NSW bail fail: Locking up more children costs millions and doesn’t cut crime

Introducing harsher bail laws for children in NSW was a textbook example of short-term political gain trumping long-term evidence-based policy. And now the bill has arrived – not just in the form of rising detention numbers, but in the costs to children’s futures, community safety, and the public
purse.

In early 2024, the Minns government rushed through changes to the Bail Act in response to concerns about youth crime. This was done with the support of the opposition. They were warned then – by hundreds of Australia’s leading legal, criminology, and human rights experts – that the amendments, which made it harder for children to get bail than adults, would drive up prison numbers, disproportionately affect vulnerable children, and do nothing to prevent crime. They went ahead anyway, chasing headlines to appear “tough on crime” and, in turn, tough on children.

A year later, the results are in. The latest Bureau of Crime Statistics and Research (BOCSAR) data released this month shows youth detention in NSW has surged by 34 per cent in just two years. More than 70 per cent of the children locked up are on remand. Almost 60 per cent are Aboriginal, undermining the NSW government’s own Closing the Gap commitments.

These outcomes are proof that the system is failing. In almost every other area of public life – in health, education, child protection, and family violence – we put children’s wellbeing first. We invest early to prevent harm and promote better outcomes. That is, until they end up in contact with the justice system and governments across Australia abandon that principle.

It costs more than $1 million a year to keep a single child in detention in NSW. Most of those children are released within weeks or months, often back into the same unstable housing, disrupted schooling, or untreated trauma that contributed to their offending. In 2023-24, 2897 children entered detention and 2825 were released.

The evidence is unequivocal: the younger a child is when they enter the justice system, the more likely they are to reoffend. Incarceration compounds the trauma vulnerable children have already been through, deepens disadvantage, fractures family and cultural connections, and offers an apprenticeship in the criminal justice system that leads to more serious offending later in life and reduced community safety.

Harsher punishments and restrictive bail laws aren’t just like parking an ambulance at the bottom of the cliff, they also drop kids straight back to the edge. They are less likely to finish school or find work, and more likely to die young. It is not “soft” to point this out, it is simply the reality of the evidence.

If our goal is fewer children committing crimes, the answer is not to double down on the very approach that drives reoffending. It is to invest in what works.

The Justice Reform Initiative has published a number of reports outlining the evidence about community-led programs that increase community safety. There are diversion and post-release programs that work intensively with children to keep them connected to education, culture, and employment.

There are First Nations place-based programs that show increased school attendance and reduced crime rates; there are bail support programs that increase compliance with bail conditions and reduce recidivism. These approaches work because they address the drivers of offending: poverty, homelessness, trauma, disability, disconnection from school, and drug and alcohol dependence.

The trouble is that almost all effective programs are chronically underfunded. We continue to resource the criminal justice system to “manage” disadvantage rather than investing adequately in community-led evidence-based approaches.

On the death earlier this month of Father Chris Riley, founder of the charity Youth Off the Streets, Premier Chris Minns observed: “Father Riley believed there is no child born bad, only circumstances to overcome … proving with compassion and opportunity, young lives can be transformed.” The challenge is for our politicians to also believe this fundamental truth.

Every jurisdiction that has embraced “tough on crime” bail changes for children has seen the same result: more kids in custody, higher rates of reoffending, and no lasting improvement to public safety. NSW should be leading the country in youth justice innovation – not following states like Queensland down a failed path. We should be scaling up proven, community-led programs and making prevention the priority.

Children should be accountable for their actions. But accountability should also mean reducing the risk of it happening again, rather than pushing kids deeper into a system that increases that risk. If we are serious about reducing youth crime, we must keep children in school, connected to their families and culture, and supported to make better choices. We need to care about kids at every point in their lives – especially when they come into contact with the justice system. If we don’t, we will condemn another generation of vulnerable children to harm. For that, we should all be ashamed.

Arthur Moses, SC, is a former president of the Law Council of Australia and a patron of the Justice Reform Initiative. Dr Mindy Sotiri is the executive director of the Justice Reform Initiative.