Last updated 10 May 2022
Before taking a matter to court, police must consider (s 11(1) Youth Justice Act 1992 (Qld) (Youth Justice Act)):
- taking no action
- diverting the child from court by:
- cautioning the child
- referring the offence to a restorative justice process
- providing an opportunity to attend a drug diversion assessment program for minor drugs offences
- providing an opportunity to attend a graffiti removal program for a graffiti offence.
If police consider that taking one of the above steps is appropriate, then they must take that course of action.
In deciding the above, police must consider:
- the circumstances of the alleged offence
- the child’s criminal history, any previous cautions the child has received, or any other actions taken in relation to the child for any other criminal matters (s 11(2) Youth Justice Act).
The Youth Justice Act notes that the purpose of cautioning is to divert children from the criminal justice system (s 14), but does not describe when or for what offences a caution should be given. A police officer can only administer a caution if the child:
- admits the offence and
- consents to being cautioned (s 16 Youth Justice Act).
If practicable, the caution must be given in the presence of:
- a parent
- another adult chosen by the parent or the child.
If the child is a member of an Aboriginal or Torres Strait Islander community, the police officer can request that the caution be administered by a respected Elder of the relevant community (s 17 Youth Justice Act).
The police officer administering or requesting the caution must:
- be authorised to administer cautions or do so in the presence of an officer who is authorised
- ensure that the child and the parent or adult attending with the child understand the purpose, nature and effect of the caution.
In practice, a caution is most often used for first-time offenders or, if more than once, generally for minor offences. It generally involves a meeting between police, the child and the parent or adult chosen by the child where:
- the child’s behaviour is considered and why that is an offence
- the child may apologise to the victim if the child and victim are willing to participate in this
- the child receives an admonishment from the police officer
- a notice of caution is given to the child.
Police will consider whether a child has previously received a caution or cautions when considering what action to take in relation to any later offending.
The Youth Justice Act also does not describe when and for what offences a restorative-justice process would be appropriate. A police officer may refer an offence for a restorative-justice process if the child admits committing the offence and is willing for a referral to be made, and the police officer considers (s 22 Youth Justice Act):
- a caution is inappropriate
- a restorative-justice process would be more appropriate than prosecution
- a convenor will be available for the conference
- the nature of the offence
- the harm suffered by anyone because of the offence
- whether the interests of the community and the child would be served by having the offence considered or dealt with through a restorative-justice process.
Police must tell the child about the process and consequences if they do not participate properly. Police then refer the matter to the Department of Children, Youth Justice and Multicultural Affairs and then allocate it to a Youth Justice officer with responsibility for restorative-justice processes.
The restorative-justice process is to be a conference (s 31(2) Youth Justice Act) or, in specific circumstances, an alternative diversion program. A conference is a formal meeting organised by an accredited convenor. It aims to allow a child who has committed an offence and other concerned people to consider or deal with the offending in a way that is of benefit to all concerned (s 33 Youth Justice Act). Those entitled to be present are (s 34 Youth Justice Act):
- the child and at the child’s request:
- their lawyer
- an adult member of the family
- another nominated adult
- the child’s parents
- the convenor and:
- a police officer
- any other person chosen by the convenor to assist
- the victim and at the victim’s request:
- their lawyer
- a member of their family
- a support person.
A victim is entitled to attend but does not have to consent to, or participate personally, in the conference.
The conference process involves:
- a discussion of the offence
- the impact and consequences for those affected
- ways in which the child can repair the damage or harm caused to the victim.
If successful, there can be an agreement by the child to do something designed to redress their offending behaviour and to assist the child to take responsibility for their actions. This could include:
- making an apology to the victim, orally or in writing
- performance of voluntary or community work
- repair of, or payment for, any damage caused.
The convenor must ensure that the agreement is not unreasonable or more onerous than if a court had dealt with the matter.
If the conference is successful, the matter is ended and the child cannot be prosecuted. It does not form part of the child’s criminal history. However, police will consider previous cautions or conferences when deciding how to proceed if a child appears to be involved in any future offending.
If the conference is not successful or the child does not comply with the agreement made at the conference, the police officer has the same options as to how to proceed with the offence as they did prior to the matter going to a conference. The police officer must consider the child’s participation in the conference and anything the child has done to comply with the agreement in deciding what to do.
Alternative diversion program
If police make a restorative-justice referral and a conference cannot be convened (for reasons other than the child not being contactable after reasonable enquiries, or the child not wishing to participate), then the Youth Justice officer and the child can agree on the child’s participation in some activities to help the child understand the harm their behaviour has caused and take responsibility for the offence. The activities include:
- remedial actions
- activities to strengthen the child’s relationship with their family or community
- educational programs.
The program cannot treat the child more severely than the Sentencing Principles (s 150 Youth Justice Act) allow and must be put into writing and signed by the child (s 38(4) Youth Justice Act).
Any admissions made during a restorative justice process cannot be used in other proceedings (s 40(1) Youth Justice Act).
Police drug diversion program
The police drug diversion program is provided for under s 379 of the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) and generally consists of a drug assessment, and education and counselling session that lasts up to two hours. Children are eligible for the session, including children who have previously been cautioned for a minor drug offence.
Graffiti removal program
If a child is arrested for, or is questioned by a police officer about a graffiti offence, the police officer may, at any time before the child goes to court about the graffiti offence, offer the child the opportunity to attend a graffiti removal program instead of going to court (s 379A PPR Act). The child must:
- admit having committed the offence during an electronically recorded interview
- have been at least 12 years of age at the time of the offence.
Police then directly refer the child to a graffiti removal program for two hours. If the child completes the program, that is the end of the matter. Otherwise, police can take further action including going to court.