What Is a Surety?

If you have been charged with a criminal offence in Victoria and are applying for bail, one of the conditions the court may impose is that you provide a surety , now formally referred to in the Bail Act 1977 (Vic) as a bail guarantor. A bail guarantor is a person who undertakes to the court that they will ensure you comply with your bail conditions and attend court when required.

By entering into a bail guarantee, the bail guarantor agrees to forfeit a specified sum of money if you fail to appear at court or breach a condition of your bail. The amount is set by the bail decision maker. The guarantee may be provided in cash or secured against property such as real estate. It must be provided by a person other than the accused.

The purpose of a bail guarantee is both practical and psychological. Practically, it gives the court a financial assurance of compliance. Psychologically, an accused person who knows that a loved one has put up money or property on their behalf is generally more motivated to comply with their bail conditions and attend court.

Who Can Act as a Bail Guarantor?

Under s 9 of the Bail Act 1977 (Vic), the bail decision maker assesses the suitability of any proposed bail guarantor before accepting them. A bail guarantor must be an adult , aged 18 or over , and must not be under any legal disability.

The factors the bail decision maker considers when assessing suitability include:

Financial resources , whether the proposed bail guarantor has the means to meet the amount they are undertaking to forfeit. The bail decision maker must be satisfied of the sufficiency of the proposed bail guarantor’s means and may require them to provide evidence of their financial position, including information about income, assets, and liabilities.
Character and any previous convictions , the character of the proposed bail guarantor is a relevant consideration. A person with a significant criminal history may not be accepted.
Proximity to the accused , under s 9 of the Bail Act 1977 (Vic), the bail decision maker considers the proposed bail guarantor’s proximity to the accused, whether in point of kinship, place of residence, or otherwise. A close personal relationship , such as a parent, partner, or sibling , is generally regarded as a factor that strengthens the bail application, as it increases the bail guarantor’s practical ability to monitor and influence the accused’s compliance with their bail conditions.

Being a close family member alone is not sufficient. The court must be satisfied that the proposed bail guarantor meets all the relevant requirements. A relative who cannot demonstrate sufficient financial means or who has a concerning background may not be accepted.

Where an objection to a proposed bail guarantor is raised, the suitability of the proposed bail guarantor is determined by a magistrate or judge (s 9(2A) of the Bail Act 1977 (Vic)). The proposed bail guarantor may be required to attend court and answer questions about their financial position and their relationship to the accused.

What Are the Bail Guarantor’s Obligations?

Once accepted by the court, the bail guarantor assumes significant responsibilities. By entering into a bail guarantee, the bail guarantor accepts financial responsibility if the accused fails to:

Attend court at the time and place required by the bail undertaking
Surrender into custody if required to do so
Comply with any other conditions of bail imposed by the court

The bail guarantor’s obligations continue until the matter is finalised or until they are formally discharged from their liability. A bail guarantor cannot simply walk away from their obligations once they have entered into the undertaking , they must apply to the court to be discharged.

It is important to note that it is a criminal offence under s 31 of the Bail Act 1977 (Vic) for any party to enter into or act on an indemnity arrangement in connection with a bail guarantee. This applies to the accused, the bail guarantor, and any other person , whether by agreeing to indemnify, actually indemnifying, or agreeing to be indemnified. Any such arrangement is unlawful regardless of when it is made.

What Happens If the Accused Breaches Bail?

If the accused fails to appear at court or breaches a condition of their bail, a number of consequences may follow:

A police officer may arrest the accused without a warrant under s 24 of the Bail Act 1977 (Vic) if there are reasonable grounds for believing the accused has breached or is likely to breach their bail undertaking or conditions.
The accused may be charged with committing an indictable offence whilst on bail under s 30B of the Bail Act 1977 (Vic), which carries a maximum penalty of 30 penalty units or three months imprisonment, or both. This offence applies to indictable offending occurring on or after 26 March 2025.
The prosecution may make an application to the court for the bail guarantee to be forfeited.

Forfeiture of the bail guarantee is not automatic. It is not a strict liability process. The prosecution must make a formal application to the court, and the court must be satisfied that the forfeiture is warranted in the circumstances. The bail guarantor is entitled to be heard on the application and may apply for an order varying or cancelling any forfeiture that is ordered.

Can a Bail Guarantor Remove Themselves?

Yes. Under s 23 of the Bail Act 1977 (Vic), a bail guarantor , referred to in Form 17 as an applicant , may apply to the court to be discharged from their liability under the bail undertaking at any time. The application is made using Form 17, which is available from the Magistrates’ Court registry.

Upon such an application being made, the court must issue a warrant for the apprehension of the accused and bring them before the court (s 23(2) of the Bail Act 1977 (Vic)).

If the court discharges the bail guarantor from liability, the accused must find another bail guarantor or provide other security for their attendance at court. If the accused is unable to do so, they may be remanded in custody until another bail guarantor or further security is provided (s 23(4) of the Bail Act 1977 (Vic)).

If the bail guarantor passes away, s 20 of the Bail Act 1977 (Vic) provides that the guarantor’s estate bears no liability for the bail. The accused may be required to find alternative security in those circumstances.

How Is a Bail Guarantee Provided?

A bail guarantee may be provided in two ways:

Cash , the bail guarantor deposits the specified sum of money with the court
Property security , the bail guarantor provides security over real property, such as a house, up to the amount specified. This requires the bail guarantor to demonstrate equity in the property sufficient to cover the amount

The bail decision maker must be satisfied of the sufficiency of the means of each bail guarantor before admitting the accused to bail with a guarantee.

Frequently Asked Questions

Who can be a bail guarantor in Victoria?

Any adult aged 18 or over who is not under a legal disability may act as a bail guarantor, provided the bail decision maker is satisfied of their suitability under s 9 of the Bail Act 1977 (Vic). Suitability is assessed by reference to financial resources, character and any convictions, and proximity to the accused. Family members are commonly accepted as bail guarantors and a close relationship to the accused can strengthen the application.

What happens if the accused breaches bail?

If the accused breaches bail, the prosecution may apply to the court for the bail guarantee to be forfeited. Forfeiture is not automatic , the court must grant the application. The bail guarantor has the right to be heard and may seek relief from forfeiture. The accused may also be arrested and remanded in custody.

Can a bail guarantor withdraw from their obligations?

Yes. A bail guarantor may apply under s 23 of the Bail Act 1977 (Vic) to be discharged from their liability. Upon such an application, a warrant is issued for the accused, who must then find alternative security or face remand in custody.

Is it legal to promise to repay the bail guarantor?

No. Under s 31 of the Bail Act 1977 (Vic), it is a criminal offence for any party to enter into or act on an indemnity arrangement in connection with a bail guarantee , whether by agreeing to indemnify, actually indemnifying, or agreeing to be indemnified. Any such arrangement is unlawful.

What if the bail guarantor dies?

Under s 20 of the Bail Act 1977 (Vic), the death of a bail guarantor means the guarantor’s estate bears no liability for the bail. The accused may be required to find alternative security in those circumstances.

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If you need advice on a bail application or surety arrangement in Victoria, contact Doogue + George Defence Lawyers on 03 9670 5111.