Bail variation by an application
What is a bail variation?
Sometimes people’s circumstances change, and bail conditions become difficult, impossible or unnecessary. In these cases, an accused person can apply for a bail variation to change their bail conditions.
Section 51 of the Bail Act 2013 (NSW) (‘the Act’) allows courts to vary or delete bail conditions. A court or an ‘authorised justice’ decides the applications. Part 6 of the Act specifies who has the power to decide certain kinds of applications. Depending on what court you make application to, an authorised justice could be:
- A registrar of the Local Court;
- A registrar of the Children’s Court;
- An officer who the Minister declared to be an authorised justice by ; or
- A person or class of persons declared by the regulations.
Who can make a bail variation application?
You must be an ‘interested person’ to make a variation application. The following get consideration as ‘interested persons’ under the Act (s 51(1)):
- The accused person granted bail;
- The prosecutor;
- The complainant in a domestic or family violence offence;
- The person in need of protection (PINOP) under an ADVO; or
- The Attorney-General.
When can you make a variation application?
There are no specific timing requirements to make an application. However, if someone other than the accused person makes the application, they must give the accused person reasonable notice of the application (s 51(6)).
What variations can be made?
There are different kinds of conditions on a bail application. The following conditions can face review by a court or an authorised justice (s 52(2)(a)-(d):
- A reporting condition, which requires the accused person to report to a police station while on bail;
- A resident condition, which requires the accused person to reside at a specific address;
- An associated condition, which requires the accused person to refrain from associating with certain people or classes of persons, or from attending a specific place or class of places.
- A curfew condition, which imposes a curfew on the accused person.
The authorised justice has discretion to vary a reporting condition and vary (but not remove) any of the other three conditions (residence conditions, association conditions and curfew conditions).
How is the application decided?
Courts and authorised justices consider variation applications using the same principles as general bail applications. This includes considering whether the condition:
- is reasonably necessary to address a bail concern;
- is reasonable and proportionate to the offence for which bail is granted;
- appropriately meets the bail concern;
- is no more onerous than necessary to address the concern which the bail condition addresses
- It is reasonably practical for the accused person to comply with the condition; and
- There are reasonable grounds to believe the accused person will comply with the condition.
They will also consider the unacceptable risk test, and any relevant ‘show cause’ requirements.
Are there any limitations on bail variations?
There are several limitations on the power to make bail variations.
A court or authorised justice can only vary a bail application if the accused person (where someone other than the accused makes the application) and the prosecutor (where the application is made by someone other than the prosecutor) get notification (s 54(4)).
A court cannot revoke bail on a variation application unless the prosecutor requests it (s 51(9)).
An authorised justice cannot vary the enforcement conditions or impose new enforcement conditions. However, an enforcement condition imposed on bail by a court can be reimposed by an authorised justice who makes or varies a bail decision. For more information on enforcement conditions, see our blog post: How a bail enforcement condition by a court work.
How do I apply for a bail variation?
You can apply for a bail variation by requesting a variation from the court that granted you bail or appealing to a higher court to change your bail conditions. The person making the application needs to file the variation application with the Court and serve it on any relevant parties. You can apply for a bail variation using an ‘Application for Variation of Bail Conditions’ in the Local Court, or the ‘Bail Application form’ in the Supreme Court. It is best to seek legal advice on which process applies to you.
Bail variation by the court
Section 53 of the Act also empowers the court to consider varying bail on an accused person’s direct appearance before the court without a bail variation application. However, this power is only appropriate when it benefits the accused person (s 53(2)).
This power is available when a condition, restriction or requirement is ‘more onerous than necessary to mitigate the unacceptable risk’.