News · Criminal law explainer
The unacceptable risk test for bail in NSW.
Behind every grant or refusal of bail in New South Wales is one test: whether the accused poses an unacceptable risk. It is set out in the Bail Act 2013 (NSW). This note explains the bail concerns the court looks at, how it assesses whether a risk is unacceptable, the role of conditions, and how the test relates to show cause.
By Aaron Kernaghan · Published 3 September 2026
Every bail decision in NSW turns on the unacceptable risk test. The court identifies whether there is a bail concern, that the accused will fail to appear, commit a serious offence, endanger a person or the community, or interfere with witnesses or evidence, and then assesses whether that risk is unacceptable. If conditions can reduce the risk to an acceptable level, bail is granted with those conditions; if not, bail is refused.
What are the bail concerns?
The Act identifies four bail concerns. They are the risks that, if released, the accused will fail to appear at court, will commit a serious offence, will endanger the safety of victims, individuals, or the community, or will interfere with witnesses or evidence. These are the specific risks bail is designed to manage.
The court first asks whether any of these concerns exists on the facts. If none does, there is no basis to refuse or to impose conditions.
How does the court assess risk?
If a bail concern exists, the court assesses whether it amounts to an unacceptable risk. It considers a range of matters set out in the Act, including the nature and seriousness of the offence, the strength of the prosecution case, the person's background, criminal history, and community ties, and any special vulnerability or need.
The assessment is practical and individual. It is about the real risk this person poses in these circumstances, not a general assumption based on the charge alone.
The role of conditions
Where a bail concern exists, the court asks whether conditions could reduce the risk to an acceptable level. Reporting, residence, curfews, non-association, sureties, and electronic monitoring are all tools to manage risk. If conditions can bring the risk down to acceptable, bail should be granted with those conditions.
Bail is only refused where the risk is unacceptable and cannot be managed by conditions. So proposing sensible, targeted conditions is central to a bail application. Our note on bail conditions explains how they work.
How does it relate to show cause?
For certain serious offences, there is an additional hurdle first: the accused must show cause why their detention is not justified. Only if they show cause does the court then apply the unacceptable risk test. For offences that are not show cause offences, the court goes straight to the unacceptable risk test.
So show cause is an extra step for serious matters, and the unacceptable risk test is the universal step that applies to every bail decision.
What makes a strong bail application?
A strong application addresses each bail concern directly and shows how conditions manage it: a stable address, employment or study, sureties, a plan for treatment, and no history that suggests the person will not comply. The more concrete the plan, the better.
This is where preparation matters. Our notes on police bail and further applications explain the stages at which the test is applied.
Frequently asked.
What is the unacceptable risk test?
The test at the heart of every NSW bail decision. The court identifies whether there is a bail concern and then assesses whether the risk is unacceptable. If conditions can reduce it to acceptable, bail is granted; if not, it is refused.
What are the four bail concerns?
The risks that the accused will fail to appear at court, commit a serious offence, endanger the safety of victims, individuals, or the community, or interfere with witnesses or evidence.
How does the court decide if a risk is unacceptable?
By considering matters including the seriousness of the offence, the strength of the prosecution case, the person's background, history, and community ties, and any special vulnerability or need, on the individual facts.
Can conditions get me bail?
Often, yes. If conditions such as reporting, residence, curfews, sureties, or electronic monitoring can reduce the risk to an acceptable level, bail should be granted with those conditions. Bail is refused only where the risk cannot be managed.
How is it different from show cause?
Show cause is an extra first hurdle for certain serious offences, where the accused must show why detention is not justified. The unacceptable risk test then applies. For other offences the court goes straight to the unacceptable risk test.
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 3 September 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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