House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General and Minister for Industrial Relations, the Hon Christian Porter MP)

Schedule 7 - Presumption against bail

224. Schedule 7 amends the existing section 15AA of the Crimes Act and creates a presumption against bail for a person alleged to have committed a Commonwealth child sex offence to which the minimum penalty scheme set out in Schedule 6 would apply, and other associated amendments to section 15AA.

Part 1 - Court records

Division 1 - Main amendments

Crimes Act 1914

Item 1 - After subsection 15AA(3)

225. The proposed subsection 15AA(3AAA) requires that where a bail authority is a court and grants bail, the court must state the reasons for doing so, and cause those reasons to be entered in the court's records. Given the seriousness of the offences to which section 15AA of the Crimes Act applies, and the potential risk to the community if bail is granted, it is important that the court be required to state its reasons for granting bail.

Item 2 - Application provision

226. The proposed amendment to section 15AA will apply to decisions made on or after the commencement of the Bill by a bail authority to grant bail to a person charged with, or convicted of, an offence.

Division 2 - Amendments contingent on the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019

Crimes Act 1914

Item 3 - Before subsection 15AA(3AAA)

227. This item inserts a heading for the proposed new subsection 15AA(3AAA) in accordance with current legislative drafting practices.

Part 2 - Commonwealth child sex offenders

Crimes Act 1914

228. This Part introduces an offence-based presumption against bail for certain Commonwealth child sex offences.

229. The criminal conduct involved in this crime type targets one of the most vulnerable groups in the community - children. While bail conditions may act as an effective deterrent to reoffending, they are only as good as the practical measures taken to enforce those conditions. The ease in using anonymising practices such as encryption and virtual private networks makes the enforcement of conditions particularly difficult where that relates to internet offending.

230. This Part only applies to offences that attract a minimum penalty as set out in Schedule 6, namely the most serious Commonwealth child sex offences and those offences where the alleged perpetrator has a previous conviction(s) for a child sex offence(s).

231. The intention of the Part is to provide that for the protection of the community, the starting point is that bail be refused for persons alleged to have committed a Commonwealth child sex offence to which the minimum penalty scheme in Schedule 6 would apply, unless circumstances exist justifying the grant of bail. The presumption against bail is rebuttable and provides judicial discretion in determining whether a person's risk on bail can be mitigated through appropriate conditions which make the granting of bail appropriate in the circumstances. Flexibility is provided by the open nature of the presumption which is not limited to specific criteria.

Item 4 - After section 15AA

232. This item inserts proposed section 15AAA which sets out to what offences the presumption against bail applies.

233. The proposed paragraph 15AAA(1)(a) applies the presumption against persons charged with, or convicted of, the most serious Commonwealth child sex offences to which mandatory minimum penalties apply (see table in the proposed section 16AAA in Schedule 6).

234. The proposed paragraph 15AAA(1)(b) applies the presumption for all offences subject to a mandatory minimum penalty on a second or subsequent offence (see proposed table under subsection 16AAB(2) in Schedule 6), that is, where the person seeking bail for such an offence has been previously convicted of a child sexual abuse offence. The definition of a child sexual abuse offence will be inserted item 1 of Schedule 14.

235. Applying this definition, the proposed paragraph 15AAA(1)(b) captures persons previously convicted of state and territory registrable child sex offences and Commonwealth child sex offences. It will also capture child sex offences which were committed under Commonwealth legislation that has since been repealed (item 1 of Schedule 14 also refers)

236. Proposed subsection 15AAA(2) will require that, in addition to any other matters, a bail authority be satisfied that circumstances exist to grant bail to a person taking into account such of the matters outlined in paragraphs 15AAA(2)(a) - (f) as are relevant and known to the bail authority.

237. In considering these matters, the bail authority will be required, as part of its assessment, to consider the bail conditions which could reasonably be imposed on the person to address those matters.

238. Proposed paragraph 15AAA(2)(a) requires that the bail authority consider whether the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail.

239. Proposed paragraph 15AAA(2)(b) requires the bail authority consider whether the person would be likely to commit a further offence if the person were granted bail.

240. Proposed paragraph 15AAA(2)(c) requires the bail authority consider whether the person would likely put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail.

241. Proposed paragraph 15AAA(2)(d) requires the bail authority consider whether a person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail.

242. Proposed paragraph 15AAA(2)(e) requires the bail authority to consider the impact a refusal of bail would have on someone who is aged under 18 years. A person who is under the age of 18 years can be severely affected by being remanded into custody and a decision to do so should be considered a matter of last resort.

243. Where a person has pleaded guilty to a charge or been convicted of the offence, proposed section 15AAA(2)(f) requires the bail authority to consider whether that person would not be likely to undertake a rehabilitation program, or not comply with any bail conditions relating to rehabilitation or treatment, while released on bail. A key aspect of preventing further offending for this crime type may be active participation in, and compliance with, rehabilitation or treatment programs.

244. The person will have the opportunity to put forward relevant information regarding the above factors and any other information to demonstrate their suitability to be released on bail. If the bail authority is satisfied by the person that the above matters can be addressed through bail conditions, and there are no other matters the bail authority deems relevant to the refusal of granting bail, the person may be released on bail.

245. Consistent with the proposed new section 15AA(3AAA), where a bail authority is a court and does grant bail, the court must state those reasons, and cause those reasons to be entered in the court's records. Given the seriousness of the offences to which the proposed new section 15AAA of the Crimes Act would apply, and the potential risk to the most vulnerable members of the community if bail is granted, it is important that the court be required to state its reasons for granting bail.

246. Despite any law of the Commonwealth, subsection 15AAA(4) ensures there is right of appeal for the Director of Public Prosecutions or the person against the decision of a bail authority where bail is granted or refused pursuant to subsection 15AAA(1).

247. Subsections 15AAA(5) - (7) set out how an appeal may be initiated, notification requirements for the Director of Public Prosecutions, and when a decision is stayed until appeal decision. Subsections 15AAA(5)-(8) are similar to the existing provisions relating to the presumption against bail in section 15AA of the Crimes Act. Subsection 15AAA(8) puts beyond doubt that subsections 15AAA(1), (4), (5), (6) and (7) override state and territory laws.

Item 5 - Application provisions

248. Subitem 5(1) ensures that the proposed section 15AAA will apply to decisions made on or after the commencement of this Part by a bail authority to grant bail to a person charged with, or convicted of, an offence (whether the person was charged with, or convicted of, the offence before, on or after that commencement).

249. Given the proposed amendments to the definition of 'Commonwealth child sex offence' before the commencement of the Bill (for example, the amalgamation of the terms 'child pornography material' and 'child abuse material' into the single definition of 'child abuse material') as proposed in Schedule 7 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, subitem 5(2) ensures that section 15AAA applies in relation to that conduct as if, on or after that commencement, that conduct before commencement constituted a 'Commonwealth child sex offence'. For example, if a person committed an offence that would constitute a repealed 'child pornography material' offence before the commencement, the proposed new bail rules would be applicable to that person after the date of commencement.

250. The proposed repealing of provisions relating to "child pornography material" as set out in Schedule 7 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 does not remove the criminality attached to conduct that would attract those offences but encapsulate it through expansion of the existing definition of "child abuse material". Accordingly, sub-item 5(2) preserves the application of new 15AAA in relation to that conduct as if, on or after that commencement, that conduct constituted a Commonwealth child sex offence.