Bail in Tasmania: Justices Act Interests of Justice Discretion, No Codified Risk Test

Tasmania has no unacceptable risk test written into its bail law. The Bail Act 1994 covers the paperwork and the breach offences, but the decision to grant or refuse bail is made mainly under Justices Act 1959 section 34 (police, simple offences) or section 35 (a justice), and police can also bail a person held for questioning about any offence under section 4(3) of the Criminal Law (Detention and Interrogation) Act 1995. None of these provisions lists general risk factors; the only named factors apply to family violence and restraint order matters.

Information last verified 28 September 2026 against the Bail Act 1994 (Tas), the Justices Act 1959 (Tas), the Criminal Code Act 1924 (Tas), the Family Violence Act 2004 (Tas) and the Youth Justice Act 1997 (Tas), all as in force, plus the Tasmanian Department of Justice's published penalty unit value.

This article covers bail for adults and youths charged with a Tasmanian offence. It does not cover bail in Victoria, New South Wales, Queensland, Western Australia, South Australia, the Northern Territory or the Australian Capital Territory, each of which has a different bail test; see the Australia wide bail comparison for links to every state and territory.

Where the Bail Test Actually Lives

Reading the Bail Act 1994 (Tas) from section 1 to section 31, plus its Parts 1A, 2, 3, 4 and 4A, the Act contains no general test for whether bail should be granted at all. It is almost entirely procedural.

Part 2, headed Police Bail, governs the paperwork once someone has already been admitted to bail. Section 5 sets out the notice of appearance date, the standard conditions that attach once a person is admitted to bail under section 34 of the Justices Act 1959, the breach offence for that notice, arrest and revocation on breach, and deposit mechanics. It assumes the decision to admit to bail has already been made elsewhere; it does not itself confer or condition that decision.

Part 3, Orders for Bail, governs court level bail orders once made: the form and signature requirements, the standard surrender condition, a broad power to impose any other condition the judicial officer thinks desirable in the interests of justice, the breach offence for a court order, and arrest, suspension, restoration and warrant mechanics. Section 7A is the only provision in Part 3 that touches on who decides, and it is a jurisdiction rule, not a test: applications to the Supreme Court are limited to murder or treason charges, or a person already committed to or appearing in the Supreme Court.

Part 4 deals with forfeiture of bail money and recognizances, and is administrative only. Part 4A, sections 21A to 21C, governs appeal from a magistrate's bail decision to a single Supreme Court judge, available to the defendant only where the magistrate's decision followed submissions made in support of an application, to a Crown Law Officer, or, for a Commonwealth offence, the Commonwealth Director of Public Prosecutions. An appeal must be filed within 21 days, with notice served on the Director of Public Prosecutions within 7 days of filing. A decision of a Supreme Court judge to grant, condition or refuse bail can be appealed further to the Full Court, or to the Court of Criminal Appeal where the bail order requires appearance before that court, within 21 days (section 21B), and every appeal under Part 4A is a new hearing (section 21C).

A person charged may apply to be admitted to bail, or for a variation of a bail condition, at any time to the court in which they last appeared on the charge (section 23(1)). Section 23(1) contains no new facts requirement for a repeat application.

No section of the Bail Act 1994 lists general factors such as flight risk, risk of reoffending, or risk of interference with witnesses. That general test does not exist in this Act.

The one exception is Part 1A, added in 2018 (in force from 14 December 2018): police cannot bail a terrorism-linked person at all, and a judge or magistrate may do so only if satisfied there are exceptional circumstances (section 4B).

Justices Act 1959: Where the Real Discretion Sits

The substantive decision to grant or refuse bail in Tasmania is made mainly under Justices Act 1959 sections 34, 34A and 35, and it is an uncodified discretion rather than a listed factors test.

Section 34 governs police bail. Where a person is in custody for a simple offence, a breach of duty, under a Bail Act 1994 section 12 warrant, or to facilitate a restraint order application, a commissioned police officer, or the officer in charge of the station, must inquire into the case and must admit the person to bail unless there is reasonable ground for believing that course would not be desirable in the interests of justice. That is the entire statutory test for police bail under section 34: a single, undefined interests of justice standard, with a presumption toward granting bail, and no enumerated list of factors. Section 34(3) excludes a person detained under Criminal Law (Detention and Interrogation) Act 1995 section 4(2).

Section 34(1) covers simple offences. For a person held in custody for questioning about any offence, including an indictable crime, section 4(3) of the Criminal Law (Detention and Interrogation) Act 1995 provides that once the reasonable detention period ends, the person may be admitted to bail by a person mentioned in section 34 of the Justices Act 1959. It states no separate test. Supreme Court bail runs through Bail Act 1994 section 7A rather than Justices Act section 35.

Section 34(2) adds a family violence specific rule. For a person in custody over a family violence offence, or to facilitate a family violence order or restraint order application, the officer must treat the protection and welfare of the person against whom the offence was committed, or the person the order would protect, as of paramount importance, and must take into account any previous violence by the accused, whether or not it led to a conviction, and whether a recognised interstate family violence order is in force. This is the only place in the police bail provision where Parliament names actual decision factors, and they apply only to family violence matters.

Section 34A governs bringing an arrested person before a justice, directing that the justice proceed under section 35 unless a section 70(2) case applies. Section 35 itself is a bare discretion: the justice asks whether the person wishes to apply for bail and, if so, may grant or refuse it. Section 35(1) states no test or factors at all. Section 35(2) applies the same paramount importance and prior violence factors as section 34(2), but only to a prescribed person, meaning someone in custody over a restraint order application, or a person in custody for breaching a restraint, interim or telephone interim order. Section 36 was repealed in 1994 and no operative text remains.

The Repealed Criminal Code Chapter

The Criminal Code Act 1924 (Tas) Chapter XXXVII, headed Bail: Trial by Magistrate, contains sections 304 to 306, but all three are spent. Section 306 was repealed in 1994, and sections 304 and 305 were omitted by the Justice Miscellaneous (Court Backlog and Related Matters) Act 2020 with effect from 1 July 2021, when Supreme Court bail and bail appeals moved into the Bail Act 1994 (section 7A and Part 4A). There is no surviving bail test in the Criminal Code. It should be cited only as a historical note, not as current law.

Family Violence Charges: a Stricter, Reversed Test

Family Violence Act 2004 (Tas) section 12 imposes a materially stricter rule than the general Justices Act standard for anyone charged with a family violence offence. Bail must not be granted unless a judge, court or police officer is satisfied that release would not be likely to adversely affect the safety, wellbeing and interests of the affected person or an affected child. This is a reverse onus style presumption against bail, stronger than the general interests of justice default in section 34(1).

Section 12(2) sets non exhaustive factors for that decision: any risk screening or rehabilitation assessment, the accused's demeanour, and the availability of suitable accommodation, among other relevant matters.

Section 12(3) creates a genuine trap for anyone assuming the ordinary police bail power always applies: "Section 34 of the Justices Act 1959 does not apply to a person charged with an offence under section 35 of this Act." For a person charged with contravening a family violence order or a police family violence order under Family Violence Act 2004 section 35, the ordinary Justices Act 1959 section 34 police bail power does not apply.

Family Violence Act 2004 section 35 itself sets an escalating penalty for contravention based on prior offence count: a first offence carries a fine of up to 20 penalty units or up to 12 months imprisonment; a second, up to 30 penalty units or up to 18 months; a third, up to 40 penalty units or up to 2 years; a fourth or subsequent offence carries imprisonment only, up to 5 years, with no fine option. Section 35(2) counts any prior contravention of a family violence order, police family violence order or interim order, regardless of which affected person the earlier order protected.

Youth Bail

Youth Justice Act 1997 (Tas) section 23 (Part 3 Division 1) applies the general law of bail to a youth with necessary adaptations, so the grant or refuse decision is still made under the adult provisions, and section 25 refers to Justices Act 1959 sections 34 and 35. Section 24B requires a decision maker admitting a youth to bail to have regard to the Act's general principles of youth justice specifically when deciding whether to impose conditions, and what those conditions should be, rather than creating a separate grant or refuse test.

Section 24C creates a genuine difference from adult bail: if a youth breaches a bail condition, other than failing to appear, that breach is expressly carved out of the adult offence provisions in Bail Act 1994 sections 5(4) and 9, which do not apply to it. Instead, a court may take the breach into account when sentencing for the underlying offence. A youth does not commit a separate offence for breaching a bail condition the way an adult does, though a youth who fails to appear is not covered by this carve out.

Section 25 governs where an unbailed youth is held pending a hearing, generally a watch house then a detention centre if practicable, or a prison if the Secretary determines a detention centre is impracticable. A youth aged 19 or over who is refused bail is remanded as an adult unless the Secretary directs otherwise.

Breach of Bail and Penalty Values

Breach of a police bail notice under Bail Act 1994 section 5(4) carries a fine of up to 10 penalty units or up to 6 months imprisonment, or both. Breach of a court bail order under section 9 carries a fine of up to 20 penalty units or up to 12 months imprisonment, or both.

Tasmania's penalty unit is $213 from 1 July 2026 to 30 June 2027, confirmed on the Department of Justice's published penalty unit page. Applying that value: a section 5(4) police bail notice breach carries up to $2,130 or 6 months, and a section 9 court bail order breach carries up to $4,260 or 12 months. Family Violence Act 2004 sections 8 and 9, described below, carry up to $8,520 or 2 years, and section 35 contravention penalties range from $4,260 for a first offence to $8,520 for a third, with imprisonment only, up to 5 years, for a fourth or later offence.

No Recent Bail Test Reform, and Coercive Control Style Offences Since 2005

Tasmania has made no 2024 to 2026 change to its bail test. Its last structural changes were the 2018 terrorism-linked person rule (Part 1A of the Bail Act 1994, from 14 December 2018) and the 2021 move of Supreme Court bail and bail appeals into the Bail Act 1994 (section 7A and Part 4A, from 1 July 2021). That is a real contrast with Victoria, Queensland, New South Wales and the Northern Territory, each of which made 2024 to 2026 bail amendments.

Tasmania has nonetheless had coercive control style offences since 30 March 2005, when Family Violence Act 2004 sections 8 and 9 commenced. Section 8, economic abuse, covers coercing the relinquishment of control over assets or income, disposing of jointly or solely owned property or an affected child's property without consent, preventing participation in household expenditure or property decisions, preventing access to joint financial assets for normal household expenses, and withholding or threatening to withhold financial support reasonably necessary, carrying a fine of up to 40 penalty units or up to 2 years imprisonment. Section 9, emotional abuse or intimidation, covers a course of conduct the person knows or ought to know is likely to unreasonably control or intimidate, or cause mental harm, apprehension or fear, in a spouse or partner, expressly including limiting freedom of movement by threats or intimidation, with the same penalty. Section 9A sets a 12 month limitation period from the last act in the course of conduct. This offence is limited to spouses and partners, not the wider family member relationships some other jurisdictions cover. See the Australia wide coercive control laws guide for how Tasmania compares with other states and territories.

Getting Legal Help

Because Tasmania has no codified list of bail factors, the outcome of a bail application can turn heavily on how the interests of justice standard is argued before a police officer or a justice, particularly where the family violence reversed presumption applies. Anyone facing a bail decision, or considering an application or appeal, should get advice from a lawyer or contact Legal Aid Tasmania rather than rely on general information alone. For related Tasmanian family violence order processes that can affect a bail decision, see the Tasmanian family violence order guide. For the general criminal law hub, see Australia criminal law.

Frequently Asked Questions

Does Tasmania have an unacceptable risk test for bail?

No. Unlike Victoria, New South Wales or Queensland, Tasmania has no codified unacceptable risk or flight risk test in the Bail Act 1994. The decision is made under Justices Act 1959 section 34 for police bail, an undefined interests of justice standard with a presumption toward bail, or section 35 for a justice, whose general power in section 35(1) sets no factors at all.

Can police grant bail for a family violence charge in Tasmania?

Police can, but the stricter Family Violence Act 2004 section 12 test applies to any family violence offence. Section 12(3) also provides that the ordinary police bail power under Justices Act 1959 section 34 does not apply to a person charged with contravening a family violence order or police family violence order under section 35 of that Act.

What happens if I breach bail in Tasmania?

Breach of a police bail notice under Bail Act 1994 section 5(4) carries up to 10 penalty units or 6 months imprisonment. Breach of a court bail order under section 9 carries up to 20 penalty units or 12 months. At Tasmania's current penalty unit value of $213, that is up to $2,130 or up to $4,260.

Does a youth commit an offence for breaching bail conditions in Tasmania?

Generally no. Youth Justice Act 1997 section 24C carves a youth's breach of a bail condition, other than failing to appear, out of the adult offence provisions in Bail Act 1994 sections 5(4) and 9. A court may instead take the breach into account when sentencing for the underlying offence.

Does Tasmania have a coercive control offence?

Tasmania has had coercive control style offences since 30 March 2005, through Family Violence Act 2004 sections 8 and 9, covering economic abuse and emotional abuse or intimidation between spouses and partners, each carrying up to 40 penalty units or 2 years imprisonment. There is a 12 month limitation period under section 9A.