Diversion is a principle of Victoria’s youth justice system and provides an opportunity to intervene early, before at-risk children and young people begin offending or progress to repeat offending. By diverting them away from crime, prosecution and custody, and by facilitating their rehabilitation, these young people are more likely to be able to live full and productive lives and the community will be safer.
For young people, diversion recognises that:
- their contact with the criminal justice system increases their risk of offending1
- they have a ‘unique capacity to be rehabilitated’2
- their criminal behaviour is not necessarily a calculated action, but is largely a product of circumstances such as their age, maturity , their background and social context.3
Research tells us that a small group of vulnerable and highly disadvantaged children and young people experience repeated and extensive contact with the youth justice system.4 Through diversion the community may intervene before these young people progress to serious offending, providing early access to support services and youth programs that address the reasons behind offending, including misuse of drugs and alcohol, disengagement with education, homelessness, experiences of abuse and neglect, and mental health issues. Accessing this support helps our most vulnerable young people get on with their lives and enhances community safety.
Victoria has a strong track record of diversion with many young people who come into contact with police being diverted away from Children’s Court proceedings through either informal or formal police cautions, Victoria Police’s ROPES program, fines, or other diversionary programs (see program details below).
However, many young people under 18 years are denied the opportunity to be diverted away from criminal justice system in Victoria either because:
- their particular needs and vulnerabilities are not effectively assessed and addressed early in the youth justice system
- some police are not using their discretion to give the young person a caution or refer them to an appropriate diversion program,5 or
- there are no appropriate diversion programs available in their local area.
Diversion discussion paper
More than four years ago the then Victorian Labor Government commenced a process of legislative reform, consulting with various stakeholders including Victoria Legal Aid and the Children’s Court to consider improvements to the diversionary system for children and young people. When the Coalition Government was elected in November 2010, Attorney-General Robert Clark became involved in these meetings, and eventually elected to put the ideas of the group out for broader consultation, in the form of the Practical Lessons, Fair Consequences – Improving Diversion for Young People discussion paper. In this paper, the Government acknowledged the need for improvement, given limitations in the availability and effectiveness of diversionary processes and services in the Victorian youth justice system.
The Government is currently considering its response to over 40 submissions to the discussion paper received up to October 2012, and it is understood that a whole of government response is being developed. To date, it has given no indication on when its final response will be released.
Barriers to diversion
Some shortcomings identified in discussion paper responses6 include:
- Absence of a sound legislative basis:
Since 2009, adults at low risk of re-offending have had access to a legislated diversion scheme in the Magistrates’ Court of Victoria, which provides mainly first time offenders with the opportunity to avoid a criminal record by undertaking conditions that will benefit the offender, victim and the community as a whole.
Counter-intuitively children and young people under 18 years cannot access a similar legislated and state-wide diversion program in the Children’s Court jurisdiction.
- Lack of early assessment on needs and vulnerabilities:
Currently the system doesn’t assess, intervene and engage with the issues of at-risk children and young people at an early stage to prevent further offending and their trajectory deeper into the criminal justice.While most young people who offend do so briefly during adolescence and stop as they mature, a small but highly vulnerable group of children start offending earlier and commit the most crime: 46 per cent of all children and young people alleged to have offended in 2010-11 were first processed by police at the age of 13 or younger.7 Longitudinal data shows that 85 per cent of young people who entered the youth justice system between the ages of 10 and 14 went on to have further involvement when they were 15–17.8Research also tells us much about which children and young people are most likely to be part of this high risk group. For example, those who were 14 or under at their first youth justice order were more likely to come from lowest socio-economic index areas (SEIFA) and locations with higher rates of developmental vulnerability on the Australian Early Development Index (AEDI) and higher rates of missed maternal child health appointments.
- Inconsistent use of discretion to divert
Some young people are being denied the opportunity to access diversion under the current system because police do not exercise their discretion to issue a caution or refuse to give consent for a referral to a diversion program. Examples include:Cautions: Despite the Victorian Police Cautioning program being reasonably accessible to many young people, significant evidence of uneven and inconsistent use of cautions raises questions about whether some police discretion has been properly exercised. Analysis of Victoria Police cautioning data in an unpublished research study from Deakin University’s Centre for Rural Regional Law and Justice reveals an ad hoc approach to cautioning across the state. The analysis reveals that many areas in rural and regional Victoria have total formal cautioning rates well below those of both metropolitan Melbourne and the state overall.Referral to diversion program. Young people’s entry to current diversion programs such as ROPES and Right Step (see list below) is subject to police discretion and whether police form the view that the offender would benefit. There is currently no formal appeal or review process of a police informant’s refusal to refer a young person to diversion.
- Lack of access to support services and interventions
Young people in rural, regional and remote areas are even more likely to be denied access to the current diversion programs. The Right Step program only operates in Moorabbin, and the ROPES program, whilst available across metropolitan Melbourne, does not operate in all rural and regional regions. Lack of support services such as accommodation services, or mental health and drug and alcohol programs in some regional, rural and remote areas compounds the issue. Indeed the success of innovative intensive casework support programs such as Right Step largely relies on their positioning within a ‘youth hub’ – a network of well-resourced and locally based services. Consequently young offenders in regional Victoria are missing out on diversion programs that enable their city counterparts and some adult offenders to get their life back on track and avoid a criminal record.
The way forward
The most critical overall improvement required in Victoria is the introduction of a state-wide legislated diversion scheme to ensure effective assessment and diversion of young offenders from court proceedings across the state and to link them to appropriate interventions.
The legislative framework could be coordinated by the Department of Human Services to ensure consistent and equitable access to diversion at the earliest stage for all eligible children and young people across the state. The legislation would provide:
i) resources for assessment of young offenders’ circumstances and risks
ii) a spectrum of interventions proportionate to the offence and tailored to the personal needs and circumstances of each child or young person, without over-intervening. Interventions include police warnings, formal cautions and low level consequential activities to more intensive case managed interventions.
A state-wide scheme would mean a young person will never miss out simply because of where they live.
Legislation will also address the issue of individual police officers being inconsistent in their referrals to diversion programs. Where police elect not to issue a warning, caution or referral, but rather proceed with charges, a Magistrate may decide to caution or refer a young person to an appropriate diversion program instead.
Support and intervention that prevents our most vulnerable young people from becoming lifelong offenders not only meets our social obligation to them, but is also of long-term benefit to the community’s safety and its hip pocket.
Diversion programs for at-risk children and young people early in the criminal justice process offers a less costly way of addressing youth offending, especially when compared to the cost of further matters coming before the court or detention. Conversely, research illustrates that imprisonment does not lower rates of recidivism, does nothing to address the underlying causes of crime, inflicts long term damage and is expensive.
Community-based diversion and support programs cost about one tenth of that of detention in a youth justice facility.
Smart investment in youth diversion will deliver crime prevention benefits that investment in tough on crime initiatives will never achieve.
Thirteen year-old Peter* was charged with the theft of a motor vehicle, driving without a licence and failing to report an accident to police. The case was heard in the Children’s Court in the Central Highlands region.
The Magistrate made a finding that meant that low-level offenders aged between 10 and 18 years who plead guilty should, where appropriate, be offered another form of diversion where ROPES is unavailable in that region. Following the finding, however, police would not consent to diversion. Peter then entered a guilty plea because he wanted the matter finalised quickly as he had found the court process distressing.
Peter now has a permanent criminal record, which may have a negative impact on his future, including his employment options. It also makes it more likely that he will fall into a cycle of re-offending, with negative consequences for him and for the community. The outcome may have been different if he had been living in Dandenong, for example, where he would have been able to participate in the ROPES scheme. Or, if the magistrate had been able to make decisions about appropriate diversion without the consent of the prosecution, sentencing could have been deferred while Peter participated in diversion – the outcome of which would have likely removed any criminal record and assisted with Peter’s rehabilitation.
*name changed to protect his identity
Smart Justice for Young People is a broad coalition made up of youth advocates from community legal centres, youth services, peak bodies, and other community organisations.
 K Richards, ‘What makes juvenile offenders different from adult offenders?’ Trends and Issues in Criminal Justice (no 409), Australian Institute of Criminology, 2011.
 Weatherburn, Cush & Saunders, above n 9..
 Youthlaw Submission to the Department of Justice in response to Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria Discussion Paper, 2012 http://youthlaw.asn.au/wp-content/uploads/2012/05/Youthlaw-Submission-to-Diversion-Discussion-Paper-final.pdf
 “Entrenching diversion in the youth justice system”, Smart Justice for Young People Response to Diversion Discussion Paper (October 2012) http://youthlaw.asn.au/wp-content/uploads/2012/05/SJFYP-RESPONSE-TO-DIVERSION-DISCUSSION-PAPER-final-03-10-2012.pdf
 Jesuit Social Services,Thinking Outside: Alternatives to remand for children, 2013,p14
 Australian Institute of Health and Welfare, Young people aged 10–14 in the youth justice system, July 2013, http://www.aihw.gov.au/publication-detail/?id=60129543944
 Jesuit Social Services, op cit
 Dr L Jordan, J Farrell, Juvenile Justice Diversion in Victoria: A Blank Canvas?, Deakin University, unpublished