The Northern Territory government’s recently introduced bail laws face a constitutional challenge in the Supreme Court as prison numbers reach record highs and pretrial detention rates near 50 percent.
The Northern Australia Aboriginal Justice Agency (NAAJA), a not-for-profit legal service based in the NT, will argue that 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 the courts.
NT Chief Minister Lia Finocchiaro recalled Parliament in late April and used extraordinary powers to pass the law in one day, outlining what she called a “double test of safety for the community”.
The law creates a presumption against bail for some serious crimes, placing responsibility on the defendants.
Making the safety of the community the “overriding consideration” in these cases requires that a judge be “satisfied with a high degree of confidence” that the person applying for bail will not pose a danger to the community or commit a serious crime.
This test applies in addition to the standard set of factors that judges must consider before granting bail, and the law also removes the presumption that bail is not a last resort for children.
In a statement on Wednesday, NAAJA said the new laws impose an “impossibly high threshold” for obtaining bail – which it said has the main purpose of ensuring defendants attend their trials.
NAAJA will argue in court that this amounts to an unlawful punishment before a finding of guilt.
NAAJA chair Theresa Roe said the law was passed in one day to avoid liability and scrutiny, and accused the NT government of “undemocratic” processes.
“These new laws mean that more and more Aboriginal people in the NT are being incarcerated even though they have not been convicted of any crime,” Roe said.
“NAAJA sees that many people sent to prison because of these laws later have their charges dropped, and are in fact serving a prison sentence for crimes they did not commit.”
In a statement, the NT government said it will “defend its actions” and described the constitutional challenge as “legal warfare used to try to make the area unsafe”.
“NAAJA would be better off helping its clients break the cycle of senseless violence rather than endangering community safety. We will continue to implement policies that focus on victims’ rights and community safety.”
The pretrial detention rate is rising while the prison population is at a record high
According to data from the Australian Bureau of Statistics, Aboriginal and Torres Strait Islander people make up 26 percent of the NT population, but 88 percent of people in prison.
An increasing number of people in NT prisons are being held on remand.
ABS data from June this year shows that more than 48 percent of the prison population was held without conviction, an increase of 53 percent in two years.
In the year leading up to June 30, the total prison population increased by 24 percent. It rose by 8 percent the year before, before the CLP was in power.
Compared to global country-level statistics, the NT has the second-highest incarceration rate after El Salvador, according to data from World Prison Brief, an online database of information on prison systems around the world.
These rising incarceration rates have contributed to a strain on the correctional system, which faces well-documented problems of overcrowding, understaffing and frequent lockdowns, as well as reports of neglect, including inmates being ordered to drink toilet water by guards.
In October, Luke Officer, co-vice president of the Criminal Lawyers Association, told SBS News that the new bail laws had increased pressure on courts and corrections.
He said the new bail test is pushing more people into pretrial detention, and lockdowns often make it harder to meet with clients, which can lead to delays and more time in pretrial detention.
‘You see how quickly it all adds up. For example, they spend three or four months in pretrial detention before they can even enter a plea,” he said.
In some cases “they have served close to, if not more than, what they would have received on a penalty had it been dealt with quickly”.
The officer said suspects can spend up to six months in pretrial detention.
“If a guilty plea had been entered earlier, it might not have been as long. They might have spent some time in the prison system, but not as much. That’s one of the biggest concerns for criminal defense attorneys.”
Justice system under scrutiny
Since taking power, the CLP has introduced a raft of reforms that are tough on crime.
Other changes include public drunkenness, crimes such as ram raids and “posting and bragging” about crimes on the internet, stricter enforcement of unpaid fines and mandatory minimum sentences for assaulting frontline workers, as well as a range of new powers and more resources for the police.
The government says tougher laws are needed to address community concerns about crime.
The bail laws, now under constitutional challenge, were introduced after a store owner was fatally stabbed.
But criticism has increased with the number of prisons.
In November, the acting NT Ombudsman recommended that prisoners be removed from guardhouses “as a matter of urgency” after finding conditions were “unreasonable and oppressive”.
This month the United Nations Working Group on Arbitrary Detention criticized a “complete lack of cooperation” from the NT government after it was barred from inspecting all guardhouses, prisons and youth detention facilities, and called for bail reform in its preliminary findings.
Shortly after these findings were released, Australian Human Rights Commissioner Lorraine Finlay expressed her “grave concerns” that the UN had been denied access.
“We understand this is being done for operational and safety reasons,” she said.
“The fact that there are safety concerns that are serious enough … to deny an expert regulatory body access to those facilities, noting that this is a regulatory body that does this kind of thing every day and on a routine basis, that’s really troubling.
“It raises serious concerns about transparency, especially when we know that these facilities have well-documented human rights issues and are specific facilities that the Australian Human Rights Commission and other agencies have raised significant concerns about over a long period of time.”
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