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Review of Gatekeeping Role in Young Offenders Act
Barriers to Compliance with the Act
Introduction
77. This section of the report examines the barriers identified by various stakeholders to compliance with the provisions and objects of the Act. These barriers range from failure to comply with the substantive and procedural provisions of the Act to issues of policy and practice. I conclude that removal of these barriers is likely to improve diversion rates, although it is impossible to predict the extent of any increase.
78. The next part of the report examines options for amending the legislation to achieve even higher diversion rates. These options are narrowing police discretion to commence criminal proceedings in relation to certain offences and introducing another level of gatekeeper to review an SYO’s decision to commence criminal proceedings.
Summary of barriers
Index of Barriers to Compliance with the Act - Barrier 1 to Barrier 9
79. In summary, the following barriers to compliance with the existing provisions of the Act were identified:
- police are making decisions to commence criminal proceedings without first referring the matter to an SYO;
- YLOs are not being used in preference to other SYOs when they are available;
- there are not enough SYOs and they do not have adequate resources to perform the functions required by the Act;
- YLOs are not ranked highly enough to carry out their responsibilities effectively;
- police are not exercising their discretion in accordance with the legislation;
- police practices do not always conform with the procedural requirements of the Act or promote its principles, including the principle that young people should be informed about their rights under the Act including their right to obtain legal advice and to have an opportunity to obtain that advice;
- police have insufficient access to information about the legislation and insufficient training to understand what is required to comply with the legislation and its objects;
- magistrates are sometimes making decisions which do not conform with the provisions or the objects of the Act; and
- there are insufficient accountability mechanisms to ensure that the provisions of the Act and its objects are being complied with.
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