What it does
The Young Offenders Act 1997 (NSW) establishes a statutory hierarchy of diversionary interventions that operate as alternatives to the commencement or continuation of criminal proceedings against children. At its core the Act creates three procedural streams—warnings (Part 3), cautions (Part 4) and youth justice conferences (Part 5)—each calibrated to the seriousness of the offence, the child’s prior contact with the system, the degree of harm caused, and the prospects of rehabilitation.
Section 3 declares the objects: to provide an alternative to court for “certain offences”, to deliver an efficient and direct response, to use conferences that enable a community-based negotiated response emphasising restitution and acceptance of responsibility, to meet the needs of both victims and offenders, and to address the over-representation of Aboriginal and Torres Strait Islander children. These objects are given substantive force through the guiding principles in s 7, which mandate the least restrictive sanction, the right to legal advice, the avoidance of proceedings where an alternative exists, and the inclusion of parents and communities.
The Act’s coverage is defined negatively as well as positively. Section 8(1) applies the scheme to summary offences and indictable offences capable of summary disposal under Chapter 5 of the Criminal Procedure Act 1986, but s 8(2) then excludes a long list: offences investigated by non-police officials, traffic offences for which the child was old enough to hold a learner licence, offences resulting in death, the full suite of sexual offences listed by reference to specific sections of the Crimes Act 1900 (ss 61E, 61KC–61KF, 61L–61O, 66C–66DE, 80, 81A, 81B), offences under the Crimes (Domestic and Personal Violence) Act 2007, most Division 1 and 2 drug offences under the Drug Misuse and Trafficking Act 1985 except where the quantity is below defined small-quantity thresholds or exceptional rehabilitation circumstances exist (ss 8(2A) and (3)), and any offence prescribed by regulation. A graffiti offence under the Graffiti Control Act 2008 is carved out of police warnings and cautions but may be dealt with by court caution (s 31) or conference.