Victorian Current Acts Victorian Current ActsAfter Part 2 of the Bail Act 1977 insert —
In this Part—
applicable decision has the meaning given by section 17D;
"Secretary" means the Secretary to the Department of Justice and Community Safety;
suitability report has the meaning given by section 17F.
(1) A decision—
(a) of whether or not to grant bail to an accused (whether on a first or further application or on appeal or otherwise); or
(b) of whether to vary the conditions of bail—
is an applicable decision if it meets the criteria set out in subsection (2).
(2) The criteria are—
(a) that the accused is of an eligible age under subsection (3) or (4); and
(b) that the bail decision maker is either—
(i) the Children's Court sitting at a venue that is in a prescribed region of the State; or
(ii) the Supreme Court; and
(c) that the additional prescribed criteria (if any) are met; and
(d) that the decision is to be made before the second anniversary of the commencement of this Part.
(3) The accused is of an eligible age if, at the time that the decision is to be made, the accused is—
(a) 14 years of age or over; and
(b) under 18 years of age.
(4) Additionally, the accused is of an eligible age if—
(a) the accused is 18 years of age at the time that the decision is to be made; and
(b) the accused was under 18 years of age at the time of the alleged offending.
(1) The following conditions imposed in respect of a grant of bail are the "electronic monitoring conditions"—
(a) a condition that the accused must for 24 hours of each day wear an electronic monitoring device fitted to the accused at the direction of the Secretary; and
(b) a condition that the accused must not, without reasonable excuse, tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring; and
(c) a condition that the accused must comply with any direction given by the Secretary, that is necessary for the Secretary to give, to ensure that the accused is electronically monitored.
(2) A reference in this Part to an accused who is subject to electronic monitoring conditions is a reference to an accused on bail in respect of whom the electronic monitoring conditions have been imposed.
(1) A suitability report is a report the Secretary causes to be prepared that—
(a) is in respect of a particular accused; and
(b) sets out the author's opinion on—
(i) whether the accused is suitable to be electronically monitored on bail; and
(ii) whether there are adequate resources and equipment to enable the accused to be electronically monitored on bail; and
(c) explains the basis for those opinions, including by identifying and describing the information that informed those opinions; and
(d) includes the prescribed material (if any).
(2) Nothing in this section prevents the inclusion of any other material in a suitability report.
A bail decision maker who is making an applicable decision may impose the electronic monitoring conditions if—
(a) the bail decision maker is to impose, as conduct conditions, either or both of—
(i) a curfew; and
(ii) a geographical exclusion zone; and
(b) the bail decision maker is of the opinion that it is appropriate to impose the electronic monitoring conditions in order to monitor compliance with the proposed conduct conditions referred to in paragraph (a); and
Note
Section 5AAA(2) also requires that each condition and the number of conditions imposed must be no more onerous than is required, must be reasonable, and must be consistent with various orders and other instruments.
(c) the bail decision maker is to impose a conduct condition requiring that the accused is to reside at an address that is in a prescribed region of the State; and
(d) the bail decision maker has received a suitability report in respect of the accused and, having regard to the report, is of the opinion that—
(i) the accused is a suitable person to be electronically monitored on bail; and
(ii) adequate resources and equipment are available to enable the accused to be electronically monitored on bail.
(a) an applicable decision is to be made by a bail decision maker; and
(b) the bail decision maker is considering imposing, as conduct conditions, either or both of—
(i) a curfew; and
(ii) a geographical exclusion zone; and
(c) the bail decision maker holds the opinion described in section 17G(b).
(2) The bail decision maker may—
(a) order the Secretary—
(i) to cause a suitability report to be prepared in respect of the accused; and
(ii) to cause the suitability report to be filed on or before a day and time specified by the court; and
(iii) to cause copies of the suitability report to be provided, on or before a day and time specified by the court, to each of the parties to the matter in which the applicable decision is to be made; and
(b) adjourn the hearing of the matter; and
(c) without limiting any other order the bail decision maker may make, remand the accused in custody to appear before the bail decision maker on the next hearing of the matter.
(1) If an accused is subject to electronic monitoring conditions—
(a) the presence of those conditions does not prevent that bail from being extended by a bail decision maker who did not impose those conditions; and
(b) on an extension of bail, the electronic monitoring conditions continue to apply regardless of whether the bail was extended by someone other than the bail decision maker who imposed those conditions.
(2) Nothing in this section authorises a bail decision maker to impose electronic monitoring conditions when extending bail.
If an accused is subject to electronic monitoring conditions and—
(a) a bail decision maker varies the conditions of bail by revoking—
(i) a curfew; or
(ii) a geographical exclusion zone; and
(b) as a consequence of that variation, no conduct conditions referred to in paragraph (a) remain—
the electronic monitoring conditions are also revoked.
The fact that an accused who is subject to electronic monitoring conditions turns 18 or 19 years of age does not revoke, invalidate or otherwise affect the operation of those conditions.
(1) If an accused ceases to be subject to electronic monitoring conditions as described in subsection (2)—
(a) an authorised officer—
(i) may remove the electronic device worn by the accused; and
(ii) may remove any equipment used for the electronic monitoring that is—
(A) at the address at which the accused resides; or
(B) in the possession of the accused; or
(C) on the person of the accused; and
(b) the Secretary—
(i) must ensure that an authorised officer undertakes the removal described in paragraph (a)(i) as soon as is practicable; and
(ii) must ensure that an authorised officer undertakes the removal described in paragraph (a)(ii) within a reasonable time.
(2) For the purposes of subsection (1), an accused who is subject to electronic monitoring conditions ceases to be subject to those conditions if—
(a) the bail of the accused is revoked; or
(b) the electronic monitoring conditions are revoked; or
(c) the matter in relation to which the electronic monitoring conditions were imposed is finally determined by a court.
(3) Despite subsection (1)(a), a person referred to in paragraph (c) of the definition of authorised officer in subsection (6) may remove an electronic monitoring device or equipment used for electronic monitoring only on a direction given by the Secretary.
(4) If practicable, before removing an electronic monitoring device or equipment used for electronic monitoring, an authorised officer must inform the accused of the following—
(a) the removal is to occur; and
(b) the accused may consent to the removal; and
(c) if consent is not given, reasonable force may be used—
(i) to remove the device or equipment; and
(ii) if the case requires, to enter a place where the accused resides in order to remove the device or equipment.
(5) If the accused does not consent to the removal of an electronic monitoring device or equipment used for the electronic monitoring, an authorised officer may use reasonable force—
(a) to remove the device or equipment from the accused; and
(b) to enter a place where the accused resides in order to remove the device or equipment.
(6) In this section—
"authorised officer" means—
(a) a police officer; or
(b) a police custody officer; or
(c) a person who—
(i) is employed in the Department of Justice and Community Safety under Part 3 of the Public Administration Act 2004 ; and
(ii) is authorised, or belongs to a class of persons authorised, by the Secretary for the purposes of this section; or
(d) a person who belongs to a prescribed class.
(1) A police officer or a police custody officer may remove an electronic monitoring device being worn by a person if the person is arrested on suspicion of having committed an offence.
(2) If practicable, before removing the electronic monitoring device, a police officer or police custody officer must inform the person of the following—
(a) the removal is to occur; and
(b) the person may consent to the removal; and
(c) if consent is not given, reasonable force may be used to remove the device.
(3) If the person does not consent to the removal of the electronic monitoring device, a police officer or police custody officer may use reasonable force to remove the device from the person.
(4) If a person whose electronic monitoring device is removed under subsection (1) is to be released from custody, the fact that the person is not yet again wearing an electronic monitoring device—
(a) does not prevent the person being released from custody; and
(b) does not provide a basis on which to continue to detain the person.
Note
The Secretary has power to direct that an electronic monitoring device be fitted to the person, and the person's obligation under the electronic monitoring conditions is to wear a device fitted in accordance with such a direction—see section 17E(1)(a).
(1) A person must not use or disclose any personal or confidential information that is obtained as a result of the use of—
(a) an electronic device that an accused is required to wear under an electronic monitoring condition; or
(b) equipment used for the electronic monitoring of an accused under an electronic monitoring condition—
unless that use or disclosure is specified under subsection (2) or by the regulations.
Penalty: 120 penalty units.
(2) The specified uses and disclosures are—
(a) use or disclosure by a person that is reasonably necessary for the person to perform their duties, functions or powers in relation to a grant of bail; and
(b) use or disclosure that is reasonably necessary for the preparation for, conduct of or participation in proceedings in any court in relation to a grant of bail; and
(c) use or disclosure that occurs with the authorisation, or at the request of, the person to whom the information relates; and
(d) use or disclosure that occurs to the extent necessary for a purpose related to law enforcement, including the detection, investigation, prosecution or prevention of contraventions of the law; and
(e) both of the following—
(i) disclosure to an Australian legal practitioner for the purpose of obtaining legal advice or representation; and
(ii) use and disclosure by that Australian legal practitioner for that purpose; and
(f) disclosure to the Secretary; and
(g) use or disclosure that is authorised or required by or under this or any other Act, including—
(i) use or disclosure that is authorised under subsection (3); and
(ii) use or disclosure that is authorised under Part 5A of the Family Violence Protection Act 2008 ; and
(iii) use or disclosure that is authorised under Part 6A of the Child Wellbeing and Safety Act 2005 .
(3) The Minister may authorise, in writing, a particular use or disclosure of personal or confidential information referred to in subsection (1).
(4) In this section, "personal or confidential information" includes the following—
(a) information relating to the personal affairs of an accused who is or was subject to electronic monitoring conditions;
(b) information—
(i) that identifies any person; or
(ii) discloses any person's address or location; or
(iii) discloses any journey made by a person; or
(iv) from which any person's identity, address or location can reasonably be determined;
(c) information contained in a report given to a court that is not disclosed in a decision of the court or in any reasons given by the court for a decision of the court;
(d) information concerning the investigation of a contravention or possible contravention of the law by the accused.
(1) The Secretary may delegate by instrument any power or duty of the Secretary under this Part to a person employed under Part 3 of the Public Administration Act 2004 .
(2) A delegation under subsection (1) may be to—
(a) a specified person; or
(b) a specified class of persons.
(1) The Governor in Council may make regulations for or with respect to—
(a) criteria to be met for a decision to be an applicable decision for the purposes of this Part;
(b) material that is to be included in a suitability report;
(c) prescribing a class of persons who may remove electronic monitoring devices and other equipment;
(d) specifying uses and disclosures of personal or confidential information within the meaning of section 17N for the purposes of section 17N(1);
(e) the electronic monitoring of persons who are subject to electronic monitoring conditions;
(f) the detection, investigation and prevention of contraventions of—
(i) electronic monitoring conditions; and
(ii) curfews and geographical exclusion zones imposed alongside electronic monitoring conditions;
(g) prescribing any other matter or thing required to be prescribed by this Part or necessary to be prescribed to give effect to this Part.
(2) Regulations made under this section may—
(a) be of general or limited application; and
(b) differ according to differences in time, place or circumstance; and
(c) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or by persons of a specified class; and
(d) confer powers or impose duties on a specified person or on persons of a specified class; and
(e) may provide in a specified case, or in cases of a specified class, for the exemption of persons or things from any of the provisions of the regulations—
(i) whether unconditionally or on specified conditions; and
(ii) either wholly or to a specified extent; and
(f) may impose a penalty not exceeding 20 penalty units for a contravention of the regulations.".
Division 2—Scheduled offences, unacceptable risk and conduct conditions