BAIL - the new challenge for young people?

1. BAIL - the new challenge for young people? CCLCG 2008 State Conference Youth Justice session - presented by Katrina Wong, Marrickville Legal Centre

2. What are the issues? • Young people being granted bail but who are detained in custody due to homelessness; accommodation not being available; lack of DoCS assistance • Amendments to the Bail Act 1978 which has seen an increase of young people in custody

3. What is Bail? • A grant of liberty to a person on the undertaking that they will appear at court at a later date • Conditions can be attached to ensure that a person returns to court and to ensure that they do not engage in further offending (e.g. non association and place restrictions)

4. Bail in the Children’s Court • More welfare approach adopted by Magistrates • Conditions are more onerous • Curfew • Accept supervision of the Department of Juvenile Justice • Reside as directed

5. “Reside as directed” • Link between children and young people in the care system and juvenile justice • A significant number of YP cannot return home • YP not assisted by DoCS • Magistrates therefore compelled to impose a condition to “reside as directed by DoCS”

6. What does a ‘reside as directed mean?’ • Unless suitable accommodation is found, the YP stays in custody • Role of DoCS - the condition does not legally oblige DoCS to issue a direction. • Case: Minister for Community Services & Anor v Children’s Court of NSW & 3 Ors [2005] NSWSC 154 • Courts prefer YP in custody than homeless

7. Case studies … • Young Aboriginal girl was granted bail, but due to no appropriate accommodation being available, was detained at Yasmar for a period of four weeks before temporary accommodation was found • YP had repeatedly breached his bail by absconding from his residence. YP’s parents were alcoholics and YP did not want to return home. Notifications were made to DoCS, but no assistance was forthcoming. The Magistrate was so frustrated with lack of DoCS’ cooperation, they directed a DoCS officer from the local office appear in court

8. Implications for YP … • YP deprived of liberty, merely to satisfy welfare needs • Offends juvenile justice principles and international instruments - detention as a last resort • Likely to further disadvantage certain groups • Detention shown to increase re-offending

9. Amendments to the Bail Act • Section 22A of the Bail Act 1978 was introduced in December 2007 • Previously, could make unlimited bail applications (as long as not vexatious/frivolous) • Now, no longer entitled to make more than one application unless person was not legally represented; or new facts/circumstances have arisen since previous application

10. What does this mean for YP? • YP are generally more likely to breach their bail due to the type of conditions imposed • Extra police targeting YP -meaning YP are being arrested for trivial breaches of bail • Numbers in custody have increased significantly in the last few months • YP being transferred from juvenile detention to the correctional system to make way for the increase

11. Where to from here? • Recent Special Commission into Child Protection Services in NSW • Advocacy from the sector • Increased media attention on the issue: http://www.smh.com.au/news/national/juvenile-detainees-sharing-single-cells/2008/04/06/1207420201406.html