Bail
With a few exceptions, people who are arrested and charged have a right to apply for bail. This generally happens shortly after you are charged with offences. If you are under 18 years of age, any guardian present must also be notified of this process - see our section for Under 18s below. Bail is essentially the basis on which a person who has been charged with a criminal offence may be released back into the community while awaiting their court hearing.
For most offences, except the most serious, bail can be granted by the police. At the City Watchhouse, the police officer responsible is required to consider whether bail should be granted. Often the police will just present you with a bail agreement that they have prepared and ask you to sign it.
There is no automatic right to bail. To refuse bail, the police generally must show that there is an unacceptable risk that, if released, you would:
Fail to appear (on your court date) and surrender into custody;
Commit an offence;
Endanger the safety or welfare of the alleged victim;
Interfere with a witness or otherwise obstruct the course of justice; or
Be a danger to yourself (eg self-harm or retaliation).
For activists, bail is more commonly granted on the person’s promise (or undertaking) to attend court, and sometimes other conditions. Often there is an undertaking not to take part in similar actions or attend certain places (eg a mine site, or the headquarters of a company).
Certain activists have been subjected to demanding conditions, which may include being barred from travelling to other states or participating in protests. If these conditions or others are too burdensome to comply with, it may be possible to discuss them with the police officer in charge before your release. It's important to know that negotiating bail conditions can make a difference for future arrestees, as it has been observed that police may be less likely to impose stricter conditions in response.
It is possible to dispute your bail conditions after you have agreed to them and been released. Again, we recommend seeking independent legal advice.
Bail may be refused if you have outstanding court matters or fines, a history of failing to appear, or if your case is very serious. The rules on being granted bail are set out in the Bail Act 1985.
how to apply for bail after being arrested
Ask to sign a Form 1 that formally indicates that you wish to apply for bail. When you APPLY for bail but cannot reach an agreement with the police about bail conditions, or the police refuse your application for bail, you immediately have the following rights:
You must be brought before a Magistrate before 4pm the next working day (most likely by 10am the next day).
If the next day is Saturday or Sunday or a public holiday, even during the night you are entitled to a telephone review of your bail conditions by a magistrate.
However, if you fail to sign the Form 1, you may not be brought to court for FIVE working days and you will not have a right to have a telephone review.
Before signing the bail agreement, read it. Check that you are able and willing to comply with its terms.
If the police try to impose conditions that you find disagreeable, then you have the following four options:
Accept the conditions and sign the bail agreement in order to leave the police station; or
Negotiate with the police for the removal of the conditions, staying at the police station while negotiations take place; or
Ask to telephone a solicitor for legal advice about the conditions, staying at the police station while negotiations take place; or
If you have already accepted bail and have left the police station, ask your solicitor to liaise with the police on your behalf about the conditions. See below for more information.
Breaching the conditions of a bail agreement is a criminal offence so if you are unwilling or unable to comply with the terms, then you might not want to sign the bail agreement. You might want to ask the police if they are willing to vary the terms to ones that are more acceptable to you before you sign it. Depending on the circumstances, this may be easy or difficult to negotiate.
As point 4 states, once released on bail, you may decide that you want to ask for the bail conditions to be changed. You can attend at any police station for this purpose, although they may tell you to attend at the City Watch House. It is a good idea to fill out a Form 7 beforehand. If you are not successful in your application to the police for a variation of bail, you can apply to the Magistrates Court. You will need to submit your Form 7 to the Registry at the Magistrates Court and your bail variation application may be dealt with administratively or you may be required to attend court and appear before a magistrate.
You do not need to wait until your first court hearing to make an application to change your bail conditions. However, variations are generally only granted if you have a good reason. It is strongly recommended that you obtain legal advice before a telephone review or application for bail (or to vary bail) in court.
For more information, see the Law Handbook on bail.
Last revised: August 2021