House of Representatives

Revised Explanatory Memorandum

This memorandum takes account of amendments made by the Senate to the Bill as introduced
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

Crimes Amendment (Bail and Sentencing) Bill 2006

General Outline

The purpose of the Bill is to amend the sentencing and bail provisions in the Crimes Act 1914 in accordance with the decisions made by the Council of Australian Governments on 14 July 2006 following the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities on 26 June 2006.

The principal features of the proposed amendments in this Bill are:

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to require a court to consider the potential impact on victims and witnesses, and specifically the potential impact on victims and witnesses in remote communities, when granting and imposing bail conditions for Commonwealth offences,

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to delete the reference to 'cultural background' in section 16A of the Crimes Act for all Commonwealth offences,

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to ensure that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of any criminal behaviour with which the Crimes Act is concerned, and

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to give consideration to customary law and cultural practice, specifically, if a court can not reduce a penalty by having regard to customary law and cultural practice, then it also should not be able to increase the penalty.

The recommendations of the Royal Commission into Aboriginal Deaths in Custody were considered during the formulation of this Bill. This Bill's objective is to ensure that proper sentences are given to offenders. The Australian Government is particularly concerned about the high levels of family violence and child abuse in Indigenous communities. The Government wants to ensure that the law covering such crimes reflects their seriousness.

Financial Impact

There is no financial impact from the provisions in this Bill.

Notes On Clauses

Clause 1: Short title

This clause sets out the short title by which this Act may be cited Crimes Amendment (Bail and Sentencing) Act 2006.

Clause 2: Commencement

This clause provides that this Act commences on the day after it receives the Royal Assent.

Clause 3: Schedule(s)

This clause provides that the amendments to the Crimes Act 1914 made by this Act are set out in a Schedule.

Schedule 1 - AMENDMENT OF THE CRIMES ACT 1914

Item 1 Subsection 3(1)

Item 1 inserts a definition of "bail authority" into subsection 3(1) of the Crimes Act. Section 3 of the Crimes Act is that Act's interpretation section.

The inserted definition states that "bail authority" means "a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory". This definition is the same as the definition which is currently in the Crimes Act at subsection 15AA(5). The definition is being moved to the general interpretation section because it will not only be used in section 15AA.

Item 2 Subsection 15AA(5) (definition of bail authority)

Item 2 repeals the existing definition of term bail authority from subsection 15AA(5). Item 1 inserts this definition into subsection 3(1) of the Crimes Act.

Item 3 After section 15AA

Item 3 inserts new section 15AB which requires a bail authority, when considering granting bail and/or imposing bail conditions on alleged offenders in relation to federal offences, to consider the potential impact of the bail authority's actions on victims and potential witnesses. This amendment gives primacy in the bail process to the protection of victims and potential witnesses and will ensure that a bail authority takes the interests of such persons into account in cases that fall within the scope of the new section 15AB of the Crimes Act.

New section 15AB also requires that where victims and potential witnesses are living in, or located in, a remote community, the bail authority must take this into account when considering granting bail. This is because remote communities are typically small and isolated, and victims and potential witnesses in such communities face higher risks than others when alleged offenders are released into their communities on bail. This amendment will ensure that bail authorities give appropriate weight to the special circumstances of victims and potential witnesses in remote communities.

"Remote community" is not a defined term. It will be a matter for the bail authority to determine on the facts of the case whether an alleged victim or potential witness is located in a remote community.

Item 3 will also prohibit a bail authority from taking into account any form of customary law or cultural practice when considering whether to grant bail to an alleged offender. This amendment helps establish the principle that neither customary law nor cultural practice can be used to mitigate, or aggravate, the seriousness of the alleged offender's criminal behaviour - and on that basis influence the decision to grant bail to an alleged offender.

Item 4 Paragraph 16A(2)(m)

Item 4 omits the term "cultural background" from paragraph 16A(2)(m). The effect of this amendment is that a court will no longer expressly be required to consider a person's "cultural background" when passing sentence on that person for committing a federal offence.

Subject to the amendment to be made by item 5, a court will still be able to take into consideration the "cultural background" of an offender, in sentencing that offender, should it wish to do so, but this amendment removes an unnecessary emphasis on the "cultural background" of convicted offenders.

Item 5 After subsection 16A(2)

This item enacts the Council of Australian Governments' decision, made on 14 July 2006, that no "customary law or cultural practice" can provide a "reason for excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates". This item expressly prohibits a court from accepting "customary law or cultural practice" as an excuse or justification when sentencing a person for having committed a federal offence. This item also precludes a court using "customary law or cultural practice" to "aggravate the seriousness" of alleged criminal behaviour, and thus this item prevents a court from increasing the penalty imposed on an offender because of "customary law or cultural practice".

Item 6 Application of amendments

Items 1 to 3 will apply, immediately upon the commencement of this Act, and therefore will apply in relation to persons who already will have committed offences but who have not yet been granted bail.

Items 4 and 5, which relate to sentencing, will apply from the day after Royal Assent is received, though only in relation to offences committed after the commencement of this Act.