court may cancel the right of the person to be at liberty in pursuance of the bail agreement. The amendment will avoid any confusion that may arise about the existence of the original bail agreement should the defendant, after having been taken into custody, be further bailed. The amendment will make it crystal clear that, on a breach application, the judicial officer may revoke the bail agreement.

Summary Offences Act amendments

Part 18 of the Summary Offences Act makes provision for arrest procedures. The Bill will substitute 'as soon as reasonably practicable' for the term 'forthwith' wherever it occurs in this Part of the Summary Offences Act. 'Forthwith' is considered to be an archaic term and has been interpreted by the courts as meaning the 'shortest time which is reasonably practicable in the existing circumstances'. These amendments are of a technical nature only and do not change the substantive effect of the provisions.

Proposed amendments to section 78 of the Summary Offences Act will relax the requirement for persons arrested without warrant to be brought to the nearest police station forthwith in certain circumstances. Currently, an officer must deliver the person into the custody of the officer in charge of the police station. An arrested person cannot be bailed on the spot, even if the arresting officer is a bail authority, but must be delivered into the custody of the police officer in charge of the nearest police station at which facilities are continuously available for the care and custody of the person apprehended or, for persons arrested in the Adelaide area, the City Watch House. This means, for example, that a person apprehended for a minor offence in the city cannot be taken to the Hindley Street Police Station because it does not have continuously operating holding cells. Further, a person who is injured cannot be granted bail but must be brought to a police station. The Bill will now allow police to take the arrested person to the nearest custodial police station or a designated police facility.

The Bill will permit police to grant bail at a designated place other than the nearest custodial police station when the person has been arrested in a remote or non-metropolitan regional area, or when the person is arrested in a situation where taking him or her to the nearest police station would significantly reduce operational police capacity in the area. This has been achieved by a series of amendments to section 78 of the Summary Offences Act and related amendments to sections 3 and 13(1) of the Bail Act.

The Bill repeals current subsections (1) and (2) of section 78 of the Summary Offences Act and substitutes new subsections. New subsection (2) will allow police to detain a person who has been apprehended without a warrant on suspicion of having committed a serious offence for a period not exceeding that specified in the subsection for investigation purposes. The Bill also inserts new subsections in section 78, including (3a), (3b) and (3c). The period of '2 hours, or such longer period (not exceeding 4 hours)' referred to in section 78(3a)(c) is a requirement that the legislation places on police to limit the amount of time that a person can be held at a 'designated police facility' without obtaining authorisation from a magistrate. This is intended to apply to special events or busy periods, such as New Year's Eve, where there are a high number of offenders arrested and it is not physically possible to process all of the arrested people quickly. The time limit of 2 hours is intended to be a balance between the ability of police to deal with the arrested person and that person's opportunity to apply for bail. The time limit and subsequent obligation to obtain authorisation are factors that will be a benefit for the arrested person by placing legislative constraints on police.

The Bill will allow the Commissioner of Police to approve in writing certain places as designated police facilities. These may include specified rooms, buildings or structures (whether permanent or temporary), or specified vehicles or classes of vehicles, for particular police operations or specified events, or classes of operations or events. The Commissioner of Police will be given authority to delegate this power by an instrument in writing to declare a designated police facility when there is an urgent need to declare and the Commissioner is not available. For example, the police may have been alerted that there will be a bikie run through the APY lands and may need to conduct, at short notice, an 'operation' at which there are likely to be arrests. The aim of this set of amendments is to have the Commissioner consider the custodial capacity of police throughout the State and to declare certain places outside the metropolitan area, other than police stations with the usual custodial facilities (usually located in large regional towns), to fill the gaps in remote areas. It is also to permit the Commissioner, in contemplation of arrests at a particular police operation or a large public event, to declare places or vehicles or vessels to be relevant police facilities for the duration of that operation or event.

Section 79 covers the situation where a police officer, without a warrant, takes into custody a person whom the officer has reasonable cause to believe has an outstanding warrant. Under the changes proposed to section 79(3), if a person taken into custody is in need of medical treatment before being delivered as required under the section, the requirement to deliver the person as soon as reasonably practicable does not prevent the immediate provision of necessary medical treatment.

The spirit of these changes is to allow police to address more easily the welfare issues of a person who has been arrested, without committing technical diversions from the prescribed legislation.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bail Act 1985

4—Amendment of section 3—Interpretation

This proposed amendment will insert the following definitions into the principal Act: designated police facility, officer in charge of a police station and responsible officer in relation to a police station.

5—Amendment of section 5—Bail authorities

Section 5 provides for the constitution of bail authorities for the purposes of the principal Act. This proposed amendment constitutes a police officer who is of or above the rank of sergeant, or the responsible officer for a police station, to be a bail authority in certain circumstances.

6—Amendment of section 6—Nature of bail agreement

7—Amendment of section 7—Guarantee of bail

8—Amendment of section 11—Conditions of bail

These proposed amendments are consequential on the amendment proposed to section 5 of the principal Act (see clause 5).

9—Substitution of section 13

It is proposed to repeal current section 13 and substitute a new section containing a related amendment, a number of technical amendments and clarification of what it means to be brought before the Youth Court or the Magistrates Court as required under the section.

13—Procedure on arrest

New subsections (1) to (4) (inclusive) re-state in current terms with minor technical amendments the duties of a police officer on arresting a person eligible to apply for bail and the rights of the arrested person.

A new subsection is included that clarifies how an eligible person may be brought before the Youth Court or the Magistrates Court for the purposes of this section. This may be—

in person or by video link; or

if the person is in custody in a police station or designated police facility that is situated in a remote area and there is no video link available—by audio link.

In this section, remote area, in relation to the situation of a police station or designated police facility, is defined to mean 400 kilometres or more (or, if some other distance is prescribed by the regulations for the purposes of this definition, that distance) from the nearest Youth Court or Magistrates Court (as the case requires).

10—Substitution of section 15

It is proposed to repeal current section 15 and substitute a new section.

15—Telephone review

New section 15 is similar to the current section but clarifies the scheme for a review by telephone by a magistrate of the decision of a bail authority constituted of a police officer or a court constituted of justices.

The new section also sets out the manner in which a telephone review must be conducted and contains provisions consistent with the changes proposed in new section 13.

11—Substitution of section 16

It is proposed to repeal current section 16 and substitute a new section.

16—Stay of release on application for review

New section 16 provides that if a bail authority decides to release a person on bail or, on a review by a magistrate of a decision of a bail authority, the magistrate decides to release a person on bail and there is an immediate indication by a police officer or counsel on behalf of the Crown that an application for review of the decision will be made under this Part, the release must be deferred.

New section 16 sets out when the period of deferral will end and provides that if a person is released on bail when the period of deferral ends (other than on the completion of a review), the conditions of bail are those that would have applied had the person's release not been deferred.

12—Amendment of section 18—Arrest of eligible person on non-compliance with bail agreement

This proposed amendment clarifies that if a court or justice is satisfied that a person released on bail has contravened or failed to comply with a term or condition of a bail agreement, it may revoke the bail agreement. The other proposed amendment is consequential.

13—Amendment of section 19A—Arrest of person who is serious and organised crime suspect

This proposed amendment is consistent with the amendment proposed to section 18.

Part 3—Amendment of Summary Offences Act 1953

14—Amendment of section 76—Arrest by owner of property etc

This proposed amendment is of a statute law revision nature.

15—Amendment of section 77—Arrest of persons pawning or selling stolen goods

The proposed amendment is consequential.

16—Amendment of section 78—Person apprehended without warrant—how dealt with

It is proposed to insert new definitions of a custodial police station, designated police facility and nearest custodial police station, for the purposes of this section. The amendments will allow a person apprehended without a warrant to be delivered as soon as reasonably practicable into the custody of the police officer in charge of the nearest custodial police station or a police officer at a designated police facility. A person apprehended without warrant on suspicion of having committed an indictable offence or an offence punishable by imprisonment for 2 years or more (a serious offence) may be detained for a period for investigation purposes before being delivered to the nearest custodial police station or designated police facility.

Inserted subsection (3a) provides that a person who has been apprehended without warrant and detained in custody at a designated police facility must as soon as reasonably practicable be delivered into the custody of the police officer in charge of the nearest custodial police station if the person declines to make an application for release on bail; or a decision is made to refuse an application for bail made by the person; or 2 hours, or such longer period (not exceeding 4 hours) as may be authorised by a magistrate, has elapsed since the person has been detained in custody at the police facility and the person has not been released (whether on bail or otherwise).

The clause makes provision for what will not be taken into account when determining the period that has elapsed since being detained in custody either in a custodial police station or designated police facility.

The Commissioner of Police may, by instrument in writing, approve the use of any of the following as a designated police facility:

a specified room, building or structure (whether permanent or temporary);

a specified vehicle;

a vehicle of a specified class,

and may, by subsequent instrument in writing, vary or revoke such an approval.

An approval of a designated police facility must—

specify the use of the designated police facility for a specified event, purpose or police operation or an event or a purpose or police operation of a specified class or for a specified area of the State outside Metropolitan Adelaide (within the meaning of the Development Act 1993); and

specify conditions for the use of the designated police facility.

17—Amendment of section 79—Arrest without warrant where warrant has been issued

One of the proposed amendments is of a statute law revision nature and the other makes it clear that if a person taken into custody is in need of medical treatment before being delivered as required under section 79, the requirement to deliver the person as soon as reasonably practicable does not prevent the immediate provision of necessary medical treatment.

Schedule 1—Statute law revision amendments of Bail Act 1985

The Schedule contains amendments to the Bail Act that are of a statute law revision nature.

Debate adjourned on motion of Hon. T.J. Stephens.