Youth Bail and the 'High Degree of Confidence' Test (NSW)

Bail refers to the conditional release of an accused person, allowing them to remain at liberty while their case is before the court.

Bail becomes enlivened once a young person is arrested and charged with a criminal offence. The Police have discretion whether or not to grant bail and if bail is refused, the young person must attend the first available Children’s Court within 24 hours for a magistrate to determine bail.

The court must only refuse bail if they are satisfied that there is an unacceptable risk that cannot be addressed by imposing bail conditions.

A unique feature of the Children’s Court is the existence of Youth Justice. Youth Justice plays an important role in facilitating the young person to attend court, working with the young person’s family or carers to gather information and provide the same to the court and assisting young people in meeting their ail conditions. 

In Children’s Court, Youth Justice is responsible for holding young people in custody while on remand, facilitating court appearances, liaising with various stakeholders such as parents and carers to provide reports for the court. Youth Justice also plays an important role in assisting young people in meeting their bail conditions. For example, if a young person applying for bail does not have stable accommodation and therefore cannot comply with the condition of their bail to reside at a particular address, under section 28B of the Bail Act 2013, the court can require Youth Justice to find accommodation for a young person before being granted bail. A young person’s matter must be re-listed for hearing every 2 days until accommodation has been secured for them.

High Degree of Confidence

In early 2024, the Minns Government fast-tracked amendments to the Bail Act to address escalating public concern regarding youth offences. Specifically, Section 22C introduces a new bail test when a young person aged between 14-18 who is already on bail for a relevant offence has been charged with another relevant offence. In these circumstances, the bail authority must have a ‘high degree of confidence’ that the young person will not commit any serious indictable offence – defined as an offence punishable by 5 years imprisonment or more – while on bail.

Section 22C was originally due to sunset in April 2025, however following parliamentary debate, it has been extended to at least 1 October 2026.

What is a relevant offence?

a “motor theft offence” under the Crimes Act:

1.  Section 154A (taking a conveyance without consent)
2.  Section 154C (taking motor vehicle or vessel with assault or with the occupant on board);  
3. Section 15AF (stealing a motor vehicle, vessel or trailer) 

a “serious breaking and entering offence” under Part 4 Division 4 of the Crimes Act:

1. Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (s 109(1)) and same in circumstances of aggravation (s 109(2)) or special aggravation (s 109(3)); 
2. Breaking, entering and assaulting with intent to murder etc (s 110); 
3.  Aggravated enter dwelling-house (s 111(1)) or specially aggravated enter dwelling-house (s 111(3)); 
4. Breaking etc into any house etc. and committing serious indictable offence (s 112(1)) and same in circumstances of aggravation (s 112(2) or special aggravation (s 112(3)); and 
5. Aggravated breaking etc. into any house etc. with intent to commit serious indictable offence (s 113(2)) or specially aggravated breaking etc. into any house etc. with intent to commit serious indictable offence (s 113(3)). 

For the section to apply, the young person needs to have been on bail for another relevant offence at the time the fresh offence is alleged to have been committed.

R v JS [2025] NSWSC 116 involved a bail decision involving a 15-year-old aboriginal young person who was charged with two sequences of attempted break and enter. The court found that the offences being “attempt”, rather than a substantive offence, do not amount to a “relevant offence” as defined in s 22C(6) and so s 22C did not apply to those offences and he was granted conditional bail.

What is a high degree of confidence?

In the Second Reading Speech to the Bail Amendment on 12 March 2024, the Attorney General Michael Daley said, “The Government’s bespoke test of “a high degree of confidence” is intended to set an appropriately higher bar for a young person’s release when they are charged with repeated serious breaking and entering and motor theft offending, including offending whilst on bail”.

RB v R (No 2) [2024] NSWSC 845 was a bail decision that involved a young person who was subject to bail for aggravated break and enter offences involving a knife and following this had been re-arrested and charged with taking and driving a motor vehicle. While the test ‘high degree of confidence’ is not defined in the Bail Act, Walton J found that a “high degree of confidence is not a state of certainty. The Court does not need to be certain that the young person will not commit a further relevant offence. Further, the evaluation involved under subs (1) involves a consideration of the future conduct of the young person, namely, whether there may be confidence to the requisite degree that the young person will not commit a serious indictable offence whilst on bail subject to proposed bail conditions. That is an evaluation of a future occurrence”. Justice Lonergan expressed concern that the law was “unfairly discriminatory,” noting that it treats a child’s freedom less favourably than an adult in the same situation.