BAIL AMENDMENT (REPEAT OFFENDERS) BILL (No. 2) 2005
SERIAL NO. 6

EXPLANATORY STATEMENT

GENERAL OUTLINE

The purpose of the Bail Amendment (Repeat Offenders) Bill 2005 (“the Bill”) is to give effect to the Government’s commitment to safer communities by removing the entitlement to bail for adult persons with a history of serious offending.  The Bill achieves this by removing the presumption in favour of bail where persons with a particular criminal history of serious offending are charged with committing a further serious offence whilst already on bail for a serious offence.  A presumption against bail will exist for persons in similar circumstances of prior offending who are charged with committing a serious violence offence whilst on bail for a serious offence or a serious violence offence.  The Bill also provides for a stay of the grant of bail for up to 3 business days where a court is immediately informed that a request for review of the decision to grant bail is to be made to the Supreme Court. 

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 (Repeat Offenders) Act 2005

Clause 2	Principal Act amended

	Clause 2 of the Bill clarifies that the Act amends the Bail Act (“the Act”).

Clause 3	Amendment of section 3 (Interpretation)

	Clause 3 of the Bill inserts into the interpretation section of the Act a definition of the following:

·	“Adult”, which means a person at least 18 years of age.
·	“serious offence”, which means an offence punishable by imprisonment for 5 or more years, and
·	“serious violence offence” which means an offence against any of the following provisions of the Criminal Code, that is punishable by imprisonment for 5 or more years. or any provision prescribed by the Regulations:
	Part V, Division 2
	Part VI, Divisions 3 to 6 A;
	Section 211 or 212;
These provisions cover acts injurious to the public, offences against the person, robbery and assault with intent to steal 
As a result of these definitions, offences that are “serious violence offences” are where the context permits, also included as a category of ‘serious offence[s]”.
Clause 4 	Amendment of section 7A (Presumption against bail for certain offences)
	Section 7A of the Act currently identifies certain offences in respect of which there is a presumption against bail.  A person is to be refused bail on one of these offences unless he or she can satisfy the Court that bail should not be refused.  This is a heavy onus to discharge and one not usually overcome because the applicant must point to special matters that show that bail should be allowed; the ordinary factors will not be enough.  The current offences are murder, treason, an offence against the Misuse of Drugs Act punishable by a term of imprisonment for more than seven years, and certain Commonwealth offences relating to narcotics.  This clause in the Bill enlarges the existing list of offences for which there is a presumption against bail by adding a provision that deals with reoffending whilst on bail.  There is to be a presumption against bail for a “serious violence” offence if the person accused of the serious violence offence has been charged with committing that offence while on bail for a serious offence and also has, within a specified period, been found guilty of a serious offence.  If the prior offending was for a serious violence offence then the period is 10 years immediately prior to the date of the offence alleged to have been committed whilst on bail, or 2 years in the case of a serious offence.  This clause has a proviso that either the offence for which the accused is currently on bail or the prior offending offence or both of them must be a serious violence offence.  This proviso ensures that the provision is aimed at persons with a pattern of repeat violence offences and not just repeat offending.
	Murder is excluded in the provision because there is already a presumption against murder without any repeat offending pattern.
	Clause 4(2) preserves the ability of the court to grant bail to an accused where that person has been assessed as suitable to participate in a prescribed offender rehabilitation programme.  

Clause 5 	Amendment of section 8 (Presumption in favour of bail for certain offences)
	A person is presumed to be entitled to a grant of bail in respect of all offences with certain existing exclusions.  These include section 181 of the Criminal Code, causing grievous harm, section 192 of the Criminal Code, sexual intercourse without consent and section 10 of the Domestic Violence Act, failure to comply with a restraining order.  The presumption in favour of bail is excluded for these offence where the accused has been found guilty in the preceding ten years of murder, or an offence against section 181, 186 (bodily harm), 188 (assault) or 192 of the Criminal Code, or an offence against a law of a State or another Territory of the Commonwealth which is similar to those offences, or where the accused is on a suspended sentence unless the alleged offence is so minor that it is unlikely to be regarded as a breach. 
	This clause of the Bill expands these exceptions to a presumption in favour of bail to include another example of repeat offending.  Where a person is charged with a serious offence alleged to have been committed while already on bail for a serious offence, and has, within the 2 years immediately preceding the date of the serious offence allegedly committed whilst on bail, has been found guilty of a serious offence, or in the previous 10 years been found guilty of a serious violence offence the presumption in favour of bail is removed.
	The combinations of serious offences and serious violence offences available under the new provisions mean that in some cases the combination available under the “neutral” presumption provision could consist of two or more serious violence offences.  Clause 5(5) makes it clear that where there is a combination of serious offending which includes two serious violence offences, one of which is the offence charged whilst the accused is on bail, the matter must be dealt with under 7A as a presumption against bail.  This is to ensure that the presumption against bail applies to repeat serious violence offenders.  

Clause 6	Amendment of section 36 (Provisions relating to review of bail decisions)
	Clause 6 amends section 36(1) to make appropriate reference to the new section 36A.

Clause 7	New section 36A
Clause 7 inserts a new provision allowing for a stay of a decision to grant bail.  This clause provides for a police officer or legal practitioner appearing for the Crown to, upon a magistrate or justice deciding to release an accused person on bail, advise the court that a request for review is to be made to the Supreme Court.  The decision of the court is then immediately stayed and the person is not bailed while the stay of decision has effect.  The stay is effective for a maximum of 3 business days after the decision is made, but there is a requirement that the review be dealt with as expeditiously as possible and, as the review is by way of rehearing, the Court has been given a discretion to order an extension of the maximum 3 days stay period where it considers that to be appropriate, for example, to obtain reports relevant to the question of bail.  The court may order an extension more than once. The extension of a stay period is determined by the court.  There is no provision for a party to the proceedings to apply for an extension of the stay period.

Clause 8	Amendment of section 37 (Right of accused to apply for bail)
	Clause 8 makes a minor amendment to section 37 to take section 36A into account.

Clause 9	New Part IX Transitional Matters for Bail Amendment (Repeat Offenders) Act 2005
	Clause 9 inserts a new part after section 53 ––Application of sections 7A and 8 and section 36A to pre-commencement offences, to clarify that these sections as amended by this Act apply in relation to the granting of bail to accused persons for offences committed before the commencement of the Act.