Re-examining Bail and Remand for Young People in NSW
| Author | Julie Stubbs |
| DOI | 10.1375/acri.43.3.485 |
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| Subject Matter | Articles |
485
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 43 NUMBER 3 2010 PP. 485–505
Address for correspondence: Professor Julie Stubbs, University of NSW, Sydney NSW 2052,
Australia. E-mail: j.stubbs@unsw.edu.au
Re-examining Bail and Remand
for Young People in NSW
Julie Stubbs
University of New South Wales, Australia
This article examines the substantial growth in the number of young
people remanded in custody in New South Wales (NSW) and the
increasing number of young people granted bail but unable to meet the
conditions of bail. It points to the inadequacies of the Bail Act 1978 (NSW)
for dealing with young people, and highlights the ways in which recent
developments in law and practice and the politicisation of bail mark a
substantial departure from the well-established purposes of bail and
remand. It also identifies an agenda for future research concerning bail
decision-making for young people.
Keywords: bail, remand, young people
Bail and remand decision-making have become the focus of renewed attention
mostly in response to recent, substantial increases in the number of people
remanded in custody in several jurisdictions. However, few studies have focused on
bail and remand decisions for young people, despite the concerns of activists and
practitioners about the growth in the number of juveniles being remanded in
custody and the substantial increase in the numbers of young people granted bail
but unable to meet bail conditions. These trends have been even more pronounced
for Aboriginal young people, despite government policies designed to counter their
overrepresentation within the juvenile justice system. This article reviews the
limited available data in NSW, points to the inadequacies of the Bail Act (NSW)
for dealing with young people, and highlights the ways in which recent develop-
ments in law and practice and the politicisation of bail mark a substantial departure
from the well-established purposes of bail and remand. It also identifies an agenda
for future research concerning bail decision-making for young people.
The Politics of Bail
The NSW Bail Act 1978 was introduced by a newly elected Labor Government after
a long period in opposition. The political climate of the day was one in which
principled law reforms aimed at just outcomes and reducing the reliance on impris-
onment were possible. The legislation was introduced after a major review
(Anderson & Armstrong, 1977) and its objectives included reducing the reliance
on money bail, redressing the overrepresentation of ‘the young, the poor and the
migrant’ among those in custody awaiting trial, and extending to juveniles and
young people the same rights to bail as adults (Walker, 1978, p. 2014). That legisla-
tion was not immune from the effects of public outcry over particular incidents of
crime — the original exception to the presumption in favour of bail concerning
armed robbery offences arose because of a serious offence that occurred at the time.
Nonetheless, one thing that marks out the present context as so distinctive from
that which existed just three decades ago is that, at that time, governments took no
pleasure in high rates of imprisonment and of remand in custody. Instead, today
governments seek to establish ‘their virility’ when it comes to crime by celebrating
higher imprisonment rates, including higher rates of people detained while awaiting
trial (Pratt, 1997, ch. 9).
The Bail Bill was introduced to Parliament by Attorney-General, the Hon.
Frank Walker, with the statement that:
Although it is perfectly true that the community must be protected against dangerous
offenders, one must not lose sight of the circumstances, first, that when bail is being
considered, one is confronted with an alleged crime and an unconvicted accused
person, and second, that the liberty of the subject is one of the most fundamental and
treasured concepts in our society. (Walker, 1978, p. 2020)
By contrast, in 2002 the then Premier, the Hon. Bob Carr, endorsed reforms to the
Bail Act in these terms: ‘Our legislation sends a clear message [that] repeat offenders
don’t deserve any favours. They can wait for their day in court in a prison cell. If
that means extra jails, we will build them’ (Wainwright, 2002, p. 3). Thus, for those
with a prior conviction, the liberty of the subject was transformed from a fundamen-
tal and treasured concept to an undeserved favour.
Remand in custody is clearly undesirable, especially for young people. It is at
odds with the presumption of innocence; is stigmatising; disrupts relationships with
family and community, education and work; may impact adversely on preparation
for court proceedings and on the outcome and sentencing; and may expose young
people to negative influences and result in increased recidivism (Bamford, King, &
Sarre, 1999, p. 2; Brignell, 2002; Justice Policy Institute, 2009; Kellough & Wortley,
2002, p. 187; Oxley, 1979; Stubbs, 1984, p. 92). While the objective of remand is to
contain the person rather than to punish them, the conditions and effects are
punitive (Zedner, 2004, p. 247). The damaging effects of remand in custody have
been recognised in numerous inquiries, including the Royal Commission into
Aboriginal Deaths in Custody (RCIADIC; Johnston, 1991) and the recent Inquiry
into Child Protection Services in NSW (Wood, 2008, p. 560) and remand is
typically considered a last resort (Victorian Law Reform Commission [VLRC],
2001).
While the aspiration to extend the same rights to bail to young people as to
adults was well intended, an evaluation of the Bail Act in the 1980s found that the
reforms largely met their objectives for adults but failed with respect to young
people. In line with the objectives of the reforms, the proportion of adults granted
unconditional bail had increased substantially. By contrast, young people had low
rates of unconditional bail and high rates of bail refusal or conditional bail requiring
an acceptable person; these outcomes did not reflect the nature of the charges but
486
JULIE STUBBS
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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