Bail conditions and protection order conditions

10.38 Bail conditions may be imposed that provide for the protection of victims of crime and others. These conditions may be the same as, or similar to, conditions attached to an existing family violence protection order. For example, the Bail Act 1992 (ACT) provides that a person charged with a family violence offence and released on bail may not, among other things:

• contact, harass, threaten or intimidate or cause someone else to engage in such behaviour against a stated person;
• be on premises where a stated person lives or works;
• be within a specified distance of the stated person; and
• enter or remain at home if the person is under the influence of alcohol or other drug and lives at that home with another person.^[58]

10.39 The Bail Act 1978 (NSW) provides that an accused person may be required to enter into an agreement to observe specified requirements as to his or her conduct while at liberty on bail.^[59]

10.40 The conditions of bail may also be the same as those imposed by a protection order under family violence legislation.^[60] For example, the Bail Act 1994 (Tas) expressly provides that bail conditions may include any condition of a protection order or police-issued ‘family violence order’.^[61]

10.41 In practice, bail conditions can be imposed in parallel to conditions imposed by a protection order. Alternatively, a bail condition can be imposed that requires an accused to comply with the conditions of a protection order, with the consequence that a breach of the protection order also amounts to a breach of bail.

Submissions and consultations

10.42 In the Consultation Paper, the Commissions asked how often inconsistent bail requirements and protection order conditions were imposed on persons accused of family violence offences.^[62] It is unclear from submissions how often these inconsistencies arise. There was some evidence—mostly anecdotal—that inconsistencies occur often.^[63] Others stakeholders said the conditions were usually consistent.^[64] It was submitted the question was important, but might need further research.^[65] On balance, the submissions suggest that inconsistencies occur, but not all that commonly.

10.43 National Legal Aid, for example, suggested that inconsistencies do occur, but

usually where bail conditions have been imposed prior to the conditions of the protection order being determined at the first mention. If the prosecutor or legal practitioner does not raise the inconsistency or apply for a change in bail conditions, inconsistent conditions might continue.^[66]

10.44 One submission blamed inconsistencies on ‘poor record keeping or information systems not properly communicating with each other’.^[67]

10.45 The Local Court of NSW and the Magistrates’ Court and Children’s Court of Victoria identified particular circumstances in which inconsistencies were likely to occur. The Local Court of NSW said inconsistencies were more likely to occur where police, rather than the court, grant bail.^[68] The Court ‘frequently deals with matters that involve both a criminal prosecution and an application for a protection order, and in such instances will seek to ensure that the matters travel together and/or will enquire as to the status of one when dealing with the other’.^[69]

10.46 The Magistrates’ Court and Children’s Court of Victoria said inconsistencies happen ‘from time to time’, and are more likely to occur when criminal proceedings and protection order proceedings are heard separately. This was an ‘argument for integrated lists involving both family violence criminal offences and family violence protection orders’.^[70]

Commissions’ views

10.47 Bail conditions and protection order conditions should be consistent. Where they are inconsistent and victims and accused persons do not understand how they work and interact, then conditions can be inadvertently breached and ambiguities can be deliberately exploited. This can compromise the safety of victims. This may also have serious consequences for accused persons—breaching a protection order is a criminal offence; breaching a bail condition might bring the accused back before court, where the accused may be refused bail and incarcerated.

10.48 Bail conditions that require an accused to abide by the conditions contained in an existing protection order will often avoid inconsistencies. But this simple formula for consistency should not be adopted at the expense of protecting victims.

10.49 Inconsistencies could be avoided, in the Commissions’ view, if decision makers—including police and courts—had access to and used a national protection order database when imposing bail conditions.^[71] This database could be consulted whenever bail was granted by a court or by police.

10.50 Courts, police and prosecutors that specialise in family violence are also more likely to be alert to the importance of ensuring bail conditions are consistent with protection order conditions. Conditions are also more likely to be consistent if a specific criminal and civil family violence matter were dealt with by the one court. These are further arguments in favour of integrated court lists and specialisation, discussed in chapters 29 and 32.

10.51 Consistency is one question; adequacy is another. A protection order may have been imposed well before the criminal incident allegedly occurred, and the alleged crime may highlight a need for greater protection. A protection order may need to be amended, or the bail conditions might need to add further conditions. There may also be no protection order in place. The next section of this chapter considers these matters and how they might be best resolved.