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This is a Bill, not an Act. For current law, see the Acts databases.


BAIL AMENDMENT BILL 1998

                     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.
                                                                               ".




 


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