Bail (Miscellaneous) Amendment Bill

Introduction and First Reading

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

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (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 Bail (Miscellaneous) Amendment Bill 2017 amends the Bail Act 1985 to improve the operation of the Act. The Bill inserts a further category of 'prescribed applicant' into section 10A of the Act, removes the option of seeking a telephone bail review under section 15 for prescribed applicants and excludes a Saturday as a working day for the purposes of the Act.

Under section 15 of the Bail Act an arrested person who is dissatisfied with a decision to refuse bail by a police officer may seek a telephone bail review.

A number of applications for review are from prescribed applicants as a consequence of charges relating to breaches of intervention orders or related bail conditions. A 'prescribed applicant' is defined in the Bail Act. For such applicants there is a presumption against bail unless the applicant establishes special circumstances justifying release. The chance of a prescribed applicant being granted bail on a telephone review are extremely low. A magistrate sitting in court has the ability to seek a bail enquiry report and/or a home detention report and information about the attitude of the complainant to the matter. This is not available in the circumstances where a telephone review is sought (i.e. early hours of the morning and weekends). It is proposed that the Act be amended so that prescribed applicants are not entitled to seek a telephone review. Such applicants will instead be brought before the court on the following working day.

A further amendment to section 10A of the Bail Act provides for an additional category of prescribed applicant. Presently, a prescribed applicant includes an applicant who has been taken into custody in relation to an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 where the breach involved physical violence or threats of physical violence.

Where serious violent offending also involves a breach or breaches of section 31 of the Intervention Orders (Prevention of Abuse) Act, an accused will often be charged with the violent offence on an information laid in the District Court with the breach of the intervention order as an aggravating feature by virtue of s5AA(1)(l) Criminal Law Consolidation Act 1935, rather than leaving the major indictable offence progressing as a separate file while the breach of intervention order offence proceeds in the Magistrates Court.

This saves court, prosecution and defence time by having the offending dealt with in one proceeding, and in one jurisdiction, rather than two. It further ensures the complainant is only subjected to giving evidence in one proceeding.

However, this approach has the disadvantage of arguably removing the status of prescribed applicant for any bail application the accused chooses to make. It means that in theory it could be easier for an accused to get bail on a major indictable offence which involved a breach of an intervention order, than it would be for the accused if his breaching offence were less serious.

The amendment provides that an applicant charged with an aggravated offence involving violence or physical violence where an aggravating circumstance is that the accused was, at the time of the offence alleged to have contravened an intervention order, would be a prescribed applicant. The onus would then be on the accused to establish special circumstances to justify a release on bail.

The obvious intention of including people who breach intervention orders by committing violent offences in the list of prescribed applicants was to ensure that people who do breach intervention orders in this way are not entitled to the presumption in favour of bail, and should not be entitled to access bail unless they establish special circumstances. The amendment to section 10A of the Bail Act will provide certainty that offenders charged with serious offences involving violence or threats of violence, where the offending breaches an intervention order but the breach of the intervention order is not charged as a separate offence, are 'prescribed applicants' for the purposes of the Act and the presumption in favour of bail is displaced.

The Bill also amends the definition of a working day for the purposes of the Act to exclude a Saturday as a working day. The Act already provides that Sunday and public holidays are not working days. The Magistrates Court and the Youth Court have not usually sat on a Saturday for many years. Removing the reference in the Bail Act to a Saturday as a working day will bring the Act in line with current practice.

A further amendment provides that the Bail Act is to be taken to have always excluded a Saturday, as well as Sunday and any other public holiday from the definition of working day. No liability will lie against the Crown, any officer or employee of the Crown or any magistrate or judicial office holder in respect of any actions taken that may conflict with the definition having included a Saturday.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

3—Commencement

This clause provides that, but for Part 3, this measure will come into operation on the day on which it is assented to by the Governor. Part 3 will come into operation on a day to be fixed by proclamation.

Part 2—Amendment of Bail Act 1985 to commence on assent

4—Amendment of section 3—Interpretation

The proposed amendment clarifies that a Saturday is not to be considered to be a working day for the purposes of the Bail Act 1985 (the Bail Act).

5—Retrospective effect

This clause makes it clear that it is the intention of the Parliament that—

the Bail Act is to be taken to have always excluded a Saturday, a Sunday and any other public holiday from the definition of a working day; and

no liability lies against the Crown or any officer or employee of the Crown, or any magistrate or other holder of judicial office, in respect of a failure to bring a person taken into custody before the commencement of this clause before an appropriate authority on a Saturday.

Part 3—Amendment of Bail Act 1985 to commence on day to be proclaimed

6—Amendment of section 10A—Presumption against bail in certain cases

Section 10A of the Bail Act provides that bail is not to be granted to a prescribed applicant (as defined in the section) unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail. This clause proposes to add an additional category to the list of applicants currently included in the definition of prescribed applicant, being an applicant charged with an aggravated offence involving physical violence or a threat of physical violence if an aggravating circumstance of the offence is that, at the time of the alleged offence, the applicant is alleged to have contravened an intervention order of a court and the offence lay within the range of conduct that the intervention order was designed to prevent.

7—Amendment of section 15—Telephone review

Section 15 of the principal Act makes provision for the review by telephone of a decision of a police officer or a court constituted of justices not to grant bail to an arrested person in certain circumstances. The proposed amendment provides that the following classes of person will not have the right to such a review:

a person (other than a child) dissatisfied with a decision made on application to a police officer on arrest who can be brought before the Magistrates Court constituted of a magistrate by not later than 4 pm on the next day following the day of arrest;

a person dissatisfied with the decision made on application who is a prescribed applicant within the meaning of section 10A of the principal Act.

Debate adjourned on motion of Hon. A.L. McLachlan.