On Thursday, the New South Wales government passed the Bail and Crimes Amendment Bill 2024. The controversial legislation includes changes to bail laws affecting young people charged with certain offences, as well as a new offence consisting of committing offences and then advertising one’s involvement in the offending. This page outlines the changes.
Changes to test for bail
Under the changes, if a young person aged between 14 and 18 is charged with a motor vehicle offence or a serious break and enter offence while on bail for another such offence, bail must not be granted unless the bail authority (the court or police) has a high degree of confidence that the young person will not commit a serious indictable offence while on bail.
“Posting and boasting” offence
The government has also introduced a ‘performance crime’ offence into the Crimes Act 1958.
The new offence will consist of disseminating material (including on social media) to advertise one’s involvement in motor vehicle theft or in a break and enter offence or in an act or omission constituting such an offence.
A person who commits a performance crime offence will be liable to a maximum penalty of the total of:
- the maximum penalty for the motor vehicle or break and enter offence; and
- two years imprisonment.
Temporary changes only
The legislation has a sunset clause and will cease to be in operation after 12 months.
Rationale for the changes to bail laws for youth
The government has stated that the reforms promote community safety and wellbeing, particularly in regional areas where crime rates are higher than in the city. It says that there is an emerging phenomenon of young offenders posting on social media about their offending, particularly where the offending relates to motor vehicles, in a way that may encourage others to engage in similar offending.
Responses to the changes to bail laws
The changes passed despite fierce opposition from many within the legal profession, including the New South Wales Law Society, Legal Aid, the Aboriginal Legal Service and Redfern Legal Centre.
A letter to the New South Wales premier signed by 60 organisations from within the legal and justice sector called for the changes to be abandoned. The letter called the move ‘a devastating betrayal of Aboriginal children and other vulnerable groups across NSW’ and said it would compound trauma and abuse for families and communities and exacerbate the underlying causes of youth offending.
Prior to the passage of the Bill, the President of the NSW Law Society, Brett McGrath, announced that he had written to all members of the Legislative Council about the proposal, arguing that the changes were inconsistent with the Closing the Gap targets, the Convention on the Rights of the Child and the principles of the Children (Criminal Proceedings) Act 1987. McGrath argued that the changes to the bail laws represent a tougher test than the one that applies to adults and are likely to lead to children being incarcerated (on remand) for offences of which they are unlikely to be found guilty. Other critics of the changes have argued that incarcerating children makes it more likely they will commit offences in the future and less likely that they will complete their education.
The government has defended the changes, saying they are designed to address repeat offending and will only be in force temporarily.
Youth crime in Australia
Across Australia, responses to youth crime have been a subject of debate in recent years. The climbing number of young people, particularly Indigenous young people, in detention and the conditions under which they are held has led to calls for changes to the youth justice system and for the age of criminal liability to be raised.
Several Australian states and territories have now moved to raise their minimum age of criminal liability – the lowest age at which a person can be charged with a criminal offence. In New South Wales, as in several other states, the age of criminal liability is 10. In the NT, this age has been raised to 12 and the Tasmanian government has committed to raising the age to 14. The New South Wales government has rejected calls to raise the age.
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