What Is Bail in NSW?

When someone is charged with a criminal offence in New South Wales, one of the first questions they want to know is whether they will be released from custody. This decision is made through the bail process, which is governed by the Bail Act 2013 (NSW).

Under section 7 of the Bail Act, ‘bail’ means ‘authority to be at liberty for an offence’. In simple terms, it is permission for a person accused of a criminal offence to remain in the community while their criminal matter is before the court and until it is finalised.

The Bail Act 2013 (NSW) sets out:

• How bail decisions are made using the “unacceptable risk” test;
• Special rules for certain offences;
• The types of bail conditions that can be imposed; and
• The procedures for applying for, reviewing and varying bail.

Whether bail is granted depends on the seriousness of the offence, your criminal history, whether you have a history of non-compliance with court orders, and whether you pose an unacceptable risk of failing to appear, committing further offences, endangering others, or interfering with witnesses.

There will always be a risk when the Court is deciding whether or not to grant someone bail. The question is whether that risk is an unacceptable risk such that that person needs to remain in custody. If no unacceptable risk exists, you are likely to be granted bail or released without bail pending your next court date.

What Is a Bail Application?

A bail application is a request made to a court or police officer for a decision about whether a person charged with a criminal offence should remain in custody or be released on bail pending the finalisation of their matter.

There are three main types of bail applications in NSW:

• Release application – made by the accused person seeking bail;
• Detention application – made by the prosecution asking for bail to be refused or revoked;
• Variation application – made by an “interested person” seeking to change existing bail conditions.

Under section 51 of the Bail Act, an “interested person” can include:

• The accused person;
• The prosecutor;
• A complainant in a domestic violence matter; or
• The Attorney General.

Because a bail application can determine whether you stay in custody or go home, it’s vital to have an experienced criminal defence lawyer who understands the Bail Act and can prepare the necessary documents and persuasive submissions to the court to secure your freedom. Our solicitors at Jameson Law have appeared in complex bail applications in both the Local Court and Supreme Court and can help you fight for and secure your liberty.

Who Decides Bail in NSW?

Bail decisions are made by a bail authority, which can be:

• A police officer of or above the rank of sergeant; or
• A court (Local Court, District Court, or Supreme Court).

Police can grant or refuse bail after an arrest when you are taken into custody. If police refuse to grant you bail, or if the person is arrested on a warrant, you must be brought before a court as soon as practicable for a bail hearing. This is where a Magistrate of the Local Court will then determine whether you should be granted bail, even if the Police have refused to give you bail.

Each court can hear bail applications for matters within its jurisdiction. The Local Court handles most bail applications; however you can apply to the Supreme Court for a bail application if your bail application has been refused by the Local Court.

What Happens During a Bail Application?

Local Court Bail Applications

Most bail applications start in the Local Court. The typical process includes:

• Your solicitor will tell the Magistrate you are making a bail application
• The police prosecutor will provide material such as the police Facts Sheet and your criminal history.
• Your lawyer will review the police documentation and may object to any disputed material.
• Your lawyer will provide the court with any documents in support of you being released on bail including affidavits from your family members, proof of your employment, any information that can affect the strength of the prosecution case
• The Magistrate will ask whether the police prosecutor opposes bail. The police prosecutor will usually oppose the grant of bail on the basis of unacceptable risk.
• Your lawyer will make bail submissions about why you are not an unacceptable risk and should be released.
• After considering all evidence and submissions, the Magistrate decides whether to grant bail and, if so, on what conditions.

How Does a Magistrate Decide a Bail Application?

Under section 8 of the Bail Act, a bail authority can:

• Release a person without bail;
• Dispense with bail;
• Grant bail (with or without conditions); or
• Refuse bail.

When deciding a bail application, the Magistrate must consider factors listed in section 18 of the Bail Act, including:

• The accused’s background, criminal record and community ties;
• The nature and seriousness of the offence;
• The strength of the prosecution case;
• Any history of violence or breach of bail; and
• The likelihood of appearing in court or reoffending.

If the court finds an unacceptable risk under section 19, bail will be refused. If no unacceptable risk exists, the court must grant bail or release the accused.

When Will You Be Granted or Denied Bail?

You will generally be granted bail if you:

• Do not pose an unacceptable risk; and
• (If applicable) can show cause why detention is not justified.

You may be refused bail if the court believes you might:

• Fail to appear in court;
• Commit further offences;
• Endanger the safety of others; or
• Interfere with witnesses or evidence.

What Are Bail Conditions?

If bail is granted, the court may impose bail conditions to address specific “bail concerns” such as the risk of not appearing or committing further offences.

Under section 20A of the Bail Act, conditions must be:

• Necessary to address a bail concern;
• Reasonable and proportionate;
• No more onerous than required; and
• Practicable for the accused to comply with.

Examples of Bail Conditions

• A reporting condition that requires you to report regularly to a police station;
• A residence condition that requires you to reside at a specific address;
• A curfew condition that prevents you from leaving your residence at certain times of the day or night, or unless you are in the company of certain people;
• A non-association condition that prohibits you having contact with certain people. For example, you are not to contact the co-accused or the complainant or witnesses in your case;
• A condition that you surrender your passport and not approach within a certain distance of an international point of departure;
• A condition that you abstaining from alcohol or drugs; or
• A condition that an acceptable person deposit or forfeit a financial surety to secure your attendance at court on the next occasion

If there are no bail concerns, the court may grant unconditional bail or release the accused without bail.

Do You Have to Deposit Surety Money to Get Bail in NSW?

Not always. In New South Wales, you do not automatically have to deposit money to be granted bail.

A surety — sometimes called bail security or bail money — is only required if the court decides it’s necessary to reduce the risk that you won’t attend court or comply with your bail conditions.

In many cases, bail is granted without any financial condition, especially if you have strong community ties, a stable address, and a limited criminal history.

What Is a Surety in Bail?

A surety is a person (often a friend or family member) who promises to pay a certain amount of money if you fail to appear in court or breach your bail conditions.

Under the Bail Act 2013 (NSW), a surety can be required to:

• Promise to forfeit a set amount (known as an undertaking), or
• Deposit money or property with the court as a condition of your bail.

A surety acts as a financial guarantee that you’ll comply with your bail.
If you breach your bail, the surety may lose the money or property they pledged.

When Will the Court Require a Surety?

The court may impose a surety condition under section 25 of the Bail Act 2013 (NSW) only if it believes this is necessary to address a specific bail concern — for example:

• Risk of failing to appear in court;
• Risk of committing further offences; or
• Risk of interfering with witnesses.

A surety is not mandatory and should only be used if necessary and proportionate to the risks identified.

In deciding whether to require a surety, the court considers:

• Your criminal record and history of complying with bail;
• The seriousness of the charge;
• Your community ties (employment, family, residence); and
• Whether other conditions (like reporting or curfews) can manage the risk instead.

Types of Sureties

There are two main types of surety arrangements:

Promise (Recognisance) Surety
The surety signs an undertaking agreeing to pay a specified amount if the accused fails to appear.
No money is deposited upfront in the case of a promised surety.

Deposit Surety
The surety deposits cash or property with the court before the accused is released.
This is less common and usually reserved for higher-risk or serious matters.

The court will specify the amount and form of surety in the bail acknowledgment or bail form.

Who Can Act as a Surety?

A surety must:

• Be at least 18 years old;
• Be of good character;
• Have the financial means to forfeit the amount if required; and
• Be approved by the court or authorised officer (such as a registrar).

They may be required to provide:

• Identification;
• Proof of income or ownership of assets;
• A bank statement or title deed; and
• A signed surety declaration form.

The court must be satisfied that the surety understands their obligation and can afford to pay the money if the accused fails to appear on the next court appearance.

Do You Always Need to Pay Bail Money Upfront?

No — in most NSW bail cases, money is not paid upfront.

The usual situation is a recognisance surety, where the surety promises to pay if bail is breached. The money only becomes payable if the accused fails to appear or breaches their bail conditions.

Deposit sureties are relatively rare and generally used in:

• Serious indictable offences (e.g. drug supply, fraud, sexual assault);
• Cases where the accused is not an Australian resident; or
• Matters involving significant flight risk.

What Happens If Bail Is Breached?

If you fail to appear in court or breach bail conditions:

• The court may issue a warrant for your arrest;
• Your bail may be revoked; and
• Any surety may be called upon to pay the amount that they undertook to pay the court as surety.

The court can enforce payment through civil recovery if necessary. If the surety can prove they took reasonable steps to ensure your compliance, the court may reduce or waive the forfeiture.

What Is a Show Cause Offence?

Some serious offences require the accused to show cause why their detention is not justified. This means the presumption of bail is reversed — the court must refuse your bail application unless you as the accused can show sufficient reasons why you being in custody is not justified and that you should be released.

Under section 16B of the Bail Act, show cause offences include:

• Offences punishable by life imprisonment;
• Serious sexual offences involving children;
• Serious personal violence offences with prior convictions;
• Firearm or weapon offences;
• Large-scale drug supply or manufacture; and
• Serious offences committed while on bail, parole or supervision.

If your matter involves a show cause offence, you will need strong legal representation to demonstrate why your detention is not justified. Our experienced criminal solicitors and experienced senior counsel and barristers that we work with can help you get your freedom back.

How Often Can You Apply for Bail in the Local Court?

Under sections 74 and 75 of the Bail Act 2013 (NSW), you generally cannot make more than one bail application in the same proceedings unless:

• You were unrepresented in your previous application;
• There are new facts or circumstances; or
• Fresh evidence has become available.

This prevents an accused from making repeated bail applications unless their situation has materially changed or there is new information that the court didn’t consider in the previous bail application.

Section 74 therefore limits repeated bail applications by requiring that any further application shows new grounds — such as new facts, evidence, or changes in circumstances. This ensures that bail hearings are efficient and based on relevant new information. This also means you don’t have unlimited chances to make multiple bail applications in the Local Court, and you should be careful and selective about which lawyer represents you in your first bail application in the Local Court.

What Happens If You Breach Bail?

Breaching bail or failing to comply with conditions can lead to arrest and bail revocation.
Failing to appear in court without a reasonable excuse is itself a criminal offence under the Bail Act.

If your bail is revoked, you will likely remain in custody until your case is finalised or a new bail application is successfully made and bail is granted.