Domestic and Family Violence and the Approach to Bail

Abstract

A number of jurisdictions in Australia have introduced special provisions that either displace or reverse the presumption in favour of bail where domestic and family violence offences are alleged. This article examines the different approaches taken to bail in domestic violence cases across Australia in order to consider how to strike the best balance between protecting victims of family violence and upholding the rights of the accused. This article concludes that many of the legislative changes to bail presumptions are unjustified and that the safety of victims can be sufficiently protected by a focus on the basic assessment of whether the risk that the accused will harm the victim is unacceptable, and on a careful consideration and appropriate tailoring of the conditions of the bail grant.