Remand and Bail: A Guide for Families, Including Family Overseas

Written by Justin Chua, Principal Solicitor, Chua Tan Associates. Last reviewed 17 October 2026. General information about Victorian law, not legal advice.

This page is for parents, partners and relatives, in Australia or overseas, whose child or family member in Melbourne has been arrested and is being held in custody. It explains what remand means, how bail works in Victoria, what a surety (bail guarantor) is, and practical ways family can help. Bail applications are time-sensitive, so contact a lawyer early.

What happens after an arrest

1. Arrest and interview. The person can decline to answer questions and ask for a lawyer and an interpreter. If they are not an Australian citizen or permanent resident, police must generally tell them before questioning that they can contact their consulate (Crimes Act 1958 (Vic) s 464F).
2. Charge and police bail. If the person cannot be taken to court straight away, police can grant or refuse bail.
3. First court appearance. People held in custody are brought before a court. In Melbourne, the Bail and Remand Court at the Melbourne Magistrates’ Court also sits in the evenings and on weekends and public holidays.
4. Bail hearing. A magistrate decides whether to grant bail and on what conditions. If bail is refused, the person is remanded in custody.
5. Further applications. A further application can be heard only in certain circumstances, such as new facts or circumstances, or where the person had no lawyer at the earlier hearing (Bail Act 1977 (Vic) s 18AA).
6. Supreme Court. The Supreme Court also hears bail applications, and the prosecution must be given notice of the application (s 18AK). For some charges, including murder and treason, only the Supreme Court can grant bail (s 13).

The bail tests

The Bail Act 1977 (Vic) recognises the overarching importance of maximising community safety (s 1B(1AA)). Bail is decided in steps:

• Exceptional circumstances. For Schedule 1 offences, bail must be refused unless the accused shows exceptional circumstances that justify bail (s 4A).
• Show compelling reason. For Schedule 2 offences, bail must be refused unless a compelling reason justifies it (s 4C).
• Unacceptable risk. For every offence, bail must be refused if the prosecution satisfies the court that there is an unacceptable risk the person would commit a serious offence (one listed in Schedule 1 or 2), endanger someone’s safety or welfare, interfere with witnesses or fail to attend court. The court must consider whether conditions could reduce the risk (s 4E).
• Offences allegedly committed while on bail. Amendments in 2025 and 2026 made the tests stricter for many offences allegedly committed while the person was already on bail. For some repeat serious offences, such as aggravated burglary, home invasion, carjacking and armed robbery, a further test applies from March 2026 (s 4F). Which test applies depends on the exact charges and dates, so get advice before any application.

The court looks at the surrounding circumstances, including the person’s personal circumstances, associations, home environment and background (s 3AAA).

Foreign nationals and the risk of leaving Australia

Where the accused holds a foreign passport, has close family overseas or has only recently arrived, the prosecution may argue there is a risk they will not come back to court. The question is still one of risk, and whether conditions can reduce it. A practical bail plan usually addresses passport surrender, a stable address, reporting, and who in Melbourne will support the person. Family overseas cannot appear for the accused, but their evidence can matter.

Bail conditions

Every person granted bail gives a written undertaking to attend court (s 5(1)). Conduct conditions must be no more onerous than required and must be reasonable (s 5AAA(2)). They can include (s 5AAA(4)):

• reporting to a police station;
• living at a particular address;
• a curfew, which cannot exceed 12 hours in any 24 hours;
• not contacting specified people;
• surrendering a passport; and
• staying away from specified places.

Breaching a bail condition is a separate offence and can lead to bail being revoked.

Sureties (bail guarantors) and deposits

A court may also require one or more bail guarantors, or a deposit of money (s 5(2)). Since the Bail Amendment Act 2023, the Act uses the term “bail guarantor” for what was called a surety. A bail guarantor gives an undertaking to pay a specified amount if the accused fails to comply with their bail undertaking or a bail condition. No money usually changes hands unless that happens.

Who can be a bail guarantor

• A person aged 18 or over who is worth at least the amount of the bail in property (s 9(1)).
• The court can consider the person’s financial resources, character and previous convictions, and how close they are to the accused, including by family relationship and place of residence (s 9(2)).
• The court must be satisfied the person has sufficient means, and the person swears an affidavit of justification and signs the undertaking (s 9(3)). A false affidavit can lead to bail being forfeited (s 9(6)).
• When setting the amount, the court must have regard to the guarantor’s means (s 5AAB). For a deposit, it must have regard to the accused’s means.

There is no published scale of amounts. The court sets each amount on the facts of the case, so we do not quote typical figures.

Can a parent overseas be a bail guarantor?

Where a proposed guarantor lives is one of the matters the court can consider. Someone overseas raises practical questions: proving assets held abroad with translated documents, satisfying the court about their means, attending by video link (the Act allows audio-visual appearance, s 9(3A)), and how any amount would be recovered. A guarantor living in Victoria may be simpler for the court to assess, but each case is different.

Responsibilities and risks

• A guarantor is notified of applications to vary bail and can attend (ss 18AI, 18AJ), and can apply to be discharged (s 23).
• A cash deposit can be forfeited if the accused fails to attend (s 32).
• It is an offence to indemnify a bail guarantor, or to agree to be indemnified, against their liability: up to 15 penalty units or 3 months’ imprisonment (s 31). Nobody, including the accused, should promise to repay a guarantor.
• Money sent from overseas for a deposit should come with clear records of its source.

How family can help

• Accommodation evidence: a lease, a letter from the owner or head tenant agreeing to the person living there, and who else lives at the address.
• Character references that show the writer knows about the charge.
• Details of any proposed bail guarantor and evidence of their means.
• Study or work evidence: enrolment, attendance, an employer letter.
• Health information where relevant, including mental health treatment plans.
• Interpreters: the Magistrates’ Court may be able to arrange an interpreter for the accused.

Visiting and keeping in contact

Corrections Victoria publishes how to visit a person in prison and how to arrange phone calls and video visits. Family overseas can usually keep in contact by phone or video under prison rules. Assume calls may be monitored, and do not discuss the facts of the case. Lawyers arrange their own professional visits.

Consulates

Family can contact the relevant embassy or consulate. Consular officers can help with matters such as family contact and welfare, but bail is decided by the court.

Visa consequences

• A visa can be cancelled under section 116 of the Migration Act 1958 (Cth), for example where a person may be a risk to the community or has breached a visa condition. Student visa holders must meet course requirements (condition 8202), which custody can affect.
• Mandatory cancellation under s 501(3A) applies to a person serving a full-time prison sentence who has a substantial criminal record (for example, a sentence of 12 months or more) or certain convictions for child sexual offences. It is not triggered by a charge or by remand alone.
• Our firm includes two Law Institute of Victoria Accredited Specialists in Immigration Law, Kin Wee Chua and Chit Thian Chua, so visa issues can be considered alongside the bail application. See Criminal Charges for International Students.

Who we act for

The person in custody is our client, and we act on their instructions. With their consent, family in Australia or overseas can join an online meeting and help gather material. Justin Chua, our Principal Solicitor, advises in English and Mandarin. Our firm, Chua Tan Associates, has practised in Melbourne since 1990, includes two Law Institute of Victoria Accredited Specialists in Immigration Law, Kin Wee Chua and Chit Thian Chua, and works with lawyers overseas on cross-border matters.

If someone has just been arrested, see urgent help or book a priority consultation.

Chinese-language versions of this page: 简体中文 ｜ 繁體中文.

Frequently asked questions

Can I be a surety if I live overseas?

Possibly. The Act does not set a simple residence rule, but where you live is a factor, and you must satisfy the court about your means. In practice, proving overseas assets and recovery can be harder, so get advice before you offer.

How much will bail cost?

There is no published scale. A bail guarantor’s amount and any deposit are set case by case, having regard to means. In many cases no money is paid unless bail is breached.

Can I send money from overseas for a deposit?

A deposit can be paid with funds from family, but keep clear records of where the money came from. Do not agree to repay a guarantor; that is an offence.

Bail was refused. What now?

A further application needs new facts or circumstances, or another ground under s 18AA. An application can also be made to the Supreme Court.

Will being on remand cancel a student visa?

Not automatically, but custody can affect course attendance, and the visa can be cancelled on other grounds. Get criminal and visa advice together.

Penalties and procedures on this page reflect Victorian and Commonwealth law as at the review date shown above. Maximum penalties are rarely imposed; the sentence in any case depends on its own facts.