Report 104 (2005) - Young Offenders - Law Reform Commission : Lawlink NSW

10.1 Bail is a crucial point of the criminal justice process for young people¹ at which policing, care issues, and court procedures intersect. The special problems facing young people with respect to bail tend towards undermining the policies upon which juvenile justice in New South Wales is based, and have the potential to impact seriously upon sentencing of young offenders. In addition, bail refusal, or the imposition of harsh bail conditions, may have a particularly punitive effect on young people.

10.2 This chapter examines the law of bail as originally set out in the Bail Act 1978 (NSW) (“Bail Act”) and changes wrought by subsequent amending legislation. It then examines how procedural and practical issues, such as the granting of conditional bail, breach of bail, and bail accommodation, impact upon young people.

10.3 Bail law and procedure is relevant to the sentencing of young offenders in a number of ways. First, the process of bail assessment forms a part of the gatekeeping role to the juvenile justice system that police and judicial officers perform. The outcome of a bail determination may have a significant impact on whether a young person progresses further into the system or is successfully diverted from it.

10.4 Secondly, the outcome of a bail determination may ultimately have a bearing on the content and severity of a young offender’s sentence. The Judicial Commission has found that there is some evidence that people who are refused bail, and held in custody, may be disadvantaged when the matter proceeds to trial:

10.6 Particularly in circumstances where the young person is charged with a minor offence, a young person’s experience of being held on remand, or subject to harsh bail conditions, may effectively be the main component of “punishment”. This is fundamentally contrary to the purpose of bail, which is simply to ensure a young person’s appearance in court, and to protect the community from further offending. The Australian Law Reform Commission (“ALRC”) has described how being held on remand can be a sanction in itself:

10.8 In New South Wales, the Bail Act forms a “comprehensive code for both judicial officers and police to assess persons applying for bail”.⁶ Currently, the Bail Act is generally applicable to anyone charged with an offence, regardless of whether they are an adult or a child.⁷ The sole section which provides some mitigation for this general application is s 32(1)(b)(v), which requires that, in making a bail determination, a court must take into consideration any “special needs” which may arise from the fact that a person is under the age of 18.

10.9 Under the Bail Act, bail is defined as the authorisation to be at liberty under the Act instead of in custody, subsequent to being charged with a criminal offence.⁸ A person who is released on bail must agree to attend court on a specified day to answer the charge. The right to be released on bail while awaiting trial is closely linked to the presumption of innocence that underpins criminal law. However, this right must be balanced against the need to protect the community against the possibility of the accused offending while on bail, and to ensure the accused appears in court.⁹

10.10 The initial bail determination is made by police.¹⁰ Pursuant to s 9 of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”), if police refuse bail, a young person must be brought before a court as soon as practicable, and no later than the following day (or no later than the next day that is not a Saturday, Sunday or public holiday). The court then reconsiders the application for bail, having regard to the provisions of the Bail Act.

10.11 Of fundamental importance to the bail process is the decision of police to proceed against a young person by way of arrest. Where a young person is alleged to have committed an offence, police can proceed by way of the diversionary options of the Young Offenders Act 1997 (NSW) (“YOA”),¹¹ or can charge the young person (proceed against the young person to court). Charging an offender may or may not involve arrest. It is where criminal proceedings are commenced by charge and arrest that the question of bail arises.

10.12 Section 8 of the CCPA requires that the arrest procedure be used sparingly. “Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice.”¹² This requirement does not apply if:

10.14 In recent years, there has been a decrease in commencing proceedings by charge and arrest and an increase in commencing proceedings by CAN. In 1995, 52% of proceedings (against all offenders) in the Local Court were initiated by charge and arrest, whereas by 2000 this had decreased to 36%.¹⁶ In 2001, of all matters (excluding driving offences) where police proceeded against “juvenile persons of interest” (including proceeded against other than to court), 29% were by way of charge and arrest.¹⁷ This percentage decreased gradually over the next three years until, in 2004, it was 22%.¹⁸

10.15 The Legal Aid Commission, Shopfront and the Director of Public Prosecutions (“DPP”) have submitted that police sometimes arrest and charge when it would be more appropriate to commence proceedings by CAN.¹⁹ The Law Society of New South Wales submitted that “practitioners suggest that police often charge a young person so that bail conditions (such as a curfew) can be imposed”.²⁰ The DPP argued that while the inappropriate use of arrest is a problem in the criminal justice system generally, the unnecessary time in custody after arrest is particularly inappropriate for young offenders.²¹

10.16 The submission of the Children’s Court recommended commencing proceedings by way of summons (now CAN) because it has the advantage of providing a “cooling-off” period in the wake of the alleged offence, and increases the available investigation time.²² It was also submitted that police might be more inclined to commence proceedings by way of a CAN if the process were simplified,²³ and made compatible with the use of the Computerised Operational Policing System.²⁴ Without making a specific recommendation in relation to this suggestion, the Commission supports its adoption.

10.17 After carefully considering these submissions, the Commission is not convinced that any amendment to the legislation is required. In our view, both the drafting and effect of s 8 of the CCPA are satisfactory in that, clearly, a CAN should generally commence proceedings. Section 8 is weighted against the use of arrest and charge. We also believe that the exceptions to the use of CANs, set out in s 8(2), are reasonable. To the extent to which proceedings are not being commenced by CANs where they appropriately should be, this should be addressed by education. However, we note that the Recorded Crime Statistics demonstrate that the legislation appears to be having the desired effect in reducing the use of arrest and charge.

10.18 Nor are we persuaded that anything would be gained by adopting the New Zealand approach of requiring enforcement officers to give a written report why a young person was arrested without warrant.²⁵ Although these sections are intended to deter the inappropriate use of arrest and charge, it is unclear what effect the reporting may in fact have. In addition, different conditions operate in the two jurisdictions. As was made clear above, the issue is better managed, in our view, by education.

10.19 Once a young person has been arrested and charged, and a bail decision is to be made by a police officer or court, there are four possible outcomes. The first is to dispense with bail altogether and release the young person, subject only to the requirement to appear at court at a later date; the second is to grant bail, usually with the requirement that an amount of money is to be provided as a surety that the young person will appear at the later date; the third is to grant bail, but to attach conditions governing the young person’s liberty prior to reappearing in court; and the fourth is to refuse bail.

10.20 Under the Bail Act, a court has the power generally to dispense with bail, so that a young person charged with an offence may remain at liberty until required to appear before a court, without the imposition of any bail requirements or conditions.²⁶ The Bail Act does not specify when this will be appropriate.

10.21 As noted in paragraph 10.12, police should only arrest a young person in the circumstances set out in s 8 of the CCPA. If there is full compliance with this requirement, there may be few occasions for dispensing with bail, as the offence for which a young person had been proceeded against by way of arrest will be of a more serious nature, or the young person will have a history of non-compliance.

10.22 In its submission, the Law Society of New South Wales observed that, contrary to Children’s Court Practice Direction 17, in some instances, courts do not dispense with bail when making a referral to a youth justice conference.²⁷ This, the Law Society noted, has led to situations where a young person, having attended a court-referred conference, was subsequently arrested and held overnight in custody for breach of onerous bail conditions on the day that they had informed the conference administrator they had completed their outcome plans. Such a situation conflicts with the principles of the YOA. The Law Society submitted that “both police and courts should be strongly encouraged to dispense with bail when referring a child to a youth justice conference”.²⁸ The Commission agrees that police and courts should generally dispense with bail when referring a young person to conferencing. However, there should not be a blanket directive to dispense with bail as there may be cases where conferencing occurs as part of sentencing for a serious offence, but where the young offender needs to be kept in confinement before the conferencing.

10.23 Section 32 of the Bail Act sets out the criteria that a police officer or court must apply in considering whether to grant bail. The section goes into considerable detail as to the relevant matters to be taken into account. The criteria are:

10.25 However, submissions also observed that many young people spend time in remand charged with offences that are unlikely to attract a custodial sentence. In addition, it was submitted that bail conditions imposed on young people can be “unnecessarily onerous”,³⁵ in fact, more onerous than those imposed on adults for the same offence.³⁶ While the reasoning behind these conditions is linked to the perceived welfare needs of the young person, it nonetheless conflicts with the requirements of s 37(2) of the Bail Act that:

10.27 The connection between the granting of bail and the common law presumption of innocence of an accused is reflected by a general presumption in favour of granting bail in the Bail Act.³⁷ However, amendments to the Bail Act have eroded the applicability of the overarching presumption in favour of bail.³⁸ There is a specific presumption against the granting of bail in respect of serious drug offences involving commercial quantities;³⁹ terrorism offences;⁴⁰ serious firearms and weapons offences;⁴¹ and certain repeat property offenders.⁴² In addition, the presumption in favour of bail has been specifically removed (noting the difference) for: murder or manslaughter;⁴³ murder-related offences;⁴⁴ wounding with intent to cause harm or resist arrest;⁴⁵ certain serious sexual assault and sexual intercourse with a child offences;⁴⁶ kidnapping;⁴⁷ armed robbery firearm offences;⁴⁸ certain serious drug offences under the Drug Misuse and Trafficking Act 1985 (NSW) and the Criminal Code (Cth);⁴⁹ certain domestic violence offences;⁵⁰ offences committed while on bail, parole, in custody, or serving a sentence not in custody, or where the offender is subject to a good behaviour bond or intervention program order;⁵¹ offenders who have previously failed to appear;⁵² repeat offenders charged with an indictable offence;⁵³ and repeat serious personal violence offenders.⁵⁴

10.28 The Bail Act currently has no specific presumption in favour of granting bail to young people who have been arrested. In their joint 1997 Report, Seen and Heard: Priority for Children in the Legal Process, the ALRC and the Human Rights and Equal Opportunity Commission recommended the implementation of a presumption in favour of bail for all young people charged with offences.⁵⁵ We note that Queensland’s Juvenile Justice Act 1992 (Qld) contains a presumption in favour of bail for children.⁵⁶ Under this Act, in deciding whether to keep a child in custody, the court or officer must decide to release the child, unless, according to the criteria under the Act, the child poses an unacceptable risk.⁵⁷ Even in circumstances where for adults there is a presumption against bail, a child’s bail application is considered on its merits. The explanatory notes to the Bill that introduced these amendments observed that these provisions are consistent with the implementation of the juvenile justice principle that for a child, detention is the option of last resort.⁵⁸ It also implements the United Nations Standard Minimum Rules for the Administration of Juvenile Justice:⁵⁹

10.30 By way of comparison, s 33(2) of the CCPA currently provides that a court shall not make an order for the detention of a young offender under s 33(1)(g) of the CCPA unless the court is satisfied that it would be “wholly inappropriate” to make a non-custodial order under s 33(1) (a)–(f).

10.31 In balancing the best interests of the young person with the right of the community to be protected from criminal conduct, the Commission does not support the creation of a blanket presumption in favour of bail for young people. Rather, we favour the development of specific bail criteria that address the needs of young people, as well as measures that protect the young person’s welfare and safety if he or she is detained. The adoption of Recommendations 10.2, 10.3 and 10.4 would, in the context of the Bail Act’s existing presumption in favour of bail, be consistent with the principle of detention as the option of last resort and a logical extension of s 33(2) of the CCPA.

10.32 The sole criteria to which reference may be made in considering an application for bail are set out in s 32 of the Bail Act.⁶² The only criteria which are specifically relevant to young people are s 32(1)(b)(v) (special needs arising from youth) and s 32(4) (irrelevance of not living with a parent or guardian).

10.33 Section 32(1)(b)(v) of the Bail Act provides that, in making a bail determination, an authorised officer or court must take into consideration the interests of the accused, having regard to any special needs arising from the fact that the person is under the age of 18 years. This provision was inserted into the Act by the Bail Amendment (Repeat Offenders) Act 2002 (NSW).

10.34 In the second reading speech of the Bail Amendment (Repeat Offenders) Bill 2002, the Attorney General put forward the rationale behind s 32(1)(b)(v) in terms echoing the policy basis of the CCPA:

10.36 Some other Australian jurisdictions, also acknowledging that young people have special needs with respect to bail, have incorporated into their bail legislation distinct procedures for bail assessment of young people.

10.37 The Australian Capital Territory has separate provisions dealing with both bail criteria and bail conditions for young people,⁶⁴ set out in separate sections of the legislation.⁶⁵ The criteria for granting bail to children include all of those relevant to adults⁶⁶ but also specify that reference must be made to s 5 of the Children and Young People Act 1999 (ACT). This section resembles s 6 of the CCPA. Thus, in the ACT, in determining a child’s bail application, a court must have regard to the following principles:

10.39 We have already referred, in paragraph 10.28, to Queensland’s bail regime for juveniles. The Juvenile Justice Amendment Act 2002 (Qld) amended the Bail Act 1980 (Qld) to create a system “tailor-made to children”.⁶⁸ The Bail Act 1980 (Qld) remains applicable to children, but subject to the operation of Part 5 of the Juvenile Justice Act 1992 (Qld). This part deals specifically with the bail and custody of children and sets out a separate range of matters that a court or police officer must consider when determining a child’s bail.⁶⁹

10.40 In its submission, the Children’s Court recommended that the Bail Act set out the considerations that the court must take into account in making a young person’s bail determination, including the age of the accused.⁷⁰ As discussed in paragraphs 10.31-10.35, a court must already consider any special needs arising from the fact that the accused is under 18, but the absence of any definitional guidance with respect to “special needs” makes the practical application of the provision less straightforward.

10.41 The Commission agrees with the submission of the Children’s Court and supports the approach taken in other jurisdictions. The special needs of young people would be better addressed if the Bail Act listed separate criteria, consistent with the principles contained in s 6 of the CCPA,⁷¹ to be applied to young people. The application of such criteria would deter unnecessary refusals of bail and the imposition of harsh and inappropriate conditions.

10.42 A person’s residence is a relevant matter to take into account in making a bail determination. For the purpose of doing so, however, the fact that a person who is under 18 does not live with a parent or guardian must be ignored.⁷² In contrast, submissions were in agreement that, in practice, not living with a parent or guardian is a barrier to accessing bail. As the Children’s Court observed in its submission:

10.44 In its submission, the Legal Aid Commission noted that current court practice for dealing with a young person who is unable to provide an appropriate address for residence, but is otherwise suitable for bail, is to impose a condition that the young person resides as approved by the Department of Juvenile Justice (“DJJ”).⁷⁶ Where a young person is under the age of 16, the DJJ must notify the Department of Community Services. After consultation, the Departments jointly place the young person in accommodation.⁷⁷ However, Shopfront observed that homeless young people often remain in custody because the Department of Community Services is “unable or unwilling” to find accommodation.⁷⁸ The issue of limited bail accommodation is discussed in detail in paragraphs 10.92 to 10.95.

10.45 The potential impact of inadequate accommodation on the bail decision has been a concern for some time. In 1992, the NSW Legislative Council Standing Committee on Social Issues recommended that bail legislation specifically provide that lack of accommodation is insufficient reason for the refusal of bail.⁷⁹ In 1997, the ALRC and HREOC argued the same:

10.47 The nature of the accommodation available to a young person if bail is granted is not the only relevance of accommodation to the bail decision. If bail is refused, the young offender will be detained in custody. The Commission strongly believes that before any bail decision is made, the court must have regard to the nature of the place where the person will be detained to ensure that its environment will not impact adversely on the young person’s welfare. This factor ought to be listed separately in the bail criteria developed for young people in accordance with Recommendation 10.2.

10.48 One means of improving the process of bail decision-making is the provision of full and proper background information to the court. The Children’s Court observed that there is insufficient time for the court or duty solicitor to obtain detailed information in a contested bail application, and the availability of DJJ officers is limited.⁸² It argued that courts should have better access to information on accommodation and other support options, and on the extent of any problems experienced by the child’s parents or carers.⁸³ It also recommended that DJJ officers be required to supply certain information to the Court when a young person comes before it from DJJ custody.⁸⁴ Similarly, the Legal Aid Commission recommended that a Department of Community Services intake officer should be rostered to attend at every sitting of a Children’s Court, including weekend bail courts.⁸⁵

10.49 By way of comparison, in the Australian Capital Territory, a court hearing any proceedings against a young person may order a report about the young person from a public servant “whose duties relate to the welfare of children and young people”.⁸⁶ If the court has received such a report, it must consider the report when determining bail.⁸⁷ The Commission recommends the introduction of a similar provision into the Bail Act.

10.50 Obviously, however, to be of use to the Court, and not to delay a young person’s release, the report would need to be immediately relevant and available. If the Court is to grant bail to a person at the earliest opportunity, it needs to be presented with a viable solution, or a plan, to get the young person out of custody. A magistrate needs to have such up-to-date information as where the young person could be accommodated that night, who could supervise him or her from that day, and so forth. The Commission envisages that such a report would be provided by the DJJ case manager.

10.51 A person cannot be released on bail unless he or she undertakes, in writing, to appear in court on the specified date.⁸⁸ This undertaking may include conditions,⁸⁹ although there is a general presumption under s 37(1) of the Bail Act in favour of unconditional bail. The court will not act upon this presumption if it is of the opinion that conditions should be imposed for:

10.53 Section 37(2) of the Bail Act prohibits inappropriately onerous bail conditions. Conditions cannot be imposed if they are any more onerous for the accused person than is required by the nature of the offence;⁹⁵ for the protection and welfare of a specially affected person;⁹⁶ or by the circumstances of the accused.⁹⁷ Any bail conditions imposed must, in the opinion of the authorised officer or court, be “reasonably and readily able to be entered into”.⁹⁸

10.54 The practice of imposing harsh and inappropriate bail conditions on young people has been the subject of repeated concern over the last decade or more. The Children’s Court has noted that onerous bail conditions have been criticised in a number of key reports.⁹⁹ In its 1992 report, Juvenile Justice in New South Wales, the Legislative Council Standing Committee on Social Issues reported that “magistrates take on the role of parent at times to restrict the movement and modify the behaviour of young people”, so that conditions imposed by police and courts were frequently “elaborate, unenforceable, unreasonable and impossible to comply with”.¹⁰⁰ Bail conditions were sometimes more onerous than those placed on adults, and unrelated to the circumstances of the actual offence, or the young person’s likelihood of reoffending.¹⁰¹

10.55 In 1993, the Juvenile Justice Advisory Council emphasised that bail conditions need to be proportionate to the nature of the offence and relevant to the situation of the young person.¹⁰² It recommended that a Code of Practice be developed, identifying what are suitable and reasonable bail conditions to impose on young people.¹⁰³ The ALRC and HREOC argued that police should not deal with anti-social behaviour by imposing restrictive bail conditions on young people, stating that “bail conditions should not criminalise a young person’s non-offending behaviour”.¹⁰⁴

10.56 The issue of inappropriately onerous bail conditions was raised in the Commission’s Issues Paper 19 (“IP 19”).¹⁰⁵ In response to IP 19, it was submitted that, although strict bail conditions may be warranted in some circumstances, “they are often imposed in an indiscriminate manner”.¹⁰⁶ Other submissions stated that “magistrates and police regularly impose conditions on children that are culturally insensitive and inappropriate”¹⁰⁷ and that “young people are often subject to extremely onerous bail conditions which are out of proportion to the seriousness of the alleged offence”.¹⁰⁸

10.57 The Children’s Court argued that unnecessarily onerous bail conditions lead to increased custody rates.¹⁰⁹ It recommended that s 36 and 37 of the Bail Act, which deal with bail conditions, be amended to provide a new set of standard conditions for young people.¹¹⁰ It advocated the inclusion in the Bail Act of a requirement that conditions imposed on young people are “reasonable and are not excessive or setting the young person up to fail”.¹¹¹ The emphasis would be upon ensuring that the accused attends court on the specified day, and to protect the community, “rather than inviting either the police or the courts to engage in pre-sentence social control.”¹¹²

10.58 Submissions identified the following particular problems with bail conditions.

10.59 Curfews. Curfews may, in theory, be a way of protecting the community against offending while on bail, and are preferable to bail refusal.¹¹³ The Children’s Court, however, submitted that breaches of bail are most likely to arise in relation to failure to comply with a curfew, even if there is no actual offence committed at the time.¹¹⁴ The DPP has observed many cases where police have arrested young people for breaching curfews.¹¹⁵ The Law Society submitted that curfews are regularly imposed on young people, even when the alleged offence did not occur during the hours subsequently imposed for the curfew.¹¹⁶

10.60 The terms of a curfew can be quite onerous. A young person may be required to be at home between a range of hours, for example, between 7.00 pm and 7.00 am, or may be ordered not to leave home unless accompanied by a responsible adult.¹¹⁷ A 24 hour curfew effectively amounts to home detention, despite the fact that the young person has not even been tried, let alone sentenced, for the alleged offence.

10.61 Curfews may also exacerbate existing problems in the home environment by forcing constant and/or inappropriate contact with families or imposing policing roles on carers.¹¹⁸ A curfew is inappropriate where a young person is safer on the street than at home, for example where alcohol or drug abuse or domestic violence is a problem in the home.¹¹⁹ The Law Society recommended legislation requiring information on the young person’s accommodation circumstances to be provided to the court before a curfew condition may be imposed.¹²⁰ The Commission agrees with this, although the information need not be given in a formal report.

10.62 Reporting. A person may be required to report to a police station while on bail. Reporting conditions can be quite burdensome, for example, where a young person is required to report to police every day. The Legal Aid Commission submitted that reporting conditions are often imposed on a young person even though he or she is not at risk of flight, has not failed to appear at court, and has strong community ties.¹²¹

10.63 The DPP stated that many Supreme Court judges do not like imposing reporting conditions on young people, as they do not consider it appropriate to have them attending police stations unnecessarily. Instead, they are put under the supervision of their families or the DJJ.¹²²

10.64 The Children’s Court noted that police may seek a condition that an offender “present him/herself at the door [of their home] to police”, in effect giving police an opportunity to go to a home several times a night. This, the Court submitted, undermined community relations.¹²³

10.65 Area restrictions. A young person may have to agree not to frequent or visit a specified place or district.¹²⁴ Such conditions restrict a young person’s freedom of movement significantly. Case examples given by the Legal Aid Commission are conditions that the young person not enter Redfern, or the Sydney CBD, or the township of Bourke.¹²⁵ Similarly, a young person may be prohibited from attending certain shopping or urban areas.

10.66 The New South Wales Court of Criminal Appeal criticised similar restrictions in the form of conditions placed on a bond given to an adult under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).¹²⁶ One of the conditions of the offender’s bond was that he was to stay away from Wilcannia during the term of the bond unless he had the trial judge’s prior permission to visit the town. The Court found this condition to be unduly harsh and unreasonable, given that the bond was for almost two years.

10.67 An area restriction amounts to banishment, when conditions are imposed that “require the young person to leave the town and reside elsewhere until the time of the court appearance”.¹²⁷ The Aboriginal Justice Advisory Council has reported that:

10.69 The non-association provisions introduced into the Bail Act in 2002 were part of the State government’s legislative response to gang-related crime. The submissions of the Law Society of New South Wales and NSW Young Lawyers suggested that police place disproportionately strict restrictions on young people, preventing them from associating with their friends, or in public places.¹³⁰ These provisions should be used sparingly, and their use subject to continuing monitoring, particularly as they may result in the type of worsening of relations between police and young people that leads to young people’s further involvement with the criminal justice system.¹³¹

10.70 Bail Accommodation. A person may be required, as a condition of bail, to reside in bail accommodation.¹³² The court must consider whether placement in bail accommodation is available and suitable for the accused person, having regard to the person’s background, particularly if the person is Aboriginal or Torres Strait Islander.¹³³ One significant problem with this condition is the shortage of bail accommodation. This is discussed in paragraphs 10.89 to 10.95.

10.71 Financial requirements. A person may be released on bail after agreeing to give security, or deposit or forfeit a specified amount of money upon failing to comply with a bail undertaking.¹³⁴ A young person who is unable to meet a financial bail condition must remain in custody, subject to the application of s 8 of the Bail Act. Section 8 gives an accused a right¹³⁵ to release (conditionally or unconditionally) on bail for minor offences.¹³⁶

10.72 The Commission for Children and Young People submitted that a young person is unlikely to have the means to provide a bail bond and should be released on their signed undertaking to appear in court on a specified date.¹³⁷ The ALRC and HREOC recommended against imposing monetary bail criteria on young people.¹³⁸ The Juvenile Justice Advisory Council and the Legislative Council Standing Committee on Social Issues recommended against imposing onerous monetary bail conditions with which young people cannot comply.¹³⁹

10.73 Acknowledgment by an acceptable person. An acceptable person may be required to acknowledge that the young accused is a responsible person who is likely to comply with his or her bail undertaking.¹⁴⁰

10.74 Rehabilitation. A young person may be required to agree to participate in an intervention program or other program for treatment or rehabilitation¹⁴¹ (including for drug or alcohol addiction). The difficulties with the availability of treatment facilities for young people are discussed in Chapter 8 at paragraphs 8.98-8100.

10.75 The Commission is of the view that, while the imposition of strict bail conditions may, in some instances, be beneficial to a young person or his or her family and the community, consideration should always be given to the repercussions of the imposition of any one of the conditions referred to above. While this is, in the end, a matter of judicial commonsense, we believe that the bail legislation should generally ensure that bail conditions are appropriate for young people.

10.76 Those Australian jurisdictions that have separate bail conditions for young people tend to state specific and additional considerations relevant to a court’s consideration of whether to impose bail conditions. In the Australian Capital Territory, for example, the court or an authorised officer¹⁴² may impose any additional conditions deemed appropriate, having regard to the principles set out in the Children and Young People Act 1999 (ACT).¹⁴³ A court is prohibited from imposing a condition that puts a greater obligation on a young person than is necessary to secure the usual purposes of bail, such as the requirement to attend court at a later date.¹⁴⁴

10.77 The Commission agrees, as was argued by the Children’s Court, that bail conditions should be no more onerous than is required to secure the young person’s attendance at court and ensure that they do not offend while on bail. Accordingly, we make the following recommendation.

10.78 Section 39B of the Bail Act requires “the officer or court to whom a bail undertaking is given” to ensure that the accused, and any person entering into a bail agreement, are made aware of the bail obligations and consequences of a breach. There is some concern that young people may not sufficiently understand the conditions imposed on them and, as a result, may unintentionally breach bail.¹⁴⁵ The Aboriginal Justice Advisory Council has suggested that this is a particular concern with conditions imposed upon young Aboriginal people.¹⁴⁶

10.79 The Commission believes that it is possible to avoid, or at least minimise, unintentional breaches of bail by young people by enacting a provision applying specifically to them in terms similar to s 37(2A) of the Bail Act. Section 37(2A) provides as follows:

10.80 Section 50 of the Bail Act provides that, where a police officer believes on reasonable grounds that a person released on bail has breached, or is about to breach, a bail undertaking or condition, the police officer may arrest the person without warrant and take him or her as soon as practicable before a court.¹⁴⁷ Alternatively, an authorised justice may issue a warrant to apprehend the person and bring him or her before the court or issue a CAN.¹⁴⁸

10.81 Breach of bail is not an offence in itself. Rather, s 50 of the Bail Act provides a mechanism to bring a person back before the court to reconsider the question of bail. Pursuant to s 50(2) of the Bail Act, the court can release the person on the original bail, or revoke the original bail and deal with the person according to law. If bail is revoked, the court can make a fresh grant of bail or commit the person to prison.¹⁴⁹

10.82 The Commission is of the view that this provision affords a young person sufficient protection and opportunity for the appropriateness of the bail conditions and undertakings to be reviewed. A decision to take no action on a breach will necessarily involve a consideration of the appropriateness of the original conditions set. On the other hand, in setting new bail, the court will necessarily reflect on whether more appropriate conditions, or any conditions at all, should be attached. Accordingly, we make no recommendation for reform of s 50.

10.83 There is a specific presumption against the granting of bail in respect of certain repeat property offenders.¹⁵⁰ Bail is to be granted to repeat serious personal violence offenders in exceptional circumstances only.¹⁵¹ In addition, as outlined in paragraph 10.27, the Bail Amendment (Repeat Offenders) Act 2002 (NSW) removed from the Bail Act the presumption in favour of bail for various other classes of repeat offender. The amending Act inserted s 9B, which provides that, regardless of the type of offence alleged, there is no presumption in favour of bail where the person:

10.85 Both police demands and a 2001 report by the NSW Bureau of Crime Statistics and Research (“BOCSAR”), Bail in NSW: Characteristics and Compliance, gave impetus to the introduction of s 9B.¹⁵⁷ The BOCSAR report highlighted the numbers of alleged offenders who failed to appear at the next court date in compliance with their bail condition to attend. Previously, offenders were granted bail on successive occasions because of the minor nature of their offending. This included offences such as theft, break and enter, shoplifting, and minor assaults.¹⁵⁸

10.86 Some unease was expressed during the parliamentary debates on the Bail Amendment (Repeat Offenders) Act 2002 (NSW) about the impact which s 9B might have on young people, especially as to whether it would lead to an increase in young people being held in custody.¹⁵⁹ A proposed amendment which would have resulted in s 9B not applying to young people was unsuccessful, and, while it is open to the court to consider any “special needs” arising from the fact that a person is under 18, s 9B remains applicable to both adults and young people.¹⁶⁰

10.87 In June 2002, the then Minister for Juvenile Justice indicated that her Department did not expect that s 9B would have a significant impact on the number of young people being held in custody. Indeed, research into the impact of the Bail Amendment (Repeat Offenders) Act 2002 (NSW) carried out by BOCSAR in 2004 found that there had been no change in the bail refusal rate for juvenile defendants since the changes came into effect.¹⁶¹

10.88 A consistent theme of submissions and the Commission’s consultative process was that one of the main strengths of the current juvenile justice system in New South Wales is its flexibility. The ability to tailor a response to juvenile offending, within the structure of the YOA and the CCPA, appears to be going some way to achieving the policy aim of reducing both the involvement of young people in the criminal justice system and the incidence of recidivism. We acknowledge that there is no evidence that the amendments are disadvantaging young people. Nevertheless, we believe that the law should allow individualised responses to individual offences by young persons. The fact that a young person is already on bail, on parole, on a good behaviour bond, or serving a non-custodial sentence should not remove any presumption in favour of bail in relation to a subsequent alleged offence. Young people should be held in remand as a last resort. Accordingly, we do not believe that s 9B should apply to young people.

10.89 A young person may be held in custody because there is nowhere else for him or her to go. Well-intentioned police or magistrates may refuse bail as a way of finding accommodation for young people. The ALRC and HREOC have noted that, for some children, being in remand is preferable to being left homeless or left with violent carers, but emphasised that holding children on remand is an inappropriate solution to welfare problems.¹⁶² Currently, there are insufficient options for young people who would be released on bail but for a lack of appropriate accommodation.

10.90 Section 36(2)(a1) of the Bail Act provides that a condition may be imposed upon an accused that the person agrees to live “in accommodation for persons on bail”. In doing so, the court must consider whether such accommodation is available and suitable for the accused, having regard to his or her background, particularly whether he or she is Aboriginal or Torres Strait Islander.¹⁶³ These provisions were added to the Bail Act by the Bail Amendment (Repeat Offenders) Act 2002, in order to create more options for releasing vulnerable people on bail:

10.91 The ALRC and HREOC,¹⁶⁵ the Juvenile Justice Advisory Council,¹⁶⁶ the Royal Commission into Aboriginal Deaths in Custody,¹⁶⁷ the Legislative Council Standing Committee on Social Issues¹⁶⁸ and the Legislative Council Select Committee on the Increase in Prisoner Population¹⁶⁹ have all recognised the need to develop alternative accommodation for people who, in the absence of such accommodation, would be refused bail. This would reduce the number of young people unnecessarily held in remand.

10.92 Bail accommodation for young people is severely limited. The Ja-Biah Bail Support Program in Western Sydney provides accommodation for young Aboriginal and Torres Strait Islander people who would otherwise be refused bail. The service houses up to 6 residents aged between 10 and 18, who are usually referred to Ja-Biah by the courts, upon recommendation by the DJJ.¹⁷⁰ The Nardoola Farm Accommodation Program in Moree also provides bail accommodation for young Aboriginal people. It houses up to eight young people, and offers programs on living and literacy skills, as well as alcohol and drug education, and violence group work.¹⁷¹ Both services aim to reduce the number of young Aboriginal people remanded in custody because of lack of suitable accommodation.

10.93 There was a consensus among submissions that there is a pressing need to develop accommodation alternatives, so that more young people may be granted bail. The NSW Law Society noted that not only are refuges a very poor alternative form of accommodation in the Sydney-Newcastle-Wollongong region, but even this limited alternative is virtually non-existent in rural New South Wales.¹⁷² The submission of the Children’s Court observed that many young people are unable to obtain bail because their current accommodation “facilitate[s] breaches of bail conditions or further offending”.¹⁷³ It supported the expansion of bail accommodation throughout the State. The Legal Aid Commission recommended that more bail hostels be provided for Aboriginal children, particularly for those living in rural and remote communities.¹⁷⁴

10.94 The result of the acute shortage of alternative bail accommodation is that s 36(2)(a1) of the Bail Act does not, in most cases, provide the court with any real option for granting bail. This is despite the fact that under s 36(2B) of the Bail Act, the Minister for Corrective Services is under a statutory duty to ensure that adequate and appropriate accommodation is available for the purposes of the placement of persons on bail.

10.95 The NSW Law Society observed that failure to appear while on bail can arise from accommodation difficulties, a chaotic home life, a lack of adult support, or - particularly in the case of young Aboriginal people - the need to travel to see and stay with extended family members.¹⁷⁵ Increased alternative accommodation would not only limit the reliance on remand as crisis accommodation for young people in need of care or protection, but may reduce the likelihood of young people failing to appear at court.

Table of contents

1. As bail applies to people who have been charged with a crime but have not pleaded, or been found, guilty, the term “young person” is the appropriate one to use in this chapter, rather than “young offender”. “Young person” is used in this chapter to refer to people who are aged between 10 and 17 years at the time they are taken into custody.

2. See G Brignell, Bail: An Examination of Contemporary Issues (Judicial Commission of New South Wales, Sentencing Trends and Issues No 24, 2002) at 3.

3. New South Wales, Department of Juvenile Justice, Annual Report 2004-05 at 35.

4. Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process (ALRC Final Report 84, 1997) at para 18.170.

6. M Marien and J Hickey, “The Bail Act Amendment (Repeat Offenders) Bill 2002”, Paper presented to the Institute of Criminology seminar Crisis in Bail and Remand (Sydney, 29 May 2002).

7. Section 5 of the Bail Act 1978 (NSW) states that “the Act applies to a person whether or not the person has attained the age of 18 years”.

9. New South Wales, Parliamentary Debates (Hansard), Legislative Council, 9 May 2002,Speech of the Hon H Sham-Ho at 1888 on the Bail Amendment (Repeat Offenders) Bill.

16. M Chilvers et al, “Bail in NSW: Characteristics and Compliance” (September 2001) Crime and Justice Statistics Bureau Brief Issue Paper No.15 (NSW Bureau of Crime Statistics and Research, Sydney) Table 1 at 2.

17. Just over 62% of matters were proceeded against other than to court. Of the 37.5% proceeded against to court, 11.7% were issued with a Court Attendance Notice – including Field CANs - and 10.6% were issued with a summons and the remaining 77.7% were charged: New South Wales Bureau of Crime Statistics and Research, Recorded Crime Statistics 2001-2002 – Method by which police proceeded against juvenile persons of interest (aged 10 to 17).

18. Seventy two per cent of matters were proceeded against other than to court: New South Wales Bureau of Crime Statistics and Research, Recorded Crime Statistics 2001-2004 – Method by which police proceeded against juvenile persons of interest (aged 10 to 17).

19. The Legal Aid Commission of New South Wales contends that police continue to charge young people for a wide range of offences, including breaches of non-custodial orders and minor summary matters: Submission at 11. See also Shopfront Youth Legal Centre, Submission at 12; New South Wales Office of the Director of Public Prosecutions, Submission at 5.

21. New South Wales Office of the Director of Public Prosecutions, Submission at 5.

23. Children’s Court of New South Wales, Submission at 21; Legal Aid Commission of New South Wales, Submission at 11.

25. Pursuant to s 214(3) and (4) of the Children Young Persons and Their Families Act 1989 (NZ), every “enforcement officer” who arrests a child or young person without warrant must, within three days of making the arrest, prepare a written report stating the reason why the child or young person was arrested without warrant. Where the enforcement officer is a member of the police, or a traffic officer who is a non-sworn member of the police, the report must be made to the Commissioner of Police. Where the enforcement officer is an officer or employee of the Public Service, and an officer of a local authority, the report is to the Chief Executive Officer of the relevant Department or local authority.

29. Bail Act 1978 (NSW) s 32(1)(a); note that s 32(1)(a)(i)-(iv) enumerates the only matters to which the court may have regard in determining the interests of the person.

30. Bail Act 1978 (NSW) s 32(1)(b); note that s 32(1)(b)(i)-(vi) enumerates the only matters to which the court may have regard in determining the interests of the person.

31. Bail Act 1978 (NSW) s 32(1)(b1); these are the person(s) against whom the offence was allegedly committed, any close relatives of such person(s), or any other person considered to be in need of protection because of the circumstances of the case.

32. Bail Act 1978 (NSW) s 32(1)(c); note that s 32(c)(b)(i)-(vi), 32(2) and 32(2A) detail the only matters to which the court may have regard in determining the protection and welfare of the community.

33. New South Wales Office of the Director of Public Prosecutions, Submission at 7.

34. New South Wales Office of the Director of Public Prosecutions, Submission at 6.

38. Bail Amendment (Repeat Offenders) Act 2002 (NSW); Bail Amendment Act 2003 (NSW); Bail Amendment (Firearms and Property Offences) Act 2003 (NSW); Bail Amendment (Terrorism) Act 2004 (NSW). See G Brignell, Bail: An Examination of Contemporary Issues at 1.

44. Bail Act 1978 (NSW) s 9(c); see Crimes Act 1900 (NSW) s 26, 27, 29, 30 and 31.

46. Bail Act 1978 (NSW) s 9(c); see Crimes Act 1900 (NSW) s 61J, 61JA, 61K, 66A and 66B.

56. The Juvenile Justice Amendment Act 2002 (Qld) cl 12 inserted s 37A(4) (renumbered as s 48(4) in reprint No 7 of the principal Act) into the Juvenile Justice Act 1992 (Qld).

58. “Clause 12 inserts new section 37A and introduces the bail regime to be considered when dealing with a child. Because of the amendment made by clause 128 to section 16 of the Bail Act 1980, the ‘show cause’ provisions in that Act no longer apply to children. This is consistent with the juvenile justice principle that for a child, detention is the option of last resort. The provisions in section 37A provide that a court or a police officer must consider a broad range of matters when deciding the issue of bail and that the child must be granted bail unless there is an unacceptable risk posed by the child against listed criteria. The child must not be released if release would threaten the child’s safety (examples are provided of when a child’s safety might be threatened by release on bail) and there is no other reasonably practicable way of ensuring the child’s safety.”: Juvenile Justice Amendment Bill 2002 (Qld) Explanatory Notes at 13.

60. Shopfront Youth Legal Centre, Submission at 15.1; The New South Wales Commission for Children and Young People recommended a statutory requirement that children be granted bail unless there are exceptional reasons for holding them in custody: Submission at para 12.03. The New South Wales Office of the Director of Public Prosecutions suggested there be a presumption in favour of bail for young people, save where there is a presumption against bail: Submission at 6.

62. See R v Hilton (1987) 7 NSWLR 745: the Court held that s 32 of the Bail Act 1978 (NSW) is a mandatory, exhaustive and exclusive statement of the criteria to be considered in bail applications.

63. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 20 March 2002, the Hon R J Debus, Attorney General, Second Reading Speech, Bail Amendment (Repeat Offenders) Bill 2002 at 818.

64. See Bail Act 1992 (ACT) s 23 (criteria for granting bail to children) and s 26 (conditions which may be imposed on the grant of bail to a child).

68. Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 19 June 2002, the Hon J Spence, Second Reading Speech, Juvenile Justice Amendment Act 2002 (Qld) at 1897.

69. This includes the nature and seriousness of the offence; the child’s character, criminal history and other relevant history, associations, home environment, employment and background; the history of any previous grants of bail to the child; the strength of the evidence against the child relating to the offence; submissions made by the community of an Aboriginal or Torres Strait Islander child; and any other relevant matter. See Juvenile Justice Act 1992 (Qld) s 48(3).

71. The principles contained in s 6(b)-(d) of the Children (Criminal Proceedings Act) 1987 (NSW) are as follows:

79. New South Wales, Parliament, Legislative Council, Standing Committee on Social Issues No 4, Juvenile Justice in NSW (Report, 2002), Recommendation 22 at 76.

81. See, for example, s 129(7) of the Children And Young Persons Act 1989 (Vic) which provides that “bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation”.

93. Bail Act 1978 (NSW) s 37(1)(d). This subsection was introduced by the Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 (NSW) Sch 2[5].

94. Chief Inspector Tony Trichter, Senior Manager of the Operational and Special Advice Unit in the Court and Legal Services Branch of the NSW Police Service, quoted in R Johns, Bail Law and Practice: Recent Developments (New South Wales Parliamentary Library Research Service Briefing Paper No 15/02, Sydney, 2002) at 12.

97. Bail Act 1978 (NSW) s 37(2)(c). Other technical restrictions are contained in s 37(3)-(4)

99 The Children’s Court of New South Wales, Submission at 23. See Australia, Royal Commission into Aboriginal Deaths in Custody, National Report Volume 5 (Australian Government Publishing Service, Canberra, 1991), Recommendations 90 and 91; Juvenile Justice Advisory Council of NSW, Future Directions for Juvenile Justice in New South Wales, Green Paper (Sydney, 1993), Section 2.5; New South Wales, Parliament, Legislative Council, Standing Committee on Social Issues No 4 at 75-76.

100. NSW Youth Justice Coalition, Kids in Justice: A Blueprint for the 90s (Sydney, 1990) at 256-259.

101. New South Wales, Parliament, Legislative Council, Standing Committee on Social Issues No 4 at 77. See also Youth Justice Coalition, Kids in Justice: A Blueprint for the 90s at 256-259.

102. Juvenile Justice Advisory Council of New South Wales, Future Directions for Juvenile Justice in New South Wales, Green Paper, Section 2.5 at 100.

103. Juvenile Justice Advisory Council of New South Wales, Future Directions for Juvenile Justice in New South Wales, Green Paper, Recommendation 195. The Youth Justice Coalition has also recommended a Code of Practice be developed as to reasonable bail conditions for young people: Youth Justice Coalition, Kids in Justice: A Blueprint for the 90s, Recommendation 156.

105. New South Wales Law Reform Commission, Sentencing: Young Offenders (1ssues Paper 19, 2001), Issue 15 and para 3.77.

107. Legal Aid Commission of New South Wales, Submission at 10. See also Public Defenders, Submission at 4: “inappropriate bail conditions are imposed on young people”.

108. Shopfront Youth Legal Centre, Submission at 12. See also NSW Young Lawyers, Submission at 5.

109. The Children’s Court of New South Wales, Submission at 23. See also Legal Aid Commission of New South Wales, Submission at 11.

113. ALRC Final Report 84 at 18.159, footnote 364. But “[n]o study has proven conclusively that enactment or enforcement of juvenile curfew laws achieves any of the laws’ express policy goals”: D Norton, “Why criminalize children? Looking beyond the express policies driving juvenile curfew legislation” (2000-2001) 4 Legislation and Public Policy 175 at 194.

115. New South Wales Office of the Director of Public Prosecutions, Submission at 6.

118. ALRC Final Report 84 at 18.159 and Recommendation 228. See also Youth Justice Coalition, Kids in Justice: A Blueprint for the 90s, Recommendation 81: “Children should not be subject to bail conditions or sentences which have the effect of forcing inappropriate contact with their families (for example, 24 hour curfews; home detention), or which impose onerous ‘policing’ roles on families”.

119. The Law Society of New South Wales, Submission at 9; The Children’s Court of New South Wales, Submission at 24; NSW Law Reform Commission, Consultations (Broken Hill, 3-5 June 2002).

122. New South Wales Office of the Director of Public Prosecutions, Submission at 6.

127. Juvenile Justice Advisory Council of New South Wales, Future Directions for Juvenile Justice in New South Wales, Green Paper, Section 9.6 at 211.

128. Aboriginal Justice Advisory Council, Aboriginal People and Bail Courts in NSW (Sydney, 2002) at 11.

129. Bail Act 1978 (NSW) s 36B(1)(a) and s 36B(8). These sections were inserted into the Bail Act by the Justice Legislation Amendment (Non-Association and Place Restriction) Act 2001 (NSW), Explanatory Notes at 5.

130. The Law Society of New South Wales, Submission at 10; NSW Young Lawyers, Submission at 5.

135. This right is subject to the exceptions set out in s 8(2)(a)(i)-(iv). In addition, a person is not entitled to bail if he or she is already imprisoned for some other offence and is likely to remain in prison for longer than the bail period that would otherwise be granted: Bail Act 1978 (NSW) s 8(4).

136. These include (excepting “failing to appear” offences): all offences not punishable by imprisonment (except fine default); summary offences punishable by imprisonment and those prescribed by the regulations; and offences related to breaches of good behaviour bonds or community service orders.

137. New South Wales Commission for Children and Young People, Submission at para 12.02.

138. ALRC Final Report 84, Recommendation 228. In Queensland, amendments to the Juvenile Justice Act 1992 (Qld) introduced by the Juvenile Justice Amendment Act 2002 (Qld) provide that a court or police officer granting bail to a child must release the child on his or her own undertaking without sureties or deposit of money or other security, unless this option is inappropriate: Juvenile Justice Act 1992 (Qld) s 40A(2).

139. Juvenile Justice Advisory Council of New South Wales, Future Directions for Juvenile Justice in New South Wales, Green Paper, Recommendation 194; New South Wales, Parliament, Legislative Council, Standing Committee on Social Issues No 4, Recommendation 27.

142. “Authorised officer” means the chief police officer; or a police officer exercising the functions of a superintendent or sergeant; or another police officer authorised in writing by the chief police officer: 1992 (ACT) Dictionary at 61.

145. The Shopfront Youth Legal Centre observed that some children under 14 are placed on onerous bail conditions that they may not fully comprehend: Submission at 12.

146. Aboriginal Justice Advisory Council, Aboriginal People and Bail Courts in NSW (Sydney, 2002) at 11.17.

155. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 20 March 2002, the Hon R J Debus, Attorney General, Second Reading Speech, Bail Amendment (Repeat Offenders) Bill 2002 (NSW) at 818.

156. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 20 March 2002, the Hon R J Debus, Attorney General, Second Reading Speech, Bail Amendment (Repeat Offenders) Bill 2002 (NSW) at 818.

157. M Chilvers, J Allen and P Doak, ,(NSW Bureau of Crime Statistics and Research, Crime and Justice Statistics Bureau Brief, Issue Paper No 15, Sydney, 2001). This research found that, in 2000, 14.6% of Local Court defendants on bail failed to appear and that failure to appear rates were highest among those with prior convictions and multiple concurrent offences.

158. See M Marien and J Hickey, “The Bail Amendment (Repeat Offenders Bill) 2002”, paper presented at the Institute of Criminology Seminar Crisis in Bail and Remand, 29 May 2002 at infolink/clrd1.nsf/pages/ bail_amendmentbill_2002

159. Contrast the prevailing position in Victoria: “Bail is usually given when young people are appearing before court for the first time, are on a community-based order and doing well apart from the recent offence, or offences are old ones that happened before they were locked up and then released on parole. Young people on parole also are likely to get bail if they are doing well”: Victoria, Department of Human Services, Bail: Juvenile Justice (Melbourne, 2001).

160. See NSW, Parliamentary Debate (Hansard), Legislative Assembly, 10 April 2002, Debate on Bail Amendment (Repeat Offenders) Bill 2002; NSW, Parliamentary debate (Hansard), Legislative Council, 7 May 2002 and 9 May 2002, Debate on Bail Amendment (Repeat Offenders) Bill 2002 (NSW).

161. J Fitzgerald and D Weatherburn, The Impact of the Bail Amendment (Repeat Offenders) Act 2002 (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 83, 2004) at 4. Prior to the amendments, 8.7% of juvenile defendants were in custody at the time their criminal matter was finalised, compared with 8.2% following the amendments (a statistically insignificant change).

164. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 20 March 2002, the Hon R. J. Debus, Attorney General, Second Reading Speech, Bail Amendment (Repeat Offenders) Bill 2002 (NSW) at 818.

166. The Juvenile Justice Advisory Council identified the need to provide alternative placements for juveniles who would otherwise have been refused bail or who are unable to meet bail undertakings in order to reduce the number of young people held on remand. It recommended that bail hostels or safe houses be established as an alternative to incarceration of young people. See Juvenile Justice Advisory Council of New South Wales, Future Directions for Juvenile Justice in New South Wales, Green Paper, Section 7.11 and Recommendations 47 and 99. The Juvenile Justice Advisory Council also recommended bail hostels be provided in areas of greatest need, including country locations: see Green Paper, Recommendation 191.

167. The Royal Commission into Aboriginal Deaths in Custody recommended that “government should approve informal juvenile holding homes, particularly the homes of Aboriginal people, in which juveniles can lawfully be placed by police officers if bail is in fact not allowed”: Australia, National Report of the Royal Commission into Aboriginal Deaths in Custody, Recommendation 242.

168. New South Wales, Parliament, Legislative Council, Standing Committee on Social Issues No 4, Recommendation 23.

169. The Select Committee on the Increase in Prisoner Population recommended the provision of bail accommodation as a means of reducing the size of the remand population. Bail hostels can provide intensive supervision where appropriate, but avoid incarceration: New South Wales, Parliament, Legislative Council, Select Committee on the Increase In Prisoner Population, Final Report (Parliamentary Paper No 24, 2001) at 8.4-8.7.

170. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 28 November 2001, the Hon C Tebbutt, the then Minister for Juvenile Justice, at 18952.

171. NSW Attorney General’s Department, Crime Prevention Division, Crime Prevention Program Directory at 5.7.

174. Legal Aid Commission of New South Wales, Submission at 10. The NSW Department of Juvenile Justice also plans to consider options for alternatives to custody such as bail hostels for young Aboriginal people: Aboriginal Over-representation Strategic Plan (2001) at 9. The Royal Commission into Aboriginal Deaths in Custody also recommended the introduction of informal juvenile holding homes in which juveniles can lawfully be placed by police officers if bail is refused: Australia, National Report of the Royal Commission into Aboriginal Deaths in Custody, Recommendation 242.