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Serial family violence – WA

17 December 2020 by By Lawyers

From 1 January 2021 new provisions regarding serial family violence commence in WA. These are the final provisions of the Family Violence Legislation Reform Act 2020. Various sections of this amending Act have commenced over the course of the year. The amendments affect the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Serial family violence

From 1 January 2021 there is a presumption against bail for a person charged with a ‘family violence offence’ who has been declared a ‘serial family violence offender’. These terms are defined in s 3 of the Bail Act.

The presumption may be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied bail may properly be granted.

Previous amendments

Practitioners will recall that the previously commenced provisions of the amending Act include:

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a ‘family relationship’ with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act 1997 define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly. The changes to these publications will be live from 1 January 2021.

Filed Under: Criminal Law, Domestic Violence Orders, Legal Alerts, Publication Updates, Western Australia Tagged With: bail, criminal procedure WA, family violence, family violence restraining order, Restraining orders, WA Criminal Law

Presumption against bail – WA

7 January 2020 by By Lawyers

A presumption against bail has been created via recent amendments to the Bail Act 1982 (WA). There is now a presumption against bail for those charged with terrorism offences. This brings WA into line with other states.

The Bail Amendment (Persons Linked to Terrorism) Act 2019 (WA) amends the Bail Act 1982. Its purpose is the implementation of the 2017 Council of Australian Governments agreement for a presumption against bail to apply to persons with links to terrorism. A presumption against bail now applies in WA in relation to certain ‘terrorism offences’ and for ‘persons linked to terrorism’, as newly defined in s 3 of the Bail Act.

A person has links to terrorism for the purposes of the Bail Act if:

  • they are charged with, or have been convicted of, a terrorism offence; or
  • they are subject to an interim control order or confirmed control order made under the Criminal Code Act 1995 (Cth); or
  • they have been the subject of a confirmed control order within the last 10 years.

It is not necessary for these links to terrorism to have any connection to the charge currently before the court for which bail is being considered.

The amendments commenced on 1 January 2020.

The full commentary in the By Lawyers Criminal Magistrates Court guide for Western Australia has been updated accordingly.

Filed Under: Criminal Law, Legal Alerts, Western Australia Tagged With: bail, Bail amendments, criminal law, WA Criminal Law

Circumstances of aggravation – Traffic offences – WA

27 November 2018 by By Lawyers

Amendments to s 49AB of the Road Traffic Act 1974 (WA) have commenced, providing for new circumstances of aggravation which have the effect of doubling the maximum penalty for the offence of dangerous driving causing death from 10 years to 20 years imprisonment.

The new circumstances of aggravation now in s 49AB(1) of the Act include:

  • Excessive speed
    Circumstances of aggravation include driving more than 30 kph over the applicable speed limit. Previously, the section provided for 45 kph over, but the threshold has been lowered by the amendments.
  • No authority to drive
    Circumstances of aggravation include the driver having ‘no authority to drive’. This includes the driver having never held a licence, having an expired licence, having been refused a licence, or being at the time of the offence disqualified from holding or obtaining a licence. The provision extends to any Australian licence, not just WA.
  • Failure to comply with conditions of an extraordinary licence
    Circumstances of aggravation include where the driver holds an extraordinary licence but at the time of the offence is driving in contravention of the requirements or conditions of the extraordinary licence, for example, where the driver is authorised to drive a car but at the time of the offence is riding a motorcycle.
  • Failure to comply with alcohol interlock scheme
    Circumstances of aggravation include the driver being required to drive a vehicle fitted with an alcohol interlock device but at the time of the offence driving a vehicle without such a device, not having the required authorisation to drive, or driving in breach of the alcohol interlock condition of an authorisation to drive.

The By Lawyers Traffic Offences – Magistrates Court (WA) guide has been updated accordingly.

Filed Under: Criminal Law, Western Australia Tagged With: aggravation, WA Criminal Law, WA Magistrates Court, WA Sentencing law, WA Traffic Law

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