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BAIL ACT 2013 - SCHEDULE 2

SCHEDULE 2 – Forfeiture of security

Part 1 - Preliminary

1 Definitions

(1) In this Schedule--

"appropriate State authority" means such person or body as is declared by the regulations to be the appropriate State authority for the purposes of this Schedule.

"automatic forfeiture order" means an order under clause 3.

"forfeiture notice" means a notice under clause 4.

"forfeiture order" means an order under clause 2 and includes, unless the context otherwise requires, an automatic forfeiture order.

"person affected" by a forfeiture order means the person whose bail money is forfeited to the Crown by operation of the order.

"statutory review period" , for a forfeiture order, means the period of 28 days after service of a forfeiture notice for the order during which a person affected by the order may file an objection to the confirmation of the order.
(2) For the purposes of this Schedule, bail money is
"associated" with a bail acknowledgment if the bail money is money agreed to be forfeited under a bail security agreement if an accused person fails to appear before a court in accordance with the bail acknowledgment.

Part 2 - Forfeiture orders

2 Court may make forfeiture order if accused person fails to appear

(1) A court may make an order requiring the forfeiture to the Crown of any bail money associated with a bail acknowledgment if satisfied that a person granted bail has failed to appear before a court in accordance with the bail acknowledgment.
(2) An order under this clause is a
"forfeiture order" .
(3) A forfeiture order may be made only by--
(a) the court that granted bail, or
(b) the court before which the person granted bail was required to appear under the bail acknowledgment.
(4) A forfeiture order may not be made if more than 3 years have elapsed since the accused person allegedly failed to appear before the court in accordance with the relevant bail acknowledgment.

3 Forfeiture after conviction for offence of failing to appear

(1) A court is taken to have made a forfeiture order under this Schedule in respect of any bail money associated with a bail acknowledgment if the court convicts a person of a fail to appear offence in connection with the bail acknowledgment.
(2) An order under this clause is an
"automatic forfeiture order" .
(3) This clause does not affect the power of a court to make a forfeiture order in relation to a person who has not been convicted of a fail to appear offence.

4 Persons affected to be notified of forfeiture order

(1) The registrar of the court by which a forfeiture order is made must cause written notice of the making of the order to be served on each person affected by the order as soon as practicable after it is made.
(2) A notice under this clause is a
"forfeiture notice" .
(3) A forfeiture notice--
(a) must contain such information as the regulations require, and
(b) must be sent by post to the person at the person's address specified in the relevant bail acknowledgment or, if the person has subsequently notified the court of a change of address, to the person's address most recently notified, and
(c) is presumed to have been served on the person at the end of the seventh day after it was posted, unless the person establishes that it was not delivered to that address within that time.
(4) This clause ceases to apply if, before the notice is sent, an oral objection to the confirmation of the forfeiture order is made under this Part.

5 Formal objection to confirmation of forfeiture order

(1) Any person affected by a forfeiture order may file an objection to the confirmation of the order in the Local Court.
(2) Such an objection may not be made more than 28 days after service of the forfeiture notice issued for the forfeiture order.
(3) An objection must be made in accordance with rules of court and must include the grounds on which the applicant intends to rely.
(4) The Local Court must ensure that notice of such an objection is given to the appropriate State authority in accordance with the regulations.

6 Hearing of formal objection to confirmation of forfeiture order

(1) If an objection to a forfeiture order is duly made to the Local Court, the Local Court must conduct a hearing to determine whether or not the order should be confirmed.
(2) After conducting a hearing, the Local Court must confirm the forfeiture order unless it is satisfied that the accused person did not fail to comply with the relevant bail acknowledgment, in which case it must set the forfeiture order aside.
(3) However, if it is satisfied that in the circumstances of the case it would be unjust for the forfeiture order to be confirmed in full in respect of a particular person affected by the order, the Local Court--
(a) may vary the order so as to reduce the amount of bail money to be forfeited by that person, and
(b) in that event, must confirm the order as so varied.
(4) The Local Court may be satisfied that it would be unjust for a forfeiture order to be confirmed in full in respect of a particular bail guarantor if it is satisfied that the guarantor took all reasonable steps to ensure that the person granted bail complied with the bail acknowledgment.
(5) This clause does not apply in respect of an automatic forfeiture order.

7 Hearing of formal objection to automatic forfeiture order

(1) If an objection to the confirmation of an automatic forfeiture order is duly made to the Local Court, the Local Court must conduct a hearing to determine whether or not the order should be confirmed.
(2) After conducting a hearing, the Local Court must confirm the forfeiture order unless it is satisfied as referred to in subclause (3).
(3) If the Local Court is satisfied that in the circumstances of the case it would be unjust for the forfeiture order to be confirmed in full in respect of a particular person affected by the order, the Local Court--
(a) may vary the order so as to reduce the amount of bail money to be forfeited by that person, and
(b) in that event, must confirm the order as so varied.
(4) The Local Court may be satisfied that it would be unjust for a forfeiture order to be confirmed in full in respect of a particular bail guarantor if it is satisfied that the guarantor took all reasonable steps to ensure that the accused person complied with the relevant bail acknowledgment.

8 Informal objection to forfeiture order

(1) If, after a forfeiture order is made but before a forfeiture notice is served, a person affected by the order appears before the court by which the order was made, that person may make an oral objection to the court against the confirmation of the order.
(2) The court must ensure that notice of the objection is given to the appropriate State authority in accordance with the regulations.
(3) The court may deal with the objection as if it had been an objection filed in the Local Court in response to a forfeiture notice.

9 When forfeiture order takes effect

(1) A forfeiture order takes effect--
(a) at the expiry of the statutory review period, or
(b) if an objection to the confirmation of the order is duly made to a court before the expiry of the statutory review period, when the order is confirmed by the court.
(2) A forfeiture order does not take effect if it is set aside under this Schedule.
(3) No action may be taken to enforce a forfeiture order until the date the order takes effect.

10 Effect of forfeiture order

(1) As soon as a forfeiture order takes effect, the bail money to which it relates--
(a) is forfeited to the Crown, in the case of bail money that is deposited with a bail authority, or
(b) becomes payable to the Crown, in the case of bail money that is agreed to be paid to an authorised officer or court.
(2) In the case of unpaid bail money, any bail security becomes enforceable in accordance with its terms.
(3) No action is to be taken to enforce any bail security the subject of an unconfirmed forfeiture order until 12 months after the date on which the order was made.
(4) In this clause, an
"unconfirmed forfeiture order" means any forfeiture order that was not objected to during the statutory review period.

11 Persons affected to be notified that forfeiture order has taken effect

(1) As soon as practicable after a forfeiture order takes effect, the registrar of the court by which the order was made must cause written notice that the order has taken effect to be served on each person affected by the order.
(2) The notice--
(a) must contain such information as the regulations require, and
(b) must be sent by post to the person at the person's address specified in the relevant bail acknowledgment or, if the person has subsequently notified the court of a change of address, to the person's address most recently notified, and
(c) is presumed to have been served on the person at the end of the seventh day after it was posted, unless the person establishes that it was not delivered to that address within that time.

12 Notice of forfeiture order for enforcement

(1) The registrar of the court by which a forfeiture order is made is to notify the Commissioner of Fines Administration if any bail money to which a forfeiture order relates remains unpaid after the order takes effect and of the amount of bail money that remains unpaid as at the date of the notice.
(2) A registrar who gives notice under this clause must, on the request of the Commissioner of Fines Administration, provide the Commissioner of Fines Administration with one or more of the following--
(a) a copy of the forfeiture order,
(b) a copy of the bail decision and the relevant bail security agreement,
(c) a copy of all documents evidencing any relevant bail security,
(d) a copy of a certificate, prepared by the registrar who made the notification, indicating the amount of bail money that remained unpaid as at the date notification was given.
(3) A copy of the certificate referred to in subclause (2) (d) is admissible in any legal proceedings and is evidence of the matters stated in the certificate.

13 Payment of forfeited bail money

(1) Bail money that becomes payable to the Crown as a consequence of a forfeiture order taking effect must be paid--
(a) if paid before the Commissioner of Fines Administration is notified of the order--to the registrar of the court by which the order was made, or
(b) if paid after the Commissioner of Fines Administration is notified of the order--to the Commissioner of Fines Administration.
(2) A bail guarantor by whom an amount of bail money is payable is entitled to the return of any bail security deposited for that amount if he or she pays that amount in money to the court by which the forfeiture order was made or to the Commissioner of Fines Administration, as the case requires.

Part 3 - Power to set aside forfeiture orders

14 Application to set aside forfeiture order

(1) Any person affected by a forfeiture order may file in the Local Court an application to have the order set aside.
(2) An application may be made by the person only if the person did not object to the confirmation of the forfeiture order within the statutory review period.
(3) An application must be made within 12 months after the date on which the forfeiture order was made.
(4) An application must be made in accordance with rules of court and must include the grounds on which the applicant intends to rely.
(5) The relevant registrar of the Local Court must ensure that copies of such an application are given--
(a) to the appropriate State authority, and
(b) to the Commissioner of Fines Administration.
(6) Action to enforce the order may not be commenced or continued until proceedings on an application under this clause are finally determined.

15 Hearing of application to set aside forfeiture order

(1) If an application to have a forfeiture order set aside is duly made to the Local Court and the Court is satisfied that the applicant can be excused for failing to lodge an objection to the order, the Court must conduct a hearing to determine whether or not the order should be set aside.
(2) An applicant can be excused for failing to lodge an objection to a forfeiture order if and only if--
(a) notice of the making of the order was not served on the applicant, and
(b) the applicant did not otherwise become aware that the order had been made before the expiry of the statutory review period.
(3) After conducting a hearing on the application, the Local Court has the same powers to confirm or set aside the order, or vary the order, as it has in respect of an objection to the making of a forfeiture order (subject to the same limitations as would apply if the application had been an objection).
Note : See clauses 6 and 7.
(4) Notice of the Local Court's determination of the application is to be given to the Commissioner of Fines Administration.

Part 4 - Miscellaneous

16 Effect of setting aside forfeiture order

(1) If a court sets aside a forfeiture order, each person affected by the order is entitled to the return of--
(a) any bail money or bail security that has been provided by that person, or seized from that person, in relation to the bail acknowledgment to which the order relates, and
(b) the proceeds of sale of any bail security so provided or seized.
(2) If a court varies a forfeiture order so as to reduce the amount of money forfeited by a particular person affected by the order, that person is entitled to the return of--
(a) any bail money or bail security that has been provided by that person, or seized from that person, in relation to the bail acknowledgment to which the order relates, and
(b) the proceeds of sale of any bail security so provided or seized,
to the extent to which the amount of any such bail money, bail security or proceeds of sale exceeds the reduced amount of money forfeited.
(3) A court that sets aside a forfeiture order may make such orders as are necessary to effect the return of any such bail money, bail security or proceeds of sale.
(4) The Consolidated Fund is appropriated to the extent necessary to enable money that has been paid into that Fund to be returned in accordance with this clause.

17 Appeals

(1) An appeal may be made to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001 against--
(a) the Local Court's determination of an objection to a forfeiture order, or
(b) the Local Court's determination of an application to have a forfeiture order set aside.
(2) Part 3 of the Crimes (Appeal and Review) Act 2001 applies, with such modifications as are made by or in accordance with the regulations under this Act, to the appeal as if the Local Court's determination were a determination of a court attendance notice under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 .
(3) The relevant registrar of the Local Court must ensure that notice of the appeal is given--
(a) to the appropriate State authority, and
(b) to the Commissioner of Fines Administration.
(4) Action to enforce the order may not be commenced or continued until proceedings on an appeal under this clause are finally determined.

18 Court of Criminal Appeal may authorise other courts to take action

If a person granted bail is under a duty to appear before the Court of Criminal Appeal in connection with an appeal--

(a) the Court of Criminal Appeal may instead authorise the court from which the appeal arose to take any action under this Schedule that the Court of Criminal Appeal is authorised to take, and
(b) in that event, the court from which the appeal arose may take such action.

19 Crown is a party to forfeiture proceedings

The Crown, and the appropriate State authority, are entitled to appear and be heard at, and are taken to be parties to, all proceedings under this Schedule.



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