The Northern Territory's controversial bail laws — which have driven a sharp increase in the number of people held on remand, the majority of them Aboriginal — are set to be challenged in the High Court.
The challenge, launched by the North Australian Aboriginal Justice Agency (NAAJA), will argue recent changes to the Territory's bail regime are unlawful and undermine fundamental principles of the criminal justice system.
They contend the laws amount to punishment before trial, erode the presumption of innocence, and breach constitutional limits on the exercise of judicial power.
NAAJA Chairperson Theresa Roe said the impact of the laws is already being felt across the Territory.
"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," she 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 "NAAJA sees many people who have been sent to prison because of these laws who have later had their charges withdrawn, essentially serving time for crimes they have not committed."
Bail is intended to ensure people charged with criminal offences — who are innocent until proven guilty — attend court for their trial. In the Northern Territory, courts already consider the risk of further offending, the seriousness of the alleged offence, and any risks to the safety and welfare of victims when deciding whether bail should be granted.
In May, the Bail and Youth Justice Legislation Amendment Act 2025 (NT) introduced an additional requirement, compelling judges to have a "high degree of confidence" that a person seeking bail will not commit a serious offence or pose a risk to community safety. This further test applies only after a judge has already determined, based on the usual considerations, that bail should be granted.
NAAJA argues the amendments impose an "impossibly high threshold" for bail.
"They essentially and unlawfully impose a punishment — without trial or a finding of guilt — outside of the standard lawful bail considerations," a NAAJA spokesperson said.
"This erodes a foundational principle of our criminal justice system, designed to protect us all: that judges can only be given power to lock someone up as a punishment for a crime, or in exceptional cases with appropriate safeguards and limitations."
When the changes were introduced — brought forward following the death of grocer Linford Feick, who was fatally stabbed in April — Chief Minister Lia Finocchiaro said they would be the "toughest" bail laws in the country, expanding on earlier reforms known as Declan's Law, and would place "community safety at the heart of our bail system".
"We inherited a system that places too much emphasis on the historical trauma of perpetrators rather than focusing on ongoing harm to the community," Ms Finocchiaro said at the time.
"The terrorisation of innocent people, particularly at the hands of those on bail for serious offences, needs to stop."
Prominent constitutional lawyer Geoffrey Watson SC, a director of the Centre for Public Integrity, described the laws as fundamentally flawed.
"Getting the balance right in bail laws is difficult, but these NT laws are badly wrong," he said. "They are punitive and remove judicial discretion. They plainly operate unfairly."
NAAJA say the High Court challenge, which is being financially supported by the Grata Fund, seeks to hold the Northern Territory Government to account for any constitutional breaches and to uphold the proper separation of powers between the executive and the courts, which are core principles of Australia's legal system.
The organisation also criticised the way the legislation was introduced, noting it was drafted behind closed doors and rushed through parliament within three days during an extraordinary sitting.
"This shocking refusal to engage with any public accountability and scrutiny processes that are designed to check the power of governments endangers our communities and leads to bad lawmaking," a NAAJA spokesperson said.
Ms Roe said the government's repeated reliance on urgency procedures has left the courts as the only avenue for oversight.
"The current CLP government is avoiding scrutiny and accountability. They have passed nine bills on urgency since coming to power... a mechanism that is meant to be reserved for emergencies only," she said.
"Continuously ramming laws through Parliament without proper process and scrutiny is not only undemocratic, it makes for bad policy that harms communities. Despite what it may believe, the NT Government is not above the Constitution."
