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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Bail Amendment Bill 1998
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Amendments to restrict bail powers to
a court or a Judge in certain cases
4. Section 3 amended 3
5. Section 6 amended 3
6. Section 16A inserted and transitional provision 4
Part 3 -- Amendment to extend Schedule 1,
Part C, clause 3A, to persons on parole etc.
7. Schedule 1 amended 6
page i
17--1
Bail Amendment Bill 1998
Contents
Part 4 -- Insertion of another matter to be
considered in making the decision to grant or
refuse bail
8. Schedule 1 amended 7
Part 5 -- Amendments relating to the
imposition of bail conditions
9. Section 51 amended 8
10 . Section 52 amended 8
11 . Section 57 amended 9
12 . Schedule 1, clause 2, amended 9
Part 6 -- Amendments relating to defendants
who, while on bail for a serious offence, commit
another serious offence that constitutes a
breach of a restraining order or a protective
bail condition
13 . Schedule 1 amended 11
Part 7 -- Amendments to include further
offences in the definition of serious offence
14 . Section 3 amended 15
15 . Schedule 2 amended 15
page ii
Western Australia
LEGISLATIVE COUNCIL
Bail Amendment Bill 1998
A Bill for
An Act to amend the Bail Act 1982.
The Parliament of Western Australia enacts as follows:
page 1
Bail Amendment Bill 1998
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Bail Amendment Act 1998.
2. Commencement
5 This Act comes into operation on such day as is, or days as are
respectively, fixed by proclamation.
3. The Act amended
The amendments in this Act are to the Bail Act 1982*.
[* Reprinted as at 13 March 1997.
10 Amended by Acts Nos. 2 and 69 of 1996 and 57 of 1997.]
page 2
Bail Amendment Bill 1998
Amendments to restrict bail powers to a court or a Judge in Part 2
certain cases
s. 4
Part 2 -- Amendments to restrict bail powers to a
court or a Judge in certain cases
4. Section 3 amended
Section 3(1) is amended by inserting after the definition of
5 "defendant" the following definition --
"early release order" has the meaning given by section 4(1) of
the Sentence Administration Act 1995;
5. Section 6 amended
(1) Section 6(2) is amended by deleting "subsection (3)" and
10 inserting instead --
" subsections (3) and (3a) ".
(2) After section 6(3) the following subsection is inserted --
"
(3a) Where section 16A applies, the police officer or other
15 person who arrests a person for an offence shall as
soon as is practicable bring the defendant, or cause the
defendant to be brought, before a court or Judge
mentioned in subsection (1) of that section for the
purpose of having the defendant's case for bail
20 considered by that court or Judge.
".
page 3
Bail Amendment Bill 1998
Part 2 Amendments to restrict bail powers to a court or a Judge in
certain cases
s. 6
6. Section 16A inserted and transitional provision
(1) After section 16 the following section is inserted --
"
16A. Restrictions on powers of authorized officers and
5 justices in certain cases
(1) Where this section applies to a person who has been
arrested for an offence jurisdiction does not arise under
section 13 until the person is brought before --
(a) a court constituted by or so as to include a
10 magistrate; or
(b) where section 15 applies, a Judge of the
Supreme Court or a Judge of the Children's
Court as the case may require.
(2) This section applies where --
15 (a) a person has been arrested in an urban area for
a serious offence; and
(b) the serious offence is alleged to have been
committed while the defendant was --
(i) on bail for; or
20 (ii) at liberty under an early release order
made in respect of,
another serious offence.
(3) This section also applies where a person has been
arrested for an offence against section 61(1) of the
25 Restraining Orders Act 1997 (which creates offences
for breaches of violence restraining orders).
page 4
Bail Amendment Bill 1998
Amendments to restrict bail powers to a court or a Judge in Part 2
certain cases
s. 6
(4) In this section --
"urban area" means --
(a) the region described in the Third Schedule to
the Metropolitan Region Town Planning
5 Scheme Act 1959 and any prescribed area
that adjoins that region; and
(b) any other prescribed area of the State, being
the whole or part of, or an area adjoining, a
local government district under the Local
10 Government Act 1995 that is designated
under that Act as a city or a town.
".
(2) Section 16A inserted by subsection (1) applies to persons
arrested for an offence referred to in subsection (2)(a) or (3) of
15 that section on or after the day on which this section comes into
operation.
page 5
Bail Amendment Bill 1998
Part 3 Amendment to extend Schedule 1, Part C, clause 3A, to
persons on parole etc.
s. 7
Part 3 -- Amendment to extend Schedule 1, Part C,
clause 3A, to persons on parole etc.
7. Schedule 1 amended
Schedule 1, Part C, is amended by deleting clause 3A(1)(b) and
5 inserting instead --
"
(b) the serious offence is alleged to have been
committed while the defendant was --
(i) on bail for; or
10 (ii) at liberty under an early release order made
in respect of,
another serious offence,
".
page 6
Bail Amendment Bill 1998
Insertion of another matter to be considered in making the Part 4
decision to grant or refuse bail
s. 8
Part 4 -- Insertion of another matter to be considered
in making the decision to grant or refuse bail
8. Schedule 1 amended
Schedule 1, Part C, is amended as follows:
5 (a) in clause 1(f), by deleting the full stop and substituting a
semicolon;
(b) by inserting after clause 1(f) the following paragraph --
"
(g) whether the alleged circumstances of the offence or
10 offences amount to wrongdoing of such a serious
nature as to make a grant of bail inappropriate.
";
(c) in clause 2(2)(a)(i), by deleting "and (d)" and inserting
instead --
15 " , (d) and (g) ".
page 7
Bail Amendment Bill 1998
Part 5 Amendments relating to the imposition of bail conditions
s. 9
Part 5 -- Amendments relating to the imposition of
bail conditions
9. Section 51 amended
(1) After section 51(2) the following subsection is inserted --
5 "
(2a) A defendant --
(a) whose bail undertaking includes any condition
imposed for a purpose mentioned in
clause 2(2)(c) or (d) of Part D of Schedule 1;
10 and
(b) who fails to comply with the condition,
commits an offence.
".
(2) Section 51(5) is amended by deleting "or (2)" and inserting
15 instead --
" , (2) or (2a) ".
(3) Section 51(6) is amended by deleting "or (2) is liable to a fine
not exceeding $3 000" and inserting instead --
" , (2) or (2a) is liable to a fine not exceeding $10 000 ".
20 10. Section 52 amended
Section 52(1) is amended by deleting "or (2)" and inserting
instead --
" , (2) or (2a) ".
page 8
Bail Amendment Bill 1998
Amendments relating to the imposition of bail conditions Part 5
s. 11
11. Section 57 amended
Section 57(1) is amended by deleting "or (2)" and inserting
instead --
" , (2) or (2a) ".
5 12. Schedule 1, clause 2, amended
Schedule 1, Part D, is amended as follows:
(a) in clause 2(1)(a), by inserting after "on bail" --
" or while the defendant is on bail ";
(b) in clause 2(1), by inserting after "(2)," --
10 " (2b), ";
(c) by inserting after clause 2(2), the following
subclauses --
"
(2a) Before imposing a condition on a grant of bail for a purpose
15 mentioned in subclause (2)(c) or (d) a judicial officer or
authorized officer is to consider whether that purpose would
be better served, or could be better assisted, by a restraining
order made under the Restraining Orders Act 1997 and
whether, in the case of a judicial officer, to exercise the
20 power in section 63 of that Act or, in the case of an
authorized officer, to make a telephone application under
that Act.
(2b) Where a judicial officer is of the opinion that the defendant
should while on bail --
25 (a) be counselled for a behavioural problem; or
(b) attend a course or programme that may assist with
such a problem,
the judicial officer may under subclause (1) impose a
condition for that purpose that requires the defendant to --
30 (c) attend a prescribed person to be counselled; or
page 9
Bail Amendment Bill 1998
Part 5 Amendments relating to the imposition of bail conditions
s. 12
(d) attend a prescribed course or programme,
that is specified by the judicial officer in the condition.
";
(d) by deleting clause 2(5) and inserting instead --
5 "
(5) Where a judicial officer imposes a condition for a purpose
mentioned in subclause (2b), (3), (3a) or (4), the judicial
officer shall cause to be sent to the person who is to counsel
or examine the defendant, or the place at which the
10 defendant is to attend, a statement of the reasons for
imposing the condition.
".
page 10
Bail Amendment Bill 1998
Amendments relating to defendants who, while on bail for a Part 6
serious offence, commit another serious offence that
constitutes a breach of a restraining order or a protective bail
condition
s. 13
Part 6 -- Amendments relating to defendants who,
while on bail for a serious offence, commit another
serious offence that constitutes a breach of a
restraining order or a protective bail condition
5 13. Schedule 1 amended
(1) Schedule 1, Part C, is amended in clause 3A(1) by deleting the
passage from "the judicial officer" to the end of the subclause
and inserting instead --
"
10 the judicial officer or (if section 16A does not apply) the
authorized officer in whom jurisdiction is vested shall refuse
to grant bail for the serious offence referred to in
paragraph (a) unless the judicial officer or authorized
officer --
15 (c) is satisfied that there are exceptional reasons why
the defendant should not be kept in custody and, if
clause 3B applies, is so satisfied only after
complying with that clause; and
(d) is also satisfied that bail may properly be granted
20 having regard to the provisions of clauses 1 and 3
or, in the case of a child defendant, clauses 2 and 3.
".
(2) Schedule 1, Part C, is amended by inserting after clause 3A the
following clause --
25 "
3B. Determination of exceptional reasons under clause 3A(1)
(1) This clause applies where it appears to the judicial officer or
(if section 16A does not apply) the authorized officer that all
page 11
Bail Amendment Bill 1998
Part 6 Amendments relating to defendants who, while on bail for a
serious offence, commit another serious offence that
constitutes a breach of a restraining order or a protective bail
condition
s. 13
or any of the acts alleged to constitute a serious offence
referred to in clause 3A(1)(b) would, if proved in the
appropriate proceedings, amount to a breach by the
defendant of a protective condition or order.
5 (2) The judicial officer or authorized officer shall, before
making a decision that there are exceptional reasons for the
purposes of clause 3A(1)(c), make enquiry, or cause enquiry
to be made, whether there has already been --
(a) any breach by the defendant of the protective
10 condition or order that has been proved in
proceedings;
(b) any alleged breach by the defendant of the
protective condition or order that has not been so
proved, including an allegation that has not been the
15 subject of a complaint under the Justices Act 1902
or any other communication to any relevant official;
or
(c) any alleged breach by the defendant of any other
protective condition or order that has been the
20 subject of a complaint under the Justices Act 1902.
(3) On becoming aware of any such alleged breach, the judicial
officer or authorized officer shall give each person for
whose protection a protective condition or order referred to
in subclause (2) was imposed or made (a "relevant
25 person") a reasonable opportunity to give evidence by
affidavit on matters relating to that protective condition or
order.
(4) The judicial officer or authorized officer shall in making any
decision for the purposes of clause 3A(1)(c) --
30 (a) give due weight to --
(i) any evidence given under subclause (3);
page 12
Bail Amendment Bill 1998
Amendments relating to defendants who, while on bail for a Part 6
serious offence, commit another serious offence that
constitutes a breach of a restraining order or a protective bail
condition
s. 13
(ii) any adverse effect that a grant of bail to the
defendant would have on a relevant person;
and
(iii) any difficulty that a relevant person might
5 have in proving any future breach of a
protective condition or order;
(b) consider whether it would be appropriate to refuse
bail and make a hospital order under section 5 of the
Criminal Law (Mentally Impaired Defendants)
10 Act 1996;
(c) in the case of a condition imposed for a purpose
mentioned in clause 2(2)(c) or (d) of Part D, treat
any alleged breach of the condition as a serious
matter even if the conduct alleged to amount to the
15 breach in itself appears to be trivial; and
(d) consider whether any alleged breach of a protective
condition or order that has occurred shows that the
purpose of the condition or order has not been
achieved and that the defendant should be kept in
20 custody.
(5) The provisions of this clause do not limit the matters that the
judicial officer or authorized officer may take into account
for the purposes of clause 3A(1)(c).
(6) In this clause --
25 "protective condition or order" means --
(a) a condition imposed for a purpose mentioned in
clause 2(2)(c) or (d) of Part D;
(b) a violence restraining order under the
Restraining Orders Act 1997; or
30 (c) a Part VII order under the Justices Act 1902 --
page 13
Bail Amendment Bill 1998
Part 6 Amendments relating to defendants who, while on bail for a
serious offence, commit another serious offence that
constitutes a breach of a restraining order or a protective bail
condition
s. 13
(i) that under section 86 of the Restraining
Orders Act 1997 is taken to be a misconduct
restraining order under that Act; and
(ii) that shows on the face of the order that the
5 causing or threatening of personal injury by
the defendant was a ground for the making
of the order.
".
page 14
Bail Amendment Bill 1998
Amendments to include further offences in the definition of Part 7
serious offence
s. 14
Part 7 -- Amendments to include further offences in
the definition of serious offence
14. Section 3 amended
Section 3(1) is amended by deleting the definition of "serious
5 offence" and inserting instead --
"
"serious offence" means --
(a) an offence against section 51(2a); and
(b) an offence described in Schedule 2;
10 ".
15. Schedule 2 amended
Schedule 2 is amended as follows:
(a) in item 1, by deleting the entry referring to s. 378(2) and
inserting instead --
15 " s. 378 Stealing a motor vehicle ";
(b) in item 1, in the entry referring to s. 401, by deleting
", if the defendant is charged on indictment";
(c) by deleting item 2a and inserting instead --
"
20 2a. Restraining Orders Act 1997
s. 61(1) Breach of a violence restraining order
s. 86(2) Breach of a Part VII order under the Justices
Act 1902--
(a) that under section 86 of the
Restraining Orders Act 1997 is taken
to be a misconduct restraining order
under that Act; and
page 15
Bail Amendment Bill 1998
Part 7 Amendments to include further offences in the definition of
serious offence
s. 15
(b) that shows on the face of the order that
the causing or threatening of personal
injury by the defendant was a ground
for the making of the order.
".
page 16
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