: Youth justice — diversion

Youth justice — diversion

Sue Erickson
Northern Territory

Pre-court diversion for young offenders is provided for in the legislation of all jurisdictions and comprises part of a restorative justice framework. Restorative justice focuses on the needs of the victim, the offender and the community and encourages the offender to take responsibility for his or her actions and make reparations. Young offenders are treated differently to adult offenders, given their age and maturity, but the criminal justice system recognises that they need to take responsibility for the offending behaviour and be held accountable for their actions. Pre-court diversion in all jurisdictions generally consists of informal warnings, formal warnings and referral to conferences at the first instance contact with the criminal justice system is made, with court attendance being the last option. Generally, the young offender must have admitted to the offending behaviour and consent to the diversionary practice. The offences eligible for diversion tend to be summary offences or minor offences, and are more comprehensively defined in the relevant legislation for each jurisdiction.

Pre-court diversion has been provided for in the Youth Justice Act in the Northern Territory since its inception in 2005, but has been is use since 2000, when amendments were made to the Police Administration Act providing police with the powers to give effect to the scheme. The scheme recognises the difference between young offenders and adult offenders and one of its principles is to deal with young offenders in a way that will divert them from becoming adult offenders. In the Territory, the scheme consists of verbal warnings, written warnings, formal cautions, family conferences and victim/offender conferences. Family conferencing is unique to the Territory scheme and recognises the importance and appropriateness of family relationships in the context of youth offending. Conferencing in general encourages the offender, the victim and the community representative (often the police officer) to address the offending behaviour, and each participant has an opportunity to suggest appropriate reparations. If the young offender completes diversion successfully, no criminal investigation or criminal legal proceedings can be commenced or continued against the youth in respect of the offence.

By way of comparison, the Victorian diversion scheme, provided for in the Children, Youth and Families Act 2005 (Vic), provides for group conferences but only as a pre-sentencing consideration. Unlike the other jurisdictions, where the police can divert the young offender to the conference, only the court can refer the young offender to a group conference, and only after the child has been found guilty of an offence and the court is considering imposing a sentence of probation or a youth supervision order. The court defers the sentence in order for the young offender to participate in the group conference, and the court takes this into account when sentencing. Regardless of the outcome of the group conference, the young offender is ultimately sentenced and dealt with by the court for the offence.

The Youth Justice System Review, currently underway in 
the Territory, will examine and evaluate the NT diversion scheme with a view to making recommendations about possible amendments.

SUE ERICKSON is a Darwin-based lawyer currently working on the Youth Justice System Review.

(2011) 36(3) AltLJ 209
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