Crimes Amendment (Bail and Sentencing) Act 2006

Administered by Attorney-General's Department

Legislation au C2006A00171 In force Act

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Crimes Amendment (Bail and Sentencing) Act 2006

 

No. 171, 2006

 

 

 

 

 

An Act to amend the Crimes Act 1914, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendments

Crimes Act 1914

 

 

 

 

Crimes Amendment (Bail and Sentencing) Act 2006

No. 171, 2006

 

 

 

An Act to amend the Crimes Act 1914, and for related purposes

[Assented to 12 December 2006]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Crimes Amendment (Bail and Sentencing) Act 2006.

2  Commencement

  This Act commences on the day after it receives the Royal Assent.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Amendments

 

Crimes Act 1914

1  Subsection 3(1)

Insert:

bail authority means a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory.

2  Subsection 15AA(5) (definition of bail authority)

Repeal the definition.

3  After section 15AA

Insert:

15AB  Matters to be considered in certain bail applications

 (1) In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Commonwealth, or in determining conditions to which bail granted to such a person should be subject, a bail authority:

 (a) must take into consideration the potential impact of granting bail on:

 (i) any person against whom the offence is, or was, alleged to have been committed; and

 (ii) any witness, or potential witness, in proceedings relating to the alleged offence, or offence; and

 (b) must not take into consideration any form of customary law or cultural practice as a reason for:

 (i) excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or

 (ii) aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

 (2) If a person referred to in subparagraph (1)(a)(i) or (ii) is living in, or otherwise located in, a remote community, the bail authority must also take into consideration that fact in considering the potential impact of granting bail on that person.

 (3) In paragraph (1)(b):

criminal behaviour includes:

 (a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

 (b) any fault element relating to such a physical element.

 (4) To avoid doubt, except as provided by subsections (1) and (2), this section does not affect:

 (a) any other matters that a bail authority must, must not or may take into consideration in determining whether to grant bail or in determining conditions to which bail should be subject; or

 (b) the operation of a law of a State or a Territory.

Note: Subsections (1) and (2) indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.

4  Paragraph 16A(2)(m)

Omit “cultural background,”.

5  After subsection 16A(2)

Insert:

 (2A) However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for:

 (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

 (b) aggravating the seriousness of the criminal behaviour to which the offence relates.

 (2B) In subsection (2A):

criminal behaviour includes:

 (a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

 (b) any fault element relating to such a physical element.

5A  Subparagraph 19B(1)(b)(i)

Omit “cultural background,”.

5B  After subsection 19B(1)

Insert:

 (1A) However, the court must not take into account under subsection (1) any form of customary law or cultural practice as a reason for:

 (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

 (b) aggravating the seriousness of the criminal behaviour to which the offence relates.

 (1B) In subsection (1A):

criminal behaviour includes:

 (a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

 (b) any fault element relating to such a physical element.

5C  Paragraph 23WI(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5D  Paragraph 23WI(3)(d)

Repeal the paragraph.

5E  At the end of section 23WI

Add:

 (4) Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.

5F  Paragraph 23WO(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5G  Paragraph 23WO(3)(d)

Repeal the paragraph.

5H  At the end of section 23WO

Add:

 (4) Without limiting the matters that the senior constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the senior constable must (where appropriate) take into account the religious beliefs of the suspect.

5J  Paragraph 23WT(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5K  Paragraph 23WT(3)(d)

Repeal the paragraph.

5L  At the end of section 23WT

Add:

 (4) Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.

6  Application of amendments

(1) The amendments made by items 1 to 3 of this Schedule apply, after the commencement of this Act, in relation to offences committed, or alleged to have been committed, before or after that commencement.

(2) The amendments made by items 4 to 5L of this Schedule do not apply in relation to offences committed before the commencement of this Act.

 

 

[Minister’s second reading speech made in—

Senate on 14 September 2006

House of Representatives on 28 November 2006]

(139/06)

 

Overview

The Crimes Amendment (Bail and Sentencing) Act 2006, enacted by the Parliament of Australia, was introduced to amend the Crimes Act 1914, specifically addressing the consideration of bail and sentencing for individuals charged with or convicted of Commonwealth offences. The primary objective of the Act was to ensure that bail authorities must consider the potential impact of granting bail on victims and witnesses, particularly in remote communities, and to explicitly prohibit the consideration of customary law or cultural practices in determining the seriousness of criminal behaviour. This Act also mandates that religious beliefs must be taken into account when assessing the intrusiveness of forensic procedures. The amendments apply to offences committed after the Act's commencement, while certain provisions do not apply retroactively.

Scope and Application

The Crimes Amendment (Bail and Sentencing) Act 2006 amends the Crimes Act 1914, with its provisions applying to bail authorities, which include courts or persons authorised to grant bail under Commonwealth, state, or territory laws. This Act applies to individuals charged with or convicted of offences under federal law, affecting their bail eligibility and conditions. The amendments introduced by this Act affect both pre-existing and future offences, as outlined in the application of amendments. Notably, certain amendments do not apply to offences committed before the Act's commencement. Additionally, the Act extends its application through subordinate instruments, although specific details on such extensions are not provided in the text. The Act seeks to standardise considerations in bail decisions, prohibiting the use of customary law or cultural practices in determining the seriousness of criminal behaviour. It also mandates consideration of the impact of bail on victims or witnesses, particularly those in remote communities.

Key Provisions

The Crimes Amendment (Bail and Sentencing) Act 2006 (C2006A00171) primarily amends the Crimes Act 1914 by introducing new provisions related to bail and sentencing, and it also repeals certain definitions and references within the Crimes Act. The key provisions include the addition of Section 15AB, which mandates that bail authorities must consider the potential impact of granting bail on victims and witnesses, particularly those in remote communities, and explicitly prohibits the consideration of customary law or cultural practices as reasons for excusing, justifying, or altering the perceived seriousness of criminal behaviour (Section 15AB(1) and (2)). Furthermore, Section 15AB(3) clarifies that 'criminal behaviour' includes any conduct, omission, circumstance, or result that forms part of the offence, as well as any fault element related to such a physical element. The Act imposes several obligations on bail authorities. These authorities must now evaluate the impact of granting bail on victims and witnesses, including those in remote communities, and they must refrain from considering customary law or cultural practices as mitigating or aggravating factors in their decision-making process (Section 15AB(1) and (2)). Additionally, the Act removes 'cultural background' from the considerations when determining bail conditions (Paragraph 16A(2)(m)) and from the factors affecting the severity of the penalty (Subparagraph 19B(1)(b)(i)). It also removes similar references from other sections, such as Paragraph 23WI(3)(c), Paragraph 23WO(3)(c), and Paragraph 23WT(3)(c), and repeals certain paragraphs entirely, like Paragraph 23WI(3)(d), Paragraph 23WO(3)(d), and Paragraph 23WT(3)(d). These changes aim to ensure a more standardised and culturally neutral approach to bail and sentencing. Regarding penalties and consequences, the Act does not explicitly state criminal or civil penalties for breaches of its provisions. However, the amendments to the Crimes Act 1914 suggest that non-compliance with these bail and sentencing guidelines could result in legal challenges or judicial review, as courts would be expected to adhere strictly to these newly defined criteria. The Act’s amendments may also indirectly impact state and territory laws, as noted in the legislative text, potentially leading to further legal scrutiny or adjustments in related jurisdictions. The Act’s provisions, therefore, primarily focus on altering procedural standards rather than imposing direct penalties for non-compliance.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.