How is bail decided for a young person in Victoria?
Bail for a young person is decided under the same law as for an adult, but with an extra layer built for children.
The governing Act is the Bail Act 1977 (Vic), and the same core question applies to everyone: whether the person is an unacceptable risk of failing to appear, committing an offence, endangering someone, or interfering with a witness, and whether that risk can be managed with conditions.
What is different for a young person is that the Children’s Court of Victoria usually decides the matter, and the decision maker must also work through a set of considerations that exist only for children. That extra layer is the heart of what makes youth bail different.
Who decides bail for a child?
More people than parents often expect, and the first decision usually happens fast. When a young person is arrested, police decide in the first instance whether to release them on bail or hold them.
If police refuse bail and a court is not sitting, a bail justice can make an out-of-hours decision, which is why a bail hearing can happen late at night or on a weekend. If bail is still refused, the young person must be brought before the Children’s Court, which then decides.
Each of these decision makers is applying the same Bail Act, so getting advice early, before the first decision hardens into a refusal, can make a real difference.
What makes youth bail different from adult bail?
The child-specific considerations, which an adult never gets. Because a young person is still developing, the law has long recognised that a decision to hold them in custody carries different risks and consequences than it does for an adult, and it builds that recognition into the bail decision itself.
The child-specific considerations in section 3B
This is where the difference is written into law. Section 3B of the Bail Act 1977 (Vic) requires a bail decision maker, when the person is a child, to take into account a list of matters that reflect the child’s situation.
These include the child’s age, maturity, and stage of development, the need to impose the minimum intervention required in the circumstances, and the presumption that a child aged 12 or 13 may not be criminally responsible.
They also include the importance of continuing the child’s education, training, or employment with as little disruption as possible, the value of keeping the child connected to their parents, carers, and community, and the desirability of not exposing the child to the stigma and harm that custody can cause.
The section also asks the decision maker to be alert to the over-representation of Aboriginal children, children in child protection, and children from culturally and linguistically diverse backgrounds in the justice system. None of these factors appear in an ordinary adult bail decision, and together they are meant to make custody a more considered step for a child than for an adult.
Just as important as the list is how it operates. Many of these child-specific factors must be considered whether or not evidence is led about them, so a lawyer does not have to prove that education matters or that custody causes harm before the court weighs it.
That places real value on presenting a young person’s circumstances properly, because the more a court understands about the child’s schooling, home, health, and support, the more material it has to work with.
A well-prepared bail application for a young person is often as much about who the child is and what support surrounds them as it is about the strength of the charge, and Victoria Legal Aid and youth practitioners consistently stress how much this preparation can shift an outcome.
Doli incapax and the minimum age
The starting point for any child case is whether the child can be charged at all. In Victoria, the minimum age of criminal responsibility is now 12, having been raised from 10, so a child under 12 cannot be charged with a criminal offence at all.
For children aged 12 and 13, the presumption of doli incapax applies, meaning the prosecution must prove the child knew their conduct was seriously wrong, not merely naughty or mischievous.
This matters for bail because a charge that may not survive doli incapax is a weaker charge, and the strength of the prosecution case is always part of the bail picture. It is one more reason the age and stage of a young person is not a side issue but is central to how their matter is approached from the very start.
What changed in 2025, and why it matters
A lot, and it narrowed the gap between youth and adult bail. On 26 March 2025, significant amendments to the Bail Act 1977 (Vic) commenced, and they changed the framework for everyone, including children.
The headline change is a new overarching principle in section 1B: Parliament now recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and of people affected by crime.
That community safety principle applies to all bail decisions, so it now sits over the top of a young person’s bail application in a way it did not before.
The change that matters most for young people is more specific. Before 2025, the child-specific considerations expressly treated the remand of a child as a “last resort,” language that placed a high bar on holding a young person in custody.
The 2025 amendments removed that “last resort” wording, so while the section still requires the minimum intervention required in the circumstances, it no longer frames custody as an option of last resort in those terms. In practice this means the distance between how a child and an adult are treated on bail has shrunk, and a young person can now be remanded in circumstances where, before the change, the last-resort principle might have kept them in the community.
Legal and human rights bodies, including the National Children’s Commissioner, publicly criticised the change, which is a sign of how consequential it is for young people.
For a parent, the practical takeaway is that youth bail is no longer as protective as it was, which makes early, capable representation more important than ever.
What conditions can be placed on a young person’s bail?
Real conditions, and they can shape daily life. When a young person is granted bail, the court can attach conditions designed to manage risk and keep them on track, and for children these are often oriented toward structure and support.
Common conditions include living at a specified address, usually with a parent or carer, reporting to police or Youth Justice at set times, observing a curfew during certain hours, staying away from particular people or places, and continuing to attend school, training, or a program.
Conditions are supposed to be no more onerous than necessary, which reflects the section 3B focus on minimum intervention, so a condition that is unworkable for a young person can often be challenged or varied. The aim is to build conditions a young person can actually keep, because a condition that is bound to be breached helps no one.
It is worth understanding how breaches are treated, because they carry real consequences for a young person. If a young person does not follow a bail condition, or does not turn up to court, they can be arrested and brought back before the court, and the likely response is stricter conditions or, in some cases, a refusal of bail altogether.
Since 2025, there is also an offence under section 30B of the Bail Act of committing an indictable offence while on bail, which adds a further layer of risk to reoffending during a bail period.
For a young person this makes the choice of conditions at the outset genuinely important, because conditions that are set up to succeed, with support around them, are far more likely to keep a young person both in the community and out of further trouble than conditions that look tough on paper but are impossible to keep in practice.
What happens if a young person is refused bail?
They are remanded, but not in an adult prison. If bail is refused, a young person dealt with in the Children’s Court is held on remand in a youth justice centre, separate from adults, rather than in an adult prison. Remand is meant to be a period in custody while the case is ongoing, not a sentence, and it can be reviewed.
A refusal of bail is not necessarily the end of the story, because a fresh application can sometimes be made if circumstances change, for example if a suitable address, a place in a program, or additional support becomes available. The Children’s Court can also hear a further application, and higher courts have their own review avenues.
Because time in custody weighs heavily on a young person’s education, mental health, and family connection, moving quickly to put a strong application together is important, and this is exactly the kind of situation where experienced advice earns its place.
So what should you do if your child has been charged?
Treat the first 24 hours as critical, and get advice straight away. Bail for a young person can be decided within hours of arrest, sometimes by police or a bail justice before a court is even involved, and the 2025 changes mean the protections that once favoured keeping a child out of custody are weaker than they were.
Do not let a young person be interviewed by police without advice, gather the practical things a court will want to see such as a stable address, school enrolment, and support, which our guide for parents walks through, and get a lawyer involved before the first bail decision if you possibly can.
If your child has been arrested or charged in Victoria, speak with a criminal defence lawyer as early as possible, so their bail application is prepared properly and their circumstances are put before the court in the best possible way.
