Young Offenders Act 1997

The primary subjects are “children” defined in s 4 as persons aged 10 or over and under 18. However s 7A, inserted in 2007, extends the Act to any person who was a child at the time of the offence but is under 21 when being dealt with. For such young adults, references to “child” are read as references to a person of the relevant age, but the protective presence and consent rules in ss 10, 22(2), 29(3), 39(2) and any regulation-prescribed provisions do not apply.

Parents and persons responsible for a child (defined broadly in s 4 to include guardians and those with lawful custody or care) are given explicit recognition. Principle (f) in s 7 states that parents are to be recognised and included in justice processes and are primarily responsible for the child’s development. Their presence is required or encouraged at explanations (ss 22, 39), cautions (s 28), conferences (s 47) and, where safe, they may be notified of warnings (s 16A).

Victims occupy a central but voluntary role. Section 5 defines “victim” as a person who suffers physical or psychological harm or financial loss as a direct result of the child’s act; organisations may nominate representatives. Victims are entitled to information about their potential involvement (s 7(g)), may provide written statements for cautions and court cautions (ss 24A, 31(1B)), may attend and be supported at conferences (s 47), and hold a veto over outcome plans (s 52(4)). The principles in s 34 require that measures enhance victims’ rights and have due regard to their interests.

Investigating officials (police and prescribed officers), specialist youth officers, youth liaison officers, conference convenors and administrators, the Director of Public Prosecutions, and the Children’s Court all exercise statutory functions. The Commissioner of Police has significant delegated responsibilities for record destruction (ss 17(3), 33A) and authorising officers to give cautions (s 27).

The Act binds the Crown (s 62) and therefore applies to all NSW government agencies. Non-government organisations may be engaged to deliver programs contained in outcome plans (s 52(5A)) or to receive diverted records for Youth on Track or similar schemes (s 66(2)(h)).

Finally, the broader community is affected through the emphasis on culturally appropriate, community-based responses and the explicit aim of reducing Indigenous over-representation (ss 3(d), 7(h), 34(1)(a)(v)).

Duties of officials

• Investigating officials must, before commencing proceedings, determine whether the offence is covered and which diversion pathway is appropriate, ideally within 14 days (s 9(2)–(2B)). They must consider the principles in s 7 and the specific factors listed in ss 14, 20 and 37.
• Before any admission can count for the purposes of the Act, it must be given in the presence of a responsible adult, chosen adult or lawyer (s 10).
• Explanations of rights (legal advice, election for court, nature and effect of the intervention) must be given and, if practicable, in the presence of a responsible adult (ss 22, 39).
• Cautions and conferences must be conducted so the child understands their purpose, nature and effect (ss 16, 29(1), 48).
• Outcome plans must comply with the realism, proportionality and time-limit requirements of s 52(6).
• Records must be created, protected and ultimately destroyed in accordance with ss 17, 33A, 59 and 66.

Rights of the child

• Entitlement to the least restrictive sanction (s 7(a)).
• Right to be informed of, and to obtain, legal advice before any caution or conference (ss 7(b), 22, 39).
• Right to elect court at any time before a caution is given or conference held (ss 25, 44).
• Right to have a responsible adult or chosen support person present at key stages (ss 10, 22(2), 28, 39(2), 47).
• Veto over any outcome plan or any part of it (s 52(4)).
• Protection against subsequent proceedings on satisfactory completion (ss 32, 58).
• Protection of identity (s 65) and non-disclosure of interventions as criminal history (s 68), subject to limited exceptions.

Rights of victims

• Right to information about involvement and progress (s 7(g)).
• Right to provide a written harm statement for cautions or court cautions (ss 24A, 31(1B)).
• Right to attend conferences, be accompanied by support persons, and veto outcome plans (ss 47, 52(4)).
• Right to be consulted before a conference is reconvened (s 55(2)).

These duties and rights are reinforced by the overarching principles in ss 7 and 34, which officials must apply when exercising any function under the Act.

The Act itself contains few direct offence provisions. The main sanction is the prohibition on publishing or broadcasting a child’s name or identifying information (s 65(2)), carrying a maximum penalty of 500 penalty units for a corporation or 50 penalty units/imprisonment for 12 months (or both) for an individual. Unauthorised disclosure of records attracts the same penalty (s 66(1)).

Non-compliance by officials does not usually invalidate action: failure to meet the 14-day decision target (s 9(2C)) or to destroy records at exactly the right time does not prevent diversion or invalidate the intervention. However, persistent breach of procedural safeguards could found administrative or judicial review, or complaints to the Ombudsman (permitted under s 66(2A)).

Enforcement of outcome plans is indirect. If a child fails to complete a plan, the matter may be referred back for prosecution (s 57(1), note to s 57). Where the Children’s Court has released a child on condition of compliance, non-compliance can trigger a summons or warrant under s 41 of the Children (Criminal Proceedings) Act 1987. A court that referred a matter without a guilt finding must dismiss the charge upon satisfactory completion (s 57(2)).

The Commissioner of Police is under a statutory duty to destroy or expunge warning and caution records (and fingerprints, palm prints and photographs) as soon as practicable after the person turns 21 (ss 17(3), 33A), subject to the exceptions in s 17(4) for statistical bodies. Breach of this duty is not expressly penalised but would expose the Commissioner to judicial review or Ombudsman scrutiny.

The Act is expressly “in addition to, and does not limit” evidence law (s 11(2)) and does not affect the jurisdiction of the Children’s Court or other courts (s 11(1)). It sits alongside the Children (Criminal Proceedings) Act 1987, which continues to govern criminal proceedings when diversion is not used and supplies the definition of “traffic offence” (s 4). Court cautions under the Young Offenders Act are additional to cautions under s 33 of the Children (Criminal Proceedings) Act (s 31(3)).

Heavy reliance is placed on the Criminal Procedure Act 1986 (summary disposal), the Crimes Act 1900 (sexual offence exclusions), the Drug Misuse and Trafficking Act 1985 (quantity thresholds), the Graffiti Control Act 2008, the Road Transport Act 2013 (learner licence age), and the Crimes (Domestic and Personal Violence) Act 2007. The State Records Act 1998 is overridden for the purpose of mandatory destruction of youth records (ss 17(3), 33A).

Record-sharing provisions in s 66 permit disclosure to the DPP, courts, the Department of Communities and Justice (for Youth on Track or prescribed early-intervention programs), the Ombudsman, and statistical bodies (Bureau of Crime Statistics and Research, Australian Bureau of Statistics, Australian Institute of Criminology) once identifying details are removed. These carve-outs are “subject to any regulations” made under s 66(3).

The Act interacts with child protection and working-with-children legislation: interventions may be disclosed for Child Protection (Working with Children) Act 2012 or National Disability Insurance Scheme (Worker Checks) Act 2018 clearances (s 68(2)(d)).

Finally, the Police Act 1990 supplies the Commissioner’s delegation power for record-destruction functions (note to s 17(3)).

The Act has been amended more than a dozen times since 1997. The most significant clusters are:

• 2007 (Courts and Other Legislation Amendment Act): Inserted s 7A (extension to under-21s), expanded victim statement rights (ss 24A, 31(1B)), allowed parental notification of warnings (s 16A), tightened record destruction (s 33A), and adjusted presence rules. These changes responded to reviews showing that diversion was under-used for older teenagers and that victims felt excluded.

• 2012 (Graffiti Legislation Amendment Act and Crimes Legislation Amendment Act): Removed graffiti offences from police warnings and cautions (ss 13, 18) but permitted court cautions (s 31). Amended record destruction and disclosure rules to permit limited retention for research. The changes reflected community concern about property damage while preserving rehabilitative options via conference or court caution.

• 2013–2020 amendments: Further refined disclosure rules (s 66) to allow sharing with Youth on Track and non-government service providers, updated departmental titles after machinery-of-government changes, and clarified that statistical bodies may retain records indefinitely (s 17(4)). The 2018 and 2025 amendments to s 68 aligned non-disclosure exceptions with working-with-children and NDIS worker-check regimes.

These amendments have been driven by three recurring themes: improving victim participation, ensuring records do not unfairly stigmatise young people while still permitting data-driven policy research, and fine-tuning offence filters to balance diversion with community safety, especially for drug and property crime.

Because most matters are diverted before court, reported case law is sparse and largely procedural. Courts have confirmed that the statutory preconditions—admission in the presence of a responsible adult (s 10), genuine consent, and proper explanation—are jurisdictional in the sense that failure can render a caution or conference ineffective, allowing prosecution to proceed (consistent with the saving provision in s 64). The Children’s Court has on occasion declined to approve an outcome plan under s 54 where the proposed sanctions were considered either too lenient or not realistically achievable, sending the matter back for conventional sentencing.

Controversies have centred on three areas. First, the “three cautions” rule (ss 20(7), 23(5), 31(5), 37(6), 38(5), 41(9)) has been criticised as arbitrary; a child who accumulates three cautions for minor matters may be propelled into court for a fourth trivial offence. Second, the discretionary power to exclude matters on “interests of justice” grounds (ss 14(2), 20(2), 37(2)) has produced inconsistent application across police commands, with rural and Indigenous communities sometimes reporting lower diversion rates. Third, the destruction-of-records regime, while protective, has been said to hinder longitudinal research into recidivism; the 2013 amendments permitting de-identified disclosure to the Bureau of Crime Statistics and Research were a direct response to that criticism.

No High Court or Court of Criminal Appeal decision has struck down any core provision, but judicial review proceedings have succeeded where police failed to offer the child the opportunity to obtain legal advice before accepting a caution.

Most practitioners underestimate the strictness of the admission rule in s 10. An admission obtained without a responsible adult, chosen adult or lawyer present is not an “admission for the purposes of this Act”. This can invalidate the entire diversion pathway even if the child later repeats the admission in admissible form.

The “exceptional circumstances” gateways for certain drug offences (ss 8(2A)(b), 8(3)(b)) require the investigating official or prosecuting authority to form an opinion that dealing with the matter under the Act would be “in the interests of rehabilitation and appropriate in all the circumstances”. That opinion must be documented; failure to record it has led to matters being returned for prosecution years later.

Conference outcome plans cannot lawfully impose community service hours exceeding the regulatory cap (currently 100 hours—see regulations). Plans that do so are invalid, exposing the convenor to challenge and the matter to be reopened under s 55 or returned under s 53.

Section 68’s protection against disclosure as criminal history contains hidden exceptions for judicial appointments, police, prison officers, teachers, arson-related employment and working-with-children checks. Advising a client that “it will be wiped” without checking the intended future occupation can be professional negligence.

The 14-day target in s 9(2B) is directory only (s 9(2C)), yet delay beyond that period can trigger limitation-period issues. Section 64 extends time, but only by three months after referral back; missing that window can permanently bar prosecution.

Finally, many lawyers forget that a court-referred conference under s 40 can occur even after a guilt finding. The outcome plan is then considered in sentencing, but if the court later withholds approval under s 54 the proceedings simply continue—there is no automatic acquittal.

For investigating officials and specialist youth officers

1. Confirm the offence is covered by cross-checking s 8 exclusions, including quantity thresholds for drug matters.
2. Document the factors considered under ss 14, 20 or 37 (seriousness, violence, harm, prior interventions).
3. Ensure any admission complies with s 10 before relying on it.
4. Give the scripted explanation required by ss 22 or 39, preferably with a responsible adult present, and record that it was given.
5. Issue the written notice required by ss 24 or 45 in approved form and in child-friendly language.
6. Meet (or at least aim for) the 14-day decision target.
7. For conferences, consult the victim and child’s family before the convenor fixes date, time and participants.

For conference convenors and administrators

1. Use the Secretary’s approved guidelines (s 49).
2. Ensure the outcome plan meets every requirement of s 52(6): realistic, proportionate, time-limited, no excessive community service.
3. Record the child’s and any attending victim’s express consent or veto.
4. Monitor implementation and issue the formal completion (or non-completion) notice under s 56 to all prescribed recipients.
5. Reconvening under s 55 requires victim consultation and a finding that it is in the interests of justice or that the plan has become unworkable.

For legal practitioners advising children

1. Explain that accepting diversion is not a criminal conviction but will be visible to courts for sentencing if a later offence occurs (s 66(2)(c)).
2. Advise on the three-caution limit and the risk that a fourth matter will go to court regardless of triviality.
3. Where an outcome plan is proposed, negotiate realistic timelines and support services; unrealistic plans increase breach risk.
4. Remind the client that statements made in a conference are inadmissible in later proceedings (s 67) but the plan itself may be tendered if the court referred the matter.
5. For clients approaching 21, confirm that records will be destroyed and obtain written confirmation from NSW Police if required for employment or travel.

For victims

1. Decide early whether to provide a written harm statement and whether to attend a conference; the statute gives a veto right only to those who personally attend.
2. Request support persons and an interpreter if needed; these are expressly permitted.

Compliance is aided by the detailed forms and guidelines issued by the Department of Communities and Justice and NSW Police. Regular training on the interaction between the Young Offenders Act and the Children (Criminal Proceedings) Act 1987 is essential, because the two statutes must be read as a single coherent juvenile justice code.