By Dr Louis Schetzer, 6 August 2026
The increase in the number of adults and children incarcerated in Australia over the last 30 years has mainly been driven by the increase in numbers held on remand. The cause for this increase in the remand population has been the changes in bail laws in Australian states and territories which have made it much more difficult for a person charged with a criminal offence to be released on bail. These are adults and children who have not yet been found guilty of a criminal offence or received a court ordered sentence.
In 2025 the then Victorian Premier announced her Government’s intention to tighten the state’s bail laws with the headline-grabbing announcement that the new laws would be “the toughest bail laws in Australia”. This followed changes in the last five years to bail laws in Queensland, Northern Territory and New South Wales, which all made it more difficult for a person to be released on bail.
These changes are usually couched under the banner of responding to ‘community concerns’ about safety. However the respective State and Territory Governments failed to provide any evidence that the new laws would deliver community safety. Nor was there any information about the extraordinary additional cost to the taxpayers of locking more people up on remand.
Community anxiety and fear about crime is a natural and understandable reaction, and one that politicians are predictably quick to exploit for political gain.
However, we should be cautious of calls to further restrict eligibility to be released on bail, as such a response fails to address the underlying causes of criminal offending. It is, in fact, likely to increase the risk of further offending rather than reduce it.
When we look at the debates around bail eligibility, it is disturbing to see how easily a person's right to a presumption of innocence until proven guilty (and therefore their right to liberty until that’s taken away following conviction in court) is disregarded.
Over the past 30 years, risk mitigation has been prioritised over the rights of an accused person as reforms to bail laws in all states and territories have seen more people being denied bail and instead kept in prison on remand.
Some of the more recent changes in Australian jurisdictions have structured bail applications to increasingly place the onus on a person charged to ‘show cause’, or a ‘compelling reason’ (or for some offences, ‘exceptional circumstances’) as to why their detention is not justified. In addition, a court must also assess whether there is an 'unacceptable risk' that the person would, if released on bail, commit an offence, endanger the safety or welfare of members of the public or witnesses, or fail to appear at a future hearing.
These changes have been legislated despite there being minimal evidence to suggest that offending on bail is commonplace or poses any serious risk to the community.
As a result, the number of people in Australian prisons yet to be convicted and sentenced has increased significantly. Since 2013, the number of people in prison who are unsentenced has risen by 130 per cent (compared to a 12.6 per cent increase in the sentenced population). Approximately four in ten people in prison in Australia today are currently unsentenced.
The implications are even more acute for Aboriginal and Torres Strait Islander people, who are grossly over-represented amongst the prison remand population.
Denying people bail and remanding them in custody also has a significant financial public cost. Based on figures released by the Productivity Commission, national expenditure on correctional services in 2023/24 topped $5 billion.
And while some might argue this is the price for public safety, there is no evidence indicating that denying bail for people charged with criminal offences makes the community any safer. In fact, in jurisdictions like the Northern Territory, where the prison population has jumped by almost a quarter over the past five years, offending rates continue to rise.
One of the problems with locking up people without conviction is that prisoners on remand cannot access any programs or support services to address underlying issues that may have contributed to alleged offending (for example, drugs, mental illness or homelessness). If such a person is granted bail, conditions can be attached to their bail requiring them to attend relevant support services.
In addition, when that person’s offences eventually come before a court there is an increased likelihood that, if found guilty, they will be released for having already served time in prison on remand. Data from both Victoria and NSW indicates a significant increase in people being sentenced to time already served after being denied bail. In these circumstances, there are no conditions attached to the sentence that refer a person to support services to address underlying issues that may have contributed to their offending.
The community is not well served by hastily enacted restrictions on bail eligibility when reasoned consideration is clouded by a red mist of anger and fear of perceived rising crime.
Instead, we need increased resources for bail support services, including accommodation support and pre-trial diversionary support options for people facing criminal charges, and to maintain the presumption in favour of bail, unless there is a specific and immediate risk to the physical safety of another person, or the person is posing a demonstrable flight risk.
Dr Louis Schetzer is the National Research and Policy Coordinator for the Justice Reform Initiative. The Justice Reform Initiative has just released its Annual Bail Report for 2026.