Australian Institute of Criminology

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Executive summary

The custodial remand of young people has recently emerged as a key issue for youth justice in Australia, due primarily to concerns about perceived increases in young people on custodial remand. While a number of research studies and reviews on this topic have recently been published, this report provides the first detailed national consideration of the issue.

Although custodial remand plays an important role in Western criminal justice systems, minimising the unnecessary use of remand is important in youth justice, as Australia has obligations under several United Nations instruments to use detention of any kind only as a last resort for young people. Further, each of Australia’s jurisdictions has legislation in place that provides that young people should only be detained as a last resort.

Custodial remand of young people in Australia

This exploratory study used qualitative and quantitative methods to explore trends in the use of custodial remand for young people and potential ‘drivers’ of these trends.

A key finding of this study is that while the rate of young people in detention who are on remand has increased, the rate of sentenced young people in detention has decreased more substantially over the same period of time. This indicates that although concerns about increases in young people on remand are supported by the available evidence, they have been overstated to some extent.

Analysis of quantitative data did indicate, however, very high levels of young people on custodial remand in some jurisdictions (in particular, the Northern Territory), as well as differences between the length of time spent on remand by Indigenous and non-Indigenous young people, with Indigenous young people spending longer on remand than their non-Indigenous counterparts.

Drivers of custodial remand for young people

Given these findings, and Australia’s international and legislative obligations, it is vital to consider the factors that influence rates of young people on custodial remand. Based on the existing literature, and qualitative interviews undertaken with a wide range of stakeholders in each jurisdiction, this study considers in detail the following ‘drivers’ of remand for young people:

  • rates of offending by young people;
  • increasingly complex needs of young alleged offenders;
  • young people not applying for bail;
  • lack of access to legal representation;
  • judicial attitudes;
  • punitive community attitudes;
  • court delays;
  • difficulties locating ‘responsible adults’ to support young people’s bail applications;
  • pre-court decisions;
  • risk aversion;
  • the influence of victims’ rights;
  • inappropriate and/or arbitrary use of bail conditions;
  • breaches of bail;
  • policing performance measures;
  • policing practices;
  • administrative errors;
  • lack of access to services/programs; and
  • the influence of therapeutic jurisprudence.

Bail support services and programs for young people

Given that supporting young people on bail can contribute towards minimising the unnecessary custodial remand of young people, this study also provides an overview of bail support services and programs for young people in each jurisdiction. This report argues, however, that the available bail support for young people is limited and in some instances problematic, for the following reasons:

  • in some jurisdictions, only small numbers of young people participate in bail support programs;
  • there is a metropolitan bias and a lack of support for young people in regional, rural and remote areas;
  • there is a lack of clarity about the purpose of bail support services and programs;
  • there is a lack of engagement with young people with complex needs and/or offending histories, with some programs actively excluding these young people;
  • there are differences among programs as to whether young people must plead guilty in order to participate and therefore whether it is appropriate to address ‘offending’ behaviour; and
  • in some cases, bail support services and programs increase the monitoring and scrutiny of young people.

A key recommendation of this study is therefore that bail support services reconsider the aims and objectives of their service, as well as the international evidence about what works with young people on bail.

Key findings

The key findings from this review are:

  • there is a need to look beyond legislative reform in minimising the custodial remand of young people;
  • there is a lack of consensus on what bail can achieve for young people by bail decision makers;
  • young people with complex needs and welfare issues (ie those with mental health, alcohol and other drug abuse problems, and/or a history of experiencing child maltreatment or other violence) are most vulnerable to receiving custodial remand—they are often excluded from mainstream and community-based services. This, combined with legislation that aims to ‘protect’ a young person from the outside world and/or because required services are only available in custody, contributes to situations where young people may be remanded in detention ‘for their own good’;
  • young people in out-of-home care in particular are highly vulnerable to being placed on custodial remand. They are frequently unable to obtain bail as they either ‘fall through the cracks’ of the youth justice system, or are placed on custodial remand as a result of coming under a high level of scrutiny in residential care facilities;
  • evidence-based early intervention and prevention of offending by young people plays an important role in minimising the rate of custodial remand of young people; and
  • a process of ‘mesh-thinning’ occurs for some young people—particularly for vulnerable groups of young people such as those in out-of-home care such that once they are ‘caught up’ in the youth justice system, young people’s opportunities to exit the system diminish.

Key recommendations

Numerous factors impact on the level of young people on custodial remand. If the unnecessary custodial remand of young people is to be minimised, a multifaceted approach is therefore required. This research highlights in particular the need for renewed debate about:

  • the purpose(s) of bail;
  • the importance of implementing evidence-based policies and programs that prevent the onset of offending by young people; and
  • the implementation and evaluation of appropriately targeted bail support services for young people, particularly those with multiple, complex needs.

A set of recommendations is summarised in Table 18 that outlines both direct and indirect ways that may be used to minimise the inappropriate custodial remand of young people.

Impending changes to bail legislation

At the time of writing this report, changes to bail legislation in New South Wales and Tasmania that may impact on the findings of this research were being enacted. The NSW Bail Act 1978 as described in this report has since been replaced by NSW Bail Act 2013. At the time of writing, every effort was made to liaise with jurisdictional representatives to include information about any impending changes; however, readers should be aware that information relating to these jurisdictions may no longer be accurate.