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This Act may be cited as the Bail Act 1982.
This Act shall come into operation on a day to be fixed by proclamation.
In this Act, unless a contrary intention appears —
accused includes —
a person charged with, convicted of, or found guilty of an offence;
a person whose conviction for an offence is stayed;
a person in respect of whom an appeal relating to an offence is pending;
a person in respect of whom a new trial for an offence has been ordered;
adjournment —
means any order of a court by which proceedings for an offence are postponed or interrupted or are to be held at a different time or place before the same court; and
is deemed to include any order of a court, other than a committal to the Supreme Court or District Court, by which the venue of any proceedings for an offence is changed to another court or a court at another place whether by way of a remand, referral, or recommittal of the accused or otherwise;
appeal includes an application for leave to appeal;
appropriate judicial officer means —
subject to paragraphs (b), (c) and (d), a 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
if the court is the Court of Appeal, a judge of appeal; or
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 —
under section 15 only a judge of the Supreme Court or of the Children’s Court has power to grant bail; or
a judicial officer has exercised the power contained in section 31(2)(d),
for the appearance in question; or
except in section 49, a judge of the Supreme Court, of the District Court, or of the 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;
approved, in relation to a form, means approved by the chief executive officer of the department of the Public Service principally assisting in the administration of this Act;
approved electronic monitoring device means —
an electronic monitoring device that has been approved by the CEO (corrections); and
any equipment, wires or other items associated with a device under paragraph (a);
as soon as is practicable means as soon as is reasonably practicable;
authorised community services officer means any of the following persons —
the CEO (corrections) or a delegate of the CEO (corrections) under subsection (5);
a registrar of the Children’s Court;
a superintendent of a detention centre under the Young Offenders Act 1994;
the officer for the time being in charge of any detention centre under the Young Offenders Act 1994;
authorised officer means an authorised police officer or an authorised community services officer;
authorised police officer means —
a police officer who holds the rank of sergeant, or a higher rank;
the police officer who is for the time being in charge of a police station;
whichever of these officers is for the time being in charge of a lock‑up —
a police officer;
a special constable appointed under the Police Act 1892 Part III whose powers, duties and obligations are or include those of an authorised police officer under this Act;
a police auxiliary officer appointed under the Police Act 1892 Part IIIB whose powers, duties and obligations are or include those of an authorised police officer under this Act;
bail undertaking means an undertaking described in section 28(2);
CEO (corrections) means the chief executive officer of the Public Sector agency principally assisting the Minister administering Part 8 of the Sentence Administration Act 2003 in its administration;
Chief Judge means the Chief Judge of the District Court;
Chief Justice means the Chief Justice of Western Australia;
child has the same meaning as young person has in the Young Offenders Act 1994;
Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 (Commonwealth);
community corrections officer has the same meaning as in the Sentence Administration Act 2003;
confirmed control order has the meaning given in the Commonwealth Criminal Code section 100.1(1);
court means each of the following —
the Magistrates Court;
the Children’s Court;
the Coroner’s Court of Western Australia;
the District Court;
the Supreme Court;
the Court of Appeal;
court custody centre has the meaning given in the Court Security and Custodial Services Act 1999 section 3;
designated family relationship means a relationship between 2 persons —
who are, or were, married to each other; or
who are, or were, in a de facto relationship with each other; or
who have, or had, an intimate personal relationship with each other; or
one of whom is a child who —
ordinarily resides, or resided, with the other person; or
regularly resides or stays, or resided or stayed, with the other person;
or
one of whom is, or was, a child of whom the other person is a guardian;
Director of Public Prosecutions means —
the Director of Public Prosecutions for the State; or
the officer in charge in the State of the Commonwealth Office of the Director of Public Prosecutions,
as the case requires;
early release order means an early release order made under the Sentence Administration Act 1995 1 or Sentence Administration Act 2003;
electronic monitoring condition means an electronic monitoring condition imposed under Schedule 1 Part E clause 1;
family relationship has the meaning given in the Restraining Orders Act 1997 section 4(1);
home detention condition means a home detention condition imposed under clause 3 of Part D of Schedule 1;
interim control order has the meaning given in the Commonwealth Criminal Code section 100.1(1);
judge of appeal has the meaning given in the Supreme Court Act 1935 section 4(1);
judicial officer means any person empowered to exercise jurisdiction in a court whether or not he is sitting as a court, and includes a single justice and, where the context so requires, the Court of Appeal exercising jurisdiction under this Act;
lock‑up includes a place prescribed as a lock‑up for the purposes of the Court Security and Custodial Services Act 1999;
offence means any act, omission or conduct which renders the person doing the act, making the omission or engaging in the conduct liable to any punishment, and includes an alleged offence; but nothing in this definition shall limit the operation of subsection (4);
person linked to terrorism means a person who —
is charged with, or has been convicted of, a terrorism offence; or
is the subject of an interim control order or confirmed control order, or has been the subject of a confirmed control order within the last 10 years;
prosecutor includes —
in the case of an offence charged in a prosecution notice, the prosecutor;
in the case of an offence charged in an indictment, the State or the Commonwealth, as the case may be;
registrar of a court means —
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
for the Coroner’s Court of Western Australia, a coroner’s registrar as defined in the Coroners Act 1996 section 3;
serial family violence offender means a person declared to be a serial family violence offender under the Sentencing Act 1995 section 124E;
serious offence means —
an offence against section 50M(1) or (2), 50V(1) or (2) or 51(2a); and
an offence described in Schedule 2;
sexual offence means —
an offence described in Schedule 2 that is of a sexual nature; or
an offence under a written law that has been repealed, if the acts or omissions alleged against the accused that constitute the offence under the repealed written law would constitute an offence referred to in paragraph (a); or
an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b); or
an offence of becoming an accessory after the fact (as defined in The Criminal Code section 10) to an offence referred to in paragraph (a) or (b);
surety and surety undertaking have the meanings assigned to them by section 35;
surety approval officer means a person who is authorised by section 36 to decide whether an applicant should be approved as a surety;
terrorism offence means —
an offence against the Commonwealth Criminal Code Division 72 Subdivision A; or
an offence against the Commonwealth Criminal Code Division 80 Subdivision B; or
an offence against the Commonwealth Criminal Code Part 5.3, except an offence against section 104.22, 104.27, 104.27A, 105.41 or 105.45; or
an offence against the Commonwealth Criminal Code Part 5.5; or
an offence against either of the following provisions of the Charter of the United Nations Act 1945 (Commonwealth) —
Part 4; or
Part 5, to the extent that it relates to the Charter of the United Nations (Sanctions — Al‑Qaida) Regulations 2008 (Commonwealth);
or
an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Commonwealth) (repealed); or
an offence against the Crimes (Internationally Protected Persons) Act 1976 (Commonwealth) section 8; or
an offence under a written law or a law of the Commonwealth, another State, a Territory or another country, that substantially corresponds to an offence in paragraphs (a) to (e) and (g); or
an offence of attempting, inciting or conspiring to commit an offence referred to in paragraphs (a) to (h);
terrorist act has the meaning given in the Terrorism (Commonwealth Powers) Act 2002 section 3;
terrorist intelligence information means information relating to an actual or suspected terrorist act (whether in this State or elsewhere) the disclosure of which could reasonably be expected —
to prejudice national security; or
to endanger a person’s life or physical safety; or
to threaten significant damage to infrastructure or property; or
to prejudice a criminal investigation; or
to reveal intelligence‑gathering methodologies, investigative techniques or technologies or covert practices; or
to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement;
trial means all proceedings for an offence between —
the time when the accused is called upon to plead to the prosecution notice or the indictment; and
the time when the accused is found not guilty or is sentenced.
For the purposes of the definition of designated family relationship in subsection (1), an intimate personal relationship exists between 2 persons (including persons of the same sex) if —
the persons are engaged to be married to each other, including a betrothal under cultural or religious tradition; or
the persons date each other, or have a romantic involvement with each other, whether or not a sexual relationship is involved.
In deciding whether an intimate personal relationship exists under subsection (1A)(b), the following may be taken into account —
the circumstances of the relationship, including, for example, the level of trust and commitment;
the length of time the relationship has existed;
the frequency of contact between the persons;
the level of intimacy between the persons.
A reference in this Act —
to a power to grant bail includes a reference to a power to refuse bail;
to a grant of bail includes a reference to a grant of bail by the exercise of a power in section 31(2).
Where in this Act there is a reference to a requirement that an accused appear in court, the reference is to a requirement, unless a contrary intention appears, that the accused —
surrender himself into the custody of the court or, in the case of a bail undertaking, of the court specified therein, or of such person as the court may direct, to be dealt with according to law; and
submit himself to a search of his person and any property then in his possession (which is hereby authorised) and allow to be taken from him, to be dealt with according to the relevant law and procedures, anything so found; and
remain in custody until authorised to be released therefrom.
If a person is arrested under a warrant issued —
under section 50, 79, 84E or 129 of the Sentencing Act 1995 in connection with a possible breach of a conditional release order, a sentence of suspended imprisonment or conditional suspended imprisonment, or a community order imposed under that Act; or
under section 43 of the Young Offenders Act 1994 in respect of an alleged breach of a youth community based order, an intensive youth supervision order or a conditional release order made under that Act,
then —
the person is to be taken as having been arrested and to be in custody awaiting an appearance in court for the offence for which the sentence was imposed; and
the first appearance in court after the arrest is to be taken, for the purposes of sections 5(1) and 8(1) and clause 1 of Part A and clause 7 of Part C of Schedule 1, to be the initial appearance for that offence; and
the proceedings following the arrest are to be taken to be proceedings for that offence and to be a trial for the purpose of the definition in subsection (1) of trial.
The CEO (corrections) may by writing signed by him delegate to any officer of the department of which he is the chief executive officer any function he has under this Act as an authorised community services officer.
[Section 3 amended: No. 74 of 1984 s. 3; No. 15 of 1988 s. 4; No. 49 of 1988 s. 78; No. 61 of 1990 s. 4; No. 31 of 1993 s. 6; No. 45 of 1993 s. 4 and 12; No. 78 of 1995 s. 7; No. 57 of 1997 s. 21(1); No. 54 of 1998 s. 4 and 14; No. 47 of 1999 s. 7; No. 50 of 2003 s. 29(3); No. 65 of 2003 s. 121(2); No. 27 of 2004 s. 13(2); No. 34 of 2004 Sch. 2 cl. 3(2); No. 45 of 2004 s. 28(4); No. 59 of 2004 s. 141; No. 84 of 2004 s. 11, 82 and 83(2); No. 65 of 2006 s. 51 and 53; No. 6 of 2008 s. 4 and 24(2); No. 46 of 2011 s. 25; No. 20 of 2013 s. 22; No. 15 of 2019 s. 4; No. 13 of 2020 s. 22; No. 30 of 2020 s. 39; No. 29 of 2022 s. 4; No. 28 of 2024 s. 4.]
[Section 3. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M; amended: No. 42 of 2009 s. 12.]
[3A. Deleted: No. 20 of 2013 s. 23.]
The operation of this Act extends to any appearance in a court for an offence —
except to the extent that in this Act, or in the law creating the offence or applicable thereto, express provision is made excluding or limiting the operation of this Act in respect of that appearance; and
whether or not that law contains a reference to the granting of bail; and
however any reference in that law to the granting of bail may be expressed; and
as if any reference therein to the taking of a recognizance were to a requirement that, except where bail is dispensed with under this Act, the accused enter into a bail undertaking.
[Section 4 amended: No. 84 of 2004 s. 82.]
[4AA. 1M Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section inserted 1 Nov 2009. See endnote 1M.]
The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act.
[Section 4AB inserted: No. 20 of 2013 s. 24.]
Where —
an accused has appeared in court for an offence pursuant to a summons or court hearing notice issued under the Criminal Procedure Act 2004; and
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 judicial officer so orders.
If an order is made under subsection (1), the duty described in section 7(1) applies.
On any appearance in court by the accused a judicial officer to whom section 7(1) applies may revoke an order made under subsection (1).
[Section 4A inserted: No. 6 of 2008 s. 6(1).]
An accused who is in custody for an offence awaiting his initial appearance in court therefor is entitled —
subject to sections 9, 10, 12 and 16(2), to have his case for bail for that appearance considered under and in accordance with this Act as soon as is practicable;
if his case is not so considered, or if he is refused bail or is not released on bail, to be brought before a court as soon as is practicable.
An accused who is in custody awaiting any appearance in court for an offence, other than an initial appearance, is entitled, subject to sections 7B, 7C, 7E, 9 and 10, to have his case for bail for that appearance considered under and in accordance with this Act.
[Section 5 amended: No. 74 of 1984 s. 4; No. 84 of 2004 s. 82; No. 6 of 2008 s. 7.]
This section applies to a police officer or other person (the arrester) who —
charges a person who is under arrest (the accused) with an offence; and
does not release the accused unconditionally under section 142 of the Criminal Investigation Act 2006,
or who arrests a person under a warrant.
This section is subject to —
the exercise of the power conferred by section 9; and
sections 10, 12 and 16 and Schedule 1 Part C clauses 3A, 3D, 3F and 3G.
The duties in this section shall be performed whether or not an application for bail is made by or on behalf of the accused.
As soon as is practicable after the accused is charged, or arrested under a warrant, as the case may be, the arrester shall either —
bring the accused or cause the accused to be brought before a court; or
perform the other duties of the arrester under this section.
If the arrester has power to grant the accused bail, the arrester shall consider the accused’s case for bail.
If the arrester does not have power to grant the accused bail, the arrester shall, unless subsection (8), (9), (10) or (11) applies, bring or cause the accused to be brought before an authorised police officer or a justice or, in the case of a child, any authorised officer or a justice, who shall consider the accused’s case for bail as soon as is practicable.
Even if the arrester has power to grant the accused bail, the arrester may, instead of complying with subsection (5), comply with subsection (6) as if the arrester did not.
If under section 15 only a judge of the Supreme Court or a judge of the Children’s Court has power to grant the accused bail, the arrester shall bring the accused or cause the accused to be brought before a judge of the Supreme Court or a judge of the Children’s Court, as the case requires, who shall consider the accused’s case for bail as soon as is practicable.
If under section 16 only a justice has power to grant the accused bail, the arrester shall bring the accused or cause the accused to be brought before a justice, who shall consider the accused’s case for bail as soon as is practicable.
If section 16A applies, the arrester shall bring the accused or cause the accused to be brought before a court or judge referred to in section 16A(1), who shall consider the accused’s case for bail as soon as is practicable.
If section 16B applies, the arrester must bring the accused or cause the accused to be brought before a court constituted by a judicial officer other than a justice, who must consider the accused’s case for bail as soon as is practicable.
[Section 6 inserted: No. 59 of 2006 s. 4(1); amended: No. 21 of 2017 s. 4; No. 15 of 2019 s. 5; No. 30 of 2020 s. 40; No. 28 of 2024 s. 5.]
In this section —
accused means an accused who is under arrest, other than pursuant to a warrant;
released means released from custody without being required to enter into, or without having entered into, a bail undertaking;
summary court means the Magistrates Court or the Children’s Court.
An authorised officer or justice who is considering an accused’s case for bail for an initial appearance in a summary court on a charge of an indictable offence that is not a serious offence may order that the accused be served with a summons under the Criminal Procedure Act 2004, and released, in respect of the charge unless satisfied —
that there are reasonable grounds to suspect the accused would not obey the summons if served with it; or
that not releasing the accused is justified under subsection (4) or for any other reason.
An authorised officer or justice who is considering an accused’s case for bail for an initial appearance in a summary court on a charge of a simple offence must order that the accused be served with a court hearing notice under the Criminal Procedure Act 2004, and released, in respect of the charge unless satisfied —
that the presence of the accused when the charge is dealt with is likely to be necessary for any reason or for sentencing purposes; or
that not releasing the accused is justified under subsection (4) or for any other reason.
Not releasing an accused is justified if there are reasonable grounds to suspect that if the accused were released —
the accused —
would commit an offence; or
would continue or repeat an offence with which he or she is charged; or
would endanger another person’s safety or property; or
would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to the accused or any other person;
or
the accused’s safety would be endangered.
This section does not affect the operation of section 28 or 30 of the Criminal Procedure Act 2004.
[Section 6A inserted: No. 59 of 2006 s. 5; amended: No. 29 of 2022 s. 5.]
Upon and following an accused’s initial appearance in court for an offence every judicial officer who may thereafter order his detention or continued detention in custody before conviction for the offence is under a duty, unless section 7B, 7C or 7E applies, to consider the accused’s case for bail, whether or not an application for bail is made by the accused or on his behalf.
[(2)‑(4) deleted]
The operation of this section is subject to the exercise of the powers conferred by sections 7A and 9 and to the provisions of sections 10, 12 and 16(2) and Schedule 1 Part C clauses 3A, 3D, 3E, 3F and 3G.
[Section 7 amended: No. 74 of 1984 s. 5; No. 49 of 1988 s. 80; No. 45 of 1993 s. 6; No. 84 of 2004 s. 82; No. 59 of 2006 s. 4(2); No. 6 of 2008 s. 8; No. 21 of 2017 s. 5; No. 15 of 2019 s. 6; No. 30 of 2020 s. 41; No. 28 of 2024 s. 6.]
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 an appearance in court for an offence by an accused if the judicial officer —
has jurisdiction to do so under section 13A(1); and
may properly do so under section 13A(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 —
section 59A; and
any requirement that the accused be in custody for some other offence or reason.
[Section 7A inserted: No. 6 of 2008 s. 9(1).]
In this section —
judge means a judge of the Supreme Court.
This section applies where —
an accused is in custody for an offence of murder so that under section 15 only a judge has power to grant bail; and
the accused is not a child.
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.
Upon an accused’s initial appearance in court for an offence of 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).
Where —
an accused’s case for bail has been considered by a judge on an application under subsection (3); and
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.
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 —
new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or
the accused failed to adequately present the accused’s case for bail on the previous occasion.
Where —
an accused’s case for bail has been considered by a judge on an application under subsection (3); and
bail has been granted,
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.
The accused is to be taken before a judge for the purposes of an application under this section only if the judge so orders.
[Section 7B inserted: No. 6 of 2008 s. 9(1); amended: No. 29 of 2008 s. 24(2) and (3).]