Every year in New South Wales, scores of children are locked up because they don’t have a safe place to live. About one-third of them are Indigenous; about half are in the care of the state. Some are fleeing domestic violence, others have a mental illness, or are waiting on a place in a refuge or rehab for a drug or alcohol addiction.

Some homeless youth facing criminal charges in NSW are being accommodated in prisons. Adrian Fallace/flikr, CC BY
Some homeless youth facing criminal charges in NSW are being accommodated in prisons. Adrian Fallace/flikr, CC BY

The NSW Department of Justice reports that children charged with a criminal offence who were unable to meet their bail conditions were kept in custody on 67 occasions in 2015-16 alone.

Under NSW law, a child awaiting trial is presumed innocent of charges and has a right to be at liberty. So why are homeless kids ending up in custody?

In part, it’s because there’s section in NSW’s Bail Act that disadvantages these children. Despite being designed to protect children, it operates as an example of a policy that looks good on paper but, in reality, can have disastrous results.

A well-meaning section of the NSW Bail Act

Under Section 28 of the Bail Act a court may impose an “accommodation requirement” when granting bail – that is, bail is dependent on the child having suitable accommodation. If accommodation is not available, the child will not be released.

The law was designed to overcome the fact that hundreds of homeless children each year were remanded in custody despite conditional bail having been granted.

Approximately 90% of them spent an average of eight days in custody as a result.

Homeless children were often required to “to reside as FACS directs” – a bail condition that presupposed that Family and Community Services (FACS) would provide them with accommodation.

But the Children’s Court was unable to compel FACS to provide accommodation to children. As some commentators have noted, FACS either could not, or would not, find children accommodation and there was no legally enforceable obligation on it to do so.

According to one NSW Children’s Court judge:

… the detention of such children … because they have no appropriate bail accommodation starkly demonstrates … how the criminal justice system may be inappropriately used for essentially welfare issues.

The NSW parliament attributes this failure of support and care services to a dramatic increase in the juvenile remand population, which increased by one-third between 2007 and 2008 alone.

Section 28 has not fixed the problem

Championed by the NSW Ombudsman and many children’s advocates and legal representatives, Section 28 was meant to ensure that children were not turfed out onto the street or kept in jail because they hadn’t anywhere safe to go.

Anecdotally, bureaucrats and judicial officers say Section 28 is working because it puts pressure on agencies – such as FACS – to find children granted bail safe and suitable accommodation. But statistics show the proposed solution has failed many children who remain in custody.

The state still cannot be compelled to provide accommodation to homeless children. At best, the Children’s Court can only require agencies to report every two days on what progress has been made to find accommodation. If none has been found, the child remains in custody.

An offence against UN and local laws

Section 28 goes against UN Convention on the Rights of the Child, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

It breaches a range of UN rules and guidelines: the Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”), the Guidelines for the Prevention of Juvenile Delinquency (the “Riyadh Guidelines”), and the Rules for the Protection of Juveniles Deprived of their Liberty.

While some of these instruments are not enforceable in Australia, they hold considerable sway.

Section 28 also offends against local law. Section 6 of the [NSW Children (Criminal Proceedings) Act]((https://www.austlii.edu.au/au/legis/nsw/consol_act/cpa1987261/), for example, requires that the penalty imposed on a child for an offence should be no greater than that imposed upon an adult who commits an offence of a similar kind.

The effect of Section 28, however, is that a child without suitable accommodation may be detained in circumstances where a homeless adult, charged with a like offence would not.

Children in out-of-home care are still disadvantaged

My research shows children in state care – who make up less than 1% of the NSW population – are especially vulnerable to being incarcerated because they lack suitable accommodation.

I found that twice as many children in care had been homeless at some point in their lives, compared to children who had never been in care (48% to 22%). I also found that placement in care was no guarantee a child would receive stable, secure accommodation or assistance from the child welfare department.

This is a long-standing problem. In 1992, girls in care were 40 times more likely to be remanded in custody than girls who had never been in care, purely because they were unable to meet bail conditions related to their welfare status (poverty, homelessness, exposure to abuse and lack of agency support).

Last year, the largest survey of homeless youth in Australia reported that two-thirds of children had been in care. NSW Premier Mike Baird has also said that people who had grown up in the care of the state make up 60% of the homeless population.

The ‘university of crime’

Being in custody, even for short periods of time, increases the likelihood of criminal behaviour. Prisons are “universities of crime” where offenders can learn new techniques from their peers.

Prisons fracture community and family ties, may harden and brutalise inmates, and can worsen a person’s mental health. They can lead to physical and psychological hardship and the risk of assault or of death in custody.

The crime-producing effects continue post-incarceration: former inmates are labelled, de-skilled, less employable, and may rely on criminal networks established in custody to get by. They have access to benefits and social programs, and families of offenders and their communities may also be drawn into crime and the criminal justice system.

The UK’s Prison Reform Trust has described the detention of children in care for reasons unrelated to their offending, such as homelessness or absconding, as a breach of the child welfare authorities’ statutory duty to protect and promote child welfare.

It is about time that NSW authorities were likewise held to account for their plans and policy tweaks that have achieved nothing to help our most vulnerable children stay out of jail.