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(VIC) Reinstate 'Remand as a Last Resort' for Children
- Maham Ahmed
- Oct 15
- 6 min read
Updated: Oct 16
Author: Maham Ahmed | Publish date: 15/10/2025
Problem Identification:
In VIC, children can be held on remand even when it is not a last resort.
Section 3B(1) of the Bail Act 1977 (VIC) previously required that detention of a child on remand must be a last resort. However, this requirement was removed in March 2025.
According to criminal lawyer Shaun Pascow, this means that courts are no longer legally required to consider detention as a last resort in bail decisions for children. The Australian Human Rights Commission (AHRC) argued that this approach does not improve community safety, has imposed significant financial burdens, and has been applied even in circumstances where safer and more effective alternatives were available. The Human Rights Law Centre (HRLC) has also stated that this has caused trauma amongst children and contradicted international human rights obligations.
Context:
Remand refers to when alleged offenders ‘are held in custody before and during their trial (on criminal charges) by order of a court.’
According to Anne Hollands, the National Children’s Commissioner, remanding children does not improve community safety. Dr. Mindy Sotiri, the Executive Director of the Justice Reform Initiative (JRI) has stated, in regards to the VIC bail law changes, that ‘the evidence is very clear that punitive bail laws do not deter crime, and locking people up on remand does not ultimately make the community safer.’ She further emphasised that community safety is better protected through evidence-based, community-led programs like diversion, bail support and housing.
Additionally, the HRLC has said that the absence of remand as a last resort would ‘condemn generations of children… to the damage and trauma of pre-trial detention.’ The Aboriginal and Torres Strait Islander Legal Service (QLD) Ltd (ATSILS) elaborated that children held in custodial remand face a significant ‘risk of being traumatised or re-traumatised in a number of ways’. Research by the Australian Institute of Criminology has shown 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. The HRLC has further warned that ‘children are at risk of being subjected to harmful practices including solitary confinement’. Additionally, Knowmore, an independent legal service, emphasised the heightened risk of child sexual abuse in detention environments.
Moreover, the JRI has argued that youth detention places ‘a growing financial burden on taxpayers.’ The Institute of Public Affairs reported costs of approximately $1.2 million per child spent annually, with VIC spending $264 million overall in 2023-24 alone. The JRI also noted ‘there is no doubt that this amount will keep increasing unless governments shift focus to community-led responses that address the root causes of crime.’
Furthermore, the HRLC has highlighted that the 2025 changes have contradicted Australia’s obligations under the United Nations Convention on the Rights of the Child. According to the Convention, it is required that the detention of children ‘shall be used only as a measure of last resort and for the shortest appropriate period of time’. However, the AHRC’s ‘Help Way Earlier!’ report argued that ‘restrictive bail laws directed at children who offend have undermined… the principle of detention as a last resort’.
Advice/Solution Identification:
The VIC Attorney-General should amend section 3B of the Bail Act 1977 (VIC) to reinstate the requirement that remand must only be considered as a last resort after all alternative, non-custodial measures have been assessed and deemed unsuitable.
Victoria Legal Aid (VLA), the JRI, the Victorian Aboriginal Legal Service (VALS), AHRC and the HRLC have called for this. VLA, the JRI and AHRC have advocated for more evidence-based approaches to address the root causes of crime and invest in evidence-based, community-led programs outside of prisons. VLA has stated that:
Remanding more people is a band-aid approach. Instead, we need to take meaningful action to reconnect children to their communities and education, and to address the underlying causes of crime.
Precedent:
There is a domestic precedent for enshrining the principle of remand as a last resort for children. In ACT, it is mandated that a child may only be detained in custody as a last resort and for the minimum time necessary.
Public Support:
News Coverage:
The Guardian - "What the case of a young man accused of violent crimes reveals about Victoria's new bail laws". This article illustrated the complexities and implications of the new bail legislation using a specific legal case. By: Nino Bucci | Wed 2 April, 2025 - Read the article here.
The Saturday Paper - "Victoria's bail reforms won't make communities safer". The article argued the new laws were a political move that would be ineffective at increasing community safety. By: Marilyn McMahon | Sat 29 March, 2025 - Read the article here.
ABC News - "Victoria struggles to find balance in bail laws after more than a decade of changes". This article has broken down the key changes to VIC bail laws, including the reasons for their introduction and the likely impacts. By: Judd Boaz | Thu 13 March, 2025 - Read the article here.
Where to go to learn more:
Victoria Legal Aid - Their “Going Backwards” Bail Laws Briefing provided a practitioner perspective on how the removal of “last resort” remand has already impacted vulnerable children. Read their briefing here.
Victorian Aboriginal Legal Service & Partners - Their joint statement on bail law reform outlined how more children, particularly First Nations youth, are being detained due to recent legislation. Read their statement here.
Centre for Innovative Justice - Their review of Victoria Legal Aid’s remand services provided detailed findings and recommendations on legal and non-legal supports for young people on remand. Read the independent review here.
UN Convention on the Rights of the Child - Enshrined the international standard that arrest, detention, or imprisonment of children should be a last resort and for the shortest period. Review the treaty text here.
Bail Act 1977 (VIC) - Read the full Act here.
Children and Young People Act 2008 (ACT) - The Act contained existing domestic precedent, which mandated that detention of children be used only as a last resort. View the legislation here.
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:
Allan, J. (2025, March 12). Tough Bail Laws To Keep Victorians Safe. Premier of Victoria.
https://www.premier.vic.gov.au/tough-bail-laws-keep-victorians-safe
Australian Human Rights Commission. (2025, March 21). National Children’s Commissioner condemns new Victorian bail laws as a backward step [media release].
Bail Act 1977 - Section 3B Determination in relation to a child (VIC).
https://www5.austlii.edu.au/au/legis/vic/consol_act/ba197741/s3b.html
Children and Young People Act 2008 - SECT 94 (VIC).
https://classic.austlii.edu.au/au/legis/act/consol_act/caypa2008242/s94.html
Children, Youth and Families Act 2005 (VIC). https://content.legislation.vic.gov.au/sites/default/files/2024-10/05-96aa139-authorised.pdf
Convention on the Rights of the Child. (2024). Retrieved from IHL Databases.
https://ihl-databases.icrc.org/en/ihl-treaties/crc-1989/article-37
Corrections, Prisons & Parole Victoria. (2025). Remand. Victoria State Government.
https://www.corrections.vic.gov.au/being-in-prison/remand
Department of Justice and Community Safety Victoria. (2022). Youth Justice Strategic Plan 2020-2030 - Delivering age-appropriate responses for 10 to 14 year olds. Victoria State Government.
Human Rights Law Centre. (2025, March 12). Bail saves lives, but Allan Government’s proposed bail laws repeat past failures [media release].
https://www.hrlc.org.au/news/bail-saves-lives/
Human Rights Law Centre & Change the Record. (2024, October 10). Ending Youth Incarceration: Submission to the Senate Legal and Constitutional Affairs Committe 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
Judicial College of Victoria (2025). Bail Act amendments commenced on 26 March 2025.
https://judicialcollege.vic.edu.au/news/bail-act-amendments-resources-now-available
Justice Reform Initiative. (2025, January 31). Australia now spends $1 billion a year locking up children—it’s time for a smarter approach [media release].
Knowmore. (2024, January 9). Youth Justice Reform Select Committee inquiry into youth justice reform in Queensland. Submission no. 119.
https://documents.parliament.qld.gov.au/com/YJRSC-6004/YJRSC-54D8/submissions/00000119.pdf
Parliament of Australia. (2019). Chapter 4 - Human rights compliance in the youth justice and detention system.
Parliament of Victoria. (2025, March 20). Bail Amendment (Tough Bail) Bill 2025 - Bills https://www.parliament.vic.gov.au/parliamentary-activity/hansard/hansard-details/HANSARD-974425065-30322
Pascoe, S. (2025, March 23). Bail becomes more restrictive particularly for young offenders. Pascoe Criminal Law.
Richards, K., & Renshaw, L. (2013). Bail and remand for young people in Australia: A national research project. Australian Institute of Criminology. https://www.aic.gov.au/sites/default/files/2020-05/rpp125.pdf
Schlicht, M. (2025, January 31). Skyrocketing Youth Detention Costs Shows Criminal Justice Reform Needed. Institute of Public Affairs [media release].
Victoria Government (2025, October 2). Bail laws.
https://www.vic.gov.au/bail-laws
Victorian Aboriginal Legal Service. (2025). Bail Saves Lives. https://www.vals.org.au/bailsaveslives/
Victoria Legal Aid. (2025, March 12). Going backwards on bail laws will harm the state’s most marginalised people. Victoria State Government.
https://www.legalaid.vic.gov.au/going-backwards-bail-laws-will-harm-states-most-marginalised-people
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