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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-05-12 Daily Xml
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Statutes Amendment (Bail Authorities) Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (17:10): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, I rise to introduce the Statutes Amendment (Bail Authorities) Bill 2020.

The Bill amends the Bail Act 1985 to address inefficiencies arising in relation to the hearing of bail applications before the Court. The Bill also amends the Bail Act 1985 by changing the point at which bail can be revoked where it is suspected that a person has breached their bail conditions, from the point at which the Court makes the order, to the point at which the person is arrested.

Part 2 Clause 4 of the Bill amends the Bail Act 1985 to make the District Court and Magistrates Court a general bail authority. Parts 3, 4 and 5 amend the Magistrates Court Act 1991, the District Court Act 1991 and the Supreme Court Act 1935 to provide the Court the express power to make rules relating to bail applications. Any necessary limitations on which Court a bail application ought to be heard by will be provided within the rules of Court instead of the Legislation.

This change aims to improve efficiency in the justice system and our courts, a key tenant of the Government's Justice Agenda.

The practical difficulties encountered for bail applications and the resulting inefficiencies were identified by the Chief Justice. I understand these are particularly problematic for bail applications made in the period after committal but before arraignment for indictable offences where the Magistrates Court commits a defendant for trial in the District Court. Those bail applications must be heard by the Magistrates Court because the District Court is not a bail authority under the Bail Act 1985.

The amendments will allow for bail applications made between committal and arraignment to be heard by the District Court. This is the most efficient way of resolving the issue and improving case flow management.

Beyond this key amendment, the Bill makes a further amendment to the Bail Act. In an effort to better protect witnesses and victims of crime clauses 5, 7, 8 and 9 of the Bill respond to an issue regarding breaches of bail conditions occurring after a bail agreement has been revoked.

Upon the granting of bail, a defendant enters into a bail agreement which sets out a number of conditions upon which bail is granted. One important condition often included in a bail agreement identifies a person or persons that a defendant must not contact or approach whilst on bail.

Such conditions are protective in nature and designed to guard against harassment and intimidation. Presently, when a bail agreement is revoked, a defendant's right to be at large is revoked. However, so too are the conditions of the bail agreement. Accordingly, any breach of conditions occurring after the revocation of the bail agreement, including any contact made to a witness or victim, does not constitute an offence under section 17(1) of the Bail Act 1985.

These amendments change the point at which bail is revoked from the point at which the Court makes the order, to the point at which the person is arrested. Currently the Court may revoke bail under sections 6, 18, 19A and 19B of the Bail Act 1985. All are amended by the Bill to change the point of revocation to the point of arrest. However, Clause 5 is drafted so that the power of the Court to revoke a bail agreement immediately is preserved.

There are occasions where a bail agreement is revoked and it is later established that no breach of the relevant bail conditions have in fact occurred. The amendments included in this Bill provides for such circumstances. Where there has been no breach the bail agreement is not taken to have been revoked and the defendant will be released

unconditionally. Unconditionally in this context means that no new bail conditions are imposed. However the deemed revocation of the bail agreement is effectively reversed and the conditions of the original bail agreement will continue to apply.

The efficiency and accountability of our courts and justice system are crucial. This Bill seeks to resolve two issues which have arisen in our courts and have been identified by the Chief Justice.

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 5—Bail authorities

This clause expands the list of bail authorities in section 5(1) of the principal Act to include the District Court and the Magistrates Court.

5—Amendment of section 6—Nature of bail agreement

This clause amends section 6 of the principal Act to provide that a bail authority (not being a police officer) may issue a warrant for the arrest of a person released under a bail agreement without first revoking the bail agreement and that a bail agreement is taken to be revoked on the arrest of the person released under the bail agreement. This clause further provides that if the person is later released unconditionally, the bail agreement is no longer taken to be revoked.

6—Amendment of section 8—Form of application

This clause inserts a new paragraph into section 8(1) of the principal Act to require that an application for release on bail must, if the bail authority is a court, be made to the relevant court in accordance with the rules regulating the making of bail applications under the relevant court legislation.

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

This clause amends section 18 of the principal Act to remove the requirement for a court or justice to revoke a bail agreement before issuing a warrant for the arrest of a person to whom the section applies and to provide that the bail agreement of that person is taken to be revoked on the arrest of the person. This clause further provides that if the person is later released unconditionally, the bail agreement is no longer taken to be revoked.

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

This clause amends section 19A of the principal Act to remove the requirement for a court to revoke a bail agreement before issuing a warrant for the arrest of a person to whom the section applies and to provide that the bail agreement of that person is taken to be revoked on the arrest of the person. This clause further provides that if the person is later released unconditionally, the bail agreement is no longer taken to be revoked.

9—Amendment of section 19B—Arrest of person who is or becomes a terror suspect

This clause amends section 19B of the principal Act to provide that the bail agreement of a person to whom the section applies is taken to be revoked on the arrest of the person rather than when the person becomes a terror suspect or is the subject of a certificate issued under the section. This clause further provides that if the person is later released unconditionally, the bail agreement is no longer taken to be revoked.

Part 3—Amendment of District Court Act 1991

10—Amendment of section 51—Rules of Court

This clause provides that rules of the Court may be made regulating the making of bail applications, including limiting the making of bail applications to the Court in circumstances where the application may be made to another court.

Part 4—Amendment of Magistrates Court Act 1991

11—Amendment of section 49—Rules of Court

This clause provides that rules of the Court may be made regulating the making of bail applications, including limiting the making of bail applications to the Court in circumstances where the application may be made to another court.

Part 5—Amendment of Supreme Court Act 1935

12—Amendment of section 72—Rules of court

This clause provides that rules of the court may be made regulating the making of bail applications, including limiting the making of bail applications to the court in circumstances where the application may be made to another court.

The Hon. D.G.E. HOOD (17:10): I rise briefly to speak to the Statutes Amendment (Bail Authorities) Bill 2020 and commend this bill to the council. This bill amends the Bail Act 1985, seeking to address the inefficiencies arising in relation to the hearing of bail applications before the courts. It provides the courts with the express power to make rules relating to bail applications. The bill also amends the Bail Act 1985 by changing the point at which bail can be revoked. In essence, the bill works to address inefficiencies experienced where bail applications are made in the period between committal and arraignment.

This reform is taking a practical step to ensure that the bail authority is the court before which the applicant finds themselves, which of course would seem a commonsense move. It explicitly provides that the Supreme Court, the District Court and the Magistrates Court are all relevant bail authorities and, where relevant, the court to which a bail application may be made, that is, it is made to the court in which the defendant appears.

The aim of this change is to improve efficiency in our courts and the justice system, a key principle of the government's justice agenda. The Chief Justice identified the practical difficulties encountered for bail applications and the resulting inefficiencies. These amendments will improve case flow management and will better protect victims of crime and witnesses by addressing issues arising when breaches of bail conditions occur after a bail agreement has been revoked.

Currently, when a bail agreement is revoked, so too are the conditions of the bail agreement. Therefore, any breach of the conditions occurring after the bail agreement is revoked, including any contact made with a victim or witness, does not presently constitute an offence under the Bail Act 1985. Appropriately, these amendments change the point at which bail is revoked from the point at which the court makes the order to the point at which the person is arrested, again a commonsense move in my view.

In the case where a bail agreement is revoked and it is later established that no breach of the relevant bail conditions has in fact occurred, the bail agreement is not taken to have been revoked. The defendant will be released unconditionally in the context that no new bail conditions are imposed and the conditions of the original bail agreement continue to apply.

It is important to protect those who might otherwise be jeopardised by the conduct of someone who is subject to such a bail agreement. It is also important to ensure that someone who would make a bail application or would make a subsequent bail application can do so without having to navigate through the maze of the court structure.

It is critical that our courts and justice system are efficient and accountable. These are appropriate reforms to make sure that bail arrangements in this state can operate so as to most effectively protect and provide confidence to the public at large, and also ensure that the dispensing of the business of managing these applications within the justice system can be done in the most optimal way.

I commend the engagement of the courts with the government and the diligent work of the Attorney-General in the other place in ensuring that there is a methodical and productive engagement between the courts and the government. This is a very good example, in my view, of a pragmatic and desirable reform that ought to be made, and it is possibly overdue. I commend the bill to the council.

Debate adjourned on motion of Hon. R.P. Wortley.

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