Supplmentary Explanatory Memorandum relating to sheet JC577(Circulated by authority of the Minster for Immigration, Citizenship and Multicultural Affairs, the Hon. David Coleman MP)
Notes on Amendments
Amendment 1 - Title, page 1 (line 2)
1. This amendment inserts "bail" after "customs" in the long title of the Bill.
Amendment 2 - Page 10 (after line 13)
2. This amendment adds a new schedule - "Schedule 9 - Presumption against bail" - to the Bill. New Schedule 9 deals with a presumption against bail for Commonwealth child sex offences that attract the highest maximum penalties.
Schedule 9-Presumption against bail
Part 1 - Court records
Crimes Act 1914
Item 1 - After subsection 15AA(3)
3. The proposed subsection 15AA(3AA) requires that where a bail authority is a court and grants bail, the court must state the reasons for doing so in writing, and cause those reasons to be entered in the court's records.
Item 2 - Application provision
4. 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.
Part 2 - Commonwealth child sex offences
Crimes Act 1914
Item 3 - After section 15AA
5. This item inserts proposed section 15AAA which sets out the offences to which the presumption against bail apply.
6. The proposed paragraph 15AAA(1)(a) applies this 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).
7. The proposed paragraph 15AAA(1)(b) applies this 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) where the person has been previously convicted of child sexual abuse. A child sexual abuse offence is defined in proposed section 3(1) of the Crimes Act in Schedule 15.
8. 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 It will also capture child sex offences which were committed under Commonwealth legislation that has since been repealed. These will be an offence against sections 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of this Act and an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010. This will be achieved by the use of "child sexual abuse offence" in the proposed subsection 15AAA(b) (see the detailed explanation of this proposed definition at item 2 of Part 1 of Schedule 15).
9. Proposed subsection 15AAA(2) will require that 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. If the bail authority is satisfied that the above matters can be addressed through conditions, and there are no other matters the court deems relevant to the refusal of granting bail, the person must be released on bail.
18. Where a bail authority is a court and does grant bail, the court must state those reasons in writing, and cause those reasons to be entered in the court's records.
19. 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).
20. Subsections 15AAA(5) - (8) set out how an appeal may be initiated, notification requirements for the Director of Public Prosecutions, when a decision is stayed until appeal decision and the interaction with the laws of a state or a territory. Subsections 15AAA(5)-(8) are similar to the existing provisions relating to bail in section 15AA.
Item 4 - Application provision
21. Sub-item 4(1) ensures that the proposed section 15AAA 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 (whether the person was charged with, or convicted of, the offence before, on or after that commencement).
22. 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'), sub-item (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 strict bail rules would apply to those persons after the date of commencement.
23. The proposed repealing of provisions relating to "child pornography material" 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". See the detailed explanation of these proposed amendments for items 1 and 2 of Part 1 of Schedule 15. Accordingly, sub-item 4(2) preserves this application as if conduct that would have previously constituted a Commonwealth child sex offence and now does not constitute a Commonwealth child sex offence, section 15AAA applies to those ongoing criminal prosecutions.
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