Applications for bail are generally governed by the Bail Act 1985 (SA), which applies in respect of both South Australian and Commonwealth offences.

What is bail?

Bail is an agreement in which a person makes a written undertaking to the Crown. A person who is in custody because they have been charged with an offence or are involved in pending criminal proceedings may apply to be released on bail.

Pursuant to s 6 of the Bail Act 1985 (SA), in signing a bail agreement a person typically undertakes:

In general terms the two authorities that may grant bail are the police and the courts [Bail Act 1985 (SA) s 5].

Police bail

A person who has been arrested can make a bail application to any police officer who is of or above the rank of sergeant or who is the responsible officer (officer in charge of the police station or a police officer who has been designated the responsibility by the officer in charge for people accepted into custody of that station) of the police station [Bail Act 1985 (SA) s 5(1)(e)(iii)-(iv)].

However, a person is not eligible to apply for bail while being detained for purposes related to the investigation of an offence pursuant to the Summary Offences Act 1953 (SA). In that case, before applying for bail, they must wait until detention for that purpose has finished or until they have been charged with an offence [Bail Act 1985 (SA) s 4].

A person who is refused bail may seek a review - see Refusal and review of bail decisions.

If a person has been arrested on a warrant issued by a court, and the warrant contains a clause prohibiting bail, then bail cannot be granted by a police officer [s 5(1)(e)(i)].

Further, if a person is considered a terror suspect (as defined in s 3B of the Bail Act 1985 (SA)) then only a court can grant that person bail, and a terrorism intelligence authority is entitled to be heard in the bail hearing [Bail Act 1985 (SA) s 5(3)].

A person who is not released on bail by the police must be brought before a court as soon as reasonably practicable but in any event not later than 4.00 pm on the next working day following arrest [s 13(3)]. The person may then apply to the court for bail or for review of the refusal of bail.

Court bail

Any time a person appears before a court, that court has the power to grant bail. This is true whether:

Even if a person is not already in custody, a court may require them to enter into a bail agreement before they are free to leave the precincts of the court.

A duty solicitor can help people in police custody apply for bail in the Magistrates Court or the Youth Court. This might include:

Variation or revocation of bail

Although a bail agreement is intended to continue until the court proceedings have ended one way or another, the authority granting bail or the court can at any time vary the conditions of an agreement, or revoke it altogether (for example, where there is reason to believe that the person on bail does not intend to appear at court or because the person has committed a further offence).