Bail Amendment (Stage Two) Act 2018

Authorised by the Chief Parliamentary Counsel Authorised Version i Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2—Amendment of Bail Act 1977 3 3 Definitions 3 4 New section 3AAAA inserted 3 5 New sections 3AAA and 3AA inserted 4 6 New section 3D inserted 6 7 Section 4 substituted and new sections 4A to 4E inserted 10 8 Bail undertaking 13 9 New section 5AAAA inserted 14 10 Conduct conditions 15 11 Application for bail 15 12 New sections 8A and 8B inserted 16 13 Power of police officer, sheriff or authorised person to grant or refuse bail 16 14 New section 10AA inserted 19 15 Power of bail justice to grant or refuse bail 21 16 Power of court to grant or refuse bail 22 17 New section 12A inserted 23 18 New section 12B inserted 23 19 Treason, murder and other Schedule 1 offences 24 20 New section 13A inserted 25 21 Section 18AD substituted 26 22 Transitional provisions 26 23 Minor and consequential amendments 27 24 Amendments consequential on Fines Reform Act 2014 28 Part 3—Amendment of Children, Youth and Families Act 2005 29 25 Children, Youth and Families Act 2005 29 Part 4—Amendments related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 30 26 Children, Youth and Families Act 2005 30 27 Criminal Procedure Act 2009 31 -- 1 of 35 -- Section Page ii Authorised by the Chief Parliamentary Counsel 28 Bail Act 1977 31 29 Sentencing Act 1991 31 Part 5—Repeal of amending Act 32 30 Repeal of amending Act 32 ═════════════ Endnotes 33 1 General information 33 -- 2 of 35 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Bail Amendment (Stage Two) Act 2018 † No. 3 of 2018 [Assented to 27 February 2018] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to make further amendments to the Bail Act 1977 in relation to the grant or refusal of bail; and (b) to empower police officers to remand in custody certain persons who have been refused bail by a police officer; and Victoria -- 3 of 35 -- Part 1—Preliminary Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 2 Authorised by the Chief Parliamentary Counsel (c) 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 (d) to make amendments to certain Acts related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 October 2018, it comes into operation on that day. -- 4 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 3 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of Bail Act 1977 3 Definitions (1) In section 3 of the Bail Act 1977, in the definition of bail decision maker, after "grant bail" insert ", extend bail, vary the amount of bail or the conditions of bail or revoke bail". (2) In section 3 of the Bail Act 1977 insert the following definitions— "prosecutor, in relation to an application under this Act, includes the informant, a police prosecutor and any other person appearing on behalf of the Crown; surrounding circumstances—see section 3AAA; unacceptable risk test—see section 4E; vulnerable adult—see section 3AAAA.". (3) In section 3 of the Bail Act 1977, in the definition of undertaking, for "5." substitute "5;". 4 New section 3AAAA inserted After section 3 of the Bail Act 1977 insert— "3AAAA Meaning of vulnerable adult (1) For the purposes of this Act, a person is a vulnerable adult if the person is 18 years of age or more and has a cognitive, physical or mental health impairment that causes the person to have difficulty in— (a) understanding their rights; or (b) making a decision; or (c) communicating a decision. -- 5 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 4 Authorised by the Chief Parliamentary Counsel (2) A bail decision maker may consider a person to be a vulnerable adult even if the bail decision maker cannot identify the particular impairment referred to in subsection (1).". 5 New sections 3AAA and 3AA inserted Before section 3A of the Bail Act 1977 insert— "3AAA Surrounding circumstances If this Act provides, in relation to a matter, that a bail decision maker must take into account the surrounding circumstances, the bail decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following— (a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence; (b) the strength of the prosecution case; (c) the accused's criminal history; (d) the extent to which the accused has complied with the conditions of any earlier grant of bail; (e) whether, at the time of the alleged offending, the accused— (i) was on bail for another offence; or (ii) was subject to a summons to answer to a charge for another offence; or (iii) was at large awaiting trial for another offence; or -- 6 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 5 Authorised by the Chief Parliamentary Counsel (iv) was released under a parole order; or (v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence; (f) whether there is in force— (i) a family violence intervention order made against the accused; or (ii) a family violence safety notice issued against the accused; or (iii) a recognised DVO made against the accused; (g) the accused's personal circumstances, associations, home environment and background; (h) 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; Notes 1 Section 3A sets out matters to be taken into account by a bail decision maker in making a determination in relation to an Aboriginal person. 2 Section 3B sets out matters to be taken into account by a bail decision maker in making a determination in relation to a child. (i) the availability of treatment or bail support services; -- 7 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 6 Authorised by the Chief Parliamentary Counsel (j) 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; (k) the length of time the accused is likely to spend in custody if bail is refused; (l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged; (m) 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. 3AA Offence that is both a Schedule 1 and a Schedule 2 offence For the purposes of this Act, an offence that is both a Schedule 1 offence and a Schedule 2 offence must be taken to be a Schedule 1 offence.". 6 New section 3D inserted At the end of Part 1 of the Bail Act 1977 insert— "3D Flowcharts (1) A flow chart in this section illustrates the key features of the decision making process to which it relates. It is intended only as a guide to the reader. -- 8 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 7 Authorised by the Chief Parliamentary Counsel (2) Flow Chart 1 applies to Schedule 1 offences. -- 9 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 8 Authorised by the Chief Parliamentary Counsel (3) Flow Chart 2 applies to Schedule 2 offences. -- 10 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 9 Authorised by the Chief Parliamentary Counsel (4) Flow Chart 3 applies to all offences. ". -- 11 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 10 Authorised by the Chief Parliamentary Counsel 7 Section 4 substituted and new sections 4A to 4E inserted For section 4 of the Bail Act 1977 substitute— "4 Entitlement to bail 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 this Act. 4A Schedule 1 offences—step 1—exceptional circumstances test (1) A bail decision maker must refuse bail for a person accused of a Schedule 1 offence unless satisfied that exceptional circumstances exist that justify the grant of bail. (2) The accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances. (3) In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances. Note The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B. (4) If the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail, the bail decision maker must then move to step 2—unacceptable risk test. -- 12 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 11 Authorised by the Chief Parliamentary Counsel 4B Schedule 1 offences—step 2— unacceptable risk test (1) If at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person accused of a Schedule 1 offence, the bail decision maker must apply the unacceptable risk test. (2) For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker— (a) as to the existence of a risk of a kind mentioned in section 4E(1)(a); and (b) that the risk is an unacceptable risk. (3) On applying the unacceptable risk test, the bail decision maker must refuse bail if required to do so by section 4E. 4C Schedule 2 offences—step 1—show compelling reason test (1) A bail decision maker must refuse bail for a person accused of a Schedule 2 offence unless satisfied that a compelling reason exists that justifies the grant of bail. (2) The accused bears the burden of satisfying the bail decision maker as to the existence of a compelling reason. (3) In considering whether a compelling reason exists, the bail decision maker must take into account the surrounding circumstances. Note The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B. -- 13 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 12 Authorised by the Chief Parliamentary Counsel (4) If the bail decision maker is satisfied that a compelling reason exists that justifies the grant of bail, the bail decision maker must then move to step 2—unacceptable risk test. 4D Schedule 2 offences—step 2— unacceptable risk test (1) If at step 1 (section 4C) the bail decision maker is satisfied that a compelling reason exists that justifies the grant of bail for a person accused of a Schedule 2 offence, the bail decision maker must apply the unacceptable risk test. (2) For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker— (a) as to the existence of a risk of a kind mentioned in section 4E(1)(a); and (b) that the risk is an unacceptable risk. (3) On applying the unacceptable risk test, the bail decision maker must refuse bail if required to do so by section 4E. 4E All offences—unacceptable risk test (1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that— (a) there is a risk that the accused would, if released on bail— (i) endanger the safety or welfare of any person; or (ii) commit an offence while on bail; or (iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or -- 14 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 13 Authorised by the Chief Parliamentary Counsel (iv) fail to surrender into custody in accordance with the conditions of bail; and (b) the risk is an unacceptable risk. Example An unacceptable risk that the accused, if released on bail, would commit a family violence offence. (2) The prosecutor bears the burden of satisfying the bail decision maker— (a) as to the existence of a risk of a kind mentioned in subsection (1)(a); and (b) that the risk is an unacceptable risk. (3) In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must— (a) take into account the surrounding circumstances; and Note The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B. (b) consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.". 8 Bail undertaking (1) After section 5(1) of the Bail Act 1977 insert— "(1A) An accused who enters into an undertaking is under a duty to attend court for the hearing or trial specified in the undertaking and surrender into custody on so attending.". -- 15 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 14 Authorised by the Chief Parliamentary Counsel (2) In section 5(2) of the Bail Act 1977, for "considering the release of an accused on bail, must consider whether to" substitute "on granting bail, may". 9 New section 5AAAA inserted After section 5 of the Bail Act 1977 insert— "5AAAA Family violence risks (1) A bail decision maker considering the release on bail of an accused must make inquiries of the prosecutor as to whether there is in force— (a) a family violence intervention order made against the accused; or (b) a family violence safety notice issued against the accused; or (c) a recognised DVO made against the accused. (2) A bail decision maker considering the release on bail of an accused charged with a family violence offence must consider— (a) whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and (b) whether that risk could be mitigated by— (i) the imposition of a condition; or (ii) the making of a family violence intervention order.". -- 16 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 15 Authorised by the Chief Parliamentary Counsel 10 Conduct conditions For section 5AAA(1)(a) to (d) of the Bail Act 1977 substitute— "(a) endanger the safety or welfare of any person; or (b) commit an offence while on bail; or (c) interfere with a witness or otherwise obstruct the course of justice in any matter; or (d) fail to surrender into custody in accordance with the conditions of bail.". 11 Application for bail After section 8(2) of the Bail Act 1977 insert— "(3) A bail decision maker may adjourn the hearing of a proceeding with respect to bail for up to 4 hours if satisfied that the accused appears to be seriously affected by alcohol or another drug or a combination of drugs. (4) On adjourning a hearing under subsection (3), the bail decision maker may remand the accused in custody until the further hearing of the matter. (5) Subsection (6) applies if, on the first further hearing of a matter adjourned under subsection (3), the bail decision maker is satisfied that the accused still appears to be seriously affected by alcohol or another drug or a combination of drugs. (6) The bail decision maker may adjourn the hearing of the matter for one further period of up to 4 hours and remand the accused in custody until the next hearing of the matter.". -- 17 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 16 Authorised by the Chief Parliamentary Counsel 12 New sections 8A and 8B inserted After section 8 of the Bail Act 1977 insert— "8A Refusal of bail—any offence—insufficient information 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. 8B Refusal of bail—offence involving serious injury—uncertainty as to death or recovery (1) This section 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. (2) A bail decision maker may refuse bail if at the time of deciding the application it is uncertain whether the person injured will die or recover from the injury.". 13 Power of police officer, sheriff or authorised person to grant or refuse bail (1) After section 10(5) of the Bail Act 1977 insert— "(5A) If the bail decision maker is prohibited by section 13 from granting bail to the arrested person, the bail decision maker must— (a) refuse to consider whether to grant or refuse bail; and (b) bring the person before a court as soon as practicable. -- 18 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 17 Authorised by the Chief Parliamentary Counsel (5B) Subsection (5C) applies if a bail decision maker who is the sheriff or a person authorised under section 84(5) of the Infringements Act 2006 decides to grant bail but the person refuses to enter into an undertaking. (5C) Despite subsection (2), the bail decision maker may take and safely convey the person to a bail decision maker who is a police officer for their consideration.". (2) For section 10(6) of the Bail Act 1977 substitute— "(6) If bail is refused under subsection (5) and the arrested person is not a person to whom section 10AA applies, the bail decision maker must— (a) endorse on the warrant, file or other papers relating to the arrested person or in any register or record of persons in custody the reasons for refusing bail; and (b) if it is then within ordinary court sitting hours, 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; and (c) if it is then outside ordinary court sitting hours, advise the arrested person that they are entitled, should they so wish, to apply to a bail justice for bail and— -- 19 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 18 Authorised by the Chief Parliamentary Counsel (i) if the arrested person wishes to so apply for bail, cause the arrested person to be brought before a bail justice as soon as practicable; or (ii) if the arrested person does not wish to so apply for bail, 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; and (d) cause to be produced before the court or bail justice a copy of the endorsement mentioned in paragraph (a); and (e) give the person a written statement setting out the provisions of this subsection and of subsection (5). (6A) If bail is granted but the arrested person objects to the amount fixed for bail or any condition of bail, the bail decision maker must— (a) advise the arrested person that they are entitled, should they so wish, to apply to a court or, if it is then outside ordinary court sitting hours, to a bail justice for variation of the amount of bail or conditions of bail; and (b) give the person a written statement setting out the provisions of this subsection and of subsections (5), (7) and (8).". -- 20 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 19 Authorised by the Chief Parliamentary Counsel (3) For section 10(7) of the Bail Act 1977 substitute— "(7) Subsection (8) applies if the arrested person elects under subsection (6A) to apply for variation of the amount of bail or conditions of bail. (8) The bail decision maker must cause the arrested person to be brought before a court as soon as practicable or, if it is then outside ordinary court sitting hours, before a bail justice.". 14 New section 10AA inserted After section 10 of the Bail Act 1977 insert— "10AA Police remand (1) Subject to subsection (2), this section applies to any arrested person mentioned in section 10(1) who is accused of a Schedule 1 offence and for whom bail is refused under section 10(5) by a bail decision maker who is a police officer of or above the rank of sergeant or for the time being in charge of a police station. (2) This section does not apply to an arrested person who is— (a) a child; or (b) a vulnerable adult; or (c) an Aboriginal person; or (d) a person arrested on an infringement warrant issued under the Infringements Act 2006. -- 21 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 20 Authorised by the Chief Parliamentary Counsel (3) For the purposes of this section— (a) a person may be considered to be a vulnerable adult or an Aboriginal person if the police officer is of the opinion that the person is such a person; and (b) a police officer, in considering whether an arrested person is an Aboriginal person, must have regard to any statement made by the arrested person (whether or not in response to a question asked by the police officer) as to whether they are an Aboriginal person. (4) If bail is refused under section 10(5) for a person to whom this section applies, the police officer must— (a) endorse on the warrant, file or other papers relating to the arrested person or in any register or record of persons in custody the reasons for refusing bail; and (b) remand the person in custody to appear before a court as soon as practicable within the period of 48 hours after being so remanded; and (c) cause to be produced before the court a copy of the endorsement mentioned in paragraph (a); and (d) advise the arrested person that they are entitled, should they so wish, to apply for bail when they appear before the court; and (e) give the person a written statement setting out the provisions of this section and of section 10(5). -- 22 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 21 Authorised by the Chief Parliamentary Counsel (5) The police officer must not remand the person in custody under subsection (4)(b) if the police officer considers that it is not practicable for the person to be brought before a court within the next 48 hours (including appearing before it by audio visual link). (6) In the circumstances mentioned in subsection (5) the person must be brought before a bail justice as soon as practicable. (7) If a person remanded in custody under subsection (4)(b) is not brought before a court within 48 hours after being so remanded, the person must be brought before a bail justice as soon as practicable after the expiry of that period of 48 hours.". 15 Power of bail justice to grant or refuse bail (1) In section 10A(1) of the Bail Act 1977— (a) after "bail justice" insert ", whether as a result of being brought before the bail justice"; (b) for "10(7)" substitute "10(6) or (8)"; (c) after "1989" insert "or being otherwise before the bail justice". (2) After section 10A(2) of the Bail Act 1977 insert— "(2A) If the person is brought before the bail justice because a police officer, on refusing bail for the person under section 10(5), was of the opinion that the person was an Aboriginal person or a vulnerable adult, the bail justice is not required to consider whether the person is such a person but may rely on the opinion of the police officer.". -- 23 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 22 Authorised by the Chief Parliamentary Counsel (3) After section 10A(5) of the Bail Act 1977 insert— "(5A) A bail justice who grants bail must certify on the remand warrant— (a) consent to the person being bailed; and (b) the amount of any surety or sureties; and (c) any conditions of bail.". (4) After section 10A(6) of the Bail Act 1977 insert— "(7) On remanding the person in custody under subsection (6), the bail justice must certify on the remand warrant a statement of the refusal of bail and of the grounds for it.". 16 Power of court to grant or refuse bail (1) In section 12(1) of the Bail Act 1977, for "10(7)" substitute "10(6) or (8)". (2) After section 12(3) of the Bail Act 1977 insert— "(3A) A court that grants bail for a person accused of an offence must— (a) for a Schedule 1 offence, include in the order a statement of reasons for granting bail; and Note Only a court may grant bail to a person accused of a Schedule 1 offence. See section 13. (b) in any case, record on the remand warrant, file or other papers— (i) consent to the person being bailed; and -- 24 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 23 Authorised by the Chief Parliamentary Counsel (ii) the amount of any surety or sureties; and (iii) any conditions of bail.". 17 New section 12A inserted After section 12 of the Bail Act 1977 insert— "12A Statement of reasons for Schedule 2 offence A bail decision maker who grants bail for a person accused of a Schedule 2 offence must— (a) if a court, include in the order a statement of reasons for granting bail; or (b) in any other case, record and transmit a statement of reasons as required by the regulations.". 18 New section 12B inserted Before section 13 of the Bail Act 1977 insert— "12B Persons subject to a summons to answer to a charge (1) This section applies if— (a) a person subject to a summons to answer to 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 (b) the hearing of the criminal proceeding is to be adjourned. -- 25 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 24 Authorised by the Chief Parliamentary Counsel (2) The court may, on an application made by the prosecutor or on its own initiative— (a) remand the accused in custody to appear before the court on the resumption of the hearing; or (b) in accordance with this Act, grant the accused bail. (3) Nothing in this section— (a) affects the operation of section 331 of the Criminal Procedure Act 2009; or (b) prevents the court allowing the accused to go at large, including on refusing an application made by the prosecutor under subsection (2).". 19 Treason, murder and other Schedule 1 offences (1) In section 13(3) of the Bail Act 1977, for "Only" substitute "Subject to subsections (4) and (5), only". (2) After section 13(3) of the Bail Act 1977 insert— "(4) Subsection (3) does not apply to a person who is a child, a vulnerable adult or an Aboriginal person and who is accused of a Schedule 1 offence if the only Schedule 1 offence of which the person is accused is an offence that is a Schedule 1 offence only because of item 3 of that Schedule or (in relation to an offence referred to in item 3) item 12 of that Schedule. (5) Subsection (3) does not apply to a person accused of a Schedule 1 offence if the only Schedule 1 offence of which the person is accused is a relevant Schedule 1 offence. -- 26 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 25 Authorised by the Chief Parliamentary Counsel (6) For the purposes of subsection (5), a relevant Schedule 1 offence is an offence that— (a) is an offence— (i) referred to in item 1 or 30 of Schedule 2 (and not referred to in any other item of Schedule 2); or (ii) in relation to an offence described in subparagraph (i), referred to in item 31 of Schedule 2; and (b) is a Schedule 1 offence only because of item 3 of Schedule 1 or (in relation to an offence referred to in item 3 of Schedule 1) item 12 of Schedule 1.". 20 New section 13A inserted After section 13 of the Bail Act 1977 insert— "13A Accused on 2 or more undertakings of bail (1) This section applies to a person (other than a child, a vulnerable adult or an Aboriginal 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. (2) Only a court may grant bail to the person. (3) For the purposes of this section, a relevant Schedule 2 offence is any Schedule 2 offence other than— (a) an offence referred to in item 1 of Schedule 2 (and not referred to in any other item of that Schedule); or (b) an offence referred to in item 30 of Schedule 2; or -- 27 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 26 Authorised by the Chief Parliamentary Counsel (c) 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 (d) in relation to an offence referred to in item 30 of Schedule 2, an offence referred to in item 31 of that Schedule.". 21 Section 18AD substituted For section 18AD of the Bail Act 1977 substitute— "18AD Determination of application for variation of the amount of bail or bail conditions On an application under section 18AC, the bail decision maker must take into account the surrounding circumstances and may— (a) vary the amount of bail or conditions of bail if it appears to the bail decision maker that it is reasonable to do so having regard to those circumstances; or (b) in any other case, dismiss the application. Note Section 5 provides for the imposition of conditions of bail.". 22 Transitional provisions At the end of section 34 of the Bail Act 1977 insert— "(19) An amendment made to this Act by a provision of Part 2 of the Bail Amendment (Stage Two) Act 2018 applies to an application made, or an appeal commenced, under this Act on or after the commencement -- 28 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 27 Authorised by the Chief Parliamentary Counsel of that provision, regardless of when the offence is alleged to have been committed.". 23 Minor and consequential amendments (1) In section 3 of the Bail Act 1977, the definition of serious offence is repealed. (2) In section 3C of the Bail Act 1977, for "the court" substitute "a bail decision maker". (3) Section 6 of the Bail Act 1977 is repealed. (4) In sections 7(1) and 8(1)(c) of the Bail Act 1977, for "informant or prosecutor or any person appearing on behalf of the Crown" substitute "prosecutor". (5) In section 10(5A) of the Bail Act 1977, after "13" insert "or 13A". (6) For the note at the foot of sections 10(5) and 10A(5) of the Bail Act 1977 substitute— "Notes 1 Only a court may grant bail to a person accused of a Schedule 1 offence. See section 13. 2 Section 13A imposes restrictions on who may grant bail to certain persons accused of certain Schedule 2 offences who are already on 2 or more undertakings of bail in relation to other indictable offences.". (7) In section 10AA(1) of the Bail Act 1977 omit "who is accused of a Schedule 1 offence". (8) In section 10A(1) of the Bail Act 1977, after "section 10(6) or (8)" insert "or 10AA(6) or (7) of this Act". (9) In sections 10A(2) and 12(2) of the Bail Act 1977, after "for bail" insert "or for variation of the amount of bail or conditions of bail". (10) In section 12(1) of the Bail Act 1977, after "section 10(6) or (8)" insert ", 10AA(4)". -- 29 of 35 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 28 Authorised by the Chief Parliamentary Counsel (11) In section 13(2) of the Bail Act 1977, for "the Magistrates' Court" substitute "a court". (12) In item 3 of Schedule 1 to the Bail Act 1977, for "(f)" substitute "(e)". 24 Amendments consequential on Fines Reform Act 2014 (1) In section 10(5B) of the Bail Act 1977, for "section 84(5) of the Infringements Act 2006" substitute "section 115(5) of the Fines Reform Act 2014". (2) After section 10(6A) of the Bail Act 1977 insert— "(6B) Subsection (6A) does not apply to a person arrested on an enforcement warrant issued under the Fines Reform Act 2014.". (3) In section 10AA(2)(d) of the Bail Act 1977, for "infringement warrant issued under the Infringements Act 2006" substitute "enforcement warrant issued under the Fines Reform Act 2014". -- 30 of 35 -- Part 3—Amendment of Children, Youth and Families Act 2005 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 29 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of Children, Youth and Families Act 2005 25 Children, Youth and Families Act 2005 (1) In section 346(2) of the Children, Youth and Families Act 2005, for "A child" substitute "Subject to subsection (3), a child". (2) After section 346(2) of the Children, Youth and Families Act 2005 insert— "(3) Subsection (2) does not apply if bail may only be granted to a child by a court. In such a case the child must be brought before the Court as soon as practicable and— (a) no later than the next working day after being taken into custody; or (b) if the proper venue of the Court is in a prescribed region of the State, within 2 working days after being taken into custody.". (3) After section 347(1) of the Children, Youth and Families Act 2005 insert— "(1A) A child to whom bail may only be granted by a court and who is detained in police custody pending being brought before the Court must be placed in a remand centre except as otherwise provided by the regulations.". -- 31 of 35 -- Part 4—Amendments related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 30 Authorised by the Chief Parliamentary Counsel Part 4—Amendments related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 26 Children, Youth and Families Act 2005 (1) For section 356(9) of the Children, Youth and Families Act 2005 substitute— "(9) The Children's Court must hear and determine a charge summarily if it has been transferred to the Court under section 168 of the Criminal Procedure Act 2009 because of the operation of 168A of that Act.". (2) After section 627 of the Children, Youth and Families Act 2005 insert— "628 Transitional provisions—Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 Schedule 6 has effect.". (3) In clause 1(1) of Schedule 6 to the Children, Youth and Families Act 2005, for "sentencing of an offender" substitute "hearing of a charge or the sentencing of an offender (as the case requires)". (4) At the end of Part 8.6 of the Children, Youth and Families Act 2005 insert— "629 Transitional provision—Bail Amendment (Stage Two) Act 2018 The amendment made to this Act by section 26(1) of the Bail Amendment (Stage Two) Act 2018 applies to the hearing of a charge for an offence alleged to have been committed on or after the commencement of that section.". -- 32 of 35 -- Part 4—Amendments related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 31 Authorised by the Chief Parliamentary Counsel 27 Criminal Procedure Act 2009 In section 333(3) of the Criminal Procedure Act 2009, for "prosecution" substitute "Secretary to the Department of Justice and Regulation". 28 Bail Act 1977 In section 5A(3) of the Bail Act 1977— (a) for "The" substitute "If the Secretary to the Department of Justice and Regulation objects to the accused being returned to a youth justice centre under subsection (1), the"; (b) for "subsection (1) if" substitute "that subsection if". 29 Sentencing Act 1991 In section 33(1A) of the Sentencing Act 1991, for "child" substitute "young offender". -- 33 of 35 -- Part 5—Repeal of amending Act Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 32 Authorised by the Chief Parliamentary Counsel Part 5—Repeal of amending Act 30 Repeal of amending Act This Act is repealed on 1 October 2019. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ -- 34 of 35 -- Endnotes Bail Amendment (Stage Two) Act 2018 No. 3 of 2018 33 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 13 December 2017 Legislative Council: 8 February 2018 The long title for the Bill for this Act was "A Bill for an Act to make further amendments to the Bail Act 1977 in relation to the grant or refusal of bail, to empower police officers to remand in custody certain persons who have been refused bail by a police officer, to amend the Children, Youth and Families Act 2005, to make amendments to certain Acts related to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 and for other purposes." -- 35 of 35 --