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When passed, the bill will be known as the Bail Amendment (Serious Sexual Offences) Act 2006
Clause 2. Act amended
The Act to be amended is the Bail Act.
Clause 3. Amendment of section 3 (Interpretation)
A definition of 'serious sexual offence' will be inserted into the Bail Act. This will defined as an offence against the following sections in the Criminal Code:
Section 128. Sexual intercourse or gross indecency involving child over 16 years under special care.
Section 130. Sexual intercourse or gross indecency by provider of services to mentally ill or handicapped person.
Section 131A. Sexual relationship with child.
Section 132. Indecent dealing with child under 16 years.
Section 134. Incest.
Section 192. Sexual intercourse and gross indecency without consent.
Section 192B. Coerced sexual self-manipulation.
This clause makes two amendments to section 7A.
Firstly, the offence of 'serious sexual offence' will be added to the list of other offences in section 7A(1) where bail is not presumed.
Currently, section 7A(1) of the Bail Act lists certain offences where a court cannot presume bail for the alleged offender. These offences are:
· murder;
· treason;
· an offence against the Misuse of Drugs Act that is punishable by a gaol term of more than seven years;
· an offence against the Commonwealth Customs Act with regard to narcotics that is punishable by a gaol term of ten years or more;
· an offence against the Commonwealth Criminal Code relating to importing or exporting drugs that is punishable by a gaol term of ten years or more;
· a serious violence offence (other than murder) if the alleged offender:
Ø was on bail for a serious offence at the time of the serious violence offence; and
Ø had been found guilty of a prior serious offence (within the last two years) or a serious violence offence (within the last ten years); and
Ø one or both of their prior offence/s, or the offence they are currently on bail for, was a serious violence offence.
Section 24 (Criteria to be considered in bail applications) of the Bail Act lists the matters that a court has to consider when considering bail. These include the probability of whether the accused will appear in court, and the protection and welfare of the community.
So even though section 7A lists offences where bail is not presumed, the court still retains discretion to consider the circumstances of each case as to whether bail may be granted or not. However, the intention of the amendment is to regard serious sexual offences as offences of such a serious nature as not to presume bail.
This clause makes a second amendment to section 7A(1). As it currently stands, section 7A(1)(e) details circumstances where bail is not presumed for serious violence offences. The definition of these offences includes the sections relating to serious sexual offences. It is necessary to amend section 7A(1)(e) to ensure the circumstances where bail is not presumed for serious violence offences will not limit the new section 7A(1)(db).
Clause 5. Amendment of section 8 (Presumption in favour of bail for certain offences)
Section 8 lists the offences and circumstances where bail may be presumed. Section 8(1)(aa) states that bail may not be presumed for some offences defined as 'serious violence offences' under the Criminal Code. These offences are section 181 (Grievous harm) and some parts of section 192 (Sexual intercourse and gross indecency without consent) if the accused had previously been found guilty of certain offences under the Criminal Code.
Amendment to this clause removes the references to the (Criminal Code) section 192 offences in section 8(1)(aa) so as to avoid any potential confusion about presumption of bail because these offences will be listed as serious sexual offences.
Clause 6. New Part
This clause inserts a new section of transitional matters.
The presumption against bail for serious sexual offences will apply retrospectively for an alleged serious sexual offence committed before the commencement of the new act.
However, this does not apply to an accused person who was granted bail for such an offence prior to the commencement of the new act.