15Remand of defendant

15  Remand of defendant   Where a person is charged, before a court of summary jurisdiction, with an offence against the law of the Commonwealth, if, from the absence of witnesses or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the case, the court before whom the accused person appears or is brought, may:  (a) by warrant from time to time remand the defendant to some gaol, lock‑up, or other place of custody for such period as the court shall deem necessary to be there kept until the time appointed for continuing the hearing; or  (b) order the discharge of the defendant upon his or her entering into a recognizance conditioned for his or her appearance at the time and place appointed for continuing the hearing. 15AA  Bail not to be granted in certain cases  (1) Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail. Note: For persons under 18 years of age, see subsection (3AA). Persons covered by this section  (2) This subsection covers a person (the defendant) charged with, or convicted of, any of the following offences:  (a) a terrorism offence;  (b) an offence against a law of the Commonwealth, if:  (i) a physical element of the offence is that the defendant engaged in conduct that caused the death of a person; and  (ii) the fault element for that physical element is that the defendant intentionally engaged in that conduct (whether or not the defendant intended to cause the death, or knew or was reckless as to whether the conduct would result in the death);  (c) an offence against a provision of Division 80 (other than Subdivision CA) (treason, urging violence and advocating terrorism or genocide) or Division 91 (espionage) of the Criminal Code if:  (i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or  (ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person;  (d) an ancillary offence against a provision of Division 80 (other than Subdivision CA) (treason, urging violence and advocating terrorism or genocide) or Division 91 (espionage) of the Criminal Code if, had the defendant engaged in conduct that is a physical element of the primary offence to which the ancillary offence relates, there would have been a substantial risk that the conduct would have caused the death of a person;  (e) an offence against subsection 92.2(1) or 92.3(1) (intentional or reckless offence of foreign interference), if:  (i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or  (ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.  (2A) This subsection covers the following persons:  (a) a person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism);  (b) a person who the bail authority is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.  (3) To avoid doubt, the express reference in paragraph (2)(d) to an ancillary offence does not imply that references in paragraphs (2)(a), (b) or (c) to an offence do not include references to ancillary offences. Entering reasons in court records if court grants bail  (3AAA) If the bail authority is a court and it grants bail, the court must:  (a) state its reasons; and  (b) cause those reasons to be entered in the court’s records. Determining exceptional circumstances in relation to persons under 18 years of age  (3AA) In determining whether exceptional circumstances exist to justify granting bail to a person who is under 18 years of age, without limiting the matters the bail authority may have regard to, the bail authority must have regard to:  (a) the protection of the community as the paramount consideration; and  (b) the best interests of the person as a primary consideration. Appealing decisions of bail authority  (3A) Despite any law of the Commonwealth, the Director of Public Prosecutions, or a person covered by subsection (2) or (2A), may appeal against a decision of a bail authority:  (a) to grant bail to a person covered by subsection (2) or (2A) on the basis that the bail authority is satisfied that exceptional circumstances exist; or  (b) to refuse to grant bail to a person covered by subsection (2) or (2A) on the basis that the bail authority is not satisfied that exceptional circumstances exist.  (3B) An appeal under subsection (3A):  (a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (3A), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and  (b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction. Staying decisions to grant bail if decision appealed  (3C) If:  (a) a bail authority decides to grant bail to a person covered by subsection (2) or (2A); and  (b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision under subsection (3A); the decision to grant bail is stayed with effect from the time of the notification.  (3D) A stay under subsection (3C) ends:  (a) when a decision on the appeal is made; or  (b) when the Director of Public Prosecutions notifies:  (i) the bail authority; or  (ii) if an appeal has already been instituted in a court—the court;   that he or she does not intend to proceed with the appeal; or  (c) 72 hours after the stay comes into effect; whichever occurs first. Relationship with laws of States and Territories  (4) To avoid doubt, except as provided by subsections (1), (3AA), (3A), (3B), (3C) and (3D), this section does not affect the operation of a law of a State or a Territory. Note: These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903. ancillary offence has the meaning given in the Criminal Code. primary offence has the meaning given in the Criminal Code. 15AAA  Bail not to be granted to various persons charged with, or convicted of, certain Commonwealth child sex offences  (1) Despite any other law of the Commonwealth, a bail authority must not grant bail to a person who:  (a) is charged with, or convicted of, an offence described in column 1 of an item in the table in section 16AAA (except items 1AA to 1H of that table); or  (b) is charged with, or convicted of, an offence described in column 1 of an item in the table in subsection 16AAB(2) and who has previously been convicted of a child sexual abuse offence; unless the bail authority is satisfied by the person that circumstances exist to grant bail.  (2) In addition to any other matters, in determining whether the bail authority is satisfied that circumstances exist to grant bail to a person, the bail authority must take into account such of the following matters as are relevant and known to the bail authority:  (a) whether the bail authority considers that the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail;  (b) whether the bail authority considers that the person would be likely to commit a further offence if the person were granted bail;  (c) whether the bail authority considers that the person would be likely to put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail;  (d) whether the bail authority considers that the person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail;  (e) whether the person was aged 18 years or over when the offence was committed;  (f) if the person has pleaded guilty to the charge in respect of the offence or been convicted of the offence—whether the bail authority considers that the person would not be likely to undertake a rehabilitation program, or not be likely to comply with any bail conditions relating to rehabilitation or treatment, while released on bail.  (3) If the bail authority is a court and it grants bail, the court must:  (a) state its reasons; and  (b) cause those reasons to be entered in the court’s records.  (4) Despite any law of the Commonwealth, the Director of Public Prosecutions or the person may appeal against a decision of a bail authority:  (a) to grant bail to the person despite subsection (1) on the basis that the bail authority is satisfied that circumstances exist to grant bail; or  (b) to refuse to grant bail to the person on the basis that the bail authority is not satisfied that circumstances exist to grant bail.  (5) An appeal under subsection (4):  (a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (4), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and  (b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.  (6) If:  (a) a bail authority decides to grant bail to the person; and  (b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision mentioned in subsection (4); the decision to grant bail is stayed with effect from the time of the notification.  (7) A stay under subsection (6) ends:  (a) when a decision on the appeal is made; or  (b) when the Director of Public Prosecutions notifies:  (i) the bail authority; or  (ii) if an appeal has already been instituted in a court—the court;   that he or she does not intend to proceed with the appeal; or  (c) 72 hours after the stay comes into effect; whichever occurs first.  (8) To avoid doubt, except as provided by subsections (1), (4), (5), (6) and (7), this section does not affect the operation of a law of a State or a Territory. Note: These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903. 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 the Northern Territory, 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.  (3A) Paragraph (1)(b) does not apply in relation to an offence against the following:  (a) section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;  (b) sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999;  (c) section 48 of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986;  (d) sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976;  (e) section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987;  (f) sections 33, 34 and 35 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);  (h) section 4 of the Aboriginal Land Act 1978 (NT);  (i) sections 111, 112 and 113 of the Heritage Act 2011 (NT);  (j) any other law prescribed by the regulations that relates to:  (i) entering, remaining on or damaging cultural heritage; or  (ii) damaging or removing a cultural heritage object.  (4) To avoid doubt, except as provided by subsections (1), (2) and (3A), 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.