5Bail undertaking

5 Bail undertaking S. 5(1) amended by No. 28/2023 s. 91(1). (1) A grant of bail must require the accused to give an undertaking in writing to surrender into custody at the time and place of the hearing or trial specified in the undertaking and not to depart without leave of the court and, if leave is given, to return at the time specified by the court and again surrender into custody. S. 5(1A) inserted by No. 3/2018 s. 8(1), amended by No. 28/2023 s. 91(2). (1A) An accused who gives a bail undertaking is under a duty to attend court for the hearing or trial specified in the undertaking and surrender into custody on so attending. S. 5(2) amended by No. 3/2018 s. 8(2), substituted by No. 28/2023 s. 91(3). (2) A grant of bail may be subject to— (a) conduct conditions; or (b) a condition that requires one or more bail guarantees or a deposit of money of a specified amount (whether or not the grant of bail is also subject to conduct conditions)— but does not need to be subject to any of these conditions. S. 5(3) repealed by No. 28/2023 s. 43. 1 Sections 12 and 21 of the Charter of Human Rights and Responsibilities set out a right of freedom of movement and a right to liberty and security of the person. 2 Sections 23 and 25 of the Charter of Human Rights and Responsibilities set out the rights of children in the criminal process and the rights of an adult in criminal proceedings. 3 Section 7(2) of the Charter of Human Rights and Responsibilities sets out how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. S. 5AAAA inserted by No. 3/2018 s. 9. 5AAAA Family violence risks (1) A bail decision maker considering the release on bail of an accused must make inquiries of the prosecutor as to whether there is in force— (a) a family violence intervention order made against the accused; or (b) a family violence safety notice issued against the accused; or (c) a recognised DVO made against the accused. (2) A bail decision maker considering the release on bail of an accused charged with a family violence offence must consider— (a) whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and (b) whether that risk could be mitigated by— (i) the imposition of a condition; or (ii) the making of a family violence intervention order. S. 5AAA inserted by No. 26/2017 s. 6. 5AAA Conduct conditions (1) A bail decision maker considering the release of an accused on bail must impose any condition that, in the opinion of the bail decision maker, will reduce the likelihood that the accused may— S. 5AAA (1)(aa) inserted by No. 32/2024 s. 903B(1). (aa) commit a Schedule 1 offence or a Schedule 2 offence; or S. 5AAA(1)(a) substituted by Nos 3/2018 s. 10, 28/2023 s. 15(1), amended by No. 32/2024 s. 903B(2). (a) otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or S. 5AAA(1)(b) substituted by No. 3/2018 s. 10, repealed by No. 28/2023 s. 15(2). S. 5AAA(1)(c) substituted by No. 3/2018 s. 10. (c) interfere with a witness or otherwise obstruct the course of justice in any matter; or S. 5AAA(1)(d) substituted by No. 3/2018 s. 10, amended by No. 28/2023 s. 92. (d) fail to surrender into custody in accordance with the bail undertaking. Example to s. 5AAA(1) substituted by No. 32/2024 s. 903E. A bail decision maker may impose a condition in order to reduce the likelihood that the accused may— (a) drive dangerously; or (b) commit a family violence offence; or (c) commit an aggravated burglary; or (d) commit an armed robbery; or (e) commit a carjacking; or (f) commit a home invasion. (2) If a bail decision maker imposes one or more conditions, each condition and the number of conditions— (a) must be no more onerous than is required to reduce the likelihood that the accused may do a thing mentioned in subsection (1)(a) to (d); and (b) must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused; and S. 5AAA(2)(c) amended by No. 26/2017 s. 16(3). (c) subject to subsection (3), must be consistent with each condition of each family violence intervention order, family violence safety notice or recognised DVO to which the accused is subject. S. 5AAA(3) amended by No. 26/2017 s. 16(4). (3) A bail decision maker may impose a condition that is inconsistent with a condition of a family violence intervention order, family violence safety notice or recognised DVO if the bail decision maker is satisfied that the proposed condition will better protect the safety or welfare of— (a) an alleged victim of the offence with which the accused is charged; or (b) a protected person (within the meaning of the **Family Violence Protection Act 2008**). Note to s. 5AAA(3) substituted by No. 26/2017 s. 16(5). Sections 175AA, 175AB and 175AC of the **Family Violence Protection Act 2008** provide that if it is not possible to comply with both a bail condition and a family violence safety notice, a family violence intervention order or a recognised DVO, the safety notice, intervention order or recognised DVO prevails to the extent of the inconsistency. S. 5AAA(3A) inserted by No. 32/2024 s. 902(1), amended by No. 34/2025 s. 16(3). (3A) Subsections (2) and (3) apply in relation to Part 2A conditions in the same way that they apply in relation to any other condition. S. 5AAA(4) amended by No. 32/2024 s. 905(1). (4) Without limiting section 5(2), a bail decision maker may impose all or any of the following conditions about the conduct of an accused— (a) reporting to a police station; (b) residing at a particular address; (c) subject to subsection (5), a curfew imposing times at which the accused must be at their place of residence; (d) that the accused is not to contact specified persons or classes of person; Witnesses, alleged victims or co-accused. (e) surrender of the accused's passport; (f) geographical exclusion zones, being places or areas the accused must not visit or may only visit at specified times; Not attending a gaming venue, a venue that sells alcohol or a point of international departure. (g) attendance and participation in a bail support service; Note to s. 5AAA(4)(g) inserted by No. 28/2023 s. 34(1). If the accused is an Aboriginal person, see subsection (4A). (h) that the accused not drive a motor vehicle or carry passengers when driving a motor vehicle; (i) that the accused not consume alcohol or use a drug of dependence within the meaning of the **Drugs, Poisons and Controlled Substances Act 1981** without lawful authorisation under that Act; (j) that the accused comply with any existing intervention orders; (k) any other condition that the bail decision maker considers appropriate to impose in relation to the conduct of the accused. S. 5AAA(4A) inserted by No. 28/2023 s. 34(2). (4A) If a bail decision maker is imposing a condition referred to in subsection (4)(g), and the accused is an Aboriginal person, the bail decision maker must take into account that it is important for the bail support services that Aboriginal people attend and participate in to be Aboriginal bail support services where that is appropriate, and where such services are available. In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account the issues set out in section 3A(1). (5) If a bail decision maker imposes a curfew on an accused as a conduct condition, the period of curfew imposed must not exceed 12 hours within a 24-hour period. (6) A condition imposed by a bail decision maker continues to be binding on the accused until it is varied or revoked or the matter in relation to which it was imposed is finally determined by a court. S. 5AAA(7) inserted by No. 32/2024 s. 902(2), substituted by No. 34/2025 s. 14. (7) A bail decision maker must not impose an electronic monitoring condition except— (a) in accordance with subsection (8); or (b) in accordance with Part 2A.