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The amendments to the Bail Act 2013 (NSW) require police, magistrates, and judges to have a “high degree of confidence” that these young offenders will not commit another serious indictable offence while on bail. This article will explore the complexities of the ‘High Degree of Confidence’ test, its application by courts, and its implications for young offenders in NSW.

The ‘High Degree of Confidence’ Test Explained

The ‘High Degree of Confidence’ test is a novel legal requirement introduced in NSW’s bail laws in March 2024. Under this test, when a young person aged between 14 and 18 is charged with a serious break and enter offence or a serious motor vehicle offence while on bail for similar offences, they must not be granted bail unless the bail authority has a high degree of confidence that they will not commit a serious indictable offence if released.

The test represents an unprecedented standard in NSW criminal law, setting a more stringent threshold than the bail tests applied to adults. NSW Supreme Court Judge Julia Lonergan has noted that this requirement approaches a level of certainty that makes it significantly more difficult for young people to obtain bail compared to adults in similar circumstances.

NSW Law Society president Brett McGrath warns that this test will likely result in most, if not all, young people affected by the new provisions being refused bail. This includes those who may not ultimately be found guilty of the alleged offences, and those who would not receive a custodial sentence even if found guilty.

The legislation introduces this test as a temporary measure, designed as a ‘circuit breaker’ to address repeat offending by young people while on bail. The NSW government has implemented this change, particularly in response to concerns about crime rates in regional areas.

Before granting bail under this test, the bail authority must assess:

• Any bail concerns
• Potential bail conditions that could address these concerns
• The risk of the young person committing further serious indictable offences
• The specific circumstances of the case

The test will be in effect for 12 months, reflecting the government’s acknowledgement of concerns about its possible consequences, particularly for Aboriginal young people.

When Does the ‘High Degree of Confidence’ Test Apply?

The ‘High Degree of Confidence’ test applies specifically to young people aged between 14 and 18 who are charged with serious break and enter offences or serious motor vehicle offences while on bail for similar offences. This temporary additional bail test was introduced as part of the NSW government’s $26.2 million youth justice package.

Under the new laws, when a young person in this age group is charged with these specific offences while already on bail for similar charges, they must not be granted bail unless the bail authority has a high degree of confidence that they will not commit a serious indictable offence if released.

The test applies to two main categories of offences:

• Serious break and enter offences (those punishable by a maximum penalty of 14 years imprisonment or more)
• Motor vehicle offences (including stealing a car or travelling in a stolen car while knowing it was taken without consent)

The legislation specifically targets repeat offending by young people who commit these crimes while already on bail for similar offences. The NSW government has explained that this measure is designed as a ‘circuit breaker’ to address repeat offending by young people while on bail, particularly in regional areas which have higher crime rates than urban areas.

This new bail test is subject to a 12-month sunset clause, meaning it will only remain in force for one year. The government has indicated that during this period, they will collect evidence to determine whether the amendments should continue beyond the initial 12-month period.

Key Factors Courts Consider in Youth Bail Applications

When applying the ‘High Degree of Confidence’ test, courts must carefully evaluate several key factors before granting bail to young offenders aged between 14 and 18 who are charged with serious break and enter or motor vehicle offences while on bail.

The bail authority, whether police, magistrates or judges, must have a “high degree of confidence” that the young person will not commit another serious indictable offence if released on bail 2. This test is notably more stringent than bail tests applied to adults in similar circumstances.

Courts will examine the nature and seriousness of the alleged offences, particularly focusing on whether they involve serious break and enter or motor vehicle theft charges. The presence of multiple offences or a pattern of reoffending while on bail will significantly impact the assessment.

The young person’s criminal history and compliance with previous bail conditions are crucial factors. Courts look at whether there is a demonstrated pattern of breaching bail or committing further offences while on release.

The bail authority must assess any bail concerns and consider whether conditions could reasonably be imposed to address the risks of reoffending. This includes evaluating potential support services and supervision arrangements that could help prevent further offending.

Personal circumstances play an important role in the assessment. Courts consider factors such as:

• The young person’s family situation and community ties
• Access to stable accommodation
• Educational or employment commitments
• Cultural background and needs, particularly for Aboriginal youth
• Mental health considerations
• Available support services and programs

The NSW Supreme Court has noted that this test operates “in an unfairly discriminatory way” upon children aged 14 to under 18, who are widely recognised as needing support and guidance rather than incarceration.

Implications of the ‘High Degree of Confidence’ Test for Young Offenders

The introduction of the ‘high degree of confidence’ test for youth bail in NSW is likely to have significant implications for young offenders. This new test sets a higher bar for granting bail to young people aged 14-18 who are charged with serious break and enter or motor vehicle theft offences while already on bail for similar offences.

Under the new laws, a bail authority such as the police or the court must not grant bail to a young person in these circumstances unless they have a ‘high degree of confidence’ that the young person will not commit a serious indictable offence if released. This is a more stringent test than the ‘show cause’ requirement that applies to adults in similar situations.

The potential impacts of this test on young offenders include:

• Increased likelihood of being refused bail and remanded in custody, even if they may not ultimately receive a custodial sentence if convicted
• Disconnection from family, community, education and employment while on remand, which can be detrimental to rehabilitation prospects
• Disproportionate impact on Aboriginal and Torres Strait Islander young people, who are already overrepresented in the youth justice system
• Inconsistency with principles of youth justice that focus on diversion, rehabilitation and detention as a last resort

There are concerns that the new test may result in young people being incarcerated unnecessarily, including those who are unlikely to ultimately be convicted of an offence. Remanding young people in custody can expose them to negative influences and disrupt protective factors in their lives.

Critics argue the laws are contrary to evidence that supporting young offenders in the community is more effective at reducing reoffending than placing them in detention. There are also concerns about compatibility with human rights principles and legislation that requires children to be treated differently to adults in criminal proceedings.

However, the NSW government maintains the reforms are a necessary ‘circuit breaker’ to address serious youth offending, particularly in regional areas. The laws are presented as part of a broader package of measures that also includes early intervention, diversion and intensive supervision initiatives.

The full implications of the ‘high degree of confidence’ test will become clearer as it is applied by police and courts. As a novel provision, there may be some inconsistency in how the test is interpreted and used in bail decisions. The 12-month sunset clause on the reforms provides an opportunity to assess their impact.

Comparison with Adult Bail Tests

The ‘High Degree of Confidence’ test for youth bail in NSW imposes a more stringent standard than bail tests applied to adults. Under the new laws, young people aged 14-18 charged with serious break and enter or motor vehicle offences while on bail face a higher threshold for release.

The test requires bail authorities to have a “high degree of confidence” that the young person will not commit another serious indictable offence if released. This novel test is unprecedented in NSW legislation and is likely to result in uneven applications across the state.

NSW Supreme Court Judge Julia Lonergan has expressed concerns that these laws are “unfairly discriminatory” as they treat children’s freedom less favourably than adults in the same circumstances. For adults, the ‘show cause’ requirement applies to certain serious offences but does not demand the same level of certainty about future behaviour.

The ‘show cause’ test for adults focuses on whether detention is justified, rather than requiring predictions about potential reoffending. An adult only needs to demonstrate there is no unacceptable risk that cannot be mitigated by bail conditions.

This creates an inconsistency where children face a harsher and more onerous bail test than adults charged with similar offences. The Law Society of NSW has noted that this new youth bail test is “arguably more stringent than the ‘show cause’ test applying to adults”.

The NSW Bar Association has expressed grave concerns about legislation that treats children more harshly than adults in bail applications. They emphasise that the “high degree of confidence” requirement does not appear anywhere else in NSW law.

Conclusion

The ‘High Degree of Confidence’ test represents a significant shift in NSW’s youth bail laws, introducing stricter requirements for young offenders aged 14-18 who are charged with serious break and enter or motor vehicle theft offences while on bail. This temporary measure aims to address rising youth crime rates, particularly in regional areas, while broader prevention and intervention initiatives are implemented.

While the NSW government defends these reforms as necessary for community safety, legal experts express serious concerns about their potential to increase youth detention rates and undermine rehabilitation efforts. The test’s unprecedented nature and stringent requirements have sparked debate about balancing public safety with the principles of youth justice, making it crucial to monitor its implementation and effectiveness during its 12-month trial period.

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