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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Bail Amendment Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Bail Act 1982 amended
3. The Act amended in this Part 3
4. Section 3 amended 3
5. Section 3A inserted 5
3A. Sending notices by electronic
communication 5
6. Section 4A inserted and transitional provision 6
4A. Detention and bail where accused
appears in response to summons or court
hearing notice 6
7. Section 5 amended 7
8. Section 7 amended 7
9. Section 7A replaced by sections 7A to 7F, related
amendments to sections 8 and 21 and transitional
provisions 7
7A. Bail may be dispensed with by court 7
7B. Special provision for adult accused in
murder cases 8
7C. Special provision for child accused in
murder cases 10
7D. Previous decision may be adopted 11
7E. Bail during trial 12
7F. Bail for appeal from courts of summary
jurisdiction 12
10. Section 9 amended and transitional provision 14
11. Section 11 amended and transitional provision 15
12. Section 12 amended 16
13. Heading to Part III replaced 16
217--3 page i
Bail Amendment Bill 2007
Contents
Part III -- Jurisdiction relating to bail
14. Sections 13A and 13B inserted 16
13A. Jurisdiction to dispense with bail and how
jurisdiction to be exercised 16
13B. Giving and proof of notices under
section 13A(3) 17
15. Section 14 amended and transitional provisions 18
16. Sections 15A and 15B inserted and transitional
provision 20
15A. Appeal from decision of Judge 20
15B. Determination of appeal under
section 15A and related provisions 21
17. Section 26 amended 22
18. Section 28 amended, related amendments to
sections 35, 49, 51 and 58 and Schedule 1 and
transitional provisions 23
19. Section 29 amended 24
20. Section 30 amended 24
21. Section 31 amended and transitional provision 25
22. Section 31A inserted and transitional provision 26
31A. Amendment of conditions during trial 26
23. Section 32 amended and transitional provision 28
24. Section 36 replaced, related amendments to
sections 3, 37, 39, 40, 41 and 42 and transitional
provisions 29
36. Authority to approve sureties 29
25. Section 37 amended 31
26. Section 43A inserted 32
43A. Use of video link and electronic
communication where proposed surety is
interstate 32
27. Section 44 replaced and transitional provisions 34
44. When surety undertaking extends to
different time or different time and place
substituted under section 31 34
28. Section 45 amended and transitional provision 36
29. Section 48 amended 38
30. Section 49 amended, related amendment to
section 67 and transitional provisions 39
31. Section 51A inserted and transitional provisions 40
51A. Proceedings before courts of summary
jurisdiction for an offence under section 51 40
32. Section 52 amended and transitional provisions 41
page ii
Bail Amendment Bill 2007
Contents
33. Section 54 amended, related amendment to
section 46 and transitional provision 42
34. Section 54A inserted 44
54A. Accused on committal may be taken
before court by which committed 44
35. Section 56 repealed 45
36. Sections 59A and 59B inserted and related
amendments to sections 16 and 58 45
59A. Where bail dispensed with, accused may
be taken before judicial officer for
reconsideration of matter 45
59B. Warrant for arrest of absconding accused 47
37. Section 60 amended 47
38. Section 61 amended 48
39. Section 66A amended 48
40. Section 66B inserted and transitional provision 48
66B. Use of video link or audio link 48
41. Schedule 1 amended and transitional provisions 50
Schedule 1 -- Jurisdiction as to bail and
related matters
Part A -- Jurisdiction relating to bail
Part B -- Cessation of powers relating to bail
1. Upon decision by Judge, power of other
officers ceases 51
1A. Upon decision by Court of Appeal, other
powers cease 51
3. Cessation of power upon refusal of bail for
initial appearance 52
3C. Bail in murder cases 53
4. Bail after conviction: accused awaiting
sentence 54
4A. Bail after conviction: accused awaiting
disposal of appeal 54
42. Schedule 2 amended and transitional provision 55
Schedule 2 -- Serious offences
43. Amendment of various references to prescribed
forms 56
44. Transitional regulations 56
page iii
Bail Amendment Bill 2007
Contents
Part 3 -- Consequential amendments
to other Acts
45. Criminal Procedure Act 2004 amended 58
46. Supreme Court Act 1935 amended 58
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Bail Amendment Bill 2007
A Bill for
An Act to amend the Bail Act 1982, to consequentially amend the
Criminal Procedure Act 2004 and the Supreme Court Act 1935, and
for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Bail Amendment Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Bail Amendment Act 2007.
2. Commencement
5 This Act comes into operation as follows:
(a) Part 1 -- on the day on which this Act receives the
Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
and different days may be fixed for different provisions.
page 2
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 3
Part 2 -- Bail Act 1982 amended
3. The Act amended in this Part
The amendments in this Part are to the Bail Act 1982*.
[* Reprint 5 as at 1 April 2005.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
Act No. 65 of 2006.]
4. Section 3 amended
Section 3(1) is amended as follows:
10 (a) by deleting the definition of "appropriate judicial
officer" and inserting instead --
"
"appropriate judicial officer" means --
(a) subject to paragraphs (b), (c) and (d), a
15 judicial officer who is empowered to
exercise jurisdiction in the court before
which the accused is required to appear
pursuant to his bail undertaking; or
(b) if the court is the Court of Appeal, a judge of
20 appeal; or
(c) except in section 49, a Judge of the Supreme
Court or of the Children's Court, as the case
may require, in any case where --
(i) under section 15 only a Judge of the
25 Supreme Court or of the Children's
Court has power to grant bail; or
(ii) a judicial officer has exercised the
power contained in section 31(2)(d),
for the appearance in question; or
30 (d) except in section 49, a Judge of the Supreme
Court, of the District Court, or of the
page 3
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 4
Children's Court, as the case may require, in
any case where such a Judge has granted bail
under section 14 for the appearance in
question;
5 ";
(b) in the definition of "court" by deleting paragraph (c) and
inserting instead --
"
(c) the Coroner's Court of Western Australia;
10 ";
(c) in the definition of "judicial officer" by inserting after
"justice" --
"
and, where the context so requires, the Court of
15 Appeal exercising jurisdiction under this Act
";
(d) by inserting in the appropriate alphabetical positions --
"
"approved", in relation to a form, means approved by
20 the chief executive officer of the department of the
Public Service principally assisting in the
administration of this Act;
"Chief Judge" means the Chief Judge of the District
Court;
25 "Chief Justice" means the Chief Justice of Western
Australia;
"court custody centre" has the meaning given in the
Court Security and Custodial Services Act 1999
section 3;
30 "Director of Public Prosecutions" means --
(a) the Director of Public Prosecutions for the
State; or
page 4
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 5
(b) the officer in charge in the State of the
Commonwealth Office of the Director of
Public Prosecutions,
as the case requires;
5 "electronic address" means a facsimile number, email
address or other electronic address, as the case
requires;
"electronic communication" means facsimile
transmission, email or other form of electronic
10 communication as defined in the Electronic
Transactions Act 2003 section 5;
"judge of appeal" has the meaning given in the
Supreme Court Act 1935 section 4(1);
"registrar" of a court means --
15 (a) for a court other than the Coroner's Court of
Western Australia, the principal registrar, a
registrar or a deputy registrar of the court; or
(b) for the Coroner's Court of Western
Australia, a coroner's registrar as defined in
20 the Coroners Act 1996 section 3;
".
5. Section 3A inserted
After section 3 the following section is inserted --
"
25 3A. Sending notices by electronic communication
(1) A reference in this Act, however expressed, to a notice
being sent to a person (the "addressee") by electronic
communication is a reference to the notice being sent
by electronic communication --
30 (a) to an electronic address provided by the
addressee for the purpose of being served with
the notice; and
page 5
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 6
(b) in an electronic format that enables it to be
printed or otherwise generated by the
addressee.
(2) If a notice is sent in accordance with subsection (1), the
5 notice is to be presumed, unless the contrary is shown,
to have been received at the time when, in the ordinary
course of events, the electronic communication would
have entered the information system, as defined in the
Electronic Transactions Act 2003 section 5, of the
10 addressee.
".
6. Section 4A inserted and transitional provision
(1) After section 4 the following section is inserted in Part I --
"
15 4A. Detention and bail where accused appears in
response to summons or court hearing notice
(1) Where --
(a) an accused has appeared in court for an offence
pursuant to a summons or court hearing notice
20 issued under the Criminal Procedure Act 2004;
and
(b) a judicial officer adjourns the proceedings,
the accused is not to be detained in custody to further
appear before the court for that offence unless the
25 judicial officer so orders.
(2) If an order is made under subsection (1), the duty
described in section 7(1) applies.
(3) On any appearance in court by the accused a judicial
officer to whom section 7(1) applies may revoke an
30 order made under subsection (1).
".
page 6
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 7
(2) The Bail Act 1982 section 4A as inserted by subsection (1)
applies to appearances in court referred to in subsection (1)(a)
of that section that occur after the commencement of this
section.
5 7. Section 5 amended
Section 5(2) is amended by deleting "7(3)" and inserting
instead --
" 7B, 7C, 7E ".
8. Section 7 amended
10 (1) Section 7(1) is amended as follows:
(a) by deleting "(including detention during the period of
his trial)";
(b) by deleting "subsection (2)" and inserting instead --
" section 7B, 7C or 7E ".
15 (2) Section 7(2), (3) and (4) are repealed.
(3) Section 7(5) is amended by deleting "power conferred by
section 9" and inserting instead --
" powers conferred by sections 7A and 9 ".
9. Section 7A replaced by sections 7A to 7F, related
20 amendments to sections 8 and 21 and transitional provisions
(1) Section 7A is repealed and the following sections are inserted
instead --
"
7A. Bail may be dispensed with by court
25 (1) A judicial officer referred to in section 7(1) may,
instead of discharging the duty imposed by that
subsection, dispense with the requirement for bail for
page 7
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 9
an appearance in court for an offence by an accused if
the judicial officer --
(a) has jurisdiction to do so under section 13A(1);
and
5 (b) may properly do so under section 13A(2).
(2) Where the requirement for bail is dispensed with under
this section, the accused has a right to be at liberty until
the accused is required to appear before a court for the
offence, but subject to --
10 (a) section 59A; and
(b) any requirement that the accused be in custody
for some other offence or reason.
7B. Special provision for adult accused in murder cases
(1) In this section --
15 "Judge" means a Judge of the Supreme Court.
(2) This section applies where --
(a) an accused is in custody for an offence of wilful
murder or murder so that under section 15 only
a Judge has power to grant bail; and
20 (b) the accused is not a child.
(3) Where this section applies the accused, or a person on
the accused's behalf, may make an application to a
Judge for bail at any time before conviction for the
offence.
25 (4) Upon an accused's initial appearance in court for an
offence of wilful murder or murder, the judicial officer
who may order the accused's detention in custody is
under a duty to inform the accused of the right
conferred by subsection (3).
page 8
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 9
(5) Where --
(a) an accused's case for bail has been considered
by a Judge on an application under
subsection (3); and
5 (b) bail has been refused,
the accused's case for bail shall not be considered on
any subsequent occasion in the same case when the
accused's continued detention may be ordered unless
subsection (6) applies.
10 (6) The accused's case for bail shall again be considered
by a Judge if the accused, or a person on the accused's
behalf, applies to a Judge and satisfies the Judge
that --
(a) new facts have been discovered, new
15 circumstances have arisen or the circumstances
have changed since bail was refused; or
(b) the accused failed to adequately present the
accused's case for bail on the previous
occasion.
20 (7) Where --
(a) an accused's case for bail has been considered
by a Judge on an application under
subsection (3); and
(b) bail has been granted,
25 on any subsequent appearance in the same case a
judicial officer may order, notwithstanding section 15,
that bail is to continue on the same terms and
conditions.
(8) The accused is to be taken before a Judge for the
30 purposes of an application under this section only if the
Judge so orders.
page 9
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 9
7C. Special provision for child accused in murder cases
(1) This section applies where a child accused is in custody
for an offence of wilful murder or murder so that under
section 15 only a Judge of the Children's Court has
5 power to grant bail.
(2) Where this section applies, the judicial officer referred
to in section 7(1) other than a Judge of the Children's
Court, shall, whether or not an application for bail is
made by the accused or on the accused's behalf, cause
10 the accused to be taken as soon as is practicable before
a Judge of the Children's Court for the purpose of
having the accused's case for bail considered by the
Judge.
(3) Notwithstanding subsection (2), where --
15 (a) the duty described in that subsection has been
discharged once in relation to a child accused's
case for bail; and
(b) bail has on that occasion been refused by a
Judge of the Children's Court,
20 the accused's case for bail need not be considered on
any subsequent occasion in the same case when the
accused's continued detention may be ordered unless
subsection (4) applies.
(4) On a subsequent occasion the accused may apply to the
25 judicial officer who may order the accused's continued
detention for a reconsideration of the accused's case
for bail on the ground that --
(a) new facts have been discovered, new
circumstances have arisen or the circumstances
30 have changed since bail was refused on the
occasion mentioned in subsection (3); or
(b) the accused failed to adequately present the
accused's case for bail on that occasion.
page 10
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 9
(5) If the judicial officer is satisfied as to one or more of
those grounds the judicial officer shall cause the
accused to be taken as soon as is practicable before a
Judge of the Children's Court for the purpose of having
5 the accused's case for bail considered by the Judge.
7D. Previous decision may be adopted
(1) Notwithstanding section 7(1), after --
(a) the duty described in that subsection has been
discharged once in relation to an accused's case
10 for bail; or
(b) a Judge of the Children's Court has considered
the case under section 15,
it is sufficient on any subsequent consideration of bail
in the same case for a judicial officer, including a
15 Judge of the Children's Court acting under section 15,
to make inquiry of the accused in terms of
subsection (2).
(2) The inquiry to be so made is --
(a) whether any new fact has been discovered or
20 new circumstance has arisen, or whether the
circumstances have changed, since bail was
previously granted or refused; and
(b) whether the accused considers that the accused
failed to adequately present the accused's case
25 for bail on a previous occasion.
(3) Unless the judicial officer is satisfied that there is any
reason of the kind mentioned in subsection (2) for not
doing so, the judicial officer may adopt the decision
previously made in the case, but with power to make
30 such variations of the terms and conditions of bail as
the judicial officer thinks fit.
page 11
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 9
7E. Bail during trial
(1) Where --
(a) an accused has been refused bail for the
accused's appearance for trial for an offence;
5 and
(b) the trial extends beyond one day,
a judicial officer referred to in section 7(1) need not
comply with that subsection unless the accused, or a
person on the accused's behalf, applies for bail.
10 (2) In subsection (1) --
"trial" means that part of proceedings for an offence
when evidence is being received by the court in
respect of the offence and also extends to any time
when --
15 (a) legal argument is being heard; or
(b) a judicial officer or a jury is deliberating.
7F. Bail for appeal from courts of summary jurisdiction
(1) If a person is in custody and an appeal has been
commenced under the Criminal Appeals Act 2004
20 Part 2 in connection with the decision by virtue of
which the person is in custody, the person may apply
for bail --
(a) if the appeal is to be heard and determined by
the Court of Appeal or if an application has
25 been made to the Court of Appeal for leave to
appeal to the Court of Appeal -- to a judge of
appeal; or
(b) in any other case -- to a Judge of the Supreme
Court.
page 12
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 9
(2) Bail shall not be granted to an applicant for bail under
subsection (1) unless --
(a) the applicant has given notice of the application
for bail to --
5 (i) the Director of Public Prosecutions; or
(ii) the State Solicitor,
as the case may require; and
(b) that official has been given an opportunity to be
heard on the application.
10 ".
(2) Section 8(5) is amended by deleting "7A(1)" and inserting
instead --
" 7F(1) ".
(3) Section 21(2) is amended as follows:
15 (a) after paragraph (a) by inserting --
" or ";
(b) by deleting paragraph (b) and "or" after it and inserting
instead --
"
20 (b) the Director of Public Prosecutions or the State
Solicitor to receive notice and be heard under
section 7F(2); or
".
(4) The Bail Act 1982 section 7A as inserted by subsection (1)
25 applies in relation to appearances in court coming within the
Bail Act 1982 section 7(1) that occur after the commencement
of this section.
(5) The Bail Act 1982 section 7B(3) as inserted by subsection (1)
applies so as to enable an accused who is detained in custody
30 after the commencement of this section to make an application
allowed for by that subsection.
page 13
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 10
(6) The Bail Act 1982 section 7B(4) as inserted by subsection (1)
applies in relation to appearances in court coming within that
subsection that occur after the commencement of this section.
(7) The Bail Act 1982 section 7B(5) as inserted by subsection (1)
5 applies in relation to an accused who is in custody on the
commencement of this section as if the reference in
section 7B(5)(a) to an application under subsection (3) included
a reference to an application under the Bail Act 1982 as in force
immediately before the commencement of this section.
10 (8) The Bail Act 1982 section 7C(2) as inserted by subsection (1)
applies in relation to appearances in court coming within that
subsection that occur after the commencement of this section.
(9) The Bail Act 1982 section 7D as inserted by subsection (1)
applies to any subsequent consideration of bail referred to in
15 section 7D(1) that occurs after the commencement of this
section.
(10) The Bail Act 1982 section 7E as inserted by subsection (1)
applies to any trial as defined in section 7E(2), or part of a trial,
that takes place after the commencement of this section.
20 (11) The Bail Act 1982 section 7F(2) as inserted by subsection (1)
applies in relation to a pending application for bail under the
Bail Act 1982 section 7A(1), as in force immediately before the
commencement of this section, as if it were an application for
bail under the Bail Act 1982 section 7F(1) as inserted by
25 subsection (1).
10. Section 9 amended and transitional provision
(1) Section 9(1)(b) is amended by inserting after "24(1)" --
" or 24A(1) or (2) ".
(2) The Bail Act 1982 section 9(1)(b) as amended by subsection (1)
30 applies to any consideration of a case for bail that occurs after
the commencement of this section.
page 14
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 11
11. Section 11 amended and transitional provision
(1) Section 11(1)(e) is amended by inserting after "46," --
" 50F, ".
(2) Section 11(2) and (3) are repealed and the following subsections
5 are inserted instead --
"
(2) Where the accused is in custody in a lock-up, court
custody centre or prison, the right conferred by
subsection (1) is also subject to the person in charge of
10 the lock-up, court custody centre or prison either --
(a) signing a certificate under subsection (3); or
(b) receiving notice that a certificate has been
signed by another person under that subsection.
(3) After an accused becomes entitled to be at liberty as
15 provided in subsection (1), a person referred to in
section 29 may sign a certificate to that effect in the
prescribed form.
(4) The person in charge of a lock-up, court custody centre
or prison in which the accused is in custody shall
20 release the accused from custody as soon as is
practicable after --
(a) the person in charge signs the certificate; or
(b) if the certificate is signed by a person other than
the person in charge, the person in charge
25 receives notice as described in
subsection (2)(b).
".
(3) A certificate under the Bail Act 1982 section 11(2) as in force
immediately before the commencement of this section that has
30 not been fully acted upon is to be treated after that
commencement as a certificate under the Bail Act 1982
section 11(3) as inserted by subsection (2).
page 15
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 12
12. Section 12 amended
Section 12 is amended by deleting "section 11(1)" and inserting
instead --
" sections 7A(2) and 11(1) ".
5 13. Heading to Part III replaced
The heading to Part III is deleted and the following heading is
inserted instead --
"
Part III -- Jurisdiction relating to bail
10 ".
14. Sections 13A and 13B inserted
After section 13 the following sections are inserted --
"
13A. Jurisdiction to dispense with bail and how
15 jurisdiction to be exercised
(1) Jurisdiction to dispense with the requirement for bail
under section 7A for any appearance described in the
first column of Schedule 1 Part A clause 2 or 3 is
vested, subject to Schedule 1 Part B, in the judicial
20 officer specified in the second column of that clause
opposite that description, but Schedule 1 Part A
clause 7 does not apply for the purposes of this
subsection.
(2) The jurisdiction referred to in subsection (1) is
25 exercisable only --
(a) in respect of an appearance in court before
conviction for an offence; and
(b) if it appears to the judicial officer that bail
would be granted in accordance with
30 Schedule 1 Part C clause 1 or 2 but that in the
page 16
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 14
circumstances the completion of bail papers is
an unnecessary imposition.
(3) Where a judicial officer dispenses with the requirement
for bail for an appearance by an accused the registrar of
5 the court shall, in accordance with section 13B, give
written notice to the accused of the time and place for
the appearance.
13B. Giving and proof of notices under section 13A(3)
(1) A written notice to an accused under section 13A(3)
10 shall be --
(a) given to the accused personally; or
(b) sent to the accused --
(i) by post to the accused's address
appearing in the records of the court; or
15 (ii) in urgent cases or with the accused's
consent, by electronic communication.
(2) A person who gives or sends a notice in accordance
with subsection (1) shall endorse on a file copy of the
notice a certificate showing --
20 (a) that the person has done so; and
(b) the time of doing so.
(3) If a notice is sent by post under subsection (1)(b)(i), the
notice is to be presumed, unless the contrary is shown,
to have been received at the time when, in the ordinary
25 course of events, it would have been delivered.
(4) In any proceedings --
(a) a document purporting to be a copy of a notice
referred to in subsection (1) is evidence of the
terms of the notice; and
30 (b) an endorsement on a copy of a notice referred
to in subsection (2) purporting to be a
page 17
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 15
certificate referred to in that subsection is
evidence of the matters appearing in the
certificate without proof of the signature of the
person who made the endorsement.
5 ".
15. Section 14 amended and transitional provisions
(1) Section 14(1) is amended as follows:
(a) by deleting "of the Supreme Court";
(b) after paragraph (b) by deleting the full stop and inserting
10 instead --
"
; and
(c) under section 7A dispense with the requirement
for bail or revoke an existing dispensation.
15 ".
(2) Section 14(2) is amended as follows:
(a) by deleting "of the Supreme Court";
(b) in paragraph (a) by deleting "or refused" and inserting
instead --
20 " , refused or dispensed with ".
(3) Section 14(2a) and (3) are each amended by deleting "of the
Supreme Court".
(4) Section 14(4) and (5) are repealed and the following subsection
is inserted instead --
25 "
(4) In this section --
(a) references to a Judge are references --
(i) in the case of a child charged with an
offence before the Children's Court, to a
30 Judge of that Court; and
page 18
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 15
(ii) in the case of an accused committed for
trial or sentence to the District Court, to
a Judge of that Court; and
(iii) in any other case, to a Judge of the
5 Supreme Court;
and
(b) references to any other judicial officer --
(i) in relation to the exercise of powers
under this section by a Judge, are
10 references to any judicial officer whose
jurisdiction is inferior to that of the
Judge; but
(ii) in relation to the exercise of powers
under this section by a Judge of the
15 Supreme Court, do not include a Judge
of the Children's Court or a Judge of the
District Court.
".
(5) The Bail Act 1982 section 14(4)(a)(i) as inserted by
20 subsection (4) applies in respect of a child charged with an
offence on or after the commencement.
(6) The Bail Act 1982 section 14(4)(a)(ii) as inserted by
subsection (4) applies in respect of an accused committed to the
District Court on or after the commencement for trial or
25 sentence.
(7) The Bail Act 1982 section 14(4)(b) as inserted by subsection (4)
applies in respect of any power referred to in the Bail Act 1982
section 14(1) that is exercised, or could be exercised, on or after
the commencement by any other judicial officer as defined in
30 that paragraph.
(8) In subsections (5), (6) and (7) --
"commencement" means the commencement of subsection (4).
Note: The heading to section 14 is to read "Extent of Judge's jurisdiction".
page 19
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 16
16. Sections 15A and 15B inserted and transitional provision
(1) After section 15 the following sections are inserted --
"
15A. Appeal from decision of Judge
5 (1) In this section --
"bail decision" means a decision --
(a) to grant or refuse bail; or
(b) to vary or revoke bail; or
(c) to dispense with the requirement for bail; or
10 (d) to impose any condition on a grant of bail,
and includes a decision under section 55
or 59A(4).
(2) The prosecutor or the accused may appeal to the Court
of Appeal against a bail decision of --
15 (a) a Judge of the Children's Court; or
(b) a Judge of the District Court; or
(c) a Judge of the Supreme Court.
(3) The leave of the Court of Appeal is required for each
ground of appeal in an appeal under this section.
20 (4) The Criminal Appeals Act 2004 section 27(2), (3) and
(4) apply, with necessary modifications, as if an appeal
under this section were an appeal under Part 3 of
that Act.
(5) An appeal under this section shall be commenced and
25 conducted in accordance with this section, section 15B
and rules of court made by the Supreme Court.
(6) An appeal under this section shall be commenced by
lodging with the Court of Appeal an application for
leave to appeal that sets out the grounds of the appeal.
page 20
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 16
(7) An appeal under this section cannot be commenced
later than 21 days after the date of the bail decision
unless the Court of Appeal orders otherwise.
(8) An accused who is a party to an appeal under this
5 section and who is in custody is entitled to be present at
the hearing of the appeal if the accused so requests, and
any official responsible for that custody who is
informed of such a request shall do what is necessary
to give effect to it.
10 (9) For the purposes of giving effect to a request referred
to in subsection (8), arrangements may be made for the
accused to appear before the Court of Appeal by means
of a video link or an audio link in accordance with
section 66B, unless the Court of Appeal has ordered
15 that the accused appear before it in person.
15B. Determination of appeal under section 15A and
related provisions
(1) The Court of Appeal has jurisdiction to hear and
determine an appeal under section 15A.
20 (2) The Court of Appeal shall determine an appeal on the
material and evidence that was before the Judge whose
decision is the subject of the appeal.
(3) Any decision of the Court of Appeal in relation to bail
shall be made in accordance with the relevant
25 provisions of sections 13A and 17 and Schedule 1.
(4) Where in determining an appeal the Court of Appeal
revokes the bail of an accused who is at liberty, it may
order that the accused be returned to custody to await
the appearance for which the bail was granted.
30 (5) Where in determining an appeal the Court of Appeal
varies the bail of an accused who is at liberty, it may
order that the accused be returned to custody until the
page 21
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 17
accused becomes entitled to be again at liberty
pursuant to section 11.
(6) A judge of appeal may issue any warrant that may be
necessary to carry into effect an order under
5 subsection (4) or (5).
".
(2) The Bail Act 1982 sections 15A and 15B as inserted by
subsection (1) apply to a bail decision, as defined in
section 15A(1), made after the commencement of this section
10 by a judge referred to in section 15A(2).
17. Section 26 amended
(1) Section 26(1) is amended as follows:
(a) after paragraph (a) by inserting --
" or ";
15 (b) before paragraph (c) by inserting --
"
(ba) grants bail to an accused for a serious offence
to which Schedule 1 Part C clause 3A applies;
or
20 ".
(2) Section 26(2) is amended before paragraph (b) by inserting --
"
(aa) grants bail to an accused for a serious offence
to which Schedule 1 Part C clause 3A applies;
25 or
".
page 22
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 18
18. Section 28 amended, related amendments to sections 35, 49,
51 and 58 and Schedule 1 and transitional provisions
(1) Section 28(2) is amended as follows:
(a) by deleting paragraph (b) and inserting instead --
5 "
(b) that if the accused fails to appear at that time
and place the accused will, as soon as is
practicable, appear at the court at which the
accused was required to appear, when that court
10 is sitting; and
";
(b) after each of paragraphs (a) and (c) by inserting --
" and ".
(2) Section 49(1) is amended after "or (b)" by deleting "(ii)".
15 (3) Each provision in the Table to this section is amended by
deleting "(ii)" in each place where it occurs.
Table
s. 35(1) s. 58(1)(b)
s. 51(2) Sch. 1 Pt. D cl. 1(2)(a) and (b)
(4) A bail undertaking that has effect under the Bail Act 1982
immediately before the commencement of this section continues
20 to have effect, on and after that commencement, as if it were a
bail undertaking described in the Bail Act 1982 section 28(2) as
amended by subsection (1).
(5) A surety undertaking that has effect under the Bail Act 1982
immediately before the commencement of this section continues
25 to have effect, on and after that commencement, as if it were a
surety undertaking within the meaning of the Bail Act 1982
section 35(1) as amended by subsection (3).
page 23
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 19
19. Section 29 amended
Section 29(b) to (i) are deleted and the following paragraphs are
inserted instead --
"
5 (b) a registrar of a court, other than a deputy
registrar of the Magistrates Court or the
Children's Court;
(c) an authorised police officer;
(d) an associate of a Judge of the Supreme Court,
10 the District Court or the Children's Court;
(e) where the accused is in a lock-up or prison,
any person for the time being in charge of the
lock-up or prison;
(f) where the accused is in a court custody centre,
15 any person for the time being in charge of the
centre who is approved for the purposes of this
paragraph by the chief executive officer of the
department of the Public Service principally
assisting in the administration of the Court
20 Security and Custodial Services Act 1999;
(g) where the accused is a child, any authorised
community services officer.
".
20. Section 30 amended
25 Section 30(1)(a) is deleted and the following paragraph is
inserted instead --
"
(a) either --
(i) read it to the accused; or
30 (ii) be informed by the accused that the
accused has read it; or
(iii) if necessary, have it translated to the
accused;
".
page 24
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 21
21. Section 31 amended and transitional provision
(1) Section 31(2) is amended as follows:
(a) in paragraph (b) by deleting "give written notice
thereof " and inserting instead --
5 "
cause written notice of the time and place to be
given
";
(b) in paragraph (c) by inserting after "a Judge of the
10 Supreme Court" in the second place where it occurs --
"
or a Judge of the Children's Court, as the case
may require,
";
15 (c) in paragraphs (c) and (d) by deleting "give written
notice" and inserting instead --
" cause written notice to be given ";
(d) in paragraph (e) by deleting "give written notice
thereof " and inserting instead --
20 " cause written notice of the day to be given ";
(e) in paragraph (f) by inserting after "of the court" --
" , or a person authorised under subsection (5), ";
(f) in paragraph (f) by deleting "giving written notice
thereof " and inserting instead --
25 " causing written notice of the time to be given ".
(2) After section 31(4) the following subsection is inserted --
"
(5) The Chief Justice, in respect of committals to the
Supreme Court, and the Chief Judge, in respect of
30 committals to the District Court, may authorise a
person or persons, by name or office, to perform the
functions referred to in subsection (2)(f).
".
page 25
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 22
(3) The Bail Act 1982 section 31 as amended by this section applies
in relation to any adjournment or committal to which it refers
that occurs after the commencement of this section.
22. Section 31A inserted and transitional provision
5 (1) After section 31 the following section is inserted --
"
31A. Amendment of conditions during trial
(1) In this section --
"amendment" means an addition, variation or
10 cancellation under subsection (2);
"trial" means that part of proceedings for an offence
when evidence is being received by the court in
respect of the offence and also extends to any time
when --
15 (a) legal argument is being heard; or
(b) a judicial officer or a jury is deliberating.
(2) Where --
(a) an accused has been granted bail for the
accused's appearance for trial for an offence;
20 and
(b) the trial extends beyond one day,
a judicial officer who grants bail for the next
appearance by exercising the power in section 31(2)(a)
may also do one or more of the following --
25 (c) add any condition to the extent that is
authorised by clause 2 or 3 of Part D of
Schedule 1;
(d) vary a condition to that extent;
(e) cancel a condition.
page 26
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 22
(3) A judicial officer who adds, varies or cancels a
condition under subsection (2) shall cause an officer of
the court --
(a) to endorse the amendment on the accused's
5 copy of the bail undertaking or, if that copy is
not available for endorsement, to give written
notice of the amendment to the accused; and
(b) to endorse on a file copy of the undertaking a
certificate as to the amendment and the action
10 taken under paragraph (a).
(4) If the judicial officer considers that the amendment is
of a minor nature, the judicial officer may, for the
purposes of section 44(4), cause the officer of the court
to include a statement to that effect in the endorsement
15 or notice under subsection (3)(a) and the certificate
under subsection (3)(b).
(5) When action is taken under subsection (3)(a) --
(a) the bail undertaking is to be regarded as having
been amended as provided in the endorsement
20 or notice, as the case requires; and
(b) the terms and conditions of the bail undertaking
continue to apply as so amended as if the
accused had entered into the bail undertaking in
that form.
25 (6) In any proceedings an endorsement on a copy of a bail
undertaking referred to in subsection (3)(b) purporting
to be a certificate referred to in that paragraph is
evidence of the matters appearing in it without proof of
the signature of the person who made the endorsement.
30 ".
(2) The Bail Act 1982 section 31A as inserted by subsection (1)
applies to any trial as defined in section 31A(1), or part of a
trial, that takes place after the commencement of this section.
page 27
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 23
23. Section 32 amended and transitional provision
(1) Section 32(1), (2) and (3) are repealed and the following
subsections are inserted instead --
"
5 (1) A written notice to an accused under section 31(2) --
(a) shall be given to the accused personally; or
(b) shall be sent to the accused by post to the
accused's address appearing in the records of
the court; or
10 (c) in urgent cases or with the accused's consent,
shall be sent to the accused by electronic
communication.
(2) A person who gives or sends a notice in accordance
with subsection (1) shall endorse on a file copy of the
15 notice a certificate showing --
(a) that the person has done so; and
(b) the time of doing so.
(3) If a notice is sent by post under subsection (1)(b), the
notice is to be presumed, unless the contrary is shown,
20 to have been received at the time when, in the ordinary
course of events, it would have been delivered.
".
(2) Section 32(4) is amended as follows:
(a) by deleting "endorse" and inserting instead --
25 " cause to be endorsed ";
(b) by deleting "he notified the accused thereof." and
inserting instead --
" the accused has been notified of them. ".
(3) Section 32(5) is amended as follows:
30 (a) after paragraph (a) by inserting --
" and ";
page 28
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 24
(b) by deleting paragraph (b) and inserting instead --
"
(b) an endorsement --
(i) on a copy of a notice referred to in
5 subsection (2); or
(ii) on a bail undertaking,
purporting to be a certificate referred to in
subsection (2) or (4) is evidence of the matters
appearing in it without proof of the signature of
10 the person who made the endorsement.
".
(4) The Bail Act 1982 section 32 as amended by this section applies
in relation to oral notifications given, and written notices given
or sent, after the commencement of this section.
15 24. Section 36 replaced, related amendments to sections 3, 37,
39, 40, 41 and 42 and transitional provisions
(1) Section 36 is repealed and the following section is inserted
instead --
"
20 36. Authority to approve sureties
(1) The decision whether an applicant should be approved
as a surety in any case is to be made --
(a) by a person referred to in section 29(a) to (d);
or
25 (b) where the accused to whom bail has been
granted is in prison, by a person for the time
being in charge of the prison; or
(c) where the accused to whom bail has been
granted is a child, by an authorised community
30 services officer.
page 29
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 24
(2) A judicial officer when granting bail to an accused
subject to a requirement for a surety or sureties may
make an order as to --
(a) the giving of notice to the prosecutor of an
5 application for approval of any surety; or
(b) the person or persons who are to, or may,
approve any surety,
and subsection (1) has effect subject to any such order.
".
10 (2) Section 3(1) is amended by inserting in the appropriate
alphabetical position --
"
"surety approval officer" means a person who is
authorised by section 36 to decide whether an
15 applicant should be approved as a surety;
".
(3) Section 41(2) is amended as follows:
(a) by inserting before "officer" in the first place where it
occurs --
20 " surety approval ";
(b) by deleting "he" in the first place where it occurs and
inserting instead --
" that officer ";
(c) by deleting "officer acting in his position" and inserting
25 instead --
" surety approval officer ".
(4) Each provision in the Table to this subsection is amended by
deleting "an officer referred to in section 36(1)" and inserting
instead --
30 " a surety approval officer ".
page 30
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 25
Table
s. 37(1) s. 41(1)
s. 39
(5) Each provision in the Table to this subsection is amended by
inserting before "officer" --
" surety approval ".
5 Table
s. 37(1)(c) and (2) s. 42
s. 40(1) and (2)
(6) The Bail Act 1982 section 36(1) as inserted by subsection (1)
applies to any decision as to whether a person should be
approved as a surety that has to be made after the
commencement of this section.
10 (7) The Bail Act 1982 section 36(2) as inserted by subsection (1)
applies to any grant of bail that occurs after the commencement
of this section.
25. Section 37 amended
After section 37(2) the following subsection is inserted --
15 "
(3) For the purposes of this section it is sufficient if --
(a) the notice, information and declaration referred
to in subsection (1) are sent by electronic
communication to an electronic address
20 provided by the applicant; and
(b) the declaration referred to in subsection (1)(c)
duly completed is sent by electronic
communication to an electronic address
provided by the surety approval officer.
25 ".
page 31
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 26
26. Section 43A inserted
After section 43 the following section is inserted --
"
43A. Use of video link and electronic communication
5 where proposed surety is interstate
(1) In this section --
"proposed surety" means a person who is to enter into
a surety undertaking;
"relevant official" means the person before whom the
10 surety undertaking is to be entered into or was
entered into, as the case requires;
"video link" means facilities (including closed circuit
television) that enable, at the same time --
(a) the relevant official to see and hear the
15 proposed surety; and
(b) the proposed surety to see and hear the
relevant official.
(2) This section applies if a proposed surety is in another
State or a Territory.
20 (3) The relevant official may comply with section 43(a)
and (b) by means of a video link.
(4) The relevant official may send the surety undertaking
to the proposed surety by electronic communication for
completion.
25 (5) The proposed surety may enter into the surety
undertaking by sending the completed surety
undertaking to the relevant official by electronic
communication.
page 32
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 26
(6) If the surety undertaking is sent by electronic
communication under subsection (4) or (5), any
requirement for the proposed surety or the relevant
official to sign it is to be taken to have been complied
5 with if the full name of the proposed surety or the
relevant official, as the case requires, appears in the
appropriate place in the undertaking.
(7) The relevant official may comply with section 43(c) by
sending a copy of the surety undertaking as duly
10 completed to the surety by electronic communication.
(8) A surety undertaking that is entered into in accordance
with this section is to be taken to have been entered
into before the relevant official.
(9) In any proceedings a document purporting to be a copy
15 of a surety undertaking and purporting to be certified
by the relevant official to be a copy of a surety
undertaking entered into in accordance with this
section is evidence of the surety undertaking without
proof of the signature of the relevant official.
20 (10) A reference in this section to sending a surety
undertaking or copy of a surety undertaking to a person
by electronic communication is a reference to sending
the undertaking or copy by electronic communication
to an electronic address provided by the person.
25 ".
page 33
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 27
27. Section 44 replaced and transitional provisions
(1) Section 44 is repealed and the following section is inserted
instead --
"
5 44. When surety undertaking extends to different time
or different time and place substituted under
section 31
(1) A surety undertaking does not extend to the failure by
the accused to appear at a different time or a different
10 time and place substituted pursuant to section 31
unless --
(a) the surety undertaking contains a provision
stating that it does so extend and, where
applicable under subsection (5), the surety has
15 received notice as mentioned in that subsection;
or
(b) subsection (2) applies.
(2) A surety undertaking extends to the failure by the
accused to appear at a different time substituted
20 pursuant to section 31 during a trial if, at the option of
the surety, the undertaking contains a provision
stating --
(a) that it does so extend; and
(b) the effect of subsection (4).
25 (3) In subsection (2) --
"trial" means that part of proceedings for an offence
when evidence is being received by the court in
respect of the offence and also extends to any time
when --
30 (a) legal argument is being heard; or
(b) a judicial officer or a jury is deliberating.
page 34
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 27
(4) Subsection (2) applies despite any amendment as
defined in section 31A(1) if the endorsement or notice
under section 31A(3)(a) in respect of the amendment
includes a statement referred to in section 31A(4).
5 (5) A surety undertaking may, at the option of the surety,
also contain a provision stating that where --
(a) a different time or a different time and place for
the accused's appearance is substituted
pursuant to section 31; and
10 (b) subsection (2) does not apply,
the surety's liability only arises if the surety is given
notice, as soon as is practicable, of the different time or
the different time and place.
(6) Where, by operation of this section, a surety
15 undertaking would extend to the failure by the accused
to appear at a different time or a different time and
place substituted pursuant to section 31, that extension
is not affected by a reduction in the number of offences
to which the accused's bail undertaking relates.
20 ".
(2) The Bail Act 1982 section 44 as inserted by subsection (1)
applies to a surety undertaking whether entered into before or
after the commencement of this section.
(3) For the purposes of subsection (2), if a surety undertaking
25 entered into before the commencement of this section contains a
provision of the kind referred to in the Bail Act 1982
section 44(2) as in force before that commencement, the
provision is to be taken to be a provision of the kind referred to
in the Bail Act 1982 section 44(5) as inserted by subsection (1).
page 35
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 28
28. Section 45 amended and transitional provision
(1) Section 45(1) is amended as follows:
(a) by deleting "44(2)" and inserting instead --
" 44(5) ";
5 (b) after paragraph (a) by inserting --
" or ";
(c) in paragraph (b) by deleting "prescribed" and inserting
instead --
" approved ";
10 (d) by deleting paragraph (c) and inserting instead --
"
(c) by a person authorised under subsection (5)
sending or causing to be sent the approved form
to the surety --
15 (i) by post to the surety's address appearing
in the records of the court; or
(ii) in urgent cases or with the surety's
consent, by electronic communication.
".
20 (2) Section 45(2) is repealed and the following subsections are
inserted instead --
"
(2) A person who gives a notice in accordance with
subsection (1)(b) or (c) shall endorse on a file copy of
25 the notice a certificate showing --
(a) that the person has done so; and
(b) the time of doing so.
(2a) If a notice is sent by post under subsection (1)(c), the
notice is to be presumed, unless the contrary is shown,
30 to have been received at the time when, in the ordinary
course of events, it would have been delivered.
".
page 36
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 28
(3) Section 45(3) is amended as follows:
(a) by deleting "endorse on" and inserting instead --
" cause to be endorsed on a file copy of ";
(b) by deleting "he notified the surety thereof." and
5 inserting instead --
" the surety has been notified of them. ".
(4) Section 45(4) is amended as follows:
(a) in paragraph (a) by deleting "44(2)" and inserting
instead --
10 " 44(5) ";
(b) by deleting paragraph (b) and inserting instead --
"
(b) an endorsement --
(i) on a file copy of a notice given under
15 subsection (1)(b) or (c) purporting to be
a certificate referred to in
subsection (2); or
(ii) on a file copy of a surety undertaking
purporting to be a certificate referred to
20 in subsection (3),
is evidence of the matters appearing in the
certificate without proof of the signature of the
person who made the endorsement.
";
25 (c) after paragraph (a) by inserting --
" and ".
page 37
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 29
(5) After section 45(4) the following subsection is inserted --
"
(5) A registrar of the court, other than a deputy registrar of
the Magistrates Court or the Children's Court, is an
5 authorised person for the purposes of subsection (1)(c)
and in addition --
(a) in respect of committals to the Supreme Court,
the Chief Justice; and
(b) in respect of committals to the District Court,
10 the Chief Judge,
may authorise a person or persons, by name or office,
to perform the function referred to in subsection (1)(c).
".
(6) The Bail Act 1982 section 45 as amended by subsection (1)
15 applies to notices given for the purposes of the Bail Act 1982
section 44(5) after the commencement of this section.
29. Section 48 amended
Section 48(5) is amended as follows:
(a) in paragraph (a) by deleting "regulations made under the
20 Criminal Procedure Act 2004;" and inserting instead --
" the regulations; ";
(b) in paragraph (b) by deleting "made under the Criminal
Procedure Act 2004".
page 38
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 30
30. Section 49 amended, related amendment to section 67 and
transitional provisions
(1) Section 49(1) is amended as follows:
(a) by deleting paragraph (a) and inserting instead --
5 "
(a) an application for an order that the sum be paid
may be made to an appropriate judicial
officer --
(i) by the Director of Public Prosecutions
10 where the court before which the
accused failed to appear was --
(I) the District Court, the Supreme
Court or the Court of Appeal;
or
15 (II) another court, if the Director of
Public Prosecutions is the
prosecutor in that court of the
case against the accused;
or
20 (ii) in other cases, by the State Solicitor or
the registrar of the court before which
the accused failed to appear;
";
(b) by deleting paragraph (b).
25 (2) Section 49(2) is amended as follows:
(a) in paragraph (a) by deleting "regulations made under the
Criminal Procedure Act 2004;" and inserting instead --
" the regulations; ";
(b) in paragraph (b) by deleting "made under the Criminal
30 Procedure Act 2004".
page 39
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 31
(3) Section 67(2)(a) is amended as follows:
(a) by deleting the comma at the end of subparagraph (iv)
and inserting a semicolon instead;
(b) after subparagraph (iv) by inserting --
5 "
(v) for an order under section 49,
".
(4) Subject to subsection (5), the Bail Act 1982 section 49 as
amended by this section applies in relation to a failure by an
10 accused to comply with any requirement of the accused's bail
undertaking irrespective of when the failure occurred.
(5) Any proceedings under the Bail Act 1982 section 49 in progress
immediately before the commencement of this section may be
continued after that commencement as if this section had not
15 come into operation.
31. Section 51A inserted and transitional provisions
(1) After section 51 the following section is inserted --
"
51A. Proceedings before courts of summary jurisdiction
20 for an offence under section 51
(1) This section applies for the purpose of prosecuting an
offence against section 51(1), (2) or (2a) where the
court before which the accused is bound to appear at
the time when the accused fails to comply with the
25 accused's bail undertaking is a court of summary
jurisdiction.
(2) Where this section applies, the prosecution shall be
commenced and conducted by the person who was
conducting the proceedings in which the accused failed
30 to comply with the accused's bail undertaking or by a
police officer.
page 40
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 32
(3) Where this section applies, the registrar of the court
before which the accused was bound to appear shall
cause to be issued to the Commissioner of Police a
certificate under section 64 as to the accused's failure
5 to appear.
".
(2) Subject to subsection (3), the Bail Act 1982 section 51A as
inserted by this section applies for the purpose of prosecuting an
offence described in subsection (1) of that section irrespective
10 of when the offence occurred.
(3) Any prosecution for an offence referred to in subsection (2) in
progress immediately before the commencement of this section
may be continued after that commencement as if this section
had not come into operation.
15 32. Section 52 amended and transitional provisions
(1) Section 52(3) is amended by inserting after "undertaking" --
" or by a police officer ".
(2) After section 52(3) the following subsections are inserted --
"
20 (3a) Where this section applies, a person authorised under
subsection (3b) shall cause to be issued to the
Commissioner of Police a certificate under section 64
as to the accused's failure to appear.
(3b) The Chief Justice, in respect of cases where the court
25 before which the accused was bound to appear is the
Supreme Court, and the Chief Judge, in respect of
cases where the court before which the accused was
bound to appear is the District Court, may authorise a
person or persons, by name or office, to perform the
30 function referred to in subsection (3a).
page 41
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 33
(3c) A prosecution that has been commenced under
subsection (3) by a police officer shall be conducted by
the Director of Public Prosecutions.
".
5 (3) Subject to subsection (4), the Bail Act 1982 section 52 as
amended by this section applies for the purpose of prosecuting
an offence described in subsection (1) of that section
irrespective of when the offence occurred.
(4) Any prosecution for an offence referred to in subsection (3) in
10 progress immediately before the commencement of this section
may be continued after that commencement as if this section
had not come into operation.
33. Section 54 amended, related amendment to section 46 and
transitional provision
15 (1) Before section 54(1) the following subsection is inserted --
"
(1a) In this section --
"relevant officer" means --
(a) if the court before which the accused is
20 required to appear is the District Court, the
Supreme Court or the Court of Appeal -- the
prosecutor; or
(b) in any other case -- the prosecutor or a
police officer.
25 ".
(2) Section 54(1) is amended by deleting the passage beginning "A
police officer" and ending "the police officer -- " and inserting
instead --
"
30 Where an accused has been released on bail the
relevant officer may cause the accused to appear before
an appropriate judicial officer to show cause why the
page 42
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 33
accused's bail should not be varied or revoked if the
relevant officer --
".
(3) Section 54(2) is repealed and the following subsections are
5 inserted instead --
"
(2) For the purposes of causing an accused to appear
before an appropriate judicial officer as provided in
subsection (1) --
10 (a) a police officer may arrest the accused without
warrant and bring the accused before an
appropriate judicial officer; or
(b) the relevant officer may apply to an appropriate
judicial officer for a summons or warrant on
15 any ground specified in subsection (1).
(2a) A police officer shall not exercise the power conferred
by subsection (2)(a) unless the police officer is the
relevant officer or is requested in writing to do so by
the relevant officer.
20 ".
(4) After section 54(4) the following subsection is inserted --
"
(5) If --
(a) the court before which the accused is required
25 to appear is the District Court, the Supreme
Court or the Court of Appeal; and
(b) a police officer is satisfied that because of the
urgency of the case it is not practicable for the
prosecutor to exercise the power conferred by
30 subsection (1),
the police officer may exercise that power.
page 43
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 34
(6) If a police officer, acting under subsection (5),
exercises the power conferred by subsection (1), the
police officer is to be regarded as the relevant officer
for the purposes of this section.
5 ".
(5) Section 46(1)(b) is amended by deleting "a police" and inserting
instead --
" the relevant ".
(6) Despite the amendments made by subsections (1) to (4), the Bail
10 Act 1982 section 54 as in force immediately before the
commencement of this section continues to apply in relation
to --
(a) an accused arrested under subsection (2)(a) of that
section; and
15 (b) an application made under subsection (2)(b) of that
section,
before that commencement.
34. Section 54A inserted
After section 54 the following section is inserted --
20 "
54A. Accused on committal may be taken before court by
which committed
(1) This section applies to an accused --
(a) who has been released on bail following the
25 accused's committal to the District Court or the
Supreme Court to be tried (otherwise than for
wilful murder or murder) or sentenced or
otherwise dealt with; and
(b) who has not made an appearance in that court
30 on the committal; and
page 44
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 35
(c) who, in the opinion of the relevant officer under
section 54, should be made to show cause in
terms of subsection (1) of that section.
(2) The relevant officer may, under section 54, cause an
5 accused to whom this section applies to appear before a
judicial officer who is empowered to exercise
jurisdiction in the court in which the committal order
was made, instead of before an appropriate judicial
officer.
10 (3) A judicial officer before whom an accused so appears
is to be regarded as an appropriate judicial officer for
the purposes of section 54(2).
(4) A judicial officer before whom an accused so appears
is not obliged to exercise any power conferred by
15 section 55 but may refuse to do so and direct the
relevant officer to cause the accused to appear before
an appropriate judicial officer.
(5) A relevant officer shall comply with a direction given
to that officer under subsection (4).
20 ".
35. Section 56 repealed
Section 56 is repealed.
36. Sections 59A and 59B inserted and related amendments to
sections 16 and 58
25 (1) After section 59 the following sections are inserted --
"
59A. Where bail dispensed with, accused may be taken
before judicial officer for reconsideration of matter
(1) In this section --
30 "relevant officer" has the meaning given in
section 54(1a).
page 45
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 36
(2) Where the requirement for bail has been dispensed
with for an accused under section 7A, the relevant
officer may cause the accused to appear before an
appropriate judicial officer for reconsideration of the
5 matter, if the relevant officer has reasonable grounds to
believe that the accused is not likely to appear at the
time and place specified in a notice under
section 13A(3).
(3) Section 54(2), (2a), (3) and (4) apply, with necessary
10 modifications, for the purposes of subsection (2).
(4) The judicial officer before whom an accused appears
under subsection (2) shall reconsider the accused's case
and may, notwithstanding section 13 --
(a) again dispense with the requirement for bail; or
15 (b) grant bail; or
(c) refuse to grant bail,
in accordance with this Act, for the accused's
appearance in court.
(5) If --
20 (a) the court before which the accused is required
to appear is the District Court, the Supreme
Court or the Court of Appeal; and
(b) a police officer is satisfied that because of the
urgency of the case it is not practicable for the
25 prosecutor to exercise the power conferred by
subsection (2),
the police officer may exercise that power.
(6) If a police officer, acting under subsection (5),
exercises the power conferred by subsection (2), the
30 police officer is to be regarded as the relevant officer
for the purposes of this section.
page 46
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 37
59B. Warrant for arrest of absconding accused
Where --
(a) at any time after that specified in an accused's
bail undertaking for an accused's appearance
5 the accused has failed to comply with the
requirements of the accused's bail undertaking
mentioned in section 28(2)(a) or (b); or
(b) an accused has failed to appear at the time
and place specified in a notice under
10 section 13A(3),
the court before which the accused was required to
appear may issue a warrant to arrest the accused and
bring the accused before that court or a court of like
jurisdiction.
15 ".
(2) Sections 16(2)(a) and 58(1)(a) are amended by deleting "56"
and inserting instead --
" 59B ".
37. Section 60 amended
20 Section 60 is amended as follows:
(a) after "Where" by inserting --
" the residential address of ";
(b) in paragraph (a) by inserting after "bail" --
"
25 or for whom the requirement for bail has been
dispensed with
";
(c) by deleting "his place of residence, employment or
business";
page 47
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 38
(d) by deleting "or surety undertaking" and inserting
instead --
"
, surety undertaking or notice under section 13A(3), as
5 the case may be,
".
38. Section 61 amended
Section 61(2)(a) is amended by deleting "or by reason of
section 16".
10 39. Section 66A amended
Section 66A(1) is amended by inserting before paragraph (b) --
"
(aa) a function conferred by section 11(3) or
36(1)(a); or
15 ".
40. Section 66B inserted and transitional provision
(1) After section 66A the following section is inserted --
"
66B. Use of video link or audio link
20 (1) In this section --
"audio link" means facilities (including telephone)
that enable, at the same time, a judicial officer or
authorised officer at one place to hear the accused
at another place and vice versa;
25 "bail proceedings" means any proceedings under this
Act including --
(a) proceedings on a case for bail;
(b) proceedings relating to the variation or
revocation of bail;
page 48
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 40
(c) proceedings on an application under
section 48 or 49;
(d) proceedings on an appeal under section 15A
or 53;
5 "video link" means facilities (including closed circuit
television) that enable, at the same time, a judicial
officer or authorised officer at one place to see and
hear the accused at another place and vice versa.
(2) Bail proceedings may be conducted by means of a
10 video link or an audio link.
(3) Without limiting subsection (2), if a provision of this
Act requires or authorises an accused to be brought
before, or appear before, a court, judicial officer or
authorised officer, the accused may be brought before,
15 or appear before, the court or officer by means of a
video link or an audio link.
(4) An audio link is not to be used under this section unless
a video link is not available and cannot reasonably be
made available.
20 (5) Nothing in this section prevents a court, judicial officer
or authorised officer from requiring that an accused be
brought before, or appear before, the court or officer in
person for the purposes of bail proceedings.
".
25 (2) The Bail Act 1982 section 66B as inserted by subsection (1)
applies in relation to any bail proceedings, as defined in
section 66B, conducted after the commencement of this section
irrespective of when those proceedings were initiated.
page 49
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 41
41. Schedule 1 amended and transitional provisions
(1) Schedule 1 is amended before the heading to Part A by deleting
"Schedule 1" and "[Sections 13 and 17]" and inserting
instead --
5 "
Schedule 1 -- Jurisdiction as to bail and
related matters
[s. 13, 17]
".
10 (2) Schedule 1 Part A is amended as follows:
(a) by deleting the heading to that Part and inserting
instead --
"
Part A -- Jurisdiction relating to bail
15 ";
(b) in the heading to the First Column by deleting "referred
to in section 13";
(c) in the heading to the Second Column by inserting after
"granted" --
20 " or (where applicable) dispensed with ".
(3) Schedule 1 Part B is amended as follows:
(a) by deleting the heading to that Part and inserting
instead --
"
25 Part B -- Cessation of powers relating to bail
";
page 50
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 41
(b) by deleting clause 1 and inserting the following clauses
instead --
"
1. Upon decision by Judge, power of other officers ceases
5 (1) In this clause --
"Judge" means a Judge of the Supreme Court, the
Children's Court or the District Court.
(2) After a Judge has granted or refused bail for an appearance
by an accused the power to grant bail for that appearance
10 ceases to be vested in --
(a) any judicial officer whose jurisdiction is inferior to
that of the Judge; or
(b) any authorised officer.
(3) After a Judge has dispensed with the requirement for bail for
15 an appearance by an accused the power to grant or refuse
bail for that appearance ceases to be vested in any officer
referred to in subclause (2)(a) or (b).
1A. Upon decision by Court of Appeal, other powers cease
After the Court of Appeal on an appeal under
20 section 15A --
(a) has granted or refused bail for an appearance by an
accused, the power to grant or refuse bail for that
appearance; or
(b) has dispensed with the requirement for bail for an
25 appearance by an accused, the power to grant or
refuse bail for that appearance,
ceases to be vested in any judicial officer or in any
authorised officer.
";
30 (c) in clause 2 by inserting after "to grant" --
" , refuse or dispense with ";
page 51
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 41
(d) in clause 2 by deleting "or refused" and inserting
instead --
" , refused or dispensed with ";
(e) by deleting clause 3 and inserting instead --
5 "
3. Cessation of power upon refusal of bail for initial
appearance
(1) After an authorised officer has refused bail for an initial
appearance by an accused, the power to grant bail for that
10 appearance ceases to be vested in another authorised officer,
but a justice may nevertheless grant bail for that appearance.
(2) After a justice has refused bail for an initial appearance by
an accused, the power to grant bail for that appearance
ceases to be vested in an authorised officer or another
15 justice.
".
(4) Schedule 1 Part C is amended as follows:
(a) before clause 1 by deleting "Principles governing grant
or refusal of bail";
20 (b) in clause 1 by deleting "clause 3A" and inserting
instead --
" clauses 3A and 3C ";
(c) in clause 2(3)(a) by deleting "clause 3A" and inserting
instead --
25 " clauses 3A and 3C ";
(d) in clause 3A(1) --
(i) by deleting "or 2" and inserting instead --
" , 2 or 4 ";
page 52
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 41
(ii) by deleting paragraph (a) and "and" after it and
inserting instead --
"
(a) an accused is in custody --
5 (i) awaiting an appearance in court before
conviction for a serious offence; or
(ii) waiting to be sentenced or otherwise dealt
with for a serious offence of which the
accused has been convicted;
10 and
";
(e) by inserting after clause 3B --
"
3C. Bail in murder cases
15 Notwithstanding clause 1, 2 or 4 or any other provision of
this Act, where an accused is in custody --
(a) awaiting an appearance in court before conviction
for an offence of wilful murder or murder; or
(b) waiting to be sentenced or otherwise dealt with for
20 an offence of wilful murder or murder of which the
accused has been convicted,
the judicial officer in whom jurisdiction is vested shall
refuse to grant bail for the offence unless the judicial officer
is satisfied that --
25 (c) there are exceptional reasons why the accused
should not be kept in custody; and
(d) bail may properly be granted having regard to the
provisions of clauses 1 and 3 or, in the case of a
child, clauses 2 and 3.
30 ";
page 53
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 41
(f) by deleting clause 4 and inserting instead --
"
4. Bail after conviction: accused awaiting sentence
(1) Subject to clauses 3A and 3C, the grant or refusal of bail to
5 an accused, other than a child, who is in custody waiting to
be sentenced or otherwise dealt with for an offence of which
the accused has been convicted shall be at the discretion of
the judicial officer in whom jurisdiction is vested, and that
discretion shall be exercised having regard to the questions
10 set out in clause 1 as well as to any others which the judicial
officer considers relevant.
(2) A child accused who is in custody waiting to be sentenced
or otherwise dealt with for an offence of which the child
accused has been convicted has the same right to be granted
15 bail as a child accused referred to in clause 2(2), and the
provisions of clause 2 apply accordingly.
4A. Bail after conviction: accused awaiting disposal of
appeal
In deciding whether or not to grant bail to an accused who is
20 in custody waiting for the disposal of appeal proceedings,
the judicial officer shall consider whether there are
exceptional reasons why the accused should not be kept in
custody, and shall only grant bail to the accused if satisfied
that --
25 (a) exceptional reasons exist; and
(b) it is proper to do so having regard to the provisions
of clauses 1 and 3 or, in the case of a child,
clauses 2 and 3.
";
30 (g) in clause 5 by deleting "4" and inserting instead --
" 4A ";
(h) before clause 7 by deleting "Limitation on period of
bail";
page 54
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 42
(i) in clause 7 by deleting "7" and inserting instead --
" 30 ".
(5) The Bail Act 1982 Schedule 1 Part B clause 1A as inserted by
subsection (3)(b) applies in respect of --
5 (a) a grant or refusal of bail; or
(b) a dispensation from the requirement for bail,
coming within that clause that occurs after the commencement
of subsection (3)(b).
(6) The Bail Act 1982 Schedule 1 Part B clause 3 as inserted by
10 subsection (3)(e) applies in relation to a refusal of bail for an
initial appearance that occurs after the commencement of
subsection (3)(e).
(7) The Bail Act 1982 Schedule 1 Part C clause 3C as inserted by
subsection (4)(e) applies to any consideration of a case for bail
15 that occurs after the commencement of subsection (4)(e).
(8) The Bail Act 1982 Schedule 1 Part C clauses 4 and 4A as
inserted by subsection (4)(f) apply to any consideration of a
case for bail that occurs after the commencement of
subsection (4)(f).
20 (9) The Bail Act 1982 Schedule 1 Part C clause 7 as amended by
subsection (4)(i) applies to any grant of bail that occurs after the
commencement of subsection (4)(i).
Note: The heading to Schedule 1 Part C clause 7 is to be altered by deleting
"7" and inserting instead "30".
25 42. Schedule 2 amended and transitional provision
(1) Schedule 2 is amended by deleting "Schedule 2",
"[Section 3(1)]" and "Serious offences" and inserting instead --
"
Schedule 2 -- Serious offences
30 [s. 3(1)]
".
page 55
Bail Amendment Bill 2007
Part 2 Bail Act 1982 amended
s. 43
(2) Schedule 2 item 1 is amended by inserting after the entry
relating to The Criminal Code section 280 --
"
s. 283 Attempt to murder
".
5 (3) A reference in --
(a) the Bail Act 1982 section 16A; or
(b) the Bail Act 1982 Schedule 1 Part C clause 3A or 3B,
to a serious offence includes a reference to an offence against
The Criminal Code section 283 committed, or alleged to have
10 been committed, before the commencement of this section.
43. Amendment of various references to prescribed forms
(1) Sections 8(1)(b) and 26(4)(b) are each amended by deleting "a
prescribed" and inserting instead --
" an approved ".
15 (2) Sections 23 and 24(1)(a) are each amended by deleting
"prescribed".
(3) Section 30(2)(b) is amended by deleting "prescribed" and
inserting instead --
" approved ".
20 (4) Schedule 1 Part C clause 2(3)(c) is amended by deleting
"prescribed" and inserting instead --
" approved ".
Note: The heading to section 8 is to be altered by deleting "prescribed" and
inserting instead "approved".
25 44. Transitional regulations
(1) If this Part does not provide sufficiently for a matter or issue of
a transitional nature that arises as a result of the amendments
made to the Bail Act 1982 by this Part, the Governor may make
page 56
Bail Amendment Bill 2007
Bail Act 1982 amended Part 2
s. 44
regulations (the "transitional regulations") prescribing all
matters that are required, necessary or convenient to be
prescribed for providing for the matter or issue.
(2) The transitional regulations may provide that specified
5 provisions of the Bail Act 1982 or this Part --
(a) do not apply; or
(b) apply with specified modifications,
to or in relation to any matter.
(3) If the transitional regulations provide that a specified state of
10 affairs is to be taken to have existed, or not to have existed, on
and from a day that is earlier than the day on which the
transitional regulations are published in the Gazette but not
earlier than the commencement of this section, the transitional
regulations have effect according to their terms.
15 (4) In subsections (2) and (3) --
"specified" means specified or described in the transitional
regulations.
(5) If the transitional regulations contain a provision referred to in
subsection (3), the provision does not operate so as --
20 (a) to affect in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the day of publication of
those regulations; or
(b) to impose liabilities on any person (other than the State
25 or an authority of the State) in respect of anything done
or omitted to be done before the day of publication of
those regulations.
page 57
Bail Amendment Bill 2007
Part 3 Consequential amendments to other Acts
s. 45
Part 3 -- Consequential amendments to other Acts
45. Criminal Procedure Act 2004 amended
(1) The amendments in this section are to the Criminal Procedure
Act 2004*.
5 [* Act No. 71 of 2004.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1.]
(2) Schedule 4 clause 3(3) is amended by inserting after "31" --
" , 31A ".
10 (3) Schedule 4 clause 4(3) is amended by inserting after
"sections" --
" 51A, ".
46. Supreme Court Act 1935 amended
(1) The amendments in this section are to the Supreme Court
15 Act 1935*.
[* Reprint 7 as at 19 August 2005.
For subsequent amendments see Western Australian
Legislation Information Tables for 2006, Table 1, and
Act No. 77 of 2006.]
20 (2) Section 58(1)(b) is amended by inserting before "appeals" --
" subject to subsection (1a) ".
(3) After section 58(1) the following subsection is inserted --
"
(1a) An appeal does not lie to the Court of Appeal under
25 subsection (1)(b) against a bail decision as defined in
the Bail Act 1982 section 15A(1).
".
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