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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Arrest Procedures and Bail)
Bill 2013
A BILL FOR
An Act to amend the Bail
Act 1985 and the Summary
Offences Act 1953.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment of Bail
Act 1985
4Amendment of
section 3—Interpretation
5Amendment of section 5—Bail
authorities
6Amendment of section 6—Nature of bail
agreement
7Amendment of section 7—Guarantee of
bail
8Amendment of section 11—Conditions of
bail
9Substitution of
section 13
13Procedure
on arrest
10Substitution of section
15
15Telephone
review
11Substitution of section
16
16Stay of release on
application for review
12Amendment of section 18—Arrest of
eligible person on non-compliance with bail agreement
13Amendment of section
19A—Arrest of person who is serious and organised crime
suspect
Part 3—Amendment of Summary Offences
Act 1953
14Amendment of section 76—Arrest by owner
of property etc
15Amendment of section 77—Arrest of
persons pawning or selling stolen goods
16Amendment of section 78—Person
apprehended without warrant—how dealt with
17Amendment of section 79—Arrest
without warrant if warrant has been issued
Schedule 1—Statute law revision
amendments of Bail Act 1985
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Arrest Procedures and
Bail) Act 2013.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Bail Act 1985
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of community
corrections officer insert:
designated police facility has the same meaning as in
section 78 of the
Summary
Offences Act 1953;
(2) Section 3(1)—after the definition of intervention
program manager insert:
officer in charge, in relation to a police station, means the
police officer for the time being in charge of the police station;
responsible officer, in relation to a police station,
means—
(a) the officer in charge of the police station; or
(b) if a police officer has, for the time being, been designated by the
officer in charge of the police station as the officer with responsibility for
persons accepted into custody at the police station—that
officer;
5—Amendment
of section 5—Bail authorities
Section 5(1)(e)—delete paragraph (e) and
substitute:
(e) if the eligible person—
(i) has been arrested on a warrant (other than a warrant endorsed by the
court or justice issuing the warrant with a statement excluding the granting of
bail by a police officer); or
(ii) has not appeared before a court charged with the offence in respect
of which he or she has been taken into custody,
a police officer who is—
(iii) of or above the rank of sergeant; or
(iv) the responsible officer for a police station;
6—Amendment
of section 6—Nature of bail agreement
Section 6(3)(b)—delete paragraph (b) and
substitute:
(b) a police officer who is—
(i) of or above the rank of sergeant; or
(ii) the responsible officer for a police station; or
7—Amendment
of section 7—Guarantee of bail
Section 7(3)(b)—delete paragraph (b) and
substitute:
(b) a police officer who is—
(i) of or above the rank of sergeant; or
(ii) the responsible officer for a police station; or
8—Amendment
of section 11—Conditions of bail
Section 11(6)(c)(ii)—delete subparagraph (ii) and
substitute:
(ii) a police officer who is—
(A) of or above the rank of sergeant; or
(B) the responsible officer for a police station.
Section 13—delete the section and substitute:
13—Procedure on arrest
(1) If a police officer arrests a person who is, on arrest, eligible to
apply for release on bail, the police officer must—
(a) as soon as reasonably practicable after delivering the arrested person
to a police station or designated police facility after making the arrest, take
reasonable steps to ensure that the arrested person (and, if the arrested person
is a child, any guardian who is present) understands that the arrested person is
entitled to apply for release on bail under this Act; and
(b) ensure that the arrested person (and, if the arrested person is a
child, any guardian who is present) receives—
(i) a written statement, in the prescribed form, explaining how, and to
what authorities, an application for release on bail may be made under this Act;
and
(ii) the appropriate form for making an application for release on bail.
(2) An eligible person who is a child who has applied unsuccessfully to a
police officer for release on bail must, if the child or a guardian so requests,
be brought before the Youth Court as soon as practicable for the purpose of
making an application for release on bail.
(3) An eligible person
who has been arrested on a charge of an offence must, if not released
beforehand, be brought before the appropriate authority on the charge in
relation to which he or she was arrested as soon as reasonably practicable but,
in any event, not later than 4 pm on the next working day following the day
of arrest.
(4) The appropriate authority before whom a person is brought under
subsection (3) must
inquire as to whether that person wants to apply for release on bail and, if the
person answers in the affirmative, the authority must afford the person a
reasonable opportunity to apply for release on bail.
(5) For the purposes of this section, an eligible person may be brought
before the Youth Court or the Magistrates Court—
(a) in person or by video link; or
(b) if the person is in custody in a police station or designated police
facility that is situated in a remote area and there is no video link
available—by audio link.
(6) In this section—
appropriate authority means—
(a) in relation to a child—the Youth Court; and
(b) in any other case—the Magistrates Court;
remote area, in relation to the situation of a police station
or designated police facility, means—
(a) 400 kilometres or more; or
(b) if some other distance is prescribed by the regulations for the
purposes of this definition—that distance,
from the nearest Youth Court or Magistrates Court (as the case
requires);
Youth Court means the Youth Court of South
Australia.
Section 15—delete the section and substitute:
15—Telephone review
(1) Subject to this
section, if—
(a) an arrested person makes an application for release on bail to a
police officer or a court constituted of justices; and
(b) the person is dissatisfied with the decision made on the application;
and
(c) there is no magistrate in the vicinity immediately available to review
the decision,
the police officer or justices who made the decision must, on the written
application of the person, contact a magistrate by telephone for the purpose of
having the decision reviewed.
(2) An arrested person
dissatisfied with a decision made on application to a police officer on arrest
who can be brought before the Magistrates Court constituted of a magistrate by
not later than 4 pm on the next day following the day of arrest may not,
unless he or she is a child, make an application under
subsection (1) for a
review of the decision.
(3) If the arrested person is a child, the written application under
subsection (1) may
be made on behalf of the child by a guardian of the child.
(4) If, in relation to the original application for bail, compliance with
section 8(1) was not required under section 8(1a) in that the
application was not required in writing, the application for a telephone review
under
subsection (1) may
be made orally.
(5) If the police officer who made the decision is not immediately
available to contact a magistrate, contact must be made by another police
officer of or above the rank of sergeant or in charge of a police
station.
(6) If a magistrate is contacted under
subsection (1), the
following provisions apply:
(a) the magistrate must make such inquiries as the magistrate thinks
necessary to satisfy himself or herself of the genuineness of the application
for review;
(b) the police officer or justices who made the telephone contact must
explain to the magistrate—
(i) the circumstances of the application for bail; and
(ii) the nature of the decision made on the application; and
(iii) the reasons for that decision;
(c) the magistrate must then speak with the person who applied for bail or
any legal practitioner representing or assisting that person, and any other
person who may be present and who may, in the opinion of the magistrate, assist
in explaining the circumstances of the particular case for the purpose of
ensuring that the magistrate is fully informed—
(i) of the grounds and circumstances of the application for bail;
and
(ii) of the reasons for the applicant's dissatisfaction with the decision
taken on the application; and
(iii) if the applicant is a child—of the circumstances of the
child;
(d) if the decision that is the subject of the review was made by
justices—the magistrate must then speak with—
(i) if the police officer who appeared before the justices and opposed the
application for bail is present and wishes to speak in relation to the
application for review—the police officer; or
(ii) if that police officer is not immediately available—another
police officer who is present and wishes to speak in relation to the application
for review;
(e) the magistrate must then advise the police officer or justices who
made the telephone contact of the decision on review, and bail must then be
granted or refused in accordance with that decision.
(7) For the purposes of
subsection (2), an
arrested person can be brought before the Magistrates Court—
(a) in person or by video link; or
(b) if the person is in custody in a police station or designated police
facility that is situated in a remote area and there is no video link
available—by audio link.
(8) In this section—
remote area, in relation to the situation of a police station
or designated police facility, means—
(a) 400 kilometres or more; or
(b) if some other distance is prescribed by the regulations for the
purposes of this definition—that distance,
from the nearest Magistrates Court.
Section 16—delete the section and substitute:
16—Stay of release on application for
review
(1) Despite any other provision of this Act, if—
(a) —
(i) a bail authority decides to release a person on bail; or
(ii) on a review by a magistrate of a decision of a bail authority, the
magistrate decides to release a person on bail; and
(b) a police officer or counsel on behalf of the Crown immediately
indicates that an application for review of the decision will be made under this
Part,
the release must be deferred.
(2) The period of
deferral ends—
(a) if an application for a review is to be made—
(i) if the reviewing authority is satisfied that there is proper reason to
fix a period longer than 72 hours for the period of deferral—at the
end of the fixed period; or
(ii) in any other case—
(A) on the completion of the review; or
(B) when 72 hours elapses,
whichever occurs first; or
(b) if the Crown does not intend to proceed with the
review—
(i) when the notice of discontinuance is filed on behalf of the Crown with
the bail authority; or
(ii) when 72 hours elapses,
whichever occurs first.
(3) If a person is
released on bail under
subsection (2)
(other than on the completion of a review), the conditions of bail are those
that would have applied had the person's release not been deferred.
(4) In this section—
reviewing authority means a magistrate or the Supreme Court,
as the case may be.
12—Amendment
of section 18—Arrest of eligible person on non-compliance with bail
agreement
(1) Section 18(1)(a)—delete paragraph (a) and
substitute:
(a) revoke the bail agreement; and
(2) Section 18(3)—after "police station" insert:
or designated police facility
13—Amendment
of section 19A—Arrest of person who is serious and organised crime
suspect
Section 19A(c)—delete paragraph (c) and
substitute:
(c) revoke the bail agreement; and
Part 3—Amendment
of Summary Offences
Act 1953
14—Amendment
of section 76—Arrest by owner of property etc
Section 76(1)—delete "forthwith" and substitute:
as soon as reasonably practicable
15—Amendment
of section 77—Arrest of persons pawning or selling stolen
goods
Section 77(2)—delete "as soon as practicable" and
substitute:
as soon as reasonably practicable
16—Amendment
of section 78—Person apprehended without warrant—how dealt
with
(1) Section 78—delete subsections (1) and (2) and
substitute:
(1) Subject to this
section, a person who is apprehended without warrant must, as soon as reasonably
practicable, be delivered into the custody of—
(a) the police officer in charge of the nearest custodial police station;
or
(b) a police
officer at a designated police facility.
(2) If a person is
apprehended without warrant on suspicion of having committed a serious offence,
a police officer may, for the purposes of investigating the suspected offence,
before dealing with the person in accordance with
subsection (1)—
(a) detain the person
for whichever is the lesser of—
(i) the period necessary to complete the immediate investigation of the
suspected offence; or
(ii) 4 hours or
such longer period (not exceeding 8 hours) as may be authorised by a
magistrate; and
(b) take the person, or cause him or her to be taken, during the course of
detention under
paragraph (a), to
places connected with the suspected offence.
(2a) In determining the period that has elapsed since the apprehension of
a person for the purposes of
subsection (2)(a),
the following will not be taken into account:
(a) any delay occasioned by arranging for a solicitor or other person to
be present during the investigation;
(b) any delay occasioned by allowing the person to receive medical
attention;
(c) the time that would have been reasonably required to convey the person
from the place of apprehension to—
(i) the nearest custodial police station; or
(ii) the designated police facility,
(assuming that the person had been taken as soon as reasonably practicable
to the custodial police station or designated police facility).
(2) Section 78(3)—delete "Where a person has been delivered
into custody at a police station in pursuance of this section" and
substitute:
If a person has been detained in custody under
subsection (1)
(3) Section 78—after subsection (3) insert:
(3a) A person who has
been apprehended without warrant and detained in custody at a designated police
facility must, as soon as reasonably practicable, be delivered into the custody
of the police officer in charge of the nearest custodial police station if any
of the following occurs:
(a) the person declines to make an application for release on
bail;
(b) a decision is made to refuse an application for bail made by the
person;
(c) 2 hours, or
such longer period (not exceeding 4 hours) as may be authorised by a
magistrate, has elapsed since the person has been detained in custody at the
police facility and the person has not been released (whether on bail or
otherwise).
(3b) In determining the period that has elapsed since detention in custody
at a designated police facility for the purposes of
subsection (3a)(c),
the following will not be taken into account:
(a) any delay occasioned by arranging for a solicitor or other person to
be present;
(b) any delay occasioned by allowing the person to receive medical
attention;
(c) any period during which the person is temporarily in the custody of a
police officer under subsection (3).
(3c) A person who is detained in the custody of a police officer at a
designated police facility may be transferred into the custody of another police
officer at the police facility.
(4) Section 78(4)—delete "where" and substitute:
if
(5) Section 78(5)—delete "Where" and substitute:
If
(6) Section 78(6)—delete subsection (6) and
substitute:
(6) The
Commissioner may, by instrument in writing, approve the use of any of the
following as a designated police facility:
(a) a specified room, building or structure (whether permanent or
temporary);
(b) a specified vehicle;
(c) a vehicle of a specified class.
(7) An approval under
subsection (6)
of a designated police facility must—
(a) specify the use of the designated police facility—
(i) for a specified event or purpose; or
(ii) for a specified police operation; or
(iii) for an event or a purpose of a specified class; or
(iv) for a police operation of a specified class; or
(v) for a specified area of the State outside Metropolitan Adelaide
(within the meaning of the Development
Act 1993); and
(b) specify conditions for the use of the designated police
facility.
(8) The
Commissioner may, by subsequent instrument in writing, vary or revoke an
approval under
subsection (6).
(9) In proceedings, a certificate apparently signed by the Commissioner
certifying as to a matter relating to an instrument under
subsection (6)
or
(8) constitutes
proof, in the absence of proof to the contrary, of the matters so
certified.
(10) In this section—
custodial police station means a police station at which cell
facilities are available for the continuous care and custody of an apprehended
person;
designated police facility, in relation to a person
apprehended without warrant, means—
(a) in the case of a person apprehended within an area of the State in
respect of which there is an approval in force under
subsection (6)—
(i) the place or vehicle used as a designated police facility in
accordance with the approval that is nearest the place of apprehension;
or
(ii) if the person is apprehended at, or in connection with, an event or
police operation in respect of which there is an approval in force under
subsection (6)—a
place or vehicle used as a designated police facility in accordance with the
approval; or
(b) in any other case—
(i) the police station nearest the place of apprehension; or
(ii) if the person is apprehended at, or in connection with, an event or
police operation in respect of which there is an approval in force under
subsection (6)—a
place or vehicle used as a designated police facility in accordance with the
approval;
nearest custodial police station, in relation to a person
apprehended without warrant, means—
(a) in the case of a person apprehended within a radius of
30 kilometres from the General Post Office at Adelaide—
(i) the police station at Adelaide known as the City Watch House;
or
(ii) any other custodial police station within that radius;
(b) in any other case—the custodial police station nearest the place
where the person is apprehended;
serious offence means an indictable offence or an offence
punishable by imprisonment for 2 years or more.
17—Amendment
of section 79—Arrest without warrant if warrant has been
issued
(1) Section 79(2)—delete "forthwith" and substitute:
, as soon as reasonably practicable,
(2) Section 79—after subsection (2) insert:
(3) If a person taken into custody is in need of medical treatment before
being delivered as required under this section, the requirement to deliver the
person as soon as reasonably practicable does not prevent the immediate
provision of necessary medical treatment.
Schedule 1—Statute
law revision amendments of Bail
Act 1985
Provision amended |
How amended |
---|---|
Act |
Delete "member of the police force" wherever occurring and substitute in
each case: police officer Delete "Where" wherever occurring and substitute in each case: If Delete "where" wherever occurring and substitute in each case: if Delete "in pursuance of" wherever occurring and substitute in each
case: under |
Section 6(4) |
Delete "Notwithstanding" and substitute: Despite |
Section 8(3) |
Delete "notwithstanding" and substitute: despite the fact |
Section 10(1) |
At the end of paragraphs (a), (b), (d), (e) and (f) insert in
each case: and |
Section 10(1)(b) |
At the end of subparagraphs (i), (ii) and (iii) insert in each
case: or |
Section 11(8) |
Delete "in pursuance of this" and substitute: under the |
Section 11(10)(a) to (c) |
Delete paragraphs (a) to (c) (inclusive) and
substitute: (a) confirm, vary or revoke the condition; and |
Section 11A(1) |
Delete "forthwith" and substitute: as soon as reasonably practicable |
Section 19(1) |
Delete "may on the application of the Crown," and substitute: may, on the application of the Crown |
Section 19(3) |
Delete "on the application of the person in relation to whom the order is
made," and substitute: , on the application of the person in relation to whom the order is
made |
Section 21C(1)(b) |
Delete "occupying a particular position" and substitute: performing particular duties or holding or acting in a particular
position |