Pre-Trial Diversion of Offenders Act 1985

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 Subsection 3(2) extends the reference to earlier versions of those provisions where they have been amended or repealed.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.

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.

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.

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.

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.

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.

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.

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.