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Australian & New Zealand Journal of
Criminology
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Re-examining Bail and Remand for Young People in NSW

Julie Stubbs
Australian & New Zealand Journal of Criminology 2010 43: 485
DOI: 10.1375/acri.43.3.485
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Re-examining Bail and Remand

for Young People in NSW
Julie Stubbs
University of New South Wales, Australia
his article examines the substantial growth in the number of young

people remanded in custody in New South Wales (NSW) and the
increasing number of young people granted bail but unable to meet the
conditions of bail. It points to the inadequacies of the Bail Act 1978 (NSW)
for dealing with young people, and highlights the ways in which recent
developments in law and practice and the politicisation of bail mark a
substantial departure from the well-established purposes of bail and
remand. It also identifies an agenda for future research concerning bail
decision-making for young people.
Keywords: bail, remand, young people
Bail and remand decision-making have become the focus of renewed attention
mostly in response to recent, substantial increases in the number of people
remanded in custody in several jurisdictions. However, few studies have focused on
bail and remand decisions for young people, despite the concerns of activists and
practitioners about the growth in the number of juveniles being remanded in
custody and the substantial increase in the numbers of young people granted bail
but unable to meet bail conditions. These trends have been even more pronounced
for Aboriginal young people, despite government policies designed to counter their
overrepresentation within the juvenile justice system. This article reviews the
limited available data in NSW, points to the inadequacies of the Bail Act (NSW)
for dealing with young people, and highlights the ways in which recent developments in law and practice and the politicisation of bail mark a substantial departure
from the well-established purposes of bail and remand. It also identifies an agenda
for future research concerning bail decision-making for young people.
The Politics of Bail

The NSW Bail Act 1978 was introduced by a newly elected Labor Government after
a long period in opposition. The political climate of the day was one in which
principled law reforms aimed at just outcomes and reducing the reliance on imprisonment were possible. The legislation was introduced after a major review
(Anderson & Armstrong, 1977) and its objectives included reducing the reliance
Address for correspondence: Professor Julie Stubbs, University of NSW, Sydney NSW 2052,
Australia. E-mail: j.stubbs@unsw.edu.au
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 43 NUMBER 3 2010 PP. 485505
485
JULIE STUBBS
on money bail, redressing the overrepresentation of the young, the poor and the
migrant among those in custody awaiting trial, and extending to juveniles and
young people the same rights to bail as adults (Walker, 1978, p. 2014). That legislation was not immune from the effects of public outcry over particular incidents of
crime the original exception to the presumption in favour of bail concerning
armed robbery offences arose because of a serious offence that occurred at the time.
Nonetheless, one thing that marks out the present context as so distinctive from
that which existed just three decades ago is that, at that time, governments took no
pleasure in high rates of imprisonment and of remand in custody. Instead, today
governments seek to establish their virility when it comes to crime by celebrating
higher imprisonment rates, including higher rates of people detained while awaiting
trial (Pratt, 1997, ch. 9).
The Bail Bill was introduced to Parliament by Attorney-General, the Hon.
Frank Walker, with the statement that:
Although it is perfectly true that the community must be protected against dangerous
offenders, one must not lose sight of the circumstances, first, that when bail is being
considered, one is confronted with an alleged crime and an unconvicted accused
person, and second, that the liberty of the subject is one of the most fundamental and
treasured concepts in our society. (Walker, 1978, p. 2020)
By contrast, in 2002 the then Premier, the Hon. Bob Carr, endorsed reforms to the
Bail Act in these terms: Our legislation sends a clear message [that] repeat offenders
dont deserve any favours. They can wait for their day in court in a prison cell. If
that means extra jails, we will build them (Wainwright, 2002, p. 3). Thus, for those
with a prior conviction, the liberty of the subject was transformed from a fundamental and treasured concept to an undeserved favour.
Remand in custody is clearly undesirable, especially for young people. It is at
odds with the presumption of innocence; is stigmatising; disrupts relationships with
family and community, education and work; may impact adversely on preparation
for court proceedings and on the outcome and sentencing; and may expose young
people to negative influences and result in increased recidivism (Bamford, King, &
Sarre, 1999, p. 2; Brignell, 2002; Justice Policy Institute, 2009; Kellough & Wortley,
2002, p. 187; Oxley, 1979; Stubbs, 1984, p. 92). While the objective of remand is to
contain the person rather than to punish them, the conditions and effects are
punitive (Zedner, 2004, p. 247). The damaging effects of remand in custody have
been recognised in numerous inquiries, including the Royal Commission into
Aboriginal Deaths in Custody (RCIADIC; Johnston, 1991) and the recent Inquiry
into Child Protection Services in NSW (Wood, 2008, p. 560) and remand is
typically considered a last resort (Victorian Law Reform Commission [VLRC],
2001).
While the aspiration to extend the same rights to bail to young people as to
adults was well intended, an evaluation of the Bail Act in the 1980s found that the
reforms largely met their objectives for adults but failed with respect to young
people. In line with the objectives of the reforms, the proportion of adults granted
unconditional bail had increased substantially. By contrast, young people had low
rates of unconditional bail and high rates of bail refusal or conditional bail requiring
an acceptable person; these outcomes did not reflect the nature of the charges but
486

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW
rather reluctance by police and magistrates to release them on their own undertakings (Stubbs, 1984, p. 90).
The Bail Act in NSW has been repeatedly amended in a manner unprecedented
in other jurisdictions (Steel, 2009), creating exceptions to the presumption in
favour of bail for a growing list of offences and, for repeat offenders, a presumption
against bail for other offences (Brown, Farrier, McNamara, Egger, & Steel, 2006,
para 3.4.3.2) and restricting bail in other ways. With one limited exception, amendments have failed to consider the likely impact on young people. Following an
amendment in 2002, s32(1)(b)(v) now requires a court to take into account any
special needs arising from a person being under 18 years of age, but there is no
guidance as to how this provision might operate (NSW Law Reform Commission
[NSWLRC], 2005, para 10.35) and it is questionable whether it is being honoured
in practice. As Brignell has argued, piecemeal reforms, often arising from political
imperatives or moral outrage over a particularly abhorrent high-profile case, rather
than empirical research or evidence have led to the gradual erosion of the
presumption of innocence and It is questionable whether the current bail law
provides a systematic and comprehensive framework (2002, p. 11). This outcome
was predicted by Weatherburn, Quinn and Rich who argued that [i]f public
opinion, no matter how poorly informed, is to become sufficient cause for removing
a presumption in favour of bail, the reform engendered by the original Bail Act will
disintegrate under the weight of all the exceptions (1987, p. 108). The problems
identified in the application of the Bail Act (Stubbs, 1984) have been magnified
with successive and more restrictive amendments made without regard to young
people. For the purposes of this article I highlight two significant amendments.
In 2002, s9B was introduced, which removed the presumption in favour of bail
for persons alleged to have committed an offence while on bail, on parole, serving a
noncustodial sentence, on a good behaviour bond, who had previously failed to
appear in court in accordance with bail, or charged with an indictable offence
having previously been convicted of an indictable offence.1 The NSWLRC criticised the application of s9B to young people and stated that we believe that the law
should allow individualised responses to individual offences by young persons
Young people should be held in remand as a last resort (2005, para 10.88). The
commission recommended that s9B not apply to young people (2005, rec 10.9), but
this recommendation has not been acted on.
In 2007, s22A was amended to prevent courts hearing a second or subsequent
bail application other than in special circumstances: s 22A(1) stipulates that
[a] court is to refuse to entertain an application for bail by a person accused of an offence
if an application by the person in relation to that bail has already been made and
dealt with by the court, unless there are grounds for a further application for bail.
(emphasis added)2
The Attorney General, the Hon. John Hatzistergos, introduced the amendment by
saying that NSW now has the toughest bail laws in Australia and noted with
apparent approval that earlier reforms had almost doubled bail refusal rates in the
higher courts from 25.8% in 1995 to 46.4% in 2005. His justifications for the
amendment were that it would prevent magistrate shopping, protect victims of
crime from repetitive bail applications with little chance of success and ensure

487
JULIE STUBBS
that lawyers act in a responsible manner in advising and representing their clients
and will not pursue unnecessary claims (Hatzistergos, 2007, p. 2669). Booth
and Townsley have characterised the amendment as punitive, ill-considered and
without empirical foundation (2009, p. 43). It is difficult to reconcile this amendment with the NSWLRCs finding two years previously that Childrens Courts and
lawyers in those courts had too little time to adequately deal with bail decisions,
and that NSW Department of Juvenile Justice (DJJ) officers were not always available to assist (NSWLRC, 2005, para 10.48). Section 22A fails to recognise the
heavy demands that solicitors commonly face that limit their capacity to prepare
and present bail applications. According to research by Bamford, King and Sarre
(1999, p. 16) the majority of bail decisions in Australian jurisdictions take less
than two minutes. Recent reports have reiterated concerns about the limited
capacity for magistrates and duty lawyers within a stretched Legal Aid system to
deal adequately with bail applications in busy courts (UnitingCare Burnside, 2009,
pp. 45, as cited in Haesler, 2008).
The Criminal Law and Juvenile Justice Committees of the NSW Law Society
wrote to the Attorney-General arguing that section 22A undermines established
juvenile justice principles and should not apply to children;3 a similar recommendation was made by UnitingCare Burnside (2009, p. 7) and by the Youth Justice
Coalition (YJC) (Wong, Bailey, & Kenny, 2009, p. 24). The Attorney-General introduced more amendments to s22A in October 20094 to clarify the circumstances that
could justify a further bail application. However, in doing so he specifically rejected
the argument that young people should be exempted from s22A, stating that an
alleged criminals age does not justify him or her manipulating the administration of
justice (Hatzistergos, 2009, p. 18983). Thus it seems that s22A is based on a presumption that second and subsequent bail applications are a manipulation of justice until
determined to be otherwise, which is a marked departure from the presumption of
innocence. Yet a recent review of juvenile justice in NSW found first, that there was
no evidence of children and young people making unnecessary bail applications, and
second, that s22A had substantially increased the numbers of young people remanded
in custody, but not adults (Noetic Solutions, 2010, p. 70). The decision not to give
weight to the age of the alleged offender is at odds with the International Convention
on the Rights of the Child (article 40), the International Covenant on Civil and
Political Rights (article 14(5)), and the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice (the Beijing Rules, rule 2.2(a)) which stipulate
that age should be taken into account in the administration of justice. The Beijing
Rules also specify that in juvenile justice, [d]etention pending trial shall be used only
as a measure of last resort and for the shortest possible period of time (rule 13.1) and,
[w]henever possible, detention pending trial shall be replaced by alternative
measures, such as close supervision, intensive care or placement with a family or in an
educational setting or home (rule 13.2).
Bail and Remand for Young People: The Current Picture

in NSW
The Young Offenders Act 1997 (NSW) (hereafter YOA) introduced a legislative
framework for the diversion of young offenders for a specified range of offences (s8)
488

and thus, for many young people accused of offences the consideration of bail does
not arise. The principles of the YOA require that the least restrictive form of intervention be used (s7(a)), and that criminal proceedings not be used if there is an
available and appropriate alternative (s7(c)). While a detailed evaluation of the
YOA found that it was meeting its objectives (Chan, 2005), recent data on bail and
remand suggests the need to reexamine police practices in bringing criminal
proceedings against young people who are eligible for diversion to determine if they
are complying with the YOA; this concern has also been raised by the NSW
Ombudsman (as cited by Wood, 2008, p. 563) and a lack of uniformity in the use of
diversionary options across police commands has been demonstrated (Noetic
Solutions, 2010, p. 16).
In those instances where the consideration of bail does arise, the Bail Act
prevails over other acts including the Children (Criminal Proceedings) Act 1987
(NSW) (hereafter CCPA), and in the case of any inconsistency the principles for
dealing with young people (s6) in the CCPA do not apply to bail. This is unlike
the position in Victoria where the Children, Youth and Families Act 2005, prevails
over the Bail Act. The VLRC has recommended that this position be given further
emphasis by including child-specific factors that bail decision-makers should
consider within the Victorian Bail Act (2007, see Rec 128: 156). In 2005 the
NSWLRC also recommended the development of specific bail criteria that
address the needs of young people [to] protect the young persons welfare and
safety if he or she is detained (para 10.31) and that these should incorporate the
principles set out in s6 of the CCPA (rec 10.2). The recent review of juvenile
justice in NSW recommended an amendment so that the CCPA would prevail
over the Bail Act (Noetics Solutions, 2010, Recs 6 & 7, and p. 70). However, the
government response to the review has not adopted that recommendation (NSW
Government, 2010).
We lack a detailed study of bail decision-making for young people but the available data provide strong grounds for concern. It is not possible to track longer-term
trends in bail decision-making for young people from the court statistics because of
changes in data sources from 2006. In 2008, 1,616 young people (16.0%) in the
NSW Childrens Courts were in custody at their final court appearance having been
refused bail, as compared with 1,094 (12.4%) in 2007 (NSW Bureau of Crime
Statistics and Research [BOCSAR], 2008, p. 9). This increase of 47.7% in young
people in custody at their final hearing from 2007 to 2008 is substantially greater
than the 14.4% increase in the number of young people with matters finalised in
the Childrens Courts over that period, and occurred at a time when police data
indicate that the numbers of juvenile offenders proceeded against for violent crime
and property crime were stable (BOCSAR, n.d.). In 2008, 137 (8.4%) young people
who were remanded in custody were acquitted (n = 99) or had all charges dismissed
without a hearing (n = 38) and a further 150 (9.3%) had all charges disposed of in
some other manner that did not result in a finding of guilt (BOCSAR, 2009, p. 62).
NSW Juvenile Justice5 (NSWJJ) data demonstrate a substantial increase in
admissions to Juvenile Justice Centres (JJCs; Figure 1); from 20032004 to 2007
2008 admissions increased by 29.8% for control orders, but by 56.0% for remand.
The number of young people admitted to JJCs on remand decreased somewhat in
200809 to 4,634 but remained at a historically high level that is more than 42%

489
JULIE STUBBS
FIGURE 1
Admissions to NSW Juvenile Justice Centres 20032004 to 20082009.
Source: Prepared from data included in NSW Dept of Juvenile Justice Annual Reports 200708, and 200809;
Kariong is excluded from all years.
higher than the number of remandees in 200304 (DJJ, 2008, p. 42; NSWJJ, 2009,
p. 52).
In mid-2007, most young people in custody on an average day were on control
orders, but by the end of 2007 the majority were remandees (DJJ, 2008). The
average number of young people in custody on remand was 227 in 200809 as
compared with 200 serving sentences (in 200708 there 210 on remand, and 180
sentenced; NSWJJ, 2009, p. 51).6 However, approximately 80% of young people on
remand do not receive a control order within 12 months (DJJ, 2008, p. 44; NSWJJ,
2009, p. 54).
Legislative changes, including the introduction of s22A and forms of proactive
policing are both factors that have been demonstrated to be contributing to the
increased numbers of young people in custody (see further below). Section 22A has
markedly increased the time young people spend in custody on remand (from 1015
days to nearly 35 days) and, in turn, on the number on remand at any one time
(Vignaendra, Moffatt, Weatherburn, & Heller, 2009, p. 3). Overcrowding in JJCs
has meant that young people have been held in even less desirable circumstances;
130 juveniles were held in police cells between July and October 2008 (Berdon,
2008). However, the political response to overcrowding has not been to reconsider
the application of restrictive bail laws to young people but to increase the capacity
of JJCs. In 2008 the then Minister for Juvenile Justice, Barbara Perry, announced
that three JJCs were to be expanded and a new JJC was to be commissioned due to
the increases in young people coming into detention as a result of targeted policing
activities and the strengthening of the states bail laws. She stated that the pincer
490

effect of strong bail laws and targeted policing is making a strong contribution to
improved community safety, 7 but offered no evidence to support that claim. The
2010 review of juvenile justice noted that such approaches were actually counterproductive and that holding children and young people on remand was associated
with reoffending (Noetic Solutions, 2010, p. 102).
Indigenous Young People

Data indicate that, notwithstanding efforts to reduce the overrepresentation of
Indigenous young people in custody and on remand such as the Aboriginal Overrepresentation Strategy of the NSW Department of Juvenile Justice (NSWDJJ,
2001), the NSW Aboriginal Justice Plan 20042015 (NSW Aboriginal Justice
Advisory Council [AJAC], 2005), and the Two Ways Working Together NSW
Aboriginal Affairs Plan 20032012 (NSW Department of Aboriginal Affairs
[DAA], n.d.; Cunneen, Luke, & Ralph, 2006, ch. 7), the number of Indigenous
young people being dealt with by NSWJJ has increased.
From 200203 to 200708, the number of Indigenous young people sentenced to
detention increased by 50.6%, and by 56.3% for those remanded in custody, but
there was a 3.1% reduction in the numbers attending youth conferences (Figure 2).
The increases from 200607 to 200708 were particularly pronounced and greater
for remands (24.8%) than for those sentenced to detention (21.4%). While from
200708 to 200809 there were substantial reductions in the numbers of Aboriginal
and Torres Strait Islander (ATSI) young people remanded in custody, or given a
custodial sentence, the numbers in each of these categories remained at historically
high levels. In 200809 ATSI young people constituted 35.8% of young people
remanded in custody (NSWJJ, 2009, p. 28). When Cunneen et al. analysed data
from January 2000 to June 2005, they found that young people aged less than 15
years of age accounted for much of the increase in the proportion of Indigenous
remandees; they noted that [t]his is a worrying trend given the longer term effects
of entrenching very young people in the detention centre population (2006, p.
129). The available data do not allow any assessment of whether this pattern has
continued. However, in his report on child protection services in NSW, the Hon.
James Wood noted that the difficulties in securing the release on bail of young
Aboriginals needed to be addressed as a matter of urgency (Wood, 2008, p. 562;
see also Public Interest Advocacy Centre, 2009).
Young Women
There has been little attention paid by researchers to bail and remand for young
women. Cunneen et al. (2006, p. 137) note the need for specific recognition of the
needs of Aboriginal young women, especially on remand. In 200809, young
women constituted 18.5% of those remanded in custody and 7.2% of those
sentenced to detention (NSWJJ, 2009, p. 27). The proportion of young women in
custody who are remandees is higher than for young men (cited by Wood, 2008, p.
558). A study by the YJC found that a higher proportion of young women than
young men were unable to meet conditions of bail that had been granted (Wong et
al., 2009, p. 13). Research suggests young women in custody commonly face
challenges that include histories of sexual and physical abuse, neglect and homeless-

491
JULIE STUBBS
FIGURE 2
Number of ATSI young people within NSW DJJ, 200203 to 200708
Source: Prepared from data included in NSW Dept of Juvenile Justice Annual Reports 2007-08, and 2008-09;
Kariong is excluded from all years.
ness (Noetic Solutions, 2010, p. 166); these factors may make returning them to
families or carers inappropriate and they may find it difficult to meet bail conditions
when there are few other accommodation options available to them.
Comparing NSW With Other Jurisdictions?8

The substantial growth in the number of young people held in custody on remand
has not been confined to NSW, nor is the growth in the numbers remanded in
custody confined to young people, although few studies have specifically considered
developments in remand for young people. According to data reported by the
Australian Institute of Health and Welfare (AIHW) (2009), over the period from
200405 to 200708 the total number of young people on remand on an average
day for all Australian jurisdictions, excluding NSW, increased by 63% (2009, p.
102).9 There were also marked variations between jurisdictions in the proportion of
detainees in juvenile facilities who were unsentenced. Based on DJJ/NSWJJ data
over this period, the average number of young people detained in juvenile facilities
in NSW (excluding Kariong) increased by 68% (from 125 to 210; DJJ/NSWJJ
annual reports 200405 to 200708). New South Wales also has an increasingly
disproportionate share of Australias unsentenced juvenile detainees. While NSW
has 32.5% of the Australian population aged 1017 years, its share of unsentenced
juvenile detainees in custody on an average day has consistently exceeded this
492

proportion, and in 20062007, the most recent year for which data are available,
the proportion of all unsentenced juvenile detainees who were held in NSW had
increased to 46.6%; by comparison NSW had 39% of Australias sentenced juvenile
detainees (AIHW, 2009, pp.102, 112). In 200607, the number of unsentenced
juvenile detainees on an average day in NSW was 266 as compared with 36 in
Victoria, the next most populous jurisdiction. Victoria has 24% of the youth
population, but only 6.3% of the unsentenced juvenile detainees (calculated on the
basis of data provided in AIHW, 2009, pp.102, 112).10
The low number of young people on remand in Victoria is particularly noteworthy, including a provision very similar to s 22A that limits the court in hearing
subsequent applications for bail. Some commentators see the fact that the Victorian
Children, Youth and Families Act 2005 prevails over the Bail Act as important in
keeping remand rates for young people in Victoria low (Noetic Solutions, 2010, p.
70). Making the Bail Act subject to child-specific legislation in this way is an
approach that I endorse, as discussed below; however, since NSW and Victoria
differ in many other important respects in criminal law and criminal justice
practices, and in the level of support provided to young people on bail within the
community, caution is needed in affording too much weight to this provision alone.
Several recent reports have recommended that NSW also look to other aspects of
Victorian law, policy and models of service provision to provide mechanisms to
avoid remanding young people in custody and to support them to meet bail conditions (Colvin, 2009), including through the provision of accommodation and bail
placement services (UnitingCare Burnside, 2009, p. 10; Wood, 2008) and
specialised Indigenous programs.
Obstacles to Young People Being Granted Bail

The absence of suitable accommodation (Boyle, 2009; NSWLRC, 2005), the
absence of a responsible adult or guardian and lack of access to after-hours support
services are significant obstacles to bail for young people (Denning-Cotter, 2008, p.
4). Homelessness has been said to be a de facto ground for bail refusal (NSWLRC,
2005, para 10.44). It is common for young people to be held in custody after being
granted bail subject to suitable accommodation, which is to be found by the
relevant government department (NSWJJ or, if the person is less than 16years,
Community Services NSW [DoCS]). However, Juvenile Justice has no legislative
obligation or common law duty to provide or to arrange accommodation for people
within this group and save in the case of those under the Ministers parental
responsibility, DoCS cannot be compelled to find accommodation for those within
this group (Wood, 2008, p. 559).
Data presented to a NSW parliamentary committee by the then Minister for
Juvenile Justice, the Hon. Graham West, indicates that during 200708, 85 young
people were taken into custody, accounting for 153 bail periods, after being granted
bail on condition that they reside as directed by DoCS; 32 (38%) were Indigenous.
In 88 instances they were held in custody for two or more days because the accommodation required by the court was not provided (NSW Parliament, 2008). A
recent study by the YJC in one Sydney court found that, of young people appearing
in the Childrens Court who were in custody, almost one in five were homeless and

493
JULIE STUBBS
a further 9% were in out-of-home care (Wong et al., 2009, p. 11). An Intensive Bail
Support Program was announced in NSW, targeting young offenders 10 to 14 years
of age and Indigenous young people (Denning-Cotter, 2008, p. 5) however, few
details of this program are known (Boyle, 2009). Following the recommendation of
the Wood Inquiry into Child Protection Services in NSW (2008), a 24-hour bail assistance line is to be introduced in NSW, to commence initially as a pilot program in
three areas (NSWJJ, 2009, pp. 21, 48); it is said to be based on the Victorian model
but no further details are available. A United Kingdon (UK) study found that lack
of suitable accommodation for young people was associated with unnecessary
remands but that an effective response must ensure that accommodation was
accompanied by forms of support to assist young people to comply with bail conditions (Hucklesby & Goodwin, 2004, p. 54). The absence of adequate accommodation and support for young people in the community requires an urgent response
(UnitingCare Burnside, 2009).
Blurring the Purposes of Bail

The traditional purposes of bail have been described as criminal process driven not
performance based (Freiberg & Morgan, 2004, p. 222). They include: the integrity
and credibility of the system (ensuring that the person appears at court, safety of
witnesses and fairness), the protection of the community and the best interests of
the defendant (King, Bamford, & Sarre, 2008). While there is no mandate for
pretrial punishment (Brignell, 2002; Freiberg & Morgan, 2004), empirical research
has found evidence of the use of bail conditions (Raine & Willson, 1996, p. 258)
and remand in custody for punitive purposes (King et al., 2008, p. 341). The Royal
Commission into Aboriginal Deaths in Custody (RCIADIC) concluded that both
the legislation and police procedures governing the granting of bail [should] be
structured to facilitate its main aim, being the early release of a person who is not
yet tried or convicted of an offence (Johnston, 1991).
A study of bail and remand for adults in South Australia and Victoria, noted
police strategic use of bail decision-making including the use of custodial remand as
an incapacitation strategy (King et al., 2008, 341342), and bail compliance checking (King et al., 2009). In South Australia they found evidence that operational
requirements and strategies influenced bail decision-makers, for instance in encouraging a shift by police towards arrest in cases where a summons would previously
have been used (King et al., 2009, p. 34), and in targeting people who fit within
strategic intelligence requirements for bail compliance checks that might result in
breaches and a remand in custody (2009, p. 35). By contrast, in Victoria they noted
the influence of therapeutic jurisprudence that encouraged the provision of support
services and promotes the use of bail in circumstances that otherwise would have
led to custodial remand (King et al., 2009, p. 35). These findings point to the
importance of organisational context and jurisdictional culture (King et al., 2009,
3435) in shaping practice beyond the legislative requirements, and give emphasis
to the need for research on police bail decision-making in NSW that includes a
focus on such issues.
Freiberg and Morgan (2004) have noted how the introduction of various forms
of pretrial intervention, such as Magistrates Early Referral Into Treatment (MERIT)
494

in NSW and its Victorian precursor CREDIT, blur the purposes of bail with
sentencing; under such schemes proceedings may be adjourned to allow an accused
person to participate in a program as a condition of bail and the program outcomes
are taken into account on sentencing.11 While the Bail Act (NSW) s36A (6) explicitly excludes young people under 18 years from referral to an intervention program
(as specified in the regulations) as a condition of bail, young people commonly have
multiple and intrusive bail conditions set that are unrelated to their offending.
What then are the objectives of the conditions and to what extent do they depart
from the traditional purposes of bail? King et al. (2008) ask what are the purposes
of remand?, but it is just as pertinent to ask what purposes the conditions imposed
on bail are intended to serve.
It could be argued that the reforms described above signal a marked departure
from the traditional purposes of bail. Those reforms that target repeat offenders blur
the purposes of bail with sentencing objectives by importing ideas about deterrence
and incapacitation as justifications for the refusal of bail. The limits on more than
one bail application, as expressed by the reforms to s22A, seem to prioritise bureaucratic efficiency, while also gesturing to what are assumed to be victim concerns,
over traditional considerations for bail decision-makers such as the presumption of
innocence and the rights of the accused (Booth & Townsley, 2009). Vignaendra et
al., (2009) tested the relationship between the number of young people remanded
in custody and the level of crime in NSW; they focused on property crime and
found no evidence that increasing the numbers of juveniles remanded in custody in
NSW is an effective means of reducing property crime.
Onerous or Inappropriate Bail Conditions

The number of young people held in custody in NSW who were granted bail, but
could not meet the conditions, almost doubled between 200304 and 200708
(NSWJJ, 2009, p. 44) and while the number declined somewhat in 200809, in that
year there were 855 young people held in custody after being granted bail, for an
average of 9 days (NSWJJ, 2009, p. 54). The failure to find appropriate accommodation was one key factor for many young people being held in custody after being
granted bail (Boyle, 2009; UnitingCare Burnside, 2009, p.3; Wong, Bailey, &
Kenny, 2009, p. 5). Research by the YJC found that young women, and those under
16 years, were less likely than others to be able to meet their bail conditions (Wong
et al., 2009, p. 17). The DJJ data also indicates that 1012-year-olds spend more
time in custody than other age groups before being able to meet bail conditions (as
cited by Wood, 2008, p. 558). We lack detailed research on the number and character of the bail conditions faced by those held in custody, or for those released to
conditional bail. However, we know that fewer than 2% of young people fail to
appear or have warrants issued (Noetic Solutions, 2010, p. 68).
There have been longstanding concerns about the imposition of inappropriately
onerous bail conditions on young people (NSWLRC, 2005, para 10.53 ff) despite
the provision that prohibits their use (Bail Act (NSW), (s37(2)). Law reform
commissions in NSW and Victoria cite evidence of harsh, inappropriate and unrealistic bail conditions imposed on young people that may be unrelated to the circumstances of the offending. Conditions are sometimes harsher than for adults and, at

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JULIE STUBBS
times, are more onerous than sentencing orders often without support to help the
young person comply (Denning-Cotter, 2008; VLRC, 2007, p. 158). They may
include geographical exclusions, curfews, residential conditions, bans on public
transport, and bans on drugs, alcohol or chroming (VLRC, 2007, p. 157) and
nonassociation provisions (NSWLRC, 2005, para 10.54, 10.68). The YJC study
found that, among young people who were granted bail, 68% had a curfew imposed
as a condition of bail and 58% has a condition to reside as directed; 67% of the
young people had three or more bail conditions (Wong et al., 2009, p. 14). The
authors noted that while some conditions appeared to be motivated by welfare
concerns, they were typically imposed with little or no consultation with families
and little assessment of the young person (Wong et al., 2009, p. 15).
Bail conditions commonly provide justification for police surveillance of noncriminal behaviours, and even intrusion into the ordinary domestic routines of young
people. Young people often face numerous bail conditions. A South Australian study
found an average of almost seven conditions and that many involved quite intensive
and micro-levels of control (Mather, 2007/8, p. 687). Such conditions may result in
young people being held in custody because they cannot meet bail, and or may set
them up to fail when they breach inappropriate conditions. The NSWLRC cites the
concerns of a 1992 NSW Parliamentary Committee which noted 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 (Legislative
Council Standing Committee on Social Issues, as cited by NSWLRC, 2005, para
10.54). It is telling that the Childrens Court submission to the NSWLRC inquiry
into young offenders recommended that bail conditions should be reasonable and are
not excessive or setting the young person up to fail. 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 presentence social control (NSWLRC, 2005, para 10.57).
Evidence presented to a more recent parliamentary committee by a senior officer
of DJJ confirms that this continues to be a problem: often the bail conditions are
very confusing and there are quite a lot of them at times, and we [DJJ] cannot meet
them (NSW Parliament, 2008, 910). The VLRC noted similar concerns and cited
submissions arguing that the greater the number of conditions, the more likely the
young person was to breach the order (2007, p. 157; see also Wong et al., 2009, p.
15). The VLRC and the NSWLRC have recommended that bail conditions be no
more onerous than necessary and that they should relate to the purposes of bail
that is to secure the young persons attendance at court and ensure that they do not
offend while on bail (NSWLRC, 2005, para 10.77; VLRC, 2007, p. 156). None of
the NSWLRC recommendations with respect to young people and bail have been
acted on to date.
Tighter Enforcement of Bail Conditions, Breaches

and Performance Measures
Breach of bail is not an offence. Rather, s50 of the Bail Act provides for the person
to be brought before the court to reconsider bail. However, there is evidence of
496

police targeting of bail compliance and using this as a performance measure. For
instance, police annual reports highlight specific operations to target breach of bail
and the use by some commands of nightly bail compliance checks, particularly on
juveniles (NSW Police Force, 2008, p. 15). Data indicate a 250% increase in
arrests for outstanding warrants and/or breach of bail from 200304 to 200708, but
the statistics reported do not differentiate between young people and adults. A
media release from the NSW Police Minister in November 2009 confirms that
proactive policing using bail compliance checks continues to be endorsed and used
as a measure of police performance. The three-day Operation Avert 4, focused on
warrant checks and bail compliance; it involved hundreds of frontline officers who
were not sitting on their hands waiting for crime to come to them theyre well
and truly on the front foot 111 people were arrested for breach of bail and
charged with 128 offences (Daley, 2009, p. 1). No data were reported on the
number of compliance checks carried out in order to yield those arrests, and since
breach of bail is not an offence, it remains unclear what proportion of those people
arrested for breach of bail were charged with offences; no information was provided
on the number of juveniles picked up during the operation.
While bail compliance is a legitimate concern for police and courts, the imposition of inappropriate bail conditions carries the likelihood that breaches may be
difficult to avoid, and may generate harsh consequences for noncriminal behaviour.
Enforcement activity such as nightly bail compliance checks may be excessive,
oppressive and a questionable use of police resources, especially when bail conditions are unrelated to the circumstances of the alleged offence (Raine & Willson,
1996). A review has found that police enforcement activity is partly responsible for
the substantial growth in the number of young people remanded in custody (Noetic
Solutions, 2010). In research by BOCSAR, two-thirds of the sample of young
people who were arrested for breach of bail had not reoffended, but 71% of nonoffenders were remanded in custody (Vignaendra et al., 2009). Among the sample of
young people remanded in custody following a breach of bail (n = 50), the most
frequently listed breaches were: failure to comply with a curfew (35), not in the
company of a parent (29), associated with a co-offender (7), found at a banned
location (5), did not report to police (5), did not reside at address as directed (3),
did not follow the directions of a parent or guardian (3), consumed alcohol (2)
(Vignaendra et al., 2009, p. 3). Most conditions on this list were designated by the
VLRC (2007, p. 157) as harsh or inappropriate bail conditions for young people.
A recent study by the YJC in Sydney also found that, among young people
appearing before court from custody following the breach of bail, the most common
condition breached was a curfew (Wong et al., 2009, p. 12). The study also raised
concerns about so-called technical breaches, that is, when a young person is
arrested for a breach of a bail condition/s which in of itself, is not a new offence,
does not harm the young person, another person or the community (Wong et al.,
2009, p. 18). Parliamentarian Ms Lee Rhiannon raised concerns about inappropriate enforcement of bail conditions during deliberations of an estimates committee
of the NSW Parliament and cited the following case as an illustration:
a young girl who was arrested for breaching a bail condition which required her to
be home by 9.00 p.m. She was arrested as she was making her way home when the

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JULIE STUBBS
train pulled in at five minutes past nine. She spent at least a month in custody, even
though when convicted she did not receive a custodial sentence for the shoplifting
charge. She also gave up her schooling after these events. Minister, what are your
thoughts on cases such as this? Surely you would believe that that is not a successful
outcome of the Bail Act? (Rhiannon, 2008, p. 10).
As Mather has noted, rigid enforcement of bail conditions risks the criminalisation
of non-criminal behaviour and has the potential to amplify deviant behaviour
and intensify measures aimed at their control (2007, p. 688). Cunneen et al. also
found that conditions such as curfews and restrictions on movement (for example,
not to enter a central business district) meant that [Indigenous] young people were
breached and brought into the system early and unnecessarily (2006, p. 126).
While police enforcement activity is clearly significant in breaching young
people who fail to comply with bail, we also need to examine the role of magistrates
(and judges) in dealing with breaches that do not involve reoffending. A person
arrested and taken before the court for breaching bail may be released on their original bail, refused bail or a new determination of bail may be made (Bail Act s50(2)
and (3)). That almost three-quarters of young people who have breached bail but
have not reoffended were remanded in custody is of concern. The lack of accommodation and support for young people on bail are likely to be important factors
shaping bail decisions that are taken following a breach; where the original conditions of bail are seen as having been ineffective, magistrates or judges may see few
other avenues available to support a young person to comply with bail in the
community. However, further research is needed to determine the reasons for this
apparently high rate of bail refusal.
The State Plan and the Avoidance of Risk

Perhaps we should not be surprised at these developments given that the NSW
State Plan (2006), which sets priorities and specific targets for the next decade to be
reviewed every three years, seems to invite such measures. The plan claims to be
keeping people safe in part via tougher bail laws aimed at repeat offenders (NSW
Government, 2006, p. 25). The plan blurs the boundaries between bail and
sentencing, and between risk and need. For instance, it argues that [t]o reduce reoffending we are: Extending community monitoring of those at high risk of reoffending. For example, more home random visits, and electronic monitoring 24
hours a day seven days a week for very high risk individuals (p. 30) but does not
define high risk nor does it limit these tactics to postsentencing. It endorses intervening early with young offenders, since for a young person who
leaves custody and is not supported, and the circumstances that led to their offending have not altered (such as homelessness, alcohol abuse, family dysfunction) the risk
of re-offending is extremely high. Risk assessment tools can help us focus resources more
effectively on those at highest risk of becoming prolific offenders. (p. 31)
The plan does not identify what type of early intervention might be supportive for
young people. The unquestioning acceptance of risk assessment tools (Priday, 2006)
and the blurring of the young person apparently in need of support with the highly
risky invites high levels of surveillance and control in the lives of young people,
498

rather than effective support to redress the problems that they might face. The 2009
update of the State Plan emphasises that great progress has been made in accordance with the plan, and commits to greater use of early intervention to reduce
juvenile crime and reoffending, but little detail is offered regarding the nature of
early intervention programs (NSW Government, 2009, p. 57). While the updated
plan does not give the same emphasis to bail compliance checking as the previous
plan, as noted above, the Police Ministers media release suggests that this continues
to be a tactic endorsed at high levels.
A number of commentators on bail and remand have noted that recent developments in several jurisdictions are consistent with a more risk-averse approach by
bail decision-makers (Hucklesby & Sarre, 2009, p. 1; see also Bargen, 2010). For
instance, Canadian researchers have found that increases in the numbers of people
detained by police for bail hearings, and the use of more stringent bail conditions
(Myers, 2009, p. 127; see also Webster, Doob, & Myers, 2009) reflect an increasing
unwillingness by bail decision-makers to take responsibility for releasing people on
bail. Myers describes primary risk, that is, the risk posed by the accused person if
released into the community, and secondary risk, that is the risk to the reputation
of criminal justice system if an accused persons offends while on bail (2009, p. 128)
and found that this secondary risk has contaminated the bail process (p. 146). The
former is typically a legitimate concern within bail legislation, but within a culture
of risk management, is interpreted and acted on in a way that privileges organisational legitimacy over other ends (Myers, 2009, p. 129), 12 while failing to attend to
other risks, such as that remand in custody may have damaging consequences that
contribute to recidivism and social dislocation (see also Bargen, 2010).
Conclusion
As Lucia Zedner reminds us, pre-trial detention has long been recognised as
troubling
for those remanded awaiting trial the prison is intended not to punish but to
contain That it inevitably imposes punitive conditions not justified by this carceral
requirement is a continuing source of political disquiet, and the use of prison rather
than some other lesser form of restraint, demands special justification. (2004, p. 247)
However, NSW political leaders no longer show disquiet about pretrial detention,
even for young people. The NSW Bail Act has been inappropriate for young people
from its inception. Deficiencies in the legislation have been compounded by
repeated, politically driven reforms to the Act, a blurring of our understanding of
the purposes of bail with those of sentencing, the blurring of needs and risks, and a
State Plan that seems to privilege compliance checking and measurable outcomes,
such as breaches, over supporting young people to remain on bail in the community.
The NSW governments response to the review of juvenile justice commissioned by
the former Minister of Juvenile Justice has been largely one of business as usual,
failing to adopt any of the recommendations with respect to bail and instead offering a commitment to an ongoing review of bail (NSW Government, 2010, p. 10).
King et al. (2008) argue that traditional purposes of bail (ensuring the integrity
of the criminal justice system, protection of the community, and the best interests of

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JULIE STUBBS
defendants) are at times being subverted by bail decision-makers, especially where

intelligence-led policing strategies encourage the use of custodial remand as an
incapacitation strategy (p. 341342). In NSW the use of police performance
indicators such as bail compliance checks may be consistent with this analysis since
they appear to emphasise breaching young people ahead of broader objectives of
bail legislation.
We still need detailed research into bail decision-making for young people. We
have long recognised that, as with other areas of law, bail law shapes the practices of
decision-makers but does not fully determine the outcomes (Hucklesby, 2001;
Stubbs, 1984). Several of the studies reviewed above point to the importance of
organisational and cultural factors that shape the interpretation and implementation given to law reforms, and thus we need to extend our analysis beyond the texts
of law and policy. It is likely that, as in other areas of criminal justice, a culture of
risk aversion has developed among bail decision-makers, as the international literature suggests. If so, in emphasising one set of risks (unnecessary bail applications,
failure to appear in court, breaching bail conditions or offending on bail) they may
fail to give due regard to risks arising from remand in custody, such as in exacerbating factors that contribute to offending by young people. We also need to understand more fully whether what seems to be a relatively recent shift in bail
decision-making for young people reflects a departure from the principles of the
YOA, with its strong emphasis on diversion.
While the Bail Act in its current form is inadequate to safeguard the interests of
young people, in the short term one readily achievable measure would be to legislate to make the CCPA prevail over the Bail Act. We also need to ensure that future
criminal justice reforms give specific attention to the likely consequences for young
people. However, since law shapes but does not fully determine bail outcomes law
reform is not in itself sufficient. We also need to adopt performance measures that
are consistent with and likely to encourage positive outcomes, such as measuring
the numbers of young people who are successfully supported to comply with appropriate conditions of bail within the community. And urgent action is required to
provide more accommodation and enhanced support for young people in the
community while on bail.
Endnotes
1
2
3
4
5
500
Bail Amendment (Repeat Offenders) Act 2002 No 34.

Bail Amendment Act 2007 No 55.
Letter from Hugh Macken to the NSW Attorney General, file on copy with the author.
Courts and Crimes Legislation Amendment Bill 2009.
Following a recent restructure, the Department of Juvenile Justice (DJJ) is now called NSW
Juvenile Justice (NSWJJ), the Department of Community Services (DoCS) is now called
Community Services NSW (CSNSW) and the Department of Corrective Services is now
called Corrective Services NSW (CCNSW); in this article the new nomenclature has been
adopted except where citing from earlier works.
Vignaendra, Moffatt, Weatherburn and Heller (2009, p. 1) report that from 2007 to 2008 the
average number of remandees increased by 32% from 181 to 239 per day; these figures are
based on a calendar year and those reported in the text sourced from DJJ are based on a financial year .

7
8
http://www.pennysharpe.com/new_nsw_juvenile_justice_centre_announced
A comparison of NSW with other jurisdictions is not straightforward. Two recent national
reports (AIHW, 2009; Taylor, 2009) use different measures and counting rules; the former
includes young people held in juvenile detention facilities and may include those aged 18 years
and older, but excludes juveniles held in the Kariong facility in NSW, which is administered
by the Department of Corrective Services, and does not report NSW data for the most recent
years because it was not supplied by NSWJJ; the latter presents data on young people aged 10
17 years held in detention, including from NSW and within the Kariong facility in NSW, but
not in adult prisons. JJNSW does report data for 20072008 and 20082009 in its annual
reports but excludes Kariong, and the counting rules used do not seem to be consistent with
those used in the AIHW reports.
9 Taylor reports trends based on the percentage of all detainees aged 1017 years who were
remanded in custody, and not the number of young people; she finds that for 2002 the percentage for Australia was approximately 50% but that from 2004 that has begun to show an upward
trend (2009, p. 39).
10 Since Victoria has a particularly high number of people aged 18 years and over in juvenile
detention facilities, this comparison may understate the differences between the two states
with respect to offenders aged less than 18 years. Taylors data based on 10- to 17-year-olds
shows that during 20062007 the average number of unsentenced detainees in NSW ranged
from 131 to 148 as compared with Victoria which ranged from 21 to 26 (Taylor, 2009, p. 40).
11 CREDIT has been adapted to become a bail support scheme in Victoria that offers services to
adults and young people and includes in its aims successful completion of bail by defendants
who would otherwise be remanded in custody (Magistrates Court of Victoria, n.d.).
12 Despite several attempts to structure bail decision-making using information tools (VERA
Institute of Justice, 2004), including a failed attempt in NSW (Stubbs, 1984, p. 91) it remains
the case that judgments about risk in bail decision-making are likely to be made on subjective
factors and assignments of cultural meaning to various personal factors (Myers, 2009, pp. 130
131; although see Hucklesby, 2009 on the reintroduction of modified bail information schemes
in the UK). That is not to suggest the risk assessment tools hold the answer to the uncertainty
inherent in bail decision-making.
Author note
This paper was prepared while employed at the University of Sydney.
Acknowledgments
I acknowledge the research assistance of Amanda Porter, and thank Jenny Bargen
and Elaine Fishwick for their contributions to discussions about justice for young
people. I also thank the anonymous reviewers for their comments and suggestions.
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Australian & New Zealand Journal of

Re-examining Bail and Remand for Young People in NSW

Australian and New Zealand Society of Criminology

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Re-examining Bail and Remand

his article examines the substantial growth in the number of young

Keywords: bail, remand, young people

The Politics of Bail

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

Bail and Remand for Young People: The Current Picture

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

Indigenous Young People

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

Comparing NSW With Other Jurisdictions?8

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

Obstacles to Young People Being Granted Bail

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

Blurring the Purposes of Bail

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

Onerous or Inappropriate Bail Conditions

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

Tighter Enforcement of Bail Conditions, Breaches

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

The State Plan and the Avoidance of Risk

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

defendants) are at times being subverted by bail decision-makers, especially where

Bail Amendment (Repeat Offenders) Act 2002 No 34.

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

RE-EXAMINING BAIL AND REMAND FOR YOUNG PEOPLE IN NSW

THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY

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