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

Unlike most of the other states and territories, there are no special laws about bail for family violence offences.  This means that the same rule apply as for other crimes.

Generally, because people are presumed innocent until proven guilty, they have a right to bail.  Bail may not be granted if there is a risk that the person will not come to court, or if the person is a risk to the safety of another person.  There is also a presumption against granting bail for some serious offences.

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 while they wait to come before a court and have the case against them finalised.

Bail will also be granted while 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 that the person is unlikely to give themselves up into custody or is likely to commit an offence while on bail, or that they may 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 certain situations related to stalking and disobeying family violence notices and orders.

In family violence matters, the court will consider whether there is a risk that the accused will commit further family violence, and it will consider whether a family violence order should be made to limit this risk.

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.