Bail laws

What is bail?

Bail is a way to ensure a person who has been charged with an offence will:

• attend court
• not commit further offences, and
• not interfere with witnesses or evidence.

If granted bail, the person is released into the community under conditions set by the bail decision-maker until their case is heard. People on bail must follow rules like reporting to police or staying at home during certain hours (curfew). If they don’t follow the rules, they can be arrested and held in custody.

If someone is not granted bail, they are remanded in custody. This means they must stay in either a prison or a youth justice facility while they wait for their court hearing or trial.

Bail applications are governed by the Bail Act 1977.

Granting bail

All people charged with a crime are entitled to be granted bail unless the bail decision maker is required to refuse bail. To be granted bail, almost all people who apply for bail face an ‘unacceptable risk’ test. The test assesses the likelihood the person will:

• miss their court hearing
• commit a serious offence
• obstruct justice (such as interfering with witnesses or evidence)
• put someone else’s safety or welfare at risk while on bail.

The bail decision-maker will only grant bail if there is not an unacceptable risk.

People charged with a serious crime face additional, harder bail tests. These tests require the person to convince the bail decision-maker why they should be granted bail. The new bail laws are making changes to these harder bail tests.

Protecting community safety

The new laws reinforce that community safety and the safety of people affected by crime are key considerations in whether a person is granted bail. They also remove the principle that remand is a last resort for a child.

New laws for breaking bail rules

There is a new offence for breaking bail rules.

It is now an offence to:

• commit a serious crime while on bail
• breach bail conditions, such as not reporting to police or missing curfew.

The maximum penalty for these offences is 3 months imprisonment.

Where a person fails to follow the rules, they may be charged with the new offences. They can also have their bail varied or revoked.

The new laws also streamline bail revocation processes. Police are now allowed to bring a person they have arrested for breaching bail conditions directly to court (instead of waiting for a bail justice).

These laws have already started.

More crimes to face our toughest ‘exceptional circumstances’ bail test

People charged with serious high-harm crimes face our toughest bail test. To be granted bail, people charged with these offences must demonstrate ‘exceptional circumstances’ exist to justify their release on bail.

Additional crimes have been added to the list of serious high-harm crimes, including:

• armed robbery
• aggravated burglary
• home invasion
• carjacking.

This means that, for these types of crimes, bail is harder to get – even on the first charge.

This law has already started.

More crimes to face the ‘show compelling reasons’ bail test

People charged with other high-harm crimes also face an additional test before being granted bail. People charged with these offences need to ‘show a compelling reason’ to justify their release on bail.

Additional crimes have been added to the list of high-harm crimes, including:

• serious gun crimes
• serious arson
• offences involving the use of machetes
• stealing a car (if charged along with other offences such as conduct endangering life).

This means that, for these crimes, bail will be harder to get than before.

This law has already started.

New tougher bail tests for repeat offenders

The bail reforms introduce tougher bail tests for people who are charged with a serious crime while already on bail. These new reforms will start no later than April 2026.

A new ‘high degree of probability’ test

The new ‘high degree of probability’ bail test will soon apply to people who are charged with carjacking, home invasion, armed robbery or aggravated burglary while already on bail for one of these offences.

It will be extremely difficult for these people to be released on bail. For bail to be granted:

• they must prove that there are exceptional circumstances for being granted bail
• there must be a high probability that they will not commit another serious high-harm offence, and
• they must not pose an unacceptable risk if released on bail.

Uplift

A new 'uplift' principle will soon apply to people accused of repeat offending. This means they will face stricter bail tests than they would if they were accused of an offence for the first time.

For bail to be granted:

• they must prove that there is a ‘compelling reason’ for being granted bail, and
• they must not pose an unacceptable risks if released on bail.

It will apply for people who are:

• already on bail for committing an indictable offence, and
• are charged with a new indictable offence (unless the new indictable offence is an excepted offence).

Indictable offences that may be subject to uplift cover a wide range of offending including:

• burglary
• robbery
• riot and affray
• motor vehicle theft
• assault.

The uplift bail reform will include protections that exclude some non-violent or low-level offences such as minor shoplifting, fraud and small-scale drug possession to help make sure vulnerable people are not unfairly affected. This includes people who are homeless or those with mental illness and addiction.

Changes to electronic monitoring

One of the rules that courts can impose when granting bail is called electronic monitoring. If someone is granted bail subject to electronic monitoring, they must always wear a GPS tracker.

The new bail laws limit private companies from providing electronic monitoring services.

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