Bail Regulation 1992

The Regulation introduces or clarifies four main concepts.

First, service of notice under section 34(5)(b)(i) of the Act. Section 34 of the Act deals with requirements for granting bail, including the taking of an acknowledgment of the bail undertaking. Paragraph 34(5)(b)(i) requires that a notice be given to the accused person. The Regulation does not specify what the notice must contain or when it must be given; that is left to the Act. What the Regulation does is specify how that notice may be served. Section 4(2) lists four permissible methods: personal delivery; registered post to a home or business address; email to an email address of the accused person; or leaving it, addressed to the accused person, at a home or business address with someone who appears to be at least 16 years old and to live or be employed at the address. The address or email address used may be provided by the accused person or by a lawyer who represents or has represented them in the proceeding (section 4(3)). This creates a de facto election by the accused or their lawyer of where service will be effected.

Second, request for review under Division 6.1 of the Act. Section 38 of the Act (presumably, since that is the section cross-referenced in the Regulation) allows an accused person to apply for review of a bail decision. The Regulation provides that such a request may be made by the accused person or a representative of the accused person, and may be made either orally or in writing. This is procedurally permissive - it does not require a formal written application, though in practice a court may prefer one. The ability to make the request orally is significant in urgent situations where the accused is in custody and needs an immediate review.

Third, the limitation that an accused person may not make more than one application for review on the same grounds (section 6(1)). This is a restriction on serial applications. Once a ground for review has been raised and determined, the accused cannot return with the same argument. This prevents forum shopping or repeated attempts to persuade a different magistrate or judge of the same point. However, it does not prevent the accused from raising new grounds that arise after the earlier application.

Fourth, the limitation that an accused person may not apply for review if conducting the review would prevent them from attending court as required in relation to an offence with which they have been charged (section 6(2)). This is a temporal restriction. If the accused is required to appear in court at a particular time for another matter, and a review hearing would conflict with that attendance, the review cannot proceed. This protects the integrity of court processes and prevents the accused from using a review application as a means to avoid appearing on another charge.

The concepts are interconnected. The service rules ensure the accused receives notice of something (likely a condition or requirement related to bail), which may trigger their right to seek review. The review request can be informal (oral or written), but it is limited in scope and timing. The Regulation does not define what constitutes “same grounds” - that is left to judicial interpretation. It does not define “prevent the accused person from attending court as required” - does that mean physical impossibility, or also substantial likelihood of missing the scheduled appearance? The gaps create ambiguity that a practitioner must watch.

The Regulation directly affects three categories of persons.

Accused persons are the primary subjects. They are the ones who must be given a notice under section 34(5)(b)(i) of the Act. They are the ones who may request a review of a bail decision. They are the ones who are limited in making multiple review applications on the same grounds, and who cannot apply if the review would prevent them from attending court as required on another charge. Every accused person who is subject to a bail decision that attracts the notice requirement, or who wishes to challenge a bail decision, must comply with or navigate the Regulation’s rules.

Lawyers representing accused persons are directly affected. Section 4(3)(b) provides that a lawyer who represents or has represented the accused person in the proceeding may give to the court a home or business address or email address for the accused person for service purposes. This means the lawyer can effectively designate a service address, potentially their own office address, if the accused has no fixed address or unstable contact details. The lawyer also needs to be aware that if they provide an email address, the court or the party serving the notice may use that email address, and the lawyer may then be the recipient of the notice on behalf of the client. Lawyers also need to advise clients about the limitations on review applications - particularly that a second application on the same grounds will be invalid, and that a review cannot be scheduled if it conflicts with a court attendance obligation.

Persons who are at a home or business address when service is attempted are affected, though indirectly. Section 4(2)(d) allows service by leaving the notice, addressed to the accused person, at a home or business address with someone who appears to be at least 16 years old and to live or be employed at the address. That person is not a party to the proceedings, but they are used as a conduit for service. They have no legal obligation to accept the notice, but if they do, service is deemed effective against the accused. This can create practical issues: the person may not actually pass on the notice to the accused, yet the legal clock may start running from the date of service.

The court is affected because it must accept oral as well as written requests for review (section 5), and it must enforce the limitations in section 6. If an accused or their representative makes an oral request, the court needs to record the grounds and determine whether they are the same as a previous application. The court also needs to check whether the review would conflict with the accused’s attendance requirements on another charge.

The prosecuting authority (usually the Director of Public Prosecutions) is indirectly affected. While the Regulation only mentions the accused person and their representative as the actors who may request a review, the prosecution may be a respondent to such a review and may need to argue that the grounds are the same as a previous application or that the review would conflict with court attendance. The prosecution also has an interest in the service of notices: if a notice under section 34(5)(b)(i) is not properly served, the validity of any subsequent bail condition or acknowledgment may be challenged.

The Regulation does not create obligations for third parties such as sureties or accommodation providers, but those parties may be indirectly affected if they are at an address where service is attempted.

The Regulation imposes one clear duty and confers several rights, all weighted with limitations.

Duty to give notice: Under section 4(1), a notice must be given to the accused person. The Regulation does not say who must give the notice. Reading it with the Act, it is likely the court or a court officer who must give the notice under section 34(5)(b)(i). The duty is to give the notice to the accused person personally, or by using one of the four methods in section 4(2). There is no duty to ensure the accused actually receives or reads the notice; service is effective if the method is followed. This is a duty of delivery, not of receipt.

Right to request review: Under section 5, an accused person or their representative may request a review under Division 6.1 of the Act. The right is broad: the request may be made orally or in writing. This is a significant procedural right because it does not require a formal document or a court filing fee (the Regulation does not mention any fee). It allows an accused in custody to make an immediate oral application, which can be critical when liberty is at stake.

Right to choose service address: Under section 4(3), the accused person or their lawyer may give a home address, business address, or email address to the court for service purposes. This is a conditional right: if no address is given, the server must use personal service or other default methods. But if an address is given, the server can use it. This right can be exercised to ensure service is directed to a secure or convenient location.

Right to have notice left with an occupant: The server has the right (not the accused) to leave the notice with someone at the address under section 4(2)(d). The accused does not have a right to refuse that method. If the server chooses that method, the accused must accept constructive service.

Limitation on right to review: Section 6(1) restricts the right to review: the accused may not make more than one application on the same grounds. This means the right to review exists but is exhausted once a particular ground is raised. The accused cannot keep re-litigating the same argument. If new grounds arise later, a new application can be made. The right is thus a single-use right per ground.

Limitation on timing of review: Section 6(2) restricts the right further: the accused may not apply if the review would prevent them from attending court as required on another charge. This is a priority rule: the existing court attendance obligation trumps the right to review. The accused must either schedule the review at a time that does not conflict, or forgo the review until the other attendance is satisfied. This can create a practical dilemma if the review is urgent (e.g., the accused is in custody and wants to challenge a refusal of bail, but also has a pending mention on another matter the same day).

No right to unlimited applications: The Regulation does not confer a right to unlimited or repeated reviews. The limitations are explicit and are designed to protect the court’s resources and the integrity of the criminal process from abuse or delay.

The Bail Regulation 1992 does not itself create any criminal offences or penalties. It is a procedural regulation. However, the republication note states that at the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133). This is a standard note that applies to any ACT subordinate law that does create offences. Since the Regulation contains no offence provisions, this note is effectively redundant for most purposes. A practitioner should verify that no offence has been inadvertently imported by cross-reference to the Act - the Act may create offences for failing to comply with procedural requirements, and the Regulation may be relevant to establishing whether a requirement was complied with.

The enforcement mechanism for the Regulation is indirect. If a notice under section 34(5)(b)(i) is not served in compliance with the Regulation, the validity of any subsequent step (such as an acknowledgment of bail conditions or a breach allegation) may be challenged. A court may hold that the notice was not properly given and therefore the accused was not properly informed, which could affect the legality of any bail condition that depends on that notice.

Similarly, if an accused makes a review application that violates section 6 (e.g., a second application on the same grounds), the court has the power to refuse to hear it or dismiss it as invalid. The Regulation does not specify the consequence of non-compliance with section 6, but the natural consequence is that the application is not entertained. If an accused applies for review at a time that would conflict with a court attendance, the court may adjourn the review or strike it out.

There is no criminal penalty for a server who uses an incorrect method of service; the consequence is merely that the service is ineffective, and the notice must be re-served. There is no penalty for an accused who attempts to make a second application on the same grounds - the application will simply be dismissed, and the accused may be liable for costs if the court has power to award them.

The Regulation does not give any enforcement powers to police or other officials. Interpretation of what constitutes “same grounds” is a matter for judicial determination, not administrative enforcement. The limitations in section 6 are self-executing: they operate automatically to restrict the accused’s right.

The Regulation is made under the Bail Act 1992 and must be read in conjunction with that Act. The Regulation does not stand alone; it fills in procedural gaps left by the Act. Section 34 of the Act (the provision cross-referenced in section 4) deals with acknowledgment of bail undertakings and related notices. Section 38 of the Act (cross-referenced in sections 5 and 6) deals with review of bail decisions under Division 6.1. A practitioner cannot apply the Regulation without having the Act open.

The Regulation also interacts with the Legislation Act 2001. That Act governs the making, republication, and interpretation of subordinate laws. The republication note about penalty units comes from the Legislation Act. The Regulation’s amendment history shows reliance on the Legislation Act for editorial changes. Section 4 of the Regulation was substituted by SL2021-4, which was made under the Legislation Act’s procedures.

The service provisions in section 4 interact with broader service rules in ACT legislation. If a particular service method is not provided for in the Regulation, the server might fall back on the Service and Execution of Process Act 1992 (Cth) if the accused is interstate, or on the Court Procedures Rules 2006 (ACT) for general service rules. However, the Regulation is intended to be exhaustive for notices under section 34(5)(b)(i). If a server uses a method not listed in section 4(2), it would likely be invalid unless the Act itself allows it.

The Regulation does not interact with the Criminal Code 2002 (ACT) directly, but the underlying Act (the Bail Act) contains criminal offences for breaches of bail conditions that might arise from the notice given under section 34.

The limitation in section 6(2) - that a review cannot proceed if it would prevent court attendance - interacts with the court’s general power to control its own proceedings. If the accused is required to appear at a particular time, the court may not be able to hear the review in a way that avoids the attendance requirement. This could lead to tension if the review is urgent but the other attendance is imminent. The Regulation does not provide a mechanism to prioritise one over the other, leaving it to judicial discretion.

Section 5’s allowance for oral requests interacts with court practice directions or rules that may assume written applications. If a court’s criminal practice direction requires written applications for review, the Regulation would override that to the extent of any inconsistency, as the Regulation is a statutory instrument. However, the court may still require written grounds to be filed later.

The Regulation does not interact with the Human Rights Act 2004 (ACT). An argument could be made that the limitation on review applications in section 6(1) restricts the right to a fair hearing or the right to liberty, but the Regulation itself does not mention human rights. A court would need to consider whether the restriction is proportionate. This is a latent interaction, not an explicit one.

The Bail Regulation 1992 has been amended several times, and the amendments have consistently reduced its content.

Originally made on 27 November 1992 as the Bail Regulations (SL1992-30), it commenced on the same day. The original regulation contained sections 1 to 7 and a Schedule. Section 2 dealt with interpretation. Section 3 dealt with acknowledgment under paragraph 25(1)(b) of the Act. Section 4 was the service of notice provision. Section 5 dealt with request for review. Section 6 (without a heading at that time) dealt with limitations on reviews. Section 7 dealt with notice that a bail condition was not satisfied. The Schedule contained a form of notice under subsection 48(2) of the Act.

The first amendment was made by the Bail Regulations (Amendment) SL1994-43, notified on 20 December 1994. Most of its provisions commenced on 1 May 1995. This amendment omitted section 3, section 7, and the Schedule entirely. It also inserted the word “Regulation” into the name, changing it to “Bail Regulation 1992” from “Bail Regulations”. This was a substantive reduction, removing the acknowledgment provision and the form. Section 4 was likely amended at this time, though the amendment history does not show a substitution - only that section 7 and Schedule were omitted.

The next significant amendment came from the Legislation (Consequential Amendments) Act 2001 (A2001-44), part 31, which commenced on 12 September 2001. This amendment omitted section 2 (Interpretation). The reason was likely that the Legislation Act 2001 introduced its own interpretation provisions, making a separate interpretation section in the regulation redundant.

The regulation then remained unchanged for nearly 20 years. On 2 April 2021, the Bail Amendment Regulation 2021 (No 1) (SL2021-4) substituted a completely new section 4 (Service of notice). The old section 4 had been in place since 1992. The new section 4 expanded the methods of service to include email and leaving the notice with an occupant. It also added subsection (3), allowing the accused or their lawyer to provide an address or email to the court.

The same day, the regulation was also amended by the Crimes Legislation Amendment Act 2021 (A2021-6), part 3, which commenced on 9 April 2021. That Act changed the heading of section 4 from “Service of notice” to “Service of notice,Act, section 34 (5) (b) (i)”. This was a stylistic change to clarify the cross-reference.

The amendment history shows a regulation that has been progressively stripped of substantive content. Originally it had seven sections and a schedule; now it has four sections. The removal of the acknowledgment provision and the form suggests that those matters were deemed more appropriate for the Act itself or for court practice rather than a regulation. The 2021 amendments brought the service rules into the digital age, but also created new risks for accused persons who give email addresses.

The Bail Regulation 1992 is a procedural instrument of very limited scope. There is no publicly recorded case law that turns primarily on the interpretation of the Regulation itself. The reason is simple: the Regulation does not create rights of substantive significance beyond service and review procedure. Most litigation about bail in the ACT focuses on the Bail Act 1992 - the criteria for granting bail, the presumptions, the conditions, and the grounds for refusal. The Regulation is merely the machinery.

That said, there are potential litigation scenarios that could arise. The meaning of “same grounds” in section 6(1) is not defined. A litigant could argue that a second application raises a different legal argument based on the same factual basis, or that a change in circumstances constitutes a new ground. A court would need to construe the word “grounds” - does it refer to the legal basis for review (e.g., that the decision was manifestly unreasonable) or the factual circumstances (e.g., new evidence of a surety)? This ambiguity could lead to litigation if a magistrate refuses to hear a review on the basis that the grounds are the same, and the accused challenges that refusal by way of judicial review.

Similarly, section 6(2) - whether conducting a review would “prevent” the accused from attending court as required - is ambiguous. If the review hearing overlaps with the other court appearance by half an hour, is that prevention? Or must it be a complete impossibility to attend both? A strict reading would suggest any temporal conflict that makes it physically impossible to attend the other matter on time is “preventing”. But a court might adopt a broader interpretation, considering whether the review would cause the accused to be late or would create a risk of non-attendance.

Service of notice under section 4 could also be litigated. If a notice is left with a person at an address who appears to be at least 16 but turns out to be 15, or who appears to live there but does not, is service effective? The Regulation uses the word “appears”, which suggests a subjective test based on the server’s reasonable belief. But an accused could argue that the server did not take reasonable steps to ascertain the person’s age or residential status.

There is no reported case in the ACT Supreme Court or Court of Appeal that analyses these issues. The endnotes to the republication do not list any case references. The Litigation history of this regulation is, in practice, non-existent. This may change if the 2021 amendments to section 4 produce disputes about email service - for example, if an email is sent to an address that the accused gave but no longer uses, is service effective? The Regulation does not require confirmation of receipt.

Despite its short length, the Bail Regulation 1992 contains several traps for the unwary.

Bar on second review on same grounds (section 6(1)): The most significant trap is that an accused person cannot make more than one application for review on the same grounds. If a lawyer files a review application that raises the same legal argument as a previous application (even if the wording is slightly different), the application may be dismissed. The Regulation does not allow the accused to withdraw the first application and refile; once a ground is raised in any application, it is exhausted. This means that if the first application was poorly argued or the evidence was incomplete, the accused cannot simply return with better material on the same ground. They must find a different ground. This is a harsh rule that places a premium on getting the first review right.

Review cannot conflict with court attendance (section 6(2)): If an accused has a pending court appearance on another charge at the same time as the proposed review, the review cannot proceed. This can create a timing nightmare. The accused might be held in custody pending the review, but if the review would cause them to miss a mention on another matter, they must choose. The Regulation does not provide a mechanism to adjourn the other matter or prioritise the review. The court may have inherent power to manage its list, but the accused cannot insist on the review.

Service by email - no deemed receipt (section 4(2)(c)): The 2021 amendment added email as a permitted service method. The trap is that service is effected by sending the email to an email address provided by the accused or their lawyer. There is no requirement that the email be opened or read. If the accused changes email addresses and forgets to notify the court, or if the email goes to spam, service is still valid. The accused bears the risk of their email address becoming stale.

Service by leaving with an occupant (section 4(2)(d)): The server may leave the notice with someone who “appears” to be at least 16 and to live or be employed at the address. The trap is that the accused may never receive the notice. The person left with may forget to pass it on, throw it away, or be hostile. The Regulation deems this sufficient service. The accused is then expected to have been notified, and any consequences under the Act for failing to comply with the notice may follow.

Accused or lawyer can provide the service address (section 4(3)): This seems helpful, but it is a trap if the accused provides a temporary address without realising it will be used for all future service. If the accused later moves, they must proactively inform the court of their new address. Otherwise, notices may continue to go to the old address, and the accused may miss important deadlines.

No definition of “grounds” : The Regulation does not define what constitutes the “same grounds”. This ambiguity invites dispute. A cautious lawyer should frame each review application around distinct legal or factual points, and ensure that any new application relies on a different subsection of the Act or a different factual change.

Oral requests are allowed, but no record requirement: Section 5 allows an oral request for review. The trap is that there is no requirement that the oral request be recorded or reduced to writing. If the accused makes an oral request and later the same grounds arise again, the court may treat that oral request as the first application, barring a second written application on those grounds. The accused should be aware that any oral request, even informal, may exhaust their right to raise that ground again.

The Regulation is silent on who bears the cost of service: If the court or a party must serve a notice by registered post or email, the Regulation does not say who pays. In practice, the court may bear the cost, but if service is required by the prosecution, the cost falls on the public purse or the prosecution. This is not a direct trap for the accused, but it may affect the efficiency of the process.

Compliance with the Bail Regulation 1992 is primarily the responsibility of the court officer or party who must give a notice under section 34(5)(b)(i) of the Act, and of the accused person or their representative who wishes to seek a review of a bail decision. The Regulation does not impose compliance obligations on the general public.

For the person giving the notice (likely a court officer or prosecutor): Ensure that the notice is given to the accused person personally, or by one of the four methods listed in section 4(2). If personal service is impractical, consider which alternative method is most reliable. If using registered post, keep proof of posting and, if possible, proof of delivery. If using email, ensure the email address was provided by the accused or their lawyer under section 4(3) - do not use an email address obtained from a general database. If leaving the notice at an address with an occupant, document the appearance of the occupant: note their approximate age, and confirm that they appear to live or be employed at that address. If the address was provided by the accused or lawyer, note that too.

For the accused person or their lawyer when making a review application: Before making an application, check whether any previous application has been made on the same grounds. If it has, you cannot make another. If the accused has previously made an oral request for review on the same legal basis, that counts as a prior application. Keep a record of all review requests, including the grounds stated. If a previous application was dismissed without a hearing on the merits, consider whether that still counts as an application - the Regulation does not require a hearing, only an “application”. To be safe, treat any formal request as exhausting the ground.

Check court attendance obligations (section 6(2)): Before applying for review, ensure that the review hearing will not prevent the accused from attending any other court appearance required on another charge. If there is a conflict, seek to have the other appearance adjourned first, or schedule the review at a different time. Do not assume the court will resolve the conflict; the Regulation places the burden on the accused not to apply if it would cause a conflict.

Provide accurate contact details: If the accused or their lawyer provides a home address, business address, or email address to the court for service, ensure that the details are current and will remain accessible for the duration of the proceedings. Notify the court immediately if the address changes. Consider providing a lawyer’s address rather than the accused’s residential address if the accused is experiencing homelessness or unstable housing. The lawyer should be aware that by providing their own email address, they may become the recipient of notices and have a professional obligation to forward them promptly.

Record oral requests: If making an oral request for review, ask the court to note the grounds on the record. Ensure that the court officer or registrar records the grounds in writing. This will help prevent a later dispute about whether a ground has already been raised. The accused or lawyer should also make their own file note of the date, time, and grounds.

Review the Act: Since the Regulation is parasitic on the Act, compliance with the Regulation is meaningless without understanding which sections of the Act are triggered. Always read sections 34 and 38 of the Act together with the Regulation.

No filing fee: The Regulation does not impose a fee for making a review request. If a court practice direction purports to require a filing fee, it would likely be inconsistent with the Regulation, which allows an oral request without any form. A lawyer should resist any attempt to impose a fee for an oral application.