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

Social Justice Report 2001

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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 venile 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 /em> (CERD) and 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] [11] An evaluation report of the trial recommended that the program be implemented throughout the Te [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] [16] That must ust 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 unlawfu [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] [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 sen [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 necessar [34] [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 [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] [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 [37] f="#37">[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 O [38]

The Police Commissioner’s General Order states that a formal caution ong>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 effe [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] 40">[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 d [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 fam [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 languag [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 provi [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] [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 take [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 offe [57] and on one occasion o [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

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

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

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

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 abu [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

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 [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 yout [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. 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] "#101">[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 [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. 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 divers [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 progr [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 [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, arrestin [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] "#124">[124] But linkages between conferencing (as currently practiced) and traditional Indigenous Australian dispute resolution practices are more difficu [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. 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.

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 o [135] 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 [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 includ [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 part [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 t [148] 8] 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 o [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 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 199 4 (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. 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.

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 [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 lik [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 pol [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] 5">[175] This is a watered down response to the demands by Indigenous people that they should have a role as members of diversi [176] 6">[176] The evaluation of the Act by Cant and Downie in 1998 recommended that ‘a greater effort be made… to engage Aboriginal families with [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] "#181">[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 con [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 occur 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) European Journal on Criminal Policy and Research , p37.

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

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: https://humanrights.gov.au/our-work/commission-general/broken-link . 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 J uvenile 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 J uvenile Justice Act 1983 ( NT) s53AE(4).

64 J uvenile 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 Family conferencing and juvenile justice: The way forward or misplaced optimism, sm, Canberra, The Australian Institute of Criminology, ߊ Bargen, J, ‘Kids, cops, courts, conferencing and children’s rights Australian Journal of Human Rights, pp209-× 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) 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, https://humanrights.gov.au/our-work/commission-general/broken-link .

112 Police Administration Act 1978 (NT), s120M.

113 See, eg, Children (Criminal Proceedings) Act 1987 ( NSW) ss10, 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 int (R v Anunga; Rr v Wheeler r (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 i 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 Maxw 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: https://humanrights.gov.au/our-work/commission-general/broken-link?government+aboriginal+affairs.

128 NSW AJAC, Strengthening Community Justice – Some issues in the recognition of Aboriginal Customary Law in New South Wales /em>, Discussion pap 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 /em>, ABS Canberra 2001, p see also A 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’ (199 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’ (199 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 J uvenile 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, p 1.

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.