Bail Amendment (Stage One) Act 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Bail Amendment (Stage One) Act 2017 No. 26 of 2017 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2—Amendment of Bail Act 1977 3 3 New sections 1A and 1B inserted 3 4 Definitions 4 5 Accused held in custody entitled to bail 5 6 New section 5 substituted and new sections 5AAA and 5AAB inserted 8 7 Application for bail 14 8 New sections 10 and 10A substituted 14 9 New section 12 substituted 17 10 New section 13 substituted 18 11 New section 13 amended 18 12 Transitional provisions 18 13 New Schedules 1 and 2 inserted 19 14 Consequential amendments 27 15 Amendments consequential on Fines Reform Act 2014 29 16 Amendments consequential on National Domestic Violence Order Scheme Act 2016 30 Part 3—Amendment of Family Violence Protection Act 2008 31 17 New sections 175AA and 175AB inserted 31 18 New section 175AC inserted (consequential on National Domestic Violence Order Scheme Act 2016) 32 Part 4—Consequential amendment of other Acts and repeal of amending Act 33 Division 1—Consequential amendment of other Acts 33 19 Children, Youth and Families Act 2005 33 20 Corrections Act 1986 33 21 Crimes Act 1958 34 22 Criminal Procedure Act 2009 34 23 Fines Reform Act 2014 34 24 Magistrates' Court Act 1989 34 -- 1 of 39 -- Section Page ii Authorised by the Chief Parliamentary Counsel 25 Sentencing Act 1991 35 26 Sex Work Act 1994 35 27 Victims' Charter Act 2006 35 28 Victorian Civil and Administrative Tribunal Act 1998 35 Division 2—Repeal of amending Act 36 29 Repeal of amending Act 36 ═════════════ Endnotes 37 1 General information 37 -- 2 of 39 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Bail Amendment (Stage One) Act 2017 † No. 26 of 2017 [Assented to 27 June 2017] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The purposes of this Act are— (a) to amend the Bail Act 1977— (i) to make fresh provision about the circumstances in which bail may be granted or refused and who may grant bail; and Victoria -- 3 of 39 -- Part 1—Preliminary Bail Amendment (Stage One) Act 2017 No. 26 of 2017 2 Authorised by the Chief Parliamentary Counsel (ii) to provide for conditions about the conduct of an accused to continue to have effect until varied or revoked; and (b) to make consequential amendments to various Acts. 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 July 2018, it comes into operation on that day. -- 4 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 3 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of Bail Act 1977 3 New sections 1A and 1B inserted After section 1 of the Bail Act 1977 insert— "1A Purpose The purpose of this Act is to provide a legislative framework for the making of decisions as to whether a person accused of an offence should be granted bail, with or without conditions, or remanded in custody. 1B Guiding principles (1) The Parliament recognises the importance of— (a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and (b) taking account of the presumption of innocence and the right to liberty; and (c) promoting fairness, transparency and consistency in bail decision making; and (d) promoting public understanding of bail practices and procedures. (2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).". -- 5 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 4 Authorised by the Chief Parliamentary Counsel 4 Definitions (1) In section 3 of the Bail Act 1977 insert the following definitions— "bail decision maker means any of the following empowered under this Act to grant bail— (a) a court; (b) a bail justice; (c) a police officer; (d) the sheriff or a person authorised under section 84(5) of the Infringements Act 2006; family violence has the same meaning as in the Family Violence Protection Act 2008; family violence intervention order has the same meaning as in the Family Violence Protection Act 2008; family violence offence means— (a) an offence against section 37(2), 37A(2), 123(2), 123A(2) or 125A(1) of the Family Violence Protection Act 2008; or (b) an offence where the conduct of the accused is family violence; family violence safety notice has the same meaning as in the Family Violence Protection Act 2008;". (2) In section 3 of the Bail Act 1977— (a) in the definition of conduct condition, for "section 5(2A)" substitute "section 5AAA(4)"; (b) the definition of court is repealed; -- 6 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 5 Authorised by the Chief Parliamentary Counsel (c) insert the following definitions— "Schedule 1 offence means an offence specified in Schedule 1 and, if circumstances are specified in Schedule 1 in relation to that offence, means an offence committed in those circumstances; Schedule 2 offence means an offence specified in Schedule 2 and, if circumstances are specified in Schedule 2 in relation to that offence, means an offence committed in those circumstances;"; (d) for the definition of undertaking substitute— "undertaking—see section 5.". 5 Accused held in custody entitled to bail (1) In section 4(2) of the Bail Act 1977— (a) for "a court" substitute "a bail decision maker"; (b) in paragraphs (aa) and (b), for "the court" substitute "the bail decision maker"; (c) in paragraph (d), for "the court" substitute "the bail decision maker". (2) In section 4(2) of the Bail Act 1977, for paragraphs (a), (aa) and (b) substitute— "(a) in the case of a person charged with a Schedule 1 offence, unless the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail; or"; (3) In section 4(2)(d)(i) of the Bail Act 1977, for "members of the public" substitute "any person". -- 7 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 6 Authorised by the Chief Parliamentary Counsel (4) At the foot of section 4(2)(d)(i) of the Bail Act 1977 insert— "Example An unacceptable risk that the accused if released on bail would commit a family violence offence.". (5) In section 4(2A) of the Bail Act 1977, for "A court" substitute "A bail decision maker". (6) In section 4(3) of the Bail Act 1977, for "the court" (where twice occurring) substitute "the bail decision maker". (7) In section 4(4) of the Bail Act 1977— (a) in paragraphs (b)(ii), (ba)(ii) and (bb)(ii) for "the court" substitute "the bail decision maker"; (b) for "court shall refuse bail unless the accused shows cause" substitute "bail decision maker must refuse bail unless the accused shows compelling reason"; (c) for "court grants bail the court" substitute "bail decision maker grants bail the bail decision maker". (8) For section 4(4) of the Bail Act 1977 substitute— "(4) A bail decision maker must refuse bail for a person accused of a Schedule 2 offence unless the accused shows compelling reason why their detention in custody is not justified. (4A) 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 -- 8 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 7 Authorised by the Chief Parliamentary Counsel (b) in any other case, provide a statement of reasons as required by the regulations.". (9) Before section 4(5) of the Bail Act 1977 insert— "(4B) Subsection (4C) 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. (4C) 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. (4D) A bail decision maker may adjourn the hearing of a matter 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. (4E) On adjourning a hearing under subsection (4D), the bail decision maker may remand the accused in custody until the further hearing of the matter. (4F) Subsection (4G) applies if, on the first further hearing of a matter adjourned under subsection (4D), 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. (4G) 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. (4H) A bail decision maker considering the release of an accused on bail must make inquiries of the informant or prosecutor or any person appearing on behalf of the Crown as to whether there is in force— -- 9 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 8 Authorised by the Chief Parliamentary Counsel (a) a family violence intervention order made against the accused; or (b) a family violence safety notice issued against the accused. (4I) 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 reduced by— (i) the imposition of a condition; or (ii) the making of a family violence intervention order.". (10) For section 4(5) of the Bail Act 1977 substitute— "(5) In granting bail, a bail decision maker may impose conduct conditions.". (11) After section 4(5) of the Bail Act 1977 insert— "(6) For the purposes of this section, 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 5 substituted and new sections 5AAA and 5AAB inserted For section 5 of the Bail Act 1977 substitute— "5 Bail undertaking (1) A grant of bail must require the accused to enter into a written undertaking to surrender into custody at the time and place of the hearing or trial specified in the undertaking and not to depart without leave of the court -- 10 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 9 Authorised by the Chief Parliamentary Counsel and, if leave is given, to return at the time specified by the court and again surrender into custody. (2) A bail decision maker, considering the release of an accused on bail, must consider whether to release the accused— (a) on their own undertaking without any other condition; or (b) on their own undertaking with conduct conditions; or (c) with a surety or sureties for a specified amount or a deposit of money of a specified amount, with or without conduct conditions. (3) Any surety that is required must also enter into an undertaking to pay the specified amount if the accused fails to comply with the undertaking entered into by them. Notes 1 Sections 12 and 21 of the Charter of Human Rights and Responsibilities set out a right of freedom of movement and a right to liberty and security of the person. 2 Sections 23 and 25 of the Charter of Human Rights and Responsibilities set out the rights of children in the criminal process and the rights of an adult in criminal proceedings. 3 Section 7(2) of the Charter of Human Rights and Responsibilities sets out how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. -- 11 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 10 Authorised by the Chief Parliamentary Counsel 5AAA Conduct conditions (1) A bail decision maker considering the release of an accused on bail must impose any condition that, in the opinion of the bail decision maker, will reduce the likelihood that the accused may— (a) endanger the safety or welfare of any person; or (b) fail to attend in accordance with their bail and surrender into custody at the time and place of the hearing or trial; or (c) commit an offence while on bail; or (d) interfere with witnesses or otherwise obstruct the course of justice in any matter before the court. Example A bail decision maker may impose a condition in order to reduce the likelihood that the accused may commit a family violence offence. (2) If a bail decision maker imposes one or more conditions, each condition and the number of conditions— (a) must be no more onerous than is required to reduce the likelihood that the accused may do a thing mentioned in subsection (1)(a) to (d); and (b) must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused; and (c) subject to subsection (3), must be consistent with each condition of each family violence intervention order or family violence safety notice to which the accused is subject. -- 12 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 11 Authorised by the Chief Parliamentary Counsel (3) A bail decision maker may impose a condition that is inconsistent with a condition of a family violence intervention order or family violence safety notice if the bail decision maker is satisfied that the proposed condition will better protect the safety or welfare of— (a) an alleged victim of the offence with which the accused is charged; or (b) a protected person (within the meaning of the Family Violence Protection Act 2008). Note Sections 175AA and 175AB of the Family Violence Protection Act 2008 provide that if it is not possible to comply with both a bail condition and a family violence safety notice or a family violence intervention order, the safety notice or intervention order prevails to the extent of the inconsistency. (4) Without limiting section 4(5) or 5(2), a bail decision maker may impose all or any of the following conditions about the conduct of an accused— (a) reporting to a police station; (b) residing at a particular address; (c) subject to subsection (5), a curfew imposing times at which the accused must be at their place of residence; (d) that the accused is not to contact specified persons or classes of person; Example Witnesses, alleged victims or co-accused. (e) surrender of the accused's passport; -- 13 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 12 Authorised by the Chief Parliamentary Counsel (f) geographical exclusion zones, being places or areas the accused must not visit or may only visit at specified times; Example Not attending a gaming venue, a venue that sells alcohol or a point of international departure. (g) attendance and participation in a bail support service; (h) that the accused not drive a motor vehicle or carry passengers when driving a motor vehicle; (i) that the accused not consume alcohol or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under that Act; (j) that the accused comply with any existing intervention orders; (k) any other condition that the bail decision maker considers appropriate to impose in relation to the conduct of the accused. (5) If a bail decision maker imposes a curfew on an accused as a conduct condition, the period of curfew imposed must not exceed 12 hours within a 24-hour period. (6) A condition imposed by a bail decision maker continues to be binding on the accused until it is varied or revoked or the matter in relation to which it was imposed is finally determined by a court. -- 14 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 13 Authorised by the Chief Parliamentary Counsel 5AAB Sureties (1) If a bail decision maker is considering, in accordance with section 5(2)(c), imposing a condition that requires a deposit of money of a specified amount, the bail decision maker must have regard to the means of the accused in determining— (a) whether to impose the condition; and (b) the amount of money to be deposited. (2) If a bail decision maker is satisfied under subsection (1) that the accused does not have sufficient means to satisfy a condition requiring a deposit of money of a specified amount, the bail decision maker must consider whether any other condition would reduce the likelihood that the accused may do a thing mentioned in section 5AAA(1)(a) to (d). (3) If a bail decision maker is considering imposing a condition that requires a surety for a specified amount, the bail decision maker must have regard to the means of a proposed surety in determining— (a) whether to impose the condition; and (b) the amount of the surety. (4) If a bail decision maker is satisfied under subsection (3) that the accused is unable to provide a surety with sufficient means, the bail decision maker must consider whether any other condition would reduce the likelihood that the accused may do a thing mentioned in section 5AAA(1)(a) to (d).". -- 15 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 14 Authorised by the Chief Parliamentary Counsel 7 Application for bail After section 8(1)(c)(ii) of the Bail Act 1977 insert— "(iia) to show that there is a risk that the accused may subject another person to family violence;". 8 New sections 10 and 10A substituted For section 10 of the Bail Act 1977 substitute— "10 Power of police officer, sheriff or authorised person to grant or refuse bail (1) This section applies if a person is arrested and it is not practicable to bring the person before a court immediately after the person is taken into custody or, if questioning or investigation under section 464A(2) of the Crimes Act 1958 has commenced, immediately on the expiration of the reasonable time referred to in section 464A(1) of that Act. (2) A police officer of or above the rank of sergeant or for the time being in charge of a police station, the sheriff or a person authorised under section 84(5) of the Infringements Act 2006 (as the case requires) must, without delay, consider whether to grant bail to the person in accordance with this Act. (3) If the person is a child, the bail decision maker must ensure that a parent or guardian of the child, or an independent person, is present during the proceeding in relation to bail. Note See also section 5AA (conditions of bail granted to a child in certain circumstances). -- 16 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 15 Authorised by the Chief Parliamentary Counsel (4) An independent person present in accordance with subsection (3) may take steps to facilitate the granting of bail, for example, by arranging accommodation. (5) The police officer, the sheriff or person authorised under section 84(5) of the Infringements Act 2006, in accordance with this Act, may grant or refuse bail. Note Section 13 imposes restrictions on who may grant bail to a person accused of treason or murder. (6) If bail is refused under subsection (5), the bail decision maker must— (a) advise the arrested person that they are entitled, should they so desire, to apply for bail to a court or, if it is then outside ordinary court sitting hours, to a bail justice ; or (b) give the person a written statement setting out the provisions of this subsection. (7) If the arrested person elects under subsection (6) to apply for bail, the arrested person must be brought before a court as soon as practicable or, if it is then outside ordinary court sitting hours, before a bail justice. 10A Power of bail justice to grant or refuse bail (1) This section applies if a person in custody is brought before a bail justice in accordance with section 10(7) or section 64(2)(a) or 78(2)(a) of the Magistrates' Court Act 1989. -- 17 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 16 Authorised by the Chief Parliamentary Counsel (2) The bail justice must hear and determine any application made for bail, or for remand in custody, in respect of the person. (3) If the person is a child, the bail justice must ensure that a parent or guardian of the child, or an independent person, is present during the hearing of the application. Note See also section 5AA (conditions of bail granted to a child in certain circumstances). (4) An independent person present in accordance with subsection (3) may take steps to facilitate the granting of bail, for example, by arranging accommodation. (5) The bail justice, in accordance with this Act, may grant or refuse bail. Note Section 13 imposes restrictions on who may grant bail to a person accused of treason or murder. (6) A bail justice who refuses bail must remand the person in custody to appear before a court— (a) on the next working day; or (b) within 2 working days if— (i) the next working day is not practicable; or (ii) the person is a child and the proper venue of the Children's Court is in a region of the State prescribed under the Children, Youth and Families Act 2005.". -- 18 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 17 Authorised by the Chief Parliamentary Counsel 9 New section 12 substituted For section 12 of the Bail Act 1977 substitute— "12 Power of court to grant or refuse bail (1) This section applies if a person in custody is before a court, whether as a result of being brought before it in accordance with section 10(7) or 10A(6) of this Act or section 64(2)(a) of the Magistrates' Court Act 1989 or being otherwise before it. (2) The court must hear and determine any application made for bail, or for remand in custody, in respect of the person. (3) The court, in accordance with this Act, may grant or refuse bail. Note Section 13 imposes restrictions on who may grant bail to a person accused of treason or murder. (4) If the court refuses bail, it must— (a) remand the person in custody to appear before a court at a later date, which must not be for a period longer than 21 clear days in the case of a child; and (b) certify on the remand warrant a statement of the refusal and of the grounds for it. (5) If a child is brought before a court on the expiry of a period of remand in custody, the court must not remand the child in custody for a further period longer than 21 clear days.". -- 19 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 18 Authorised by the Chief Parliamentary Counsel 10 New section 13 substituted For section 13 of the Bail Act 1977 substitute— "13 Treason and murder (1) Only the Supreme Court may grant bail to a person accused of treason. (2) Only the Supreme Court, or the Magistrates' Court on committing the person for trial, may grant bail to a person accused of murder.". 11 New section 13 amended (1) For the heading to section 13 of the Bail Act 1977 substitute "Treason, murder and other Schedule 1 offences". (2) After section 13(2) of the Bail Act 1977 insert— "(3) Only a court may grant bail to a person accused of any other Schedule 1 offence.". 12 Transitional provisions After section 34(17) of the Bail Act 1977 insert— "(18) An amendment made to this Act by a provision of Part 2 of the Bail Amendment (Stage One) Act 2017 applies to an application made, or an appeal commenced, under this Act on or after the commencement of that provision, regardless of when the offence is alleged to have been committed.". -- 20 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 19 Authorised by the Chief Parliamentary Counsel 13 New Schedules 1 and 2 inserted After Part 5 of the Bail Act 1977 insert— "Schedule 1—Offences—exceptional circumstances 1. Treason. 2. Murder. 3. A Schedule 2 offence that is alleged to have been committed by the accused— (a) while on bail for any Schedule 1 offence or Schedule 2 offence; or (b) while subject to a summons to answer to a charge for any Schedule 1 offence or Schedule 2 offence; or (c) while at large awaiting trial for any Schedule 1 offence or Schedule 2 offence; or (d) during the period of a community correction order made in respect of the accused for any Schedule 1 offence or Schedule 2 offence or while otherwise serving a sentence for any such offence; or (f) while released under a parole order made in respect of any Schedule 1 offence or Schedule 2 offence. 4. An offence against section 77B of the Crimes Act 1958 (aggravated home invasion). 5. An offence against section 79A of the Crimes Act 1958 (aggravated carjacking). 6. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981— (a) section 71 (trafficking in a quantity of a drug or drugs of dependence that is not less than the large commercial quantity applicable to that drug or those drugs); -- 21 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 20 Authorised by the Chief Parliamentary Counsel (b) section 71AA (trafficking in a quantity of a drug or drugs of dependence that is not less than the commercial quantity applicable to that drug or those drugs); (c) section 72 (cultivation of a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the large commercial quantity applicable to that narcotic plant); (d) section 72A (cultivation of a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant); (e) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a), (b), (c) or (d). 7. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 (as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001)— (a) section 71(1) (trafficking in a drug of dependence) in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence; (b) section 72(1) (cultivation of narcotic plants) in circumstances where the offence is committed in relation to a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant; (c) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a) or (b). -- 22 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 21 Authorised by the Chief Parliamentary Counsel 8. An offence against section 302.2, 302.3, 303.4, 303.5, 304.1, 304.2, 305.3 or 305.4 of the Criminal Code of the Commonwealth in circumstances where the offence is committed in relation to a substance in respect of a quantity that is not less than the commercial quantity (as defined in section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981) applicable to the drug of dependence as defined in that Act constituted by that substance. 9. An offence against section 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code of the Commonwealth in circumstances where the offence is committed in relation to a substance in respect of a quantity that is not less than the commercial quantity (as defined in section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981) applicable to the drug of dependence as defined in that Act constituted by that substance. 10. An offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth (as in force immediately before the commencement of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 of the Commonwealth) in circumstances where the offence is committed in relation to narcotic goods within the meaning of that Act in respect of a quantity that is not less than the commercial quantity (as defined in section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981) applicable to the drug of dependence as defined in that Act constituted by those narcotic goods. 11. An offence against section 4B(1) or 21W of the Terrorism (Community Protection) Act 2003. 12. An offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in any other item of this Schedule. -- 23 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 22 Authorised by the Chief Parliamentary Counsel Schedule 2—Offences—show compelling reason 1. An indictable offence that is alleged to have been committed by the accused— (a) while on bail for another indictable offence; or (b) while subject to a summons to answer to a charge for another indictable offence; or (c) while at large awaiting trial for another indictable offence; or (d) during the period of a community correction order made in respect of the accused for another indictable offence or while otherwise serving a sentence for another indictable offence; or (e) while released under a parole order. 2. Manslaughter. 3. Child homicide. 4. An offence against section 15A(1) of the Crimes Act 1958 (causing serious injury intentionally in circumstances of gross violence). 5. An offence against section 15B(1) of the Crimes Act 1958 (causing serious injury recklessly in circumstances of gross violence). 6. An offence against section 16 of the Crimes Act 1958 (causing serious injury intentionally). 7. An offence against section 20 of the Crimes Act 1958 (threats to kill) that is also a family violence offence. 8. An offence against section 21A(1) of the Crimes Act 1958 (stalking) and— (a) the accused has within the preceding 10 years been convicted or found guilty of an offence against that section in relation to any person or an offence in the course of committing which the -- 24 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 23 Authorised by the Chief Parliamentary Counsel accused used or threatened to use violence against any person; or (b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom the accused is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence. 9. An offence against section 38(1) of the Crimes Act 1958 (rape). 10. An offence against section 39(1) of the Crimes Act 1958 (rape by compelling sexual penetration). 11. An offence against section 42(1) of the Crimes Act 1958 (assault with intent to commit a sexual offence). 12. An offence against section 47(1) of the Crimes Act 1958 (abduction or detention for a sexual purpose). 13. An offence against section 49A(1) of the Crimes Act 1958 (sexual penetration of a child under the age of 12). 14. An offence against section 49B(1) of the Crimes Act 1958 (sexual penetration of a child under the age of 16) in circumstances other than where at the time of the alleged offence the child was 12 years of age or more and the accused was not more than 2 years older than the child. 15. An offence against section 49J(1) of the Crimes Act 1958 (persistent sexual abuse of a child under the age of 16). 16. An offence against section 49P(1) of the Crimes Act 1958 (abduction or detention of a child under the age of 16 for a sexual purpose). -- 25 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 24 Authorised by the Chief Parliamentary Counsel 17. An offence against any of the following provisions of Subdivision (8C) of Division 1 of Part I of the Crimes Act 1958 (incest) in circumstances other than where both people are aged 18 or older— (a) section 50C(1) (sexual penetration of a child or lineal descendant); (b) section 50D(1) (sexual penetration of a step-child); (c) section 50E(1) (sexual penetration of a parent, lineal ancestor or step-parent); (d) section 50F(1) (sexual penetration of a sibling or half-sibling). 18. An offence against section 37, 37A, 123 or 123A of the Family Violence Protection Act 2008 of contravening a family violence intervention order or family violence safety notice (as the case requires) in the course of committing which the accused is alleged to have used or threatened to use violence and— (a) the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which the accused used or threatened to use violence against any person; or (b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order or notice, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence. 19. An offence against section 125A(1) of the Family Violence Protection Act 2008 (persistent contravention of notices and orders). -- 26 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 25 Authorised by the Chief Parliamentary Counsel 20. An offence against section 100 of the Personal Safety Intervention Orders Act 2010 of contravening an order in the course of committing which the accused is alleged to have used or threatened to use violence and— (a) the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which the accused used or threatened to use violence against any person; or (b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence. 21. An offence against section 63A of the Crimes Act 1958 (kidnapping). 22. An offence against any of the following provisions of the Crimes Act 1958— (a) section 75A(1) (armed robbery); (b) section 77 (aggravated burglary); (c) section 77A (home invasion); (d) section 79 (carjacking); (e) section 197A (arson causing death); (f) section 318(1) (culpable driving causing death); (g) section 319(1) or (1A) (dangerous driving causing death or serious injury); (h) section 319AA(1) (dangerous or negligent driving while pursued by police). -- 27 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 26 Authorised by the Chief Parliamentary Counsel 23. Any indictable offence in the course of committing which the accused, or any person involved in the commission of the offence, is alleged to have used or threatened to use a firearm, offensive weapon, or explosive as defined by section 77 of the Crimes Act 1958. 24. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981— (a) section 71AB (trafficking in a drug or drugs of dependence to a child); (b) section 71AC (trafficking in a drug of dependence); (c) section 72B (cultivation of narcotic plants); (d) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a), (b) or (c). 25. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 (as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001)— (a) section 71(1) (trafficking in a drug of dependence); (b) section 72(1) (cultivation of narcotic plants); (c) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a) or (b). 26. An offence against section 302.2, 302.3, 303.4, 303.5, 304.1, 304.2, 305.3, 305.4, 306.2, 307.1, 307.2, 307.5, 307.6, 307.8, 307.9, 307.11, 309.3, 309.4, 309.7, 309.8, 309.10, 309.11, 309.12, 309.13, 309.14 or 309.15 of the Criminal Code of the Commonwealth. -- 28 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 27 Authorised by the Chief Parliamentary Counsel 27. An offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth (as in force immediately before the commencement of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 of the Commonwealth) in circumstances where the offence is committed in relation to a commercial or trafficable quantity of narcotic goods within the meaning of that Act. 28. An indictable offence that is alleged to have been committed while the accused is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009. 29. An indictable offence, and the accused, at any time during the proceeding with respect to bail, is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009. 30. An offence against this Act. 31. An offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in any other item of this Schedule.". 14 Consequential amendments (1) In section 3A of the Bail Act 1977— (a) for "a court must take" substitute "a bail decision maker must take"; (b) in the Note at the foot of the section, for "a court" substitute "a bail decision maker". (2) In section 3B(1) and (2) of the Bail Act 1977, for "a court" substitute "a bail decision maker". (3) In section 5AA(2) of the Bail Act 1977, for "section 5(4)" substitute "section 5AAA(2)". -- 29 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 28 Authorised by the Chief Parliamentary Counsel (4) In section 7(1) of the Bail Act 1977, for "the court" (wherever occurring) substitute "the bail decision maker". (5) In section 8(1) of the Bail Act 1977, for "the court" (wherever occurring) substitute "the bail decision maker". (6) In section 8(1)(e) of the Bail Act 1977, for "it" substitute "the bail decision maker". (7) In section 9(3) of the Bail Act 1977, for "the court" substitute "the bail decision maker". (8) In section 9(3A)(b) of the Bail Act 1977, after "any other" insert "bail decision maker or to a". (9) In section 9(3B)(a)(iii) and (b)(ii), (3C) and (3D) of the Bail Act 1977, omit "authorised by section 27". (10) For the Note at the foot of sections 10(5), 10A(5) and 12(3) of the Bail Act 1977 substitute— "Note Only a court may grant bail to a person accused of a Schedule 1 offence. See section 13.". (11) Section 14 of the Bail Act 1977 is repealed. (12) In section 16(1) of the Bail Act 1977, for "no court" substitute "no bail decision maker". (13) In section 16B of the Bail Act 1977— (a) for "court or bail justice" substitute "bail decision maker"; (b) omit "or a police officer discharging a child on bail under section 10"; (c) for "court or bail justice or police officer" substitute "bail decision maker". -- 30 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 29 Authorised by the Chief Parliamentary Counsel (14) In section 17(1) and (2) of the Bail Act 1977, for "A court" substitute "A bail decision maker". (15) In sections 18(3)(a), 18AC(3)(a) and 18AE(2)(a) of the Bail Act 1977 omit "or a judge of the Supreme Court". (16) In section 26(1) of the Bail Act 1977— (a) for "a court by which" substitute "bail decision maker by whom or which"; (b) for "the court" substitute "the bail decision maker". (17) In section 27(1) of the Bail Act 1977— (a) for "the court"(where twice occurring) substitute "the bail decision maker"; (b) for "any other court" substitute "any court". 15 Amendments consequential on Fines Reform Act 2014 (1) In section 3 of the Bail Act 1977, for paragraph (d) of the definition of bail decision maker substitute— "(d) the sheriff or a person authorised under section 115(5) of the Fines Reform Act 2014;". (2) In section 5AA(1) and (2) of the Bail Act 1977, for "section 84(5) of the Infringements Act 2006" substitute "section 115(5) of the Fines Reform Act 2014". (3) In section 10(2) and (5) of the Bail Act 1977, for "section 84(5) of the Infringements Act 2006" substitute "section 115(5) of the Fines Reform Act 2014". -- 31 of 39 -- Part 2—Amendment of Bail Act 1977 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 30 Authorised by the Chief Parliamentary Counsel 16 Amendments consequential on National Domestic Violence Order Scheme Act 2016 (1) In section 3 of the Bail Act 1977, insert the following definition after the definition of prison— "recognised DVO has the same meaning as in the Family Violence Protection Act 2008;". (2) In section 4(4H) of the Bail Act 1977— (a) in paragraph (b), for "accused." substitute "accused; or"; (b) after paragraph (b) insert— "(c) a recognised DVO made against the accused.". (3) In section 5AAA(2)(c) of the Bail Act 1977, for "or family violence safety notice" substitute ", family violence safety notice or recognised DVO". (4) In section 5AAA(3) of the Bail Act 1977, for "or family violence safety notice" substitute ", family violence safety notice or recognised DVO". (5) For the Note at the foot of section 5AAA(3) of the Bail Act 1977 substitute— "Note Sections 175AA, 175AB and 175AC of the Family Violence Protection Act 2008 provide that if it is not possible to comply with both a bail condition and a family violence safety notice, a family violence intervention order or a recognised DVO, the safety notice, intervention order or recognised DVO prevails to the extent of the inconsistency.". -- 32 of 39 -- Part 3—Amendment of Family Violence Protection Act 2008 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 31 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of Family Violence Protection Act 2008 17 New sections 175AA and 175AB inserted After section 175 of the Family Violence Protection Act 2008 insert— "175AA Relationship between bail conditions and family violence safety notice (1) This section applies if— (a) a person is on bail subject to conditions; and (b) the person is subject to a family violence safety notice; and (c) there is an inconsistency between a bail condition and the family violence safety notice; and (d) the inconsistency makes it impossible for the person to comply with both the bail condition and the family violence safety notice. (2) The family violence safety notice prevails to the extent of the inconsistency referred to in subsection (1)(c) and (d). 175AB Relationship between bail conditions and family violence intervention order (1) This section applies if— (a) a person is on bail subject to conditions; and (b) the person is subject to a family violence intervention order; and (c) there is an inconsistency between a bail condition and the family violence intervention order; and -- 33 of 39 -- Part 3—Amendment of Family Violence Protection Act 2008 Bail Amendment (Stage One) Act 2017 No. 26 of 2017 32 Authorised by the Chief Parliamentary Counsel (d) the inconsistency makes it impossible for the person to comply with both the bail condition and the family violence intervention order. (2) The family violence intervention order prevails to the extent of the inconsistency referred to in subsection (1)(c) and (d).". 18 New section 175AC inserted (consequential on National Domestic Violence Order Scheme Act 2016) Before section 176 of the Family Violence Protection Act 2008 insert— "175AC Relationship between bail conditions and recognised DVO (1) This section applies if— (a) a person is on bail subject to conditions; and (b) the person is subject to a recognised DVO; and (c) there is an inconsistency between a bail condition and the recognised DVO; and (d) the inconsistency makes it impossible for the person to comply with both the bail condition and the recognised DVO. (2) The recognised DVO prevails to the extent of the inconsistency referred to in subsection (1)(c) and (d).". -- 34 of 39 -- Part 4—Consequential amendment of other Acts and repeal of amending Act Bail Amendment (Stage One) Act 2017 No. 26 of 2017 33 Authorised by the Chief Parliamentary Counsel Part 4—Consequential amendment of other Acts and repeal of amending Act Division 1—Consequential amendment of other Acts 19 Children, Youth and Families Act 2005 (1) In section 346(2)(b) of the Children, Youth and Families Act 2005, for "under section 10 of" substitute "in accordance with". (2) For the Note at the foot of section 346 of the Children, Youth and Families Act 2005 substitute— "Note The Bail Act 1977 contains provisions that are particular to children. These include the following— • section 3B (determination in relation to a child); • section 5AA (conditions of bail granted to a child in certain circumstances); • section 10(3) (power of police officer, sheriff or authorised person to grant or refuse bail); • section 10A(3) and (6) (power of bail justice to grant or refuse bail); • section 12(4) and (5) (power of court to grant or refuse bail); • section 16B (capacity of child to enter into undertaking); • section 24(3A) (arrest of person released on bail).". 20 Corrections Act 1986 In section 78D(3)(b) of the Corrections Act 1986, for "under section 4 of" substitute "in accordance with". -- 35 of 39 -- Part 4—Consequential amendment of other Acts and repeal of amending Act Bail Amendment (Stage One) Act 2017 No. 26 of 2017 34 Authorised by the Chief Parliamentary Counsel 21 Crimes Act 1958 At the foot of section 464A(1) of the Crimes Act 1958 insert— "Note Section 10 of the Bail Act 1977 applies at the expiration of the reasonable time referred to in subsection (1).". 22 Criminal Procedure Act 2009 For the Note at the foot of section 144(2)(c) of the Criminal Procedure Act 2009 substitute— "Notes 1 Section 13 of the Bail Act 1977 prevents the Magistrates' Court granting bail to a person committed for trial on a charge of treason. 2 See section 333 where the accused is undergoing a sentence of detention in a youth justice centre.". 23 Fines Reform Act 2014 Section 250 of the Fines Reform Act 2014 is repealed. 24 Magistrates' Court Act 1989 (1) At the foot of section 64(2) of the Magistrates' Court Act 1989 insert— "Note Section 10A or 12 of the Bail Act 1977 applies on a person being brought before a bail justice or the Court at the expiration of the reasonable time referred to in subsection (2)(a).". (2) In section 64(3) of the Magistrates' Court Act 1989, for "under section 10 of" substitute "in accordance with". -- 36 of 39 -- Part 4—Consequential amendment of other Acts and repeal of amending Act Bail Amendment (Stage One) Act 2017 No. 26 of 2017 35 Authorised by the Chief Parliamentary Counsel (3) At the foot of section 78(2) of the Magistrates' Court Act 1989 insert— "Note Section 10A or 12 of the Bail Act 1977 applies on a person being brought before a bail justice or the Court at the expiration of the reasonable time referred to in subsection (2)(a).". (4) In section 78(3) of the Magistrates' Court Act 1989, for "under section 10 of" substitute "in accordance with". 25 Sentencing Act 1991 In section 69F(1) of the Sentencing Act 1991, for "under section 10 of" substitute "in accordance with". 26 Sex Work Act 1994 In section 64(6) of the Sex Work Act 1994, for "under section 10 of" substitute "in accordance with". 27 Victims' Charter Act 2006 Section 10(2) of the Victims' Charter Act 2006 is repealed. 28 Victorian Civil and Administrative Tribunal Act 1998 In sections 134(5)(b) and 137(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, for "court" substitute "bail decision maker". -- 37 of 39 -- Part 4—Consequential amendment of other Acts and repeal of amending Act Bail Amendment (Stage One) Act 2017 No. 26 of 2017 36 Authorised by the Chief Parliamentary Counsel Division 2—Repeal of amending Act 29 Repeal of amending Act This Act is repealed on 1 November 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). ═════════════ -- 38 of 39 -- Endnotes Bail Amendment (Stage One) Act 2017 No. 26 of 2017 37 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: 25 May 2017 Legislative Council: 8 June 2017 The long title for the Bill for this Act was "A Bill for an Act to amend the Bail Act 1977 to make fresh provision about the circumstances in which bail may be granted or refused and who may grant bail, to amend the Family Violence Protection Act 2008, to make consequential amendments to other Acts and for other purposes." -- 39 of 39 --