Updates and background for this project (Digest)

• Introduction
• Gatekeepers
• Admissions and legal advice

INTRODUCTION

5.1 The Young Offenders Act 1997 (NSW) (“YOA”) establishes a scheme that provides an alternative process to court proceedings for dealing with children who commit certain offences that fall within the ambit of the Act.¹ The diversionary procedures available are: to give a warning; to give a caution; and to hold a youth justice conference.²

5.2 This chapter examines the scheme generally, focusing on: the role of “gatekeepers” under the YOA; admissions necessary to qualify for a caution or conferencing; and legal advice given to young offenders who may be eligible for diversion. Chapter 6 separately considers cautions and Chapter 7 focuses on the most serious form of diversion, youth justice conferencing, and the resulting outcome plans.

GATEKEEPERS

5.3 The YOA provides for “gatekeepers” to its diversionary scheme, that is, people whose discretionary decisions determine a young offender’s entry to the levels of diversion. These are: investigating officials; specialist youth officers (“SYO”); the Office of the Director of Public Prosecutions (“DPP”); and Children’s Court magistrates, in that order. The role of these gatekeepers is to ensure that a young offender is dealt with by the appropriate option available under the Act. In particular, their role is to ensure that young offenders are not sentenced by courts where they are more appropriately dealt with by a diversionary option.

5.4 Nancy Hennessy, in her report to the Youth Justice Advisory Committee on the role of gatekeepers, identified some ways in which the YOA addresses the objective of diverting appropriate matters away from court.³ These include:

• stating principles in the Act which are intended to underpin its operation;
• listing factors in the Act which gatekeepers must take into account when making decisions;
• appointing specialist police to make decisions under the Act;
• providing that a magistrate who decides that a caution or conference is more appropriate than a court hearing, can caution the young person on the spot or refer the matter for a conference;
• providing for an independent umpire (the DPP) to arbitrate in certain cases where there is a disagreement about the decision; and
• enacting statutory time limits to increase the likelihood that decisions are made and implemented in a timely manner and that the process is flexible enough to respond in certain circumstances if a young person changes his or her mind.⁴

The investigating official

5.6 The YOA defines an investigating official as a “police officer, or a person appointed by or under an Act and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations”.⁵ Currently, the investigating official has primary responsibility for making determinations under the YOA before a court attendance notice is issued,⁶ or before issuing a penalty notice in respect of offences prescribed by the regulations.⁷ First, the investigating official must determine whether the offence falls within the operation of the YOA.⁸ If it does, he or she must determine whether to deal with the matter by way of warning or caution, or to refer the matter to an SYO for possible conferencing.⁹

5.7 The gatekeeping function has obvious relevance to the sentencing of young people, as decisions made by a police officer in this capacity bear directly upon whether a young person will face a sentencing court.¹⁰

Part 3 of the YOA - warnings

5.8 It is the investigating official who conducts all stages of the warning process provided for under Part 3 of the YOA. This process involves:

• determining whether the offence is one for which a warning may be given;¹¹
• determining whether a child is entitled to have the matter dealt with by way of warning – this entails asking whether violence was involved, and making a determination as to whether a warning would be in the “interests of justice”;¹²
• giving the warning;¹³
• explaining the purpose, nature and effect of the warning;¹⁴ and
• making a record of the warning.¹⁵

5.10 As this is not a matter on which the Commission has consulted, we express no concluded opinion on this proposal. However, we are concerned that, in some circumstances, notification of parents could lead to double punishment of the young offender - one at warning and one at home. If routine notification is to occur, it is essential that protocols be developed to protect children already at risk in the home environment. In principle, however, obtaining parental co-operation is a desirable goal.

Part 4 of the YOA - cautions

5.11 Part 4 of the YOA deals with a “formal police caution”.¹⁸ The investigating official is the primary (but not sole) authority in the operation of that Part. The responsibilities of the investigating officer during the cautioning process include:

• determining whether the offence is one for which a caution may be given;¹⁹
• determining whether a child has admitted the offence,²⁰ and consents to the caution;²¹
• determining whether the child is entitled to be given a caution – this involves evaluating the “interests of justice” in light of the seriousness of the offence, the degree of violence, the harm caused to any victim, the child’s previous record, and anything else the official thinks appropriate;²²
• making detailed explanations to the child as to the offence and the caution;²³
• giving a caution notice to the child;²⁴ and
• making a record of the caution.²⁵

5.13 If the investigating official thinks that the situation requires a more serious sanction than a caution, despite the young offender’s entitlement to a caution,²⁸ he or she must refer the matter to an SYO to consider whether conferencing is appropriate.²⁹ Prior to the 2002 amendments to the YOA,³⁰ the investigating official did not play a primary role in the determination of whether a conference should subsequently be held, or in convening a conference. Since then, however, an SYO and/or the DPP must consult with the investigating official before making any decision as to conferencing, unless it is impracticable to do so.³¹

Other responsibilities

5.14 Finally, the investigating official may be called upon to continue or commence proceedings in situations where:

(i) the YOA does not cover the offence;³²

(ii) the SYO or the DPP determine, or the conference administrator, SYO and investigating official agree, that proceedings should be commenced against the child;³³

(iii) a decision is otherwise made not to give a caution or hold a conference;³⁴

(iv) a child elects not to proceed with a caution or a conference, or fails to attend a caution or conference;³⁵

(v) the conference participants fail to produce a plan in accordance with the YOA;³⁶ or

(vi) the child fails to complete the outcome plan satisfactorily.³⁷

5.15 An SYO is defined as “a member of the Police Service appointed as a specialist youth officer for the purposes of this Act by the Commissioner of Police”.³⁸ As mentioned above, when an investigating official determines that a matter should be dealt with other than by warning or caution, the matter must be referred to an SYO. The SYO then makes a determination as to the appropriate way to proceed in the matter, whether by conferencing, cautioning or commencing proceedings against the young offender.³⁹

5.16 Initially, there was some conflict between the role of the investigating official and that of the SYO. The NSW Police has since acknowledged that SYOs are the only officers authorised under the YOA to make a decision to commence proceedings against young people,⁴⁰ and have remedied the problem of investigating officers laying charges on their own initiative by making changes to the reporting system.⁴¹ The Computerised Operational Policing System (COPS), used to record and report criminal incidents, has been modified so that only SYOs are authorised to accept charges.

5.17 The SYO’s primary role is to determine the suitability of the case for conferencing. Under s 37(4) he or she must, within 14 days of the referral, determine:

(i) whether the offence is one for which a conference may be held;⁴²

(ii) whether the child admits the offence,⁴³ and consents to the conference;⁴⁴ and

(iii) whether the child is entitled to be dealt with by way of conference – this involves evaluating the “interests of justice” in light of the seriousness of the offence, the degree of violence, any harm caused to the victim, the child’s previous record, and any matter which the SYO thinks appropriate.⁴⁵

5.19 While the SYO does not personally convene the conference, he or she must provide the young person with explanations of the alleged offence and the conference process.⁴⁸ In addition, the SYO is entitled to attend the conference,⁴⁹ and thereby participate in the creation of an outcome plan.⁵⁰

5.20 The SYO retains the right to determine, at any time before the conference is held, that it is not in the interests of justice to deal with the matter by way of conference. If so determined, the SYO then arranges for proceedings to be commenced, or a caution to be given, as appropriate.⁵¹ If the SYO has been authorised by the Commissioner of Police for the purposes of s 27, he or she may personally give a caution, or request a respected community member to do so.

The DPP

5.21 The next level of gatekeeping under the YOA is that of the DPP. The YOA prescribes a role for the DPP substantially similar to that of the Children’s Court in respect of the power to refer matters for conferencing.⁵² However, there are two points of distinction.

5.22 First, the YOA provides that the DPP cannot refer a matter for conferencing unless the child’s consent is obtained,⁵³ whereas the Court only requires that the child admits the offence.⁵⁴ Secondly, unlike the Court, the DPP has no role in approving outcome plans. Under the YOA, once the DPP refers a matter to a conference administrator, the matter joins the general stream of references, with the exception that the Commissioner of Police must be notified of the successful or unsuccessful completion of the outcome plan.⁵⁵

5.23 The DPP has two further functions under the YOA. The first is that he or she may determine whether a child should be cautioned in respect of an offence that is covered by Part 4. He or she may do so if the child admits the offence, and consents to being cautioned.⁵⁶ If the DPP determines a caution is appropriate, he or she must refer the child for cautioning to a person authorised by the Commissioner of Police for the purposes of s 23 of the YOA.⁵⁷ A referral of a child for cautioning by the DPP joins the main stream of cautions (as opposed to those given by the Court, which need not observe the substance of Part 4). Nonetheless, the DPP retains the right to determine, at any time before the caution is given, that it is not in the interests of justice for the matter to be dealt with by way of caution.⁵⁸

5.24 In practice, the DPP does not directly caution a young offender nor refer young offenders to a youth justice conference. This is because the DPP only deals with serious children’s indictable offences. The DPP appears in the Children’s Court in a committal hearing to seek to have the matter sent up to the District or Supreme Court, but does not otherwise prosecute cases that come within the ambit of the YOA. This is left to the police. The intention when the legislation was enacted was that the DPP would take over from the police the function of prosecuting all summary matters involving children.⁵⁹ As this has not occurred, the DPP’s functions under s 23 and 40 have not been exercised. However, the DPP indirectly refers a matter back to a youth justice conference administrator when acting as an umpire for disputed referrals under s 41 of the Young Offenders Act 1997 (NSW).

The Children’s Court

5.25 The Children’s Court is the final gatekeeper under the YOA. Its gatekeeping responsibility was one of the focal points of the submission of the Children’s Court magistrates. Given that one of the purposes of the YOA is to provide a fundamental alternative to court proceedings,⁶⁰ it is not surprising that the Children’s Court currently has a limited role under the YOA.

5.26 However, the Children’s Court may still employ diversionary options under the YOA, even when proceedings have already commenced and been brought before the Court. For example, it is possible that the young offender did not admit the offence until after proceedings were commenced, or would not consent to a caution or conferencing. Children’s Courts may, in certain circumstances, give cautions, and may refer matters for conferences under Part 5.

5.27 The Court may give a caution if a child admits the offence, and it is one covered by the YOA.⁶¹ The Court is bound by s 31 and s 32 (where a child is cautioned, no further proceedings may be taken in respect of the offence) and s 33 (a record of any cautions given must be made). But otherwise, Part 4 (Cautions) does not apply to a caution given by a court.⁶²

5.28 The other diversionary option the Children’s Court may currently use is youth justice conferencing, pursuant to Part 5 of the YOA.⁶³ In determining whether a matter ought to be conferenced, the court must take into account: the seriousness of the offence; the degree of violence involved; the harm caused to any victim; 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; and any matter the Court thinks appropriate.⁶⁴

5.29 The Court may refer a matter to conferencing at any time in the proceedings, including after a finding of guilt has been made.⁶⁵ Once the court determines that the matter should go to conference, the SYO is bypassed and the matter is referred directly to a conference administrator. The Court retains the power to determine at any time before the conference has been held that the matter should not be dealt with by conference.⁶⁶

5.30 If a conference is held on referral from the Court, the conference convenor must seek the Court’s approval for any agreed outcome plan.⁶⁷ If the Court does not approve the outcome plan, it may then continue proceedings.⁶⁸ Furthermore, the note to s 57 of the YOA provides that if the Court releases a child on condition that the child complies with an outcome plan, and he or she fails to do so, an authorised justice may issue a court attendance notice or warrant for the arrest of the child.⁶⁹

5.31 Aside from the Court’s power to continue proceedings, the child retains the right to elect that the matter be dealt with in Court rather than by way of either caution or conference.⁷⁰

5.32 In its submission, the Children’s Court proposed that any expanded ability to refer matters for conferencing could be complemented by providing conference administrators with the power to refer back to the Court any matter that, in the opinion of the administrator, has become unsuitable for conferencing. This might be the situation “if, for example, the case is too complex, there are too many offenders and/or victims involved, or the Conference Administrator becomes aware of facts which would make a just conference impossible”.⁷¹

5.33 The Children’s Court also suggested that the range of offences that may be referred to conferencing by the Court should be expanded so that the Court may, subject to certain exceptions, refer all matters other than a “serious children’s indictable offence” as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW).⁷² This accords with the Commission’s approach in Recommendation 4.2.

Other gatekeepers?

5.34 The statutory review of the YOA recommended that fisheries officers be included as gatekeepers under the YOA, authorised to warn or caution, or refer to conferencing, young people who are charged with offences under the Fisheries Management Act 1994 (NSW).⁷³ This recommendation was prompted by a submission from the Department of Aboriginal Affairs expressing concern that an “increasing number of young ATSI people … are coming into contact with the criminal justice system as a result of fisheries offences”.⁷⁴ The government accepted the review’s recommendation and noted that it is consistent with the NSW Fisheries Indigenous Fishing Strategy.⁷⁵

5.35 As noted above, an investigating official is defined by the YOA to mean a police officer or “a person appointed by or under an Act and whose functions include functions in respect of the prevention or investigation of offences”. In drafting this section, Parliament therefore clearly envisaged that persons other than a police officer could act as gatekeepers under the Act. We note that Part 9 (Enforcement) of the Fisheries Management Act 1994 (NSW) appoints fisheries officers⁷⁶ and gives them functions to prevent and investigate offences, including powers of arrest.⁷⁷

5.36 On the other hand, we also note that police officers have the functions of fisheries officers under s 244 of the Fisheries Management Act 1994 (NSW). This could support an argument that there is no need to appoint other investigating officials to process fisheries offences under the YOA. However, it may not always be practicable or desirable to summon a police officer to attend the charging process, whereas the fisheries officer investigating an alleged offence is already working in the environment. Furthermore, the fisheries officer is likely to have the greater expertise in responding to these particular offences as well as being well equipped to attend a conference and assist in the formulation of an outcome plan.

5.37 For these reasons, we support the recommendation of the statutory review that fisheries officers be appointed as investigating officials where offences under the Fisheries Management Act 1994 (NSW) are in issue. A regulation should be made under the YOA to make the position clear.

Recommendation 5.1
Fisheries officers should be investigating officials for the purposes of the Young Offenders Act 1997 (NSW) in respect of offences under the Fisheries Management Act 1994 (NSW).

5.38 Two of the prerequisites for a young person being cautioned or conferenced under the YOA are that he or she has admitted the offence and consents (except where the matter is already in court) to the caution being given or the conference being held.⁷⁸

5.39 Before a caution can be given, or a matter referred for conferencing, the investigating official in the former case, and the SYO in the latter, must explain to the child matters pertaining to the nature of the alleged offence and the caution or conferencing process, and that he or she is entitled to obtain legal advice.⁷⁹ These explanations must, if practicable, be given in the presence of either: a person responsible for the child; another adult present with the consent of the person responsible for the child; an adult chosen by a young offender older than 16; or a legal practitioner chosen by the child.⁸⁰

5.40 In addition, s 7(b) of the YOA provides that one of the principles that are to guide the operation of the Act, and persons exercising functions under it, is that a child who is alleged to have committed an offence is entitled to be informed about his or her right to obtain legal advice and to have an opportunity to obtain that advice.⁸¹

5.41 The connection between the legal advice received by a young person, and a refusal to make the necessary admissions or give the necessary consents was canvassed in Issues Paper 19 (“IP 19”).⁸² The Commission sought to ascertain whether, and in what circumstances, lawyers advise against participating in conferencing. Several submissions pointed out that it is not possible to know fully the content of advice given as the communications between lawyer and client are covered by legal professional privilege and can only be revealed if the client waives the privilege. Nevertheless, the “Reshaping Juvenile Justice” study found that advice included telling the young person: “to be honest and tell them what happened”; “that if they make an admission, they will get a caution instead of court”; and “not to say anything”.⁸³

5.42 Most submissions that addressed the issue of legal advice indicated that there are occasions when advising a young person against youth justice conferencing, or against making admissions in the circumstances, is quite appropriate.⁸⁴ For example, it would obviously be unethical to advise a young person to admit guilt if that young person maintains that they are innocent. In addition, a lawyer is obliged to obtain the best result possible for his or her client.⁸⁵ Thus, a lawyer would rightly advise against participation in a conference if the outcome was likely to be more severe than if the case proceeded to a hearing. Notwithstanding s 52(6)(a) of the YOA, which provides that a conference outcome must not be more severe than that which might have been imposed in court proceedings for the offence concerned, anecdotal information suggests that this is not always the case.⁸⁶

5.43 In its submission, the Children’s Legal Service of the Legal Aid Commission noted that it advises children against making admissions where:⁸⁷

• The child does not admit the offence;
• The child is under 14 and doli incapax is in issue;
• The arresting police are insisting on proceeding on an inappropriate charge … or a non-existent charge…;
• The arresting police do not have sufficient evidence against a child to make out the elements of any offence;
• The arresting police refuse to give an undertaking that the child will be dealt with under the YOA if an admission is made;
• The arresting police have arrested the child inappropriately…;
• The child does not wish to accept a caution or participate in a youth justice conference; or
• The child has a developmental disability or mental illness and should be dealt with under the Mental Health (Criminal Proceedings) Act 1990 (NSW).

5.45 However, the NSW Police told the Commission that, pursuant to the NSW Legal Aid Commission and NSW Police Youth Hotline Protocol, investigating officers cannot give undertakings, or offer any inducement, that a young offender will be dealt with under the YOA if he or she makes an admission.⁸⁸ In that case, logically, they cannot “refuse to give an undertaking that the child will be dealt with under the YOA if an admission is made”. What the police can do pursuant to the protocol, and what they try to do, is give the child’s legal advisor as much information as possible about the offence and the child’s history, which can indicate to the legal advisor the appropriate response under the YOA. The police can also give the legal advisor an indication of what they themselves consider might be the appropriate response. However, a decision about what action will be taken under the YOA cannot be reached until either an admission is made or the young offender makes it clear that he or she will make no admissions.

5.46 The “Reshaping Juvenile Justice” study also reported that many of its focus group participants were concerned that “the practice by lawyers advising young offenders (especially Aboriginal young offenders) not to make an admission to the offence” was “one of the key difficulties with the operation of the YOA”.⁸⁹ Some of the Aboriginal Legal Service’s Regional Commands, for example, advise young people against making any admissions to police, regardless of the circumstances of the alleged offence, because of issues it has with some perceived policing procedures.⁹⁰ It stated that, although advice not to make any admissions does not advance the function of the YOA, “police practice often limits the young person’s access to a solicitor, making more meaningful advice difficult”.⁹¹

Timing of legal advice

5.47 As noted previously, the YOA provides that the investigating official or the SYO must tell a young offender that he or she is entitled to obtain legal advice. However, the YOA imposes no condition that the legal advice be received before an admission is made and consent given.

5.48 The “Reshaping Juvenile Justice” study found that only 8 of the 17 young offenders in the sample group who were cautioned and 11 out of 25 of those who were conferenced were told about their right to obtain legal advice at the start of the interview.⁹²

5.49 The Legal Aid Commission submitted that the YOA is “effectively a statutory inducement to a child to waive their right to silence” and as such “an admission by a child should not be used unless the child has first had the opportunity to obtain legal advice”.⁹³ Of course, admissions cannot be used to activate either the cautioning or conferencing processes unless the child consents - Court cautioning or referrals to conferencing excepted. But the point remains that the child should ideally be advised prior to making any admissions.

5.50 Although young people have access to legal assistance such as the Legal Aid Hotline for under 18s, run up by the Legal Aid Commission’s Children’s Legal Service,⁹⁴ a young person’s right under the YOA to obtain legal advice is impaired unless the young person has been advised of that right at the outset of any proceedings, and given an opportunity to exercise the right.

5.51 Furthermore, while the Legal Aid Hotline is a very valuable resource, it does have its limitations. First, advice given over the phone is not the same as face-to-face advice, particularly as many of the children are in custody at a Police Station and are anxious and stressed. Secondly, complex advice must be delivered simply, in plain English, sometimes through an interpreter, which is not always easy to achieve over the phone. Thirdly, due to a lack of adequate facilities at some Police Stations, the child is not always given proper privacy while receiving advice.⁹⁵

5.52 The “Reshaping Juvenile Justice” research into legal advice received by young offenders found that, in the majority of cases, legal advice was given over the telephone. Eight of the ten people in the caution group who spoke to a lawyer said they understood the advice completely, while two understood only partly. Two of the five people in the conference group who spoke to a lawyer said they understood the advice completely, two understood only partly and one did not answer the question.⁹⁶

5.53 Both the NSW Legal Aid Commission and the Youth Justice Advisory Committee suggested that an effective means of giving the right to legal advice some substance might be by including within the YOA a formal “cooling-off” period.⁹⁷ During this time, a young person would be released in order to obtain legal advice prior to making any admissions or giving the required consent. While the Hotline would remain an important crisis contact, a cooling-off period would then enable a young person to follow-up initial telephone advice with “face-to-face” legal advice, overcoming the shortcomings of telephone interaction.

5.54 It could be argued, for two reasons, that amendment of the YOA to legislate a mandatory cooling-off period is not necessary.

5.55 First, the NSW Police has already implemented a protocol that provides for a cooling-off period. This is the Young Offenders Legal Referral Protocol (“YOLR”), implemented in 2002. It involves police faxing a notification to an Aboriginal Legal Service, or to the Legal Aid Hotline (in metropolitan areas) or other legal representative, indicating that a young person has been spoken to by the police in relation to an offence covered by the YOA. The young person is then released to get legal advice before being dealt with.⁹⁸ He or she must then reappear at the police station on a nominated date, preferably 7-14 days later but within 21 days. It is colloquially known as “tag and release”.⁹⁹

5.56 Secondly, s 43 of the YOA provides a form of cooling-off period for conferencing, in that it stipulates that a conference must, if practicable, not be held less than 10 days after the convenor has given certain information about the conference to the young offender,¹⁰⁰ during which time he or she can get legal advice.

5.57 However, each of these existing safeguards has its limitations. The YOLR is only a protocol, with no legislative standing or imperative. While the protocol allows a generous period of time to obtain legal advice, again, these are guidelines only with no compulsion. If a young person and the adult present at the explanation of the child’s rights¹⁰¹ waive the opportunity to obtain legal advice, the matter may proceed then and there with admissions being made. The Commission was told in consultations that the presence of a parent in particular often resulted in pressure upon the young person to simply admit the offence and “get it over and done with”, regardless of the facts surrounding the alleged offence.

5.58 In relation to the time requirements for conferencing, by the time a conference has been convened, although not yet held, the young person has already made admissions. In addition, a study of cases between 1998 and 1999 carried out by the NSW Bureau of Crime Statistics and Research found that 28% of conferences were held before the 10-day notice period had expired.¹⁰² Lastly, there is no similar hiatus built into the cautioning process.

5.59 Accordingly, the Commission has concluded that, despite the operation of the YOLR, the s 7(b) principle that a child should have an opportunity to obtain legal advice should be enshrined in an enforceable provision in the Act. The YOA should stipulate that neither an admission of an offence made by a child, nor consent given by a child, should be valid for the purposes of the Act unless the child has received legal advice, or unless the admission is made and consent given after a cooling-off period during which the child has had the opportunity to seek legal advice.

5.60 While we think it is preferable for admissions to be made and consents given only after the child has received legal advice on the matter, we feel that a child should not be forced into obtaining legal advice. The benefit of the cooling-off period is that the child has the opportunity to reflect, and consult with others, on whether or not to obtain advice.

Recommendation 5.2
Neither an admission by a child of an offence, nor consent to diversionary processes, should be valid for the purposes of s 19, 23, 31, 36 or 40 of the Young Offenders Act 1997 (NSW) unless the admission is made, and consent given, after the child has received legal advice or has had a reasonable opportunity to receive legal advice. A “reasonable opportunity” should be defined to mean not less than four days between the time an allegation is made to the child that he or she has committed an offence and the commencement of the diversionary processes.

1. Young Offenders Act 1997 (NSW) s 3(a). See Chapter 4 for an exploration of the range of offences covered by the YOA.

2. Young Offenders Act 1997 (NSW) s 9(1).

3. N Hennessy, Review of Gatekeeping Role in Young Offenders Act 1997 (NSW) (Report to the Youth Justice Advisory Committee, 1999) at para 33.

4. Hennessy at para 33.

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

6. Children (Criminal Proceedings) Act 1987 (NSW) s 8(1): “Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice.”

7. Young Offenders Act 1997 (NSW) s 9(2A). Pursuant to cl 22 of the Young Offenders Regulations 2004 (NSW), there are two offences currently prescribed for the purposes of the diversionary scheme established by the YOA:

1. Offences pursuant to s 11C of the Summary Offences Act 1988 (NSW) relating to custody of a knife in a public place or school; and

2. Offences pursuant to s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) relating to a failure to comply with a reasonable direction given in a public place.

Cl 22 of the Young Offenders Regulation 1994 (NSW) provides that a s 199 offence is prescribed for the purposes of the diversionary scheme established by the YOA.

9. Young Offenders Act 1997 (NSW) s 9(2)(b) and 14(4).

10. Chapter 3 expands the discussion of how the Young Offenders Act 1997 (NSW) structures police discretion.

11. Young Offenders Act 1997 (NSW) s 13.

12. Young Offenders Act 1997 (NSW) s 14.

13. Young Offenders Act 1997 (NSW) s 15.

14. Young Offenders Act 1997 (NSW) s 16.

15. Young Offenders Act 1997 (NSW) s 17.

16 NSW Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 (“Report on the Review of the Young Offenders Act 1997”), Recommendation 23. Although the report was published in October 2002, it was not tabled in Parliament until June 2004: see New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 24 June 2004 at 907.

17 New South Wales Government, Response to the Report on the Review of the Young Offenders Act 1997 (“Response to the Report on the Review of the Young Offenders Act 1997”) at 10: see New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 24 June 2004 at 907.

18. Young Offenders Act 1997 (NSW) s 4 and 19.

19. Young Offenders Act 1997 (NSW) s 18, and 19(a).

20. Young Offenders Act 1997 (NSW) s 19(b).

21. Young Offenders Act 1997 (NSW) s 19(c).

22. Young Offenders Act 1997 (NSW) s 19(d) and 20.

23. Young Offenders Act 1997 (NSW) s 22.

24. Young Offenders Act 1997 (NSW) s 30.

25. Young Offenders Act 1997 (NSW) s 33.

26. Young Offenders Act 1997 (NSW) s 27. In particular, the legislation provides that a respected member of the Aboriginal community may give the caution if the young offender is a member of that community.

27. Young Offenders Act 1997 (NSW) s 28(j).

28. See Young Offenders Act 1997 (NSW) s 20.

29. Young Offenders Act 1997 (NSW) s 21(2). If a conference is subsequently convened, the investigating officer is entitled to be a participant: Young Offenders Act 1997 (NSW) s 47(g). In this capacity, he or she may assist the conference to arrive at decisions and recommendations which may be contained in an outcome plan, which may impose various sanctions upon the child: Young Offenders Act 1997 (NSW) s 52.

30. Young Offenders Amendment Act 2002 (NSW) s 3 and Sch 1, cl 5 and 6.

31. Young Offenders Act 1997 (NSW) s 38(4) and 40(6).

32. Young Offenders Act 1997 (NSW) s 9(2)(a).

33. Young Offenders Act 1997 (NSW) s 38(3) and 41(8).

34. Young Offenders Act 1997 (NSW) s 64(1)(a). This applies even where the applicable limitation period has expired.

35. Young Offenders Act 1997 (NSW) s 64(1)(b).

36. Young Offenders Act 1997 (NSW) s 64(1)(c).

37. Young Offenders Act 1997 (NSW) s 64(1)(d).

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

39. Young Offenders Act 1997 (NSW) s 38. Note that, pursuant to s 38(4), consideration by the SYO must now, where practicable, be taken in consultation with the investigating official.

40. N Hennessy, Review of Gatekeeping Role in Young Offenders Act 1997 (NSW) at para 80.

41. G Clancey and P Jackson, “The Young Offenders Act 1998 – 2001: three years of diverting young people away from court” (2001) 13(3) Police Service Weekly 4 at 4-5.

42. Young Offenders Act 1997 (NSW) s 35 and 36(a).

43. Young Offenders Act 1997 (NSW) s 36(b).

44. Young Offenders Act 1997 (NSW) s 36(c).

45. Young Offenders Act 1997 (NSW) s 36(d) and 37.

46. Young Offenders Act 1997 (NSW) s 38(1).

47. Young Offenders Act 1997 (NSW) s 38(2) and 38(3).

48. Young Offenders Act 1997 (NSW) s 39(1).

49. Young Offenders Act 1997 (NSW) s 47(h).

50. Young Offenders Act 1997 (NSW) s 52.

51. Young Offenders Act 1997 (NSW) s 44(2).

52. Young Offenders Act 1997 (NSW) s 40.

53. Young Offenders Act 1997 (NSW) s 40(1)(c).

54. Young Offenders Act 1997 (NSW) s 31(1).

55. Young Offenders Act 1997 (NSW) s 56.

56. Young Offenders Act 1997 (NSW) s 23(1). The Director of Public Prosecutions must determine whether to refer the child for a caution in light of the seriousness of the offence, the degree of violence involved, the harm caused to any victim, the child’s previous record, and any other matter the Director thinks appropriate: s 23(2).

57. Young Offenders Act 1997 (NSW) s 23(3).

58. Young Offenders Act 1997 (NSW) s 25(3).

59. N Hennessy, Review of Gatekeeping Role in Young Offenders Act 1997 (NSW) at para 32. See also New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 August 2002 at 4227, Speech of the Hon R Jones on the Young Offenders Amendment Bill 2002.

60. Young Offenders Act 1997 (NSW) s 3(a).

61. Young Offenders Act 1997 (NSW) s 31(1). The child does not need to have consented to a caution being given.

62. Young Offenders Act 1997 (NSW) s 31(2).

63. Young Offenders Act 1997 (NSW) s 40(1) gives the court the power to refer a matter for a conference if:

(a) the offence is one for which a conference may be held, and

(b) the child admits the offence, and…

(d) the … court is of the opinion that a conference should be held under this Part.

65. Young Offenders Act 1997 (NSW) s 40(3).

66. Young Offenders Act 1997 (NSW) s 44(3).

67. Young Offenders Act 1997 (NSW) s 54(1).

68. Young Offenders Act 1997 (NSW) s 54(2).

69. See s 41 of the Children (Criminal Proceedings) Act 1987 (NSW).

70. Young Offenders Act 1997 (NSW) s 25(1) and 44(1). It should be noted that s 11(1) expressly provides that the YOA does not affect any jurisdiction conferred on the Children’s Court under the Children (Criminal Proceedings) Act 1987 (NSW) or on any other court under any other law.

71. The Children’s Court of New South Wales, Submission at 3.

72. The Children’s Court of New South Wales, Submission at 2.

73. Report on the Review of the Young Offenders Act 1997, Recommendation 18, para 9.5.

74. Report on the Review of the Young Offenders Act 1997 at 9.5. The example given is of young ATSI people being charged for fisheries offences in areas where seafood is a customary food source.

75. Response to the Report on the Review of the Young Offenders Act 1997 at 8.

76. Fisheries Management Act 1994 (NSW) s 243. Section 243 authorises the Minister to appoint fisheries officers and to grant them either some or all of the functions accorded to fisheries officers.

77. Fisheries Management Act 1994 (NSW) s 248-263.

78. Young Offenders Act 1997 (NSW) s 19(1)(b), 19(1)(c), 36(1)(b) and 36(1)(c). The other two are that the offence is one for which a caution may be given or conference held, and the child is entitled to be cautioned or conferenced. However, note that where the Director of Public Prosecutions or a court refers a matter for a conference under s 40(1)(b), the child’s admission of the offence is required but not his or her consent to conferencing.

79. Young Offenders Act 1997 (NSW) s 22(1) and 39(1). (c) These sections also provide that the investigating official or specialist youth officer must explain to the child that he or she is entitled to elect that the matter be dealt with by a court: s 22(1)(c) and 39(1)(c).

80. Young Offenders Act 1997 (NSW) s 22(2) and 39(2).

81. Research on the first three years of the operation of the YOA found that 54% of young offenders who attended a caution and 75% of those who attended a conference were told of their right to obtain legal advice, of whom only 26% and 14% respectively actually took advantage of this right and spoke to a lawyer: 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) (“Reshaping Juvenile Justice”) at section 5.3.

82. New South Wales Law Reform Commission, Sentencing: Young Offenders (Issues Paper 19, 2001).

83. Chan, Doran, Maloney and Petkoska, with Bargen, Luke and Clancey at section 5.3.

84. Shopfront Youth Legal Centre, Submission at 4-5; New South Wales Young Lawyers (Criminal Law Committee), Submission at 2; Office of the Director of Public Prosecutions, Submission at 2; New South Wales Police Service, Submission at 3; The Law Society of New South Wales, Criminal Law Committee and Children’s Legal Issues Committee, Submission at 3.

85. See Revised Professional Conduct and Practice Rules 1995, r 23 A.16. Rule 23 states that it applies to all legal practitioners when they are acting as advocates. These professional rules are made by the Council of the Law Society of New South Wales pursuant to the Legal Profession Act 2004 (NSW) s 703. Section 711 of the Act makes these rules binding on practitioners and states that a failure to comply may amount to unsatisfactory professional conduct or professional misconduct.

86. The Shopfront Youth Legal Centre, Submission at 5. The NSW Police Service noted that “for many reasons, outcome plans may often exceed a court imposed penalty for the same or similar offence”: Submission at 3. Shopfront (at 4) suggested the possibility of “clearer limitations on conference outcome plans in regard to community service hours, so as to ensure that outcomes are no more onerous than a court would have imposed”. It should be noted, however, that the Young Offenders Regulation 2004 (NSW) cl 19 provides that an outcome plan must not impose more community service hours than the maximum that may be imposed under the Children (Community Service Orders) Act 1987 (NSW) for the same offence.

87. Legal Aid Commission of New South Wales, Submission at 4.

88. Information supplied by NSW Police Service (22 August 2005).

89. J Chan, S Doran, E Maloney and N Petkoska, with J Bargen, G Luke and G Clancey, Reshaping Juvenile Justice at section 7.2.

90. NSW Law Reform Commission Consultations, Coffs Harbour (20-21 May, 2002).

91. J Chan, S Doran, E Maloney and N Petkoska, with J Bargen, G Luke and G Clancey, Reshaping Juvenile Justice at section 7.2.

92. Chan, Doran, Maloney and Petkoska, with Bargen, Luke and Clancey at section 5.3. However, it is important to note that the report has commented that “the poor response rates from conference and court participants and from victims in caution cases have meant that the samples of interviewees were likely to be biased through self-selection. The results from these surveys are therefore not generalisable to the populations from which the samples came”: section 1.5.

93. Legal Aid Commission of New South Wales, Submission at 4.

94. This was established in 1998 in direct response to the introduction of the Young Offenders Act 1997 (NSW), and its guiding principle that a child is entitled to receive legal advice (s 7(b)): T O’Sullivan, “Provision of Legal Advice and the Legal Aid Commission’s Youth Hotline” paper presented to Institute of Criminology, University of Sydney (Sydney, 7 May 2003) at 1.

95. O’Sullivan at 5-6.

96. J Chan, S Doran, E Maloney and N Petkoska, with J Bargen, G Luke and G Clancey, Reshaping Juvenile Justice at section 5.3. However, as was pointed out in footnote 92, there was a severe problem with non-response in these surveys and hence, in the words of the authors, the samples are likely to be biased.

97. Legal Aid Commission of New South Wales, Submission at 5; Youth Justice Advisory Committee, Submission at 3.

98. If a child in a metropolitan area, or in a country town where there is no Aboriginal Legal Service, has been arrested at a time when the Legal Aid Hotline is closed, he or she may be kept in custody until 9am the next morning when the Hotline can be reached.

99. See P Lalor, “Young Offenders Legal Referral and Cautioning Aboriginal Young Persons Protocol”, paper presented at the conference Youth Liaison Officers (Goulburn, 18-20 October 2004). See also J Chan, “Implementation of the Young Offenders Act” in J Chan (ed), Reshaping Juvenile Justice: The NSW Young Offenders Act 1997 (Sydney Institute of Criminology, 2005) at 45.

100. For the information required to be given to the child, see Young Offenders Act 1997 (NSW) s 45(3).

101. As required by s 10 of the Young Offenders Act 1997 (NSW).

102. L Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme (NSW Bureau of Crime Statistics and Research, Legislative Evaluation Series No 12, Sydney, 2000) at para 3.2.2. See, for further discussion of this research, Chapter 7 at para 7.15.