Juvenile Justice, through its Youth Justice Conferencing Directorate, is responsible for the operation of Part 5 of the Young Offenders Act 1997 (NSW).
The Act sets out an integrated hierarchical scheme of police warnings, cautions and youth justice conferences designed to divert young offenders from formal court processes for certain offences. Young offenders are entitled under the Act to be dealt with by way of the least intrusive response that is appropriate in the circumstances of the offence.
There are limitations in the Act on both the type and seriousness of the offence, on the time taken for each response, and on the age of the offender (10 to 18). Offences that cause the death of a person, sexual assault offences, traffic offences where the child is old enough to hold a permit or a licence, breaches of apprehended violence orders, and most drug offences are all excluded from the operation of the Act.
All summary offences that do not involve violence (for example, offensive language) are potentially offences for which police can give a child a warning (and not arrest). The child does not have to admit the offence before a warning is given, but police must record the child's name, cultural background, age and sex.
When police arrest a child they must first consider whether the child is 'eligible' for a caution or a youth justice conference. That is, they must decide whether the offence is one that is 'covered' by the Act, and that the child has admitted the offence and consented to be cautioned or participate in a conference. If so, they must apply a given set of criteria before deciding whether this child should be cautioned, referred to a youth justice conference, or charged. The criteria are: the seriousness of the offence, the degree of violence involved, the harm caused to any victim, the child's previous offending history and the number of times the child has been cautioned or participated in a youth justice conference, as well as any other appropriate matters.