Aboriginal Legal Service of Western Australia Limited

Review of the Bail Act 1982 (WA)

ALSWA prepared this submission in response to a review of the Bail Act 1982 (WA) being undertaken by the WA Department of the Attorney General. The review was prompted by Coronial comments arising from the Inquest into the death of Mr Ward.

In its submission, ALSWA provided responses to the 42 questions posed by the Department in relation to bail. ALSWA emphasised the primary purpose of bail, to ensure that an accused person attends court when required and does not offend or interfere with witnesses or the trial process. ALSWA submitted that the Bail Act should reflect an entitlement to bail as a starting point and a presumption in favour of bail. ALSWA recommended that bail should be dispensed with for matters that are unlikely to attract a sentence of imprisonment.

ALSWA supported a system whereby police and Justices of the Peace possess only the power to grant bail and in all instances where they are disinclined to grant bail, the matter be referred to a Magistrate or judicial officer. ALSWA also supported prompt judicial paper reviews of bail granted by police to ensure that onerous conditions were not unnecessarily imposed.

ALSWA supported judicial discretion in determining bail and opposed any amendments that would limit this discretion, including the introduction of an actuarial model to determine bail, the accuracy and equity of which would be questionable. In an effort to increase judicial discretion, ALSWA also recommended that children and young people be excluded from the presumption against bail attached to Schedule 2 offences.

ALSWA submitted that the considerations relevant to bail should be expanded to include the interests of the accused person such as their capacity to prepare for their trial. ALSWA further recommended that all accused persons should have access to legal representation for bail hearings and to interpreters where required to ensure equitable access to justice.

Bail Act Review – Nov 10 – WA.pdf (1.75Mb)

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