Legislative Amendment: GPS Tracking Devices as a Condition of Bail

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On 31 March 2018, the Bail (Domestic Violence) and Another Act Amendment Act 2017 took effect.

The Act amends both the Bail Act and the Corrective Services Act. This article will focus on the amendments to the Bail Act and more specifically, the impact of the introduction of GPS tracking devices as a condition of bail.

Whilst the explanatory notes of the private bill provide that the imposition of a GPS tracking device was targeted to persons charged with a relevant domestic violence offence, the discussed amendments to the Bail Act apply to all persons who are applying for bail.


Amendments to s11 of the Bail Act

The Act inserts s11(9B) of the Bail Act to enable a Court to impose a condition that the defendant wear a tracking device whilst released on bail. Section 11(9C) permits the Court to impose any other conditions considered necessary to facilitate the operation of the tracking device.

The Act inserts s11(10) of the Bail Act, which defines a tracking device as:

“an electronic device capable of being worn, and not removed, by a person for the purpose of the Queensland police service, or the chief executive of the department in which the Corrective Services Act 2006 is administered, finding or monitoring the geographical location of the person”


Amendments to s16 of the Bail Act

Significantly, the Act also inserts s16(2A) to the Bail Act which provides:

“in assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) a court must not have regard to the effect on the risk of imposing a condition under section 11(9B)”


Discussion

The imposition of s16(2A) clearly provides that the Court must not have regard to the effect on the risk if a GPS tracking device condition is imposed. Arguably, the consequence of this provision is contrary to the purpose of bail;- namely whether the defendant is an unacceptable risk and if so, can conditions be imposed to ameliorate the risk to an acceptable level.

Common sense would dictate that a GPS tracking device would typically ameliorate or significantly reduce the risk of a defendant failing to appear. However, the effect of s16(2A) is that a Court cannot have regard to a GPS tracking device in assessing the risk.

If the Court cannot have regard to the imposition of a GPS tracking device as a condition in assessing the risk, then doesn’t it follow that if a Magistrate is satisfied that the defendant’s risk is acceptable without the imposition of a tracking device;- isn’t the imposition of such a condition more onerous than required to secure compliance with the relevant statutory risks (which is prohibited by s11 of the Bail Act)?

The writer argues that advocates appearing in bail applications can and should make the submission that a tracking device is more onerous than necessary – particularly given the Court is already satisfied that the risk is acceptable.

It begs the question - how does the legislation provide that the Court is prohibited from having regard to a tracking device in assessing the relevant risks - particularly when the tracking device would enable police to track the defendant twenty-four (24) hours a day, seven (7) days a week.


Conclusion

Arguably, the imposition of these legislative provisions is an affront to the purpose of bail and the presumption of innocence. As the Thomas JA observed in Williamson v Director of Public Prosecution (Queensland) [2001] 1 Qd R 99 at [21]

“No grant of bail is risk-free. The grant of bail however is an important process in civilised societies which reject any general right of the executive to imprison a citizen upon mere allegation or without trial. It is a necessary part of such a system that some risks have to be taken in order to protect citizens in those respects.”

It will be interesting to see how this provision will effect the determination of bail applications, especially when the Court is prohibited from having regard to the effect of the tracking device when assessing the risk.


Written by: Elliot Boddice

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.

 

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