Human Rights Brief 5
Best practice principles for
the diversion of juvenile offenders
Practitioner checklist
1. Viable alternatives to
detention
- Is there a wide
range of diversionary options available as an alternative to detention?
- Are programs adequately
resourced by way of personnel and infrastructure?
- Has there been
adequate consultation with Indigenous communities and organisations
in the planning and implementation stages (particularly in areas with
significant Indigenous populations)?
2. Availability
- Is recourse to
diversionary options available at all stages of the criminal justice
process?
- In determining
whether diversion is appropriate, can the decision-maker take into account
the circumstances of the offence, including mitigation?
3. Criteria
- Do the referral
process and the diversionary option have a legislative base?
- Are there established
criteria (and specific guidelines) for decisions concerning referral
to diversionary options?
4. Training
- Do those making
decisions have appropriate professional qualifications and expert training
in juvenile justice?
5. Consent and participation
- Does referral
to the diversionary option require the informed consent of the child,
or his or her parents or guardian?
- Is the child given
sufficient information to understand his or her options for diversion?
- Can the child
express his or her views during the referral process and during the
diversion process?
- Are safeguards
in place to minimise coercion and intimidation of young people?
6. Procedural safeguards
- Are the following
safeguards in place in the referral and diversion process?
- Direct and
prompt information about the offences alleged?
- Presumption
of innocence?
- Access to
legal representation?
- Access to
an interpreter?
- Right to have
parent or guardian present?
- Right to silence?
- Does the diversionary
option ensure that the child does not acquire a criminal record as a
result of participating in the scheme?
7. Human rights safeguards
- Are the best interests
of the child a guiding factor throughout the process of diversion?
- Does the diversionary
option promote the child's rehabilitation and social reintegration?
Avoid stigmatisation? Take account of his or her age and stage of maturation?
- Does the option
apply to all children without discrimination?
- Is the option
culturally appropriate for Indigenous children and children of ethnic,
religious and cultural minority groups? Do evaluations of the option
reveal that it is, in fact, accessible to such groups?
- Is the option
consistent with prohibitions against cruel, inhuman or degrading punishments?
8. Complaints and review mechanisms
- Can the child
make a complaint or request a review about the referral decision (including
potential coercion to agree to participate)?
- Can the child
make a complaint about his or her treatment during the diversionary
program?
- Can the child
make a complaint or request a review about the outcome of his or her
participation in the diversionary option?
- Are the complaint
and review processes administered by an independent authority?
9. Monitoring
- Does the diversionary
scheme provide for independent monitoring of the scheme?
- Does the monitoring
process include the collection and analysis of statistical data?
- Does the diversionary
scheme provide for a regular evaluation of its effectiveness? Is such
an evaluation carried out?
- Are the outcomes
of diversionary options monitored to ensure that penalties agreed to
are not significantly more punitive than those a court would impose,
and for consistency?
- In reviewing options
for diversion, is there a role for consultation with Indigenous communities
and organisations?
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Last
updated 2 December 2001.
