High Court to Review Northern Territory's Contested Bail Legislation

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The Northern Territory government’s recently introduced bail laws are facing a constitutional challenge in the High Court as prison populations reach record highs and remand rates near 50 per cent.

The Northern Australia Aboriginal Justice Agency (NAAJA), a not-for-profit legal service based in the NT, will argue the Bail and Youth Justice Legislation Amendment Act 2025 is unlawful and undermines fundamental legal principles — including the presumption that defendants are innocent until proven guilty, and the separation of powers between government and courts.

NT Chief Minister Lia Finocchiaro recalled parliament in late April and used extraordinary powers to pass the law in a single day, outlining what she called a “double community safety test”.

The law creates a presumption against bail for some serious offences, reversing the onus onto defendants.

In making community safety the “paramount consideration” in these cases, it requires a judge to be “satisfied to a high degree of confidence” that the person applying for bail will not pose a danger to the community or commit a serious offence.

In a move that could reshape the legal landscape, a new test now supplements the array of considerations judges must weigh before granting bail. Notably, this legislative change also abolishes the presumption against bail as a last resort for minors, marking a significant shift in juvenile justice.

In a statement on Wednesday, NAAJA said the new laws impose an “impossibly high threshold” for being granted bail — which it said has the primary purpose of ensuring defendants attend their trial.

NAAJA will argue in court that this amounts to unlawful punishment before there has been a finding of guilt.

NAAJA chairperson Theresa Roe said the law was rushed through in a single day to avoid accountability and scrutiny, accusing the NT government of “undemocratic” processes.

“These new laws mean more and more Aboriginal people in the NT are being locked up when they haven’t been convicted of any crime,” Roe said.

“NAAJA sees many people who have been sent to prison because of these laws who have later had their charges withdrawn, essentially serving time for crimes they have not committed.”

In a statement, the NT government said it will “defend its actions” and described the constitutional challenge as “legal warfare that is being used to try to make the Territory unsafe”.

The Northern Australian Aboriginal Justice Agency (NAAJA) has faced criticism for its stance, with detractors arguing that the organization should focus more on breaking the cycle of violence among its clients. “NAAJA would be better off helping its clients break the cycle of senseless violence rather than jeopardising community safety. We will continue to adopt policies that are centred on the rights of victims and the safety of the community,” the opposition stated emphatically.

Meanwhile, the rising incarceration rates have placed a heavy burden on the correctional system, exacerbating existing problems such as overcrowding, understaffing, and frequent lockdowns. The situation has drawn attention due to reports of neglect, including disturbing claims that prisoners have been instructed by guards to drink toilet water, highlighting the dire conditions within the facilities.

Aboriginal and Torres Strait Islander people make up 26 per cent of the NT population, but 88 per cent of the people in prison, according to data from the Australian Bureau of Statistics.

A rising number of people in NT prisons are being held on remand.

ABS data from June this year shows more than 48 per cent of the prison population were being held without being sentenced, up 53 per cent over two years.

In the year to 30 June, the total prison population jumped by 24 per cent. It rose by 8 per cent the previous year, before the CLP was in government.

When compared to global country-level statistics, the NT has the second-highest rate of incarceration, second only to El Salvador, according to data from World Prison Brief, an online database of information on prison systems around the world.

Criminal lawyers have expressed concerns over lengthy detentions, particularly when cases drag on without early guilty pleas. “Perhaps if a guilty plea had been entered earlier, that might not have been so much time. They might’ve had some time in the custodial system, but not that much. That’s one of the biggest concerns for criminal lawyers,” noted one legal expert.

In October, co-vice president of the Criminal Lawyers Association, Luke Officer, told SBS News the new bail laws had increased pressure on courts and corrections.

He said the new bail test drives more people into remand, and lockdowns often make it more difficult to meet with clients, which can lead to adjournments and more time on remand.

“You can see how quickly it all adds up. They might be on remand for three or four months before they can even have a plea, for example,” he said.

In some cases, “they’ve all but served, if not more than served, what they would’ve got on a penalty had it been dealt with quickly”.

Officer said defendants can serve as much as six months on remand.

Adding to the pressure for reform, the United Nations Working Group on Arbitrary Detention has issued a scathing critique of the Northern Territory government’s lack of cooperation. After being denied access to inspect all watch houses, prisons, and youth detention centers, the group called for urgent bail reform in its preliminary findings, signaling a need for international oversight in addressing these critical issues.

Justice system under scrutiny

The CLP has introduced a raft of “tough on crime” reforms since coming to power.

Other changes address public drunkenness, offences for ram raids and “posting and boasting” about crimes online, stronger enforcement for unpaid fines, and mandatory minimum sentences for assaulting frontline workers, as well as a range of new powers and greater resourcing for police.

The government maintains that tougher laws are needed to deal with community concern over crime.

The bail laws that are now subject to constitutional challenge were introduced after a shop owner was fatally stabbed.

But criticism has grown with prison numbers.

In November, the acting NT Ombudsman recommended prisoners be removed from watch houses “as a matter of urgency” after finding conditions were “unreasonable and oppressive”.

This month, the United Nations Working Group on Arbitrary Detention criticised a “complete lack of cooperation” from the NT government after being barred from inspecting all watch houses, prisons, and youth detention facilities, calling for bail reform in its preliminary findings.

Shortly after those findings were handed down, Australian Human Rights Commissioner Lorraine Finlay expressed her “serious concern” at the fact that the UN had been denied access.

“We understand that’s being done for operational reasons and safety concerns,” she said.

“The fact that there are safety issues serious enough … to block an expert oversight body from accessing those facilities, noting that this is an oversight body that does this type of thing every single day and routinely, that’s a really troubling thing.

“It raises serious transparency concerns, particularly when we know that those facilities have well-documented human rights issues and are specific facilities that the Australian Human Rights Commission and other bodies have raised significant concerns about over a long period of time.”