Court diversion programs are commonly used in the criminal justice system as a form of sentence in which an offender joins a rehabilitation program to combat the likelihood of re-offending. Programs are usually offered to those with minimal prior contact with the justice system and/or for less serious offences, according to the Australasian Institute of Judicial Administration.
A new report by Victorian advocacy group Liberty Victoria has shown that existing guidelines for court diversion programs in Victoria, which give absolute discretion to prosecutors and police informants, can lead to detrimental outcomes for over-represented minority groups in the criminal justice system.
The report explained that because Aboriginal and Torres Strait Islander communities, as well as people of colour, were disproportionately represented in the system, they faced the greatest detriment. However, these groups also stood to benefit most from participating in diversion programs.
The system was vulnerable to bias and prejudice leading an accused person not to be recommended for participation in one of these programs, Liberty Victoria said.
“As it stands, the current diversion systems in both the adult and juvenile jurisdictions have resulted in inconsistent and unfair outcomes as a result of formal and undisclosed practices that leave unchecked scope for bias and discrimination,” the report said.
“Both adult and youth accused are disadvantaged as a result of this state of affairs, particularly those from marginalised and criminalised communities.”
The group is advocating for appropriate oversight of these, so as to prevent individual police officers adopting what it called “idiosyncratic and inconsistent” practices.
Under current guidelines, the courts also have no power to review a prosecutor’s decision to refuse access to a diversion program. Experts want this to change and for oversight options to be available to judges.
“Advocates for legislative reform [want] to allow the ultimate decision regarding diversion to fall with judicial officers rather than the prosecution, on the grounds that the decision to refer an individual for diversion is more akin to a sentencing option than a charge withdrawal,” the report found.
Until measures to amend relevant laws could be made, the report recommended that new guidelines be developed to increase the transparency and accountability of decisions for the process.
New guidelines were critical, the report noted, because the current system did not prioritise rehabilitation and the reduction of recidivism.
The group said it was calling for immediate change to bring Victoria’s justice system in line with fundamental principles of natural justice, the separation of powers and equality before the law.
“Positive reform is urgently needed in this space,” Liberty Victoria said.
'Justice Diverted? Prosecutorial discretion and the use of diversion schemes in Victoria' was launched as part of Law Week 2018 (14 – 20 May).