Section 10 of the Bail Act 1985 (SA) provides a presumption in favour of bail. The presumption means that bail should be granted unless there are good reasons for its refusal.

The presumption does not apply to bail applications made upon lodging an appeal against a conviction or sentence, or where section 10A applies (see below).

The presumption in favour of bail is subject to the following considerations [Bail Act 1985 (SA) s 10(1)]:

The presumption in favour of bail is also subject to the primary consideration of the need, or perceived need, of any victim of the alleged offence to be protected from physical violence [Bail Act 1985 (SA) s 10(4)].

Section 10A of the Bail Act 1985 (SA) removes the presumption in favour of bail in certain cases, and requires the person applying for bail to convince the bail authority that there are special circumstances justifying bail before the bail authority can grant bail.

Section 10A applies if an applicant was taken into custody for:

Under section 10A(1a), a bail applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist unless the applicant also establishes, by evidence verified on oath or by affirmation, that they have not previously been convicted of a serious and organised crime offence in South Australia or equivalent offence in another jurisdiction.

Pursuant to s 10AA, before granting bail to a person who has been charged with a child exploitation material offence, a bail authority must consider the harm that people who deal with child exploitation material cause to children by contributing to demand for the abuse of children.

The bail authority can question the applicant or any other person who may be able to provide information relevant to the application. If the bail authority is a court, it can take evidence on oath or affirmation from the applicant or any other person. It can also order a report about issues arising in a bail application. Such reports are prepared by officers of the Department for Correctional Services, or, in the case of a child, the Department for Human Services (Youth Justice).

Where a person released on bail becomes a terror suspect during the bail period, they can be arrested without warrant and upon arrest the bail agreement is taken to be revoked [Bail Act 1985 (SA) s 19B].

Commonwealth child sex offenders

There is a presumption against granting bail for persons charged with, or convicted of, certain Commonwealth child sex offences [see Crimes Act 1914 (Cth) s 15AAA].

A bail authority must be satisfied that circumstances exist to grant bail, and must consider the matters outlined in section 15AAA(2) of the Crimes Act 1914 (Cth) when determining whether such circumstances exist.