Bail and Electronic Monitoring (WA)
In 2024, the Western Australian government passed legislation making it mandatory for serious and repeat family violence offenders who are granted bail to be made subject to electronic monitoring, unless there are exceptional circumstances. This article outlines who is subject to mandatory electronic monitoring while on bail in WA, and how those electronic monitoring conditions operate.
Legislation
The changes to WA’s bail laws were contained in the Family Violence Legislation Reform Act 2024, which amended the Bail Act 1982 and other criminal legislation.
Mandatory electronic monitoring condition
Under the changes, there are three cohorts of adult offenders who are subject to mandatory electronic monitoring conditions. These include repeat family violence offenders and ‘high-risk’ family violence offenders.
The mandatory electronic monitoring condition does not apply to persons under 18.
The three cohorts are as follows.
Cohort A
Persons who are subject to a Family Violence Restraining Order (FVRO) and are subsequently accused or found guilty of a family violence offence against a person protected by the FVRO.
Cohort B
Persons who are subject to a serial family violence order declaration and are accused or found guilty of a family violence offence.
Cohort C
Persons who are released from prison under an early release or a PSSO for a family violence offence and are subject to an FVRO.
What is an electronic monitoring condition?
When an electronic monitoring condition is imposed as a condition of a person’s bail, the person must cooperate with the fitting of an electronic device onto their ankle, and with the maintenance of the device while they are on bail.
A person who is subject to an electronic monitoring condition will also be subject to conditions that restrict their movements – for example, that they not attend a certain address, or that they not come within a certain distance of a person’s residence or workplace.
The electronic monitoring device uses GPS technology to provide locational tracking, allowing Community Corrections and WA Police to monitor the person’s compliance with their bail conditions.
Exceptional circumstances
A person will not be required to comply with an electronic monitoring condition if the court is satisfied that exceptional circumstances exist.
The legislation does not define what constitutes exceptional circumstances. This will be assessed on a case-by-case basis and is a very high threshold to meet.
Police may now access the system
Under the changes, WA. police may now access the Department of Justice’s electronic monitoring system in real time, allowing police officers to take action swiftly when required.
The police now have the power to use information gained from the electronic monitoring system for any reasonable purpose in carrying out their functions. This means that the information may be used to investigate any matter, even a matter that is not connected to family violence.
Offences related to electronic monitoring
The changes have introduced two new offences related to failing to comply with an electronic monitoring condition. These offences are contained in section 50V of the Bail Act 1982.
There are also offences consisting of failing to comply with electronic monitoring condition set out in section 118 of the Sentence Administration Act 2003. These offences are unchanged.
Failing to comply with an electronic monitoring device
Under section 50V of the Bail Act 1982, a person who fails to comply with a direction to abide by a condition to wear an electronic monitoring device is guilty of an offence. This offence is punishable by a maximum penalty of a fine of $36,000 or imprisonment for three years.
Failing to comply with condition not to enter an area
Under section 50V of the Bail Act 1982, a person who fails to comply with a direction not to enter an area without a reasonable excuse is guilty of an offence. This offence is punishable by a maximum penalty a fine of $36,000 or imprisonment for three years.
Hindering a community corrections officer from entering a place where monitoring equipment is installed to retrieve the equipment
Under section 118 of the Sentence Administration Act 2003, a person who hinders a CCO from entering a place where electronic monitoring equipment is installed is guilty of an offence. This offence is punishable by a maximum penalty a fine of $12,000 or imprisonment for 12 months.
Damaging, removing, or interfering with the operation of electronic monitoring equipment
A person who damages, removes, or interferes with the operation of electronic monitoring equipment so as to prevent it from monitoring a person’s location is guilty of an offence. This offence is punishable by a maximum penalty of a fine of $36,000 or imprisonment for three years.
When an adult is found guilty of damaging removing or interfering with an electronic monitoring Device, they must be sentenced to a term of imprisonment of at least six months that is not suspended, unless this would clearly be unjust given the circumstances of the offence.
Rationale for the changes
The introduction of mandatory electronic monitoring conditions for serious and repeat family violence offenders in WA occurred in the context of broad changes to Western Australia’s family violence system.
The labour government touted the changes as ‘the most comprehensive family violence law reform package ever seen in WA’, stating that protecting victim-survivors of family violence was a priority, with many new initiatives being funded.
Mandatory electronic monitoring of domestic violence offenders will allow the police to monitor the whereabouts of such persons around the clock and to take action on any breaches of bail conditions immediately.
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Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.