Pre-emptive policing: Bail compliance checks 2000-present
When people are granted bail by a court with a residence or curfew condition, there is controversy about when police can attend private property to check whether a person is complying with that condition. Police are more likely to visit the homes of Aboriginal people, particularly young Aboriginal people, to check on their bail compliance without first getting authorisation from a court.
Bail is when a person accused of an offence is released from custody while they wait for their trial. Its purpose is to balance the presumption of innocence and the right to be free in the community, with the need to protect public safety and make sure the person returns to court (, , ).
Under the Bail Act, police can enter private property to check on a person’s compliance with a curfew condition if they have a reasonable suspicion that the person has breached that condition (section 77) or if a court has granted police that power by way of an ‘enforcement condition’ (section 30) ().
NSW Police also has a practice of checking that people are complying with bail conditions, even where they have no reasonable suspicion that a person is in breach of those conditions and the court has not imposed an ‘enforcement condition’. This is a form of ‘pre-emptive policing’ (also referred to as preventive or proactive policing), which are methods used by police before, rather than after, a crime has occurred (see also SUB0423 and SUB0562).
Research shows that Aboriginal people are much more likely to be subject to these checks (, , , ). The proactive policing of bail conditions more generally, has also been identified as a factor contributing to Aboriginal over-representation in custody ().
Bail conditions
The Bail Act 2013 (NSW) is the current legal framework for determining whether an accused person should be granted bail (released) or detained in custody while they wait for their trial ().
The Bail Act sets out the conditions that can be attached to a grant of bail. It also sets out the ways in which bail conditions can be monitored or enforced when bail is granted ().
Some bail conditions are made with an accompanying ‘enforcement condition’, a court order requiring the person on bail to comply with specified police directions (, ). For example, a person may be granted bail with the condition that they have a curfew. This bail condition could have an enforcement condition which allows police to enter private property a set number of times per week to direct a person to come to their front door to show they are complying with their curfew (, ). An enforcement condition can only be imposed if the court considers it ‘reasonable and necessary in the circumstances’ ().
More information about bail can be found at SUB0476: Police custody and SUB0169: Institutionalisation, which is a forthcoming subject in ‘Sentencing’.
Police checks
NSW Police have had a practice of visiting private homes to check if people are complying with bail conditions even where the court has not included this as an enforcement condition and there are no grounds to hold a reasonable suspicion that a bail condition has been breached (, ).
Although this practice is not supported by the Bail Act, police rely on the legal principle of ‘implied licence’ which allows entry onto a property for a ‘legitimate purpose’ ().
Evidence suggests that this practice was encouraged within the police as part of its (former) Suspect Targeting Management Plan strategy (). More information about the Suspect Targeting Management Plan can be found in SUB0562.
In April 2025, the Law Enforcement Conduct Commission found there is a ‘powerful argument’ that such checks are inconsistent with the Bail Act. The Commission made three recommendations including that reliance on ‘implied licence’ to conduct bail compliance checks should be discontinued ().
The NSW Government has not responded to the Commission’s recommendations.
In 2024, the Justice and Equity Centre filed two test cases in the Supreme Court of New South Wales on behalf of Aboriginal families affected by excessive bail checks, arguing that police do not have the power to do these checks, unless they comply with an enforcement condition ordered by a court (). These cases are likely to determine whether such police checks are lawful.
In 2025, the Justice and Equity Centre filed another test case on bail compliance checks, on behalf of two Aboriginal brothers, in the Federal Court of Australia. This case argues that the police checks contravene the Racial Discrimination Act 1975 (Cth). This is based on expert evidence that bail checks without an enforcement condition are conducted disproportionately against Aboriginal people (, ).
Impact on Aboriginal people
Between 2018 and 2022, police in NSW conducted more than 100,000 checks every year on people who did not have court-ordered enforcement conditions attached to their bail ().
In 2021-22, 138,761 checks were conducted on people over the age of 18 and 50% of those were conducted on Aboriginal and Torres Strait Islander people (). In that same period, 26,606 checks were conducted on people under the age of 18 and 75% of those were conducted on Aboriginal and Torres Strait Islander young people ().
From January 2025 to December 2025, 94,470 checks were conducted and 45% of those were conducted on Aboriginal and Torres Strait Islander people ().
A report from the Law Enforcement Conduct Commission in April 2025 report shows that over half of all police checks where there are no bail conditions are on Aboriginal people and Torres Strait Islander people. Aboriginal and Torres Strait Islander children also make up the majority of checks for people under 18 years old ().
In July 2025 an expert report commissioned by the Justice and Equity Centre found that Aboriginal children and young people were disproportionately targeted through bail compliance checks. The report found, based on data supplied by the NSW Bureau of Crime Statistics and Research, that Aboriginal young people were 11.7% more likely to be checked on by police than non-Indigenous peers within the first 30 days of bail ().
Concerns have been raised that ‘more proactive policing of bail conditions, particularly focused on technical breaches (rather than re-offending), is contributing to over-incarceration of Aboriginal and Torres Strait Islander peoples’ ().
The case studies in this subject show the impact bail compliance checks have on peoples’ lives, including their impact on the right to privacy and family life (, , , ).
The law and policy in this subject is accurate as of 15 May 2026.