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Legislative framework for bail for young people

As noted earlier in this report, when police arrest and charge a suspect with one or more criminal offences, the suspect can be either granted bail or remanded in custody. Subsequently, an accused person may either be granted bail or remanded in custody (ie refused bail) by the court. An understanding of the legislative framework under which these decisions are made is therefore critical to an understanding of the custodial remand of young people in Australia. This section describes the different models of bail legislation under which bail decisions are made about young people across Australia’s jurisdictions and outlines in detail the current relevant legislation in each jurisdiction. Specifically, the section describes who can grant bail to young people, when young people can apply for bail, the factors that bail decision makers must consider and the conditions that can be placed on young people granted bail. The section highlights in particular the differences between ‘generic’ bail legislation, which relates to both young people and adults, and legislation specific to young people.

Historical context

Prior to and during the early 1970s, bail was granted or refused in Australian jurisdictions according to common law (case law) (Steel 2009). At this time, the major consideration in bail decision making was ensuring an accused’s attendance at court and conditions were restricted to a monetary payment on release (Steel 2009). This changed during the late 1970s due to a growing concern about accused persons being unnecessarily remanded (King, Bamford & Sarre 2009) and about bail being less achievable for those who could not afford the bail payment (Steel 2009). After a range of Inquiries in the 1970s, legislation was enacted in each jurisdiction that provided guidance to bail decision makers. Victoria was the first jurisdiction to enact such legislation in 1977, with New South Wales following in 1978. The last jurisdiction to enact bail legislation was Tasmania in 1994. Table 10 lists bail legislation in each jurisdiction.

Since the introduction of bail legislation in Australia, there has been a range of legislative amendments that reverse the general right to bail that existed under common law (Steel 2009). Over the last few decades, the list of exemptions to this right to bail has been extended (Steel 2009). Changes include adding drug trafficking, domestic violence, firearms offences, murder and other serious offences to the list of offences for which bail is restricted, restricting bail for repeat offenders and considering victims’ fear and need for protection when determining bail (Steel 2009). Changes to bail legislation vary by jurisdiction (see Steel 2009); this summary provides a general overview only.

Current legislative framework

As described above, each jurisdiction in Australia has bail legislation that ‘provide[s] the framework within which the police and courts make decisions on bail’ (Roth 2010: 1). Each jurisdiction also has legislation that provides a framework for the treatment of young people in the criminal justice system more broadly (see Table 9). Youth justice legislation in each of Australia’s jurisdictions emphasises the vulnerability, immaturity and inexperience of young people, and in light of this, provides a framework for dealing with young people separately from adults. For example, all jurisdictions have a commitment to minimising young people’s contact with the formal criminal justice system through the use of diversionary measures such as cautions and youth justice conferences.

Table 9 Youth justice legislation, by jurisdiction
NSW Young Offenders Act 1997
Vic Children, Youth and Families Act 2005
Qld Youth Justice Act 1992
WA Young Offenders Act 1994
SA Young Offenders Act 1993
NT Youth Justice Act
Tas Youth Justice Act 1997
ACT Children and Young People Act 2008

The way in which youth justice legislation and bail legislation intersect with one another varies across Australia’s jurisdictions. There are three models of bail legislation relating to young people, described in turn below.

In the first model, young people are subject to the same legislation for bail as adults and bail legislation overrides anything contrary contained in youth justice legislation. This is the case in the Northern Territory, New South Wales and Tasmania. In the Northern Territory, the Youth Justice Act is subject to the Bail Act. In New South Wales, at the time of writing, the Children (Criminal Proceedings) Act 1987 is subject to the Bail Act 1978 (with the exception of decisions about Youth Conduct Orders, which are made according to the Children (Criminal Proceedings) Act 1987). In response to the NSW Law Reform Commission’s (2012) review of bail legislation, the NSW Government (2012: 11) has committed to amending the Bail Act 1978 to

require the bail authority to consider the special vulnerability or needs of the accused when determining bail, including because of youth, ATSI status or cognitive or mental health impairment.

Tasmania is unique in that bail processes, including which authorities have the power to grant or refuse bail and the specific circumstances in which this occurs, are governed by the Justices Act 1959, with bail legislation limited to outlining the procedural elements of granting or refusing bail and the penalties for breaching bail. Furthermore, Tasmania is the only jurisdiction not to provide legislative guidance on the factors the courts and authorised officers should take into consideration when making bail decisions. This guidance is instead provided by Tasmania’s common law. Tabled amendments to the Youth Justice Act 1997 will, however, provide increased guidance to bail decision makers.

In the second model, although youth justice legislation does not override bail legislation, separate divisions relating to bail decisions for young people are contained either in bail legislation (as is the case in the Australian Capital Territory and Western Australia) or in youth justice legislation (as is the case in Queensland).

In the third model, bail legislation is subject to youth justice legislation. This means that the terms within youth justice legislation override anything contrary contained in bail legislation. In Victoria, young people are subject to the same considerations and conditions as adults according to the Bail Act 1977; however, the Children, Youth and Families Act 2005 contains a number of protective mechanisms relating specifically to young people. For example, the length of time a young person can be remanded before having to appear before the Court is limited to 21 days. Further, a lack of accommodation alone cannot constitute a reason for refusing a young person’s bail and young people must be proceeded against via summons rather than arrest except in exceptional circumstances.

South Australia’s legislation is a hybrid of models two and three. Although under the Bail Act 1985 young people are in the main subject to the same considerations and conditions for bail decisions as adults, special reference is made to children, providing limited guidance on bail decisions involving young people. For example, under s 4(a)(ii), young people need not be held in custody until the conclusion of an investigation. Further, the Young Offenders Act 1993 contains some guidance on the circumstances under which young people are to be detained, which override bail legislation.

Table 10 lists the relevant legislation in each jurisdiction current at the time of writing.

Table 10 Bail legislation for young people and whether legislation has separate or additional considerations for bail decisions compared with adults, by jurisdiction
Bail legislation relating to young people Separate section for considerations for bail decisions for young people
NSW Bail Act 1978 subject to s 4A of the Children (Criminal Proceedings) Act 1987 regarding Youth Conduct orders No
Vic Bail Act 1977 subject to Part 5.2 Division 1 of Children, Youth and Families Act 2005 regarding custody and bail of children Noa
Qld The Bail Act 1980 subject to Part 5 of the Youth Justice Act 1992 regarding bail and custody of children Yes
WA Bail Act 1982 Yes
SA Bail Act 1985 subject to Young Offenders Act 1993 (see Pt 3 s 14) No
NT Bail Act No
ACT Bail Act 1992 Yes
Tas Justices Act 1959 subject to Bail Act 1994 No

a: However, the Children, Youth and Families Act 2005 Part 5 states that young people cannot be remanded for longer than 21 days and bail must not be refused on the sole ground that the young person does not have any, or any adequate, accommodation

Who can grant bail to young people?

As described above, bail decisions can occur at a number of points in the criminal justice process. In all jurisdictions, the following people have the power to grant or refuse bail:

  • Judges and Magistrates; and
  • authorised police officers (ie those ranked sergeant or above or in charge of a police station, watchhouse or lockup).

In addition, in Western Australia and Tasmania, Justices of the Peace (also known as Bench Magistrates in Tasmania) also have the power to grant or refuse bail to accused persons who are in police custody. In Victoria, Bail Justices also have this power. Bail Justices and Justices of the Peace are trained volunteers appointed to conduct bail hearings outside of business hours for adults and children in police custody. Victorian bail legislation limits authorised police officers to making bail decisions only when it is ‘impractical’ for an accused person to appear before a bail justice or court within 24 hours of being taken into custody. Tasmania’s Justices Act 1959 also gives jurisdiction for the clerk or deputy clerk of the petty sessions (ie administrator of the Magistrates Court) and clerks working within the office of the petty sessions who have been authorised by the Chief Magistrate to grant bail, but only with the permission of the prosecution.

Table 11 Authorities with the power to grant or refuse bail, by jurisdiction
NSW Authorised police officer; Magistrates and authorised justices; District Court; Supreme Court; Court of Criminal Appeal; Land and Environmental Court; Industrial relations Commission
Vic Policea; Bail justice; Courts; Judges
Qld Authorised police officer; Judge or Justice, whether sitting in court or acting in another way; A court exercising appellate jurisdiction; A justice or justices conducting an examination of witnesses in relation to an offence
WA Authorised police officer; Authorised community officer; Magistrate’s Court; Children’s Court; Coroner’s Court of Western Australia; District Court; Supreme Court; Court of Appeal
SA Authorised police officer; Court before which the applicant has been charged with an offence; Court which the eligible person has appeared for trial or sentencing; Magistrates Court; Supreme Court; Court where a person is to appear in answer to summons or for allegedly failing to observe condition of recognisance; Court where person is appearing as witness; person authorised by the court or justice who has issued a warrant for arrest
NT Authorised police officer; Local Court; Court of Summary Jurisdiction; Supreme Court; Youth Justice Court; Judge, magistrate or justice not sitting as a court
ACT Authorised police officer; Magistrates Court; Supreme Court
Tas Authorised police officer; Commissioned police officer; Approved officer under the Marine Safety (Misuse of Alcohol) Act 2006 or Road Safety (Alcohol and Drugs) Act 1970; Clerk of petty session or clerk working in the office of petty session as authorised by the Chief Magistrate; Justices as appointed by the Governor and commissioned by the Chief Magistrate to deal with bail and recognisances

a: Only if it is impractical to bring the person before a court or bail justice within 24 hours of being taken into custody

When can an accused young person apply for bail?

As can be seen in Table 12, the point(s) at which an accused person can apply for bail varies across the jurisdictions. Each jurisdiction’s bail legislation contains provisions outlining the point(s) in the criminal justice process at which an accused person can apply for bail. These provisions apply to both young people and adults.

Table 12 Circumstances where an accused person can make a bail application (as specified in bail legislation), by jurisdiction
NSW

The period between charge and first appearance at court;

The period between committal for trial or sentence and being brought before the Supreme court or District court;

The period of any adjournments;

The period of a stay of execution of a conviction or sentence;

The period between the lodging of an appeal and its determination;

The period between the accused person entering into recognisance to prosecute proceedings and the person’s appearance to abide by the decisions of the proceedings, or the persons appearance before the authorised justice to whom the matter is remitted;

The period during which an application of revocation, extension or amendment of a community service order or a children’s community service order is pending;

The period between the determination of an appeal and the persons appearance before a court to abide the decision on the appeal or the commencement of a new trial ordered by the appeal;

The period between a person being found guilty of an offence under the Children (Community Service Orders) Act 1987 and the person appearing before court;

The period between the making of, or a referral of an application to annul a conviction or sentence and the hearing of the application;

The period between an annulment of a conviction or sentence and the rehearing of the matter;

The period between an application for a review of a decision under the Children (Criminal Proceedings) Act 1987 and the determination of the application;

The period between the determination of an application for review and any further proceedings;

The period between a person being referred to the Drug Court and being brought before the Drug Court;

The period between being referred from a Drug Court to another court and the appearance at the referred court;

Any other period prescribed by the regulations

Vic

When it is not practicable to be brought before a bail justice or Magistrates Court within 24 hours after being taken into custody;

During any postponement of the hearing of a charge for the offence or whilst the accused person is awaiting trial;

When a case is adjourned by a court for inquiries or a report, or whilst the accused person is awaiting sentence, except where the court is satisfied that it would not be desirable in the public interest to release the accused

Qld

When a person is arrested in relation to a charge for an offence, and is in the custody of an officer-in-charge or a police station or a watch-house manager, does not need to be held for questioning or investigative purposes, and the accused person cannot be taken promptly before the court;

When a person is awaiting a criminal proceeding to be held by that court in relation that offence;

When the court is a Magistrates court and the person is awaiting an appeal to be held in the District Court;

When the court has adjourned criminal proceedings;

When the court has committed or remanded the person in the course of or in connection with a criminal proceeding to be held in relation to that offence

WA

When a person is arrested and is not released unconditionally according to s 142 of the Criminal Investigation Act 2006a;

At an accused person’s initial appearance in a court of summary jurisdiction (Magistrate or Children’s Court);

At an accused person’s initial appearance in the District or Supreme Court;

At an accused person’s appearance in any Court after an adjournment of proceedings;

At an accused person’s appearance on committal to the Supreme Court or District Court;

At an accused person’s appearance in connection with appeal

SA

When a person is taken into custody on a charge of an offence or, in the case of a child, on suspicion of having committed a crime;

When a person has been convicted of an offence but has not been sentenced;

When a person has been convicted of, and sentenced for, an offence but has not exhausted all rights of appeal against the conviction of sentence, or to have it reviewed;

When a person appears before a court for allegedly failing to observe a condition of recognisance;

When a person appears before a court in answer to a summons (including a person appearing as a witness);

When a person has been arrested on a warrant and is appearing or is to appear before a court as a witness

NT

The period between an accused being charged with the offence and their first appearance before a court in connection with proceedings for the offence;

The period between committal for trial or sentence and the appearance of the accused before the Supreme Court consequent upon the committal;

The period of any adjournment or adjournments;

The period between the finding of the Supreme Court that an accused is not capable of understanding the proceedings at his trial so as to be able to make a proper defence and his being dealt with according to law;

The period between the institution of an appeal and its determination;

The period between the determination of an appeal and: an accused person’s appearance before a court to abide the result of the determination of the appeal; or the accused person’s appearance between the committal of a person to appear before or be dealt with by a court and their appearance in accordance with that committal;

Any other period prescribed by the Regulations

ACT

Any period when the person is not required to attend court in relation to the offence with which the person has been charged

Tas

Where a person has been taken into custody for a simple offence, or for a breach of duty pursuant to a warrant issued by a justice, or to facilitate making the application for a restraint order;

Where a person who has been taken into custody for an offence or a breach of duty or failing to appear in court according to notice, is brought before a justice;

Where a witness who has been summoned to give evidence by a justice fails to appear before a court;

An accused person when a justice adjourns proceedings;

An accused person after the Supreme Court has committed the defendant for sentence or trial hearing;

An accused person after the Supreme Court has completed preliminary proceedings under a preliminary proceedings order;

An accused person after adjournment of proceedings;

An accused person at the adjournment of proceedings regarding a restraint order. The justice cannot remand the accused for longer than 28 days;

An applicant for a motion of review to the Supreme Court;

An appellant to the Magistrate’s Court

a: Under this provision, a police officer must release an accused unconditionally if they charge them with a simple offence or an indictable but not serious offence unless they reasonably suspect that if released unconditionally, the accused will: commit an offence; re-commit or continue to commit the original offence; endanger another person’s safety or property; interfere with witnesses or otherwise obstruct the course of justice; if charged with a non-serious but indictable offence, will not obey summons to court. If charged with a serious offence a police officer can detain the accused until the Bail Act (1982) has been complied with). Police cannot grant bail to those charged with murder

What must bail decision makers take into consideration?

Decisions about whether to grant or refuse bail to an accused person are undoubtedly very difficult to make. As Mulroney (2012: 1) states ‘bail determinations are predictive exercises conducted by fallible humans with imperfect information available’. Bail decision makers must balance the community’s wellbeing and right to safety against the rights of the accused person. It must be stressed that although an offender can apply for bail following a conviction or a plea of guilty but prior to sentencing, in most cases, such decisions are made prior to the accused person’s trial. The alleged offender is therefore technically innocent at this time. That alleged offenders are ‘innocent until proven guilty’ is one of the most fundamental principles underpinning Australia’s criminal justice system and is designed to ensure that innocent people are not punished. Decisions about bail are likely to be even more difficult when the accused person is a young person, given that young people, by definition, lack maturity and experience and must have their wellbeing taken into consideration.

Bail decision makers must take into account a range of factors when making decisions about granting or refusing bail to an accused person. These factors and considerations are outlined in the following subsections.

Presumptions for and against bail

Each jurisdiction’s bail legislation sets out the presumptions for and against the granting of bail. Most jurisdictions have a presumption in favour of bail for minor offences. Conversely, charges relating to very serious or violent offences such as stalking, domestic and family violence, assault, murder, drug trafficking or federal offences, usually have a presumption against bail. Some jurisdictions require the court or other authorised officer to be satisfied that there are ‘exceptional circumstances’ that necessitate the release of an accused person, or require the accused to ‘show cause’ as to why bail should be granted. See Table 13 for circumstances where there is a presumption for or against bail. In some jurisdictions, police do not have power to grant bail for more serious charges such as murder.

Bail considerations

Each jurisdiction’s bail legislation (with the exception of Tasmania) outlines the factors that bail decision makers must consider (ie ‘bail considerations’) when deciding whether to grant or refuse an accused person bail. These factors are very similar across the jurisdictions. Generally, they consider whether there is an ‘unacceptable risk’ that the accused will do the following:

  • fail to appear before court;
  • reoffend while on bail;
  • endanger the safety and/or welfare of the community; and/or
  • obstruct the course of justice (eg by interfering with witnesses).

The interests of the accused person and the victim(s) are also outlined in each jurisdiction’s bail legislation as important considerations.

The remainder of this section provides an overview of the specific bail considerations contained in each jurisdiction’s bail legislation.

Jurisdictions without separate bail consideration for young people

New South Wales

New South Wales’ Bail Act 1978 (s 32) requires bail decision makers to take the following factors into consideration:

  • the probability of whether the accused person will appear in court in respect of the offence, having regard only to:
    • the accused person’s background and community ties, as indicated for a non-Indigenous person, by the history and details of the accused person’s residence, employment and family situations and the accused person’s prior criminal record and for an Indigenous person as indicated by the accused person’s ties to extended family and kinship and other traditional ties to place and the accused person’s prior criminal record;
    • previous failure to appear in court;
    • circumstances of offence including the nature and seriousness, the strength of the evidence against the accused person and the severity of the probable penalty;
    • any other specific evidence regarding their likelihood to appear in court (subsection 1(a));
  • the interests of the accused person, having regard only to:
    • the period that the accused person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody;
    • need of the accused person to be free to prepare for court appearance or to obtain legal advice or both;
    • need for the accused person to be free for any lawful purpose;
    • whether the accused person is incapacitated by intoxication, injury or otherwise in danger of physical injury and in need of physical protection;
    • if the accused person is a minor, an Aboriginal or Torres Strait Islander, has an intellectual disability or is mentally ill, any special needs arising from that fact;
    • if the accused person is accused of an offence conducted while the accused person was at liberty on bail, on parole, was serving a sentence but was not in custody, was subject to a good behaviour bond or an intervention program order, or was in custody; then the nature of the person’s criminal history, the seriousness of indictable offences the accused person was previously convicted of, the number of any such previous offences and the length of period between those offences (subsection 1(b));
  • the protection of:
    • victim of the alleged crime;
    • close relatives of alleged victim;
    • any other person the authorised officer or court considers to be in need of protection due to the circumstances of the case (subsection 1(b1));
  • the protection and welfare of the community, having regard only to:
    • the nature and severity of the offence (ie whether it is of a sexual or violent nature or involves the use of a weapon);
    • whether the accused person has previously failed, or been arrested for anticipated failure, to observe a reasonable bail condition previously imposed in respect of the offence;
    • the likelihood of the accused person interfering with evidence, witnesses or jurors;
    • whether or not it is likely that the accused person will commit any serious offence while at liberty on bail (this likelihood is to be considered together with the likely consequences and whether the likelihood outweighs the accused’s right to liberty) (subsection 1(c)).

This legislation also provides that if an accused person under the age of 18 years does not reside with a parent or guardian, this shall be ignored (subsection 4).

As discussed in more detail below, the NSW Government (2012) has committed to a number of changes to the Bail Act 1978 that relate to young people.

Victoria

Under Victoria’s Bail Act 1977 (s 4), bail can be refused:

  • if the court is satisfied that there is unacceptable risk that the accused person, if released on bail, would:
    • fail to surrender himself into custody and answer bail;
    • commit an offence while on bail;
    • endanger the safety or welfare of member of the public; or
    • interfere with witnesses or otherwise obstruct the course of justice (subsection 2 d(i));

Furthermore, in assessing whether the circumstances constitute unacceptable risk, the court must consider the following:

  • the nature and seriousness of the offence;
  • the character, antecedents, association, home environment and background of the accused;
  • the history of previous grants of bail to the accused;
  • the strength of the evidence against the accused;
  • the attitude, if expressed to court, of the alleged victim of the offence on the grant of bail;
  • any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk (subsection 3).

As described above, however, Victoria’s Children, Youth and Families Act 2005 takes precedence over the Bail Act 1977 when bail decisions are being made about young people. Under the Children, Youth and Families Act 2005, a young person taken into custody must be:

  • released unconditionally;
  • released on bail; or
  • brought before a court or bail justice (s 346(2)).

The Children, Youth and Families Act 2005 also places restrictions on the time period for which young people can be remanded, with s 346(2) stating that if the court is not sitting, an accused young person must be brought before a Bail Justice no later than 24 hours after being taken into custody. If a Bail Justice refuses to grant an accused young person bail, the young person must appear before a court on the next working day or in prescribed regional areas, within two working days (s 346(4)). A court is also restricted in relation to the length of time for which young people can be remanded in custody. Under the Children, Youth and Families Act 2005, a young person can only be remanded for a period not exceeding 21 days (s 346(3)(5)). As described below, however, in practice, young people are sometimes remanded for multiple consecutive 21 day periods (see also note to Table 10 above). It is also legislated that bail must not be refused on the sole ground that the young person does not have any, or adequate, accommodation (s 346(9)).

South Australia

In South Australia, bail authorities are legislated to release an accused person on bail (deriving from the common law principle that a person is innocent until proven guilty), unless, after considering the following they decide to refuse bail (Bail Act 1985 s 10) due to:

  • the gravity of the offence (subsection 1(a));
  • the likelihood the applicant would, if released:
    • abscond;
    • offend again;
    • interfere with evidence;
    • intimidate or suborn witnesses; or
    • hinder police inquiries (subsection 1(b)i,ii,iii);
  • any need that the applicant may have for physical protection (subsection 1(d));
  • any medical or other care that the applicant may require (subsection 1(e));
  • any previous occasion on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement (subsection 1(f));
  • any other relevant matter (subsection 1(g)).
  • South Australia’s Bail Act 1985 also contains the following guidance for bail decision makers:
  • where the applicant has been convicted of the offence, the bail authority has, subject to the Act, unfettered discretion as to whether the applicant should be released on bail (subsection 2);
  • where the applicant is a person who is appearing or is to appear before a court as a witness in proceedings, the bail authority should, subject to the Act, release the applicant on bail unless there is a likelihood that the applicant would abscond (subsection 3);
  • despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant (subsection 4).

Northern Territory

In the Northern Territory, bail authorities must consider the following matters only (s 24 Bail Act):

  • the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to the person’s background and communities ties, as indicated by:
    • the accused person’s background and community ties as indicated by the history and details of their residence, employment and family situation, and if known, person’s prior criminal record;
    • any previous failure to appear in court pursuant to a recognisance or bail undertaking;
    • the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty; and
    • any specific evidence indicating whether or not it is probable that the person will appear in court (subsection 1(a));
  • the interests of the accused person, having regard only to:
    • the period that the person may be obliged to spend in custody if bail is refused and the conditions under which he would be held in custody;
    • the needs of the person to be free to prepare for his appearance in court or to obtain legal advice or both;
    • the needs of the person to be free for any other lawful purpose; and
    • whether or not the person is, in the opinion of the authorised member or court, incapacitated by intoxication, injury or the use of a drug or otherwise in danger of physical injury or in need of physical protection (subsection 1(b)).
  • the risk (if any) that the accused person would (if released on bail) interfere with evidence, witnesses or jurors ((1)(c));
  • the risk (if any) that the accused person would (if released on bail) commit an offence, a breach of the peace, or a breach of the conditions of bail ((1)(d));
  • the risk (if any) that would result from the accused person’s release on bail to the safety and welfare of:
    • the alleged victim of the offence, or the close relatives of the alleged victim;
    • or if the alleged victim is a child, any person (other than a close relative) who has the care of the child; or
    • any other person whose safety or welfare could, in the circumstances of the case, be at risk if the accused person were to be release on bail (subsection 1(e)).

Tasmania

As stated previously, all presumptions and considerations for bail applications in Tasmania are contained within common law. Most notable is the decision in R v Fisher (1964) Tas SR 318, where Tasmanian courts adopted the reasoning in R v Light (1954) VLR 152 that there is a prima facie right to bail; therefore, the burden of proving that this should not be the case lies with the Crown (Devine 1989: 5). Tabled amendments to the Youth Justice Act 1997 will introduce provisions for bail decision makers to consider when deciding a bail outcome for young people (Tasmania Department of Human Services personal communication 5 November 2012).

Jurisdictions with separate bail considerations for young people

Queensland, Western Australia and the Australian Capital Territory are the only jurisdictions that have separate considerations for bail applications by young people. These are generally very similar to bail considerations in other jurisdictions’ bail legislation and typically focus on:

  • the likelihood of the young person absconding;
  • the likelihood of the young person reoffending while on bail; and
  • any likely impacts on the young person or the community.

There are, however, a small number of key differences between the generic bail legislation used in other jurisdictions and these bail considerations that are unique to young people. These differences are discussed at the conclusion of this section.

Queensland

Under the Youth Justice Act 1992, bail decision makers in Queensland must consider the following in relation to bail applications by young people:

the nature and seriousness of the offence;

  • the young person’s character, criminal history and other relevant history, associations, home environment, employment and background;
  • the history of previous grants of bail;
  • the strength of evidence against the young person relating to the offence;
  • for Aboriginal or Torres Strait Islander young people, submissions made by a representative of the community justice group about the young person’s relationship to their community; any cultural considerations; any considerations relating to programs and services established for offenders in which the community justice group operates; and
  • any other relevant matter (s 48(3)).

Also, if it is a court that is making the decision, the court must have regard to the sentence order or other order likely to be made for the young person if found guilty (s 48(3A) Youth Justice Act 1992).

The bail decision maker must not release the young person if they are satisfied there is an unacceptable risk relating to:

  • the child surrendering into custody in accordance with bail conditions;
  • while on release, committing an offence; endangering anyone’s safety or welfare; or
  • interfering with a witness or otherwise obstructing the course of justice, whether for the young person or anyone else (s 48 subsection 5).

Furthermore, the bail decision maker must not release the young person if they are satisfied that:

  • the young person’s safety would be endangered, because of the alleged offence, if they were released; and
  • in the circumstances, there is no reasonably practicable way of ensuring the young person’s safety other than by keeping them in custody (s 48(7)).

If the matter is before the court and the court has information indicating unacceptable risk but does not have enough information to properly consider the matter, the court must remand the young person in custody while the information is obtained (s 48(6)).

Although there is a separate section for bail considerations for young people in the Youth Justice Act 1992, factors to be considered in bail decisions relating to young people overlap substantially with those for adults. The only considerations specific to young people are those under s 48(7) and s 48(3A), outlined above. Specific considerations for adults include the ‘show cause’ element for charges relating to certain serious offences (see Table 13).

Western Australia

In Western Australia, a young person who is in custody awaiting an appearance in court before conviction for an offence has a right to be granted bail unless in the opinion of the bail decision maker, one or more of the following can be answered in the affirmative:

  • that if the accused is not kept in custody they may: fail to appear in court in accordance with bail undertaking; commit an offence; endanger the safety, welfare, or property of any person; or interfere with witnesses or otherwise obstruct the course of justice (Sch 1 Part C cl 2 Bail Act 1982).;
    • In determining this, bail decision makers must have regard to: the nature and seriousness of the offence(s) and the probable method of dealing with the accused if convicted; the character, previous convictions, antecedents, associations, home environment, background, place of residence, financial position of the accused; the history of previous grants of bail; the strength of evidence against the accused; any other matter deemed relevant (Sch 1 Part C cl 3).
  • that the accused needs to be held in custody for their own protection;
  • that there are grounds for believing that if the accused is released, regarding the period when the accused is on trial, the proper conduct of the trial may be prejudiced;
  • whether there are any bail conditions that could reasonably be imposed which would sufficiently remove the possibility or the need for the provisions listed above;
  • the alleged circumstances of the offence(s) amount to wrong-doing of such a serious nature as to make the grant of bail inappropriate; or
  • that there is no responsible person willing to undertake in writing that the young person will comply with any requirements of bail undertaking (Sch 1 Part C cl 2).

As with Queensland’s legislation, although there is a separate section outlining factors that must be considered in bail decisions for young people, these overlap substantially with those for adults. The only consideration specific to young people is that a responsible adult must be willing to enter into a bail undertaking. Considerations specific to adults include whether the prosecutor has put forward grounds for refusing bail.

Australian Capital Territory

In the Australian Capital Territory, bail decision makers must consider the following in relation to the grant of bail to a young person:

  • the likelihood of the person appearing in court in relation to the offence;
  • the likelihood of the person, while released on a bail:
    • committing an offence;
    • harassing or endangering the welfare of anyone; or
    • interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else.

Further, if the person is convicted of an indictable offence, or the elements of an indictable offence are

proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.

In considering the above matters, the bail decision maker may have regard to any relevant matter, including:

  • the nature and seriousness of the offence;
  • the person’s character, background and community ties;
  • the likely effect of a refusal of bail on the person’s family or dependants;
  • any previous grants of bail to the person; or
  • the strength of the evidence against the person.

The Youth Justice Principles in s 94 of the Children and Young People Act (2008) should be considered, in addition to, as a primary consideration, the best interests of the child (s 23 Bail Act 1992).

The consideration of the Youth Justice Principles and any reports submitted on the young person are the only considerations specific to young people. The Youth Justice Principles are outlined below:

  • if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable;
  • a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;
  • a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity;
  • if practicable and appropriate, decisions about an Aboriginal and Torres Strait Islander child or young person should be made in a way that involves their community;
  • if a child or young person is charged with an offence, he or she should have prompt access to legal assistance and any legal proceeding relating to the offence should begin as soon as possible;
  • a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary;
  • children, young people and other young offenders should be dealt with in the criminal law system in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances;
  • on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community; and
  • it is a high priority that intervention with young offenders must promote their rehabilitation and must be balanced with the rights of any victim of the young offender’s offence and the interests of the community.
    Table 13 Presumptions for and against bail being granted
    Presumptions for bail Presumptions against bail

    NSWa

    The right to release on bail exists for all offences not punishable by a sentence of imprisonment, offences under the Summary Offences Act 1988 that are punishable by a sentence of imprisonment and all offences punished summarily (s 8).

    Presumption for bail for all other offences exists other than for charges where right to release is not entitled, where presumption for bail is exempted, where there is a presumption against bail and where bail is to be granted only under exceptional circumstances (s 9)

    The right for release for minor offences is not entitled if:

    • the person has previously failed to comply with bail undertakings and bail conditions;
    • the person is incapacitated by intoxication, injury or use of a drug or is in need of physical protection;
    • the person stands convicted of the offence or the conviction is stayed;
    • bail is dispensed with; or
    • the accused is already serving a sentence of imprisonment (s 8).

    Presumption for bail is exempted for:

    • charges of certain domestic violence offences;
    • charges for offences of contravening apprehended violence orders;
    • if the accused was on bail when the alleged offence occurred;
    • if the accused was on parole when the alleged offence occurred;
    • if the accused was on a good behaviour bond or intervention program when the alleged offence occurred; or
    • if the accused was in custody when the alleged offence occurred (ss 9A, 9B).

    Presumption against bail includes charges for:

    • certain offences against the Drug Misuse and Trafficking Act 1985;
    • certain federal offences (s 8A);
    • serious firearms and weapons offences (s 8B);
    • certain repeat property offences (accused is seeking bail for 2 or more property offences or has been convicted of 1 or more serious property offences within the last 2 years) (s 8C);
    • offences committed in the course of riots or other civil disturbances (s 8D);
    • offences carrying prison terms committed while on lifetime parole (s 8E); and
    • breach of extended supervision orders or interim supervision orders(s 8F).

    Bail is only to be granted under exceptional circumstances for charges of:

    • murder (s 9C)
    • serious personal violence offences (where the accused person is a repeat offender) (s 9D)
    Vic

    There is a presumption for bail with the exclusion of charges requiring ‘exceptional circumstances’ to be proven or for the accused to ‘show cause’ why detention is not justified (Part 2 s 4(1))

    Bail is to be refused for charges of murder, treason or certain offences under the Drugs, Poison and Controlled Substances Act 1981 unless exceptional circumstances exist (Part 2 s 4(2)).

    Bail for a charge of treason can only be granted by the Supreme Court and for murder by the Supreme Court or the Magistrate that commits the accused for trial (s 13(2)).

    Bail shall be refused unless the accused can show cause for why detention in custody is not justified for charges of:

    • an indictable offence that is alleged to have been committed while awaiting trial for another indictable offence;
    • a stalking offence (in addition previous convictions or found guilty of stalking or the presence of the use or threats of use of violence against alleged victim);
    • certain offences under the Family Violence Protection Act 2008; or
    • contravening s 32 of the Stalking Intervention Order Act 2008 in addition previous convictions or found guilty of an offence involving use or threats of use of violence or the presence of the use or threats of use of violence against alleged victim; drug trafficking offences (Part 2 s 4(4))
    Qld

    There is a general presumption for the courts. Section 9 of the Bail Act 1980 states that when an accused appears before the court for a charge not yet convicted, subject to the considerations outlined in the Act, the court must grant bail or vary or amend any existing bail orders

    Nil (for adults there is a requirement to show cause for charges relating to certain offences, however this requirement is not applicable for young people)

    SA

    Section 10 of the Bail Act 1985 provides a statutory presumption in favour of bail, deriving from the common law principle that a person is innocent until proven guilty

    Bail is not to be granted unless special circumstances can be established for charges of (s 10A):

    • serious and organised crime
    • causing death or harm by motor vehicle, acts endangering life or creating risk of serious harm by motor vehicle
    • contravention of bail order
    • offence of contravening or failing to comply with control order or public safety order
    • blackmail
    • threats or reprisals to persons involved with a criminal investigation or proceedings
    • threats or reprisals against public officers
    • causing a bushfire
    WA

    Presumption for bail exists for a child accused who is in custody (ie on custodial remand) (Sch1 Part C cl 2) unless charged with an offence requiring exceptional circumstances to be proven

    Exceptional circumstances must be proven for bail to be granted when charged for a serious offence while on bail for another serious offence (Sch 1 Part C cl 3A).

    Exceptional circumstances must be proven for bail to be granted when charged with murder (Sch 1 Part C cl 3C)

    Tas

    Nil

    Nil

    NT

    Presumption for bail exists for all charges except for offences where there is no presumption for bail or where the accused is required to satisfy the court that bail should not be refused

    The accused is required to satisfy the court/police/Justice of the Peace that bail should not be refused for charges of:

    • murder, treason, an offence against the Misuse of Drugs Act punishable by a term of imprisonment for more than seven years;
    • an offence against the Customs Act 1901 (Cth) in relation to narcotic goods punishable by a term of imprisonment for 10 years or more;
    • an offence against Division 307 of the Criminal Code (Cth) punishable by a term of imprisonment for 10 years or more;
    • an offence against ss 36, 37, 38 or 55 of the Serious Crime Control Act;
    • an offence against s 103A of the Criminal Code;
    • a serious violence offence alleged to have been committed within five years after being found guilty of an earlier serious violence offence; or
    • a serious sexual offence (s 7A).

    No presumption of bail exists for charges of:

    • an offence of serious harm, sexual intercourse and gross indecency without consent or in contravention of a Domestic Violence Order, if the charge is within a period of 10 years of being found guilty of murder, an offence of serious harm, harm, common assault or sexual intercourse or gross indecency without consent;
    • serious violence offence and being found guilty of a serious offence in the preceding 10 years; or
    • if in custody for another offence (s 8).
    ACT

    There is an entitlement for bail for certain minor offences and for the breach of sentence obligations for minor offences

    Presumption of bail is not to apply for charges of:

    • a range of serious offences under the Crimes Act 1900 including manslaughter, intentionally inflicting grievous bodily harm, sexual assault in the first and second degree, sexual intercourse without consent and various drug-related offences;
    • certain offences under the Drugs of Dependence Act 1989;
    • certain offences under the Medicines, Poisons and Therapeutic Goods Act 2008;
    • certain offences under the Customs Act (Cth);
    • an accused who has been charged with threat to kill, threat to inflict grievous bodily harm, stalking or a contravention of a protection order and who has been found guilty in the previous 10 years of an offence involving violence or the threat of violence; treason; and
    • or convicted of an indictable offence but not sentenced (s 9B)

    a: The Department of Attorney-General and Justice has noted that a new, simpler Bail Act is being developed that aims to achieve greater consistency by removing complexities such as the presumptions scheme (personal communication 30 January 2013)

Specific bail considerations for young people compared with generic considerations for both adult and young people—key differences

A number of key differences exist between bail considerations in jurisdictions with ‘generic’ bail legislation that applies to both young people and adults (New South Wales, Victoria, South Australia and the Northern Territory) and bail considerations in jurisdictions with legislated considerations that are unique to bail decisions involving young alleged offenders (Queensland, Western Australia and the Australian Capital Territory).

First, bail considerations unique to young people are generally subject to the principles of youth justice contained in a jurisdiction’s youth justice legislation. In the Australian Capital Territory, for example, bail decision makers in cases involving young alleged offenders must take into consideration the principles of the Children and Young People Act 2008. This is also the case in both Queensland (as provisions for making bail decisions relating to young people are contained in the Youth Justice Act 1992) and Victoria (as Victoria’s Bail Act 1977 is subject to the Children, Youth and Families Act 2005). In these jurisdictions therefore, principles relating specifically to the wellbeing of young people must be taken into consideration in bail decisions. While New South Wales’ bail legislation states that ‘if the accused person is a minor...any special needs arising from that fact’ should be considered in relation to the interests of the accused person, it does not go as far as requiring bail decision makers to consider the principles of the Young Offenders Act 1997. In all other jurisdictions, bail decision makers are not required to consider the broader principles of youth justice outlined in the relevant legislation. Tasmania is another exception as their bail considerations are outlined in case law. However, tabled amendments to the Youth Justice Act 1997 provide that ‘a person who intends to admit a youth to bail must have regard for the Principles set out in s 5 of the Youth Justice Act’.

As described above, principles contained in youth justice legislation in each of Australia’s jurisdictions highlight the inexperience and vulnerability of young people. Given that young people are still developing and maturing, youth justice principles stress the importance of having a discrete justice system for young people, minimising young people’s adverse contact with the criminal justice system, and rehabilitating and reintegrating young people.

Second, although most jurisdictions’ bail legislation requires bail decision makers to consider the protection of the accused person (as outlined above), it is noteworthy that in ‘generic’ bail legislation that applies to both adults and young people, this is designed to protect the accused from a period of custodial remand. In legislative provisions that relate specifically to young people, however, bail decision makers are not required to take this into account, but instead must consider whether it necessary to protect the young person if released on bail. Therefore, it would appear that these provisions protect adults from custody and young people from the outside world.

Under Western Australia’s legislation, for example, bail decision makers must consider ‘whether the accused needs to be held in custody for their own protection’ (Sch 1 Part C). Similarly, under Queensland’s legislation, bail decision makers

must not release the child if satisfied that: the child’s safety would be endangered, because of the alleged offence, if the child were released; and in the circumstances, there is no reasonably practicable way of ensuring the child’s safety other than by keeping the child in custody (s 48(6)).

Although legislative provisions designed to ensure the protection of young people are laudable, it is important to consider whether such provisions may inadvertently result in young people being remanded in custody when they might otherwise be granted bail.

Third, legislative provisions that relate specifically to young people appear to be somewhat broader in scope that those that apply irrespective of the age of the accused person. Both the ACT’s and Queensland’s legislative provisions for bail decisions involving young people allow bail decision makers to take ‘any relevant matter’ into consideration. While the ACT’s legislation provides some guidance on what that might include, Queensland’s does not, and in both cases this gives bail decision makers much wider scope than is the case in jurisdictions without specific provisions relating to young people. Although such provisions may be commendable on the grounds that they may enable decision makers to take into account the individual circumstances and characteristics of young people, they may also ‘widen the net’ by allowing factors to be considered that would not be considered in bail decisions relating to adults.

Two further unique factors influencing bail decisions for alleged young offenders should be noted here. The first is that in Western Australia, an alleged young offender has the right to be granted bail unless ‘there is no responsible person willing to undertake in writing that the child will comply with any requirements of [a] bail undertaking’ (Sch 1 Part C). This provision has been criticised at length in the literature (eg Auditor General for Western Australia 2008; Clare et al. 2011), as it is seen to disadvantage young people from remote and regional areas (Clare et al. 2011). It should also be noted that meeting this provision is outside of the control of the young alleged offender; such a provision may be a hurdle to being granted bail that applies only to young people. The second is that in Queensland, if the bail decision maker has information indicating that the young person poses an unacceptable risk but not sufficient information to consider the matter fully, ‘the court must remand the child in custody while the information is obtained’ (s 48(6)). Similar legislative provisions exist for young people in Victoria and Western Australia. It is obviously important that the court have at its disposal all the necessary information to make an informed decision about whether to grant bail to a young person; however, research studies have cautioned that administrative delays can contribute to increased rates of young people on custodial remand (Tresidder & Putt 2005).

The number of bail applications that can be made

Some jurisdictions have restrictions on the number of times an accused person can apply for bail. Under s 22A of NSW Bail Act 1978, courts cannot entertain an application by an accused person when an application for bail has already been made and dealt with by the court, unless:

  • the person was not legally represented when the previous application was dealt with and the accused person now has legal representation;
  • information relevant to the granting of bail is to be presented in the application that was not presented to the court in the previous application; and/or
  • circumstances relevant to the granting of bail have changed since the previous application was made.

In response to the NSW Law Reform Commission’s (2012) review of bail legislation, the NSW Government (2012: 5) has committed to changes to the Bail Act 1978 as follows:

The new Bail Act will…provide for a young person to apply for bail a second time, as of right, if the initial bail application was made on the day of first court appearance. This should remove any disincentive to practitioners making a bail application at the first possible opportunity, and if refused, will allow the practitioner a chance to receive more thorough instructions from the young person before making a second application. Existing provisions, allowing subsequent applications where there is new information or circumstances, will be retained in the new Act.

Victoria has similar restrictions in relation to accused persons reapplying for bail after an initial application for bail has been refused or an accused person’s bail has been revoked. Under s 18AA of the Bail Act 1977, a court must not hear an application unless:

  • the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail;
  • the applicant was not represented by a legal practitioner when bail was refused or revoked; and/or
  • the order refusing or revoking bail was made by a Bail Justice rather than a Magistrate.

However, these conditions do not limit applications to the Supreme Court for bail (Bail Act 1977 s 18AA).

The Australian Capital Territory also has restrictions on the number of times an application for bail can be made. Under s 20A(b) of the Bail Act 1992, the Magistrates’ Court may only consider a third or subsequent application for bail if:

  • the court is satisfied that since the last application for bail there has been a change in circumstances relevant to the granting of bail; and/or
  • there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application of bail.

In the ACT Supreme Court, the same conditions apply if the accused has already made two or more applications for bail in the Magistrates court or one application in the Supreme Court (s 20C).

There are no apparent restrictions on the number of bail applications an accused person can make within the bail legislation of South Australia, Tasmania, Queensland, Western Australia or the Northern Territory.

What conditions can be placed on young people granted bail?

As described earlier in this report, bail can be unconditional or conditional. Unconditional bail imposes no restrictions on the accused person’s behaviour, other than that they must appear in court at a later date for a hearing. Conditional bail requires the accused person to adhere to certain conditions until the court hearing takes place. Bail legislation in each jurisdiction empowers bail decision makers to impose conditions on the granting of bail to an accused person. There are, however, a number of key differences among the relevant pieces of legislation.

First, only some jurisdictions’ legislative provisions make a clear statement that there should be a presumption in favour of unconditional bail. Under the NSW Bail Act 1978, for example, bail decision makers are instructed that ‘bail shall be granted unconditionally unless the authorised officer or court is of the opinion that one or more conditions should be imposed [for specific purposes]’ (s 37). Similarly, Queensland’s provisions, which as discussed in more detail below relate specifically to young people, state that ‘the court or officer must release the child on the child’s own undertaking...unless the court or officer is satisfied it would be inappropriate’ (Youth Justice Act 1992 s 52). Under Victoria’s Bail Act 1977, the court must consider the following options in order:

  • release of the accused on his or her own undertaking without any other conditions;
  • release of the accused on his or her own undertaking with conditions about the conduct of the accused;
  • release of the accused with a surety of state value or a deposit of money, with or without conditions about the conduct of the accused (s 5).

In all other jurisdictions, no such statements are made about presumptions in favour of unconditional bail.

Second, jurisdictions’ legislative provisions contain varying degrees of guidance about the nature and types of bail conditions that can be imposed on an accused person. For example, while the Northern Territory’s legislation provides detailed guidance about the types of bail conditions that can be imposed on an accused person (see below), Victoria’s legislation is far less prescriptive, stating only that ‘conditions must be no more onerous than is required to achieve the purposes...[of conditional bail]...and be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused’ (s 5). It should be noted, however, that all jurisdictions’ legislative provisions concerning bail contain very broad statements that empower bail decision makers to impose any condition not explicitly outlined in the legislation. For example, NSW legislation enables bail decision makers to require an accused person to ‘observe specified requirements as to his or her conduct while at liberty’ (s 36(2)(a)). Similarly, under SA’s Bail Act 1985, bail decision makers can require an accused person ‘to comply with any other conditions as to the applicant’s conduct that the authority considers should apply while on bail’ (s 11).

Where legislative provisions provide guidance about specific bail conditions that can be imposed, these typically require the accused person to:

  • reside as directed;
  • not associate with specified persons;
  • make a deposit of money;
  • not frequent specified locations; and/or
  • report regularly to the police.

Third, across Australia’s jurisdictions, only some legislative provisions relating to bail explicitly state the desired outcomes that bail conditions are designed to achieve. For example, Victoria’s Bail Act 1977 states that bail conditions are only to be imposed to reduce the likelihood that the accused person:

  • fail to attend a court hearing at a later date;
  • commit an offence while on bail;
  • compromise the safety and wellbeing of the public; or
  • interfere with witnesses or obstruct the course of justice.

Similar guidance about the outcomes that bail conditions should be designed to support is contained in most other jurisdictions’ legislation. Queensland’s legislation even requires that any bail conditions imposed on young people must be supported by written reasons. Bail legislation in South Australia and Tasmania does not contain this explicit guidance about the purposes of bail conditions (although as stated above, tabled amendments to Tasmania’s Youth Justice Act 1997 will provide increased guidance). This is important to consider in light of research literature that indicates that bail conditions placed on young people are often somewhat arbitrary and unrelated to the young person’s offending behaviour (Mulroney 2012; NSW LRC 2012). This issue is discussed in more detail later in this report.

Specific bail conditions for young people compared with generic bail conditions for both young people and adults—key differences

As highlighted below, only Queensland, Western Australia and the Australian Capital Territory have legislative provisions relating specifically to accused young people. These provisions vary considerably. As stated above, Queensland’s provisions offer little guidance about the types of bail conditions that can be imposed on young people, beyond having a presumption in favour of unconditional bail and stating that conditions must not be more onerous than necessary. Western Australia’s provisions are very similar to other jurisdictions’ provisions for dealing with adults and young people, with the exception of a reference to requiring ‘attendance by the child at a school or other educational institution’.

The ACT’s legislative provisions relating to bail conditions that can be imposed on young people are, however, quite unique in some respects. For example, they explicitly state that the ‘best interests of the child’ are to be a primary consideration and the principles of youth justice contained in the Children and Young People Act 2008 are also to be considered (the latter is also the case in those jurisdictions in which youth justice legislation takes precedence over bail legislation). Furthermore, the ACT’s provisions are the only legislative provisions (except for South Australia) that can require a young person to be supervised while on bail. Finally, and perhaps most importantly, they are unique in that a young alleged offender can be required to ‘undergo psychiatric treatment or other medical treatment...[and/or]...participate in a program of personal development, training or rehabilitation’ (s 25(4)(c),(d) Bail Act 1992).

This is noteworthy as it raises a key tension about the purpose and limitations of bail, particularly for young alleged offenders—whether young people should be required to participate in ‘rehabilitation’ while on bail. As discussed in more detail later in this report, while it may be inconsistent with the principle of ‘innocent until proven guilty’ to require a young person who has not been convicted of an offence to participate in ‘rehabilitation’, not requiring such participation may not be in the best interests of the young person and may represent a missed opportunity to intervene constructively in the young person’s offending trajectory.

New South Wales

Bail is to be granted unconditionally or subject to conditions imposed by instrument in writing. One or more of the following conditions only may be imposed on the grant of bail:

  • to observe specified requirements as to his or her conduct while at liberty;
  • to reside in accommodation for persons on bail (the Minister for Corrective Services is to ensure that adequate and appropriate accommodation for persons on bail is available; in considering whether to impose this condition the authorised officer or court is to consider whether placement is available and suitable, although juveniles under the age of 16 years who have been granted bail with an accommodation condition imposed may also be the responsibility of the Department of Families and Communities under the Children and Young Persons (Care and Protection) Act 1998 if they are considered to be at risk). In considering suitability, the authorised officer or court is to have regard to the background of the accused, particularly if they are of Torres Strait Islander or Aboriginal descent);
  • that one or more acceptable person(s) acknowledge that they are acquainted with the accused and that they regard the accused as a responsible person who is likely to comply with their bail undertaking;
  • that the accused, or one or more acceptable person, forfeit a specified amount of money, without security, if the accused person fails to comply with their bail undertaking;
  • that the accused, or one or more acceptable person, deposit acceptable security, to forfeit a specified amount of money if the accused fails to comply with his or her bail undertaking;
  • that the accused or one or more acceptable person, deposit with an authorised officer or court a specified amount of money in cash and enter into an agreement to forfeit the amount deposited if the accused fails to comply with his or her bail undertaking (s 36 Bail Act 1978);
  • that the accused comply with the specified requirements prohibiting or restricting the person from associating with a specified person (the accused does not contravene this condition if the accused associates with the specified person in compliance with an order of a court; or if, having associated with the specified person unintentionally, the accused immediately terminates the association);
  • that the accused comply with the specified requirements prohibiting or restricting the person from frequenting or visiting a specified place or district (the accused does not contravene this requirement if the accused does so in compliance with an order from the court);
  • that the accused surrender to the authorised officer or court any passport held (s 36B).

Bail shall be granted unconditionally unless the authorised officer or court is of the opinion that one or more conditions should be imposed for the purpose of:

  • promoting effective law enforcement, or
  • the protection and welfare of any specially affected person, or
  • the protection and welfare of the community, or
  • reducing the likelihood of future offences being committed by promoting the treatment or rehabilitation of an accused person (s 37(1)).

Conditions shall not be imposed that are any more onerous for the accused person than appear to the authorised officer or court to be required:

  • by the nature of the offence, or
  • for the protection and welfare of any specially affected person, or
  • by the circumstances of the accused person (s 37(2)).

There have been recent amendments to the Bail Act 1978 which enables a court to:

  • Impose an enforcement condition when granting bail.
  • Defines an enforcement condition as a condition that requires an accused
    • person to comply, while on bail, with one or more specified kinds of directions that are given by police officers for the purpose of monitoring or enforcing compliance with an underlying bail condition.
  • Provides that an enforcement condition is to specify:
    • the kinds of directions that may be given to the accused person while at liberty on bail, and
    • the circumstances in which each kind of direction may be given (in a manner that ensures that compliance with the condition is not unduly onerous), and
    • the underlying condition(s) in connection with which each kind of direction may be given.
  • Provides that an enforcement condition may be imposed only if the court considers it reasonable and necessary in the circumstances, having regard to:
    • the history of the accused person including their criminal history (particularly if the criminal history includes serious offences or a large number of offences),
    • the likelihood or risk of the accused person committing further offences while at liberty on bail,
    • the extent to which compliance with a direction of a kind specified in the condition may unreasonably affect persons other than the accused person.
  • Provides that an enforcement condition can only be imposed at the request of the prosecution.
  • Provides that a police officer may give a direction to an accused person in the circumstances specified in the enforcement condition, or at any other time the police officer has a reasonable suspicion that the accused person has contravened the underlying bail condition (s 37AA).

Victoria

A court considering the release of an accused on bail may only impose conditions in order to reduce the likelihood that the accused may:

  • fail to attend in accordance with his or her bail and surrender into custody at the time and place of the hearing or trial;
  • commit an offence while on bail, or endanger the safety or welfare of members of the public; or
  • interfere with witnesses or otherwise obstruct the course of justice in any matter before the court (s 5 Bail Act 1977).

The conditions must be no more onerous than is required to achieve the purposes listed above, and be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused (s 5 Bail Act 1977).

Queensland

The court or officer must release the young person on the young person’s own undertaking, without sureties and without deposit of money or other security, unless the court or officer is satisfied it would be inappropriate in all the circumstances (s 52(2) Youth Justice Act 1992).

If the court or officer decides not to release the young person as described above, they must consider the conditions for the release of the young person on bail in the following sequence:

  • the release of the young person on the young person’s own undertaking with a deposit of money or other security of stated value;
  • the release of the young person on the young person’s own undertaking with a surety or sureties of stated value;
  • the release of the young person on the young person’s own undertaking with a deposit of money or other security of stated value and surety or sureties of stated value (s 52(3) Youth Justice Act 1992).

The court or officer may impose other conditions on the grant of bail including, for example, conditions necessary for ensuring the young person will surrender into custody in accordance with the bail or the conditions of the release, whichever is relevant; and while on release, the young person will not:

  • commit an offence; or
  • endanger anyone’s safety or welfare; or
  • interfere with a witness or otherwise obstruct the course of justice, whether for the young person or anyone else (s 52(4) Youth Justice Act 1992).

Any conditions imposed on the grant of bail must not be more onerous than the court or officer considers necessary in all the circumstances; and must be supported by the court’s or officer’s written reasons (s 52(5)(a)(b) Youth Justice Act 1992).

As stated above, there is little guidance in the legislation in Queensland as to the conditions that might be imposed in a young person’s bail undertaking. A number of legislative provisions for adults—such as preventing the accused from ‘entering or remaining in licensed premises’—are not included in the provisions relating to young people (Bail Act 1980 s 11(3)(7)).

Western Australia

Conditions imposed on a grant of bail shall not be any more onerous on the accused than the judicial officer or authorised officer considers is required in the public interest having regard to the nature of the offence for which the accused is in custody and the circumstances of the accused (s 17(2) Bail Act 1982).

  • Possible conditions to be imposed include:
    • the accused or a surety/ies agree to forfeit a specified amount of money if he fails to comply with any requirement of his bail undertaking;
    • that the accused or surety/ies give security of a specified value, including the deposit of a specified amount of cash, for the performance of their respective obligations;
    • that the accused or a surety/ies deposit with a specified officer any specified passbook or document relating to the title to, or ownership of, any account or other asset offered as security for the performance of their respective obligations;
    • that the accused or surety/ies, at their own expense or otherwise, enter into such mortgage, charge, assignment or other transaction, or take such other step, as may be required, including completion of the necessary documents, to render any security effective and enforceable by the state (Sch 1 P 2 cl 1).
  • Other conditions which may be imposed include:
    • conditions to be complied with before the accused is released on bail or while the accused is on bail;
    • conditions on the accused’s conduct while on bail;
    • conditions as to where the accused shall reside while on bail (cl 2(1)).

Western Australian legislation also sets out additional conditions applicable to young people, as follows:

  • any period each day during which the young person is to remain at a particular place;
  • any person with whom the young person is not to associate or communicate;
  • any place that the young person is not to frequent;
  • the attendance by the young person at a school or other educational institution; and/or
  • any other matter (cl 2 (1a)).

These conditions must be imposed in order to ensure that the accused appears in court in accordance with their bail undertaking, does not while on bail commit an offence, does not endanger the safety, welfare or property of any person, does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself [or herself] or any other person, or as regards the period when the accused is on trial, does not prejudice the proper conduct of the trial (cl 2(2)).

The legislation also provides discretion for judicial officers to set as a condition (for both young people and adults) to participate in counselling, a prescribed programme (cl 2 2(b)), a medical examination (including an examination by a psychiatrist) (cl 2(3), (3a)) and or alcohol and other drug treatment (cl 2(4)). It also provides that if they are given a condition to reside in accommodation specifically for persons on bail, the condition shall be deemed to include the condition to obey the rules of that premises (cl 2(6)). Home detention bail is also available for those over the age of 17 years (cl 3).

South Australia

In South Australia bail authority may impose one or more of the following conditions.

  • that the applicant agree:
    • to reside at a specified address;
    • to reside at a specified address and to remain at that place of residence while on bail, not leaving except for one of the following purposes—remunerated employment, necessary medical or dental treatment for the applicant, or averting or minimising a serious risk of death or injury, or any other purpose approved by a community corrections officer;
    • where there is a victim of the offence in respect of which the applicant has been charged—to comply with such conditions relating to the physical protection of the victim that the authority considers should apply to the applicant while on bail;
    • to report to the police at a specified place and at specified times;
    • to be under the supervision of a community corrections officer and to obey the lawful directions of the officer;
    • to surrender any passport that the applicant may possess; or
    • to comply with any other conditions as to the applicant’s conduct that the authority considers should apply while on bail;
  • that the applicant provide the bail authority with written assurances from a stipulated number of persons, who are acceptable to the bail authority, that they are acquainted with the applicant and are confident that the applicant will comply with the terms of the agreement;
  • that the applicant agree to forfeit to the Crown a sum of money if the applicant fails, without proper excuse, to comply with a term or condition of the of the bail agreement;
  • that the applicant or a guarantor provide security of a specified amount or value to secure payment of a monetary forfeiture agreed to; and
  • that the applicant obtain specified guarantees, or guarantees of a specified nature.

If the applicant is charged with a serious and organised crime offence, a grant of bail must be made with the following conditions:

  • to reside at a specified address and to remain there except for to receive medical treatment, to avert or minimise risk of death or injury, or any other reason approved by the Chief Executive Officer;
  • be fitted with a device to monitor compliance with the above condition;
  • that the applicant not communicate with any persons other than those specified in the regulations; and
  • that the applicant only possess and use communication devices (ie telephones and computers) that are specified.

In deciding on the conditions to be imposed in relation to a grant of bail, a bail authority should give special consideration to any submissions made by the Crown on behalf of a victim of the alleged offence.

A condition (other than a condition as to the conduct of the applicant while on bail) must not be imposed under this section unless the condition is, in the opinion of the bail authority, reasonably necessary to ensure that the applicant complies with the bail agreement.

A financial condition must not be imposed under this section unless the bail authority is of the opinion that the object of ensuring that the applicant complies with the bail agreement cannot be properly secured by a non-financial condition or combination of non-financial conditions.

Where a bail authority imposes a condition but the applicant remains in custody because the condition is not fulfilled, the applicant must (if he or she is not sooner released) be brought back before a bail authority for a review of the condition as soon as reasonably practicable and, in any event, within five working days after the condition is imposed (s 11 Bail Act 1995).

Northern Territory

One or more of the following conditions may be imposed on the grant of bail under this section:

  • that the accused person enter into an agreement to observe specified requirements as to his conduct while on bail, other than financial requirements;
  • that one or more acceptable person(s) acknowledge that they are acquainted with the accused person as a responsible person who is likely to comply with his bail conditions;
  • that the accused person or one or more acceptable person(s) enter into an agreement, without security, to forfeit a specified amount of money if the accused person fails to comply with his bail undertakings;
  • that the accused person or one or more acceptable person(s) enter into an agreement and deposit acceptable security, to forfeit a specified amount of money if the accused person fails to comply with his bail undertaking;
  • that the accused person or one or more acceptable person(s) deposit with an authorised member or a court a specified amount of money in cash and enter into an agreement to forfeit the amount deposited if the accused person fails to comply with his bail undertaking; and
  • where bail is granted by a court; and the offence is punishable by a term of imprisonment for two years or more, or, by payment of a maximum penalty of 85 penalty units, that the accused person surrender every passport, whether Australian or foreign, held by the accused person (s 27 Bail Act).

In addition, the following condition can be imposed within a ‘conduct agreement’. The legislation states that

a conduct agreement operates throughout the period for which the accused person is on bail. Contravention of a provision of a conduct agreement is to be regarded as a breach of a condition of bail. It may contain a combination of two or more of the following:
  • prohibit an accused from associating, or being in company, with one or more specified person;
  • require an accused person to keep away from one or more specified persons or from persons of a specified class;
  • prohibit an accused from communicating in any way with one or more specified persons, or with a person of a specified class;
  • prohibit an accused person from being within a particular locality or area;
  • prohibit an accused person from being outside a particular place;
  • require an accused to reside at a specified place;
  • require the accused person to report at specified intervals at a police station or other place;
  • prohibit an accused person from consuming alcoholic liquor or non-prescription drugs; and
  • prohibit an accused person from engaging in conduct of any other specified kind (s 27A).

Although the Northern Territory doesn’t have a separate section for the conditions that can be imposed on bail for young people, the legislation does outline that a device to monitor compliance with bail be fitted as a condition of a conduct agreement only for bail granted by courts other than the Youth Court (s 27A(ia)).

An authorised member or a court must, in granting bail, impose conditions that appear necessary to minimise risks to the safety or welfare of others, or to the proper administration of justice, that may result from releasing the accused person on bail. The conditions must be reasonably proportionate to the risks. In addition, a court may impose a condition that the accused person enters into a conduct agreement only if satisfied, after considering a report by the Director of Correctional Services, the accused person is a suitable person for the conditions (s 28).

Australian Capital Territory

The following conditions may be imposed on the grant of bail to a young person (Bail Act 1992 s 26):

  • conditions about the person’s conduct while released on bail;
  • a condition that the person, or an acceptable person(s)—pays to the Territory a stated amount if the person fails to appear in court in accordance with undertaking, or gives acceptable security for the payment to the Territory of a stated amount if the person fails to appear in court in accordance with his or her undertaking;
  • a condition that the person, or an acceptable person(s)—deposits a stated amount with a court or authorised officer and forfeits the amount if the person fails to appear in court in accordance with undertaking;
  • with the consent of a person who makes a deposit or gives security, it may be a condition of bail that the deposit or security continues to apply if bail is continued (it must not be a condition of bail that the person gives consent);
  • without limiting the above requirements, other conditions may include those related to the accused’s conduct, which may include:
    • a requirement that the accused person report periodically, or at specified times, at a stated place;
    • the accused reside at a stated place;
    • the person undergo psychiatric treatment or other medical treatment; or
    • the accused participate in a program of personal development, training or rehabilitation.
  • any other conditions that the court or authorised officer considers appropriate, having regard to the Youth Justice Principles as set out in the Children and Young People Act (2008) and considering, as a primary consideration, the best interests of the young person;
  • without limiting the above, the requirements that a young person may be required to comply with about their conduct while released on bail include the requirement that the young person: accept supervision by the director-general under the Children and Young People Act (2008); comply with any reasonable direction of the director-general;
  • court or authorised officer may not impose a condition unless they are of the opinion that it is in accordance with the Youth Justice Principles and is necessary to ensure:
    • the attendance of the person before a court from time to time as required in relation to the office;
    • the protection from harm of the accused person or any other person;
    • the prevention of the accused person from committing an offence while at liberty on bail; or
    • the prevention of the accused person from interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice.

For a person (the accused person) charged with a domestic violence offence, the following conditions may be imposed:

  • a requirement that the accused person not contact, harass, threaten or intimidate, or cause someone else to contact, harass, threaten or intimidate, a stated person; or
  • a requirement that the accused person not be on premises where a stated person lives or works; or
  • a requirement that the accused person not be on or near premises where a stated person is likely to be; or
  • a requirement that the accused person not be in a stated place; or
  • a requirement that the accused person not be within a stated distance of a stated person; or
  • if the accused person lives with someone—a requirement that the accused person not enter or remain at the home if the accused person is under the influence of alcohol or another drug.

If a court or an authorised officer grants bail to an accused young person and the accused young person is unable to comply with that condition, the court or authorised officer must either refuse bail or grant the accused young person bail subject to the other conditions that the court or authorised officer believes the accused will be able to comply with.

The only conditions relating specifically to young people are the reference to the Youth Justice Principles and accepting supervision of the director-general of the Children and Young People Act 2008.

Tasmania

When an accused person is released on bail by police, it is legislated that the accused person must comply with any conditions that are imposed, including conditions involving the conduct of the person (s 5 Bail Act 1994), which may include one or more of the following:

  • a condition requiring the person to report at a specified place at a specified time;
  • a condition limiting the person’s movements and social intercourse;
  • a condition of a family violence order; or
  • a restraint order (s 5(3A)).

For court bail, it is legislated that

an order for bail may be made subject to other conditions as the judicial officer thinks desirable in the interests of justice and any such other condition may be expressed or take effect either before or after the person admitted to bail is released from custody (s 7(4)).

An order for bail may be made on the condition that a person deposit a specified amount of money to be forfeited to the Crown if the person admitted to bail fails to appear before a court or fails to comply with a condition of the order of the bail; or suitable person(s) must enter into a recognisance to forfeit a specified amount of money if the person admitted to bail fails to appear before the court or fails to comply with a condition of the order for bail (s 7).

Under tabled amendments to the Youth Justice Act 1997, greater guidance on imposing bail conditions on young people will be provided, specifically under the proposed s 24B ‘Conditions of bail’.

Table 14 Whether young people have separate or additional bail conditions compared with adults and legislated reasons for imposing bail conditions, by jurisdiction
Separate section for bail conditions for young offenders Legislative reasons for imposing bail conditions
NSW No Promoting effective law enforcement; or the protection and welfare of any specially affected person; or the protection and welfare of the community, or reducing the likelihood of future offences being committed by promoting the treatment or rehabilitation of an accused persona
Vic No To reduce the likelihood of failure to attend court and surrender into custody at time and place of trial or hearing, commit an offence while or bail, or endanger the safety or welfare of members of the public, or interfere with witnesses or otherwise distort the course of justiceb
Qld Yes Ensuring the child will surrender into custody in accordance with the bail or the conditions of the release, whichever is relevant and while on release, the child will not commit an offence or endanger anyone’s safety or welfare, or interfere with a witness or otherwise obstruct the course of justice, whether for the child or anyone elsec
WA Yes To ensure that the accused appears at court in accordance with bail undertaking; does not commit an offence, does not endanger the welfare, safety or property of any persons, does not interfere with witnesses or otherwise obstruct the course of justice, does not prejudice the proper conduct of a triald
SA No Ensure the applicant complies with their bail agreemente
NT No To minimise risks to the safety or welfare of other, or to the proper administration of justice, that may result from releasing the accused person on bailf
ACT Yes To ensure: the attendance of the person before a court as required, the protection from harm of the accused person or any other person, the prevention of the accused from committing an offence, the prevention of the accused from interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice, is in accordance with the Youth Justice Principlesg
Tas Noi The interests of justiceh

a: s 37 Bail Act 1978 (NSW)

b: s 5 Bail Act 1977 (Vic)

c: s 52 Youth Justice Act (Qld) 1992

d: Sch 1 Pt D cl (1a) Bail Act 1982 (WA)

e: s 11 Bail Act 1985 (SA)

f: s 28 Bail Act (NT)

g: s 26 Bail Act 1992 (ACT)

h: s 7 Bail Act 1994 (Tas)

i: Provisions for granting bail conditions to young people will be outlined under tabled amendments of the Youth Justice Act 1997