Bail in Western Australia: The Bail Act 1982 Test and the 2024 Electronic Monitoring Reforms

Bail in Western Australia is decided under the Bail Act 1982, and since 18 December 2024 a person charged with a family violence offence in one of the Act's serial offender or restraining order categories can face mandatory electronic monitoring as a condition of release, with a standalone offence carrying up to 3 years imprisonment and a $36,000 fine for failing to follow its monitoring directions.

This article covers bail for adults and children charged with an offence in Western Australia under the Bail Act 1982, current as at the 18 December 2024 consolidation. It does not cover bail in other Australian states or territories; the national comparison and the individual state and territory guides are linked below.

Who Decides Bail in Western Australia

Who can grant bail depends on the stage of the case and the offence charged. Section 5 gives an accused a right to have bail considered on arrest, and section 6 puts the arresting officer under a duty to consider it.

On a person's initial appearance in a court of summary jurisdiction or the Children's Court, Schedule 1 Part A clause 1 lets a justice or an authorised police officer grant bail (plus, for a child, an authorised community services officer). Once a matter reaches the District Court or the Supreme Court, only a judge of that court can grant bail on initial appearance.

Some charges take that choice away from justices and police altogether. For murder, section 15 reserves the power to grant bail to a judge of the Supreme Court, or a judge of the Children's Court for a child accused. For a person linked to terrorism, section 16B allows bail only from a court constituted by a judicial officer, never a justice of the peace or a police officer.

Section 16A adds an "urban area" restriction: if a person is arrested in the Perth metropolitan region or a prescribed town for a serious offence allegedly committed while on bail or early release for another serious offence, police and justice bail does not become available at all. The person must be brought before a magistrate-constituted court, or a Supreme Court or Children's Court judge if section 15 applies.

Family violence cases carry a similar restriction. A declared serial family violence offender charged with a category B family violence offence (Schedule 1 Part C clause 3F), or a person bound by a family violence restraining order charged with a category A family violence offence against the protected person (clause 3G), can only be granted bail by a judicial officer, not a justice.

The Bail Act Test in Western Australia

Schedule 1 Part C clause 1 sets out the core adult, pre-conviction test. The decision maker weighs whether the accused, if not kept in custody, may fail to appear; commit an offence; endanger the safety, welfare or property of any person; or interfere with witnesses or otherwise obstruct the course of justice. The decision maker also considers whether the accused needs custody for their own protection, whether the prosecutor has put forward grounds opposing bail, whether the proper conduct of a trial in progress could be prejudiced, whether a condition could remove the concern, and, in an offence against a child, whether a condition requiring the accused to live away from the child should be imposed. A final limb (clause 1(g)) allows refusal where the alleged conduct is of such a serious nature as to make a grant of bail inappropriate.

Clause 3, inserted in 2022, lists matters relevant to the risk factors in clause 1(a): the strength of the evidence, the nature and seriousness of the offence and the probable sentencing outcome, the accused's conduct toward the victim and the victim's family since the alleged offence, character, antecedents, associations, home environment, background, residence and financial position, and bail history.

For a sexual offence against a child victim, clauses 3AA and 3AB add further matters, including the age of the victim and accused, any family relationship, living arrangements and the child's stability and wellbeing, and require the prosecutor to relay to the decision maker any safety concern the child, a family member or an investigating officer raises on the child's behalf.

Once a person is convicted and awaiting sentence, clause 4 gives a broader discretion built around the conviction itself, the probable sentencing outcome and the clause 1 questions. While an appeal is pending, clause 4A requires refusal unless exceptional reasons exist and bail would otherwise be proper, subject to a carve out in clause 5 for certain Criminal Appeals Act 2004 appeals.

Charges That Need Exceptional Reasons

For adults, Schedule 1 Part C clause 1 makes bail a discretion rather than a presumption. A group of Schedule 1 Part C clauses displace that discretion: bail is refused unless the decision maker is satisfied there are exceptional reasons to grant it. These apply to categories of charge, not every offence, and a writer or reader should not assume they cover an entire class of crime:

• Clause 3A: a serious offence allegedly committed while the accused was on bail or early release for another serious offence.
• Clause 3B: a narrower regime inside clause 3A cases where the alleged offence would amount to a breach of a protective condition or order; the decision maker must inquire into any prior breach, give the protected person a chance to give evidence by affidavit, and must treat an alleged breach of a protective bail condition as serious even if the conduct alleged appears trivial.
• Clause 3C: murder.
• Clause 3D: breach of a High Risk Serious Offenders Act 2020 section 80(1) supervision order.
• Clause 3E: a person linked to terrorism.
• Clause 3F: a family violence offence (category B) committed by a person declared a serial family violence offender under the Sentencing Act 1995. Bail can only be granted by a judicial officer other than a justice, and before granting it the officer must request a section 24A(2) report and consider a home detention condition with electronic monitoring.

Clause 3G, inserted by the Family Violence Legislation Reform Act 2024 and in force since 18 December 2024, applies where the accused is bound by a family violence restraining order and charged with a category A family violence offence against the protected person. This is the clause most often confused with clause 3F: 3G restricts who may grant bail to a judicial officer other than a justice and, like 3F, triggers mandatory electronic monitoring, but it does not require the section 24A(2) report or impose an exceptional reasons threshold the way clause 3F does.

Once a judicial officer has granted or refused bail for an appearance, Schedule 1 Part B clause 2 stops that officer and any officer of the same level from reconsidering it, unless clause 4 applies: the accused must show new facts or changed circumstances, that the case was not adequately presented the first time, or (for home detention) a month's compliance. Section 7D applies the same inquiry at later appearances, and clauses 3A, 3D, 3E and 3F, and sections 7B and 7C for murder, restate the rule for their categories.

The 2024 Family Violence Reforms and Mandatory Electronic Monitoring

The Family Violence Legislation Reform Act 2024 was assented to on 17 September 2024, and its Bail Act changes, including clause 3G, an amended clause 3F, a new Schedule 1 Part E and a new Part 6B, commenced on 18 December 2024.

New Schedule 1 Part E clause 1 applies only where bail is granted under clause 3F(2) or 3G(3) without a home detention condition. In that situation the judicial officer must impose an electronic monitoring condition, combining location monitoring with community corrections supervision, unless satisfied there are exceptional circumstances. The condition cannot be imposed on a person under 18.

A community corrections officer supervises the condition and, under Schedule 1 Part E clause 1(4), can direct the accused to wear and charge the device, allow its installation where the accused lives, or stay out of stated areas. New Part 6B (sections 50N to 50V) lets the CEO (corrections) substitute the installation place or revoke bail, and section 50V makes failing to comply with a clause 1(4)(a) to (d) direction an offence carrying up to 3 years imprisonment and a $36,000 fine, a materially larger penalty than the general bail breach offence in section 51.

If home detention is imposed instead, Part D clause 3(4A) makes electronic monitoring mandatory as part of it unless there are exceptional circumstances, and section 50M carries the same 3 years and $36,000 penalty for failing to follow those directions.

Anyone affected by a family violence restraining order in Western Australia can find more on how those orders work, including how a breach interacts with bail, on the state's restraining orders guide.

Bail for Children in Western Australia

Schedule 1 Part C clause 2 gives a child accused a qualified right to bail. That right does not apply if one of the clause 1(a), (b), (d) or (g) concerns applies and no condition would address it, or if there is no willing "responsible person", such as a parent, relative or employer able to support and influence the child, prepared to sign a written undertaking. Clause 2(4) removes the responsible person requirement if the child is over 17 and mature enough to live independently.

Clause 2(3) makes the child's right subject to clauses 3A, 3C, 3D and 3E. Clauses 3F and 3G also operate despite clause 2, so their limit on who may grant bail can reach a child, but the mandatory electronic monitoring condition cannot be imposed on anyone under 18 (Part E clause 1(7)).

For a child, Schedule 1 Part D clause 2(1a) requires the decision maker to consider curfew-style conditions, such as a period each day the child must stay at a specified place, non-association conditions, staying away from named places, and school attendance, beyond the general condition-setting discretion. A home detention condition under Part D clause 3 is only available where the accused is 17 or older, so it cannot be used for a younger child. A child refused bail is dealt with under section 19(2) of the Young Offenders Act 1994.

Bail Conditions in Western Australia

Schedule 1 Part D sets out the conditions a court can impose. Clause 1 covers forfeiture, security and surety conditions. Clause 2 covers other conditions, including residence, conduct, non-association, curfew-style restrictions for a child, attendance at counselling or a programme, medical or psychiatric examination, and drug or alcohol treatment. Before imposing a safety-type condition, the decision maker must consider whether a Restraining Orders Act 1997 order would better serve the purpose, and, subject to a safety override, must avoid a condition inconsistent with an existing restraining order where the accused and victim are family members. Clause 3 allows a home detention condition for an accused aged 17 or older, subject to a community corrections suitability report. Since 18 December 2024, Part E clause 1 adds the mandatory electronic monitoring condition described above for the clause 3F and 3G no-home-detention scenario.

Reapplying, Review and Appeal

Section 7A lets a court dispense with bail, and sections 7D and 7E impose procedural duties on later appearances and during trial. Under Schedule 1 Part B clauses 2 and 4, a further application to the same judicial officer, or one of the same level, for the same appearance needs new facts or changed circumstances, or proof the case was not adequately presented the first time. Under section 14, the accused can instead apply to a judge (of the Supreme Court, or of the District Court after committal, or of the Children's Court for a child) whether or not bail was refused below; after that first application to a judge, a further one needs new facts, changed circumstances or proof of inadequate earlier presentation (section 14(2a)).

A bail decision, meaning a grant, refusal, variation, revocation, dispensation or the imposition of a condition, made by a judge of the Children's Court, District Court or Supreme Court, can be appealed to the Court of Appeal under sections 15A and 15B. Either the prosecutor or the accused can appeal, but the Court of Appeal's leave is required for each ground, the appeal must be commenced within 21 days of the decision unless the Court of Appeal orders otherwise, and the appeal is determined on the material that was before the original judge. The accused has a right to be present, in person or by video or audio link. If the Court of Appeal revokes bail, it can order the accused returned to custody.

Breaching Bail in Western Australia

Section 51 makes it an offence to fail to comply with a bail undertaking, whether that is a failure to appear, a failure to comply with a section 28(2)(b) requirement, or breach of certain conditions. The penalty is a fine of up to $10,000, imprisonment of up to 3 years, or both. A prosecution can be brought at any time, and a court can also order the accused to pay apprehension costs. Sections 51A, 52 and 53 set out procedural rules for prosecuting the offence and a right of appeal, with the Court of Appeal's leave, against a section 52 decision.

Failing to follow a direction under the mandatory electronic monitoring condition is treated separately and more heavily: section 50V (and section 50M for monitoring under home detention) carries up to 3 years imprisonment and a $36,000 fine, distinct from and larger than the general section 51 penalty.

Getting Legal Help in Western Australia

Nothing here is a substitute for advice from a lawyer who has seen the actual charge and the accused's circumstances. Legal Aid WA can advise on eligibility for a duty lawyer or a grant of aid for a bail application. For background on police powers on arrest, see the guide to Miranda-style rights in Australia, and for the general defence framework that can inform a bail argument about the strength of the case, see self-defence laws in Australia. A conviction's later effect on employment and licensing is covered in spent convictions in Australia, and court process generally is covered in the court records hub. For how bail compares across the country, see bail laws in Australia, and for the rest of this section see the Australia criminal law hub.

Frequently Asked Questions

What is the test for bail in Western Australia?

Under Schedule 1 Part C clause 1 of the Bail Act 1982, the decision maker weighs whether the accused, if released, may fail to appear, commit an offence, endanger someone's safety, obstruct justice, or needs custody for their own protection, along with the prosecutor's grounds and whether a condition would remove the concern.

Can a justice of the peace or police officer grant bail for a family violence charge in WA?

Not for the categories in clauses 3F and 3G. A declared serial family violence offender charged with a category B offence, or a person bound by a restraining order charged with a category A offence against the protected person, can only be granted bail by a judicial officer other than a justice.

Does Western Australia have mandatory electronic monitoring for bail?

Since 18 December 2024, if bail is granted under clause 3F or 3G without a home detention condition, Schedule 1 Part E requires the judicial officer to impose electronic monitoring unless satisfied there are exceptional circumstances. Failing to follow a monitoring direction is a separate offence under section 50V, carrying up to 3 years imprisonment and a $36,000 fine.

What happens if I breach ordinary bail in Western Australia?

Section 51 makes breach of a bail undertaking, such as failing to appear, an offence carrying a fine of up to $10,000, imprisonment of up to 3 years, or both, and it can be prosecuted at any time.

Can I reapply for bail if I have been refused in Western Australia?

Yes, within limits. A further application to the same judicial officer, or one of the same level, needs new facts, changed circumstances, or proof the case was not adequately presented (Schedule 1 Part B clauses 2 and 4). Under section 14 the accused can apply once to a judge, usually of the Supreme Court, without that showing; a second application to a judge needs it.

Can a child get bail in Western Australia?

A child has a qualified right to bail under clause 2 unless a risk factor applies with no adequate condition, or no responsible adult is willing to support them. Home detention conditions are only available for an accused aged 17 or older.