The latest raft of bail amendments have effect from 24 March 2024.
Changes to the Bail Act 1977 under the Bail Amendment Act 2023 and Bail Amendment Regulations 2024 include:
Second bail application now permitted
The amendments allow an accused person to make a second legally-represented bail application before a court without having to establish new facts or circumstances. This addresses the issue of lawyers being reluctant to represent an accused person on a bail application at the first possible opportunity because of the concern it will exclude them from making a better-prepared application a bit later, which has contributed to a high number of short-duration remands.
Changes of terminology and defined terms
These bail amendments include changes in terminology:
- from surety and persons offering a surety, to bail guarantee and bail guarantors; and
- from undertaking to bail undertaking, which accords with a slight amendment to the definition of an undertaking in s 3, so that it means a bail undertaking given under s 5(1) to surrender into custody at the time and place specified for the next appearance, rather than undertaking more generally under s 5 or otherwise.
Refinements to the unacceptable risk test
Under the current test, a person can be remanded in custody if there is a perceived risk of even minor reoffending. To address this, the amendments refine the unacceptable risk test so that an accused person cannot be refused bail on specified minor offences unless they have a terrorism record and have previously had their bail for the same offences revoked. The offences to which this provision applies are any under the Summary Offences Act 1966 except those listed in a new Schedule 3 to the Bail Act, relating to violent and sexual offences. Accused persons released on bail for these offences can still be subject to strict bail conditions.
Additional surrounding circumstances
When considering the surrounding circumstances under s 3AAA of the Bail Act in the context of determining bail, the bail decision-maker must take into account, if relevant, several new factors in addition to those already listed in the section, being:
- whether, if the accused is found guilty, it is likely they would be sentenced to a term of imprisonment and, if so, that the time they would spend on remand if bail is refused would exceed the term of imprisonment;
- whether the accused was on remand for another offence or was at large awaiting sentence for another offence; and
- any special vulnerability of the accused, including being an Aboriginal person, being a child, experiencing ill health including mental illness, or having a disability.
Aboriginal people
Section 3A of the Bail Act provides a list of non-exhaustive considerations that must be taken into account when making a bail determination concerning an Aboriginal person. The section has been amended to give greater guidance to bail decision-makers, who will now be required to consider:
- systemic factors that have resulted, and continue to result in the over-representation of Aboriginal people in the criminal justice system and remand population, and the increased risks of Aboriginal people in custody;
- personal circumstances that may make an Aboriginal person particularly vulnerable in custody, may be a causal factor for offending behaviour, or may be disrupted by being remanded -such as disability, trauma, family violence, involvement with child protection, housing insecurity, and caring responsibilities;
- the importance of maintaining protective factors that play a significant role in rehabilitation, such as connection to culture, kinship, family, Elders, country and community; and
- any other cultural obligations.
Children
These bail amendments update the child-specific considerations in the Act limit the applicability of the step 1 exceptional circumstances test and the step 1 compelling reason test to children charged with a small number of very serious offences, or with a record or risk of terrorist activities. In addition to the current considerations in s 3B of the Bail Act, bail decision-makers will need consider the need to impose on the child the minimum intervention required in the circumstances, with remand of the child being a last resort
Review
A new s 32C of the Bail Act provides that the Attorney-General must conduct a review of the operation of these bail amendments no later than 2 years after their commencement.
Publication updates
The By Lawyers Criminal Magistrates’ Court guide has been updated accordingly.