ByLawyers News and Updates

Bail conditions – SA

by

New mandatory bail conditions apply for certain applicants in South Australia from 1 October 2024.

The Bail (Conditions) Amendment Act 2024 introduces new sub-section (2ae) into s 11 of the Bail Act 1985 that provides for mandatory conditions to apply if bail is granted for charges that constitute a breach of intervention orders involving physical violence or threats of physical violence.

If bail is granted to a person charged with the relevant offences, it must be subject to conditions that the bailee remains at their residential address except for work, medical, or emergency reasons, and agrees to be fitted with an electronic monitoring device.

The new provisions concerning mandatory conditions only apply to adult offenders.

The transitional provisions in the amending Act provide that the new provisions concerning mandatory conditions only apply to bail applicants taken into custody on a charge for an offence allegedly committed after the commencement of the amending Act on 1 October 2024.

The By Lawyers Magistrates Court Criminal (SA) publication has been updated accordingly. In the course of making these changes, new commentary has also been added including a section concerning second or subsequent applications for bail.

Bail – NSW

by

From 1 July 2024 serious domestic violence offences and coercive control are included as offences to which the show cause requirement applies for bail to be granted in New South Wales courts.

Section 16B of the Bail Act 2013 lists offences for which bail must be refused, unless the accused can show cause why their detention is not justified. These are all serious offences, generally involving violence, including sexual offences, plus drug dealing and firearms offences.

Following proclamation of the Bail and Other Legislation Amendment (Domestic Violence) Act 2024, serious domestic violence offences, and the new offence of coercive control under s 54D of the Crimes Act 1900 are included in s 16B.

Serious domestic violence offences are defined in s 4 of the Crimes Act 1900 as those under Part 3 of the Act, being crimes against the person, that have a maximum penalty of 14 years imprisonment or more if the offence is committed by a person against an intimate partner, or equivalent offences under a law of the Commonwealth or another State or Territory.

Further the amendments require that, if bail is granted for a s 16B offence, it must be subject to a condition for electronic monitoring, unless the bail authority making the grant is satisfied there are sufficient reasons in the interest of justice not to impose such a condition.

The section on bail in the Full Commentary in the By Lawyers Local Court – Criminal (NSW) guide has been updated in accordance with these amendments.

 

Bail provision – NSW

by

A new provision of the Bail Act 2013 commenced on 30 October 2023, under the Justice Legislation Amendment (Miscellaneous) Act 2023.

The new provision, s 28A of the Bail Act, enables a bail authority to impose a bail condition that an accused person only be released on bail into the care or company of a specified person or class of persons. This is called an accompaniment requirement.

The bail authority can impose such a condition as a pre-release requirement on an accused person’s bail. The condition is met when the specified person, or a person of the specified class, is present at the place from which the accused person is to be released on bail, and able to accompany them.

The condition is intended to be used to address identified bail concerns.

Reference to a class of persons is intended to ensure an accused person can be accompanied, where applicable, by someone from an organisation such as the National Disability Insurance Service or Youth Justice, in circumstances where the specific identity of the accompanying person may not be known in advance.

This new provision is subject to the existing provisions of the Act. Section 20A requires the bail authority to assess bail concerns and impose conditions that are:

  • reasonably necessary to address a bail concern,
  • no more onerous than necessary to address the bail concern in relation to which it is imposed, and
  • reasonably practicable for the accused person to comply with.

The commentary about bail in the By Lawyers Local Court Criminal guide has been amended accordingly, and the Retainer instructions – Bail precedent has been amended to prompt the practitioner to seek instructions about an accompanying person or persons.

Bail amendments – WA

by

Bail amendments under the Bail Amendment Act 2022 received assent and commenced on 3 September 2022.

The Bail Act 1982 has been amended in a number of small but important respects, aimed mainly at better protecting the safety and welfare of victims of child sexual offences.

These latest bail amendments include:

  • provision ensuring that a person charged with a serious offence cannot be released without bail;
  • deleting the definition of serious offence under s 6A of the Act, so that the definition of serious offence in s 3 applies throughout the Act. This means that all serious offences are now listed in Schedule 2 of the Act, with the sole exception of the offence of breaching bail under s 51(2a) of the Act;
  • highlighting the capacity of bail decision makers to defer bail under s 9 to inform protective bail conditions in cases involving alleged sexual offences against children;
  • requiring bail decision makers to consider the conduct of the accused towards any alleged victim of the current offences and any victim of an offence the accused has previously been convicted of including any conduct towards the victim’s family;
  • requiring bail decision makers to take into account specific additional considerations that are specific to bail in cases involving alleged sexual offences against child victims;
  • requiring judicial officers to consider the fact that a person has been convicted of an offence and any sentence that is likely to be imposed when determining bail for an accused awaiting sentencing; and
  • expanding the list of serious offences under Schedule 2 to the Act. This means that a broader category of accused persons charged with serious offences while already on bail or on early release for another serious offence will bear the onus of satisfying the court
    that there are exceptional reasons why they should not be kept in custody.

The commentary on bail and the Retainer instructions – Bail precedent in the By Lawyers Magistrates Court (WA) – Criminal publication have been updated to reflect these bail amendments.

Standardised bail conditions – Criminal QLD

by

The Queensland Supreme Court has developed and made available standardised bail conditions, through its Streamlining Criminal Justice Committee and Rules Committee.

The document is not a practice direction or court form and has no formal application; it is simply an attempt by the court to provide examples of clearer proposed bail conditions so that clients granted bail can better understand their obligations. The document is a useful aid in the drafting of proposed orders when bail is sought and might assist practitioners and their clients in seeking and obtaining bail before the Magistrates Court.

See the By Lawyers Criminal Magistrates Court matter plan for a copy of the Standardised Bail Conditions – and helpful commentary on bail applications generally.

Connect with us