Chapter 2 - Overview of the Bill
2.1
This chapter briefly outlines the main provisions of the Bill.
Schedule 1 – Amendment of the
Crimes Act 1914
Item 1
2.2
Item 1 inserts a definition of 'bail authority' into subsection 3(1) of
the Crimes Act (section 3 of the Crimes Act is the interpretation section).
2.3
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 EM states that the definition is
being moved to the general interpretation section because it will not only be
used in section 15AA.
Item 2
2.4
Item 2 repeals the existing definition of the term 'bail authority' from
subsection 15AA(5).
Item 3
2.5
Item 3 inserts new section 15AB which requires a bail authority, when
considering granting bail 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. The EM states that 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 new section
15AB.
2.6
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. The EM explains
that 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. The
purpose of the amendment is to ensure that bail authorities give appropriate
weight to the special circumstances of victims and potential witnesses in
remote communities.[1]
2.7
The term 'remote community' in new subsection 15AB(1)(b) is not defined.
The EM states that 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.[2]
2.8
New subsection 15AB(1)(b) prohibits 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. According to the EM, this amendment
'helps establish the principle that neither customary law nor cultural practice
can be used to mitigate an alleged offender's criminal behaviour – and on that
basis allow an alleged offender to be granted bail'.[3]
Item 4
2.9
Item 4 omits the term 'cultural background' from paragraph 16A(2)(m) of
the Crimes Act. The effect of this amendment will be that a court will no
longer be expressly required to consider a person's 'cultural background' when
passing sentence on that person for committing a Federal offence.[4]
2.10
The EM notes that, 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. However,
the amendment 'removes an unnecessary emphasis on the 'cultural background' of
convicted offenders'.[5]
Item 5
2.11
Item 5 inserts new subsections 16A(2A) and (2B) into the Crimes Act. New
subsection 16A(2A) expressly prohibits a court from accepting a 'customary law
or cultural practice' as an excuse or justification when sentencing a person
for having committed a Federal offence.
2.12
The EM explains that Item 5 enacts COAG's decision, made on 14 July
2006, that no 'customary law or practice' can provide a 'reason for excusing,
justifying, authorising, requiring or rendering less serious the criminal
behaviour to which the offence relates'.[6]
Item 6
2.13
Items 1 to 3 will apply, immediately upon the Bill's commencement, and
therefore will apply in relation to persons who have already committed offences
but who have not yet been granted bail.
2.14
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 Bill's commencement.
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