Updates and background for this project (Digest)

• Introduction
• Relevance of policing to sentencing
• Policing public space
• Policing and young people from racial and ethnic minorities
• Rates of diversion
• Conclusion

3.1 Chapter 2 outlined the historical development of juvenile justice, leading to the contemporary focus on diversion and the embodiment of this approach in the Young Offenders Act 1997 (NSW) (“YOA”). The YOA established a scheme to divert young offenders away from formal court processes through the use of warnings, cautions and conferencing.

3.2 The purpose of this chapter is to consider the impact of discretionary decision-making on the diversionary aims of the YOA. This is considered from two aspects: the exercise of discretion under the YOA itself; and discretionary decisions that bring a young person under the application of the YOA.

3.3 The focus is on the role of police, as the YOA seeks to achieve its objectives essentially through a structuring of police discretion in relation to the diversionary options. In fact, it has been argued that the key feature of the YOA is “the provision of statutory guidance for the exercise of police discretion at the gate-keeping level”.¹ While not the only “gatekeepers” under the YOA, the police are the main “gatekeepers”.²

3.4 The police have wide discretionary powers in administering cautions and warnings and in deciding how a young offender will be dealt with under the Act, and how far he or she will progress through the stages of the YOA’s diversionary scheme.

3.5 Also significant is the role of police in deciding whether to proceed against a young person in the first place, thereby drawing them into the juvenile justice system. In the discharge of their duties to keep public order and prevent crime, police have a wide discretion to stop, search, arrest or charge suspects³ – to take formal action, informal action or no action.

3.6 The principles that guide the operation of the YOA are very relevant to the way in which police are to exercise their discretion, including that the least restrictive form of sanction is to be applied.⁴ To give full meaning to this principle requires a congruent approach at the earlier stages of contact with the justice system.

3.7 Chapter 2 noted that the report of the Working Party on Family Group Conferencing and the Juvenile Justice System,⁵ which formed the basis of the Young Offenders Bill,⁶ saw the need for a system that was formal, integrated, consistent, accountable and co-ordinated.⁷ The reasons the YOA seeks to structure police discretion relate to:

• a lack of consistency in diversion decisions;⁸
• the risk that minorities may be targeted;⁹
• differential treatment of Aboriginal and Torres Strait Islander young people; and
• a low rate of diversion of young offenders prior to the YOA.

RELEVANCE OF POLICING TO SENTENCING

3.9 Decisions taken by police from their first contact with a young person through to those taken in gate-keeping entry to the YOA may influence later judicial decisions and ultimately impact upon the sentencing outcome for that young person.¹¹ Cunneen and White have argued that, consciously or unconsciously, the discretionary decision-making process of an individual police officer may ultimately translate into a pattern of discretion-exercising which operates to the detriment of certain societal sub-groups, such as Aboriginal young people or those of Lebanese or Indo-Chinese descent.¹²

3.10 Research on Aboriginal youth has found that the fact that a young person is arrested rather than issued with a field court attendance notice is one of the key determinants of a referral to court, as opposed to diversion away from court proceedings.¹³ The reverse is also true: when police choose a diversionary method of dealing with the charge, the likelihood of the young offender acquiring a criminal record is reduced. Commentators have identified in this process a compounding effect,¹⁴ in which early punitive decisions create “a chain of continuing escalation”¹⁵ in the level of intervention and the severity of sanction.

3.11 It follows that, even if the sentencing process treats equally all young people with similar criminal histories, those who belong to groups disproportionately subject to intervention or arrest will be more likely to have more extensive criminal histories and so be more likely to receive sentences of greater severity.¹⁶ Equitable treatment at the sentencing stage is subject to any pattern of discrimination that may occur earlier in a young person’s contact with police.¹⁷

3.12 Prior to the enactment of the YOA, “police decisions in relation to the cautioning of young offenders were uneven and inconsistent”.¹⁸ Chan, Bargen, Luke and Clancey relate that:

[t]he literature has also documented instances of police stereotyping, harassment and breaches of basic human rights of young people.¹⁹ One issue of particular concern has been the differential treatment of Aboriginal and Torres Strait Islander young people, who were found to be less likely than non-indigenous young people to be cautioned or referred to diversionary processes.²⁰

3.14 The use of legislation to structure police discretion is one method of dealing with the problem of improper, or inadequate, exercise of that discretion. To a large extent, the YOA has been effective in this regard. The YOA guides the exercise of police discretion “to an extent not usually seen in legislation”.²³ Further, the Act contains important “checks and balances” on police decisions, in particular, the requirements of s 31(4), 40(4) and 41. Sections 31 and 40 allow, respectively, a court to give a caution and a court, or the Director of Public Prosecutions (“DPP”), to refer a matter to conferencing. Section 31(4) provides that where a court gives a caution, it must notify the Area Commander of the local police area in which the offence occurred of its decision, and reasons, to do so. Similarly, s 40(4) provides that where a court or the DPP refers a young offender to a youth justice conference, the Commissioner of Police must be notified. Police are more likely to make careful decisions if these may later be scrutinised and overridden by the court, and if senior police officials are made aware of these initial decisions at the police “gate-keeping” level. Section 41 requires that conference administrators must independently apply the offence-related criteria and can question police decisions to refer to a conference, with the DPP acting as final arbiter where the conference administrator and specialist youth officer can not agree.

3.15 However, even under the operation of the YOA, the compounding effect of discrimination on the accumulation of “prior history” can be seen. The YOA allows decision-makers to take into account “the number and nature of any offences committed by the child and the number of times the child has been dealt with under” the Act when considering an appropriate response to the commission of an offence.²⁴ This is despite s 15(3) of the CCPA, which prohibits the admission of any evidence that a person has previously been dealt with under the YOA in relation to any subsequent offence.²⁵ It should be noted that this criterion is the fourth in a series that is designed to direct both police and courts to consider prior history only after they have considered the criteria of seriousness, harm and violence. In practice, prior history is often considered first, but the other considerations are deliberately listed first in the offence-related criteria set out in these sections of the YOA, for the reasons outlined in this chapter.

3.16 Furthermore, amendments to other pieces of legislation since the YOA was enacted call for policing methods and procedures at odds with the YOA. The YOA creates boundaries for the exercise of police discretion and emphasises the rights of the child, in keeping with the United Nations Convention on the Rights of the Child. Legislation subsequent to the YOA, such as the enactment in 2002 of “knife laws”, have increased police powers, particularly in relation to young people. This is in contrast to the holistic approach seen in the New Zealand Children, Young Persons and Their Families Act 1989 (NZ). That Act not only introduced processes such as family group conferencing, but also included strict limits on arbitrary police powers to stop, question, search and detain young people, and set out strict procedures for police to follow when approaching and arresting young people, and when conducting interrogations.²⁶

3.17 It is a matter for concern that, in New South Wales, changes to police powers appear to reflect contradictory approaches the government has taken since 1997 that undermine the spirit of the YOA. While it is not within the ambit of this report to elaborate on this concern in greater detail, it underpins the discussion of policing public space in the following paragraphs and is specifically referred to in paragraphs 3.19-3.28.

POLICING PUBLIC SPACE

3.18 This section considers the effect on young people of policing public space and whether the use of police powers under specific Acts, such as the Law Enforcement (Powers and Responsibilities Act 2002 (NSW) (“Law Enforcement Act”), is impacting disproportionately on young people. It also raises the question whether young people are “over-policed”.

Police powers used in public spaces

The “trifecta” offences

3.19 One means traditionally used by police to maintain public order is the laying of one or more of the “trifecta” charges.²⁷ These are: (i) offensive language;²⁸ (ii) resisting arrest; and (iii) assaulting a police officer in the execution of his or her duty.²⁹ They form part of a larger group of offences against public order.

The knife laws

3.20 Part 5 of the Summary Offences Act 1988 (NSW) (“Summary Offences Act”) increased the powers given to police by allowing them to search without warrant for knives and other dangerous implements.³⁰ The Law Enforcement Act repealed Part 5 of the Summary Offences Act.³¹ However, the Law Enforcement Act enacted similar provisions to those of the Summary Offences Act to search without warrant for “knives and other dangerous implements”. Such a search may take place if the police officer has “reasonable grounds” to suspect the person in a public place or school has custody of a dangerous implement.³² “Reasonable grounds” is defined to include taking into account “the fact that a person is present in a location with a high incidence of violent crime”.³³

3.21 While search powers under the knife laws are not solely applicable to young people, the debate on the bill that introduced Part 5 of the Summary Offences Act, the Crimes Legislation Amendment (Police and Public Safety) Bill 1998, clearly indicated that the knife laws were drafted with them in mind. During the debate, the Police Minister informed the Legislative Assembly that:

[t]here are also indications that young people, in particular, go out armed with knives more often. … Whether this is a matter of fashion, a show of bravado, a matter of cultural preference or a consequence of a misguided sense of security, the Government wants to stop it.³⁴

3.22 Clause 22 of the Young Offenders Regulation 2004 (NSW) requires investigating officials to consider whether to deal with a young person under the YOA before issuing a penalty notice for offences under s 11C (custody of a knife in a public place or a school) of the Summary Offences Act or s 199 (“failure to comply with direction”) of the Law Enforcement Act.

Move-on powers

3.23 In addition to widening police search powers, the Summary Offences Act also armed police with a “move-on” power. Section 28F of that Act allowed police to “give reasonable directions in public places”. The Law Enforcement Act has repealed s 28F but has enacted a similar provision in s 197. Pursuant to s 197 of the Law Enforcement Act:

a police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place … :

(a) is obstructing another person or persons or traffic; or

(b) constitutes harassment or intimidation of another person or persons; or

(c) is causing, or likely to cause, fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness³⁵ …

3.25 A further provision that may operate in a “street sweeping” capacity is the power given to police under the Children (Parental Responsibility) Act 1994 (NSW) and the Children (Protection and Parental Responsibility) Act 1997 (NSW) to pick up persons under 16 years of age who are seen to be at risk of harm or at risk of committing a crime, and taking them home or to a designated “safe house”.³⁷ Police have this power only in areas declared operational under the Act.³⁸

3.26 The particular significance of these police powers for young people, and the potential for drawing them into the criminal justice system, relates to their tendency to occupy public space and their public visibility.

Targeting of young people

3.27 It has been argued that young people disproportionately attract police attention because “youth” is one of the indicators used by police to predict trouble.³⁹ More controversially, it has been argued that police resources are often pre-emptively directed towards individuals whose appearance, language or demeanour suggest to police the potential for disturbance.⁴⁰

3.28 The 1999 NSW Ombudsman’s report, Policing Public Safety, highlights features of the interaction between police and young people. It included a review of the (then newly introduced) police power to search for dangerous implements and concluded that a disproportionately high number of teenagers was searched under the knife laws. Forty-two per cent of all searches over the review period were of persons aged 17 years or younger.⁴¹ Seventeen year olds were six times more likely to be searched than 27 year olds, and 23 times more likely to be searched than 37 year olds. Despite the frequency of searches of teenagers, the proportion of searches in which a knife was actually found was one in seven for 17 year olds, but jumped to one in three for 27 year olds and almost one in two for 37 year olds.⁴² The report stated:

In assessing the fairness of police search practices, it is important to acknowledge the comparatively high proportion of young people involved in knife-related crime. Of concern, however, is why so many knife searches of young people lead to no knife being found, whereas the ratio of productive searches is much higher for searches of suspects aged in their 20s and 30s. One factor might be differences in the way that young people make use of public space, including a propensity for groups of young people to ‘hang out’ at busy commercial precincts and transport interchanges.⁴³

3.30 The Ombudsman’s report also reviewed the operation of the “reasonable directions” power. It noted that both this power and the search power were applied to high numbers of young people.⁴⁵ Of all those “moved on” during the review period, 47% were 17 years old or younger. The most important factor identified in this trend was the propensity of young people to socialise in public places, often in large groups.⁴⁶ The report cites examples of the use of the “reasonable directions” power to disperse groups of young people who had attracted police attention, not by their behaviour, but simply by their presence and possibly by their ethnicity.⁴⁷

The occupation of public space by young people

3.31 Areas in which young people tend to congregate include street footpaths, central business districts, school grounds, train stations, shopping centres and malls, and parks and ovals. While these places may not strictly be public space, in that they are not always publicly owned, they are open to, and used by, the public and hence we have described them as such.

3.32 Factors that “pull” young people to public areas are the low cost of visiting and staying, their proximity to facilities, services and products, and their easy access via public transport. Additionally, as leisure activities are increasingly commercialised, business owners actively encourage the development of the youth market – the “young person as consumer”.⁴⁸ In doing so, they draw young people to commercial centres. Factors which “push” young people to congregate in street spaces and shopping centres may include escaping parental control or financial and other tensions in the home, a lack of their “own” space, boredom with, or unavailability of, other facilities, and the over-policing of other areas.⁴⁹

3.33 Perhaps the most frequent use of police discretion arises from conflicts over the use of public space by young people. It is arguably the main point of intersection for political, community, legal, commercial and media interest in the activities of young people:

As more and more space has been commodified, privatised and/or corporatised so the logic of design and management has shifted away from ideals of civic rights and participation to ones of niche marketing and risk management. In this, the policing, security and health and safety industries are substantial and influential players with vested interests in a lucrative marketplace which fuels and is fuelled by fear of crime media coverage and law and order politics.⁵⁰

Images of anarchy, “ethnic youth gangs”, juvenile crime waves and various moral panics over the state of youths today, have gone hand-in-hand with concerted campaigns to make young people unwelcome in our … shopping centres.⁵⁴

• young people tend to hang around in groups, and youth crime tends to be committed in groups;
• the social dynamics of the offence means that it is often public, gregarious and attention seeking; and
• youth crime is often episodic, unplanned and opportunistic, occurring when young people use public space in areas such as shopping centres and public transport where there is more surveillance.⁵⁵

• the public congregation of young people makes them particularly visible, and thus youth crime tends to be more readily apparent and detectable; and
• young people tend to commit crime in their own neighbourhood, where there is greater likelihood that they will be recognised and identified by observers.

3.38 The Commonwealth Attorney General’s Department’s publication, “Public Spaces for Young People: A Guide to Creative Projects and Public Strategies”, ⁵⁸ noted that “how public space is managed plays a big part in constructing the social climate in which young people and others interrelate, and whether or not conflicts and tensions will predominate in any particular locality”.⁵⁹ It argued that “a negative regulatory environment can make young people feel unwelcome, and frustrated at what they perceive to be unfair and unjust policies and policing practices”. ⁶⁰

3.39 Thus, a key issue in the debate about young people’s use of public space is the treatment of young people who are not engaged in criminal - or “pre-criminal” - activity. A heavy-handed police response to young people gathering in public space may in fact compound the very processes of youth social alienation which lead to offending.

3.40 This issue is complicated by the diminution of truly public spaces, often in exchange for facilities that, although open to the public, are privately owned. The most obvious example of this is the transforming of “old style village or street shopping areas” into “mega shopping malls or centres where a vast variety of shops and essential services are located under one roof”.⁶¹

3.41 This trend raises two issues. One is that young people are obvious targets for what has been described as the “criminalisation of the non-consumer”.⁶² From the point of view of business owners, young people who frequent shopping centres but cannot, or do not wish to, consume are virtually and literally worthless.⁶³ Also, the presence of young people using consumer space for their own purposes may be viewed as a security risk, or as discouraging other consumers. Police⁶⁴ may be called upon by business owners to “clear” young people from consumer areas, thereby setting in process the impact of police powers, outlined in paragraphs 3.19-3.25.⁶⁵

3.42 A number of local government authorities and State government departments have responded positively and creatively to the public space needs of young people, as part of an ongoing process of consultation, in an attempt to minimize the potential for conflict.⁶⁶ White cites examples such as Launceston’s “Youth Spaces Consultation Project”, Adelaide’s “OutaSpace Youth Speak” and Parramatta’s “CBD Public Space Research Project” as constructive and inclusive models for the use of public space by young people.

3.43 A further issue arising out of the commercialisation of public space is the “policing” of young people by security guards hired by shopping centre management. Clancey, Doran and Robertson observe that:

[t]he competing perceptions about shopping centres and how they should be used has resulted in conflict between young people and security personnel. Young people believe that they have a right to access shopping centres, to meet friends and to utilise the facilities available, often without understanding that shopping centres are private or semi-private property. Security personnel often perceive young people as potential threats to retail trade and to the general order of a centre, often without acknowledging that centres deliberately seek to attract young people as consumers. … For young people, these conflicting perspectives can and have resulted in increased surveillance, significant contact with security personnel, admonishment, exclusion or banning and even criminal charges for trespassing (where bans are not abided).⁶⁷

3.45 Banning orders run the risk of operating unfairly, as they are often wider in scope than any sanction that would be imposed by a court; they may operate oppressively in locations where essential services are within the boundaries of the shopping centre; and because they are not subject to appeal. And as Clancey, Doran and Robertson suggested, previously non-criminal behaviour becomes criminalised when a person breaches a banning order, as police may then be called upon to charge that person with trespass.⁷¹

3.46 Given their potential impact, banning orders ought to be applied sparingly by shopping centre management. The Youth Action and Policy Association, in conjunction with the Youth Justice Coalition, the New South Wales Attorney General’s Department Crime Prevention Division, the NSW Police, the NSW Commission for Children and Young People and the Shopping Centre Council of Australia have developed the NSW Shopping Centre Youth Protocol, finalised in October 2003.⁷² Local protocols are now being developed in various locations. The Commission supports this initiative, but also suggests that it would be valuable to include in any Protocol compulsory training in the area of young people’s use of public space for any person seeking registration as a security guard under the Security Industry Act 1997 (NSW).⁷³

The use of arrest

3.47 Section 8 of the CCPA (which is subject to exceptions) requires that criminal proceedings be commenced against a child by court attendance notice (CAN) rather than arrest. In both 2004 and 2003, 77% of matters that proceeded to court were dealt with by charge.⁷⁴ Charging an offender usually involves arrest, but not always, and hence it is difficult to draw definitive conclusions on the use of arrest in recent years.

3.48 It has been argued that the arrest process is seen as important to police in establishing their authority and effecting deterrence.⁷⁵ However, case law indicates that it is inappropriate for police to use the power of arrest for minor offences where the defendant’s particulars are known and there is no reason to suggest a CAN will not be effective in bringing him or her before the court.⁷⁶ It is vital that the Police ensure that all police officers are familiar with, and comply with, the provisions of s 8 of the CCPA so that the arrest of a child is strictly confined to those exceptional situations provided for in s 8(2).

3.49 It is also imperative that the Computerised Operational Police System (“COPS”)⁷⁷ makes it easy for police to process and record CANs. If police have to go through a complicated, multi-step process, as they did with issuing a summons, in order to issue a CAN, compared with the immediacy of charging, the temptation to charge will be too great. The structure must support the desired approach.

POLICING AND YOUNG PEOPLE FROM RACIAL AND ETHNIC MINORITIES

3.50 One subject specifically raised in Issues Paper 19 (“IP 19”) was whether young people from particular ethnic groups or cultural backgrounds encounter discrimination in the sentencing process.⁷⁸ The evidence to date is inconclusive, although it tends to suggest that there is no discernible pattern of sentencing discrimination. However, having regard to the “compounding effect” of police decision-making referred to above in paragraph 3.9, any minority group which is the subject of disproportionate levels of entry into the criminal justice system will inevitably be over-represented at the sentencing stage.

3.51 Research undertaken throughout Australia over the two decades leading up to the year 2000 has found that young people who visibly belong to racial, ethnic or cultural minorities often experience direct or indirect racism when dealing with police.⁷⁹ Other research from this time cites the existence of poor relations between police and young people from racial or ethnic minorities,⁸⁰ in particular, Aboriginal young people and those from Indo-Chinese, Arabic or Pacific Islander backgrounds.

3.52 In the context of the Summary Offences Act, Chan and Cunneen noted the disparity in the use of move-on powers in areas with high Aboriginal populations: its use in Bourke and Brewarrina was 30 times higher than the New South Wales average.⁸¹

3.53 An unpublished NSW Ethnic Affairs Commission survey of community organisations identified harassment and stereotyping as a problem in police work with young people from non-English-speaking backgrounds. The stereotypes that were observed as being part of police attitudes included the following:

• Youth of non-English-speaking background are trouble-makers.
• Youth of non-English-speaking background constitute themselves as gangs and not as groups. An example referred to in this case was of groups which dressed in tracksuits, Reebok shoes, and were identified as colour gangs instead of groups of kids.⁸²

3.55 In her 1997 study of police culture in New South Wales, Professor Janet Chan reviewed the research and identified four general aspects of racism among Australian police generally and in the NSW Police in particular. These were: insensitivity to language and cultural differences; prejudice and stereotyping; over-policing of minorities; and abuse of power and excessive force.⁸⁴ Each of these has been reported as present in the interaction between police and ethnic minority youth. The NSW Ethnic Affairs Commission survey referred to above, documents incidents of police harassment reported by young people from racial or ethnic minorities as including excessive attention from police in the streets, racist taunts, under-policing of instances of youth victimisation, occasional physical abuse by police, and police brutality while being detained or questioned.⁸⁵ A 1991 HREOC report noted that 85% of Aboriginal young people in detention centres in New South Wales, Queensland and Western Australia reported being hit, punched, kicked or slapped by police.⁸⁶ Similarly, Chan cites various documented instances of police violence against young people of Vietnamese origin.⁸⁷

3.56 Relations between police and young people of Middle Eastern background in Sydney have come under the spotlight in recent years, most particularly following the 1998 killing of Edward Lee and, in the same year, the drive-by shooting attack upon the Lakemba police station. These events led to media, police and political focus on “Lebanese gangs”.⁸⁸ It has been suggested that what was arguably a heavy-handed police response to these events was greatly resented by Lebanese young people and their communities, and reinforced pre-existing perceptions of victimisation of Lebanese youth by police. More recently, the issue of ethnic-based offending has been raised by the much-publicised gang rape trials of a number of Lebanese youths.⁸⁹ This has exacerbated tensions between police and the Arabic-speaking community generally.⁹⁰

3.57 Relations between police and Aboriginal young people have also been strained following the death of Thomas (“TJ”) Hickey in February 2004. Police were accused of recklessly pursuing the 17-year-old on his bicycle, causing him to crash into a fence, where he was impaled. The incident sparked street rioting in Redfern “by dozens of young Aborigines”.⁹¹ The Sydney Morning Herald’s editorial on the issue stated that this reaction “spoke volumes about the failures of black-white relations in and around the Aboriginal ghetto of Redfern”.⁹² It also concluded that the reaction could be explained by Aboriginal disadvantage typified, among other things, “by a ghetto existence which excites hatred and distrust on both sides, where Us v Them tensions and bitterness flourish”.⁹³

3.58 Since March 2002, the NSW Police has collected information on “Country of Birth” from all persons of interest (POIs) and their parents. POIs are all people proceeded against by police whether involving court proceedings or formal diversion.⁹⁴ This information is recorded on COPS and integrated into a central database called the Enterprise Data Warehouse from which it may be extracted by the Bureau of Crime Statistics and Research in order to provide empirical evidence as to the commission of offences by members of ethnic communities. Although there are concerns that ethnic-based record keeping may be used “as a marker of social distinction” which provides a “shorthand means to identify potential troublemakers”,⁹⁵ the information may ultimately assist in clarifying whether or not there is over-policing of minorities.

3.59 NSW Police is involved in a number of constructive programs to address the issue of relations between police and members of ethnic communities, especially young people from such communities. One example is the expansion of the Ethnic Community Liaison Officer Program, which currently has 31 Liaison Officers (including a dedicated program co-ordinator), covering the Greater Metropolitan, Inner Metropolitan and Southern regions. The objectives of the program are:

• Crime reduction and crime prevention by facilitating strategic police-CALD/Indigenous community partnerships.
• Enhancing police awareness about cultural diversity issues and their relevance to local policing priorities.
• Enhancing community awareness/knowledge about policing roles and responsibilities.
• Facilitating trust and improved communication between police and communities.⁹⁶

• improving communication between police and multicultural and Indigenous communities
• providing advice to police for better service delivery regarding multicultural and Indigenous communities
• support police in meeting the needs of diverse ethnic communities
• develop and implement community education programs on safety and crime prevention
• in some cases provide victim support
• participate in police-community projects
• provide language assistance, where appropriate
• assisting multicultural and Indigenous communities in understanding their rights and responsibilities as citizens and how to access police services
• providing victim support
• increase community awareness about criminal activity and how to access policing services.⁹⁷

3.62 Translating policy into improved outcomes means that initiatives must be:

developed with the participation of operational police, backed up by relevant programs, adequate resources, appropriate administrative support, rigorous monitoring and an effective accountability structure.⁹⁸

3.63 One of the formative influences on the YOA was the New Zealand Children, Young Persons and Their Families Act 1989 (NZ).⁹⁹ Research following the implementation of this Act found that a high percentage of suitable cases were indeed being diverted from the formal court system.¹⁰⁰ This led to the suggestion in New South Wales that a specific rate at which young offenders ought to be diverted under the YOA might be agreed upon and was raised as an issue in IP 19.¹⁰¹

3.64 In response to IP 19, YJAC submitted that “clear diversionary goals” should be set under the YOA, and that inter-jurisdictional comparisons were a reasonable means of establishing these goals.¹⁰² YJAC pointed to the original review of the diversionary process under the YOA that was conducted for YJAC by Nancy Hennessy in 1999. Hennessy suggested that the level of diversion achieved within the first two years of the YOA’s operation was lower than had been expected by YJAC and was lower than diversionary figures obtained from other jurisdictions, especially New Zealand and South Australia.

3.65 Since the publication of the Hennessy Report, the number of matters recorded as diverted under the YOA has risen considerably. The most recent figures show that between 1 July 2003 and 30 June 2004, police referred 720 young people for conferencing (42% of all referrals) and the courts referred 995. By the end of the 2003-2004 financial year, these referrals had resulted in 1,365 youth justice conferences.¹⁰³ In the same period, appearances in the Children’s Court declined to a total of approximately 6,765, a decrease of approximately 43% since 1989-1990.¹⁰⁴

3.66 While the majority of submissions on this issue agreed that the current rate of diversion might still be improved, the general tenor of response, both in written submissions and in community consultations, was that a target diversion rate was not desirable and its achievement would not provide a means of measuring the success of the YOA. The general view expressed was that the issues surrounding the diversionary process in practice are not easily reducible to the adoption of a target percentage for diversion of young offenders. As the Children’s Court noted:

Cases should be dealt with upon their individual merit and any predetermined “rate” of referral by court or “quotas” by police should be firmly rejected.¹⁰⁵

3.68 As the main gatekeepers under the YOA, the role of officers of the NSW Police was generally singled out for comment in submissions. As noted in paragraph 3.65 above, in the year 2003-2004, police officers referred approximately 16% fewer young offenders to youth justice conferencing than did the courts. However, it is possibly unfair to draw adverse inferences from this. In particular, two of the conditions required to be met before a conference may be held are that the young person admits the offence and consents to the holding of the conference.¹⁰⁷ The necessary admissions and consents may, in some cases, only be given after a matter has proceeded to court. In some Local Area Commands, Youth Liaison Officers report that legal advice not to admit an offence is limiting the number of matters that they can refer to conferencing.

3.69 In its submission to the Commission, the NSW Police re-iterated its unease with Hennessy’s original findings, namely that there was no comparison between previous diversionary rates in New South Wales and rates subsequent to the introduction of the YOA; that in the absence of agreed “targets”, criticisms of “lower than expected diversion rates” were unsupported; and that there should be some agreed understanding of what constituted diversion.¹⁰⁸ In addition, by disputing Hennessy’s definition of diversion, the Police argued that the statistics do not in fact show that the majority of formal interactions between police and young people result in court action. The police submission also raised the relevant point of the qualitative nature of any indicators which might be agreed upon:

…rather than setting an arbitrary target, a more helpful and sophisticated measure would be determining what percentage of young people referred to court should have been diverted (based on objective criteria such as admission of guilt, offence excluded from the Act, young person electing not to proceed with caution or conference, doli incapax, capacity to admit guilt, etc.). Analysis of this nature would determine how close to optimal diversion has been reached, which acknowledges the reasons why young people will rightly be referred to court rather than being diverted.¹⁰⁹

3.71 The Commission has carefully considered the submissions of YJAC and the Police Service. On balance, we have concluded that the range and complexity of issues surrounding the implementation of diversionary practices under the YOA are such that the adoption of a set rate of diversion would not be an appropriate means of furthering the aims of the YOA and evaluating its effectiveness.

CONCLUSION

3.72 Research on the first three years of the operation of the YOA suggests that the implementation of the Act has largely been successful.¹¹¹ The research found that the introduction of the YOA has led to a substantial increase in the use of cautions and warnings, and a corresponding decline in the use of court proceedings.¹¹² At the same time, the greater utilisation of diversionary options was not found to have resulted in net-widening.

3.73 Looking at the YOA’s impact on the over-representation of Aboriginal young people in the criminal justice system, the research found that the Act had achieved a 50% reduction on Aboriginal first offenders being taken to court.¹¹³ However, even among first offenders, Aboriginal young people were 1.8 times more likely to be taken to court than a non-Aboriginal young person.¹¹⁴ As well, although Aboriginal young people were equally likely as non-Aboriginal young people to be given warnings or referred to conferences, they were less likely to be cautioned than non-Aboriginal young people.

3.74 Perhaps it is still too early to evaluate the extent of the YOA’s success in structuring police discretion and addressing actual and potential misuse of discretion. Nonetheless, the conclusion of the Commission is that there is no evidence to suggest that the overall approach of the YOA is misconceived. Our objective in this report, therefore, is to build on, and strengthen, that approach.

3.75 However, the Commission notes with concern that the approach of the YOA and its effective regulation of police discretion has been undermined by subsequent legislation. Powers such as the “reasonable directions” power examined in paragraphs 3.23-3.24 will be exercised in areas that particularly impact on young people and are likely to bring police into direct confrontation with young people.

3.76 It is therefore not enough to consider, in isolation, police practice, and criticisms of that practice, from the point of view of discretion properly or improperly used. It must also be considered in the context of increased powers handed to police by legislation, and the impact this may be having on introducing young people into the juvenile justice system.

1. J Chan, S Doran, E Maloney and N Petkoska, with J Bargen, G Luke and G Clancey, Reshaping Juvenile Justice: A Study of the NSW Young Offenders Act 1997 (Final Report, School of Social Science and Policy, University of New South Wales, 2003) at Section 8.2.

2. Those that “gatekeep” entry to the application of the YOA ensure that young offenders are not sentenced by courts where they are more appropriately dealt with by a diversionary option and that the most appropriate diversionary option is chosen. In Chapter 5, the Commission describes the legislative framework of the YOA and the legislative structuring of all “gatekeeping” roles in greater detail. This chapter focuses on the structuring of police discretion.

3. J Chan, S Doran, E Maloney and N Petkoska, with J Bargen, G Luke and G Clancey, Reshaping Juvenile Justice: A Study of the NSW Young Offenders Act 1997 at Section 8.2.

4. Young Offenders Act 1997 (NSW) s 7.

5. NSW Attorney General’s Department, Report of the New South Wales Working Party on Family Group Conferencing and the Juvenile Justice System. The Working Party was set up to explore the implementation of a conferencing scheme for young offenders and to improve police cautioning.

6. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 18 June 1997, The Hon I Cohen, Second Reading Speech at 10492.

7. NSW Attorney General’s Department, Report of the New South Wales Working Party on Family Group Conferencing and the Juvenile Justice System (Discussion Paper, 1996) at iv.

8. See Youth Justice Coalition, Kids in Justice Report: A Blueprint for the 1990s (Law Foundation and Youth Justice Coalition, Sydney. 1990).

9. See para 3.51-3.56 below.

10. These are set out in the preceding chapter, Chapter 2 at para 2.58-2.59.

11. C Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (Allen & Unwin, Sydney, 2001) at 132; G Luke and C Cunneen, Aboriginal Over-Representation and Discretionary Decisions in the NSW Juvenile Justice System: Report to Juvenile Justice Advisory Council of NSW (Juvenile Justice Advisory Council of NSW, Sydney, 1995) at 29-30; F Gale, B Bailey-Harris and J Wundersitz, Aboriginal Youth and the Criminal Justice System: The Injustice of Justice? (Cambridge University Press, 1990).

12. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 242. See also, for example, J Collins, G Noble, S Poynting and P Taber, Kebabs, Kids, Cops and Crime: Youth, Ethnicity and Crime (Pluto Press, Sydney, 2000).

13. F Gale, R Bailey-Harris and J Wundersitz, Aboriginal Youth and the Criminal Justice System: The Injustice of Justice? at 6-7; Western Australia, Crime Research Centre, Aboriginal Youth and the Juvenile Justice System of Western Australia (1995) cited in C Cunneen, “Community conferencing and the fiction of Indigenous control” (1997) 30(3) Australian and New Zealand Journal of Criminology 292 at 303.

14. C Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police at 132.

15. F Gale, R Bailey-Harris and J Wundersitz, Aboriginal Youth and the Criminal Justice System: The Injustice of Justice?; Western Australia, Crime Research Centre, Aboriginal Youth and the Juvenile Justice System of Western Australia.

16. G Luke and C Cunneen, Aboriginal Over-Representation and Discretionary Decisions in the NSW Juvenile Justice System: Report to Juvenile Justice Advisory Council of NSW (Sydney, 1995) at v.

17. See P Gallagher, P Poletti and I MacKinnell, Sentencing Disparity and the Gender of Juvenile Offenders, (Judicial Commission of New South Wales, Monograph Series No 16, 1997) and P Gallagher and P Poletti, Sentencing Disparity and the Ethnicity of Juvenile Offenders (Judicial Commission of New South Wales, Monograph Series No 17, 1998). These reports found some disparity with respect to ethnicity and Aboriginality but not with respect to gender during the periods January–December 1995 (gender report) and the 1996 calendar year (ethnicity report).

18. J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” (2004) 28(2) Criminal Law Journal 72 at 74, referring to Youth Justice Coalition, Kids in Justice Report: A Blueprint for the 1990s.

19. See R White and C Alder (ed), The Police and Young People in Australia (Cambridge University Press, 1994); C Alder, I O’Connor, K Warner and R White, Perceptions of the Treatment of Juveniles in the Legal System (National Clearinghouse for Youth Studies, 1992); H Blagg and M Wilkie, Young People and Police Powers (Australian Youth Foundation, Sydney, 1995); L Maher, D Dixon, W Swift and T Nguyen, Anh Hai: Young Asian Background People’s Perceptions and Experiences of Policing (University of New South Wales, Faculty of Law, Research Monograph Series, 1997).

20. J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 74. See G Luke and C Cunneen, Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System: Report to Juvenile Justice Advisory Council of NSW.

21. J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 76. “The NSW Standing Committee on Social Issues, in their review of the NSW juvenile justice system, suggested that police were reluctant to use cautions because they regarded cautions as ineffective”: at 76. See New South Wales Parliament, Legislative Council, Standing Committee on Social Issues, Juvenile Justice in New South Wales (Report No 4, 1992) at 70.

22. J Wundersitz, “Pre-court diversion: The Australian experience” in A Borowski and I O’Connor (ed), Juvenile Crime, Justice and Corrections (Addison Wesley Longman Australia, Melbourne, 1997) at 276, referred to in J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 76. See also P Boss, S Edwards and S Pitman, Profile of Young Australians: Facts, Figures and Issues (Churchill Livingstone, 1995) at 154; H Blagg and M Wilkie, Young People and Police Powers (Australian Youth Foundation, Sydney, 1995) at 56.

23. J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 78.

24. Young Offenders Act 1997 (NSW) s 20(3), s 37(3) and s 40(5).

25. Children (Criminal Proceedings) Act 1987 (NSW) s 15(3).

26. Children, Young Persons and their Families Act 1989 (NZ) s 214–s 232.

27. M Liverani, “For the disadvantaged young, NSW is a police state” (1999) 37(10) Law Society Journal 62 at 64; J Collins, G Noble, S Poynting and P Taber, Kebabs, Kids, Cops and Crime (Pluto Press, Sydney, 2000) at 185-186. They are known as “trifecta charges” because all three charges are often laid together.

28. Summary Offences Act 1988 (NSW) s 4A.

29. Crimes Act 1900 (NSW) s 546C.

30. Summary Offences Act 1988 (NSW) s 28A.

31. Law EnforcementLegislation Amendment (Public Safety) Act 2005 (NSW), assented to on 15 December 2005, amends the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). It inserts Part 6A, which, in essence, gives the police emergency powers to deal with public disorder.

32. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 26(1). Compare Summary Offences Act 1988 (NSW) s 28A(1).

33. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 26(3). If the person refuses to submit to a search, the officer must again warn that a failure to submit may be an offence, and make a second request for a search: s 26(4). The person must submit to the search unless he or she has a reasonable excuse: s 27. Compare Summary Offences Act 1988 (NSW) s 28A(3).

34. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 28 April 1998, the Hon P. Whelan, Minister for Police, Crimes Legislation Amendment (Police And Public Safety), Second Reading Speech at 3969.

35. The other “move-on” grounds are if the officer has reasonable grounds to believe that a person’s behaviour or presence in the public place:

(d) is for the purpose of unlawfully, supplying or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.
The direction must be reasonable in the circumstances for the purpose of reducing or eliminating the obstruction, harassment, intimidation or fear, or preventing the drug transactions: s 198.

37. Children (Protection and Parental Responsibility) Act 1997 (NSW) Pt 3, Div 2.

38. Children (Protection and Parental Responsibility) Act 1997 (NSW) s 148; Pt 3, Div 1. Only four areas have been declared operational to date: Walgett, Orange, Moree and Ballina Local Government Areas. For a report on the (largely negative) impact of the declaration for the Aboriginal people in Moree and Ballina, see Aboriginal Justice Advisory Council, A Fraction More Power: Evaluation of the Impact of the Children (Protection and Parental Responsibility) Act on Aboriginal People in Moree and Ballina (Research and Evaluation Series No 1, 1999).

39. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 249; S James and K Polk, “Policing young Australians”, in D Chappell and P Wilson (ed), Australian Policing: Contemporary Issues (2nd edition, Sydney, 1996) at 183; Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process (Report 84, 1997) at para 18.63; R White, “Street Life: police practices and youth behaviour” in R White and C Alder (ed), The Police and Young People in Australia at 103-104. White submits that young people from a wide range of socio-economic backgrounds have been stopped by the police in the street, and that police officers view shopping centres and malls as places where the presence of young people is of particular concern.

40. C Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police at 150.

41. New South Wales Ombudsman, Policing Public Safety: Report under s 6 of the Crimes Legislation Amendment (Police and Public Safety) Act 1998 at para 5.57-5.58.

42. NSW Ombudsman, Policing Public Safety at para 5.59.

43. NSW Ombudsman, Policing Public Safety at para 5.63.

44. NSW Ombudsman, Policing Public Safety at para 5.64.

45. NSW Ombudsman, Policing Public Safety at para 10.24. During the review period, 16 year olds were the group most affected by the new move-on power, and were nine times more likely to be “moved on” than 26 year olds, and 19 times more likely than 36 year olds: at para 10.25.

46. NSW Ombudsman, Policing Public Safety at para 10.31.

47. NSW Ombudsman, Policing Public Safety at para 10.32. See para 3.50-3.57.

48. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia (Oxford University Press, Melbourne, 2002) at 139-144. It was estimated in 1998 that young people in Australia constitute a market worth more than $4.6 billion: P Quinlivan, “Shopping centres and youth: friend or foe?” (1998) 16 Shopping Centre News cited in Youth Action Policy Association, “You’re banned! Shopping centres, banning notices and young people” Factsheet «http://www.yapa.org.au/youth/publicspace/banned.htm».

49. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 143. Other reasons young people congregate in shopping centres include “employment, low-cost (or free) recreation, safety, peer interaction, romantic attachment and the purchasing and consumption of goods and services”: G Clancey, S Doran and D Robertson, NSW Shopping Centre Protocol – Creating the Space for Dialogue: the Report (University of Western Sydney, 2003) at 3.

50. P Crane and M Dee, “Young people, public space & NEW URBANISM” (2001) 20(1) Youth Studies Australia 11 at 15.

51. C Cunneen, “Enforcing genocide? Aboriginal young people and the police” in R White and C Alder (ed), The Police and Young People in Australia at 145. See also G Clancey, S Doran and D Robertson, NSW Shopping Centre Protocol – Creating the Space for Dialogue: the Report at 3 and 4.

52. See G Clancey, S Doran and D Robertson, NSW Shopping Centre Protocol – Creating the Space for Dialogue: the Report at 3.

53. R Goldsmith, Hanging Out: Negotiating Young People’s Use of Public Space (Australia, Attorney-General’s Department, National Crime Prevention Program, 1999) at 23.

54. R White “Regulating youth space – Are young people losing the struggle for space of their own?” (1997) 22(1) Alternative Law Journal 30 at 30.

55. R Goldsmith, Hanging Out: Negotiating Young People’s Use of Public Space at 7, drawing on the findings of C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia, Chapter 5. The New South Wales Legislative Council Standing Committee on Social Issues noted that a comparatively high proportion of offences committed by 10-17-year-olds, including assault, were committed in public spaces such as the street, parks, parking areas and sports grounds. Overall, the majority of assaults were committed on school premises: New South Wales Parliament, Legislative Council Standing Committee on Social Issues, A Report into Youth Violence (Report No 8, 1995) at 42.

56. See Chapter 1 at para 1.17-1.20.

57. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 151.

58. R White, Public Spaces for Young People: A Guide to Creative Projects and Public Strategies (Australia, Attorney General’s Department, 2002)

59. White at 10.

60. White at 10.

61. C Grant, “Banning the banning notice” (2000) 25(1) Alternative Law Journal 32. “For young people these shopping centres are the modern equivalent of the old local streetscape which contained shops, parlours and community halls.”

62. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 143.

63. Cunneen and White at 141.

64. Or, increasingly in shopping centres, security guards.

65. White argues that “[t]he social polarisations in Australian society are not only manifest in high levels of youth unemployment and poverty; they are increasingly being translated into a series of interrelated spatial polarisations”: R White, “Regulating youth space – Are young people losing the struggle for space of their own?” at 30.

66. See R White, Public Spaces for Young People: A Guide to Creative Projects and Public Strategies.

67. G Clancey, S Doran and D Robertson, NSW Shopping Centre Protocol – Creating the Space for Dialogue: the Report at 4. See also S Rotherham, “Youth on the streets: better ways to share our spaces” (2002) 22 (6) Government News 12; C Grant, “Banning the banning notice” (2000) 25(1) Alternative Law Journal 32.

68. The lack of comprehensive record-keeping and a centralised data base, as well as shopping centre concerns about privacy, make it extremely difficult to give statistics on the number of banning notices issued by shopping centres across New South Wales. One shopping centre revealed that in the period 2001-February 2003, it had issued a total of 469 banning notices, including two for life and several for three or five years: G Clancey, S Doran and D Robertson, NSW Shopping Centre Protocol – Creating the Space for Dialogue: the Report at 6.

69. R White, “Regulating youth space – Are young people losing the struggle for space of their own?” at 31; S Campbell, “Reality checks: the changing relationship in the policing of young people and its implications for legal practitioners” (1997) 37(10) Law Society Journal 58. The number of ban notices issued throughout Australia in 2000 was conservatively estimated to be at least 1760: Youth Action Policy Association, “You’re banned! Shopping centres, banning notices and young people” (See «http://www.yapa.org.au/youth/publicspace/banned.htm»).

70. See also N Gannon, “Young people banned: is it legal?” (2002) Article 13: Law and Policy Journal of the National Children’s and Youth Law Centre 3.

71. The number of trespass charges for young people who have breached banning notices has shown a steady increase for the period 1995-2000, but still remain relatively low. “Anecdotal evidence suggests that those young people being charged with trespass are but a tiny fraction of the total number of young people being banned across New South Wales”: G Clancey, S Doran and D Robertson, NSW Shopping Centre Protocol – Creating the Space for Dialogue: the Report at 6.

72. Youth Action and Policy Association, Creating the Space for Dialogue: A Guide to Developing a Local Youth Shopping Centre Protocol (University of Western Sydney, Sydney, 2003). The Guide was funded by the New South Wales Attorney General’s Department Crime Prevention Division. The Shopping Centre Council of Australia also made a financial contribution.

73. This suggestion has the support of the Youth Policy and Programs Unit, New South Wales Police.

74. New South Wales Bureau of Crime Statistics and Research, Recorded Crime Statistics 2001-2004: Method by which police proceeded against juvenile persons of interest (aged 10 to 17), Excluding driving offences. In 2004, 13,600 matters were proceeded against to court. A further 34,391 juveniles were proceeded against by way of infringement notice (21%), referral to youth conference (3%), caution under the Young Offenders Act 1997 (NSW) (27%) and warning (48%). In 2003, 15,097 matters were proceeded against to court. A further 29,117 juveniles were proceeded against by way of infringement notice (30%), referral to youth conference (4%), caution under the Young Offenders Act 1997 (NSW) (36%) and warning (64%).

75. Youth Justice Coalition, Kids in Justice Report: A Blueprint for the 1990s at 246.

76. DPP v Carr (2002) 127 A Crim R 151 at [35] (Smart AJ); see also DPP v Carr (2002) 9 Crim LN (3) at 22.

77. This is the NSW Police’s database.

78. New South Wales Law Reform Commission, Sentencing: Young Offenders (Issues Paper 19, 2001), Issue 24 at para 3.131-3.135.

79. See J Collins, G Noble, S Poynting and P Tabar, Kebabs, Kids, Cops and Crime, Chapter 6. The term “ethnic minority” is used to describe non-Indigenous Australians from a non-English-speaking-background: see generally, S Zelinka, “Ethnic minority young people” in C Guerra and R White (ed), Ethnic Minority Youth in Australia (National Clearing House for Youth Studies, Department of Education, University of Hobart, Tasmania, 1995) and P Easteal, “Migrant youth and juvenile crime” in A Borowski and I O’Connor (ed), Juvenile Crime, Justice and Corrections at 151-166. See also R White, S Perrone, C Guerra and R Lampugnani, Ethnic Youth Gangs in Australia: Do They Exist? (Report, Australian Multicultural Foundation, 1999).

80. J Chan, “Policing youth in ‘ethnic’ communities: is community policing the answer?” in R White and C Alder (ed), The Police and Young People in Australia at 176. See also C Cunneen, “Enforcing genocide? Aboriginal young people and the police” at 142-145; C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 190-193; J Chan, Changing Police Culture: Policing in a Multicultural Society (Cambridge University Press, Cambridge, 1997); R White, “Hassle-free policing and the creation of community space” (1998) 9(3) Current Issues in Criminal Justice 313; B Delahunty “Taking ‘Kiddie Cops’ and ‘Care Bears’ seriously”.

81. C Chan and C Cunneen, Evaluation of the Implementation of the New South Wales Police Service Aboriginal Strategic Plan (Sydney Institute of Criminolgy, 2000) at 32.

82. New South Wales Ethnic Affairs Commission, Policing and Ethnicity in NSW (unpublished report, 1992) cited in J Chan “Policing youth in ‘ethnic’ communities: is community policing the answer?” at 179.

83. New South Wales Ethnic Affairs Commission, Policing and Ethnicity in NSW cited in Chan at 179.

84. J Chan, Changing Police Culture: Policing in a Multicultural Society at 17-25.

85. New South Wales Ethnic Affairs Commission, Policing and Ethnicity in NSW cited in J Chan “Policing youth in ‘ethnic’ communities: is community policing the answer?” at 179.

86. Australia, Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence (Sydney, 1991) at 96.

87. J Chan, Changing Police Culture: Policing in a Multicultural Society at 111-112.

88. J Collins, G Noble, S Poynting and P Tabar, Kebabs, Kids, Cops and Crime at 39-42. Poynting argues that the police response to the Lakemba drive-by shooting was a “well-orchestrated, ‘in-your-face’ stop-and-search program” focusing on Lebanese youth in the Bankstown area which resulted in a large number of move-on directions and searches, and several arrests for minor offences such as offensive language: S Poynting, “When ‘zero tolerance’ looks like racial intolerance: ‘Lebanese youth gangs’, discrimination and resistance” (1999) 11(1) Contemporary Issues in Criminal Justice 74 at 74-75.

89. See K Warner, “Gang rape in Sydney: Crime, the media, politics, race and sentencing” (2004) 37(1) The Australian and New Zealand Journal of Criminology 344 for a discussion of these crimes and the implications for sentencing.

90. See, generally, R Lozusic, Gangs In NSW (NSW Parliamentary Library, Briefing Paper No 16/2002, 2003), in particular Chapter 5, “The ethnic gang debate in NSW”.

91. “The root cause of TJ Hickey’s death” (editorial) Sydney Morning Herald, 17 July 2004 at 40.

92. “The root cause of TJ Hickey’s death” at 40.

93. “The root cause of TJ Hickey’s death” at 40.

94. The country of birth used is based on the Australian Bureau of Statistics “Classification of Countries”.

95. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 205.

96. Australasian Police Multicultural Advisory Bureau, Multicultural Liaison Officers: Introduction http://www.apmab.gov.au/mlo/index.html Other examples include involvement in the New South Wales Government’s Youth Partnership with Arabic Speaking Communities: http://www.youthpartnership.nsw.gov.au/

97. Australasian Police Multicultural Advisory Bureau, Multicultural Liaison Officers: Introduction.

98. J Chan, Changing Police Culture: Policing in a Multicultural Society at 53.

99. See Chapter 2 at para 2.55.

100. There was a significant drop in the number of young people going to court between 1989 and 1990, from 8,193 to 2,352, but a gradual increase since then. Nevertheless, the 1998/99 figure of 4,851 – the highest since the Act was introduced – is still over 60% less than in 1987: G Maxwell and A Morris, “Juvenile Crime and Justice in New Zealand” in N Bala, J P Hornick, H N Snyder and J J Paetsch (ed), Juvenile Justice Systems: An International Comparison of Problems and Solutions (Thompson Educational Publishing, Toronto, 2002) 189 at 210-211. See also N Hennessy, “Review of the Gatekeeping Role in Young Offenders Act 1997 ” (October 1999) Report to Youth Justice Advisory Committee at 6-7.

101. NSWLRC Issues Paper 19, Issue 7.

102. Youth Justice Advisory Committee, Submission at 3. YJAC also considered that targets ought to be set for “groups traditionally over-represented” in the juvenile justice system, especially for Aboriginal participation in diversionary schemes under the YOA: Submission at 4.

103. Department of Juvenile Justice, Annual Report 2003-2004 at 18.

104. See Department of Juvenile Justice, Annual Report 2003-2004 at 5: in 2003-2004, for every 1000 10-17 year-olds resident in New South Wales, 9.3 had a criminal matter finalised in the Children’s Court. The population of 10-17 year-olds in New South Wales in 2003-2004 was approximately 727,448. In 1989-90, the number of court appearances for young people was 15,879.

105. The Children’s Court of New South Wales, Submission at 10. The submission of the Minister for Juvenile Justice noted that the most effective means of continuing the upward diversionary trend is “[c]ontinued training, educating and resourcing all those involved in the operation of the [YOA]”: (then) Minster for Juvenile Justice, Hon Carmel Tebbutt MLC, Submission at 6.

106. The Legal Aid Commission of New South Wales, Submission at 5; The Shopfront Youth Legal Centre, Submission at 7; NSW Young Lawyers, Submission at 3; the Office of the Director of Public Prosecutions, Submission at 3; the Law Society of New South Wales, Submission at 4; the Children’s Court of New South Wales, Submission at 10.

107. Young Offenders Act 1997 (NSW) s 36(b) and (c).

108. New South Wales Police Service, Submission at 4.

109. New South Wales Police Service, Submission at 5.

110. New South Wales Police Service, Submission at 5.

111. J Chan, S Doran, E Maloney and N Petkoska, with J Bargen, G Luke and G Clancey, Reshaping Juvenile Justice: A Study of the NSW Young Offenders Act 1997 at Section 8.1.

112. Chan, Doran, Maloney and Petkoska, with Bargen, Luke and Clancey at Section 8.1: “About 5% of cases were dealt with by youth justice conferencing. … There were, however, substantial geographical variations in outcomes.”

113. Chan, Doran, Maloney and Petkoska, with Bargen, Luke and Clancey at Section 8.1

114. This was the rate found when other factors, such as gender, type of offence, age and location, were controlled for.