How to Get Bail in Australia? A Complete Guide to the Bail Process and Conditions

Key Takeaways

• What Bail Is: Bail is not a determination of guilt or innocence. It is a legal promise (an "undertaking") that allows an accused person to be released from custody on the condition that they will appear in court on their next court date.

• Police Bail vs. Court Bail: Police can grant bail at the station. If they refuse, the accused person must be brought before a court as soon as possible for a magistrate or judge to decide on bail.

• The "Unacceptable Risk" Test: The central question for a court is whether the accused poses an "unacceptable risk" of failing to appear, committing another serious offence, endangering the community, or interfering with witnesses.

• A Lawyer is Essential: A bail application is a formal and complex legal hearing. Success often depends on having an experienced criminal lawyer who can prepare the application properly and argue effectively in court.

Introduction

Receiving a call that a friend or family member has been arrested and, worse, refused bail by the police is a deeply distressing experience. You are immediately faced with urgent questions: What happens now? What can I do? How do we get them out?

This is the start of the formal bail process. Navigating it requires a clear understanding of the law and swift, purposeful action. While it is a stressful time, knowing what to expect can empower you to provide the best possible support for your loved one.

This guide provides a calm, clear overview of the court bail process in Australia, explaining what bail is, how a court makes its decision, and the practical steps you can take to help.

Important Note: Bail laws are complex and legislated by each state and territory. This article uses the law in New South Wales (NSW), primarily the Bail Act 2013, as a guiding example. The principles are similar across Australia, but the specific legal tests and rules will differ.

Learn more about the Bail Act 2013 in NSW at NSW Legislation.

Bail is essentially a promise made by an accused person to a court. In exchange for being released from custody while their case proceeds (which can take many months), they agree to abide by certain conditions and guarantee they will attend court on their next scheduled date.

It is a fundamental principle of our justice system that a person is presumed innocent until proven guilty. Bail allows a person who has not been convicted of a crime to remain in the community, continue working, and prepare their case with their lawyer.

When a person is arrested and charged with an offence, the first decision about bail is made by the police at the police station.

• Police Bail: A senior police officer (like the custody manager) has the power to grant bail. This is common for less serious offences. They can release the person with or without conditions.

• Bail Refused: If police believe the person poses too great a risk, they can refuse bail. When this happens, the person will be held in police custody overnight (or over a weekend) and must be brought before a court as soon as practicable. This triggers a formal court bail application.

When the accused person appears in court from custody, their lawyer can make a formal bail application to the magistrate or judge. The court's decision is not based on whether the person is guilty or innocent, but on an assessment of future risk.

In NSW, this involves a two-step process for more serious offences:

1. The 'Show Cause' Test (for Serious Offences)

For a list of serious offences (e.g., certain violent crimes, major drug supply), the accused person must first overcome a preliminary hurdle. They must "show cause"—that is, present evidence to the court to prove that their detention is not justified. This is a difficult test to meet.

2. The 'Unacceptable Risk' Test (The Main Test)

If the 'show cause' test is passed (or if it doesn't apply for less serious charges), the court moves to the main test. The prosecutor will outline their concerns, and the court must assess whether there is an "unacceptable risk" that the accused person, if released, will:

• Fail to appear at court in the future.

• Commit another serious offence.

• Endanger the safety of alleged victims or the community.

• Interfere with witnesses or evidence.

If the court finds that one or more of these risks is "unacceptable," it must refuse bail.

If the court believes there are risks, but they are not "unacceptable," it can grant bail with strict conditions designed to manage those risks. The goal of these conditions is to ensure the community is safe and the person will attend court.

Common bail conditions include:

• Reporting to a specific police station several times a week.

• Residing at a particular, stable address.

• Agreeing to a curfew (e.g., being home between 8 pm and 6 am).

• Not contacting alleged victims or prosecution witnesses.

• Surrendering their passport and not going near an international airport.

• Agreeing to be of good behaviour.

• Providing a surety – where a person (like a family member) pledges a sum of money to the court, which they agree to forfeit if the accused fails to appear.

As a friend or family member, you can play a crucial role in helping to prepare a strong bail application.

• Contact a Criminal Lawyer Immediately: This is the single most important step. An experienced lawyer understands the bail laws and knows how to present the strongest possible case to the court.

• Gather Character References: Letters from employers, long-term friends, community leaders, or doctors can help show the court that the accused is a responsible person with strong ties to the community.

• Organise a Stable Address: A person is much more likely to get bail if they have a stable place to live. You can offer to have the person live with you and agree to notify the police if they are not complying.

• Consider a Surety: If you are in a financial position to do so, you could offer to be a surety, pledging money or property to the court. This provides a strong financial incentive for the accused to comply with their bail.

• Attend Court to Show Support: The presence of supportive family and friends in court demonstrates to the magistrate that the accused has a strong support network.

A bail application is one of an accused person's most critical court appearances. It is a complex legal hearing where a magistrate must weigh the person's right to liberty against the need to protect the community and ensure the integrity of the justice system.

Success is never guaranteed, and the process can be incredibly challenging. However, by understanding the concept of risk assessment and taking proactive steps to prepare, you can give your friend or family member the best possible chance of being granted bail. The most critical step of all is engaging an expert criminal lawyer to guide you through it.

AHL Legal: Your Partner in Navigating the Bail Process

Facing a bail application or need guidance on the bail process in Australia? At AHL Legal, we provide expert legal advice and representation to protect your rights and achieve the best possible outcome.