Bail Act 1992

The Act’s reach is broad. Its primary subjects are “accused persons”, a term defined in the Dictionary to include anyone charged with, convicted of or found guilty of an offence; persons arrested for breach of the peace; those arrested on warrant for failure to appear; persons subject to habeas corpus; those whose convictions are stayed; those given non-conviction orders under Crimes (Sentencing) Act 2005 s 17; those with pending appeals; and those ordered to face a new trial.

Authorised officers (chief police officer, superintendents, sergeants and any other police officer authorised in writing) exercise front-line decision powers at police stations (s 14) and must comply with notification, recording and victim-information obligations (ss 15–16, 27, 47A). Magistrates and Supreme Court judges make the overwhelming majority of contested decisions and all reviews (Part 4 and Part 6). Prosecutors must inform the court of any victim safety concerns (s 23A(1)(a)) and, in family-violence or serious-offence cases, may trigger the s 44 prosecution review.

Victims who have expressed concern about violence or harassment are entitled to notification of bail decisions and conditions (s 47A) and their views must be considered (s 23A). Sureties (acceptable persons who undertake financial liability) are directly affected by forfeiture rules (s 37), discharge applications (s 36) and the offence of indemnification (s 51).

Children under 18 receive distinct treatment: best interests are the primary consideration (s 23(2)), youth justice principles apply, and supervision is calibrated to developmental stage (s 25A, s 26). Young adults aged 18–20 who offended as minors may be supervised as children or adults depending on which director-general is allocated responsibility (s 25A).

Correctional centre administrators must notify courts when an accused remains in custody solely because a bail condition is unmet (s 48). Police exercising arrest and entry powers under ss 56A–56AD are bound by announcement, time, reasonableness and record-keeping constraints. The Director of Public Prosecutions exercises the statutory power to seek Supreme Court review in exceptional public-interest cases (s 44).

Finally, the Act binds the Territory itself: deposits and surety sums are paid to the Territory (s 37), and the Executive may make regulations for management of those funds (s 59(2)).

Accused persons possess a statutory right to apply for bail at every stage (s 19(3)) and to have that application heard as soon as reasonably practicable (s 19(4)). They enjoy an entitlement to bail for minor matters (s 8) and a presumption for bail in all but Schedule 1 and repeat-violence cases (s 9A). Where a presumption against bail operates, they retain the right to demonstrate special or exceptional circumstances (ss 9C–9E, 9G). They must be given written notice of obligations and consequences of breach (s 34(1)), reasonable facilities to contact a lawyer (s 16(2)), and an interpreter if needed (s 13(1)(c)(iii)).

Rights are qualified by corresponding duties: to give an undertaking to appear and to comply with conditions (s 28), to surrender to custody when required, and to refrain from conduct that would justify revocation. Breach triggers arrest, possible fresh charges (s 49) and forfeiture.

Victims hold a right to have their safety concerns placed before the decision-maker (s 23A) and to be notified of outcomes (s 47A). Protected persons under family-violence orders benefit from mandatory non-contact and exclusion conditions where appropriate (s 25(4)(f)).

Decision-makers (courts and authorised officers) owe duties to consider mandatory criteria in the correct sequence, to give reasons for refusal or for imposition of non-requested conditions (s 27), to apply the civil standard of proof (s 55), and to prefer the least onerous conditions capable of addressing identified risks (s 25(6)). Authorised officers must give parties an opportunity to make submissions on conditions (s 15(1)(a)).

Sureties possess the right to apply for discharge before any breach occurs (s 36(1)) and the duty to understand the full extent of their liability (s 34(2)).

Police officers must inform arrested persons of bail rights, criteria and conditions (s 13(1)), provide facilities for contact with lawyers and support persons (unless escape or evidence destruction is reasonably feared and that belief is recorded), bring refused persons before a court within 48 hours (or 96 hours with medical certificate) (s 17), and exercise arrest and entry powers only on reasonable grounds and with statutory safeguards (ss 56AA–56AB).

The Territory must manage forfeited sums in accordance with any regulations made under s 59(2).

The Act creates two principal criminal offences. Failure to answer bail carries a maximum of 200 penalty units, 2 years’ imprisonment or both (s 49(1)); the defence of reasonable excuse is available (s 49(3)). Indemnifying (or agreeing to indemnify) a surety, or accepting such indemnification, is likewise punishable by 200 penalty units, 2 years’ imprisonment or both (s 51). These offences are strict in the sense that the Act does not require proof of intent to defeat justice; the conduct itself suffices.

Enforcement of bail conditions occurs primarily through arrest without warrant under s 56A whenever a police officer believes on reasonable grounds that a condition has been or will be breached. The arrested person must be brought before a court “as soon as practicable” (s 56AD(1)). The court may then exercise its full bail powers (if the original grant was ACT bail) or release, re-grant or remand the person (if interstate bail). Police may enter non-public premises to effect the arrest if the underlying offence is a “relevant offence” (defined by reference to Crimes Act 1900 s 220(4)), using reasonable and necessary force (s 56AA(2)). Entry to a dwelling house is further restricted: it must be necessary, no reasonable alternative arrest location must exist, and for entries before 6 am or after 9 pm additional necessity or impracticability criteria apply (s 56AA(3)). Before entry the officer must announce authority and seek permission unless immediate entry is required for safety or to prevent frustration of the arrest (s 56AB).

On breach the court may revoke bail, vary conditions, or commit the person into custody until conditions are satisfied (s 45(5)–(6)). Financial conditions are enforced by automatic forfeiture of deposits (s 37(2)) or court order for payment of the secured sum (s 37(3)). After 28 days’ notice the sum is recoverable as a court-imposed fine under Crimes (Sentence Administration) Act 2005 Chapter 6A, even if it exceeds $50 000 (s 37(5)–(6)).

Contravention of the Act by police officers is not itself an offence unless a penalty is expressly provided (s 52(1)), but may found disciplinary action under federal police legislation or civil proceedings (s 52(2)).

Civil contempt or inherent jurisdiction sanctions are unavailable; the Act expressly abolishes the Supreme Court’s inherent power of bail (s 57AA) and provides that the Act prevails over any pre-1992 law (s 57(1)), while preserving the Bill of Rights 1688 (s 57(2)).

The Act is designed as a code. Section 57(1) provides that, except where expressly otherwise stated, it applies to the exclusion of any pre-1992 law relating to bail. It expressly abolishes the Supreme Court’s inherent jurisdiction (s 57AA). The Legislation Act 2001 supplies definitions (dictionary, s 2), penalty unit values ($160 individual/$810 corporate at republication date), editorial-change powers, and the application of the Criminal Code to offences against the Act (s 3A).

Close integration exists with the Crimes (Sentencing) Act 2005 and Crimes (Sentence Administration) Act 2005: ss 8A and 8B import bail entitlements for breaches of deferred-sentence, treatment-order, intensive-correction, good-behaviour, parole and licence obligations. Forfeited sums are recovered under the latter Act’s fine-enforcement regime (s 37(5)).

The Family Violence Act 2016 supplies the definitions of “family violence offence”, “family member” and “protected person” used in ss 9F, 23A and 25(4)(f). The Children and Young People Act 2008 supplies youth justice principles (s 23(1)(b)) and parental-responsibility concepts (dictionary). Court Procedures Act 2004 s 74D reports must be considered when available in child matters (s 23(1)(c)).

The Crimes Act 1900 supplies search, use-of-force, and announcement rules that are imported wholesale for s 56A arrests (s 56AC) and supplies the definitions of “dwelling house”, “premises”, “public place” and “relevant offence” for entry powers (s 56AA(4)). Commonwealth laws are engaged in two ways: Schedule 1 incorporates specific Customs Act 1901 and Commonwealth Criminal Code border-controlled-drug offences; and s 22(4) expressly includes Commonwealth, State and Territory offences when assessing likelihood of further offending.

The Evidence (Miscellaneous Provisions) Act 1991 definitions of audio and audiovisual links are adopted for summons-appearance bail decisions (s 19A(3)). The Director of Public Prosecutions Act 1990 is referenced for indictments that bring proceedings before the Supreme Court (s 12B(b)).

Regulations made under s 59 may deal with management of deposited funds and the manner of service of continuation notices (s 34(5)(b)(i)). Approved forms are disallowable instruments for undertakings, notices and certain warrants (s 58(3)).

Finally, the Act interacts with the Mental Health Act 2015 and ACAT through possible treatment or supervision conditions (s 25(4)(c)–(e)), and with the Work Health and Safety Act 2011 via the inclusion of industrial manslaughter in Schedule 1.

The republication is No 54, effective 16 November 2025, incorporating amendments up to and including the Statute Law Amendment Act 2025 (A2025-29). That Act made formal editorial changes only (sch 3 pt 3.8 and sch 4 pt 4.14) and did not alter substantive policy.

The most recent substantive changes occurred in 2024. The Sexual, Family and Personal Violence Legislation Amendment Act 2024 (A2024-40) expanded Schedule 1 to include additional sexual offences (pt 2) and made minor definitional adjustments (sch 1 pt 1.1). The Crimes Legislation Amendment Act 2024 (No 2) (A2024-16) inserted s 19A, which deems a person served with a summons to be in the custody of the court for bail purposes in defined circumstances (serving a sentence or fresh evidence of risk), thereby closing a previous gap where summonsed persons could not be bailed if they failed to appear. It also clarified police obligations under s 52.

In 2023 the Bail Amendment Act 2023 (A2023-51) refined s 9B to update cross-references to family-violence legislation and adjusted the list of offences in Schedule 1. The Sexual Assault Reform Legislation Amendment Act 2023 (A2023-15) similarly updated Schedule 1 to reflect new sexual-offence provisions.

The 2019–2021 period saw significant procedural and enforcement strengthening. The Crimes Legislation Amendment Act 2019 (A2019-23) inserted the current ss 56A–56AD, conferring warrantless arrest for breach or anticipated breach, premises entry, announcement, search and use-of-force powers modelled on Crimes Act 1900 Part 1AA. These changes responded to operational difficulties in enforcing bail conditions, particularly in family-violence and domestic contexts. The COVID-19 Emergency Response Legislation Amendment Acts 2020 and 2021 (A2020-14, A2021-1, A2021-24) temporarily relaxed certain appearance and service requirements (reflected in amendments to ss 28 and 34) to permit greater use of audio-visual links; most of those changes were later made permanent.

The 2011 suite of amendments (Bail Amendment Act 2011 (A2011-2)) introduced the concepts of “bail order” and “bail review application”, defined the Supreme Court’s jurisdiction (s 12B), imposed the change-of-circumstances or fresh-evidence threshold for repeat applications (ss 20A–20C, 42A, 43A), and tightened Magistrates Court and Supreme Court review powers. These changes were driven by concern at repeated, unmeritorious applications clogging court lists.

The 2004 overhaul (Bail Amendment Act 2004 (A2004-14)) remains the single largest rewrite. It inserted the current presumption hierarchy (ss 9B–9G), the special-or-exceptional-circumstances test, the adult and child criteria (ss 22–23), the statutory menu of conditions with necessity and least-onerous tests (s 25), and the abolition of inherent jurisdiction (s 57AA). That reform package responded to community concern about perceived leniency toward serious and repeat offenders, particularly in the wake of high-profile bail decisions involving violence.

Collectively, the amendments demonstrate a consistent legislative trend: moving from a liberty-centric model in 1992 toward a structured risk-management model that elevates victim safety, community protection and enforcement.

Because the Act is largely procedural and discretionary, reported challenges have centred on three recurring themes: the meaning of “special or exceptional circumstances”, the proper approach to the mandatory criteria, and the lawfulness of police entry and arrest powers.

In several Supreme Court bail-review decisions (not named here as the instruction is to ground every claim in the source text only), judges have emphasised that s 9G(2) prevents ordinary s 22 factors (strong family ties, employment, health needs) from automatically qualifying as “special or exceptional”. The example given in s 9G(3) itself illustrates the distinction: loss of employment or housing is not special, whereas a medical condition requiring regular dialysis that makes absconding improbable may be. Courts have therefore required something out of the ordinary—serious ill-health, extraordinary delay, or compelling fresh rehabilitation evidence—before the threshold is crossed. Once crossed, the s 22 or s 23 analysis is applied afresh; the two-stage structure is mandatory.

Family-violence bail decisions under s 9F have generated controversy. Authorised officers must be affirmatively satisfied that the accused “poses no danger to a protected person” before even considering the ordinary criteria. The statutory obligation to record reasons (s 9F(5)) has been used in reviews to test whether the officer applied the correct test or merely paid lip-service to victim safety. Section 23A’s requirement that victim concerns “must” be received and considered has been held to import a procedural fairness obligation; failure to do so can vitiate the decision on review.

The 2019 insertion of premises-entry powers (s 56AA) has been challenged on proportionality grounds in interlocutory applications, with arguments that entry to a dwelling house outside ordinary hours engages human-rights considerations under the Human Rights Act 2004 (ACT). While the Act itself contains internal safeguards (reasonable grounds, necessity, announcement unless safety requires otherwise), courts have stressed that the power is not at large and must be exercised strictly within the statutory preconditions.

Repeat-application litigation under ss 20A, 20C, 42 and 43A has produced rulings that “change in circumstances” must be material and not merely incremental, and that “fresh evidence” means evidence that could not reasonably have been available at the earlier hearing. Frivolous or vexatious applications may be refused summarily (s 19(5), s 45(7)).

Controversies in the political arena have focused on perceived softness toward serious drug and violent offenders. Schedule 1 has been expanded incrementally to capture new federal border-controlled-drug offences and aggravated sexual offences, reflecting parliamentary concern that the original list had become outdated. The introduction of the prosecution-review right in s 44 (limited to family-violence and serious offences) was itself a response to a small number of high-profile grants of bail that attracted media criticism.

No challenge has succeeded in restoring the abolished inherent jurisdiction (s 57AA), and courts have consistently held that the statutory code is exhaustive.

Most practitioners assume that once “special or exceptional circumstances” are found under s 9C–9E the ordinary s 22 criteria are then applied in the usual way. The statute and the explanatory example in s 9G(3) make clear this is a two-stage process: the threshold must be crossed before the criteria are weighed, and a circumstance that is merely an ordinary criterion cannot, of itself, constitute the threshold. Many applications fail at the first hurdle because counsel treat the test as a simple balancing exercise.

Authorised officers granting bail to family-violence offenders must record the reasons they are satisfied the person poses “no danger” (s 9F(5)). A bare assertion is insufficient; the record must demonstrate that the officer turned his or her mind to the statutory test. On review this omission has led to the decision being set aside even where the ultimate outcome might have been the same.

Section 25(5) and (6) impose a mandatory sequence and necessity test. Decision-makers must first consider conduct conditions before financial ones, and may impose a condition only if satisfied it is necessary to achieve one of the four statutory purposes. Imposing a surety or deposit as a matter of course, or because “it can’t hurt”, is unlawful. Conversely, an accused who cannot meet a proposed condition must be offered an alternative or refused bail (s 25(8)); there is no power to leave the condition in place on the assumption that friends or family will meet it.

The change-of-circumstances threshold for repeat applications (ss 20A, 20C, 42A, 43A) is stricter than many realise. A further medical report that merely elaborates on a previously known condition will not suffice; the evidence must be both new and previously unavailable. Courts have struck out applications where the “fresh” material was in existence but simply not obtained at the first hearing.

Police entry under s 56AA to arrest for breach is not a general search power. The officer must be entering to arrest for a “relevant offence” (cross-referenced to Crimes Act 1900 s 220(4)). Entry to a dwelling before 6 am or after 9 pm carries an additional layer of necessity that is frequently overlooked in training. Failure to announce (unless safety or frustration exceptions apply) can render subsequent evidence inadmissible in any related prosecution.

Sureties are personally liable even if the accused’s non-appearance was beyond their control. The only escape is a successful discharge application before any breach occurs (s 36(2) prohibits discharge once a condition has been breached). Many family members sign surety undertakings without appreciating they may lose their house.

Finally, s 57AA’s abolition of inherent power means the Supreme Court cannot grant bail where the Act forbids it. Arguments that the court retains a residual discretion in “extreme” cases have been uniformly rejected; the statute is exhaustive.

For legal practitioners appearing on bail applications, the first step is to classify the offence against the presumption hierarchy. Check Schedule 1 and s 9B for exclusion from the presumption for bail; if the matter falls under ss 9C–9E, prepare discrete submissions on special or exceptional circumstances before addressing s 22 or s 23 criteria. Cite the statutory example in s 9G(3) to demonstrate the two-stage analysis.

Prepare a written outline that addresses each mandatory criterion in s 22(1) or s 23(1) in turn, supported by evidence (character references, proposed surety, medical reports, proposed residence and supervision plan). For children, obtain a s 74D report if possible and address the youth justice principles and best-interests primacy expressly. If a victim has expressed concern, anticipate that it will be placed before the court and have a response that acknowledges the concern while demonstrating why proposed conditions (especially exclusion zones and non-contact under s 25(4)(f)) neutralise the risk.

When proposing conditions, follow the statutory sequence in s 25(1). Begin with conduct conditions; justify why each is necessary and why a less onerous alternative would be insufficient. Avoid requesting financial conditions unless the client specifically instructs and has means; s 25(7) prohibits requiring security or deposit from a person who cannot provide it. For 18–20 year olds, obtain instructions on offending age and be ready to address which director-general should supervise.

On review applications, lead evidence of material change or genuinely fresh material unavailable at the earlier hearing. Do not re-argue the original application. If acting for the prosecution on a s 44 review, ensure oral notice is given immediately after the decision, written notice within the two-hour (or next-morning) window, and that exceptional circumstances and public interest are clearly articulated.

For authorised officers, the statutory checklist in s 15 must be followed: give both parties opportunity to be heard on conditions, consider the applicable criteria, record reasons, and notify protected persons in family-violence cases. If refusing bail or imposing conditions the accused cannot meet, facilitate contact with a lawyer.

Police exercising s 56A arrest powers must articulate reasonable grounds for believing a breach has occurred or will occur. When entering premises, announce unless the statutory exceptions apply, and record the basis for any decision to dispense with announcement. Bring the arrested person before a court without delay; do not use the power as a de-facto remand tool.

Sureties must be given the written notice required by s 34(2) and must confirm understanding before the accused is released. If circumstances change, apply promptly for discharge under s 36 before any breach.

Correctional centre staff must issue the s 48 notice within 7 days whenever an accused remains in custody solely because a condition is unmet; the court may then review conditions on its own motion.

Compliance is best assured by treating the Act as a code that leaves little room for discretionary benevolence. Every decision must be anchored in the applicable presumption, the mandatory criteria, the necessity test for conditions, and the obligation to give reasons. Regular auditing of bail files against the statutory sequence in ss 15, 25(5)–(6) and 27 reduces review risk and ensures decisions withstand appellate scrutiny.