New South Wales: Bail Act 2013 (NSW)

Bail Act 2013 No 26 An Act to make provision for bail in connection with criminal and other proceedings. Preamble The Parliament of New South Wales, in enacting this Act, has regard to the following— (a) the need to ensure the safety of victims of crime, individuals and the community, (b) the need to ensure the integrity of the justice system, (c) the common law presumption of innocence and the general right to be at liberty. Part 1 Preliminary 1 Name of Act This Act is the Bail Act 2013. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Purpose of Act (1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions. (2) (Repealed) 4 Definitions (1) In this Act— accommodation requirement—see section 28. accompaniment requirement—see section 28A. accused person or person accused of an offence includes the following— (a) a person who has been charged with or convicted of an offence, (b) a person whose conviction for an offence is stayed, (c) a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending, (d) a person in respect of whom a new trial has been ordered to be held for an offence. apprehended violence order has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007. authorised justice means— (a) a registrar of the Local Court, or (a1) a Children's Registrar, or other Registrar of the Children's Court, under the Children's Court Act 1987, or (b) an officer of the Department of Attorney General and Justice who is declared, by order of the Minister, whether by reference to his or her name or office, to be an authorised justice for the purposes of this Act, or (c) a person, or member of a class of persons, declared by the regulations to be an authorised justice for the purposes of this Act. bail—see section 7. bail acknowledgment means the bail acknowledgment for a decision to grant bail given to the accused person under section 33. bail application means— (a) a release application, or (b) a detention application, or (c) a variation application. bail authority means a police officer, an authorised justice or a court. bail concern—see section 17. bail condition means a condition of bail. bail decision—see section 8. bail guarantor means any person who enters into a bail security agreement, other than the accused person granted bail. bail money means money agreed to be forfeited under a bail security agreement. bail security means security for the payment of bail money deposited with a bail authority. bail security agreement means an agreement entered into, or required to be entered into, under a security requirement of a bail condition (whether by the accused person or by any other person). character acknowledgment—see section 27. child means a person under the age of 18 years. Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. community service order means a community service order under the Crimes (Sentencing Procedure) Act 1999 or a children's community service order under the Children (Community Service Orders) Act 1987. conclusion of proceedings—see section 6. conduct requirement—see section 25. conviction includes a finding of guilt. correctional centre means a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 and includes a detention centre within the meaning of that Act (subject to the Children (Detention Centres) Act 1987). court means— (a) the Court of Criminal Appeal, the Supreme Court, the Land and Environment Court, the Industrial Court, the District Court or the Local Court, or (b) any other court which, or person who, exercises criminal jurisdiction. detention application—see section 50. domestic violence offence has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. enforcement condition—see section 30. fail to appear offence means an offence against section 79. fine-only offence means an offence not punishable by a sentence of imprisonment. first appearance means a first appearance of an accused person before a court or authorised justice in proceedings for an offence. function includes a power, authority or duty and exercise a function includes perform a duty. intimate partner, of a person (the first person), means a person who— (a) is or has been married to the first person, or (b) is or has been a de facto partner of the first person, or Note— "De facto partner" is defined in the Interpretation Act 1987, section 21C. (c) has or has had an intimate personal relationship with the first person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature. intoxicated person means a person who appears to be seriously affected by alcohol or another drug or a combination of drugs. Local Court includes the Children's Court exercising jurisdiction under the Children (Criminal Proceedings) Act 1987. non-association and place restriction order means a non-association order or a place restriction order under section 17A (2) of the Crimes (Sentencing Procedure) Act 1999 or section 33D (2) of the Children (Criminal Proceedings) Act 1987. offence includes an alleged offence. personal violence offence means a personal violence offence of a kind referred to in section 4 (a) of the Crimes (Domestic and Personal Violence) Act 2007. pre-release requirement—see section 29. proceedings for an offence—see section 5. proceedings on an appeal against conviction or sentence—see section 5 (2). release application—see section 49. security requirement—see section 26. serious domestic violence offence means— (a) an offence under the Crimes Act 1900, Part 3 with a maximum penalty of 14 years imprisonment or more if the offence is committed by a person against an intimate partner, or (b) an offence under a law of the Commonwealth, another State or Territory or another jurisdiction that is similar to an offence under that part. show cause offence—see section 16B. substantive proceedings for an offence—see section 5 (3). supervision order means an extended supervision order or an interim supervision order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017. terrorist act has the same meaning as it has in Part 5.3 of the Commonwealth Criminal Code. unacceptable risk—see section 19. variation application—see section 51. victim of an offence includes an alleged victim of an offence. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act to a person charged with an offence includes a reference to a person who has been issued with a court attendance notice for the offence under the Criminal Procedure Act 1986. (3) In this Act, a power to vary a bail decision includes— (a) a power to revoke the bail decision and substitute a new bail decision, and (b) a power to vary bail conditions. (4) In this Act, a power to vary bail conditions includes— (a) a power to revoke a bail condition, and (b) a power to revoke a bail condition and substitute a new bail condition, and (c) a power to impose a new bail condition. (5) Notes in this Act do not form part of this Act. 5 Proceedings for an offence (1) In this Act, proceedings for an offence means criminal proceedings against a person for an offence (whether summary or indictable), and includes the following— (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence, (e) any other proceedings of a kind prescribed by the regulations. (2) Proceedings on an appeal against conviction or sentence include— (a) proceedings on an application for annulment of a conviction or sentence made under section 4 or 5 of the Crimes (Appeal and Review) Act 2001, and (b) proceedings on an appeal against an order imposed by the Land and Environment Court on conviction for an offence. (3) Proceedings for an offence are substantive unless the proceedings are— (a) proceedings relating to bail, or (b) proceedings on an appeal against any interlocutory judgment or order given in proceedings, or (c) proceedings declared to be non-substantive by the regulations. 6 Conclusion of proceedings (1) Proceedings for an offence conclude when a court finally disposes of the proceedings concerned. (2) If a court convicts an accused person of an offence, and a sentence is to be imposed, proceedings for the offence do not conclude until the sentence has been imposed. (3) The committal of a person for trial or sentence is not a conclusion of proceedings for an offence. (4) If a person's conviction or sentence for an offence is stayed on or before the conclusion of proceedings for an offence, the proceedings do not conclude while the stay is in force. (5) The regulations may make further provision for the time at which proceedings for an offence are to be regarded as concluded and this section has effect subject to the regulations. Part 2 General provisions 7 What is bail (1) Bail is authority to be at liberty for an offence. Note. An offence includes an alleged offence. (2) Bail can be granted under this Act to any person accused of an offence. (3) A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody. Note. Limitations to the entitlement to be at liberty are specified in section 14. 8 Bail decisions that can be made (1) The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an offence— (a) a decision to release the person without bail for the offence, (b) a decision to dispense with bail for the offence, (c) a decision to grant bail for the offence (with or without the imposition of bail conditions), (d) a decision to refuse bail for the offence. Note. Part 3 sets out how a bail decision is to be made by a bail authority. (2) A bail decision cannot be made if substantive proceedings for the offence have concluded and no further substantive proceedings for the offence are pending before a court. (3) A bail decision can also be made in respect of a person who is not accused of an offence in the circumstances specified in Schedule 1. Note. Schedule 1 provides for the grant of bail where a person is required to appear in proceedings otherwise than because he or she is accused of an offence. In such cases, this Act applies as if the person were accused of an offence. 9 Decision to release without bail A decision to release a person without bail can be made only by a police officer with power to make that bail decision under this Act. 10 Decision to dispense with bail (1) A decision to dispense with bail can be made only by a court or authorised justice with power to make that bail decision under this Act. (2) If bail for an offence is dispensed with, the person accused of the offence is entitled to be at liberty for the offence, in the same way as if bail had been granted. (3) A court or authorised justice is taken to have dispensed with bail for an offence if— (a) a person accused of the offence appears before the court or authorised justice in proceedings for the offence, and (b) the person has not previously been granted or refused bail for the offence, and (c) the court or authorised justice does not grant or refuse bail for the offence. 11 Decision to grant or refuse bail A decision to grant or refuse bail can be made only by a police officer, authorised justice or court with power to make that bail decision under this Act. 12 Duration of bail (1) Bail ceases to have effect if— (a) it is revoked, or (b) substantive proceedings for the offence conclude and, at the conclusion of the proceedings, no further substantive proceedings for the offence are pending before a court. (2) Bail is not revived if, after the conclusion of substantive proceedings for an offence, further substantive proceedings for the offence are commenced. However, a new bail decision for the offence can be made under this Act. Note. Proceedings for an offence generally conclude if a person is convicted of and sentenced for the offence. If an appeal against the conviction or sentence is lodged after that conclusion, bail is not revived, but a new bail decision can be made. (3) If bail is granted by a bail authority for a specified period, bail ceases to have effect at the end of that period, unless sooner revoked. (4) An authorised justice or a court before which an accused person is required to appear under a bail acknowledgment may continue bail if— (a) bail would otherwise cease to have effect, and (b) substantive proceedings for the offence have not concluded. 13 Requirement to appear (1) A person granted bail, or in respect of whom bail is dispensed with, is required to appear in person before a court, and surrender to the custody of the court, as and when required to do so in proceedings for the offence for which the bail decision is made. (2) A requirement to appear is— (a) if bail is granted—a requirement to appear in accordance with the accused person's bail acknowledgment, or (b) if bail is dispensed with—a requirement to appear as and when required by the court or by any notice or other process by which a person can be required to appear before a court. (3) The time at which a person is required to appear is the time at which the matter relating to the offence is called at court premises (whether or not the matter is dealt with at that time). (4) This section does not prevent a court before which a person is required to appear from excusing a failure to appear. (5) The regulations may make further provision for the requirement to appear. 14 Limitation on entitlement to be at liberty (1) Bail does not entitle a person to be at liberty until— (a) the person signs, and gives to the bail authority, a copy of the bail acknowledgment for the decision to grant bail, and (b) all pre-release requirements of bail conditions have been complied with. Note. Pre-release requirements are dealt with in Part 3. For example, a bail condition may require an accused person, before being released on bail, to surrender his or her passport. Bail acknowledgments are dealt with in Part 4. (2) Bail does not entitle a person to be at liberty on those occasions on which the person is required to appear before a court under his or her bail acknowledgment. (3) Bail does not entitle a person to be at liberty while the person is in custody for some other offence, or reason, because of which the person is not entitled to be at liberty. Note. For example, a person may be in custody for 2 offences. If bail is granted for one offence only, the person is not entitled to be released. Part 3 Making and variation of bail decisions Division 1 Preliminary 15 Bail decision to be made in accordance with this Part (1) A bail decision is to be made in accordance with this Part. (2) This Part applies to the making of a decision to affirm a bail decision, or to vary a bail decision, after hearing a bail application in the same way as it applies to the making of a bail decision. (3) A bail authority must exercise any function in relation to bail conferred by Part 5, 8 or 9 in accordance with this Part, except as otherwise provided by this Act. 16 Flow charts—key features of bail decisions (1) The flow charts illustrate the key features of bail decisions under this Act. (2) Flow Chart 1 illustrates the show cause requirement (set out in Division 1A), which applies only to show cause offences. (3) Flow Chart 2 illustrates the unacceptable risk test (set out in Division 2) as it applies to all offences, other than offences for which there is a right to release. (4) In the flow charts— conditional release means a decision to grant bail with the imposition of bail conditions. unconditional release means a decision— (a) to release a person without bail, or (b) to dispense with bail, or (c) to grant bail without the imposition of bail conditions. Flow Chart 1 Show cause requirement Flow Chart 2 Unacceptable risk test Division 1A Show cause requirement 16A Accused person to show cause for certain serious offences (1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. (2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences). (3) This section does not apply if the accused person was under the age of 18 years at the time of the offence. 16B Offences to which the show cause requirement applies (1) For the purposes of this Act, each of the following offences is a show cause offence— (a) an offence that is punishable by imprisonment for life, (b) a serious indictable offence that involves— (i) sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or (ii) the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, (c) a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence, (c1) a serious domestic violence offence, (c2) an offence under the Crimes Act 1900, section 54D, (d) any of the following offences— (i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm, (ii) an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place, (iii) a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm, (e) any of the following offences— (i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon, (ii) an indictable offence that involves the unlawful possession of a military-style weapon, (iii) a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon, (f) an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act, (g) an offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code, (h) a serious indictable offence that is committed by an accused person— (i) while on bail (whether granted under this Act or a law of another jurisdiction), or (ii) while on parole (whether granted under a law of this State or another jurisdiction), (i) an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order, (j) a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section, (k) a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section, (l) a serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under— (i) this Act, or (ii) Part 7 of the Crimes (Administration of Sentences) Act 1999, or (iii) the Criminal Procedure Act 1986, or (iv) the Crimes (Sentencing Procedure) Act 1999. (2) In this section, a reference to the facts or circumstances of an offence includes a reference to the alleged facts or circumstances of an offence. (3) In this section— firearm, firearm part, prohibited firearm and pistol, and use, acquire, supply or possession of a firearm or firearm part, have the same meanings as in the Firearms Act 1996. prohibited weapon and military-style weapon, and use, buy, sell, manufacture or possession of a prohibited weapon, have the same meanings as in the Weapons Prohibition Act 1998. serious indictable offence has the same meaning as in the Crimes Act 1900. serious personal violence offence means— (a) an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more, or (b) an offence under a law of the Commonwealth, another State or Territory or any other jurisdiction that is similar to an offence under that Part. Division 2 Unacceptable risk test—all offences 17 Assessment of bail concerns (1) A bail authority must, before making a bail decision, assess any bail concerns. (2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will— (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision. (4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement). 18 Matters to be considered as part of assessment (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division— (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (d1) behaviour engaged in by the accused that may, under the Crimes (Domestic and Personal Violence) Act 2007, section 6A(2), constitute domestic abuse, Examples of behaviour— behaviour that is physically abusive or violent, including strangulation and sexual assault, animal abuse and stalking (e) whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction), (f) whether the accused person has a history of compliance or non-compliance with any of the following— (i) bail acknowledgments, (ii) bail conditions, (iii) apprehended violence orders, (iv) parole orders, (v) home detention orders, good behaviour bonds or community service orders, (vi) intensive correction orders, (vii) community correction orders, (viii) conditional release orders, (ix) non-association and place restriction orders, (x) supervision orders, (f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions, (g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed, (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence or a domestic violence offence against an intimate partner, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A, (q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code), (r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism, (s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism. (2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered— (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole. 19 Refusal of bail—unacceptable risk (1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk. (2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will— (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk. (4) Bail cannot be refused for an offence for which there is a right to release under Division 2A. 20 Accused person to be released if no unacceptable risks (1) If there are no unacceptable risks, the bail authority must— (a) grant bail (with or without the imposition of bail conditions), or (b) release the person without bail, or (c) dispense with bail. (2) This section is subject to Divisions 1A and 2A. 20A Imposition of bail conditions (1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns. (2) A bail authority may impose a bail condition only if the bail authority is satisfied that— (a) the bail condition is reasonably necessary to address a bail concern, and (b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and (c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and (d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and (e) it is reasonably practicable for the accused person to comply with the bail condition, and (f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person. (3) This section does not limit a power of a court to impose enforcement conditions. Note. Enforcement conditions are imposed for the purpose of monitoring or enforcing compliance with other bail conditions. Section 30 provides for this type of bail condition. Division 2A Special rules for certain offences 21 Special rule for offences for which there is a right to release (1) The following decisions are the only bail decisions that can be made for an offence for which there is a right to release— (a) a decision to release the person without bail, (b) a decision to dispense with bail, (c) a decision to grant bail to the person (with or without the imposition of bail conditions). (2) There is a right to release for the following offences— (a) a fine-only offence, (b) an offence under the Summary Offences Act 1988, other than an excluded offence, (c) an offence that is being dealt with by conference under Part 5 of the Young Offenders Act 1997. (3) Each of the following offences under the Summary Offences Act 1988 is an excluded offence— (a) an offence under section 5 (obscene exposure) if the person has previously been convicted of an offence under that section, (b) an offence under section 11A (violent disorder) if the person has previously been convicted of an offence under that section or of a personal violence offence, (c) an offence under section 11B, 11C or 11E (offences relating to knives and offensive implements) if the person has previously been convicted of an offence under any of those sections or of a personal violence offence, (d) an offence under section 11FA (custody or use of laser pointer in public place), (e) an offence under section 11G (loitering by convicted child sexual offenders near premises frequented by children). (4) An offence is not an offence for which there is a right to release if the accused person has previously failed to comply with a bail acknowledgment, or a bail condition, of a bail decision for the offence. (5) Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision for an offence for which there is a right to release. 22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision— (a) an offence for which an appeal is pending in the Court of Criminal Appeal against— (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment, (b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a). (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified. (3) Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section. 22A Limitation on power to release in relation to terrorism related offences (1) Despite anything to the contrary in this Act, a bail authority must, unless it is established that exceptional circumstances exist, refuse bail for— (a) an offence under section 310J of the Crimes Act 1900, or (b) any other offence for which a custodial sentence may be imposed, if the bail authority is satisfied that the accused person— (i) before being charged with that offence, has been charged with a Commonwealth terrorism offence or an offence under section 310J of the Crimes Act 1900 and the proceedings relating to the offence have not concluded, or (ii) has previously been convicted of a Commonwealth terrorism offence or an offence under section 310J of the Crimes Act 1900, or (iii) is the subject of a control order made under Part 5.3 of the Commonwealth Criminal Code. (2) If the offence is a show cause offence, the requirement that the accused person establish that exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified. (3) Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a bail authority under this section. (4) In this section, Commonwealth terrorism offence has the same meaning as terrorism offence has in the Crimes Act 1914 of the Commonwealth. 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court— (a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5) In this section— conviction also includes a plea of guilty. Note— Conviction is defined in section 4(1) to include a finding of guilt. 22C Temporary limitation on bail for certain young persons in relation to certain serious offences (1) A bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence unless the bail authority has a high degree of confidence the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions. (2) A decision under subsection (1) may be made only after— (a) an assessment of bail concerns is made under Division 2, and (b) consideration of whether any bail conditions could reasonably be imposed to address any bail concerns or risk the relevant young person will commit a further serious indictable offence. (3) To avoid doubt, the requirement under this section to establish that bail should be refused for the relevant young person remains with the prosecution. (4) This section applies despite anything to the contrary in this Act. (5) This section expires 12 months after this section commences. (6) In this section— motor theft offence means an offence under the following sections of the Crimes Act 1900— (a) section 154A, (b) section 154C, (c) section 154F. relevant offence means— (a) a motor theft offence, or (b) a serious breaking and entering offence, or (c) an offence under the Crimes Act 1900, section 154K, if the underlying offence is a motor theft offence or serious breaking and entering offence. relevant young person, for a relevant offence, means an individual who is, at the time the relevant offence is alleged to have been committed— (a) 14 years of age or more, and (b) less than 18 years of age. serious breaking and entering offence means an offence under the Crimes Act 1900, Part 4, Division 4 that is punishable by imprisonment for a term of 14 years or more. serious indictable offence has the same meaning as in the Crimes Act 1900, section 4(1). Division 3 Bail conditions 23 When bail conditions can be imposed (1) (Repealed) (2) Bail conditions can be imposed when bail is granted or a bail decision is varied. 24 (Repealed) 25 Bail conditions can impose conduct requirements (1) Bail conditions can impose conduct requirements on an accused person. (2) A conduct requirement is a requirement that the accused person do or refrain from doing anything. (3) A conduct requirement cannot require an accused person to provide security for compliance with a bail acknowledgment. Such a requirement (if any) is a security requirement and is subject to the rules for imposing security requirements. 26 Bail conditions can require security to be provided (1) A bail condition can require security to be provided for compliance with a bail acknowledgment. (2) For that purpose, a bail condition can include the following requirements— (a) that the accused person, or one or more other acceptable persons, or both, enter into an agreement under which the person agrees to forfeit a specified amount of money if the person granted bail fails to appear before a court in accordance with his or her bail acknowledgment, (b) that a specified amount of money be deposited with the bail authority (and agreed to be forfeited under such an agreement if the person granted bail fails to appear before a court in accordance with his or her bail acknowledgment), (c) that acceptable security be deposited with the bail authority as security for the payment of the money agreed to be forfeited under such an agreement. (3) A requirement of a kind referred to in this section is a security requirement. (4) A decision as to which person or persons, or class or description of persons, is an acceptable person and what security is acceptable security for the purposes of a security requirement is to be made by— (a) the bail authority imposing the bail condition, or (b) the officer or court to whom the bail acknowledgment is given (if no decision has been made under paragraph (a)). (5) A security requirement can be imposed only for the purpose of addressing a bail concern that the accused person will fail to appear at any proceedings for the offence. (6) A bail authority is not to impose a security requirement unless of the opinion that the purpose for which the security requirement is imposed is not likely to be achieved by imposing one or more conduct requirements. (7) The regulations may make further provision for security requirements and bail security agreements. Note. Part 9 contains further provisions about security requirements. 27 Bail conditions can require character acknowledgments (1) Bail conditions can require one or more character acknowledgments to be provided. (2) A character acknowledgment is an acknowledgment, given by an acceptable person, other than the accused person, to the effect that he or she is acquainted with the accused person and that he or she regards the accused person as a responsible person who is likely to comply with his or her bail acknowledgment. (3) A decision as to which person or persons, or class or description of persons, is an acceptable person for a character acknowledgment is to be made by— (a) the bail authority imposing the bail condition, or (b) the officer or court to whom the bail acknowledgment is given (if no decision has been made under paragraph (a)). (4) A bail authority is not to require a character acknowledgment unless of the opinion that the purpose for which the acknowledgment is required is not likely to be achieved by imposing one or more conduct requirements. (5) The regulations may make further provision for character acknowledgments and requirements to provide character acknowledgments. 28 Bail condition can impose accommodation requirements (1) A bail condition imposed by a court or authorised justice on the grant of bail can require that suitable arrangements be made for the accommodation of the accused person before he or she is released on bail. (2) A requirement of a kind referred to in this section is an accommodation requirement. (3) An accommodation requirement can be imposed only— (a) if the accused person is a child, or (a1) for the purpose of enabling the accused person to be admitted to a residential rehabilitation facility for treatment on the person's release on bail, or (b) in the circumstances authorised by the regulations. (4) The court responsible for hearing bail proceedings must ensure that, if an accommodation requirement is imposed in respect of a child, the matter is re-listed for further hearing at least every 2 days until the accommodation requirement is complied with. (5) The court may direct any officer of a Division of the Government Service to provide information about the action being taken to secure suitable arrangements for accommodation of an accused person. (6) The regulations may make further provision for accommodation requirements. Note. The court can also impose the following types of bail condition (conduct requirements)— (a) requiring the accused person to reside at the relevant accommodation while at liberty on bail, (b) if the accommodation requirement is for the purpose of enabling the accused person to be admitted to a residential rehabilitation facility, requiring the accused person to be accompanied by a person specified by the court to that facility on release on bail. 28A Bail condition can impose accompaniment requirements (1) A bail condition imposed by a court or authorised justice on the grant of bail can require that the accused person, when released on bail, be released into the care or company of another specified person or class of persons. (2) A requirement of a kind referred to in subsection (1) is an accompaniment requirement. 28B Bail condition must impose electronic monitoring for certain offences (1) This section applies if an accused person is— (a) subject to the requirement to show cause under section 16A for a show cause offence referred to in section 16B(1)(c1), and (b) granted bail. (2) The grant of bail must be subject to a bail condition that the accused person be subject to electronic monitoring, unless the bail authority is satisfied sufficient reasons exist, in the interests of justice, to justify not imposing the condition. Note— See also section 30A, which provides for matters relating to electronic monitoring. (2A) If the grant of bail is subject to a condition referred to in subsection (2), the accused person must remain in custody until the person has been fitted with a device that permits the electronic monitoring of the person in accordance with the condition. Note— See section 42 and the regulations, which provide that a person who has custody of an accused person granted bail must give a court notice that the accused person is still in custody within particular timeframes. (3) To avoid doubt, nothing in this section— (a) prevents a bail authority, in relation to matters to which this section does not apply, from imposing a bail condition in accordance with this Act that an accused person be subject to electronic monitoring, or (b) requires or permits a bail authority, in making a decision under Division 1A or Division 2, to be satisfied the accused person's detention is not justified, or there is not an unacceptable risk, on the basis a bail condition may be imposed requiring the accused person to be subject to electronic monitoring under this section, or (c) prevents a bail authority from varying the bail conditions to which an accused person is subject, to allow the accused person to be released on bail without being subject to electronic monitoring, if there are sufficient reasons in the interests of justice for the variation. (4) The regulations may provide for matters relating to the supervision, monitoring and enforcement of electronic monitoring imposed on accused persons as a bail condition under this section. 29 Limitation on power to impose pre-release requirements (1) The following requirements (and no other requirements) can be imposed by a bail authority as pre-release requirements— (a) a conduct requirement that requires the accused person to surrender his or her passport, (b) a security requirement, (c) a requirement that one or more character acknowledgments be provided, (d) an accommodation requirement, (e) an accompaniment requirement, (f) a requirement that the accused person be subject to electronic monitoring. Note— A bail condition that the accused person be subject to electronic monitoring may also be made under section 28B(2). If a bail condition is imposed under that section, it is not necessary for a bail authority to also impose the condition as a pre-release requirement under this paragraph. (2) A requirement of a bail condition is a pre-release requirement if the bail condition specifies that the condition must be complied with before the accused person is released on bail. (3) A pre-release requirement (other than an accommodation requirement) is complied with when the requirements specified in the bail condition that imposes the pre-release requirement, and any requirements specified in the regulations, are complied with. (4) An accommodation requirement is complied with when the court is informed by an appropriate Government representative, in writing or in person, that suitable accommodation has been secured for the accused person. (4A) An accompaniment requirement is complied with when the specified person, or a person of the specified class of persons, is present at the place from which the accused person is to be released on bail for the purpose of accompanying the accused person away from the place. (5) If all pre-release requirements are complied with, the accused person is entitled to be released (subject to the other provisions of this Act) without any rehearing of the matter. (5A) The regulations may provide for matters relating to the supervision, monitoring and enforcement of electronic monitoring imposed on accused persons as a pre-release requirement under this section. (6) In this section, an appropriate Government representative means— (a) the Director-General of the Department of Family and Community Services or a delegate of the Director-General (if the accused person is a child), or (b) the Director-General of the Department of Attorney General and Justice or a delegate of the Director-General, or (c) the Commissioner of Corrective Services or a delegate of the Commissioner, or (d) any other person prescribed by the regulations. 30 Bail conditions may include enforcement conditions (1) Bail conditions can include one or more enforcement conditions that are imposed for the purpose of monitoring or enforcing compliance with another bail condition (the underlying bail condition). (2) An enforcement condition is a bail condition that requires the person granted bail to comply, while at liberty on bail, with one or more specified kinds of police directions (given for the purpose of monitoring or enforcing compliance with the underlying bail condition). (3) An enforcement condition can be imposed— (a) by a court only, and (b) only at the request of the prosecutor in the proceedings. (4) An enforcement condition is to specify— (a) the kinds of directions that may be given to the person while at liberty on bail, and (b) the circumstances in which each kind of direction may be given (in a manner that ensures that compliance with the condition is not unduly onerous), and (c) the underlying bail condition or conditions in connection with which each kind of direction may be given. Note. For example, an enforcement condition imposed in connection with an underlying bail condition that requires a person to refrain from consuming drugs or alcohol may require the person to undergo testing for drugs or alcohol as directed by a police officer and may include specifications as to when such directions may be given. (5) An enforcement condition can be imposed only if the court considers it reasonable and necessary in the circumstances, having regard to the following— (a) the history of the person granted bail (including criminal history and particularly if the person has a criminal history involving serious offences or a large number of offences), (b) the likelihood or risk of the person committing further offences while at liberty on bail, (c) the extent to which compliance with a direction of a kind specified in the condition may unreasonably affect persons other than the person granted bail. 30A Bail conditions requiring electronic monitoring If bail conditions impose a requirement for the accused person to be subject to electronic monitoring— (a) the bail authority must be satisfied the electronic monitoring is of a standard that at least meets any minimum standards prescribed in the regulations, and (b) the bail condition must require the electronic monitoring to be of a standard that at least meets any minimum standards prescribed in the regulations. Division 4 Procedural requirements 31 Rules of evidence do not apply (1) A bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence. (2) This section does not apply— (a) to proceedings for an offence in relation to bail, or (b) to proceedings under Schedule 2 (Forfeiture of security). 32 Matters to be decided on balance of probabilities (1) Any matter that must be decided by a bail authority in exercising a function in relation to bail is to be decided on the balance of probabilities. (2) This section does not apply to proceedings for an offence in relation to bail. Part 4 Procedures after decision is made or varied Division 1 Functions of bail authorities Note. This Division sets out the procedures applicable to all bail decisions. Additional procedures apply to police under Division 1 of Part 5. 33 Bail acknowledgment to be given on grant of bail (1) A bail authority that grants bail to an accused person must, as soon as practicable, ensure the person is given a bail acknowledgment for the decision. (2) A bail acknowledgment is a written notice that— (a) requires the accused person to appear before a court, on such day and at such time and place as are from time to time specified in a notice given or sent to the person as prescribed by the regulations, and (b) requires the accused person to notify the court before which the accused person is required to appear of any change in the person's residential address. Note. An accused person is not entitled to be released on bail under Part 2 until he or she signs the bail acknowledgment and gives it to the bail authority. (3) An accused person who is granted bail is under a duty to comply with the requirements of the bail acknowledgment. Note. An accused person who fails to appear as required by the bail acknowledgment commits an offence. Contravention of the requirements of a bail acknowledgment can also lead to bail being revoked. (4) The bail acknowledgment must also— (a) warn the person that committing an offence while on bail could result in a more severe penalty being imposed on conviction for that offence, and (b) set out the bail conditions (if any), and (c) explain the consequences that may follow if the person fails to comply with his or her bail acknowledgment or bail conditions, and (d) include any information regarding the review or variation of the decision the regulations require to be provided when bail is granted. (5) The bail authority is to take reasonably practicable steps to ensure that the person granted bail understands the bail acknowledgment. (6) The regulations may make further provision for bail acknowledgments. 34 Notice of refusal of bail to be given (1) A court or authorised justice that refuses bail or that revokes bail must, as soon as practicable, ensure the accused person is given— (a) a written notice setting out the terms of the decision, and (b) any information regarding the review or variation of the decision the regulations require to be provided when bail is refused. (2) The regulations may make further provision for the requirement to give notice under this section and this section has effect subject to the regulations. 35 Notice of variation of bail conditions to be given A bail authority that varies any bail condition must ensure the accused person is given a written notice setting out the terms of the bail condition as varied. 36 Information to be provided about bail security agreements (1) A bail authority must take all reasonable steps to ensure that a person who enters into a bail security agreement is made aware of— (a) the obligations of the person under that agreement, and (b) the consequences that may follow if the person granted bail fails to comply with his or her bail acknowledgment. (2) A bail authority must ensure that any person (other than an accused person) who enters into a bail security agreement in compliance with a bail condition is given a written notice setting out the terms of the condition. (3) A bail authority that varies a bail condition that requires entry into a bail security agreement must ensure that any person (other than the accused person) who entered into a bail security agreement in compliance with the bail condition is given a written notice setting out the terms of the condition as varied. 37 Information to be provided about character acknowledgments (1) A bail authority must, before a person provides a character acknowledgment, take all reasonable steps to ensure that the person is informed that providing false or misleading information in a character acknowledgment is a serious offence. Note. The provision of false or misleading information to a public authority or to a person exercising functions under a law of the State is an offence under section 307B of the Crimes Act 1900. (2) A bail authority must ensure that any person who provides a character acknowledgment is given a written notice setting out the terms of the bail condition under which the acknowledgment is required. (3) A bail authority that varies a bail condition that requires provision of a character acknowledgment must ensure that any person who provided a character acknowledgment in compliance with the bail condition is given a written notice setting out the terms of the condition as varied. 38 Reasons for decision to be recorded (1) A bail authority that refuses bail must immediately record the reasons for refusing bail, including (if bail was refused because of an unacceptable risk) the unacceptable risk or risks identified by the bail authority. (2) A bail authority that imposes bail conditions must immediately make a record that— (a) specifies the reasons for not granting bail unconditionally, and (b) sets out the bail concern or concerns identified by the bail authority. (3) The record must include the bail authority's reasons for imposing any security requirement or requiring any character acknowledgments. (4) If an accused person requests that certain bail conditions be imposed, and other bail conditions are imposed, the bail authority must record reasons for imposing the other conditions. (5) The regulations may make provision for the making of records under this section and the manner of retaining and otherwise dealing with those records. 39 Power to issue warrant of commitment (1) A court or authorised justice may, if bail is refused to an accused person or is revoked, issue a warrant remanding the accused person to a correctional centre or other place of security. (2) A court or authorised justice may, if a person granted bail fails to sign a bail acknowledgment, issue a warrant remanding the accused person to a correctional centre or other place of security until the person signs the acknowledgment concerned. (3) A court or authorised justice may, if a person granted bail has not complied with any pre-release requirement of a bail condition, issue a warrant remanding the accused person to a correctional centre or other place of security until the bail condition is complied with. Division 2 General 40 Stay of release decision if detention sought (1) A decision of a court or authorised justice to grant bail or dispense with bail for a serious offence is stayed if— (a) a bail decision for the offence, other than a bail decision under section 54, has not previously been made by a court or authorised justice, and (b) a police officer or Australian legal practitioner appearing on behalf of the Crown immediately— (i) informs the court or authorised justice that a detention application is to be made to the Supreme Court, and (ii) provides the court or authorised justice with a copy of the written approval of an authorised officer or the Director of Public Prosecutions to make a detention application to the Supreme Court if bail is granted or dispensed with. (2) The stay of the decision has effect until one of the following occurs (whichever happens first)— (a) the Supreme Court affirms or varies the decision, or substitutes another decision for the bail decision, or refuses to hear the detention application, (b) a police officer or some other person acting on behalf of the Crown files with the Supreme Court, or such other court as may be prescribed by the regulations, notice that the Crown does not intend to proceed with the detention application, (c) 4pm on the day that is 3 business days after the day on which the decision was made. (3) A bail decision does not entitle a person to be at liberty while the decision is stayed. (4) A detention application made to the Supreme Court when a decision is stayed under this section is to be dealt with as expeditiously as possible. (5) In this section— authorised officer means the Commissioner of Police or a member of the NSW Police Force authorised by the Commissioner of Police to exercise the functions of an authorised officer under this section. business day means a day that is not a Saturday, a Sunday or a public holiday throughout New South Wales. serious offence means— (a) the offence of murder or any other offence punishable by imprisonment for life, or (b) an offence under or mentioned in a provision of Part 3 of the Crimes Act 1900 involving sexual intercourse, or an attempt to have sexual intercourse, with a person under the age of 16 years, or (c) a serious domestic violence offence, or (d) an offence against the Crimes Act 1900, section 54D, or (e) an offence against a provision of the Crimes Act 1900, Part 3, Division 10, Subdivision 2. 41 Limitation on length of adjournments if bail refused (1) If an accused person is refused bail for an offence— (a) an authorised justice or the Local Court is not to adjourn the hearing of the matter for a period exceeding 8 clear days, except with the consent of the accused person, and (b) an authorised justice who is not a registrar of the Local Court is not to adjourn the hearing of the matter, on a first adjournment, for a period exceeding 3 clear days, and (c) any second or subsequent adjournment of the hearing by an authorised justice who is not a registrar of t