10APower of bail justice to grant or refuse bail

10A Power of bail justice to grant or refuse bail

S. 10A(1) amended by No. 3/2018 ss 15(1), 23(8).

(1) This section applies if a person in custody is brought before a bail justice, whether as a result of being brought before the bail justice in accordance with section 10(6) or (8) or 10AA(6) or (7) of this Act or section 64(2)(a) or 78(2)(a) of the Magistrates' Court Act 1989 or being otherwise before the bail justice.

S. 10A(2) amended by No. 3/2018 s. 23(9).

(2) The bail justice must hear and determine any application made for bail or for variation of the amount of bail or conditions of bail, or for remand in custody, in respect of the person.

S. 10A(2A) inserted by No. 3/2018 s. 15(2).

(2A) If the person is brought before the bail justice because a police officer, on refusing bail for the person under section 10(5), was of the opinion that the person was an Aboriginal person or a vulnerable adult, the bail justice is not required to consider whether the person is such a person but may rely on the opinion of the police officer.

(3) If the person is a child, the bail justice must ensure that a parent or guardian of the child, or an independent person, is present during the hearing of the application.

See also section 5AA (conditions of bail granted to a child in certain circumstances).

(4) An independent person present in accordance with subsection (3) may take steps to facilitate the granting of bail, for example, by arranging accommodation.

(5) The bail justice, in accordance with this Act, may grant or refuse bail.

Note to s. 10A(5) substituted by No. 26/2017 s. 14(10), substituted as Notes by No. 3/2018 s. 23(6), substituted as Note by No. 32/2018 s. 91(1), amended by Nos 28/2023 s. 5, 34/2025 s. 19(2).

Sections 13, 13AA and 13A specify circumstances in which only a court may grant bail. These circumstances relate to—

• certain instances in which the step 1—exceptional circumstances test applies;

• certain terrorism or foreign incursion offences;

• accused persons who have a terrorism record;

• persons accused of Schedule 2 offences who are already on 2 or more bail undertakings in relation to other indictable offences.

S. 10A(5AA) inserted by No. 32/2018 s. 91(2).

(5AA) The bail justice is prohibited from granting bail if the prosecutor—

(a) states that the prosecutor has terrorism risk information in respect of the accused; and

(b) alleges that this information shows that there is a risk that the accused will commit a terrorism or foreign incursion offence.