Protection through bail conditions or a protection order

10.52 Bail conditions can provide for, among other things, the protection of an alleged victim of crime. However, such protective bail conditions might not serve the same purpose as a protection order, and might not protect a victim adequately. Arguably, therefore, upon granting bail, judicial officers should consider whether to also issue a protection order.

10.53 In NSW, when a person is charged with a family violence offence, the court must make an interim court order for the protection of the person against whom the offence appears to have been committed, unless the court is satisfied that it is not required, ‘for example, because an apprehended violence order has already been made’.^[72]

10.54 The Bail Act 1982 (WA) provides that, before imposing bail conditions for certain purposes (including for the purpose of ensuring the accused ‘does not endanger the safety, welfare or property of any person’), a judicial officer must consider whether ‘that purpose would be better served’ by the making of a protection order under family violence legislation.^[73]

10.55 The Law Reform Commission of Western Australia (WA) addressed the interaction between bail legislation and family violence legislation in its 2009 report on Court Intervention Programs, noting that:

It is common for both protective bail conditions and [protection] orders to be imposed in family violence matters. … In some ways protective bail conditions provide greater protection for victims; unlike [protection] orders bail conditions cannot be withdrawn by the victim. … However, [protection] orders have some advantages over protective bail conditions; for example it has been suggested that it is difficult to get the police to act on a breach of bail—they are more likely to act on a breach of a [protection] order.^[74]

10.56 The Law Reform Commission of WA expressed the view that magistrates should be able to impose either, or both, protective bail conditions and protection orders when an offender first comes before the court. It therefore recommended that the Bail Act 1982 (WA) should be amended to provide that, on imposing a requirement on the grant of bail for the purpose of ensuring that an offender does not commit an offence while on bail, or endanger the safety, welfare or property of any person, a judicial officer should consider whether that purpose might be served or assisted by a protection order, protective bail conditions or both.^[75]

Submissions and consultations

10.57 In the Consultation Paper, the Commissions proposed that judicial officers should be allowed, on a grant of bail, to consider whether the purpose of ensuring that the offender does not commit an offence while on bail or endanger the safety, welfare or property of any person might be better served or assisted by a protection order, protective bail conditions or both, as recommended by the Law Reform Commission of WA in relation to the Bail Act 1982 (WA).^[76]

10.58 The proposal was widely supported.^[77] It was submitted that this would avoid multiple court attendances, which can be very demanding for victims.^[78] Stubbs submitted that protection orders can sometimes better secure a victim’s safety than bail conditions:

Unlike the [breach of a] protection order, the breach of bail is not in itself a criminal offence and it may be more difficult to get police to respond to breaches of bail that do not constitute an offence. Victims do not always know about bail agreements and bail conditions whereas they should always have a copy of the protection order.^[79]

10.59 It was also argued that victims can be left feeling vulnerable when an accused is acquitted, particularly if the victim has testified against the accused, so the court should consider whether the victim needs ongoing protection.^[80]

In addition, an ‘own motion power’ to make an interim family violence protection order would assist in these circumstances. Where evidence is before the court, an interim order can be made or a final order if the alleged offender agrees.^[81]

10.60 The Local Court of NSW supported the position in NSW and submitted that it did not support the practice of imposing bail conditions in place of interim protection orders, when it would be appropriate to make an interim protection order.^[82]

Commissions’ views

10.61 The Commissions consider that where conduct constituting family violence gives rise to concurrent protection order and criminal proceedings, judicial officers should be able to impose either or both protective bail conditions and protection orders. The Commissions endorse the recommendation made by the Law Reform Commission of WA to amend the Bail Act 1982 (WA) to allow a judicial officer on grant of bail to consider whether specific purposes of bail might be served or assisted by a protection order, protective bail conditions, or both. However the Commissions would go further, and suggest that judicial officers must consider both options.^[83]

10.62 Issuing or varying a protection order when granting bail serves a number of important functions. It might save the victim the trouble, expense and stress of having to return to court to apply for a protection order or to have an order varied. The victim may be given a copy of the protection order and told what it means and how it interacts with the bail conditions. And when considered together, bail and protection order conditions are more likely to be clear and consistent. It should be made clear to the accused and alleged victims how bail conditions and protection order conditions interact, and that a bail condition never implies the accused may breach a protection order condition—and vice versa.