Youth Bail and the 'High Degree of Confidence' Test (NSW)

On 22 March 2024, the New South Wales government passed changes to the Bail Act 2013 and to the Crimes Act 1900. The Bail and Crimes Amendment Act 2024 will make it more difficult for young people charged with certain offences to obtain bail. It also introduced a new ‘posting and boasting’ offence. This page outlines the introduction of the ‘high degree of confidence’ test and other changes.

Introduction of ‘high degree of confidence’ test

Under the new laws, when a young person in New South Wales who is between 14 and 18 is charged with a serious break and enter offence or a serious motor vehicle offence, they must not be granted bail unless the bail authority has a high degree of confidence that they will not commit a serious indictable offence if released on bail.

Introduction of ‘performance crime’ offence

A new offence has also been introduced into the Crimes Act 1900.

The new crime consists of disseminating material to advertise that one has been involved in the commission of a break and enter offence or a motor vehicle offence or in an act that constitutes such an offence.

The ‘post and boast’ offence is punishable by a maximum penalty of the total of:

• the maximum penalty that applies for the offence; and
• two years imprisonment.

Sunset clause for youth bail laws

The legislation will be in force for a period of 12 months only. The government has explained that the measure is designed as a ‘circuit breaker’ to address repeat offending by young people while on bail.

Why have the changes been introduced?

The New South Wales government says the new laws will promote safety and wellbeing, particularly in rural areas which have higher crime rates than urban areas. They consist of two targeted measures, designed to ensure that young people who are repeat offenders are not released on bail

It also claims that increasing in the rates of break and enter and motor vehicle offending have been driven by young offenders, with many offences being committed while the young person was on bail.

The government has explained the introduction of the new offence, saying that it is becoming increasingly common for young people to post about their offending on social media in a way that may encourage others to engage in such offending. This is particularly common in relation to motor vehicle and break and enter offending.

Community reactions to the changes

The changes were vigorously opposed by the legal profession including the Law Society, Legal Aid and many community legal centres. The laws were widely believed to be contrary to the interests of vulnerable young people, particularly Indigenous youth, and likely to worsen the factors that give rise to offending by young people in these demographics in the first place.

Other criticisms of the changes are that they are inconsistent with the Convention on the Rights of the Child and Closing the Gap targets, and likely to further increase the rate of youth incarceration, and in turn to more repeat offending.

It has also been argued that the new test for bail in the case of certain youth offenders represents a harsher bail test that the bail tests that are applied to adults.

Youth crime

Across Australia, youth crime and the detention of children has been of concern in recent years following controversy around the conditions in youth detention centres, particularly the Northern Territory’s Don Dale. The age of criminal liability in Australia has historically been 10 in all states and territories, which is lower than the international average and pressure has been rising for this age to be raised.

In the last year, several jurisdictions have raised the age of criminal liability or announced their intention to do so. In the NT, the age of criminal liability now stands at 12. Tasmania has committed to raising the age to 14 and Queensland has given its ‘in principle’ support to raising the age to 12. The New South Wales government has ruled out raising the age of criminal liability.

In spite of widespread concerns about how young offenders are treated, several states have announced their intention to tighten bail laws for young people. Victoria recently reneged on its commitment to introduce a presumption in favour of bail for young people. In 2023,  Queensland strengthened its youth bail laws, making breach of bail a criminal offence and removing the requirement for police to consider alternatives to arrest when a young person breaches the conditions of their bail.

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