Queensland Law Society has written to the Minister for Children and Youth Justice and Minister for Multicultural Affairs, Leanne Linard, about bail decisions affecting children and young people.
Members practising in the youth justice jurisdiction have reported that it is the practice of Queensland Police Service (QPS) officers to seek review of bail decisions by Childrens Court Magistrates in the Supreme Court pursuant to the section 19B(2) of the Bail Act 1980 (examples Re JRP  QSC 33 and Re JTL  QSC 211) rather than seeking a revocation under section 59 of the Youth Justice Act 1992, whereby the matter would be heard before a judge of the Childrens Court of Queensland.
In its correspondence QLS highlighted that, as a result of the 2021 amendments to the Youth Justice Act 1992 and the appointment to the QPS of 16 ‘special Childrens Court prosecutors’, judges of the Supreme Court had observed a significant increase in applications to that court pertaining to children under section 19B(2) of the Bail Act 1980.
In general, the only offences that are referred to the Supreme Court for children’s matters are those that are unable to be heard in the Childrens Court of Queensland. These correspond to charges that adults cannot have determined in the District Court.
For children, these are murder, manslaughter and trafficking, and their occurrence is exceptional. Consequently, the number of young people who appear in the Supreme Court has traditionally been about 0.1% of children in the youth justice court system, with the Childrens Court of Queensland dealing with about 10% (see Childrens Court of Queensland Annual report 2019-2020).
QLS emphasised that, when dealing with children and young people, it is desirable to have those matters heard by a judge with specialist knowledge of children and the resolution of children’s matters.
Section 59 of the Youth Justice Act 1992 provides:
- Subject to this part, a Childrens Court judge may—
- grant bail to a child held in custody on a charge of an offence; or
- enlarge, vary or revoke bail granted to a child in, or in connection with, a criminal proceeding within the meaning of the Bail Act 1980;
whether or not the child has appeared before the Childrens Court judge in, or in connection with, the offence or criminal proceeding.
- Subsection (1)(a) applies even if the child has previously been refused bail by the Childrens Court.
- Despite the Bail Act 1980, section 13(1), a Childrens Court judge may grant bail to a child in relation to whom that section applies.
- This section does not limit the power a court or person ordinarily has to grant, enlarge, vary or revoke bail.
The Society acknowledged the uncertainty as to whether the Childrens Court has jurisdiction to hear a review application for a decision by the Childrens Court to grant bail. However, it maintained that, in its view, section 59 of the Youth Justice Act 1992 can be relied upon in certain circumstances to bring an application in the Childrens Court to enlarge, vary or revoke a grant of bail.
The practice of the QPS has been to not use section 59 to bring an application in the Childrens Court to review a decision of the Childrens Court to grant bail. Consequently, the QPS has brought a number of applications to the Supreme Court and does not use the specialist jurisdiction of the Childrens Court of Queensland to seek to revoke bail.
QLS noted its concern with this approach as bail applications involving young offenders were not being resolved in the specialist jurisdiction of the Childrens Court. It expressed a preference for matters involving young offenders to be resolved in a specialised court, such as the Childrens Court, where the judiciary are familiar with youth justice issues and the operation of the Youth Justice Act 1992. In this regard, it also noted the need to alleviate the additional workload for the Supreme Court.
The Society proposed that, in order to clarify the operation of section 59 and to remove any doubt of the jurisdiction of the Childrens Court of Queensland, the following amendment to section 59(2) of the Youth Justice Act 1992 be enacted:
(2) Subsection (1) (a) applies even if the child has previously been refused or granted bail by the Childrens Court
The Chair of the QLS Children’s Law Committee and Manager, Legal Policy. will meet with representatives from the Minister’s office to discuss these matters.