Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
Note: For persons under 18 years of age, see subsection (3AA).
Persons covered by this section
(2) This subsection covers a person (the defendant ) charged with, or convicted of, any of the following offences:
(a) a terrorism offence;
(b) an offence against a law of the Commonwealth, if:
(i) a physical element of the offence is that the defendant engaged in conduct that caused the death of a person; and
(ii) the fault element for that physical element is that the defendant intentionally engaged in that conduct (whether or not the defendant intended to cause the death, or knew or was reckless as to whether the conduct would result in the death);
(c) an offence against a provision of Division 80 (other than Subdivision CA) (treason, urging violence and advocating terrorism or genocide) or Division 91 (espionage) of the Criminal Code if:
(i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or
(ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person;
(d) an ancillary offence against a provision of Division 80 (other than Subdivision CA) (treason, urging violence and advocating terrorism or genocide) or Division 91 (espionage) of the Criminal Code if, had the defendant engaged in conduct that is a physical element of the primary offence to which the ancillary offence relates, there would have been a substantial risk that the conduct would have caused the death of a person;
(e) an offence against subsection 92.2(1) or 92.3(1) (intentional or reckless offence of foreign interference), if:
(i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or
(ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.
(2A) This subsection covers the following persons:
(a) a person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism);
(b) a person who the bail authority is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.
(3) To avoid doubt, the express reference in paragraph (2)(d) to an ancillary offence does not imply that references in paragraphs (2)(a), (b) or (c) to an offence do not include references to ancillary offences.
Entering reasons in court records if court grants bail
(3AAA) If the bail authority is a court and it grants bail, the court must:
(a) state its reasons; and
(b) cause those reasons to be entered in the court's records.
Determining exceptional circumstances in relation to persons under 18 years of age
(3AA) In determining whether exceptional circumstances exist to justify granting bail to a person who is under 18 years of age, without limiting the matters the bail authority may have regard to, the bail authority must have regard to:
(a) the protection of the community as the paramount consideration; and
(b) the best interests of the person as a primary consideration.
Appealing decisions of bail authority
(3A) Despite any law of the Commonwealth, the Director of Public Prosecutions, or a person covered by subsection (2) or (2A), may appeal against a decision of a bail authority:
(a) to grant bail to a person covered by subsection (2) or (2A) on the basis that the bail authority is satisfied that exceptional circumstances exist; or
(b) to refuse to grant bail to a person covered by subsection (2) or (2A) on the basis that the bail authority is not satisfied that exceptional circumstances exist.
(3B) An appeal under subsection (3A):
(a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (3A), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and
(b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.
Staying decisions to grant bail if decision appealed
(3C) If:
(a) a bail authority decides to grant bail to a person covered by subsection (2) or (2A); and
(b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision under subsection (3A);
the decision to grant bail is stayed with effect from the time of the notification.
(3D) A stay under subsection (3C) ends:
(a) when a decision on the appeal is made; or
(b) when the Director of Public Prosecutions notifies:
(i) the bail authority; or
(ii) if an appeal has already been instituted in a court--the court;
that he or she does not intend to proceed with the appeal; or
(c) 72 hours after the stay comes into effect;
whichever occurs first.
Relationship with laws of States and Territories
(4) To avoid doubt, except as provided by subsections (1), (3AA), (3A), (3B), (3C) and (3D), this section does not affect the operation of a law of a State or a Territory.
Note: These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903 .
(5) In this section:
"ancillary offence" has the meaning given in the Criminal Code .
"primary offence" has the meaning given in the Criminal Code .