I ABSTRACT

Liberal criminal justice systems have long regarded personal liberty as the starting point of criminal justice; autonomy may only be curtailed after guilt has been established 'beyond reasonable doubt'. From Magna Carta through Blackstone’s Commentaries, Anglo-Australian law has maintained that detention before trial must remain the exception, not the norm. However, contemporary bail reform in New South Wales suggests a growing shift from adjudicating guilt to managing perceived risk. This commentary critically examines the recent bail law reforms in New South Wales, centering on the Bail and Crimes Amendment Act 2024 and related legislation. It situates the reforms in historical context, noting the 2013 Bail Act’s risk-based “unacceptable risk” framework and the reactionary 2014 amendments, and then explicates the 2024 changes: the temporary “high degree of confidence” test (s 22C) for repeat young offenders and the new “performance crimes” offence for social-media boasting of offences.[1] Advocates of the reforms argue these measures will deter recidivism and bolster community safety, especially in rural areas beset by juvenile property crime.[2] These reforms risk undermining the presumption of innocence, disproportionately affecting marginalised youth and undermining evidence-based policy. Law societies, legal academics and Aboriginal justice bodies warn of unintended consequences, from increased remand populations to perpetuating the ‘pipeline’ from youth detention to adult incarceration.[3] This piece outlines both perspectives, drawing on legislation, case law (notably R v RB [2024] NSWSC 471), empirical analyses, and policy commentary. It argues that the NSW reforms reflect a deep tension between exigent public safety claims and fundamental bail principles (liberty, equality, and rehabilitation). The commentary concludes that, absent robust evaluation, the 2024 reforms may prove to be per fas et nefas (rightly or wrongly), and that close monitoring and review will be essential to ensure the law’s coherence and fairness in alignment with the UDHR 1948.

II INTRODUCTION

Bail law in NSW historically seeks a balance between an accused’s liberty and the community’s safety. The Bail Act 2013 (NSW) emphasised the presumption of innocence (praesumptio innocentiae) and introduced a two-step “unacceptable risk” test: bail is refused only if a tribunal finds a risk of offending, failing to appear, or endangering the community that cannot be mitigated by conditions.[4] The 2013 reforms, based on a Law Reform Commission Report, were hailed as more principled and transparent.[5] However, media coverage of some violent cases precipitated swift political reaction. Within months, the NSW Parliament enacted show-cause provisions in 2014 demanding accused persons “show cause” why bail should be granted for certain offences, a retreat from the 2013 risk-based ethos.[6] In practice, these amendments reinstated a high bar to bail for many serious offences. Notably, evidence indicated that Aboriginal defendants were disproportionately affected: after 2014, police bail refusals for Indigenous people more than tripled, raising questions of systemic bias and jus disproporium.[7]

In early 2024 the newly elected NSW Government (Labor) confronted a perceived youth crime “outbreak” in parts of regional NSW. In response, it introduced two key legislative packages. The first, the Bail and Crimes Amendment Act 2024 (assented April 2024), imposed a temporary limitation on bail for repeat young offenders of certain property crimes (Section 22C, Bail Act 2013) and created a new “performance crime” offence in the Crimes Act 1900 for offenders who publicise their wrongdoing.[8] As Attorney-General Michael Daley stated, the law was “purposefully designed to address repeated alleged offending by young people…who have been charged with serious break and enter [or car theft] while on bail”.[9] However, raising the bail threshold for youth undermines procedural fairness and ignores evidence on effective youth justice interventions.[10]

III THE 2024 BAIL LAW REFORMS: PROVISIONS AND LEGISLATIVE CONTEXT

The cornerstone of the Bail and Crimes Amendment Act 2024 is s 22C of the Bail Act 2013. In effect from 3 April 2024, s 22C temporarily disqualifies certain juveniles from bail unless the presiding officer has a “high degree of confidence” that the accused will not reoffend. It applies to “relevant young persons” (aged 14–17) charged with a “relevant offence” committed while already on bail for a similar crime.[11] The bail authority must first assess standard bail concerns (flight risk, community safety, etc.) and consider whether conditions could mitigate those risks.[12] The provision explicitly overrides other bail provisions and is subject to a 12-month sunset.[13] Lexicographers note that s 22C’s language effectively creates a higher bar than adult bail tests for equivalent cases.[14] The phrasing “high degree of confidence” is somewhat unprecedented in bail law, and its meaning must be inferred. Empirical parallels exist as it resembles the adult show-cause regime (s 22A–22B), but whereas the show-cause rule requires only a “balance” of factors or disproving minimal threshold, the 22C test demands near-certain assurance.[15] Section 22C asks judges to find a youth almost certainly innocent of future crimes – a counter-intuitive burden against the accused, since bail doctrine traditionally puts the onus on the prosecution to prove risk.

In the case of R v RB [2024] NSWSC 471) obiter, Lonergan J expressed concern that s 22C “operates in an unfairly discriminatory way” against 14–17-year-olds, who are a class of persons requiring guidance, and noted the tension between s 22C and the child-centric principles in the Children (Criminal Proceedings) Act 1987 (which provide that children should have ‘rights and freedoms before the law equal to those enjoyed  by adults).[16]

IV GOVERNMENT RATIONALE AND PROPONENTS’ PERSPECTIVE

Supporters of the reforms frame them as a necessitas remedium, a necessary correction to what they describe as lax bail practices amid a youth crime “crisis”. In public statements, the NSW Government cited alarming local crime statistics (e.g. break-and-enter rates in Moree 840% above average, vehicle theft 680% above average) to justify a modus ponens approach.[17] Attorney-General Michael Daley argued the laws are “working”, pointing to early data showing that the bail refusal rate under s 22C is “more than double” the general youth bail refusal rate.[18] The rationale is that a short-term tightening, coupled with social support measures, can reduce recidivism and break the cycle of offending. Indeed, the reforms were bundled with a $26.2 million community safety package, including youth diversion programs, Aboriginal patrols, and funding for facilities in Moree,[19] to show they are part of a “whole-of-government” response, not mere punitive law-and-order. Deputy Premier Prue Car noted that allowing a magistrate to confirm bail for all serious youth offenders (removing police discretion) would ensure consistent assessment by judicial officers.[20]

In short, the amendments as a proportional and empirically grounded policy and can be argued that repeated offending, especially by youth who appear to “take the system for granted”, undermines public safety and the deterrent effect of bail conditions. The “high confidence” test is characterized as analogous to, but tighter than, the adult show-cause test; as children do not normally face such stringent criteria, this is justified only in a narrow class of cases where a youth has already allegedly flouted bail by reoffending. Government officials insist the reform adheres to rule-of-law values by targeting only repeat offenders, not first-time offenders or petty crimes.[21]

V PRESUMPTION OF INNOCENCE V COMMUNAL SAFETY

Defenders of current reforms counter that courts must prioritise protection of the community and victims. If credible risk exists, detention may be justified as a protective measure rather than punitive intent. Yet this defence struggles against the practical reality that detention’s burdens are indistinguishable from punishment: when legally innocent individuals suffer incarceration’s consequences, the line between procedural precaution and substantive punishment becomes increasingly difficult to sustain. When detention becomes justified by speculative risk rather than demonstrable necessity, bail ceases to operate as a shield against premature punishment and instead becomes a mechanism of preventive control. The tension thereby questions whether criminal justice remains anchored in adjudicating past conduct or is evolving into a system preoccupied with controlling potential future harm.

VII DISPROPORTIONATE IMPACT ON MARGINALISED YOUTH

It can be demonstrated that bail laws will fall heaviest on disadvantaged groups. Aboriginal community leaders and legal aid lawyers stress that Indigenous youth are already over-represented in detention; increasing their remand for non-violent offences exacerbates existing inequalities. The Justice and Equity Centre summarised that 68 signatories (including 529 lawyers and academics) warned the reforms will “devastate Aboriginal and vulnerable communities” by swelling the juvenile justice pipeline.[22] BOCSAR data reinforce these concerns: as of 2022–23, Aboriginal defendants accounted for an outsized proportion of police bail refusals under both the unacceptable risk and show-cause tests.[23] For example, 35.1% of police bail refusals for Aboriginal people involved show-cause (virtually all due to offences on bail), and they are more likely than non‑Aboriginal youths to be deemed an “unacceptable risk” with scant evidence.[24] Beyond its racialised effects, the contemporary bail framework also entrenches socio-economic inequality by systematically disadvantaging accused persons who lack stable housing, employment, or financial resources. Bail determinations frequently turn on factors such as residential stability, family supervision, and the capacity to comply with conditions,  criteria that implicitly privilege defendants with social capital while penalising those experiencing poverty, homelessness, or family dysfunction. In practice, the “unacceptable risk” assessment often conflates social precarity with criminal propensity, transforming poverty into a proxy for dangerousness. As a consequence, pre-trial detention operates as a de facto punishment for poverty, contrary to the foundational principle that liberty should not depend on wealth or social standing. In light of such disparities, the bail tightening appears to perpetuate jus caste in the justice system.

VIII RISK ASSESSMENT AND THE PREVENTIVE TURN IN CRIMINAL JUSTICE

Further, predictive risk assessments can never justify incarceration of legally innocent individuals. Risk models inevitably rely on generalised factors such prior convictions, unstable housing, unemployment which correlate strongly with social disadvantage. Preventive detention therefore risks functioning less as a response to individual culpability and more as a mechanism for managing marginalised populations. In this sense, bail reform risks transforming criminal justice from a system punishing proven wrongdoing into one incapacitating those statistically deemed dangerous, blurring the moral BOUNDARIES OF PUNISHMENT ITSELF.

IX POLITICAL INCENTIVES AND THE DYNAMICS OF BAIL REFORM

Bail reform in New South Wales rarely emerges from abstract legal reflection; rather, it is frequently catalysed by highly publicised crimes committed by individuals previously granted bail. Such incidents generate intense political pressure, compelling governments to demonstrate decisive action in defence of community safety. A recurring feature of the legislative amendments in recent times is that governments have brought reforms in response to serious and highly publicised tragedies (signal crimes’) which are quickly read as an indictment on the adequacy of bail laws. Such instances include the Bourke Street Mall attack in Melbourne in January 2017, when, while on bail, Dimitrious Gargasoulas drove his car into pedestrians killing six and injuring many more,[25] the vicious murder of Teresa Bradford in Queensland by her estranged husband who was on bail with respect to alleged domestic violence offences, and the 2014 Lindt Café siege at Martin Place in Sydney at the hands of Man Haron Monis, on bail at the time, leading to the deaths of two hostages and Monis himself.[26] Following such severe and high-profile events, governments often seek to urgently review bail regimes, appearing determined to ‘fix’ identified flaws in the risk management framework offered by bail laws, typically by decreasing access to bail, with consequential effects.[27]

Thus, it can be argued that democratic accountability demands that governments respond to legitimate community fears. If the justice system fails to prevent foreseeable harm, public confidence deteriorates, threatening institutional legitimacy. From this perspective, stricter bail laws reflect responsible governance responding to voter concerns. However, policy shaped by episodic outrage risks producing laws driven by perception rather than evidence, thereby prioritising symbolic ‘toughness’ over principled criminal justice policy.[28] Bail reform thus becomes less an exercise in legal reasoning than a political response to fear, raising concerns that liberty is sacrificed to electoral expediency rather than balanced justice.

X CONCLUSION

NSW’s 2024 bail reforms exemplify the perennial tension between law-and-order imperatives and fundamental bail principles. Proponents cast the reforms as a rational, targeted response to youth crime – a per saltum leap in protection for communities. Critics depict them as an overbroad and ill-considered subreption of children’s rights. Both sides marshal plausible arguments: the public safety appeal of incapacitating chronic offenders is strong (salus populi suprema lex), yet justice advocates caution that this may prove a policy periculum in mora (too risky). The true impact will depend on judicial interpretation and empirical results. Finally, two Latin maxims may be invoked here: ubi jus, ibi remedium (where there is a right, there must be a remedy) supports the community’s right to safety from repeat offenders; but qui tacet consentire videtur (silence implies consent) might describe prior legislative inaction on youth crime. The reforms break this silence aggressively, with attendant risks. The fas et nefas of lawmaking requires that even well-intended laws respect procedural justice. To date, NSW’s experience shows a pendulum swing: great care in 2013 to protect liberty, then a sharp retraction under panic in 2014, and again a swing in 2024. Whether this will finally yield improved outcomes or simply add another layer of obiter dicta to bail jurisprudence remains to be seen.

XI FOOTNOTES

[1] Attorney General, ‘New Bail and Performance Crime Laws Passed to Prevent Youth Crime’, NSW Government (Media Release, 22 March 2024) <https://www.nsw.gov.au/media-releases/new-bail-and-performance-crime-laws-passed-to-prevent-youth-crime> (‘Bail to prevent youth crime’).

[2] Attorney General, ‘Extension of Strict Bail Laws for Young People Will Strengthen Community Safety’, Department of Communities and Justice (Media Release, 26 March 2025) <https://dcj.nsw.gov.au/news-and-media/media-releases/2025/extension-of-strict-bail-laws-for-young-people-will-strengthen-c.html> (‘Extension of strict bail laws’); Bail to prevent youth crime (n 1).

[3] Damien Smith, ‘Bail Amendment – Rushed Reform Can Be Flawed Reform’ (Media Release, The Law Society of NSW, 2024) <https://www.lawsociety.com.au/news-and-publications/news-media-releases/bail-amendment-rushed-reform-can-be-flawed-reform>.; Nick Dole, ‘Top legal, criminal justice minds slam proposed youth bail reforms in letter to NSW Premier Chris Minns’ (Web Page, ABC News, 18 March 2024) https://www.abc.net.au/news/2024-03-18/law-experts-letter-nsw-premier-chris-minns-slam-bail-changes/103596530 (‘Letter to Premier’).

[4] Kerryn Butler and Kate Davies, ‘Evidence-Based Policy and Law Making: Bail Reform in NSW’ (Justice Issues No 37, Law and Justice Foundation of New South Wales, August 2025) <https://lawfoundation.net.au/wp-content/uploads/2025/08/Evidence-Based-Policy-and-Law-Making_Bail-Reform-1.pdf> (‘Policy and law making’).

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Bail to prevent youth crime (n 1).

[9] Ibid.

[10]Letter to Premier (n 3); Criminal Defence Lawyers Australia, ‘New Bail Laws for Children in New South Wales’ (Web Page, Lexology, 23 May 2024) <https://www.lexology.com/library/detail.aspx?g=dca27a22-e8cb-47c4-ad77-6f64a95f9a5b> (‘Lexology Article’).

[11] Nicholas Broadbent and Rose Khalilizadeh, The New Section 22C of the Bail Act 2013: Bail for Children Charged with “Certain Serious Offences” (Preliminary Paper, Public Defenders Chambers, 28 March 2024) <https://publicdefenders.nsw.gov.au/documents/papers-by-public-defenders/s22c-bail-act-280324.pdf (‘Public Defenders Chambers Paper’).

[12] Ibid.

[13] Public Defenders Chambers Paper (n 13).

[14] Lexology Article (n 12).

[15] Ibid.

[16] Children (Criminal Proceedings) Act 1987 (NSW).

[17] Letter to Premier (n 3).

[18] Extension of strict bail laws (n 2).

[19] Bail to prevent youth crime (n 1).

[20] Extension of strict bail laws (n 2).

[21] Bail to prevent youth crime (n 1).

[22] Justice and Equity Centre, The Australian: Open letters from top lawyers, advocacy groups and academics say NSW youth bail laws will increase crime (Web Page, 19 March 2024) <https://jec.org.au/focus-areas/civil-rights/policing-and-detention/open-letters-from-top-lawyers-advocacy-groups-and-academics-say-nsw-youth-bail-laws-will-increase-crime/>.

[23] Policy and lawmaking (n 4).

[24] Ibid.

[25] Emily Woods and Ebony Bowden, ‘Bourke Street Attack: Sixth Murder Charge for Dimitrious “Jimmy” Gargasoulas’, The Age (online, 31 March 2017) .

[26] ‘Sydney Siege: Two Hostages and Gunman Dead after Heavily Armed Police Storm Lindt Café in Martin Place’, ABC News (online, 16 December 2014) .

[27] See Pat O’Malley, Crime and Risk (Sage, 2010); Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press, 2014).

[28] New South Wales, Parliamentary Debates, Legislative Assembly, 13 August 2014, 30504 (Brad Hazzard).