3ADetermination in relation to an Aboriginal person

3A Determination in relation to an Aboriginal person (1) In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person's Aboriginality, including the following— (a) the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population; (b) the risk of harm and trauma that being in custody poses to Aboriginal people; (c) the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community; (d) any issues that arise in relation to the person's history, culture or circumstances, including the following— (i) the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence; (ii) any experience of out of home care, including foster care and residential care; (iii) any experience of social or economic disadvantage, including homelessness and unstable housing; (iv) any ill health the person experiences, including mental illness; (v) any disability the person has, including physical disability, intellectual disability and cognitive impairment; (vi) any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child; (e) any other relevant cultural issue or obligation. If the Aboriginal person is also a child, the bail decision maker must also take into account the issues set out in section 3B(1). (2) The bail decision maker is to take account of an issue set out in subsection (1) by reference to the evidence and information that is reasonably available to the bail decision maker at the time, including information provided by— (a) the Aboriginal person's family and community; and (b) providers of Aboriginal bail support services. (3) Despite subsection (2), the bail decision maker is to take account of the issues set out in subsection (1)(a) to (c) whether or not any evidence or information is before the bail decision maker in respect of those issues. (4) The requirement to take an issue set out in subsection (1) into account applies regardless of— (a) whether the person's connection to their Aboriginality and culture has been intermittent throughout their life; and (b) whether the person has only recently connected to or discovered their culture or heritage; and (c) when the person first discloses that they are an Aboriginal person. (5) If a bail decision maker refuses bail to an Aboriginal person, the bail decision maker must— (a) identify the matters the bail decision maker had regard to in taking into account the issues set out in subsection (1); and (b) either— (i) state those matters orally when refusing bail and ensure that an audio visual recording, or an audio recording, is made of that statement; or (ii) record those matters in writing in a form that the bail decision maker considers appropriate. 1 Section 19(2) of the Charter of Human Rights and Responsibilities provides that Aboriginal persons hold distinct cultural rights and must not be denied the various rights referred to in that provision. 2 When considering bail for an Aboriginal person charged with a Commonwealth offence, a bail decision maker must comply with section 15AB(1)(b) of the Crimes Act 1914 of the Commonwealth. S. 3B inserted by No. 1/2016 s. 10.