‘The More Things Change …’: Bail and the Incarceration of Homeless Young People

Abstract

Homeless young people are being held in remand despite being granted bail because the Department of Community Services cannot or will not find the young person accommodation, and there is no legally enforceable obligation on the Department to so. This practice is not new. Two rounds of amendments to the Bail Act 1978 (NSW) sought to steer young homeless people away from remand yet they have failed to have their intended effect. By failing to provide young homeless people with an alternative to detention the NSW Government is in breach of a number of fundamental principles of the criminal law, juvenile justice and child protection, as recognised in the United Nations Convention on the Rights of the Child, and other international human rights instruments. In its much anticipated report, the Special Commission of Inquiry into Child Protection Services in NSW recommends the establishment of bail support schemes similar to those in Victoria and Queensland, but misses the opportunity to recommend law reform which would squarely place the obligation on the state to provide accommodation for these young people.