18. Children's involvement in criminal justice processes

Diversion

Introduction

18.35 Diversion is an important aspect of many criminal justice systems throughout the world.[79] Australia is no exception.[80] Young people suspected of offences are increasingly being diverted from formal court adjudication through mechanisms such as cautioning and family group conferences.

18.36 Diversionary mechanisms are intended to avoid the danger of trapping young people with a previously good record in a pattern of offending behaviour. They seek to temper the punitive nature of criminal justice processes in recognition of the particular vulnerabilities of juvenile offenders. For example, cautioning a young person for a minor offence indicates clearly that his or her behaviour is unacceptable. However, it avoids the stigma associated with prosecution and conviction and it avoids contaminating a first minor offender through contact with serious or recidivist offenders.

Diversion of a juvenile offender away from the criminal justice system to community support services is the optimal response to the problem of juvenile crime.[81]

18.37 Diverting young people from the formal legal system may create better opportunities to identify any family, behavioural and health problems contributing to the offending behaviour. It helps to address the causes of unacceptable conduct and not merely the consequences of it.

The main feature of an effective juvenile justice system is that it adopts a minimal interventionist approach at every stage of dealing with young people who come to the attention of justice authorities.[82]

Diversion may also save law enforcement resources.

Cautioning

18.38 Police have traditionally exercised a discretion to divert young people from court proceedings by warning or cautioning them.[83] Cautioning minor or first offenders is now an important feature of most Australian juvenile justice systems.[84]

The key argument has been that contact with the formal system can contaminate young people who would otherwise avoid involvement in further criminal activity if just left alone.[85]

In some jurisdictions informal cautions are governed to a limited extent by police instructions. In Queensland, Western Australia, South Australia and NSW legislation regulates cautioning.[86]

18.39 In Queensland a caution may only be administered to a child who admits committing the offence and consents to being dealt with through this process.[87] The caution must be given in the presence of an another person of the child's or his or her parent's choosing.[88] A caution to an Indigenous child should be administered by a respected person from his or her community.[89] When the child is cautioned he or she must be given a notice including details of the substance of the offence, the police officer's name and rank and the nature and effect of a caution.[90] Police consider that this system works well.[91] The Inquiry is concerned about the fact that in certain circumstances evidence that a caution has been administered is admissible against the child in subsequent proceedings.[92] This effectively means that a conviction is recorded against the child without the due process of a judicial hearing.

18.40 In Western Australia police must consider whether it would be more appropriate to take no action or to administer a caution to a young person than to start proceedings against him or her.[93] Oral or written cautions can be administered for minor offences.[94] A cautioning certificate must be issued.[95]

18.41 In South Australia, police officers have statutory power to give an informal caution to a young person who admits the commission of a minor offence. Once the caution is given, no further proceedings may be taken against the young person in respect of that offence. No official record is kept of the caution.[96]

18.42 The new cautioning provisions in NSW enable police to caution formally any child who admits an offence and consents to being cautioned.[97] In determining whether it is appropriate to deal with a matter by caution an investigating officer must consider a number of factors including the degree of violence involved in the offence and the harm caused to the victim.[98] The caution must be expressed in language readily capable of being understood by children.[99]

18.43 While discretion is a vital part of police work it must be properly exercised. The Inquiry has received evidence that some children do not receive the benefit of cautioning at the same rate as the general youth population. For example, in 1994–95 only 11.3% of Aboriginal alleged juvenile offenders in Victoria received formal cautions compared with 35.65% of non-Aboriginal juveniles.[100] This is despite the fact that the Royal Commission into Aboriginal Deaths in Custody recommended that police administrators encourage officers to make greater use of cautioning for Indigenous suspects.[101]

18.44 National guidelines on cautioning should ensure consistent treatment of young people no matter where they live or what their background. They should provide a valuable educative tool for police officers.[102]

Recommendation 199 The national standards for juvenile justice should provide best practice guidelines for cautioning that will ensure equal treatment of young people wherever they live and whatever their background. OFC should monitor compliance with these guidelines.

Conferencing

18.45 Family group conferences are used increasingly in the States and Territories either to divert young offenders from the courts or as a sentencing option.[103] Conferences are a type of restorative justice — a means for the offender to accept responsibility and make amends to the victim.[104]

18.46 New Zealand was the first common law country to introduce family group conferences for young offenders.[105] The first Australian pilot of a form of family conferencing was in Wagga Wagga in rural NSW in 1991.[106] Under the Wagga Wagga scheme the apprehending police officer was able to refer minor matters for conferencing. The conferences were conducted by police. After considerable criticism of the level of police involvement in the scheme,[107] responsibility for administering conferences was transferred to the Department of Juvenile Justice. The NSW Government has recently replaced the Wagga Wagga and similar pilots with a statewide legislative scheme of youth justice conferences based on the New Zealand model.[108]

18.47 South Australia was the first Australian jurisdiction to give statutory recognition to family conferencing.[109] Under its model, referrals are made by the police and by the court if it considers that a matter should not be before it. Conferences are convened by youth justice co-ordinators who are either magistrates of the Youth Court or persons appointed to the position.[110] Tasmania has announced an intention to introduce a similar model of conferencing.[111]

18.48 In Western Australia juvenile justice teams consisting of a youth justice co-ordinator, a police officer, a Ministry of Education officer and an Aboriginal community worker can convene family meetings to deal with young people who have been apprehended for minor offences.[112] As a result of the introduction of juvenile justice teams, in 1995 the number of charges before the Children's Court dropped by 22% and admissions to detention centres by 30%.[113]

18.49 Queensland recently introduced a legislatively based community conference scheme that is available if the offender admits the offence to a police officer or is found guilty in court.[114] The legislation is controversial because the community agreements developed during conferencing can be used in evidence against the child in subsequent proceedings in certain circumstances.[115] The Inquiry considers this inappropriate as it is tantamount to recording a conviction against the child without affording the due process of a criminal trial.[116]

18.50 While not legislatively based, conferencing schemes have been trialled in the ACT and in Alice Springs and Yuendumu in the Northern Territory.[117] The scheme being piloted in Victoria by the Mission of St James and St John is a sentencing option only.[118]

Value of conferencing

18.51 Diversionary schemes have many benefits. The child usually avoids a formal conviction and is given a 'second chance'. The formality of the court system may be particularly alienating to children whereas diversionary programs tend to be informal and therefore less intimidating. The schemes advance the rehabilitative aspect of juvenile justice, encouraging children to take responsibility for their actions and learn from their mistakes. One great advantage is the capacity for the child to participate meaningfully in the proceedings in keeping with article 12 of CROC.

18.52 Despite these apparently positive elements, all of the models of family group conferencing used throughout Australia have been the subject of criticism. Particular concerns include the extent of police involvement, the child's lack of access to legal advice, the severity of penalties imposed and a perceived net-widening effect.[119] Where a large number of people participate in a conference it may well be as intimidating for the child as a court room. Conferences are particularly problematic for offenders who have poor verbal skills or no family support.[120]

18.53 The Inquiry considers that conferencing schemes can be a just, effective and cost efficient means of diverting young offenders from the formal juvenile justice system. However, conferencing should not usurp the role of other diversions such as warnings and cautions and must not lead to a criminal record for the young person.[121]

18.54 The national standards for juvenile justice should incorporate best practice guidelines for conferencing models to ensure that children in all States and Territories have access to fair and effective diversionary schemes. Matters to be taken into consideration should include

    • the desirability of diversionary schemes being administered by someone independent of law enforcement bodies, such as a judicial officer, youth worker or community based lawyer[122]

    • the need to monitor penalties agreed to in conferences to ensure that they are not significantly more punitive than those a court would impose as appropriate to the offence[123]

    • the need to ensure that young people do not get a criminal record as a result of participating in conferencing

    • the need to monitor conferencing proceedings to ensure that they do not operate in a manner oppressive or intimidating to the young person

    • the child's access to legal advice prior to agreeing to participate in a conference[124]

    • whether it is preferable for schemes to have a legislative basis so that the process is more accountable and less ad hoc[125]

    • the need to monitor the overall effect of conferencing schemes to ensure they do not draw greater numbers of young people into the criminal justice system or escalate children's degree of involvement with the system.

18.55 A number of jurisdictions are concerned that best practice guidelines for conferencing may undermine the element of discretion that makes this kind of court alternative so valuable.[126] The Inquiry considers best practice guidelines necessary for accountability given the increasing role played by conferencing in juvenile justice systems and in light of the concerns noted in paragraph 18.54. Young people in one jurisdiction should not be treated substantially differently from those in another under these schemes. Guidelines were supported by several submissions.[127]

Recommendation 200 The national standards for juvenile justice should provide best practice guidelines for family group conferencing. OFC should monitor compliance with these guidelines.

Diversionary schemes and federal offenders

18.56 Under section 20C of the Crimes Act a child charged with a federal offence is to be dealt with as if the offence were an offence against the law of the State or Territory in which the offence occurred. Thus, on the face of it, matters relating to young federal offenders can be disposed of in the same way as those relating to young people who break State and Territory laws. However, young people do not seem to have access to diversionary schemes once they have been charged with a federal offence.[128]

18.57 Under the Judiciary Act 1903 (Cth), only courts have jurisdiction to deal with and dispose of federal matters.[129] This means that only State or Territory judicial officers have jurisdiction to deal with young federal offenders. Many diversionary schemes are administered by people who are not judicial officers. Therefore young federal offenders do not have lawful access to these schemes. In at least one recent case a young federal offender was denied access to a diversionary scheme.[130]

18.58 Until a federal charge is laid a matter need not be disposed of judicially. A young person who is suspected of committing a federal offence but who has not been charged may participate in a diversionary scheme. This means that in some jurisdictions, such as South Australia, young federal offenders will have access to diversionary schemes whereas in others, such as Queensland, they may not or their access may be limited.

18.59 Submissions strongly supported making diversionary schemes available to young people charged with federal offences.[131] The Inquiry agrees. State and Territory authorities should make conferencing available to federal offenders prior to charge wherever possible. When this is not possible conferences should be administered by a judicial officer.[132]

Recommendation 201 The best practice guidelines for family group conferencing should ensure that young federal suspects have access to the schemes. The national juvenile justice standards should ensure that conferencing is available to federal suspects prior to charge wherever possible. When this is not possible, conferences should be administered by a judicial officer.

Diversionary schemes and Indigenous young people

18.60 Despite increased focus in recent years on the chronic over-representation of Indigenous children at all stages of the juvenile justice system, they are still not being diverted from the juvenile justice system at the same rate as non-Indigenous offenders.[133] This may be due to factors such as the effect of prior records in some cases or to the manner of exercise of discretionary powers in others.

18.61 The New Zealand experience indicates that diversionary schemes can work well for Indigenous young offenders because of the scope for the extended family and community to be involved.[134] However, current Australian models 'fail to understand the complex reality of Indigenous communities and ignore fundamentally the principle of self-determination'.[135] The level of police involvement in most conferencing models is particularly problematic for Indigenous communities.[136]

18.62 Governments should ensure that Indigenous communities are able to develop and run their own family group conferencing models. Existing conferencing schemes should be modified to be culturally appropriate.[137]

Ultimately the only credible way of breaking out of the destructive relationship between juvenile justice agencies and indigenous young people is to facilitate the move to Aboriginal and Torres Strait Islander community control over juvenile justice administration.[138]

Recommendation 202 The national standards for juvenile justice should require governments to ensure Indigenous communities are able to develop their own family group conferencing models. Existing conferencing schemes should be modified to be culturally appropriate.

[79] eg Palestinian society has a tradition of 'Sulha', a process of mediation between the victim, the offender and the families of the victims and offenders: D Fattel 'Two conferences on juvenile justice: Tel Aviv, 27–28 March 1995 and East Jerusalem, 29–31 March 1995' (1996) 4 The International Journal of Children's Rights 89, 93. See also South African Law Commission IP 9 Juvenile Justice South African Law Commission Pretoria 1997, 34–35. NZ has been a world leader in juvenile justice diversion: see para 18.46.

[80] This is consistent with Beijing Rules r 11.1 which provide that consideration should be given to dealing with juvenile offenders without resorting to formal trial. For an overview of pre-court diversion see J Wundersitz 'Pre-court diversion: The Australian experience' in A Borowski & I O'Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997. See paras 2.80-83 for statistics on diversionary schemes.

[81] M Findlay, S Odgers & S Yeo Australian Criminal Justice Oxford University Press Melbourne 1994, 267.

[82] K Buttrum 'Juvenile justice: What works and what doesn't!' Paper Juvenile Crime and Juvenile Justice: Towards 2000 and Beyond AIC Conference Adelaide 26–27 June 1997, 5.

[83] See J Seymour Dealing with Young Offenders Law Book Company Sydney 1988, 233–243.

[84] This is consistent with the general trend in common law countries. 'In both New Zealand and the UK, cautioning has now become the accepted and most widely used option to deal with the majority of young offenders.': H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 55.

[85] id 56.

[86] Juvenile Justice Act 1992 (Qld) Pt 2 Div 2; Young Offenders Act 1994 (WA) Pt 5 Div 1; Young Offenders Act 1993 (SA) s 6. Young Offenders Act 1997 (NSW) Pt 4. Pt 3 of the NSW Act regulates police warnings. The Tas Government proposes to give informal and formal cautions a legislative basis: Youth Justice Bill 1997 cls 8, 10.

[87] Juvenile Justice Act 1992 (Qld) s 13(1).

[88] Juvenile Justice Act 1992 (Qld) s 13(2).

[89] Juvenile Justice Act 1992 (Qld) s 14(1). Administering a caution may involve the child apologising to the victim if the police officer considers it is appropriate, the child is willing and the victim agrees to participate in the procedure: s 16.

[90] Juvenile Justice Act 1992 (Qld) s 17.

[91] Qld Police Service Submission 56.

[92] Juvenile Justice Act 1992 (Qld) ss 18M–18O.

[93] Young Offenders Act 1994 (WA) s 22B.

[94] Young Offenders Act 1994 (WA) s 22.

[95] Young Offenders Act 1994 (WA) s 24.

[96] Young Offenders Act 1993 (SA) s 6.

[97] Young Offenders Act 1997 (NSW) s 19.

[98] Young Offenders Act 1997 (NSW) s 20(3).

[99] Young Offenders Act 1997 (NSW) s 30(2).

[100] M Mackay Victorian Criminal Justice System Fails ATSI Youth: Discussion Paper Monash University Koorie Research Centre Melbourne 1996, 9. See also National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997, 513–16.

[101] National Report vol 4 AGPS Canberra 1991 rec 240a.

[102] Guidelines on cautioning were supported by D Sandor DRP Submission 30; Kreative Kids DRP Submission 35; Education Centre Against Violence DRP Submission 43; Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; NSW Youth Justice Coalition DRP Submission 91. cf NT Government DRP Submission 71 which considered that police discretion should not be restricted.

[103] Conferencing as a sentencing option is discussed at paras 19.29-33.

[104] See J Wundersitz 'Juvenile justice' in K Hazlehurst (ed) Crime and Justice: An Australian Textbook in Criminology LBC Information Services Sydney 1996, 137–141.

[105] Children, Young Persons and Their Families Act 1989 (NZ). See I Hassall 'Origin and development of family group conferences' in J Hudson et al (eds) Family Group Conferences: Perspectives on Policy and Practice Federation Press Sydney 1996. Under the NZ model, conferences are convened by Youth Justice Co-ordinators and involve the offender, his or her family including whanau (extended Maori family), a police youth aid officer and the victim if amenable. For an overview of the way the NZ model works in practice see: T Stewart 'Family groups conferences with young offenders in New Zealand' in J Hudson et al (eds) Family Group Conferences: Perspectives on Policy and Practice Federation Press Sydney 1996; G Maxwell & A Morris 'The New Zealand model of family groups conferences' in C Alder & J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? AIC Canberra 1994.

[106] See DB Moore & TA O'Connell 'Family conferencing in Wagga Wagga: A communitarian model of justice' in C Alder & J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? AIC Canberra 1994.

[107] eg D Sandor 'The thickening blue wedge in juvenile justice (1993) 18 Alternative Law Journal 104.

[108] Young Offenders Act 1997 (NSW) Pt 5.

[109] Young Offenders Act 1993 (SA) Pt 2 Div 3.

[110] Young Offenders Act 1993 (SA) s 9(1). See J Wundersitz 'Family conferencing in South Australia' in C Alder & J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? AIC Canberra 1994.

[111] Youth Justice Bill 1997 (Tas) Pt 2 Div 3.

[112] Young Offenders Act 1994 (WA) Pt 5 Div 2, 3. WA juvenile justice teams were piloted from 1993 and given a legislative basis in 1994. See M Hakiaha 'Youth justice teams and the family meeting in Western Australia: A trans-Tasman analysis' in C Alder & J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? AIC Canberra 1994.

[113] WA Police Service IP Submission 136. See paras 2.117-121 and table 19.1 for details of detention rates in the States and Territories.

[114] Juvenile Justice Act 1992 (Qld) Pt IC.

[115] Juvenile Justice Act 1992 (Qld) ss 18M-18P.

[116] See para 18.39. See also paras 19.117-127.

[117] J Wundersitz 'Pre-court diversion: The Australian experience' Paper The Second National Outlook Symposium: Violent Crime, Company Crime and Public Policy AIC Conference Canberra 3–4 March 1997, 9.

[118] See para 19.30.

[119] eg Youth Advocacy Centre IP Submission 120; Townsville Community Legal Service IP Submission 181. See also D Sandor 'The thickening blue wedge in juvenile justice' (1993) 18 Alternative Law Journal 104; J Wundersitz 'Pre-court diversion: The Australian experience' in A Borowski & I O'Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997, 278–280.

[120] Law Society of NSW IP Submission 209.

[121] See J Seymour Dealing with Young Offenders Law Book Company Sydney 1988, 261–270.

[122] Tangentyere Council Public Hearing Submission Alice Springs 18 July 1996.

[123] Practitioners' Forum Perth 3 July 1996; Fremantle Community Youth Service IP Submission 6; Law Society of NSW IP Submission 209.

[124] B Howard et al Public Hearing Submission Wagga Wagga 8 May 1996; Fremantle Community Youth Service IP Submission 6; Youth Advocacy Centre IP Submission 120; Law Society of NSW IP Submission 209.

[125] Australian Association of Social Workers IP Submission 207.

[126] NT Government DRP Submission 71; WA Ministry of Justice DRP Submission 73.

[127] eg D Sandor DRP Submission 30; Kreative Kids DRP Submission 35; Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; Qld Police Service DRP Submission 56; NSW Youth Justice Coalition DRP Submission 91.

[128] Attorney-General's Dept IP Submission 178.

[129] ss 39(2), 68(2), (3).

[130] In Newman v A (a child) (1992) 9 WAR 14 the Supreme Court of WA held that a federal offender could not be dealt with by a children's panel (a diversionary scheme for first offenders that preceded juvenile justice teams) because it was not competent to exercise federal jurisdiction.

[131] eg SA Dept of Family and Community Services IP Submission 110; Townsville Community Legal Service IP Submission 181; Australian Association of Social Workers IP Submission 207; Law Society of NSW IP Submission 209; Church Network for Youth Justice IP Submission 212; NSW Youth Justice Coalition DRP Submission 91; Adelaide Practitioners' Forum 30 April 1996.

[132] Another option may be for court proceedings to be adjourned pending the outcome of the conference allowing the court to take the conferencing result into account when disposing of the matter: see para 19.29-33.

[133] eg J Wundersitz The South Australian Juvenile Justice System: A Review of its Operation Office of Crime Statistics Adelaide 1996, 89–92. See para 2.83 for further statistics.

[134] For a fuller discussion of pre-trial diversion and Indigenous young offenders see ALRC Report 31 The Recognition of Aboriginal Customary Laws vol 1 AGPS Canberra 1986, 344–350.

[135] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997, 521.

[136] id 525.

[137] One of the better adaptations of conferencing to Indigenous community is the community justice groups in some Qld communities: id 526.

[138] C Cunneen 'Indigenous young people and juvenile crime' in A Borowski & I O'Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997.