Bail Amendment Act 2010

i Bail Amendment Act 2010 No. 70 of 2010 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—BAIL ACT 1977 3 3 New Part 1 heading inserted 3 4 Definitions 3 5 New section 3A inserted 4 3A Determination in relation to an Aboriginal person 4 6 New Part 2 heading inserted 4 7 Accused person held in custody entitled to bail 4 8 Section 5 substituted 5 5 Conditions of bail 5 9 Power to return accused to youth justice centre 7 10 Surety for bail 7 11 Court or bail justice to grant or refuse bail 10 12 Conditions of bail 11 13 Extension of bail 11 14 New Part 3 heading inserted 11 15 Section 18 substituted 12 18 Further application for bail where bail refused or revoked 12 18AA Certain circumstances required before application may be heard 12 18AB Hearing and determination of further application for bail 13 18AC Application for variation of bail conditions 13 18AD Determination of application for variation of the amount of bail or bail conditions 14 18AE Application for revocation of bail 15 18AF Determination of application for revocation of bail 15 18AG Appeal against refusal to revoke bail 15 18AH Preservation of the right of application or appeal to the Supreme Court or County Court 15 -- 1 of 42 -- Section Page ii 18AI Notice of application for variation to be given to sureties 16 18AJ Surety entitled to attend on application for variation 16 16 New Part 4 heading inserted 17 17 Appeal by Director of Public Prosecutions against inadequacy of bail etc. 17 18 New Part 5 heading inserted 18 19 Arrest on another charge not to vacate bail 18 20 Section 21 substituted and section 22 repealed 19 21 Abolition of right of a surety to apprehend a principal 19 21 Surety may apply for discharge 19 22 Arrest of person released on bail 19 23 Arrest where bail insufficient 20 24 Notice of trial 20 25 Failure to answer bail 20 26 Transitional provisions 20 PART 3—MAGISTRATES' COURT ACT 1989 21 27 Warrants to arrest 21 28 Search warrants 21 29 Section 120 substituted 21 120 Definitions 21 120A Appointment of bail justices 22 120B Application for appointment as bail justice 23 120C Re-appointment of bail justices 23 120D Application for re-appointment as bail justice 24 120E Appointment of acting bail justices 24 120F Application for appointment or re-appointment as acting bail justice 26 120G Resignation 26 120H Oath of office 26 120I Judge or magistrate may exercise power of bail justice 26 30 Certain office-holders to be bail justices 27 31 Section 122 substituted 27 122 Suspension from office 27 122A Investigation of bail justice 28 122B Removal of bail justice from office 29 32 Vacation of office 30 33 New sections 124AA and 124AB inserted 30 124AA Professional development and training 30 124AB Guidelines 31 34 Regulations 31 35 Schedule 8 amended 33 46 Transitional provisions—Bail Amendment Act 2010 33 -- 2 of 42 -- Section Page iii PART 4—CONSEQUENTIAL AMENDMENTS 35 36 Criminal Procedure Act 2009 35 37 Crown Proceedings Act 1958 35 38 Family Violence Protection Act 2008 36 39 Interpretation of Legislation Act 1984 36 40 Stalking Intervention Orders Act 2008 36 41 Victims' Charter Act 2006 37 PART 5—REPEAL OF AMENDING ACT 38 42 Repeal of amending Act 38 ═══════════════ ENDNOTES 39 -- 3 of 42 -- 1 Bail Amendment Act 2010 † No. 70 of 2010 [Assented to 19 October 2010] 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 clarify and amend the law relating to conditions of bail, sureties and deposits, variation of bail, revocation of bail, further bail applications and appeals; and Victoria -- 4 of 42 -- Part 1—Preliminary Bail Amendment Act 2010 No. 70 of 2010 2 (ii) to require a decision maker to take into account any issues that arise due to the Aboriginality of a person when making a determination under the Act in relation to the person; and (b) to amend the Magistrates' Court Act 1989 to create a new legislative framework for bail justices; and (c) to make consequential amendments to those and other 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 January 2011, it comes into operation on that day. __________________ s. 2 -- 5 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 3 PART 2—BAIL ACT 1977 3 New Part 1 heading inserted Before section 1 of the Bail Act 1977 insert— "PART 1—PRELIMINARY". 4 Definitions (1) In section 3 of the Bail Act 1977 insert the following definition— "Aboriginal person means a person who— (a) is descended from an Aborigine or Torres Strait Islander; and (b) identifies as an Aborigine or Torres Strait Islander; and (c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community;". (2) In section 3 of the Bail Act 1977, in the definition of bail justice— (a) in paragraph (a), for "section 120" substitute "section 120A or 120C"; and (b) after paragraph (a) insert— "(ab) acting bail justice appointed under section 120E of the Magistrates' Court Act 1989; or". s. 3 See: Act No. 9008. Reprint No. 9 as at 23 April 2007 and amending Act Nos 97/2005, 52/2008, 68/2008, 68/2009, 69/2009 and 13/2010. LawToday: www. legislation. vic.gov.au -- 6 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 4 5 New section 3A inserted After section 3 of the Bail Act 1977 insert— "3A Determination in relation to an Aboriginal person In making a determination under this Act in relation to an Aboriginal person, a court must take into account (in addition to any other requirements of this Act) any issues that arise due to the person's Aboriginality, including— (a) the person's cultural background, including the person's ties to extended family or place; and (b) any other relevant cultural issue or obligation. Note When considering bail for an Aboriginal person charged with a Commonwealth offence, a court must have regard to section 15AB(1)(b) of the Crimes Act 1914 of the Commonwealth.". 6 New Part 2 heading inserted After section 3A of the Bail Act 1977 insert— "__________________ PART 2—GRANTING OF BAIL AND ADMISSION TO BAIL". 7 Accused person held in custody entitled to bail (1) Section 4(2)(b) of the Bail Act 1977 is repealed. (2) In section 4(2A) of the Bail Act 1977, for "Despite subsection (2)(b), a court" substitute "A court". s. 5 -- 7 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 5 (3) In section 4(3) of the Bail Act 1977— (a) in paragraph (e), for "bail." substitute "bail;"; (b) after paragraph (e) insert— "(f) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.". 8 Section 5 substituted For section 5 of the Bail Act 1977 substitute— "5 Conditions of bail (1) A court considering the release of an accused on bail must impose a condition that the accused will surrender into custody at the time and place of the hearing or trial and then will not depart without leave of the court and, if leave is given, will return at the time specified by the court and again surrender into custody. (2) A court considering the release of an accused on bail must consider the conditions for release in the following order— (a) release of the accused on his or her own undertaking without any other condition; (b) release of the accused on his or her own undertaking with conditions about the conduct of the accused; (c) release of the accused with a surety of stated value or a deposit of money of stated amount, with or without conditions about the conduct of the accused. s. 8 -- 8 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 6 (3) A court considering the release of an accused on bail may only impose a condition in order to reduce the likelihood that the accused may— (a) fail to attend in accordance with his or her bail and surrender into custody at the time and place of the hearing or trial; or (b) commit an offence while on bail; or (c) endanger the safety or welfare of members of the public; or (d) interfere with witnesses or otherwise obstruct the course of justice in any matter before the court. (4) If a court imposes one or more conditions, each condition and the number of conditions— (a) must be no more onerous than is required to achieve the purposes of subsection (3); and (b) must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused. (5) If a court is considering imposing a condition that requires a deposit of money of stated amount, the court 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. (6) If a court is satisfied under subsection (5) that the accused does not have sufficient means to satisfy a condition requiring a deposit of money of stated amount, the court must consider whether any other condition s. 8 -- 9 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 7 would achieve the purposes of subsection (3). (7) If a court is considering imposing a condition that requires a surety of stated value, the court must have regard to the means of a proposed surety in determining— (a) whether to impose the condition; and (b) the value of the surety. (8) If a court is satisfied under subsection (7) that the accused is unable to provide a surety with sufficient means, the court must consider whether any other condition would achieve the purposes of subsection (3). Note 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. 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. 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.". 9 Power to return accused to youth justice centre In section 5A(1)(d)(i) of the Bail Act 1977 omit "special". 10 Surety for bail (1) After section 9(2) of the Bail Act 1977 insert— "(2A) If an objection to a proposed surety is raised, the suitability of the proposed surety is to be determined by a magistrate or judge.". s. 9 -- 10 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 8 (2) For section 9(3)(a)(ii) of the Bail Act 1977 substitute— "(ii) lodge a document that is evidence of the ownership and the value of property or any other asset to the amount of the bail; and Note Examples of documents that may be required are a copy of a certificate of title for the property or a search of the title of the land, a current rate notice that includes a valuation of the property, an independent valuation of the property or a bank statement of a mortgage account in relation to the property.". (3) For section 9(3)(b) of the Bail Act 1977 substitute— "(b) require the surety or sureties to make before it or him (as the case may be) an affidavit of justification for bail; and (c) require the surety or sureties to sign the undertaking of bail.". (4) For section 9(3A) and (3B) of the Bail Act 1977 substitute— "(3A) For the purposes of this section— (a) a surety may appear before a court within the meaning of section 3(1) of the Evidence (Miscellaneous Provisions) Act 1958 by audio visual link or audio link in accordance with Part IIA of that Act; or (b) a surety may give information to any other person authorised by section 27 by audio visual link or audio link within the meaning of section 42C of that Act. s. 10 -- 11 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 9 (3B) If an audio visual link or an audio link is used as provided in subsection (3A)— (a) the undertaking of bail may be constituted by— (i) the undertaking signed by the accused; and (ii) a copy of the undertaking signed by the accused which is transmitted to the surety by any means and signed by the surety; and (iii) a copy of the document referred to in subparagraph (ii) which is transmitted back to the court or other person authorised by section 27 who is admitting the accused to bail; (b) the affidavit of justification for bail may be constituted by— (i) the affidavit of the surety sworn before any person authorised by Part IV of the Evidence (Miscellaneous Provisions) Act 1958 to take affidavits; and (ii) a copy of that sworn affidavit which is transmitted to the court or other person authorised by section 27 who is admitting the accused to bail. (3C) The court or other person authorised by section 27 may act on a copy of a document which is transmitted in accordance with subsection (3B). s. 10 -- 12 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 10 (3D) A surety who under subsection (3B)— (a) signs a copy of an undertaking of bail; or (b) transmits a copy of a sworn affidavit of justification for bail— without delay must send the signed copy of the undertaking or the original sworn affidavit (as the case may be) to the court or other person authorised by section 27 who admitted the accused to bail.". (5) For section 9(7) of the Bail Act 1977 substitute— "(7) If a surety has lodged a document that is evidence of ownership of property or any other asset under subsection (3), the surety may lodge in cash the amount of the bail and receive the document in return. (7A) If a surety lodges cash under subsection (7), the affidavit of justification of bail made by the surety must be endorsed to the effect that the type of security has been changed.". 11 Court or bail justice to grant or refuse bail (1) In section 12(1) of the Bail Act 1977— (a) for "or to commit him to prison during an adjournment" substitute "in custody"; and (b) omit "or the case adjourned"; and (c) for "warrant of remand or the warrant of commitment (as the case may be)" substitute "remand warrant"; and (d) in paragraph (a) omit "special". s. 11 -- 13 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 11 (2) For section 12(1A) of the Bail Act 1977 substitute— "(1A) If a bail justice refuses bail to a person referred to in subsection (1), the bail justice must remand the person in custody to appear before a court— (a) on the next working day; or (b) if the next working day is not practicable, within 2 working days.". (3) In section 12(2) of the Bail Act 1977— (a) for "committed to prison to take his trial" substitute "committed for trial"; and (b) after "upon his trial" insert "or on a date before trial fixed by the magistrate"; and (c) for "warrant of commitment" substitute "remand warrant"; and (d) in paragraph (a) omit "special". 12 Conditions of bail Section 15 of the Bail Act 1977 is repealed. 13 Extension of bail In section 16(2) of the Bail Act 1977, for "commitment of the person charged to prison" substitute "remand of the person charged in custody". 14 New Part 3 heading inserted After section 17 of the Bail Act 1977 insert— "__________________ PART 3—FURTHER APPLICATION FOR BAIL, VARIATION OF BAIL CONDITIONS, REVOCATION OF BAIL". s. 12 -- 14 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 12 15 Section 18 substituted For section 18 of the Bail Act 1977 substitute— "18 Further application for bail where bail refused or revoked (1) An accused who has been refused bail and is in custody pending the hearing or trial of a charge may make a further application for bail. (2) A person whose bail has been revoked under section 18AE or 24(3) may make a further application for bail. (3) Subject to section 144(2)(c) of the Criminal Procedure Act 2009, an application under subsection (1) or (2) is to be made— (a) in the case of a person charged with treason or murder, to the Supreme Court or a judge of the Supreme Court; (b) in any other case, to the court to which the person is remanded to appear. 18AA Certain circumstances required before application may be heard (1) A court must not hear an application under section 18 unless— (a) the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail; or (b) the applicant was not represented by a legal practitioner when bail was refused or revoked; or (c) the order refusing or revoking bail was made by a bail justice. s. 15 -- 15 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 13 (2) Nothing in this section derogates from the right of a person in custody to apply to the Supreme Court for bail. 18AB Hearing and determination of further application for bail An application under section 18 must be conducted as a fresh hearing and determined in accordance with section 4. 18AC Application for variation of bail conditions (1) A person who has been granted bail, whether or not the person is in custody, may apply for variation of the amount of bail or the conditions of bail. (2) The informant or the Director of Public Prosecutions may apply for— (a) variation of the amount of bail or the conditions of bail; or (b) the imposition of conditions in respect of bail which has been granted unconditionally. (3) An application under subsection (1) or (2) is to be made— (a) in the case of a person charged with treason or murder, to the Supreme Court or a judge of the Supreme Court; (b) in any other case, to the court to which the person is required to surrender under his or her conditions of bail. (4) A person may apply for variation of the amount of bail or the conditions of bail if— (a) the person has been granted bail by a bail justice or the Magistrates' Court; and s. 15 -- 16 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 14 (b) within 24 hours after the grant of bail, the person is unable to meet the conditions of bail. (5) An application under subsection (4) is to be made to the bail justice who granted the bail or to the Magistrates' Court. 18AD Determination of application for variation of the amount of bail or bail conditions (1) On an application under section 18AC, the court or bail justice may vary the amount of bail or the conditions of bail if it appears to the court or bail justice that it is reasonable to do so having regard to all the circumstances including, if relevant— (a) the nature and seriousness of the offence; (b) the character, antecedents, associations, home environment and background of the accused; (c) the history of any previous grants of bail to the accused; (d) the strength of the evidence against the accused; (e) the attitude, if known, of the alleged victim of the offence to the proposed variation of the amount of bail or the conditions of bail. Note Section 5 provides for the imposing of conditions of bail. (2) In any other case, the court or bail justice must dismiss the application under section 18AC. s. 15 -- 17 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 15 18AE Application for revocation of bail (1) The informant or the Director of Public Prosecutions may apply for revocation of bail granted to a person. (2) An application under subsection (1) is to be made— (a) in the case of a person charged with treason or murder, to the Supreme Court or a judge of the Supreme Court; (b) in any other case, to the court to which the person is required to surrender under his or her conditions of bail. 18AF Determination of application for revocation of bail On an application under section 18AE, the court may either— (a) revoke bail; or (b) dismiss the application. 18AG Appeal against refusal to revoke bail The Director of Public Prosecutions may appeal to the Supreme Court in the same manner as is provided in section 18A against a refusal to revoke bail if the Director is satisfied that an appeal should be brought in the public interest. 18AH Preservation of the right of application or appeal to the Supreme Court or County Court (1) Nothing in section 18, 18AA, 18AC or 18AE derogates from any other right of application or appeal to the Supreme Court or the County Court. s. 15 -- 18 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 16 (2) Section 18AI applies to an application to the Supreme Court or the County Court made other than under this Act by an accused for an order to vary the amount of bail or a condition of bail. 18AI Notice of application for variation to be given to sureties (1) If an accused who has been admitted to bail with a surety or sureties applies for variation of the amount of bail or the conditions of bail, the accused must give written notice of the application to each surety. (2) Notice under subsection (1) must be— (a) in the prescribed form; and (b) given a reasonable time before the hearing of the application; and (c) given personally or by post or by causing the notice to be delivered at the place of residence of the surety shown in the affidavit of justification for bail. 18AJ Surety entitled to attend on application for variation (1) A surety for a person admitted to bail is entitled to attend and give evidence at the hearing of an application made by that person for variation of the amount of bail or the conditions of bail. (2) The court may adjourn the hearing of an application referred to in subsection (1) to enable a surety to attend.". s. 15 -- 19 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 17 16 New Part 4 heading inserted Before section 18A of the Bail Act 1977 insert— "__________________ PART 4—APPEALS". 17 Appeal by Director of Public Prosecutions against inadequacy of bail etc. (1) Insert the following heading to section 18A of the Bail Act 1977— "Appeal by Director of Public Prosecutions against insufficiency of bail etc.". (2) For section 18A(1) of the Bail Act 1977 substitute— "(1) If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if— (a) the Director is satisfied that— (i) the conditions of bail are insufficient; or (ii) the decision to grant bail contravenes this Act; and (b) the Director is satisfied that it is in the public interest to do so.". (3) For section 18A(6) of the Bail Act 1977 substitute— "(6) On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, s. 16 -- 20 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 18 conduct a fresh hearing in relation to the grant of bail to the respondent.". (4) In section 18A(8) of the Bail Act 1977 for "commit the respondent to prison" substitute "remand the respondent in custody". (5) In section 18A(9) of the Bail Act 1977 for "commit him to prison" substitute "remand him in custody". (6) After section 18A(11) of the Bail Act 1977 insert— "(12) The respondent or the Director of Public Prosecutions may appeal to the Court of Appeal from a decision of a single judge of the Supreme Court made under this section. Note Sections 18AG and 24(4) also provide for certain appeals.". 18 New Part 5 heading inserted After section 18A of the Bail Act 1977 insert— "__________________ PART 5—MISCELLANEOUS". 19 Arrest on another charge not to vacate bail (1) In section 19(2) of the Bail Act 1977 for "commit him to prison" substitute "remand him in custody". (2) In section 19(3) of the Bail Act 1977 for "committed to prison" substitute "remanded in custody". s. 18 -- 21 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 19 20 Section 21 substituted and section 22 repealed For sections 21 and 22 of the Bail Act 1977 substitute— "21 Abolition of right of a surety to apprehend a principal The common law right of a surety to apprehend the principal and to bring him or her before a bail justice or a court is abolished.". 21 Surety may apply for discharge In section 23(4) of the Bail Act 1977 for "commit him to prison" substitute "remand him in custody". 22 Arrest of person released on bail (1) In section 24(3)(a) of the Bail Act 1977— (a) for "commit the person to prison" substitute "remand the person in custody"; and (b) for subparagraph (ii) substitute— "(ii) if the direction is given by a bail justice, that the person be brought before the court to which the person was required to surrender in answer to his or her bail on the next working day or, if the next working day is not practicable, within 2 working days—". (2) For section 24(4) of the Bail Act 1977 substitute— "(4) The Director of Public Prosecutions may appeal to the Supreme Court in the same manner as is provided in section 18A against a refusal to revoke bail if the Director is satisfied that it is in the public interest to do so.". s. 20 -- 22 of 42 -- Part 2—Bail Act 1977 Bail Amendment Act 2010 No. 70 of 2010 20 (3) In section 24(5) of the Bail Act 1977 for "18(6B)" substitute "18". 23 Arrest where bail insufficient In section 26(1) of the Bail Act 1977, for "commit him to prison" substitute "remand him in custody". 24 Notice of trial In section 29(1) of the Bail Act 1977, for "sent by post or by telegram or cablegram" substitute "given". 25 Failure to answer bail In section 30(3) of the Bail Act 1977, for "sending by post or by telegram or cablegram" substitute "giving". 26 Transitional provisions After section 34(5) of the Bail Act 1977 insert— "(6) Subject to subsection (7), this Act as amended by a provision of Part 2 of the Bail Amendment Act 2010 applies only with respect to an application made, or an appeal commenced, or an admission to bail made, under this Act on or after the commencement of that provision of that Act. (7) Section 3A as inserted by section 5 of the Bail Amendment Act 2010 applies to a determination made under this Act on or after the commencement of section 5 of that Act, including the determination of a charge for an offence against section 30, irrespective of when the charge-sheet was filed.". __________________ s. 23 -- 23 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 21 PART 3—MAGISTRATES' COURT ACT 1989 27 Warrants to arrest (1) After section 64(4) of the Magistrates' Court Act 1989 insert— "(4A) If a person is brought before a bail justice or the Court in accordance with subsection (2)(a), the bail justice or the Court is not bound by the endorsement on the warrant when determining any matter in relation to bail.". (2) In section 64(5) of the Magistrates' Court Act 1989, for "and (4)" substitute ", (4) and (4A)". 28 Search warrants After section 78(4) of the Magistrates' Court Act 1989 insert— "(4A) If a person is brought before a bail justice or the Court in accordance with subsection (2)(a), the bail justice or the Court is not bound by the endorsement on the warrant when determining any matter in relation to bail.". 29 Section 120 substituted For section 120 of the Magistrates' Court Act 1989 substitute— "120 Definitions In this Division— bail justice, except in sections 120A, 120B, 120C, 120D,120G and 120H, includes an acting bail justice; s. 27 See: Act No. 51/1989. Reprint No. 15 as at 5 April 2010 and amending Act Nos 51/2006, 52/2008, 12/2010, 29/2010, 30/2010, 34/2010 and 40/2010. LawToday: www. legislation. vic.gov.au -- 24 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 22 code of conduct means the code of conduct prescribed by the regulations. 120A Appointment of bail justices (1) The Attorney-General, by instrument, may appoint as many bail justices as are necessary to perform the functions of bail justices under the Bail Act 1977 and the Children, Youth and Families Act 2005. (2) A person is not eligible for appointment as a bail justice unless— (a) the person is of or over the age of 18 years and under the age of 65 years; and (b) the person is an Australian citizen; and (c) the person is not a bankrupt; and (d) the property of the person is not subject to control under the law relating to bankruptcy; and (e) the person has completed a prescribed course of training for appointment to the satisfaction of the Attorney- General; and (f) the person is fluent in the English language; and (g) the person ordinarily resides in Victoria. (3) Subject to this Division, a bail justice appointed under this section holds office for a period of 5 years. (4) The Public Administration Act 2004 does not apply to a bail justice appointed under this section in respect of the office of bail justice. s. 29 -- 25 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 23 120B Application for appointment as bail justice (1) A person may apply to the Attorney-General for appointment as a bail justice. (2) An application must— (a) include the prescribed particulars; and (b) authorise the conduct of a police record check on the applicant; and (c) be verified by statutory declaration. 120C Re-appointment of bail justices (1) The Attorney-General, by instrument, may re-appoint a person as a bail justice. (2) A person is not eligible for re-appointment as a bail justice unless— (a) the person has completed a prescribed course of training for re-appointment to the satisfaction of the Attorney- General; and (b) during the immediately preceding period of appointment as a bail justice— (i) the person was reasonably available to be rostered for duty as a bail justice; and (ii) when rostered for duty as a bail justice, the person was reasonably available to perform that duty; and (c) the person is not a bankrupt; and (d) the property of the person is not subject to control under the law relating to bankruptcy; and s. 29 -- 26 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 24 (e) the person ordinarily resides in Victoria. (3) Subject to this Division, a bail justice re-appointed under this section holds office for a period of 5 years. (4) The Public Administration Act 2004 does not apply to a bail justice re-appointed under this section in respect of the office of bail justice. 120D Application for re-appointment as bail justice (1) A person may apply to the Attorney-General for re-appointment as a bail justice. (2) An application must— (a) include the prescribed particulars; and (b) authorise the conduct of a police record check on the applicant; and (c) be verified by statutory declaration. 120E Appointment of acting bail justices (1) The Attorney-General, by instrument, may appoint as many acting bail justices as are necessary to perform the functions of bail justices under the Bail Act 1977 and the Children, Youth and Families Act 2005. (2) A person is not eligible for appointment as an acting bail justice unless— (a) the person is of or over the age of 70 years and under the age of 75 years; and (b) immediately before appointment, the person was a bail justice for at least 5 years; and s. 29 -- 27 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 25 (c) during the immediately preceding period of appointment as a bail justice or acting bail justice— (i) the person was reasonably available to be rostered for duty as a bail justice; and (ii) when rostered for duty as a bail justice, the person was reasonably available to perform that duty; and (d) the person is not a bankrupt; and (e) the property of the person is not subject to control under the law relating to bankruptcy; and (f) the person ordinarily resides in Victoria. (3) Subject to this Division, an acting bail justice holds office for the period of 12 months from the date of his or her appointment. (4) An acting bail justice— (a) has the same powers and the same protection and immunity as a bail justice; and (b) is subject to the same requirements as to conduct as a bail justice. (5) An acting bail justice is eligible for re-appointment as an acting bail justice. (6) An acting bail justice may only be removed from office in the same manner and on the same grounds as a bail justice is liable to be removed from office. (7) The Public Administration Act 2004 does not apply to an acting bail justice in respect of the office of acting bail justice. s. 29 -- 28 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 26 120F Application for appointment or re-appointment as acting bail justice (1) A person may apply to the Attorney-General for appointment or re-appointment as an acting bail justice. (2) An application must— (a) include the prescribed particulars; and (b) authorise the conduct of a police record check on the applicant; and (c) be verified by statutory declaration. 120G Resignation (1) A bail justice appointed under section 120A or re-appointed under section 120C may resign his or her office as bail justice by delivering to the Attorney-General a signed letter of resignation. (2) An acting bail justice appointed under section 120E may resign his or her office as acting bail justice by delivering to the Attorney-General a signed letter of resignation. 120H Oath of office Every person who is appointed or re-appointed as a bail justice or acting bail justice must, before so acting, take an oath of office in the prescribed form and manner. 120I Judge or magistrate may exercise power of bail justice A judge of the Supreme Court, a judge of the County Court or a magistrate may exercise any power conferred on a bail justice by or under any Act.". s. 29 -- 29 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 27 30 Certain office-holders to be bail justices Before section 121(3)(a) of the Magistrates' Court Act 1989 insert— "(aa) before acting as a bail justice, must complete a prescribed course of training to the satisfaction of the Attorney-General; and". 31 Section 122 substituted For section 122 of the Magistrates' Court Act 1989 substitute— "122 Suspension from office (1) In this section— bail justice means a bail justice appointed under section 120A, 120C or 120E. (2) The Secretary may suspend a bail justice from office if the Secretary believes that— (a) the bail justice has contravened the code of conduct; or (b) the bail justice has unreasonably failed to comply with a direction given to the bail justice under section 124AA(1); or (c) there may otherwise be grounds for removal of the bail justice from office. (3) As soon as practicable after the Secretary suspends a bail justice from office, the Secretary may either— (a) direct the bail justice to do one or more of the following— (i) undertake specified training; (ii) complete a prescribed course of training for re-appointment; (iii) attend counselling with a person nominated by the Secretary; or s. 30 -- 30 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 28 (b) nominate a person for appointment under section 122A to undertake an investigation into the bail justice's conduct. (4) If the Secretary makes a direction under subsection (3)(a) and the bail justice complies with the direction to the satisfaction of the Secretary, the Secretary must lift the suspension. (5) If the Secretary makes a direction under subsection (3)(a) and the bail justice unreasonably fails to comply with the direction, the Secretary may nominate a person under subsection (3)(b). 122A Investigation of bail justice (1) As soon as practicable after the Secretary suspends a bail justice from office under section 122 and nominates a person to undertake an investigation into the bail justice's conduct, the Attorney-General must appoint the person nominated by the Secretary to undertake the investigation. (2) A person appointed under subsection (1) must— (a) investigate the bail justice's conduct; and (b) report to the Attorney-General on the investigation; and (c) give a copy of the report to the bail justice and the Secretary. (3) A report under subsection (2)(b) may include a recommendation that the bail justice be removed from office. s. 31 -- 31 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 29 (4) After receiving a report under subsection (2)(b) recommending removal, the Attorney- General, after consulting the Secretary, may recommend to the Governor in Council that the bail justice be removed from office. (5) The person who conducted the investigation and the Attorney-General may only recommend that a bail justice be removed on the ground of proved misbehaviour, incapacity or dereliction of duty. (6) The Attorney-General must not make a recommendation under subsection (4) unless the bail justice has been given a reasonable opportunity to make written and oral submissions to the person who conducted the investigation and the Secretary. (7) In making a recommendation under subsection (4), the Attorney-General is entitled to rely on any findings contained in the report under subsection (2). (8) If the Attorney-General decides not to make a recommendation under subsection (4)— (a) the Attorney-General must inform the Secretary as soon as practicable after receiving the report under subsection (2)(b); and (b) the Secretary must lift the suspension. 122B Removal of bail justice from office The Governor in Council may remove a bail justice from office on the recommendation of the Attorney-General under section 122A but not otherwise.". s. 31 -- 32 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 30 32 Vacation of office In section 123 of the Magistrates' Court Act 1989— (a) for paragraph (a) substitute— "(a) attains the age of 70 years or, in the case of an acting bail justice, 75 years; or (ab) becomes a bankrupt or the property of the person becomes subject to control under the law relating to bankruptcy; or"; (b) in paragraph (b), for "section 122" substitute "section 122B". 33 New sections 124AA and 124AB inserted In Part 6 of the Magistrates' Court Act 1989, after section 124 insert— "124AA Professional development and training (1) The Secretary may direct— (a) all bail justices; or (b) a specified class of bail justices; or (c) a specified bail justice— to participate in a specified professional development or continuing education and training activity. (2) A direction under subsection (1) may be given orally or in writing. (3) A bail justice must comply with a reasonable direction under subsection (1) that is given to him or her. s. 32 -- 33 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 31 124AB Guidelines (1) The Secretary may make guidelines for or with respect to— (a) the process for applications for appointment as a bail justice; (b) the processes and administration of bail justices; (c) the handling of complaints about bail justices. (2) The Secretary may from time to time amend or revoke any guidelines made under subsection (1). (3) As soon as practicable after making, amending or revoking guidelines under this section, the Secretary must give to each bail justice— (a) a copy of the guidelines or the amendment; or (b) notice of the revocation of the guidelines. (4) The guidelines, or an amendment or revocation of the guidelines, take effect on the date that is specified in the guidelines, amendment or revocation (as the case requires).". 34 Regulations (1) After section 140(1)(h) of the Magistrates' Court Act 1989 insert— "(i) prescribing a code of conduct for bail justices and acting bail justices; and s. 34 -- 34 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 32 (j) prescribing training courses for appointment as a bail justice and training courses for re- appointment as a bail justice for the purposes of Division 2 of Part 6; and (k) prescribing training courses for the purposes of section 121(3)(aa); and (l) prescribing particulars to be included in applications under Division 2 of Part 6; and (la) prescribing the form of an oath of office as a bail justice or an acting bail justice and the manner of taking that oath; and". (2) In section 140(3)(c) of the Magistrates' Court Act 1989, for "application." substitute "application; and". (3) After section 140(3)(c) of the Magistrates' Court Act 1989 insert— "(d) so as to differ according to differences in time, place or circumstances; and (e) so as to require matters affected by the regulations to be— (i) in accordance with specified standards or specified requirements; or (ii) approved by or to the satisfaction of a specified person or body or a specified class of persons or bodies; or (iii) as specified in both subparagraphs (i) and (ii); and (f) so as to leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person.". s. 34 -- 35 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 33 35 Schedule 8 amended At the end of Schedule 8 to the Magistrates' Court Act 1989 insert— "46 Transitional provisions—Bail Amendment Act 2010 (1) On the commencement of section 29 of the Bail Amendment Act 2010, a bail justice holding office immediately before that commencement (other than a bail justice referred to in section 121 of this Act) is deemed to be a bail justice appointed under section 120A of this Act whose term of office expires— (a) in the case of a bail justice appointed before 1 January 1991, 1 year after the commencement of section 29 of that Act or on the bail justice attaining the age of 70 years, whichever first occurs; (b) in the case of a bail justice appointed on or after 1 January 1991 and before 1 January 2000, 2 years after the commencement of section 29 of that Act or on the bail justice attaining the age of 70 years, whichever first occurs; (c) in the case of a bail justice appointed on or after 1 January 2000 and before the commencement of section 29 of that Act, 3 years after the commencement of section 29 of that Act or on the bail justice attaining the age of 70 years, whichever first occurs. s. 35 -- 36 of 42 -- Part 3—Magistrates' Court Act 1989 Bail Amendment Act 2010 No. 70 of 2010 34 (2) On the commencement of section 29 of the Bail Amendment Act 2010— (a) an application for appointment as a bail justice that has been made but not determined before that commencement is to be taken to be an application made under section 120B of this Act; and (b) the applicant's completion before that commencement of the whole or part of a course of training that is subsequently prescribed for the purposes of section 120A(2)(e) may be relied on for the purposes of the application. (3) Section 121 as amended by section 30 of the Bail Amendment Act 2010 applies to a person who commences to hold a prescribed office within the meaning of section 121 on or after the commencement of section 30 of that Act. (4) Section 122 as in force immediately before the commencement of section 31 of the Bail Amendment Act 2010 continues to apply to any proceeding under section 122 existing immediately before the commencement of section 31 of that Act.". __________________ s. 35 -- 37 of 42 -- Part 4—Consequential Amendments Bail Amendment Act 2010 No. 70 of 2010 35 PART 4—CONSEQUENTIAL AMENDMENTS 36 Criminal Procedure Act 2009 In section 333(1)(d)(i) of the Criminal Procedure Act 2009 omit "special". 37 Crown Proceedings Act 1958 In section 6(1A) of the Crown Proceedings Act 1958— (a) omit "or lodged by way of security a pass- book, stock card or other document for operating an account"; and (b) omit "or that the amount of the bail be withdrawn from the account (as the case may be)". See: Act No. 7/2009. Reprint No. 1 as at 1 January 2010 and amending Act Nos 7/2009, 13/2009, 6/2010, 30/2010 and 34/2010. LawToday: www. legislation. vic.gov.au s. 36 See: Act No.6232. Reprint No. 4 as at 24 September 1998 and amending Act Nos 74/2000, 18/2005 and 68/2009. LawToday: www. legislation. vic.gov.au -- 38 of 42 -- Part 4—Consequential Amendments Bail Amendment Act 2010 No. 70 of 2010 36 38 Family Violence Protection Act 2008 In section 52(2)(b)(i) of the Family Violence Protection Act 2008 omit "special". 39 Interpretation of Legislation Act 1984 In section 38 of the Interpretation of Legislation Act 1984 in the definition of bail justice— (a) in paragraph (a), for "section 120" substitute "section 120A or 120C"; and (b) after paragraph (a) insert— "(ab) acting bail justice appointed under section 120E of the Magistrates' Court Act 1989; or". 40 Stalking Intervention Orders Act 2008 In section 48(2)(b)(i) of the Stalking Intervention Orders Act 2008 omit "special". See: Act No. 52/2008 and amending Act Nos 52/2008, 51/2009, 55/2009, 68/2009, 69/2009, 7/2010, 18/2010 and 30/2010. LawToday: www. legislation. vic.gov.au s. 38 See: Act No. 10096. Reprint No. 10 as at 20 May 2010 and amending Act Nos 10/2010, 11/2010 and 13/2010. LawToday: www. legislation. vic.gov.au See: Act No. 68/2008 and amending Act Nos 55/2009, 69/2009, 18/2010 and 30/2010. LawToday: www. legislation. vic.gov.au -- 39 of 42 -- Part 4—Consequential Amendments Bail Amendment Act 2010 No. 70 of 2010 37 41 Victims' Charter Act 2006 In section 10(1)(b) of the Victims' Charter Act 2006 omit "special". __________________ See: Act No. 65/2006 and amending Act Nos 21/2008, 52/2008, 68/2009 and 91/2009. LawToday: www. legislation. vic.gov.au s. 41 -- 40 of 42 -- Part 5—Repeal of Amending Act Bail Amendment Act 2010 No. 70 of 2010 38 PART 5—REPEAL OF AMENDING ACT 42 Repeal of amending Act This Act is repealed on 1 January 2012. 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). ═══════════════ s. 42 -- 41 of 42 -- Bail Amendment Act 2010 No. 70 of 2010 39 ENDNOTES † Minister's second reading speech— Legislative Assembly: 29 July 2010 Legislative Council: 2 September 2010 The long title for the Bill for this Act was "A Bill for an Act to amend the Bail Act 1977 and the Magistrates' Court Act 1989 and for other purposes." Endnotes -- 42 of 42 --