Bail in NSW: The Bail Act 2013, Show Cause and Bail Concerns

In New South Wales, the Bail Act 2013 (NSW) runs most bail decisions through two sequential tests: an accused person charged with a show cause offence must first show cause why their detention is not justified, and every case is then assessed for an unacceptable risk under the bail concern test in Division 2.

This article covers bail decisions in New South Wales under the Bail Act 2013 (NSW), including the domestic violence reforms that commenced through 2024 and 2025. 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 are looking for a civil protection order rather than a criminal bail decision, see Apprehended Violence Orders in NSW.

The two step bail test under the Bail Act 2013

A bail authority, which can be a police officer or a court, decides bail in NSW under two sequential steps. Section 16A(1) states that a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why their detention is not justified. That obligation does not apply to a person who was under 18 at the time of the offence.

If the offence is not a show cause offence, or if cause has been shown, the bail authority moves to the Division 2 assessment: whether there is an unacceptable risk that requires refusal. Section 19(3) is explicit that having shown cause is irrelevant to this second, separate determination, so a person cannot treat a successful show cause argument as the end of the process.

Show cause offences under Division 1A (sections 16A to 16B)

Section 16B(1) lists the offence categories that trigger the show cause requirement, including offences punishable by life imprisonment, certain child sexual offences, a serious personal violence offence or wounding committed by a person with a prior conviction for a serious personal violence offence, firearm and military style weapon indictable offences under the Crimes Act or the Firearms Act, commercial quantity drug offences under state or Commonwealth law, a serious indictable offence committed while on bail or parole, and an indictable offence or breach of a supervision order committed while under a supervision order, along with attempts at and complicity in those offences.

The 2024 Domestic Violence Act inserted two further categories, both commencing 1 July 2024. Paragraph (c1) covers a serious domestic violence offence, defined as a Crimes Act Part 3 offence carrying a maximum penalty of 14 years or more and committed against an intimate partner, a term that now covers a married, de facto, or other intimate personal relationship whether or not it is sexual in nature. Paragraph (c2) makes an offence under section 54D of the Crimes Act 1900, the coercive control offence, a show cause offence in its own right.

These insertions do not close every gap. Strangulation charged under section 37 of the Crimes Act is only covered where the victim loses consciousness, and offences such as assault occasioning actual bodily harm, sexual touching, and the image based abuse offences in sections 91P to 91R remain outside the show cause list even after this reform.

Cases with a different threshold (sections 21 to 22C)

Some cases carry an extra or different threshold. A court must not grant or dispense with bail unless special or exceptional circumstances exist where an appeal is pending in the Court of Criminal Appeal or the High Court (section 22), or in the period between conviction and a full time custodial sentence (section 22B). For terrorism linked accused, a bail authority must refuse bail unless exceptional circumstances exist (section 22A). In each of those cases, for a show cause offence the higher threshold replaces the show cause requirement, and the Division 2 unacceptable risk test still applies.

Section 22C was set to be repealed on 1 October 2026. A Bill passed by the NSW Parliament on 24 September 2026, the Justice Legislation Amendment (Miscellaneous) Bill (No 2) 2026, would extend it to 4 April 2028 from assent; as at 28 September 2026 it was awaiting assent. Check the NSW legislation website for the current position. While it applies, a bail authority must not grant bail to a person aged 14 to 17 charged with a motor theft offence or a serious break and enter offence, allegedly committed while on bail for another such offence, unless it has a high degree of confidence the young person will not commit a serious indictable offence while on bail. The prosecution keeps the burden of establishing that bail should be refused.

At the other end of the scale, section 21 gives a right to release for fine only offences and most Summary Offences Act 1988 offences, so bail cannot be refused for them unless the person has previously failed to comply with bail for that offence.

The bail concern and unacceptable risk test under Division 2 (sections 17 to 20A)

Before any bail decision, section 17 requires the bail authority to assess whether there is a bail concern, meaning a concern that the accused person, if released, will fail to appear, commit a serious offence, endanger the safety of victims or the community, or interfere with witnesses or evidence. Section 18(1) sets out an exhaustive list of matters the authority may weigh in that assessment, covering the accused's background and community ties, the nature and seriousness of the offence, the strength of the prosecution case, any history of violence, prior offending while on bail, compliance with previous bail and apprehended violence orders, the likely length of custody if bail is refused, and the vulnerability of the accused, among other listed factors.

The 2024 reforms added two further matters to that list. New paragraph 18(1)(d1) requires the authority to consider behaviour that may constitute domestic abuse under section 6A(2) of the Crimes (Domestic and Personal Violence) Act 2007, and paragraph 18(1)(o) now requires victim and family views to be considered for a domestic violence offence against an intimate partner, not only for other serious offences as before.

Section 19 then asks whether the bail authority is satisfied there is an unacceptable risk, defined using the identical four limbs as the bail concern test. If satisfied, refusal is mandatory. If there is no unacceptable risk, section 20 requires the authority to grant bail, with or without conditions, release the person without bail, or dispense with bail. Under section 20A, any condition imposed must address an identified bail concern and be reasonably necessary, proportionate, and no more onerous than is required.

Electronic monitoring after a serious domestic violence charge (section 28B)

Section 28B, in force from 11 October 2024, provides that the grant of bail must be subject to an electronic monitoring condition where a person is show causing on the new serious domestic violence offence ground, unless the bail authority is satisfied sufficient reasons exist, in the interests of justice, not to impose that condition. This mandatory condition applies only to that specific show cause ground, and the accused must remain in custody until fitted with the monitoring device. Since 11 June 2025, section 30A has barred electronic monitoring as a bail condition in any other case, and the monitoring must be run by the Commissioner of Corrective Services (Bail Amendment (Ban on Private Electronic Monitoring) Act 2025). Section 28B also does not allow a bail authority to treat the availability of electronic monitoring as a reason to find there is no unacceptable risk.

The wider 2024 domestic violence reforms

Alongside the show cause and electronic monitoring changes, the 2024 Act made several other changes that a person facing a domestic violence related charge in NSW should know about. Section 40(5), which governs stays of release pending appeal, was extended to cover a serious domestic violence offence, a coercive control offence, and the sexual assault offences in sections 61I to 61KB. Section 70A, in force from 14 March 2025, barred a registrar from making a bail decision, a change introduced following public scrutiny of the Molly Ticehurst case. Since 28 October 2025, as substituted by the Local Court and Bail Legislation Amendment Act 2025, section 70A provides that no authorised justice may make a bail decision. A new mandatory ministerial review of the reforms is required under section 102, and clause 15 of Schedule 3 to the Bail Act 2013, inserted by the 2024 Act, makes the amendments apply to offences committed, alleged, or charged before the amendments commenced.

Making a further bail application (section 74)

A court that has refused bail after hearing a release application must refuse to hear another release application for the same offence unless there are grounds for one. Under section 74(3), those grounds are that the person was unrepresented last time and now has a lawyer, that material information not presented before will be presented, that relevant circumstances have changed, or that the person is a child whose previous application was made on a first appearance.

Breach of bail and getting help

Failing to appear in court as a bail acknowledgment requires, without a reasonable excuse, is an offence under section 79, and the person must prove the reasonable excuse. The maximum penalty is the maximum for the offence for which bail was granted, capped at 3 years imprisonment and 30 penalty units ($3,300 at $110 a unit, as at September 2026). Breaching another bail condition is not itself an offence under the Bail Act. Under section 77, police may take no action, issue a warning, issue an application notice, issue a court attendance notice if they believe the failure is an offence, or arrest the person and take them before a court, where bail can be reconsidered. Anyone facing a bail application, a bail variation, or a possible breach in NSW should get advice from a lawyer before the hearing rather than relying on general information. Legal Aid NSW can advise on eligibility for free or subsidised representation, including duty lawyer services at bail hearings, and information about apprehended violence orders that may run alongside a bail matter is available on our NSW AVO page. For a broader picture of how NSW compares with the rest of the country, see Bail Laws in Australia and the criminal law hub.

Frequently Asked Questions

What does show cause mean under the NSW Bail Act?

For a defined list of offences in section 16B of the Bail Act 2013, a bail authority must refuse bail unless the accused person shows cause why their detention is not justified. If cause is shown, that does not end the process. The bail authority then moves to the separate bail concern and unacceptable risk assessment in Division 2, so a person can show cause and still be refused bail if an unacceptable risk is found.

Is coercive control a show cause offence in NSW?

Yes. Since 1 July 2024, an offence under section 54D of the Crimes Act 1900, the standalone coercive control offence, is a show cause offence under section 16B(1)(c2) of the Bail Act 2013.

Does NSW require electronic monitoring as a bail condition?

Only in that circumstance. Since 11 October 2024, section 28B requires an electronic monitoring condition when a person is granted bail after show causing on the serious domestic violence offence ground, unless the bail authority is satisfied sufficient reasons exist in the interests of justice not to impose it. Since 11 June 2025, section 30A prohibits any electronic monitoring bail condition other than one imposed under section 28B, and the monitoring must be conducted by the Commissioner of Corrective Services.

Can a court registrar decide bail in NSW?

No. Section 70A of the Bail Act 2013 barred registrars from 14 March 2025, and since 28 October 2025 it provides that an authorised justice must not make a bail decision.

Do the 2024 NSW bail changes apply to charges laid before the changes commenced?

Yes. Clause 15 of Schedule 3 to the Bail Act 2013, inserted by the Bail and Other Legislation Amendment (Domestic Violence) Act 2024, extends the amendments to offences committed, alleged to have been committed, or charged, before the amendments commenced.