Sunday, 1 August 2010

Legislation Watch: the Bail Amendment Bill 2010

The new Bail Bill has arrived.

It's not a whole new Act, but a revamp of the existing one. Once passed, it will commence on 1 January 2011 unless proclaimed earlier. The Bail Amendment Bill 2010 is partially based on the recommendations of the VLRC's Final Report released in 2007. That report had 157 recommendation for change. This amending legislation addresses 40 of them. The remaining recommendations are still being considered.

The Explanatory Memorandum can be read here. The Second Reading Speech is here, and the Statement of Compatibility here.

So what's going to change with the Bail Act 1977 and what will stay the same for now?

'Show Cause' and 'Unacceptable Risk'?

The two primary tests that can lead to a refusal of bail in the summary jurisdiction remain as they are for now. Watch this space - a discussion of the proposed changes is in the works and will be posted soon.

Bail conditions

The distinction between general and special conditions is to be abolished. The amendments expressly provide that bail conditions may only be imposed when necessary, and only to reduce the likelihood that the accused will:

fail to attend court

commit an offence while on bail

endanger the safety or welfare of members of the public

interfere with witnesses or otherwise obstruct the course of justice.

If requiring a deposit the court must have regard to the accused's ability to pay.


The court, when considering a surety, must also consider the ability of the surety to pay. The amendments create a new procedure for objection to a surety. Where an objection is raised the suitability of the surety is to be determined by a magistrate or judge. The provision is deliberately silent on who may raise the objection in order to allow objections to be raised by anyone involved in the proceeding — including the registrar, the police informant or prosecutor or the court.

The power of arrest for sureties is to be abolished, in recognition of the fact that this power is never used and this function would be better performed by the police.

Further bail applications, revocation applications and variation applications

A subsequent application from the refusal of bail by a bail justice has been made easier under the amendments. There are no other substantive changes to the operation of s 18.

Charter of Human Rights

The amendments insert reference to the Charter of Human Rights and Responsibilities Act 2006 and specific references to 7(2), 12, 21, 23 and 25.

Bail justices

The bill establishes five year fixed terms for bail justices, with the ability for re-appointment. The Secretary of the Department of Justice is granted new powers to train, supervise and monitor bail justices in the performance of their duties.

Debate will continue on 12 August.

1 comment:

Bookman said...

There are Fact Sheets explaining the amendments on the DoJ's website-