Commonwealth Bail Applications

A Commonwealth offence is an offence that breaks a federal law. These offences are governed by the Crimes Act 1914 and the Criminal Code Act 1995, and include crimes committed across state borders and overseas. There is no designated court constituted to deal with Commonwealth offences. The Judiciary Act 1903 allows state and territory courts to exercise federal jurisdiction to deal with Commonwealth crimes. Under this arrangement, unless Commonwealth laws have provided otherwise, state and territory laws apply to the bail of suspects.

Commonwealth offences and bail

Commonwealth offences are largely investigated by the Australian Federal Police and prosecuted by the Commonwealth Director of Public Prosecutions (CDPP).

The CDPP prosecutes the Commonwealth crimes of:

• fraud of a government entity;
• commercial crimes;
• money laundering;
• importing and exporting drugs;
• people smuggling;
• human trafficking;
• terrorism;
• child exploitation;
• cyber-crimes;
• environmental offences;
• workplace offences.

Under section 68 of the Judiciary Act, a bail application for a Commonwealth offence is to be handled according to the bail procedure of the state or territory in which the alleged offence was committed. This procedure is provided in the Bail Act of each state and territory.

When bail must not be granted

Under the Crimes Act, there are some Commonwealth offences for which bail cannot be granted unless there are exceptional circumstances. These offences include murder, terrorism, treason, espionage and child sexual abuse.

The CDPP or a charged person has a right to appeal a bail decision that relates to the granting or non-granting of bail on the basis of exceptional circumstances.

In considering exceptional circumstances for a person aged under 18, the court must place the protection of the community as the paramount consideration, and the best interests of the person as a primary consideration.

Bail considerations

The Bail Act of each state or territory sets out what a court must consider when deciding a bail application. Generally, each Bail Act states that a court or authorised officer must consider:

• the likelihood of the person appearing in court in relation to the offence;
• the likelihood of the person, while released on bail
  • committing an offence;
  • harassing or endangering the safety or welfare of anyone;
  • interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else;
• the interests of the charged person (such as injury or special needs);
• the protection of any victim;
• the likelihood of a sentence of imprisonment;
• relevant matters such as:
  • the nature and seriousness of the offence;
  • the person’s character, background and community ties;
  • the likely effect of a refusal of bail on the person’s family or dependants;
  • any previous grants of bail to the person;
  • the strength of the evidence against the person.

The Crimes Act contains further considerations for a court when assessing a bail application.

The potential impact of granting bail on the victim or any witness or potential witness must be taken into account. If a charged person is living in or located in a remote community, this must also be taken into account.

Customary law or cultural practice must not be considered a reason for excusing, justifying, authorising or lessening the seriousness of the criminal behaviour, nor must it be considered a reason for aggravating the seriousness of the criminal behaviour.

Bail conditions

Courts can impose bail conditions to mitigate the risks associated with granting bail.

The conditions must be:

• reasonable;
• proportionate to the offence;
• appropriate to mitigate the risks of releasing the person;
• no more onerous than necessary;
• reasonably practicable.

Examples of conditions that can be imposed include that the person must:

• live at a specified address or arrange suitable accommodation before release on bail;
• surrender their passport;
• abide by a curfew;
• have no contact with co-accused or witnesses;
• provide security (i.e. agree to forfeit a certain amount of money if a condition is breached);
• submit to drug or alcohol testing;
• report to police at specified times;
• not visit specified places.

Common Commonwealth offences

State and territory courts deal regularly with bail applications for Commonwealth offences.

Centrelink fraud

Centrelink fraud falls under the Criminal Code Act and can be dealt with by a state or territory court unless the facts are disputed, or the amount of the fraud means imprisonment is an option, or the offender seeks an order for no conviction.

Aviation offences

These offences include when a traveller attempts to carry weapons or prohibited goods onto a plane or through airport screening. They can be charged under the Aviation Transport Security Act 2004.

Telecommunication offences

These offences involve the “improper use of carriage services” under the Criminal Code Act. A person can be charged if they use the carriage service, whether by the method of use or the content of the communication or both, in a way that a reasonable person would consider to be menacing, harassing or offensive.

Australia Post

These offences include stealing mail during its delivery, stealing mailbags or knowingly keeping mail that has been wrongly delivered.

Crimes Act offences

Trespass is one common offence, involving someone trespassing or going onto Commonwealth land without a lawful excuse. Another is wilful damage, when someone intentionally destroys or damages any property that belongs to the Commonwealth.

For advice or representation in any legal matter, please contact Armstrong Lawyers.