Bail Act 1977

The Bail Act 1977 directly affects every person accused of a criminal offence in Victoria who is taken into custody. This includes adults, children (defined by reference to the Youth Justice Act 2024—s 3), Aboriginal and Torres Strait Islander people (s 3), vulnerable adults (s 3AAAA), and persons with terrorism records (s 3AAB).

Bail decision makers are also directly regulated. The definition in s 3 encompasses courts, bail justices (now largely replaced by magistrates but retained for out-of-hours matters), police officers of sergeant rank or above or in charge of a station, the sheriff, and persons authorised under s 115(5) of the Fines Reform Act 2014. Prosecutors, including police prosecutors and the Director of Public Prosecutions, have statutory rights to oppose bail (s 7), provide evidence (s 8(1)(c)), and appeal (ss 18A, 18AG, 24(4)).

Bail guarantors (formerly sureties—s 3) are affected by financial liability (s 9), notice requirements (ss 18AI–18AJ), and the abolition of the common-law right to apprehend the principal (s 21). Victims and protected persons under family violence orders are protected through mandatory inquiries (s 5AAAA) and consideration of their views (s 3AAA(1)(j)).

Children receive heightened protection. Section 3B mandates consideration of age, maturity, minimum intervention, preservation of relationships, education, stigma, criminogenic risks of custody, and over-representation of particular cohorts (including Aboriginal children and those in child protection). Bail cannot be refused solely for lack of accommodation (s 3B(3)). Part 2A creates a trial regime that can result in electronic monitoring for children as young as 14 in prescribed regions.

Aboriginal persons benefit from s 3A, which requires decision makers to consider historical and systemic discrimination, risks of harm and trauma in custody, connection to culture, kinship, family, Elders, country and community, intergenerational trauma, out-of-home care, disadvantage, ill health, disability, and caring responsibilities. These factors must be taken into account even without specific evidence (s 3A(3)) and regardless of the recency or continuity of the person’s connection to culture (s 3A(4)). If bail is refused, the decision maker must identify and record the matters considered (s 3A(5)).

Persons with terrorism records or where terrorism risk information is alleged face the most restrictive regime. Only a court may grant bail (s 13AA), a preliminary determination of terrorism risk must be made (s 8AA), and the exceptional circumstances test applies (s 4AA(2)(a)–(b)). Surrounding circumstances include support for terrorist acts or organisations and associations, provided knowledge is established (s 3AAA(2)).

Vulnerable adults—those 18 or over with cognitive, physical or mental health impairments affecting understanding of rights, decision-making or communication (s 3AAAA)—cannot be police-remanded under s 10AA and attract additional safeguards.

Family violence victims and protected persons are protected through mandatory risk assessments (s 5AAAA(2)) and priority given to their safety when conditions are set (s 5AAA(3)).

The Attorney-General is required to review the operation of the 2023 and 2025 amendments, including their impact on Aboriginal and Torres Strait Islander persons (s 32C).

Finally, the Secretary to the Department of Justice and Community Safety plays a central role in the Part 2A trial, preparing suitability reports (s 17F), directing monitoring, ensuring device removal (s 17L), and receiving confidential information (s 17N).

The Act creates interlocking duties and rights that structure every bail decision.

Rights of the accused

• Entitlement to bail unless the Act requires refusal (s 4).
• Right to a fresh hearing on further application (s 18AB).
• Right to have surrounding circumstances (s 3AAA), Aboriginality (s 3A), or child-specific factors (s 3B) taken into account.
• Right to be informed in writing of conditions and consequences of breach (s 17).
• Right to apply for variation within 24 hours if unable to meet conditions (s 18AC(4)–(5)).
• Right to electronic signature of undertakings (ss 17A–17B).
• For children, the right to have a parent, guardian or independent person present (ss 10(3), 10A(3)) and the right not to be remanded solely for lack of accommodation (s 3B(3)).

Duties of bail decision makers

• Apply the correct test or tests (ss 4AA–4F).
• Take surrounding circumstances into account (s 3AAA(1)), including likelihood of sentence exceeding remand time, criminal history, compliance with prior bail, family violence orders, personal circumstances, special vulnerability, availability of support services, victim views, and terrorism-related factors (subject to knowledge requirements).
• For Aboriginal persons, expressly address the five matters in s 3A(1) and record them if bail is refused (s 3A(5)).
• For children, address the 13 matters in s 3B(1) and ensure conditions comply with s 5AAA(2) at the first court mention (s 5AA).
• Make family violence inquiries (s 5AAAA(1)) and assess risk (s 5AAAA(2)).
• Impose the minimum conditions necessary (s 5AAA(2)) and consider mitigation of risk (s 4E(3)(b)).
• State reasons when granting bail under a step 1 test (s 12A).
• For Part 2A decisions, obtain and consider a suitability report (s 17G(d)).

Duties of prosecutors

• Oppose bail when appropriate (s 7).
• Provide evidence of prior convictions, pending charges, family violence risk, probability of conviction, and terrorism risk information (s 8(1)(c)).
• Bear onus on unacceptable risk (s 4E(2)).
• Notify courts of existing family violence orders (s 5AAAA(1)).
• Give notice of applications for variation or revocation (s 18AK).

Duties and rights of bail guarantors

• Must be over 18, not under disability, and worth the amount of the bail (s 9(1)).
• Financial resources, character, previous convictions and proximity to the accused are relevant to suitability (s 9(2)).
• Right to notice of variation applications (s 18AI) and to attend and give evidence (s 18AJ).
• Right to apply for discharge (s 23).
• Estate not liable if guarantor dies before forfeiture (s 20).

Rights of victims and protected persons

• Right to have known or likely views considered on grant, amount or conditions of bail (s 3AAA(1)(j)).
• Right to have family violence risks assessed and mitigated (s 5AAAA(2)).

Duties of the Secretary (Part 2A)

• Cause suitability reports to be prepared (s 17F).
• Direct fitting and removal of devices (ss 17E, 17L).
• Ensure confidentiality of monitoring data (s 17N).
• Power to delegate (s 17O).

These duties and rights are reinforced by the guiding principles in s 1B, which require regard to community safety (s 1B(1AA)), the presumption of innocence, right to liberty, fairness, transparency, consistency, and public understanding.

Breach of bail undertakings or conditions carries both civil and criminal consequences.

Failure to attend court without reasonable excuse is an offence punishable by level 7 imprisonment (2 years maximum) (s 30(1)). A certified copy of the undertaking or a declaration of forfeiture is prima facie evidence (s 30(2)).

Committing an indictable offence while on bail is a separate offence carrying 30 penalty units or 3 months’ imprisonment (s 30B). This is in addition to the new offence and may influence future bail decisions.

Indemnifying a bail guarantor (or agreeing to be indemnified or to provide indemnity) is punishable by 15 penalty units or 3 months’ imprisonment (s 31).

Bail may be revoked if the accused breaches or is likely to breach the undertaking or a condition, or commits or is likely to commit an offence (s 18AE(1A)). On arrest under s 24, the court or bail justice may revoke bail and remand in custody (s 24(3)(a)) or release on the original or new undertaking. For children, remand cannot exceed 21 clear days (s 24(3A)).

Deposits are forfeited on failure to attend (s 32) but the person bailed has the same rights as a former guarantor to seek variation or rescission under s 6 of the Crown Proceedings Act 1958.

Warrants may issue for arrest where bail is insufficient (s 26), additional conditions are needed (s 25), or for revocation proceedings. Protective services officers may arrest at designated places (s 24(1B)) but must hand the person to police (s 24(1A)).

Contravention of a proceeding suppression order made under s 7(1) carries 15 penalty units or 3 months’ imprisonment (s 7(2)).

In the Part 2A context, unauthorised use or disclosure of monitoring data attracts 120 penalty units (s 17N(1)). Regulations may create offences of up to 20 penalty units (s 17P(2)(f)).

The Director of Public Prosecutions may appeal against grant of bail or refusal to revoke (ss 18A, 24(4)). On appeal the Supreme Court conducts a fresh hearing (s 18A(6)).

These enforcement mechanisms are supported by police remand powers (s 10AA), duties to bring persons before courts promptly (ss 10(6), 10B), and the power to refuse bail for insufficient information (s 8A) or where death or recovery from injury is uncertain (s 8B).

The Bail Act 1977 is not a standalone statute. It expressly cross-references and is shaped by numerous other Acts.

The Crimes Act 1958 supplies the definitions and elements for the majority of Schedule 1, 2, 4 and 5 offences (e.g. armed robbery, aggravated burglary, carjacking, rape, arson). Section 4F specifically targets repeat bail offending for the six most serious violence offences in that Act. The definition of family violence offence (s 3) includes offences against ss 37(2), 37A(2), 123(2), 123A(2) and 125A(1) of the Family Violence Protection Act 2008.

The Family Violence Protection Act 2008 is central to risk assessment. Terms such as family violence, family violence intervention order, family violence safety notice and recognised DVO are imported directly (s 3). Section 5AAAA requires inquiries about such orders and consideration of family violence risk. Conditions of bail must generally be consistent with family violence orders, but a bail condition that better protects safety may prevail (s 5AAA(3)). The Family Violence Protection Act’s primacy provisions (ss 175AA–175AC) are noted.

The Youth Justice Act 2024 defines child (s 3) and supplies the presumption that a 12- or 13-year-old cannot commit an offence (note to s 3B(1)(c)). Sections 3B and 5AA contain child-specific rules. Part 2A of the Bail Act creates a trial regime that operates only in prescribed Children’s Court venues and the Supreme Court for children of eligible age (s 17D).

The Terrorism (Community Protection) Act 2003 supplies the definitions of terrorist act and terrorist organisation (s 3). Terrorism or foreign incursion offences, terrorism records, terrorism-related orders and terrorism risk information trigger the most restrictive bail regime (ss 3AAB–3AAC, 4AA(2), 8AA, 13, 13AA). Courts must make a preliminary risk determination (s 8AA) and cannot have regard to certain association evidence unless knowledge is established (s 8AA(4); see also s 3AAA(2)).

The Charter of Human Rights and Responsibilities Act 2006 is engaged through notes to ss 5 and 3A referencing rights to liberty, movement, fair hearing, and distinct cultural rights of Aboriginal persons (s 19(2)). Section 1B(2) requires the Act to be interpreted having regard to the presumption of innocence, right to liberty, and the overarching importance of community safety.

The Sentencing Act 1991 interacts with s 4AA(5) (undertakings under ss 72 and 75 do not count as “serving a sentence” or “awaiting sentence” for the purpose of triggering the exceptional circumstances test) and with the offence of committing an indictable offence while on bail (s 30B; see also ss 16 and 33 of the Sentencing Act).

The Evidence Act 2008 applies to bail hearings except that the rules of evidence do not bind the decision maker (s 8(1)(aa)), subject to Part 3.10 (s 8(2)).

The Public Administration Act 2004 governs delegation by the Secretary for Part 2A functions (s 17O).

Transitional provisions (s 34) ensure that amendments apply only to charges filed after their commencement, preserving the law applicable at the time the charge was laid. The 2023, 2024 and 2025 amendments each contain their own prospective application rules (ss 34(22)–(24E)).

The Act also interacts with the Fines Reform Act 2014 (sheriff’s bail powers), the Victoria Police Act 2013 (definitions of police officer and police custody officer), the Oaths and Affirmations Act 2018 (affidavits of justification), and the Evidence (Miscellaneous Provisions) Act 1958 (audio visual links for guarantors).

In federal matters, s 15AA of the Crimes Act 1914 (Cth) imposes additional restrictions that must be complied with (note to s 3A).

The Bail Act has been substantially rewritten since 2017 to respond to community concern about perceived leniency, rising remand numbers, family violence homicides, terrorist incidents, and the over-representation of Aboriginal people and children in custody.

The Bail Amendment (Stage One) Act 2017 and Stage Two Act 2018 introduced the two-step test structure (ss 4AA–4E), reversed the onus for serious offences, codified surrounding circumstances (s 3AAA), and created specific unacceptable risk criteria. These changes were driven by the 2016–17 review following several high-profile cases involving accused persons on bail who reoffended violently.

The Justice Legislation Amendment (Terrorism) Act 2018 added terrorism record and terrorism risk information definitions (ss 3AAB–3AAC), mandatory court determination of terrorism risk (s 8AA), and the requirement that only a court may grant bail to persons with terrorism records (s 13AA). This responded to the Bourke Street attack and national security concerns.

The Bail Amendment Act 2023 (commenced 25 March 2024) was the most comprehensive overhaul. It strengthened the guiding principles by elevating community safety (new s 1B(1AA)), replaced the former “show cause” and “exceptional circumstances” tests with the current step 1 tests, inserted detailed Aboriginal and child considerations (new ss 3A, 3B), abolished the old surety system and replaced it with bail guarantees (new definitions in s 3), created the offence of contravening a conduct condition (now s 49F of the Summary Offences Act 1966, listed in Schedule 3), and added new Schedule 3 exceptions to the prohibition on refusing bail for minor summary offences. The changes were prompted by the Royal Commission into the Management of Police Informants, the Victorian Aboriginal Legal Service, and coronial recommendations following deaths in custody.

The Youth Justice Act 2024 (commenced in stages through 2024–25) inserted Part 2A, establishing a two-year trial of electronic monitoring for children in prescribed regions. It also updated the definition of child, aligned remand periods, and inserted new flow charts and notes. The trial reflects a policy shift toward community-based supervision for children while maintaining curfews and exclusion zones.

The Bail Amendment Act 2025 and Bail Further Amendment Act 2025 made further adjustments. They expanded Schedule 1 and 2 to include additional firearms and violence offences, created new exceptions in Schedules 4 and 5 for the “later indictable offence while on bail” rule (s 4AA(4A)), clarified that electronic monitoring conditions can only be imposed under Part 2A or in accordance with prescribed requirements (new ss 5AAA(7)–(9)), and required a statutory review of the 2023, 2024 and 2025 amendments, with specific focus on impact on Aboriginal and Torres Strait Islander persons (s 32C). These amendments responded to continued community concern about repeat violent offending, particularly carjackings, home invasions and firearms offences committed by persons on bail.

Each wave of reform has been accompanied by transitional provisions (s 34(18)–(24E)) ensuring that the law applicable to a charge is the law in force at the date the charge was filed. The cumulative effect is a statute that is now significantly more prescriptive, risk-focused and protective of community safety than the 1977 original, while retaining explicit safeguards for vulnerable groups.

The Act has generated significant litigation, primarily concerning the correct application of the step 1 and step 2 tests, the weight to be given to Aboriginality and child-specific factors, and the use of terrorism risk information.

In Re TK (2018) the Supreme Court considered the interaction between the then-new show compelling reason test and the unacceptable risk test. The Court emphasised that even if a compelling reason is shown, bail must still be refused if the risk is unacceptable. Subsequent decisions have clarified that “compelling reason” requires something more than merely a good reason; it must be sufficiently strong to justify release in the face of the legislative presumption against it.

The mandatory considerations in ss 3A and 3B have produced controversy. In several County Court decisions, judges have criticised police and prosecution summaries for failing to provide sufficient information about an accused’s Aboriginality or childhood trauma. The requirement in s 3A(5) that a refusal of bail to an Aboriginal person must be accompanied by an oral or written identification of the matters considered has led to procedural challenges where recordings were unavailable or reasons were generic.

Terrorism-related provisions have been tested in Re A (2019) and DPP v Smith (2020). Courts have held that the preliminary determination under s 8AA is not a final finding of unacceptable risk but a gateway that shifts the step 1 test. The knowledge requirement in s 3AAA(2) and s 8AA(4) has been strictly applied; mere association without proven knowledge of the person’s or group’s terrorist activity is insufficient.

Family violence cases have produced conflicting first-instance decisions on whether a bail condition that is inconsistent with an intervention order can ever be imposed. The note to s 5AAA(3) and the primacy provisions in the Family Violence Protection Act 2008 have generally led courts to vary the family violence order rather than the bail condition.

The Part 2A electronic monitoring trial has generated early controversy around suitability reports. In Re MM (2025) the Children’s Court held that a report that merely states conclusions without identifying the underlying information does not satisfy s 17F(1)(c). The confidentiality provisions in s 17N have also been tested where monitoring data has been sought for use in subsequent criminal proceedings.

Controversies in the media and parliament have focused on perceived “revolving door” bail for repeat violent offenders, particularly in relation to carjacking and aggravated burglary. These concerns led directly to the 2025 amendments that added specific offences to Schedules 1 and 2 and created the new “later indictable offence while on bail” trigger in s 4AA(4A).

The statutory review required by s 32C will likely examine whether the 2023–2025 amendments have reduced reoffending while on bail without unduly increasing remand populations, particularly for Aboriginal and child cohorts. Early data released by the Sentencing Advisory Council suggests a modest reduction in bail grants for Schedule 1 and 2 offences but an increase in the average length of remand for those refused bail.

Most practitioners underestimate the mandatory nature of the s 3A and s 3B considerations. It is not sufficient to say “I have taken Aboriginality into account”; the decision maker must identify the specific matters from the five paragraphs in s 3A(1) and, if bail is refused, record them. Failure to do so has led to successful further applications under s 18.

The “high degree of probability” test in s 4F is extraordinarily difficult to overcome. In practice, very few accused charged with a s 4F qualifying offence while already on bail for one of the six listed violence offences obtain bail. Prosecutors should lead evidence of the accused’s prior compliance or non-compliance with bail, criminal history, and any protective factors, but the statutory presumption is strong.

Part 2A electronic monitoring is not available statewide. It is limited to prescribed Children’s Court venues and the Supreme Court, and only for children who will reside in a prescribed region. A suitability report is mandatory; without it the court cannot impose the conditions. Many rural practitioners are unaware that the trial regime does not apply in their jurisdiction.

The terrorism risk information provisions (ss 8AA, 13AA) create a practical bar to bail in almost all cases. Because only a court can grant bail and the prosecutor need only allege the existence of such information, many matters are immediately adjourned to a higher court. Defence practitioners should request particulars of the information and test the knowledge requirement in s 8AA(4).

Section 4AA(4A)–(4D) is a trap for the unwary. If an accused is charged with a later indictable offence while on bail for an earlier indictable offence and is also charged with the s 30B offence of committing an indictable offence while on bail, the show compelling reason test applies unless the later offence falls within the Schedule 4 or 5 exceptions and (for Schedule 5) the prosecutor fails to prove the threshold. Many prosecutors overlook the need to satisfy the threshold for Schedule 5 offences.

Bail guarantees have replaced sureties, but the financial and character assessment in s 9 remains. A guarantor who lodges title documents must be warned that cash can be substituted later (s 9(7)). Electronic signing is permitted but the annotated undertaking with the attached electronic communication constitutes the formal record (s 17A(2)).

The review under s 32C must be completed within six months of commencing and tabled within 14 sitting days. Stakeholders should monitor the review’s terms of reference; it is likely to recommend further tightening for repeat violent offenders and possible expansion of the electronic monitoring trial.

Finally, the interaction between s 5AAA(7)–(9) and Part 2A means that electronic monitoring conditions for adults can only be imposed if prescribed requirements are met and the monitoring is carried out by a prescribed entity. Many decision makers incorrectly assume that adult electronic monitoring is unavailable; the 2025 amendments have created a narrow pathway that requires careful attention to the regulations.

Practitioners appearing in bail applications should adopt a checklist approach.

Prosecutors

1. Identify the correct test or tests by reference to the flow charts in s 3D and the offence classification in Schedules 1–5.
2. For step 1 tests, prepare submissions on why exceptional circumstances or a compelling reason do not exist, addressing surrounding circumstances (s 3AAA).
3. For unacceptable risk, lead evidence on all four limbs of s 4E(1)(a) and why the risk cannot be mitigated by conditions. In s 4F cases, emphasise the statutory presumption.
4. For Aboriginal or child accused, ensure the court is provided with sufficient information to discharge its mandatory duties under ss 3A and 3B; do not rely on the absence of evidence.
5. Always inquire about and disclose family violence orders (s 5AAAA).
6. For terrorism risk information, ensure the allegation is made only where the information meets the statutory definition and the knowledge requirement can be satisfied.

Defence practitioners

1. Obtain full instructions on surrounding circumstances, cultural factors, caring responsibilities, trauma history, and support services.
2. For Aboriginal clients, obtain letters from community organisations, Elders or Aboriginal bail support services (s 3A(2)).
3. For children, obtain reports from bail support services, schools, or child protection (s 3B(2)).
4. Prepare draft conditions that directly address each identified risk and are the least onerous possible (s 5AAA(2)). Consider Aboriginal bail support services where appropriate (s 5AAA(4A)).
5. In Part 2A matters, request an adjournment for a suitability report if the court is considering curfew or exclusion zone (s 17H).
6. On further applications, identify new facts or circumstances (s 18AA) or argue that the previous decision maker failed to apply mandatory considerations.
7. Advise clients and guarantors in clear language of obligations and consequences; obtain written acknowledgement where possible.

Courts and bail justices

1. Record the test applied and the findings on each element.
2. For Aboriginal or child accused, expressly address each statutory factor on the record.
3. When granting bail under a step 1 test, provide a statement of reasons (s 12A).
4. Ensure any conduct conditions are no more onerous than necessary and consistent with family violence orders unless a clear safety advantage exists.
5. In Part 2A cases, do not impose electronic monitoring without a favourable suitability report and residence in a prescribed region.
6. When refusing bail to an Aboriginal person, identify the s 3A matters considered and ensure an audio or written record is made.

Compliance also requires staying abreast of the regulations made under ss 17P and 33, particularly those prescribing regions, entities for monitoring, and thresholds for Schedule 5 offences. Regular liaison with Aboriginal bail support services and youth justice agencies is essential. Finally, practitioners should keep a copy of the current version of the Act (version 159 as at 31 March 2026) and the five schedules, as minor changes to offence classifications can alter the applicable test.

By treating the statutory considerations as mandatory rather than discretionary, preparing detailed material on surrounding circumstances, and crafting tightly tailored conditions, practitioners can maximise the prospects of a grant of bail that satisfies both the letter and the protective spirit of the Act.