The NSW government’s proposed Bail and Crimes Amendment Bill 2024 (NSW) would, if enacted, represent a troubling turn in the criminal law of this state. Our regional communities, our most vulnerable children, and our state itself will be worse off if the parliament approves these amendments.
The proposed bail laws – which were not preceded by any meaningful consultation – are likely to be debated in parliament this week. They apply specifically and only to children.
Research indicates that incarceration at an early age is more likely to lead to a higher incidence of criminal behaviour later in life.Credit:
The proposal imports a novel test – “a high degree of confidence” – that is unknown to the criminal law. Its construction will be a matter for the courts, but the application of the proposed test may make it more difficult for a child aged between 14 and 18 to be released from custody than it would be for an adult charged alongside the child with the same offence. That would be an oppressive and absurd result.
The NSW Bar Association has long advocated for raising the age of criminal responsibility, from 10 to 14, to avoid the over-criminalisation of children. Juvenile incarceration disproportionately affects Indigenous children. In 2022, the Australian Institute of Health and Welfare found that Indigenous young people aged 10 to 17 were 18 times more likely than non-Indigenous young people to be in detention.
Children who commit offences bear responsibility for their actions. However, their level of dependency and immaturity should guide the state’s response. Wherever possible, it is desirable to allow the education and development of a child to proceed without interruption. These ideas are orthodox, and are enshrined in principles governing criminal proceedings involving children.
None of this is to deny that criminal offences committed by children can be extremely serious. Their actions can have long-lasting effects on victims and their families. However, the children who commit these offences almost universally lack functional support and a stable home life. Some grow up in a family environment where crime, violence, and substance abuse are endemic due to complex intergenerational disadvantage. Incarceration of these children is seldom the answer.
Juvenile offending is a complex social phenomenon. It is not amenable to quick fixes. It is well-documented that juvenile offending is produced by a range of socioeconomic factors including poor education, lack of opportunities, intergenerational poverty, and persistent social deprivation. The remoteness of regional areas can exacerbate this. The government’s proposed laws are likely to aggravate these root causes and make our communities, especially our regional communities, less safe.
That may seem counterintuitive. But research indicates that incarceration at an early age is more likely to lead to a higher incidence of criminal behaviour later in life. In 2022, the NSW Bureau of Crime Statistics and Research found that 64.4 per cent of young people released from detention in 2017 were convicted of another offence within 12 months. Yet, only 44.3 per cent of young people who were convicted and received a noncustodial sentence were re-convicted over the same period.
Locking up children is not the answer, Premier Minns
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19.03.2024
The NSW government’s proposed Bail and Crimes Amendment Bill 2024 (NSW) would, if enacted, represent a troubling turn in the criminal law of this state. Our regional communities, our most vulnerable children, and our state itself will be worse off if the parliament approves these amendments.
The proposed bail laws – which were not preceded by any meaningful consultation – are likely to be debated in parliament this week. They apply specifically and only to children.
Research indicates that incarceration at an early age is more likely to lead to a higher incidence of criminal behaviour later in life.Credit:
The proposal imports a novel test – “a high degree of confidence” – that is unknown to the criminal law. Its construction will be a matter for the courts, but the application of the proposed test........
© The Sydney Morning Herald
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