The ACT Government has released a discussion paper regarding the review of decision-making criteria in the Bail Act 1992 (ACT).
The paper states
The ACT Government recognises the impact of bail decisions on defendants, victims, witnesses, and the broader community’s perceptions about the justice system. The ACT Government acknowledges the work undertaken in the 10th Legislative Assembly committee by the Standing Committee of Justice and Community Safety and its report Inquiry into the Administration of Bail in the ACT. The submissions to and discussion and recommendations within that report have informed the Government’s position and this discussion paper. The ACT Government believes that bail law modernisation and reform is highly desirable and intends to introduce legislation amending the Bail Act 1992 as soon as practicable. ...
Objectives of the reform
Reforms to the Bail Act 1992 are being approached with the following direct objectives sought: • Provide greater clarity to decision-makers about what considerations are to be taken into account when deciding a bail application; • Maintain the independence and discretion of decision-makers when deciding a bail application; • Maintain procedural fairness and consistency with the ACT Human Rights Act (2004); and • Elevate the concept of do no further harm to both the alleged victim(s) and the accused person when deciding a bail application.
Notwithstanding the intersectionality and relevance of resources, investments, and supports that are otherwise outside this reform’s scope, particular regard is given to these further objectives: • Enhance confidence and trust in the justice system; • Reduce the high rates of remand and recidivism; and • Address the significantly high rates of incarceration of Aboriginal and Torres Strait Islander people.
Background
Bail decisions are a high volume, significant component of our criminal justice system and it is vital that the law is clear and accessible. Until 1992, bail laws in the ACT were set out in various pieces of legislation. This made it difficult to identify the rules that applied to their specific circumstances. The Bail Act 1992 was enacted to consolidate, modernise and simplify the law relating to bail for young people and adults.
While there have been several amendments to the Act since, the most recent significant changes occurred in 2004.
An accused person has a right to the presumption of innocence and a right to liberty. These rights mean that a person cannot be detained as punishment for a crime they are accused of committing prior to trial and that pre-trial detention is intended as an exceptional, not standard, measure.
Bail is an undertaking that the accused will appear before court on a later date, and can be subject to conditions. Where an application for bail is not granted, an accused is remanded in custody. There are individual, financial and justice sector direct and indirect costs when the accused person is remanded in custody. Accused persons and their families suffer the hardships of incarceration without being convicted of an offence. Pre-trial detention and remand can contribute to likelihood of future offending. Because incarceration is criminogenic in nature, , an accused remanded in custody is then at increased risk of reoffending, which ultimately does not make the community safer.
The real net operating cost of a detained adult in prison in the ACT in 2023-24 was $618 per person per day. With up to half of the prison population on remand, around $40 million is spent annually detaining adults on remand.
These costs need to balanced with and considered in the context of the rights of victims; the need to mitigate the risk of further harm; the importance of community safety; the availability of support services and enforcement resources; and the most effective use of Government resources and funding to achieve its justice objectives.
Basics of the Bail Act 1992
Applying for bail
In the ACT, a person arrested and charged with a criminal offence is entitled to apply for bail. Persons who can grant bail are authorised officers (the Chief Police Officer and delegated police officers) and courts (Magistrates Court or Supreme Court).
The Bail Act sets a number of obligations on the arresting or the charging police officer about the granting of bail and ensuring the accused is aware of their rights. Where the authorised officer cannot or does not grant bail, the accused must be brought before a court as soon as possible, and the court is required to consider the application as soon as possible.
Framework for decision-makers
The Bail Act provides a legislative framework for how bail applications are to be approached by decision-makers.
The decision-maker must consider any presumptions that apply and, where applicable, the criteria for granting bail to adults (section 22 of the Bail Act) or children (section 23 of the Bail Act). The information before a court is provided by the prosecution (which will include information provided by the police), defence and any additional information from other relevant sources such as ACT Corrective Services or a health professional.
The bail decision requires the balancing of all the information and factors before the decision maker.
Presumption for bail to be granted
• For certain minor offences, an accused is entitled to be granted bail in most circumstances; • For offences other than minor offences, an accused is entitled to be granted bail unless the court or authorised officer is satisfied that refusal is justified after considering specific criteria, including applicable presumptions (also set out in the Act).
Neutral presumption about whether bail should be granted
For some specific offences, the Bail Act provides there is not an entitlement for an accused to be granted bail—and nor is there an entitlement for them not to be granted bail.
Presumption against granting bail
For some specific offences, the Bail Act provides that bail must not be granted unless the authorised officer or the court is satisfied that special or exceptional circumstances exist that favour bail being granted. However, even if those special or exceptional circumstances are established, the court or authorised officer must refuse bail if they are satisfied that refusal is justified after considering specific criteria (also set out in the Act).
Dispensing with bail
A court may also decide to release an accused person from custody without requiring bail. The accused person is entitled to be and to remain at liberty in relation to the offence until the person is required to appear before a court in relation to the offence.
Criteria for decision-makers to consider
The criteria for granting bail under section 22 or 23 of the Bail Act require the decision-maker to consider the likelihood of certain things occurring such as the person appearing in court or committing an offence. When making that decision, the decision-maker may also consider any relevant matter, including the nature and seriousness of the offence, the person’s character, background and community ties, and any previous grants of bail.
In more detail: In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider— (a) the likelihood of the person appearing in court in relation to the offence; and (b) the likelihood of the person, while released on bail— (i) committing an offence; or (ii) harassing or endangering the safety or welfare of anyone; or (iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and (c) the interests of the person (such as the need for the person to have physical protection, or the period with which a person may be held in custody if bail is refused and the conditions under which they would be held)
The Bail Act provides that the court or authorised officer may also have regard to any relevant matter, and includes: (a) the nature and seriousness of the offence; or (b) the person’s character, background and community ties; In this context, a prosecutor must tell the court about any concern a victim may have expressed about the need for protection from violence or harassment by the accused. (c) the likely effect of a refusal of bail on the person’s family or dependants; or (d) any previous grants of bail to the person; or (e) the strength of the evidence against the person.
Within the Bail Act, a victim is defined as: (a) a person (the primary victim) who suffers harm— (i) in the course of, or because of, the commission of an offence of which the accused person is accused; or (ii) in the course of assisting a police officer in the exercise of the officer’s power to arrest the accused person or to take action to prevent the commission of an offence of which the accused person is accused; or (b) if a primary victim dies because of the commission of an offence of which the accused person is accused—anyone who was financially or psychologically dependent on the primary victim immediately before his or her death.
Bail conditions
Bail can be granted without conditions or with conditions.
When bail is granted with conditions, those conditions can include one or more of: • conditions about the accused person’s conduct while released on bail, such as a requirement that: o the accused person report periodically, or at specified times, at a stated place; and o the accused person reside at a stated place; and o the accused person undergo psychiatric treatment or other medical treatment; and o the accused person participate in a program of personal development, training or rehabilitation; and o the accused person accept supervision or comply with any reasonable direction (such as undertaking a mental health assessment or other program). Note: further specific conditions are applicable where a person has been charged with a family violence offence. • a condition that the accused or another person gives a security of payment, or otherwise pays a stated amount, if the accused person fails to appear in court in accordance with his or her undertaking.
Release on bail
An accused person may be released on bail only if the person gives an undertaking to appear before a stated court at the place, date and time that’s provided to them by a police officer or written or recorded in an undertaking before a court and to comply with the bail conditions (if any).
An accused person commits an offence if they give an undertaking to appear before a court and fail to carry out the undertaking.
Issues with Bail Act operation
The ACT Government respects and will maintain the independence and discretion of decision makers. The following discussion relates to options for how the framework for decision-making could be improved.
While the decision-maker may take into account any relevant consideration, and a court can be proactive in the information it seeks, pressures such as time or urgency may limit relevant considerations being sought and/or being given appropriate regard.
The following discussion outlines the evidence and observations reflected in submissions to the ACT Government and ACT Legislative Assembly Committee inquiries, as well as data, research and sentiment. Issues on which the ACT Government is seeking views and possible reforms are outlined, with questions to prompt responses.
How bail criteria are framed in the Act
When first in force, the Bail Act set out the criteria for granting bail to adults with matters in the categories of: • probability of the person appearing in court in respect of the offence; • interests of the person charged; and • the protection of the community.
While elements of these are still reflected in the current criteria, these ‘arms’ of thematic considerations are not set out as clearly. In that vein, the Government is of the view that there may be value in clearly setting out the key categories or lenses through which a decision-maker should be considering relevant criteria. For example, by recognising the rights of the victim and the accused, and the principle of doing no further harm to either, and through a broader lens regarding community safety and justice integrity. These categories can be summarised as: • interests of the victim; • interests of the accused; and • interests of community safety and justice integrity.
There is no hierarchy of these interests; no consideration is to supersede another. Rather, they could serve as a stronger framework setting for the relevant considerations for a decision-maker in deciding whether to grant bail.
The paper features the following questions
Q1. What are the risks or benefits in providing for a clearer framework of considerations for the decision-maker as outlined above?
Q2: Should a victim’s concerns that need to be taken into consideration be broader than what is currently legislated? If so, what would be an appropriate expansion?
Q3: Is there value in a criterion which reflects victims’ views and knowledge more broadly? If so, should this be in addition to or instead of a “risk of harm” criterion?
Q4: Should decision-makers be specifically required to have regard to the presence of established risk factors when deciding a bail application in the context of a domestic and family violence offence?
Q5: If so, if an FVRAT has been completed by ACT Policing, should it be provided as a relevant consideration that the decision-maker needs to have regard to? Or, is there another tool which could be used instead of, or in addition to, an FVRAT?
Q6: Where a victim dies because of the commission of an offence of which the accused person is accused, should the definition of victim be expanded to include immediate family members, rather than only persons who were financially or psychologically dependent?
Q7: Is this provision in the Victorian legislation appropriate for the ACT context? Can it be improved?
Q8: Should an accused being a primary carer or pregnant be a relevant consideration for a decision-maker in deciding to grant bail? If so, what form should the provision take?
Q9: Should an accused person’s disability needs, health needs and relevant related circumstances be required to be considered by a decision-maker in deciding whether to grant bail? If so, what form should the provision take?
Q10: Should the legislation contain a specific provision requiring a court to consider a written submission from police in its decision-making?
Q11: With the nature and seriousness of an offence already provided for as a relevant consideration, should this be expanded to include the prevalence of the offence?
Q12: Are the types of risks that a decision-maker is required to assess the likelihood of sufficient for the purposes of granting bail?
Q13: Should a person’s actions (including breaches of conditions; further offences etc) while on any previous grant of bail (or subject to other conditions imposed by a court) which has now been disposed of be a relevant consideration for a decision-maker?
Q14: Is it useful to continue with having some criteria being required to be considered and others which may be taken into account? If so, should there be any changes? Or, should all criteria be relevant considerations that need to be given appropriate regard? How could decision-makers and persons appearing before a court be supported so that all evidence relating to the criteria is available?
Q15: What further information or specificity could be provided in the bail conditions which would ensure their enforceability?
Q16: Are there reporting sites for bail other than police stations that might suit other persons with particular vulnerabilities or needs that should be an option as part of a bail application process?
Q17: Should the ACT Government consider extending electronic monitoring to be a potential bail condition? If so, should it be limited to particular offence types?
Q18: Of the bail criteria and conditions discussed in this paper, should any be specifically applied or be a consideration in matters that involve children and young people who are accused of a crime? Should any specifically not be a consideration in matters that involve children and young people accused of a crime?
Q19: In considering the effectiveness of and complexity of presumptions, should there be reform in this area with regard to children and young people?
