Bail for Young Repeat Offenders (NSW)
In New South Wales, a young person aged between 14 and 18 who commits certain offences while on bail must satisfy a very high test to be re-released on bail. This page outlines the law surrounding bail for young repeat offenders in New South Wales.
Legislation
The new test is contained in section 22C of the Bail Act 2013.
Under that section, a person who is aged between 14 and 18, and who is alleged to have committed a serious motor theft offence or a serious breaking and entering offence while on bail, will not be granted bail unless the court has ‘a high degree of confidence’ that they will not commit a serious indictable offence while on bail.
This is a very high test to fulfill.
In the past, a young person applying for bail had to satisfy the court only that, if released, there would not be an unacceptable risk that they would:
- fail to attend court when required to do so
- commit a serious offence
- endanger a person
- interfere with witnesses or evidence.
Children who apply for bail on serious offences are not required to ‘show cause’ why they should be released, as adults are.
However, with the new test contained in section 22C, a young repeat offender will now only receive bail if the court has a positive belief that they will not commit a serious offence if released.
A positive belief is much harder to establish than the absence of an unacceptable risk.
Which offences do the new laws apply to?
The following offences are covered by the new laws:
- Taking a motor vehicle or vessel with an occupant on board (section 154C, Crimes Act 1900)
- Stealing a motor vehicle, vessel or trailer (section 154F, Crimes Act 1900)
- Any breaking and entering offence that carries maximum penalty of more than 14 years imprisonment (Part 4, Division 4 of the Crimes Act 1900).
Interpretation by courts
The section 22C test has been analysed in a number of court decision since its introduction.
Judges have observed that the ‘high degree of confidence’ test is novel in criminal law and requires courts to evaluate the probability of future offending. The test does not require the court to be 100% certain that the young person will not commit a serious offence if released. The court must have a higher degree of confidence, but not absolute certainty.
The section 22C test must be considered after the court has considered bail risks, and whether any concerns about releasing the young person could be allayed by imposing bail conditions. After these matters have been considered, the court must turn its mind to whether it has a ‘higher degree of confidence’ that the young person will not commit a serious offence.
The prosecution bears the burden of establishing that a young person should not be granted bail under section 22C.
When a court is deciding whether a child should receive bail under section 22C, it should consider the principles set out in section 6 of the Children (Criminal Proceedings) Act 1987. These include principles such as The principal that it is desirable for a child to reside at their home, and the principle that children who commit offences should be integrated back into the community.
Community responses
The government claims the changes are necessary and are targeted to specific young people who are repeatedly charged with particular types of serious offences. However, the tougher bail laws have been strongly criticised by the legal profession, indigenous communities, and the public generally.
Criticism of the changes have included that they were passed in a hurry and without adequate community consultation; that they are punitive when what is needed is a greater focus on early intervention programs and community support; that they will disproportionately impact indigenous youth; and that they will lead to higher rates of reoffending and further entrench systemic disadvantage.
History of the section 22C test
The New South Wales government first introduced the test under section 22C in April 2024. It was originally to be trialled for a period of only 12 months. However, the government extended the sunset provision for another three years.
The tougher bail laws have led to many more young people being remanded in New South Wales, since the changes were introduced in 2024.
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Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.