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Social Justice Report 2001

Chapter 5: Juvenile diversionary schemes and Indigenous people

Introduction

Diversion and restorative justice

Human rights principles for juvenile diversion

Juvenile diversion schemes in the Northern Territory and Western Australia

Juvenile diversion in the Northern Territory

Pre-court diversionary options for juveniles in the NT

Forms of diversion

Program Case Studies

Post-court diversionary options for juveniles in the NT

Operation of the NT pre-court diversionary scheme

Diversion in the NT assessed against best practice principles

1) Viable alternatives to detention

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

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

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

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

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

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

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

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

10) Self-determination of Indigenous peoples

Recommendations on diversion in WA

Conclusion

Introduction

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

Diversion and restorative justice

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

to avoid the danger of trapping young people with a previously good record in a pattern of offending behaviour. They seek to temper the punitive nature of criminal justice processes in recognition of the particular vulnerabilities of juvenile offenders. For example, cautioning a young person for a minor offence indicates clearly that his or her behaviour is unacceptable. However, it avoids the stigma associated with prosecution and conviction and avoids contaminating a minor first offender through contact with serious or recidivist offenders. [2]

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

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

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

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

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

Human rights principles for juvenile diversion

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

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

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

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

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

Best practice principles for juvenile diversion [6]

1. Viable alternatives to detention

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

2. Availability

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

3. Criteria

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

4. Training

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

5. Consent and participation

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

6. Procedural safeguards

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

7. Human rights safeguards

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

8. Complaints and review mechanisms

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

9. Monitoring

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

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

Juvenile diversion schemes in the Northern Territory and Western Australia

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

Juvenile diversion in the Northern Territory

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

Pre-court diversionary options for juveniles in the NT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Forms of diversion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NT case study

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

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

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

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

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

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

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

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

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

Program Case Studies

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

The Gap (Alice Springs)

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

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

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

Community Development Unit (Tennant Creek)

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

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

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

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

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

Intjartnama Aboriginal Corporation (Ntaria – Hermannsberg – Alice Springs)

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

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

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

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

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

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

Post-court diversionary options for juveniles in the NT

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

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

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

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

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

NT case study

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

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

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

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

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

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

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

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

Operation of the NT pre-court diversionary scheme

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Place [85]
Diversion
denied
Diversion
denied
Verbal
Warning
Written
Warning
Formal
Caution
Conference
Total
Alice Springs
68
7
106
66
31
6
284
Casuarina
82
8
157
112
60
17
436
Darwin City
28
3
17
13
6
3
70
Elliott [86]
-
1
8
-
10
3
22
Katherine
30
-
26
17
26
2
101
Lajamanu [87]
-
-
1
2
20
4
27
Ngukurr [88]
6
-
4
10
13
-
33
Nhulunbuy [89]
1
-
6
10
15
3
35
Palmerston
15
2
107
41
27
7
199
Tennant Creek
15
-
33
11
8
4
71
TOTAL
245
21
465
282
216
49
1394

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

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

Diversion in the NT assessed against best practice principles

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

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

1) Viable alternatives to detention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where police authority is founded on community endorsement and community respect, then police discretionary decisions are likely to be seen as a legitimate practice in the equitable operation of the law, but this is precisely what is missing in the relationship between Indigenous communities and police. The police function has a particular resonance for Indigenous communities, given the history of intervention already outlined. [103]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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