House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 6 - Amendments relating to bail

Overview

Section 15AA was first inserted into the Crimes Act 1914 (Crimes Act) as part of the Anti-Terrorism Act 2004 to ensure a consistent approach to bail proceedings for serious national security offences. The purpose of this section is to ensure public safety in the case of people charged with these serious offences and to provide the bail authority with the discretion to consider whether there are exceptional circumstances to justify granting bail. The proposed amendments in Schedule 6 will ensure that both the prosecution and the defendant have a right to appeal the decision to grant or refuse bail.

Crimes Act 1914

Item 1: After subsection 15AA(3)

Section 15AA of the Crimes Act contains specific provisions relating to granting bail for persons charged with terrorism and national security offences. It provides that a person charged or convicted of a serious security or violent offence (including terrorism) must not be granted bail except in exceptional circumstances.

Usually with Commonwealth offences, through the application of the Judiciary Act 1903 , the relevant State and Territory law governing bail proceedings applies in Commonwealth criminal matters. As section 15AA of the Crimes Act does not currently include an appeal right, the State and Territory legislation is relied upon to provide appeal rights to the prosecution or defendant. This can result in confusion and in some cases there may be no scope to appeal decisions made under section 15AA.

This item will insert a specific right of appeal for both the prosecution and defendant in section 15AA of the Crimes Act.

Proposed subsection 15AA(3A)

Proposed subsection 15AA(3A) will provide that the prosecution or defendant may appeal against a decision of a bail authority to either grant, or refuse to grant, bail to a person charged with or convicted of an offence covered by existing subsection 15AA(2). This will establish a nationally consistent right of appeal against bail decisions in relation to the specified Commonwealth offences, overcoming limitations and inconsistencies under State and Territory bail laws.

Proposed subsection 15AA(3B)

The proposed appeal right is intended to operate alongside relevant State and Territory laws, unless these laws are inconsistent. An appeal will be able to be heard by a court which has jurisdiction to hear appeals or reviews of decisions or orders generally made by the decision maker in question, and follow the same procedures that generally apply in relation to the exercise of that appellate jurisdiction.

Proposed subsection 15AA(3B) will provide that an appeal under subsection (3A) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals from directions, orders or judgments of the bail authority referred to in subsection (3A).

Proposed subsection 15AA(3B) will specify that an appeal under subsection (3A) is to be made in accordance with the rules and procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.

Proposed subsections 15AA(3C) and (3D)

If a bail authority decides to grant bail, proposed subsection 15AA(3C) will provide for a stay of the court order. The stay is not automatic. It will depend on the prosecution formally indicating an intention to appeal the bail decision immediately after the decision is made.

Proposed subsection 15AA(3D) will provide that the stay will only last until a decision on the appeal is made, or the prosecution notifies the court they do not intend to pursue an appeal, or until 72 hours has passed - whichever is the least period of time.

These proposed provisions are similar to existing State provisions, for example section 25A of the Bail Act 1978 (NSW) and section 16 of the Bail Act 1985 (SA). However, not all States and Territories have such provisions and it is desirable to have a consistent approach, particularly given that some investigations concern activity that spans state borders.

Items 2 and 3: Subsection 15AA(4) and (note)

These items will amend existing subsection 15AA(4) to make it clear that proposed new subsections 15AA(3A), (3B), (3C) and (3D) are not intended to affect state and territory laws, except indirectly through the Judiciary Act 1903.

Item 4: Application

This item sets out the intended application of the proposed amendments in this schedule. The amendments will commence the day after the Act receives Royal Assent, and will apply to any bail proceedings initiated on or after that commencement day. The amendments will also apply to bail proceedings which were initiated prior to their commencement, but only to those parts of the proceeding which occur after that commencement.