A common feature in movies is where a character is arrested and he or she calls a friend, relative or lawyer inquiring on bail. NSW has laws in place as to how bail is to be handled as well as the legal purpose of having bail in place. This article shall discuss issues surrounding bail as well as the pieces of legislation that affect it.

According to Section 7 of the Bail Act 2013 bail is defined as, “Authority to be at liberty for an offence”. When an individual has been arrested for an offence, he or she allegedly committed, there is a possibility of that individual to be granted bail or allowed freedom under the law despite their committing of the offence. It is correct to say that bail can be granted to any person accused of an offence according to Section 7(2) of the Act.

The Bail Act set out the legislative purpose of bail stating that its purpose is to “provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.” The Bail Act 2013 came into force on May 20, 2014 and has been amended twice since its enactment. The first amendment on January 28, 2015 affected the introduction of the ‘show cause’ requirement. “The show cause requirement basically works in the way that if a person is charged with an offence that is defined as a ‘show cause offence’ a bail authority must refuse bail unless the accused is able to show cause why his or her detention is not justified. Only when an individual can show cause that they're being detained in jail is not justified then he or she can be granted bail. In addition, it must be noted that the show cause requirement does not apply to a person under 18 years of age at the time of the offence. Some examples of show cause offences include those punishable by imprisonment for life, offences that involve serious personal violence or an intent to have intercourse with a person under 16 years of age by a person aged 18 years or older or certain serious indictable offences under the Crimes Act or Firearms Act”; commented ETB Legal attorney, Uzma Abbas. 

An individual may be granted bail where a person is not accused of an offence such as in instances relating to proceedings for the administration of sentence such as a failure to comply with conditions of a community correction order or a conditional release order. The second instance is “when another act confers power on a court to make a bail decision. For example persons arrested under an interstate arrest warrant S 88 Service and Execution of Process Act 1992 (Cth)”.

It is important to note that bail decisions cannot be made if the proceedings for an offence have been concluded and there are no other proceedings pending. Or with regards to overseas extradition proceedings.

A criminal lawyer in Sydney is able to file three applications with regards to bail under the Act; that is a release application, detention application and a variation application.