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The NSW government has extended section 22C of the Bail Act until 2028, requiring courts to refuse bail for children accused of serious repeat offences unless there is a high degree of confidence they will not reoffend. Judges, legal experts and the Aboriginal Legal Service have criticised the laws as unfair and more punitive toward children, particularly Aboriginal children, while the government says they have reduced bail grants and regional youth crime.
Judges and magistrates had repeatedly warned that the Minns government’s youth bail reforms unfairly treated children more harshly than adults accused of the same crimes, before the laws were extended.
Experts have also claimed children are being “overcharged” by police seeking to attract the stricter bail test, leading to them spending time in prison without justification. Attorney-General Michael Daley last month announced the extension of the government’s tough youth bail laws despite criticism from judges. The Aboriginal Legal Service said it had “significant concerns about the potential for misuse” of the law through police over-charging, noting it was “gravely concerned” about its disproportionate use against Aboriginal children.
The government last month announced it would extend its controversial youth bail laws, 22C, until 2028.charged with repeated break-and-enter and car-theft offences. The new laws required the courts to refuse bail to children charged with those offences unless they had a high degree of confidence they would not reoffend, with the government describing them as a “circuit breaker” after concerns about youth crime in some regional areas.
Announcing the extension beyond its existing sunset clause in September, Attorney-General Michael Daley pointed to a statutory review of 22C that he said had resulted in a fall in bail rates and youth crime. A spokeswoman for his office said the government “acknowledges the genuine concerns raised regarding the over-representation of Aboriginal young people in the criminal justice system”.
“We introduced and extended the 22C bail test to help keep people safe. This is a fundamental obligation of government and something the community rightly expects,” he said.
“The results are clear: 22C has helped disrupt high-risk offending and stabilise youth crime rates in regional NSW as part of a broader suite of measures. ” The laws have been widely criticised by judges since they were introduced in 2024.
Last year Supreme Court Justice Julia Lonergan noted, in a decision over a 14-year-old Aboriginal boy charged with allegedly engaging in a police pursuit while on bail for aggravated break and enter, that the law required “children to be treated less favourably, and their liberty treated less favourably” than adults charged with the same offence. The “unfairness” caused by 22C was “thrown into sharp relief”, she wrote, by the fact she had been advised the charges in the case were likely to be withdrawn.
The boy had already spent three months in jail as a result of the charges, she noted.
“That means that I am required to go through a process under the Bail Act that if more care was applied to the proper assessment of charges levelled against children in the first place, I would not have to do,” Lonergan wrote in the judgment. Lonergan’s comments followed similar critiques by other judges.
In 2024 the Supreme Court Justice Dina Yehia noted 22C was “more onerous” than “show cause” offences, which require adults accused of serious crimes including murder and grievous bodily harm to justify why they should be released on bail. The most scathing critique came from Justice Stephen Rothman AM, in another case involving a 14-year-old Aboriginal boy.
In the judgment Rothman described 22C as a “ham-fisted attempt to deal with a political difficulty” that “creates significant problems for the administration of justice and does not deal with the problem that was sought to be overcome”. Rothman, like Lonergan, noted the law created an “arbitrary differentiation” that treated children more harshly than adults.
He pointed out that in a case involving two co-offenders aged 17 years and 11 months, and 18 years and one month, the younger person would be subject to a stricter bail test.
“The arbitrary differentiation now applicable under this bail provision treats those, on average, less mature and less capable of executive functioning … as requiring stricter measures than adults,” the judge wrote. The judicial criticisms were made before a statutory review into the laws recommended that they be extended, concluding 22C was “likely to have contributed to the short-term disruption of high-risk offending and the longer-term stabilisation of youth crime rates in regional NSW”.
However, it also found that offending had peaked before the law was introduced, and noted significant criticisms of the law, including its disproportionate application to Aboriginal children. In a submission to the review, the Aboriginal Legal Service said it had appeared in multiple matters where police laid more serious charges attracting the application of 22C, “only for those offences to be withdrawn by police or not be proven at court”.
That, it feared, was a result of “over-charging” by police, noting a decision in which a judicial officer had suggested a serious charge was “improperly laid … to invoke the higher bail threshold”. Data compiled by the Bureau of Crime Statistics and Research for the review revealed Aboriginal children made up 79 per cent of those captured by 22C, and 83 per cent of those refused bail under the law.
It noted a case in which a 16-year-old Aboriginal girl spent seven weeks on remand despite a limited criminal history, before she was ultimately acquitted of the charges that led to her detention. ALS acting chief executive Sharif Deen said there was “clear evidence the premier’s legislation is having a discriminatory effect: 80 per cent of children imprisoned under the laws he introduced in 2024 are Aboriginal”.
“Because of failed NSW youth justice policy like these bail laws, the vast majority of children in NSW jails have not had their day in court or been found guilty of a crime,” he said. Start the day with a summary of the day’s most important and interesting stories, analysis and insights.
Youth Bail Laws Section 22C Aboriginal Children Juvenile Justice Police Overcharging
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