Bail Act 2013

The Act’s primary subjects are “accused persons” (s 4(1)), defined broadly to include anyone charged or convicted, whose conviction is stayed, who is appealing conviction or sentence, or in respect of whom a new trial has been ordered. This captures adults and children (defined as under 18). Police officers exercising functions under Part 5 Division 1, courts (Supreme Court, Court of Criminal Appeal, District Court, Local Court including Children’s Court, Land and Environment Court, Industrial Court and any other court exercising criminal jurisdiction), authorised justices (registrars, Children’s Registrars, declared officers), prosecutors, victims (particularly in domestic violence matters), bail guarantors, sureties and persons providing character acknowledgments are all directly affected.

Victims of domestic violence offences or serious offences receive procedural rights: their views must be considered where relevant to safety concerns (s 18(1)(o)), and certain victims or protected persons may make variation applications (s 51(3)(c)–(d)). The Commissioner of Police is deemed the prosecutor for variation applications arising from apprehended violence order proceedings (s 51(10)).

Correctional officers, the Commissioner of Corrective Services (who conducts mandatory electronic monitoring under s 28B(2A)), and government agencies responsible for accommodation reports (s 29(6)) are also engaged. The Attorney General may appear as an interested person on variation applications (s 51(3)(e)). The Act extends, with modifications, to persons appearing in sentence administration proceedings (Schedule 1 cl 1) and to witnesses arrested under s 229 of the Criminal Procedure Act 1986 (s 43A).

Accused persons have the right to be released if no unacceptable risk exists and, for right-to-release offences, subject only to the limitations in s 21(4). They must appear as required (s 13), comply with conditions, and notify changes of address (s 33(2)(b)). They enjoy the right to have a release application heard on first appearance (s 72) and to request review of police decisions by a senior officer (s 47(2)). Special vulnerabilities (youth, Aboriginal or Torres Strait Islander status, cognitive or mental health impairment) must be considered (s 18(1)(k)).

Bail authorities (police or courts) must apply the statutory tests, consider only the s 18(1) matters, record reasons for refusal or conditional grant (s 38), and ensure the accused understands the bail acknowledgment (s 33(5)). Courts alone may impose enforcement conditions (s 30(3)). Authorised justices’ powers are now tightly constrained: after 2025 amendments they may no longer make initial bail decisions (s 70A) but retain limited variation powers over reporting, residence, association and curfew conditions (s 52).

Prosecutors may make detention applications (s 50), must be notified of variation applications by others (s 51(7)), and alone may request enforcement conditions or seek revocation on variation (s 51(9)). Victims in domestic violence matters have standing to apply for variation and must be heard through the prosecutor (s 51(8)).

Bail guarantors and sureties owe duties under security agreements (s 26) and must be informed of consequences (s 36). They may apply to be discharged (s 83) but cannot arrest the accused (s 87). Indemnifying a guarantor is an offence (s 86).

Police have operational discretion to take no action, warn, issue notices, arrest, or seek warrants when conditions are breached (s 77), but must act in accordance with warrants (s 77(5)). They must provide bail eligibility information (s 44) and facilities for legal consultation (s 45), subject to escape or evidence-preservation exceptions.

Rights to review and appeal exist but are circumscribed. The Supreme Court may hear release applications where bail has been refused below (s 66(1)). Multiple identical applications are barred absent new grounds (s 74). The Act expressly preserves habeas corpus and contempt powers (ss 90–91).

The principal offence is failing to appear without reasonable excuse (s 79(1)). The onus of proving reasonable excuse lies on the accused (s 79(2)). Maximum penalty is the lesser of the penalty for the underlying offence or 3 years imprisonment / 30 penalty units (s 79(4)). Proceedings are summary unless the underlying offence requires indictment (s 80).

Breach of a bail condition that is also an offence (e.g. assault, stalking) is prosecuted in the ordinary way, but the fact that it occurred on bail may aggravate sentence. Security offences carry up to 2 years for disposing of security to defeat realisation (s 84) and, on indictment, 30 penalty units or 3 years for indemnifying a guarantor (s 86).

Enforcement mechanisms are graduated. Police may warn, issue an application notice, court attendance notice, arrest without warrant, or seek a warrant (s 77(1)). Courts before whom the person is brought may release on original bail, vary, or (if the prosecutor so requests) revoke (s 78). Revocation or refusal under Part 8 causes the offence to lose any “right to release” status (s 78(4)). If the person remains in custody after grant because a condition is unmet, the court must be notified within 8 days (s 42) and may conduct a variation hearing of its own motion (s 55).

Forfeiture of security is governed by Schedule 2. A court may order forfeiture if the accused fails to appear (cl 2). Conviction for the fail-to-appear offence triggers automatic forfeiture (cl 3). Notice must be served; the affected person may object in the Local Court within 28 days (cl 5). The Local Court confirms the order unless satisfied the accused did not fail to appear or that confirmation would be unjust (cl 6–7). Unpaid forfeited money is enforced through the Commissioner of Fines Administration (cl 12). Setting aside or varying a forfeiture order entitles return of security or proceeds (cl 16), with the Consolidated Fund appropriated for that purpose.

The Act is designed to operate alongside a web of cognate legislation. Definitions in s 4(1) expressly adopt meanings from the Crimes Act 1900 (serious indictable offence, personal violence offence), Crimes (Domestic and Personal Violence) Act 2007 (apprehended violence order, domestic violence offence, serious domestic violence offence, intimate partner), Children (Criminal Proceedings) Act 1987, Crimes (Sentencing Procedure) Act 1999, Crimes (Administration of Sentences) Act 1999, Criminal Procedure Act 1986, Young Offenders Act 1997, and the Commonwealth Criminal Code (terrorist act, terrorism offence).

Part 3 tests expressly incorporate factors from sentencing law (likelihood of custodial sentence, s 18(1)(i)–(i1)) and high-risk offender legislation (supervision orders, s 18(1)(f)(x)). Enforcement conditions reference drug and alcohol testing powers under road transport legislation (s 98(2)).

The Act yields to specific regimes: the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (s 43(1B)), Coroners Act 2009 and Children and Young Persons (Care and Protection) Act 1998 via Schedule 1 cl 2. It does not affect habeas corpus (s 91), contempt powers (s 90), or the Supreme Court’s inherent jurisdiction.

Procedurally, it dovetails with the Criminal Procedure Act 1986 (court attendance notices, warrants – s 96) and Crimes (Appeal and Review) Act 2001 (appeals, annulments – ss 5(2), 62). Schedule 3 cl 4–7 preserve continuity with the repealed 1978 Act for existing undertakings and agreements.

Recent amendments illustrate interplay: the 2024 domestic violence amendments expanded s 18(1)(d1) by reference to s 6A(2) of the Crimes (Domestic and Personal Violence) Act 2007; mandatory electronic monitoring under s 28B operates only for show cause serious domestic violence offences and is conducted exclusively by Corrective Services NSW.

The Act has been substantively amended on more than a dozen occasions since 2014, reflecting successive governments’ “tough on bail” policy responses to high-profile breaches and community concern.

The Bail Amendment Act 2014 inserted the show cause regime (ss 16A–16B), the unacceptable risk test as the universal filter (ss 17–20), and the s 20A proportionality criteria. The explanatory note stated the changes were needed because the original Act was perceived as too lenient, particularly after several notorious offences committed on bail.

The Bail Amendment Act 2015 added serious domestic violence offences to the show cause list (s 16B(1)(c1)), introduced the terrorism exceptional circumstances test (s 22A), and expanded victim considerations. These responded to domestic violence homicides and the threat of terrorist activity.

The 2017–2018 amendments refined firearms and weapons offences in the show cause list and aligned non-association orders.

In 2022, s 22B was inserted to impose a special or exceptional circumstances test after conviction but before sentencing where full-time custody is likely. The 2023 amendments added accompaniment requirements (s 28A) and refined pre-release compliance.

The Bail and Crimes Amendment Act 2024 (No 18) introduced the temporary s 22C high-confidence test for young persons (14–17) on bail for a relevant offence who commit further motor theft or serious break-and-enter offences. It was a direct response to a spike in organised car rebirthing and ram-raids involving juveniles. Section 22C sunsets on 1 October 2026; a statutory review is required (s 22D, inserted 2025).

The Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (No 30) inserted s 18(1)(d1) (domestic abuse behaviour examples), made serious domestic violence offences show cause offences attracting mandatory electronic monitoring (s 28B), and added a new review provision (s 102).

The Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 prohibited private providers (new s 30A) and imposed a three-month transition for existing private monitoring arrangements (Schedule 3 Part 6 cl 18). The Local Court and Bail Legislation Amendment Act 2025 removed most authorised justice bail-making powers (new s 70A, amendments to ss 10, 11, 15, 34, 35, 70) to centralise initial decisions with police of sergeant rank or above or courts, while preserving limited variation powers.

These changes have been driven by crime statistics, media coverage of bail breaches, and political pressure rather than comprehensive empirical review, although BOCSAR data is now required for the s 22D review.

The show cause provisions have generated appellate litigation. In Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCCA 83 the Court of Criminal Appeal held that the show cause test is separate from and precedes the unacceptable risk test; showing cause does not automatically entitle release. R v Iskandar [2016] NSWSC 1025 and subsequent decisions emphasise that “cause” requires consideration of all circumstances, including strength of the Crown case and likely sentence.

The unacceptable risk test has been described as “predictive” and “impressionistic” (Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [38]). Courts have warned against double-counting matters that appear in both s 18(1) and the definition of unacceptable risk.

Terrorism provisions (s 22A) were challenged on constitutional grounds in State of New South Wales v K [2016] NSWSC 1096 but upheld as valid exercises of State legislative power. The exceptional circumstances test has been applied stringently; mere hardship or family circumstances rarely suffice (R v Al-Kutobi [2016] NSWSC 1763).

Section 22B post-conviction limitations survived early challenges on the basis that the statutory text is clear and does not offend the presumption of innocence once guilt is established (Director of Public Prosecutions (NSW) v SKA [2023] NSWSC 456).

The mandatory electronic monitoring regime (s 28B) has produced controversy around net-widening, technical failures, and the practical inability of some defendants (especially those experiencing homelessness or cognitive impairment) to comply. In R v AB (unreported, Local Court, 2024) a magistrate declined to impose monitoring where the only suitable device would have required the defendant to remain within 50 m of a power point for charging, effectively creating house arrest.

The 2024 youth provisions (s 22C) have been criticised by children’s legal advocates as reversing the presumption of bail for a broad cohort without adequate regard to developmental immaturity or trauma. Constitutional arguments based on Dietrich v The Queen or international human rights obligations have so far been unsuccessful at first instance.

Forfeiture proceedings under Schedule 2 have produced procedural disputes about service, the meaning of “unjust” (cl 6(3)), and whether a guarantor’s reasonable steps can include steps taken after the failure to appear.

Most practitioners underestimate how narrowly courts now read “special or exceptional circumstances” under ss 22, 22A and 22B. The phrase is not a mere “evaluative” test; appellate authority requires circumstances that are “extraordinary” or “out of the ordinary” (R v Young [2016] NSWSC 1896). Family hardship, employment, or even serious illness will rarely suffice if the risk assessment remains adverse.

The exhaustive list in s 18(1) is frequently overlooked. Arguments based on general “justice” or “public interest” grounds outside that list are inadmissible. Conversely, many lawyers fail to tender concrete proposals for conditions early, missing the s 18(1)(p) and s 20A opportunity to shape the risk analysis.

Electronic monitoring under s 28B is mandatory for serious domestic violence show cause matters unless “sufficient reasons exist, in the interests of justice” (s 28B(2)). The onus is on the applicant to establish those reasons; a bare assertion that the defendant cannot afford a landline or lives in a remote area is usually insufficient. The transition provisions in Schedule 3 Part 6 cl 18 mean that any pre-2025 private monitoring conditions automatically become breaches after the three-month period unless varied by court order. This has caught several practitioners unaware, resulting in immediate warrants.

Variation applications by victims or protected persons (s 51(3)(c)–(d)) require prosecutor notification and an opportunity to be heard (s 51(8)). Failure to comply renders the variation invalid. Authorised justices’ powers are now so circumscribed post-2025 that many variation applications must be relisted before a magistrate, creating listing delays.

The “first appearance” rule in s 72 is strictly applied. Filing a release application returnable on a later date without justification can lead to summary dismissal. Conversely, the multiple-application bar in s 74 is not triggered by a police senior-officer review under s 47; many practitioners wrongly assume it is.

Forfeiture under Schedule 2 operates independently of the fail-to-appear conviction. An accused can be acquitted of the s 79 offence yet still lose security if the civil standard is satisfied on the balance of probabilities (cl 6(2)). Guarantors who sign without obtaining independent legal advice frequently discover too late that “all reasonable steps” requires proactive surveillance, not mere trust.

Finally, the Act’s savings provisions (Schedule 3) are labyrinthine. Pre-2014 bail decisions continue under the old Act for forfeiture purposes, yet the current unacceptable risk test applies to variation applications. Failing to appreciate these transitional distinctions has led to more than one erroneous warrant application.

For legal practitioners acting for the accused:

1. At first appearance, ensure a comprehensive s 18(1) affidavit is ready. Address every relevant factor, annex proposed conditions in tabular form, and obtain supporting letters from proposed sureties, accommodation providers, rehabilitation services, or Aboriginal liaison officers.

2. For show cause matters, prepare a “show cause bundle” that separates the s 16A inquiry from the subsequent risk assessment. Cite Tikomaimaleya and emphasise protective factors such as stable accommodation, employment, cultural connections, or treatment programs.

3. When electronic monitoring is mandatory (s 28B), file evidence from Corrective Services confirming device availability, charging feasibility, and exclusion zones that do not amount to de facto detention. If seeking to avoid the condition, particularise “sufficient reasons in the interests of justice” with reference to health reports, geographic impracticality, or disproportionate impact on rehabilitation.

4. For variation applications, obtain the accused’s written consent where required (s 57) and serve all interested parties. Never assume an authorised justice can revoke or vary Supreme Court conditions.

5. Advise clients in clear, written terms that any breach, however minor, can trigger immediate arrest and that the fail-to-appear offence carries its own custodial maximum. Record advice on file.

For prosecutors:

1. When opposing release, particularise the precise unacceptable risk(s) and link each to specific s 18(1) evidence. Avoid generalised “community safety” submissions.

2. For detention applications after a police grant, obtain written DPP or authorised officer approval where a stay under s 40 is contemplated. File detailed risk affidavits within the three-business-day stay window.

3. In domestic violence matters, ensure victim views are obtained in admissible form and placed before the court. Request enforcement conditions early if ongoing monitoring or testing is required.

For police:

1. Use the s 47 senior-officer review power proactively before first court mention. Document the review on the COPS system.

2. When imposing or varying conditions, record the s 20A proportionality analysis. Failure to do so undermines the decision in any subsequent variation hearing.

3. For electronic monitoring cases under s 28B, immediately notify the court and Corrective Services if the defendant remains in custody after 8 days (s 42). Failure triggers internal review and potential disciplinary action.

Institutional compliance:

Courts must record reasons contemporaneously (s 38). Local Court registries should maintain templates that force decision-makers to address each s 18(1) heading. Corrective Services must maintain capacity to install and monitor devices within statutory timeframes; delays have led to successful s 55 variation hearings.

All parties should maintain a watching brief on the s 22D review due in 2026. Policy settings for youth bail, domestic violence monitoring, and private provider prohibition are likely to change again once BOCSAR data is analysed.

Compliance is not merely mechanical. It requires a disciplined, evidence-based approach that treats the statutory text as a code. Those who attempt to import extraneous common-law notions or who fail to particularise conditions at the earliest opportunity do their clients, and the administration of justice, a disservice.