NSW has kept its strictest bail test for teenagers. On 30 September 2026, the day before it was due to expire, the Justice Legislation Amendment (Miscellaneous) Act (No 2) 2026 was assented to.
It moves the expiry of section 22C of the Bail Act 2013 (NSW) from 1 October 2026 to 4 April 2028.
If your 14 to 17-year-old is charged with car theft or break and enter while already on bail, this is one of the toughest tests a young person can face at a bail hearing. Here’s what it says, what the review found, and what a lawyer can do at the hearing.
What does section 22C actually say?
In short: the bail authority, police or a court, must refuse bail unless it has a “high degree of confidence” the young person will not commit a serious indictable offence while on bail.
It only applies when three things line up:
- Age: the young person was 14 to 17 when the offence is alleged to have happened.
- The new charge: car theft, a serious break-and-enter offence, or the “performance crime” offence linked to one of those.
- Already on bail: they were already on bail for another offence on the same list.
Therefore, the ordinary “unacceptable risk” assessment still happens first. Section 22C is just an extra hurdle on top.
A high bar, but the prosecution still carries the onus
The wording is deliberately tough: the question isn’t whether the risk can be managed, but whether the court can be highly confident nothing serious will happen. But the prosecution still has to show why bail should be refused. Your child does not have to prove they deserve to go home.
And the test is applied “subject to any proposed bail conditions”, so the bail plan carries real weight.
What did the statutory review find?
A review by the Department of Communities and Justice was tabled in Parliament on 15 September 2026. Attorney General Michael Daley told Parliament it found section 22C “has contributed to disrupting high-risk repeat offending and addressing community concerns about youth crime, particularly in regional New South Wales.”
It had reservations too. By the Attorney General’s account, it “did not conclude that section 22C should be adopted permanently” and pointed to “significant impacts” on Aboriginal young people.
It concluded that a further 18-month extension “strikes the right balance” when combined with longer-term work on the causes of offending. The government has also announced a voluntary diversion pilot in Tamworth for children aged 8 to 13.
The review found section 22C had operated as “a temporary circuit breaker”. By April 2028, it will have been in force for four years.
The other bail change: residential rehab conditions
The same Act sets new rules for bail conditions that require someone to live in a rehabilitation facility. Police or the court must be satisfied the facility is suitable and will tell police if someone leaves early. They must also consider how secure and well supervised the facility is.
These rules apply to adults and young people alike, and commence on a date to be set by proclamation. In practice, a rehab-based bail plan will need paperwork from the facility, not just a bed.
What a defence lawyer can do at a section 22C hearing
- Check whether section 22C applies at all. Age on the date of the alleged offence, whether the charge is on the list, and whether they were on bail for a listed offence at the time all need checking.
- Build a concrete bail plan. Stable accommodation, school or training, a responsible adult, a curfew and support programs give the court something specific to be confident in.
- Hold the prosecution to its onus. It has to establish that bail should be refused.
- Use the second chance. Under section 74, if a child is refused bail at their first appearance, they can apply again to the same court. New information or changed circumstances can also open a further application.
What This Means For You
If your teenager is charged with one of these offences while on bail, assume section 22C applies until a lawyer has checked the dates and charges. Get advice before the first court appearance if you can, and start the bail plan early: where they’ll live, who will supervise them, and what they’ll do each day.
For the bigger picture, see our pieces on youth crime in NSW and NSW youth detention.
How O’Brien Criminal & Civil Solicitors Can Help
Youth bail matters move fast, and a young person held on remand can miss school and lose family contact. Our criminal defence team is led by an Accredited Specialist in Criminal Law, a credential held by fewer than 6% of NSW lawyers. We can prepare and run a bail application in the Children’s Court, including where the section 22C test applies.
For how bail applications work generally, see our guide to bail applications in NSW.
Request initial advice (no-obligation) via the form below or call us on (02) 9261 4281.
This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.
Peter O'Brien is the Principal Solicitor of O'Brien Criminal & Civil Solicitors and Australia's leading expert in intentional torts litigation, with over 25 years of experience securing landmark victories in malicious prosecution and unlawful imprisonment cases. Author of Intentional Tort Litigation in Australia and recipient of the Law Council of Australia President's Medal, Peter has achieved record-breaking compensation for clients and is widely recognised for his unwavering commitment to access to justice.
