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Children and bail

Summary of bail law in the children’s court.

The Bail Act 1977 (Vic) applies to children who are accused of committing an offence unless that Act conflicts with the Children and Young Persons Act 2005 (Vic).

The Children’s Court website shows in table form when the Bail Act does not apply.

See Children’s Court—Criminal Division—Custody and bail(opens in a new window).

If child is taken into custody

If a child is taken into custody by a police officer the child must be either:

  • released unconditionally (without being charged), or
  • released on bail by a sergeant of police or officer in charge of the police station, or
  • brought before the court, or
  • brought before a bail justice if the court is not sitting (must be within 24 hours of being taken into custody).

If the child has been accused of murder or treason, bail decisions may only be heard by a court.

Note: Children living in rural areas may be in custody for up to 48 hours before being brought before a bail justice.

See s. 346—Children, Youth and Families Act 2005 (Vic)(opens in a new window) and Who is a child? and Who makes bail decisions.

If impractical to bring an arrested child before the court

If it is not practical to bring an arrested child before the court immediately for a bail decision, it is the responsibility of the bail decision maker to make sure that the child's parent or guardian or independent person are present during a bail proceeding.

Some bail decisions can only be heard and determined by a court, such as treason and murder. See Who makes bail decisions.

See s. 10(3), 10(4)—Bail Act 1977 (Vic)(opens in a new window).

Making a decision about bail for a child

When a court is making a decision about granting bail to a child the court must take into account:

  • the child's age, maturity and stage of development at the time of the alleged offence;
  • the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort;
  • the presumption at common law that a child who is 10 years of age or over but under 14 years of age cannot commit an offence;
  • the need to preserve and strengthen the child's relationships with—
    • the child's parents, guardian and carers; and
    • other significant persons in the child's life;
  • the importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community;
  • the importance—
    • of supporting the child to engage in education, or in training or work; and
    • of that engagement being subject only to minimal interruption or disturbance;
  • the need to minimise the stigma to the child resulting from being remanded;
  • the fact that time in custody has been shown to pose criminogenic and other risks for children, including—
    • a risk that the child will become further involved in the criminal justice system; and
    • a risk of harm;
  • the need to ensure that the conditions of bail—
    • are no more onerous than is necessary; and
    • do not constitute unfair management of the child;
  • the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort’s over-representation in the criminal justice system—
    • Aboriginal children;
    • children involved in the child protection system;
    • children from culturally and linguistically diverse backgrounds;
  • whether, if the child were found guilty of the offence charged, it is likely—
    • that the child would be sentenced to a term of imprisonment; and
    • if so, that the time the child would spend remanded in custody if bail is refused would exceed that term of imprisonment;
  • any of the following issues that arise—
    • any ill health the child experiences, including mental illness;
    • any disability the child has, including physical disability, intellectual disability, cognitive impairment and developmental delay;
    • the impact on the child, and on the child’s behaviour, of any experience of abuse, trauma, neglect, loss, family violence or child protection involvement, including removal from family or placement in out of home care;
  • any other relevant factor or characteristic.

Note

If the child is also an Aboriginal person, the bail decision maker must also take into account the issues that apply to Aboriginal persons and are set out in 3A(1).

These issues include:

  • the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;
  • the risk of harm and trauma that being in custody poses to Aboriginal people;
  • the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community;
  • any issues that arise in relation to the person's history, culture or circumstances, including the following—
    • the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;
    • any experience of out of home care, including foster care and residential care;
    • any experience of social or economic disadvantage, including homelessness and unstable housing;
    • any ill health the person experiences, including mental illness;
    • any disability the person has, including physical disability, intellectual disability and cognitive impairment;
    • any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child;
  • any other relevant cultural issue or obligation.

They may also take into account any recommendations or information contained in a report by a bail support service.

See ss. 3A(1) and 3B—Bail Act 1977 (Vic)(opens in a new window).

Child with no accommodation

Bail must not be refused to a child just because the child does not have any, or any adequate housing. An independent person may take action to facilitate the granting of bail. For, example they could arrange accommodation for the child.

See ss. 3B(3), 10(4), 10A(4)—Bail Act 1977 (Vic)(opens in a new window).

Serious offences where bail decisions must be made by a court

The Bail Act 1977 limits who can make decisions about bail for the most serious offences. However, the Act makes exceptions where these offences have been committed by children and other vulnerable groups. A court need not hear a bail decision for a Schedule 2 offence (or some schedule 1 offences) if the accused person is a child.

See Who makes bail decisions.

Capacity to make undertakings

If a court or bail justice believes that a child does not have the capacity or understanding to give a bail undertaking, the child may be released on bail if the child's parent or some other person gives an undertaking. This can include any amount that a court, police or bail justice believes is appropriate to produce the child at the relevant court venue.

See s. 16B—Bail Act 1977 (Vic)(opens in a new window).

Review of bail conditions

At the first court hearing where the child is present after bail has been granted (by the police, bail justice or person authorised under the Fines Reform Act 2014) the court must make sure that the conditions of bail are:

  • no more onerous than is required to achieve the purpose, and
  • that they are reasonable considering the nature of the offence and the circumstances of the accused.

The court can make any variations to the bail conditions that are necessary.

See s. 5AA—Bail Act 1977 (Vic)(opens in a new window) and s. 115(5)—Fines Reform Act 2014 (Vic)(opens in a new window).

If bail is refused by a court

If the court decides to refuse bail to a child they must not remand a child in custody for longer than 21 days. However this may be extended for a further periods of no longer than 21 days.

See ss. 10A(6), 12(4), (5)—Bail Act 1977 (Vic)(opens in a new window).

Return of a child to a youth justice centre

If a proceeding is adjourned in the Magistrates Court, or in the County or Supreme Court for a young person who is serving a sentence of detention in a youth justice centre, that court can order that the accused person be returned to the custody of the Department of Justice and Community Safety until the hearing resumes or until their sentence ends (whichever happens sooner) instead of remanding the person in custody.

The end of sentence means when the person is released from custody, whether or not they are released on parole.

If the young person is returned to the youth justice centre, the court may order to:

  • grant bail on the condition that bail is not entered until the end of their current sentence, or
  • to refuse bail and direct the person to be brought before the court at a later date for bail to be considered.

If DHHS objects to the return of the person the court may still make this order, but only after considering:

  • the history and behaviour of the accused
  • their age and maturity
  • any evidence of their behaviour while in custody
  • any application has been made to the Youth Parole Board, or
  • any other relevant factor.

See s. 5A—Bail Act 1977 (Vic)(opens in a new window) and s. 333(3)—Criminal Procedure Act 2009 (Vic)(opens in a new window).

More information

Legislation

Bail Act 1977 (Vic)

  • s. 3B—decision about bail that relates to a child
  • s. 4—person whether an adult of child is entitled to bail except in circumstances where bail must be refused
  • s. 5AAA—conduct conditions of bail
  • s. 5AA—conditions of bail granted to a child
  • s. 5A—power to return an accused to a youth justice centre
  • s. 10A—power of a bail justice to grant or refuse bail
  • s. 12—power of court to grant or refuse bail
  • s. 16B—capacity of children to enter into an undertaking
  • s. 30A—offence to contravene certain conduct conditions
  • s. 30B—offence to commit an indictable offence while on bail

See Bail Act 1977 (Vic)(opens in a new window).

Children, Youth and Families Act 2005 (Vic)

  • s. 346(6)—the Bail Act applies to children unless there are inconsistencies with this Act
  • Part 5.2 Division 1—custody and bail
  • s. 410—court may make a youth residential centre order
  • s. 411—youth residential centre orders (presumption of concurrency)
  • s. 412—court may make a youth justice centre order
  • s. 413—youth justice centre orders (presumption of concurrency)

See Children, Youth and Families Act 2005 (Vic)(opens in a new window).

Criminal Procedure Act 2009 (Vic)

  • s. 333—power to return the accused person to a youth justice centre if they are undergoing a sentence of detention in a youth justice centre

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

Fines Reform Act 2014 (Vic)

  • s. 115—person to whom an enforcement warrant may be issued, who can execute the warrant

See Fines Reform Act 2014 (Vic)(opens in a new window).

The 'Youth' practice resource section on VLA intranet has more detailed information about bail and children.

See Children’s bail(opens in a new window).

Updated