The deaths of Brisbane couple Matty Fields and Kate Leadbetter, who was pregnant, earlier this year sparked intense public debate about youth bail laws.[1] The couple had been walking their dog in Alexandra Hills, when an allegedly stolen car crashed and rolled onto them.[2] The 17-year-old alleged to have been the driver of the car (a “youth” under Queensland law) is now facing serious charges, including dangerous operation of a motor vehicle while adversely affected by intoxicating substances, driving while disqualified, and failure to stop at the scene of a traffic incident.[3]
Initial reporting on the incident suggested the alleged 17-year-old offender had been on bail for a string of other offences at the time. However, Assistance Police Commissioner Codd emphasised in the press conference that this was incorrect.[4] While acknowledging that discussion of youth bail laws is important, he said:
What we need to understand is sometimes these things are occurring for people who are not on bail and I don't want that lost in the discussion in the youth justice arrangements that are being looked at.[5]
Nevertheless, calls for youth bail laws to be made tougher continued to grow. The death of a 22-year-old motorcycle rider in February this year, who was struck by a car allegedly in pursuit of a car stolen by youths involved in a high-speed pursuit in Townsville, further fuelled these calls for change. In response to the public outcry, the Queensland Government introduce the Youth Justice and Other Legislation Amendment Bill 2021 to reform youth bail law on 25 February this year.[6]
What is bail?
Lawyers reading this article may already be familiar with this concept, but a quick summary is included here for anyone new to this area of law. Where a person has been charged with offences (not yet proven, and no plea of guilty), they may be granted bail. This allows the person to continue to live within the community, subject to certain conditions, while their matter progresses through the courts – rather than being held in custody throughout this time.
A court hearing a bail application can consider a range of factors when determining whether to grant someone bail. The ultimate test to be applied is whether the person would be an unacceptable risk of: failing to appear at court, committing further offences, or interfering with witnesses.[7] Importantly, the court need only find one of these risks unacceptable to refuse bail.
When bail is granted, conditions are imposed on the person remaining in the community. Standard bail conditions include a promise by the person that they will come back to court next time their matter is mentioned, that they will not commit further offences, and that they will not interfere with witnesses to the offence that occurred (see section 11 of the Bail Act 1980 (Qld) for more information). Other conditions may also be imposed, specific to the person’s circumstances, such as a condition not to go to a certain address, or not to drink alcohol, if these are considered factors which may contribute to the person’s risk of breaching their bail, including of committing further offences. For youths (anyone aged 10 to 17-years[8]), common conditions can also include a curfew, a requirement to live at a certain address,
Usually, there is a presumption that bail must be granted.[9] That is, the onus is on the Prosecution to show why the person should not be allowed on bail. However, in some circumstances, the onus is reversed. This is called a ‘show cause’ position for the person, as he/she or their lawyer must show why they should be allowed on bail. Circumstances which attract this ‘show cause’ position are set out in section 16 of the Bail Act 1980 (Qld) (‘the Bail Act’), and include things like the alleged offence before the court being a serious indictable offence, a domestic violence offence, or had committed and offence while already on bail (see section 16 of the Bail Act 1980 (Qld)).[10]
How are youth bail laws different to those for adults?
While the Bail Act does apply to youths, certain provisions are excluded.[11] For example, section 16 states that nothing in that section, including the provisions regarding ‘show cause’, does not apply to youths.[12]
The Youth Justice Act 1992 (Qld) (‘the Youth Justice Act’),[13] provides more specific provisions regarding youth bail. Section 48(2) offers the presumption of bail.[14] Similar to the provisions for adults in the Bail Act, s 48AA of the Youth Justice Act sets out the ‘unacceptable risk’ test to be applied when determining whether to grant or refuse bail. Pursuant to this section, the Court may also consider matters relevant to the best interests of the youth, such as preserving his/her family relationship, avoiding disruption to accommodation, school or employment, and the need for disability or medical support.[15] Importantly, the Court may also consider Youth Justice Principe 18, which states:
A child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances.[16]
Youth bail laws, in contrast to those for adults, reflect considerations more specific to the young age of the person charged, their maturity and level of understanding, and any needs for support.
Previous changes impacting youth bail
The debate about changes to youth bail laws actually precedes the tragic incidents that occurred earlier this year. The Queensland Government passed changes to the Youth Justice Act 1992 (Qld) in 2019 and 2020, including amendments to the provisions regarding bail. Amongst the reasons for those changes were reports that 10% of youth offenders, or around 400 youths,[17] account for almost half of the offences committed in the state,[18] indicating recidivism is a significant problem. Other reforms included diversion programs and new “On Country” programs for Indigenous youths in Mt Isa, Townsville and Cairns.[19] The Government reports ‘$550 million in Youth Justice reforms [are] already underway.’[20] ‘Youth Justice Minister Leanne Linard said those reforms have led to a 23 per cent decrease in the numbers of youth offenders.’[21]
Significantly, amongst the 2020 changes to the Youth Justice Act included the removal of the judges’ discretion to grant bail where the youth is considered a ‘danger to the community’.[22] ‘This new subsection…change[d] the current test from may keep a child in custody to must keep a child in custody.’[23]
Previously, s 48AD stated:
The court or police officer may decide to release the child if satisfied the child’s release is not inconsistent with ensuring community safety and is otherwise appropriate having regard to any of the [matters referred to above].[24]
In other words, the presumption of bail has already been significantly curtailed by this change last year. Nevertheless, the Bill introduced in February this year proposes further changes to the presumption of bail, in addition to other youth bail law amendments.
What are the new changes proposed by the 2021 Bill?
The key proposed change to bail under the new laws is the removal of the ‘presumption of bail’ for youths committing serious indictable offenders (proposed section 48AF of Youth Justice Bill). In other words, a youth who is alleged to have committed an offence like armed robbery would have to show why they should be released on bail. The general ‘presumption of bail’ still applies to youths charged with other types of offenders (section 48 Youth Justice Act 1992 (Qld)). The Bill also codifies the common law position that a breach of bail is considered an aggravating factor at sentence.[25]
The Bill also contains, however, some additions which may support bail applications for youths. For example, the Court can take into account the willingness of the youth’s parents or carers to support the youth to comply with bail and to notify authorities of any breach.[26] The Bill also seeks to clarify that a lack of accommodation or family support, while a relevant consideration for the Court, ‘cannot be the sole reason for keeping a child in custody.’[27]
Other changes proposed by the Bill include providing the courts with powers to impose GPS tracking on 16 and 17-year-olds charged with ‘prescribed’ criminal offences.[28] This condition may only be imposed on youths where they have previous criminal convictions.[29] The Bill requires this GPS tracking condition be reviewed by the Government within 12 months of its enforcement.[30]
The Bill also proposes new powers for police to stop youths in night precincts and use handheld scanners to check if they have weapons, particularly knives. The new powers would allow police to conduct such checks without a warrant, and do not currently include any criteria – such as ‘reasonable suspicion’ – before the scan can be conducted.[31]
Compatibility with Human Rights
Importantly, the Bill is amongst proposed legislation which the Government has reviewed in regards to human rights compliance, as obliged by the Human Rights Act 2019 (Qld). Mark Ryan MP, the Minister for Police and Corrective Services, and Minister for Fire and Emergency Services, conducted the review.[32] Mr Ryan MP concluded that overall the Bill complies with human rights, including right to liberty and right to family.[33]
However, Mr Ryan MP did express concerns with some of the Bill’s provisions. In particular, he raised concerns with the establishment of police powers to stop youths – without warrants – in designated areas and use handheld scanners to check for weapons, particularly knives. Mr Ryan MP considered these powers may not be compatible with human rights as it did not provide criteria for when this could lawfully occur. ‘However,’ Mr Ryan MP wrote, ‘the government has determined that the need to uncover knives in safe night precincts outweighs the impacts on the human rights of people stopped and scanned by police.’[34]
Previously, the Queensland Human Rights Commission, in a submission responding to the 2020 changes, also raised some human rights concerns. The Commission stated: ‘Community safety is served by upholding the human rights of children who are accused of crimes’. The Commission also suggested prolonged detention of children in watch houses should be prohibited, and emphasised the use of diversionary options and evidence-based methods to reduce offending.[35] Submissions regarding the 2021 Bill are not currently available as the parliament is still in the process of receiving submissions, which are open until 12 March this year.[36]
Ultimately, compliance with the Human Rights Act can be achieved if a law ‘limits a human right only to the extent that is reasonable’[37] and ‘can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’[38] Thus, as Mr Ryan MP indicated, the Bill could still be considered compliant with human rights if the limits imposed on those rights are justified in the circumstances – such as the need for public safety.
Conclusion
The debate regarding changes to youth bail laws is far from over. Following submissions and public parliamentary debates to be held across March and April this year, politicians will have to decide whether the Bill becomes law. Not only legal professionals, but also parents, teenagers, and community organisations should be watching the debates with keen interest. All groups likely agree that the outcome of the debate, regardless of what that might be, should be evidence-based and cognisant that these laws are dealing with children. Both of these matters must remain at the fore.
References: [1] Darren Cartwright, ‘Queensland set to change its youth bail laws after recent deaths of innocent bystanders’, News.com (Web Page, 7 February 2021) <https://www.news.com.au/national/queensland/politics/queensland-set-to-change-its-youth-bail-laws-after-recent-deaths-of-innocent-bystanders/news-story/0d4d6aab9372e93614ae220dfc4a9d2c>. [2] Jessica Rendall, ‘17yo male to face more charges over deaths of Kate Leadbetter and Matt Field in Alexandra Hills, but none relate to baby's killing’, ABC News (Web Page, 9 February 2021) <https://www.abc.net.au/news/2021-02-09/17yo-murder-more-charges-deaths-kate-leadbetter-matt-field-baby/13106986>. [3] Ibid. [4] ABC News Brisbane, ‘Video: Police update on fatal Alexandra Hills crash’, (Facebook, ) 0:09:50-0:10:02 <https://www.facebook.com/watch/live/?v=485468302446147&ref=watch_permalink>. [5] Rendall (n 2), [19]. [6] Department of Youth Justice, ‘Changes to the Youth Justice Act 1992’, Queensland Government (Web Page 26 February 2021) <https://www.youthjustice.qld.gov.au/reform/changes-youth-justice-act-1992> ; Youth Justice and Other Legislation Amendment Bill 2021 (Qld), available at: <https://www.legislation.qld.gov.au/view/html/bill.first/bill-2021-007/lh#creationhistory>. [7] Bail Act 1980 (Qld) s 16, available at: <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1980-035#sec.16>. [8] In relation to a child aged 10 to 14-years-old, the Prosecution must first prove doli incapax. However, this is not required for children aged 14-years and older. To reflect the fact that some 10 to 14-year-olds may be found to have doli incapax, and therefore be prosecuted, the age range of 10 to 17-years-old is included here. [9] Bail Act 1980 (Qld) s 9, available at: <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1980-035#sec.9>. [10] Bail Act 1980 (Qld) s 16, available at: <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1980-035#sec.16>. [11] Youth Justice Act 1992 (Qld) s 47, available at: <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-044#sec.47>. [12] Bail Act 1980 (Qld) s 16(7), available at: <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1980-035#sec.16>. [13] Youth Justice Act 1992 (Qld) pt 5, available at: <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-044#pt.5>. [14] Ibid. [15] Ibid, s 48AA(5). [16] Ibid, sch 1, available at <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-044?query=VersionDescId%3D%22a96dbf7f-6095-48c6-8390-314f76b2561d%22+AND+VersionSeriesId%3D%22a179046c-ae16-46d7-a7ce-951ca486f673%22+AND+PrintType%3D%22act.reprint%22+AND+Content%3D(%22last+resort%22)&q-collection%5B%5D=inforceActs&q-collection%5B%5D=inforceSLs&q-documentTitle=Youth+Justice+Act+1992&q-prefixCcl=VersionDescId%3D%22a96dbf7f-6095-48c6-8390-314f76b2561d%22+AND+VersionSeriesId%3D%22a179046c-ae16-46d7-a7ce-951ca486f673%22+AND+PrintType%3D%22act.reprint%22&q-searchfor=last+resort&q-searchin=Content&q-searchusing=exactwords&q-year=&q-no=&q-point-in-time=04%2F03%2F2021&q-searchform=basic#sch.1>. [17] Matt Dennien and Lydia Lynch, ‘Young repeat offenders must prove why they should get bail under Qld reform’, Brisbane Times (Web Page, 9 February 2021) <https://www.brisbanetimes.com.au/national/queensland/teens-must-prove-why-they-should-get-bail-under-queensland-law-reform-20210209-p570su.html>. [18] Queensland Cabinet and Ministerial Directory ‘Tough new action to target repeat youth offenders’, Queensland Government (Web Page – Joint Statement, 9 February 2021), <https://statements.qld.gov.au/statements/91439>. [19] Youth Justice Department - Queensland, Annual Report 2019-20 (Annual Report, 2020) 19, available at: < https://www.youthjustice.qld.gov.au/resources/youthjustice/about-us/annual-report.docx>. [20] Queensland Cabinet and Ministerial Directory (n 18). [21] Ibid. [22] Youth Justice Department, ‘2020 Bail amendments passed by Parliament but not yet commenced’ Queensland Government (Web Page – Information Sheet), https://www.youthjustice.qld.gov.au/resources/youthjustice/reform/leg-changes-20.pdf. [23] Ibid, emphasis in original. [24] Youth Justice Act 1992 (Qld) s 48AD, available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-044#sec.48AD [25] Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld), 5, available at: <https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2021-007>. [26] Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld), available at: <https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2021-007>. [27] Ibid, 3. [28] Matt Dennien and Lydia Lynch (n 17); Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld), 3-4, available at: <https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2021-007>. [29] Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld), 3, available at: <https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2021-007>. [30] Ibid. [31] https://www.legislation.qld.gov.au/view/pdf/bill.first.hrc/bill-2021-007 - p. 21; Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld), cl. 6, available at: <https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2021-007>. [32] Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld), available at: <https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2021-007>. [33] Ibid. [34] Ibid, 27. [35] Scott McDougall – Queensland Human Rights Commissioner, Submission ‘Youth Justice and Other Legislation Amendment Bill 2019’ to Legal Affairs and Community Safety Committee (10 July 2019), available at: <https://www.qhrc.qld.gov.au/resources/submissions>. [36] Queensland Parliament, ‘Youth Justice and Other Legislation Amendment Bill 2021’, Queensland Parliament (Web Page, 2021), https://www.parliament.qld.gov.au/work-of-committees/committees/LASC/inquiries/current-inquiries/YJandOLAB2021. [37] Human Rights Act 2019 (Qld), s 8, available at: <https://www.legislation.qld.gov.au/view/html/asmade/act-2019-005#sec.8>. [38] Ibid, s 13(1) - available at: <https://www.legislation.qld.gov.au/view/html/asmade/act-2019-005#sec.13>.