Bail Regulation 2021

This Regulation is the Bail Regulation 2021.

This Regulation commences on the day on which it is published on the NSW legislation website.

Note—

This Regulation repeals and replaces the Bail Regulation 2014, which would otherwise be repealed on 1 September 2021 by the Subordinate Legislation Act 1989, section 10(2).

In this Regulation—

approved means approved by the Attorney General for the purposes of the provision in which the expression occurs.

bail decision, in relation to a domestic violence offence, includes the following—

a bail decision about an application for an apprehended domestic violence order, if the defendant is, by the Crimes (Domestic and Personal Violence) Act 2007, section 83, taken to be an accused person charged with an offence,

a bail decision about an appeal against an apprehended domestic violence order, if the defendant is, by the Crimes (Domestic and Personal Violence) Act 2007, section 85, taken to be an accused person who is in custody.

domestic violence offence has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.

general manager of a correctional centre means the general manager or other officer for the time being in charge of, or having the control or management of, the correctional centre.

personal violence offence—see section 15.

registrar of a court includes the following—

a registrar of the Supreme Court,

the Registrar of the Court of Criminal Appeal,

the Registrar of the Land and Environment Court,

a registrar of the District Court,

a registrar of the Local Court,

a Children’s Registrar, or other Registrar of the Children’s Court, under the Children’s Court Act 1987.

sexual assault offence—see section 15.

the Act means the Bail Act 2013.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

To avoid doubt, a reference in this Regulation to a bail authority includes a reference to an appropriate officer acting as, or on behalf of, a bail authority under the Act, section 95.

For the purposes of the Act, section 33(2)(a), a notice of the court in which a person is required to appear, and of the time, date and place of that appearance—

may be included in a copy of the bail acknowledgment given to the person or in a notice setting out the terms of the bail acknowledgment, and

if included, must be in the approved form.

The notice may—

be given personally, or

be sent by post, or

be given or sent in another way that the court before which the person is to appear may determine.

If proceedings in which an accused person granted bail is required to appear are adjourned, a notice in an approved form must be given to the person specifying—

the court in which the person is next required to appear, and

the time, date and place of the appearance.

For the purposes of the Act, sections 33(4)(d) and 34(1)(b), the information to be included in a bail acknowledgment or given to the accused person is as follows—

an explanation of the meaning of “bail decision”,

information specifying the courts or persons that may make bail decisions, including the circumstances in which a decision of the Supreme Court may be varied by another court or person,

information specifying the bail applications that may be made and the persons who may make a bail application,

information about the special powers of courts to review bail conditions under the Act, section 55 if a person granted bail remains in custody because a bail condition has not been complied with,

information about the special powers of authorised justices to vary reporting conditions, residence conditions, association conditions and curfew conditions under the Act, section 52,

details of the way in which an accused person may make a bail application,

information to the effect that a court to which a bail application is made may confirm or vary the decision or give a new decision.

The notice required by the Act, section 42 if an accused person granted bail remains in custody must be given in the approved form.

If an accused person is, as a consequence of a bail decision, committed to a correctional centre—

by warrant—the court or person issuing the warrant must cause the required particulars to be endorsed on the form of warrant, or

otherwise than by warrant—the court must cause the required particulars to be notified to the general manager of the correctional centre to which the accused person is committed.

If an accused person is held in custody as a consequence of a bail decision and, as a consequence of a further bail decision, bail is granted, refused or dispensed with for the offence concerned, the court must cause the required particulars to be notified to the general manager of the correctional centre at which the accused person is in custody.

The required particulars are particulars of an order in the bail decision relating to—

the grant, refusal or dispensation of bail for the offence concerned, and

conditions imposed on the grant of bail, if any, and

for the purpose of a bail condition that imposes a security requirement—a decision as to the nature and sufficiency of security that is acceptable security, and

for the purpose of a bail condition that requires entry into a bail security agreement—a decision as to the person or persons, or the class or description of persons, who are acceptable persons, and the number of acceptable persons required, to enter into a bail security agreement, and

for the purposes of a bail condition that requires a character acknowledgment—a decision as to the person or persons, or the class or description of persons, who are acceptable, and the number of acceptable persons required, to provide a character acknowledgment.

This section applies if—

an accused person is in custody as a consequence of a bail decision, and

the person subsequently gives a bail acknowledgment, and

all bail conditions are complied with so that the person may be released from custody in relation to the offence.

The bail authority that accepts the bail acknowledgment from the accused person must immediately notify the general manager of the correctional centre at which the accused person is detained that—

the accused person has signed the bail acknowledgment, and

bail conditions have been complied with.

The following persons are prescribed as appropriate officers under the Act, section 95(2)(f) in relation to the bail acknowledgment functions of a bail authority—

if the bail decision is made by a court—an officer of the Department of Communities and Justice who is—

employed in a court registry, or

authorised by the Attorney General for the purposes of this section,

if the bail decision is made by a police officer with power to grant bail—a police officer.

The following functions are the bail acknowledgment functions of a bail authority—

the function of giving an accused person a bail acknowledgment or another notice required to be given by the bail authority,

the function of accepting a signed bail acknowledgment from the accused person.

This section does not permit a police officer who does not have power to grant bail to exercise a function of deciding whether a person or security is acceptable under the Act, section 26(4) or 27(3).

Accordingly, if a decision referred to in subsection (3) has to be made by the police officer to whom a bail acknowledgment is given, the function of accepting the signed bail acknowledgment, and making the decision, must be exercised by a police officer with power to grant bail.

For the purposes of the Act, Schedule 1, clause 1(2)(e), proceedings under the Children (Detention Centres) Act 1987 for an alleged failure by the person to comply with obligations under a parole order are prescribed as proceedings for the administration of sentence.

For the purposes of the Act, section 44, the bail eligibility information required to be given to a person in police custody charged with an offence must include the following—

an explanation that the accused person is entitled to be granted bail for the offence, or released without bail, unless—

a show cause requirement applies, or

an exceptional circumstances requirement applies, or

there is an unacceptable risk,

if a show cause requirement applies to the offence or offences with which the person has been charged—information to the effect that there is a requirement for the accused person to show cause as to why detention is not justified,

if an exceptional circumstances requirement applies to the offence or offences with which the person has been charged—information to the effect that there is a requirement that bail for the accused person must be refused unless it is established exceptional circumstances exist that justify a decision to grant bail or dispense with bail,

a list of the 4 types of “unacceptable risk” under the Act,

an explanation of the bail decisions that can be made if there are no unacceptable risks,

an explanation of the bail decisions that can be made if the offence is an offence for which there is a right to release.

Note—

The Act, section 22A(2) provides that if a person is charged with an offence that is both subject to that section and a show cause offence, the requirement that the accused person establish exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause detention is not justified.

The information must be given in an approved form.

In this section, exceptional circumstances requirement means the requirement under the Act, section 22A that a bail authority must refuse bail for an offence referred to in the section unless it is established exceptional circumstances exist.

For the purposes of the Act, section 44(2), the prescribed form in which a record must be kept verifying a person in police custody charged with an offence has been given the bail eligibility information is a form that contains the following information—

the name of the police officer who gave the person charged with the offence the bail eligibility information,

the police station or hospital at which the bail eligibility information was given,

the name of the person charged with the offence,

a description of the offence with which the person is charged,

the date on which the bail eligibility information was given.

The record may be made and kept in electronic form.