Last updated 10 May 2022
Considering bail, a significant part of the police and court processes, raises the question of whether or not a child is able to stay in the community while the allegations against them are decided. The general principle that detention should be a last resort is relevant to bail as well as sentence.
If police decide to proceed by arresting and charging the child with an offence (s 48 Youth Justice Act 1992 (Qld) (Youth Justice Act)), they will have to decide whether or not to release the child pending their appearance in court. Once a child appears in court, the court manages the question of bail until their case is finalised.
The provisions in the Bail Act 1980 (Qld) (Bail Act) apply to children, but the Youth Justice Act makes some specific provision for children. However, the issue of bail has become increasingly complex in recent times.
A child arrested and refused watchhouse or police bail must be brought promptly before a Childrens Court as soon as practicable and generally within 24 hours. If a court cannot be constituted within 24 hours, then as soon as this can be done (s 49(2) Youth Justice Act).
Police or the court must keep a child in custody if they are satisfied that there is an unacceptable risk the child will commit an offence that would endanger community safety or the safety or welfare of another person, and that a bail condition (e.g. not making contact with people or not going to certain places) would not practically be able to address this risk (s 48AAA(2) Youth Justice Act).
They may also decide not to release the child if satisfied that there is an unacceptable risk the child will not come to court as required, or will commit an offence of any kind or will interfere with a witness or otherwise ‘obstruct the course of justice’ (s 48AAA(3) Youth Justice Act).
In making the decisions above as to ‘unacceptable risk’, police and the court must consider a range of issues, including the type and seriousness of the offence(s) the child has been charged with, their criminal history, home environment, employment, who they associate with and whether there is someone willing to support the child to comply with bail (s 48AA(4)(a) Youth Justice Act). If the child is Aboriginal or Torres Strait Islander, there are additional considerations such as cultural matters.
Police and the court may also consider a range of matters relevant to the particular child such as whether bail or a refusal of bail would interrupt a child’s living arrangements, family relationships, schooling, health issues and similar (s 48AA(4)(b) Youth Justice Act).
A decision to release a child may be subject to conditions to which the child will have to agree to to be given bail (s 52A Youth Justice Act). While a child can be released with a deposit of money or a surety (s 52 Youth Justice Act), this would be unusual as children generally do not have access to money or property.
The government is trialling the use of electronic monitoring (ankle bracelets) in five locations across Queensland (Townsville, Moreton Bay region, Brisbane north, Logan and the Gold Coast) as a bail condition. The child must be at least 16 years old, charged with a prescribed indictable offence and found guilty of an indictable offence before. The bracelets are monitored by Queensland Corrective Services and require access to a mobile phone and the ability to regularly charge batteries. The child needs to fully understand the implications of electronic monitoring before agreeing to it.
A ‘prescribed indictable offence’ includes:
- an offence where an adult could be sentenced to life (e.g. murder, rape) or imprisoned for 14 years or more (e.g. robbery, burglary)
- dangerous operation of a vehicle
- unlawful use of a motor vehicle when the child is charged with being the driver of the vehicle
- unlawfully use of a motor vehicle and using, or intending to use, it to commit an indictable offence or wilfully destroying or intending to destroy, damage or remove any part of the vehicle
- attempted robbery
- choking, strangulation or suffocation of someone where there is an intimate partner or family relationship.
Where a child is charged with a prescribed indictable offence, which is alleged to have occurred while the child was released and waiting to have a previous indictable offence dealt with, then police or the court must refuse release unless the child can ‘show cause’ (give good reasons) why they should be given bail in relation to the new matter (s 48AF Youth Justice Act).
There are additional requirements for bail and release from custody where the charges relate to allegations of terrorism.
Children must, where practicable, be held on remand in a detention centre (s 54(2) Youth Justice Act). A child cannot be kept in an adult prison on remand (s 56(7) Youth Justice Act). Children are able to be held in police watchhouses but this is generally regarded as inappropriate.
The general principle that detention should be a last resort is relevant to bail as well as sentence.
The Bail Act also applies in relation to bail decisions for children in court. A court must take into account the sentence order the court would likely make if the child was to be found guilty (s 48AA(3) Youth Justice Act) when deciding bail.
Where a child’s legal representative has instructions to make a bail application, they should liaise with the Youth Justice officer who may:
- ascertain the child’s present circumstances so far as they are relevant to bail
- if necessary, investigate suitable placement options including a parental home
- organise a placement acceptable to the court.
If the child is released without bail, they must be given a release notice stating the time and place of their next court appearance with a warning that the court may issue a warrant for their immediate arrest if the child does not turn up.
If the child is released on bail and promises to come back to court as directed but does not come to court, the court may issue a warrant for their arrest, but no offence is committed (unlike the adult court).
If the child is released on bail with conditions and breaches a bail condition, their bail may be revoked but breaching the condition is not in itself a further offence.
If a magistrate refuses bail, the child may apply for bail to a Childrens Court judge. A child can also apply for bail directly to the judge if an application was not made to the magistrate.
Review and variation of bail
A child who is subject to bail with conditions is able to ask for a variation of those conditions if there are grounds to change the conditions (e.g. variation of a curfew to accommodate work commitments). A request for variation of conditions would usually require the young person’s legal representative to provide advance notice to police before the court date when it is to happen, so police may consider their position to the proposed change.
The ‘show cause’ provisions of the Bail Act do not apply to a child. However, the rules relating to bail for children have been significantly tightened as discussed above in the section on Children and Police Bail.