(NSW) Remove the Cap on Police Cautions for Young Offenders

Author:  Adoette Vaughan | Publish date: 18/06/2025

Problem Identification: 

In NSW, children who have committed low-level offences may receive no more than 3 cautions before they are referred to court.

Sections 20(7) and 31(5) of the Young Offenders Act 1997 (NSW) limit the number of cautions a child may receive from police or through the courts for summary offences. A child who has already received 3 cautions would subsequently have to be referred to a court and may have to stay in police custody until their court date.

This means that children who committed low-level offences may be pushed into the court system, even if there is evidence that their behaviour could be better addressed through diversion or by support services. This is known to disproportionately impact more vulnerable young people, especially Aboriginal and Torres Strait Islander children.

Context: 

Cautions, along with warnings and youth justice conferences, refer to diversionary responses that allow young people accused of a crime to avoid court proceedings. Being issued a caution allows the child to avoid a criminal record, with only the record of the caution being preserved. 

Police officers and courts currently have the discretion to issue cautions to minors for summary offences (e.g. theft or property damage) and for less serious indictable offences (e.g. some drug offences) that can be dealt with in the same manner, under the condition that the young person admits guilt. 

A report from the NSW Bureau of Crime Statistics and Research (BOCSAR) has revealed that diversion rates are dropping for common offences. Concurrently, in NSW, the population of youth in custody is increasing. Jackie Fitzgerald, the Executive Director of BOCSAR, stated that the increase can in part be attributed to young people being held on remand for summary offences. According to BOCSAR data, Aboriginal and Torres Strait Islander youth in detention increased 21.7% from December 2023 to December 2024.

Researchers have described juvenile detention as ‘damaging and criminogenic’ and that it entrenches ‘young people further in disadvantage.’ Time spent in detention is known to have detrimental effects on a child’s psychological and physical health, as well as their social and educational development.

According to Fitzgerald, diversion is essential for reducing juvenile reoffending. A meta-analytic review on the effect of youth diversion programs on recidivism has spotlighted that diversion can lead to lower rates of recidivism. Another study by BOCSAR in 2018 revealed that ‘juveniles receiving a caution are about 14% less likely than those referred to court, to receive a caution or be referred to court again within 24 months of their index contact.’ Notably, authors Wang and Weatherburn have argued that referring juveniles to court for minor offences may actually ‘increase the risk of juvenile reoffending’.

Further, research has suggested that children in detention are already more likely to come from marginalised groups or backgrounds. Detention rates are known to be highest among Aboriginal and Torres Strait Islander children, who account for over half of the youth prison population despite accounting for just 3% of the NSW population. As such, the Shopfront Youth Legal Centre has highlighted that vulnerable groups are ‘disproportionately disadvantaged by this rule.’

According to the Shopfront Youth Legal Centre, the cap on cautions conflicts with the stated principles of the Young Offenders Act 1997 (NSW), including to ‘apply the least restrictive form of sanction’ and ‘criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter.’ In addition, Legal Aid NSW has argued that the cap ‘arbitrarily limits the ability of police to caution and divert a child when this is the most appropriate response to an offence.’

Many First Nations advocacy groups, legal centres, and criminology experts have called for the removal of the limit on police cautions. They have said this could increase the number of appropriate diversions, especially for Aboriginal and Torres Strait Islander youth. 

There is domestic precedent for removing the limit on police cautions. In VIC, there is no limit to the number of cautions a child may receive for an alleged offence.  

Solution Identification: 

Repeal sections 20(7) and 31(5) of the Young Offenders Act 1997 (NSW) to remove the limit on the number of cautions children can be issued.

This could help more young people to benefit from diversions and help to address the over-representation of Aboriginal and Torres Strait Islander youth in the NSW criminal justice system. 

Advice:

The NSW Minister for Youth Justice should repeal sections 20(7) and 31(5) of the Young Offenders Act 1997 (NSW) as specified above at the next opportunity.

Download the 1-Page Brief Here - (NSW) Remove the Cap on Police Cautions for Young Offende.

Download • 91KB

---

Public Support: 

1. Law Society NSW

2. Department of Juvenile Justice

3. Just Reinvest NSW

4. The Shopfront Youth Legal Centre

5. Legal Aid NSW

Where to go to learn more: 

1. Review of The Young Offenders Act 1997 Submission- Discusses the impact of the YOA and outlines recommendations. Read the submission here. 

2. Police Warnings and Cautions under the Young Offenders Act 1997 – A summary- Provides detailed information on crimes for which cautions may be issued and who is eligible. Read the factsheet here. 

3. Report Adequacy of Youth Diversionary Programs in NSW- Discusses the objectives and impact of the YOA. Read the full review here.

4. NSW Bureau of Crime Statistics and Research- Youth Offending- Contains data on youth crime and criminal justice responses enacted. View the data here.

5. Young Offenders Act 1997 (NSW)- Read the full act here

Human Perspective:

Liam is 15 and lives with his grandmother in a regional NSW town, where his school attendance has been patchy since his mum passed away two years ago. Over the past year, he’s been picked up a few times for low-level offences like shoplifting and damaging property, mostly linked to acting out while his grandmother is at work. Each time, he admitted what he did and was given a caution. After the third time, though, the police decided to refer him to court. From there, everything shifted. He missed classes for hearings, was placed on strict bail conditions, and began to withdraw from the youth support program he’d just started attending. He eventually spent a short period in youth detention. His little sister, who already struggles with anxiety, started having trouble sleeping at night, worried he wouldn’t come home. For Liam, what began as a series of minor offences quickly escalated into deeper justice system involvement, not because he was unwilling to change, but because the system stopped giving him the chance.  To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Byrne, N. (2025, January 13). NSW Youth Diversion Rate Declines Amid Shifting Crime Patterns. O’Brien Criminal & Civil Solicitors. https://obriensolicitors.com.au/nsw-youth-diversion-rate/ 

Clancey, G., Wang, S., & Lin, B. (2020). Youth justice in Australia: Themes from recent inquiries [Review of Youth justice in Australia: Themes from recent inquiries]. Trends and Issues in Crime and Criminal Justice, 605, 1–19. Informit. 

https://search.informit.org/doi/epdf/10.3316/informit.447563988248416 

Criminal Procedure Act 1986, (2025). https://legislation.nsw.gov.au/view/html/inforce/current/act-1986-209#sch.1-pt.2 

Dahlstrom, F. (2021). Summary Offences (NSW). Armstrong Legal. https://www.armstronglegal.com.au/criminal-law/nsw/offences/summary-offences/ 

Department of Juvenile Justice. (2011). Review of the Young Offenders Act 1997 and the Children (Criminal Proceedings) Act 1987 [Review of Review of the Young Offenders Act 1997 and the Children (Criminal Proceedings) Act 1987]. https://dcj.nsw.gov.au/documents/about-us/engage-with-us/public-consultations/unsorted/djj.pdf 

Dole, N. (2024, March 12). Critics warn against “dangerous” youth crime crackdown in NSW that threatens to increase incarceration. ABC News. https://www.abc.net.au/news/2024-03-12/nsw-youth-crime-legislation-bail-social-media-incarceration/103578062 

Gregoire, P. (2025, March 25). New South Wales Launches Yet Another Crackdown on Youth Crime. Sydney Criminal Lawyers; SCL. https://www.sydneycriminallawyers.com.au/blog/new-south-wales-launches-yet-another-crackdown-on-youth-crime/

Intellectual Disability Rights Service. (2014, March 18). Factsheet: Cautions under the Young Offenders Act 1997 - A summary. https://www.idrs.org.au/pdf/factsheets/Factsheet-for-lawyers-Cautions-under-young-offenders-act.pdf

Johns, R. (2003). NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE Young Offenders and Diversionary Options. https://www.parliament.nsw.gov.au/researchpapers/Documents/young-offenders-and-diversionary-options/07-03.pdf

Just Reinvest NSW. (2018, February 13). INQUIRY INTO THE ADEQUACY OF YOUTH DIVERSIONARY PROGRAMS IN NSW. https://www.parliament.nsw.gov.au/ladocs/submissions/59833/Submission%20No%2021%20-%20Just%20Reinvest%20NSW.pdf

Knaus, C. (2023, June 6). NSW police less likely to give Indigenous offenders warnings for minor cannabis offences. The Guardian. https://www.theguardian.com/australia-news/2023/jun/07/nsw-police-less-likely-to-give-indigenous-offenders-warnings-for-minor-cannabis-offences

Legal Aid NSW. (2018). INQUIRY INTO THE ADEQUACY OF YOUTH DIVERSIONARY PROGRAMS IN NSW. https://www.parliament.nsw.gov.au/ladocs/submissions/59784/Submission%2014.pdf

McKnight, P. (2020). Review of The Young Offenders Act 1997 Submission from The Shopfront Youth Legal Centre. https://humanrights.gov.au/sites/default/files/the_shopfront_youth_legal_centre_attachment3_redacted_0.pdf

Mills, T. (2021, September 8). Criminal charges over minor offences prod police to change tack on youth cautions. The Age. https://www.theage.com.au/national/victoria/criminal-charges-over-minor-offences-prod-police-to-change-tack-on-youth-cautions-20210908-p58pum.html

Moore, E. (2011). The use of police cautions and youth justice conferences in NSW in 2010. https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/resources/files/bb73.pdf

NSW Bureau of Crime Statistics and Research. (2024a). NSW Custody Statistics: Quarterly update December 2024. BOCSAR; NSW Department of Communities and Justice. https://bocsar.nsw.gov.au/media/2025/mr-custody-dec2024.html

NSW Bureau of Crime Statistics and Research. (2024b). Youth Crime. NSW Department of Communities and Justice. https://bocsar.nsw.gov.au/topic-areas/young-people.html

NSW Government. (2023). NSW Closing the Gap Annual Report 2022-2023. https://www.nsw.gov.au/sites/default/files/noindex/2024-05/NSW-Closing-the-Gap-Annual-Report-2022-2023.pdf

Pisani, A. (2022). Long-term re-offending rates of adults and young people in NSW NSW BUREAU OF CRIME STATISTICS AND RESEARCH 2 LONG-TERM RE-OFFENDING RATES OF ADULTS AND YOUNG PEOPLE IN NSW. https://bocsar.nsw.gov.au/documents/publications/bb/bb151-200/bb162-report-long-term-re-offending-rates-of-adults-and-young-people-in-NSW.pdf

Rennie, E., & Farrow-Smith, E. (2025, January 10). Fed up community leaders, police call for more NSW youth crime programs. https://www.abc.net.au/news/2025-01-11/lobby-for-programs-to-deter-youth-crime-car-thefts-police-nsw/104798752

Save the Children. (2023). Putting children first: A rights respecting approach to youth justice in Australia. https://www.savethechildren.org.au/getmedia/4befc9d7-c9de-4088-b591-547714fc8673/Putting-children-first-A-rights-respecting-approach-to-youth-justice-in-Australia_April-23.pdf

The Law Society of New South Wales. (2024, November 15). Letter to NSW Drug Summit 2024 https://www.lawsociety.com.au/sites/default/files/2024-12/Letter%20to%20NSW%20Drug%20Summit%202024%20-%2015%20November%202024.pdf 

Victoria Police ANNUAL REPORT 2023-24. (2024). State of Victoria. https://www.police.vic.gov.au/sites/default/files/2024-10/Victoria-Police-Annual-Report-2023-24-Accessible.pdf

Wang, J. J., & Weatherburn, D. (2018). Are police cautions a soft option? Reoffending among juveniles cautioned or referred to court. Australian & New Zealand Journal of Criminology, 52(3), 000486581879423. https://doi.org/10.1177/0004865818794235

Wilson, H. A., & Hoge, R. D. (2012). The Effect of Youth Diversion Programs on Recidivism: A Meta-Analytic Review. Criminal Justice and Behavior, 40(5), 497-518.

https://doi.org/10.1177/0093854812451089 

Youth Justice Act 2024 Vic (2024). https://content.legislation.vic.gov.au/sites/default/files/2024-09/24-032aa-authorised.pdf

Youth Justice NSW. (2022, March 15). What happens when a young person becomes involved with the police? NSW Government. https://www.nsw.gov.au/legal-and-justice/youth-justice/parents-guardians-carers/involved-police 

Youth Law Australia. (2019, April 16). Formal cautions. Youth Law Australia. https://yla.org.au/nsw/topics/courts-police-and-the-law/the-youth-justice-system/formal-cautions/ 

Young Offenders Act 1997 NSW (2020). https://legislation.nsw.gov.au/view/html/inforce/current/act-1997-054#statusinformation