NSW Bail Act 2013 | Criminal Law | Armstrong Legal

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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.


New South Wales’ bail laws are governed by the Bail Act 2013, which significantly changed the state’s bail laws from what they were previously. The courts now have fresh criteria to apply and a person is generally more likely to be granted bail than they were under the old act (Bail Act 1978).

The Bail Act 2013 gives the court power to:

  • Dispense with bail (ie release a person from custody without any conditions whatsoever);
  • Grant bail conditionally or unconditionally (ie release a person from custody with or without conditions);
  • Refuse bail.

How does a court decide whether to grant bail?

Sections 17 and 18 of the Bail Act set out how a court determines whether to grant bail to an accused person. The factors that a court must consider are:

  • the likelihood of the person appearing at court to answer their charges;
  • the likelihood of them committing an offence while on bail;
  • The likelihood of them harassing or endangering anyone while on bail;
  • the likelihood of them interfering with evidence, witnesses or the administration of justice while on bail.

If the person has already been found guilty of the offence, the court must also consider the likelihood of them being sentenced to imprisonment, along with other factors.

Bail for show cause offences

Show cause offences are offences for which the accused person must ‘show cause’ for why they should be released from custody.

Show cause offences include:

  • Serious child sex offences;
  • Serious personal violence offences where the accused has a prior record for serious violence;
  • Offences punishable by a maximum penalty of life imprisonment.

How likely is bail to be granted?

The likelihood of bail being granted to a person depends on whether the court considers their release would pose an unacceptable risk. This will be assessed based on the seriousness of the charges against them, their criminal history and other considerations.

Bail conditions

When the court grants a person bail it has the power to impose a range of conditions to address any concerns the court has about their behaviour while on bail.

A person’s bail conditions may include a condition to abstain from alcohol or drugs, to adhere to a curfew, not to associate with alleged co-offenders, or to surrender their passport while on bail.

Bail conditions relating to treatment and rehabilitation can also be imposed where the offending was related to drug or alcohol use.

Can I apply for bail more than once?

Section 74 of the Bail Act states that a court may not hear a further bail application from a person who has previously been refused bail by the same court unless there are grounds for a further application.

Grounds for a further bail application exist if:

  • At their first bail application they were unrepresented;
  • Their circumstances have changed since their first bail application;
  • Fresh information is to be presented;
  • The person is a child and the first bail application was made on their first court appearance in relation to the matter.

Supreme Court bail

A bail application can be made in the Supreme Court. Supreme Court bail applications follow a more formal process and material in support of the application must be presented in affidavit form. A bail application may be made in the Supreme Court when a person’s criminal matter is before the Supreme Court or when a person is seeking a review of a refusal by a magistrate or District Court judge to grant bail.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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