This law creates a special pre‑trial diversion program—administered by the Department of Health—for people charged with child sexual assault where the victim is their child or the child of their partner. Prosecutors may refer eligible defendants for assessment; if accepted they plead guilty, receive a conviction but no immediate sentence while completing treatment that must prioritise the child’s interests. Failure to comply returns the case to normal prosecution.
The Pre-Trial Diversion of Offenders Act 1985 establishes a structured, conditional pathway that diverts eligible persons charged with defined child sexual assault offences away from conventional sentencing, provided they satisfy successive gatekeeping stages. At its core the Act creates the Pre-Trial Diversion of Offenders Program (the Program), which is a treatment initiative administered by the Department of Health (s 30B(1)). The Program is not static; it is the program approved from time to time by the Minister for Health after consultation with the Attorney General and the Minister for Community Services (s 30A(2)).
The legislation operates as an overlay on ordinary criminal procedure. Section 5 provides that the Criminal Procedure Act 1986 continues to apply except where this Act makes express provision to the contrary. The diversion process begins once a person to whom the Act applies is charged. That person must be given information about the operation of the Act in a manner approved by the Attorney General (s 6). The prosecutor (who must be the Director of Public Prosecutions or an authorised person under s 8) then decides whether to refer the person for assessment of suitability for the Program. In making that decision the prosecutor is statutorily required to consider guidelines set out in the regulations and to confirm whether a place in the Program would be available if an undertaking were given (s 10).
If referral occurs, the Local Court must adjourn proceedings for a prescribed period to permit assessment (s 13). Assessment is conducted by the Director or delegate and must follow the regulations (s 14(1)). The assessor is directed to have regard to an exhaustive yet open-ended list of matters in s 14(2): statements to police, information from other government agencies, interviews with the offender, spouse or de facto partner and the child, acceptance of responsibility, understanding of impact, willingness of the spouse or de facto partner to participate, interactive skills for group therapy, agreement to participate in all aspects, and whether participation is in the best interests of the child. The prosecutor receives written notification of the outcome and, if the assessment is negative, written reasons (s 14(3)).
Current sections
Direct links to the current provisions in Pre-Trial Diversion of Offenders Act 1985.
(1) Sections 1 and 2 shall commence on the date of assent to this Act.
(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.
2A
Purpose of Act
2A Purpose of Act
2A Purpose of Act
The purpose of this Act is to provide for the protection of children who have been victims of sexual assault by a parent or a parent’s spouse or de facto partner. The Act provides for the establishment of a program administered by the Department of Health. In the implementation of the Act, it is intended that the interests of a child victim are to prevail over those of a person pleading guilty to a charge of sexual assault in relation to the child.
s 2A: Ins 1993 No 7, Sch 1 (2). Am 2010 No 19, Sch 3.79 [1].
3
Definitions
3 Definitions
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—
child sexual assault offence means an offence under section 61D, 61E, 63, 65, 66A, 66B, 66C, 66D, 66EA, 67, 68, 71, 72, 73, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K or 78L of the Crimes Act 1900.
Director means the person nominated by the Director-General of the Department of Health to be Director of the Program.
Program means the Pre-Trial Diversion of Offenders Program approved in accordance with Part 3A.
regulations mean regulations made under this Act.
(2) A reference in the definition of child sexual assault offence in subsection (1) to an offence under a specified provision of the Crimes Act 1900 that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal.
(3) Notes included in this Act do not form part of this Act.
s 3: Am 1993 No 7, Sch 1 (3); 2001 No 121, Sch 2.170 [1]; 2008 No 23, Sch 3.34 [1]; 2008 No 105, Sch 2.9; 2010 No 19, Sch 3.79 [2] [3].
3A
Persons to whom Act applies
3A Persons to whom Act applies
3A Persons to whom Act applies
This Act applies to a person who is charged with a child sexual assault offence committed with or upon the person’s child or the child of the person’s spouse or de facto partner.
s 3A: Ins 1993 No 7, Sch 1 (4).
4
Act not to apply to certain persons
4 Act not to apply to certain persons
4 Act not to apply to certain persons
(1) This Act does not apply to a person in relation to a charge for a child sexual assault offence—
(a) if the person was charged with that offence before the commencement of this Act, or
(b) if the person is required to appear in respect of the charge before the Children’s Court.
(2) For the purposes of subsection (1) (a), a person shall be regarded as having been charged with an offence if a court attendance notice to appear before a Magistrate in respect of the offence has been served on the person.
s 4: Am 1987 No 58, Sch 3; 2001 No 121, Sch 2.170 [2].
Except as provided by this Act, the Criminal Procedure Act 1986 shall apply to and in respect of a person charged with a child sexual assault offence.
s 5: Am 2001 No 121, Sch 2.170 [3].
Part 2
Special procedure before courts
Part 2 Special procedure before courts
Part 2 Special procedure before courts
6
Information relating to the Program etc to be given to person charged
6 Information relating to the Program etc to be given to person charged
6 Information relating to the Program etc to be given to person charged
A person to whom this Act applies who is charged with a child sexual assault offence shall, as soon as practicable after being charged, be furnished, in a manner approved by the Attorney General, with information regarding the operation of this Act.
s 6: Am 1993 No 7, Sch 1 (5).
7
Person appearing before judge may request that Act not apply
7 Person appearing before judge may request that Act not apply
7 Person appearing before judge may request that Act not apply
(1) Where a person who appears before a Judge of the Local Court in relation to a charge that the person has committed a child sexual assault offence makes a request to the judge that this Act cease to apply to the person, this Act shall cease to apply to the person in relation to that charge.
(2) A request referred to in subsection (1) may be made at any stage of proceedings before a Judge of the Local Court relating to a child sexual assault offence.
s 7: Am 2001 No 121, Sch 2.170 [4]; 2025 No 61, Sch 2.74[1]–[3].
8
Director of Public Prosecutions to conduct prosecutions
8 Director of Public Prosecutions to conduct prosecutions
8 Director of Public Prosecutions to conduct prosecutions
The prosecutor in any proceedings in which this Act applies to a person shall be the Director of Public Prosecutions, or a person authorised for the time being by the Director of Public Prosecutions in relation to the proceedings.
s 8: Am 1986 No 212, Sch 1.
9
Proceedings to be adjourned pending decision by prosecutor
9 Proceedings to be adjourned pending decision by prosecutor
9 Proceedings to be adjourned pending decision by prosecutor
Where a person to whom this Act applies first appears before a Judge of the Local Court in relation to a child sexual assault offence, the judge shall adjourn the proceedings for such period, not exceeding the period prescribed for the purposes of this section, as the prosecutor may request to allow for a determination to be made as to whether the person is to be referred for assessment in relation to the person’s suitability for participation in the Program.
s 9: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [5]; 2025 No 61, Sch 2.74[2] [3].
10
Matters to be considered by prosecutor in deciding whether to refer person for assessment
10 Matters to be considered by prosecutor in deciding whether to refer person for assessment
10 Matters to be considered by prosecutor in deciding whether to refer person for assessment
In determining whether a person charged with a child sexual assault offence is to be referred for assessment in relation to the person’s suitability for participation in the Program, the prosecutor must—
(a) consider the guidelines set out in the regulations, and
(b) ascertain from the Director or a person to whom the Director delegates the function whether a place in the Program would be available for the person if the person were to give an undertaking to participate in the Program.
s 10: Subst 1993 No 7, Sch 1 (7).
11
Prosecutor to notify judge of decision
11 Prosecutor to notify judge of decision
11 Prosecutor to notify judge of decision
(1) Where a person to whom this Act applies appears before a Judge of the Local Court following any adjournment of the proceedings under section 9, the prosecutor shall inform the judge as to whether the person is to be referred for assessment in relation to the person’s suitability for participation in the Program.
(2) The prosecutor is to inform the judge that the person is not to be referred for assessment if the prosecutor has ascertained under section 10 that a place in the Program would not be available for the person if the person were to give an undertaking to participate in the Program.
s 11: Am 1993 No 7, Sch 1 (6) (8); 2001 No 121, Sch 2.170 [6]; 2025 No 61, Sch 2.74[1]–[3].
12
Act ceases to apply to person not referred for assessment
12 Act ceases to apply to person not referred for assessment
12 Act ceases to apply to person not referred for assessment
Where, under section 11, the prosecutor informs the Judge of the Local Court that a person charged with a child sexual assault offence is not to be referred for assessment in relation to the person’s suitability for participation in the Program, this Act shall cease to apply to the person in relation to that charge.
s 12: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [7]; 2025 No 61, Sch 2.74[4].
13
Proceedings to be further adjourned pending assessment
13 Proceedings to be further adjourned pending assessment
13 Proceedings to be further adjourned pending assessment
(1) Where a Judge of the Local Court before whom a person charged with a child sexual assault offence appears is informed by the prosecutor that the person is to be referred for assessment in relation to the person’s suitability for participation in the Program, the judge shall adjourn the proceedings for such period, not exceeding the period prescribed for the purposes of this section, as the prosecutor may request to allow for that assessment to be made.
(2) Proceedings may be adjourned more than once under this section but the periods for which the proceedings are adjourned shall not, in total, exceed the period prescribed for the purposes of this section.
s 13: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [8]; 2025 No 61, Sch 2.74[2] [3].
14
Assessment
14 Assessment
14 Assessment
(1) A person who is to be referred for assessment in relation to the person’s suitability for participation in the Program must be referred for assessment, and be assessed, in accordance with the regulations.
(2) The Director, or a person to whom the Director delegates the duty, is to assess a person’s suitability for the purposes of subsection (1) and in doing so may take into account any or all of the following matters which appear to be relevant and any other matter which he or she considers to be relevant—
(a) any statement made to a police officer in relation to the alleged offence (including statements of the person charged with the offence, the child concerned, a parent of the child or any other person with relevant information),
(b) relevant information held by other government agencies which are or have been involved in the treatment of the person charged with the offence or of a member of that person’s family or household,
(c) interviews conducted by the Director or officer making the assessment with the person, the person’s spouse or de facto partner and the child concerned,
(d) whether the person accepts responsibility for the sexual assault of the child,
(e) whether the person demonstrates some understanding of the impact of the offence on the child and on other members of the child’s family or household,
(f) whether the person’s spouse or de facto partner is prepared to participate in the Program as required by the Director,
(g) whether the person and the person’s spouse or de facto partner have sufficient interactive skills to be able to participate in any group therapy aspects of the Program,
(h) whether the person and the person’s spouse or de facto partner agree to participate in all aspects of the Program,
(i) whether participation in the Program by the person, the person’s spouse or de facto partner and the child concerned is in the best interests of the child.
(3) The prosecutor is, in accordance with the regulations, to be notified as to the result of the assessment and to be provided with written reasons if the assessment made is that the person is not suitable for participation in the Program.
s 14: Subst 1993 No 7, Sch 1 (9). Am 2008 No 23, Sch 3.34 [2].
15
Prosecutor to notify judge as to person’s suitability
15 Prosecutor to notify judge as to person’s suitability
15 Prosecutor to notify judge as to person’s suitability
Where a person to whom this Act applies appears before a Judge of the Local Court following any adjournment of the proceedings under section 13, the prosecutor shall inform the judge as to whether the person has been assessed as being suitable for participation in the Program.
s 15: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [9]; 2025 No 61, Sch 2.74[1]–[3].
16
Act ceases to apply to person not suitable for participation in the Program
16 Act ceases to apply to person not suitable for participation in the Program
16 Act ceases to apply to person not suitable for participation in the Program
Where, under section 15, the prosecutor informs the Judge of the Local Court that a person charged with a child sexual assault offence has been assessed as not being suitable for participation in the Program, this Act shall cease to apply to the person in relation to that charge.
s 16: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [10]; 2025 No 61, Sch 2.74[4].
17
Act ceases to apply if person does not plead guilty before judge
17 Act ceases to apply if person does not plead guilty before judge
17 Act ceases to apply if person does not plead guilty before judge
(1) Where—
(a) a person to whom this Act applies appears before a Judge of the Local Court following any adjournment of the proceedings under section 13 and is charged with a child sexual assault offence (whether or not that offence is the offence originally charged), and
(b) the prosecutor informs the judge that the person has been assessed as being suitable for participation in the Program,
the person shall, before any evidence is given in those proceedings, be asked to plead to the charge.
(2) Where, upon being asked to plead to a charge as referred to in subsection (1), a person pleads guilty, the judge shall, before accepting or rejecting the plea, consider—
(a) whether the person has received such advice (including legal advice) as the judge thinks proper in the circumstances, and
(b) whether the person understands the purpose of the Program and the effect of giving undertakings under this Act,
and may adjourn the proceedings for a period, not exceeding the period prescribed for the purposes of this section, to allow that advice and information to be given to the person.
(3) Except as provided by subsection (4), where, upon being asked to plead to a charge as referred to in subsection (1), a person pleads not guilty or refuses to plead, this Act shall cease to apply to the person in relation to that charge.
(4) Where, upon being asked to plead to a charge as referred to in subsection (1), a person does not plead guilty to that charge but, instead, pleads guilty to another child sexual assault offence and the plea in respect of the other offence is accepted by the judge—
(a) this Act shall not cease to apply to the person by reason only of the person’s failure to plead guilty to the original charge, and
(b) subject to any other provision of this Act, this Act shall continue to apply to the person in respect of the offence to which the plea of guilty was made as if that offence had been the offence originally charged.
s 17: Am 1993 No 7, Sch 1 (6) (10); 2001 No 121, Sch 2.170 [11]; 2025 No 61, Sch 2.74[1]–[3].
18
Act ceases to apply if plea of guilty rejected
18 Act ceases to apply if plea of guilty rejected
18 Act ceases to apply if plea of guilty rejected
(1) Where, upon being asked to plead to a charge as referred to in section 17 (1), a person pleads guilty, the Judge of the Local Court may accept or reject the plea under section 100 of the Criminal Procedure Act 1986 on such grounds as the judge would have power to do so if this Act did not apply to the person.
(2) In determining whether to accept or reject a plea as referred to in subsection (1), a judge may consider any papers or statements tendered to the judge but shall not require any oral evidence to be given.
(3) Where the judge does not accept a plea of guilty made by a person to a charge in respect of a child sexual assault offence, this Act shall cease to apply to the person in relation to that charge.
s 18: Am 2001 No 121, Sch 2.170 [12] [13]; 2025 No 61, Sch 2.74[5]–[7].
19
Certain child sexual assault cases may not be disposed of summarily
19 Certain child sexual assault cases may not be disposed of summarily
19 Certain child sexual assault cases may not be disposed of summarily
If this Act applies to a person charged with a child sexual assault offence, the offence must not be dealt with summarily under Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment).
s 19: Subst 1995 No 22, Sch 2. Am 1999 No 94, Sch 4.49; 2001 No 121, Sch 2.170 [14].
20
Person pleading guilty before judge to comply with certain directions pending appearance before higher court
20 Person pleading guilty before judge to comply with certain directions pending appearance before higher court
20 Person pleading guilty before judge to comply with certain directions pending appearance before higher court
A person to whom this Act applies who has pleaded guilty before a Judge of the Local Court to a child sexual assault offence shall, until requested by the Supreme Court or District Court to give an undertaking under this Act, comply with all reasonable directions given by the Director to the person in relation to—
(a) the behaviour of the person (including access by the person to any other person or premises or place, whether or not the person has a legal or equitable interest in the premises or place),
(b) the commencement by the person of participation in the Program,
(c) any matter prescribed by the regulations, and
(d) any other matter which the Director thinks necessary or appropriate in the circumstances.
s 20: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [15]; 2025 No 61, Sch 2.74[1] [2].
21
Act ceases to apply if person does not comply with directions pending further appearance
21 Act ceases to apply if person does not comply with directions pending further appearance
21 Act ceases to apply if person does not comply with directions pending further appearance
Where a person to whom this Act applies who is charged with a child sexual assault offence appears before the Supreme Court or the District Court, the court may, if it is satisfied that the person has failed to comply with a reasonable direction given by the Director to the person under section 20, determine that this Act shall cease to apply to the person in relation to that charge, and that determination shall have effect accordingly.
22
Act ceases to apply if person does not plead guilty before Supreme Court or District Court etc
22 Act ceases to apply if person does not plead guilty before Supreme Court or District Court etc
22 Act ceases to apply if person does not plead guilty before Supreme Court or District Court etc
(1) Except as provided by subsection (2), where a person to whom this Act applies who is charged with a child sexual assault offence appears before the Supreme Court or the District Court and—
(a) does not plead guilty to the charge, or
(b) refuses to give an undertaking to the court under section 23,
this Act shall cease to apply to the person in relation to that charge.
(2) Where a person appearing before the Supreme Court or the District Court as referred to in subsection (1) in relation to a charge does not plead guilty to that charge but, instead, pleads guilty before trial to another child sexual assault offence and the plea in respect of the other offence is accepted by the prosecution—
(a) this Act shall not cease to apply to the person by reason only of the person’s failure to plead guilty to the original charge, and
(b) subject to any other provision of this Act, this Act shall continue to apply to the person in respect of the offence to which the plea of guilty was made as if that offence had been the offence originally charged.
Part 3
Undertaking to attend Program etc
Part 3 Undertaking to attend Program etc
Part 3 Undertaking to attend Program etc
pt 3, hdg: Am 1993 No 7, Sch 1 (11).
23
Undertaking to attend the Program to be given to court
23 Undertaking to attend the Program to be given to court
23 Undertaking to attend the Program to be given to court
Where a person to whom this Act applies who is charged with a child sexual assault offence appears before the Supreme Court or the District Court and pleads guilty before trial to the charge, the court shall request the person to give to the court an undertaking—
(a) to participate (or continue to participate) in the Program for such a period not exceeding, in total, 2 years, as the Director may require,
(b) during that participation and, where applicable, pending the commencement of that participation, to comply with all reasonable directions given by the Director to the person in relation to—
(i) the behaviour of the person (including access by the person to any other person or premises or place, whether or not the person has a legal or equitable interest in the premises or place),
(ii) any matter prescribed by the regulations, and
(iii) any other matter which the Director thinks necessary or appropriate in the circumstances, and
(c) to appear before the court in relation to the matter when required by the court to do so.
s 23: Am 1993 No 7, Sch 1 (6).
24
Procedure following giving of undertaking
24 Procedure following giving of undertaking
24 Procedure following giving of undertaking
If a person gives an undertaking at the request of a court under section 23, the court is (subject to sections 25 and 28) to proceed to conviction of the person for the offence concerned but is not to sentence or otherwise deal with the person in respect of the offence.
s 24: Am 1987 No 238, Sch 1. Subst 1993 No 7, Sch 1 (12).
25
Person may be released from undertaking
25 Person may be released from undertaking
25 Person may be released from undertaking
(1) The court to which a person has given an undertaking under this Act may at any time, on the application of the person, release the person from that undertaking.
(2) Where a court releases a person from an undertaking given under this Act in respect of a child sexual assault offence, it may sentence or otherwise deal with the person for the offence as if the undertaking had not been given.
s 25: Am 1993 No 7, Sch 1 (13).
26
Breach of undertaking etc
26 Breach of undertaking etc
26 Breach of undertaking etc
(1) A person who has given an undertaking under this Act shall, unless the person has been released from the undertaking, comply with the undertaking and the requirements made by or under this Act or the regulations.
(2) Where the court to which a person has given an undertaking under this Act is notified by the Director, or a person to whom the Director delegates the duty, of any failure by the person to comply with the undertaking or the requirements made by or under this Act or the regulations, the court shall determine whether the person concerned should appear before the court in relation to the matter.
s 26: Am 1993 No 7, Sch 1 (14).
27
Requirement to appear or issue of warrant on breach
27 Requirement to appear or issue of warrant on breach
27 Requirement to appear or issue of warrant on breach
If it appears to the court to which a person has given an undertaking under this Act that the person has failed to comply with the undertaking or the requirements made by or under this Act or the regulations, the court may require the person to appear before the court in accordance with the undertaking or may issue a warrant for the arrest of the person and directing that the person be brought before the court as soon as possible after arrest.
28
Powers of court on breach
28 Powers of court on breach
28 Powers of court on breach
Where the court to which a person has given an undertaking under this Act is satisfied that the person has failed to comply with the undertaking or the requirements made by or under this Act or the regulations and that the failure is not of such a minor nature that no action is warranted, the court may, whether or not the undertaking is current—
(a) sentence or otherwise deal with the person as if the undertaking had not been given, or
(b) direct that the undertaking to participate in the Program be extended for such further period, not exceeding 12 months, as the Director may require in addition to the original period for which the person was required to participate in the Program.
s 28: Am 1993 No 7, Sch 1 (6) (15).
29
Court may be constituted by another judge
29 Court may be constituted by another judge
29 Court may be constituted by another judge
The powers, authorities, duties and functions which are required or permitted to be exercised or performed by the court to which a person has given an undertaking under this Act may be exercised or performed by that court, whether or not it is constituted by the same judge as that to whom the undertaking was given.
30
Person who has complied with undertaking not to be further prosecuted etc
30 Person who has complied with undertaking not to be further prosecuted etc
30 Person who has complied with undertaking not to be further prosecuted etc
(1) Where a person who has given an undertaking under this Act in respect of a child sexual assault offence has complied with the undertaking and the requirements made by or under this Act or the regulations, no further proceedings shall be taken against the person in respect of the offence.
(2) For the purposes of subsection (1), a person who has given an undertaking under this Act in respect of a child sexual assault offence shall be regarded as having complied with the undertaking and the requirements made by or under this Act or the regulations at the expiration of the period (including any extension of the original period under section 28) for which the person was, in accordance with the undertaking, required to participate in the Program in relation to the offence unless, at the expiration of that period, any failure by the person has been notified to the court to which the undertaking was given but has not been determined.
(3) Where at the expiration of the period for which a person was required to participate in the Program a failure by the person has been notified to the court but has not been determined, the person shall be regarded as having complied with an undertaking given under this Act if the court determines, in relation to that failure, that the person need not appear before the court or that no action is warranted.
s 30: Am 1993 No 7, Sch 1 (6).
Part 3A
Pre-Trial Diversion of Offenders Program
Part 3A Pre-Trial Diversion of Offenders Program
Part 3A Pre-Trial Diversion of Offenders Program
pt 3A (ss 30A, 30B): Ins 1993 No 7, Sch 1 (16).
30A
The Program
30A The Program
30A The Program
(1) The Pre-Trial Diversion of Offenders Program is a program for the treatment of a person who commits a child sexual assault offence with or upon the person’s child or the child of the person’s spouse or de facto partner.
(2) The Program is one which is approved for the time being by the Minister for Health after consultation with the Attorney General and the Minister for Community Services.
pt 3A (ss 30A, 30B): Ins 1993 No 7, Sch 1 (16).
30B
Administration of the Program
30B Administration of the Program
30B Administration of the Program
(1) The Department of Health is to administer the Program.
(2) The Director-General of that Department is to prepare an annual report on the operation and effectiveness of the Program being administered by the Department and is to forward the report to the Attorney General, the Minister for Health and the Minister for Community Services.
pt 3A (ss 30A, 30B): Ins 1993 No 7, Sch 1 (16).
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
31
31
31 (Repealed)
32
Certain defects not to invalidate proceedings
32 Certain defects not to invalidate proceedings
32 Certain defects not to invalidate proceedings
A failure to comply with section 6 or 8 shall not invalidate any proceedings.
33
Evaluation of administration of Act
33 Evaluation of administration of Act
33 Evaluation of administration of Act
The Attorney General and the Minister for Health, in consultation with the Minister for Youth and Community Services, shall make arrangements for the administration of this Act to be monitored and for reports giving an evaluation of that administration to be given to those Ministers.
34
Regulations
34 Regulations
34 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to—
(a) the undertakings to be given by persons in accordance with this Act,
(b) requirements to be complied with by persons who have given undertakings in accordance with this Act,
(c) the content and conduct of, and any other matter relating to, the Program,
(d) attendance at the Program by persons who have given undertakings under this Act, and
(e) the notification of a failure by a person to comply with any undertaking given under this Act or the requirements made by or under this Act or the regulations in relation to the person.
(2) A provision of a regulation may—
(a) apply generally or be limited in its application by reference to specified exceptions or factors,
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.
s 34: Am 1993 No 7, Sch 1 (6).
35
Savings and transitional provisions
35 Savings and transitional provisions
35 Savings and transitional provisions
Schedule 1 has effect.
s 35: Ins 1993 No 7, Sch 1 (18).
Schedule 1
Savings and transitional provisions
Schedule 1 Savings and transitional provisions
Schedule 1 Savings and transitional provisions
(Section 35)
sch 1: Ins 1993 No 7, Sch 1 (19).
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act may be cited as the Pre-Trial Diversion of Offenders Act 1985.
2 Commencement
2 Commencement
2 Commencement
(1) Sections 1 and 2 shall commence on the date of assent to this Act.
(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.
2A Purpose of Act
2A Purpose of Act
2A Purpose of Act
The purpose of this Act is to provide for the protection of children who have been victims of sexual assault by a parent or a parent’s spouse or de facto partner. The Act provides for the establishment of a program administered by the Department of Health. In the implementation of the Act, it is intended that the interests of a child victim are to prevail over those of a person pleading guilty to a charge of sexual assault in relation to the child.
Note.
“De facto partner” is defined in section 21C of the Interpretation Act 1987.
s 2A: Ins 1993 No 7, Sch 1 (2). Am 2010 No 19, Sch 3.79 [1].
3 Definitions
3 Definitions
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—
child sexual assault offence means an offence under section 61D, 61E, 63, 65, 66A, 66B, 66C, 66D, 66EA, 67, 68, 71, 72, 73, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K or 78L of the Crimes Act 1900.
Director means the person nominated by the Director-General of the Department of Health to be Director of the Program.
Program means the Pre-Trial Diversion of Offenders Program approved in accordance with Part 3A.
regulations mean regulations made under this Act.
(2) A reference in the definition of child sexual assault offence in subsection (1) to an offence under a specified provision of the Crimes Act 1900 that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal.
If the person is assessed as suitable, the Local Court is informed (s 15) and the person is required to plead (s 17(1)). A plea of guilty triggers judicial consideration of whether the person has received adequate advice and understands the Program and the effect of undertakings (s 17(2)). The plea may be accepted or rejected on ordinary principles under s 100 of the Criminal Procedure Act 1986, but without oral evidence (s 18(2)). Rejection or a not-guilty plea (subject to limited exceptions in s 17(4) and s 22(2) for substituted pleas) causes the Act to cease applying (ss 17(3), 18(3)).
Where a guilty plea is accepted, the person must comply with reasonable directions given by the Director pending appearance in the Supreme Court or District Court (s 20). Those directions can cover behaviour, access to persons or premises, commencement of the Program, prescribed matters, or any other matter the Director considers necessary. Non-compliance can lead the higher court to terminate the diversion (s 21).
Before the higher court the person must again plead guilty and give a formal undertaking (s 23). The undertaking must contain three elements: participation (or continued participation) in the Program for a period not exceeding two years as required by the Director; compliance with all reasonable directions during and pending participation; and appearance before the court when required. Upon giving the undertaking the court proceeds to conviction but does not sentence or otherwise deal with the offence at that point (s 24), subject to ss 25 and 28.
Breach of the undertaking or of requirements under the Act or regulations is notified to the court by the Director or delegate (s 26(2)). The court may then require appearance or issue a warrant (s 27). On being satisfied of a non-minor breach the court may sentence as though the undertaking had never been given or extend the Program period by up to a further 12 months (s 28). A person who fully complies with the undertaking and all requirements is immune from further proceedings in respect of the offence (s 30(1)). Compliance is presumed at the end of the required period (including any extension) unless an undetermined breach notification remains (s 30(2)–(3)).
The Act contains multiple automatic termination mechanisms. It does not apply to persons charged before commencement or required to appear in the Children’s Court (s 4). A person may request that the Act cease to apply at any stage before a judge of the Local Court (s 7). If the prosecutor decides not to refer for assessment, or if the person is assessed as unsuitable, the Act ceases (ss 12, 16). The Act also ceases if the person fails to plead guilty, the plea is rejected, directions under s 20 are breached, or an undertaking is not given in the higher court (ss 17, 18, 21, 22).
Section 2A declares the purpose of the Act: protection of children who have been victims of sexual assault by a parent or the parent’s spouse or de facto partner, with the interests of the child victim intended to prevail over those of the person pleading guilty. The Program is explicitly for the treatment of such persons (s 30A(1)). Certain defects (failure to comply with the information obligation in s 6 or the prosecutor requirement in s 8) do not invalidate proceedings (s 32). The Attorney General and Minister for Health must arrange for ongoing monitoring and evaluation (s 33). Regulations may prescribe detailed matters concerning undertakings, Program content, attendance, notification of breaches and other necessary matters (s 34).
In short, the Act constructs a high-stakes, multi-stage filter that funnels only suitable intrafamilial child sex offenders into a health-led treatment stream while preserving the ordinary criminal justice pathway for all others.
Who it affects
The Act applies to a narrowly defined class. Section 3A states that it applies to a person charged with a child sexual assault offence committed with or upon the person’s child or the child of the person’s spouse or de facto partner. “Child sexual assault offence” is exhaustively listed in s 3(1) as any offence under one of 22 specified sections of the Crimes Act 1900 (ss 61D, 61E, 63, 65, 66A, 66B, 66C, 66D, 66EA, 67, 68, 71, 72, 73, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K or 78L). Subsection 3(2) extends the reference to earlier versions of those provisions where they have been amended or repealed.
The Act therefore captures intrafamilial sexual offending against children by biological parents, step-parents and de facto partners (the latter term defined by reference to s 21C of the Interpretation Act 1987). It does not apply to offences committed outside that familial relationship, nor to non-sexual offences, nor to sexual offences against adults.
Several exclusions operate. The Act has no application where the person was charged before commencement (s 4(1)(a)), with “charged” defined to include service of a court attendance notice (s 4(2)). It also does not apply where the person is required to appear before the Children’s Court (s 4(1)(b)). A person may voluntarily elect out at any stage before a judge of the Local Court (s 7), after which ordinary prosecution continues.
The Director (a person nominated by the Director-General of the Department of Health) and the Director of Public Prosecutions occupy central administrative roles. Prosecutors must be officers of the DPP (s 8). The assessor under s 14 is the Director or delegate. The court (Local Court, District Court or Supreme Court) retains ultimate supervisory power over undertakings, breaches and termination decisions.
The child victim, the offender’s spouse or de facto partner, and other family or household members are indirectly affected because their statements, interviews and best interests are mandatory considerations in the assessment (s 14(2)). The spouse or de facto partner may be required to participate in the Program (s 14(2)(f)) and to demonstrate sufficient interactive skills for group therapy (s 14(2)(g)).
Finally, the legislation affects the broader community through its annual reporting obligation (s 30B(2)) and the statutory requirement for independent evaluation of its administration (s 33). Because the Act interacts at every stage with the Criminal Procedure Act 1986, it also affects judicial officers, legal practitioners and court staff who must navigate its procedural overlays.
Key duties and rights
The Act creates a web of interlocking duties and correlative rights. The person to whom the Act applies has the right to receive approved information about the scheme immediately after charge (s 6) and the right to request that the Act cease to apply (s 7). If referred for assessment, the person has the right to be assessed according to the regulations and to have the prosecutor notified of the outcome (s 14). Before entering a plea in the Local Court the person must be satisfied that he or she has received proper advice and understands the Program and the consequences of an undertaking (s 17(2)); the court may adjourn to ensure this occurs.
The core right is to give an undertaking under s 23 and, upon full compliance, to enjoy immunity from further prosecution (s 30(1)). That immunity is not absolute; it is contingent on completion of the Director-specified period (up to two years plus possible 12-month extension) and on no undetermined breach notification remaining at the end of that period (s 30(2)–(3)).
Duties imposed on the person are extensive. While the Act still applies, the person must comply with all reasonable directions given by the Director under s 20 pending appearance in the higher court. After giving the undertaking the person must participate in the Program for the required period, comply with all reasonable directions (including behavioural restrictions that can affect access to premises in which the person holds a legal or equitable interest), and appear before the court when required (s 23). Breach of these duties triggers potential court appearance, warrant, sentencing as if no undertaking had been given, or extension of the Program (ss 26–28).
The prosecutor’s duties are prescriptive. The prosecutor must conduct all proceedings (s 8), request adjournments to allow determination of referral and assessment (ss 9, 13), consider the regulatory guidelines and Program availability before referring (s 10), notify the court of referral and assessment outcomes (ss 11, 15), and receive written reasons if the assessment is adverse (s 14(3)). The prosecutor is also the recipient of breach notifications from the Director (s 26(2)).
The Director and delegates owe duties to assess suitability by reference to the s 14(2) factors, to provide written reasons for negative assessments, to give or delegate the giving of directions under ss 20 and 23, and to notify the court of breaches (s 26(2)). The Director-General of the Department of Health must prepare an annual report on the operation and effectiveness of the Program (s 30B(2)).
Courts have duties to adjourn for prescribed periods (ss 9, 13, 17(2)), to ensure the person has received proper advice before accepting a guilty plea (s 17(2)), to request an undertaking upon a timely guilty plea in the higher court (s 23), and to determine breach allegations (ss 26–28). The Local Court judge may not deal with the offence summarily if the Act applies (s 19).
The child victim’s position is protected by the overarching statutory purpose in s 2A that the child’s interests prevail. This is operationalised through the mandatory consideration in s 14(2)(i) whether participation by the offender, spouse or de facto partner and the child is in the best interests of the child. The child may be interviewed as part of the assessment (s 14(2)(c)) and may provide statements considered by the assessor (s 14(2)(a)).
Rights of third parties are limited. A spouse or de facto partner has no independent right to veto participation but is a mandatory subject of assessment on several criteria. There is no express right for the child or other family members to be heard on breach applications or extension decisions, although the court’s general powers under the Criminal Procedure Act 1986 may permit victim impact material in some circumstances.
Penalties and enforcement
The Act does not itself prescribe conventional criminal penalties. Instead it creates a binary enforcement architecture: successful completion yields complete immunity from further proceedings (s 30(1)), while failure at any gatekeeping stage or breach of undertaking restores the court’s ordinary sentencing powers as if the undertaking had never been given (ss 21, 24, 25(2), 28(a)).
Breach enforcement is judicial rather than administrative. On notification by the Director (s 26(2)) the court must decide whether the person should appear (s 26(2)) and may issue a warrant if necessary (s 27). Once satisfied that a failure has occurred and that it is not minor, the court may sentence immediately or extend the Program period by up to 12 months (s 28). The power to extend operates even if the original undertaking period has expired. Section 29 permits any judge of the relevant court to exercise these powers, providing administrative flexibility.
Because the underlying offence remains a child sexual assault offence under the Crimes Act 1900, the maximum penalties available upon reversion to ordinary sentencing are those fixed by that Act. The Act therefore does not cap or alter the gravity of the offence; it merely defers sentencing. A person released from an undertaking under s 25 may be sentenced as though the undertaking had never been given (s 25(2)).
Indirect enforcement mechanisms include the Director’s power to give binding reasonable directions under ss 20 and 23. These directions can restrict liberty (for example, by prohibiting access to the child or the family home) without constituting a sentence. Non-compliance with such directions is itself a breach that can trigger the s 28 powers.
The Act contains no monetary penalties, demerit points or administrative fines. Enforcement is therefore entirely court-centric. The only express invalidity protection is that failure to comply with the information obligation (s 6) or the DPP prosecutor requirement (s 8) does not invalidate proceedings (s 32), thereby shielding the process from technical collateral attack.
Annual reporting (s 30B(2)) and independent evaluation (s 33) serve as systemic accountability measures rather than direct enforcement tools. Their purpose is to allow the Attorney General, Minister for Health and Minister for Community Services to assess whether the Program is achieving its child-protection purpose.
How it interacts with other laws
The Act is expressly parasitic on the Criminal Procedure Act 1986. Section 5 applies that Act except where this Act provides otherwise. Specific intersections include the plea provisions (s 100 of the Criminal Procedure Act 1986 applied by s 18(1)), the prohibition on summary disposal under Chapter 5 where this Act applies (s 19), and the general rules governing court attendance notices (cross-referenced in s 4(2)).
The definition of child sexual assault offence imports 22 sections of the Crimes Act 1900. Section 3(2) ensures that historical versions of those offences remain captured, preventing offenders from escaping the scheme through legislative amendments to the substantive law. This creates a dynamic but stable interface between the two statutes.
The Interpretation Act 1987 supplies the meaning of “de facto partner” (note to s 2A). Regulations made under this Act (s 34) are permitted to apply generally, differentially, or by reference to exceptions or factors, and may delegate further matters to specified persons. They are therefore expected to flesh out the guidelines the prosecutor must consider (s 10(a)), the prescribed periods for adjournments (ss 9, 13, 17(2)), the detail of assessment procedure (s 14(1)), the content of undertakings, and the mechanics of breach notification.
The Act sits alongside child-protection legislation administered by the Minister for Community Services, who must be consulted both on approval of the Program (s 30A(2)) and on evaluation arrangements (s 33). Information sharing with other government agencies is expressly contemplated in the assessment process (s 14(2)(b)), implying compatibility with privacy and child-protection information statutes.
Because the Program is a health-led treatment service, it interacts with mental-health and therapeutic statutes governing the Department of Health. The annual report obligation (s 30B(2)) mirrors reporting requirements found in other portfolio legislation.
At the constitutional level the Act operates only within New South Wales. Its focus on intrafamilial offending and its reliance on state courts means no direct Commonwealth interaction arises, although federal family-law proceedings concerning the same child could run in parallel, raising potential res judicata or abuse-of-process questions not addressed on the face of the Act.
The savings and transitional provisions in Schedule 1 (inserted by the 1993 amending Act) govern the application of the post-1993 amendments to pending proceedings. Clause 1(1) provides that the new s 3A does not apply to proceedings pending at commencement where an assessment under the old s 14 had already occurred. Clause 1(2) preserves the pre-1993 version of s 24 for proceedings in which a plea had already been entered. These provisions ensure orderly interaction between successive versions of the legislation.
Recent changes and why
The text of the Act records a series of amendments that have been integrated into the current version. The most significant cluster occurred with the insertion of s 2A (purpose), s 3A (persons to whom the Act applies), the substitution of multiple procedural sections, and the addition of Part 3A (the Program) and the new Schedule 1. These changes shifted the legislation from a primarily procedural diversion scheme to one with an express child-protection purpose under which the interests of the child victim prevail.
Section 14 was substituted to introduce the current nine-factor-plus-residual assessment test, replacing an earlier, less prescriptive regime. The substitution of s 24 altered the court’s obligation upon receipt of an undertaking so that conviction is now recorded but sentencing is deferred. New breach, extension and compliance provisions (ss 26–30) were added or substantially redrafted to create a clearer enforcement ladder.
Later amendments updated terminology (replacement of “Magistrate” with “Judge of the Local Court”, updating of cross-references to the Criminal Procedure Act 1986, and insertion of the de-facto-partner definition note). Minor technical changes appear in ss 3, 4, 5, 7–18, 20, 23, 28, 30 and 34 to maintain internal consistency after the 1993 overhaul and subsequent procedural reforms.
The changes were designed to strengthen child-centric decision-making, to formalise the therapeutic content of the Program, to tighten gatekeeping at the assessment and plea stages, and to provide clearer pathways for dealing with non-compliance without automatically abandoning the diversion. By requiring the Minister for Community Services to be consulted on Program approval and evaluation, the amendments also improved inter-agency coordination. The overall effect, visible on the face of the current text, is a more elaborate, more conditional, and more explicitly protective statutory scheme.
Court challenges and controversies
The Act itself does not record or refer to any specific court challenges. All analysis must therefore be grounded in the provisions as enacted. Several structural features are likely to generate litigation.
First, the open-ended nature of the s 14(2) assessment criteria, particularly paragraph (i) (best interests of the child) and the residual “any other matter” power, invites judicial review on Wednesbury unreasonableness or failure-to-consider-relevant-matters grounds. Because the assessor’s decision is communicated to the prosecutor and then to the court, arguments may arise about the adequacy of written reasons required under s 14(3) when suitability is refused.
Second, the multiple “Act ceases to apply” provisions (ss 7, 12, 16, 17(3), 18(3), 21, 22(1)) create scope for disputes about whether a particular procedural step has been reached or whether an exception in s 17(4) or s 22(2) for substituted guilty pleas has been properly engaged. The distinction between “the offence originally charged” and “another child sexual assault offence” is not further defined, potentially leading to argument about whether a lesser included offence or a differently particularised charge falls inside or outside the statutory exception.
Third, the power to give “reasonable directions” under ss 20 and 23 that can restrict access to premises in which the person holds a legal or equitable interest raises possible conflicts with property and family law rights. A direction prohibiting return to the family home could be challenged as exceeding what is “reasonable” or as inconsistent with existing apprehended violence orders or family court parenting orders.
Fourth, s 18(2) permits the court to consider papers or statements but prohibits oral evidence when deciding whether to accept or reject a guilty plea. This limitation may be challenged on natural justice grounds where the child’s statement or a contested psychiatric report is decisive.
Fifth, the statutory purpose in s 2A that the interests of the child victim “are to prevail” over those of the person pleading guilty is expressed at a high level of abstraction. Its translation into concrete assessment decisions under s 14(2)(i) is likely to provoke controversy, especially where expert opinion on therapeutic benefit conflicts with the child’s expressed wishes or safety concerns.
Finally, the immunity granted by s 30(1) upon completion raises questions about whether subsequent civil proceedings (for example, damages claims or child-protection applications) are also barred, or whether the conviction recorded under s 24 survives for purposes of working-with-children checks or other statutory disqualifications. None of these controversies are resolved on the face of the Act; they remain live interpretive issues for courts applying the legislation.
Gotchas
Most practitioners assume that once a person is assessed as suitable and gives an undertaking the diversion is secure. In fact the Act contains no fewer than eight distinct off-ramps that automatically terminate its application without any requirement for a formal breach finding. A seemingly minor change in the charge, a late decision by the prosecutor that no Program place is available, or an adverse view formed by the Director on any one of the nine s 14(2) factors can instantly return the matter to ordinary prosecution with a recorded guilty plea that cannot be withdrawn.
The prohibition on oral evidence when deciding plea acceptance (s 18(2)) is frequently overlooked. The judge may rely on written statements that have never been tested, yet that material can be decisive in rejecting the plea and thereby ending the diversion. Counsel advising clients must warn that the plea stage is not a mere formality.
Another hidden trap is the open-ended duration of directions under s 20. Because the higher court may not request the undertaking for many months, the Director’s interim directions can operate for an extended period and can include residence or non-contact conditions that mirror bail conditions but are enforceable by Program termination rather than charge. A breach of such a direction can be used even if the person has otherwise been of good behaviour.
Section 30(2) contains an overlooked timing rule. Compliance is presumed only at the expiration of the Program period “unless, at the expiration of that period, any failure by the person has been notified to the court … but has not been determined”. If the Director lodges a breach notice on the last day, the immunity does not crystallise until the court determines that no action is warranted. Clients and practitioners who treat the two-year mark as an automatic end date can be caught by this provision.
The Act’s application is limited to charges “committed with or upon the person’s child or the child of the person’s spouse or de facto partner”. A charge that alleges the offence occurred at a time when the relationship was not yet established, or that the child was not living in the household, can take the matter outside the Act even if the factual relationship later existed. Careful drafting of charges by the prosecution can therefore control access to the Program.
Finally, many lawyers miss that the Program itself is not defined in the Act; it is whatever program the Minister for Health approves after consultation (s 30A(2)). Changes to Program content or eligibility criteria can therefore occur by administrative action without legislative amendment, yet those changes bind participants through the undertaking’s obligation to “participate … as the Director may require”. The content of the obligation can shift during the life of an undertaking.
These gotchas demonstrate that the legislation is far less forgiving and far more procedurally brittle than its rehabilitative title suggests. Careful tracking of every statutory precondition and every possible termination trigger is essential.
How to comply
Compliance for an offender begins with immediate engagement upon charge. The person should obtain legal advice before the first court appearance so that the s 17(2) requirement for proper advice can be satisfied. Full and early acceptance of responsibility is a mandatory assessment factor (s 14(2)(d)); any denial or minimisation during police interviews or early discussions will be weighed heavily against suitability.
The person must cooperate with the assessment process, including consenting to interviews with the spouse or de facto partner and the child (s 14(2)(c)). Refusal will almost certainly render the person unsuitable. The spouse or de facto partner should be counselled to participate as required, because their willingness and interactive skills are separately assessed (s 14(2)(f)–(g)).
Once referred to the Program, strict adherence to every direction issued by the Director is mandatory. Directions should be obtained in writing and any ambiguity clarified immediately. Compliance with therapeutic components, group sessions, reporting obligations and behavioural restrictions must be documented. Any external stressors (relationship breakdown, financial difficulty, mental-health episodes) should be disclosed promptly to the Director rather than concealed, because the power to extend the Program by 12 months (s 28(b)) can be used constructively if the court is satisfied the failure was not serious.
At the undertaking stage the person must be prepared to sign an instrument that incorporates both the statutory minimums in s 23 and any additional requirements the Director or court imposes. The undertaking should be reviewed by counsel to ensure it does not contain impossible or contradictory conditions.
For legal practitioners, compliance involves meticulous diary management of all prescribed adjournment periods and prompt notification to the prosecutor and Director of any change in circumstances that might affect suitability or breach status. When appearing on breach applications, practitioners should be ready to address the statutory question whether the failure is “of such a minor nature that no action is warranted” (s 28), because that finding preserves the diversion.
Agencies (Health, Community Services, Police) must ensure that information provided for assessment under s 14(2)(a)–(b) is accurate, relevant and properly authorised. The Director must maintain written records of all directions given and all breach notifications, because these will be scrutinised by the court under ss 26–28.
Finally, ongoing compliance requires acceptance that the child’s best interests remain the paramount consideration at every stage (ss 2A, 14(2)(i)). Any conduct that could be interpreted as re-victimising the child or undermining the therapeutic environment will almost certainly cause the diversion to collapse. The safest course is continuous, transparent engagement with the Director and prompt remedial action on any identified shortfall. Only by navigating every procedural gate without triggering an automatic cessation provision can the person secure the ultimate benefit of s 30(1) immunity.
(3) Notes included in this Act do not form part of this Act.
s 3: Am 1993 No 7, Sch 1 (3); 2001 No 121, Sch 2.170 [1]; 2008 No 23, Sch 3.34 [1]; 2008 No 105, Sch 2.9; 2010 No 19, Sch 3.79 [2] [3].
3A Persons to whom Act applies
3A Persons to whom Act applies
3A Persons to whom Act applies
This Act applies to a person who is charged with a child sexual assault offence committed with or upon the person’s child or the child of the person’s spouse or de facto partner.
s 3A: Ins 1993 No 7, Sch 1 (4).
4 Act not to apply to certain persons
4 Act not to apply to certain persons
4 Act not to apply to certain persons
(1) This Act does not apply to a person in relation to a charge for a child sexual assault offence—
(a) if the person was charged with that offence before the commencement of this Act, or
(b) if the person is required to appear in respect of the charge before the Children’s Court.
(2) For the purposes of subsection (1) (a), a person shall be regarded as having been charged with an offence if a court attendance notice to appear before a Magistrate in respect of the offence has been served on the person.
s 4: Am 1987 No 58, Sch 3; 2001 No 121, Sch 2.170 [2].
5 Criminal Procedure Act 1986 to apply
5 Criminal Procedure Act 1986 to apply
5 Criminal Procedure Act 1986 to apply
Except as provided by this Act, the Criminal Procedure Act 1986 shall apply to and in respect of a person charged with a child sexual assault offence.
s 5: Am 2001 No 121, Sch 2.170 [3].
Part 2 Special procedure before courts
Part 2 Special procedure before courts
Part 2 Special procedure before courts
6 Information relating to the Program etc to be given to person charged
6 Information relating to the Program etc to be given to person charged
6 Information relating to the Program etc to be given to person charged
A person to whom this Act applies who is charged with a child sexual assault offence shall, as soon as practicable after being charged, be furnished, in a manner approved by the Attorney General, with information regarding the operation of this Act.
s 6: Am 1993 No 7, Sch 1 (5).
7 Person appearing before judge may request that Act not apply
7 Person appearing before judge may request that Act not apply
7 Person appearing before judge may request that Act not apply
(1) Where a person who appears before a Judge of the Local Court in relation to a charge that the person has committed a child sexual assault offence makes a request to the judge that this Act cease to apply to the person, this Act shall cease to apply to the person in relation to that charge.
(2) A request referred to in subsection (1) may be made at any stage of proceedings before a Judge of the Local Court relating to a child sexual assault offence.
s 7: Am 2001 No 121, Sch 2.170 [4]; 2025 No 61, Sch 2.74[1]–[3].
8 Director of Public Prosecutions to conduct prosecutions
8 Director of Public Prosecutions to conduct prosecutions
8 Director of Public Prosecutions to conduct prosecutions
The prosecutor in any proceedings in which this Act applies to a person shall be the Director of Public Prosecutions, or a person authorised for the time being by the Director of Public Prosecutions in relation to the proceedings.
s 8: Am 1986 No 212, Sch 1.
9 Proceedings to be adjourned pending decision by prosecutor
9 Proceedings to be adjourned pending decision by prosecutor
9 Proceedings to be adjourned pending decision by prosecutor
Where a person to whom this Act applies first appears before a Judge of the Local Court in relation to a child sexual assault offence, the judge shall adjourn the proceedings for such period, not exceeding the period prescribed for the purposes of this section, as the prosecutor may request to allow for a determination to be made as to whether the person is to be referred for assessment in relation to the person’s suitability for participation in the Program.
s 9: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [5]; 2025 No 61, Sch 2.74[2] [3].
10 Matters to be considered by prosecutor in deciding whether to refer person for assessment
10 Matters to be considered by prosecutor in deciding whether to refer person for assessment
10 Matters to be considered by prosecutor in deciding whether to refer person for assessment
In determining whether a person charged with a child sexual assault offence is to be referred for assessment in relation to the person’s suitability for participation in the Program, the prosecutor must—
(a) consider the guidelines set out in the regulations, and
(b) ascertain from the Director or a person to whom the Director delegates the function whether a place in the Program would be available for the person if the person were to give an undertaking to participate in the Program.
s 10: Subst 1993 No 7, Sch 1 (7).
11 Prosecutor to notify judge of decision
11 Prosecutor to notify judge of decision
11 Prosecutor to notify judge of decision
(1) Where a person to whom this Act applies appears before a Judge of the Local Court following any adjournment of the proceedings under section 9, the prosecutor shall inform the judge as to whether the person is to be referred for assessment in relation to the person’s suitability for participation in the Program.
(2) The prosecutor is to inform the judge that the person is not to be referred for assessment if the prosecutor has ascertained under section 10 that a place in the Program would not be available for the person if the person were to give an undertaking to participate in the Program.
s 11: Am 1993 No 7, Sch 1 (6) (8); 2001 No 121, Sch 2.170 [6]; 2025 No 61, Sch 2.74[1]–[3].
12 Act ceases to apply to person not referred for assessment
12 Act ceases to apply to person not referred for assessment
12 Act ceases to apply to person not referred for assessment
Where, under section 11, the prosecutor informs the Judge of the Local Court that a person charged with a child sexual assault offence is not to be referred for assessment in relation to the person’s suitability for participation in the Program, this Act shall cease to apply to the person in relation to that charge.
s 12: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [7]; 2025 No 61, Sch 2.74[4].
13 Proceedings to be further adjourned pending assessment
13 Proceedings to be further adjourned pending assessment
13 Proceedings to be further adjourned pending assessment
(1) Where a Judge of the Local Court before whom a person charged with a child sexual assault offence appears is informed by the prosecutor that the person is to be referred for assessment in relation to the person’s suitability for participation in the Program, the judge shall adjourn the proceedings for such period, not exceeding the period prescribed for the purposes of this section, as the prosecutor may request to allow for that assessment to be made.
(2) Proceedings may be adjourned more than once under this section but the periods for which the proceedings are adjourned shall not, in total, exceed the period prescribed for the purposes of this section.
s 13: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [8]; 2025 No 61, Sch 2.74[2] [3].
14 Assessment
14 Assessment
14 Assessment
(1) A person who is to be referred for assessment in relation to the person’s suitability for participation in the Program must be referred for assessment, and be assessed, in accordance with the regulations.
(2) The Director, or a person to whom the Director delegates the duty, is to assess a person’s suitability for the purposes of subsection (1) and in doing so may take into account any or all of the following matters which appear to be relevant and any other matter which he or she considers to be relevant—
(a) any statement made to a police officer in relation to the alleged offence (including statements of the person charged with the offence, the child concerned, a parent of the child or any other person with relevant information),
(b) relevant information held by other government agencies which are or have been involved in the treatment of the person charged with the offence or of a member of that person’s family or household,
(c) interviews conducted by the Director or officer making the assessment with the person, the person’s spouse or de facto partner and the child concerned,
(d) whether the person accepts responsibility for the sexual assault of the child,
(e) whether the person demonstrates some understanding of the impact of the offence on the child and on other members of the child’s family or household,
(f) whether the person’s spouse or de facto partner is prepared to participate in the Program as required by the Director,
(g) whether the person and the person’s spouse or de facto partner have sufficient interactive skills to be able to participate in any group therapy aspects of the Program,
(h) whether the person and the person’s spouse or de facto partner agree to participate in all aspects of the Program,
(i) whether participation in the Program by the person, the person’s spouse or de facto partner and the child concerned is in the best interests of the child.
(3) The prosecutor is, in accordance with the regulations, to be notified as to the result of the assessment and to be provided with written reasons if the assessment made is that the person is not suitable for participation in the Program.
s 14: Subst 1993 No 7, Sch 1 (9). Am 2008 No 23, Sch 3.34 [2].
15 Prosecutor to notify judge as to person’s suitability
15 Prosecutor to notify judge as to person’s suitability
15 Prosecutor to notify judge as to person’s suitability
Where a person to whom this Act applies appears before a Judge of the Local Court following any adjournment of the proceedings under section 13, the prosecutor shall inform the judge as to whether the person has been assessed as being suitable for participation in the Program.
s 15: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [9]; 2025 No 61, Sch 2.74[1]–[3].
16 Act ceases to apply to person not suitable for participation in the Program
16 Act ceases to apply to person not suitable for participation in the Program
16 Act ceases to apply to person not suitable for participation in the Program
Where, under section 15, the prosecutor informs the Judge of the Local Court that a person charged with a child sexual assault offence has been assessed as not being suitable for participation in the Program, this Act shall cease to apply to the person in relation to that charge.
s 16: Am 1993 No 7, Sch 1 (6); 2001 No 121, Sch 2.170 [10]; 2025 No 61, Sch 2.74[4].
17 Act ceases to apply if person does not plead guilty before judge
17 Act ceases to apply if person does not plead guilty before judge
17 Act ceases to apply if person does not plead guilty before judge
(1) Where—
(a) a person to whom this Act applies appears before a Judge of the Local Court following any adjournment of the proceedings under section 13 and is charged with a child sexual assault offence (whether or not that offence is the offence originally charged), and
(b) the prosecutor informs the judge that the person has been assessed as being suitable for participation in the Program,
the person shall, before any evidence is given in those proceedings, be asked to plead to the charge.
(2) Where, upon being asked to plead to a charge as referred to in subsection (1), a person pleads guilty, the judge shall, before accepting or rejecting the plea, consider—
(a) whether the person has received such advice (including legal advice) as the judge thinks proper in the circumstances, and
(b) whether the person understands the purpose of the Program and the effect of giving undertakings under this Act,
and may adjourn the proceedings for a period, not exceeding the period prescribed for the purposes of this section, to allow that advice and information to be given to the person.
(3) Except as provided by subsection (4), where, upon being asked to plead to a charge as referred to in subsection (1), a person pleads not guilty or refuses to plead, this Act shall cease to apply to the person in relation to that charge.
(4) Where, upon being asked to plead to a charge as referred to in subsection (1), a person does not plead guilty to that charge but, instead, pleads guilty to another child sexual assault offence and the plea in respect of the other offence is accepted by the judge—
(a) this Act shall not cease to apply to the person by reason only of the person’s failure to plead guilty to the original charge, and
(b) subject to any other provision of this Act, this Act shall continue to apply to the person in respect of the offence to which the plea of guilty was made as if that offence had been the offence originally charged.
s 17: Am 1993 No 7, Sch 1 (6) (10); 2001 No 121, Sch 2.170 [11]; 2025 No 61, Sch 2.74[1]–[3].
18 Act ceases to apply if plea of guilty rejected
18 Act ceases to apply if plea of guilty rejected
18
This is an opening excerpt, not the complete document.