What it does
The Bail Act 1977 (Vic) establishes a comprehensive statutory framework for determining whether an accused person held in custody should be released on bail pending the resolution of criminal charges. At its core, s 4 provides a general entitlement to bail unless the Act requires refusal. This presumption is qualified by a series of structured tests that bail decision makers—courts, bail justices, police officers of sergeant rank or above, the sheriff, or authorised persons under the Fines Reform Act 2014 (s 3 definition of bail decision maker)—must apply.
The decision-making process is illustrated by flow charts in s 3D. Flow Chart 1 identifies when the step 1—exceptional circumstances test (s 4A) or step 1—show compelling reason test (s 4C) applies. These tests are triggered for Schedule 1 offences (s 4AA(1)), certain Schedule 2 offences (s 4AA(2)), terrorism-related cases (s 4AA(2)(a)–(b)), and repeat bail scenarios including offences committed while on bail for an indictable offence (s 4AA(4A)–(4D)). If the step 1 test is satisfied, the decision maker proceeds to the step 2—unacceptable risk test under s 4E. Where no step 1 test applies, the unacceptable risk test stands alone (s 4D(b)).
Section 4E(1) requires refusal of bail if the decision maker is satisfied there is a risk the accused would, if released: commit a Schedule 1 or 2 offence; endanger the safety or welfare of any person; interfere with a witness or obstruct justice; or fail to surrender into custody. The risk must be “unacceptable” (s 4E(1)(b)). The prosecutor bears the onus of proving both the existence of the risk and that it is unacceptable (s 4E(2)). In assessing whether conditions can mitigate the risk to an acceptable level, the decision maker must consider surrounding circumstances (s 3AAA) and any available conditions, including Part 2A conditions for eligible children (s 4E(4)).