Bail and Domestic Violence (SA)
In 2024, the South Australian government passed changes to the state’s bail laws, introducing mandatory bail conditions for people charged with certain domestic violence offences after 1 October 2024. This article outlines the changes and what is now required for a person to be granted bail on serious family violence charges in South Australia.
Legislation
The Bail (Conditions) Amendment Act 2024 made changes to the Bail Act 1985.
Breaches of DVOS
Under the changes, when a person is charged with breaching a Domestic Violence Order (DVO) and the alleged breach involved physical violence or a threat of physical violence, any grant of bail that they receive must include the following conditions:
- that they must reside at a specified address and remain at that address while on bail, not leaving it except for paid employment, necessary medical or dental treatment, avoiding a serious risk of death or injury, for any other purpose approved by a community corrections officer; and
- a condition that the person agrees to be fitted with a device for the purpose of monitoring compliance with the above condition and that they comply with all reasonable directions of Community Corrections in relation to the device.
Home detention
The first mandatory condition amounts to a requirement that the accused person agrees to be subject home detention whilst they are on bail. Home detention is an arrangement that allows an accused person to continue living in the community, but to be subject to strict supervision at an agreed location.
If the person is in paid employment, they may continue to leave the house for the purpose of attending work. They may seek medical and dental treatment where this is necessary, and they may leave their home in an emergency situation where this is necessary to avoid serious harm.
The person must not leave their nominated address for any other purpose without the approval of Correctional Services. A Corrections officer may agree to a person on home detention leaving the house for specific purposes on a regular basis – such as to do grocery shopping or take a child to school. They may also agree to a person leaving the house for a one-off outing, if it is a reasonable request.
Electronic monitoring
A person who is subject to a home detention condition in South Australia may be monitored by an electronic monitoring device.
A condition that a person be subject to electronic monitoring means that they must agree to be fitted with an electronic monitoring device, and that they must cooperate with the maintenance of the device.
Electronic monitoring devices use GPS technology to supervise a person’s compliance with their bail conditions. The monitoring is done by the Correctional Services, which receives data in real time alerting the department to breaches. The system can also detect attempts to remove or tamper with electronic monitoring devices, and when this occurs, an alert is raised.
Correctional Services or the SA police can respond immediately to breaches based on this information.
Interstate DVOs
A person will be subject to the above mandatory conditions of bail regardless of whether the DVO allegedly breached was made in South Australia or in another state or territory.
A person will also be subject to the above mandatory conditions if the order allegedly breached is a foreign order that is registered in an Australian jurisdiction.
Applying for bail when you have breached a DVO
If you have been charged with a breach of a DVO that involves violence or a threat of violence, and you want to apply for bail, you (or your lawyer) will need to show the court that special circumstances exist that justify your release on bail. This is because the offence of breaching a DVO in circumstances that involve violence or threatened violence is an offence for which there is a presumption against bail.
If the court is satisfied that special circumstances exist and your release on bail is justified, you will then need to agree to conditions of home detention and electronic monitoring.
Essentially, the introduction of mandatory bail conditions for people charged with serious breaches of DVDs means that all persons accused of this type of offending will now be subject to very strict supervision if they are granted bail.
Prior to the changes, courts had a discretion as to whether or not to impose bail conditions involving home detention and electronic monitoring in these types of cases.
Refusal of bail
If you are refused bail by a court, you will remain in prison until your criminal matter is finalised, or until you are granted bail. A person who is refused bail by a magistrate may make a further application for bail in the Magistrates Court.
Under section 15A of the Bail Act 1985, if you are refused by a by magistrate, you may also apply for review of that decision by the Supreme Court. However, this may occur only with the Supreme Court’s permission, which will generally only be granted if it appears there has been an error of a law or a fact.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.