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Social Justice Report 2001: Chapter 5: Juvenile diversionary schemes and Indigenous people

Social Justice Report 2001

Chapter 5: Juvenile diversionary
schemes and Indigenous people


Introduction

Diversion
and restorative justice

Human
rights principles for juvenile diversion

Juvenile
diversion schemes in the Northern Territory and Western Australia

Juvenile
diversion in the Northern Territory

Pre-court
diversionary options for juveniles in the NT

Forms
of diversion

Program
Case Studies

Post-court
diversionary options for juveniles in the NT

Operation
of the NT pre-court diversionary scheme

Diversion
in the NT assessed against best practice principles

1)
Viable alternatives to detention

2)
Availability of diversion at all stages of the criminal justice process

3)
Discretion exercised on the basis of established criteria prescribed
by law

4)
Training of law enforcement officials involved in the administration
of diversion to meet the needs of young people

5)
Diversion requires the informed consent of the child or his/her parents

6)
Young people are provided with procedural safeguards throughout the
diversionary process

7)
Young people are provided with human rights safeguards throughout
the diversionary process

8)
There are complaints and review mechanisms relating to the exercise
of discretion to divert

9)
There exists independent monitoring and evaluation mechanisms for
the scheme

10)
Self-determination of Indigenous peoples

Recommendations
on diversion in WA

Conclusion


Introduction

On 27 July 2000,
the Commonwealth government and the Northern Territory Government
signed an agreement for the establishment of a juvenile pre-court
diversion scheme in the Northern Territory (NT). This agreement arose
specifically as a response to the continued criticism of the NT’s
mandatory minimum imprisonment laws and their impact on juveniles
and Indigenous people. By establishing the pre-court juvenile diversionary
scheme, the NT has belatedly joined most other states and territories
in Australia in providing such options for dealing with juvenile offenders.
This chapter examines the first year of operation of the NT’s
pre-court diversionary scheme. It also examines diversionary options
in Western Australia (WA). It assesses these schemes against human
rights standards, as well as in the context of developments in other
jurisdictions in Australia and overseas.

Diversion
and restorative justice

Diversion is
the term applied to various measures to ‘divert’ offenders
from the formal criminal justice system. A range of diversionary options
exist for young offenders in Australia, although the extent of their
use varies considerably between jurisdictions. Options for diversion
include verbal and written warnings, formal cautions, victim-offender
or family conferencing and referral to formal or informal community-based
programs. There are also innovative sentencing mechanisms such as
circle sentencing and drug courts, which divert offenders from the
normal court sentencing process.
Juvenile diversionary programs have been developed in recognition
that ‘contact with the formal system can contaminate young people
who would otherwise avoid involvement in further criminal activity
if just left alone’.[1] They 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 avoids contaminating a minor
first offender through contact with serious or recidivist offenders.

[2]

There has been
increased focus on diversion in the 1990s as models of restorative
justice. The most widely accepted definition of restorative justice
is that it is ‘a process whereby all the parties with a stake
in a particular offence come together to resolve collectively how
to deal with the aftermath of the offence and its implications for
the future’.[3] Restorative justice processes
seek to ensure that offenders are able to accept responsibility for
their offending behaviour and the impact of this on the community
and any victims. Reparation and restitution are more important under
this model than punishment.

One of the most
intensive forms of diversion to emerge under this model in the early
1990s has been conferencing. This practice began in New Zealand and
has offered a particular rich source of ideas about how restorative
justice could be given practical expression with young people. According
to Van Ness, Morris and Maxwell conferencing involves:

not only
the primary victim and offender, but also secondary victims (such
as family members or friends of the victim) as well as supporters
of the offender (such as family members or friends). These people
are involved because they have also been affected in some way by
the offence, and because they care about one of the primary participants.
They may also be involved in carrying out the final agreement.
[4]

The conference
provides a forum for restorative solutions to emerge. Proponents stress
that conferencing is not a soft option. It directly confronts young
people with the human consequences of their behaviour and provides
avenues for direct reparation and restitution for victims. The agreements
reached by conferences can be tailored to meet the direct wishes of
participants and often involve the offender in community work, a direct
apology to the victim and some kind of – often symbolic –
restitution. Families of offenders may leave the conference empowered
by the process, having re-claimed control over their children.

There are now
two (sometimes seemingly contradictory) ways of seeing diversion.
The first is relatively minimalist: diversion is about giving first
or minor offenders ‘a second chance’. The second is more
radical and ambitious: diversion becomes not just a mechanism for
re-routing individual cases away from contact with the existing criminal
justice system but a vehicle for directing cases into an alternative
process of community based justice.

Human
rights principles for juvenile diversion

The UN Convention
on the Rights of the Child (CROC)
recognises the importance of
diverting young offenders from the formal processes of the criminal
justice system. CROC was adopted in 1989 and ratified by Australia
in 1990. Article 40.3 establishes a clear preference for alternative
diversionary measures over formal judicial proceedings. Diversion
is primarily seen as occurring prior to the formal adjudication of
the case. The Convention states that:

States Parties
shall seek to promote the establishment of laws, procedures, authorities
and institutions specifically applicable to children alleged as,
accused of, or recognized as having infringed the penal law, and,
in particular… Whenever appropriate and desirable, measures
for dealing with such children without resorting to judicial proceedings,
providing that human rights and legal safeguards are fully respected.

The obligation
in CROC to develop diversionary options is elaborated upon by several
United Nations rules and guidelines, namely:

  • UN Standard
    Minimum Rules for the Administration of Juvenile Justice 1985

    (Beijing Rules);
  • UN Standard
    Minimum Rules for Non-Custodial Measures 1990 (
    Tokyo Rules);
  • UN Guidelines
    for the Prevention of Juvenile Delinquency 1990
    (Riyadh Guidelines);
    and
  • UN Rules
    for the Protection of Juveniles Deprived of Their Liberty
    1990.

Diversionary
options must also pay regard to Australia’s general human rights
obligations under CROC, the International Convention on the Elimination
of All Forms of Racial Discrimination
(CERD) and the International
Covenant on Civil and Political Rights
(ICCPR).

These international
standards establish principles for the development of diversionary
options. Many of these principles have also been elaborated on with
particular reference to Indigenous juveniles by the Royal Commission
into Aboriginal Deaths in Custody and the Bringing them home
and Seen and heard reports.[5] The following
table outlines the basic requirements for diversionary schemes.

Best practice principles
for juvenile diversion
[6]

1. Viable
alternatives to detention

Diversion requires
the provision of a wide-range of viable community-based alternatives
to detention. Diversion programs should be adequately resourced to
ensure they are capable of implementation, particularly in rural and
remote areas. Diversion should be adapted to meet local needs and
public participation in the development of all options should be encouraged.
There should be adequate consultation with Indigenous communities
and organisations in the planning and implementation stages.

2. Availability

Diversionary
options should be available at all stages of the criminal justice
process including the point of decision-making by the police, the
prosecution or other agencies and tribunals. Diversion should not
be restricted to minor offences but rather should be an option wherever
appropriate. The decision-maker should be able to take into account
the circumstances of the offence. The fact that a juvenile has previously
participated in a pre-court diversionary program should not preclude
future diversion. A breach of conditions should not automatically
lead to a custodial measure.

3. Criteria

Agencies with
the discretionary power to divert young people must exercise that
power on the basis of established criteria. The introduction, definition
and application of non-custodial measures should be prescribed by
law.

4. Training

All law enforcement
officials involved in the administration of juvenile diversion should
be specifically instructed and trained to meet the needs of young
people. Justice personnel should reflect the diversity of juveniles
who come into contact with the system.

5. Consent
and participation

Diversion requires
the informed consent of the child or his or her parents. Young people
should be given sufficient information about the option. They should
be able to express their views during the referral process and the
diversion process. Care should be taken to minimise the potential
for coercion and intimidation of the young person at all levels of
the process.

6. Procedural
safeguards

Diversionary
options must respect procedural safeguards for young people as established
in CROC and the ICCPR. These include direct and prompt information
about the offences alleged, presumption of innocence, right to silence,
access to legal representation, access to an interpreter, respect
for privacy of the young person and their family and the right to
have a parent or guardian present. A child should not acquire a criminal
record as a result of participating in the scheme.

7. Human rights
safeguards

CROC also requires
that the best interests of the child be a guiding factor; the child’s
rehabilitation and social reintegration be promoted, with attention
to their particular vulnerability and stage of maturation; the diversionary
option applies to all children without discrimination of any kind,
including on the basis of race, sex, ethnic origin and so on; the
diversionary option is culturally appropriate for Indigenous children
and children of ethnic, religious and cultural minority groups; and
the diversionary option is consistent with prohibitions against cruel,
inhuman or degrading punishment.

8. Complaints
and review mechanisms

The child should
be able to make a complaint or request a review about the referral
decision, his or her treatment during the diversionary program and
the outcome of his or her participation in the diversionary option.
The complaint and review process should be administered by an independent
authority. Any discretion exercised in the diversion process should
be subject to accountability measures.

9. Monitoring

The diversionary
scheme should provide for independent monitoring of the scheme, including
the collection and analysis of statistical data. There should be a
regular evaluation conducted of the effectiveness of the scheme. In
reviewing options for diversion, there should be a role for consultation
with Indigenous communities and organisations.

The right to
self-determination is also central for Indigenous peoples in the context
of criminal justice issues. Article 1 of the ICCPR and Article 1 of
the International Covenant on Economic, Social and Cultural Rights
(ICESCR) assert that all peoples have the right to self-determination.
RCIADIC prescribed self-determination as being necessary for Indigenous
people to overcome their previous and continuing, institutionalised
disadvantage and domination. [7] The Bringing
them home
report recommended that self-determination in relation
to juvenile justice issues be implemented through national framework
and standards legislation.[8]

Juvenile
diversion schemes in the Northern Territory and
Western Australia

All Australian
states and territories offer some form of diversionary programs for
juveniles, and some offer diversionary options to adults. This report
focuses on juvenile diversion schemes in NT and WA. A brief overview
of schemes in all other states and territories of Australia as well
as New Zealand is included in Appendix One of this report. That overview
reveals that there are many common features to diversionary approaches
across jurisdictions, despite differences in emphasis and detail.

Juvenile
diversion in the Northern Territory

The NT has one
of the highest rates of juvenile detention in corrective institutions
in Australia.[9] Indigenous people represented approximately
73 per cent of juvenile detainees in the NT in June 2000.[10]
The potential of juvenile diversionary mechanisms to break the cycle
of juvenile offending has only been introduced relatively recently
in the NT, ironically as a means to temper the impact of mandatory
sentencing legislation on juveniles. The NT system currently offers
both pre-court and post-court diversion for juvenile offenders. An
evaluation of the NT scheme needs to bear in mind that the scheme
is relatively new. This chapter examines the model of diversion in
the NT and makes some preliminary observations on the operation of
the scheme so far.

Pre-court
diversionary options for juveniles in the NT

The first trial
of pre-court diversion took place in the NT in 1995-96, when NT Police
ran 34 conferences based on the ‘Wagga model’ in Alice Springs
and Yuendemu.[11] An evaluation report of the trial
recommended that the program be implemented throughout the Territory.[12]
The scheme was not expanded beyond the initial trial.

The latest juvenile
pre-court diversion scheme came about because of public pressure on
the federal and NT governments to repeal mandatory detention laws.
The two governments reached an agreement in April 2000 which provided
that the NT would keep the laws, but would also introduce an Aboriginal
interpreter service across the Territory and diversionary programs
for juveniles with funding from the federal government.

The scheme began
operation in the NT on 24 August 2000 after the Commissioner of Police
gazetted an Interim Policy Statement.[13] The
Police Administration Act 1978
(NT) was then amended in October
2000 to include a new division on the diversion of juvenile offenders.
In his second reading speech, the Police Minister stated:

The scheme
is not a soft option. It is not a let-off. The aim is recognition
by the offender of wrongdoing, with reparation to repair the harm
to the victim and community. The juvenile diversion scheme does
not change this government’s views on crime and those serious
offenders who continue to break our laws. The principles of this
scheme are to treat young people fairly, reduce youth crime, support
and involve victims, encourage parental responsibility, foster even
closer police and community interaction and foster positive social
change.
[14]

The diversionary
scheme is administered by the newly created Juvenile Diversion Division
of NT Police under the direction of a Superintendent. Juvenile Diversion
Units in Darwin and Alice Springs coordinate the application of the
scheme. In most communities, the officer in charge of the police station
is responsible for the diversionary scheme – including in the
identification, development and monitoring of diversionary programs.[15]

The scheme requires
police to divert a juvenile who has committed a ‘minor’
offence. Although not enshrined in legislation, this requirement was
later detailed in the Police General Orders and is reinforced in Police
Gazette Notices, training courses and instructional material.[16]
That police must divert minor offences mitigates against any
potential negative effects of police discretion. However, it must
be noted that minor offences are defined fairly narrowly as property
offences where the value of the property do not exceed $100, and does
not include unlawful entry.[17]

Discretion is
also provided to the police to divert a juvenile who has committed
a more serious offence. Despite the scheme being established in response
to concerns about mandatory detention laws and the limits placed on
offences eligible for post-court diversion, the range of offences
which can be diverted is not limited to those offences which formerly
attracted a mandatory term of imprisonment. There are, however, a
range of excluded offences which are scheduled in the Police Commissioner’s
General Order.[18] These include serious matters
such as homicide, sexual assault, causing grievous harm, robbery and
driving under the influence.

Section 120H
of the Police Administration Act 1978 (NT) states that, instead
of laying a charge, a member of the Police Force who believes ‘on
reasonable grounds’ that a person under 18 has committed an offence
can provide the person with a verbal or written warning, formal caution,
or refer them to a diversionary program. The legislation does not
define or give examples of what ‘reasonable grounds’ police
may rely on in making this decision. It also does not require a formal
admission of guilt by the young person. The Police Commissioner’s
General Order states:

This approach
will allow for those occasions where a juvenile will not make formal
admissions but informally acknowledges some guilt. In particular,
it allows for a verbal/written warning where no positive outcomes
would be achieved by pursuing the matter through the formal justice
system eg the offending juvenile has been positively identified
by witnesses (eg street offence) but will not formally admit to
the offence
.[19]

This is in contrast
to other statutory-based schemes in Australia.[20]
Prior to the repeal of mandatory imprisonment laws, there was a risk
that young people would agree to participate in diversionary options
for crimes they had not committed rather than risking a mandatory
custodial penalty in court. The Police Commissioner’s General
Order seeks to prevent the offering of diversion as such an inducement:

Diversion
should not be discussed with a juvenile or parent/guardian until
the investigation is complete. Members must take particular care
to ensure that diversion is not used as an inducement to elicit
an admission
.[21]

The Police Commissioner’s
General Order states that in deciding whether to divert a young person,
the police officer should consider the following factors:

1) the young
person’s understanding of the offence and acknowledgment of
responsibility;
2) recovery of any property stolen or appropriate restitution for
the cost of any theft or damage;
3) the circumstances and seriousness of the offence including the
level of any violence, the harm or loss to the victim and the age
of the young person;
4) the victim’s view of any intended course of diversion;
5) the parent or guardian’s view of any intended course of
diversion;
6) whether consent to diversion has been given by the young person,
and by a parent where required;
7) the suitability of the young person to undertake diversion including
the best interests of the child and his or her community and any
relevant cultural or religious considerations;
8) previous offences by and diversions of the young person; and
9) any other matters which the member may reasonably consider as
relevant, including but not limited to the public interest.[22]

A juvenile can
be considered for diversion where they are already the subject of
a community-based court order, such as a good behaviour bond or probation.[23]
Diversionary options, other than verbal warnings, cannot be used unless
the young person and a parent consent.[24] At any
time during the diversion process, the young person or parent can
elect to have the matter dealt with by a court.[25]

Once a diversion
is completed ‘to the satisfaction of a member of the Police Force’,
no further action or proceedings can be taken in respect of the matter.[26]
This reflects the common law principle of double jeopardy that a person
cannot be dealt with twice for the same crime. However, the police
history of diversions can be produced to a court for the purpose of
determining the appropriate sentence if the diversion is unsuccessful
or for any subsequent sentencing.[27]

If a young person
is referred to diversion but does not comply with the arrangements
made by the Juvenile Diversion Unit, s/he is then referred for prosecution.
By the same token, prosecution files may be returned to the police
where the young person admits the offence at a later stage, such as
after legal advice:

Where a
juvenile has commenced the diversion process and further information
or evidence comes to hand in respect of a more serious nature of
the offence or of further offences, the diversion process should
be stopped and the normal course of investigation followed…
Dependent on the nature and seriousness of the further admissions
or evidence, diversion may still be appropriate and the process
may continue.
[28]

Where diversion
is refused, the reasons must be recorded on the prosecution file and
in the police database.[29]

Forms
of diversion

The Police Administration
Act 1978 (NT) identifies four stages of diversion, which apply to
situations of varying levels of seriousness. [30]

Verbal
warnings
are seen as appropriate for trivial or very minor
offences that are included in Traffic Regulations or Summary Offences
Regulations.[31] This encompasses offences for which
an infringement notice is usually issued, such as speeding, not wearing
a seatbelt, riding a bicycle without a helmet, unlicensed driving,
offensive conduct, offensive language and damaging a public fountain.[32]
There is no bar to subsequent verbal warnings being given provided
the circumstances are appropriate in the opinion of the informant
police officer.[33] This is the only diversion that
can be conducted without the consent of a parent or guardian.

Written
warnings
are considered appropriate for trivial or very minor
offences where the young person is ‘at greater risk because of
his/her behaviour and a higher level of intervention is necessary’.[34]
A written warning can be given by the police officer for all offences
that are covered by verbal warnings and for first time ‘minor
offences’ where the property is recovered or appropriate restitution
is made and the young person acknowledges responsibility for the offence.[35]
For all other offences, the informant must get the approval of an
authorised officer (a senior sergeant or above, or the office in charge
of the station) before a written warning is issued.

A copy of a written
warning must be served on the parents or guardians of the young person
‘to inform them of the behaviour of the juvenile and to further
encourage parental responsibility’.[36] Conditions
can be placed on the warning provided they are not ‘onerous or
impracticable’ and can be easily understood and complied with
by the young person in a short period of time.[37]
Written warnings seem designed to replace commissioned officers’
cautions, which have been in use in the NT for some time and have
been governed by a Police Commissioner’s General Order since
1 June 1998.[38]

The Police Commissioner’s
General Order states that a formal caution should be
given ‘in more serious circumstances where verbal or written
warnings have previously proven to be ineffective’. Cautions
may also be used for first offenders where ‘a more formal intervention
at an early stage would achieve effective results’.[39]
There are no criteria for officers to make such determinations.

Formal cautions
can be delivered by senior police officers or community leaders such
as Indigenous elders or religious leaders who are ‘most likely
to have an impact upon the juvenile’s behaviour, and where necessary,
the responsible behaviour of the parents/guardians’. If the caution
is delivered by a member of the Police Service, it must be by an authorised
officer.[40] A copy of the caution must be served
on the young person’s parent or guardian and the details of the
caution recorded on the police database, PROMIS.[41]

Police can impose
any conditions they consider appropriate on the caution, such as work
for the victim, restoration of damage, or a verbal or written apology
to the victim. This is contrast to other jurisdictions where the conditions
that can be included in a caution are more limited.[42]
A number of the other conditions suggested by police are the types
of restrictions that would usually only be attached to bail, such
as the imposition of a curfew and an agreement not to associate with
certain peers. Presumably time limits would be set for such conditions
but the process is not clear from the General Order.

The Northern
Territory Police Force makes frequent references to family conferencing
as one of its diversionary options.[43] There is
no mention of this option in the Police Administration Act 1978
(NT) nor in the Police Commissioner’s General Order. In practice
family conferences are similar to cautions and involve a meeting between
the police, the young person and his or her family.[44]
They can work like victim/offender conferences (without the victim)
and outcomes are referred to as personal programs. Many are informal
and are designed to suit the individual.

Referral
to a program
is the most onerous option available. Program
options include victim/offender conferences, community based programs
and drug and alcohol rehabilitation programs.

Victim/Offender
conferences
require young people to participate in meetings
with the police and the victim of the offence. Such diversion is particularly
suitable where the young person has committed more serious offences
or is a recidivist.[45] The Police General Order,
however, also sees conferences as the main option for diversion:

Wherever
possible, a victim offender conference should be strongly considered
as the first option including circumstances where a written warning,
formal caution or referral to more formal diversions is being considered.
[46]

Unlike other
jurisdictions, conferences can only be held where the young offender
and the victim agree to attend.[47] The procedures
at the conference are intended to be flexible and outcomes are not
restricted in any way: ‘The success of a conference will depend
on the ability of the participants to communicate their feelings and
express complex issues freely and fully in their preferred language’.[48]

The General Order
lists a number of factors that informants should take into account
when deciding whether a young person is suitable to participate in
a victim/offender conference, namely:

  • whether the
    young person would gain greater benefit from the exposure to the
    victim or family or both in a conferencing environment;
  • whether the
    presence of the victim and the telling of the victim’s story
    would be more effective in getting the young person to recognise
    the wrong of their actions, the harm caused to the victim and the
    taking of responsibility for their actions; and
  • whether the
    presence of the family of the young person and the subsequent shame
    caused to the young person would have a greater impact on his/her
    future behaviour.[49]

The young person
is expected to make amends to the victim and take responsibility for
the offence. According to police in the Juvenile Diversion Division,
the outcomes of a conference must be agreed to unanimously but this
is not stipulated in the legislation or relevant standing order. Conditions
can be imposed on a young person during the conference process in
the same way as under a formal caution. For example, s/he could be
required to write an apology to the victim and do some voluntary work
at the victim’s local community centre. Diversion to a conference
can be combined with referral to a community based program or a substance
abuse program.[50]

NT case study

In Tennant Creek,
four young people were arrested in relation to the same offence. Two
attended a victim/offender conference in which 24 other people participated
and agreed to attend a two month program. The other two young people
were sentenced to good behaviour bonds at Court. The first two young
people had a far more onerous path. This illustrates that diversion
is not simply an ‘easy option’ for young offenders. It also
illustrates the need for legal safeguards to ensure that a young offender
is not required to fulfil conditions which are unreasonable or more
onerous than he or she might have received at court.

Young people
can also be referred to a community based program from
a formal caution, a victim offender conference or a family conference.
The young person’s needs are assessed by the closest Juvenile
Diversion Unit. In remote communities assessments are made by the
officer in charge of the police station in consultation with the relevant
Juvenile Diversion Unit and the program provider.[51]

The Police Service
can make referrals to a broad range of community based programs provided
they have been formally approved and registered by the Superintendent
responsible for the Juvenile Diversion Division. Young people cannot
participate in any such program without the approval of a Senior Sergeant
or the Superintendent of the Juvenile Diversion Division. The officer
in charge of the relevant police station and the Juvenile Diversion
Unit ‘jointly determine’ how long a young person should
stay on a program.[52] Young people participating
in programs are monitored by a Juvenile Diversion Unit or the officer
in charge of the local station: ‘…where the juvenile does
not comply with the arrangements, action will be taken immediately’.[53]

The service provider
must notify the referring police station if a young person does not
attend a program or leaves it without permission. The service provider
must also notify the Juvenile Diversion Unit or referring police station
if a young person ‘reveals the commission of a serious criminal
offence while attending the Program’.[54] Several
organisations in the NT state that they are reluctant to receive diversion
referrals because they are wary of placing themselves in a compromising
position between police expectations and their responsibilities towards
their clients. Particular concerns which were raised concerned obligations
of confidentiality, particularly for any therapeutic counselling process,
and obligations to notify non-attendance or breaching which may be
counter-productive to the young person’s development and break
a relationship of trust.

Other youth program
workers spoke of the difficulty of evaluating whether outcomes of
the program had been met. It is necessary to have clear agreement
between the police and the program coordinator of an appropriate outcome.
What is considered a reasonable achievement, and the time frame allocated
to achieve it, may differ markedly between individuals and persons
of different backgrounds.

At June 2001,
90 programs throughout the Northern Territory had been registered
by police for the purposes of pre-court diversion. Many are the same
programs used by NT Correctional Services for post-court diversion.
Although the original Commonwealth-NT agreement stipulated that funding
be applied to Juvenile Diversion Units for the purchase and provision
of community-based diversionary programs (and to the NT Treasury for
the purchase by agencies of community-based and drug and substance
abuse diversionary programs), there does not appear to have been any
funding provided for the establishment of programs for pre-court diversion.
However existing programs, such as those outlined below, have been
funded by the police for individual referrals.

The Police Commissioner’s
General Order provides no guidance on referrals to drug and
alcohol rehabilitation programs
. A number of Aboriginal communities
have set up local programs to help young people to stop sniffing petrol
and other solvents. For example, the Mt Theo petrol sniffing program
for young Indigenous petrol sniffers has been operating for several
years at Mt Theo outstation, northwest of Yuendumu. However, this
was one of the only ongoing programs aimed specifically at young petrol
sniffers in Central Australia.

All groups and
individuals consulted in the Northern Territory stated that inhalant
abuse, particularly petrol sniffing, is a major health problem in
many remote and urban Aboriginal communities. Many observed that increasingly
it is very young children aged 7-12 who are becoming involved in sniffing.
The Commission conducted focus groups with young Aboriginal people
aged 12-17 in Alice Springs on 23 July 2001 and 27 July 2001 who identified
alcohol, cannabis and petrol sniffing as the main drugs used by young
Indigenous people. There is often a clear link between petrol sniffing
and criminal behaviour as one of the effects of intoxication is a
reduction of inhibitions and an impaired ability to reason.

Our consultations
with the NT Police Force revealed that they are in the preliminary
stages of establishing community youth development units
in key regional areas. The aim of these units is to provide a holistic
approach to service delivery in the region, by being able to match
the needs of young people referred to the unit for assessment with
appropriate local agencies or programs. This initiative, if appropriately
organised in consultation with communities, may utilise community
expertise on juvenile needs more than police assessments.

Program
Case Studies

This section
provides examples of four programs which specifically assist Indigenous
young people in the NT. The programs are either accredited for referral
by the Juvenile Diversion Unit, or there is a possibility they will
operate as a juvenile diversion program in the future.

The Gap
(Alice Springs)

The Gap Youth
Centre Aboriginal Corporation was established in 1978. The focus was
originally on sport and recreation but in recent years the Centre
has become a resource centre offering a range of education and support
programs. For example, the Gap runs an alternative education program
for students aged 12 to 20 for whom mainstream schooling is inappropriate,
such as young mothers and those with poor literacy. The Centre also
has a dance and arts program, a mentoring program and a support program
for homeless young people.

At June 2001,
the Gap Youth Centre had hosted six young people on pre-court diversion
programs and one young person on a post-court program. Programs involve
daily attendance for between two and six weeks. Most young people
who have completed a program continue to use the Centre after their
attendance is no longer required.

Youth workers
at the Centre have indicated that young people who commit offences
usually face a large number of complex and inter-related social problems
including lack of adequate housing and income support, family breakdown,
and domestic violence. Their knowledge of their rights and responsibilities
under the law and their understanding of police and court processes
in general is extremely limited.

Community
Development Unit (Tennant Creek)

The Community
Development Unit (CDU) is a youth program managed by the Tennant Creek
and Barkly Social Behaviour Issues Group (TCBSBIG), and auspiced by
Anyinginyi Congress. The Issues Group is composed of representatives
from the town, including Anyinginyi Congress, Julalikari Council Aboriginal
Corporation, NT police, Tennant Creek Town Council, the Department
of Sports and Recreation, NT Health, Aboriginal Legal Aid and local
schools.

CDU provides
a range of activities and programs for young people (12-17 years)
who may be at risk and who experience barriers to accessing the mainstream
education system. Programs include art and craft, sport, cooking classes,
development of a radio show and pre-employment training program at
NT University. The CDU also attends the monthly juvenile court and
works with Aboriginal Legal Aid to support juvenile offenders. Young
offenders have been supported to attend and complete Community Service
Orders and have been successfully diverted to CDU programs by the
court.

In October 2000
the CDU was also approved as a diversionary program for the pre-court
juvenile diversion scheme. It is funded by the police for each young
offender managed on a program (approximately $450 for a 3 month program).
To date, 2 young men and 3 young women have been diverted to the CDU.
Youth workers at CDU seek to provide a supportive environment for
a young person who has been diverted:

There can be
any number of reasons a young person is unable to attend a Diversion
program on a given day. We have found it important to continue to
support the young person even if they have a period of non-attendance.
Normally at this stage it is important to involve parents, guardians
and any other family members to reinforce the importance of attending
and the repercussions for non-attendance.

Our experience
is that most young offenders want to be ‘finished’ with
the whole business. Diversion appears to have offered a structure
that they understand. They understand when there is unfinished business.
They look forward to the time when their individual matters are complete
or ‘finished’ and there is not the pressure of a court appearance
hanging over them.[55]

Intjartnama
Aboriginal Corporation (Ntaria – Hermannsberg – Alice Springs)

Intjartnama is
an Aboriginal family-run outstation situated west of Alice Springs
towards Hermannsburg.[56] The owner of the outstation
set up an alcohol rehabilitation centre there with her husband more
than 10 years ago. They were able to access a variety of funding to
support the programs on the outstation. Today Intjartnama receives
some funding from the Commonwealth and NT Health for drug and alcohol
rehabilitation programs.

Intjartnama functions
as a healing and respite centre: when people stay at Injartnama they
are given time to rest, then get strong and recover, then work when
they get better. Clients on probation are referred for home detention
by Correctional Services. They come with their families, to get away
from alcohol, and family violence and to learn about themselves and
about Aboriginal culture.

A number of young
people have also come to stay at Intjartnama, with or without families.
Some of these children have been active petrol sniffers. They come
to Intjartnama to be taken care of, work and engage in various activities
and recover. One 12 year-old-girl came of her own accord. She had
been subject to abuse from her family and came to Intjartnama to feel
safe. At Injartnama young people are taught traditional stories and
how to cook, clean, work, hunt and track, as well as how to act in
court.

Intjartnama are
currently discussing the possibility of becoming a venue for young
offender conferences with the Juvenile Diversion Unit of NT Police.

Anglicare
‘Bridging the Gap’ program (Angurugu, Groote Eylandt)

The Bridging
the Gap Program is run by Anglicare workers with oversight by a senior
culture man from the western side of Groote Eylandt and Bickerton
Island. The program, accredited with the police and NT Correctional
Services, requires young people to work for a period of time at the
aged and disability respite centre at Angurugu which was established
by Angurugu Community Council and is run by Anglicare. Two young people,
a boy and girl, have been referred to the program so far. The young
people have helped record older people’s stories, as well as
providing practical help around the centre. The aim is for young people
to get in touch with older people in their community and learn about
their roots, as well as to encourage responsibility. The older people’s
self-esteem is also supported by the program. As at August 2001, the
only other program listed in police reports for police diversion on
Groote Eylandt is a program aimed at integrating juvenile offenders
back into educational programs at the Angurugu School.

Post-court
diversionary options for juveniles in the NT

Post-court, or
at-court, diversion was introduced in the NT in 1999 under section
53AE of the Juvenile Justice Act 1993 (NT) to temper the effects
of mandatory sentencing legislation on young people. The scheme was
accordingly only available in limited circumstances to defendants
aged 15 – 17 years facing their second property offence [57]
and on one occasion only.[58]

Under the system,
a second time property offender could be ordered to participate in
a program approved by the Minister for post-court diversion, [59]
including victim/offender conferences, community works programs, cultural/traditional
programs, sporting skills development programs, vocation training
programs, counselling programs or life-skill programs.[60]

Victim/offender
conferences usually involve a NT Corrections facilitator, a police
superintendent, the victim, the young person and support people. The
participants discuss the offence and its impact and then develop an
outcome plan, by consensus, of actions the young person will take
to make up for the harm to the victim and community. Compliance with
the plan is monitored by the Program Coordinator.

Victims have
been willing to attend victim/offender conferences in some Indigenous
communities but have been less accommodating in others. In addition,
there has been initial resistance to diversion among some police officers,
although this may have decreased. Young people have been assessed
as suitable for diversion despite multiple previous charges or already
being on good behaviour bonds. Sometimes young people have been assessed
as unsuitable for pre-court diversion by police but have then been
diverted through the post-court process.

Apart from victim/offender
conferences, all the approved programs for diversion already existed.
They now receive funding from Correctional Services on an individual
offender basis to operate as diversionary programs. During consultations
in the Northern Territory, many community groups expressed doubts
about the appropriateness of some of the accredited programs for traditional
Aboriginal young people.

NT case study

Two young people
were arrested in relation to a break in at the Council office in an
Aboriginal community. During the break in, the Council’s computers
were severely damaged.

The young people
admitted their role to the Aboriginal community and were immediately
sent on a four week bush camp with an uncle to learn traditional hunting
and tracking skills.

When the victim/offender
conference was held, the young people had already been on the camp.
The conference acknowledged this intervention and adopted it as the
outcome plan. The young people were also offered voluntary participation
in a course. The Court endorsed the outcome plan.

During the period
1 August 1999 to 30 June 2000, a total of 41 referrals were made by
the Court to NT Corrections for post-court diversion. Indigenous young
people comprised 85 per cent of these referrals. More recently in
the period between 1 July 2000 and 31 July 2001, 14 juveniles have
been referred by the Court for diversion, some 43 per cent Aboriginal
young people.[61]

The following
preliminary observations can be made about the statistics provided.

  • All young
    people diverted at this stage were facing mandatory minimum terms
    of detention as second property offenders;
  • Aboriginal
    young people were initially a very high proportion of this group
    but their representation has declined in the past year; and
  • It is not
    clear from information provided by NT Corrections so far, what percentage
    of suitable and successful referrals were Aboriginal young people.

One of the concerning
aspects of the diversion provisions for second time property offenders
was the possibility of double punishment. If the court were satisfied
that the young person had satisfactorily completed the diversionary
program, it could discharge the defendant without penalty or impose
any of the penalties generally available to the court including fines,
good behaviour bonds, community service orders, punitive work orders,
[62] probation, detention, imprisonment, participation
in an approved program or any adult sentencing option.[63]
This meant that a young person who committed a specified property
offence could be sentenced to custody even after completing a diversionary
program as directed. At June 2001, young people had received dismissals,
conditional bonds, community service orders and short suspended sentences
after successfully completing a diversion program.

On 22 October
2001 the new NT government repealed mandatory sentencing provisions
for juveniles, including provisions restricting post-court diversion
to mandatory property offenders. Post-court diversion from custody
is now available for all offenders aged 10 -17 years.[64]
This is a welcome expansion of the diversionary system which acknowledges
that diversion should be an option available to all young offenders,
not only those affected by mandatory sentencing provisions. However,
it appears that the amendments maintain the possibility of double
punishment for young offenders who are diverted to a program approved
by the Minister and who satisfactorily complete the program.[65]

Since the amendments
in October 2001 there have been few referrals made to Correctional
Services for conferencing or other program diversion. It has been
suggested to us that in practice magistrates are reluctant to order
diversion to approved programs under the new amendments as it means
adjournment before sentence. Instead, Supervised Good Behaviour Bonds
are being applied with a condition that the offender participates
in the program. These are inappropriate when the juvenile has little
or no support in the community.

Operation
of the NT pre-court diversionary scheme

The following
statistics show the operation of the pre-court diversionary scheme
for the period 1 September 2000 to 30 June 2001. The statistics were
provided by the Northern Territory Police Force in response to a written
request by the Commission.[66]

Table 1 Total
juvenile apprehensions and diversions, 1 Sep 2000 – 30 June 2001

Number
Percentage
[67]
Total
juvenile apprehensions in NT
[68]
1394
N/A
Apprehensions
for minor property offences only
265
[69]
Ineligible
for diversion [70]
53
4%
Eligible
for diversion
1341
96%
Diversion
not offered
216
15%
Diversion
offered
1125
81%
Diversion
declined by parent/juvenile
23
1.6%
Diversion
unsuccessful
13
0.9%
Total
number successfully diverted
1089
78%

Table 1 shows
the extent to which diversion has been utilised in the first 9 months
of the scheme. Of the 96 per cent of apprehensions eligible for diversion,
it was offered 81 per cent of the time. Young people were successfully
diverted in 78 per cent of apprehensions. It is not yet possible to
say how many young people this affected (as one young person may have
more than one apprehension in the statistics). It is also not clear
whether the new diversionary regime has formalised police interventions,
such as informal cautions, that would previously have gone unrecorded.
[71]

Of the 265 apprehensions
for Minor Property Offences, all of which were referred for diversion,
conditions (such as an apology or restitution) were attached / created
by the diversion in the case of 201 apprehensions.

Table 2 Apprehensions
and diversions of Indigenous young people, by gender, 1 Sep 2000 –
30 June 2001

 
Number
Percentage
Total
apprehensions
783
56%
[72]
Serious
or excluded offences
691
88%
[73]
Minor
offences
91
12%
Total
offered diversion
622
79%
Diversion
not offered (includes excluded offences)
161
21%
Indigenous
young women offered diversion
158
25%
[74]
Aged
10-14 years
87
Aged
15-17 years
71
Indigenous
young men offered diversion
464
75%
Aged
10-14 years
246
Aged
15-17 years
218

 

Aboriginal people
make up 28.5 per cent of the Northern Territory population, [75]
and approximately 36 per cent of people under 18. [76]

Table 2 shows
that 56 per cent of all juvenile apprehensions in the period involved
Aboriginal young people. Aboriginal young people are still clearly
over-represented at this point.

However, Table
2 also shows that in the first 9 months of operation, Aboriginal young
people are getting the benefit of diversion at a rate (79 per cent)
close to non-Aboriginal young people (81 per cent). Aboriginal juveniles
are denied diversion at slightly higher rates than non-Indigenous
juveniles.[77]

Table 3 Diversion
by type, 1 Sep 2000 – 30 June 2001

 
Number
Percentage
Total
Diversions
1102
[78]
N/A
Verbal
warnings
487
44%
Written
warnings
295
27%
Formal
caution/Family conferencing
261
24%
Victim
offender conference
59
5%

Table 3 shows
that the vast majority of diversions have been by way of verbal and
written warnings (which together amount to 71 per cent of diversions)
and formal cautions (a further 24 per cent). [79]

According to
the Police Juvenile Diversion Unit information supplied to the Commission,
all cautions/family conferences and victim offender conferences (totalling
320) involve agreement to a ‘personal program’ which may
include anything from an apology to a victim to participation in either
a registered or non-registered program. Registered programs have been
discussed above. Non-registered or ‘informal programs’ may
involve the referral of the offender to a one-off project such as
work for the victim or after school activities.

Table 4 Referrals
to Programs, 1 Sep 2000 – 30 June 2001

 
Number
Referrals
to Programs
67
Registered
Programs [80]
29
(14 ATSI) [81]
Informal
Programs
38
(34 ATSI) [82]
Registered
Programs – Completed
23
Registered
Programs – Not completed
3
Registered
Programs – Unsuccessful (referred to Court)
3
Informal
Programs – Completed
27
Informal
Programs – Not completed
6
Informal
Programs – Unsuccessful (referred to Court)
5

Table 4 indicates
that there have been relatively few referrals to either registered
or non-registered programs. Further, the majority of referrals are
for non-registered programs. [83] Indigenous young
people comprise 48 per cent of referrals to registered programs and
as much as 89 per cent of referrals to ‘informal programs’.
This may be an indication of a lack of formal programs in regional
and remote areas of the NT. Of registered program referrals, more
than 75 per cent are situated in the three major towns in the NT –
Darwin, Alice Springs and Katherine. Only one of the 67 referrals
to either registered or non-registered programs was for a substance
abuse program. [84]

Table 5 provides
a regional breakdown of when diversion has been offered and the type
of diversion used. It shows that in a number of the larger centres,
such as Alice Springs, Casuarina, Darwin City, Katherine and Tennant
Creek, the percentage of young people denied access to diversion was
fairly high. In other regions, such as Palmerston, the rate of young
people denied diversion was low or non-existent, as in the case of
Elliott and Lajamanu. In many areas verbal and written warnings made
up a large percentage of the total diversions.

Table 5 Diversion
by type and location, 1 Sep 2000 – 30 June 2001

Place
[85]
Diversion
denied
Diversion
denied
Verbal

Warning
Written
Warning
Formal
Caution
Conference
Total
Alice
Springs
68
7
106
66
31
6
284
Casuarina
82
8
157
112
60
17
436
Darwin
City
28
3
17
13
6
3
70
Elliott
[86]
-
1
8
-
10
3
22
Katherine
30
-
26
17
26
2
101
Lajamanu
[87]
-
-
1
2
20
4
27
Ngukurr
[88]
6
-
4
10
13
-
33
Nhulunbuy
[89]
1
-
6
10
15
3
35
Palmerston
15
2
107
41
27
7
199
Tennant
Creek
15
-
33
11
8
4
71
TOTAL
245
21
465
282
216
49
1394

Statistics for
the period 1 September 2000 to 30 June 2001 also indicate that 212
victim/offender conferences facilitators have been trained, including
179 police. A total of 430 police have been trained in juvenile diversion.
Inclusive of conference facilitator training, 46 per cent of police
in the NT have now been trained. 33 Aboriginal Community Police Officers
(ACPOs) have been trained in juvenile diversion. Three ACPOs have
been trained in conference facilitation.[90] All
recruits get a full day of training in diversion.

Four police civilian
staff and 33 non-police have also been trained to facilitate conferences.
There are no figures to indicate who is used in practice, but considering
the small numbers of conferences which have taken place, it is presumed
that many of the facilitators have not had an opportunity to participate.

Diversion
in the NT assessed against best practice principles

The introduction
of the NT Pre-Court Juvenile Diversion Scheme is a positive development
in the NT. The first twelve months have seen rapid progress in the
unveiling of the scheme. However, there have been a range of concerns
that have come to the Commission’s attention during consultations
about the new scheme. Some concerns with the detail of the scheme
have already been mentioned, and some of these may relate to the scheme’s
relative newness. However, further concerns are more fundamentally
to do with the conception of the model itself and its application
to the cultural and socio-economic factors affecting Indigenous people
in the NT.

Earlier in this
chapter I set out best practice human rights principles for juvenile
diversion. This section assesses the NT scheme against these standards.

1)
Viable alternatives to detention

Human rights
principles require that a range of community-based diversionary options
be available, adequately resourced and planned and implemented through
adequate consultation. The NT scheme does not perform well on these
criteria.

In its initial
stages, the majority of diversions under the scheme have been at the
lower end of the scale, with cautions and warnings rather than referral
to programs. There are limited community based alternatives at this
stage, due in part to the poor level of infrastructure and service
networks in many communities. To date, funding for programs has been
on a fee-for-service basis and has not been utilised to establish
schemes. At the same time, the creation of such schemes would not
be viable in many communities if their primary purpose was to serve
as a diversionary option.

Consultations
revealed concern over program gaps in many under-resourced areas.
For example, there is a pressing need for petrol sniffing rehabilitation
programs in many remote communities.[91] Warnings
and cautions may be given out liberally to young people in some remote
communities but if the root cause of offending is petrol sniffing,
and at the base of this, poverty and family violence, then these offending
patterns will not be solved in the long term by these mechanisms.
Because the diversion money is paid on a fee for service basis, community
organisations who are seeking funding for the establishment of petrol
sniffing and other programs are unable to access the funding from
NT police, as it is unable to provide resourcing to establish or maintain
such projects.

The Central Australian
Youth Justice Coalition (CAYJ) has suggested that a steering committee
be established to identify pilot programs for the diversion rather
than the money being ineffective because it is spread too thinly.[92]
Other community groups and legal services suggest that there should
be a proper assessment of existing programs that could be funded and
identification of the gaps.

This problem
highlights the fact that meaningful diversion is impossible without
a whole-of-government commitment to providing resources and basic
welfare infrastructure in remote communities, in partnership with
these small communities to meet their specific needs.

As mentioned
above, the NT Police Force has now decided to put resources towards
establishing community youth development units in key regional areas
to seek to provide a more holistic approach to coordinating service
delivery and programs in communities. This is an ambitious approach
which has potential to alleviate these serious concerns. There are,
however, two main concerns with this approach. First, it requires
commitments and resourcing from other government agencies at the territory
and federal level to succeed – it cannot be left to the level
of resourcing provided to NT police to implement effectively. Second,
it is highly questionable why NT Police should be the coordinating
agency for such an approach. It must also ensure adequate involvement
of representative Indigenous organisations, especially ATSIC to provide
an interface with other government departments and for the allocation
of specific (though not substitute) funding where appropriate.

The lack of community
resources in communities is compounded by the failure of some government
programs. For example, some legal practitioners, government officials
and social workers spoke of the inadequate care and protection system
in the Northern Territory. The Community Welfare Act 1983 (NT)
establishes child protection teams and provides a system for the welfare
of children who are declared to be in need of care. However, there
is limited support for crisis accommodation. This is illustrated by
the fact that NT Corrections finds accommodation for children without
family support when on bail rather than the Family and Community Services
(FACS) unit of NT Health.

Indigenous communities
were also not adequately consulted about the model of pre-court diversion
adopted in the Northern Territory although the Police Service has
begun consultations with communities about what types of programs
should be accredited for referral.[93] Communities
are complex and often divided. The Commission considers it essential
that they control the process by which program gaps are identified
and new crime prevention and diversionary options are established.

There is some
flexibility in the system to include Indigenous community members
in the implementation of diversionary options. For example, the Police
General Orders specify that programs will take into account any appropriate
cultural, religious and community requirements. Formal cautions can
be carried out by a respected person in the juvenile’s community
such as an Aboriginal leader.[94] Police Guidelines
on warnings, cautions and victim/offender conferences specify that
it is essential in rural communities to ‘involve’ the community
in the process.[95]

There is willingness
on the part of the Juvenile Diversion Unit to work in partnership
with Indigenous communities. However, there has been no systematic
approach to encourage Indigenous people’s participation in the
diversionary process, from planning through to participating in conferences,
and this has led to some disquiet among Indigenous people. There is
no overarching requirement in legislation to ensure cultural appropriateness
at all stages of the process. Unlike in New Zealand, for example,
there is no legislative requirement that diversion options foster
the ability of Indigenous family groups to develop their own means
of dealing with offending by their children. [96]

2)
Availability of diversion at all stages of the criminal justice process

The scheme performs
well on this criteria. A wide variety of forms of diversion are available
at the pre-court and post-court stages. It is also available for a
wide variety of offences, rather than being constrained to property
offences that previously attracted mandatory terms of imprisonment.
There are some restrictions on the availability of diversion –
for a range of excluded, more serious offences, and through the narrow
definition of ‘minor’ offences to be dealt with at the lower
level of diversion. The scheme does not preclude future diversion
where a juvenile has previously participated in a diversionary program.

It is too early
to establish whether a pattern exists of breaching conditions resulting
in custodial measures (though the police general order does envisage
that young people who do not comply with conditions will be referred
for prosecution). This issue should be monitored closely.

3)
Discretion exercised on the basis of established criteria prescribed
by law

Post-court diversionary
options are specified in the Juvenile Justice Act 1993 (NT).
However, the legislation setting up the pre-court diversion scheme
is extremely bare, leaving most matters to Police standing orders.
This means there has been limited parliamentary scrutiny of the way
diversion operates in practice. It also means that the scheme is subject
to reform at the will of the Northern Territory Police Force. This
approach is consistent with the philosophy behind the Wagga model
of diversion and is not unique to the NT. It enables flexibility for
the scheme to adapt as it develops, but it also raises concerns about
the lack of transparency of the scheme.

A major concern
that the Commission has with the pre-court scheme is the extent of
discretion vested in the police. Under the NT model, police have been
given exclusive control of the scheme’s operation. In addition
to the normal discretion they have to decide whether to lay charges
and which charges, the police also determine whether a juvenile should
be offered diversion, administer warnings and cautions, facilitate
victim/offender and family conferences and are required to authorise
programs for referral.

‘Front end’
diversionary mechanisms, which are based at the point of first contract
between offenders and the criminal justice process, exist in some
form in most societies based upon the common law tradition. This tradition
gives considerable scope for discretionary decision-making at the
lower level of the system. There are strengths and weaknesses in this.
One strong point is that cases can be dealt with relatively speedily
without recourse to formal processes. A weakness is that police practice
is notoriously opaque and difficult to scrutinise. This lack of transparency
has attracted concerns that police discretion is not always used appropriately
with some groups of young people.

Seen and heard,
the report of the national inquiry into children and the legal process,
heard evidence about the discriminatory impact of the legal process
on Indigenous youth, and was particularly concerned about lack of
controls over police use of discretionary powers.[97]
The report commented that diversionary programs in Australia failed
to take adequate account of the particular needs of Indigenous youth
and argued that, ‘the level of police involvement in most conferencing
models is particularly problematic for Indigenous youth’.[98]

These concerns
have particularly been expressed at the development of ‘police
led conferences’ in Australia such as the Wagga model in NSW,
which was seen as concentrating too much power in the hands of one
particular group and as impacting negatively on vulnerable and marginal
groups of young people, such as Indigenous people. [99]

Similar observations
were made in the Bringing them home report. The historical
role played by the police in the removal of children and the implementation
of discriminatory government policies still has consequences in terms
of poor Aboriginal/police relations. The report argues that police
involvement in conferencing:

has particular
significance for Indigenous communities given the history of removals
and prior police intervention (and)… increases the reluctance
of Indigenous people to attend meetings and contributes to a non-communicative
atmosphere for those Aboriginal youth who attend.
[100]

The police ‘gate-keeping’
role is of pivotal importance in framing how the justice system as
a whole deals with individual cases. Decisions the police make can
have serious consequences down the track. The police have discretion
in determining, for example, whether to deal formally or informally
with cases and, if they decide to proceed formally, they will select
the kinds of charges offenders will face. In turn, this may influence
the form any ensuing judicial proceedings will take, as ‘the
choice of charge, determines the mode of trial’. [101]
For this reason, it has been argued that the policing process needs
to ‘be at least as rigorously constrained with a framework of
rights as the court or trial process’. [102]

During consultations
for this research, the Commission heard that the level of control
by the police is problematic because of persistently poor relations
between the NT police force and Indigenous communities. On Groote
Eylandt, for example, Indigenous people in the Aboriginal township
of Angurugu told the Commission that their main interaction with the
police is when the police come into Angurugu the day before the circuit
court commences in order to execute warrants of arrest and remove
accused offenders to the police lockup in Alyangula. It is a relationship
largely based on the removal of, predominately, younger male members
of the community.

Criminologist
Chris Cunneen has written extensively on the relationship between
Aboriginal peoples and non-Aboriginal law enforcement agencies. As
Cunneen points out, reliance on police discretion may not appear so
damaging in theory, but seen in the context of colonisation and dispossession
it can be counterproductive:

Where police
authority is founded on community endorsement and community respect,
then police discretionary decisions are likely to be seen as a legitimate
practice in the equitable operation of the law, but this is precisely
what is missing in the relationship between Indigenous communities
and police. The police function has a particular resonance for Indigenous
communities, given the history of intervention already outlined.

[103]

The relationship
between police and young people generally also seems particularly
fraught.[104] This is understandable given the
raft of laws introduced and vigorously enforced in the NT in recent
years such as mandatory detention laws, zero tolerance policing and
over-regulation of public spaces.

During focus
groups which the Commission conducted with Aboriginal young people
in Alice Springs, participants spoke of constant contact with police
at the latter’s initiation. A common complaint was police picking
up young people after 10 pm at night and taking them home when they
are not alleged to have committed any offence.[105]
The young people felt police showed disrespect for them by swearing
and ‘talking rough’: ‘It’s not nice to be treated
like that.’ This is confirmed by other studies:

There wouldn’t
be one Aboriginal young person who comes to this service that hasn’t
had a negative experience with police. It is just part of their
lives in Alice Springs. They have a bike, for example. The police
stop them. ‘Where’d you get that bike?’ It is just
assumed that they steal, that they have nothing and that they’re
entitled to nothing.
[106]

The young people
in the focus groups stated that police sometimes did not help them
when they were in trouble, for example, when being assaulted in the
street. Their negative comments were usually directed at specific
police officers. They had a more positive impression of Aboriginal
police.

The history of
poor relations between police and Indigenous communities was acknowledged
by various police officers during our consultations, although they
did not tend to identify current policing patterns as having contributed
to this situation. This acknowledgement has certainly operated as
a motivating factor for many police – they see the diversionary
process as having great potential to lead to a more positive relationship
with Indigenous communities.

Indeed, it was
suggested to us that one of the prime benefits of the police pre-court
diversionary scheme was the potential for a change in police culture.
It is possible that as a result of involvement in diversionary programs
police in the NT may become more aware of the need for more effective
and less punitive approaches to juvenile justice for Indigenous people.
However, police control of the process is not essential to this aim,
and may indeed be counterproductive if not properly resourced and
monitored.

Police control
of the process is especially problematic when there is a lack of involvement
by other agencies and organisations, limited safeguards of rights
and no independent monitoring (as discussed further below), and is
exercised without a clear legislative framework.

4)
Training of law enforcement officials involved in the administration
of diversion to meet the needs of young people

The statistics
on the operation of the diversionary scheme in the first nine months
indicates that there has been extensive formal training of police
in diversion. The Police Training Manual is also currently being updated
to provide the appropriate emphasis on diversionary processes. It
is too early to say how adequate this training is, or how NT Police
will be ensuring that training and skills development regarding diversionary
processes is ongoing.

Formalised training
for police, however, does not of itself meet the requirement to ensure
that all officials involved in the administration of juvenile diversion
are specifically trained and instructed to meet the needs of young
people. As some police stated to us during consultations, they are
not specialist youth workers. Training in diversion, while highly
significant, does not equip the police to deal with the full range
of issues and circumstances facing young people – particularly
in coordinating their service needs such as crisis accommodation,
welfare and health support. Training of police does not obviate the
need for specialist youth case workers.

There are, however,
no specialised government services which meet the needs of juveniles
in the NT. There is no department of juvenile justice. Instead, NT
Correctional Services administer juvenile justice centres in the Northern
Territory [107] as well as the Juvenile Offender
Placement Program (JOPP) as an alternative to a bail hostel.[108]
Young people released on supervised orders must report to probation
officers from Correctional Services. Within NT Corrections, there
is no juvenile division or any specific funding for juvenile programs.
Its main role is supervision through appointments and the co-ordination
of local services. As noted earlier, there is also limited support
provided by the FACs Unit of NT Health.

This can be compared
to other jurisdictions in Australia, where supervising departments
offer specialist counselling and specific programs. For example, the
NSW Department of Juvenile Justice provides drug and alcohol counselling,
a violent offenders program and a sex offenders program to those in
custody and on supervised orders in the community.

The lack of specialised
youth services in the NT government is a serious impediment to the
effective implementation of diversionary approaches in the NT. The
recent re-shuffling of government agencies and departments in the
NT, with NT Corrections joining the Attorney-General’s portfolio
in a new Department of Justice, provides an opportunity for a specialist
juvenile division to be created which can combine the coordination
of pre and post-court diversionary schemes, and to alleviate these
concerns.

5)
Diversion requires the informed consent of the child or his/her parents

Human rights
principles require that young people consent to diversion; are given
sufficient information about diversionary options; are able to express
their views during the diversionary process; and are not coerced or
intimidated at any stage of the process. There are a range of concerns
about how the current process meets these requirements.

Neither the Police
Administration Act 1978
(NT) nor the Police Commissioner’s
General Order require young people to be given access to legal advice
prior to consenting to diversion or during a victim/offender conference.
This is in contrast to other jurisdictions and seriously undermines
the ability of young people to give informed consent to diversion.[109]
There is also no children’s legal service that can assist juvenile
offenders, nor is there a juvenile justice agency which can operate
as specialist assistance for young people. Proposals to establish
a Children’s Legal Service in the NT are welcomed government
funding of such an initiative is highly recommended.

Practitioners
in Alice Springs and Darwin have reported that young people are sometimes
not offered diversion under the scheme until after they have been
charged.[110] If they consent to diversion and
are assessed as suitable, the charge is then withdrawn at Court. This
contains an element of coercion to consent to participation in diversion
that is unacceptable.

A further element
that can contribute to coercion to participate in diversion is the
absence of a requirement that a young person pleads guilty before
being offered diversion.

The potential
for coercion in this regard was compounded when diversion was required
to operate alongside mandatory detention laws. Some lawyers have stated
that there have been occasions where they have had to advise a client
who had protested their innocence that they could either go to court
and risk mandatory imprisonment if they lose, or participate in a
diversionary option and avoid court.

It is unknown
what information is given to young people by police to ensure that
they make an informed choice as to whether to participate in diversion.
It is also unknown whether interpretation is used in explaining diversionary
options. These factors need to be monitored to ensure that they do
not contribute to coercive outcomes.

6)
Young people are provided with procedural safeguards throughout the
diversionary process

Problems of access
to legal representation prior to being offered a diversionary option
was discussed above. There are other deficiencies in the provision
of procedural safeguards in the NT pre-court diversionary scheme which
relate to the presumption of innocence, right to silence, confidentiality
and the right to privacy.

The presumption
of innocence or right to silence do not appear to be safeguarded by
the current system. The fact that formal admissions are not required
and access to legal advice is extremely limited means there is a risk
young people are consenting to diversion so they can be removed from
an oppressive situation as quickly as possible. Indigenous children
may admit to offences they have not committed in order to avoid the
possibility of a period in detention. Anecdotal evidence from the
North Australia Aboriginal Legal Aid Service (NAALAS) suggests that
some young people have been pressured to give a record of interview
in return for diversion.

During the parliamentary
debate on the 2000 amendments to the Police Administration Act
1978
(NT), the Deputy Leader of the Opposition proposed an amendment
so that diversionary options would only be available after a finding
of guilt by a court. This proposal reflected concerns that the presumption
of innocence was in jeopardy:

There will undoubtedly
be instances of where it looks bad for the young person, but they
did not commit the offence. In some cases such as that, the juvenile
will not know the law or their rights, and their parents won’t
know the law or their rights, or know there is an option of going
to court to defend the charge. In such cases the juvenile who did
not commit the offence could be directed to a diversionary program
which would then form part of their record when they were actually
innocent.[111]

A further concern
is that neither the legislation nor the relevant Police General Order
ensure confidentiality of the diversion process. The Act states that
information about a diversion can be produced to a court for the purposes
of sentence.[112] This is standard practice in
several other jurisdictions, however, Children’s Courts in the
NT are open so the personal and identifying information of children
is routinely accessible to the general public. Other jurisdictions
make it an offence to publish identifying material about child defendants
or those involved in diversion programs.[113]

One area where
there has been dramatic improvement in protecting procedural safeguards
is in the provision of interpreter services. The Police General Orders
specify that diversion discussions and victim offender conferences
should be translated into a juvenile’s first language.[114]
The Police General Orders also specify that police officers should
refer to the ‘Anunga Guidelines’ when dealing with Indigenous
juveniles, but this is also not required in the legislation.[115]

An Aboriginal
Interpreter Service has been established within the Office of Aboriginal
Development pursuant to the Commonwealth/Northern Territory Agreement.
This has improved the availability of interpreting services at court
but as services have to be booked in advance, it has been more difficult
to ensure interpreters are available as required by those detained
at police stations. This situation has improved as the Interpreter
Service has expanded. There is a need for continued monitoring of
this issue.

7)
Young people are provided with human rights safeguards throughout
the diversionary process

A number of concerns
have already been discussed relating to the discriminatory impact
of the exercise of police discretion. A further way that this can
be reflected is through what is known as ‘net widening’.

‘Net widening’
refers to a process whereby diversionary mechanisms formalise contact
with the criminal justice system. The concern is that although issuing
of more formal cautions may have reduced contact with the courts,
this can be at the expense of formalising a range of contacts with
the police. Some studies have shown that police contact has increased
for all youth, and even more so for Indigenous youth, since the introduction
of cautioning systems.[116]

Increasing contact
with the police is particularly worrying because of the systemic bias
against Indigenous young people. Offender profiles of many Indigenous
youth are largely built on a string of relatively minor offences,
often uncovered through the deliberate targeting of Indigenous youth
in public space.[117] Findlay, Odgers and Yeo maintain
that courts may essentially ‘collude’ with racially discriminatory
practices when they accept at face value ‘prior records’
of Aboriginal youth that have clearly been assembled as a result of
‘over-policing’: suggesting that, ‘justices are legitimating
the police practices of targeting, arresting and charging Aborigines’.[118]

Other critics
have also pointed to a distinct, underlying systemic bias against
Indigenous offenders at work within the criminal justice system. Luke
and Cunneen, refer to it as a ‘small but compounding bias,
incremental and accumulative, over time’.119 It begins with the
first point of contact with the ‘front end’ of the system
(the police) and builds up steadily at successive stages. Cunneen
argues that:

In relation to
Indigenous juveniles, police make ‘negative’ decisions concerning
Indigenous young people which, independent of the reasons for apprehension,
have the effect of harsher decisions being made at points where discretion
is available.[120]

Discretion, Cunneen
suggests, is employed ‘negatively’. Indigenous youth tend
to be cautioned rather than warned, arrested rather than summonsed,
and to face ‘bulk’ charges. The offender profiles of Indigenous
youth may be constructed on the basis of over-intervention around
trivial incidents early in adolescents. The process can become self-fulfilling.
Indigenous youth may be become enmeshed and find it difficult to break
out of the cycle.

The statistics
in the previous section show that to date Indigenous young people
have been offered diversion at an equivalent rate to non-Indigenous
young people. It is too early to establish whether discretion is exercised
in a non-discriminatory manner though these early signs are encouraging.
It is also too early to determine whether there been any net widening
effect through an increase in the number of apprehensions.[121]
This situation must continue to be closely monitored.

8)
There are complaints and review mechanisms relating to the exercise
of discretion to divert

There are very
few checks or balances on the discretion exercised by police at all
stages of the Northern Territory pre-court diversion scheme. The Police
Commissioner’s General Order states that officers must have the
approval of a senior officer before issuing a summons to a young person
to appear in court or proceeding to charge. This provides some scrutiny
of informants but is only as effective as the attitude of the senior
officer. There is no oversight of the quality of the admission made
by the young person or the type of diversion offered by the informant.

No decision made
by a police officer during the diversionary process can be reviewed
or appealed under the legislation.[122] In addition,
the legislation prohibits civil actions against police officers acting
in good faith.[123]

9)
There exists independent monitoring and evaluation mechanisms for
the scheme

According to
human rights principles, the diversionary scheme should provide for
independent monitoring of the scheme, including the collection and
analysis of statistical data. There should be regular evaluations
conducted of the effectiveness of the scheme, and Indigenous people
should be included in that evaluation.

Because the scheme
was established as an agreement between the Commonwealth and the NT
Government, the Commonwealth has required 6 monthly performance reports,
an evaluative report after 12 months, and evaluation towards the end
of the four year agreement. However, these reports and evaluations
cannot be called independent. The 6 monthly reports are statistical
summaries provided by the NT Juvenile Diversion Unit. Information
for the 12 month report is being coordinated by the Commonwealth Attorney-General’s
Department, who facilitated the agreement. While both the NT Police
and Commonwealth Attorney-General’s Department have been cooperative
in this project, there have been delays in finalisation of the twelve
month review which have meant that it has not been available to the
Commission at the time of finalising this report.

10)
Self-determination of Indigenous peoples

There has been
discussion in the NT about partnerships with Indigenous people in
the assessment stage and in providing appropriate settings for conferencing.
However, in general Indigenous involvement remains piecemeal and uncoordinated,
and police retain primary control over the processes. Increasing Indigenous
involvement in established schemes is essential to the effectiveness
of the programs.

Self-determination,
however, also requires more than offering Indigenous communities involvement
in a diversionary system that has already been established along non-Indigenous
lines without adequate consultation and partnership. One of the ironies
of diversionary schemes in general, particularly conferencing, is
that it has tended to ‘claim lineage’ with the forms of
face-to-face dispute resolution practices existing – or which
existed – in Indigenous society.[124] But
linkages between conferencing (as currently practiced) and traditional
Indigenous Australian dispute resolution practices are more difficult
to identify.[125] Concerns have also been expressed
at the ‘appropriation’ of Indigenous decision making processes
through conferencing processes.

An Indigenous
community may decide that diversionary schemes run by police or any
other government agency are ineffective and undesirable for a range
of reasons. Although many Indigenous people in the NT have expressed
an interest in accessing diversionary options, others have raised
with us a range of other means of dealing with juvenile offenders
which could be seen as restorative, such as the incorporation of elements
of customary law.

The importance
of recognising customary law has been raised a number of times in
our consultations in the NT. It has also been the focus of inquiry
by the Australian Law Reform Commission [126] and
a current inquiry by the WA Law Reform Commission.[127]
There is no generally accepted definition of customary law –
it differs from community to community and evolves over time. The
NSW Aboriginal Justice Advisory Council (AJAC) has described it as
follows:

Aboriginal
customary law is fundamentally a means of dispute resolution based
on traditional spiritual beliefs and cultural traditions that provide
sanction against those actions which are harmful to the community.
In a criminal context fundamentally customary law is simply a means
of a community establishing its set of basic values and providing
a means to punish those who transgress against its established community
laws.
[128]

The ALRC Report
summarised a number of arguments for and against the recognition of
customary law by general law. However, it concluded in favour of recognition,
although not through codification.[129] The recent
NSW Law Reform Commission report into Sentencing Aboriginal Offenders
also recommended that:

Where a
person, who is, or was at a relevant time, a member of an Aboriginal
community, is convicted of an offence, in determining the sentence,
the court shall have regard to any evidence concerning the customary
laws of that Aboriginal community, and the customary laws of any
other Aboriginal community of which the victim was a member at a
relevant time.
[130]

The issue of
recognition of customary law is particularly relevant in the context
of juvenile diversion, as successful diversion relies on the support
and sanctions of the young person’s community. Self-determination
means that Indigenous people need to have the primary decision-making
role not only in how they may participate in proposed diversionary
schemes, but also in deciding which are the most effective and appropriate
options for the offenders, the victims, their families and their communities.

The further importance
of self-determination relates to the broader picture of marginalisation
experienced by Indigenous people.

Diversion is
limited in its ability to prevent the overrepresentation of Indigenous
people in the formal criminal justice system. Some of these limitations
are due to the narrow framework of the legislation, for example diversion
is mostly limited to young offenders and minor crimes. There are also
operational and resource problems affecting its expansion into remote
areas.

The Royal Commission
into Aboriginal Deaths in Custody devoted a large part of its report
to examining the impact of social and economic disadvantage on Indigenous
people. This disadvantage is at the root of Indigenous offending patterns.
The criminal justice system is unable to solve these problems alone,
although it must certainly work with Indigenous communities and government
to ensure the most effective interventions are made.

It is often said
that diversion only assists young people who are already in trouble.
The ‘trouble’ often starts at a much earlier age and is
the result of poverty, lack of education, family breakdown, violence
and substance abuse problems. In a number of cases, Indigenous young
people will not re-offend once they have been cautioned once or twice.
But it is also the case that if the causes of offending are not dealt
with, some children will continue to, and may have no choice other
than to, keep offending until they have built up a string of repeat
minor offences. It is society’s great failure that it is often
only then that Indigenous children are offered intensive assistance
in the form of protection from violence, drug and alcohol programs,
housing, income and support. Indigenous young people need support
both before they become offenders and after they have been diverted,
not only at the point of diversion.

Recommendations
on diversion in the NT

In submitting
this report I am required to make any recommendations as to actions
that should be taken by governments to improve the recognition of
the human rights of Indigenous people.[131] Accordingly,
in relation to NT diversionary processes I recommend that:

Recommendation
1:
A Juvenile Justice Division be established and adequately resourced
within the NT Department of Justice. Prime responsibility for coordinating
pre-court and post-court diversion, especially family and victim-offender
conferences and referral to programs, be transferred from NT Police
and NT Corrections to specialist Youth Case Workers in the Juvenile
Justice Division. NT Police retain a Juvenile Diversion Division to
implement the continued significant police involvement in diversionary
processes.

Recommendation
2:
As an urgent priority, a review be undertaken by the Department
of Justice to establish program needs across the Territory, particularly
as they relate to regional areas and Indigenous people. The terms
of the review should include examining methods for coordinating youth
service delivery in justice, health and welfare related areas across
government departments, including through the NT Police proposal for
community youth development units, and the potential for Aboriginal
customary law to be recognised through diversionary processes. The
review should be conducted on the basis of widespread consultation,
particularly with Indigenous organisations.

Recommendation
3:
The NT Law Reform Commission be empowered through legislation
to conduct an independent review of the operation of pre-court and
post-court diversionary schemes every four years. The review be required
to consider compliance with human rights standards and to be conducted
on the basis of widespread consultation with Indigenous organisations,
communities and young offenders.

Recommendation
4:
The Juvenile Justice Act 1993 (NT) and Police Administration
Act 1978
(NT) be amended to provide legislative detail on juvenile
diversionary processes. The amendments should require the police to
inform the young person that they are entitled to access to a legal
advocate or a registered local community advocate (for example, in
remote areas) at any stage of the process and to facilitate contact
immediately if so required; and should require an admission of guilt
prior to a diversionary option, other than a verbal warning, being
offered. The amendments should also provide for review of decisions
regarding diversion, and independent monitoring and evaluation provisions
(as outlined above). In relation to Indigenous young people, the legislation
should specify that they are entitled to an interpreter as well an
interview friend (in accordance with the Anungu rules).

Recommendation
5:
A children’s legal service be established and appropriately
resourced, including through the provision of a 24 hour phone hotline
for children’s legal advice.

Recommendation
6:
It be made an offence to publish material identifying a defendant
or a young person who has participated in a diversionary option under
the age of 18 years.

Juvenile
diversionary options in Western Australia

The level and
nature of contact of Indigenous people with the WA criminal justice
system has been a matter of great concern for several decades. As
noted in chapter 1, Indigenous men are over-represented in custody
in WA by a ratio of more than 20 people for every one non-Indigenous
male and nearly 30 Indigenous women for every non-Indigenous woman.[132]
This is consistently the highest ratio of Indigenous over-representation
in the country. There also continues to be a large number of deaths
in custody, both Indigenous and non-Indigenous.

This section
examines current diversionary practices in WA and makes suggestions
for their improvement. In distinction from the NT, diversionary practices
in WA have been in operation in some form or another for around a
decade. They emerged in the immediate aftermath of the Royal Commission
into Aboriginal Deaths in Custody in the late 1980s and early 1990s.
The Royal Commissioners had been especially critical of policing attitudes
and practices in Western Australia in regards to Indigenous people,
which, they maintained, were perhaps the worst in Australia at that
time.

In response to
the Royal Commission’s findings in 1991, the Lawrence Government
established a high level inter-governmental and judicial commission
(The State Government Advisory Committee on Young Offenders –
SGACYO). The Committee sought to address two seemingly incompatible
demands: resolving the problem of Indigenous youth over-representation
while, simultaneously, satisfying community demands for a tougher
approach to juvenile crime. This is a fundamental contradiction that
has had an ongoing impact on the practice of diversion and diversionary
conferencing in WA.

Attention was
focussed on the high numbers of young people being arrested and placed
before the courts. There was concern that these cases were effectively
‘swamping’ the judicial process with minor cases that could
be dealt with more effectively at the ‘front end’ of the
system, meaning at the point of contact with the police.

At the time,
the only form of diversion in existence in WA was a ‘Children’s
Panel’ for minor offenders run by, and at the discretion of,
the police. It was widely accepted that the panel did not fulfil a
diversionary function, dealing with trivial matters and offences that
may have warranted no more than a warning or ‘no action’
in other police jurisdictions. At its peak in the early 1980s it diverted
about 30 per cent of cases from the system, which fell to around 20
per cent in 1991 as ‘get tough’ policing became common practice
in the wake of moral panics about youth – particularly Indigenous
– crime.[133]

The Panel was
abolished in 1991 and trials of police cautioning commenced. This
was then formalised under the Young Offenders Act 1994 (WA).[134]
At the time, police were being encouraged to develop alternative ‘pathways’
out of the system into community based networks of care and control,
based on approaches to policing overseas.[135]
The legislation gave wide scope for the exercise of police discretion:
the only limitations were placed on what they could not divert, as
opposed to what they should or must divert from the system. Hence,
a high degree of legislative conservatism was inscribed into the Act
from the outset.[136]

A trial of adult
conferencing using restorative justice principles has also been conducted
by the Department of Juvenile Justice and Murdoch University at Fremantle
Court of Petty Sessions. The results will be evaluated late in 2002.

Overview
of current juvenile diversionary processes in WA

Diversionary
options are established in the Young Offenders Act 1994 (WA).
The Act establishes a number of guiding principles including that:

  • the system
    should only be used ‘as a last resort’;
  • young people
    require ‘special provision’;
  • ‘punishment’
    should be of a kind that would encourage ‘social responsibility’;
  • young people’s
    ‘sense of time’ be appreciated; and
  • the child’s
    age, maturity and cultural background be considered.[137]

The principles
also give weight to the centrality of family, by emphasising their
right to be involved in the process and their necessary role in the
reintegration of young people.[138] These principles
reflect a number of human rights principles, as illustrated earlier
in this chapter. Accordingly, such principles should have an influence
on how the legislation is interpreted. It has been suggested by youth
lawyers, professionals in the justice system and a number of judicial
officers, however, that human rights are frequently ignored in the
practical operation of the Act.

The Young
Offenders Act 1994
(WA) established 2 tiers of diversion: police
cautioning and referral to a juvenile justice team. These options
constitute the primary mechanisms for ensuring that the full powers
of the judicial process are not deployed unnecessarily in cases where
a less intrusive option would suffice.[139]

WA remains one
of the few states where the system of police cautioning and
referrals
is not codified in legislation and remains in police
operational orders. This is part of a generally anachronistic architecture
of controls typified by the still functioning Police Act 1892.
Police Operational Order 24 governs police behaviour with juvenile
offenders, including cautions and referrals to teams. In relation
to diversion the Order reads:

The Western
Australia Police Service adopts as policy, the concept of diversion
as an appropriate option for dealing with the majority of juvenile
offenders.

The diversionary
options available under the Order are:

  • informal
    warnings issued on the street, at a station or as part of the patrol
    function;
  • formal written
    cautions; and
  • referral to
    a Juvenile Justice Team.

The Operational
Orders suggests:

The use of any
of these options will depend on the circumstances surrounding the
particular offence and the decision to proceed with any option will
be left to the discretion of the member concerned. Some of the circumstances
surrounding the offence to which the police are to give consideration
include:

  • the time
    and circumstances of the offence;
  • the age of
    the offender and degree of his or her involvement in the offence;
  • the type of
    offence and the extent of public interest in ensuring that juvenile
    offenders are adequately dealt with by the justice system;
  • the degree
    of remorse shown by the offender and the likelihood of re-offending;
  • whether or
    not the offence is a trivial one or a technical breach only; and
  • whether the
    offence is contained in Schedule 1 or Schedule 2 of the Young Offenders
    Act, and hence is excluded from diversion.[140]

The Order goes
on to say that, ‘cautions should be not used to punish a juvenile,
but to correct and direct behaviour’. In relation to second and
subsequent cautions, it suggests:

Members may prefer
second and subsequent cautions where there is a lapse of time between
offences, the current or previous offence is minor or different, or
the record of the child is not serious. A previous court or Juvenile
Justice Team referral is not a bar to a formal caution.[141]

One of the key
innovations in the Young Offenders Act 1994 (WA) was the creation
of juvenile justice teams (JJTs).[142]
Like police cautioning, the juvenile justice teams had been operating
on a trial basis in Metropolitan Perth since 1992. These were recommended
by the State Government Advisory Committee on Young Offenders, following
a review of similar strategies elsewhere.[143]

The JJTs are
inter-agency and coordinated by the Department of Justice. There are
5 full time teams operating in metropolitan Perth (Perth, Thornlie,
Victoria Park, Wangara, Fremantle) and another two in outer metropolitan
areas (Midland and Rockingham). In addition most country towns have
ad hoc arrangements to convene teams when necessary (country
based teams are discussed further below). The Act empowers the Department
of Justice to appoint an officer of the department to coordinate a
juvenile justice team and for the Commissioner of Police to appoint
a member of the police force.[144] Also, ‘if
it is practicable’ a representative from education and a ‘member
of an ethnic or other minority group’ should be included on the
team.[145] Teams are housed on Department of Justice
premises.

A matter can
be referred to a JJT if a young person accepts responsibility for
the offence and chooses to have the matter dealt with by the JJT,
otherwise the matter will be heard in court. The child must agree
to participate and agree to any outcome.[146] Also,
a ‘responsible adult’ must agree with the referral and be
willing to participate.[147]

Police Operational
Order 24 permits police to refer young people on more than one occasion:

Previous
referral is not a bar to future referral. If appropriate, the Juvenile
Justice Team may deal with an offending child on more than one occasion.
The Juvenile Justice Team may deal with an offending child who has
committed more than one offence.

The JJT meeting
should include the offender and responsible adult, the victim (if
possible but not necessary) and support person. The meetings are chaired
by the coordinator (a member of the Department of Justice). The police
officer reads out the charges and may suggest the kind of dispositions
the case might have received had it gone to court. Meetings tend to
be quite ‘scripted’, in that the coordinator and police
officer retain tight control over the meeting agenda, asking each
participant to speak in turn and present their point of view. At the
end of the meeting (assuming there is agreement) the offender and
family sign a contract to fulfil certain conditions such as a verbal
and/or written apology, restitution/reparation and community work.
Assuming the conditions are fulfilled, the child receives a formal
caution.

The JJTs have
regular intake meetings where they vet cases. Some are returned to
police, where a caution would be more appropriate. Decisions need
to be unanimous. Teams can accept referrals at either the pre or post-court
stages, from the police, prosecutors and the children’s court.
The fact that the process is convened and coordinated by the Department
of Justice means that the system is not entirely police led, as in
the Wagga model. However, the police still control the major pathways
in and out of the system, making them the major players in decision
making terms.

Diversion
in WA assessed against best practice principles

In this section,
this diversionary model is assessed against the best practice principles
set out earlier in the chapter. There are significant problems with
the WA diversionary scheme, particularly as it relates to Indigenous
young people and how the scheme operates in regional areas outside
Perth.

1)
Viable alternatives to detention

There are particular
concerns at the operation of the JJTs in country regions, which effectively
means that diversion is not available as an alternative to detention.
Juvenile justice workers outside of Perth act as coordinators of JJTs
in addition to their other work responsibilities. There are no full
time coordinators. The police member of the team is selected from
staff at the local station. Cant and Downie in their 1998 evaluation
of the Young Offenders Act 1994 found that when there was a
‘nominated’ officer who regularly fulfilled the function,
there tended to be smooth relationships within the team.[148]
Otherwise there were often disagreements and uncertainty about
the purpose of the process, leading to ‘problems with both arranging
and conducting meetings’. They drew the conclusion that, in general,
police understanding of the teams was ‘variable’ and this
had a detrimental effect on the work of the teams.[149]

Statistics on
the scheme show that cautioning and referrals to JJTs is much more
prevalent in Perth. Most cautions (around 50 per cent) are given in
the metropolitan areas of Perth. Country areas with higher numbers
of Indigenous youth, such as the northern and eastern regions, accounted
for less than 16 per cent of all cautions in 1999.[150]
In relation to Juvenile Justice Teams it is difficult to establish
geographic differences from the available statistics. Department of
Justice statistics for 1999/2000 reveal that there were 2,414 referrals
to Teams in the metro area in that year. In contrast there were 563
country referrals, of which 151 were referred from courts and 385
from the police. 94 of these referrals were for young Aboriginal people
and 438 were for young non-Aboriginal people. Although unvariegated,
these statistics reveal that diversion is largely an urban phenomenon
in Western Australia, and that Indigenous youth appear to be referred
to JJT’s less frequently than non-Indigenous youth.

There is also
a general dearth of community-based programs in country areas for
Indigenous youth.[151] Teams might try to refer
a child to a program in an Indigenous organisation. However, it is
widely accepted that these are very poorly funded and that the regions
are generally disadvantaged in comparison with the metropolitan area
across a range of services.[152] There are few
programs in country areas which specifically address problems associated
with drugs, petrol and alcohol abuse for young people.

In the course
of our consultations many Indigenous people stressed that the use
of conferencing by JJTs was not, on its own, sufficient to deal with
the range of other problems faced by Indigenous people. Criticisms
were made that the diversion system does not recognise or resolve
a range of issues including that:

  • Indigenous
    families need to be supported after the conference. Indigenous organisations
    need to be involved in picking up the longer term and underlying
    issues;
  • Many kids
    have chronic (glue) sniffing problems, alcohol and other drug problems.
    Many are victims of family violence;
  • Families
    are confronted by problems of all kinds – there are multiple
    and compound crisis involving health and mental health, family violence;
    and
  • Aboriginal
    people are often victims of crime too, but their victimization is
    of no concern to the system.

There is also
concern at the lack of mechanisms in place to divert very young Indigenous
people from contact with the criminal justice system, due to their
tendency to become enmeshed at an early age. This enmeshment is compounded
over time and Indigenous youth are more likely than non-Indigenous
youth to be repeatedly arrested by the police.

Research by Broadhurst
and Loh [153] and Harding and Maller [154]
confirms the degree to which, once arrested, Indigenous people are
almost certain to be arrested again. Harding and Maller’s analysis
of the age-arrest profiles in the WA offender population, focussing
on ‘arrest careers’, concluded that the earlier the age
of first arrest the greater the likelihood of become a ‘career’
offender. In relation to Aboriginal people they found:

that male
Aborigines entering the arrest population on average commence their
arrest careers at a younger age, accelerate them more rapidly, and
accumulate them to a markedly greater extent than any of the other
race/sex subdivisions
.[155]

The findings
are bleak indeed:

The most
striking observations are that the arrest profiles of male Aboriginal
offenders begin at around 7 years of age and male Aborigines whose
first arrest occurred at between 5 and 15 years of age can expect
on average to have been arrested around 20 times by the age of 22
.[156]

They conclude
that:

early entry
into the criminal justice is itself a factor which exacerbates persistence…the
longer that formal entry …can be deferred, the fewer will be
the subsequent contacts
.[157]

Broadhurst and
Loh’s data also illustrates the greater risk of Aboriginal youth
being re-arrested. They found, for example, that a non-Aboriginal
youth arrested at 18 years of age had a 78 per cent chance of being
re-arrested, while an Aboriginal youth had a 94 per cent chance.[158]

The primary aim
of diversion should be to slow down the rate of entry into the system
and reduce the likelihood of Indigenous youth being labelled repeat
offenders. The current system is not equipped to meet this task.

2)
Availability of diversion at all stages of the criminal justice process

The WA scheme
makes diversion available at each point of contact with the system.
There are, however, concerns as to whether this occurs in practice.
As discussed, diversionary processes in WA developed partly out of
concern at the number of matters that appeared before court which
could more appropriately be disposed of at earlier stages. Court diversion
and processing was considered to be a back-stop in a system focused
on diversion from the front end of the system.
Statistics on the operation of the scheme demonstrate that, while
police referrals represent the main pathway to JJTs, there are a high
number of court referrals. In 1999, there were 2,624 referrals from
the police (2,214 distinct persons) compared with 1,335 from the court
(1,173 distinct persons).[159] Given that these
referrals occur after arrest and processing it needs to be
asked, why are the police not referring many of these cases?

Statistics reveal
that police referrals for Aboriginal people are slightly higher than
court referrals: 23.3 per cent of police referred cases are Aboriginal
as opposed to 17.7 per cent of court referred cases, while 76.7 per
cent of police referred cases were non-Aboriginal and 41.6 per cent
of court referrals were non-Aboriginal.[160] However,
in 40 per cent of the court cases the race of the offender was ‘unknown’.

Analysis of data
kept by some juvenile justice teams reveals the referral rate of Indigenous
youth from courts to be higher than that by the police. In 1999/2000,
56 per cent of Aboriginal referrals were from the court as opposed
to 44 per cent by the police (statistics supplied by Fremantle Juvenile
Justice Team). Clearly, a good many of the ‘race unknowns’
in court referrals are young Aboriginal people. The lack of clear
court statistics on race is a serious barrier to monitoring the system
for racial bias and there needs to be a concerted effort to improve
the identification of Indigenous youth in the Children’s Court.[161]
What these statistics suggest, however, is that young people do not
get diverted at the earliest possible stage in many instances –
which limits the availability of diversion and clearly militates against
the purpose of diversion, namely moving away from processing through
the formal criminal justice system.

While the Young
Offenders Act 1994
(WA) does not prescribe a list of offences
for which diversion is possible, it does contain a lengthy list of
offences and circumstances which are excluded. This limits the ability
of the decision-maker to take into account the circumstances of the
offence and is much more restrictive. This compares poorly, for example,
to the availability of diversion in other Australian schemes.

A further measure
of availability is whether young people are precluded from participating
in diversionary programs because they have previously participated.
The Police Operational orders do not prohibit police from cautioning
or referring to teams a number of times. Indeed, no upper ceiling
is stipulated. Juvenile justice workers indicated that some young
people have been cautioned up to 5 or 6 times. This appears to be
exceptional however, with the ‘informal tariff’ appearing
to be a two caution maximum and one referral to a justice team. We
were also told by workers in the justice system that Aboriginal youth
‘exhaust’ the number of cautions they are allowed by the
age of 11 years. Thereafter they are perceived by the police as ‘repeat
offenders’ and are generally not eligible for diversion.

3)
Discretion exercised on the basis of established criteria prescribed
by law

There are very
limited legislative criteria for diversionary processes in WA. Indeed,
the Young Offenders Act 1994 (WA) essentially increased rather
than curtailed the discretionary powers of the police. Diversionary
processes were simply grafted onto existing police powers and no attempt
was made to introduce any mechanisms of secondary gate-keeping, to
vet police decisions or prevent unnecessary prosecutions being made.
Decisions about cautioning and referrals to juvenile justice teams
are also left to individual arresting officers. Guidance on making
these decisions is left to police policy.

This lack of
legislative guidance is compounded by the tendency for police policies
to be seen as ‘guidelines’ rather than rules. The emphasis
is on ‘may’ rather then ‘must’ when recommending
the use of diversion. Cant and Downie’s review of police perceptions
of the legislation found that police did not feel they needed to adhere
strictly to police regulations – including those ensuring fundamental
safeguards for young people rights.[162]

This stands in
distinction to many other jurisdictions which have sought to ensure
that police fully respect the rights of young people, racial minorities
and other vulnerable groups through legislative protection. Sections
215-217 of the Children, Young Persons and Their Families Act (New
Zealand) 1989, for example, sets down clear rules governing police
behaviour when approaching, stopping, questioning and charging young
people. Similar controls exist in England and Wales under the codes
of practice connected to the Police and Criminal Evidence Act.
These rules ensure that ethical conduct by police and respect for
human rights is encouraged. Breach of the rules ensures both that
any evidence obtained is deemed inadmissible in certain circumstances
and disciplinary action taken against police officers. On the other
hand, most commentators agree that a wide degree of discretion is
inevitable, whatever the legislative regime controlling the police.[163]This
lack of legislative clarity and oversight is particularly concerning
for young Indigenous people.

At one level,
cautioning processes have been successful in terms of reducing the
overall numbers of young people being placed before the courts. Rates
of court appearances and numbers of charges dealt with by the Children’s
Court have halved.[164] However, they have failed
to make real in-roads into the rates of involvement of Indigenous
people. Police lock-ups, courts and detention centres still warehouse
Indigenous youth in large numbers. Indigenous juveniles make up anywhere
between 60 to 70 per cent of all juveniles in corrective institutions
in WA at any one time despite constituting less than 4 per cent of
the youth population in WA.[165]

Indigenous youth
accounted for just under 20 per cent of all cautions in WA in 1997.
This percentage increased slightly to just over 22 per cent in 1999
– accounting for just over 2,000 of the 10,609 officially recorded
cautions of that year.[166] On the one hand this
seems high in terms of Indigenous representation in the general youth
population of WA. However, it is still low in relation to their proportion
of the prison population and the criminal justice system as a whole.
Indigenous youth are not being cautioned at a rate commensurate with
their level of contact with police. Instead of cautions, they are
more likely to be arrested and charged than non-Indigenous juveniles.

A report by the
Aboriginal Justice Council found that, while there was a slight decline
in the number of Indigenous people arrested between 1991 and 1995
from 142 per 1,000 to 137 per 1,000, the rate of the decline was significantly
less than for non-Aboriginal people, whose rate fell from 21 per 1,000
to 16 per 1,000.[167] This meant that the differential
risk had in fact increased – from being 6.9 times more likely
to be arrested, Indigenous people were now 8.3 times more likely.[168]
The main source of the decline was in the area of juvenile arrests.
However, even with a slight decline in the arrest rate, Aboriginal
youth between the ages of 10-14 were still 25 times more likely to
be arrested than a non-Aboriginal youths of the same age, and Aboriginal
people between 15-17 years of age were 9.3 times more likely to be
arrested.
This picture generally has not improved. The rate of over-representation
has increased. A recent survey showed that Indigenous people generally
are now 10 times more likely than non-Indigenous people to be arrested
by the police.[169] Arrests rates since 1995 have
remained constant.

Although Indigenous
males are more likely to be arrested than Indigenous females, the
differential risk of an Indigenous female being arrested compared
to all WA women was even higher than the risk for Indigenous men.
In 1994, Indigenous women were 18.2 times more likely to be arrested
than other females in WA – almost twice that of males in that
State.[170]

Recent statistics
by Ferrante and Loh offer little comfort. They show that access to
diversion is still bifurcated on racial grounds – roughly half
(54 per cent) of Aboriginal youths formally dealt with by police are
diverted, as opposed to 80 per cent of non-Aboriginal youths.[171]

Decisions about
whether to caution, warn or charge a young person are not always made
on the basis of the seriousness of the offence. A range of ‘extra-judicial
factors’ may influence the decision making process, these include
if:

  • the child’s
    ‘attitude’, appearance and demeanour are ‘wrong’
    – some youths ‘fail the attitude test’;172
  • the young
    person is homeless;
  • the young
    person is ‘street present’;
  • the young
    person is part of some out-group or deviant sub-culture;
  • there is
    a ‘moral panic’ or social anxieties associated with youth
    in a particular place and time; or
  • the young
    person is from a non-mainstream background.

Lawyers and youth
workers who have contact with Aboriginal youths in Perth expressed
concern to us that decisions to approach, question, name check, search,
detain, warn, caution and arrest young Indigenous people are often
based upon these extra-judicial criteria. Taking a train to Perth
from the suburbs, hanging out around and near Perth train station
and walking in Northbridge makes them a target.

Their relationship
with the police was the main issue Aboriginal young people in detention
wanted to discuss with us.[173] All believed that
they and other Indigenous youth were ‘targeted’ by police
in public places.

Some Indigenous
justice workers contacted during our consultations said they were
angry and frustrated with the operation of the diversion system. For
example:

A lot of
our young people are not getting diverted when they could be, its
police attitudes to our kids, a lot of police are ok, especially
the ones who work on the teams, but a lot out there are callous.
A couple of cautions and then off to court, rather than JJT.

Other workers
said that the extensive number of charges young Indigenous people
receive (and which, later, enmesh them in the system) are often trivial
and emerge as a result of police intervention – such as resisting
arrest, assault on the police, swearing.

4)
Training of law enforcement officials involved in the administration
of diversion to meet the needs of young people

Current police
training is inadequate to deal with decision-making relating to diversion.
Cant and Downie surveyed police officers to identify their degree
of knowledge of the Act as it related to questions such as cautioning
and JJT referral and concluded that:

Survey responses
show that 37 per cent of respondents were either unsure or did not
believe their level of understanding enabled them to meet the requirements
(under the Act). This presents a clear training requirement that
the Police Service must address
.[174]

The same survey
also found that police in non-metropolitan areas were more reluctant
to become engaged in the juvenile justice team process and did not
see the process as ‘police work’. Police recruits receive
half a day’s training on juvenile diversion issues at the Police
Academy. On the job training is the responsibility of Perth-based
Community Services Branch, although this function is about to be devolved
to district training officers. The Community Services Branch has developed
a training package for the regions and a representative of the Branch
said that police were aware of their discretionary powers and had
a grasp of the juvenile justice team process. According to this source,
and other police contacted in Perth, many police simply did not want
to exercise their discretion in this fashion and preferred to prosecute
in many instances. They maintained that a ‘generational shift’
was required to change the culture of the police in favour of diversion.

A related concern
is that there had been limited experience of police cautioning young
people prior to the introduction of the Young Offenders Act in
1994
, with the limited use of children’s panels and trials
of cautioning practices between 1991 and 1994. WA’s scheme was
introduced when the police were diverting very few cases. The WA police
also rely on the judgement of general duties officers to make decisions
about whether a child should be cautioned or prosecuted, rather than
a specialised youth division or specialised youth officers.

5)
Diversion requires the informed consent of the child or his/her parents

The Young Offenders
Act 1994 (WA) requires that the young person and a responsible adult
consents to participation in a referral to JJT. However, there are
no safeguards such as the provision of legal advice and an interpreter
if necessary, which has the potential to undermine the informed nature
of the consent given (this is discussed further below).

Concern has also
been expressed at the manner in which conferences have been convened
by the JJTs, especially in regional areas, which can limit the participation
of Indigenous youth. The Act allows for conference coordinators to
appoint a representative to the Juvenile Justice Team of ‘the
young person’s ethnic or minority group’, where practicable.[175]
This is a watered down response to the demands by Indigenous people
that they should have a role as members of diversionary teams.[176]
The evaluation of the Act by Cant and Downie in 1998 recommended that
‘a greater effort be made… to engage Aboriginal families
with the Team process’.[177] In response the
Department of Justice extended the paid hours of sessional Aboriginal
workers, who have been working with some Metropolitan teams on a part-time
basis, and have created a full-time position of Aboriginal Coordinator
in mid-2001.

The Coordinator
position is intended to increase Indigenous involvement in the process
by coordinating meetings involving Indigenous youth and contacting
their families prior to the conference. Management suggests that the
coordinator’s work with ‘problem families’ in Fremantle
has seen an 87 per cent increase in their participation in conferencing.
The introduction of more Indigenous people has increased Indigenous
people’s willingness to participate in the process. Aboriginal
workers use their networks and knowledge of family groups to contact
Indigenous people and explain the benefits of the juvenile justice
team process. They bring knowledge of the family dynamics and Indigenous
people tend to be more forthcoming when dealing with another Indigenous
person. There are plans to ensure that all teams in the Metropolitan
area have an Indigenous person working for at least 15 hours per week.

When the Teams
were being formed in the early 1990s, the plan was to have an Indigenous
worker on each team as a full-time position. The worker would be involved
in individual cases but also have a broader community development
role, linking to other Teams in relation to developments in Indigenous
justice reforms, and facilitating dispute resolution with Indigenous
people outside the criminal justice system. There are isolated examples
of this kind of practice. The Midland JJT is developing close links
with the local Aboriginal Reference Group (a body established as part
of the Midland Cyclical Offender Intervention Project, an early intervention
scheme established in the area).

Where they exist,
Indigenous workers have been successful in locating and engaging with
Indigenous families who are transient and difficult to reach. The
workers are, however, sensitive to the potential for them to be used
as ‘black trackers’ – hunting down recalcitrant families
and bringing them into the justice system. They recognise that this
could be a perception in some quarters but believed that the scheme
– if genuinely diversionary – could be a positive experience
and spare children and young people unnecessary involvement in the
more formal justice system.

Indigenous workers
were also anxious to stress that the conference itself is only a part
of their involvement with families. While conferencing has been claimed
as part of the ‘justice model’, families still have a range
of welfare issues concerning poverty, homelessness, family violence
and drugs, to deal with. Indigenous workers, therefore, inevitably
become involved in these family issues, rather than just seeing their
role in terms of ensuring Indigenous participation in the conferencing
system.

The workers did
not believe the system was an ‘Aboriginal way’ of dealing
with things but as a kind of ‘compromise’ between an Indigenous
practice and the non-Indigenous system. They find the format of the
conferences too formalized and ‘scripted’ for Indigenous
ways of discussing and resolving issues. Some suggested that there
needs to be a number of conferences, with some involving just Indigenous
people to resolve some of the deeper problems.

Workers also
said that conferences sometimes go wrong when the police are too dominant
and ‘take over’. This is a particular problem in the country,
where officers (and juvenile justice workers) do conference work on
top of other duties and receive less training about appropriate practice
in the conference setting. We have heard concerns that police sometimes
use the conference as an ‘inquisitorial process’ to find
out about other offences and inculpate other offenders. As country
teams are not full time and juvenile justice officers arrange conferences
on top of existing work-loads, court reports and case supervision
inevitably take precedence over convening conferences.

Concerns were
also expressed about the appropriateness of conferencing processes
for younger children – under 14 years – who sometimes don’t
fully understand the process. Also, the conferences are sometimes
too long and complex and the outcomes (in terms of amounts of community
work) too excessive. In this respect, the process does not always
take account of ‘a child’s sense of time’ (as required
under s7(k) of the Young Offenders Act 1994 (WA)).

6)
Young people are provided with procedural safeguards throughout the
diversionary process

There is no statutory
obligation in WA for interpreters to be used at any stage of the criminal
justice system. Interpreters do not appear to be used during cautioning
or during juvenile justice team meetings in a formal sense. Country
workers suggested that Indigenous people might be brought in on an
informal basis to interpret: an Indigenous person on the team –
an Aboriginal Police Liaison Officer or Aboriginal Juvenile Justice
worker – may play this role. However, questions of independence
arise here. The Department of Justice is in the process of training
30 Indigenous interpreters (from various language groups in Western
Australia) under a federal initiative managed by the Attorney General’s
Department. These would be used in the court and there are no equivalent
plans to have interpreters at the investigation stage and during conferences.

Young people
in detention told us during our consultations that the JJT process
had been fair and that things had been explained to them. The majority
of youth who had been cautioned also said that the police had explained
what the reasons for the caution were and most had been given the
caution with family present. Juvenile justice workers interviewed,
on the other hand, believed that Indigenous youth currently do not
get a fair go from the system. They stressed that Indigenous youth
were not given opportunities for diversion, they tended to be cautioned
once or twice then face court.

There is no provision
similar to Queensland and South Australia ensuring that police must
communicate in a manner understandable to a child.[178]
There is also no provision for access to lawyers or child advocates
in the diversionary process, only a responsible adult. Consultations
revealed that this is not always favoured by conference facilitators
who do not want to encourage an adversarial approach in the conference.
While one can sympathize with the view that the restorative process
should not be impeded or ‘captured’ by the formal legal
system, this has to be balanced against the reality that participation
in conferencing has potential legal outcomes for participants.

By comparison,
in New Zealand, for example, the child can be represented by a lawyer
or a lay advocate during a family conference and the process at all
levels is subjected to legislative over-sight as well as a number
of internal and external screening processes (within the police and
from outside bodies). The NSW Young Offenders Act 1997 (NSW)
permits not only family and an adult chosen by the offender to attend
but also a legal advisor (although not in their capacity as legal
representatives except in certain cases). In the absence of other
screening or oversight processes in WA, there may need to be consideration
for the legal representation for children.

This may require
that juveniles be given information about access to legal advice when
they are offered referral to JJTs, or that a youth advocate be recognised
as entitled to attend JJTs as a support person, as suggested by Cant
and Downie in their recommendations on the scheme.[179]

One of the most
serious concerns about the JJT diversionary process relates to the
status of records of involvement in the process at some later judicial
event. In discussions with workers on the juvenile justice teams (in
Bunbury, Northam (country) & Victoria Park, Fremantle, and Thornlie
(metropolitan)) we were told that a key ‘selling point’
of this alternative was that it would not lead to a criminal record.

This principle
is under serious threat due to a new practice in the Perth Children’s
Court where the Police Prosecutor has been citing the numbers of cautions
and referrals to a juvenile justice team by young people, even though
they are often on entirely unrelated matters.[180]
This practice has been going on for several years but has, according
to youth lawyers, increased over the last six months. Although some
judicial and police officers have suggested that these records are
read out to establish the ‘circumstances of the offence’,
they clearly breach the principles of diversion and may have the outcome
of ‘up-tariffing’ young people when decisions are made regarding
punishment.

The President
of the Children’s Court has given directions that previous referrals
to teams and cautions should be counted as offences in certain instances
– where they demonstrate a ‘well established pattern of
offending’. In one recent judgment [181] the
President opined that there may be offences, such as home burglary,
that, while not scheduled under the Act are, nevertheless, ‘serious’
even though they may not have resulted in a court appearance (meaning
that they had been referred to a team) and this should be taken into
consideration when sentencing. In these circumstances, the child would
be ineligible for referral to a team. In this particular case the
President had over-ruled a referral to a JJT made by a Children’s
Court Magistrate, for a child who had been convicted of a home burglary
and had previous convictions in New South Wales.[182]
The child was given a Community Order – a high tariff alternative
to custody.

It is debatable
under these circumstances whether the scheme is fulfilling a diversionary
function at all if diversionary outcomes are being used against a
young person in the formal court system. It is of great concern for
a range of reasons. First, these cautions and the process of conferencing
take place without children having had the benefit of legal council.
Second, the fact that participation in conferences counts as a ‘record’
conflicts with the spirit of restorative justice principles which
are premised on the belief that once an event has been resolved to
the satisfaction of the parties directly involved then this should
be the end of the matter. While there are obvious limits to this proposition,
the balance, with juveniles, should be towards clear finality once
a particular matter has been resolved.

A related point,
is that the President of the Children’s Court has made statements
defining the principle of ‘an established pattern of offending’
under the 1994 Act, in a particularly narrow way. Courts are being
told only to refer matters to a juvenile justice team when the offender
has not had a previous opportunity to attend, rather than when the
case seems to be one amenable to restorative solutions. This, again,
seriously limits juvenile justice teams to the level of being simply
an addition to cautioning scheme.

7)
Young people are provided with human rights safeguards throughout
the diversionary process

As noted above,
the Young Offenders Act 1994 (WA) is premised on a range of
juvenile justice principles that reflect human rights standards. Despite
this, this evaluation has demonstrated a number of ways that these
safeguards are not met in practice, with concerns ranging from the
failure to take the age and maturity of the young person into account,
failure to promote the rehabilitation and social reintegration of
the young offender and failure to ensure that diversionary options
are culturally appropriate and non-discriminatory in their impact.

Clearly the most
significant issue in this regard is the failure of Indigenous youth
to benefit from diversion (through police or courts exercising their
discretion to do so) combined with net-widening and formalisation
of contact with the criminal system.

Worryingly, the
existing rate of cautioning for Indigenous youth in WA has been achieved
at the cost of significant net-widening. Although praising the ‘remarkable’
achievements of the cautioning system in diverting some 600 young
people from the court in 1996, Cant and Downie also found evidence
of net-widening with the police now ‘formalising’ through
a written caution contacts that may previously have led to a verbal
warning:

Twenty-one percent
more young people had some formal contact with the juvenile justice
system in 1996 than in 1994. This was due to a greater increase in
the number being diverted from the court system. Some young people
who would previously been dealt with informally by the police are
now been given a formal caution.[183]

Ferrante’s
analysis of long term trends in cautioning practices in WA also reveals
significant net-widening for both Aboriginal and non-Aboriginal youth.
However, an analysis of arrest and cautioning data by Ferrante suggests
that there is significantly more net-widening occurring in relation
to Indigenous youth than for non-Indigenous youth.[184]
Her data suggests that, while arrest rates for Aboriginal youths have
remained stable (in fact, shows a marginal increase of about 3 per
cent since 1995) the rate of contact with the police has risen about
30 per cent over that period. The extent of net-widening for non-Indigenous
youth is not quite as dramatic: arrests decreased by around 3 per
cent and rates of contact increased by 18 per cent. This means that
cautioning has occurred on top of, rather than instead of,
arresting young Aboriginal people.

While some Aboriginal
youths clearly are being given another chance by the police, it is
of concern that many Aboriginal youths who would have been arrested
prior to the introduction of cautioning are still being arrested but,
in addition, the cautioning system seems to be netting them and some
other, younger, less delinquent young people on other occasions for
trivial offences that may have been ignored – or just verbally
warned – under the previous regime.

8)
There are complaints and review mechanisms relating to the exercise
of discretion to divert

Section 28 of
the Young Offender Act 1994 (WA) states that:

Instead
of itself dealing with a young person who has been charged with
an offence, the court may, whether or not the person has pleaded
to the charge and whether or not the person has been found guilty
of an offence, refer the matter for consideration by a juvenile
justice team.

This provides
a de facto though highly inadequate review process for police
referral powers. This ‘back-stop’ role was intended to be
used minimally, as police themselves perform the main gate-keeping
and diversionary function. As noted above, however, the proportion
of referrals by courts is so large as to suggest that police do not
divert juveniles on sufficient occasions.

The WA Police
Operational Orders do not provide a reliable mechanism for reviewing
the initial police decision to arrest, caution or refer to a JJT,
by a senior officer. Juvenile Justice Teams have only limited powers
to vet police decision making. There is currently no mechanism for
young people to appeal against decisions made in relation to cautions
or JJT decisions and outcomes. The absence of legal representation
for young people at the point of diversion is particularly worrying
in light of this lack of safeguards.

9)
There exists independent monitoring and evaluation mechanisms for
the scheme

Section 237 of
the Young Offenders Act 1994 requires that an investigation
and review of the Act is conducted after the expiration of five years
following coming into operation of the Act. The Ministry of Justice
commissioned Cant and Downie to undertake an extensive evaluation
of the Act and the Juvenile Justice Teams, which was completed in
1998.

One concern about
the adequacy of monitoring mechanisms that was raised by Cant and
Downie in their review as a matter of urgency was the ‘unacceptably
high non-recording of ethnicity, or at least Aboriginality, on the
children’s court information system’. This continues to
be a matter of great concern as it makes it more difficult to establish
the relative rates of diversion for racial groups.

10)
Self-determination of Indigenous peoples

At the beginning
of this chapter, two alternative approaches to diversion were identified
– a minimalist ‘second chance’ approach for minor or
first offenders; and a more ambitious approach where diversion is
about directing cases into an alternative process of community justice.
The WA scheme largely fits within the first description.

The focus is
clearly on the juvenile justice teams as an early intervention option
within the framework of the juvenile justice system, rather than as
part of an overall shift in orientation. The reforms have brought
‘restorative elements’ in to the system without making the
system as a whole ‘restorative’. As such, diversionary schemes
in WA do not meet the needs of Indigenous young people who quickly
move beyond the need for a second chance.

A number of concerns
have been raised in this section about the accessibility of diversionary
options for Indigenous people, and the limited role for and participation
of Indigenous people in these. At base, the process suffers from a
lack of support from Indigenous people and is seen as culturally inappropriate.
Given the crisis rates of removals of Indigenous juveniles through
criminal justice processes, this is of serious concern and is totally
unacceptable.

The process somehow
has to be ‘given back’ to the Indigenous community. Currently,
it is not working well enough for Indigenous people and their families.
Diversionary program options for Indigenous young people, particularly
in regional areas, need to be negotiated with Indigenous communities
to ensure that they are relevant and able to meet the needs of the
community.

The WA government
needs to look closely at models of conferencing in other states, particularly
in South Australia and New South Wales. NSW in particular has gone
further than WA by employing a number of community people, including
Indigenous people, to coordinate and run conferences in the community.[185]
The dynamic established by having community people run conferences
has been viewed by some observers familiar with schemes across Australia,
as qualitatively different and less authoritarian than those run by
criminal justice professionals.[186] They should
also examine recent developments in other states which seek to increase,
on a more equal basis, Aboriginal community involvement in sentencing
processes, such as through circle sentencing trials in NSW; [187]
Aboriginal or Nunga Court Days in Port Adelaide, Murray Bridge and
Port Augusta in South Australia;[188] and Community
Justice Groups in Queensland.

Recommendations
on diversion in WA

I recommend that
the WA Government undertake the following steps to address the concerns
raised in this report.

Recommendation
7:
The Young Offenders Act 1994 (WA) be amended to include greater
detail on the operation of diversionary options in WA, rather than
matters integral to the process being contained in Police General
Orders. The amendments should include the following as a minimum:

  • create a presumption
    that police will divert young people unless a range of specified
    criteria are not met;
  • provide for
    review of decisions regarding diversion;
  • require that
    a young person is informed that they are entitled to access to a
    legal advocate at any stage of the process;
  • require that
    an interpreter be freely available at all stages in the process
    where there is doubt about the ability of the young person to understand
    the proceedings or express themself in English; and
  • provide that
    previous cautions and justice team referrals cannot be cited in
    court as though they form part of a prior record.

Recommendation
8:
The Department of Justice consult regional councils of the
Aboriginal and Torres Strait Islander Commission and Aboriginal community
organisations about the adequacy of current community based diversionary
programs for Indigenous juvenile offenders, particularly in regional
areas, and their form, organisation, management and coordination in
the future.

Recommendation
9:
Juvenile Justice Teams and conferencing processes be adequately
funded in regional areas. Funding be provided for the employment of
Aboriginal workers, and the training of Aboriginal people in local
communities to act as conference facilitators.

Recommendation
10:
The Department of Justice coordinate the development of consistent
record keeping on diversionary processes across all agencies, particularly
the Department of Justice, Police and Children’s Court. Record
keeping must identify the ethnicity of offenders in order to identify
the extent of any racial bias in referral processes. This data should
be subject to ongoing and independent monitoring and evaluation.

Conclusion

Given the level
of contact of Indigenous people with criminal justice processes, and
the integral role that juvenile offending plays in this, diversionary
processes are essential to ensuring lasting reductions in Indigenous
over-representation rates. Developments in the NT over the first year
of operation of the pre-court diversionary scheme are encouraging,
although there are significant concerns raised by the model chosen.
In WA, the introduction of juvenile justice teams and the cautioning
system have not lived up to expectations of a restorative approach.
Both models raise significant issues about how best to ensure adequate
Indigenous community participation in the criminal justice process.
This review has provided guidance on these issues, through reference
to long established and well recognised human rights principles for
diversion.


1 Blagg,
H and Wilkie, M, Young People and Police Powers, Australian
Youth Foundation, Sydney 1995, p56.

2 Seen
and heard, op.cit,
para 18.36.

3 Marshall,
T, ‘Criminal mediation in Great Britain’ (1996), 4(4), European
Journal on Criminal Policy and Research
, p37.

4 Van
Ness, D, Morris, A, and Maxwell, G, ‘Introducing restorative
justice’ in Morris, A and Maxwell, G, (eds) ,op.cit
, p7.

5 RCIADIC,
op.cit; Bringing them home, op.cit; Seen and heard, op.cit.

6 For
further details see: Human Rights and Equal Opportunity Commission,
Human Rights Brief No.5, Best practice principles for the diversion
of juvenile offenders
, HREOC, Sydney, 2001.

7 RCIADIC,
op.cit, Vol 1, para 1.7.6.

8
Bringing them home, op.cit, recommendations 43-53.

9 Since
1995 until 2000, NT has had the highest rate of detention per 100,000
of relevant population in Australia. At 30 June 2000 the rate per
100,000 in NT was 60.70, the second highest rate in Australia. Tasmania
had the highest rate at 66.46. Australian Institute of Criminology,
Persons in Juvenile Corrective Institutions 1981-2000, AIC,
Canberra, 2001, Table 1(c), p5.

10 NT
Correctional Services, Annual Report 1999-2000, op.cit, p47.

11 For
discussion of the Wagga model see Appendix One of this report.

12
Fry, D, A Report on Community Justice Programme ‘Diversionary
Conferencing Police Trial Alice Springs region,
NT Police, Darwin,
1997.

13 Northern
Territory Police, Juvenile Pre-Court Diversion Scheme: Overview,
in use at February 2001, p1.

14 Mr
Reid, Hansard, Legislative Assembly (NT), 11 October 2000:
http://notes.nt.gov.au/lant.hansard.
This second paragraph appears almost verbatim in the Police Commissioner’s
General Order J1 – Juvenile Pre-Court Diversion in force at 15
March 2001 para 1.3.

15 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001 para 2.9.

16 ibid,
para 5.1, ‘Under the terms of the Agreement with the Commonwealth,
police must divert a juvenile who has committed a ‘minor offence’
in circumstances where the juvenile and a parent/guardian have consented
to the diversion’.

17 Agreement
between the Commonwealth and the Northern Territory, attached to Joint
News Release, Commonwealth Attorney-General and Northern Territory
Chief Minister, 27 July 2000. See ‘Basis of Agreement’.

18 Police
Commissioner’s General Order J1 – Juvenile Pre-court Diversion
in force at 15 March 2001, Schedule A.

19 ibid,
para 6.11.1.

20
For example, in NSW the young person must have made an admission to
all elements of the offence in the presence of an independent adult
before a referral can be made: Young Offenders Act 1997 (NSW)
ss36(b), 10. See further Appendix one of this report.

21
Police Commissioner’s General Order J1 – Juvenile Pre-Court
Diversion in force at 15 March 2001.

22
ibid, para 6.2.1.

23 ibid,
para 6.20.1. Good behaviour bonds are imposed under s53(1)(d) of the
Juvenile Justice Act 1983 (NT) and are unsupervised. Probation orders
are made under s53(1)(f) under that Act and are supervised by NT Correctional
Services.

24 Police
Administration Act 1978
(NT), s120J.

25 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001 para 5.6.

26 Police
Administration Act 1978
(NT), s120K.

27
Police Administration Act 1978 (NT), s120M.

28 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001 para 6.11.3-4.

29
Police Commissioner’s General Order J1 – Juvenile Pre-Court
Diversion in force at 15 March 2001 para 6.18.4.

30 Police
Administration Act 1978
(NT), s120H.

31 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001, para 6.3.1.

32
ibid, para 6.16.2.

33 ibid,
para 6.3.3.

34
ibid, para 6.3.5.

35 Minor
offences are defined as property offences, other than unlawful entry
with intent, where the value of the property does not exceed $100:
ibid, para 6.3.6.

36 ibid,
para 6.3.5.

37 ibid,
para 6.3.7.

38 Police
Commissioner’s General Order C1 – Children in force at 1
June 2000 paras 7.1.1-7.1.8.

39 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001 in force at 15 March, para 6.4.1.

40 ibid,
para 6.4.2. Para 4.4 defines ‘authorised officer’.

41
ibid, para 6.5.2.

42
For example, in NSW the only condition that can attach to a caution
is a written apology: Young Offenders Act 1997 (NSW) s29(4),
(5).

43
The NT Police ‘Guidelines for the Administering of Warnings,
Formal Cautions/Family Conferences and Victim Offender Conferences
using Restorative (and Shaming) techniques’, April 2000 includes
a typical example of a family conference/caution process.

44 There
are plans to amend the General Orders to rename formal cautions as
family conferences.

45 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001, para 6.6.1.

46 ibid,
para 6.6.1.

47 For
example, in NSW and Victoria any victim of the offence or his nominated
representative is entitled to attend a conference but his decision
not to attend does not stop the process: Young Offenders Act 1997
(NSW) s47(1)(i).

48
Police Commissioner’s General Order J1 – Juvenile Pre-Court
Diversion in force at 15 March, op.cit, para 6.6.3.

49 ibid,
para 6.6.4.

50 ibid,
para 6.6.2.

51
ibid,
para 6.7.3-4.

52
ibid, para 6.7.1-2.

53
ibid, para 6.7.5.

54
Northern Territory Police Juvenile Pre-Court Diversion Scheme:
Overview
in use at February 2001, attachment clause 5(1), (2).

55
Notes on CDU by Patrick McCloskey, previous Youth Development Worker,
supplied by CDU.

56 Barry
and Elva Cook and family with Craig San Roque, Story about Intjartnama
– A Healing Place – An account of work in progress at Intjartnama
Outstation,
April 1994.

57 Juvenile
Justice Act 1983 (
NT) s53AE(2)(c). For all other offenders the
Court has been able to order a variety of dispositions besides detention
under s53 (1).

58 Juvenile
Justice Act 1983 (
NT) s53AE(6).

59 A
list of these programs approved as at June 2001 can be obtained from
NT Corrections. They include programs in Darwin, Daly River/Port Keats
region, Katherine region, Tennant Creek region, Alice Springs region.
Not surprisingly, considering the size of NT communities, these programs
also function as programs for referral for pre-court diversion.

60
Pamphlet on Detention Diversion Programs produced by the Program Coordinator,
NT Correctional Services.

61
This total includes one request by a court for a victim/offender conference
as a condition of a good behaviour bond.

62 Punitive
work orders were introduced at the same time as mandatory sentencing:
Pt VI, Div 3A. Unlike community service orders, punitive work orders
were compulsory and did not require the consent of the offender. Young
people performing punitive work orders could be required to wear identifying
equipment or clothing while performing the work by the supervisor:
Juvenile Justice (Punitive Work Orders) Regulations 1998 (NT)
cl.14(1). However, the amendments to the Juvenile Justice Act
which came into operation on 22 October 2001 have since repealed punitive
work orders altogether and renamed community service orders as community
work orders; ‘A Bill for an Act to amend the Juvenile Justice
Act’, prepared by the Office of Parliamentary Counsel, NT, 13
October 2001.

63 Juvenile
Justice Act 1983 (
NT) s53AE(4).

64 Juvenile
Justice Act 1983
(NT), s53 (1)(ea), 11 and 12.

65 Amendments
to the Juvenile Justice Act 1983 (NT), s53(12).

66 Twelve
month statistics for the scheme were not available at the time of
finalisation of this report, due to the conduct of the inter-governmental
review of the scheme’s first year that was required under the
agreement with the Commonwealth. The Commission has been assisted
by the cooperation and openness of the NT Police during the conduct
of this research. According to the Juvenile Diversion Unit, all statistics
contained in tables are ‘indicative’ only.

67 This
is the percentage of total apprehension cases unless otherwise stated.

68 An
apprehension case may include multiple charges and multiple apprehensions.

69
Police are required to offer diversion to these offenders.

70 See
Police Commissioner’s General Order J1 – Juvenile Pre-court
Diversion, Sch A for excluded offences.

71 This
concern has been raised about cautions generally by Blagg, H and Wilkie,
M, op.cit, p55. According to NT Police, Fire and Emergency Services,
1999-2000 Annual Report, Table 10, p96, apprehensions of juveniles
in the NT increased slightly between 1995/96 (1283) and 1999/00 (1571).
The NT Police, Fire and Emergency Services, 2000-2001 Annual Report,
p41, states that that the total number of juveniles apprehended in
1999/2000 was 1960, which dropped to 790 in 2000/2001. This appears
to indicate that juvenile diversion has decreased police contact.
However, it is unclear whether the two sets of figures for 1999/2000
given above refer to apprehensions or distinct persons.

72 This
percentage is of the total juvenile apprehensions.

73 This
percentage, and the one below, is of the total of Indigenous apprehensions.
Indigenous young people account for approximately 60 per cent of the
total number of apprehensions not eligible for (53) or denied diversion
(269). Exact numbers of Indigenous young people for each of these
separate categories was not available for this period. However, information
from the 6 monthly performance report by the NT Government to the
Commonwealth on diversion programs and the Aboriginal Interpreter
Service, from 1 September 2000 to 31 March 2001 indicates that of
38 juveniles excluded from diversion over that period, 63.2 per cent
were Indigenous. Indigenous juveniles comprised 58.1per cent of the
serious cases (where police discretion is exercised).

74 This
percentage, and the one below, is of the total number of Aboriginal
young people offered diversion.

75 See
www.abs.gov.au, 17 August 2001.

76 Seen
and heard, op.cit
, para 2.11.

77 It
is unclear whether this is because Indigenous young people are apprehended
for more serious and excluded offences than non-Indigenous young people
or because of any other factor affecting offers of diversion.

78 This
is the total number of the total of those young people who consented
to and participated in diversion. The information provided so far
does not indicate the unsuccessful diversions for each of the totals
below.

79 These
percentages are based on a percentage of the 1102 diversions that
were consented to by young people.

80 These
include training programs, substance abuse programs, counselling and,
community and adventure programs.

81 Of
the 14 Indigenous young people on registered programs, 2 were young
women aged 10-14, 5 were young men aged 10-14 and 7 were young men
aged 15-17.

82 Of
the 34 Indigenous young people on informal programs, 2 were young
women aged 10-14, 13 were young men aged 10-14 and 19 were young men
aged 15-17.

83 The
Juvenile Diversion Unit points out that these ‘can be more onerous
and achieve better results than a registered program’.

84 This
referral was for a non-Indigenous male.

85 These
locations were included because over 20 diversions had been considered.
A number of locations previously considered to be juvenile crime trouble
spots had relatively low figures, for example Yuendumu (14).

86 Elliott
is on the Stuart Highway between Daly Waters and Tennant Creek. Of
the 22 young people diverted, 1 participated in an informal program.

87
Lajamanu is near the western border of the NT, on the edge of the
Tanami Desert. Of the 27 young people diverted, 8 participated in
an informal program.

88 Ngukurr
is on the south-west tip of Arnhem Land near the Gulf of Carpentaria.
Of the 33 young people diverted, 1 participated in an informal program.

89 Nhulunbuy
is in the far north-east of Arnhem Land on the Gove Penninsula. Of
the 35 young people diverted, 8 participated in informal programs
and 1 in a registered program.

90 Performance
Information , 6 monthly report to the Commonwealth on diversion programs
and the Aboriginal Interpreter Service, All Diversion Training Summary
(12).

91
The Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) Women’s
Council has continually identified a pressing need to address petrol
sniffing problems in the lands which they cover in the NT and SA.
NPY been running a petrol sniffing project in Fregon, South Australia
since 1999, which was broadened and renamed the Young People’s
Program in 2001. They are also planning other youth projects to address
petrol sniffing. Issues of funding and ongoing commitment across community
and government remain key hurdles to the implementation and success
of these programs.

92 CAYJ,
Position Paper: Prevention is better than detention, 12 July
2000.

93 A
report prepared by the NT Juvenile Diversion Division of the NT Police,
‘A diverse approach to juvenile offending in the Northern Territory’,
20 June 2001 states that in excess of 170 agencies, organisations,
service providers and community councils have been consulted or briefed
on community program development. In addition more than 700 community
members have been briefed on the Diversion scheme by personal presentations
and meetings by the JDU. Certainly, a number of organisations we spoke
to in Alice Springs, Darwin, Tennant Creek and Groote Eylandt had
some contact with the Juvenile Diversion Unit, although this was after
the scheme had been established.

94 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001, paras 2.7, 6.4.2.

95 NT
Police, op.cit, April 2001.

96 Children,
Young Persons, and Their Families Act 1989
(NZ), s208.

97 Seen
and heard, op.cit,
pp485-487.

98
ibid, p485.

99 Blagg,
H and Wilkie, M, op.cit; Sandor, D, ‘The thickening blue wedge
in juvenile justice’ in Alder, C and Wundersitz, J (eds), Family
conferencing and juvenile justice: The way forward or misplaced optimism,

Canberra, The Australian Institute of Criminology, 1994; Bargen, J,
‘Kids, cops, courts, conferencing and children’s rights’,
(1996), 2, Australian Journal of Human Rights, pp209-215; H
Blagg, ‘A just measure of shame? Aboriginal youth and conferencing
in Australia’, (1997), 37(4), British Journal of Criminology.

100 Bringing
them home, op.cit
, p525.

101 Ashworth,
A, The criminal process, Oxford, Oxford University Press, 1994,
p7.

102 Blagg,
H and Wilkie, M, ‘Young people and policing in Australia: the
relevance of the UN Convention on the Rights of the Child’ (July
1997), 3(2), Australian Journal of Human Rights, p144.

103
Cunneen, C, Conflict, Politics and Crime, op.cit, p142.

104 This
problem is not limited to the Northern Territory. See, for example,
Seen and heard, op.cit, paras 18.63-72.

105 It
has been common practice in Alice Springs for juveniles to be detained
and transported to the Police Watchhouse to obtain sufficient details
in order to decide who to contact and what to do with them. On 28
March 1999 a 16 year old Aboriginal boy was taken into protective
custody by the police and later died from hanging in a cell at Alice
Springs Police Station Watchhouse. HREOC provided a submission to
the Inquest of his death, asserting that there was a breach of Australia’s
human rights obligations, especially articles 3,4,6,19,27 and 37 of
CROC.

106 Astri
Baker, youth worker at the Alice Springs Youth Accommodation Support
Service in Johnson, D & Zdenkowski, G, op.cit, p125.

107 NT
Correctional Services has recently been amalgamated into the new Department
of Justice, which includes the Attorney-General’s Department,
Court Administration, Public Prosecutions, Anti-Discrimination Commissioner,
Office of Consumer Affairs and the newly created Office of Crime Prevention.
A Juvenile Division has not been created.

108 Family
placements of around 28 days duration are found for young people who
are homeless or cannot return to the family home.

109 See,
eg, Young Offenders Act 1997 (NSW) ss 22(1)(b), 39(1)(b); Young
Offenders Act 1993
(SA) ss11(2), (5); Juvenile Justice Act
1992
(Qld) s 18D; Youth Justice Act 1997 (Tas) ss9(1),
(2).

110 In
one case in July 2001, a NAALAS lawyer argued at court that his 15
year old client should have been diverted by the police before reaching
court. After directing the lawyer to leave the courtroom for raising
this issue, the magistrate adjourned the matter for the original reasons
raised by the lawyer. Justice Action media release, 12 July 2001,
www.justiceaction.org.au.

111
Stirling, S, Hansard, Legislative Assembly (NT), 19 October
2000, http://notes.nt.gov.au/lant.hansard.

112
Police Administration Act 1978 (NT), s120M.

113 See,
eg, Children (Criminal Proceedings) Act 1987 (NSW) ss10, 11;
Juvenile Justice Act 1992 (Qld) s62.

114 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001, para 6.14

115 The
Anunga Rules were developed in the NT to ensure the use of interpreters
and allow accused persons to have an ‘interview friend’
in attendance during police interviews (R v Anunga; Rr v Wheeler
(1976) 11 ALR 412).The rules are general guidelines for police
conduct, departure from which, according to Justice Forster (1976,
413-4) would ‘probably lead to evidence of the interrogation
… being rejected’ (cited in Blagg and Wilkie, op.cit,
1995, p130-31.

116
Ferrante, A, An analysis of police arrest statistics, Perth,
Crime Research Centre, UWA (unpublished).

117 Cunneen,
C, Conflict, Politics and Crime, op.cit.

118 Findlay,
M, Odgers, S and Yeo, S, Australian criminal justice, Melbourne,
Oxford University Press, 1994, p274.

119 Luke,
G. and Cunneen, C, Aboriginal over-representation and the discretionary
powers in the NSW juvenile justice system.
Sydney, Juvenile Justice
Advisory Council, 1995, p56.

120 Cunneen,
C, Conflict, Politics and Crime, op.cit, p31.

121 Police
Commissioner’s General Order J1 – Juvenile Pre-Court Diversion
in force at 15 March 2001, para 6.3.2 provides some deterrent to this
occurring. It states that a verbal warning or other diversion is not
appropriate if there would have been no reasonable prospect of a conviction.

122 Police
Administration Act 1978
(NT) s120P is effectively a privative
clause. It states that decisions about diversion cannot be reviewed
under the Act. However, there is no general review provision in the
Act which means there is effectively no appeal. Courts have traditionally
taken a restrictive view of such provisions.

123 Police
Administration Act 1978
(NT) s120N.

124 Blagg,
H, ‘Aboriginal youth and restorative justice: Critical notes
from the Australian frontier’, in Morris, A and Maxwell, G, ibid,
p227.

125
Daly, K, ‘Conferencing in Australia and New Zealand: Variations,
Research Findings, and Prospects’ in Morris, A & Maxwell,
G (eds), pp65-66.

126 Australian
Law Reform Commission (ALRC), The Recognition of Aboriginal Customary
Laws,
Report 31, 1986.

127 The
WA Law Reform Commission inquiry into Aboriginal Customary Laws is
expected to take several years. For terms of reference see: http://www.wa.gov.au/lrc/aboriginal.htm.

128
NSW AJAC, Strengthening Community Justice – Some issues in
the recognition of Aboriginal Customary Law in New South Wales
,
Discussion paper, www.lawlink.nsw.gov.au/ajac.nsf/pages/publications,
(21 December 2001).

129 Australian
Law Reform Commission, The Recognition of Aboriginal Customary
Laws
, Report 31, 1986.

130
NSW Law Reform Commission, Sentencing: Aboriginal Offenders,
Report 96, October 2000, p96.

131 Section
46C(1)(a), Human Rights and Equal Opportunity Commission Act 1986
(Cth).

132 Australian
Bureau of Statistics, Corrective services – June Quarter 2001,
ABS Canberra 2001, p21; see also AIC, Persons in Juvenile Corrective
Institutions,
Figure 3, pp16-18.

133
Daly, K, op.cit, 2001, pp68-9. This shift was captured graphically
by an episode in 1991 where a memo by a senior WA police officer encouraging
police to ‘harass’ young people on the street was leaked
to Mr Brian Burdekin, the Human Rights Commissioner at the time.

134 Young
Offenders Act 1994
(WA),s22A empowers police to ‘administer
a caution to the young person instead of starting a proceeding for
the offence.’ Under s22B the police are invited to ‘consider
whether in all the circumstances it would be more appropriate –
(a) to take no action; or (b) administer a caution to the young person’.

135 Kucera,
R, Policing juveniles: an overseas and Western Australian perspective,
Speech, National Conference on Juvenile Justice, Canberra, Australian
Institute of Criminology, 1992.

136
Young Offenders Act 1994 (WA), Schedules 1 & 2. These schedules
identify certain offences for which a caution cannot be given, for
which a juvenile cannot be referred to juvenile justice team and ‘for
which a conviction will normally be recorded’. There are 70 such
exceptions, including offences such as sexual offences, murder and
infanticide under the Criminal Code, through to victimless offences
under the Misuse of Drugs Act 1981 (that take in possession of small
amounts of cannabis) and the Road Traffic Act 1974. Other offences
include assaults occasioning bodily harm and criminal damage.

137 Young
Offenders Act 1994
(WA),s7.

138
Young Offenders Act 1994 (WA),s7.

139 The
recent creation of a Drug Court in WA has prompted debate about
the possibility of extending the cautioning scheme to include minor
drug offences such as the possession of cannabis.

140 The
police are also asked to be aware of Section 26 of the Young Offenders
Act 1994
, which calls on police to speedily release young people
once a decision has been made to refer to a juvenile justice team
(s26(1) and ensure that young people are not detained solely to make
a referral decision (s26(2).

141 Police
Service of Western Australia, Police Operational Orders (No
24).

142 Division
2 of the Act establishes the teams and sets out the criteria to be
employed when assessing whether a case is suitable for this form of
diversion.

143 State
Government Advisory Committee on Young Offenders (SGACYO), Briefing
paper on establishing family conferencing in Western Australia
,
SGACYO, Perth, 1991.

144 Young
Offenders Act 1994
(WA), ss36-37.

145 Young
Offenders Act 1994
(WA), s37(2)(a) and (b). In practice education
representatives have tended not be employed on teams. Currently there
is only one education worker covering all the metro teams, while it
is only recently that the DOJ has paid more than lip service to involving
a member of an ethnic minority on Teams.

146 Young
Offenders Act 1994
(WA), s32(1).

147
ibid,
s8. Role of responsible adult. In s8(c)’a responsible
adult should be notified as soon as practicable after a young person
is taken into custody or otherwise dealt with under this Act’.
Section 30(1) states that ‘Before it deals with an offence, a
juvenile justice team is to give a responsible adult notice that it
proposes to deal with the young person for the offence, and it can
only proceed if a responsible adult is present and has indicated agreement
with the proposal and a willingness to participate in the proceedings
as the team sees fit’. For situations where a responsible adult
can not be located see ss3-5.

148 Cant,
R, and Downie, R, Evaluation of the Young Offenders Act (1994),
February 1998, p39. The evaluation was commissioned by the WA Ministry
of Justice. It includes two separate but related evaluations of the
Young Offenders Act itself and the Juvenile Justice Teams in particular.
It made a number of detailed recommendations.

149
ibid, p39.

150
Ferrante, A, Fernandez, J and Loh, N, Crime and justice statistics
for Western Australia
, Perth, Crime Research centre, University
of Western Australia, 2000, p115.

151 See
further: Aboriginal Justice Council, Our mob, our justice: keeping
the vision alive: the 1998 monitoring report of the Royal Commission
into Aboriginal Deaths in Custody
, Perth, 1999, p8.

152
ibid,
p8. Note also the discussion of relative disadvantage of
Western Australian ATSIC regions by the Commonwealth Grants Commission
in chapter 4 of this report.

153 Broadhurst,
R and Loh, N, ‘Re-arrest probabilities for the 1984-1993 Western
Australian population: a survival analysis’ (1995), 11, Journal
of Quantitative Criminology
p289.

154
Harding, H and Maller, R, ‘An improved methodology for analysing
age-arrest profiles: application to a Western Australian offender
population’ (1997), 13, Journal of Quantitative Criminology,
p249.

155
ibid, p369.

156 ibid,
p361.

157
ibid, p369.

158 Broadhurst
and Loh, op.cit, p296.

159 ibid,
p115.

160
ibid, p115.

161 This
was also recommended by Cant, R and Downie, R, op.cit, Ch.1,
Part VI.

162 Cant
, R and Downie, R, op.cit, p4.

163
Waddington, P, Policing citizens: Authority and rights, UCL
Press, London, 1999.

164
Aboriginal Justice Council, op.cit.

165 Australian
Institute of Criminology, Persons in Juvenile Corrective Institutions
1981-2000 with a Statistical review of the Year 2000
, Tables 4(a)
to 4(c), pp10-12.

166 Ferrante,
Fernandez and Loh, 2000, op.cit, Table VIII, p52.

167 Aboriginal
Justice Council, Our mob, our justice, op.cit, p28.

168 ibid,
p28.

169
Ferrante, A, Fernandez , J and Loh, N, 2000, op.cit,
p44. Arrest means the laying of charges either by way of an arrest
or summons by a police officer against a person alleged to have committed
a criminal offence. It does not include juvenile cautions or minor
traffic charges.

170 Boyd
Hamilton Hunter, Factors Underlying Indigenous Arrest Rates, Centre
for Aboriginal Economic Policy Research
, ANU, 2001, R52.4, Table
3. The study is based on analysis of 1994 data.

171 Ferrante,
A and Loh, N, Aboriginal involvement in the Western Australian
criminal justice system: a statistical review,
prepared for the
Aboriginal Justice Council, Perth, Crime Research Centre, 2000.

172 Blagg,
H and Wilkie, M, op.cit.

173
Discussions were held with young people in Banksia Hill Detention
Center and on the Warminda Intensive Supervision Program.

174 Cant,
R and Downie, R, op.cit, p11.

175 Young
Offenders Act 1994
(WA), s37(2).

176
SGACYO, op.cit.

177 Cant,
R and Downie, R, op.cit, p72.

178 Juvenile
Justice Act 1992
(Qld), s15(1). Young Offenders Act 1993
(SA), s2.5.1.

179 Cant,
R and Downie, R, op.cit, Part VI.

180
According to consultations with the WA Aboriginal Legal Service.

181 Police
v RMK (
a child) 2001, WA CC4.

182 ibid.
s18.

183 Cant,
R and Downie, R, op.cit, p1.

184
Ferrante, A, An analysis of police arrest statistics, Perth,
Crime Research Centre, University of Western Australia (unpublished),
2001.

185
Trimboli, L, An evaluation of the NSW youth justice conferencing
scheme
, Sydney, NSW Bureau of Statistics, 2000.

186 Consultations
with James MacDougal, Federation of Community Legal Centres. Mr MacDougal
worked at the Youth Legal Service in Perth and in the Youth Conferencing
Unit, Department of Juvenile Justice, NSW. He said, ‘When police
are present, particularly in a leadership role, people automatically
look to them to be authoritative and lead. When a community person
convenes a conference, it is more like a circle with no single, dominating
authority’.

187
See: NSW AJAC, Strengthening Community Justice, op.cit.

188 See:
www.courts.sa.gov.au/courts/magistrates/aboriginal_court_days.html.