Review of Gatekeeping Role in Young Offenders Act 1997


Reasons for the Review and its Scope

Review requested by YJAC

1. This review has been undertaken at the request of the Gatekeeping Sub-Committee of the New South Wales Governments’ Youth Justice Advisory Committee (YJAC). YJAC is created under the Young Offenders Act 1997 (the Act) to advise the Attorney General and the Director-General of Juvenile Justice on the performance of monitoring and evaluation of the Act, among other things. The Committee comprises both government and community members. Despite the fact that s 76 requires that the Act be reviewed after 3 years the Committee considered it important to evaluate the gatekeeping provisions of the legislation at this stage.

Focus on Gatekeepers

2. The Terms of Reference are expressed broadly, but discussion with YJAC members made it clear that it was the gatekeeping provisions of the legislation that should be the focus for the review. “Gatekeepers” is the collective term for those individuals or groups (namely police officers; Specialist Youth Officers; the Director of Public Prosecutions and magistrates) who have power to make decisions, within statutory limits, about whether a young person should be dealt with by way of a warning, caution, a conference or court proceedings. Two other groups also have a significant role in influencing decisions about how young people are dealt with under the Act. They are conference administrators and lawyers who advise and/or act for young people in criminal matters.

Rates of diversion less than expected

3. YJAC was concerned that after 15 months of the Act’s operation, fewer matters were being diverted from court than had been anticipated. While no specific targets had been set, committee members anticipated that the majority of young people would be diverted away from court proceedings. This expectation came from at least two sources. The first was the scheme of the legislation and its principles, in particular the principle that “criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter”. s 7(c). The second reason that committee members were optimistic that high diversion rates would be achieved was that other jurisdictions, such as New Zealand and South Australia, had achieved a high level of diversion.

4. During the visit of two of the committee members to New Zealand in 1996, they were advised that the rates at which matters were being dealt with by way of cautions/conferences and court under the New Zealand Children, Young Persons and Their Families Act 1989, were as follows:

• 85% of juvenile matters were being dealt with by way of warnings or cautions;
• 1.8% being dealt with at court;
• 13% matters being dealt with by family group conferences.

6. As with the New Zealand statistics, these figures are not directly comparable with the situation in New South Wales. In New Zealand referral to a Family Group Conference is mandatory for matters not dealt with by police caution. In South Australia, as in New South Wales, police have a discretion in relation to where to refer a matter. Other factors such as the kinds of offences eligible for diversion and the size of the police service make direct comparisons with other jurisdictions of limited relevance. Nevertheless they do provide a general indication of the diversion rates that can be achieved.

Concerns about diversion rates for ATSI and NESB young people

7. Another major concern of YJAC prompting this review, is that the rate of diversion for Aboriginal and Torres Strait Islander (ATSI) young people appeared to be considerably lower than that for the remainder of the youth population. Concern was also expressed that the rate of diversion for young people from a non-English speaking background may also be significantly lower than for the general population. Unfortunately the statistics in relation to ethnic minorities are not reliable enough to make any conclusions on this point.

Compliance with the Act and its objects

8. Statistics aside, the YJAC is keen to ensure, as far as possible, that every matter coming to the attention of gatekeepers is dealt with in accordance with the legislation and its objects. The Terms of Reference also allow for recommendations to be made for any legislative change to better achieve the diversionary objects of the Act.