Bail in South Australia: The Bail Act 1985, Prescribed Applicants and Special Circumstances

Bail in South Australia is governed by the Bail Act 1985, and section 10A refuses bail unless a person who falls into one of the Act's prescribed applicant categories, such as an organised crime suspect, a terror suspect, or someone charged with breaching an intervention order involving violence, can establish special circumstances justifying release.

This article covers bail for adults and children charged with an offence in South Australia under the Bail Act 1985, current in its 16 February 2026 version. It does not cover bail in other Australian states or territories; the national comparison and the individual state and territory guides are linked below.

Who Decides Bail in South Australia

Section 4 sets out who is eligible to apply for bail: a person in custody on a charge, someone convicted but not yet sentenced, someone convicted and sentenced but still within their appeal rights, a witness under summons or warrant, and certain lapsed serious and organised crime or terror suspects. A person in Summary Offences Act investigative detention is not eligible until that detention ends, and a person detained under Part 3 of the Criminal Law (High Risk Offenders) Act 2015 is not eligible while so detained.

Section 5 names the bail authorities. The Supreme Court, District Court, Magistrates Court and Youth Court are always bail authorities. A police officer of or above the rank of sergeant, or the officer responsible for a police station, is a bail authority only where the person was arrested on a warrant that does not exclude police bail, or has not yet appeared before a court on the charge, so police bail is mainly a pre-first-appearance and warrant-arrest power. For a terror suspect, only a court can act as a bail authority, and a terrorism intelligence authority is entitled to be heard.

Section 13 requires police to tell an arrested eligible person, and a child's guardian, of the right to apply for bail, and to provide the prescribed written statement and application form. If not released, the person must be brought before the appropriate authority, the Youth Court for a child or otherwise the Magistrates Court, no later than 4pm on the next working day after arrest. A remote area appearance more than 200 kilometres away may be by audio link if no video link is available, and a child refused police bail must, on request, be brought before the Youth Court as soon as practicable.

The Bail Test in South Australia

Section 10(1) sets the pre-conviction default: an eligible person is released unless the bail authority, weighing the gravity of the offence, the likelihood of absconding, reoffending, interfering with evidence, witnesses or police inquiries, or breaching an intervention order, the applicant's need for physical protection, medical or other care needs, prior bail-breach history, and any other relevant matter, considers the applicant should not be released.

Once convicted, section 10(2) gives the authority an unfettered discretion, and section 10(3) releases a witness, as opposed to an accused or convicted person, unless they are likely to abscond. Section 10(4) requires the authority to give primary consideration to a victim's need or perceived need for physical protection from the applicant, a materially stronger formulation than a general risk factor. Section 10AA adds that, when weighing the gravity of a child sexual material offence, the authority must take into account the harm caused to children by contributing to demand for that material.

Prescribed Applicants: When Bail Is Refused Unless Special Circumstances

Section 10A refuses bail unless the applicant establishes special circumstances, for a defined list of prescribed applicants. The categories are considerably more granular than a simple "serious or violent offence" test, and include:

• a person taken into custody for a fatal offence, or a section 19A or vehicle-related section 29 Criminal Law Consolidation Act 1935 offence, committed while fleeing or inducing a police pursuit;
• a person charged with breaching a victim-protection bail condition imposed under section 11(2)(a)(ii);
• a person charged with breaching an intervention order under section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 where the breach involves physical violence or a threat of it;
• a person determined to be a serious and organised crime suspect under section 3A, who must also prove on oath or affidavit that they have no prior conviction for a serious and organised crime offence in order to show special circumstances;
• a person charged with breaching a control order or public safety order under the Serious and Organised Crime (Control) Act 2008;
• an aggravated violent offence where the aggravating circumstance is breach of an intervention order within its protected conduct range;
• specific Criminal Law Consolidation Act 1935 offences under sections 11, 20A, 85B, 172, 248 and 250;
• a serious firearm offence under Part 3 Division 3 of the Sentencing Act 2017;
• a combination of a serious drug offence under section 34 of the Controlled Substances Act 1984 and a serious offence against the person under section 74EA of the Summary Offences Act 1953;
• a terror suspect;
• a person charged with breaching section 86(4) of the Children and Young People (Safety) Act 2017;
• since 16 February 2026, a youth (a child aged 14 or older on the day of the alleged offence) who is a recidivist young offender under Part 3 Division 4 of the Sentencing Act 2017, taken into custody for a serious offence as defined in section 10A.

Section 12 requires a refusal to be recorded in writing, but expressly states this does not preclude further applications. South Australia has no formal new facts gate on reapplying, a genuine structural difference from jurisdictions that require new circumstances before a further hearing.

Mandatory Bail Conditions Since 2024

Section 11(1) sets a baseline for every grant of bail: no possession of a firearm, ammunition or firearm part, and gunshot residue testing on request. Section 11(2) allows optional conditions such as residence, curfew-style home confinement with carve-outs for employment, medical or dental appointments and averting serious risk, victim-protection conditions, community corrections supervision, police reporting and passport surrender. A condition other than one about conduct must be reasonably necessary, and a financial condition can only be imposed if non-financial conditions cannot secure compliance.

Several categories now carry mandatory conditions. Under section 11(2aa), a serious and organised crime suspect granted bail must be subject to home confinement with a narrower purpose list, electronic monitoring, non-communication restrictions and device restrictions, and cannot be given the general home confinement condition instead. Under sections 11(2ab) to (2ad), a person suspected of a class 1 or class 2 offence under the Child Sex Offenders Registration Act 2006 must be barred from child-related work, both doing it and applying for it, variable only for cogent reasons where the work poses no risk to children.

The most significant recent change is sections 11(2ae) and (2af), inserted by the Bail (Conditions) Amendment Act 2024 and in force since 1 October 2024. A person charged with breaching section 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act 2009, involving a recognised domestic violence order, must be granted bail, if at all, subject to home confinement and mandatory electronic monitoring, unless the accused was a child at the time of the alleged offence.

Section 11AA, added on 20 November 2025, requires electronic monitoring services for these device conditions to be provided by a public sector agency or by a contractor approved by the Chief Executive Officer; a breach of that requirement does not invalidate the bail. If custody continues only because a bail condition, such as a surety, cannot be fulfilled, sections 11(9) and (10) require the person to be brought back for review within 5 working days.

Anyone affected by an intervention order in South Australia can find more on how those orders and their breach provisions work on the state's intervention orders guide.

Reapplying, Review and Telephone Review

Part 4 of the Bail Act sets out review rights. Under section 14, a decision of any bail authority other than the Supreme Court can be reviewed, on application of the Crown, the applicant, or a child's guardian, by the Supreme Court, or, if the original decision was made by police or a justice-constituted court, by a magistrate. The reviewing authority reconsiders the matter afresh and must hear it as expeditiously as possible.

Section 15 provides for telephone review: if an arrested person is dissatisfied with a police or justice decision and no magistrate is immediately available in person, the decision maker must, on written application, contact a magistrate by phone for an immediate review, following a scripted procedure. Under section 15(2), this is not available to an adult challenging a police decision on arrest who can be brought before a magistrate by 4pm the next day, or to an adult section 10A prescribed applicant challenging a police decision on arrest. A child, including a child prescribed applicant, can still seek telephone review.

Section 15A allows review of a magistrate's decision by the Supreme Court, but only with the Supreme Court's permission, granted only where there appears to have been an error of law or fact. Under section 16, if a bail authority or reviewing magistrate decides to release someone and the Crown immediately indicates it will seek review, release is deferred for up to 72 hours, or longer for proper reason, or until the review is completed or discontinued.

Bail for Children in South Australia

A child may be eligible for bail under section 4(1)(a)(ii) merely on suspicion of an offence, before any charge is laid, a broader threshold than the adult "charged with" standard. Section 13(2) requires a child refused police bail to be brought before the Youth Court as soon as practicable, on request by the child or a guardian, and section 5(1)(d) makes the Youth Court a bail authority at all times.

Since 16 February 2026, the prescribed applicant presumption in section 10A(2)(i) reaches a youth (a child aged 14 or older on the day of the alleged offence) who is a recidivist young offender under Part 3 Division 4 of the Sentencing Act 2017 and is taken into custody for a serious offence as defined in section 10A, so the presumption against bail extends into youth cases for that specific category.

Breaching Bail in South Australia

Section 17 makes non-compliance without reasonable excuse with a bail agreement term or condition an offence, carrying a fine of up to $10,000 or imprisonment of up to 2 years. Section 17(2) caps the penalty actually imposed at the maximum penalty available for the principal offence itself, a distinctive feature of the South Australian scheme, and section 17(3) makes the penalty additional to any pecuniary forfeiture. Section 17A requires a guarantor who knows or suspects a breach to inform police, with a maximum penalty of $1,250.

Section 18 lets a court or justice issue an arrest warrant on an apparent breach, and lets police arrest without warrant on reasonable grounds of intended absconding or an actual or apparent breach; the bail agreement is taken to be revoked on arrest, and revived only if the person is later released unconditionally. Section 19 allows the court to order a pecuniary forfeiture stipulated in the bail agreement or guarantee to be carried into effect, permits instalment payment, and allows the order to be later reduced or rescinded.

Reform Timeline in South Australia

The Bail (Conditions) Amendment Act 2024 commenced on 1 October 2024, adding the mandatory home confinement and electronic monitoring condition for intervention order breaches involving violence described above. The Bail (Terror Suspects and Firearm Parts) Amendment Act 2024 commenced on 16 December 2024; it widened the section 3B definition of a terror suspect to include a person previously convicted of, or previously charged before a court with, a terrorist offence, and extended the automatic no-firearm bail condition to firearm parts. The Statutes Amendment (Attorney-General's Portfolio) Act 2025 commenced on 20 November 2025 and inserted section 11AA, the electronic monitoring provider requirement.

The Statutes Amendment (Recidivist Young Offenders) Act 2025 commenced on 16 February 2026 and added section 10A(2)(i): a youth (a child aged 14 or older on the day of the alleged offence) who is a recidivist young offender under Part 3 Division 4 of the Sentencing Act 2017 and is taken into custody for a serious offence as defined in section 10A must now establish special circumstances. A further amendment to section 10A, made by the Children and Young People (Safety and Support) Act 2025, had not commenced as at the 16 February 2026 version.

The South Australian Law Reform Institute has been commissioned to review how the Bail Act operates in practice, weighing accused rights against community safety, and as at September 2026 that review was still under way. Any recommendations from that review could lead to further amendment of the provisions described here, so a reader relying on the fine detail of the current test should check for a more recent consolidation before acting on it.

Getting Legal Help in South Australia

Nothing here is a substitute for advice from a lawyer who has seen the actual charge and the accused's circumstances. Legal Aid SA can advise on eligibility for a duty lawyer or a grant of aid for a bail application. For background on police powers on arrest, see the guide to Miranda-style rights in Australia, and for the general defence framework that can inform an argument about the strength of the case against an accused, see self-defence laws in Australia. A conviction's later effect on employment and licensing is covered in spent convictions in Australia, and court process generally is covered in the court records hub. For how bail compares across the country, see bail laws in Australia, and for the rest of this section see the Australia criminal law hub.

Frequently Asked Questions

What is the test for bail in South Australia?

Under section 10(1) of the Bail Act 1985, an accused is released unless the bail authority, weighing the gravity of the offence, the likelihood of absconding, reoffending or interfering with witnesses, and prior bail history, considers they should not be. Section 10(4) also requires primary consideration of a victim's need for physical protection.

Who counts as a prescribed applicant in South Australia?

Section 10A lists a granular set of categories, including organised crime suspects, terror suspects, people charged with breaching an intervention order involving violence, and named serious Criminal Law Consolidation Act offences. A prescribed applicant must establish special circumstances before bail will be granted.

Does South Australia have mandatory electronic monitoring for bail?

Since 1 October 2024, a person charged with breaching an intervention order involving violence or a threat of it, in respect of a recognised domestic violence order, must be granted bail, if at all, subject to mandatory home confinement and electronic monitoring under section 11(2ae), unless they were a child at the time.

What happens if I breach bail in South Australia?

Section 17 makes breach of a bail agreement an offence carrying a fine of up to $10,000 or imprisonment of up to 2 years, but section 17(2) caps the penalty actually imposed at the maximum penalty for the underlying offence.

Can I reapply for bail if I have been refused in South Australia?

Yes. Section 12 allows further applications after a refusal without requiring the applicant to show new facts or changed circumstances, unlike some other Australian jurisdictions.

Can a prescribed applicant get a fast telephone review of a bail refusal in South Australia?

Not an adult one, against a police decision. Section 15(2) excludes an adult prescribed applicant challenging a police officer's decision on arrest, and any adult who can be brought before a magistrate by 4pm the next day. A child, including a child prescribed applicant, can still seek telephone review.