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Human Rights Brief 5 Practitioner checklist

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.