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Discussion, conclusions and recommendations

The custodial remand of young people has recently been raised as a critical issue in the youth justice sphere in Australia. In this context, this preliminary study sought to identify trends in the use of custodial remand for young people in Australia, explore the factors that influence the use of custodial remand for young people, document differences among the legislation, policy and practice frameworks that underpin custodial remand for young people across Australia and to make recommendations, where appropriate, about limiting the inappropriate use of custodial remand for young people.

Although concerns about the increased use of custodial remand for young people are to some extent unfounded, analysis of quantitative data undertaken for this project and the existing research literature indicates recent increases in the use of custodial remand for young people in some jurisdictions. Further, analyses indicate that the use of custodial remand for young people is much higher in some jurisdictions than others, with the Northern Territory in particular having a consistently higher rate of young people on custodial remand than the national average.

Irrespective of increases or decreases, the large number of young people on custodial remand and the significant proportion they comprise of the youth detention population in Australia remains a concern. Due to Australia’s obligations under the United Nations’ (1989) Convention of the Rights of the Child and other international instruments that stipulate that detention be used as a last resort for young people (see Appendix 1) and the impacts of remand on both young people and the broader community, avoiding the unnecessary use of remand for young people should remain a priority for each of Australia’s jurisdictions.

The remainder of this report highlights the key findings of this study and makes recommendations about minimising the unnecessary use of custodial remand for young people based on these findings.

Key issues and ways forward

As this report highlights, rates of young people on custodial remand are influenced by numerous and diverse factors, from the ‘macro’ (eg shifts in understanding about the purpose of bail) to the ‘micro’ (eg specific legislative provisions in any given jurisdiction). It is clear that the drivers of custodial remand are not uniform across jurisdictions and that a variety of factors unique to a jurisdiction (eg demographic makeup, geographical features, legislation) can influence levels of young people on remand. To the extent possible in an exploratory research project, these have been discussed in the section on drivers of custodial remand above. Strategies to minimise the unnecessary use of custodial remand for young people will therefore, in many cases, be specific to individual jurisdictions and it is beyond the scope of this preliminary study to make recommendations on the situation in individual jurisdictions.

Nonetheless, some broad strategies and key issues that may be relevant to all jurisdictions emerged from the research and these are discussed below.

Looking beyond legislation

Research has indicated that in some instances, changes to legislation can influence rates of young people on custodial remand. Vignaendra et al. (2009), for example, found that changes to NSW Bail Act, which limited the number of applications that accused persons can make, had an impact on the length of time young people spend on custodial remand. Indeed, they argued that the impact following this legislative change was so profound that ‘it would be superfluous to test its statistical significance’ (Vignaendra et al. 2009: 3).

By contrast, in some instances, it is clear that legislative changes have not had the intended effect(s). For example, while a change to Victoria’s Bail Act that limited the period a young person could spend on custodial remand to 21 days may be laudable, it appears to have had little practical effect. Stakeholders interviewed for this study commented that young people can be held on consecutive 21 day periods of custodial remand. Similarly, while a recent legislative change in Queensland means that young people cannot be placed on custodial remand for their own safety unless it is directly related to the charge(s) against them, stakeholders claimed that this has had little practical effect, as Magistrates have simply shifted the justification for remanding young people in custody from protecting them to preventing them from offending while on bail.

In the main, stakeholders supported separate legislative provisions for bail decisions concerning young people. One of the key reasons for this view was that having standalone provisions for young people protects them from ‘knee jerk’ amendments to legislation that are primarily a response to offending by adults. Numerous examples were given to support this view in addition to the changes to NSW Bail Act as discussed above. For example, changes to the NT’s legislation that preclude diversionary responses for some motor vehicle offences were raised. Further, in jurisdictions that do not have separate bail provisions, young people may also have been inadvertently affected by changes to legislation that governs responses to charges of domestic violence.

Stakeholders also perceived standalone provisions for young people as highlighting the differences between young people and adults and providing guidance to Magistrates, particularly those who are not specialists, in youth matters. This is important given the principle that detention should be used as a last resort for young people. While this is reflected in all jurisdictions’ youth justice legislation, it is absent in bail legislation that applies to both adults and young people.

It is, however, important to consider the potential disadvantages of having separate and specific legislative provisions governing bail decisions for young people. As discussed earlier, existing legislation for young people often focuses on ‘protecting’ young people by allowing welfare issues to be taken into account and/or allowing young people to be remanded in custody to ‘protect’ them from life in the community. Although the influence of such provisions is not known and as argued below may be limited, a recommendation of this report is that consideration be given to the issue of separate legislation governing bail decisions for young people and whether current legislation is appropriate, fair and having the intended effect.

This research suggests, therefore, that in general terms, the influence of legislation on rates of custodial remand is limited. A direct relationship between ‘better’ legislation that considers young people separately from adults and lower rates of remand is not reflected in current rates of young people on remand (see Figure 4). Further, as discussed in detail in this report, a multitude of direct and indirect factors—from broad shifts in understandings about the purpose of bail to the attitude of individual bail decision makers—can influence rates of custodial remand. As Mazerolle and Sanderson’s (2008) research demonstrates, custodial remand practices can even vary within jurisdictions. In their study, bail decisions in particular locations (predominantly rural and remote locations) were more likely to result in custodial remand, even after the accused’s age, gender, Indigenous status, current and past offence characteristics, remand history, and child protection history were controlled for.

Therefore, while legislation is obviously an important contributor to levels of remand, it needs to be understood as part of the complex interplay of ‘macro’ and ‘micro’ influences. It is therefore recommended that while changes to legislation may form an important component of any reform agenda relating to minimising levels of young people on custodial remand, consideration needs to be given to strategies well beyond legislation—including better service provision, crime prevention measures, changes to policing policy and practice, and training of relevant professionals, as discussed below.

Re-engagement with the purpose(s) of bail

A renewed consideration of the objectives that bail is designed to meet is critical prior to legislative or other changes taking place. Mather’s (2008) research found that the traditional purpose of bail—that is, to ensure the accused person appears before the court and to protect the community (Edney 2007; Henson 2011; Vic LRC 2007)—has broadened to include a focus on therapeutic jurisprudence (see also Edney 2007). The current study similarly found that this is sometimes the case and that young people are especially vulnerable to the lens of therapeutic jurisprudence, given their perceived capacity to desist from offending.

It was also found that, albeit in a small number of instances, custodial remand has been used as a strategy to minimise young people’s potential to commit new offences and therefore build an extensive criminal record (see discussion below). This again shows that custodial remand can be used for purposes far removed from its traditional aims.

Further, it was apparent that there was a lack of consensus among bail decision makers. In particular, stakeholders felt that Magistrates have different views about what bail can be expected to achieve from police and Bail Justices.

It is therefore recommended that renewed discussion and debate about the objectives of bail (especially for young people) is needed. In addition to broad political, academic and community discussion, training for a range of relevant professionals on the objectives of bail is also required, particularly for bail decision makers. A related recommendation is to give consideration to requiring bail decision makers to document and provide a rationale for bail conditions imposed on young people.

Young people with complex needs and welfare issues are most vulnerable to receiving custodial remand

It is clear that a small proportion of young people come into contact with the youth justice system repeatedly, offend persistently and/or seriously, and are repeatedly placed on custodial remand. According to AIHW (2012a) figures, 13 percent of young people who completed a remand period during 2010–11 completed four or more remand periods. This finding is consistent with a substantial body of research that shows that a small ‘core’ group of young people is responsible for a disproportionate amount of crime (Hua, Baker & Poynton 2006; Livingstone et al. 2008; Marshall 2006; Morgan & Gardner 1992; Skrzypiec 2005).

Stakeholders interviewed for this study were virtually unanimous that they have observed an increase in the seriousness of offending by young people, with a number noting, for example, an increase in sexual offending by young people. As outlined earlier in this report, the limited available data on trends in offending by young people support the observation that serious offending by young people may have increased in recent years.

It is also clear that this ‘core’ cohort of young people has extensive and extremely complex needs, including substance abuse problems, physical and mental health problems, Foetal Alcohol Spectrum Disorder, disengagement from education, complex family issues and/or cognitive dysfunction. This finding is also consistent with a body of existing research that demonstrates that young people in contact with the criminal justice system—especially those entrenched in the most serious end of the system—are far more likely to have a constellation of these complex problems than other young people (eg see Frize, Kenny & Lennings 2008; HREOC 2005; Indig et al. 2011; Snow & Powell 2008, 2002). These factors render young people vulnerable to custodial remand due their need for specific services in the community and the fact that legislation and a lack of community-based services can contribute to young people being remanded ‘for their own good’ and/or to ‘protect the community’.

Young people with multiple, complex needs are excluded from relevant services

Young people with complex needs require specific services in the community. While a small proportion of young people with highly complex needs repeatedly cycle through the youth justice system and are a primary concern for bail decision makers, it is precisely this group of young people that is most frequently excluded from services and programs that might address their criminogenic and other needs. Stakeholders interviewed for this research repeatedly raised concerns that mainstream services that should assist young people to remain in the community on bail often exclude particular groups of young people with complex histories and needs—such as those who are very young, those with histories of violence and/or those who are ‘clients’ of statutory child protection agencies.

It should be noted in this context that Indigenous young people often come into contact with the criminal justice system at an earlier age and therefore develop more extensive criminal histories than their non-Indigenous counterparts. It is therefore likely that the exclusion of young people with the most complex needs from services impacts more profoundly on Indigenous young people. As described earlier in this report, even dedicated bail support programs sometimes work primarily with young people who might be thought of as ‘low-hanging fruit’ in the youth justice system, rather than with young people with complex needs who are most in need of bail support services.

Further, while strategies to monitor this core group of young people (eg through targeted policing of recidivist offenders) have been employed within many jurisdictions, adequate services have not been implemented to address their criminogenic needs. Mulroney (2012) notes, for example, that there are inadequate drug and alcohol rehabilitation and alternative education services for young people in New South Wales. There are also very few secure mental health facilities for young people in Australia; for example, Queensland’s only secure facility for young people with severe mental health problems has recently been ordered to close (Moore 2012). This lack of service provision is often more profound for young people from non-metropolitan areas; as such, young people from regional, remote and rural locations, and by extension, Indigenous young people, may be more affected by the limited range of appropriate services. Given this context, it is unsurprising that this cohort of young people repeatedly comes into contact with the youth justice system, including spending repeated periods on custodial remand. Therefore, a lack of access to community-based services not only increases the likelihood of receiving custodial remand in order to receive formal support (as described below) but may also contribute to their propensity to repeatedly reoffend.

Young people are sometimes placed on custodial remand ‘for their own good’

Another key finding of this research is that in some instances, young people are remanded ‘for their own good’, reflecting the use of bail and custodial remand to resolve a young person’s welfare needs. Young people with complex needs are therefore a primary target of this use of bail and custodial remand. This occurs in a variety of ways. First, as described earlier in this report, legislation in some jurisdictions enables young people to be placed on custodial remand to ‘protect’ them from the outside world. This is not, however, the case for adults. Under the relevant legislation, adult accused persons are instead to be protected from the impacts of spending time on custodial remand.

Second, it appears that young people are sometimes remanded because services and programs exist for young people in custody that are not available in the community. Stakeholders noted, for example, that young people would be more likely to receive appropriate mental health assessments, or better-supported schooling, in custody than in the community. In this way, custodial remand acts as a pathway to adequate services for young people with complex histories and needs. This again highlights the lack of appropriate services—including alcohol and other drug services, physical and mental health services, child protection and out-of-home care services—available to young people in the community and the important role that these services could play in minimising the unnecessary use of remand for young people.

Finally, stakeholders in one jurisdiction stated that in some instances, young people are placed on custodial remand to prevent them offending and/or breaching bail—in other words, to limit young people’s criminal histories, ‘for their own good’ and at times as a protection for the wider community. Custodial remand is used in this context to incapacitate young people and ensure they don’t offend or breach bail conditions, thereby minimising their future likelihood of being detained—either on remand or on an order of sentenced detention. Although the motivation for such decisions may be laudable, their rationale appears somewhat flawed, as young people are detained on remand to reduce the likelihood of being detained for future offences. Further, to remand young people for this reason is at odds with the purpose of custodial remand; while remanding a young person to protect the community from a young person likely to offend if granted bail meets the objectives of custodial remand, remanding a young person to protect him/herself from the consequences of future offending or bail breaches is clearly not.

Although it is problematic that young people should be remanded in custody ‘for their own good’, it is undoubtedly sometimes the case that custodial remand is indeed the best option for a young person’s welfare, particularly given the limited availability of services in the community for young people with complex needs. For example, the significant lack of services in the community for young people with profound mental health problems may result in custodial remand being the most appropriate outcome available to bail decision makers.

Young people in out-of-home care are—increased risk

Generally, young people who have histories of maltreatment and/or who come into contact with child protection agencies are overrepresented in the youth justice system (see eg Cashmore 2011; Stewart et al. 2002). This is particularly the case for young people in out-of-home care (see eg McFarlane 2010; Mendes, Snow & Baidawi 2012). It should be noted in this context that Indigenous young people are overrepresented in out-of-home care and as such, are likely to be made increasingly vulnerable to remand than non-Indigenous young people.

Two discrete scenarios were described by stakeholders in relation to these young people. The first involved young people under the care of statutory child protection agencies frequently being unable to obtain bail as they ‘slipped through the cracks’ of ‘the system’, with neither youth justice nor child protection agencies supporting the young person to remain in the community on bail (see also Mendes, Snow & Baidawi 2012). Stakeholders explained that young people in care facing bail decisions are often reliant on child protection agencies to provide accommodation. When they are unable to do so, bail will often not be granted and young people are consequently placed in custodial remand until accommodation can be arranged. As explained earlier in the report, accommodation is lacking for young people facing bail generally, but for those under care, particularly those with complex needs, the challenges are exacerbated. In New South Wales, numerous stakeholders held the view that young people who offend are often put into the ‘too hard basket’ by child protection staff, resulting in them being placed on custodial remand.

Further, stakeholders interviewed for this research commented that young people under the care of child protection agencies are often excluded from bail accommodation services, as it is assumed that child protection agencies should be providing services to these young people. It is noteworthy that neither WA’s Metropolitan Youth Bail Service not Tasmania’s Save the Children bail support program works with young people under the care of child protection agencies.

In the second scenario, young people in out-of-home care were frequently placed on custodial remand as a result of coming under a high level of scrutiny in out-of-home care facilities. These young people often amass criminal charges, convictions and/or breaches of bail much more readily than young people who live with family members. As one stakeholder put it, ‘young people in their family environment are disciplined by their parents, whereas young people in a care setting are disciplined by the criminal justice system’. Some stakeholders explained that it was common to see young people in out-of-home care with criminal histories that were exclusively comprised of ‘offences’ perpetrated in group residences. Often, these ‘offences’ are technical breaches of bail, such as the young person disobeying the rules of the residence. For example, one stakeholder revealed that in one case, a young woman in out-of-home care was arrested for breaching house rules when she threw some lasagne. The young woman was arrested and due to her out-of-home care placement closing, was unable to be granted bail due to a lack of suitable accommodation. Stakeholders described these situations as the criminalisation of the antisocial or ‘acting out’ behaviours of young people in out-of-home care.

Numerous stakeholders explained that this increased scrutiny is caused primarily by a heavy reliance on the police to solve disputes that occur in out-of-home care residences. The decision to call police is often part of the residences’ policy in ensuring that the safety of staff is not compromised and that ccupational health and safety requirements are met. The safety and wellbeing of other young people at out-of-home care residences is of course also critical.

The reliance on police could also be attributed to the limited capability of the staff at these out-of-home care residences. Stakeholders in a number of jurisdictions commented that staff members are typically young and inexperienced and that the police are therefore often relied on to resolve disputes that may have been resolved by more experienced staff.

Further, in some jurisdictions, the charge of assaulting a public officer (residence staff are deemed public officers) is exempt from diversionary measures. As one stakeholder argued, staff members in out-of-home care are entitled to be safe in their workplaces; however, when police do not have recourse to diversionary measures and have no option but to charge the young person, this impacts the young person’s future and makes young people in out-of-home care particularly vulnerable to custodial remand.

The factors described above contribute to an environment that perpetuates a cycle of bail breaches and custodial remand for young people in out-of-home care. This results in a ‘vicious cycle’ whereby these young people frequently breach bail and come before the court for further bail decisions. As breaches of bail are often considered to demonstrate young people’s risk of offending while on bail, this history of breached bail orders make these young people very vulnerable to custodial remand. Stakeholders interviewed for this research emphasised the vulnerabilities inherent among this group of young people and recommended a review of how behaviour is managed within the out-of-home care sector, as well as an increase in the available bail support and diversionary mechanisms for these young people.

Histories of serious and/or violent offending

It should be recognised that in addition to the response of the child protection and youth justice systems to young people in out-of-home care, discussed above, a proportion of these young people have been severely maltreated as children and/or have come from highly dysfunctional families (Mendes, Snow & Baidawi 2012). As these experiences can have criminogenic effects on young people (Stewart et al. 2002), it is likely that some young people in out-of-home care have a profile of serious, violent offending (see QCCYPCG 2012). Offending histories of this nature also make young people in out-of-home care particularly vulnerable to being placed on custodial remand.

Effective implementation and evaluation of bail support services for young people

Targeted bail support programs (outside of statutory bail supervision) are limited in Australia and are not available to all young people who require these services to avoid being unnecessarily placed on custodial remand. In particular, either as a result of formal policy or informal practice, groups of young people such as young people from regional rural and remote areas, young people in the care of statutory child protection agencies (and by extension, Indigenous young people) and other young people with highly complex needs, are excluded from adequate bail support. In essence, it appears that those young people who are most in need of bail support are least likely to obtain it. Further, some bail support programs for young people have unclear aims and objectives, and/or are not specifically targeted towards assisting young people to remain in the community on bail.

A key recommendation is therefore that bail support services and programs consider the international evidence about what works to achieve the best outcomes for young people on bail. A related recommendation is that agencies responsible for bail support services and programs develop a ‘program logic’ (ANAO 1996; Hurworth 2008) to clarify and articulate their purpose and objectives, and to ensure they are based on the existing evidence. Further, bail support programs for young people should be rigorously evaluated and an evidence base developed about bail support efficacy for young people in Australia.

More broadly, mainstream service provision across a range of sectors related to preventing young people’s offending, including health, mental health, accommodation, family and welfare services, are limited for young people, particularly those from non-metropolitan areas and/or those with very complex needs. As custodial remand is sometimes a pathway to services for young people and as remand is sometimes the best option for young people due to a lack of appropriate services in the community, strengthening community service provision is a vital component of reducing the rate of young people on custodial remand. Improved collaboration among agencies, particularly child protection and youth justice agencies is also critical, given that young people with multiple needs often fall between the cracks of these systems.

Early intervention and prevention of offending by young people

It follows that preventing young people’s contact with the criminal justice system by preventing offending in the first instance is vital if the use of custodial remand is to be limited. The importance of preventing youth offending and intervening early in young people’s offending trajectories has been iterated at length in the literature; it nonetheless bears repeating here. As described above, it can be difficult for young people—especially young people in out-of-home care and/or with complex needs—to become extricated from the criminal justice system once they are caught up in it. Therefore, preventing young people’s initial contact with the criminal justice system will contribute towards reducing rates of young people on custodial remand.

As Weatherburn, Fitzgerald and Hua (2003) have argued in relation to Indigenous young people, while measures employed by the criminal justice system (eg diversionary measures) have been implemented to reduce young people’s likelihood of becoming entrenched in the system, reducing offending and reoffending are also critical strategies that should be implemented to meet this objective. This is also the case in relation to non-Indigenous young people.

Numerous research studies have been undertaken to assess the effectiveness of policies and programs to prevent and reduce offending by young people (see Delfabbro & Day 2003; Freiberg & Homel 2011; Homel et al. 2006; Prior & Paris 2005; Sallybanks 2003; see Richards, Rosevear & Gilbert 2011 on Indigenous young people specifically). Implementing policies and programs based on this evidence to reduce young people’s offending is a vital strategy for governments to implement in order to avoid detaining young people on remand in the long term.

‘Mesh-thinning’—reduced opportunities to exit the criminal justice system

Youth justice policies and programs are often criticised for having a ‘net-widening’ effect; in other words, they ‘widen the net’ of control over young people by inadvertently bringing more young people under the regulation and control of the criminal justice system (see Austin & Krisberg cited in Roberts & Indermaur 2006). Little is said, however, about net-widening’s twin concept—‘mesh-thinning’ or ‘net-strengthening’, which describes intensifying offenders’ involvement in the criminal justice system (see Roberts & Indermaur 2006 for a discussion). This research clearly shows that a process of ‘mesh-thinning’ occurs for some young people for whom bail decisions are made—especially very vulnerable groups of young people such as those in out-of-home care. For some young people, a process of mesh-thinning occurs whereby once ‘caught up’ in the youth justice system, young people’s opportunities to exit the system diminish.

One way this occurs is via the imposition of numerous, onerous and unrealistic bail conditions on young people. As described earlier, both the existing research literature and stakeholder interviews undertaken for this project suggest that the number and nature of bail conditions imposed on young people can set young people up to fail. As bail breaches are a key driver of remand rates of young people, a recommendation of this report is that strategies be implemented that minimise young people’s opportunities to breach bail. Appropriate bail support programs, including a focus on assisting young people to understand, remember and adhere to bail conditions, are key to addressing this aim.

The criminalisation of non-criminal behaviours is another way in which young people experience mesh-thinning, or become caught up in the criminal justice system with few opportunities to exit the system. As documented in this report and the existing research literature, in some jurisdictions bail breaches are dealt with as criminal offences even when the behaviour itself (eg truanting, disobeying parents) is not criminal. Even in jurisdictions in which breaching bail conditions is not a criminal offence, a breach of bail can result in the arrest of a young person and therefore in an opportunity for a Magistrate to reconsider whether a young person should be granted bail or held on custodial remand.

A related issue is the use of arrest as a response to breaches of bail, including technical breaches, by young people. As an arrest provides an opportunity for the court to reconsider a young person’s bail, the use of arrest rather than a diversionary measure such as a caution may entrench young people in the criminal justice system. It is recommended that consideration be given to ways in which the use of arrest might be limited, particularly for technical breaches of bail. Specifically, it is contended that a distinction could be made between technical and criminal breaches of bail by young people, with technical breaches of bail not being responded to via criminal justice measures such as arrest. New offences allegedly committed while on bail, however, could be dealt with as offences would ordinarily be dealt with (ie under the jurisdiction’s youth justice legislation) rather than by way of an automatic arrest.

Young people also face diminished opportunities to exit the criminal justice system as a result of intense scrutiny while on bail. In some jurisdictions, police have adopted strategies that monitor young people on bail intensively. Coupled with the numerous and onerous bail conditions imposed on some young people, these strategies may work to entrench young people—particularly those deemed ‘recidivists’—in the criminal justice system. This situation was described by one stakeholder as ‘all stick and no carrot’ for young people on bail. Young people in out-of-home care also face high levels of scrutiny while on bail, minimising these young people’s opportunities to exit the criminal justice system.

Consideration of young people’s criminal history at the point of a bail decision may also ‘thin the mesh’ and limit young people’s ability to leave the criminal justice system. As argued in this report, while a young person’s criminal history is not usually admissible evidence at trial, it frequently informs bail decisions. It is recommended that consideration be given to the appropriateness of this approach. It is further recommended that bail decision makers take both risk and potential harm into account when making bail decisions. While a young person may be at high risk of offending while on bail, the potential harm likely to result may be minimal.

Finally, the limited bail support available to young people in Australia may also entrench young people in the criminal justice system and prevent them from exiting the system. It is noteworthy that even initiatives designed to support young people on bail can potentially inadvertently enmesh young people further into the criminal justice system. For example, Tasmania’s Bail Support Program reports young people’s lack of engagement with the program to the court for consideration during sentencing, even though program participation is voluntary for young people.

Recommendations

The recommendations arising from this report are summarised below to assist in minimising the inappropriate use of custodial remand for young people (see Table 18). The recommendations include measures indirectly associated with bail and remand processes (eg early intervention and out-of-home care behaviour management strategies) and measures directly associated with bail and remand processes (eg responses to bail breaches, evaluating bail support programs). These recommendations are broad and may not be relevant for all jurisdictions. They reflect the general issues and drivers evident from the literature and described by stakeholders.

Conclusion

In line with Australia’s international obligations, as well as domestic legislation in each jurisdiction, it is important that detention, including custodial remand, is used as a last resort for young people. A wide range of current influences on rates of custodial remand of young people across Australia’s jurisdictions have been identified and described. Given the numerous factors that impact these rates, if the unnecessary custodial remand of young people is to be minimised, a multifaceted approach will be required. This research highlights in particular the need for renewed debate about the purpose(s) of bail, the importance of early intervention measures, and the implementation and evaluation of appropriately targeted bail support services for young people, particularly those with multiple, complex needs.

Table 18 Indirect and direct measures for consideration to minimise the custodial remand of young people
Indirect measures
Measures for consideration Objectives
Diversion and early intervention

Support the implementation of evidence-based prevention, early intervention and diversionary programs and policies to prevent young people’s offending and initial contact with the criminal justice system

Ensure that there are adequate diversionary measures for young people with complex needs (including recidivists and child protection clients)

Support the implementation of policies, programs and practices that prevent the maltreatment and victimisation of young people

Minimise young people’s initial contact with the criminal justice system

Minimise young people’s antisocial and criminal behaviour

Out-of-home care facilities

Review behaviour management strategies of young people in out-of-home care facilities

Provide better support for out-of-home care service providers—eg enhanced training for staff on how to deal with young people with very challenging behaviours

Minimise this group of young people’s initial contact with the criminal justice system

Minimise bail breaches for young people on bail in these facilities by reducing police intervention for behaviour management issues

Inter-agency collaboration

Better collaboration between youth justice and child protection agencies is needed—a case management or ‘wraparound’ service could be considered

Provide supported alternatives to custodial remand

Prevent young people’s needs remaining unidentified and/or unaddressed by both systems

Minimise the refusal of bail by ensuring bail decision makers are better informed about young people’s circumstances

Indirect measures
Measures for consideration Objectives
Access to mainstream community support

Increase and ensure access for young people generally to age-appropriate accommodation, secure mental health, alcohol and other drug rehabilitation residential facilities

Limit the exclusion of young people living in rural and regional areas from such supports

Minimise young people’s antisocial and criminal behaviour

Minimise the refusal of bail for young people for welfare reasons by increasing bail decision makers’ alternatives to custodial remand

Access to court and legal support

Increase and ensure access for young people in the criminal justice system to:

  • Timely and appropriate legal representation
  • In-court youth justice support
  • Limit the exclusion of young people living in rural and regional areas from such supports

Minimise the refusal of bail by supporting young people during bail decisions

Direct measures
Measures for consideration Objectives

For bail programs (other than statutory bail supervision)

  • Access to bail support in regional areas and by young people with complex needs should be reviewed
  • Programs must be sufficiently resourced and supported to provide services for young people with complex needs, including histories of violence
  • Bail programs must be evaluated and their effectiveness monitored, particularly regarding their success in meeting the accommodation and supervisory needs of young people on bail
  • Ensure referrals to a range of bail support and supervisory options are available to all bail decision makers, not just the courts.
  • Implement and evaluate programs that aim to support young people and the bail decision maker during bail hearings made after business hours

Minimise the refusal of bail for young people for welfare reasons by providing bail decision makers with alternatives to custodial remand

Minimise bail breaches by providing young people on bail with appropriate support

Minimise the refusal of bail by better informing bail decision makers on the local options for bail support and alternatives to custodial remand

Minimise the overnight custodial remand of young people by supporting the relevant authority in their bail decision made after-hours

Defining the purpose of bail

Further dialogue and discussion on the purposes of bail for young people (and how it may or may not differ from adults) and how bail conditions can achieve this purpose is required

Fund research to better identify the impact of a period of detention on a young person‘s subsequent offending behaviour

Bail decision makers should be trained in line with the purposes of bail for young people and the role of bail conditions

Make sure the purpose and response to bail for young people is compliant with the international normative frameworks for the treatment of young people (ie Convention on the Rights of the Child)

Create key performance indicators for bail decision makers and bail support systems (including statutory bail supervision and bail programs) in line with the purposes of bail for young people

Ensure the consistent application of bail decisions and the bail conditions within jurisdictions

Inform bail decision makers’ understanding of the impact of remand on subsequent offending—enhance understanding of the cost/benefits of using custodial remand as a last resort.

Create clear and consistent parameters for stakeholders involved in the bail process for young people to work within

Enable the measurement of effectiveness for stakeholders working with young people on bail or facing bail decisions

Direct measures
Measures for consideration Objectives
Responding to bail breaches

Enhance diversionary mechanisms for young people who breach bail

Reduce use of arrest in relation to technical bail breaches

Decriminalise technical breaches of bail

Divert young people from further bail decisions

Minimise bail refusal for technical breaches of bail

Issues for bail decision makers

Reconsider the use of criminal history to determine the granting of bail and to consider the ‘potential harm’ as well as the ‘risk’ of a young person offending while on bail

Assess the impact of domestic and family violence legislation in some jurisdictions and the impact of a presumption against bail on young people

Review bail orders and update if necessary at each court appearance (including first court appearance rather than the continuance of a police bail order)

Enhance bail decision makers’ understanding of the ways in which certain bail conditions impact on young people differently from adults

Ensure that a young person understands their bail conditions and the consequences of breaching them

Divert young people at risk of further offending but of little harm to the community from custodial remand

Minimise bail breaches by ensuring bail decision makers are consistent and accountable for their bail decisions and do not apply overly onerous bail conditions

Minimise bail breaches by ensuring that the conditions reflect a young person’s changing circumstances

Minimise bail breaches by ensuring that a young person understands their bail conditions

Recording bail decisions

Create better record keeping systems for bail orders and associated conditions

Minimise unnecessary bail refusal and the implementation of overly onerous or contradictory conditions by ensuring bail decision makers are fully informed of a young person’s situation, current orders and conditions

Supporting the role of family in bail processes

Provide greater support for family to attend court bail hearings and to make sure they understand the process, the consequences of custodial remand and if relevant, the young person’s bail conditions and the consequences of breaching them

Minimise the refusal of bail by the courts, particularly in jurisdictions where a ‘responsible person’ and/or family member is required to attend court for bail to be granted to a young person

Minimise young persons breaching bail by ensuring that key family members support the granting of bail and the young person’s adherence to its conditions