(QLD) End the Presumption Against Bail for Children Charged with an Indictable Offence while Already on Bail

Author: Yin Jiang | Publish date: 10/10/2025

Problem Identification: 

In QLD, there is a presumption against bail for children between the ages of 10 and 17 charged with an indictable offence while already on bail for another indictable offence.

Section 48AF(2) of the Youth Justice Act 1992 (QLD) specifies that when a child is charged with an indictable offence while on bail for another offence, ‘a court or police officer must refuse to release the child from custody unless the child shows cause why the child’s detention in custody is not justified.’

This means if a child is already on bail for an indictable offence and is charged with another indictable offence, the court or police must start from a position of refusing bail. So the defence has to actively prove why the child should be released on bail. The Human Rights Law Centre (HRLC) and Change the Record highlighted this ‘fails to address the root causes of behaviour by children, it also entrenches cycles of disadvantage and harm.’

Context: 

An ‘indictable offence’ refers to a broad range of ‘serious offences’, including assault and theft. Bail means the ‘release of a person who has been charged with, but not yet convicted or acquitted of, a criminal offence.’ A presumption against bail means the onus is reversed and ‘falls on the defence to explain why the defendant should be granted bail.’ Remand refers to ‘the time spent by an accused person in custody before their charges are dealt with’, if they are denied bail. 

The Children’s Court of QLD reported the daily average number of children held in remand increased from 202 in 2020-21 to 246 in 2023-24. An increase of over 20% after new presumption against bail laws were introduced in 2021. Justice Reform Initiative (JRI) found that ‘Queensland imprisons more children than anywhere else’ in Australia.

Shona Reid, the SA Guardian for Children and Young People, has said ‘community safety matters, but locking up children doesn’t make communities safer.’ The Eastern Arrernte woman has argued incarceration often increases the likelihood of reoffending, particularly when children are detained early. After working across the child protection, young offending and out-of-home care sector for nearly two decades, she found the current system fails to provide the rehabilitation people expect. The Aboriginal and Torres Strait Islander Legal Service QLD (ATSILS) highlighted children are vulnerable to peer influence and being held in remand ‘creates … exposure to a wider negative peer group that engages in high-risk activities.’ Walker and Herting, researchers from the University of Washington, found ‘pre-trial detention was associated with a 33% increase in felony [comparable to indictable offence] recidivism and 11% increase in misdemeanour recidivism within one year.’ Reid argued that without therapeutic, community-based interventions, detention only reinforces cycles of harm rather than interrupting them.

HRLC Legal Director, Meena Singh, argued a criminal system with presumptions against bail harms detained children. Research by the Australian Institute of Criminology revealed that custodial remand removes young people ‘from their usual social support structures at a time of vulnerability, thereby increasing the risk of potential physical and psychological harm.’ Further, ATSILS found that children held in custodial remand face a significant ‘risk of being traumatised or re-traumatised in a number of ways.’ Federal Government funded legal service, Knowmore, also emphasised the heightened risk of child sexual abuse in detention environments. 

The QLD Human Rights Commission (QHRC) has reported that a presumption against bail contravenes state and international human rights conventions. The QHRC and HRLC have said under the Human Rights Act 2019 (QLD), the presumption against bail violates the right to liberty (s 29) and the right to be presumed innocent (s 32). The HRLC also said presumptions against bail undermine Australia’s commitment to Article 37 of the UN Convention on the Rights of Children that ‘no child shall be deprived of their liberty unlawfully or arbitrarily.’

Advice/Solution Identification:

The QLD Minister for Youth Justice and Victim Support should repeal section 48AF of the Youth Justice Act 1992 (QLD) to remove the presumption against bail for children charged with indictable offences while on bail for an indictable offence.

The JRI, ATSILS, HRLC, Change the Record, Knowmore, and the QHRC have called for this. The QHRC has emphasised that this change could help to uphold human rights principles, including the right to liberty and the protection of children.

Precedent:

There is domestic precedent for children not being subjected to a presumption against bail. In WA, TAS and ACT, there is no presumption against bail for children charged with indictable offences while on bail for an indictable offence.

Download the 1-Page Brief Here - (QLD) End the Presumption Against Bail for Children Charg.

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Public Support: 

1. Knowmore

2. Change the Record

3. Human Rights Law Centre

4. Justice Reform Initiative

5. Queensland Human Rights Commission

6. Aboriginal and Torres Strait Islander Legal Service (QLD) Ltd

News Coverage:

• National Indigenous Times - ‘More than 1100 children charged under new bail laws in Queensland.’ More than 1100 children and young people have been arrested and charged in Queensland through new youth bail laws, in a revelation that further undermined the state's commitment to closing the gap. By Dechlan Brennan | Tue 9 April 2024. Read the article here.

• Al Jazeera - ‘Australian state suspends human rights law to lock up more children.’ Rights defenders have expressed fears of ‘irreversible harm’ to children in Queensland after changes to the justice system resulted in more under-18s in detention. By Ali MC | Mon 18 Sept 2023. Read the article here.

• The ABC - ‘Homeless and disabled, Jordan was kept in Queensland youth detention for more than three months.’ This article discussed the experience of 16-year-old who was held on remand for 94 days whilst awaiting sentencing, yet was not convicted of any crime following this period. By Ellen Fanning | Sat 1 Apr 2023. Read the article here. 

• The Guardian - ‘“Oxymoronic”: Queensland laws found to be at odds with promise to close the gap.’ The Productivity Commission has cited harsh bail legislation as an example of changes likely to exacerbate disadvantage. By Andrew Messenger | Fri 28 Jul 2023. Read the article here.

• The Queenslander - ‘Qld to keep controversial youth crime laws.’ Controversial youth justice laws remained in Queensland despite a review showing children committed more crimes, and more serious crimes, after they were passed. By Marty Silk and Robyn Wuth | Wed 16 Nov 2022. Read the article here.

Where to go to learn more: 

• Knowmore - Submission to the inquiry into Youth Justice reform in Queensland, which recommended ending the presumption against bail for children who are charged with an indictable offence when already on bail for an indictable offence. Read the submission here.

• Aboriginal and Torres Strait Islander Legal Service (QLD) Ltd - Submission in relation to the Youth Justice and Other Legislation Amendment Bill 2021, where they recommended against presumptions against bail for children who are charged with an indictable offence when already on bail for an indictable offence. Read the submission here.

• Queensland Human Rights Commission - Submission to Legal Affairs and Safety Committee that referenced the Youth Justice and Other Legislation Amendment Bill. The submission recommended against a presumption against bail for children who are charged with an indictable offence when already on bail for an indictable offence. Read the submission here.

• The Youth Justice Act 1992 (QLD) - The Act this brief proposes to amend. Read the full Act here.

  
  

Human Perspective:

Content Warning: references to the detention of a child, isolation, and psychological distress

Jamie is a 17-year-old living in Queensland who has spent most of his life moving in and out of state care. When he was arrested for an indictable offence, while already on bail for another indictable offence, the 2021 law changes meant bail was no longer assumed. At the time, he was part of a community-based program that had been helping him build stability and trust, so he thought things were looking up. However, when his lawyer tried to argue for his release, Jamie was denied bail. Ultimately Jamie was not found guilty of any offence, but at 17 he had spent 3 months on remand. During that time there was no regular schooling or therapy, just long hours of silence and fear. He described periods of being locked in his cell for 24 hours a day with little human contact or support. Jamie felt that remaining on remand effectively interrupted his recovery and set him back into a cycle of punitive justice before he had even faced trial.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd. (2021). Legal Submission - Youth Justice and Other Legislation Amendment Bill 2021. https://atsils.org.au/wp-content/uploads/2021/03/Submission-2021-YJOLA-Bill-ATSILS-no-signature.pdf

Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd. (2023, December 22). Legal Submission: Inquiry into Youth Justice Reform in Queensland. https://atsils.org.au/wp-content/uploads/2024/08/Inquiry-into-Youth-Justice-Reform-in-Queensland-2023.pdf

Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd. (2024, February 29). Legal Submission: Inquiry into Youth Justice Reform in Queensland - Addendum submission. https://atsils.org.au/wp-content/uploads/2024/08/Inquiry-into-Youth-Justice-Reform-in-Queensland-Addendum-Submission-2023.pdf

Armstrong Legal. (2022). Indictable Offences in Queensland. https://www.armstronglegal.com.au/criminal-law/qld/offences/indictable-offences/ 

Australian Human Rights Commission. (2024, August 23). A step backwards for child justice and community safety in Queensland. https://humanrights.gov.au/about/news/media-releases/step-backwards-child-justice-and-community-safety-queensland

Change the Record, & Human Rights Legal Centre. (2024, January). Submission to the Youth Justice Reform Select Committee, Queensland Parliament. https://www.hrlc.org.au/app/uploads/2025/04/SUB_20240131_QLDYJReform_CTR_HRLC.pdf

Children's Court of Queensland. (2024). Children’s Court of Queensland Annual Report 2023-24. https://www.parliament.qld.gov.au/Work-of-the-Assembly/Tabled-Papers/docs/5824t0283/5824t283.pdf

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Dahlstrom, F. (2025). Bail Applications in the Children’s Court in Tasmania. gotocourt.com.au. https://www.gotocourt.com.au/criminal-law/tas/bail-applications-in-the-childrens-court/ 

Department of Youth Justice and Victim Support. (2024, November 25). Bail and Bail with conditions. https://www.youthjustice.qld.gov.au/parents-carers/youth-justice-system/sentencing-young-offenders/bail-and-bail-with-conditions

Department of Youth Justice and Victim Support. (2025, May 30). Changes to Youth Justice Act and Regulation. https://www.youthjustice.qld.gov.au/our-department/our-legislation/changes-act#2021-amendments-35429-339 

Human Rights Law Centre. (2025a, April 2). New laws would only serve to trap Queensland children in the criminal legal system. https://www.hrlc.org.au/news/2021-3-12-new-laws-would-only-serve-to-trap-qld-children-in-the-criminal-legal-system/

Human Rights Law Centre. (2025b, May). Miles Government endangering children in race-to-the-bottom on youth imprisonment. https://www.hrlc.org.au/news/2024-05-01-qld-youth/

Human Rights Law Centre, & Change the Record. (2024). Ending Youth Incarceration - Submission to the Senate Legal and Constitutional Affairs Committee on Australia’s youth justice and incarceration system. https://www.hrlc.org.au/app/uploads/2025/04/Human-Rights-Law-Centre-and-Change-the-Record-Submission-on-Youth-Justice-and-Incarceration-System-1.pdf

Justice Reform Initiative. (2025, January 31). Australia now spends $1 billion a year locking up children - it’s time for a smarter approach. Justice Reform Initiative | Jailing Is Failing. https://www.justicereforminitiative.org.au/australia_now_spends_1_billion_a_year_locking_up_children_it_s_time_for_a_smarter_approach 

Justice Reform Initiative. (2024). Youth Justice Reform Select Committee inquiry into youth justice reform in Queensland. https://assets.nationbuilder.com/justicereforminitiative/pages/335/attachments/original/1707172438/Youth_Justice_Reform_Select_Committee_inquiry_into_youth_justice_reform_in_QLD.pdf?1707172438 

Knowmore. (2021). Submission on the Youth Justice and Other Legislation Amendment Bill 2021. https://knowmore.org.au/wp-content/uploads/2021/03/submission-youth-justice-and-other-legislation-amendment-bill-2021-qld.pdf 

Knowmore. (2024). Submission to the Inquiry into Youth Justice reform in Queensland. https://documents.parliament.qld.gov.au/com/YJRSC-6004/YJRSC-54D8/submissions/00000119.pdf

Makela, M. (2022). Bail in Queensland. Armstrong Legal. https://www.armstronglegal.com.au/criminal-law/qld/bail/ 

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Queensland Human Rights Commission. (2021). Youth Justice and Other Legislation Amendment Bill - Submission to Legal Affairs and Safety Committee Queensland Parliament. https://documents.parliament.qld.gov.au/committees/LASC/2021/YJandOLAB2021/submissions/048.pdf

Queensland Justices Association. (n.d.). The QJA Guide to JP Practice in Queensland 5th Edition - Chapter 23: Bail And Sureties. Retrieved September 9, 2025, from https://www.qja.com.au/common/Uploaded files/Publications/Guide 5/Chapters/QJA Guide 5 Chapter 23.pdf

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Sarcevic, A. (2025, October 2). Locking up young offenders doesn’t make communities safer – an interview with Shona Reid. Informa Connect Australia. https://www.informa.com.au/insight/locking-up-young-offenders-doesnt-make-communities-safer-an-interview-with-shona-reid/ 

Sentencing Advisory Council. (2022). Sentencing definitions. https://www.sentencingcouncil.qld.gov.au/about-sentencing/sentencing-definitions#r 

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