Being charged with a criminal offence raises an urgent question straight away. Will you go home, or will you stay in custody until the case is heard? The answer depends on bail. Each state and territory has its own bail laws, so the details vary across Australia.
This guide explains how bail works in general terms. It uses New South Wales as the main example, because its process is set out clearly by Legal Aid NSW. Victoria and the other states have their own Acts with different tests.
What bail means
Bail is the release of a person from custody after they have been charged with a criminal offence. The main condition is that they come back to court on a set date. Other conditions may also apply. These can include reporting to a police station or offering money.
Bail is not a finding about guilt. It is a decision about what happens while the case runs through the courts. A person on bail still has to answer the charge. The question is only whether they wait at home under conditions or wait in custody.
Who decides bail
In New South Wales the rules are in the Bail Act 2013 and the Bail Regulation 2021. According to Legal Aid NSW guidance on bail, police can release a person without bail or grant bail with or without conditions. Police can also refuse bail. If they do, they must bring the person before a Local Court as soon as practicable.
The Local Court can then hear a bail application. If the Local Court refuses bail, the person can apply to the Supreme Court. A person appealing a conviction or sentence can apply for bail to the court hearing the appeal. Legal Aid NSW says there are no fees to make a bail application or to apply to vary bail.
Other states follow a similar pattern, but with their own legislation. In Victoria, for example, bail is governed by the Bail Act 1977. The tests and the offences treated as most serious differ from state to state. That is one reason local legal advice matters so much here.
The unacceptable risk test
In New South Wales police or the court must look at what the Act calls bail concerns. These are risks that the person, if released, will fail to attend court or commit a serious offence. They also include risks to the safety of the alleged victim or the community. Interfering with witnesses or evidence is another concern.
Bail must be refused if there is an unacceptable risk of any of these things. Conditions can sometimes reduce a risk enough for bail to be granted. A curfew, a reporting order or a rule against contacting certain people are common examples. The aim is to manage the risk rather than punish the person before trial.
Show cause offences
Some offences are treated more strictly in New South Wales. These are called show cause offences. They include offences with a maximum penalty of life imprisonment and serious personal violence offences. Certain firearms and commercial drug offences are also on the list.
Offences committed while already on bail or parole can also fall into this group. For a show cause serious domestic violence offence, a person granted bail must generally wear an electronic monitoring device. Legal Aid NSW explains this is a GPS device fitted before release. Drug charges come up often in this area, and the debate about them is wider than bail. Our article on the legal regulation of drugs looks at that debate.
Bail conditions and what happens if they are broken
Bail conditions can cover where you live, when you must be home and who you can contact. Some people must report to police on set days. Money or security may also be offered. In NSW a bail guarantor is someone who offers security, such as a home, on the accused person’s behalf.
- Living at a set address
- Reporting to a police station on set days
- Keeping a curfew
- Not contacting named people
Breaking any condition is a breach of bail. The prosecutor can make a detention application asking the court to revoke bail. Failing to attend court when required is a separate offence. Money offered as bail can be forfeited if the conditions are breached.
Conditions can also clash with daily life, such as work hours or caring for children. In NSW an application can be made to vary bail conditions. If conditions affect contact with your children, family law issues can arise as well. Our piece on parenting orders explains how those orders work.
Keeping work and business going while on bail
A criminal charge can put pressure on your job, even before any finding is made. Reporting times or curfews may clash with your rostered hours. Questions about how your employer treats a charge are among the cases employment lawyers deal with. It is worth getting advice before you discuss the charge at work.
People who run a small business face a different problem. Invoices still need to be sent and chased while the case is underway. If you work as a contractor, our guide on getting paid as a subcontractor covers the basics. Having someone you trust to manage the paperwork can help a great deal.
Frequently asked questions
Does getting bail mean the charge is weak?
No. Bail decisions are about risk while the case is underway. They do not decide guilt or innocence. A person on bail still has to answer the charge in court.
Can I apply again if bail is refused?
In NSW a person refused bail in the Local Court can apply to the Supreme Court. Other states have their own rules and appeal routes. Bail decisions in NSW must also be made as soon as possible after a charge. A lawyer can explain which court to approach and when.
Can my bail conditions be changed?
Yes. In NSW an application can be made to vary bail conditions. The prosecution can also apply to change them. You must keep following your current conditions until a court changes them.
Do these rules apply to people under 18?
Not in the same way. The Legal Aid NSW guidance covered here does not apply to young people charged with an offence. Different protections and processes apply to them. A lawyer or Legal Aid can explain the rules for young people.
This article is general information only and is not legal advice. Bail laws and processes differ between states and territories and change over time. Speak with a qualified criminal lawyer about your own situation.