Proposed Law Reforms to the Operation of the Bail Act 1982 WA
A proposed law reform to be introduced into parliament this week is a reform to WA’s legislation relating to bail. The proposed reforms focus on laws relating to bail applications made on behalf of those accused of child sexual offences.
The proposed reforms are aimed at ensuring that concerns specific to the protection of child complainants of alleged sexual offences are at the forefront of the bail decision maker’s mind when an accused’s application for bail is being considered.
The reforms highlight a commitment by the Attorney General John Quigley to carefully consider the existing laws and identify ways to ensure an appropriate response to bail applications relating to alleged sexual offences against a child.
Mr Quigley said that the proposed reforms acknowledge the ”traumatic effect that the release on bail of alleged abusers can have on their victims and I believe it is critical that we emphasise the importance of, and seek to mitigate, this trauma wherever we can... This is especially the case when the alleged victim is a child”.
Bail applications and the court’s duty to consider the risk of offending while on bail
Anyone who has been charged with a criminal offence has the right to apply for bail, and, if granted bail, be released from custody while their matter progresses through the criminal justice system.
If the court grants bail the accused person is frequently subject to bail conditions. Examples of bail conditions include the requirement for a surety, curfew, non-contact conditions, reporting to police, surrendering a passport, and reside at a particular address.
Similar conditions apply to offenders who have served a term of imprisonment and are eligible to be released into the community on parole. Parole is governed by the Sentence Administration Act 2003. An important consideration for the parole board in exercising its discretion to release an offender on parole is whether there is a risk of reoffending.
The bail decision maker must consider the same issues in deciding whether to order a grant of bail. The fundamental question that the bail decision maker must consider is whether there are bail conditions that can be imposed on the accused that would serve to alleviate concerns relating to the risk of offending while on bail.
Offending while on bail or parole
In Western Australia notorious sexual offender Edward Latimer was the first person in the WA to be jailed indefinitely for sexual offences spanning over four decades. Mr Latimer spent a significant portion of his adult life in custody but was released in 2019, following a court ruling that he was fit to re-enter the community.
Less than 18 months later, Latimer was back in custody accused of indecent dealings with children and breaching a supervision order. This was just one case which has prompted a review of existing bail laws, specifically with regard to sex offenders and child sexual offenders.
The key reforms that are proposed
The key reforms that are proposed under the legislative amendment include:
- A provision allowing a court’s decision regarding bail to be deferred for up to 30 days to allow the court to consider the imposition of conditions which enhance the protection of complainants of an alleged offence.
- A requirement that the courts have regard to the conduct of the accused person towards the complainant, or a member of that complainant’s family after the alleged offence occurred, and at the time of any other offence of which the accused person has been previously convicted.
- A requirement for courts to consider additional matters that seek to address the potential effect of release on bail of an accused, particularly with regard to the safety or welfare of a child victim of an alleged sexual offence.
- A requirement for the court to take into account the fact that a judgment of conviction has been entered for an offence and the likely penalty to be imposed when determining bail for an accused when awaiting sentencing; and
- To include sexual offences against children in the list of serious offences under Schedule 2 to the Bail Act 1982 (WA)
Striking a balance: The presumption of innocence, delay to get to trial and the need to protect children in child sex offence cases
Anyone charged with an offence, but not yet faced a trial, is entitled to the presumption of innocence until they are proven guilty in a court of law. From this perspective, if someone has been wrongfully accused, the new bail laws may seem harsh, particularly given that it can take months and even years before a trial commences.
Notwithstanding these issues, the government is moving forward to reconsider the laws and amend them where necessary because of the widespread community expectations that everything should be done to protect children from sexual abuse, and to protect those who have been sexually abused, from further trauma.
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