Breach of bail and failing to appear: what happens in NSW and the ACT.

The news, and the point of law it raises.

Reports of a person charged with breaching bail weeks after it was granted have put bail conditions back in the headlines. The matter is before a court, no one has been convicted, and any person charged is presumed innocent. This note is not about that case. It is about the question the report raises for anyone on bail in NSW or the ACT: what actually happens when you break a bail condition, and how is that different from missing your court date? The two are not the same, and the gap between them decides whether you face a fresh charge or only a return to court.

Is breaching bail an offence in NSW?

For most conditions, no. This surprises people. If a court bails you on a curfew, a daily reporting condition, a non-association condition, or a condition that you not go within a certain distance of a place, and you break one of those, you have not committed a separate crime called breach of bail. There is no such offence in the Bail Act 2013 (NSW) for breaking a condition. What a breach does is expose you to arrest and to losing your bail. That is a real consequence, and it can mean custody, but it is not a new charge on your record.

There is one clear exception, and it is the one people underrate: failing to appear in court. Under section 79 of the Bail Act 2013 (NSW), failing to appear before a court in accordance with your bail acknowledgment, without a reasonable excuse, is a criminal offence in its own right. So the law splits bail breaches in two. Break a condition, and you face enforcement and possible revocation. Miss court, and you face a charge.

What happens if you break a bail condition?

Section 77 of the Bail Act 2013 (NSW) sets out what police can do. An officer who believes on reasonable grounds that you have broken, or are about to break, a bail condition has a menu of options. The officer can decide to take no action, give a warning, issue a notice or a court attendance notice requiring you to come to court, arrest you without a warrant and bring you before a court, or apply for a warrant for your arrest. The Act lists matters the officer should weigh, including the seriousness of the breach and whether you had a warning before, but the courts have held that the only precondition to arrest is the officer forming the belief that a breach has occurred. An officer is not obliged to try a warning first.

If you are arrested and brought back to court, the court decides what to do with your bail. It can continue the same bail, change or add conditions, or revoke bail and remand you in custody. The breach itself is not a fresh charge, so it does not add a conviction, but it can cost you your liberty until the substantive matter is dealt with. Our guide to living with bail conditions sets out how to stay on the right side of them and what to do the moment something goes wrong.

What is failing to appear, and what is the penalty?

This is the breach that is a crime. Section 79 of the Bail Act 2013 (NSW) makes it an offence to fail to appear before a court in accordance with your bail acknowledgment, without a reasonable excuse. The maximum penalty is tied to the offence you were bailed for. It is the maximum for that offence, but capped at 3 years imprisonment or 30 penalty units, whichever is the lesser. In NSW a penalty unit is 110 dollars, so the fine is capped at 3,300 dollars. The effect of the cap is that for a minor matter the fail-to-appear penalty cannot exceed the maximum for the minor offence, but for a serious matter it can reach the 3-year ceiling.

The penalty is not the only sting. When you fail to appear, the court usually issues a warrant for your arrest, and any bail money or surety a family member put up can be forfeited. A fail-to-appear charge also colours every later bail application, because it is direct evidence that you did not turn up last time. That is why missing court, even once, is far more damaging than people expect.

What counts as a reasonable excuse for missing court?

Section 79 gives you a defence of reasonable excuse, but the onus sits on you to prove it. That is a reversal of the usual position, where the prosecution proves everything, so it matters. A genuine medical emergency, a hospital admission, or the death of a close family member can amount to a reasonable excuse, and you will normally need to back it with documents, a medical certificate or a death certificate, not just your word. Forgetting the date, mixing up the time, oversleeping, or deciding the matter was not worth attending will not meet the test.

The practical lesson is to act early. If you realise on the morning that you cannot get to court, or that you will be late, contact your lawyer and the court registry before the matter is called. A court that hears you are on the way, or in hospital, will often stand the matter down rather than issue a warrant. Silence is what produces the warrant.

Will you get bail again after a breach?

Not as of right. Once you are back before the court after a breach, the court has three choices: continue the same bail, vary it by adding or tightening conditions, or revoke it and remand you. A breach is strong material for the prosecution, because it goes straight to the unacceptable risk test that governs bail. It says you did not do what the court told you to do, so the court has less reason to trust that you will comply next time.

Getting bail back is harder still if the charge is a show cause offence, where you must first show why your continued detention is not justified before the court even reaches the risk test. Our note on the show cause test in NSW explains how that gate works. In practice, a fresh application after a breach turns on two things: a credible explanation for what went wrong, and a new set of conditions that answer the risk the breach exposed, such as a residential condition, a surety, or electronic monitoring. Where the Local Court refuses, a further application can be made to the Supreme Court, which hears bail afresh.

How does breach of bail work in the ACT?

The ACT reaches the same place by a similar route. Breaking a bail condition is not an offence in itself, but a police officer who believes on reasonable grounds that you have breached bail can arrest you without a warrant and bring you before a court, and your bail can then be revoked. As in NSW, the breach is dealt with as a bail question, not a fresh charge.

Failing to answer bail is the exception again. Section 49 of the Bail Act 1992 (ACT) makes it an offence to fail to appear in court as you undertook, unless you have a reasonable excuse. The maximum penalty is 200 penalty units, imprisonment for 2 years, or both. In the ACT a penalty unit is 160 dollars, so the maximum fine is 32,000 dollars. Our guide to bail in the ACT sets out how the ACT scheme differs from the NSW one, including on conditions and review. Note that where bail is granted for a Commonwealth offence, the applicable state or territory bail law is what governs, so a person bailed in NSW faces section 79 and a person bailed in the ACT faces section 49.

What to do if you have breached bail or missed court.

Get advice before you speak to police, and get it fast. If you have broken a condition, a lawyer can often arrange for you to come back to court in an orderly way, with a proposal for revised conditions, rather than waiting to be arrested at an inconvenient time. If you have missed court, the priority is to deal with the warrant and to gather whatever supports a reasonable excuse, because the excuse has to be proved, not just asserted. In both situations, anything you say to police can be used, so the advice in our note on the police interview and the ERISP applies from the first contact.

The wider point is that bail is not a formality. The conditions are court orders, and the fail-to-appear offence is a real charge with a custodial ceiling. Handled early, a breach is often recoverable. Left alone, it hardens into a warrant, a remand, and a harder path to bail on the substantive matter. Our note on the first thirty days of a serious matter sets out why the early decisions carry so much weight.

Primary sources: the NSW enforcement powers and the fail-to-appear offence are in Part 8 of the Bail Act 2013 (NSW), including sections 77 and 79; the ACT offence of failing to answer bail is section 49 of the Bail Act 1992 (ACT). The NSW Local Court Bench Book chapter on bail collects the enforcement provisions, and the offence text can be searched on JADE.

Common questions

Is breaching bail an offence in NSW?

Not by itself. Breaking a bail condition, such as a curfew, a reporting condition or a non-association condition, is not a separate crime in NSW. It exposes you to arrest and to losing your bail, but it is not a charge. The exception is failing to appear in court, which is an offence under section 79 of the Bail Act 2013 (NSW) unless you have a reasonable excuse.

What happens if you break a bail condition?

Under section 77 of the Bail Act 2013 (NSW), police can take no action, warn you, issue a notice or court attendance notice, arrest you without a warrant, or apply for a warrant. If you are brought back to court, the court can continue your bail, change the conditions, or revoke bail and remand you. The breach is not a fresh charge, but it can cost you your liberty.

What is the penalty for failing to appear in court in NSW?

Failing to appear is an offence under section 79 of the Bail Act 2013 (NSW). The maximum is the maximum for the offence you were bailed for, capped at 3 years imprisonment or 30 penalty units, whichever is the lesser. A NSW penalty unit is 110 dollars, so the fine is capped at 3,300 dollars. A warrant is usually issued, and bail money or a surety can be forfeited.

What counts as a reasonable excuse for missing court?

Section 79 gives a defence of reasonable excuse, but you have to prove it. A genuine medical emergency, a hospital admission or a bereavement can qualify, usually with documents such as a medical certificate or death certificate. Forgetting the date, mixing up the time, or choosing not to attend does not. If something goes wrong on the day, contact your lawyer and the court registry before the matter is called.

Will you get bail again after breaching bail?

Not automatically. The court can continue the same bail, vary or add conditions, or revoke bail and remand you. A breach is strong evidence that you are an unacceptable risk, so a fresh grant is harder, and harder again for a show cause offence. A credible explanation for the breach and new, workable conditions matter, and a refused application can be renewed in the Supreme Court.

How does breach of bail work in the ACT?

The same way in substance. Breaking a condition is not an offence, but police can arrest without a warrant and bail can be revoked. Failing to answer bail, which is failing to appear as undertaken, is an offence under section 49 of the Bail Act 1992 (ACT) unless you have a reasonable excuse. The maximum is 200 penalty units, 2 years imprisonment, or both. An ACT penalty unit is 160 dollars, so the maximum fine is 32,000 dollars.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 26 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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