Bail in the ACT: The Bail Act 1992, Presumptions and the 2026 Reform Bill

In the Australian Capital Territory, the Bail Act 1992 (ACT) presumes against bail for murder, large commercial drug offences, repeat serious offending, and family violence charges assessed by police, and, for everyone else, starts from either a presumption in favour of bail or no presumption, applying the criteria in sections 22 and 23.

This article covers bail decisions in the Australian Capital Territory under the Bail Act 1992 (ACT) as republished on 16 November 2025 (Republication 54, still the current version as at September 2026), plus the Bail Amendment Bill 2026 as a pending reform. It does not cover bail law in other Australian states and territories. For a jurisdiction by jurisdiction comparison, see Bail Laws in Australia. If you need a protection order rather than a bail decision, see Family Violence Orders in the ACT.

The presumption against bail (Division 2.4, sections 9C to 9G)

The Bail Act sets a series of presumption against bail sections that apply before the general criteria are reached. Section 9C covers a person accused of murder, or of trafficking, manufacturing, cultivating, or selling a large commercial quantity of a controlled drug or plant, or of supplying a commercial quantity of a controlled drug to a child for selling, or procuring a child to traffic in a commercial quantity. Bail must be refused unless special or exceptional circumstances exist favouring a grant, and even then the authority must refuse if satisfied refusal is justified after weighing the general criteria in section 22 or 23.

Section 9D applies the same special or exceptional circumstances bar to a person accused of a serious offence, one carrying a maximum penalty of 5 years or more, allegedly committed while a charge for another serious offence against them is pending or outstanding. Section 9E applies the same threshold to a person already sentenced to imprisonment who is appealing, though unlike section 9C or 9D it does not layer a further general criteria test on top.

Section 9F is different in kind. It applies specifically when an authorised officer, meaning police rather than a court, is deciding bail for a person accused of a family violence offence. The officer must not grant bail unless satisfied the person poses no danger to a protected person while released, a no danger standard rather than a special or exceptional circumstances test. Even where satisfied, the officer must still refuse bail if refusal is required under the general criteria, must require the person to undertake to appear within 48 hours of release, and must record, in the bail decision record, the reason for being satisfied the person poses no danger. A protected person is the person the alleged conduct was directed at, plus any other family member of the accused.

Section 9G defines special or exceptional circumstances by exclusion: a circumstance that is already one of the general bail criteria does not, merely for that reason, become a special or exceptional circumstance, and the general criteria are only weighed after that threshold has already been met. The Act's own examples treat a need to support a child, or a risk of losing a job or a public housing place, as not special or exceptional, while a serious medical condition needing regular treatment, such as dialysis every 3 days, was treated in the Act's example as special or exceptional.

Presumption for bail and no presumption (sections 8 to 9B)

Everyone outside Division 2.4 starts from one of two positions. A person charged with a minor offence, such as one not punishable by imprisonment or punishable by no more than 6 months, is entitled to bail under section 8, subject to the limits in section 9. Anyone else is entitled to bail under section 9A unless the court or authorised officer is satisfied that refusal is justified after considering section 22 or 23.

Division 2.3 (section 9B) removes that presumption, leaving no presumption either way, for the offences listed in Schedule 1; for threats to kill or to inflict grievous bodily harm, stalking, and protection order or family violence order contraventions where the person has been found guilty of an offence involving violence or the threat of violence in the previous 10 years; for treason; for aggravated repeat furious, reckless or dangerous driving; and for a person convicted of an indictable offence but not yet sentenced. Sections 22 and 23 supply the criteria in both cases.

The general bail criteria (sections 22, 23 and 23A)

Section 22 requires the authority to consider the likelihood the person will appear in court, the likelihood they will commit an offence, harass or endanger someone, or interfere with evidence or witnesses if released, and the interests of the person, including their need for physical protection and the likely length and conditions of custody if refused. Where the person has already been convicted or the elements proven but not yet sentenced, the likelihood of imprisonment must also be considered. The authority may also weigh the nature and seriousness of the offence, the person's character and community ties, the effect of refusal on family and dependants, prior bail history, and the strength of the evidence.

Section 23 applies most of the section 22 matters to a child (section 22(1)(a) and (b), (2) and (3)), adding the youth justice principles in the Children and Young People Act 2008 and any court ordered report, and requires the best interests of the child to be treated as a primary consideration. Section 23A requires the prosecutor to tell the court of any victim concern about needing protection from the accused, and requires the court to receive and consider any submission on that concern.

Bail conditions (sections 24 to 26)

Conditions available under the Act include conduct requirements, sureties and security arrangements, periodic reporting, residence requirements, psychiatric or medical treatment, and program participation. For a family violence charge specifically, section 25(4)(f) allows no contact, no harass, and no threaten conditions, exclusion from a stated person's home or workplace, exclusion from a stated place or distance from a person, and, if the accused lives with someone, a requirement not to enter or remain at the home while under the influence of alcohol or another drug. Conditions must only be imposed where necessary to secure attendance, protect someone from harm, prevent reoffending, or prevent interference with justice.

No standalone electronic monitoring bail condition exists in the current Bail Act 1992, a genuine structural difference from New South Wales, which has required electronic monitoring in a defined domestic violence scenario since 11 October 2024.

Repeat bail applications, the new facts rule (sections 20A and 20C)

Once a person has made 2 prior bail applications in the same Magistrates Court proceeding, section 20A allows a third or later application to be considered only if the court is satisfied there has been a change in circumstances relevant to granting bail, or there is fresh evidence or information that was unavailable at the last application. Section 20C applies the same gateway to the Supreme Court once a person has made 2 or more Magistrates Court applications before committal, or 1 Supreme Court application. A person who has made only 1 Magistrates Court application before being committed for trial does not trigger the gate on their first Supreme Court application, but a person who made 3 Magistrates Court applications does trigger it.

Breach of bail, failure to answer bail (section 49)

Section 49 makes it an offence to give an undertaking to appear before a court and then fail to carry it out, subject to a reasonable excuse defence, and allows the court to issue an arrest warrant. The maximum penalty is 200 penalty units, 2 years imprisonment, or both. Under section 133 of the Legislation Act 2001 (ACT), a penalty unit for an individual is 160 dollars (as at September 2026), so 200 penalty units is a maximum fine of 32,000 dollars, alongside or instead of the term of imprisonment.

The Bail Amendment Bill 2026, a pending reform

The Bail Amendment Bill 2026 was presented to the Legislative Assembly on 6 May 2026 and, as at September 2026, the ACT Legislation Register lists it as before the Assembly. If passed, it commences 6 months after its notification day. The register also lists the Family, Personal and Sexual Violence Legislation Amendment Bill 2025, presented on 3 December 2025, as proposing amendments to the Bail Act; it too is before the Assembly and is not law.

The Bill would repeal and replace the current sections 22 to 23A with 4 new sections. A new section 22 would restate the core likelihood tests for an adult and a child, moving the best interests of the child requirement into the main section rather than a separate one. A new section 22A would gather the remaining relevant factors, including 2 new family violence specific factors: whether the offence is a family violence offence, and the likelihood the person will use family violence if released. A new section 22B would add explicit relevant factors for Aboriginal or Torres Strait Islander people, including the risk of harm from custody and the effect on cultural and family connection, and would provide that those propositions do not need to be separately proved. A new section 22C would add relevant factors for a person with a disability or health condition. The Bill would also require the informant to tell the authorised officer or the court whether a family violence order has been made against the accused. The presumption against bail sections in sections 9C, 9D and 9F would keep their current structure, with their cross-references updated to point at the reorganised criteria.

Because the Bill is not yet law, an ACT bail decision today is made under the current sections 22 and 23, not the reorganised version described above.

Getting help

Anyone facing a bail application, a bail review, or a possible breach in the ACT should get advice from a lawyer before the hearing. Legal Aid ACT can advise on eligibility for representation, and our ACT Family Violence Order page covers the civil protection order regime that often runs alongside a family violence bail matter. For how the ACT compares with the rest of the country, see Bail Laws in Australia and the criminal law hub.

Frequently Asked Questions

What are special or exceptional circumstances for ACT bail?

The term describes a threshold that applies to murder and large commercial drug charges under section 9C, a serious offence committed while another serious charge is pending under section 9D, and a person appealing a sentence under section 9E of the Bail Act 1992. Section 9G makes clear that a factor which is already one of the ordinary bail criteria cannot, by itself, count as a special or exceptional circumstance. The Act's own examples treat a need to support a child or a risk of losing a job as not special or exceptional, while a serious medical condition needing regular treatment, such as dialysis every 3 days, was treated in the Act's example as special or exceptional.

How is police bail different from court bail in a family violence case in the ACT?

Under section 9F, an authorised officer, meaning a police officer rather than a court, must not grant bail to a person accused of a family violence offence unless satisfied the person poses no danger to a protected person while released. Even if satisfied of that, the officer must still refuse bail if refusal is required under the general criteria in section 22 or 23, and must record, in writing, the reason for being satisfied there is no danger.

What happens if someone fails to appear on ACT bail?

Section 49 of the Bail Act 1992 makes it an offence to give an undertaking to appear before a court and then fail to carry it out, subject to a reasonable excuse defence. The maximum penalty is 200 penalty units, 2 years imprisonment, or both, and the court can also issue an arrest warrant.

Does the ACT require electronic monitoring as a bail condition?

No standalone electronic monitoring bail condition currently exists in the Bail Act 1992. That is a real difference from New South Wales, which since 11 October 2024 requires electronic monitoring in a defined domestic violence bail scenario.

Is the Bail Amendment Bill 2026 already law in the ACT?

No. As at September 2026, the ACT Legislation Register lists the Bill as before the Legislative Assembly. It was introduced on 6 May 2026 and, if passed, commences 6 months after its notification day, so it would not take effect immediately even after passage.