It is a condition of every bail agreement that the person released on bail must not leave the State for any reason without the permission of the court before which the person must appear, or some other authority specified in the bail agreement [Bail Act 1985 (SA) s 11(6)].
Every bail agreement is also subject to the following conditions:
These conditions may be varied or revoked if the bail authority is satisfied that there are cogent reasons to do so and there is no undue risk to the safety of the public [s 11(1a)].
A bail authority may require the applicant to surrender any firearm, ammunition or firearm part they own or possess [s 11A]. The maximum penalty for failing to comply with this direction is $10,000 or imprisonment for 2 years [s 11A(2].
A bail authority may further impose any of the following conditions on a bail agreement [s 11(1d), (2)]:
There are additional conditions that must be included if the applicant for bail is a serious and organised crime suspect [s 11(2aa)] or has been charged with child sex offences [s 11(2ab)].
From 1 October 2024, a grant of bail to an applicant charged with an offence against s 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (a breach of a recognised domestic violence intervention order involving physical violence or a threat of physical violence) must include conditions requiring home detention and electronic monitoring [s 11(2ae)]. This applies to all bail applications where the alleged offending is committed on or after 1 October 2024. A grant of bail in such circumstances is uncommon as there is a presumption against bail for applicants charged with violent breaches of intervention orders - see also Presumption against bail.
All conditions imposed must be written in the bail agreement [s 11(7)].
Conditions about the payment of money should not be imposed unless the bail authority is of the opinion that there is no other way to make sure that the applicant will comply with the agreement [s 11(5)].
Arrest on non-compliance
When it appears to a court that a person has contravened or failed to comply with a term or condition of bail, the court can issue a warrant for the person's arrest [Bail Act 1985 (SA) s 18(1)]. Upon the person's arrest, the bail agreement is taken to be revoked [s 18(4)].
A member of the police force who has reasonable grounds for believing that a person intends to abscond or is contravening or failing to comply with (or has contravened or failed to comply with) a bail agreement, can arrest the person without a warrant [s 18(2)].
Arrest of terror suspect
Where a person has been released under a bail agreement, and subsequently becomes a terror suspect (as defined in section 3B of the Bail Act 1985 (SA)), they may be arrested without a warrant, at which time their bail may be revoked [s 19B].
Penalty for non-compliance
A person who, without reasonable excuse, breaches, or fails to comply with, a term or condition of their bail agreement is guilty of an offence.
The maximum penalty
The maximum penalty is a fine of $10,000 or imprisonment for 2 years. The penalty imposed must not be more than the maximum penalty that can be imposed for the offence for which the person is charged [s 17(2)]. For example, a person charged with disorderly conduct under s 7 of the Summary Offences Act 1953 (SA) faces a maximum penalty of $1,250 or imprisonment for 3 months. The maximum penalty for a breach of bail in relation to this offence is $1,250 or imprisonment for 3 months.
The penalty for a breach of bail is in addition to any penalty for the original offence and any order for the forfeiture of an amount of money that may have been specified in the bail agreement [s 17(3)].
When a bail agreement has been breached, an order for forfeiture can be made whether or not the person in breach of bail is charged with a bail offence [s 19(1)]. An order for forfeiture may also be made against a guarantor in respect of any amount of money specified in the guarantee [s 19(1)]. These orders for forfeiture are known as estreatment orders.
A person against whom an estreatment order has been made may apply to the court for the reduction of the amount or for the order to be rescinded [s 19(3)].
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