CHAPTER SIX - Diversion or Trial: Who Decides?  pp. 81-92

Diversion or Trial: Who Decides?

By Fay Gale, Rebecca Bailey-Harris and Joy Wundersitz

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In criminal justice systems which utilise formal diversionary procedures as the alternative to ordinary trial in Court, the determination of which route a case is to take is of crucial significance to the alleged offender. South Australia has a developed system of diversion, represented by the existence of Children's Aid Panels which, as noted earlier, have operated since 1972. Their objective is to achieve a positive effect on a child's future conduct and so reduce the likelihood of further offending. In South Australia since 1979 Screening Panels have operated as the all-important pre-trial ‘sieve’ in the juvenile justice process, deciding which cases are or are not suitable for diversion. This chapter, which examines how this sieve operates, suggests that Screening Panels do not give Aboriginal youth opportunities equal to those afforded to their non-Aboriginal counterparts to benefit from the system of diversion. This can largely be attributed to the fact that the police decision taken at the first level of the juvenile justice process to arrest rather than report a child exerts an extremely strong influence on the Screening Panel's referral decision.

The right of Screening Panels to consider cases where a young person has been arrested as well as those where a young person has been reported is a legislative change from the earlier Juvenile Courts Act 1971, under which all those arrested were ineligible for diversion to Juvenile Aid Panels and had to appear in the Juvenile Court.