Thank you for the opportunity to comment on the review of the Bail Act 1978 (NSW) and Bail Bill 2010.

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1 Ms Penny Musgrave Director Criminal Law Review Attorney Generalʼs Department GPO Box 6 SYDNEY NSW 2001 Dear Ms Penny Musgrave Re: Review of the Bail Act 1978 (NSW) and Bail Bill 2010 Thank you for the opportunity to comment on the review of the Bail Act 1978 (NSW) and Bail Bill The Association of Childrenʼs Welfare Agencies (ACWA) is the NSW peak body representing non-government organisations who provide direct services to vulnerable children, young people and their families, particularly children who come in contact with the child protection system and children who access OOHC services. The issue of juvenile justice is therefore of concern to ACWAʼs work. ACWAʼs comments on the Bail Act 1978 (NSW) relate to juvenile justice and reflect support for the need to reduce the number of young people held on remand. In relation to review of the Bail Act 1978 (NSW) and Bail Bill 2010 ACWAʼs submission supports recommendations included in the reports, Releasing the Pressure on Remand (UnitingCare Burnside 2009) and Bail Me Out (Youth Justice Coalition 2009) to: 1. Exempt young people from Section 22A of the Bail Act Amend Sections 50 and 51 of the Bail Act 1978 (NSW), obligating police to consider alternatives to arrest should a young person breach bail or fail to appear in Court while on bail Should you require further information, please contact Prasheela Karan, Policy Officer, on or prasheela@acwa.asn.au Yours sincerely, Sylvia Ghaly Director of Policy and Membership 27 October

2 Introduction ACWAʼs comments on the Bail Act 1978 (NSW) relate to juvenile justice and reflect support for the need to reduce the number of young people held on remand. ACWA officially supports a position paper by UnitingCare Burnside (2009), Releasing the Pressure on Remand: Bail support solutions for children and young people in NSW, which questions the increase in numbers of young people held on remand. Importantly, the position paper explores factors that have contributed to the significant increase in the juvenile remand population in NSW. Increasing numbers of young people held on remand The juvenile remand population in NSW has grown by 32 per cent, from an average of 181 per day to 239 per day between 2007 and 2008 (Vignaendra et al 2009). Of concern to ACWA is the evidence pointing to the link between disadvantage, children and young people in out of home care and juvenile justice. As highlighted in a background paper by UnitingCare Burnside (2009), Locked into Remand: Children and young people in New South Wales, 30 percent of juvenile offenders were in the care, or had been in the care of the Minister for Community Services (in NSW Auditor-General 2007). A report by the NSW Bureau of Crime Statistics and Research (Vignaendra et al 2009) provides evidence that (1) the introduction of Section 22A and (2) breach of bail conditions have significantly influenced the increasing numbers of young people held on remand in NSW. (1) Introduction of Section 22A The 2007 amendment of the Bail Act 1978 saw the introduction of Section 22A. The introduction of Section 22A in 2007 prevents young people from making a second application for bail unless the young person did not have legal representation at the time of making the first application, or if new information or facts have arisen. The NSW Bureau of Crime Statistics and Research report which involves a study of 102 juveniles in NSW, shows that as a result of being prevented from making a second application for bail young people are spending a longer amount of time in remand (Vignaendra et al 2009). As a common bail condition young people are directed to ʻreside as directed by the Department of Community Services or Department of Juvenile Justiceʼ, or to ʻobey reasonable directions of carerʼ (Youth Justice Coalition 2010). In the case that a young person is homeless or cannot return home, the young person is forced to remain in custody until secure housing has been sourced. A major issue, however, that has been noted by Justice Wood in the Inquiry into Child Protection in NSW (2008) is that there is no legislative obligation compelling the Department of Juvenile Justice to provide bail accommodation. In addition, according to the NSW 2

3 Ombdusman (2010), it appears that, unless a young person is under the Ministerʼs parental responsibility, Community Services cannot be compelled to source and provide accommodation. It therefore seems unfair that a young person is found to have breached bail by being homelessness as neither Community Services nor Juvenile Justice may be compelled to provide the necessary housing. As Section 22A prevents a young person from making a second application (unless under the circumstances mentioned above) the opportunity to gauge the reason for a young person being held on remand because of lack of suitable housing and support services no longer exists (Youth Justice Commission 2010). (2) Breach of bail conditions Breaching of bail conditions has also contributed to the increasing numbers of young people held on remand. The position paper by Uniting Care Burnside (2009) makes an important point, stating that severe bail restrictions could result in the young personʼs non-offending behaviour being criminalised. This is evident as, in the majority of cases, young people have breached bail when they have either failed to comply with a curfew order or have not stayed in the company of their parents (Vignaendra et al 2009). Important considerations in reviewing the Bail Act 1978 (NSW) In exploring the increasing numbers of young people held on remand, ACWA believes that is important to consider: 1. The risk of young people absconding while on bail 2. The link between remand and recidivism 3. The number of young people on remand receiving a custodial sentence 1. The risk of young people absconding while on bail ACWA believes that it is important to consider the rate of young people absconding while on bail. As the Bail Me Out study points out, the statistics show that the risk of young people in NSW absconding is minimal 87 percent of young people were either granted bail or had bail dispensed with; of these young people fewer than 2 percent had failed to appear at court or had arrest warrants issued in the same year (in Dept of Justice and Attorney General NSW report 2008). It is therefore clear that the threat of young people committing other crimes or not appearing at court is quite low. 2. The link between remand and recidivism 3

4 Of concern also is the link between remand and recidivism. The position paper by UnitingCare Burnside (2009) points to evidence that holding young people on remand is the most significant factor that could result in recidivism (in Holman & Ziedenberg 2006). The Bail Me Out study by the Youth Justice Coalition (2010) refers to the NSW Auditor-Generalʼs report, Addressing the Needs of Young Offenders (2007) which found that the rate of re-offending among young people depends on the response to the offence. For example, should there be a failure to address the young personʼs needs, the risk of re-offending is high, whereas there is a reduced chance of re-offending for youth who receive cautions or participate in youth justice conferences. Formulating alternative options for juvenile offenders that have the potential to steer them in a positive direction would therefore appear to be a worthwhile strategy achieving better outcomes for young people. 3. The number of young people on remand that receive a custodial sentence In reviewing the Bail Act 1978 (NSW) ACWA believes that it is important to consider that the majority of young people held on remand are spending time unnecessarily in detention centres. Findings from the Special Commission of Inquiry into Child Protection Services in NSW (2009) show that only 16 per cent of children and young people on remand will receive a custodial penalty at sentencing. As a result, unnecessary disruption is caused to the lives of young people and their families, including, for example, school attendance. Recommendations and Conclusion Recognising the need to reduce the number of young people held on remand, ACWA supports the following recommendations: 1. Exempting young people from Section 22A of the Bail Act 1978 (NSW) (also called for in the position paper, ʻReleasing the Pressure on Remandʼ by UnitingCare Burnside (2009) and ʻBail Me Outʼ by Youth Justice Coalition (2010)) 2. Amending Sections 50 and 51 of the Bail Act 1978 (NSW), obligating police to consider alternatives to arrest should a young person breach bail or fail to appear in Court while on bail (also called for in the report, ʻBail Me Outʼ by Youth Justice Coalition (2010)) In the long run, outcomes for young people are unlikely to improve with the implementation of Section 22A and restrictive bail conditions that have the potential to criminalise non-offending behaviour. Evidence shows that holding young people on remand increases the odds of young people re-offending, with potentially life-long negative outcomes. 4

5 Rather than resorting to arrest and remand, addressing the needs of the young person may well be a more effective strategy in preventing further offences from being committed. Clearly, funding early intervention and diversional programs for vulnerable youth and families and investing in youth development, outreach and activities would reduce the number of juvenile offenders. At the stage however, when a young person has offended and engaged with the juvenile justice system, there should be alternatives to arrest and remand that could potentially steer the young person in a more positive direction. As mentioned above, juvenile offenders that are presented with the opportunity to attend youth justice conferences experience a lower risk of re-offending. This is perhaps because juvenile offenders may be exposed to better influences and paths in life through their participation in such conferences. Another example of an alternative response is mentoring programs led by police. Mentoring programs led by police was provided as an example of an alternative response to arrest by the NSW Ombudsman in its submission to the Inquiry into the high level of involvement of Indigenous juveniles and young adults in the criminal justice system (2010). The NSW Ombudsman in the submission states that it has received very positive feedback from Aboriginal communities about the substantial benefits of police-led initiatives, such as mentoring programs, for young people. The NSW Ombudsman states however, that due to a lack of recurrent funding, the programs are difficult to sustain. ACWA supports that recurrent funding for the development and implementation of such programs would provide options for police and other stakeholders to direct juvenile offenders in a new direction rather than arrest and remand. Such alternatives would have the potential to improve the lifelong outcomes for young people, exposing them to new paths and better influences. In conclusion ACWA advocates that the Bail Act 1978 (NSW) be amended to exempt young people from Section 22A and to amend Section 50 and 51 to obligate police to consider alternatives to arrest should a young person breach bail or fail to appear in Court while on bail. 5

6 References NSW Ombudsman 2010, Inquiry into the high level of involvement of Indigenous juveniles and young adults in the criminal justice system, NSW Ombudsman, Sydney. Special Commission of Inquiry into Child Protection Services in NSW 2008, Report of the Special Commission of Inquiry into Child Protection Services in NSW (Hon James Wood), State of NSW through the Special Commission of Inquiry into Child Protection Services in NSW, Sydney UnitingCare Burnside 2009 Locked into remand: Children and young people on remand in New South Wales, Background paper UnitingCare Burnside, 2009 Releasing the pressure on remand: Bail support solutions for children and young people in NSW (Position paper resulting from a Roundtable convened by NCOSS), July 2009 Vignanendra, S., Moffat, S., Weatherburn, D., & Heller, E Recent trends in legal proceedings for breach of bail, juvenile remand and crime, Crime and Justice Bulletin, no. 128, NSW Bureau of Crime and Statistics and Research, Sydney, viewed October 2010 < 8> Youth Justice Coalition 2010, Bail Me Out: NSW Young People and Bail, Youth Justice Coalition, Marrickville 6