2014
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
BAIL AMENDMENT BILL 2014 
SERIAL NO. 105

EXPLANATORY STATEMENT
GENERAL OUTLINE
The purpose of the Bill is to ensure the Bail Act is concise and meets the expectations of the community where serious offences are allegedly committed and where recidivist offenders are charged with committing serious offences or with offences relating to the breaching of court orders.  
The Bill makes a number of additions to the matters that will be subject to the presumption against bail in section 7A(1) of the Bail Act and will ensure that persons charged with breaching a domestic violence order are subject to a presumption against bail in certain circumstances. 
This Bill omits the matters subject to the ‘neutral’ presumption at section 8(1)(aa), (ab) and (b) of the Bail Act and includes additional matters, relevant to the interests of the person charged, that the court or authorised officer may take into account when considering granting of bail to the person under section 24(1)(b).
The Bill also clarifies the operation of the revocation of bail provisions at section 38 of the Bail Act, the offences at sections 44 and 45 have been redrafted according to Part IIAA of the Criminal Code, superfluous references in the Act have been removed and references to Parts have been updated by removing the roman numeral reference.
NOTES ON CLAUSES

Clause 1.	Short title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Bail Amendment Act 2014.

Clause 2.	Commencement

This Act will commence on a day fixed by the Administrator by Gazette notice.

Clause 3.	Act amended

This Act will amend the Bail Act.

Clause 4.	Section 3 amended

This clause amends the references to Parts contained within the definitions of ‘authorised member’ and ‘original offence’.

Clause 5.	Section 5A inserted

This clause inserts the new section 5A and notes that Part IIAA of the Criminal Code applies to an offence against this Act. 

This section is required as all offences in the Bail Act, after the commencement of this Bill, will be subject to Part IIAA of the Criminal Code. 

As a result of this amendment, the Part IIAA reference at section 37B(4) will be removed (clause 12 refers).

Clause 6.	Section 6 amended

This clause omits section 6(ca) of the Bail Act. 

Section 6(ca) refers to section 357 of the Criminal Code and section 357 was repealed in 2002.  Therefore, section 6(ca) is obsolete and should be omitted. 

Clause 7.	Section 7A amended

Clause 7 makes a number of amendments to section 7A of the Bail Act. 

Section 7A(1) contains the matters to which there is a presumption against bail and section 7A(2) contains a definition of what the legal test for the presumption against bail is.

Clause 7(1) omits section 7A(1)(b) which refers to the offence of treason.  Treason is not an offence in the NT and the reference should be removed.

Clause 7(2) amends section 7A(1)(c) by removing the words ‘more than seven years’ and inserting the words ‘7 years or more’.  The amendment is necessary as the current wording is inconsistent with the mandatory sentencing provisions in section 37(2) of the Misuse of Drugs Act and the current wording excludes serious drugs offences from the presumption against bail, for example possessing a traffickable quantity of a Schedule 1 dangerous drug such as methamphetamine.  The amendment will ensure that matters which automatically attract the mandatory sentencing provisions of section 37(2)(a) of the Misuse of Drugs Act also attract a presumption against bail under the Bail Act.

Clause 7(3) omits section 7A(1)(dc) and 7A(1)(e) and incorporates a number of new matters into the presumption against bail as follows:

·	section 7A(1)(e) is omitted as all matters subject to this paragraph will now be captured by section 7A(1)(df);

·	current section 7A(1)(dc) is omitted and a new section 7A(1)(dc) is inserted.  The new provision inserts three new matters under the Criminal Code, section 54 – terrorism, section 242 – sabotage and section 243(1) – arson.  These offences carry life imprisonment and have the potential to damage public infrastructure, cause widespread injury or death and arouse fear within the community.  The current reference to section 103A of the Criminal Code (threats or reprisals relating to persons involved in criminal investigations or judicial proceedings or against public officers) has been retained;

·	new section 7A(1)(dd) is inserted.  This new paragraph is substantially similar to current section 8(1)(aa) of the current Act and notes that there is a presumption against bail where a person is charged with causing serious harm (section 181 of the Criminal Code) or breaching a domestic violence order (section 120 of the 
Domestic and Family Violence Act) and the person has a prior finding of guilt for murder, serious harm, assault on a worker, assault on police, sexual intercourse or gross indecency without consent.  This provision creates a presumption against bail for recidivist offenders who have a prior finding of guilt for offences involving serious violence or assaults on prescribed persons;

·	new section 7A(1)(de) is inserted.  This new paragraph is substantially similar to section 8(1)(ab)(i) of the current Act and creates a presumption against bail where a person is an adult charged with committing a serious offence whilst on bail for another serious offence; 

·	new section 7A(1)(df) is inserted.  This new paragraph is substantially similar to section 8(1)(ab)(ii) of the current Act and incorporates the timeframe that is currently prescribed at section 8(1A)(a).  This provision creates a presumption against bail where a person is charged with a serious offence and has, within a period of 10 years, been found guilty of a serious violence offence;

·	new section 7A(1)(dg) is inserted.  This new paragraph is substantially similar to section 8(1)(b) of the current Act and creates a presumption against bail where a person is subject to a suspended sentence of imprisonment under section 40 of the Sentencing Act and is charged with an offence that may breach that sentence, if the person is convicted of that offence.  The new provision contains an exemption provision where the breach is of an administrative character or where the authorised member or court is of the view that the offence is minor and is unlikely to be regarded as a breach of the suspended sentence; and

·	new section 7A(1)(dh) is inserted.  This new paragraph creates a presumption against bail where a person is charged with breaching a domestic violence order under section 120 of the Domestic and Family Violence Act and has, within a period of 2 years, been found guilty of a DVO contravention offence.  A DVO contravention offence is defined as an offence against section 120(1) of the Domestic and Family Violence Act of breaching a domestic violence order, an offence of contravening a restraining order under the repealed Domestic Violence Act or an offence of contravening an external order (being an order in the nature of a DVO made under a corresponding law).  This new provision creates a presumption against bail for people who breach a domestic violence order and have a prior finding of guilt for a DVO contravention offence within a prescribed period.

Clause 7(4) omits section 7A(2) and a new section 7A(2) is inserted.  The new subsection states that ‘bail must not be granted to a person accused of an offence to which this section applies unless the person satisfies an authorized member or court that bail should be granted’.  
A note has also been inserted which states that section 24 requires the authorised member or court determining whether bail should be granted to take into consideration the matters in that section only.  This amendment is necessary as the current wording of section 7A(2) has led to courts interpreting the provision in an inconsistent manner and the wording needs to be clarified.

Clause 7(5) inserts a new subsection (4).  This new subsection contains the definitions of ‘DVO contravention offence’, ‘previous offence’ and ‘sentencing order’.

Clause 8.	Section 8 amended

Clause 8(1) omits section 8(1) and 8(1A).  As a result, sections 8(1)(aa), (ab) and (b) are omitted. 

A new section 8(1) is inserted which states that section 8 applies to an offence, except an offence to which section 7A applies.  This new subsection effectively means that there is a presumption for bail for all matters, except those specified in section 7A.

Clause 8(2) amends section 8(4)(a) so the subsection contains gender neutral wording.

Clause 8(3) omits section 8(5) as it relates to clauses that have been omitted, specifically section 8(1)(a), (aa), (ab) and (b).

Clause 9.	Section 11 amended

Clause 9 makes a minor drafting amendment to update the reference to Part VI in section11 to Part 6.

Clause 10.	Section 18 amended

Clause 10 makes a minor drafting amendment update the reference to Part V in section 18 to Part 5.

Clause 11.	Section 24 amended

Clause 11 inserts four matters into section 24(1)(b) of the Bail Act.  Section 24(1)(b) relates to matters in the interests of the person that an authorised officer or court may take into account when considering whether to grant bail.

The four matters inserted are cognitive impairment, mental impairment, youth and cultural background.  These matters have been included to ensure the authorised officer or court can take into account relevant matters that pertain to the applicant for bail and ensure there is as little conflict as possible between the Bail Act and the Youth Justice Act. 

Clause 11(2) includes a note which states that section 24(1)(b)(iiic) – cultural background, must be interpreted with reference to section 15AB(1)(b) of the Crimes Act 1914 (Cth).  This section of the Commonwealth Act states that cultural practice or customary law cannot be taken into account, in bail hearings, if it relates to certain matters, for example excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

Clause 11(3) inserts new subsection (3A) into section 24 of the Bail Act.  Section 24(3A) notes that when assessing the potential risks to other persons when considering a bail undertaking, the authorised member or court must consider the previous, current or proposed living arrangements, for both the alleged victim and the accused person, and whether the arrangements include their living in unreasonably close proximity to each other.

Clause 12.	Section 37B amended

Clause 12 omits section 37B(4).  Given clause 5 of the Bill, section 37B(4) is redundant.

Clause 13.	Section 38 amended

Clause 13 amends section 38(2A)(a) by inserting the words ‘or an offence to which section 7A applies’.  Section 38(2A) relates to circumstances where a court, if satisfied that a breach of a condition of bail has occurred, must revoke bail and is currently limited to serious violence offences to which section 7A applies (noting not all serious violence offences are subject to section 7A).

This amendment ensures that a court must revoke bail where they find a person has breached a condition of bail and the grant of bail related to a serious violence offence ‘or an offence to which section 7A applies’.  A court still maintains the discretion to subsequently grant bail to a person under section 38(3), however they must revoke the original undertaking if section 38(2A) is applicable.

Clause 14.	Section 42 amended

Clause 14 makes a minor drafting amendment to update the reference to Part VI in section 42(3) to Part 6.

Clause 15.	Sections 44 and 45 replaced

The offence provisions at sections 44 and 45 of the Bail Act have been redrafted so they are consistent with the criminal responsibility elements of Part IIAA of the Criminal Code.  The penalties have also been amended so they are consistent with the current penalty policy in the NT.

Clause 16.	Part 9 heading replaced

Clause 16 amends the heading of Part 9 so that it refers generally to ‘Transitional matters’ and inserts new Division 1.

Clause 17.	Part 9, Division 2 inserted

Clause 17 contains the transitional provisions and relevant definitions relating to the Bail Amendment Act 2014.

The transitional provisions at section 56 relate to the operation of sections 7A, 8 and 24 and provide that the Amendment Act only relates to the granting of bail to an accused for an offence where the charge for that offence is filed after commencement.

The transitional provisions at section 57 relate to the amendment at section 38 and provide that the Amendment Act applies to the revocation of bail for an offence, only if the charge for that offence was filed after commencement.

The transitional provisions at section 58 relate to the amendments to the offence provisions and state that the Amendment Act only applies to offences where the offences were alleged to have taken place, in their entirety, after commencement.

Clause 18.	Expiry of Act

Clause 18 provides that the Act expires the day after it commences.