Bail Rights in South Australia

Bail in South Australia is governed by the Bail Act 1985 (SA). The Act establishes a presumption in favour of bail for most offences, but includes exceptions for serious charges.

• Under the Bail Act 1985, a bail authority (police officer or court) should release the accused on bail unless there is a risk of absconding, offending, interfering with evidence or witnesses, or a risk to the safety of the victim or community.
• For prescribed offences (murder, serious drug trafficking, serious firearm offences, and certain domestic violence offences), there is a presumption against bail — the accused must show cause why bail should be granted.
• Police have the power to grant bail at the station for most offences. If police refuse bail, the accused must be brought before a court as soon as practicable — usually the next Magistrates Court sitting day.
• Bail conditions may include reporting to police, curfews, surrendering passports, residing at a particular address, or electronic monitoring. SA makes significant use of GPS tracking for bail conditions in serious cases.
• Breaching bail conditions is an offence under the Bail Act 1985. The Supreme Court of SA can review bail decisions made by lower courts.

Section 10 — presumption in favour of bail

Section 10 of the Bail Act 1985 (SA) sets out the general presumption in favour of release on bail and the factors the bail authority must consider — the gravity of the offence, the likelihood of conviction, the accused's criminal history, community ties, and the need to protect the victim and the public. Section 11 governs the conditions that can be imposed; s.21B deals with home-detention bail.

Section 10A — prescribed applicants and the "special circumstances" reverse onus

Section 10A creates a category of prescribed applicants for whom bail must be refused unless the applicant establishes special circumstances justifying release. Prescribed applicants include those charged with:

• Murder;
• Serious and organised crime (SOC) offences;
• Terror offences — expanded by the 16 December 2024 amendments;
• Breach of a victim-protecting bail condition (e.g., no-contact orders);
• Breach of an Intervention Order (IO) involving violence or threats of violence.

"Special circumstances" is not defined exhaustively; it has been interpreted strictly — ordinary hardship, family considerations, and good character are usually insufficient.

Sections 14, 15 and 15A — review and appeal

Section 14 provides for review de novo of a bail decision — the reviewing court hears the matter afresh rather than on the record. Section 15 governs telephone reviews, but section 15 is unavailable to an adult prescribed applicant under s.10A — they must have a full hearing. Section 15A requires permission of the Supreme Court before a second or subsequent review application can be lodged.

Sections 3A and 3B — definitions and objects

Sections 3A and 3B define key terms (including "serious offence of violence" and "victim") and state the objects of the Act, which emphasise public safety and the rights of victims as paramount in bail decisions for serious matters.