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:
The agreement may also contain provisions about the following aspects:
The agreement has to be made within the following framework:
(s 18F).
Much work goes into pre-conference preparation, including explaining process and suggesting outcomes to children, parents and victims (Strang 2001:16).
At the time of the writing of this report, the conferencing option was available to only about one half of the youthful population in Queensland. Subsequently, there has been a commitment to provide this program throughout the state, and that process has begun, with a firm timetable for full implementation across Queensland having been established.
Outcomes of conferences may include:
(s 18F (4) & (5)).
If an offending youth fails to comply with the agreement about a program, the chief executive (Queensland Department of Families) may take no action, or notify the police or court, depending on the source of referral (s 18G).
If the child contravenes an agreement made at a conference referred by police, it is referred back to the police. Normally the original referring officer or another with knowledge of the circumstances must consider the case and decide on an appropriate course of action (s 19 (2)). The officer may then decide to take no action, administer a caution, refer to another community conference with or without the same convenor, or start proceedings against the child for the offence (s 18J (3)).
If the court referred the conference, and a condition is not met, the court's proper officer may take no action, refer to another community conference, or bring the charge back to court for sentencing (s 119C). In making a sentence, the court must take the child's participation into account, and anything the child has done under an agreement (s 119C(7)).
The legislative basis for conferencing is found in the Young Offenders Act 1993.
The act provides that offending youths should receive the care, correction and guidance necessary to develop into responsible and useful community members, and to realise their potential. They should also be aware of their obligations at law. Also:
(s 3).
Where a youth admits to commission of a minor offence, police may refer the matter to a family conference (s 7(1) (b)).
After a charge has been laid, where guilt has been established, the court may refer a youth to a family conference or to be dealt with by police (s 17 (2)).
Where a youth admits to an offence, and police issue a caution requiring undertakings that are not complied with, police may refer the matter to a youth conference (s 8 (7) (a)).
When a court refers a matter to a conference, the only legislative limitations on types of matters to be referred are that the young person has been found guilty or has pleaded guilty to an offence, and the offence is not one that will be referred to a higher court for determination (ie homicide, certain indictable offences and other grave offences set out in section 17 (3)).
Police have discretion over the types of offences they refer to conferences. The act provides that the offence should be minor in nature (s 7). 'Minor' is defined as being an offence to which the act applies, and is at the discretion of police based on the limited extent of harm caused, the character and antecedents of the offender, the improbability of further offending, and where appropriate the attitude of the offender's family or guardian (s 4).
Youth justice coordinators are appointed under the Courts Administration Act 1993. Magistrates and other individuals are appointed for three years after consultation with the senior judge of the Youth Court. A coordinator is responsible to the senior judge of the Youth Court for proper discharge of duties.
Conference participants include:
Outcomes can include:
The conference must have regard to comparable sentences made by courts. The maximum duration of an undertaking is 12 months.
If a youth fails to attend a conference, or fails to complete an undertaking or other agreement reached at a conference, a police officer may lay a charge against him or her before the court (s 12(8)).
The relevant legislation is the Youth Justice Act 1997 (Part 2, Division 3), which was enacted on 1 February 2000. Between 1995 and 2000, juvenile justice conferencing was conducted by the Tasmanian Police, based on the Wagga Wagga model. These conferences, held as part of a formal caution to young offenders, still continue with the introduction of legislatively based community conferences. The more recent community conferences came into effect under the Youth Justice Act. The following sections describe both police conferences (cautions) and community conferences.
Under section 10 of the Youth Justice Act 1997, an authorised police officer is able to administer a formal caution to a young person, and to convene a meeting that is effectively a group conference. The victim must be invited to attend a conference so convened. These conferences are held pursuant to the legislation.
Legislative objectives and principles are set out in sections 4 and 5 of the act. Section 4 (Objectives) includes:
Section 5 (Principles) includes the following provisions:
(Sections 4 and 5, described below, refer to both police and community conferences.)
Referrals are made by the arresting officer to the Youth Justice Officer, who decides the appropriate course of action on the basis of set criteria.
If a youth admits the commission of an offence, and a police officer considers the matter not suitable for an informal caution, or not serious enough for a community conference or a complaint to the court, the police officer may refer the matter to the Youth Justice Officer for decision.
Police are responsible for carrying out conferences that are held as a formal caution.
If a police-run conference (caution) is decided and agreed upon, the offender, the victim, their families and supporters are invited to attend a meeting, convened by the police officer. Following discussion, based on the police Wagga Wagga model, an outcome is agreed to if the meeting is successful.
Police conference outcomes may include a caution, or a caution with undertakings such as to pay compensation, make restitution of property, apologise, perform community service for the benefit of the victim (maximum of 35 hours), or anything else that is appropriate in the circumstances (s 10(2)). The objective is to tailor the undertaking to suit the offender and the offence circumstances.
The act does not provide for any consequences if a young person fails to complete undertakings given at a police conference.
As mentioned above, sections 4 and 5 apply to both police and community conferences.
The majority of referrals to community conferences are made by police (s 9 (1) (b) and s 13 (1).
Referrals may also be made by the Magistrates Court (Youth Justice Division) (s 37 (1)).
Referrals to community conferences are made to the Secretary of the Department of Health and Human Services - Children and Families Division and Community Youth Justice Division who convene a community conference.
What are the referral criteria?
Police referred: If a youth admits an offence and the Police Youth Justice Coordinator considers the matter is not suitable for a caution or a complaint to the court, police may refer the matter to the department (s 9). A youth must agree to attend a conference and sign an agreement to that effect (ss 9(2) (c) and 9 (4)).
Court referred: Instead of proceeding to sentence a youth, the court may order the Secretary to convene a community conference, and order the youth to attend (s 37 (1).
Client characteristics: Police may refer a youth to a conference for a first or subsequent offence, depending on the seriousness of the offence, and the history of the youth known to police. There is no legislative direction as to which offences are appropriate for conferences.
Referrals to community conferences are made to the Secretary of the Department (s 13). In practice, this means a referral to the Coordinator of Youth Justice, whose office arranges the conferences.
Conference participants include:
(s 15).
In practice, an officer of the Department of Youth Justice also attends the conference.
Legislative requirements are:
(s 17).
In practice, both offender and victim are encouraged to set out their versions of events, followed by discussion between all attending. Appropriate forms of sanction are then suggested by participants, discussed by all, then agreed to or not by the offender. The departmental representative plays a major role in commenting on the appropriateness of suggested sanctions. If they include a caution, this is delivered immediately by the police officer in attendance.
Possible conference outcomes include:
An undertaking must not exceed 12 months in duration (s 16).
If a caution is administered, and no undertaking is required, or an undertaking is subsequently fulfilled, the young person is not liable for prosecution for the offence (ss 20 and 41).
A conference is deemed a failure if the young person fails to attend, the conference fails to reach a decision, or the young person fails to enter into a required undertaking or, having done so, fails to fulfil its terms. In any of these situations, a police officer may file a complaint with the court. A time limit of two months applies, or, if an undertaking is not fulfilled, six months from the end of the period of the undertaking (s 20 (1), (2) and (3).
If the conference was referred by the court, the facilitator must report back to the court, which must make an order under section 47.
Juvenile Justice is a program of the Community Care Division of the Department of Human Services (DHS). It provides case-managed services to young people on court orders requiring statutory supervision in Victoria.
Group Conferencing is a program funded by the Juvenile Justice Program, Department of Human Services.
Group conferencing is not legislatively based in Victoria.
Two acts form the primary legislative basis of the Juvenile Justice Program:
The target group for Victorian Group Conferencing is 10-16-year-olds. The Children and Young Persons Act applies to this age group.
As there is no legislation regarding conferencing, there are no specific legislated conferencing objectives. However, there are a number of sections within the Children and Young Persons Act that impact upon the delivery of group conferencing. They include:
The Victorian model of group conferencing is a pre-sentence diversionary intervention. In cases where a young person enters a plea of guilt or is found guilty of an offence and is within the target group, the court stands the matter down for a suitability assessment to be conducted by a DHS juvenile justice officer. Following this advice, the court will decide if the case is suitable for a referral to the Group Conferencing program.
The target group for the group conferencing program is young people who have offended when aged 10 to 16 years presenting at the children's court who have:
Quite serious charges have been referred to conferences, such as armed robbery, arson and assaults. In practice, most young offenders are of Anglo-Saxon origin and are non-Aboriginal.
In 1995 the group conferencing program was adopted in Victoria under the auspices of Anglicare Victoria and initially funded by a philanthropic trust. A steering committee was established for the program, which included representatives from the Children's Court, the Department of Human Services, the Victoria Police, Victoria Legal Aid, and the Department of Justice. The Department of Justice funded the program between 1998 and 2001. In July 2001 responsibility for this pilot program transferred from the Department of Justice to the Department of Human Services.
Anglicare provides the group conferencing program to metropolitan Melbourne. Currently the Victorian Government is finalising an invited submission process for an expanded metropolitan group conferencing program and a similar process for two rural pilot programs, in Hume and Gippsland regions.
The conference facilitator arranges the attendance of the young person, their family or significant others, the child's legal representatives, the police, the victim and/or victim's representatives (approximately 80 per cent of victims attend (Griffiths 1999)). The group conference facilitator must weigh up having the significant people in attendance and not having the conference too large, which may inhibit proceedings.
If the court decides the case is suitable for a referral to the group conferencing program, it adjourns sentencing for four to six weeks until a group conference can be facilitated.
Following the group conference the young person returns to court and the magistrate considers the process and outcomes of the group conference, in the form of a report prepared by the conference convenor.
Unless the young person fails to participate in the conference or re-offends during the period of the adjournment, the conference is most likely to result in the court diverting the young person from a supervisory order.
Possible outcomes include the following:
As the group conference outcome plan may be a condition of a bond, the matter may return to the Children's Court if conditions are not fulfilled.
The legislative framework for conferencng in Western Australia is found in the Young Offenders Act 1994.
Thirteen general principles are set out in section 7. They include:
Section 24 also sets out further principles. It says that the treatment of a young person who offends but is not part of a well-established pattern of offending should seek to:
The young person must also be told clearly what the offence was, and what they are required to do.
Police decide whether to issue a caution, refer a matter to a juvenile justice team (JJT), charge the person, or release them pending consideration of a matter by the juvenile justice team (s 41). It can be referred only if the offender accepts responsibility for the offence and agrees to being dealt with by a JJT rather than a court. However, if the matter does not proceed with the JJT, and proceeds to court, this fact cannot be used as an admission of guilt (s 25(4)).
Division 2 of the act establishes juvenile justice teams, consisting of a coordinator, a police force member and, if practicable, a person from the Department of Education, a member of an ethnic or other minority group if appropriate, and any other person (s 37).
Where there is sufficient evidence to justify charging a young person with an offence, the person who could lay the charge may refer the matter to a JJT (s 27).
A court may also refer a young person to a JJT, whether or not the person has pleaded to the charge and whether or not found guilty of an offence (s 28).
First offenders should usually be referred to a JJT (s 29). Most offences are first or minor offences.
Schedules 1 and 2 of the act list offences that are ineligible for cautions or referrals to juvenile justice teams, eg perjury, sexual offences, supplying drugs, reckless driving, murder, manslaughter, serious assaults and prostitution (s 25).
The Department of Justice manages the Juvenile Justice Team program. JJTs are inter-agency based, and are coordinated by the Department of Justice. Five full time teams operate in metropolitan Perth, two in outer metropolitan districts, and are convened in country towns as necessary.
The young offender should attend a meeting with a JJT. A team must give notice to a responsible adult, and must obtain that person's agreement to meet (s 30). An exception arises if the JJT considers the young person is 'independent' (s 30 (3)). Victims are entitled to participate, and, if they do, their consent must be obtained in agreeing to an outcome (s 31). A support person may also attend. Police and a coordinator of the conference also attend.
The JJT may determine how a matter should be disposed of, and invite the young person to comply (s 32). If the young person does not comply with conditions, they may be recalled to the JJT for further action (s 32(4)). A team cannot make orders, but records undertakings or agreements (s 32(5)). Meetings are chaired by the coordinator, police read out the charges, and may suggest dispositions, then each other participant speaks in order and presents their point of view. If agreement is reached, an agreement is written up, and when fulfilled, the young person will receive a caution.
Outcomes include verbal and/or written apologies, restitution, reparation, and community work.
A matter may be brought back to a JJT if conditions are not fulfilled.
The Children and Young People Act 1999 covers offending by young people, but does not refer specifically to diversion programs. Australian Federal Police commenced pre-court conferencing in 1994 based on the Wagga Wagga model.
There are no direct references to conferencing or diversion programs in legislation. Conferences are based on the ACT Policing Practical Guide.
Police investigating officers have sole discretion to refer to conferences.
All young people who are apprehended for minor theft or theft, minor criminal damage or criminal damage, fraud or assault may be referred to a conference. Arson, burglary and stolen motor vehicle offences are also able to be the subject of conferences. A young person can have a previous conviction and still be eligible for a conference.
The offender must have admitted to the offence, which must be one that is not suitable for cautioning alone.
The offender must understand the conferencing procedure and alternatives, and must consent to the process.
Sexual offences, family violence, drug offences, armed robbery, aggravated burglary and weapons offences are excluded from conferencing.
Police are solely responsible for conferencing. Conferences are conducted by one of two members of the diversionary conferencing team, known as facilitators.
Conference participants include:
The conferences follow the Wagga Wagga process and the theory of re-integrative shaming. Details of the process followed are described in the ACT Practical Policing Guide.
The facilitator will consider whether outcomes are achievable and realistic, do not stigmatise the offender, and do not exceed any penalty that a court might reasonably impose. There must be a clear completion date within 12 months from the date of the conference, preferably within six months. The offender must agree to the conference outcomes.
If a young person fails to meet the conditions set down at a conference, the file is sent back to the relevant police officer who referred it for conference, and a brief is prepared for the Director of Public Prosecutions. It is likely that the matter is then referred to the Children's Court.
The legal basis for relevant juvenile justice programs in the Northern Territory is found in the Police Administration Act (PAA) that was amended in 2000 to provide specifically for new forms of juvenile diversion, including conferencing.
Under section 120G, from August 2000 the PAA provides a means of diverting juveniles who are believed on reasonable grounds to have committed offences (pre-court diversion).
A member of the police force may refer a juvenile to a diversionary program (s 120H).
A police officer who believes on reasonable grounds that a person has committed an offence whilst a juvenile may refer (s 120H).
The juvenile and a parent must consent to the diversion. If they do not consent, police may charge the juvenile with the offence, or give the juvenile a verbal warning (s 120J).
Full admissions of guilt are not required (s 120H and Strang 2001:27)
Police must divert for minor offences (property offences where value does not exceed $100) and have discretion for more serious offences. Police general orders exclude serious offences such as homicide, sexual assault, grievous harm, robbery and driving under the influence (Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner 2001:25).
The Northern Territory Police have responsibility for organising conferences, and police serve as the conference coordinators. The organisation within the police that has overall responsibility for administration of the conferencing program is the juvenile diversion unit (JDU). These units have responsibility for both the cautioning and the conferencing programs.
Police in locations outside the major centres of Darwin and Alice Springs have the responsibility to organise and conduct the conference and report the administrative details and outcomes to the relevant JDU. Some officers in charge and other police officers in Darwin and Alice Springs (outside the JDUs) also conduct family and victim-offender conferences, depending on the circumstances and level of intervention required. However, the JDUs conduct the bulk of the conferences in Darwin and Alice Springs and have overall responsibility for monitoring, quality control, advice, and provision of assistance.
There are two forms of conference in the Northern Territory:
Prior to the conference an assessment is done of the offender and the circumstances of the offence. On the basis of that assessment, a recommended outcome option is developed and put to the conference. The intent is that conference participants then decide which is the most appropriate option/outcome.
Offenders can be referred to a community or specialist program, provide an apology, or do voluntary work. The Northern Territory conferencing program is distinctive in Australia in that a number of program options are provided through a wide range of non-government agencies. These include alcohol and drug treatment programs, educational and training components, mentoring programs, outdoor adventure programs and many others.
The juvenile diversion unit assesses the young person's needs. In Alice Springs, Darwin and Katherine, contracts have been made with non-government organisations (Relationships Australia in Alice Springs, YMCA in Katherine and YWCA in Darwin) to participate in the assessment process, assist in the conference process, case manage and mentor the juvenile, and provide weekly reports for each offender to the juvenile diversion unit. This is a close working partnership with police where various tasks and responsibilities are shared between the relevant organisations.
If a person is found guilty of an offence, information concerning diversion of that person as a juvenile may be produced in court (s 120M).
If a juvenile is diverted satisfactorily according to police, no further proceedings may be taken (s 120K). By implication, if not satisfactory, police may take the matter to court.
As our field work has established, and as noted in the earlier review by Daly, each of these jurisdictions has its own unique history, and its own distinctive political processes which led up to the establishment of conferencing. Therefore there are differences in ...how the idea has taken hold and evolved (Daly 2001:66). While our description of each demonstrates this diversity, we have found that there is general consistency in the overall form and content of conferencing that tends to take the following form, as described by Daly:
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 field work in the various jurisdictions suggests that it is possible to differentiate three basic approaches to conferencing which can be distinguished primarily in terms of where in the juvenile justice system the conferencing approach is located.
A first approach, and one that is important to the history of conferencing in Australia, consists of those forms of conferencing where the process is organised and run by the police. One major form that police-run models of conferencing can take is the widely known 'Wagga Wagga model' where the police are both the organisers and the conference facilitators/convenors. Currently, this approach is used in the ACT, the Northern Territory and Tasmania (although in Tasmania, as noted above, there are actually two forms of conferencing, one where the police organise the conference, and another organised by the juvenile justice agency). The situation is somewhat complicated in the Northern Territory, as there are two forms of conferencing there as well (one is a family conference where victims are not present, while the other more closely approaches what others refer to as conferencing as they are referred to as victim/offender conferences and, as the term implies, victims and their representatives are present). As Daly observes (2001), it is sometimes assumed, because of the widespread overseas use of the Wagga Wagga model, that this is the model uniformly used throughout Australia, which is clearly not the case. The recent report by O'Mahony, Chapman and Doak (2002) is a useful example of an analysis of the implementation and assessment of the Wagga Wagga model in an overseas context (Northern Ireland, in that case).
A second approach is where the system is such that the conferences are organised by an organisation separate from the police. Daly (2001) argues that, in general, in Australia by the turn of the century, most states had enacted legislation which rejects the Wagga Wagga model in favour of 'non-police' conferences. Daly contends that Australia is rather distinctive in adopting this stance, as she says that, in general, the United States, Canada, England and Wales employ the Wagga Wagga approach. In such jurisdictions as New South Wales, Queensland, South Australia and Western Australia, the revised juvenile justice codes provide that a unit within the agency responsible for juvenile justice clients take the responsibility for organising and supervising the conferencing programs. Daly notes further that most of these states drew upon the New Zealand legislation for the basic principles of how the process should proceed, although each state has its own unique history and interpretation of the way conferencing should be provided.
A third approach to the provision of conferencing is where the conference is provided as a post-court option. The state that has been the most committed to this approach is Victoria, the only place where such conferences are provided. Some states may provide for this approach as well as pre-court conferences. The legislative framework in the Northern Territory provides for both pre- and post-court conferences. However, while there were a few post-court conferences there during 1999-2000, since the implementation of the new juvenile justice procedures these numbers have tailed off, and it appears at present that no new cases are being considered for post-court referral to conferences. In Western Australia, the legislation precludes certain offences and offenders from being considered for pre-court diversion, and the Ministry of Justice has begun (in October, 2001) a small pilot program whereby conferencing is available in such circumstances as a post-court disposition option for the children's court. It also should be kept in mind that in New South Wales, Queensland and South Australia, the court may refer the case back into the pre-court diversion system if in the view of the court such a step is more appropriate than adjudicating the matter in the court (although the consequence of that decision, of course, is that the matter is dealt with outside the court in essence as a pre-court diversion; that is, the referral is not part of a sentence imposed by the court).
As is the case with any major new program, it is reasonable that policy makers and other interested parties would ask whether or not the initiative 'works'. In examining this question with regard to conferencing, we find that here, unlike with cautioning, at least some data is available to guide the analysis. At the same time, a number of complexities have to be understood. Above all else, it is necessary to have some clarity with respect to what question is being asked when we ask if the program works. Conferencing as an approach to juvenile justice has many different aims and objectives.
One issue that can certainly be examined is whether or not it has any impact on later offending behaviour. As is often the case with justice initiatives, that record is not necessarily easy to read. There are at least three empirical studies that attempt to address in the most direct way whether or not conferencing results in lower recidivism. In Victoria, Griffiths (1999) found no significant differences in re-offending when young offenders who underwent conferencing were compared with a matched group placed on probation. A similar result of no difference was found for juvenile property offenders in the important RISE experiment (Sherman, Strang and Woods 2000), although some positive effect was reported for youthful violent offenders - keeping in mind that relatively few offenders who would be referred to a conferencing scheme would be drawn from the population of violent offenders. (In part, this is because there are relatively few offences involving violence among juveniles, but also because in many schemes violent offenders are automatically excluded from the process. Also, in the RISE experiment the term 'youthful' referred to a group under age 30, so many, if not most, were not actually juveniles.) A recent study in New South Wales (Luke and Lind 2002) uses the weaker strategy of matching as employed by Griffiths, and reports that although initially there are no significant differences in re-offending (in terms of reappearances per year) observable when a conferenced group is compared with groups referred to court, when controls are employed for age, gender and type of offence, and when a form of survival analysis is brought to bear on the data, important reductions in re-offending attributable to conferencing emerge.
Two different investigations have come at this re-offending question from a rather innovative angle. Rather than seeking to make comparisons between a conferenced and non-conferenced group (which are most often vulnerable to questions about the confounding effects of selection biases, since few studies, especially in Australia, are able to employ the random assignment procedures found in the RISE project), these investigations looked only at the group that was conferenced, and asked what it was that seemed to account for success or failure in the conference process.
In their own words:
In assessing the impact of conferences on re-offending, we asked whether there were things that occurred in conferences that could predict re-offending, over and above those factors that are known to be highly predictive, such as a person's previous offending and social marginality. This is a stringent test of the potential effect of conferencing, but in the absence of a control group, we used strong control variables in a regression analysis. We approached the problem of predicting re-offending with the assumption that conferences are variable events, with varying degrees of procedural justice and restorativeness. (Hayes and Daly 2001:12)
This approach was similar to that employed by Maxwell and Morris (2001) in New Zealand, where they, too, argued for an examination of the effects of conferencing by looking at differences within the group of offenders who had undergone conferencing, contrasting successful with unsuccessful outcomes of the conference (and examining then the factors which appeared to result in successful conference outcomes). They reported that variables associated with successful conferences (that is, where the young person had not re-offended) were:
These New Zealand findings were quite similar to those of the South Australian study, where it was reported that:
... when young people were remorseful and when there was genuine consensus in reaching the agreement, young people were less likely to re-offend. These findings, together with those from New Zealand, suggest that conferences have the potential to elicit contrition by individual offenders and to engage consensually-based group decision-making, both of which appear to have crime reduction effects. (Hayes and Daly 2001:21)
What is found in a review of the empirical record regarding recidivism and conferencing, briefly reviewed here, is the common pattern of conflicting data and claims which is true of diversion generally (Polk 1984). Sorting through these and coming to conclusions is complicated by the need to consider a number of problems. One concerns the nature of the comparative base used for the research. The most robust method of comparison for an examination of the effectiveness of any form of treatment or intervention is generally considered to be the randomised experiment where differences are observed between randomly assigned experimental and control groups. It is noteworthy that the only investigation which has used this method, the RISE experiment (Sherman, Strang and Woods 2000), has for the largest group of subjects who would be involved in conferencing (property offenders) found no effect - that is, no difference between the group randomly assigned to conferencing compared to a similar randomly assigned court group. Such rigor of approach to design is exceptionally rare in Australian evaluation research, and the RISE investigation is the only example where diversion is concerned. In sharp contrast, in at least one rather different investigation, the circumstances faced by the evaluators were so limiting that they were unable to provide any comparison group at all. As a result, the exceptionally low rate of re-offending (only 7 per cent of the conferenced group examined had re-offended) found in the Queensland evaluation is difficult to interpret because there is no base to which this rate might be compared (a fault noted by the authors of the report, Hayes and Prenzler, 1998:40).
In all of the other forms of research where some effect of conferencing on recidivism is asserted, selection factors might account for much if not all of what is observed. In the NSW study, for example, it is noted, in regard to any comparisons between the group conference and the quasi-control group of offenders referred to court, that:
It is nonetheless possible that re-offending rates for the two treatments are influenced by other factors which have not been measured, such as employment status, the young person's attitude, parental support and discipline, and the young person's subjective experience in the justice system. All of these factors may influence police and magistrates in making their decisions to refer young people to conference or court, and thus those who are selected for conferencing might be less likely to re-offend in any case. If this is so, then any differences in re-offending rate detected between court and conferencing may simply be an artefact of the referral decisions made by the police and courts. (Luke and Lind 2002:8)
This investigation makes a rather detailed examination of the various patterns within the data which might throw light on the question of selection biases, and comes to the conclusion that the available evidence ...suggests that the difference in re-offending levels is largely due to the conference experience itself (Luke and Lind 2002:27). This may be the case, but unfortunately in the evaluation the statistical controls, especially for criminal history, are very crude, and there are actually no controls whatsoever (as acknowledged) for such factors as the young person's school or employment status, their family background including family support, the peer associations of the young person, and a host of other factors that are known directly to have an impact on re-offending rates. Thus, while possibly suggestive, the case for any impact of conferencing must be considered far from proven from these data.
A similar kind of selection bias problem unfortunately clouds the South Australian and New Zealand findings as well. Thus, while their methods allow these authors to assert that particular factors are apparently associated with successful conferences, surely it is the case that it is precisely where these factors are found (for example, where parents and children are likely to feel remorseful about the offending behaviour, regardless of the source of that remorse) that in general one would expect a more successful outcome. As insightful and inventive as the methodological approach is, without a proper comparative base we cannot know if it is the experience of the conference, rather than pre-existing characteristics of the 'successful' group, that resulted in the lowered levels of re-offending observed both by Hayes and Daly (2001) and Maxwell and Morris (2001).
There are three major problems, in short, which beset 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. It is exceptionally difficult, without access to random assignment, to bring these processes under adequate control in the conduct of program evaluations.
Second, there is the question of how the comparison groups should be constituted. It is the view of this present report that in general in most of the studies of recidivism in conferencing the comparison base has been inappropriately designed. We would urge that the comparison ought to include a comparison between a conferenced group and one that is warned and released. That is, a critical issue from the viewpoint of diversion is not how are conferenced young persons different from those referred to court (the approach taken in most of the existing comparative studies), but instead how are conferenced young persons different from those diverted out of the justice system altogether. The issue here is a commonplace assertion in criminology that, in general, the deeper one penetrates into the justice system, the more problematic the social characteristics of offenders become. Relying exclusively upon a comparison of a conferenced group, especially where there are few or inadequate controls, with a group which has been sent to court, is by definition comparing a less deep option (conferencing) with a deeper one (court referral), and therefore the comparison is open to a host of challenges on the grounds of the inevitable play of numerous selection effects.
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 employ official measures of criminality. Official measures in these circumstances are suspect, especially given the heavy police involvement in most conferencing programs. In these circumstances, the role of the police as both participants in the conferencing program, and as agents ultimately responsible for the outcome data (re-offending), creates a situation vulnerable to a number of perhaps subtle procedures to produce measurement biases which provide the precise reason for the 'double-blind' experiments in medical research (where both subjects and program staff are blinded regarding who belongs in the experimental and treatment group). For the most understandable of reasons, for example, working relationships of support can develop between young offenders and police which cannot help influencing later decisions police make about the offender.
In sum, the safest thing that can be concluded at the moment is that it has not been proven that conferencing produces lowered levels of recidivism. There are some highly suggestive leads for further research to be found in the South Australian (Hayes and Daly 2001) and New Zealand (Maxwell and Morris 2001) work in particular. Data certainly can be found that suggests a positive effect of conferencing in terms of outcomes on recidivism (as in the NSW study). However, in general, there are significant problems in research on this issue in Australia. These include the presence of uncontrolled selection effects, the faulty conception of the comparison base (especially the need in the future to compare conferenced young persons with those experiencing other forms of diversion including 'no action'), and exceptional problems of measurement (in terms of the key outcome variable). Together these issues mean that for the moment it is not possible to support with adequate evidence a claim that conferencing reduces recidivism.
However, conferencing has objectives that extend beyond extent to which the offenders re-offend. The intent of the restorative justice movement is a major redesign of juvenile justice, one which fundamentally alters the roles played by police, the courts, the offender, family members of the offender, and victims. As a result, evaluation of conferencing programs must extend over a range of behaviours, and among these the question of recidivism may ultimately be seen by many as a relatively low priority issue. Nonetheless, the established potential of the juvenile justice system to do harm, even when it has the best of motives (McCord 1972), requires that for any major new initiative there be an examination of the evidence regarding the impact of these programs on later offending behaviour.
Those close to the conferencing movement will know that in many respects it is not proper to attempt to evaluate this process simply by examining recidivism. As part of the general restorative justice movement, conferencing is intended to produce a wide range of outcomes, and reduction of re-offending behaviour may be but a minor objective (Maxwell and Morris 2001). In many respects, the major goals of conferencing are concerned with a widening of the social participants in the process of dealing with youth offending to include both victims and more effective involvement of the family of the offender (Maxwell and Morris 1993), and to increase the role of police in the determination of outcomes within the criminal justice process (Young 2001).
For some concerned with restorative justice, central to the process of conferencing is the way in which the justice system is altered to provide an avenue of response for victims.
Strang, for example, has argued that:
The need for a symbolic statement about the legitimacy of the victim's status and an acknowledgement of the emotional harm experienced is an aspect of victimisation that has only recently been given attention. (Strang 2001:18)
As a consequence, a major emphasis in the assessment and evaluation of programs of juvenile conferencing has been victim and family participation and satisfaction. In Queensland, for example, there is a consistent reporting of quite positive responses to conferencing by both victims and parents of young offenders. For example, when asked about satisfaction with conference agreements, well over 90 per cent of both victims and parents indicated satisfaction with the conference outcome (Hayes and Prenzler 1998).
In WA, while the level of outcome satisfaction is slightly lower (Cant and Downie 1998), a high level of victim satisfaction with the conference process was observed (83 per cent). The authors note that this level of process satisfaction is well above that observed in New Zealand (53 per cent) in early evaluations. A more recent evaluation in WA reported that ...85 per cent of victims were supportive of Juvenile Justice Teams as a better way of dealing with minor offending than having the young person going to Court (Lamb 2001:1). This finding again indicates support from victims for the idea of dealing with offending through conferencing.
Strang examines the impact of the Canberra RISE experiment on such issues as fear of revictimisation, fear of the offender, anger and sympathy towards the offender, sense of security and apology and forgiveness, and concludes that while there are potential problems and harms for victims in the conferencing process:
Nevertheless, on balance, the evidence from RISE is that restorative alternatives may offer brighter prospects for victims to gain the emotional restoration they need than the court system has ever done. (Strang 2001:192)
Whether considering victims or offenders, there is very little research that considers the dimension of gender in the conferencing process or outcomes. Some consideration has been given to the appropriateness of conferences in cases in which women or girls are victims, particularly of sexual violence (eg Stubbs 1997; Hudson 1998). However, there is only one report of research findings on conferencing that considers the situation of young women as offenders (Maxwell, Kingi, Morris, Robertson and Anderson 2002).
Alder (2001) draws on research on girls' experiences of juvenile justice more generally to suggest that there are issues that need to be acknowledged, researched and addressed if the promises of restorative justice are to hold true for young women. Three sets of concerns are outlined:
Juvenile justice system research on each of these issues indicates that we cannot simply assume that boys and girls will experience conferencing in the same way or that the outcomes will be the same for boys and girls.
Subsequent preliminary research findings from New Zealand support this observation (Maxwell, Kingi, Morris, Robertson and Anderson 2002). In general, girls were less likely than boys to feel that they were consulted about the process or that they were participants in the process. Their responses to the victim were less positive than those of boys. For example, 51 per cent of girls, compared to 75 per cent of boys, indicated they could understand how the victim felt, or that they were able to make up for what they did. At the same time, girls were more likely than boys to feel that what they did was wrong (68 per cent of girls compared with 81 per cent of boys). In terms of the responses to them in the family group conference, girls (63 per cent) were less likely than boys (77 per cent) to feel that they were treated fairly, that they were treated like a trustworthy person (31 per cent of girls compared to 50 per cent of boys), that they were shown forgiveness (49 per cent of girls compared to 61 per cent of boys), or that people were giving them another chance (60 per cent of girls compared to 83 per cent of boys).
The conclusion from these preliminary research findings is that ... these data indicate that we cannot assume that a family group conference will provide a similar experience for everyone...we need to know about what is really going on. (Maxwell, Kingi, Morris, Robertson and Anderson 2002:11).
A further issue of conferencing that emerged in the course of our field interviews concerns the balancing of timeliness with cost-effectiveness. Front-end approaches, such as verbal warnings, have an advantage as a diversionary process in that they are easy and quick to accomplish. A full conference, especially if it involves offenders and their family representatives, and victims with their support persons, is often complicated and difficult to arrange. There are the competing and complex time schedules of those involved, and problems simply in identifying who should be at the conference, and then making initial telephone or personal contact with them. The result can be many hours on the part of conference program staff simply in arranging conferences, and the effort itself can take many weeks. Our field interviews found persistent difficulties being reported by conferencing staff in meeting the time deadlines established in the program guidelines.
A recent investigation of conferencing in Northern Ireland observed that such programs:
...took a lot of time and effort to organise and run, particularly the home visits and the inevitable travelling involved...Given the low level of offending of most of the cautioned young people, and the amount of police time which was invested in the process, we conclude that these resources would be most effectively allocated to more serious offenders. (O'Mahony, Chapman and Doak 2002:70)
They observe, similarly, in a later section:
...conferencing is labour intensive if it is to be delivered to a high degree of effectiveness and quality. It makes more sense to invest such resources in those most in need and at most risk to the community. (O'Mahony, Chapman and Doak 2002:76)
These observations highlight the fact that conferences are cumbersome to organise, and use up valuable resources and time of justice system personnel. There would seem much merit in the recommendations of the Northern Ireland research that conferencing should be treated as an expensive and valuable resource, one which is carefully targeted at where there is a clear and demonstrated need. Further, there is a need to recognise that if the conference is not held within a reasonable period, there is a chance that human rights questions can be raised because of the possibility that justice delayed is justice denied. Certainly, there should be concern if there is a continual and frequent pattern of extensive delays in providing for the group conferences.
One important question remains to be asked: is it proper to consider conferencing as a form of diversion? Certainly, at times the legislation, as in the case of the Northern Territory, expects that conferencing will meet the objective of diverting young offenders from the juvenile justice system (and the distinctive history of that jurisdiction, of course, gives primacy to this aim). As well, those involved with conferencing often presume that conferences serve a diversionary function, as when Daly (2001:67) refers to the programs as diversionary conferences. But do conferences actually divert young offenders from the juvenile justice system, and is it accurate to refer to conferences as a form of juvenile diversion? There are two ways of attempting to address these questions. Firstly, we can ask the extent to which the available data on the various juvenile justice systems indicate that there has been some reduction in the flow of young persons into the court system as a result of conferencing. As seems to be so often the case, the data on this question does not give clear answers. Among the first evaluations of conferencing carried out in Queensland on a pilot of the conferencing program reported that there was an actual increase in court referrals that ...seemed to coincide with the initiation of community conferencing (Hayes and Prenzler 1998:38).
Recent court data in at least two states, however, are more supportive. Consistent with the diversion objectives, New South Wales experienced a decline in court referrals, with the decline since 1998 to the most recent year (2000) being almost 40 per cent. Somewhat greater declines were observed between 1990 and 1997 in Western Australia (the new cautioning and conferencing procedures there were implemented in 1991), but since 1997 the court referral rate has been stable (thus, the downward trend between 1990 and 1997 appears to be a combined result of cautioning and conferencing). The picture in South Australia is complicated in two ways. While there has been a general downward trend in referrals to court in South Australia between 1997 and 2000 (when there was an 18 per cent decline), the most recent figures show a slight upward trend. Furthermore, there was an expectation on the part of the policy makers in South Australia that the court figures would decline to a much greater extent than has, in fact, been observed. There is no clear pattern of reduction in court referrals in Queensland, although it needs to be pointed out that Queensland does not provide as clear a test, since conferencing has been implemented for only about half of the population of the state (although, if an effect were present, one might expect some sign, even at a reduced level, that is not present in these trendless data). Unfortunately, data are not available on this key issue for the other jurisdictions. The strong trends downward in New South Wales and Western Australia, combined with the smaller downward drift observed in South Australia, suggest that a general lowering of levels of referral to children's court may be accompanying the implementation of juvenile conferencing, although the data available to support this conclusion is far from conclusive.
It should be pointed out, however, that even if the trends in court appearances were downward in all jurisdictions, this is only a starting point in any detailed analysis. There are, unfortunately, always competing explanations for movements either upward or downward in trends, and the sad experience of criminology is that much of the time such movements can be accounted for either by changes in reporting procedures or by demographic shifts unrelated to the variables being examined. Research needs to be designed which enables an examination of the impact of the innovation of conferencing on court appearance trends (for example, by examining the key 'transition probabilities' regarding decisions earlier in the system). Such information, for an illustration, would help in the attempt to understand how much of any reductions observed in Western Australia were a function of cautioning, and how much could be attributed to conferencing. But for now we can say only that the available findings are suggestive, and certainly in a direction that would support a conclusion that conferencing may be having the effect of lowering the rate of court referral.
For the moment, we are forced to conclude that the evidence that is available would suggest that the claim that conferencing functions as a form of diversion is empirically infirm and, even more important, theoretically tenuous. What is at issue in the theoretical discussion is the overall intent of the conferencing program, and the degree to which diversion has primacy in its aims. In the objectives specified in the legislation which creates the basis for this approach to restorative justice, in only two of the eight Australian jurisdictions (Queensland and the Northern Territory) is any mention made of diversion. More typically, as in New South Wales, the aims provided in the legislation speak to the central issues of conferencing that include promotion of acceptance or responsibility by the child, strengthening the family of the child, enhancing the rights and place of victims, and having due regard for victims' interests.
When such aims, which seem common to the approaches to conferencing taken in Australia (across the three models that we have differentiated), are implemented, the agents who run the conference are explicitly part of the justice system, being either police or agents of the state juvenile justice agency (the one exception is the program in Victoria, which is post-court, and therefore by definition not an example of a pre-court diversion program, where the conferencing program is administered by a private, non-govenment organisation). Furthermore, by definition the intent is far from the objective of 'true diversion' (as the term was used by Cressey and McDermott 1974) - that is, to remove the young person from any further contact with any program.
Instead, conferencing explicitly attempts to create a setting where the offender, the parents or other family of the offender, a representative of the juvenile justice system in the role of facilitator, and in most cases consistent with the intent of conferencing, victims and representatives of victims, are present. To describe conferencing in this way is far from a criticism. It is simply an accounting of what it is that conferencing aims to produce. Furthermore, it is often stated clearly that a feature of this process is to create a setting where the young person, as a result of bringing together these various elements, will be held 'accountable'. It is also argued that the purpose of these conferences is to create settings and outcomes that are not 'stigmatising'. It is undeniable that the presence of victims and their representatives, as well as the way families of offenders interact in conferences, results in a process that has possibilities for holding the young person accountable in ways that cannot occur in the adversarial context of a typical court prosecution. Strang (2001) observes that, as a consequence, the restorative justice model generates greater possibilities for victims to gain a sense of emotional restoration and closure than can be found in traditional court process.
Conferences, obviously, are not like being 'warned and released'. Conferences are not designed to be 'non-intrusive'. They are designed, by definition, to be different from the traditional children's court. They provide a new way of delivering a system of justice, one that is innovative and provides avenues for participation of victims and families of offenders that may have much greater and more positive impact than those available in traditional courts. They are, however, still a part of the juvenile justice system, their mandate comes from juvenile justice legislation, and the key staff are (Victoria excepted) representatives of, or appointed by, the juvenile justice agency. As such, it would appear to us that assessing the strengths of juvenile conferencing in Australia should rest on grounds other than claims that conferencing functions as a form of diversion. As an alternative form of justice, the important elements of an evaluation would address such issues as the extent to which there is an effective transformation of the roles of victims and families of offenders, and whether the conferences alter in significant ways the capacity of the justice system to hold young people accountable for the offending behaviour. On theoretical grounds, these would appear to be much more central aims to the claims of restorative justice than the claims that these are intended primarily as forms of juvenile diversion. When conferences work effectively, they may reduce the need for cases to flow into the traditional court process. If this can be shown to happen over time (and present data do not provide overwhelming support for the assertion), then it could be that cases are thereby 'diverted' from the traditional system of justice, but it needs to be said that at the same time this would be because the offenders are being referred into an alternative justice experience.
During the first wave of field work interviews with managers in the juvenile justice systems in the states and territories of Australia, an unanticipated problem of juvenile justice was identified to which diversionary strategies seemed an appropriate response. The juvenile justice acts in the various jurisdictions in general provide that, in theory at least, a young offender should be held in remand (that is, detained before adjudication of the case by the children's court) only as a 'last resort' (for example, see section 4 of the Queensland Juvenile Justice Act 1992 and section 7 (h) of the Western Australian Young Offenders Act 1994). There are a number of conditions which justify this step of detaining a juvenile prior to any hearing of the matter by the court, including cases where the offence is especially serious, where there are clear questions regarding whether the offender will return for the hearing, where there is some evidence that the behaviour of the young person poses a clear danger to the community, or where there are manifest needs to protect the young offender from harm. In general, if the system were functioning adequately, one might expect that an exceptionally high proportion of those detained would find themselves sentenced to a period of detention after the matter had been adjudicated by the court.
In the course of our field work, however, juvenile justice administrators indicated that common problems they encountered were:
This raises the real possibility that expensive resources of the state are being wasted through the unnecessary pre-trial detention of young offenders where that detention is demonstrably inappropriate.
In the diagram below we can see the precise location of this problem. When police encounter a young person who is alleged to have, or is suspected of having, committed an illegal act, they have a number of options in terms of how they proceed (and these options have expanded with the introduction of the newer schemes providing for cautioning and conferencing). In the case of Western Australia, if they decide that the matter is serious enough to proceed (rather than receiving some form of unrecorded, informal response or caution), they now have four basic options (and the report of Cant and Downie (1998) indicates how these options were employed in 1996). The most common option, as indicated in our discussion above, is the formal caution (elected in 7953, or 59 per cent, of cases dealt with by the police). An additional 1051 (8 per cent) were referred to juvenile justice teams, meaning that two-thirds (67 per cent) of all cases dealt with by the police in WA in 1996 were diverted to either cautions or conferences. Of the one-third that were referred to court, 1443 were referred by notice, while the remaining 3006 were referred through arrest. The diagram shows how complex things can become once a full system of diversion is created. For example, of those referred into the conferencing program, 219 were actually 'diverted' without having a formal conference, while a reasonably large number (791) either rejected the idea of a caution or were for some other reason referred to the court for disposition of the case. The court, however, has a range of options available to it, including diversion, and in fact in 1996 referred a large number of cases (1137, or 26 per cent of court referrals) back to conferences (that is, diverted) as a disposition.
The 'flow' of cases of concern to the present discussion is not found in this diagram. That is, of the 3006 cases where there was an arrest, some small number (unfortunately not recorded) constituted cases where it was decided that the child should be remanded, that is detained, until the case was heard by the court. Where the young offender poses a clear danger to the community, such detention is justified. But if, as our interviews indicated, in many states a majority of these young persons are not receiving custodial sentences, then there is reason to believe that for at least some of these cases it is consistent with both the juvenile justice legislation (which states that such detention should be used only as a last resort) and fiscal responsibility (expensive custodial resources are potentially being wasted) that ways be sought to divert young people from inappropriate pre-trial detention.
It is our view that potentially interesting models of this form of diversion can be found in at least three jurisdictions: Queensland, Western Australia and Victoria.
Figure 7: The Western Australia Juvenile Justice System in 1996 (after Cant & Downie 1998)
Figure 8: The juvenile justice system with the addition of bail and remand to the model
In the past, a significant proportion (approx 50 per cent in some years) of young people being held in detention centres on remand were never subsequently sentenced to a period of detention. Bail programs have been provided in Queensland therefore with the aim of diverting some of these young people from detention and to a positive strategy. Their goals are to enable bail to be granted and to enable the youth to comply with bail conditions. Indigenous youth form at least 50 per cent of those held in detention (Conditional Bail Program and Bail Support Service Manuals).
The Queensland Department of Families operates two programs: the Conditional Bail Program and the more recent Youth Bail (Accommodation) Support Service (YBASS).
The following information is taken from the Youth Justice Directorate Bail Support Service Instructional Manual, the YBASS Manual and the Conditional Bail Program Manual.
This program, operating since 1994, forms part of a bail condition. It provides intensive support (up to 32 or even 50 hours per week if necessary) to youth otherwise considered unacceptable bail risks. They may be youth who would not normally be granted bail, or who are likely to fail to comply with bail conditions, given their previous offending histories. Legal representatives usually request the program.
They are given a supportive program, based on their assessed needs, designed to reduce the risk of offending and to assist their compliance with bail conditions (Conditional Bail Manual, p 5).
To qualify for the program, the youth must agree to participate and follow lawful instructions of officers. The program is usually described in the bail undertaking, and failure to participate is a breach of bail.
Programs can be individually tailored or form part of an existing group project, eg skills development course. Accommodation can be arranged but is not part of the program, and funds are not provided for this purpose.
The program is funded through the Youth Justice Program, and is managed by a program coordinator.
In 1999 there was a phase 1 evaluation. It found that the target group had shifted, from youth with poor criminal justice behaviour to many youth with no such history. Indigenous youth figures declined also between 1997 and 1999. Fewer young people were being remanded, but the number of bed nights was increasing. About 20 per cent of potential remandees were diverted from remand, and numbers of remand admissions dropped by this amount.
The target group for this program is youth who are in remand or at significant risk of being placed in remand due to insufficient accommodation stability. The program operates when all other options are exhausted. All eligible youth are accepted, though there is a particular focus on Indigenous youth. The aim is to reduce detention on remand, to facilitate culturally appropriate placement and intervention, and to provide courts with legitimate supported accommodation options. The service seeks to provide stable accommodation while a youth is on remand.
In order to avoid net widening, the program is available only as a last resort, when bail on a youth's own undertaking is unlikely to be granted. The program manages and coordinates accommodation and related support. It does not provide accommodation or support itself. A brokerage model of service delivery is used. Involvement with the service is not a condition of bail, and is voluntary. Forty per cent of all youth in detention on remand are in Brisbane and Ipswich/Logan areas. Townsville, Cairns and Mt Isa have the highest levels of over-representation of Indigenous youth, and services also exist in these areas. For other areas there is a centralised brokerage model.
When a young person aged between 10 and 17 seeks bail in Western Australia, an undertaking must be given by a responsible adult. Bail will not be granted where there is nowhere for the youth to stay, or they are considered a risk to themselves or others, or they have committed a serious offence while on bail. A potential problem occurs when the offender has been arrested for a relatively minor offence for which bail would ordinarily be considered, but because no responsible adult is available to supervise the young offender, the child is placed in remand.
The Ministry of Justice in WA has been concerned enough to carry out two reviews in recent years on issues of juveniles on remand. One of these reviews noted that two-thirds of young offenders remanded in custody did not receive a custodial sentence. The review observed that, Based on this information, it needs to be questioned whether it is necessary for many young people to be remanded in custody, and to determine why this is occurring (WA Ministry of Justice 1999:15). A later report similarly observed that there was a high proportion of young people not receiving bail where that decision seemed to be inappropriate. The report concludes that it is ...surprising that these juveniles could not be bailed to the Supervised Bail Program at the bail hostel, or to some other residential arrangement in the community (WA Ministry of Justice 2001:4). In field interviews with staff in WA, it was pointed out that a major support for their attempts to find alternatives to solve this problem can be found in the juvenile justice legislation itself, since section (7 (h)) of the Young Offenders Act 1994 elaborates principles that provide that:
detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary.
In response to concerns about the number of young people being held in remand, a number of innovative strategies have been adopted as a way of providing for forms of supervised bail in WA. In the Perth metropolitan area, bail coordinators, or liaison officers, may arrange bail, and even in some circumstances act as the responsible adult. As in other jurisdictions (for example, Sydney, NSW), a bail hostel is available where a juvenile offender, otherwise eligible for bail but with no other accommodation, can stay and have their bail conditions supervised by the coordinator of the facility.
The problem of excessive use of pre-trial detention is one that presses down especially hard on the young people of regional Western Australia and Indigenous young people. A response to this problem has been the development of two regional bail facilities, one at Banana Well and the other at Bell Spring (much of the following is derived from documents of the Department of Justice describing the Banana Well program).
The Banana Well juvenile bail facility is the product of an innovative community program, developed by the Department of Justice to address community concerns about the special needs of regional juveniles, in this case Indigenous young people, involved with the justice system. Located in the north of WA (100 kilometres north of Broome), the program was established in December 2000 as a result of the collaboration of Kimberley Department of Justice staff, donations from the community and participation by a range of groups from government, local business and the community. Prior to the introduction of the facility, young people from regional areas who were charged with an offence were transferred to Rangeview Remand Centre in the Perth metropolitan area - as this is the only remand facility for juveniles in the state.
The concept of a supervised bail facility program was developed in response to concerns about transferring regional juveniles on remand to the metropolitan area when the court deemed them eligible for bail but a responsible adult could not be found to sign the bail undertaking and no local facilities were available to house them. The Department of Justice found in its examination of the problem that there were too few juveniles requiring pre-trial detention from this area, and thus a dedicated bail institution could not be justified.
The Buuguk Aboriginal corporation operates the Banana Well Bail Facility on a fee-for-service basis. It provides community guidance, supervision and lodging for young offenders on bail in the West Kimberley region. The facility has effected a significant reduction in costs for the Department of Justice and WA Police Service. More importantly, the facility has a positive impact on the over-representation of Aboriginal youth in the justice system and the long-term social costs of removing these young people from their families and communities and placing them in custodial care. At Banana Well, members of the local community teach juveniles work and life skills, including Aboriginal history and traditions, substance abuse education, trade skills, horticulture, team building, self-management and work ethic. They can also continue their education at the nearby Beagle Bay community.
The WA Department of Justice argues that this facility is the result of a 'community' approach to the problem of unnecessary pre-trial detention, and argued in a recent submission that:
For the community, quality of life is enhanced, as there is a more responsive justice tool that better meets the needs of this unique group of juveniles. It also engenders a greater sense of responsibility and ownership of key community issues. (WA Department of Justice 2001:3)
The Kimberley Supervised Bail Program at Banana Well can supervise six young people, and in the first year housed 22 youths in 27 bail placements. In four cases bail was withdrawn due to failure to meet conditions of bail. The average length of stay was 20 nights, but some youth stayed more than six weeks. Given the success of this program, in July 2001 a second regional bail facility was opened by the WA Department of Justice in Bell Spring near Kununurra.
A child taken into custody must be unconditionally released, or released on bail, or brought before a court or a bail justice, not later than 24 hours after being taken into custody (s 129 Children and Young Persons Act). The Bail Act 1977 sets out the circumstances in which bail is to be considered (s 4), and the types of conditions on which bail may be granted (s 5).
In the late 1980s and early 1990s, those involved with the juvenile justice system (including advisers outside of the agencies themselves) became concerned about what were seen as exceptionally and unjustifiably large numbers of young offenders being held on remand. Key stakeholders were consulted and the following bail facilitation strategies were implemented to ensure that the legislation was adhered to and that young people were diverted from remand in custody wherever appropriate:
The Juvenile Justice Program now promotes bail for young people charged with offences, except when those offences are of a very serious nature, or the young person is assessed as unsuitable for bail.
This aims to remove or limit barriers to granting bail. It includes assisting the young person to find suitable accommodation, referring a young person to a bail advocate, and advising a child protection worker, where appropriate. This work can be carried out before police seek remand, during a remand hearing or after admission to remand. The Court Advice Service is available at all Children's Court hearings to give this advice as needed. After-hours services are also available.
This service provides advice to police, courts or bail justices about whether a young person should receive bail, and whether suitable supports are available for them. When this is provided to a court, it is part of the wider consideration of whether bail should be given. The Department of Human Services may be asked to provide bail supervision by a court.
To provide some sense of the effectiveness of these steps in Victoria, in April 2002, of the total of 71 young people in custody, only 12 were on remand. Thus, while some other states have whole institutions dedicated to young offenders on remand, by strict adherence to eligibility criteria, and the provision of bail options, a bare two dozen are deemed serious enough cases to require pre-trial detention in Victoria. In other words, diversion can sometimes take systemic forms. To provide a contrast to these data regarding offenders in custody, in Victoria in December 2001 there were 657 young people on community-based orders. By systematically altering the way cases flow through the process of juvenile justice, in essence through organisational strategies to reduce the flow into remand, a large volume of cases which in other states would flow into remand are instead diverted to other 'pathways' by which cases flow through the Victorian system.
This report contends that one of the most direct ways of reducing the numbers of young offenders in detention is to find non-custodial alternatives for those who do not seem to warrant pre-trial detention. The Victorian approach is a broad-ranging attempt to encourage strict adherence to the principle that remand should be used only as a last resort. The alternatives being explored in Western Australia and Queensland also demonstrate that a variety of ways can be found to restrict remand numbers, including providing innovative forms of residential care for those for whom placement in detention may be primarily a product of difficulties in locating responsible family members or adequate accommodation. It is worth noting that even small gains here can have the direct consequence of reducing significantly the numbers of juveniles in detention, which consistently proves to be the most costly option available in terms of disposition of juvenile offenders.
Within the current juvenile justice practices in Australia, an overwhelming proportion of the diversion of offenders from formal processing is taken up with either police cautioning or group conferences. Both of these major forms of diversion are found in all Australian jurisdictions. However, other important approaches to diversion can be found in individual forms within one or another of the states or territories, and any adequate accounting of juvenile diversion in Australia should address at least some of these. In the following discussion, a number of different approaches to diversion programming are presented. In general, these share certain characteristics. They tend to be located at the front end of the justice system, or at least they are available for young persons at an early stage of the involvement in the justice system. Most of these programs, even when their support is derived from justice agencies, attempt to position themselves outside of the system in the sense that participation in their activities is voluntary, and there are no implications for participants involved in the program in terms of consequences of further justice system action. These programs are therefore consistent with approaches to diversion which call for a 'diversion to a program' rather than 'diversion out of the system'. Most attempt to bring to the situation community resources that are found outside of the justice system. All have been nominated by those in their individual states as examples of best practice in juvenile diversion.
The Killara Youth Support Service was originally developed in Western Australia, and has subsequently been adopted in a modified form in Brisbane (where it is known as the Youth and Family Support Service - YFSS). The Killara program is a distinctive diversion program. Police send to Killara the names of all young offenders who receive a caution in the extended metropolitan Perth region, and Killara in turn writes to each and informs them that their services are available. Importantly, the kinds of services offered by the program are quite diverse. For example, the program brochure provides the following description of the kinds of young people who might need Killara's help:
Killara can help teenagers and families who are dealing with youth problems such as early or minor offending; parent/child conflict, involvement in drug and alcohol use; school problems such as truanting; rebelling against normal family and social rules; running away from home, or mixing with the wrong crowd.
Killara is primarily a counselling service (both by telephone and home) that is free, and that operates with extended hours. The case workers work toward identifying issues of concern to the young person and their family, provide referrals to other programs and services, and offer strategies of behavioural management. The involvement of young people, and their families where that occurs, is voluntary. Further, there is a deliberate attempt to provide a service that is seen by the clients as 'disconnected' from the police.
Similarly, the aim of the YFSS in Brisbane is to provide a short-term (no more than three months, ideally) intensive early intervention service to young people (aged 10 to 17) at risk. The service runs seven days a week (including public holidays) and operates from 10am until midnight. For more immediate (or crisis) situations, the service tries to respond on the same day (ideally, the same half day), and for less immediate issues within three days. The service does not have a physical location where young people can attend, such as a 'drop-in' centre (although the staff are based in an office in central Brisbane along with the community conference coordination), and all contact with clients is done on an outreach basis. While the young people are seen as the primary clients, and services provided therefore centre on addressing their needs, there is a strong focus on engaging the family and community.
The Killara program has been functioning for over a decade, but has experienced rather dramatic growth in recent years (with a total of 9301 referrals in the most recent completed year, 2000-01 - more than double the 4229 in 1994-95). Slightly more than two-thirds (70 per cent) of these referrals to Killara are from the lists of young people cautioned by police, and an additional 15 per cent are referred directly by police. A further 12 per cent of referrals come directly from parents. Roughly 2 per cent are 'other referrals' and 1 per cent are self-referrals from young people themselves. This pattern of referral sources suggests that the program now functions in a rather complex way in regard to diversion. That is, for the majority of those in the program (70 per cent + 15 per cent), the referrals represent a form of 'diversion to a program' located at the very front end of the juvenile justice system, these cases being diverted by the police. At the same time, a reasonable number of clients come to the agency either through parental or self-referral, suggesting that the program serves a prevention as well as a diversion function.
Unfortunately, the Brisbane program is too new for established comparable data to be available, but it has also positioned itself to serve a similar combination of diversion and prevention functions. The Brisbane service has been operating for just over a year and in that time it has accepted over 370 referrals. Preliminary data suggest that only one-third of the referrals are coming from sources within the juvenile justice system, so that a majority of the flow into the program is coming from self-referrals, referrals by parents or referrals by agencies outside the justice system. These statistics suggest that the Brisbane program is also serving a prevention as well as a diversion function. Significantly, the Brisbane service does not see young people who should be or are subject to statutory child protection or youth justice interventions.
One way to convey the way these programs operate is to provide a case study from the files of one of these agencies, beginning in this instance with a case study from Killara.
Billy is a young male (age 15) who received a written caution from the police after he had been apprehended for disorderly conduct (it was his second caution, the first having been for possession of a smoking implement). The police contacted Killara for assistance, as they saw other worrisome signs in the case: Billy was living on his own (police were unable to locate a responsible adult at his residence), many young people frequented the house, and there were numerous complaints from neighbours about noisy parties and anti-social behaviour. Killara contacted the mother at her north-eastern Perth address, offering assistance. Upon receipt of the letter, the mother contacted Killara. There had been some amount of family turmoil with the parents separating (and father returning overseas), and Billy refused to live with the mother and her new partner (because of conflicts with the partner) who were now running a hotel in the north-eastern area. Billy was refusing to attend school or look for work, and the mother was concerned that the boy might be using drugs and hanging out with troublesome peers.
A Killara case worker visited the house where Billy was living, and initially Billy was reluctant to cooperate, but finally agreed to meet with the case worker in a few days to talk about issues. In later conversations, Billy acknowledged that things were getting a bit out of control at his house, including friends using drugs on the premises. It was clear that Billy was having trouble looking after himself, but he refused to live with his mother in the country pub. While at the time he was not involved in any structured activity, the case worker established that Billy had a strong interest in computers and technology.
The case worker and Billy moved toward an agreement whereby the case worker would assist Billy in obtaining work experience in the computer field and would talk with his parents about their problems in an attempt to mediate between Billy and his mother, and in return Billy would begin to discourage local youth from coming to his house, and would attend counselling to address his anger and depression. The mother also agreed that her son needed her support, and said she would visit monthly and ring regularly, and she would as well provide financial support for Billy's return to part-time education.
As a result of these steps, Billy obtained a work experience position with a computer company that was arranged through a local youth agency. His mother agreed that he needed more supervised and supported accommodation and arranged for Billy to move in with an older local youth who was looking for a flatmate. Billy also attended counselling.
Following these initial steps, Billy was offered a paid traineeship with the computer company because of his performance in the work experience role. Billy states that he feels safer in the supported accommodation arranged for him by his mother, and believes that the counselling has assisted in developing a better relationship with his mother. Further, there has been no subsequent contact with the police, nor any indication that he has been in further trouble.
This case study involves a 14-year-old non-Indigenous female. She was caught shoplifting twice, with the first incident occurring approximately one year prior to the second, most-recent incident. The parents were informed of the service by staff from the Boondall Police Juvenile Aid Bureau. Her father made the referral phone call to the service.
The service provided the family and young person with counselling and mediation in the family home. The strengths and goals of both the young person and family were identified. Aspects of offending behaviour were explored (antecedents, motivating factors, past successes in resisting temptation). The service also encouraged improved management of young persons' behaviour by parents.
Since the referral to the service, the young person has not offended and is feeling confident that she will not re-offend again. The family are communicating and resolving conflict more successfully. The parents are engaging in improved behaviour management.
These two programs are distinctively situated in terms of their relationship to the juvenile justice system. While both have a working relationship with local police, the contact between the young person and the program is separated from police involvement. Killara thus is able to claim to its young client base that the service is entirely voluntary, yet at the same time it can serve as a link between families, young people and the police. It is explicitly designed as a 'front end' option in order to 'tackle any problems before they become really serious'.
Who refers young people into the program? The referral process in the case of the youth support systems is both interesting and complicated. While there can be a 'connection' between the police and the program, the referrals are not direct in the sense that young people are sent by the police into the program. Rather, as in the case of Killara, young people who have received cautions are approached by the program. More importantly, it is to be expected that as these programs gain visibility within the communities, an increasing proportion of their referrals will come from non-justice system sources, including from families in distress, schools, other agencies having contact with young people (recreation, health and housing, for example), and even young people themselves.
Who are referred? Consistent with that referral process, over time it can be expected that there will be a mix of non-offenders and primarily first time offenders who are involved in these youth support services programs. The programs, as noted above, aim their services at a broad range of youth problems, many falling outside of strictly criminal justice concerns (school problems, family conflicts, drug and alcohol abuse etc). This widened range of referrals provides some of the best evidence not only of the program's acceptance by the community, but also of its ability to function as a diversionary program outside the confines of traditional juvenile justice programs.
Who runs the program? It is this important question that poses one of the greatest potential challenges for the youth support services programs. While in both cases the units have clear independence from other elements of the juvenile justice system, both in fact receive their funding from the state juvenile justice agency, and the workers in both are employees of that agency. While in the course of the present field work the separate function of the unit was clear, the budgetary and administrative links create a possibility for forms of convergence with traditional justice system programs, sometimes very subtle in nature, that require some vigilance to prevent.
What are the objectives of the program? The aims of the youth support service schemes are in the first instance to provide outreach support for young people who are at risk of becoming involved with the criminal justice system. They cast their net widely, and ultimately aim to provide a range of outreach and counselling services on a seven days per week, extended-hour basis. These programs serve both as a diversion program (since there are referrals from police), but also as a form of youth crime prevention since the self- and family referrals may occur independently of any contact with a juvenile justice agency.
Are there any conditions of referral? A distinctive feature of the youth support service programs is that there are no formal conditions established with the referral, since the services are on a totally voluntary basis. In this way they differ from programs such as cautioning and conferencing outlined above.
What are the consequences for failure of the diversion? Since these programs are offered outside the formal juvenile justice system, and on a voluntary basis, there can be no 'failure' in the sense of not satisfactorily meeting conditions of the referral. However, given the experience of similar programs in the United States, over time staff in these units will need to be aware of the potential problems that result from the subtle 'feedback loops' that can occur between program staff and police. As a consequence of the importance of the close link between police and these programs, a situation may evolve in which unintended information flows from program staff to police that may have negative consequences for young offenders in later contacts with the police.
What is the evidence? Unfortunately, neither of these programs has yet been formally evaluated. However, the Brisbane service is the subject of an ongoing comprehensive process evaluation. It will also be the subject of an impact evaluation in 2003. Given the potential attractiveness of this model for reaching 'at risk' young people at a very early point of intervention, and in ways that attempt to avoid the inherent coerciveness that is found deeper in the juvenile justice system, it will be important to know the impact these programs have both on the clients who are being served (including, but not exclusively, in terms of re-offending behaviour) and upon the patterns of referral that occur within other parts of the juvenile justice system.
The CYPRASS (Compaspe Young Persons Resource and Support Scheme) is based in Echuca, Victoria, on the Victoria-New South Wales border. The town of Echuca has a population of approximately 10,000, although the total region has about 20,000 people. There is a significant Aboriginal community, both in the town centre and at Cummeragunja Mission, approximately 40 kilometres away.
This scheme was formally opened on 6 March 2002 in Echuca and is just beginning to move from its conceptual to implementation stages. A key tenet of the scheme is the coordination of services. CYPRASS is not an independent agency, and is not funded, but rather it is a point of networking for the existing agencies, working within the funding of the existing agencies.
It aims to ensure that high-risk and offending youth of the district obtain early intervention strategies and programs in a coordinated manner. The aim is also to find a better alternative for such youth than children's court. The agencies involved include the local council, the Victoria Police, schools (primary and secondary), local service providers, businesses, the Magistrates Court and local employment agencies.
As described in the program documents, the CYPRASS model aims to link all involved agencies to attain an integrated and holistic community response to the needs of the young people of the Campaspe region. The program is thereby designed to touch four main features of a young person's life: the family, school/work, peer group and neighbourhood.
The model aims to work as a diversion process from police and court contacts, referring young people to the appropriate community agency. This includes drug and alcohol counselling, employment placement or traineeship programs, mentoring, and other services. Family conferencing is also being planned but had not commenced operation at the time of the site visit.
Figure 9: The model of operation of the CYPRASS program
Due to the newness of the program, no formal assessment has been implemented. Insufficient funds are available to finance such an assessment. However, it is intended that the program will be reviewed after 12 months through case monitoring and interviews with the police and local community members.
One part of the CYPRASS program that we were particularly interested in is an employment placement program, known informally as the Perricoota Project ('Perricoota' being the name of the local wine growing region). This project has been developed and managed by the local station youth officer (SYO), whose family has resided in the region since the 1860s. The SYO spends three days each week working with both Indigenous and non-Indigenous youth in this project. All the participants had offended at some stage, and are considered to be at serious risk of further offending. All of the participants have multiple social problems, including criminal histories, drug and alcohol dependence (marijuana featuring strongly), and disrupted family environments (including domestic violence).
The idea of the project is that the SYO finds local employers in certain industries who are prepared to train young people for a long enough period to enable them to move on to genuine and satisfying careers in their local community. The participants receive formal training that can result in recognised qualifications. Hospitality and viticulture are the main targets at present. Other local businesses also support the projects, meeting some of the young persons' needs and providing rewards, such as theatre passes. A mentor whom the young person respects closely supervises each young person and teaches them the necessary skills in each industry.
The viticulture program occurs at a local winery, which is a relatively new business venture. The owner of the winery is prepared to have about eight young men work at various aspects of the winery, including the vineyards and the wine making factory, and possibly the sales side as well. These young men enjoyed working on the vines, and proudly showed us the development on the 'sewerage site'. This was a 60-acre lot that had been cleared, planted with vines and fenced - all by the project's young people. They are funded through a local employment service.
The hospitality side of the project occurs through a local motel/health spa, where the young people are trained in all aspects of the hospitality industry. Interestingly, the venue for the hospitality traineeship, upon hearing of the success with the winery, approached the SYO to set up a similar hospitality program. This suggests a degree of community acceptance of and participation in the process. The fact that the region has a surplus of employment opportunities for young people helps both by providing the job openings and by motivating the local employers to become part of the program.
One of the strengths of the CYPRASS program is that it is a whole of community response to the problem of at-risk youth. It allows referrers and service providers to be informed about the extent of the services available in the area, and thus also to identify gaps in the services. Those involved in the project have differing opinions as to whether such a program could be successful in the context of a larger area, such as a major city. However, it is apparent that the size and cohesion of the community is essential to its successful functioning. The fact that all of the key players are already well known to each other has helped the development of the program. Whilst many of the problems faced by the program are the same as those in cities, there are also specific country concerns. These include turnover of personnel, burn-out, limited resources, and limited availability of skilled staff.
Who refers young people to the program? The program is designed to have multiple referral sources, the most important being police contact through the station youth officer (specifically after participants' second contact with the police). Other referral sources include schools, other community service agencies and parents.
Who are referred? High-risk adolescents are referred to the program. The program defines this as follows:
An adolescent posing a serious risk to themselves or the community and whose risk is likely to increase without intervention. High risk behaviours may be of a chronic or crisis nature.
Adolescents between the ages of 10-18 who are seen as high risk due to issues such as mental health, substance use, accommodation, domestic violence, family conflict, physical health, peer relationship breakdowns, anti social behaviour or a lack of supervision support.
Who runs the program? The program is run by a coalition of the Campaspe Shire Council, the Victoria Police, local community and Koori service agencies and workers, local primary and secondary schools and local businesses. The program is, essentially, a referral service, so that the individual interventions are run by a number of different services.
What are the objectives of the program? According to the program documentation, the objectives for the CYPRASS program are to:
The objectives for the high-risk adolescent referral component of the program are to:
Are there any conditions of referral? There do not seem to be any conditions of referral, other than that the referral - if by police - cannot be the result of the young person's first police contact.
What are the consequences for failure of the diversion? There are no formal legal repercussions for failure to complete any component of the program. Attendance at the program is not mandated as part of a court order (at least, has not been to date), and at most the police can strongly encourage the young person to attend.
What is the evidence? As yet, there has been no formal evaluation of the program. However, an evaluation framework was built into the program from the beginning, and an evaluation is planned after it has been operating for 12 months (mid-2003).
Two arts-based programs are included in this report, for several reasons:
Arts-based programs for high-risk youth, who are either offenders on current orders or young people who have had repeated contact with the juvenile and criminal justice systems, cover the full range of arts practice. This includes visual arts and crafts, performing arts, literature, graphic arts and music.
Port Augusta is a regional centre on the edge of the desert in the more remote areas of South Australia. It has a large Indigenous population with poor health status, high levels of unemployment, family violence and substance abuse. These can be regarded as precursors to high levels of school truancy and drop-out, homelessness and involvement in (usually minor) crime by young offenders. Experiences of racism both by individuals in the community and authority figures are not uncommon.
The Metalworx program is part of the SPY - Special Programs for Youth - series of initiatives. It has been funded through a Hindmarsh Industrial Training (HIT) grant that provided for the initial development of the mobile service and currently funds two workers (0.6 full-time equivalent) and all consumables. This funding concludes at the end of the 2001-02 financial year and a new funding source must be identified if the program is to continue. Two researchers visited the Metalworx program. They conducted interviews with the staff, including the two facilitators and youth workers from the Department of Family and Youth Services (FAYS), held informal discussions with participants and observed the program operating for one day. At the time of interview, Metalworx operated in five metropolitan and regional centres in Adelaide and South Australia. Whilst in Adelaide it is a component of an integrated series of programs operating three to four days per week, in Port Augusta the program operated more on a stand-alone basis.
A mobile trailer, containing all the tools, equipment and some materials, is towed by car between the centres where the Metalworx program is offered, one day per week. Other materials are stored in each centre. A shed with mains power is required to operate the equipment safely. Of the two workers who initiated the program, one is a skilled metalwork artist who has been running his own business for many years designing and making creative, innovative and useful art works with metal as the primary medium. The other is a youth worker who, through several years on the program, has also become skilled at creative metal work. The young people engaged in the program have three varied but set tasks to complete before they are regarded as sufficiently skilled to design and make their own creations. They must make a table top candelabra, a tall multiple candle-style candelabra and a table. The table-tops lend themselves to creative ceramic and painted designs.
The majority of young people attending the program (10-17 on any day) are Aboriginal. They are all offenders on community service orders. Whilst girls are welcomed by the two program facilitators, the majority of attendees are boys. Participants are referred to the program through Family and Youth Services, which also supports the program with additional workers, mentors, transport for participants to and from the program and lunch on the day the program operates. The program was set up as an arts program because the traditional welding program with a vocational focus failed to attract young people. The young people were therefore failing to meet the requirements of their community service orders.
The strengths of this program are:
Voluntarism - The young people, although supported by workers and program staff, choose whether or not to attend this program, how often and the level of their commitment.
Flexibility - Consistency of attendance, whilst encouraged, is not enforced and there are no penalties. Variability in commitment and skill level, both within the individual and across the group, is catered for. Flexibility in projects from short term (a few hours) to long term (several weeks) poses no difficulties.
Quality and skills - There is a strong emphasis on using quality equipment and materials and producing a well-made and finished product of which young people can be proud. These products have been sold at various outlets and shown to have commercial appeal and value. Raised self-esteem, self-belief and pride were identified as clear outcomes. Mathematical skills were regarded as by-products of the precise nature of calculation and measurement required, especially when participants invented their own designs. This process was also regarded as building problem-solving skills as a young person negotiated their way from an idea through the practical problems of bringing that idea into reality. The quality of the two facilitators, in terms of their artistic imagination and skill and their ability to work comfortably on a non-judgmental easy-going basis with the client group, was regarded as crucial.
Occupational health and safety - This is one of the primary focuses of the two facilitators. The equipment is potentially dangerous (welders, electric saws, drills etc) and young people learn from the start how to use all tools and equipment safely to protect themselves and others. This has vocational potential for some participants.
Workshop environment - Whilst the program operates on only one day a week, it introduces young people to a workshop environment in a positive, creative context. They learn workshop expectations and workplace skills. Some young people have expressed an interest from this experience in pursuing employment opportunities within similar work environments.
Fun and attractive - The program is fun and attractive to the target population. This is especially significant for Indigenous young people who found many programs inappropriate.
Outcome focus - The program has been designed for short-term, quick outcomes and for longer term projects requiring greater commitment over time. On the first day of the program participants leave with a finished product to take home. After several weeks of finishing one-day projects, interviewees reported that participants would often design something quite complex, or decide to mosaic a table top. These projects would take weeks to complete.
Indications of the success of this program are the high number of young people regularly attending the program, the majority successfully completing their community service orders, and the number who choose to continue attending the program after completion of their orders. Whilst there have been no specific measures of recidivism in the client group, interviewees reported a period when the program ran for three days a week, when offending seemed to fall away. The interviewees attributed this success to the creative arts-based nature of the program.
The Creative Youth Initiatives (CYI) centre was established by Sydney City Mission in Surry Hills, Sydney, in January 1993. Funding for CYI is dependent on the TAFE outreach program and non-governmental sources and sponsors, such as Deutsche Bank and donations. It services 16-24-year-olds who are either homeless or at risk of becoming homeless, many of whom have offending histories. These young people present with complex needs often characterised by heavy substance use and mental health issues. Up to 60 students from varied cultural backgrounds attend a variety of programs for three days each week. The program is open to both young men and young women. However, as with the Metalworx program, the majority of those attending are young men.
Young people are referred to the program through a range of youth services, through juvenile and criminal justice workers and by word of mouth and self-referral. Whilst the choice to attend a program is voluntary, once a commitment is made, participants are expected to attend each session and to be self-motivated.
The two ongoing programs that run 6-12 month modules are:
Sounds of the Street: a music education program. Using their own life narrative as the source of creative inspiration, participants learn singing, playing instruments, song writing and recording of their original music using leading technology. Students leave the course having recorded and produced a CD and cassette of their work.
Artworks: a visual arts program covering painting, drawing, printmaking, sculpture and a variety of other visual mediums. Participants in this program have been successful in receiving commissions and completing other commercial art works and murals for which they get paid. Exhibitions of their artworks are held regularly.
In addition to these programs, short courses of around eleven weeks are offered when funds are available, mostly in photography, creative writing, drama and a range of media programs, including computer graphics, internet and desktop publishing and video production.
The focus of all these programs is participants' particular life journey. However, the focus is not necessarily on 'negative' or 'problem behaviours'. Rather it is on acknowledging personal knowledge and strengths, and building on competencies. People associated with the program have reported that CYI graduates demonstrate a rekindled interest in learning, self-esteem and self-awareness, improved communication skills and enhanced literacy and numeracy - achieved in an enjoyable, creative learning environment. The arts medium was reported as offering the opportunity to vent feelings, view and review life experiences and life choices in a safe, imaginative space. Participants were reported as learning about their own capabilities and as having the opportunity to explore their identity, feelings and personal issues with professional counselling and supervision available on site. Participants are reported to learn to think creatively, to practise problem-solving skills and to practise and enhance communication and other key interpersonal skills.
CYI operates within an integrated service and across a range of youth-specific services, thus enabling appropriate referrals for the multiple needs of clients that often come to light through their creative endeavours. These include mental health services, basic literacy and numeracy, and financial and accommodation services.
For some of the modules in the Sounds of the Street program, young people receive credit towards a recognised TAFE qualification. Staff at CYI are trying (and have been for some time) to expand accreditation to all the programs.
As with the Metalworx program, the CYI programs have demonstrated attractiveness to an otherwise difficult to engage population, with many participants making a long-term and sustained commitment. The variety of styles of expression and art-forms have been important to this process.
Many have returned to act as mentors and role models for new recruits. The arts offer an active participatory model of learning which appears to be attractive to the target group and facilitators follow adult learning model principles. The emphasis on an outcome that receives a public exposure - whether it is a CD, a sculpture or other form of artwork, a performance or some other creative product - is important in building self-esteem and recognition and breaking down isolation and marginalisation.
Other key strengths of this program in terms of reported outcomes for young people are:
The CYI series of programs offers a model of relatively intensive, ongoing, service delivery and support to marginalised at-risk young people. It has proven to be attractive to the clients, engaging them in activities that have potential for wide-ranging, long-term positive outcomes.
There is a rapidly developing body of national and international literature on the value of arts-based practice with at-risk and offending youthful populations. A program in the Northern Territory also indicates the potential contribution of arts-based programs to a restorative justice initiative. Governments and universities in the United States and the United Kingdom are currently expending significant funds on research in this area. The available research findings suggest that there is significant potential for the expansion of such programs for young people being diverted from the formal juvenile justice system.
Results of prison-based studies indicate some potential benefits of arts-based programs. A US study that investigated the effects of teaching professional theatre techniques to imprisoned males and ex-offenders, on release, found that participation in educational programs more than doubled and academic skills showed marked improvement (Melnick 1984). Significantly reduced recidivism rates were recorded with the majority of participants moving into other education or full-time employment on release. An international overview of prison educational programs identified arts-based programs as the most successful (Sutton 1994). They were reported to have raised skills levels (literacy, numeracy and social) and to have reduced recidivism rates. Arts-based programs have also been found to be effective as a diversionary alternative to imprisonment (Trounstine 1999). Participants complied with court orders, staying out of prison with reduced recidivism rates and the attainment of useful educational and employment skills.
An Australia-based study of community-based arts interventions with young offenders examined a theatre program in Tasmania over an 18-month period (Walters 1997). This study found that participants, both young men and women, uncharacteristically complied with their court orders, reduced offending (which ceased altogether in most cases after a 12-month period), established stable networks and housing, and reduced or ceased substance abuse - and many moved back into education or training or began employment (see also Williams 1995; Marsden and Thiele 2000; Jones 2000; Telford 1992).
A concern sometimes expressed about arts-based programs is that, while they may successfully occupy the participants for the period of the program, the longer term benefits are less well established. However, Heath & Soep (1998:9-16) conducted a 10-year longitudinal comparative analysis comparing the outcomes for high-risk adolescents across participation in arts-based sites, sporting sites and community service sites in their out-of-school hours. The study was conducted across 34 urban and rural locations. Participants at arts-based sites were significantly more likely than the national average to:
As well as there being benefits for the young person, some research suggests positive outcomes for the community (SIAP 1997). Consistent with this observation, Ending Offending - Our Message, an arts-based program run by Northern Territory Correctional Services, is founded on fundamental principles of restorative justice. The program involves an ongoing process of consultation and involvement of Aboriginal communities. The program coordinators note the role of this arts-based program in the process of restitution and reparation to the community. Through the mediums of art and music, participants share their stories about drinking, offending and culture with their victims, their families and their community, thereby facilitating a process of mutual discourse between the prisoner and their home community. Profits from the sale of art products are redirected into community-based projects. An evaluation of the program is under way, but to date a range of positive outcomes have been reported, including vastly increased participation in education programs (Hunter 1999 & 2000).
Consistent with the observations of the Northern Territory program, initial findings of UK research are that the arts can contribute to neighbourhood renewal and make a real difference to health, crime, employment and education in deprived communities (Jermyn 2001; Bridgwood 2002).
In the late 1990s the Los Angeles Department of Cultural Affairs completed three reports that investigated the effectiveness of visual arts interventions in promoting positive change in at-risk youth. The researchers collected and analysed interview data from 35 arts interventions. A series of studies in Los Angeles identified five features of arts-based programs for at-risk youth as being associated with pro-social development (Stone, Bikson, Moini & McArthur 1999; Stone, Moini, Law & McArthur 1997; Law & McArthur 1996):
Who refers young people into the program? These arts programs have different sources of referral.
Who are referred? In Port Augusta the participants all have histories of offending. The Sydney program, in contrast, provides services to young persons who are either homeless or at risk of being homeless, and it is observed that many have offending histories. The two, then, draw upon somewhat different client bases, located at differing points of the justice system.
Who runs the program? The Metalworx program is part of the Special Programs for Youth initiative that is funded by the Department of Family and Youth Services (the juvenile justice agency in South Australia). The Sydney program was established by a non-government agency, the Sydney City Mission, but also depends upon support from TAFE and other private sources (such as Deutsche Bank).
What are the objectives of the program? Both programs have a broad range of objectives that include arts-based skills training.
Are there any conditions of referral? Some of the clients of the Metalworx program are on community-based orders; others are voluntary referrals. The clients of the CYI are all voluntary.
What is the evidence? Internationally there is a growing body of research documenting the broad-ranging positive outcomes from arts-based programs for the participants and their communities (see section above).
Issues of Aboriginality loom large in most discussions of juvenile justice in Australia, and are of central concern to any analysis of diversion. In part, this is because of the long-standing concern about the over-representation of Indigenous youth in the criminal justice system, especially in detention. It also reflects the particular history of the conferencing movement and its concern for providing some place for Indigenous justice in its process. One of the major claims made for restorative justice generally, and conferencing in particular, is that it has the potential to mesh well with the needs and interests of Indigenous peoples. Partially these claims rest on the importance of the early developments of conferencing in New Zealand, and the centrality of concerns there to meet the needs of the Maori community. At the same time, it is essential to observe that those involved in the program in New Zealand have always been clear about the difference between having programs with some concern for being 'culturally appropriate', which is what was intended in New Zealand, and any attempt being made to re-establish the Indigenous model of pre-European times, which they did not see as either possible or suitable (Maxwell and Morris 1993:4). Daly (2001) argues that current approaches to restorative justice attempt to be flexible and accommodating toward cultural differences, rather than being Indigenous justice practices, and that conferencing is:
...better understood as a fragmented justice form: it splices white, bureaucratic forms of justice with elements of informal justice that may include non-white (or non-Western) values or methods of judgement. (Daly 2001:65)
What is the actual record of attempts at diversion for Indigenous young people in Australia? This is difficult to establish, as the critical and close-grained research simply has not been done. The evidence that exists suggests there is reason for concern. The statistics on the detention of Indigenous young offenders show that on 31 December 2000 the 239 Indigenous offenders in detention in Australia represented 41 per cent of all juveniles held in detention, a rate of detention 16 times higher than that for non-Indigenous youths. At the same time, there seems to be some reversal of the trend during 1993-97 when the rate of detention for Indigenous juveniles was increasing, so that from 1998 to the end of 2000 the rate declined much faster than did the rate for non-Indigenous young people.
It is difficult to relate such figures to the present concern for diversion. It is of interest, however, that the overall rate of juvenile detention has been dropping consistently since the 1980s, declining from 65 per 100,000 in 1981 to 32 per 100,000 in 2000. This suggests a long-term trend to decreasing levels of incarceration in Australia.
There is an urgent need for good data about what impact, if any, diversion has had upon the trends relating to Indigenous young offenders. Only one state, South Australia, has a comprehensive system of data collection across the total reach of the juvenile justice system, thus permitting some plotting of data that would help interrogate the question at issue here. In South Australia in recent years, the proportion of Indigenous juveniles detained has been below the national figures (28 per cent in 1997 and 27 per cent in 2000). These rates were higher, however, than the rates for apprehensions (11 per cent Indigenous in 1997, 15 per cent in 2000) or the rates for court appearance (16 per cent Indigenous in 1997, 20 per cent in 2000). Consistent with the claims of writers such as Cunneen, the proportion of Indigenous offenders formally cautioned in South Australia tends to be lower than the apprehension rates (ranging from 4 per cent in 1997 to 8 per cent in 2000). That is, at the front end of the juvenile justice system, Indigenous offenders are less likely to be diverted. On the other hand, when it comes to conferences, the proportion of Indigenous participants has been reasonably constant at, or just below, 15 per cent over the years from 1997 to 2000. While no other jurisdiction has the range of data found in South Australia, in the Northern Territory it is at least possible to plot the relative chances of Indigenous and non-Indigenous young people being diverted through either cautions or conferences. According to data provided to this project in the course of our field work, in the 2000-01 year, of all Indigenous juvenile offenders apprehended, 28 per cent were given verbal warnings (compared with 32 per cent of non-Indigenous juveniles), 20 per cent were given written warnings (compared to 20 per cent for non-Indigenous juveniles), 23 per cent were given a formal caution (19 per cent for non-Indigenous), and 4 per cent of both Indigenous and non-Indigenous juveniles were offered a conference.
In the Northern Territory, then, the data suggests that, while there might be a very slight difference at the lowest level of cautioning (a difference consistent with what is observed in South Australia), in general, for this period, Indigenous and non-Indigenous offenders are being diverted at almost identical levels. In Western Australia, too, similar data indicate that in the metropolitan area there is a lower proportion of Indigenous juveniles among the offenders referred to cautions (11 per cent), compared to the somewhat higher proportions (between 16 and 19 per cent) found in the groups referred to the conference program.
Unfortunately, at this point we have no further data to probe these important questions. When Zellerer and Cunneen (2001:253) reviewed data for their paper based on the situation in the late 1990s, they could point out correctly that the period that saw a significant rise in the level of incarceration of Aboriginal young people (it increased by 55 per cent between 1993 and 1997) was the very time when jurisdictions throughout Australia have been introducing various conferencing mechanisms. By the same logic, it may be that the strong downturn in the rate of Indigenous detention has something to do with the fact that stronger mechanisms of diversion have come on line in jurisdictions in the late 1990s (for example, the Northern Territory and New South Wales). In South Australia, for example, since 1997 there has been a consistent decline in the numbers of young offenders both appearing in court and being detained. These downward trends may indicate an overall effect of the implementation of diversion programs generally, but there still remain disproportionately higher levels of Indigenous youth processed at these deeper points in the juvenile justice system. Put another way, diversion may be reducing the numbers of Indigenous and non-Indigenous offenders appearing both in courts and detention, but it is not having a distinct effect on the Indigenous population. Unfortunately, the existing data available to us are not strong enough to carry us much beyond these tentative observations.
While there is hope to be found in the recent downward trends in the high rate of detention of Indigenous young people, it would seem unarguable that one of the reasons to continue to support programs of diversion is to find alternative modes of dealing with the problems posed by Indigenous juvenile offenders which remove them from the juvenile justice system at a point prior to either detention or a court hearing. The creation of a Juvenile Diversion Unit within the Northern Territory Police is perhaps the clearest example of precisely such a process. Other steps can have a very rapid effect on detention rates, especially those directed at the bail/remand problem. One approach that might be considered, as identified above, is that taken in Victoria where both law and regulation are drawn upon to assure that remand is used only as a last resort, and where the circumstances of the case clearly require the pre-trial detention of the individual (keeping in mind that a consistent observation made to us in jurisdictions with higher levels of offenders on remand was that often a majority would not receive a detention disposition after adjudication of their case by the court).
Further, there have been innovative attempts to provide alternatives to placement in a remand facility, as in the Banana Well and Bell Spring examples in Western Australia, and the provision of a special bail hostel facility ('Jabiah') in Sydney. Other inventive ideas include the Streetbeat program operated by the South Sydney Youth Services, which consists of a bus pick-up service which operates late at night and collects young people from the streets and delivers them home or to a safe place. It is available in particular to Indigenous youths in the Redfern and Waterloo areas (staff informed us that 90 per cent of the clients were Aboriginal), and has both a safety/child protection and a crime prevention focus. By removing the juveniles from the streets there is an avoidance of the kinds of situations that might later result in a police encounter, and by providing a safe place for the youths, the common problem is avoided whereby a young person is detained on remand because of not being able to find a responsible family member. These approaches suggest a number of possible avenues whereby innovative approaches might reduce the number of Indigenous young offenders in detention through the simple step of reducing the flow into what appears often to be unnecessary, and unjustifiable, pre-trial detention.
The record also suggests that more consideration needs to be given to issues relating to the major forms of diversion in Australia - that is, police cautioning and conferencing. Regarding police cautioning, the fragmentary data (reviewed above) suggests that there is under-representation of Indigenous young people at this earliest stage of diversion. More research needs to be done to establish whether this is the case and, if so, what factors are contributing to this outcome. The recent Northern Territory data suggests that it is possible to provide a wide range of diversion options that successfully reach Indigenous young offenders (bearing in mind that, while there was an under-representation of Aboriginal juveniles at the verbal warning stage, the difference was very small). The importance of action at the cautioning stage is, of course, that this is the stage at which by far the most juveniles are diverted out of the system, and any change here theoretically could have a very large 'follow-on' effect in terms of offenders who would thereby not flow deeper into the system.
Recent research in Western Australia shows that, in steps taken with regard to the cautioning of Indigenous young people, it is necessary to be alert to the dangers of 'net-widening'. The Social Justice Report (2001) produced by the Aboriginal and Torres Strait Islander Social Justice Commissioner reviewed findings that showed that for Indigenous youths there was a significant increase in overall contact with the police, while the rate of arrest had been relatively stable (this increase was considerably higher than that found for the non-Indigenous population). The Commissioner concluded that:
This means that cautioning has occurred on top of, rather than instead of, arresting young Aboriginal people. While some Aboriginal youths clearly are being given another chance by the police, it is of concern that many Aboriginal youths who would have been arrested prior to the introduction of cautioning are still being arrested, but, in addition, the cautioning system seems to be netting them and some other, younger, less delinquent young people on other occasions for trivial offences that may have been ignored - or just verbally warned - under the previous regime. (Aboriginal and Torres Strait Islander Social Justice Commissioner 2001:185, emphasis in original)
There must be vigilance to ensure that well-intentioned forms of diversion whose explicit aim is to divert young people from the juvenile justice system do not have the opposite effect and result in a net increase in the number of young people being brought under the control of the criminal justice system. Further, such net-widening effects, as this example shows, can press down especially hard in potentially hidden ways upon the Indigenous young people. Unfortunately, identifying such net-widening effects requires resources for data collection and research that are not available in most Australian jurisdictions.
One problem identified in the Social Justice Report is that of ensuring that Indigenous young people have adequate access to both interpreters and legal advisers, and the consequent threats to the rights of such youngsters where they do not. The report comments:
The presumptions of innocence or right to silence do not appear to be safeguarded by the current system. The fact that formal admissions are not required and access to legal advice is extremely limited means there is a risk young people are consenting to diversion so they can be removed from an oppressive situation as quickly as possible. Indigenous children may admit to offences they have not committed in order to avoid the possibility of a period of detention. Anecdotal evidence from the North Australia Aboriginal Legal Aid Service (NAALAS) suggests that some young people have been pressured to give a record of interview in return for diversion. (Aboriginal and Torres Strait Islander Social Justice Commissioner 2001:162)
Diversions and other decisions made at the front end of the justice system are often shrouded in uncertainty, confusion and doubt. The criteria for diversion may be unclear, the directions to the police less than exacting, and the young person's understanding of their rights minimal. Under these circumstances, the juvenile justice system, especially in addressing the situation of Indigenous young offenders, needs to be especially vigilant regarding the importance of clarity of criteria for diversion, and the safeguards to be provided for the human rights of young people who have been apprehended by the police.
In the course of our field work for this project, specific barriers were identified regarding the advice given to Indigenous clients by the Aboriginal Legal Service regarding their participation in cautioning or conferencing programs. In an interview with in one state service, it was pointed out that the agency actually recommended to its clients that they not admit to an offence, a pre-condition of entry into either the formal cautioning or conferencing program. Three reasons were given for such advice:
There may therefore be structural legal reasons that account for the lowered level of Indigenous offenders at the early stages of diversion. Notwithstanding these factors, legal advocates actually have a stake in obtaining for their clients the least restrictive and coercive outcome (consistent with principles of procedural justice), and so they ultimately will be concerned with ensuring that their clients are able to participate in diversionary options.
Regarding conferencing, more work can be done to address the whole question of the 'cultural appropriateness' of approaches to restorative justice in Australia. Daly 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 as to create a contemporary process which was 'culturally appropriate' (Morris and Maxwell 1993). Daly (2001:65, emphasis in original) has warned that devising a justice practice that ...is flexible and accommodating toward cultural differences does not mean that conferencing is an Indigenous practice.
Some have questioned whether the actual procedures of restorative justice that have been 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. Their first concern is whether or not there is adequate recognition of the concerns for self-determination among Indigenous people:
There has been a failure to negotiate and consult adequately with aboriginal communities and organisations. When consultation has occurred, there has been insufficient regard paid to Indigenous views. As a result, the model of conferencing (which legally compels a particular form to the interaction between offender and victim) has been imposed on Indigenous communities without consideration of Indigenous cultural values and without consideration of how communities might wish to develop their own Indigenous approaches to the issue. (Zellerer and Cunneen 2001:251-252)
The second concern they raise concerns the especially significant role that police play in the conferencing process, pointing out that not only does this raise questions about the extension of police powers in ways where there are few accountability mechanisms provided, but also the police are not necessarily going to be seen as functioning in a supportive and cooperative way, given the long history of friction between police and Indigenous communities. A third issue, according to Zellerer and Cunneen (2001:253) is that the Australian criminal justice system comes to be increasingly 'bifurcated' so that minor offenders are channelled into diversionary programs, and the more serious offenders (often Indigenous) become demonised and the targets for increasing law and order strategies such as 'just deserts', mandatory sentencing, or the 'three strikes and you're out' legislation. The justice system thereby becomes, in their view, increasingly racialised (Zellerer and Cunneen 2001:253) with Indigenous youths receiving more punitive outcomes. The resulting justice practices will be hard pressed to make a convincing case that there is genuine concern for 'restorative justice' that will reach Indigenous young people.
In the course of our field work, concerns were expressed to us about different aspects of conferencing by those representing Indigenous interests. In one state, the view was expressed by legal representatives that the model of conferencing employed was not appropriate for Indigenous young people. The conferencing process as they saw it had no Indigenous convenors, nor were there follow-up supports provided from the Indigenous community. The representatives from the Indigenous community expressed the view that they had no say in controlling the process, and that the current model placed too great a weight 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, if conferencing were to be successful, local Indigenous protocols must be respected and implemented and that involvement of the traditional owners and local community resources, including extended families, is essential.
All this suggests that there may be a long way to go before we can begin to have confidence that restorative justice as practised can claim any significant degree of cultural appropriateness. To be sure, there are some hopeful signs, including the downturn in the rate of detention of Indigenous youth, the levels of Indigenous involvement in at least the mid-level diversion programs represented by conferencing, and some of the innovative diversionary programs aimed at reducing the number of Indigenous young people being held in pre-trial detention. We can only agree with the plea of Blagg that future steps in the directions for restorative justice in Australia address the general issue of cultural appropriateness within a genuine spirit of reconciliation:
Restorative justice needs to broaden its horizons beyond the narrow confines of the 'conference' and develop a 'restorative vision,' meaning a commitment to mapping out a new decolonised terrain, where genuine reconciliation with Indigenous peoples can take place. (Blagg 2001:227)
As a final note, there is, obviously, a much wider context for the discussion of cultural appropriateness given the rich multicultural mix of present-day Australia. While there is emerging anecdotal evidence of youth problems in communities of recently arrived migrant groups, the informants from the justice systems in the jurisdictions surveyed here report that to date not enough information, or cases, have come to light regarding migrant communities and diversion for us to establish any discernible patterns regarding diversion and such youth. Certainly, this is an issue that merits continued monitoring, and future research may find this a topic of central interest to juvenile justice and diversion.
One of the major objectives of this consultancy was to provide a description of the nature of the diversion process at the different points in the criminal justice system, and the extent of their application within Australia. The work undertaken has established that all eight jurisdictions in Australia by 2002 had developed a clear commitment to processes of diversion, including implementing some form of both police cautioning and family conferencing. Thus, while diversion has languished in the past two decades in the United States, by contrast in Australia there has been a steady and persistent spread of diversionary practices. Further, these practices are found at different points within the system of juvenile justice. While there are the expected variations, all jurisdictions have formalised some form of diversion at the very front end of the justice funnel in the form of police cautioning. On the world stage, in the form of 'warn and release' this remains one of the few forms of what early writers called 'true diversion' (eg Cressey and McDermott 1974), since such practices divert youngsters out of the system with no further contact. By 2002, all states had implemented some form of conferencing as part of their juvenile justice program, and in some states (notably Western Australia and New South Wales) there is some evidence that this may be contributing to a decline in cases being referred to the children's court for prosecution. We have also observed that a number of different approaches have been taken to address the problem of large numbers of young offenders being placed in pre-trial detention where that may not be necessary, including special kinds of supervised bail programs (as in Queensland and WA), or a more rigorous process of screening as in Victoria. Finally, there is a considerable number of smaller diversion programs, especially at the front end of the justice system, that have considerable potential in terms of their capacity to help the overall juvenile justice system to divert offenders from processing, especially at the earliest stages of contact.
A second objective for this project was to establish the effectiveness of diversionary practices, processes and programs, particularly in terms of preventing future offending. Regarding this objective, this project was only partially successful. Some data exist with regard to conferencing programs but from the information available no clear picture emerges. Work done in South Australia (Hayes and Daly 2001) and New Zealand (Maxwell and Morris 2001) suggests that conferences can be successful when the young offender shows remorse and is effectively involved in the process of the conference, and when the parents similarly show remorse and become involved in the conference outcomes. These promising findings have to be balanced against research that shows no difference in terms of re-offending outcomes in the randomised evaluation in the RISE project, and a quasi-control group study conducted in Victoria.
One of the most important observations that emerges from this research is that there tends to be an absence of evaluation data on most aspects of diversion in Australia, and this is particularly noticeable with respect to police cautioning. We have been unable to locate any significant research on cautioning since the mid-1980s, a finding that should be of concern to those concerned with juvenile justice policy and diversion since this is, when informal caution is added in, by far the most common form of diversion in Australia. Given the obvious centrality of the police in the juvenile justice system, and the role they play as the gatekeepers to various forms of diversion, it is to be hoped that resources will be made available, and negotiations conducted, to produce the needed evaluation information regarding the structure and effectiveness of police diversion programs. Further, in our view, there needs to be more systematic support for, and encouragement of, evaluation as a part of the thinking about the creation of diversion programs, and an insistence by funding bodies that more routine procedures are set up for data collection and reporting of outcomes of diversion programs.
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. This stated single objective actually contains a number of diverse elements. One of the most significant strengths of the approach to juvenile diversion taken in the Australian jurisdictions has been the way diversion has been treated as a coherent system of interlocked elements in the legislation of many of the states and territories. In contrast, one of the weaknesses in the approach to diversion in the United States was that it was dealt with in nearly all cases as an 'add on' element which depended exclusively upon centralised and non-recurrent funding from the federal government. Once that funding evaporated, the individual programs were unable to survive. In Australia, the approach has been to build up the procedures and processes slowly, and to ensure that there is adequate provision in the juvenile justice legislation to ensure the continuity of the approaches taken. Further, it is significant that states such as New South Wales, Queensland, South Australia, Tasmania and Western Australia have evolved an approach to juvenile diversion which systematically links and integrates decisions by police to caution young offenders at the front end of the system with specific and defined procedures which lead to conferencing deeper in the system, and then to prosecutions beyond that step.
In contrast to the situation in the United States where diversion amounted to a relatively temporary fad in juvenile justice, in Australia, as a result of placing the different processes of diversion within a sequential framework within the juvenile justice acts, there is every reason to believe that there is a relatively deep and long-term commitment to these processes of diversion. The emergence of this systematic structure, of course, makes it even more imperative that we begin to require more data on how these systems of diversion or working, and what the evidence is about their effectiveness.
The various forms of justice legislation provide for rather different forms of administration of the diversion processes among the jurisdictions. Cautioning by its very nature is a police function in all states and territories, although, as we have noted, there are some minor differences in the way cautions are administered. Conferencing, however, varies considerably in the approaches taken to its administration. In one model, the conferencing is administered directly by the police (the ACT and the Northern Territory). In a second model (in New South Wales, Queensland, South Australia and Western Australia) the police refer the case to be conferenced to the juvenile justice agency which then organises and provides for the conference facilitators. (In Tasmania, the situation is somewhat mixed, as both the police and the juvenile justice agency organise conferences.) In the third model (Victoria), conferences are a dispositional option available to the children's court as it adjudicates a case appearing before it.
Each of these models presents different administrative responsibilities, as well as complications regarding appropriate concerns for provision of the necessary skill training. It is noteworthy that each of the models presents its own distinctive training needs for those facilitating conferences, and most jurisdictions have responded with quite detailed programs of training, including lengthy training manuals for conference facilitators.
Once again, it needs to be pointed out that there is an absence of research information on the systemic effects of these new, interlocked procedures of juvenile justice and diversion. It is disappointing that it is not possible to describe in a detailed way the systemic implications of the changes that have taken place in police, juvenile justice, and children's court processing. Research needs to be developed that would document the degree to which the new systems of cautioning are changing police practices, and in particular altering the 'transition probabilities' whereby cases are either ignored or passed on deeper into the system. Such research would also document in ways in which cases either are, or are not, diverted into the prosecution phase of the justice system (an important issue, since the raw data for some states suggests no apparent reduction in cases going to court as a result of the introduction of conferencing, which then raises the question of what cases are being selected for which disposition). A related feature of such research on the systemic effects of these new interlocked programs would be the rather complicated analyses that are necessary to address the question of net-widening. As contentious as such questions can be, it would seem axiomatic that public policy makers would want to know the degree to which their efforts to divert young people from the juvenile justice system are achieving that effect, rather than creating the more common result of increasing the total volume of young people brought under the control of the juvenile justice system.
A fourth objective established for this report was to address the question: What impact do social and cultural differences have on access to, and successful participation in, diversion? To address this objective, it is first necessary to underscore clearly the nature of the 'catchment' of diversion at different points in the system. It is inherent in the way the 'funnel' of justice works that those who are diverted at the front end of the system are, as O'Mahony, Chapman and Doak state (2002:69): ...younger, generally [having] committed a trivial offence (or no offence) and had [little] or no previous contact with the police. In contrast, those prosecuted were older, had committed a more serious offence and most had been previously cautioned or prosecuted.
Behind these bare facts, which would fit in the jurisdictions in Australia as well, are a number of related considerations. We have highlighted the problem that is found in the limited data available which suggests that Indigenous young people are systematically under-represented in diversion at the very front end of the justice system, and that in general there is a challenge in most jurisdictions to make diversion programs work for Indigenous young offenders.
One of the persistent challenges of diversion programs is to address the issue of their potential to exert a net-widening effect. We have seen that this is a particular problem with respect to conferencing, since in some respects the underlying principles of restorative justice call for the development of new forms of justice processing, which can be interpreted as a call for a larger juvenile justice system. It then becomes important to consider carefully for whom these new services are best suited. An issue that was explored in the recent Northern Ireland review was that of cost, and it was pointed out that procedures such as conferencing place heavy burdens on the time (and therefore costs) of local police and justice staff. The authors of that review urge that, given these demands on resources, only more serious cases ought to be considered:
These findings draw into question whether it is appropriate to use restorative conferences that are obviously costly and time-consuming for mainly first-time offenders, involved in petty offending. It could be argued that a better course of action might be to deal with such cases by way of advice and warning for very minor offences... (O'Mahony, Chapman and Doak 2002:35)
There is also the question of what sanctions are appropriate at which point in the juvenile justice funnel. We need to be constantly reminded that much of the youthful behaviour that is encountered at the very front end of the juvenile justice system is experimental, one-off conduct, which is highly unlikely to be repeated. Put another way, only a small proportion of first offenders encountering the justice system will ever be repeat offenders and, further, most of their offences are of a trivial nature. In a study of recidivism among young offenders in New South Wales, Cain (1998:13) concluded that The majority of juvenile offenders will not reappear after their first proven offence, and offers a powerful argument for diversion:
One may ask, what is the point of intervening in the lives of the 70 per cent of young offenders who are unlikely to re-offend anyway? There is certainly value, both financial and social, in reducing the number of young people who are unnecessarily involved in the juvenile justice system. (Cain 1998:14)
That being the case, there would seem to be a strong argument for those approaches that amount to some combination of warning and release. Indeed, this is precisely the conclusion that Coumarelos and Weatherburn (1995) advanced in their review that examined such issues as the probability of re-offending and the costs of intervention. They observed that resource-intensive strategies that aim to reduce juvenile recidivism are most appropriately targeted at repeat offenders rather than those with little or no prior records of offending. The Northern Ireland experience, we would urge, can provide a model here, since over three-quarters of the cases referred to the police juvenile processing unit in the areas studied were dealt with either by no further action or by 'advice and warning', while only 3 to 4 per cent were disposed of through either a restorative conference or restorative caution, contrasted with between 10 and 17 per cent dealt with through prosecution (O'Mahony, Chapman and Doak 2002:28). In that jurisdiction, at least, it would appear that restorative procedures were appropriately considered as a costly and resource-intensive option that needs to be carefully targeted at those cases which merit this level of intervention.
A final objective for this research is to consider the implications of diversion for issues of human rights. The UN Convention on the Rights of the Child provides strong support for the idea of diversion, but specifies that such procedures should not pose threats to the legal rights of those diverted. The text of the convention argues that, where young persons have infringed criminal laws, states should provide:
...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 record with respect to issues of human rights and diversion is a mixed one in Australia. In some states, such as New South Wales, the legislation providing for diversion has been constructed with clear concerns for protecting the rights of the young people involved. In that state, cases eligible for diversion are referred to a specialist youth officer within the police service. Before a matter is referred to a conference, the young person must be told that they are entitled to obtain legal advice. Further, outcomes from the youth justice conferences in NSW may not be more severe than the punishments that would be imposed by a court. Evaluation data suggests that a high proportion of offenders were satisfied with the way the conference was conducted.
In other contexts, the record is not so clear. The Social Justice Report (2001:187) of the Aboriginal and Torres Strait Islander Social Justice Commissioner raised a number of questions about the operation of juvenile diversion programs in both the Northern Territory and Western Australia. It made a number of specific recommendations to the Western Australian authorities that are worth considering as general issues for all jurisdictions in Australia, and as appropriate for all young people, not just Indigenous youths.
The first recommendation was that there was a need to create a presumption that police will divert young people unless a range of specified criteria are not met. This recommendation places diversion at the top of the list in terms of ways of dealing with young offenders and is consistent with the legislation in virtually all Australian jurisdictions.
A second recommendation is that the jurisdictions should provide for review of decisions regarding diversion. Given the importance of juvenile diversion in terms of the sheer numbers of individuals who experience cautioning and conferencing in Australia, it would seem obvious that there needs to be a consistent process of review of individual decisions (in terms of possibility of judicial review where appropriate), and departmental oversight in terms of the form that decisions take over time (as revealed, for example, in the patterns of decisions regarding diversion).
A third recommendation is that juvenile authorities require that a young person is informed that they are entitled to access to a legal advocate at any stage of the process. Diversion is made up of a number of different steps taken by the juvenile justice system but, however diverse, these represent actions of justice personnel. As such, basic principles of legal rights dictate that the young person should be aware of their right to legal representation should they have questions about the process they are experiencing.
A fourth recommendation is to require that an interpreter be freely available at all stages in the process where there is doubt about the ability of the young person to understand the proceedings or express himself in English. While this specifically arises out of concerns for the situation of Indigenous young people, it is a basic principle that applies more broadly given the multicultural character of Australian society.
A final recommendation of that report is that authorities assure that previous cautions and [conferences] cannot be cited in court as though they form part of a prior record. This recommendation recognises that there are inherent dangers in the accords and understandings between youths and justice personnel in the course of the diversion process, especially at the very front end of the system, and that, if these become part of a complex system of record keeping, there is a real danger of significant widening of the net of juvenile justice, an outcome that is inconsistent with the objectives of the diversion process.
To this list other recommendations might be added. For example, the legislation of states such as New South Wales provides for the principle that the punishments experienced in the diversion process should be no greater than would be found in the children's court for the same offence. This is important, as there are hints that, wherever undertakings are a part of both cautioning and conferencing, there are possibilities created whereby the punishment provided is clearly greater than would be expected had the case gone to court. Furthermore, care must be taken to ensure that diversion programs do not become forms of double-jeopardy, where a young person first experiences the demands of undertakings in a diversion program, then finds that they face the same charge in court and experience further penalties for that charge.
There is also a place for considering wider issues than justice and law in the discussion of diversion. One of the potential dangers in diversion processes, including conferencing, is that they become focused on the immediate issues of the presenting offence. The offence takes place in a context, and there is a place for considering how that social context should be considered within the framework of the diversion practice. Bazemore (1998, 1999), for one, has consistently argued for the importance of giving emphasis to the reciprocal obligations that flow from offender and community, obligations that require that, at the same time that the community makes its reasonable demands on a young person to engage in restorative activities, consideration be given to how the community should address the youth developmental needs of many young offenders. For that reason, we have provided a place in this report for diversion programs, such as the Echuca program, which widen the educational, employment and recreational opportunities available to young people. This balanced approach, to use Bazemore's term, recognises that it is important to see that restorative justice is placed within a wider framework of social justice, and that that framework places obligations on communities as well as young people.
In summary, the site visits and field research of this consultancy have established that there has been a vigorous development of approaches to diversion in all states and territories of Australia, especially in 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, which is found much deeper in the system (including, as in Victoria, as a post-court disposition). While the available research data on the effectiveness of conferencing programs on re-offending presents contradictory findings (and there are no recent studies at all on the effects of police cautioning programs), the limited data from states such as Western Australia and New South Wales shows hopeful signs that when cautioning and conferencing programs are properly designed and targeted, it may be possible to reduce the numbers of young persons who flow into the formal process of court prosecution. In short, there are some signs, here and there, that juvenile diversion can 'work' to divert young people out of the juvenile justice system.
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