2011

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

                                      				SERIAL NO. 150

EXPLANATORY STATEMENT

BAIL AMENDMENT BILL 2011

GENERAL OUTLINE

This Bill amends the Bail Act.  

The purpose of the Bill is to create an offence of breach of bail, which can be committed by breach of a bail undertaking or breach of a condition of bail.  It is a simple offence, with a maximum penalty of two years imprisonment or 200 penalty units.  However, the Bill also confers jurisdiction on the Supreme Court to deal with offences of breach of bail where the defendant on bail had been bound to appear in the 
Supreme Court or the Court of Criminal Appeal.

NOTES ON CLAUSES

Clause 1.	Short Title

This is a formal clause that provides for the citation of the Bill.  The Bill, when passed, may be cited as the Bail Amendment Act 2011.

Clause 2.	Commencement

The Act will commence on the date fixed by the Administrator by Gazette notice.

Clause 3.	Act amended

This clause provides that the Act amended is the Bail Act.

Clause 4.	Section 3 amended

This clause inserts definitions of ‘bail offence’ and ‘original offence’ into section 3 of the Bail Act, which is the general definition section.  These new definitions will apply to Part VII of the Bail Act, which deals with 
non-compliance with a bail undertaking or conditions.  

Clause 5.		Sections 37A to 37D inserted

This clause inserts new sections into the Bail Act, which create the offence of breach of bail in proposed section 37B and, in proposed sections 37C and 37D, the procedures for hearing proceedings for this offence.

Proposed section 37A is the definition section for Part VII.  The definitions of ‘bail offence’ and ‘original offence’, which are used in this Part, are found in the general definition section of the Bail Act, namely section 3.  These definitions provide narrative clarity for proposed sections 37B, 37C and 37D, ensuring there is no confusion between an offence under section 37B (the ‘bail offence’) and the offence for which the defendant has been granted bail (the ‘original offence’).

Proposed section 37B creates the offence of breach of bail 
(the ‘bail offence’).  A person can commit a bail offence by breaching his or her bail undertaking (that is, by failing to appear in the court to which he or she is bound to appear) or by breaching a condition of bail.  
Section 27 of the Bail Act deals with the sorts of conditions that can be attached to bail.  Relevant to proposed section 37B, these include conditions regarding conduct such as being or good behaviour or abiding by a curfew.

A bail offence is a simple offence with a maximum penalty of two years imprisonment or 200 penalty units.  However, the penalty imposed cannot be more than the maximum penalty for the original offence.  A defendant will not be criminally responsible for a bail offence if he or she establishes (on balance of probabilities) a reasonable excuse. 

The criminal responsibility provisions of Part IIAA of the Criminal Code apply to an offence under proposed section 37B.  The criminal responsibility provision in Part II of the Criminal Code continue to apply to other offences under the Bail Act.

Proposed sections 37C and 37D provide the procedure for dealing with the prosecution of offences under section 37B.  Proposed section 37C provides that proceedings for an offence under proposed section 37B may be commenced at any time.  This reflects the existing regime for the laying of charges for indictable matters and overrides the limitation period for laying complaints in section 52 of the Justices Act.

Proposed section 37C also sets out which court is to deal with bail offences.  If the defendant is bound to appear in the Supreme Court or the Court of Criminal Appeal, the Supreme Court is to deal with bail offences.  Otherwise the court to which the defendant is bound to appear will deal with the bail offence.  For example, if the defendant is bound to appear in the Court of Summary Jurisdiction that court will deal with the bail offence.

Proposed section 37D confers a summary jurisdiction on the 
Supreme Court to deal with a bail offence.  This provision is necessary as, in the absence of specific statutory conferral, the Supreme Court does not have jurisdiction to hear and determine a simple offence.  Proposed section 37D further sets out:
·	who may commence proceedings in the Supreme Court for a bail offence (police or the complainant in the original offence); 
·	that the Director of Public Prosecutions is to conduct the proceedings;
·	that the Supreme Court must not order costs or fees to be paid; and
·	that in all other respects proceedings are to be commenced and conducted as if they were summary proceedings under the Justices Act.