Page 137 - Week 01 - Thursday, 9 April 1992
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Bail will be contingent on the accused signing a written undertaking to appear in court when required. It will be an offence punishable by a maximum fine of $20,000 or two years in gaol to fail to honour this undertaking. This threat of criminal sanctions should be the primary means of enforcing bail, rather than forfeiture of a sum of money.
As a rule, it is preferable for bail to be granted unconditionally, but in some cases conditions are necessary. For example, the accused has to report periodically to the police or must stay away from a particular person or premises. The Bill spells out the purposes for which conditions may be attached to bail. It exhaustively lists the types of conditions which a court or authorised police officer may impose, lists those conditions in a descending hierarchy and directs that the least onerous condition which achieves one of the permissible purposes is the one to be imposed.
The hierarchy of conditions ranges from those regulating the conduct of the accused to a requirement that a third party - in effect, a surety - deposit a sum of money which will be forfeited if the accused breaches bail. Some conditions are in the accused's best interest. For example, for the first time a court has clear statutory authority to order an offender who is a drug addict to attend a rehabilitation program as a condition of his or her bail. The accused may ask for a more onerous condition if that is more convenient. For example, an accused may prefer to deposit a sum of money.
Often an accused person stays in custody because he or she does not know about bail or feels that it is all too bewildering and complex to bother about. To avoid that as much as possible, the Bill imposes a duty on the arresting police officer to notify an accused of his or her rights to apply for bail and what the procedure involves. "Notification of rights" here includes access to a lawyer, an interpreter, or a relative or friend in appropriate cases. Where a court or an authorised police officer refuses bail or imposes conditions on bail, each must record reasons for doing so.
Part VI of the Bill sets out comprehensive review provisions. In general, any bail decision may be reviewed on its merits and a substitute order made, by either the same court or, except in the case of the Supreme Court, a higher court. Decisions of authorised officers may be reviewed by a magistrate. Since the Bill was last presented, we have taken account of a recommendation of the Royal Commission into Aboriginal Deaths in Custody by incorporating a new division in Part VI of the Bill providing for internal review of police bail which will allow an accused to request a review of a bail decision by the same or another authorised police officer without having to wait to go before a court. However, review of police bail decisions by a court will still be possible.
Sometimes an accused person stays in custody because a court has imposed a condition which he or she cannot satisfy. The Bill therefore casts a duty on the officer in charge of the remand centre to notify the court if this happens. The court may then, of its own motion or on application, review the conditions and either change them, grant unconditional bail or refuse bail.
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