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This is a Bill, not an Act. For current law, see the Acts databases.


BAIL AMENDMENT (PERSONS LINKED TO TERRORISM) BILL 2018

                       Western Australia


Bail Amendment (Persons Linked to Terrorism)
                 Bill 2018

                           Contents

   1.    Short title                                                  2
   2.    Commencement                                                 2
   3.    Act amended                                                  2
   4.    Section 3 amended                                            2
   5.    Section 6 amended                                            4
   6.    Section 7 amended                                            5
   7.    Section 16 amended                                           5
   8.    Section 16B inserted                                         5
         16B.     Person linked to terrorism                    5
   9.    Section 26 amended                                           6
   10.   Section 54 amended                                           6
   11.   Section 66C inserted                                         7
         66C.     Protection of terrorist intelligence
                  information in bail proceedings               7
         66D.     Annual report to include information about
                  application of s. 66C                         8
   12.   Section 67A inserted                                         9
         67A.     Review of amendments made by Bail
                  Amendment (Persons Linked to
                  Terrorism) Act 2019                           9
   13.   Schedule 1 Part C amended                                    9
         3E.      Bail in cases of person linked to terrorism   10




                             112--2                                   page i
                           Western Australia


                     LEGISLATIVE ASSEMBLY

                      (As amended in Committee)

Bail Amendment (Persons Linked to Terrorism)
                 Bill 2018

                               A Bill for


An Act to amend the Bail Act 1982 to provide for a presumption
against bail being granted to persons linked to terrorism.



The Parliament of Western Australia enacts as follows:




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     Bail Amendment (Persons Linked to Terrorism) Bill 2018



     s. 1




1    1.       Short title
2             This is the Bail Amendment (Persons Linked to Terrorism)
3             Act 2018.

4    2.       Commencement
5             This Act comes into operation as follows --
6              (a) sections 1 and 2 -- on the day on which this Act
7                    receives the Royal Assent;
8              (b) the rest of the Act -- on a day fixed by proclamation.

9    3.       Act amended
10            This Act amends the Bail Act 1982.

11   4.       Section 3 amended
12            In section 3(1) insert in alphabetical order:
13

14                  Commonwealth Criminal Code means the Criminal
15                  Code set out in the Schedule to the Criminal Code
16                  Act 1995 (Commonwealth);
17                  confirmed control order has the meaning given in the
18                  Commonwealth Criminal Code section 100.1(1);
19                  interim control order has the meaning given in the
20                  Commonwealth Criminal Code section 100.1(1);
21                  person linked to terrorism means a person who --
22                    (a) is charged with, or has been convicted of, a
23                         terrorism offence; or
24                    (b) is the subject of an interim control order or
25                         confirmed control order, or has been the subject
26                         of a confirmed control order within the last
27                         10 years;




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        Bail Amendment (Persons Linked to Terrorism) Bill 2018



                                                               s. 4



1    terrorism offence means --
2      (a) an offence against the Commonwealth Criminal
3            Code Division 72 Subdivision A; or
4      (b) an offence against the Commonwealth Criminal
5            Code Division 80 Subdivision B; or
6      (c) an offence against the Commonwealth Criminal
7            Code Part 5.3, except an offence against
8            section 104.22, 104.27, 104.27A, 105.41 or
9            105.45; or
10     (d) an offence against the Commonwealth Criminal
11           Code Part 5.5; or
12     (e) an offence against either of the following
13           provisions of the Charter of the United Nations
14           Act 1945 (Commonwealth) --
15              (i) Part 4; or
16             (ii) Part 5, to the extent that it relates to the
17                   Charter of the United Nations
18                   (Sanctions -- Al-Qaida)
19                   Regulations 2008 (Commonwealth);
20           or
21      (f) an offence against the Crimes (Foreign
22           Incursions and Recruitment) Act 1978
23           (Commonwealth) (repealed); or
24     (g) an offence against the Crimes (Internationally
25           Protected Persons) Act 1976 (Commonwealth)
26           section 8; or
27     (h) an offence under a written law or a law of the
28           Commonwealth, another State, a Territory or
29           another country, that substantially corresponds
30           to an offence in paragraphs (a) to (e) and (g); or
31      (i) an offence of attempting, inciting or conspiring
32           to commit an offence referred to in
33           paragraphs (a) to (h);


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     s. 5



1                      terrorist act has the meaning given in the Terrorism
2                      (Commonwealth Powers) Act 2002 section 3;
3                      terrorist intelligence information means information
4                      relating to an actual or suspected terrorist act (whether
5                      in this State or elsewhere) the disclosure of which
6                      could reasonably be expected --
7                        (a) to prejudice national security; or
8                        (b) to endanger a person's life or physical safety;
9                               or
10                       (c) to threaten significant damage to infrastructure
11                              or property; or
12                       (d) to prejudice a criminal investigation; or
13                       (e) to reveal intelligence-gathering methodologies,
14                              investigative techniques or technologies or
15                              covert practices; or
16                        (f) to enable the discovery of the existence or
17                              identity of a confidential source of information
18                              relevant to law enforcement;
19


20   5.          Section 6 amended
21        (1)    In section 6(6) delete "(9) or (10)" and insert:
22

23               (9), (10) or (11)
24

25        (2)    After section 6(10) insert:
26

27              (11)   If section 16B applies, the arrester must bring the
28                     accused or cause the accused to be brought before a
29                     court constituted by a judicial officer other than a
30                     justice, who must consider the accused's case for bail
31                     as soon as is practicable.
32



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                     Bail Amendment (Persons Linked to Terrorism) Bill 2018



                                                                               s. 6



1    6.     Section 7 amended
2           In section 7(5) delete "3A and 3D." and insert:
3

4           3A, 3D and 3E.
5


6    7.     Section 16 amended
7           In section 16(1) delete "14 and 15" and insert:
8

9           14, 15 and 16B
10


11   8.     Section 16B inserted
12          After section 16A insert:
13


14        16B.    Person linked to terrorism
15          (1)   This section applies if a person linked to terrorism is in
16                custody --
17                  (a) awaiting an appearance in court before
18                       conviction for an offence; or
19                  (b) waiting to be sentenced or otherwise dealt with
20                       for an offence of which the person has been
21                       convicted.
22          (2)   The power to grant bail to the person can be exercised
23                only by a court constituted by a judicial officer other
24                than a justice.
25




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     Bail Amendment (Persons Linked to Terrorism) Bill 2018



     s. 9



1    9.          Section 26 amended
2          (1)   In section 26(2)(aa) delete "3A or 3D" and insert:
3

4                3A, 3D or 3E
5

6          (2)   After section 26(4) insert:
7

8                (5)    A bail record form, or the record of a decision and
9                       reasons for it, must not include information that is
10                      terrorist intelligence information.
11


12   10.         Section 54 amended
13               In section 54(1):
14                 (a) in paragraph (b)(iii) delete "diligence." and insert
15

16                       diligence; or
17

18                (b)    after paragraph (b)(iii) insert:
19

20                              (iv)     new facts have been discovered, new
21                                       circumstances have arisen or the
22                                       circumstances have changed since bail
23                                       was granted (including that the accused
24                                       is, or has become, a person linked to
25                                       terrorism).
26




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                                                                           s. 11



1    11.     Section 66C inserted
2            After section 66B insert:
3


4          66C.    Protection of terrorist intelligence information in
5                  bail proceedings
6            (1)   In proceedings on a case for bail, the judicial officer
7                  must take all reasonable steps to maintain the
8                  confidentiality of information that the judicial officer
9                  considers is terrorist intelligence information, including
10                 steps --
11                   (a) to receive evidence and hear argument about
12                        the information in private and in the absence of
13                        any person other than the prosecutor and any
14                        other person to whose presence the prosecutor
15                        consents; and
16                   (b) to prohibit the publication of, or a reference to,
17                        terrorist intelligence information; and
18                   (c) to order that the following documents must be
19                        provided in a redacted form --
20                           (i) an approved form given under section 8;
21                          (ii) a report made in accordance with
22                                 section 24 or 24A.
23           (2)   If the judicial officer considers that the information is
24                 not terrorist intelligence information, the judicial
25                 officer must --
26                   (a) give the prosecutor the opportunity to withdraw
27                          the information from consideration; and
28                   (b) if the information is withdrawn, prohibit the
29                          publication of, or a reference to, the
30                          information.




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     Bail Amendment (Persons Linked to Terrorism) Bill 2018



     s. 12



1              (3)   Despite subsections (1) and (2), the judicial officer may
2                    disclose terrorist intelligence information or
3                    information withdrawn under subsection (2) to any of
4                    the following --
5                      (a) the Attorney General;
6                      (b) a court;
7                      (c) a person to whom the prosecutor authorises
8                            disclosure.

9            66D.    Annual report to include information about
10                   application of s. 66C
11             (1)   The accountable authority, as defined in the Financial
12                   Management Act 2006, of the department of the Public
13                   Service principally assisting in the administration of
14                   this Act must, in each annual report submitted under
15                   the Financial Management Act 2006 Part 5, include
16                   information relating to action taken under
17                   section 66C(1) in proceedings on a case for bail in the
18                   financial year to which the annual report relates.
19             (2)   The information referred to in subsection (1) must,
20                   without disclosing terrorist intelligence information,
21                   specify --
22                     (a) the number of proceedings in which action was
23                           taken under section 66C(1); and
24                     (b) in each of those proceedings whether the
25                           accused had access to the terrorist intelligence
26                           information received by the judicial officer and
27                           whether --
28                              (i) evidence by or on behalf of the accused
29                                  was received; and
30                             (ii) argument by or on behalf of the accused
31                                  was heard.
32




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                                                                              s. 12



1    12.         Section 67A inserted
2                After section 67 insert:
3


4            67A.      Review of amendments made by Bail Amendment
5                      (Persons Linked to Terrorism) Act 2019
6                (1)   The Minister must review the operation and
7                      effectiveness of the amendments made to this Act by
8                      the Bail Amendment (Persons Linked to Terrorism)
9                      Act 2019 and prepare a report based on the review --
10                       (a) as soon as practicable after the 3rd anniversary
11                             of the day on which the Bail Amendment
12                             (Persons Linked to Terrorism) Act 2019
13                             section 12 comes into operation; and
14                       (b) after that, at intervals of not more than 3 years.
15               (2)   The Minister must cause the report to be laid before
16                     each House of Parliament as soon as practicable after it
17                     is prepared, but not later than 90 days after the
18                     3rd anniversary or the expiry of the period of 3 years,
19                     as the case may be.
20


21   13.         Schedule 1 Part C amended
22         (1)   In Schedule 1 Part C clause 1 delete "3C and 3D," and insert:
23

24               3C, 3D and 3E,
25

26         (2)   Delete Schedule 1 Part C clause 2(3)(a) and insert:
27

28                       (a)   clauses 3A, 3C, 3D and 3E; and
29




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     Bail Amendment (Persons Linked to Terrorism) Bill 2018



     s. 13



1       (3)        After Schedule 1 Part C clause 3D insert:
2

3            3E.         Bail in cases of person linked to terrorism
4                  (1)   This clause applies where an accused who is a person linked
5                        to terrorism is in custody --
6                           (a) awaiting an appearance in court before conviction
7                                 for an offence; or
8                          (b)   waiting to be sentenced or otherwise dealt with for
9                                an offence of which the accused has been convicted.
10                 (2)   Despite clause 1, 2 or 4 or any other provision of this Act,
11                       and in addition to clauses 3A to 3D, where this clause
12                       applies the judicial officer in whom jurisdiction is vested
13                       must refuse to grant bail for the offence unless the judicial
14                       officer is satisfied that --
15                         (a)   there are exceptional reasons why the accused
16                               should not be kept in custody; and
17                         (b)   bail may properly be granted having regard to the
18                               provisions of clauses 1 and 3 or, in the case of a
19                               child, clauses 2 and 3.
20                 (3)   The judicial officer must, in making any decision for the
21                       purposes of subclause (2)(a) --
22                         (a)   have regard to the nature and seriousness of the
23                               offence or offences (including any other offence or
24                               offences for which the accused is awaiting trial) and
25                               the probable method of dealing with the accused for
26                               it or them, if the accused is convicted; and
27                         (b)   have regard to the conduct of the accused since the
28                               accused was --
29                                  (i)   charged with or convicted of a terrorism
30                                        offence; or
31                                 (ii)   made the subject of the relevant interim
32                                        control order or confirmed control order;
33                               and




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                                                                                  s. 13



1                  (c)       consider whether it would be appropriate to refuse
2                            bail and make a hospital order under the Criminal
3                            Law (Mentally Impaired Accused) Act 1996
4                            section 5; and
5                  (d)       in the case of a child, consider the Young Offenders
6                            Act 1994 section 6(d) as an objective of this Act
7                            with the safety of the community being an
8                            overriding objective.
9        (4)    Subclause (3) does not limit the matters that the judicial
10              officer may take into account for the purposes of
11              subclause (2)(a).
12       (5)    Despite section 7(1), where an accused is refused bail under
13              subclause (2) the accused's case for bail need not be
14              considered again under that subsection for an appearance for
15              that offence unless the accused satisfies the judicial officer
16              who may order detention that --
17                (a) new facts have been discovered, new circumstances
18                       have arisen or the circumstances have changed
19                       since bail was refused; or
20                 (b)       the accused failed adequately to present the case for
21                           bail on the occasion of that refusal.
22       (6)    Where an accused is granted bail under subclause (2), on
23              any subsequent appearance in the same case a judicial
24              officer may order that bail is to continue on the same terms
25              and conditions.
26       (7)    Where a child accused is refused bail under subclause (2),
27              the child accused shall be dealt with in accordance with the
28              Young Offenders Act 1994 section 19(2).
29   Note for this clause:

30              The Crimes Act 1914 (Commonwealth) section 15AA provides that
31              a bail authority must not grant bail to a person charged with, or
32              convicted of, a terrorism offence as defined in section 3(1) of that
33              Act unless the bail authority is satisfied that exceptional
34              circumstances exist to justify bail.
35




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    s. 13



1      (4)    In Schedule 1 Part C clause 4(1) delete "3C and 3D," and insert:
2

3             3C, 3D and 3E,
4


5




    page 12

 


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