Any person accused of an offence and being held in custody in relation to that offence has a prima facie entitlement to bail unless the decision maker is required to refuse bail under the BA (BA s4).
Section 4 of the BA “still reflects the common law rule that a person accused of an offence, whether adult or child, has a prima facie entitlement to bail except in the significantly expanded circumstances now detailed in the BA” (former Magistrate Peter Power, Research Materials, 9. Criminal Division – Custody & Bail, page 9.7).
Broadly-speaking, there are three main exceptions to the prima facie entitlement of an accused to bail, and these are:
If the accused has been charged with an offence that falls into a category that requires the bail decision maker to refuse bail unless there are "exceptional circumstances" that justify the grant of bail (a burden that the accused must discharge);
If the accused has been charged with an offence that falls into a category that requires the accused to "show compelling reason" that justify the grant of bail (a burden that the accused must discharge);
If an "unacceptable risk" would arise if the bail decision maker granted the accused bail (a burden that the informant / prosecution must discharge).
The expanded circumstances in the BA for which bail may be refused include:
A bail decision maker may refuse bail for a person accused of any offence if satisfied that it has not been practicable to obtain sufficient information for the purpose of deciding the matter because of the shortness of the period since the commencement of the proceeding for the offence (s8A).
A bail decision maker may refuse bail if at the time of deciding an application for bail by a person accused of an offence of causing injury to another person it is uncertain whether the person injured will die or recover from the injury (s8B).
In certain terrorism-related circumstances (see 220.127.116.11)