A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
S. 4AAA inserted by No. 28/2023 s. 9.
4AAA Offences in respect of which bail must not be refused
(1) Despite anything to the contrary in any other provision of this Act, a bail decision maker who is deciding whether to grant bail to a person accused of an offence must not refuse bail if—
(a) the person is accused only of offences against the Summary Offences Act 1966 that are not referred to in Schedule 3; and
(b) the person does not have a terrorism record; and
(c) if the bail decision maker is a court, no exception under subsection (2) applies.
(2) An exception applies for the purposes of subsection (1)(c) if—
(a) the court has determined under section 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence; or
(b) the person was previously granted bail in respect of any of the offences of which the person is accused and that bail was subsequently revoked.
(3) A reference in this Act to a bail decision maker considering, deciding or determining whether to grant bail (however described) includes a reference to a bail decision maker who is prohibited from refusing bail by subsection (1).
Section 5AAAA(1) requires a bail decision maker considering the release on bail of an accused to make inquiries of the prosecutor as to whether certain instruments are in force against the accused. Under subsection (3), the bail decision maker must make these inquires even if subsection (1) prohibits the bail decision maker from refusing bail.
(4) Nothing in this section limits the power of a court to revoke bail.
S. 4AA inserted by No. 32/2018 s. 84.
4AA When 2 step tests apply
(1) The step 1—exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence.
(2) The step 1—exceptional circumstances test also applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if—
(b) the court considering whether to grant bail determines under section 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence; or
(c) the offence is alleged to have been committed—
(i) while the accused was on bail for any Schedule 1 offence or Schedule 2 offence; or
(ii) while the accused was subject to a summons to answer to a charge for any Schedule 1 offence or Schedule 2 offence; or
(iii) while the accused was at large awaiting trial for any Schedule 1 offence or Schedule 2 offence; or
S. 4AA(2) (c)(iiia) inserted by No. 28/2023 s. 25.
(iiia) while the accused was on remand for a Schedule 1 offence or a Schedule 2 offence; or
S. 4AA(2) (c)(iiib) inserted by No. 28/2023 s. 25.
(iiib) while the accused was at large awaiting sentence for a Schedule 1 offence or a Schedule 2 offence; or
See subsection (5).
(iv) during the period of a community correction order made in respect of the accused for any Schedule 1 offence or Schedule 2 offence; or
(v) while the accused was otherwise serving a sentence for any Schedule 1 offence or Schedule 2 offence; or
Note to s. 4AA(2)(c)(v) inserted by No. 28/2023 s. 26(1).
See subsection (5).
(vi) while the accused was released under a parole order made in respect of any Schedule 1 offence or Schedule 2 offence; or
(d) the offence is an offence of conspiracy to commit, incitement to commit or attempting to commit an offence in a circumstance set out in paragraph (c).
(3) The step 1—show compelling reason test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if subsection (2) does not apply.
(4) The step 1—show compelling reason test also applies to a decision of whether to grant bail to a person accused of an offence that is neither a Schedule 1 offence nor a Schedule 2 offence if—
(b) the court considering whether to grant bail determines under section 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence.
S. 4AA(4A) inserted by No. 34/2025 s. 9.
(4A) The step 1—show compelling reason test also applies to a decision of whether to grant bail to a person if—
(a) the person is accused of an indictable offence (a later indictable offence); and
(b) the later indictable offence is alleged to have been committed while the person was on bail for an indictable offence; and
(c) the person is also accused of an offence against section 30B in respect of the commission of the later indictable offence; and
(d) the later indictable offence is not excepted by subsection (4B) or (4C); and
(e) the step 1—exceptional circumstances test does not apply to the decision.
S. 4AA(4B) inserted by No. 34/2025 s. 9.
(4B) An offence is excepted for the purposes of subsection (4A)(d) if the offence—
(a) is not punishable by a term of imprisonment; or
(b) is a Schedule 4 offence.
S. 4AA(4C) inserted by No. 34/2025 s. 9.
(4C) An offence is also excepted for the purposes of subsection (4A)(d) if—
(a) the offence is a Schedule 5 offence; and
(b) the prosecutor does not satisfy the bail decision maker that the threshold set out in Schedule 5 for that offence is met.
S. 4AA(4D) inserted by No. 34/2025 s. 9.
(4D) The step 1—show compelling reason test applies under subsection (4A) even if some (but not all) of the later indictable offences of which the person is accused are excepted by subsection (4B) or (4C).
S. 4AA(5) inserted by No. 28/2023 s. 26(2).
(5) For the purposes of subsection (2)(c)(iiib) and (v)—
(a) an accused who is released on an undertaking under section 72 of the Sentencing Act 1991 following the court convicting the accused of an offence—
(i) is not at large awaiting sentence for that offence; and
(ii) is not serving a sentence for that offence; and
(b) an accused who is released on an undertaking under section 75 of the Sentencing Act 1991 following the court being satisfied that the accused is guilty of an offence—
(i) is not at large awaiting sentence for that offence; and
(ii) is not serving a sentence for that offence.
Note to s. 4AA substituted by No. 28/2023 s. 12.
In circumstances where a step 1 test applies, section 4D provides that the unacceptable risk test will apply as a step 2 test. However, section 4D also provides that the unacceptable risk test applies even in circumstances where no step 1 test applies.