This Act sets the rules for admitting, varying, revoking and enforcing bail: police and judicial bail procedures; conditions, recognizances and money deposits; arrest and forfeiture for breaches; appeals; and special limits and closed‑court powers for ‘terrorism‑linked’ persons. It affects accused people, sureties, police, judges and prosecutors. It assigns decision‑making to judicial officers and police and places financial risk on depositors/sureties through forfeiture. Practical trade‑offs include individual liberty versus public‑safety controls, administrative compliance costs and judicial discretion in imposing conditions.
Mechanically, the text sets out the statutory framework for arrest, release on bail, conditions of bail, enforcement of those conditions, financial security for bail, forfeiture and recovery of bail monies, recognizances, and appeals relating to bail. It is organised in Parts that cover preliminary definitions (Part 1), a discrete regime for “terrorism‑linked persons” (Part 1A), police bail (Part 2), judicial bail orders (Part 3), forfeiture and enforcement of bail money and recognizances (Part 4), a statutory appeal route for bail decisions (Part 4A), and miscellaneous procedural rules (Part 5). Key procedural features are dispersed through the sections cited below.
Important mechanical changes or powers created by the Act include:
a prohibition on non‑judicial officers admitting a “terrorism‑linked person” to bail, and a prohibition on judges or magistrates admitting such a person other than in “exceptional circumstances” (see s 4B(1)-(3)); a police power to arrest a person admitted to bail if the police officer reasonably suspects the person is a terrorism‑linked person (s 4C(1)-(3)); and ancillary procedures including suspension of bail on arrest (s 4C(4)) and powers to hear proceedings in closed court where terrorism‑linked status is at issue (s 4D(a)-(c)).
prescribed duties on the person who admits someone to police bail: hand a notice stating when and where the person must appear (s 5(1)(a)), endorse and sign the notice (s 5(1)(b)-(c)), and the ability to impose conditions including deposit of money and reporting requirements (s 5(2)-(3A)). Contravention of police bail notices or conditions carries summary penalty (s 5(4)).
powers for judicial officers to make bail orders with conditions, to require the accused to sign an instrument acknowledging terms prior to release (s 7(2)), to impose recognizances or require deposits (s 7(5)(a)-(b)), to require assessment for or participation in an intervention program subject to consent and availability (s 7(5)(c)-(d); s 7(5A)), and to vary or revoke bail on further appearances (s 25).
Current sections
Direct links to the current provisions in Bail Act 1994.
designed to address behavioural problems (including problem gambling), substance abuse, alcohol abuse or mental impairment;
judicial officer means a person empowered to exercise jurisdiction in a court, whether or not that person is sitting as a court and includes a single justice;
(2) Where a magistrate is authorized by law to exercise a power that may be exercised by 2 or more justices, references in this Act to justices are taken to include references to a magistrate.
4
Application of this Act
4 Application of this Act
Where it is provided by any other Act or law that a person may be admitted to bail, that bail may be granted to a person or that bail may be revoked or varied, however that provision is expressed, this Act applies to that admission to bail or grant, revocation or variation of bail.
control order has the same meaning as in section 100.1 of the Criminal Code 1995 of the Commonwealth;
terrorism-linked person means a person who –
(a) has been convicted of a terrorism offence; or
(b) is subject to a control order;
terrorism offence means –
(a) an offence referred to in paragraph (a), (b) or (c) of the definition of terrorism offence in section 3 of the Crimes Act 1914 of the Commonwealth; and
(b) an offence against the former Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth; and
(c) an offence, in relation to terrorism, that –
(i) is an offence under an Act of the Commonwealth, this State, another State or a Territory; and
(ii) is prescribed.
4B
Limitations on grant of bail to terrorism-linked person
4B Limitations on grant of bail to terrorism-linked person
(1) A person, other than a judge or magistrate, must not admit a person to bail if the person is satisfied that the other person is a terrorism-linked person.
(2) A judge or a magistrate must not admit a person to bail if the judge or magistrate is satisfied that the person is a terrorism-linked person.
(3) Subsection (2) does not apply in relation to a person if the judge or magistrate is satisfied that there are exceptional circumstances.
4C
Arrest of terrorism-linked person admitted to bail
4C Arrest of terrorism-linked person admitted to bail
(1) A police officer may arrest a person who is admitted to bail by a person other than a judge or magistrate, if the police officer suspects on reasonable grounds that the person admitted to bail is a terrorism-linked person.
(2) A police officer may arrest a person who is admitted to bail by a judge or magistrate, if –
(a) the person was not admitted to bail because a judge or magistrate found, under section 4B(3) , that there were exceptional circumstances in relation to the person; and
(b) the police officer suspects on reasonable grounds that the person is a terrorism-linked person.
(3) A police officer may arrest a person who is admitted to bail by a judge or magistrate, if –
(a) the person was not, before he or she was admitted to bail, a terrorism-linked person; and
(b) the person, after his or her release on bail by the judge or magistrate, has become a terrorism-linked person.
(4) On the arrest of a person under this section, the bail of the person is suspended.
(5) Subsection (4) ceases to apply to a person if the person arrested is later released unconditionally.
(6) Section 11 applies to a person arrested under this section as if the person had been arrested under section 10 .
(7) Despite subsection (6) , section 11(1) does not apply in relation to a justice in respect of a person arrested under this section unless the justice is a magistrate.
(8) This section applies in relation to a person who has made an application for bail, or who is admitted to bail, before, on or after the day on which this section commences.
4D
Access to proceedings, &c., in relation to terrorism-linked persons
4D Access to proceedings, &c., in relation to terrorism-linked persons
[Section 4D Inserted by No. 14 of 2018, s. 4, Applied:14 Dec 2018] In any proceedings before a judge, a magistrate or a court, in relation to bail in respect of a person who is, or is alleged by a party to the proceedings to be, a terrorism-linked person, the judge, magistrate or court may make any one or more of the following orders:
(a) that all or part of the proceedings are to be heard in closed court;
(b) that only persons, or members of a class of persons, specified by the judge, magistrate or court may be present during all or part of the proceedings;
(c) that the publication of a report of all or part of the proceedings, or of any information that is disclosed in, or referred to in, the proceedings, is prohibited.
(a) hand to the person admitted to bail on his or her release from custody a notice specifying the day on which and the time and place at which he or she is required to appear before justices; and
(b) endorse on a copy of the notice a statement that the notice was handed to the person admitted to bail on his or her release from custody; and
(a) that the person admitted to bail must appear before justices on the day and at the time and place specified in a notice referred to in subsection (1)(a) ; and
(b) that the person admitted to bail must deposit, if the person admitting him or her to bail under either of those sections considers it desirable and so requires, a sum to be forfeited to the Crown if the person admitted to bail fails to appear before justices as required by paragraph (a) .
(3) *[Section 5 Subsection (3) substituted by No. 51 of 1995, s. 4 ]*If a person is admitted to bail, that person must comply with any other conditions (including conditions controlling the conduct of the person) –
(a) that the person admitting him or her to bail considers necessary or desirable; and
(b) that are specified in the notice referred to in subsection (1)(a) .
(3A) *[Section 5 Subsection (3A) inserted by No. 51 of 1995, s. 4 ]*For the purposes of but without limiting subsection (3) , conditions controlling the conduct of a person may include any one or more of the following:
(a) a condition requiring the person to report at a specified place at a specified time;
(b) a condition limiting the person's movements and social intercourse;
(5) Where a person admitted to bail fails to appear before justices on the day and at the time specified in a notice referred to in subsection (1)(a) , the justices may issue a warrant for his or her arrest.
(5A) *[Section 5 Subsection (5A) inserted by No. 64 of 1994, s. 14 ]**[Section 5 Subsection (5A) substituted by No. 51 of 1995, s. 4 ]*If a police officer has reasonable grounds to believe that a person who was admitted to bail has contravened, or is about to contravene, a notice referred to in subsection (1)(a) or a condition of the notice, the police officer may arrest that person.
(5B) *[Section 5 Subsection (5B) inserted by No. 64 of 1994, s. 14 ]**[Section 5 Subsection (5B) substituted by No. 51 of 1995, s. 4 ]*Where a person arrested under subsection (5A) is taken before a justice, the justice is to proceed as provided in section 34A of theJustices Act 1959 .
(5C) *[Section 5 Subsection (5C) inserted by No. 64 of 1994, s. 14 ]*On the arrest of a person under subsection (5A) the bail of that person is revoked.
(7) Money deposited under subsection (2) on the admission of a person to bail is to be paid to the clerk of petty sessions for the court held at the place specified in the notice.
Part 3
Orders for Bail
Part 3 Orders for Bail
6
Application of this Part
6 Application of this Part
This Part applies to an order for, or with respect to, bail made by a judicial officer.
(b) must not be released from custody until that person signs a document referred to in paragraph (a) in the presence of an authorized person acknowledging the terms of the order and that the person admitted to bail is bound by those terms.
(3) [Section 7 Subsection (3) amended by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] It is a condition of an order for bail, except an order made under section 117A (2) of theJustices Act 1959 , that the person admitted to bail must, unless otherwise ordered by a judicial officer, appear and surrender to the order of the court at the time and place specified in the order and to which, during the course of the subsequent proceedings, the hearing may from time to time be adjourned or to which the person may be remanded.
(4) An order for bail may be made subject to such other conditions as the judicial officer thinks desirable in the interests of justice and any such other condition may be expressed to take effect either before or after the person admitted to bail is released from custody.
(5) Without limiting the generality of subsection (4) , an order for bail may be made on condition that –
(a) a person must deposit a specified amount of money to be forfeited to the Crown if the person admitted to bail fails to appear before a court as required by subsection (3) or fails to comply with a condition of the order for bail; or
(b) [Section 7 Subsection (5) amended by No. 38 of 2015, s. 19, Applied:13 Oct 2015] one or more suitable persons (other than the person admitted to bail) must enter into a recognizance in the prescribed form before an authorized person to forfeit a specified amount of money if the person admitted to bail fails to appear before a court as required by subsection (3) or fails to comply with a condition of the order for bail; or
(a) the person consents to the imposition of such a condition; and
(b) the person is eligible for the services to be included in the program; and
(c) the intervention program is available for the person to participate in at a suitable place and time.
(6) A recognizance referred to in subsection (5) may require a suitable person to give security in such terms or in such manner as a judicial officer may order to better secure compliance with the recognizance.
7A
Circumstances in which Supreme Court may grant bail order
7A Circumstances in which Supreme Court may grant bail order
(1) An application for an order for bail may only be made to the Supreme Court in respect of a person if –
(a) the person is charged with either or both of the following crimes:
(i) murder;
(ii) treason; or
(b) the person has been committed to the Supreme Court in respect of an offence and has appeared in that court in respect of the offence.
(2) An application for an order for bail made to the Supreme Court under this section is to be made to a judge in chambers.
(3) A person who has applied for bail in accordance with subsection (2) must serve a copy of the application on the Director of Public Prosecutions.
8
Effect of bail order
8 Effect of bail order
(1) Subject to this Act, a person who is admitted to bail is entitled, after compliance with the requirements specified in section 7(2) and any conditions of the order for bail expressed to take effect before the release of that person, to be released from custody and to remain at liberty in accordance with that order.
(2) Subsection (1) does not entitle a person to be released if he or she may be otherwise lawfully held in custody.
9
Contravention, &c., of condition of bail order to be offence
9 Contravention, &c., of condition of bail order to be offence
[Section 9 Amended by No. 65 of 2007, s. 7, Applied:01 Jan 2008] A person who has been admitted to bail and who, without reasonable cause, contravenes the requirements specified in section 7(2) or any condition of an order for bail that has effect after the release of that person from custody is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both.
10
Power of arrest on contravention of condition of bail
10 Power of arrest on contravention of condition of bail
(1) Where a police officer has reasonable grounds to believe that a person –
(b) is about to contravene any such requirement or condition –
the police officer may arrest that person.
(2) *[Section 10 Subsection (2) substituted by No. 51 of 1995, s. 5 ]*On the arrest of a person by a police officer under subsection (1) , the bail of the arrested person is suspended.
(b) pursuant to a requirement specified in written advice given to that person in accordance with section 7(3A) .
Part 4
Forfeiture of Bail Money and Recognizances
Part 4 Forfeiture of Bail Money and Recognizances
13
Application of Part 4
13 Application of Part 4
The application of this Part extends to money deposited for bail under section 5(2)(b) as if it were money paid pursuant to an order for bail.
14
Deposit of money for bail
14 Deposit of money for bail
All money payable pursuant to an order for bail is to be paid to the appropriate officer.
15
Procedure for repayment of bail money
15 Procedure for repayment of bail money
(1) On the determination of the proceedings in respect of which a person has been admitted to bail the appropriate officer must, subject to subsection (2) , repay the money paid pursuant to the order for bail to the person who paid it.
(2) Where –
(a) a person admitted to bail appears before a court in accordance with the order for bail; and
(b) that person is convicted of the offence or breach of duty in respect of which the money was deposited –
the appropriate officer must, if so ordered by a judicial officer –
(c) appropriate any money so paid by that person, or so much of it as is required, to pay on behalf of that person any fine and costs payable on conviction; or
(d) if the money deposited for bail is less than any fine or costs so payable, appropriate it in part payment of the fine or costs –
and, on making any such appropriation, must pay the balance of that money, if any, to that person.
16
Procedure on non-appearance of person admitted to bail
16 Procedure on non-appearance of person admitted to bail
(1) [Section 16 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] If a person admitted to bail does not appear in accordance with the order for bail and the judicial officer presiding in the court in which that person is required to appear orders that the money deposited for bail by any person must be forfeited to the Crown, that money is payable to the Public Account.
(2) If –
(a) a person admitted to bail does not appear in accordance with the order for bail; and
(b) the judicial officer does not order that the money deposited for bail by that person is to be forfeited to the Crown; and
(c) while absent, that person is convicted of the offence or breach of duty in respect of which the money was paid –
the appropriate officer must, if so ordered by the judicial officer –
(d) appropriate that money, or so much of it as is required, to pay on behalf of that person any fine or costs payable on conviction; or
(e) if the money deposited for bail is less than any fine or costs so payable, appropriate it in part payment of the fine or costs –
and, on making any such appropriation, the appropriate officer must pay the balance of that money, if any, to that person.
(a) within 2 months after the failure of the person admitted to bail to appear in accordance with the order for bail; or
(b) within such further time as may be allowed by the court before which that person failed to appear–
show cause to that court why that money should be returned to that person.
(2) The court must enquire into the circumstances of the case and, if it thinks fit, may order the return of the whole or any part of that money to that person.
18
Procedure on order for return of money deposited for bail
18 Procedure on order for return of money deposited for bail
(a) the convicted person shows to the satisfaction of the court –
(i) that an order for forfeiture, or for forfeiture in full, as the case may be, would cause excessive hardship to that person or the dependants of that person; and
(ii) that the hardship would not be relieved by payment of the amount to be forfeited in instalments or by postponement of that payment to a specified date; or
(b) the court is satisfied that in the circumstances of the case it is just to do so –
the court may decline to make an order under that subsection or may order forfeiture in part only.
20
Forfeiture of recognizances
20 Forfeiture of recognizances
[Section 20 Amended by No. 20 of 2013, s. 13, Applied:20 Jun 2013] Where a recognizance is entered into pursuant to section 7(5) , a judge of the Court of Criminal Appeal or the Supreme Court, in a case where the person in respect of whom the recognizance is given is required to appear in either such Court, or a justice, in any other case, may–
(a) on application made in the prescribed manner to the judge or justice; and
(b) on production of the recognizance; and
(c) on proof that the person admitted to bail has failed to comply with a condition of bail; and
(d) on proof that notice of the application to the judge or justice has been served in accordance with the regulations on the person who entered into the recognizance–
order that the amount of the recognizance or such part of that amount as the judge or justice considers appropriate be forfeited to the Crown.
21
Enforcement of orders for forfeiture of money deposited, &c.
21 Enforcement of orders for forfeiture of money deposited, &c.
(a) may only be made by the defendant if the decision of the magistrate being appealed was made on an application for bail, whether orally or in writing, where submissions were made in support of the application; and
(b) must be made within 21 days after the order, to which the appeal relates, was made or was refused; and
(c) is to be commenced by filing a notice of appeal, with the Registrar of the Supreme Court, that specifies which orders are sought.
(4) Within 7 days after filing a notice of appeal in accordance with subsection (3)(c) , the appellant must serve a copy of the notice of appeal on –
(ii) if the appeal relates to an order for bail, or a refusal to grant bail, in respect of an offence against a law of the Commonwealth, the Director of Public Prosecutions of the Commonwealth; or
(b) if the appellant is a person referred to in subsection (2)(b) or (c) , the person who is admitted to bail under the order to which the appeal relates.
(5) A judge may, at his or her discretion –
(a) extend the period specified in subsection (4) if the judge is satisfied that it is reasonable to do so; or
(b) waive a requirement for service under subsection (4) if the judge is satisfied that it is in the interests of justice to do so.
21B
Appeal to Court of Criminal Appeal or Full Court
21B Appeal to Court of Criminal Appeal or Full Court
(1) A person referred to in subsection (2) may appeal, to the relevant court specified in subsection (3) , a decision of a judge of the Supreme Court to –
(a) grant an order for bail in respect of a person; or
(b) impose a condition on an order for bail made in respect of a person; or
(c) refuse to make an order for bail in respect of a person.
(2) An appeal under subsection (1) may only be made by one or more of the following persons:
(a) the person –
(i) admitted to bail under the order to which the appeal relates; or
(ii) refused the order for bail to which the appeal relates;
(b) a Crown Law Officer within the meaning of section 1 of the Criminal Code;
(c) if the appeal relates to an order for bail, or a refusal to grant bail, in respect of an offence against a law of the Commonwealth –
(i) the Director of Public Prosecutions of the Commonwealth; or
(ii) a person acting on behalf of the Director of Public Prosecutions of the Commonwealth.
(a) is to be commenced by filing a notice of appeal, in the registry of the relevant court, that specifies which orders are sought; and
(b) is to be made to –
(i) if the appeal relates to an order for bail that requires the person admitted to bail under the order to appear before the Court of Criminal Appeal, that court; or
(ii) in any other case, the Full Court of the Supreme Court; and
(c) must be made within 21 days after the order, to which the appeal relates, was made or was refused.
(4) Within 7 days after filing a notice of appeal in accordance with subsection (3)(a) , the appellant must serve a copy of the notice of appeal on –
(ii) if the appeal relates to an order for bail, or a refusal to grant bail, in respect of an offence against a law of the Commonwealth, the Director of Public Prosecutions of the Commonwealth; or
(b) if the appellant is a person referred to in subsection (2)(b) or (c), the person who is admitted to bail under the order to which the appeal relates.
(5) A judge may, at his or her discretion –
(a) extend the period specified in subsection (4) if the judge is satisfied that it is reasonable to do so; or
(b) waive a requirement for service under subsection (4) if the judge is satisfied that it is in the interests of justice to do so.
(b) confirm, vary, set aside or quash the order to which the appeal relates;
(c) make an order for bail, or an order of remand, in respect of the person to whom the appeal relates;
(d) make any other order that the judge considers appropriate in the circumstances.
Part 5
Miscellaneous
Part 5 Miscellaneous
22
Oral application for bail
22 Oral application for bail
(1) A person who is charged with an offence or breach of duty or in respect of whom an application for a restraint order has been made may, on any occasion when he or she appears before the Supreme Court or a justice pursuant to an order of remand, an order of adjournment or on arrest under section 10 , apply orally –
(a) to be admitted to bail; or
(b) for a variation of a bail order to which he or she is subject.
(2) Subsection (1) does not entitle a person to make an application for bail before a justice if he or she is in custody as a result of an arrest under section 10 arising from a breach, or a suspected breach, of an order for bail made by the Supreme Court.
23
Application for bail or variation of conditions
23 Application for bail or variation of conditions
(1) A person who is charged with an offence or breach of duty or in respect of whom an application for a restraint order has been made may, at any time and without limiting the powers conferred by any other law, apply in the prescribed manner to the court in which he or she last appeared in answer to that charge or application to be admitted to bail or for variation of a condition of an order for bail made in respect of that charge or application.
(2) Where the Supreme Court orders that the hearing of a charge or application be remitted to justices, an application under subsection (1) –
(a) if it is filed before the day on which the person charged is required to appear before the justices, must be made to the Supreme Court; or
(b) if it is filed on or after that day, must be made to those justices.
(2) In a case where the prosecutor is not the Crown, an application under subsection (1) may be made by the Crown.
(3) Where the Supreme Court orders that the hearing of a charge or application be remitted to justices, an application under subsection (1) –
(a) if it is filed before the day on which the person charged is required to appear before the justices, must be made to the Supreme Court; or
(b) if it is filed on or after that day, must be made to those justices.
25
Power of judicial officer to revoke or vary bail
25 Power of judicial officer to revoke or vary bail
(1) A judicial officer may, on any occasion when a person appears before the judicial officer pursuant to an order of remand, an order of adjournment or on an application under section 23 or 24 made in the prescribed manner, add, vary or revoke a condition of the order for bail for that person or revoke the order for bail.
(2) Where –
(a) a plea of guilty has been taken from a person admitted to bail; or
(b) a charge against any such person is found to be proved –
a judicial officer may exercise the powers conferred by subsection (1) of his or her own motion.
26
Arrest of person admitted to bail by person bound by recognizance
26 Arrest of person admitted to bail by person bound by recognizance
(1) A person who is bound by a recognizance under section 7(5) and who believes on reasonable grounds that the person admitted to bail has contravened, or is about to contravene, a condition of bail may arrest that person.
(2) On the arrest of a person under subsection (1) it is the duty of the person conducting the arrest to take the arrested person as soon as practicable before a justice.
(3) Where a person is, under subsection (2) , arrested and taken before a justice, the justice may restore the order for bail or may –
(a) if the arrested person is subject to an order for bail made under the Justices Act 1959 –
(i) revoke the order for bail and remand that person in custody pursuant to that Act; or
(ii) revoke the order for bail and make a fresh order for bail pursuant to that Act; or
(b) if the arrested person is subject to an order for bail made by the Supreme Court or a judge, remand that person in custody to appear before a judge of that Court, at such time, not more than 7 days after the day on which that person was arrested, and at such place as are fixed by the justice.
(4) Where a person appears before a judge of the Supreme Court pursuant to a remand under subsection (3)(b) , the judge may revoke the order for bail and remand that person in custody or make a fresh order for bail for that person.
(5) A police officer who is requested by a person bound by recognizance under section 7(5) to assist that person in arresting a person under subsection (1) of this section must do so.
(6) The application of this Act extends to, and in relation to, a person who is admitted to bail under subsection (3)(a)(ii) or (4) .
27
Power of court to release person bound by recognizance
27 Power of court to release person bound by recognizance
A court which has ordered that a person must be bound by recognizance as mentioned in section 7(5)(b) may, on application by that person in the prescribed manner, release that person from that recognizance.
28
Evidentiary provision
28 Evidentiary provision
In any proceedings –
(a) a document purporting to be a copy of a notice handed to a person on admission to bail as mentioned in subsection (1) of section 5 and to be endorsed and signed as mentioned in that subsection is evidence –
(i) that the endorsement was signed by the person whose signature it purports to be; and
(ii) that the notice was handed to the person specified in the notice on his or her release from custody; and
(b) a document purporting to specify the terms of an order for bail as mentioned in section 7(2)(a) and to be signed by the person admitted to bail is evidence of the fact that the person specified in the document was admitted to bail on those terms.
29
Regulations
29 Regulations
(1) The Governor may make regulations for the purposes of this Act.
(2) Without limiting the generality of subsection (1) , the regulations may make provision for, or with respect to –
(a) the approval of persons entering into recognizances referred to in section 7(5)(b) ; and
(b) the approval of security to be given by persons admitted to bail or persons entering into any such recognizance; and
(c) the service of notices of application under this Act and the procedure for any such application; and
(d) the procedure to be followed where a person admitted to bail fails to appear in accordance with the terms of the order for bail; and
(e) the enforcement of recognizances referred to in section 7(5)(b) .
30
Transitional provisions
30 Transitional provisions
(1) In this section, commencement day means the day on which this Act commences.
(2) This Act applies to an appearance in court for an offence or breach of duty or in connection with an application for a restraint order –
(a) by a person arrested on or after the commencement day; and
(b) by a person who before that day was arrested for an offence or breach of duty or to facilitate the making of any such application if, on or after that day, he or she may be ordered to be detained in custody for that offence or breach of duty or to facilitate the making of that application.
(3) A grant or refusal of bail to a person before the commencement day for an appearance in court on or after that day is not affected by this Act, and continues to be governed, including all matters relating to, and arising directly or indirectly from, that grant or refusal, by the law in force immediately before that day but, on that appearance, this Act applies in respect of any further appearance relating to the relevant offence, breach of duty or application.
(4) Where –
(a) an order for bail made under the Justices Act 1959 was in force immediately before the commencement day; and
(b) that order was subject to a condition imposed or varied by the Supreme Court –
that order for bail continues to have effect as if it had been made subject to that condition pursuant to that Act as in force on that day.
(a) the administration of this Act is assigned to the Minister for Justice; and
(b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice.
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Bail Act 1994 .
2 Commencement
2 Commencement
This Act commences on a day to be proclaimed.
3 Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears –
appropriate officer means –
(a) in the case of the Supreme Court, the Registrar of the Supreme Court; or
(ab) [Section 3 Subsection (1) amended by No. 20 of 2013, s. 8, Applied:20 Jun 2013] in the case of the Court of Criminal Appeal, the Registrar of the Court of Criminal Appeal; or
(b) in any other case, a clerk of petty sessions;
contravene includes fail to comply with;
[Section 3 Subsection (1) amended by No. 27 of 2020, s. 5, Applied:01 Jul 2021]Director of Public Prosecutions means the Director within the meaning of the Director of Public Prosecutions Act 1973 ;
[Section 3 Subsection (1) amended by No. 38 of 2015, s. 17, Applied:13 Oct 2015]intervention program means a program that provides –
(a) supervised treatment; or
(b) supervised rehabilitation; or
(c) supervised behaviour management; or
(d) supervised access to support services; or
(e) a combination of any of the matters referred to in paragraphs (a) , (b) , (c) and (d) –
powers to arrest on suspected contravention of bail conditions (s 10), suspension of bail on arrest (s 10(2)), and procedures for a justice or judge when an arrested person is brought before court (s 11).
a regime for payment, forfeiture, return and appropriation of bail money (ss 14-19) and enforcement of forfeiture via the Director, Monetary Penalties Enforcement Services (s 21).
a statutory appeal route: limited appeals from magistrates’ bail decisions to a Supreme Court judge (s 21A) and from Supreme Court judges to the Court of Criminal Appeal or Full Court (s 21B), with appeals to be by way of a new hearing and limited time frames and service requirements (ss 21C-21D, 21A(3), 21B(3)).
The Act cross‑references other instruments and regimes (for example Justices Act 1959, Criminal Code, Director of Public Prosecutions Act 1973, Family Violence Act 2004) and delegates detail to regulations (s 29). Official explanatory material is not included in the text supplied. Where the text contains statements of purpose embedded in amendment notes (for example insertion dates), those are presented as legislative history, not as substantive policy findings. The mechanical effects above are drawn directly from the statutory provisions cited.
Main concepts
The Act defines and operationalises several core concepts that control how and when bail is granted, maintained, varied, revoked, and enforced.
Terrorism‑linked person. Part 1A introduces the statutory label “terrorism‑linked person” defined in s 4A as a person convicted of a terrorism offence or subject to a control order, with “terrorism offence” itself tied to Commonwealth definitions and to offences that may be prescribed (s 4A). That label triggers absolute or near absolute prohibitions on non‑judicial and judicial admission to bail (s 4B), police arrest powers (s 4C), suspension of bail (s 4C(4)), and special hearing protections (s 4D). The definition therefore imports Commonwealth materials (Crimes Act 1914, Criminal Code 1995 control order provisions) and leaves scope for regulations to add prescribed offences.
Police bail process. Part 2 sets out what a police officer or other authorised person who admits someone to bail must do: provide a notice specifying the court appearance date, endorse and sign an acknowledgement, and may require monetary deposit or other conditions (s 5(1)-(3)). A failure to comply with those notices or conditions is a summary offence (s 5(4)).
Judicial bail orders. Part 3 governs bail orders made by judicial officers. A bail order can carry conditions both before and after release; the order can require signing of a document acknowledging terms (s 7(2)), deposit of money or third‑party recognizances (s 7(5)(a)-(b)), or assessment for and participation in an intervention program (s 7(5)(c)-(d)). Courts must satisfy themselves about consent, eligibility and program availability before imposing intervention program participation (s 7(5A)). The Supreme Court’s jurisdiction to hear bail applications is restricted to specific serious crimes or persons committed to that court (s 7A).
Forfeiture and enforcement. Part 4 establishes that money deposited for police bail is treated as though it were paid pursuant to a court order (s 13), requires appropriate officers to receive and repay money (ss 14-15), and creates forfeiture procedures when a person fails to appear or contravenes bail (ss 16-19). Recognizances can be forfeited on application with prescribed service (s 20). Enforcement of forfeiture can be referred to the Director, Monetary Penalties Enforcement Services (s 21).
Appeals. Part 4A creates a structured appeal pathway with time limits and specific eligible appellants (ss 21A-21D). Appeals are by way of new hearing (s 21C). The ability to appeal is not unconstrained: who may appeal and to which court is tightly prescribed (s 21A(2), s 21B(2)-(3)) and time limits such as 21 days apply (ss 21A(3)(b), 21B(3)(c)).
Procedural and evidentiary devices. The Act authorises closed hearings and reporting prohibitions in proceedings concerning terrorism‑linked persons (s 4D), provides admissibility rules for notices and signed documents as evidence (s 28), and delegates detail to regulations (s 29).
Each of these concepts creates discrete decision points and compliance obligations: who can decide (police, justices, judges), what evidentiary standard or statutory trigger applies (for example “satisfied” that a person is terrorism‑linked at s 4B; “reasonable grounds” for police arrest at s 4C(1)), and what administrative steps must be taken (service, signature, deposits). Several definitions and functions explicitly import or rely on other statutes and external instruments, creating dependency chains for operation (see s 4A and multiple cross‑references elsewhere).
Who it affects
The Act allocates duties, decisions and costs across a set of identifiable actors. The statutory text itself indicates who will carry obligations and who will bear costs or legal risk.
Arresting officers and police. Police have duties and powers under s 4C to arrest a person admitted to bail if the officer reasonably suspects the person is a terrorism‑linked person. Under s 5(5A) and s 10(1) police may arrest persons who have contravened or are about to contravene bail notices or conditions. Arrest causes suspension of bail (s 4C(4), s 10(2)). Police must also hand over persons arrested to be brought before a justice and follow remand time frames in s 11.
Persons admitted to bail. Defendants/accused persons face explicit duties: to be provided with a notice on release (s 5(1)), to appear and surrender at specified times (s 7(3)), to sign documents acknowledging bail terms before release if required (s 7(2)), to comply with conditions which may include reporting, movement restrictions, family violence order conditions, recognised DVOs, and intervention program participation (s 5(3), s 7(3A), s 7(5)). Failure to comply is a criminal offence with defined penalties (s 5(4), s 9).
Judicial officers and courts. Justices, judges and registrars are decision makers for bail, variations and revocations (s 6, s 25). The Supreme Court’s ability to hear bail applications is confined to particular categories (s 7A). Judicial officers may order closed hearings in terrorism‑linked cases (s 4D) and direct forfeiture or return of bail monies (ss 16-18).
Persons who admit to police bail. Persons who release someone on police bail (for example a police officer or authorised person) must supply, endorse and sign notices (s 5(1)). They may impose conditions and require deposits (s 5(2)-(3)).
Recognizance sureties and persons providing security. The Act contemplates third parties entering recognizances or providing security (s 7(5)(b), s 7(6)), with approval and enforcement governed in regulations (s 29(2)(a)-(b)). Persons bound by recognizances also gain a limited power to arrest the bailed person if they reasonably believe a breach has occurred (s 26).
Prosecutors and Crown Law Officers. The Director of Public Prosecutions and Crown Law Officers are specifically mentioned in relation to service requirements for certain appeals and applications (s 7A(3), ss 21A-21B). A prosecutor who is not the Crown may be replaced by the Crown in making applications to revoke bail (s 24(2)).
Court administrative officers. “Appropriate officer” roles such as clerks of petty sessions, registrars, prison officers and persons appointed by order are responsible for receiving bail monies, repaying them on determination and dealing with forfeitures (see definition in s 3 and ss 14-18).
Intervention program providers. Courts may require assessment for or participation in intervention programs (s 7(5)(c)-(d)) subject to consent, eligibility and availability checks (s 7(5A)), which imposes coordination and availability obligations on program providers and the court.
Financial enforcement agencies. Forfeiture orders may be referred to the Director, Monetary Penalties Enforcement Services for collection (s 21), bringing in a specialised enforcement pathway.
The Act imposes obligations on both state agents and private actors. Costs fall on accused persons who may need to deposit money or face forfeiture (ss 5(2)(b), 19), on sureties who may be required to give security (s 7(6)), and on police and courts who must exercise new powers, conduct remands, and manage closed court orders in terrorism‑linked proceedings. The text also creates procedural obligations to serve documents and to involve the DPP or Crown Law Officers in appeal processes (ss 7A(3), 21A(4), 21B(4)).
Key duties and rights
The Act places discrete express duties on particular actors and grants specific rights to persons subject to bail or proceedings. These are statutory and therefore enforceable in the terms set out.
Duties:
Person admitting to police bail must hand the bailed person a notice specifying the day, time and place to appear, endorse a copy and sign the endorsement (s 5(1)(a)-(c)). That person may also require a deposit of money (s 5(2)(b)) and impose conditions considered necessary (s 5(3)).
Police officers have the duty to arrest if they have reasonable grounds to believe that a bailed person has contravened or is about to contravene a condition, or in terrorism‑linked circumstances to arrest someone admitted to bail when reasonable suspicion exists (s 5(5A), s 10(1), s 4C(1)-(3)). On arrest, police must bring arrested persons before a justice as required (s 11).
Judicial officers must ensure that, on making an order for bail, a person signs the prescribed form acknowledging terms before release where required (s 7(2)). Where imposing intervention program participation, the court must satisfy itself as to consent, eligibility and availability (s 7(5A)).
Appropriate officers must accept payment of money payable for bail and must repay such money on determination of proceedings unless appropriation or forfeiture is ordered (ss 14-15). They must handle return orders and payments out of the Public Account if money has already been transferred there (s 18).
A recognizance‑bound person who believes on reasonable grounds that a bailed person is contravening a condition may arrest that person and must present them before a justice (s 26(1)-(3)). Police are obliged to assist such a surety when requested (s 26(5)).
Rights:
A person admitted to bail is entitled to be released from custody after compliance with pre‑release requirements and any conditions expressed to take effect before release, unless they may be lawfully otherwise detained (s 8(1)-(2)).
A person whose money deposited for bail has been forfeited to the Public Account has a right to show cause within two months (or such further time as the court allows) to have the money returned; the court may order return in whole or part (s 17(1)-(2)).
Defendants and other specified persons have a statutory right to appeal certain magistrates’ or judges’ bail decisions under the appeal provisions, subject to who may appeal and time and service constraints (ss 21A-21B).
In evidentiary terms, signed notices and documents are admissible as evidence that the notice was handed and acknowledged (s 28(a)-(b)), which is a procedural protection and convenience for prosecutors and administrators.
Specified constraints and procedural safeguards:
For intervention program conditions, consent and eligibility are prerequisites, and the program must be available at a suitable place and time (s 7(5A)); the Act explicitly requires these checks before imposition.
Where a person is arrested and bail is suspended, certain suspension rules do not apply if the arrested person is later released unconditionally (s 4C(5); s 10(3) clarifies s 10(2) suspension does not apply in similar circumstances).
The Supreme Court’s jurisdiction to hear bail in chamber is limited to persons charged with murder or treason or persons committed to the Supreme Court (s 7A(1)-(2)); further, an applicant must serve the DPP with a copy of the application (s 7A(3)).
Penalties for non‑performance:
Contravention of police bail notice or condition without reasonable cause is a summary offence punishable by up to 10 penalty units or 6 months imprisonment or both (s 5(4)).
Contravention of any condition of a court bail order after release without reasonable cause is a summary offence punishable by up to 20 penalty units or 12 months imprisonment or both (s 9).
Forfeiture and enforcement mechanisms for money and recognizances include court ordering forfeiture, possibilities of partial relief where hardship is shown (s 19(2)), and enforcement by the Director, Monetary Penalties Enforcement Services (s 21).
Each duty and right is expressed in prescriptive statutory language. Compliance with pre‑release signing and notice requirements is a conditional gateway to liberty on bail; failure to comply triggers either criminal penalties, suspension or revocation of bail, or forfeiture of monies. The Act sets administrative responsibilities for courts and officers to manage deposits, appropriations and returns.
Penalties and enforcement
The Act prescribes a tiered set of criminal penalties, financial sanctions, arrest powers and enforcement pathways tied to non‑compliance with bail conditions and forfeiture orders.
Criminal penalties:
Summary offences for contravening police‑imposed bail notices or conditions without reasonable cause: a fine not exceeding 10 penalty units or imprisonment up to 6 months, or both (s 5(4)). This applies to bail under police powers as referenced at s 5(1) and s 5(2).
Summary offences for contravening conditions of a court bail order that take effect after release, or failing to comply with the s 7(2) requirements, without reasonable cause: a fine not exceeding 20 penalty units or imprisonment up to 12 months, or both (s 9). The Act distinguishes between police bail contraventions (s 5(4)) and court bail contraventions (s 9).
Arrest and detention powers:
Police may arrest bailed persons where reasonable grounds exist that they have contravened or are about to contravene a police or court bail requirement (s 5(5A), s 10(1)). Arrest of a bailed person for contravention suspends bail (s 5(5C); s 10(2)).
Specific to terrorism‑linked persons, police may arrest someone admitted to bail if the officer suspects on reasonable grounds that the person is a terrorism‑linked person (s 4C(1)-(3)). Arrest under s 4C suspends bail (s 4C(4)) and triggers application of s 11 as though arrested under s 10 (s 4C(6)), but with the caveat that s 11(1) does not apply to a justice unless the justice is a magistrate (s 4C(7)).
Persons bound by recognizances have a statutory power to arrest a bailed person whom they reasonably believe is contravening a condition (s 26(1)), and police must assist such persons if requested (s 26(5)).
Forfeiture and financial enforcement:
Where a bailed person fails to appear and a judicial officer orders forfeiture, deposited money is payable to the Public Account (s 16(1)). Courts can order appropriation of deposited money to pay fines and costs upon conviction even where non‑appearance occurred (s 15(2), s 16(2)).
Conviction under s 9 requires the court to order that the full amount of money deposited be forfeited to the Crown (s 19(1)). The court has capacity to decline or partially order forfeiture on grounds of excessive hardship or other justice considerations (s 19(2)).
For recognizances, a judge or justice may order forfeiture on application where proof of breach and service are demonstrated (s 20).
Enforcement of forfeiture orders is channelled to the Director, Monetary Penalties Enforcement Services for collection (s 21). The Act expressly treats amounts ordered forfeited under s 19(1)(a) or s 20 as being equivalent to a fine that may be referred for collection and enforcement (s 21).
Procedural enforcement and remedies:
Warrants for arrest may be issued where a person admitted to bail fails to appear in accordance with the order or written advice under s 7(3A) (s 12).
On arrest and appearance before a justice, the justice may restore bail, revoke it and remand the person, or make fresh bail orders under the Justices Act 1959 or remit the matter to higher judicial officers under timelines set out in s 11(1)-(2).
The court retains discretion to order return of forfeited bail money following a show cause application within two months or such further time allowed by the court (s 17), and must deal with payments already sent to the Public Account in accordance with orders for return (s 18).
Limits and safeguards:
Several suspension provisions cease to apply if the arrested person is later released unconditionally (s 4C(5); s 5(5D); s 10(3)), affording an operational safeguard where arrest is followed by unconditional release.
The court retains discretion to decline full forfeiture on hardship grounds (s 19(2)), providing a statutory mitigation route.
Procedural enforcement is regulated by the Act and is subject to the regulations the Governor may make (s 29), including approval regimes for sureties and security (s 29(2)(a)-(b)).
The enforcement architecture combines criminal sanctions, administrative forfeiture and monetary collection mechanisms. It places primary operational enforcement with police and courts, and monetary recovery with a specialist enforcement directorate. The staged penalties reflect gradations: police bail breaches attract a lower maximum penalty than breaches of court‑ordered conditions, and forfeiture of money operates alongside criminal sanction options.
How it interacts with other laws
The Act is not self‑contained; it embeds multiple cross‑references and dependencies on other statutes and external instruments. These interactions shape scope, definitions, jurisdictional reach and procedural details.
Cross‑referenced statutes and instruments:
Justices Act 1959. The Act repeatedly cross‑references the Justices Act, particularly s 34 and s 34A, which are the statutory gateways for police‑admitted bail and subsequent procedure (see s 5(1) and s 5(5B)). Orders made under the Justices Act continue to interact with this Act’s procedural provisions (s 6, s 11).
Criminal Law (Detention and Interrogation) Act 1995. Police bail granted under that Act is treated under s 5, with the same notice and condition requirements (s 5(1)). The Act treats detention and interrogation bail as feeding into this bail framework.
Criminal Code and Crimes Act 1914 (Commonwealth). The definition of “control order” is imported from s 100.1 of the Criminal Code 1995 (Commonwealth) and “terrorism offence” incorporates paragraphs of s 3 of the Commonwealth Crimes Act 1914 and offences specified under Commonwealth laws (s 4A). This means the operation of Part 1A depends on Commonwealth definitions and control order mechanisms, creating inter‑jurisdictional legal dependencies.
Director of Public Prosecutions Act 1973. The term “Director of Public Prosecutions” is given statutory definition cross‑referenced at s 3(1). The DPP is a notice and service recipient for certain Supreme Court bail applications (s 7A(3), s 21A(4), s 21B(4)).
Family Violence Act 2004 and Domestic Violence Orders (National Recognition) Act 2016. The Act permits bail conditions that are family violence order conditions or recognised DVO conditions (s 5(3A)(ba), (bb); s 7(3A)).
Monetary Penalties Enforcement Services. Forfeiture orders may be referred to the Director, Monetary Penalties Enforcement Services for collection and enforcement (s 21). This creates an administrative enforcement pathway distinct from criminal enforcement.
Administrative Arrangements Act 1990. The administration of the Act is assigned to the Minister for Justice and the Department of Justice until an administrative arrangements order provides otherwise (s 31).
Delegated legislation and prescription:
The Act allows for regulations to set out approvals for persons entering recognizances, approval of security to be provided, service procedures, enforcement of recognizances and other procedural matters (s 29(1)-(2)). Several definitions and operational details (for example, offences that may be “prescribed” as terrorism offences under s 4A(1)(c)) are left to prescription. This creates a two‑step operationalisation where primary duties are in the Act but details and specific lists sit in regulations.
Jurisdictional and procedural layering:
Appeals are allocated between magistrates, the Supreme Court and the Court of Criminal Appeal or Full Court, reflecting the Act’s interaction with existing court hierarchies and appeal courts (Part 4A, ss 21A-21B). The Supreme Court’s jurisdiction for bail applications is limited by s 7A to murder and treason or persons committed to the Supreme Court, and Supreme Court applications must be in chambers with service on the DPP (s 7A(2)-(3)), which interfaces with prosecutorial functions under Commonwealth and State law.
Potential legal friction points from the text:
The terrorism‑linked provisions (Part 1A) import Commonwealth control orders and terrorism offence definitions, creating cross‑jurisdictional dependency and potential friction if Commonwealth definitions or control order regimes change or are interpreted differently.
The Act treats monies paid under police bail as though paid under a court order (s 13), which creates an administrative alignment but may interact with separate accounting or appropriation rules in other financial or court administration statutes.
The interface between court‑made bail orders and family violence or DVO regimes is explicit (s 5(3A)(ba), (bb) and s 7(3A)), meaning that enforcement and breach consequences may involve intersecting orders from other regimes.
In short, the Act operates as a node in a broader statute network: it sets rules and delegations but relies on Commonwealth definitions and control orders, pre‑existing justice acts, prosecutorial offices and delegated regulations to function in practice. Practitioners must read the Act alongside the Justices Act 1959, the relevant Commonwealth provisions cited in s 4A, the DPP Act, and any applicable regulations mentioned in s 29.
Amendment history
The text as supplied contains inline amendment and insertion notes identifying multiple legislative changes over time. The Act has been amended repeatedly; the key amendments and insertions recorded in the supplied text are as follows (extracted from the bracketed editorial notes and section histories in the text).
Major insertions and amendments called out in the text:
1994: the Act itself appears with historical notes showing later amendments reference original 1994 insertions such as s 5(5A) being inserted by No. 64 of 1994, s. 14 (see s 5 notes).
1995: multiple amendments reflected as “No. 51 of 1995” affecting s 5 and elsewhere (for example s 5(1), s 5(2), s 5(3) and s 5(3A) reflect amendments by No. 51 of 1995, s. 4).
1999: reference to No. 61 of 1999 amending s 7(2) (see note).
2000: No. 62 of 2000 Sched. 1 amended s 7(3) and s 11(1) as indicated in notes.
2003: No. 76 of 2003, Sched. 1 amended the definition of “judicial officer” in s 3(1).
2004: No. 20 of 2013 and No. 67 of 2004 Sched. 1 note for s 5(3A)(ba) changes; also No. 20 of 2013 appears across multiple sections for appointments and authorised persons.
2005: No. 67 of 2004 came into application in 2005 per editorial note for s 5(3A)(ba).
2006: No. 43 of 2006 inserted s 7(3A) per historical note.
2007: No. 65 of 2007 amended s 5(4) and s 9, applied from 1 Jan 2008.
2012: No. 13 of 2012 is noted in s 7(3A) amendments.
2013: No. 20 of 2013 appears as an amending instrument across many sections including s 3(1) (ab), s 7(1) and s 12; the notes mark applied dates such as 20 Jun 2013 for several substitutions.
2015: No. 38 of 2015 amended s 3(1) to define intervention program, s 5(3A) & s 7(5) and s 7(5A) for intervention programs, and s 5(5D) and s 10(3) clarifications; applied 13 Oct 2015 in notes.
2016: No. 29 of 2016 appears in s 5(3A)(bb) and s 7(3A) referencing the Domestic Violence Orders (National Recognition) Act 2016.
2017: No. 29 of 2017 and No. 4 of 2017 show amendments to s 7(1), s 17, s 18, s 16 and other provisions; applied dates include 5 Sep 2017 and 1 Jul 2019 in the notes.
2018: No. 14 of 2018 inserted Part 1A (ss 4A-4D) addressing bail for terrorism‑linked persons (inserted by No. 14 of 2018, s 4, applied 14 Dec 2018). No. 29 of 2018 appears to amend s 5 and s 23, applied 10 Dec 2018.
2019: No. 4 of 2017 has applied amendments referenced at various sections with applied date 01 Jul 2019.
2020 and 2021: No. 27 of 2020, s. 5 amended the definition of Director of Public Prosecutions in s 3(1) with applied date 01 Jul 2021. No. 27 of 2020 also inserted Part 4A appeals (ss 21A-21D) and s 7A (Inserted by No. 27 of 2020, s. 6, applied 01 Jul 2021) providing new appeal procedures and Supreme Court bail application limitations. Amendments by No. 27 of 2020 are shown as applied 01 Jul 2021.
This list is drawn from the amendment annotations contained in the supplied text itself; the annotations give statute numbers and section references such as “[Section 4A Inserted by No. 14 of 2018, s. 4, Applied:14 Dec 2018]”. The text does not provide a consolidated amendment table, nor does it give the policy rationales beyond insertion labels.
For practitioners arranging a chronological amendment overview, the Act’s in‑text notes identify the specific amending instruments and applied dates for each change. A full legislative history should be obtained from the official consolidated statutes database or parliamentary records to confirm commencement dates and any transitional provisions that modify operation on particular dates (see s 30 for transitional provisions as to commencement).
Litigation history
The supplied statutory text contains no reported judgments, case annotations or litigation summaries. The Act itself references court processes and appellate routes but does not include or cite judicial decisions applying its provisions.
What the text shows about litigation pathways:
The Act creates express appeal routes for bail decisions: from magistrates to a judge of the Supreme Court (s 21A), from a judge of the Supreme Court to the Court of Criminal Appeal or Full Court (s 21B), with appeals by way of new hearing (s 21C) and specific powers on appeal (s 21D). These procedural allocations indicate where litigation under the Act will typically be litigated.
Section 11 and section 12 describe intermediate processes where arrests and remands create opportunities for judicial decision‑making that may then be subject to further appeal under the normal appellate jurisdiction provisions elsewhere in the judicial hierarchy.
The Act’s evidentiary section (s 28) identifies certain documents (signed notices, signed bail documents) as evidence presumptively admissible, which will inform evidentiary disputes in court.
Practical note for researchers and practitioners:
To assess how courts have interpreted “terrorism‑linked person”, “exceptional circumstances” in s 4B(3), the admissibility and weight of notices under s 28, or the scope of police “reasonable grounds” for arrest under s 4C and s 10, a practitioner will need to search case law databases and court registries for decisions citing this Act. The statutory text does not provide that case law.
Because the Act cross‑references Commonwealth definitions and control orders (s 4A), litigation may involve interpretation of both State and Commonwealth provisions and the interaction between them.
Recommendation:
Consult consolidated reported decisions for the relevant jurisdiction, court registries for unpublished decisions, and authoritative online consolidated legislation services that include case annotations. The Act’s appeal routes (Part 4A) indicate the courts where binding precedents will be developed.
Gotchas
The statutory text contains numerous operational details that can catch practitioners unaware if not attended to. These are not normative critiques; they are operational points directly traceable to the statutory language that affect procedure, discretion and compliance risk.
Terrorism‑linked trigger is cross‑jurisdictional and partially “prescribed”
The definition in s 4A ties “terrorism offence” to Commonwealth definitions and to offences that may be “prescribed” (s 4A(1)(c)(ii)). In practice, whether a person is “terrorism‑linked” can depend on Commonwealth control orders and prescribed lists outside the Act, importing external uncertainty. The statutory consequences are significant: non‑judicial admission to bail is prohibited (s 4B(1)), judicial admission is prohibited except in “exceptional circumstances” (s 4B(2)-(3)), and police may arrest a bailed person on reasonable suspicion of being terrorism‑linked (s 4C(1)).
“Satisfied” and “reasonable grounds” are legal thresholds not defined in the Act
s 4B uses “is satisfied” for bail decisions involving terrorism‑linked persons and s 4C and s 10 use “suspects on reasonable grounds” and “reasonable grounds” for police arrest. Those thresholds are standardly interpreted by courts but the Act does not define them, leaving room for contested applications in the absence of settled case law in the text.
Suspension of bail on arrest is automatic but temporary relief exists
Arrest under s 4C or s 10 suspends bail (s 4C(4), s 10(2)). However, the suspension ceases to apply if the person is later released unconditionally (s 4C(5); s 10(3)). Practically, arrests may therefore lead to custody and remand but not always to continued suspension if the state later releases unconditionally.
Signing requirement can delay release
s 7(2) allows the judicial officer to require the accused to sign a document specifying bail terms in the presence of an authorised person and makes signing a precondition to release. If the authorised person is not available or the bailed person refuses to sign, release can be delayed or withheld.
Intervention program conditions are permissive but conditional
Courts may impose assessment and participation in intervention programs (s 7(5)(c)-(d)) but subsection (5A) requires consent, eligibility and program availability. Failure to ensure program availability would make such a condition legally problematic.
Different penalty levels for police vs court bail breaches
A contravention of a police bail notice or condition is punishable by up to 10 penalty units or 6 months imprisonment (s 5(4)), whereas contravention of a court bail condition after release carries up to 20 penalty units or 12 months (s 9). Practitioners must ensure they apply the correct offence provision because the differing maxima matter for sentencing and risk assessment.
Money paid under police bail is treated as money under court order
s 13 extends Part 4 to money deposited for police bail as if paid pursuant to a court order, tying police deposits into the court forfeiture/return mechanics. Administrative handling and appropriation rules therefore apply to police‑collected monies.
Forfeiture relief is time‑limited
A person whose money is payable to the Public Account may show cause within two months after failure to appear to seek return, or within a further time allowed by the court (s 17). Practitioners should calendar these periods; failure to seek relief promptly risks loss of the statutory route to return.
Appeal time limits and narrow eligibility
Appeals under Part 4A have 21‑day time limits (s 21A(3)(b), s 21B(3)(c)) and only specified persons may appeal (s 21A(2), s 21B(2)). For example, only certain Crown Law Officers or the DPP can institute some appeals involving Commonwealth offences. Service requirements and short timeframes increase the risk of forfeiting appeal rights.
Regulations fill practical gaps
The Act delegates multiple operational areas to regulation (s 29), including approval of sureties, approval of security, service processes and enforcement procedures. The absence of a regulation or a change in regulations will materially alter how practitioners must act.
Each “gotcha” arises directly from the statutory text and can have concrete consequences for release, arrest, monetary exposure, and appeal rights. Practitioners should map the Act’s triggers and timelines against case facts at the earliest opportunity to avoid missed steps.
How to comply
The Act structures compliance around procedural steps for police, courts, defendants, sureties and administrative officers. The following is a practical checklist mapped to the statutory provisions; treat this as an operational guide, not a substitute for legal advice tailored to individual cases.
For police and persons admitting to police bail (s 5):
Immediately on admitting someone to police bail, give the bailed person a notice that specifies the court appearance day, time and place (s 5(1)(a)). Endorse a copy stating the notice was handed and sign it (s 5(1)(b)-(c)). Keep the endorsed copy for court and evidentiary purposes.
If imposing a deposit, ensure the amount is judged to be no more than is necessary to secure appearance (s 5(6)). Deposit money to the clerk of petty sessions for the specified court (s 5(7)).
Where conditions are imposed, record them clearly in the notice; conditions may include reporting, movement restrictions, family violence order conditions and DVO recognition (s 5(3)-(3A)). Ensure conditions are lawful and recorded.
If you suspect on reasonable grounds that a bailed person is a terrorism‑linked person, exercise the arrest power in s 4C and ensure the arrest is properly recorded and the person is brought before a justice. Remember arrest suspends bail (s 4C(4)).
For judicial officers and court staff (ss 7, 11, 12, 25):
On making an order for bail, require the bailed person to sign the prescribed form in the presence of an authorised person before release when you decide to do so (s 7(2)). If an authorised person is needed, ensure that person is available to avoid delay in release.
When imposing intervention program conditions, document the person’s consent, assess eligibility and confirm program availability at suitable times and places before imposing the condition (s 7(5A)).
Use closed court and publication prohibition powers in proceedings involving alleged terrorism‑linked persons only where statutory criteria are met and make clear written orders in accordance with s 4D.
Where a bailed person is arrested for contravention, process remands under s 11, including remands to appear before a judge within the seven‑day period where the order was by the Supreme Court or Court of Criminal Appeal (s 11(1)(b)).
For defendants and persons on bail:
Comply with the notice: appear at the time and place specified and surrender to the court’s order for the duration of proceedings unless otherwise advised in writing by a Crown Law Officer under s 7(3A) (s 7(3), s 7(3A)).
If asked to sign a bail acknowledgment, do so in the presence of an authorised person; refusal may delay release (s 7(2)).
If subject to an intervention program condition, consent is required before imposition; if consenting, ensure you are eligible and that the program’s availability is confirmed (s 7(5A)).
For sureties and persons entering recognizances:
Understand that entering a recognizance can expose you to forfeiture if the bailed person fails to comply (s 7(5)(b), s 20). Ensure your approval as a suitable person complies with regulations (s 29(2)(a)).
If you suspect breach you may arrest the bailed person on reasonable grounds and must bring them promptly before a justice (s 26(1)-(3)). Police must assist if requested (s 26(5)).
For administrative officers handling money (ss 14-18):
Receive money payable under an order for bail and keep records; on determination of the proceedings, repay unless appropriation has been ordered (s 15(1)-(2)).
Where money has been forfeited to the Public Account, ensure proper notice is given and assist persons seeking return within the statutory timeframes (s 17-18).
Where the court orders appropriation to pay fines or costs following conviction, follow judicial directions and pay balances to the person if so ordered (s 15(2)(c)-(d)).
For prosecutors and the DPP:
Note the service requirements for court applications and appeals: Supreme Court bail applications must be served on the DPP (s 7A(3)). Appeals under Part 4A require service on the DPP and, in Commonwealth matters, the Commonwealth DPP where appropriate (ss 21A(4), 21B(4)).
Where pursuing forfeiture of a recognizance, comply with prescribed forms and service requirements in the regulations as required by s 20.
For all practitioners:
Calendar critical time limits: the appeal periods in Part 4A (21 days, ss 21A(3)(b), 21B(3)(c)); show cause windows for return of forfeited money (s 17(1)); the seven‑day remand appearance window after arrest for certain higher court bail orders (s 11(1)(b)).
Check relevant regulations under s 29 for approval procedures for sureties and security, service rules and enforcement procedures. Regulatory detail may materially change practical compliance obligations.
Where Part 1A might apply, verify status against Commonwealth control orders and the prescribed list of offences. If the person might be terrorism‑linked, the threshold for admission to bail, arrest powers and hearing confidentiality are affected (ss 4A-4D).
Use the evidentiary provision in s 28: keep signed copies of notices and signed terms documents as they are admissible evidence of delivery and acknowledgment.
Following these steps, and checking cross‑referenced statutes and applicable regulations, aligns conduct with the statutory framework. Where there is doubt over thresholds like “satisfied” or “reasonable grounds”, practitioners should document factual bases for decisions and consider immediate legal advice to manage risk.
designed to address behavioural problems (including problem gambling), substance abuse, alcohol abuse or mental impairment;
judicial officer means a person empowered to exercise jurisdiction in a court, whether or not that person is sitting as a court and includes a single justice;
[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]
restraint order means a restraint order under Part XA of theJustices Act 1959 .
(2) Where a magistrate is authorized by law to exercise a power that may be exercised by 2 or more justices, references in this Act to justices are taken to include references to a magistrate.
4 Application of this Act
4 Application of this Act
Where it is provided by any other Act or law that a person may be admitted to bail, that bail may be granted to a person or that bail may be revoked or varied, however that provision is expressed, this Act applies to that admission to bail or grant, revocation or variation of bail.
Part 1A Grant of Bail to Terrorism-Linked Persons
Part 1A Grant of Bail to Terrorism-Linked Persons
4A Interpretation of Part 1A
4A Interpretation of Part 1A
[Section 4A Inserted by No. 14 of 2018, s. 4, Applied:14 Dec 2018] In this Part –
control order has the same meaning as in section 100.1 of the Criminal Code 1995 of the Commonwealth;
terrorism-linked person means a person who –
(a) has been convicted of a terrorism offence; or
(b) is subject to a control order;
terrorism offence means –
(a) an offence referred to in paragraph (a), (b) or (c) of the definition of terrorism offence in section 3 of the Crimes Act 1914 of the Commonwealth; and
(b) an offence against the former Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth; and
(c) an offence, in relation to terrorism, that –
(i) is an offence under an Act of the Commonwealth, this State, another State or a Territory; and
(ii) is prescribed.
4B Limitations on grant of bail to terrorism-linked person
4B Limitations on grant of bail to terrorism-linked person
[Section 4B Inserted by No. 14 of 2018, s. 4, Applied:14 Dec 2018]
(1) A person, other than a judge or magistrate, must not admit a person to bail if the person is satisfied that the other person is a terrorism-linked person.
(2) A judge or a magistrate must not admit a person to bail if the judge or magistrate is satisfied that the person is a terrorism-linked person.
(3) Subsection (2) does not apply in relation to a person if the judge or magistrate is satisfied that there are exceptional circumstances.
4C Arrest of terrorism-linked person admitted to bail
4C Arrest of terrorism-linked person admitted to bail
[Section 4C Inserted by No. 14 of 2018, s. 4, Applied:14 Dec 2018]
(1) A police officer may arrest a person who is admitted to bail by a person other than a judge or magistrate, if the police officer suspects on reasonable grounds that the person admitted to bail is a terrorism-linked person.
(2) A police officer may arrest a person who is admitted to bail by a judge or magistrate, if –
(a) the person was not admitted to bail because a judge or magistrate found, under section 4B(3) , that there were exceptional circumstances in relation to the person; and
(b) the police officer suspects on reasonable grounds that the person is a terrorism-linked person.
(3) A police officer may arrest a person who is admitted to bail by a judge or magistrate, if –
(a) the person was not, before he or she was admitted to bail, a terrorism-linked person; and
(b) the person, after his or her release on bail by the judge or magistrate, has become a terrorism-linked person.
(4) On the arrest of a person under this section, the bail of the person is suspended.
(5) Subsection (4) ceases to apply to a person if the person arrested is later released unconditionally.
(6) Section 11 applies to a person arrested under this section as if the person had been arrested under section 10 .
(7) Despite subsection (6) , section 11(1) does not apply in relation to a justice in respect of a person arrested under this section unless the justice is a magistrate.
(8) This section applies in relation to a person who has made an application for bail, or who is admitted to bail, before, on or after the day on which this section commences.
4D Access to proceedings, &c., in relation to terrorism-linked persons
4D Access to proceedings, &c., in relation to terrorism-linked persons
[Section 4D Inserted by No. 14 of 2018, s. 4, Applied:14 Dec 2018] In any proceedings before a judge, a magistrate or a court, in relation to bail in respect of a person who is, or is alleged by a party to the proceedings to be, a terrorism-linked person, the judge, magistrate or court may make any one or more of the following orders:
(a) that all or part of the proceedings are to be heard in closed court;
(b) that only persons, or members of a class of persons, specified by the judge, magistrate or court may be present during all or part of the proceedings;
(c) that the publication of a report of all or part of the proceedings, or of any information that is disclosed in, or referred to in, the proceedings, is prohibited.
Part 2 Police Bail
Part 2 Police Bail
5 Police bail
5 Police bail
(1) [Section 5 Subsection (1) amended by No. 29 of 2018, s. 12, Applied:10 Dec 2018] *[Section 5 Subsection (1) amended by No. 51 of 1995, s. 4 ]*Where a person admits another person to bail under section 34 of theJustices Act 1959 or section 4(3), (5) or (6) of theCriminal Law (Detention and Interrogation) Act 1995 , the person who admits him or her to bail must–
(a) hand to the person admitted to bail on his or her release from custody a notice specifying the day on which and the time and place at which he or she is required to appear before justices; and
(b) endorse on a copy of the notice a statement that the notice was handed to the person admitted to bail on his or her release from custody; and
(c) sign the endorsement.
(2) [Section 5 Subsection (2) amended by No. 29 of 2018, s. 12, Applied:10 Dec 2018] *[Section 5 Subsection (2) amended by No. 51 of 1995, s. 4 ]*It is a condition of bail under section 34 of theJustices Act 1959 or section 4(3), (5) or (6) of theCriminal Law (Detention and Interrogation) Act 1995 –
(a) that the person admitted to bail must appear before justices on the day and at the time and place specified in a notice referred to in subsection (1)(a) ; and
(b) that the person admitted to bail must deposit, if the person admitting him or her to bail under either of those sections considers it desirable and so requires, a sum to be forfeited to the Crown if the person admitted to bail fails to appear before justices as required by paragraph (a) .
(3) *[Section 5 Subsection (3) substituted by No. 51 of 1995, s. 4 ]*If a person is admitted to bail, that person must comply with any other conditions (including conditions controlling the conduct of the person) –
(a) that the person admitting him or her to bail considers necessary or desirable; and
(b) that are specified in the notice referred to in subsection (1)(a) .
(3A) *[Section 5 Subsection (3A) inserted by No. 51 of 1995, s. 4 ]*For the purposes of but without limiting subsection (3) , conditions controlling the conduct of a person may include any one or more of the following:
(a) a condition requiring the person to report at a specified place at a specified time;
(b) a condition limiting the person's movements and social intercourse;
(ba) [Section 5 Subsection (3A) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] a condition of a family violence order, police family violence order or interim family violence order, made under the Family Violence Act 2004 ;
(bb) [Section 5 Subsection (3A) amended by No. 29 of 2016, Sched. 1, Applied:25 Nov 2017] a condition of a recognised DVO, within the meaning of the Domestic Violence Orders (National Recognition) Act 2016 ;
(c) a condition preventing the person from acting in a manner specified in section 106B (1) of theJustices Act 1959 .
(4) [Section 5 Subsection (4) amended by No. 65 of 2007, s. 6, Applied:01 Jan 2008] A person who without reasonable cause contravenes a notice referred to in subsection (1)(a) or a condition of the notice is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months, or both.
(5) Where a person admitted to bail fails to appear before justices on the day and at the time specified in a notice referred to in subsection (1)(a) , the justices may issue a warrant for his or her arrest.
(5A) *[Section 5 Subsection (5A) inserted by No. 64 of 1994, s. 14 ]**[Section 5 Subsection (5A) substituted by No. 51 of 1995, s. 4 ]*If a police officer has reasonable grounds to believe that a person who was admitted to bail has contravened, or is about to contravene, a notice referred to in subsection (1)(a) or a condition of the notice, the police officer may arrest that person.
(5B) *[Section 5 Subsection (5B) inserted by No. 64 of 1994, s. 14 ]**[Section 5 Subsection (5B) substituted by No. 51 of 1995, s. 4 ]*Where a person arrested under subsection (5A) is taken before a justice, the justice is to proceed as provided in section 34A of theJustices Act 1959 .
(5C) *[Section 5 Subsection (5C) inserted by No. 64 of 1994, s. 14 ]*On the arrest of a person under subsection (5A) the bail of that person is revoked.
(5D) [Section 5 Subsection (5D) inserted by No. 38 of 2015, s. 18, Applied:13 Oct 2015]Subsection (5C) does not apply if the person arrested is later released unconditionally.
(6) *[Section 5 Subsection (6) amended by No. 51 of 1995, s. 4 ]*A sum for the purposes of subsection (2)(b) is not to be more than is, in the opinion of the person admitting a person to bail under section 34 of theJustices Act 1959 or section 4 (3) of theCriminal Law (Detention and Interrogation) Act 1995 , sufficient to ensure that that person will appear before justices as specified in the notice.
(7) Money deposited under subsection (2) on the admission of a person to bail is to be paid to the clerk of petty sessions for the court held at the place specified in the notice.
Part 3 Orders for Bail
Part 3 Orders for Bail
6 Application of this Part
6 Application of this Part
This Part applies to an order for, or with respect to, bail made by a judicial officer.
7 Conditions to which bail is subject
7 Conditions to which bail is subject
(1) In this section, authorized person means –
(a) a justice; or
(ab) [Section 7 Subsection (1) amended by No. 29 of 2017, Sched. 1, Applied:05 Sep 2017] the Registrar of the Supreme Court; or
(ac) [Section 7 Subsection (1) amended by No. 29 of 2017, Sched. 1, Applied:05 Sep 2017] an officer of the Supreme Court appointed in writing by the Registrar of the Supreme Court; or
(b) [Section 7 Subsection (1) amended by No. 20 of 2013, s. 9, Applied:20 Jun 2013] an associate to a judge of the Court of Criminal Appeal or the Su
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