Under-utilising youth diversion : exploring criminal justice perspectives

It has been twenty years since the introduction of the Young Offenders Act (YOA) in NSW, and the commitment of the criminal justice system to the principle advocated by the Act of detention as a ‘last resort’, the principle described in Article 37(b) of the Convention of the Rights of the Child 1989. Introduced in 1987, the YOA aimed to keep children and young people out of the criminal justice system by reducing the number of people proceeding to court and ultimately in detention. Providing a hierarchical response to youth offending, warnings, cautions and youth justice conferencing, are the diversionary options available under the framework of the YOA. This thesis argues that the picture today is evidence of a long-term criminal justice reticence to apply the YOA to its full extent. The most recent statistics show that diversion to youth conferencing is the lowest it has ever been since the introduction of the YOA. Further, certain youth populations bear the brunt of the failures in youth diversion. In particular, Indigenous young people are being diverted at a lower rate than non-Indigenous young people, where the likelihood of diversion for Indigenous compared to non-Indigenous young people has not changed since the introduction of the YOA. Thus, the current system in NSW is failing to divert young people away from court. This study focuses on the institutional factors and individual actors directly involved in the application of the YOA to explain the wide failure to refer young people to diversion in NSW. Using a mixed of qualitative and quantitative data, but relying heavily on qualitative material from in-depth interviews with experienced NSW police, magistrates and youth justice personnel, the study analyses the decision-making process on diversion while presenting rival perspectives on the under-utilisation of youth diversion under the YOA. Theories of the dichotomy of punitivism and welfarism, social control, shame and reintegration as punishment, practices of ‘risk’ management and particular attention to occupational culture have been used to analyse the findings in this research critically. Grounded theory and qualitative content analysis provided the means to scrutinise the information and analyse decision-maker perspectives while providing insight into the tensions that are at the forefront of decision-making regarding ‘diversion’. This is the first research of its kind to examine the reasons behind youth diversion failures focusing on both broader social/political and micro institutional reasons for the failure to divert. Overall, the findings indicate that individuals in a position to make decisions regarding whether to divert young people away from the system have internalised the cultures, politics, and institutional practices of their respective organisations, and therefore reproduce them. Further, the findings confirm that theories of individual responsibilisation, risk-based strategies (with a focus on intervention) and punitivism, form a major part of the backdrop to decisions that shape law and order. This in turn, undermines and contradicts the principles of diversion, and court as a last resort. Findings highlight that key challenges in implementation of the YOA are deeply rooted in a system of youth governance where the paradigms of welfarism and justice result in competing interests and outcomes. Institutional cultures and professionals adhere more to one or other of these paradigms because of the perceived nature of their roles. Based on these findings, the thesis recommendation is to completely overhaul and rebuild the youth justice system starting from the legislation, or at the very least and given political limits, to follow a set of modest suggestions that in a lesser way might address the failure to divert