Authors:
Professor Kenneth Polk, Professorial Fellow, Department of Criminology, University of Melbourne
Associate Professor Christine Adler, Department of Criminology, University of Melbourne
Mr Damon Muller, Research Assistant, Department of Criminology, University of Melbourne
Ms Katherine Rechtman, Research Assistant (former), Department of Criminology, University of Melbourne
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Early Intervention: Diversion and Youth Conferencing - A national profile and review of current approaches to diverting juveniles from the criminal justice system
Australian Government Attorney-General's Department, Canberra
© Commonwealth of Australia, December 2003
ISBN 0 642 21090 X
The views expressed in this publication are those of the author and do not necessarily represent the view of the Commonwealth of Australia. Whilst all reasonable care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions.
See also: ISBN 0 642 21098 5 Early Intervention: Mentoring Youth at Risk - A national profile and review of mentoring programs for youth at risk
Design: Design Direction
Print: Union Offset
Publisher: Australian Government Attorney-General's Department
Across Australia, jurisdictions are developing alternative processes to reduce the number of young people entering the criminal justice system. Until now, there has been no comprehensive assessment of the similarities and differences of these approaches.
This report, commissioned under the Australian Government's National Crime Prevention Program, provides a national profile of diversionary practices across Australia. It highlights the importance of developing better ways to prevent juvenile crime and recidivism amongst young people. It also examines more cost-effective approaches than incarceration, and promotes diversionary schemes with strengthened links to families and communities.
The approaches identified also highlight models of good practice in the field.
SENATOR CHRIS ELLISON
Minister for Justice and Customs
Senator for Western Australia
INTRODUCTION: THE MANY MEANINGS OF DIVERSION
Juvenile diversion and the more general trend toward 'destructuring'
Diversion and destructuring in Australia
The present project: A national profile of juvenile diversion programs
POLICE CAUTIONING: DIVERSION AT THE FRONT END OF THE JUVENILE JUSTICE SYSTEM
The language of cautioning in Australia
Informal cautions
Formal cautions
Cautioning by state in Australia
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Australian Capital Territory
The Northern Territory
Different approaches to police cautioning
Model 1: Police cautioning out of the justice system
Model 2: Police caution with referral to other programs
Model 3: Police cautioning with conditions
Cautioning: An overview
Police cautioning as juvenile diversion: The template
CONFERENCING: THE SECOND MAJOR APPROACH TO JUVENILE DIVERSION
Conferencing by state and territory in Australia
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Australian Capital Territory
Northern Territory
The conference process: An overview of the common elements
Model 1
Model 2
Model 3
Family conferencing: Looking at the record
Conferencing and recidivism
Conferencing and re-offending: Assessing the claims and evidence
Conferencing and other impacts
Victims and other participants
Gender
Timeliness and cost-effectiveness
But is it diversion?
USE OF BAIL AS A DIVERSIONARY PROGRAM
Queensland
Conditional bail program
Youth Bail (Accommodation) Support Service
Western Australia
Supervised bail programs
Victoria
Bail facilitation
Bail advocacy
Conclusions: Approaches to reducing numbers on remand
OTHER PROGRAMS
A youth support service approach: Killara (WA) and the YFSS (Queensland)
Killara case study - Billy's case
Youth and Family Support service: Case study
Youth support service programs: The template
Echuca, Victoria: The CYPRASS program
CYPRASS: The template
Arts-based diversionary programs for high-risk youth in the community
Metalworx program: Port Augusta
The Creative Youth Initiatives, Sydney
Arts programs: The template
DIVERSION AND THE INDIGENOUS COMMUNITY
CONCLUSIONS: PULLING IT TOGETHER
APPENDIX A: SITE VISITS AND PERSONS CONTACTED
One of the objectives of this project was to provide a description of the nature of the diversion processes at different stages in the juvenile justice system, and the extent of their application within Australia. In achieving this objective, a brief review of the historical development of diversion is provided which indicates that the specific term diversion entered the vocabulary of justice practice as a result of work of the President's Crime Commission in the mid-1960s. Diversion as a practice has existed in Australia well before that time, as indicated both by the establishment of children's courts in the late 19th century (diversion from the adult criminal justice system), and the formalisation of police cautioning in Victoria in 1959, and Queensland in 1963 (Challinger 1985).
Diversion is one of a number of processes designed to reduce the volume of juveniles who enter the formal system of justice. Other processes include delinquency prevention, decriminalisation, and deinstitutionalisation, all of which have at one time or another had some place in the system of juvenile justice in Australia. This study defines juvenile diversion as programs and practices which are employed for young people who have initial contact with the police, but are diverted from the traditional juvenile justice processes before children's court adjudication.
This examination of diversion in Australia involved site visits to each state and territory, and in most cases there were at least two such visits. The research established that the concept of diversion is widely used throughout each of the eight Australian jurisdictions, especially in terms of police cautioning and family group conferencing. Both of these approaches to diverting juveniles from formal juvenile justice practices are covered in individual chapters of this report. In addition, the field work with leading justice representatives in the states and territories identified the problem of significant numbers of young people being held in detention on remand who where subsequently not being sentenced to periods of detention. Therefore consideration was also given to approaches to diverting these young people from pre-trial detention. Finally, a small number of more limited and focused diversion programs in individual states are described. A separate section also is provided to address the particular issue of the implications of diversion for Indigenous juvenile offenders.
From its origins in Victoria and Queensland in the mid-1960s, by 2002 police cautioning had spread and is now established as a major approach to juvenile diversion in all eight jurisdictions in Australia. Two levels of caution were found in Australia:
Formal cautions are now employed in all Australian states and territories, and informal cautions are found in all but the Australian Capital Territory.
There are three rather different ways that cautioning can be carried out. A first model, consistent with what some writers have termed true diversion (Cressey and McDermott 1974) consists of the situation where the caution diverts the young offender out of the system with no other action being taken. A second model is where, after some warning process (a formal caution), the young offender is referred on a voluntary basis to a program such as a drug or alcohol-counselling centre (that is, diverted out of the justice system but into a program). A third model is where the young offender is cautioned, but there are undertakings required (eg a fine, or community service, or attending a program) as part of the caution. In this model the individual is diverted out of the justice system, but if specific conditions are not met, there is the possibility of re-entry for action on the original offence.
The following overall observations are presented regarding police cautioning:
Unfortunately, we were unable to locate any recent data on the outcomes or effectiveness of police cautioning. Earlier investigations (Challinger 1985) raised the possibility that such programs might contribute to forms of net-widening, but the absence of any recent information makes it impossible to examine such claims in the contemporary context. Since that time the police cautioning options have significantly expanded in most states, with some systems providing for penalties to be associated with a caution. Especially in light of this notable elaboration of the cautioning processes, some priority should be given by justice system policy makers to a careful assessment of the process and outcomes of police cautioning in the various jurisdictions in Australia.
One of the most striking recent developments in juvenile justice in Australia has been the rapid spread of the use of group conferences. Unknown prior to the 1990s, by 2002 conferences had spread to all states and territories. In most jurisdictions (for example, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, and Western Australia), the state legislation has been revised so that there are formal links between police cautioning at the early stages (the front end) of the justice system, and conferencing somewhat deeper in that system. While there are important jurisdictional differences in terminology and procedure, in general the process of conferencing fits the dynamics that have been described by one researcher as follows:
A young offender (who has admitted to the offence), his or her supporters (often, a parent or guardian), the victim, his or her supporters, a police officer, and the conference convenor (or coordinator) come together to discuss the offence and its impact. Ideally, the discussion takes place in a context of compassion and understanding, as opposed to the more adversarial and stigmatising environment associated with the youth court. Young people are given the opportunity to talk about the circumstances associated with the offence and why they became involved in it. The young person's parents or supporters discuss how the offence has affected them, as does the victim, who may want to ask the offender 'why me?' and who may seek reassurances that the behaviour will not happen again. The police officer may provide details of the offence and discuss the consequences of future offending.
After a discussion of the offence and its impact, the conference moves to a discussion of the outcome (or agreement or undertaking) that the young offender will complete... The sanctions or reparations that are part of agreements include verbal and written apologies, paying some form of money compensation, working for the victim or doing other community work, attending counselling sessions, among others. (Daly 2001:66-67)
Our research in the various jurisdictions differentiates three basic approaches to conferencing that can be distinguished primarily in terms of the location of the juvenile justice conferencing. The first approach, often referred to as the Wagga Wagga model, is where the police are responsible for organising and facilitating the conferences (this is the model used in the Australian Capital Territory, Northern Territory and for some of the conferences in Tasmania). A second approach, common to the states that have an integrated system of cautioning and conferencing, entails police referring individuals to conferences that are administered by a separate justice system organisation (the model found in New South Wales, Queensland, South Australia and Western Australia, and partially in Tasmania). A third approach is where the referral to a conference is from the Children's Court in the pre-sentencing phase. This is the model favoured by Victoria (and provided for in the legislation in the Northern Territory, although the numbers suggest that there are now no cases being referred through that process).
For conferencing, unlike cautioning, there is a considerable body of data assessing its processes and outcomes. However, a review of the empirical record regarding recidivism and conferencing reveals conflicting evidence and claims. A number of innovative studies have been conducted which suggest positive effects. One study in NSW uses a quasi-control group method, and finds using a sophisticated form of survival analysis that recidivism is lower among conferenced young offenders than among those who have been referred on to court. Studies in South Australia and New Zealand examined characteristics of successful conferences and concluded that success in terms of lowered levels of recidivism was more likely when young offenders were remorseful and participated effectively in determining conference outcomes, and also when families of offenders similarly were remorseful and involved in the conference outcomes. Unfortunately, these positive findings are balanced by a finding of no difference in the most rigorous of the evaluations (the RISE project in Canberra), and by a quasi-control group study in Victoria.
There are three problems identified that complicate any attempt to read the evidence regarding the impact of conferencing on recidivism. First, there is the question of the control for selection biases. That is, throughout the criminal justice system there are deep and complex processes at work so that some young people exit the system early and successfully while others persist and end up deeply enmeshed in criminal careers. These selection biases are directly at work in the sorting of some young offenders, but not others, into conferences and can make any comparison for evaluation purposes invalid (which is why the randomised experimental procedures, such as those employed in the RISE project, are employed).
Second, there is the question of what comparisons need to be made in order to assess the outcomes of conferences. The evaluations to date have either compared outcomes for different groups of young people who have been conferenced (addressing the issue of which conferencing processes are most successful, but not how conferencing outcomes compare with alternative juvenile justice programming), or have compared conferenced young offenders with court adjudicated young people. We would urge that the comparison ought to include a comparison between a conferenced group and one that is cautioned and released. That is, a critical issue from the viewpoint of diversion is not how outcomes for conferenced young persons are different from those referred to court (the approach taken in most of the existing comparative studies), but instead how conferenced young persons are different from those diverted out of the justice system altogether. These data are pertinent both to consideration of ensuring that young people receive the least intrusive intervention that is ultimately in their best interest and also to consideration from a systemic point of view of efficiency of service delivery.
Third, there is the issue of how to best measure recidivism. Criminologists have long known of the problem in the use of official statistics, especially when compared with other techniques such as self-report or victim reports (for an example in the conferencing evaluation literature, see Hayes and Prenzler 1998:41). Despite this, virtually all of the outcome measures found in the available conferencing evaluations restrict themselves to official measures of criminality.
Any assessment of conferencing programs, however, must extend well beyond the issue of recidivism. A major objective of this approach to justice is to involve victims in a restorative process, and therefore it is important to examine the impact of these programs on victims. Evaluations conducted in both Queensland and Western Australia suggest high levels of victim satisfaction with the conferencing process. In addition, it is important to examine carefully the costs of this approach, since the actual process of arranging conferencing can absorb a considerable number of staff hours.
The report cites recent work in Northern Ireland that notes the high costs of conferencing, and suggests that given these costs, such an approach ought to be targeted on those cases where the problems are serious enough to warrant the expense of the intervention. It is also suggested that care must be given to the issue of the timeliness of the intervention. Unless there is careful control over the conferencing process, the time period between the offending behaviour and the conference can become exceptionally long, and for both the offenders and victims questions can be raised regarding the damaging effect such a lingering process might have.
Further, it is important to be specific about the extent to which conferencing actually constitutes a form of diversion. Such claims would refer specifically to the possibility that juvenile conferencing becomes a way of diverting young people away from formal court processes. Some data, as in New South Wales and South Australia, suggest that there this may be happening, whereas the trends in other states are less clear. Equally important, in the view of this report, is the observation that conferencing represents a different form for juvenile justice, in particular one where victims and families of offenders together with the offender can be brought together in a social encounter that is more effective than the process that typically occurs in the children's court. Thus, the strength of the claims for conferencing rest on how it provides a different form of justice, one which is restorative, more than it does on the possibly dubious claim that it diverts young offenders out of the justice system altogether.
It is clear, however, that conferencing at present enjoys high levels of support within the juvenile justice system. This approach has become cemented solidly into the general system of juvenile justice, and is regarded by many as an important device both for providing a better response to juvenile offenders and a way of involving victims in a process of restitution and restoration. However, there remain a number of questions about conferencing that need to be addressed in future research.
In the course of our field work, juvenile justice administrators in some jurisdictions indicated that a common problem they encountered consisted of proportionally very high figures of young offenders being held on remand and a high proportion of remandees with a subsequent non-custodial court disposition. This observation is inconsistent with obligations to ensure that detention is used as a last resort for young people and that the actions of the juvenile justice system are in the best interests of the child. From an administrative point of view, it raises the possibility that expensive resources of the state are not being used efficiently; that is, they are expended on pre-trial detention of young offenders where that detention is demonstrably inappropriate.
A number of different responses to this problem in the jurisdictions are identified. Both Queensland and Western Australia, for example, have created special supervised bail programs as ways of facilitating bail in appropriate cases. Several states now provide various forms of hostels for those having problems obtaining bail. The Banana Well program that operates in the Kimberley region of WA is described as an example of a program designed to meet the particular difficulties of regional and Indigenous Australians.
The situation in Victoria is noteworthy because of the comparatively low numbers of juveniles held on remand. Field research suggested that some years before Victoria, too, had high numbers of juveniles in pre-trial detention. This problem was identified as one that needed addressing. Subsequently, a broad-ranging set of directives and services were put into place to reinforce the legislative requirement that pre-trial detention was only to be used in exceptional circumstances. The result is that on any given day, only a handful of young people are now held in detention on remand in Victoria, a situation strikingly different from some other jurisdictions.
While much of juvenile diversion in Australia historically has been diversion out of the system, with the increasing complexity and diversity of diversion processes and the option to divert the young person to a program or service, there is an increasing number of programs to which young people can be diverted. Juvenile justice administrators in each state were asked to nominate exemplary diversion programs. Three were selected for description as part of this report. Even when their support is derived from justice agencies, these services attempt to position themselves outside of the system in the sense that participation in their activities is voluntary. Most attempt to bring to the situation community resources that are found outside of the justice system.
The Killara program in WA has also been implemented in a similar form as the Youth and Family Support Services (YFSS) program in Queensland. This program was selected as a family oriented service at the very front end of the juvenile justice system that provided advice to young people and their families on a voluntary basis. A community-based program located in Echuca, Victoria was selected because of its location in a country area, because it includes Indigenous and non-Indigenous young people, and because it places an emphasis on youth employment and training. It is a program that builds upon community support and involvement in a way that draws attention to the broader meanings and possibilities of restorative justice. Arts-based programs were also included for their potential on this dimension. The Metalworx program in South Australia is another program that is reported to work well in a rural area and with Indigenous young people. Arts-based programs were included to call attention to the developing international research and literature that identify the broad skills and developmental possibilities such programs offer to young people.
Unfortunately, as with most programs and services offered to young people in Australia, these innovative approaches have not yet been formally evaluated. With the expansion and elaboration of diversionary processes, it is suggested that juvenile justice policy makers need to consider the matter of proper evaluation of some of the more promising of these programs and services as a matter of high priority.
There is an urgent need for good data that would examine the impact, if any, diversion has had upon the trends relating to Indigenous young offenders. The data available to this investigation indicate that in general at the front end of the juvenile justice system, Indigenous offenders are less likely to be diverted than non-Indigenous offenders. In states where the information is available, such as South Australia and Western Australia, there is a smaller proportion of Indigenous youth in the group that receive police cautions than is true for those who move deeper into the juvenile justice system. This is consistent with a previous study in NSW that found that this difference held even when other important variables were controlled. While a similar result was observed in the Northern Territory, the difference there was relatively small.
Regarding conferencing, more work can be done to address the question of the cultural appropriateness of approaches to restorative justice in Australia. Daly (2001) has noted that a common misconception is that conferences reflect or are based on Indigenous justice practices. In part this results from the recent history of restorative justice, and the emergence of the pioneering conferencing system in New Zealand that was designed, not so much to re-establish previous Indigenous styles of Maori justice, but to create a contemporary process which was culturally appropriate.
Some have questioned whether the actual procedures of restorative justice as implemented in Australia share the attribute of cultural appropriateness. Zellerer and Cunneen (2001) argue that there are at least three issues that are problematic in this regard.
The first issue is whether or not there is adequate recognition of the concerns for self-determination among Indigenous people. The second issue involves the significant role that police play in the conferencing process. This raises questions about the extension of police powers in areas with few accountability mechanisms. The police are not necessarily going to be considered supportive and cooperative, given the long history of friction between police and Indigenous communities. A third issue is that the Australian juvenile justice system is increasingly 'bifurcated' with minor offenders channelled into diversionary programs and the more serious offenders (often Indigenous) demonised and targeted for law and order strategies such as just deserts, mandatory sentencing, or the three strikes and you're out legislation.
In the course of our field work, concerns were expressed to us about different aspects of conferencing by those representing Indigenous interests. Representatives from the Indigenous community said they had no control in the process, and that the current model placed too much importance on the victim/offender relationship rather than a more balanced community approach which would divert the young offender into positive community activities. They argued that local Indigenous protocols should be respected and implemented and that involvement of the traditional owners and local community resources, including extended families, would be essential for conferencing to succeed.
One of the major objectives of this consultancy was to provide a description of the nature of diversion process at the different points in the criminal justice system, and the extent of their application within Australia. All eight jurisdictions in Australia by 2002 demonstrated commitment to processes of diversion by implementing some form of police cautioning and juvenile conferencing.
A second objective for this project was to determine the effectiveness of diversionary practices, processes and programs, particularly in terms of preventing future offending. Unfortunately there is insufficient research available nationally or internationally for any evidence-based assessment of either cautioning or conferencing in relation to the issue of the prevention of further offending. Some data exist with regard to conferencing programs, but from the information available, no clear picture emerges. Research that indicates some potentially successful aspects of conferencing must be balanced against research that shows no differences in re-offending outcomes of young offenders who experienced conferences in contrast to those who were referred to court.
A third objective of this consultancy was to address the nature of the infrastructure supporting diversion in terms of legislation, process, administration, and training and skills of those involved in the process and programs. One of the most significant strengths has been the way diversion has been treated as a coherent system of interlocked elements in the more recent legislation in most Australian states and territories. The various forms of justice legislation provide for different structures of administration of the diversion processes in the various jurisdictions. Regarding conferencing, for example, in some jurisdictions police have the responsibility for organising and facilitating the conferences, while in others this responsibility belongs to another governmental body (in Victoria, conferences are administered by a private, non-governmental agency). Unfortunately, there is an absence of research on the systemic effects of these new, interlocked procedures of juvenile justice and diversion.
A fourth objective established for this report was to answer the question: what impact do social and cultural differences have on access to, and successful participation in, diversion? This research has found, as have earlier studies on juvenile diversion, that those diverted at the front end of the justice system tend to be younger, less serious offenders with few previous contacts with the police. Girls tend to be over-represented at the cautioning stage, while Indigenous youth are under-represented at that level of diversion. There is a challenge in most jurisdictions to make diversion programs work for Indigenous young offenders.
To date, the bulk of the literature and research on conferencing has assumed a 'generic', non-gendered youth population. Previous juvenile justice research suggests significant issues that need to be considered in relation to young women. The only available preliminary findings from New Zealand suggest that the conferencing experience may not be as positive for young women as the overall findings suggest they are for young men. This is an issue in need of further research.
Diversion programs are part of the juvenile justice system and process - it is imperative that clear protections of the legal and human rights of young people are respected. This includes assuring proper legal representations where that is appropriate, providing oversight and review of diversion processes and decisions, and ensuring that the punishments handed out in the course of diversion undertakings are no greater than those provided in law for an offence should it be heard in a children's court. It is essential that a 'balanced' approach to restorative justice is taken. That is, it is understood that the young person has a responsibility to the community and the community has responsibilities to young people, especially in terms of assuring basic principles of social justice.
It is important to consider what sanctions are appropriate at any given point in the juvenile justice funnel. Much of the youthful behaviour that is encountered at the front end of the juvenile justice system comprises experimental, one-off conduct unlikely to be repeated. That is, only a small proportion of first offenders will become repeat offenders, and most of their offences are trivial. The social and cultural profile of those young persons first encountering the juvenile justice system argues strongly for consideration of those steps which divert young people away from further justice actions. The most expensive and resource-demanding options, such as juvenile conferencing, are best reserved for the more serious cases where such interventions are likely to be most cost-effective.
In summary, the site visits and field research of this consultancy established that there has been a vigorous development of approaches to juvenile diversion in all Australian states and territories, especially during the past 10 years. These programs of juvenile diversion are found at different levels of the juvenile justice system, ranging from police cautioning at the front end, to programs such as family conferencing, found deeper in the system. In addition, various approaches are being implemented to reduce the numbers of young persons held in pre-trial detention. The data on the effectiveness of these programs are scanty and mixed, and one of the most important suggestions that can be made is for public policy makers to consider providing for the systematic collection of information about the nature, and effectiveness, of these new schemes.
The explicit term 'diversion' as applied to the system of juvenile justice first emerged from the reports of the President's Crime Commission in the United States in the 1960s. This was followed there by a number of years of intense interest, including funding for a variety of programs to divert young people from processing by the formal justice system. The concept itself is generally defined as referring, as a recent Australian discussion argues, ...to instances where young people are turned away from the more formal processes, procedures and sanctions of the criminal justice system (Cunneen and White 1995:247).
While the concept of 'diversion' is relatively recent, historical discussions indicate that there has been a long-term concern about the treatment young people receive in the justice system. Attempts to protect juveniles from the harsher aspects of coercive justice sanctions can be found throughout the past two centuries. Early in the colonial period in Australia, for example, steps were taken to provide for the separation of juvenile from adult offenders, and to provide at least ...rudimentary training and education designed to assist their rehabilitation (Wundersitz 1996:114, see also Seymour 1988). In the last years of the 19th century, throughout the English speaking world one of the most significant attempts to 'divert' young people from the adult criminal justice system involved the creation of special juvenile or children's courts. Most notable was the formation of a separate court for children in South Australia in 1890 (Wundersitz 1996), and the creation of the first juvenile court in the United States in Illinois in 1899 (Empey and Stafford 1991:59). 'Diversion' was created from the development of a separate legal system designed specifically to meet the perceived needs of juveniles.
At least some of the pressures to create alternative justice procedures for juveniles have arisen in response to what have been perceived as problems or excesses in the juvenile justice systems that evolved in the first half of the 20th century. Essentially, these procedures created what has come, in recent years, to be termed a 'welfare model' (Wundersitz 1996), with the state assuming through the courts the role of ultimate parent to all children. Empey and Stafford capture the spirit of this trend by quoting the following remarks made at that time by a judge to a convention of the American Bar Association:
Why isn't it just and proper to treat these juvenile offenders as we deal with the neglected children, as a wise and merciful father handles his own child whose errors are not discovered by the authorities? Why isn't it the duty of the State instead of asking merely whether a boy or girl has committed the specific offense, to find out what he is, physically, mentally, morally, and then, if it learns that he is treading the path that leads to criminality, to take him in charge, not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, not to make him a criminal but a worthy citizen. (Judge Julian W. Black, as cited by Empey and Stafford 1991: 59)
The major thrusts of this late 19th century 'child saving' movement (Platt 1977) were to create a court setting that:
This welfare model of juvenile justice matured and evolved through the first half of the 20th century, but came under sustained attack from the onset of the 1960s. At this time, there was a phenomenal increase in rates of youth crime, which were interpreted by some as clear evidence of the failure of the existing system of juvenile justice. The combined civil rights and anti-war movement created a moral climate in which the general legitimacy of government institutions, especially those concerned with justice, were called into question. Social science contributed to the attack in at least two ways. On the one hand, labelling theory was used to claim that the overly wide use of juvenile justice procedures resulted in the imposition of negative identities on young persons, with damaging social consequences. On the other hand, there was an accumulation of evidence from evaluation studies that gave rise to a general conclusion that, when it came to attempts to rehabilitate within the justice system, 'nothing worked'.
Legal scholars and child rights advocates attacked what they considered the overly broad and unconstitutional powers assumed by the juvenile courts (an attack supported by several decisions of the Supreme Court of the United States). There have been two distinct approaches to the growing search for alternatives to the welfare model. One concerns the search for options that would remove juveniles from the formal system of juvenile justice, including juvenile diversion. The second, which in the main falls outside of the boundaries of this report, seeks to substitute the welfare model with a more formalised system of justice (the 'justice model') (for discussions of this model, see O'Connor, 1997; Wundersitz 1996).
Under the attack of the theory of labelling and the data of social science, combined with growing unease about abuse of legal rights of children made possible by the welfare model, from the 1960s onward a number of different approaches to seeking ways for young persons to be dealt with outside of the formal juvenile justice system emerged. Muncie (1999:275) has argued that there were at least three different components of this general trend that Cohen (1985) refers to as destructuring. These included:
An examination of the 'funnel' or 'sieve' of juvenile justice will show that there are even more forms that these destructuring processes might take. There are, in fact, two distinctive ways to attempt to carry out what Muncie refers to as the diversion from crime. One would be to attack the problem at the very top of the funnel by addressing the forces which 'cause' offending behaviour through programs of delinquency prevention. A second way, and one that occupied at least some of the effort during the 1970s, would be to re-write the laws so that behaviour that has previously been illegal is now not defined as a criminal offence, that is, decriminalisation.
Somewhat deeper into the funnel of processing are those procedures which provide, once a young person has come to the attention of either the police or juvenile court agents, for the diversion of the young offender out of the system prior to formal court adjudication. At the court level in particular, processes which protect the due process rights of young persons may also serve the function of removing some offenders from the purview of the juvenile justice system.
A final process consists of those attempts to find alternatives to custodial detention, or deinstitutionalisation.
Figure 1: Destructuring in juvenile justice
Juvenile diversion is therefore just one component of the destructuring of the juvenile justice system that reached maximum extension in the mid-1970s. As is often the case, initiatives begun with high levels of enthusiasm and the best of intentions often produce results rather different from those anticipated. The 1980s was a period of sustained questioning of, and attack on, the principles which underlie the destructuring processes (for a review, see Wundersitz 1996). Partly, this focused on whether ideas such as diversion lowered levels of recidivism. As well, a number of commentators argued that the various attempts at destructuring, and especially diversion, might expand the very justice system they were intended to reduce and contain. This unanticipated expansion might take the following forms:
During the early 1980s, the emergence of politically conservative leadership and a growing disillusionment with existing strategies of juvenile justice reform in the United States and the United Kingdom led to the development of radically different strategies. The new strategies were fundamentally punitive and coercive, leading to such initiatives as boot camps, determinate sentencing and the three strikes and you're out approach to juvenile justice. Rather than attempting to deinstitutionalise, the policies sought ways of explicitly increasing the numbers of persons placed into custodial confinement. In a surprisingly short time, especially in the United States, the concept of diversion of young offenders almost disappeared from the discourse on juvenile justice.
In Australia, the history of diversion specifically, and destructuring more generally, has been somewhat different. The children's court movement began in Australia as early as it did anywhere else (Wundersitz 1996). However, specific attempts to divert young offenders in the form of police cautioning emerged in Australia even before the President's Crime Commission in the United States identified the concept of juvenile diversion (Challinger 1985).
The general approach to juvenile diversion, at least in the early years, was rather different in Australia than in the United States. In the early to middle 1970s in the United States, diversion in most cases consisted not so much of diversion out of the system, but of diversion to a program (Figure 2). A common form of such programs would include a youth service bureau offering a range of services to young clients and their families. Services might include individual and group counselling, tutoring, employment advice and referrals to other agencies for job training, alcohol or drug problems.
Figure 2: Diversion to a program
Figure 3: Diversion out
In contrast, in the 1970s in two major forms of diversion found in Australia the focus was not diversion to a program, but diversion out of the system (Figure 3). One of these forms was police cautioning, where the young person after coming to the attention of the police received either a verbal or written warning. This was the end of the matter unless the young person committed a further offence. This form of diversion was adopted in Victoria (1959), Queensland (1963) and New South Wales (1985).
A second form, adopted in Western Australia (1964) and South Australia (1972), involved a meeting of the young offender and the parents of the offender with a police officer and a social worker. As with cautioning, the 'panel' meeting was a pre-court diversion. It provided a warning and counselling in a relatively informal setting. It was a diversion out of the system because as long as the juvenile did not re-offend there was no further program contact. While police cautioning has been retained in Victoria, Queensland and New South Wales, the use of panels was abandoned by Western Australia and South Australia in the mid-1990s, when those states re-cast their juvenile justice systems. They did this in part to create a new integrated system of police cautioning and family conferencing.
It should be noted that during the first stages of the implementation of diversion, observers commented on the differences between these two separate approaches. In the words of one writer, the approaches were characterised as a diversion away from the official control system and diversion into treatment services (Waegel 1989:236). The first of these approaches (diversion out of the system) was referred to in one influential document as true diversion (Cressey and McDermott 1974). This was consistent with some of the early theoretical intentions of social scientists who supported the concept, such as the well known admonition of one leading writer to leave kids alone whenever possible (Schur 1973:155). It is worth considering the background to this approach, since we will re-visit this argument in our concluding sections:
Doing nothing in cases involving occasional, relatively minor delinquency may be better than doing something. Experimenting with new behaviors, testing the limits of adult tolerance, and participating in youth culture activities are regarded as normal adolescent experiences, and most youths will mature out of such behavior on their own. Official intervention may interfere with the natural process of maturational reform. (Waegel 1989:236)
However coherent such arguments might have been, the empirical record suggests that most juvenile diversion programs implemented in the United States during the 1970s diverted young people into programs, mostly programs like the youth service bureau format (Cressey and McDermott 1974; Polk 1984). Further, it should be noted that this was not, as is sometimes assumed, an 'unanticipated consequence' of a good idea gone awry. It was, in fact, a systematic result of the underlying theoretical principles guiding those who were formulating delinquency policy (Polk 1987). Any resultant widening of the net of social control in the name of diversion (even if this were done under the name of treatment) was construed as a proper and even necessary response to the problems posed by difficult juveniles, even when their presenting offences were minor (Binder and Geis 1984). During early implementation, the approach to diversion in Australia tended to be different from this American trend. (In Australia the major thrust was diversion out of the system of control, not into treatment.) In more recent times in Australia the idea of diversion into a program has been resurrected.
Other elements of the destructuring movement also had an impact on juvenile offenders in Australia during these early years. The trend of deinstitutionalisation, for example, prompted Victoria to reduce significantly the number of offenders in closed custodial institutions. Some of the more notorious institutions were closed down and alternatives such as community-based facilities established. The laws in Victoria, New South Wales and Queensland were altered to recognise what Wundersitz (1996:126) termed the principle of the frugality of punishment. The Queensland legislation even stated that juveniles should be placed in custody only as a last resort (Juvenile Justice Act 1992, s. 4(b)(i)). According to Wundersitz (1996:126), as a consequence of such moves across the country, the number of young offenders held in detention decreased from 1352 in 1981 to 577 in 1992.
In Australia, as elsewhere, there was in the late 1980s and early 1990s a wave of reforms based in Australia primarily on a critique of the welfare model of juvenile justice. As elsewhere, this consisted partly of a movement to a more 'justice' based model. The welfare model had come under fire for a number of its perceived problems. Among them, according to O'Connor (1996:234-236), were the absence of due process rights, the intervention in non-criminal matters, the failure of rehabilitation, and the lack of proportionality and equality. As Wundersitz (1996:119) observed, the 'law and order' lobby also played a role, considering the courts using this model to be too lenient.
As a result, there has been a persistent wave of reform of the juvenile justice systems in Australia, much of it aimed at shifting the emphasis from a welfare to a justice model (Wundersitz 1996:119). This can be seen in the passage of the Children's Protection and Young Offenders Act 1979 in South Australia, and in New South Wales in the Children's (Criminal Proceedings) Act 1987, s.6(a) of which specifies that ...children have rights and freedoms before the law equal to those enjoyed by adults and in particular, a right to be heard and a right to participate in the processes.
What is distinctive in Australia is how this shift tended to be overtaken by another move - family group conferences - which some have argued is a new form of diversion. Often this was folded into the new forms of juvenile justice legislation enacted during the 1990s, frequently interweaving patterns of diversion (in the form of police cautioning and family conferencing) within a wider fabric of the justice model. So important was this trend that group conferences constitute a major section of this report.
Wundersitz has argued that one of the major inspirations for this new wave of change was the 1989 juvenile justice legislation in New Zealand which argued specifically that ...unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter (Wundersitz 1997:281). Further international support for the principle of juvenile diversion is found in Rule 11 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, which provided that: Consideration should be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority (Wundersitz 1997:280).
In light of these trends, at the beginning of the 21st century the stage is now set for a review of juvenile diversion in Australia. The importance of this historical review is that it emphasises the important theoretical observation that diversion is not a unitary or simple concept but one with complex strands which now connect to current practice.
The present study - conducted by Melbourne Enterprises International Limited, in collaboration with the Department of Criminology and the University of Melbourne - began in February 2002 and was funded by the Crime Prevention Branch of the Commonwealth Attorney-General's Department. The objectives established for this project were to provide a report that would:
The field work for this project was carried out between March and August of 2002, and involved site visits to Adelaide, Brisbane, Canberra, Darwin, Hobart, Melbourne, Perth and Sydney where field interviews and observations took place with state juvenile justice agency personnel, police, staff of diversion agencies, and staff of related non-governmental organisations which provide services for young people. As well, research work was done with regard to both the national and international literature on diversion, and on the relevant legislation which provides the legal base for diversion in the jurisdictions in Australia.
For the purposes of this inquiry, there will be a focus on juvenile diversion whereby we will examine programs and practices that are employed for young people who have initial contact with the police, but are diverted from the traditional juvenile justice processes before children's court adjudication.
Diversion' used in this way then would not include purely 'prevention' programs where the juvenile has not been seen by police, and would not include alternative sentencing options for young persons who have reached the deep point in the justice system, or programs for those deeper in the system such as those who have been sentenced to a term in detention.
This field work established that, using this definition, there are two major approaches to diversion of juveniles from the criminal justice system in Australia currently found in all states and territories. The first of these is police cautioning, which constitutes the first substantive section of this report. The second is juvenile conferencing, which makes up the second substantive section of the report. Our conversations with juvenile justice authorities in a number of the states identified for us the emerging problem of the high numbers of juvenile offenders on remand in many jurisdictions, and as a result we concluded that a third important approach to diversion in Australia is the steps being taken to reduce the levels of pre-trial detention of juveniles (the third substantive section). The fourth section describes a number of smaller, innovative approaches to diverting young offenders from the juvenile justice system which were nominated by juvenile justice personnel. A fifth section discusses the implications of juvenile diversion programs for Indigenous youth in Australia.
In examining these programs, the project team drew upon its experience with research in diversion to develop a standard set of questions, or a 'template', by which various approaches to diversion could be described. The first question of the template asks: Who refers young people into the program? This component of the template directs attention to the location of the program within the juvenile justice system funnel, and asks specifically the organisational source of the flow of young offenders into the program.
The second question asks: Who are referred? This element of the template is concerned with identifying the characteristics of those referred into the program, including criminal history information and such characteristics as age and whether or not the person is Indigenous.
The third question asks: Who runs the program? This feature of the template reflects our concern with where the program is located within the structure of the various organisations in the community, especially their position either inside or outside the juvenile justice system.
The fourth question is: What are the objectives of the program? This element of the template focuses attention on the diversion process, and the extent to which the aims of the program are consistent with various approaches to diverting young offenders from the juvenile justice system.
A fifth questions asks: Are there any conditions of referral? Here we are concerned with the issue of whether there are justice system conditions that are part of the process of referral.
A sixth question asks: What are the consequences for failure of the diversion? This is a critical element of the template. It is concerned with the degree to which the diversion allows relatively free exit from the justice system, or whether there are, in fact, conditions or undertakings as part of the diversion which provide grounds for the re-entry of the offender to the system should it be deemed that the individual has 'failed' to meet such requirements.
The final question asks: What evidence is there about the program, including process evaluations and data, regarding the success or failure of the initiative? This is a major feature of the template, and is, of course, concerned with establishing both what data exist about the program and whether or not the program 'works'. The approach taken to the evaluation question recognises that two very different kinds of outcome data are needed. The first concerns the interest in data about the offenders and their experience, and is concerned then with such questions as what evidence exists about their re-offending - that is, the individual effects of the program. An equally important question, however, concerns the system effects of the program, and asks how the presence of the program has impacted upon the flows, or movements, of young offenders through the various levels of the juvenile justice system. One of the common explicit goals, for example, of juvenile diversion is to reduce the number of young offenders moving deeper into the justice system, so it is appropriate to ask whether such diversion initiatives have the effect, for one, of reducing the numbers of juveniles appearing in court.
This report has excluded examination of drug diversion programs. These constitute in many jurisdictions a major new approach to the diversion of young persons from the juvenile justice system, and potentially will have many effects both on juveniles and on the justice system itself. These programs are, however, the focus of a separate major national evaluation being conducted by Health Outcomes International in Adelaide, as well as specific state evaluations in individual states. The size and scope of those evaluations are wider than the limited focus and time frame of the present study. Nonetheless, these drug diversion programs share the objective of reducing the number of young people appearing in court. When the results of these evaluations become available, it will be important to integrate them into a wider set of questions about the nature, impact and effectiveness of overall strategies of juvenile diversion.
The idea of a formal system of police cautioning in Australia pre-dates the first use in 1967 of the specific word 'diversion' by the President's Crime Commission in the United States. Challinger (1985:291) observes that cautioning was established in regulations in Victoria in 1959, and Queensland in 1963. He also notes that recorded warnings of juvenile offenders can be found as far back as the 1940s in both Victoria and New South Wales. Further, unlike many forms of diversion in the United States (such as the once ubiquitous youth service bureau, which has now virtually vanished from the scene), police cautioning has continued to expand from these early beginnings, and is now found in all jurisdictions in Australia. By 2002 the situation had become more complex in terms of describing police cautioning. In many states there are now justice acts that provide the police with a series of options when responding to youth crime.
A confusing aspect of any discussion on police activity, such as cautioning, is the different use of terms in different states. In an attempt to simplify matters for the reader, this report will attempt to use a consistent set of terms throughout, but will highlight when the official terms in use in a state vary from the terms that we have selected.
When police attention is drawn to the actions of a young person, including but not limited to situations where an offence has been committed, they are confronted immediately with a number of options regarding how they should proceed. A first decision concerns whether the attending officer considers that the matter is serious enough to warrant further police or justice system action, or whether the issues can be settled informally through some form of warning and release. For the purposes of the present report, if the police member decides not to pursue official options, but instead lets the offender off with a warning, this will be referred to as an 'informal caution'.
Some jurisdictions will employ terms other than this to refer to this option. For example, in New South Wales this action would be called a 'warning' while in the Northern Territory the term used would be 'verbal warning'. In all of these cases, the issue is that the young person is released from further contact with the juvenile justice system after some form of admonition from the attending police officer.
Further, it needs to be underscored that we can only know anything about these informal cautions when they have been officially recorded in some way. In many situations police use their common sense in deciding not to take any further action in a situation where the issue is trivial and unclear. They may verbally warn the young person, but that warning may not be formally recorded.
The next level of intervention open to the police is a formal caution. This is the form of action most traditionally identified with the term 'police cautioning'. In this process, the caution involves recording the details of the offence, and in most circumstances requires the offender, and the offender's parents or other responsible adult, at a later date to attend the police station where an official warning is given by the police. In the model of formal cautioning first introduced in Victoria, after the warning is given, no further action was required from the young person. That is, the offender was diverted 'out' of the juvenile justice system. In all states this remains an option as an outcome of a formal caution. However, most jurisdictions have added a series of other options for police to pursue as an outcome or as part of a formal cautioning process. These include fines, community service and participation in programs.
There are some significant jurisdictional differences in both terminology and practice (as will be seen below). In the Northern Territory, what we refer to here as formal cautions are called 'written warnings' (that is, the written warning is given in the company of a parent or guardian, and has the explicit intent of delivering a message to the parents that the juvenile is at risk). Also in the Northern Territory, the term 'formal caution' is employed to refer to a situation where a key part of the process is a 'family conference'. For the purpose of this report, this option will be dealt with as a specific model of family conferencing in the section that follows.
In the research field work conducted by the staff of this project, a number of factors were noted regarding the operation of police cautioning in the individual jurisdictions.
Prior to April 1998, formal police cautioning was not provided for in legislation in New South Wales, but rather operated under the Commissioner's Instructions (75.04). In regard to this earlier period, Cunneen (1988) states that rates of cautioning of juvenile offenders had risen from about six per cent to 25 per cent in 1985, but were still considerably lower than in other states at the time.
Recent years have seen the establishment of a transformed system of juvenile justice in New South Wales, with the Young Offenders Act 1997 (NSW) explicitly seeking to divert young people from the juvenile court system. The changes brought about by the legislation were in accordance with recommendations of a working party established in 1996 to look into improving the cautioning system and setting up a conferencing program.
According to information provided by NSW program staff in interviews, the diversionary options allowed by the act include informal cautions (referred to in the act as 'warnings'), formal cautions and youth justice conferences. Informal cautions are intended for all minor summary offences that do not involve violence, such as offensive language. Recipients of informal cautions will be spoken to by police, and may have their name taken down in a police notebook, but in most cases, no further action will be taken. Further, no admission to the alleged offence is required. Several issues, such as the seriousness of the offence and the levels of violence involved, are listed as criteria to determine whether the young person should be cautioned or sent to a conference.
Formal cautions can be given at a police station, or elsewhere if the person giving the caution considers it appropriate. A caution may also be ordered by the court, if it believes that a caution is the most appropriate action, and may also be given by a respected member of the community. Family members may be present at a caution, and, while victims are not present, they should be notified that the offender has been cautioned. The offender may be required to provide a written apology to the victim, but no other undertakings can be required. Police can use the caution as an opportunity to advise the young person or their parents of services that are available that may be able to assist them to prevent further offending. In the course of our field work, staff indicated that, whilst some local area commands have been using cautioning, including setting up advisory committees of respected community members, cautioning rates in some areas of NSW still tend to be low.
The Queensland Police Service (QPS) has used formal cautions when dealing with juvenile offenders (defined as children aged 10 to 16 years) since 1963 (Challinger 1985). In 1997 it was reported that 47 per cent of young offenders dealt with by police were given a formal caution (Juvenile Justice Directorate 1988). In Queensland, the disposition of cases involving juveniles, including those who are diverted, is generally the responsibility of the Queensland Police Juvenile Aid Bureau, and it is this unit that is responsible for most formal and informal cautions. Other designated officers are responsible for areas that are not covered by a juvenile aid bureau.
A formal caution can be applied when young offenders admit to the crime, and when they and their parents consent to the caution. The caution is delivered at a police station in the presence of an adult, usually the offender's parents or guardians. According to the Juvenile Justice Act 1992, a respected member of the Indigenous community may also be involved in the cautioning process, but this rarely occurs in practice. The young person is given a written certificate of caution. The caution is confidential and is usually not admissible in further proceedings, with some exceptions (s.18K and s.18L) depending on the seriousness of the offence.
Some diversion cases are dealt with through a less formal process. Juvenile offenders usually beneath the age of criminal responsibility and early offenders in minor matters can be 'counselled'. Counselling is similar to a caution in many ways. The young offender is warned in the presence of an adult, usually their parents or guardians, by an approved member of the QPS. Again, this is usually the responsibility of a member of the Juvenile Aid Bureau and is conducted at a police station. No formal record such as a certificate is raised when a young offender is counselled.
The police are responsible for determining when to apply a caution. However, under section 18 of the act, the Children's Court may dismiss charges against a young person who has pleaded guilty if it considers that in the circumstances a caution would have been more appropriate. That is, cases can be sent back to the police for a caution at the direction of the court or the court may choose to administer a caution.
As with other states, South Australia has a system of informal police cautioning, for which no record is kept, but police procedures provide for two levels of formal cautions, based on the seriousness of the offence. The first level of formal caution can be given by a patrol sergeant, and the second level by a Community Program Unit police officer. Approximately 35 per cent of the contacts that young people have with the police result in cautions, and informants from the police stated that 80 per cent of individuals never have a contact at a 'deeper' level than a caution.
One of the major differences between cautions in South Australia and those in some other jurisdictions in Australia (such as Victoria) is that the police can require an undertaking for a formal caution. The scope of the undertaking includes a written or personal apology, and can involve community service (up to 10 hours for a first-level caution and up to 75 hours for a second-level caution), the payment of restitution (up to $5000) or referral to another community service agency. According to the most recent data, in 2001, undertakings consisted of an apology (26.7 per cent), compensation (11.9 per cent), community work (5.8 per cent), and others (40.9 per cent).
The Youth Court in South Australia can also refer cases back to a formal caution. In these cases, the prosecutor in the court, who is a police member, can apply the caution. Wundersitz (1996) notes that there is no empirical data on the extent to which the courts re-refer to other diversion methods (including cautioning), but that anecdotal data suggests that it happens only rarely.
In Tasmania, the Youth Justice Act 1997 allows police the discretion to direct a young offender to an informal caution (section 8), a formal caution, (section 10), a conference caution, a community conference (sections 13 to 19), or referral to court. In Tasmania a police-run conference (similar to the Wagga Wagga model discussed later) is referred to as a formal caution. An informal caution in Tasmania is essentially what has been referred to as a formal caution in the rest of this document.
When a police officer decides to formally caution a young person, the officer has the option of also requiring the young person to enter into an undertaking to pay compensation, make restitution, perform a maximum of 35 hours of community service for the benefit of the victim, apologise or perform any other undertaking that may be appropriate (s.10(2)). Thus, one of the options for police is to hold a police 'conference'. Further details about these conferences are discussed in a later section of this report, under the descriptions of conferencing in each state and territory. If the young person fails to carry out the undertaking, then no action for a breach can be taken.
The police can refer a young person to a formal caution if they believe that the matter does not warrant other more serious action, and once the caution is administered no further proceedings may be taken for that offence. The act prescribes that certain serious offences must be dealt with by the court. These include murder, attempted murder, manslaughter, drug and alcohol offences and road safety offences. Non-prescribed offences may be dealt with at the discretion of police.
Currently, formal cautions may be delivered by inspectors or delegated members. The caution will generally take place in the presence of the young person's parents, either at a police station or at their home. More recently, moves have been made towards what has been called a 'restorative caution', which emphasises repairing the harm rather than simply laying down the law. This is done by emphasising the effect of the crime on the victim, the young person's family and others, and what the young person can do to make things right again. There is, however, no legal enforcement of any outcomes from these restorative cautions.
Victoria has two levels of cautions that are used by the police, informal and formal cautions. Informal cautions are not formally recorded and can be given by any police member.
The current procedure for a formal caution is outlined in the Victoria Police Operating Procedures Manual (updated 11/03/02). Victoria is now the only state in Australia which does not provide for police cautioning within its juvenile justice legislation, although it has had a system of formal cautions as part of its Police Standing Orders since January 1959 (Challinger 1981).
A caution should be given only for relatively minor offences, and is generally not recommended for sexual offences. Formal cautions can be delivered only by the member in charge of a station or sub-officers or above, and in the case of juveniles a parent or guardian must be present. The caution should take place on the day of the interview and should be delivered at a police station if possible. Prior to the caution the member should have an informal discussion with the offender and their parent/guardian about why the offender committed the offence.
The details of the caution are recorded on the offender's record, but should be expunged after a five-year period. The caution may also be used as an opportunity to refer the young person to other resources (such as community support services) if necessary. An example of this is the KnoxLink program, where young people are referred to council services after a formal caution. There is now an increasing trend for using 'tickets' or on-the-spot fines for summary offences. However, it is recommended that cautions be used before such sanctions are applied. Police reported to us in the course of our field work that approximately twice as many young people are cautioned as are sent to court.
In Western Australia, the Young Offenders Act 1994 argues in principle for special treatment of juveniles and the use of punishment for them only as a last resort. This is supported by Police Operational Orders that explicitly adopt the concept of diversion as an appropriate option for dealing with the majority of juvenile offenders. This is endorsed further by the sections of the juvenile justice legislation that deal with the principles guiding diversion. They direct that the attending police officer should consider whether in the given circumstances the best steps would be to take no action (Part 5, s.22B (h)). In Western Australia, as in other jurisdictions, there are two forms of caution. Informal cautions exist in the form of 'informal warnings' which may be issued on the street, at a station or as part of a patrol function. Formal cautions are given in writing. The approach to these written warnings is somewhat different from those in other jurisdictions, providing for 'flexibility' for the servicing officers in their administration. Thus, while in some cases the young person and their family will attend a local station and receive the warning, police may also give a written warning on the street if in their view the circumstances warrant such an approach. Harding, Broadhurst, Ferrante and Loh (1995) note that there has been very little research that has looked at the use of formal cautioning in Western Australia. They state that research conducted in the early 1990s showed that more non-Indigenous young people received only one caution and more Indigenous young people received two or more cautions. However, the research did not take into consideration factors such as the nature or severity of the offence.
Whilst the legislation in Western Australia does not allow for conditional cautioning (that is, a caution that requires some sort of undertaking), Cant and Downie (1998) state that conditional cautioning is used occasionally and is encouraged by the Police Service. They argue that any such conditions should be confined within parameters outlined in legislation, rather than left entirely to police discretion, if they are to be used at all. An interesting feature of the written caution system employed in Western Australia is that, in the Perth Metropolitan area at least, while it represents a diversion out of the system, the name and address of the offender and family are sent to an 'early intervention' program, which then independently (that is, without any links back to the police) offers its services, on a totally voluntary basis, to the offender and family (see the discussion below on the Killara program).
For the Australian Federal Police in the Australian Capital Territory, the regulations recognise only a form of formal cautioning similar to the original Victorian model. In cases where the attending officer thinks it appropriate, and where the offender admits committing the offence, the young offender and their parent or guardian are required to appear at the local station. A formal warning is given at that time, and a note of the caution is entered into the police computer data system. Undertakings are not made as part of cautions in the ACT. There is no specialised juvenile diversion section, so these matters are handled as part of general duties of serving police.
The Northern Territory is one of the most recent jurisdictions to adopt formal procedures of both cautioning and conferencing. In April 2000 the Prime Minister and the Chief Minister of the Northern Territory issued a joint statement establishing a process for diverting juveniles from the formal court process. In October 2000, the Legislative Assembly passed amendments to the Police Administration Act which created four levels of pre-court diversion for juveniles, the first two involving forms of cautioning to be dealt with here, and the second set involving forms of conferencing addressed in the section that follows.
The least intrusive form of cautioning, consistent with our use of the term 'informal cautioning', is the 'verbal warning'. This is deemed appropriate where the presenting offence is trivial or very minor, and it is the first time the juvenile has committed an offence (although there is no bar to additional verbal warnings in appropriate circumstances). It is stated that wherever practicable the parents or guardians of the juvenile will be informed when a verbal warning has been given.
The second level of formal cautioning in the Northern Territory consists of 'written warnings'. These are deemed appropriate where the offence is trivial or minor, but where the juvenile is at greater risk because of his/her behaviour and a higher level intervention is necessary - for example, where a verbal warning has been given previously or where parental guidance is deemed inadequate. One purpose of written warnings is to encourage more effective parental responsibility, and the written warning is given in the presence of both the offender and the parents (or other responsible adult). As indicated above, there are two additional levels of police intervention in the Northern Territory in the form of different levels of family conferencing, and these are dealt with in the section that follows.
The four levels of diversion in the Northern Territory are organised by the juvenile diversion units (JDUs) of the police, with units in Darwin and Alice Springs. These Units operate the programs of diversion of juveniles from the formal justice system, and advise and assist police officers in the disposition of cases involving juveniles. They work closely with remote communities, with the officer in charge of the local police station undertaking the diversion responsibilities with support from the regional JDU. In addition to assessment, monitoring, reviewing and finalising cases of apprehended young offenders, the JDUs engage in a range of other supportive services for the police, including training with local police on the diversion programs, development of diversion training materials, and negotiation and assessment of programs used to support the diversion outcomes.
Table 1: Summary of police cautioning in Australian states
| Legislation | Informal Caution | Formal Caution | Can Require Undertakings | |
| NSW | Young Offenders Act 1997 | Yes, 'Warning' | Yes | Apology |
| Queensland | Juvenile Justice Act 1992 | Yes | Yes | No |
| SA | Young Offenders Act 1993 | Yes | Yes | Yes |
| Tasmania | Youth Justice Act 1997 | Yes (not in Act) | Yes, 'Informal Caution' | Yes |
| Victoria | None, Victoria Police Operating Procedures Manual | Yes | Yes | No |
| WA | Young Offenders Act 1994 | Yes | Yes | No |
| ACT | Children & Young People Act 1999 | No | Yes | No |
| NT | Police Administration Act | Yes | Yes | Yes |
This brief snapshot of the workings of police cautioning in the various Australian jurisdictions indicates, above all else, that support for this approach to diversion has grown steadily over the years. In one form or another, it is found in all jurisdictions, albeit with some differences inevitably emerging.
A first model, consistent with the original model developed in Victoria, is where the young offender experiences some form of warning and is then released. That is, the process consists of a diversion away from the system with no further consequences for the offender (these referrals out of the system may consist of what we have called here both informal and formal cautioning). A second model is where the diversion process consists primarily of a cautioning/warning process (usually requiring the presence of family members), but may also include a voluntary referral to a program or service. A third model has also developed in some states, where a formal undertaking (a fine, community service, program participation) may be associated with the caution. In this model, a breach of the undertakings or conditions constitutes grounds for bringing the offender back into the system. In the Northern Territory and Tasmania, this third level of cautioning may also involve a police conferencing process. This option is discussed in the following section on approaches to family conferencing.
As evidenced in the state descriptions above, while we have distinguished between these different models of police cautioning, they are not mutually exclusive and may be alternatives in a hierarchy of options for a police officer.
The first model to be discussed here concerns those forms of police cautioning which represent diversion away from the juvenile justice system. Basically, this process involves decisions by police authorities to engage in some process whereby they 'warn and release', in the main, first-time, minor offenders. In Victoria, this is the basic intent of the overall police cautioning program. In the case of formal cautioning, the caution itself is the focus of the diversion program. In most circumstances the caution entails an interview at the police station involving police, the young offender, and the parents or guardians of the child. All states have this process as one of the cautioning options available to police.
Figure 4: Police caution with no further action
A second model of police cautioning is where, as a consequence of the caution, the offender is referred, on a voluntary basis, to another program. In some respects, this option is a natural progression and outcome of the situation encountered by police in dealing with offenders, and arises in those cases where there are problems in the lives of the young person that might be addressed through referral to a program (such as counselling, education or training, alcohol or drug treatment, and similar interventions). In general, where this approach is employed in states such as Queensland or Victoria, police cannot require that a young person attend a program as there are no legal repercussions if the young person chooses not to attend.
The model for a 'referral to program' outcome of cautioning emerged quite early in Australia. Examples were observed by Challinger in Queensland, where he pointed out that the explicit aim of the caution was to provide for the identification of potential delinquents and to steer them away from a life of crime.
In practice in Queensland, after this identification, counselling occurs and many young offenders with behavioural and emotional problems are referred to other professional bodies for assistance. (Challinger 1985:294)
Figure 5: Police caution including to a treatment program
The third approach to police cautioning mirrors the previous two in all respects, with the addition that the police member administering the caution can require that the young person performs some undertaking as a condition of the caution. This undertaking can be as simple as providing a written apology (in NSW, for example, this is the limit of the undertakings allowed by the legislation) or it could involve paying a fine or restitution, performing a limited amount of community service or participating in a program.
If the undertaking is not completed successfully, the police member can then use their discretion as to how to proceed. The young person may again be cautioned, or may be sent to court or a family conference. There is, therefore, a possibility of minor offences being escalated deeper into the youth justice system as a result of failure to comply with the requirements of a caution, which, potentially, could be net widening.
Figure 6: Police caution including undertakings
From our field work, as well as a reading of the limited literature on police cautioning (especially Wundersitz 1997:273), the following observations can be made about the elements which characterise police cautioning as a form of juvenile diversion in Australia:
Having defined these common elements, we can examine the questions which serve to locate the elements of the models of diversion as they are reviewed in this project.
The limited research that is available pertains to the earliest forms of police cautioning, that is, cautioning without conditions or undertakings. Apart from occasional reports of fragmentary data, one has to look to Challinger's early studies (1981, 1985), now well over 15 years old. This is especially true if one is looking for any attempt to address the issue of re-offending.
Challinger reported that a comparison of juvenile offenders who were cautioned with a group that had been referred to court found that those dealt with in the court had slightly higher, but non-significant, reoffending rates when compared to juveniles who had been cautioned (Challinger 1985:296). This same research reviewed English data and found that one comparable study there reported almost identical findings (Challinger 1985:196). From his analysis, Challinger concluded that:
Overall, then, it seems that a police caution is no more or less effective than a court appearance as far as a juvenile's reoffending is concerned. Cautioning, however, is quick to implement and certainly cheaper to the community and avoids wasting the time of magistrates, lawyers and police witnesses. Taken together, those features make it an attractive option to police. (Challinger, 1985:197-198)
The absence of evaluation data makes it impossible to examine in any detailed way the systemic effects of the implementation of police cautioning. One of these questions is the complicated issue of 'net-widening'. Certainly, it has been recognised for some time that the creation of a formalised cautioning system may alter previous informal practices, so that ...young offenders who might otherwise have received kerbside justice have now been the subject of formal police action (Challinger 1985:293). Drawing upon his analysis of data in Victoria, Challinger concluded that:
In examining the increasing numbers of young offenders officially cautioned in Victoria....I found the distinct possibility of police formally processing a young first offender, safe in the knowledge that senior officers would almost certainly not recommend a court prosecution. Thus, by taking action that would require the offender's later attendance at the police station for an official caution, an arresting officer could achieve a more substantial impact on the young offender than informally disciplining him or her. (Challinger 1985:293)
That same report notes that other Australian and British research had observed that police cautioning programs had widened the net of social control. That is, cautioning resulted in an increase in the number of minor and trivial offenders being brought into the juvenile justice system and that, in the British case, there was an increase in young offenders (age 10-13) being dealt with formally by police after the introduction of the cautioning program (Challinger 1985:293).
These observations suggest that in terms of examining the flow of cases into the program, questions have to be raised about how much the process is creating a true diversion of offenders from the traditional flow of cases at this point. At issue is whether the cases now being cautioned are drawn from the stream of cases that previously would have flowed directly from police to court prosecution or from cases that previously would have been handled informally and without any record of contact with the offender.
Challinger's comments regarding net widening are worthy of closer examination:
Net widening, in the way that this phrase is used here, is generally seen as a negative phenomenon, in that it brings under official consideration increased numbers of young people. But those young people who are cautioned are, after all, offenders. And it is possible that the knowledge that they are certainly known to the police (following a caution) may constitute a sufficient disincentive to further offending. (Challinger 1985:293)
This is an interesting, and different, point of view on the issue of net widening from that taken by authors such as Austin and Krisberg (1981) or Muncie (1999), and shows some of the complexities that arise in considering this topic. We can point out at least two positions that are somewhat different from that taken by Challinger. First, if the argument for a process is that its purpose is to divert young people from the formal system of juvenile justice, then questions arise when it can be demonstrated that the program is actually drawing a pool of persons who previously would not have been brought within the juvenile justice system into that very system (whatever potential benefits there might be, as suggested here by Challinger, and in the context of other forms of diversion by Binder and Geis 1984). Second, and certainly an important issue in these days of fiscal accountability, it is sometimes argued that diversion programs are cheaper, as they avoid (as Challinger notes in another section we have quoted above) formal justice situations involving judges, lawyers, prosecutors, police and the myriad other players that arise in court appearances. If, however, those involved in the diversion program are drawn from a pool of those who previously would have been ignored, and if the flow of persons deeper into the formal system remains at the same level as before the implementation of the diversion program, then it follows that any claims for diversion as a 'cheaper' way of doing justice are specious.
Of course, in an important process such as police cautioning, much more is at issue than can be reflected in arguments about net-widening such as these, which were framed 20 years ago. In some Australian jurisdictions there has been an explicit attempt to reorganise and rationalise a number of different approaches to dealing with juvenile offenders, including early stage diversion, within an 'integrated' system, as in New South Wales, the Northern Territory and South Australia, among others. Such police systems now have a hierarchical array of responses to juvenile offending, from the softest front-end options to the highly formal referral of serious cases to formal court processing. In some jurisdictions, then, while there is emphasis on the objective of responding to the young offender in the least restrictive form appropriate given the circumstances (the goal of diversion), there will be situations where the development of specific undertakings (that is, an expansion of forms of control) is an explicit part of the process of cautioning.
Unfortunately, the absence of any recent evaluation data makes it impossible to examine the effects of the various new approaches to cautioning. Of course, some data is available on the level of cautioning in a few jurisdictions. In some states, such as Queensland, cautions are used much more often than are referrals to the children's court. In Queensland, roughly three times as many young people are cautioned as appear in court, with the ratio growing from 3:1 to 3.2:1 since 1997 (in the last year for which data are available, 2000, there were 14,529 cautions in Queensland). In Victoria, the number of cautions has been consistently around 8300, which represents around 30 per cent of apprehensions. Whilst Victoria has had more cautions than children's court appearances for the last decade, the difference is not large, with court appearances totalling between 71 per cent (in 1995) and 87 per cent (in 1999) of the number of cautions. For the past five years, cautions have remained at around 43 per cent of all recorded police apprehensions. Western Australia makes an interesting case, as cautioning was introduced in legislation there only in 1991. Since that time there has been a steady increase in the numbers of young persons cautioned in WA, while the numbers in court declined steadily until stabilising in the late 1990s. The latest figures (2000) for Western Australia show 11,267 persons cautioned (compared with 1756 in 1991) and 3057 young people convicted in the children's court (compared with 7554 in 1991).
In other jurisdictions, the balance seems to tip more in the direction of court referral. Whilst the number of cautions given by New South Wales police has increased steadily from 5615 in 1998 to 7626 in 2000, nearly twice as many young people appeared in court (13,882) as were cautioned in 2000 (due to changes in the recording systems, NSW statistics prior to 1998 cannot be compared to those from 1998 and later). In South Australia, cautions have accounted for roughly one-third of the cases of young offenders apprehended, but the numbers being sent to court have been slightly greater than for those cautioned for four of the past five years (there were 2486 cautions in 2001). In Tasmania, in the Eastern district in 2000-01, 36 per cent of young people were sent to court whereas only 14 per cent received a caution.
This data underscores the diversity in understanding of, and approaches to, police cautioning across the jurisdictions in Australia. Without further original research, we cannot know how this data on formal cautioning meshes with informal cautioning practices. It would seem clear, however, that the use of a formal caution represents an act whereby to some degree the young offender is made aware of the degree to which the justice system may call her or him into account. A balancing act emerges, then, between the aim of providing an opportunity for a less coercive option and doing so in a situation in which some form of accountability on the part of the young offender is a condition of the option being considered. Some forms of police cautioning system may approach a situation of 'true diversion' where the result of the program is to remove the young person completely from the juvenile justice system without conditions. However, there has been an expansion of other forms of cautioning, and police powers result in a blending of the goals of diversion with aims of increased accountability in the form of conditions, undertakings or (as will be seen in the next section) family conferences. The ramifications of these elaborated cautioning processes for the young person and for the system as a whole have yet to be the subject of significant research.
Both the literature and our research field work establish that the second major approach to juvenile diversion in Australia consists of forms of family group conferences. As Daly pointed out (2001:62-63), it can now be said that all eight states or territories in Australia have some form of juvenile conferencing scheme, and she estimates that in recent years the annual number of young people undergoing conferencing is somewhere between 5300 and 5800. The history of conferencing is somewhat different from that of other elements of 'destructuring'. While its origins can partially be found in the growing interest from the 1970s onward in mediation as an alternative to formal judicial processes (an off-shoot of the basic destructuring impulse), perhaps a much greater influence was the widespread popularity of the first forms of family group conferencing that were provided in the 1989 juvenile justice legislative reforms in New Zealand (Maxwell and Morris 1993). Within a few years, it had been adopted throughout Australia, although the specific mechanisms of conferencing tended to vary, as the following review of the practice in each jurisdiction indicates.
The legislative basis for conferencing in New South Wales is found in the Young Offenders Act 1997.
The principles regarding conferencing and sanctions set out in s 34 (1) are:
The conference must also take into account the age and developmental level of the child, the needs of children who are disadvantaged or have disabilities, especially communication or cognitive difficulties, and the gender, race and sexuality of the child.
The purpose of a conference is to make decisions and recommendations about, and to develop an outcome plan for, a child (s 34(2)).
In reaching decisions at a conference, the conference must have regard to:
(s 34(3))
The Youth Justice Conferencing Manual states that conferences are built on the principles of restorative justice.
A specialist youth officer (SYO) from the NSW Police Service determines whether a conference should be held when the matter is referred to it by an investigating officer (s 37). Young people are also referred to a conference by a court (ss 39 and 40).
Any summary offence or indictable offence triable summarily is covered by the Young Offenders Act (s 8), and may be the subject of a conference. Exceptions to this are set out in the act (s 8(2)) (eg offences resulting in death, sexual offences, robbery, and serious drug and traffic offences).
The child must admit the offence, and consent to participate in a conference (s 36).
The SYO may decide to administer a caution or refer the matter to court rather than refer it to a conference (s 37(2)). The criteria for referral are based on:
(s 37(3)).
It should be noted that a young person can decide not to proceed with the conference, as can an SYO, the Director of Public Prosecutions (DPP) or the court (s 44).
The Department of Juvenile Justice is responsible for the operation of conferences through its Youth Justice Conferencing Directorate. The DPP, the court or a specialist youth officer refers the matter to a conference administrator for a conference. The administrator appoints a trained convenor from a local pool (s 42).
Conference participants include:
(s 47(1)).
Other relevant participants may also be invited, eg interpreters, health professionals (s 47(2)).
The convenor has power to exclude a person from a conference (s 48(3).
Preparation for a conference is set out in section 45. Written notice and explanations must be given to relevant parties. The conduct of a conference is based on guidelines set out in the NSW manual (ss 48 & 49). The manual prescribes that a young offender should tell their account of the offence, followed by the victim's statement. All parties contribute to these discussions. The basic questions addressed at a youth justice conference are what happened, who has been harmed, and what can be done to address that harm. The victim is asked to suggest suitable reparations. In private, the offender and family/supporters are also asked to consider a proposal for addressing the harm. When a proposal has been prepared, everybody joins to discuss it and, if possible, all participants should agree to the final plan. The offender and victim, if present, at least must agree. A monitor for the plan should be appointed. The plan is documented and signed. (Taken from the NSW Youth Justice Conferencing Manual, ss 2.11 to2.12.12.)
A convenor may adjourn a conference (s 48(6)). Confidentiality applies (ss 65 and 66). A child may be advised by (but not represented by) a lawyer (s 50). A conference may be reconvened if necessary to reconsider the agreed plan (s 55).
Participants can agree to the outcomes, which must be realistic, appropriate and have sanctions not more severe than a court might impose. The time for completion of the outcome plan is prescribed by regulations as six months, although this can be extended at the discretion of the conference administrator (s 52).
An outcome plan can provide that:
The plan must set out monitoring requirements and time limits (Taken from Manual: 2.17.1)
A conference administrator is responsible for monitoring the completion by the young person of the tasks agreed in the outcome plan. When the young person has satisfactorily completed (or not completed) the tasks set out in the plan, the administrator must notify the child, the victim and the person who referred the child to the conference. If the outcome plan is not satisfactorily completed, the matter must be returned to the referring body (police or the court), who will then deal with the matter as if the original referral had not been made (s 57).
Conferencing is provided for in the Juvenile Justice Act 1992.
The following principles underpin the legislation:
The object of the legislation on community conferences is to establish a conference process for a child who admits committing an offence to a police officer or after a finding of guilt is made by a court (s 18A(1)).
The benefits intended are that the offending youth may meet the victim and take responsibility for their actions. They may make an apology, make restitution or pay compensation, and have less involvement with the courts and criminal justice system (s 18A (4)).
A police officer or a court may refer an offence to a community conference (s 18A (3) and s 18C).
Police must have regard to the nature of the offence, and the harm suffered, legal considerations such as guidelines issued by the Queensland Director of Public Prosecutions and whether the interests of the community and the child would be served by having the offence considered or dealt with in an informal way (s18A (5)).
A police officer may refer a case to community conference only when the child admits the offence, and the officer considers referral to be a more appropriate course of action than court, a caution is inappropriate, and a convenor is available (s 18H (1)). The victim must consent when a conference is referred by police (s 18H(1)).
The court may refer a case after a finding of guilt is made against the offending youth either as an alternative to making a sentence order or to assist the court in making an appropriate sentencing order (s 119A (1)). The court can give any directions to any party about the conference, and adjourn the matter (s 119A (2)).
A convenor may decline a conference upon deciding that the matter is unsuitable (s 18H (3)).
The act does not exclude specific offences from conferencing. (nb: The legislation does not specifically require a child to consent to conference.)
Conferences are the responsibility of the Youth Justice Program, Queensland Department of Families. The chief executive approves appointment of community conference convenors, who are responsible for conducting conferences (s 18B). In the interviews obtained in the course of our research work, it was established that presently only about half of the population of the state is covered by the four trial community conferencing programs. There are plans to extend the program statewide.
Conference participants include:
(s 18D).
Conferences are conducted by the convenor - and all participants must respect the convenor's decisions regarding conduct of the conference. The aim of a conference is directed towards making a community conference agreement about the offence (s 18E).
The conference may end if the child fails to attend, the convenor considers the offence is unsuitable for a community conference, or an agreement will not be made in a time the convenor thinks appropriate (s 18E).
The convenor provides the referring police officer or the court with a report in an approved form about the conference outcome within 14 days of the conference's end.
A conference agreement must contain provisions under which the offending youth: