Bail

Check your region below to find out about bail in family or domestic violence incidents.

Differences between states

Northern Territory

In the Northern Territory, the Bail Act creates a presumption against bail regarding some kinds of repeated alleged offending that may occur as part of family violence – including stalking and some kinds of assault.

A presumption against bail requires the alleged offender to show why bail should not be refused, and this may include arguments that the person is not a risk to the person they are accused of harming. This includes any children who may have witnessed the family violence.

Bail may not be granted if they cannot prove that they are not a risk. In deciding whether to grant bail, consideration may also be given as to the person’s suitability for appropriate rehabilitation.

ACT

The Bail Act states that an alleged offender should not be granted bail unless they pose no danger while on bail to the person they are accused of harming. This includes any children who may have witnessed the domestic violence. Bail may not be granted if they cannot prove that they are not a risk.

The police must try and tell the person who suffered domestic violence that the alleged offender is on bail, and what the bail conditions are.

In deciding whether or not to grant bail a judge, court or police officer considers:

  • The chance of the offender committing another offence, or harassing anyone;
  • The likelihood of the offender interfering with evidence or intimidating a witness;
  • If the victim has said they are worried about protection from violence or harassment by the accused.

NSW

The police have a duty to arrest and charge anyone they reasonably suspect has committed a crime and consider whether bail should be granted. For domestic violence offences, the police should apply for an Apprehended Violence Order for the victim and should also consider putting the alleged offender on conditional bail.

Victoria

Victoria’s laws about bail are mainly found in the Bail Act 1977.

With limited exceptions for very serious offences, anyone who has been accused of an offence and taken into police custody will get bail whilst they wait to come before a court and have the case against them finalised. Bail will also be granted whilst they await sentencing after being found guilty of an offence, unless it is not in the public interest to grant bail. Bail may be refused if the court finds the person is unlikely to give themselves up into custody or is likely to commit an offence whilst on bail, endanger others or interfere with witnesses.

In some situations the court will refuse bail unless the accused person can show why they should not be kept in custody. This includes where they are accused of:

  • a stalking offence; or
  • not obeying a family violence intervention order or a family violence safety notice; or
  • not obeying a personal safety intervention order; and

They are alleged to have used or threatened to use violence whilst committing the offence; and

  • within the past 10 years they have been found guilty or convicted of a stalking offence or other offence during which they used or threatened violence; or
  • the court is satisfied that on a separate occasion they used or threatened to use violence against the person they are accused of stalking or the person protected by the family violence or personal safety intervention order (regardless of whether they have been charged/found guilty or convicted of a related offence).

South Australia

In South Australia, bail matters are regulated by the Bail Act 1985 (SA). Any accused may apply for bail and can be released on bail as opposed to being kept in custody, after he/she has been charged with an offence and prior to conviction.

When someone has not yet been convicted of an offence and makes an application for bail, the Bail Act (SA) provides a presumption in favour of bail being granted, as the person has not yet been convicted of any offence. In some circumstances however, an accused may not be granted bail depending on circumstances such as:

  • the seriousness of the offence; or
  • if he/she is likely to abscond, offend again, or interfere with witnesses.

An accused person may apply for bail at any stage during criminal proceedings. Bail can be granted by either the police or the courts.

Tasmania

The Family Violence Act has its own bail provisions, which are very different to other offences. Unlike other offences, the alleged offender has to show that they are not a risk to the person they are accused of harming. This includes any children who may have witnessed the family violence. Bail may not be granted if they cannot prove that they are not a risk.

In deciding whether or not to grant bail a judge, court or police officer must have regard to the following matters:

  • any available risk assessment, safety audit or rehabilitation program assessment;
  • the offender’s demeanour;
  • the availability of suitable accommodation for the offender and victim or affected children; or
  • any other matter considered relevant.