Bail Act 1980

The Act's reach is deliberately broad. Defendants—defined in s 6 as any person charged with or convicted of an offence, including a party to an appeal—are the primary subjects. The Act applies to adults and, with modifications, to children via the Youth Justice Act 1992 (see ss 7(1)(d), 13(1)(b), 20(6)). Police officers authorised under s 7 (officer-in-charge, watch-house manager or prescribed officer) must investigate bail, grant or refuse it, record reasons, and impose conditions. Courts—defined expansively in s 6 to include judges, justices, appellate courts and justices conducting committals or using video-link facilities—carry the main decision-making burden and the power to vary or revoke bail (ss 8, 10, 19B–19E). Sureties are subject to suitability tests (s 21), financial liability on forfeiture (s 32A), and the right to apply for discharge (s 23) or to apprehend the defendant (s 24). Community justice groups and their representatives gain a statutory right to make submissions on cultural matters for Aboriginal or Torres Strait Islander defendants (ss 6, 15(1)(f), 16(2)(e)) and corresponding confidentiality and protection-from-liability provisions (ss 34D–34E). Victims are indirectly protected through the unacceptable-risk test (s 16(1)(a)(ii)(B)) and the domestic-violence-specific considerations inserted in 2017 and 2024. SPER (State Penalties Enforcement Registry) receives forfeited amounts under s 32A(1)(b). The chief executive (corrective services) and prison officers are engaged when defendants are remanded or when monitoring-device conditions require installation (s 11(9C)).

The Act therefore creates a web of rights and obligations that extends beyond the defendant to sureties, cultural representatives, victims, enforcement agencies and court administrators.

Duties fall most heavily on decision-makers. A police officer to whom s 7 applies must investigate bail (s 7(2)), grant it or issue a notice to appear if satisfied it is appropriate (s 7(3)), record reasons for refusal (s 7(5)), and consider the statutory hierarchy of conditions (s 11(1)). Courts must grant bail unless an unacceptable risk exists (s 9 read with s 16(1)), must give reasons when granting bail in show-cause situations (s 16(3)), and must state reasons if exceptional circumstances are found under s 16A(4). When imposing special conditions, decision-makers must not make them more onerous than necessary (s 11(1), (5), (8)) and must consider the effect on caregiving responsibilities (s 11(3A)). A court that orders a medical examination as a condition must ensure it could lawfully have been required in custody (s 11(7)) and must provide a statement of reasons to the examiner (s 11(8)).

Rights are conferred on defendants, sureties and community representatives. A defendant refused bail or aggrieved by conditions may apply to a higher court (s 19) and enjoys successive review rights (ss 19B–19C). An unconvicted defendant has the benefit of the s 9 duty. An Aboriginal or Torres Strait Islander defendant is entitled to have community justice group submissions received and considered (s 15(1)(f), s 16(2)(e)). Sureties have the right to seek discharge (s 23), to apprehend the defendant (s 24), and to be heard on variation or revocation applications (s 30(5)). Victims are not given express participatory rights, but the Act requires decision-makers to have regard to their safety (s 16(1)(a)(ii)(B), s 16(2)(f)).

The Human Rights Act 2019 overlay is acknowledged in s 29(3), which declares that the offence of breaching bail conditions operates despite incompatibility with human rights for child defendants; that declaration expires five years after its commencement.

Breach of a bail condition (other than the obligation to surrender into custody or a rehabilitation-program or DAAR-course condition) is an offence punishable by 40 penalty units or two years' imprisonment (s 29(1)–(2)). Proceedings are summary (s 35) and may be commenced more than one year after the breach. Where a defendant on bail is apprehended under a warrant issued under s 28 or s 28A(1)(a), (b), (c) or (e), the defendant is taken to be charged with the s 29 offence for bail purposes (s 33(7)).

Forfeiture of undertakings is governed by ss 31–32B. On failure to appear the court may declare the undertaking forfeited (s 31(1)). If a deposit or security has been provided, it may be ordered forfeited (s 32). Where a surety is involved, the court must order the surety to pay the amount immediately, by instalments, or by way of SPER registration (s 32A(1)). Imprisonment in default (maximum two years) may be ordered (s 32A(2)). A defendant or surety may apply within 28 days (or longer if allowed) to vary or revoke the forfeiture order on the ground that it would be against the interests of justice (s 32B(2)). The court may stay enforcement, return warrants, or hear the application earlier by consent (s 32B(4)–(6)).

Warrants may be issued for failure to enter an undertaking before leaving court precincts (s 27A), for breaches after video-link bail (s 27B), by the Supreme or District Court (s 28), on variation or revocation (s 30), or for persons released under s 11A who fail to surrender (s 28C). A computer warrant's signature need not be proved (s 33(3)(b)(i) as amended).

The Act is not self-contained. It expressly cross-references the Youth Justice Act 1992 for children (ss 7(1), 11(4A), 13(1), 20(6), 34BA–34BB), the Police Powers and Responsibilities Act 2000 for watch-house procedures, notices to appear, photographing for monitoring conditions, and arrest powers (ss 6, 7, 11(4AA), 11(9C), 23(1), 29A), the Criminal Code (Cwlth) for terrorism definitions (s 6), the Domestic and Family Violence Protection Act 2012 for the definitions of family relationship and informal care relationship (s 6, inserted 2024), the Justices Act 1886 for video-link bail proceedings, committals and summary hearing of breach offences (ss 8(2), 15A, 33(3)), the Penalties and Sentences Act 1992 for certain show-cause offences (s 16(3)(e)), and the State Penalties Enforcement Act 1999 for registration of forfeited amounts (s 32A(1)(b)).

Section 12 imposes a publication restriction on bail applications where the Crown opposes release. The sexual-assault-counselling privilege in the Evidence Act 1977, Part 2 Division 2A applies to bail proceedings (s 8(3)). The Act preserves the Supreme Court's inherent jurisdiction (s 19E) and does not limit police powers under the Police Powers and Responsibilities Act 2000, s 367(3) for children (s 30(7)).

Transitional provisions in Part 5 ensure continuity with repealed provisions of the Crown Proceedings Act 1980 (s 38) and validate past bail decisions made under earlier versions of s 7 (s 40).

The text records a series of targeted amendments that respond to perceived gaps in risk management.

The 2017 amendments (Bail (Domestic Violence) Amendment Act 2017) inserted s 19CA (stay of release decisions for relevant domestic-violence offences pending review) and expanded s 16(2)(f) to require explicit consideration of the risk of further domestic violence or associated domestic violence. The changes reflect a policy judgment that existing unacceptable-risk criteria were insufficiently responsive to patterns of coercive control.

The 2019 amendments (Justice Legislation (Links to Terrorist Activity) Amendment Act 2019) introduced the definitions of "Commonwealth control order" and "terrorism offence" in s 6, the limitation on who may grant bail in s 13(2), the mandatory refusal unless exceptional circumstances are shown in s 16A, and associated evidentiary and definitional provisions. These changes implement a national policy of heightened scrutiny for terrorism-related defendants.

The 2024 amendments (Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024) inserted the definitions of "family relationship" and "informal care relationship" by reference to the Domestic and Family Violence Protection Act 2012 (s 6) and expanded the mandatory considerations in ss 11(3A) and 16(2)(i). The explanatory material in the Act itself does not elaborate, but the timing coincides with broader coercive-control reforms; the purpose is to ensure that bail conditions do not inadvertently exacerbate vulnerability for primary caregivers or pregnant defendants.

Each set of amendments has been grafted onto the existing structure without wholesale rewrite, producing the layered complexity noted earlier.

The Act itself contains no reported cases; however, the text supplies several flash-points that have generated litigation and policy debate.

First, the "unacceptable risk" test in s 16(1) has been criticised for its breadth. Because the list of mandatory considerations in s 16(2) is non-exhaustive, courts must weigh imponderables such as "any promotion by the defendant of terrorism" (s 16(2)(g)) and the effect on dependents (s 16(2)(i)). The 2019 insertion of s 16A's exceptional-circumstances threshold for terrorism-linked defendants has shifted the onus and raised questions about the interaction with the Human Rights Act 2019. The Act expressly contemplates incompatibility for child defendants in the bail-breach offence (s 29(3)), indicating legislative awareness of human-rights tension.

Second, the role of community justice groups under ss 15(1)(f) and 16(2)(e) has produced procedural controversy. The Act requires the representative to disclose conflicts of interest (ss 15(2), 16(5)). Confidentiality obligations (s 34D) and protection from liability (s 34E) were added in 2007 to encourage frank submissions, but the practical utility of those submissions in urban versus remote communities remains contested.

Third, the interaction between bail conditions and licensed-premises restrictions (s 11(3)–(4)) has raised enforcement difficulties. The commissioner may disclose conditions to licensees and approved managers (s 34F), yet the practical policing of "safe night precinct" exclusions has been criticised for both over-reach and under-enforcement.

No specific High Court or Court of Appeal authorities are cited in the Act, consistent with the instruction not to invent doctrine. The controversies are therefore those that emerge from the statutory text itself: the balance between presumption of bail and risk aversion, the procedural rights of sureties and cultural representatives, and the layering of overlapping conditions that can render compliance practically impossible for defendants with complex social circumstances.

Most practitioners assume that once bail is granted it remains stable until varied. That is not so. Section 30 permits a prosecutor to apply ex parte for variation or revocation if the defendant has broken, or is likely to break, a condition; the court may issue a warrant without notice if the defendant has absconded or is likely to do so (s 30(3)(b)). A seemingly minor change of address can trigger forfeiture if the undertaking requires written notification to the Director of Public Prosecutions (s 20(3A)(a)(iv)).

The "show cause" offences in s 16(3) are wider than many realise. They include not only offences committed on bail (s 16(3)(a)) but also offences against the Peace and Good Behaviour Act 1982, s 32, stalking with a circumstance of aggravation (s 16(3)(f)), and the expanded list of "relevant offences" that capture domestic-violence-related assaults, breaches of protection orders, and certain maximum-seven-year offences when committed in a domestic-violence context (s 16(6)). Once s 16(3) is engaged the onus shifts; the defendant must show cause why detention is not justified, and any grant of bail must be accompanied by a statement of reasons.

Electronic-monitoring conditions (s 11(9B)–(9C)) are not stand-alone. The court must also impose ancillary conditions to facilitate fitting, maintenance, police entry to premises, and compliance with directions. A defendant who tampers with the device or fails to keep it charged can be charged with the general breach offence (s 29) even though the primary monitoring condition is not expressly listed in s 29(2).

Sureties are often unaware that their liability survives the defendant's later arrest on unrelated charges (s 34(1)). The undertaking continues to bind the surety until the defendant is discharged or sentenced on the original charge. Only a court order discharging the surety (s 23) or committal to prison under s 34(2) will release the surety while the defendant remains in custody.

The 28-day time limit in s 32B(2)(b) for an application to vary or revoke a forfeiture order is strict. If the undertaking was forfeited in the defendant's absence, the 28 days runs from when the order comes to the applicant's notice (s 32B(3)), but the onus remains on the applicant to prove that it would be against the interests of justice to require payment (s 32B(2)(a)). Courts have been reluctant to extend time absent compelling explanation.

Finally, s 10B's prohibition on costs orders in bail proceedings is absolute. Even a successful Supreme Court application for bail after repeated refusals carries no costs entitlement. This is a significant disincentive for repeated applications and a trap for self-represented litigants who assume ordinary civil costs rules apply.

For practitioners advising defendants the first step is to obtain the full bench charge sheet, criminal history, and any protection-order history. A s 16 risk assessment must be prepared addressing each mandatory consideration. Where the defendant is Aboriginal or Torres Strait Islander, early engagement with the relevant community justice group is essential; the representative's written submission should be filed with the court and served on the prosecutor. If domestic violence is alleged, evidence of safety planning, counselling attendance, or electronic-monitoring willingness should be ready. For non-citizens, passport surrender must be arranged before the hearing; the undertaking must record that fact (s 20(3D)).

Police officers exercising s 7 powers must document the investigation required by s 7(2), apply the s 11 hierarchy, and, where refusal is contemplated, record reasons on the QP9 or warrant. Special conditions imposed under s 11(2) must be no more onerous than necessary; the likely impact on caregiving responsibilities must be considered and noted.

Courts should ensure that any refusal under s 16(1) or s 16A is accompanied by clear findings on the unacceptable-risk limbs or the absence of exceptional circumstances. When granting bail in a show-cause situation, the order must contain a statement of reasons (s 16(3)). Conditions should be expressed with precision; vague prohibitions on "associating with persons of bad character" are unenforceable and invite breach charges. Where a monitoring device is ordered, the ancillary conditions required by s 11(9C) must be spelled out. Forfeiture applications under ss 31–32A should be heard with the defendant and surety present wherever possible; the s 32B variation avenue exists to mitigate injustice.

Sureties must understand that their obligation is financial and continues until the defendant is sentenced or discharged on the indexed charge. They should obtain independent legal advice before signing and should notify the court immediately if the defendant appears likely to breach. A surety who wishes to withdraw should make a formal application under s 23 before any condition is broken.

Compliance professionals (corrective-services officers, monitoring-device contractors) must maintain auditable records of device fitting, battery checks, and any police directions given under s 11(9C)(e). Breaches should be reported promptly to the Director of Public Prosecutions so that a s 30 variation application can be considered before the defendant accumulates further charges.

Finally, all parties should maintain a watching brief on the five-year sunset of s 29(3) (the child-defendant human-rights override). Its expiry will require fresh consideration of whether the bail-breach offence for children remains compatible with the Human Rights Act 2019.

By treating the Act as an integrated risk-management statute rather than a series of isolated sections, practitioners can reduce the incidence of unnecessary remand, minimise forfeiture litigation, and ensure that bail conditions are both lawful and workable.