Two mothers have settled a case against NSW Police that alleged that hundreds of bail checks during the middle of the night on their First Nations teenage children amounted to trespass.
In New South Wales, a court can include an “enforcement condition” in bail conditions. This allows police to do curfew checks at the home of the person on bail home, with the court having discretion to set the number and timing of these checks.
If such a condition is not in place, the NSW Bail Act does not state whether police can do a bail check, and the courts usually rely on the common law doctrine of “implied licence”.
Last year the Law Enforcement Conduct Commission (LECC) recommended NSW Police stop relying on the implied licence to do bail checks, saying it was “vague, weak and cancellable”, and potentially unlawful.
The Justice and Equity Centre (JEC) launched the case against NSW Police on behalf of two mothers whose First Nations children were on bail.
Police visited the homes of these families hundreds of times in the middle of the night, sometimes involving officers banging on their doors, shining torches through bedroom windows and going through the back gate.
They argued that some of these checks took place when an “enforcement condition” was not in place.
“It’s long past time for NSW Police to stop this oppressive practice,” JEC solicitor Kate Sinclair said.
“Our clients are not the only families subjected to disruptive and distressing home visits by police. This is an issue across NSW.
“We have argued for years that when police enter private property for these checks without court authorisation or a reasonable suspicion someone is breaching bail, they are trespassing.”
Megan*, a mother of two sons who were on bail from the ages of 11 and 13, was one of the complainants.
Police attended her home to conduct bail checks more than 150 times over just 20 months, with many of these visits happening between midnight and 4am.
She said this was extremely stressful for her family and led to them missing school from lack of sleep.
“When I started this case, I just wanted to have police held accountable for what they’ve done to my young fellas and other young fellas. I’m glad it’s over now,” Megan said.
“It’s always in the back of my head, when I hear a loud knock, I just instantly think it’s the police straight away. I’ve still got fear in me.”
Megan has also sued NSW Police in the Federal Court alleging racial discrimination, arguing that her children were targeted because they are Aboriginal.
The other complainant, Joanne*, is a single mum to three children.
Police visited her house for bail checks on her son more than 90 times in 18 months, including three times in just a few hours.
“The checks often happened on school nights, which meant my youngest daughter was too tired to go to school in the morning,” Joanne said.
According to research commissioned by the JEC and based on Bureau of Crime Statistics and Research data, First Nations children received disproportionately more bail checks on average than non-First Nations children in the first 30 days after they are released from custody.
Megan said it will take a long time before her children are able to trust the police.
“My eldest is driving around with his head held high now, knowing police can’t just randomly pull him over,” she said.
“But I know he’s still shaking in fear about what they could do. They’ve already done the damage, and it will take a lot for my boys to start trusting police again.”
