Despite Judicial Criticism, NSW Government is Determined to Extend Youth Bail Refusal Law

During budget estimates on Wednesday, NSW Greens MLC Sue Higginson put it to the NSW premier that his government’s decision to extend a 12 month temporary youth bail law targeting particular kids living in regional areas, 88 percent of whom are Aboriginal, is a tad redundant, especially when multiple New South Wales Supreme Court justices have recently criticised it as a “ham-fisted” approach.

The NSW Greens justice spokesperson then asked premier Chris Minns whether he accepted the judicial assessment that his “rushed attempt to deal with a political problem” has posed those who enforce the law with a legal conundrum, to which Minns replied that he doesn’t, as children as young as 14, who repeatedly committed the same offences, need to be locked up in gaol.

As New South Wales attorney general Michael Daley explained in his 19 February 2025 speech on fresh legislation that if passed, will extend the law, which requires an extra bail test for 14- to 17-year-olds  “charged with committing a serious break and enter or motor theft offence while on bail for another offence of that type”, from its current expiry on 4 April, so that it continues to apply for an additional 36 months.

This crack down on youth offenders – in particular young First Nations offenders – in NSW is a process that is currently being carried out in jurisdictions right across the continent.

Higginson was further at pains to point out to the premier on 26 February that recently released NSW Bureau of Crime Statistics and Research (BOCSAR) figures highlight that over the 12 months to December 2024, there was a 34 percent rise in youths being refused bail because of the new law, which is no positive, and rather it’s a sign that the system is grooming kids for adult prison.

Gaoling kids at exorbitant cost

“When premier Chris Minns calls out the Greens for not wanting more young people involved in the criminal justice system, he’s right about one thing,” Higginson said in a statement on Wednesday, “unlike him, we believe in evidence-based policies that understand sending young people to prison leads to more and more serious offending when those young people mature.”

“Right now, the NSW government is preparing to extend youth bail laws for a further three years,” the Greens MLC added, following her heated budget estimates exchange with Minns.

And this has been founded “on the completely incorrect and frightening basis that more young people in prison and more young people being denied bail means that their tough-on-crime stance is succeeding.”

Minns announced he’d be tightening youth bail in March last year, in amongst a broader youth crime package that included investment in “therapeutic and community-based solutions” in certain regional areas. However, despite having framed the package as “an early intervention and protection program”, 76 percent of youth detainees being held in child prisons last December were on remand.

Youths that are sent to gaol have a heightened likelihood of ending up in an adult gaol in later years. Yet, despite this, NSW Labor has changed the law to ensure more children end up being bail refused and imprisoned. Higginson is raising the point that the close to $1 million it costs to imprison one child over a year, could be better invested in assisting underprivileged children in the community.

“By forcing more young people into the criminal justice system, and through the prisons, the Minns Labor government is causing serious long-term harm to those young people, entrenching crime, incarceration is criminogenic and increases crime,” the Greens justice spokesperson made clear, and she underscored that the evidence and the advice of the experts in the judiciary underscores this.

Ensuring kids stew in gaol

The temporary limitation requires magistrates to refuse bail to an accused who is already on conditional release for a relevant offence, if they don’t have a “high degree of confidence the young person will not commit a serious indictable offence while on bail”. This law is contained in section 22C of the Bail Act 2013 (NSW), and it only applies to arrestees aged from 14 to 17.

The relevant offences that the extra bail assessment applies to include taking a conveyance without consent, taking motor vehicle with assault and stealing motor vehicle or vessel, as well as all break and enter offences carrying a maximum of at least 14 years under part 4 division 4 of the Crimes Act 1900 (NSW).

AG Daley said the decision to extend the laws, which is not yet a given, was “not taken lightly”, but came in recognition of the “very real impact” the law is having at “an individual and systemwide level”. And he added that it is not being made permanent, prior to focusing the next two-thirds of his speech on the “therapeutic and community-based solutions” that have accompanied the law.

The premier knocked back further criticism made by Higginson on Wednesday, in respect of the law clearly upending the principle of equal justice.

And the Greens MLC too raised the idea of a NSW independent commissioner for First Nations children and young people, as the laws in question are undoubtably targeting Indigenous youth, to which Minns said he’d go on to consider and answer at a later date.

Criticism from the bench

The Telegraph reported on Saturday that NSW Supreme Court Justices Stephen Rothman, Julia Lonergan and Dina Yehia have all spoken out against the section 22C law, whilst deliberating on proceedings, which Higginson, a lawyer, stressed to the premier is a rare occurrence for a judicial officer to do when handing down a judgement, and she’s been reading these decisions for decades.

Yehia has called the law “troubling”, while Lonergan deemed them “potentially draconian” and “unfairly discriminatory”, while Rothman questioned whether they are “constitutionally valid”, and he further described them as a “ham-fisted attempt to deal with a political difficulty in a manner which, in my view, creates significant problems for the administration of justice”.

Higginson repeatedly quizzed the premier as to whether he was comfortable with laws that judicial officers have suggested “hold children to a stricter standard than adults charged with murder or terrorism”. However, the top minister responded that “he is allowed to not agree” with these viewpoints, as he’s of the opinion these repeat offenders need to be incarcerated.

The Greens MLC went on to add in a statement after her budget estimates exchange with the premier that Minns is “treating vulnerable young people in NSW as a political hot potato”, and while his package does involve significant funding to services to ensure children never end up in prison, the laws he is backing undermine these services and are “in fact punitive and damaging to communities”.