(VIC) Remove Prosecutorial Consent Requirement for Diversion

Ruby Anderson
1 day ago
7 min read

Author: Ruby Anderson | Publish date: 23/2/2026

P: In VIC, a person can only be placed on diversion if the prosecution consents.
S: The VIC Minister for Justice should amend Section 59(2)(c) of the Criminal Procedure Act 2009 (VIC) to remove prosecutorial consent requirements for diversion.

Problem Identification:

Section 59(2)(c) of the Criminal Procedure Act 2009 (VIC) (the Act) specifies that an accused person may undergo diversion only if ‘both the prosecution and the accused consent’.

According to the Fitzroy Legal Service (FLS), there are ‘numerous examples’ of police ‘refusing to consent to diversion… where it would have been appropriate.’ The prosecutorial consent requirement for diversion is known to be subject to prosecutorial bias, has been discriminatory against Aboriginal people, inconsistent, and can cause significant delays in the criminal justice system (CJS).

Context:

Diversion refers to a pre-plea scheme in the CJS (in the Magistrates’ Court for adults), aimed at first-time low-level offenders. The VIC Parliament Legal and Social Issues Committee (LSIC) reported that diversion may include, ‘apologising to the victim’, ‘undertaking counselling or alcohol and other drug treatment’, ‘completing an educational course’, ‘undertaking community work’, or ‘making a donation.’ The LSIC stated that if the accused fulfils their diversion conditions, ‘Victoria Police drops the charges, and the matter does not proceed.’ This allows people ‘to avoid a criminal record’ for low-level offences.

According to the Federation of Community Legal Centres VIC (FCLC), the main purpose of diversion is to ‘redirect people who commit minor offences away from criminal legal systems by addressing underlying causes of offending.’ LSIC reported that diversion ‘prevent[s]...offender[s] from further contact with the criminal justice system.’ The Human Rights Law Centre argued that diversion ‘can be life changing for people’.

The VIC Sentencing Advisory Council (SAC) stated that diversion accounted for 5.8% of all outcomes in the VIC Magistrates’ Court between 2011-2021. This means that, on average, 5100 people in VIC undergo diversion plans annually. The SAC further reported that 93.3% of diversion plans between 2011-21 were successfully completed.

Arguments:

According to the FCLC, requiring prosecutorial consent ‘leads to inconsistent and opaque outcomes.’ The LSIC argued that VIC’s approach to prosecutorial consent is ‘highly inconsistent, and at times inappropriate.’ They further explained that ‘these inconsistencies [are caused by] the policies and procedures’ that inform VIC prosecutors, which are ‘too broad’ and without ‘clear protocol.’ According to the FLS, unclear practices mean that ‘there has been a decline in the use of police diversion’ even in ‘appropriate cases.’

FLS argued that ‘any processes that rely on police discretion are open to stigma, prejudice and discrimination’, which can negatively impact the likelihood of minority groups accessing diversion. For example, the Yoorrook Justice Commission (YJC) reported that ‘police are less likely to…recommend diversion for Aboriginal people’ because of ‘systemic racism’ and ‘racial profiling’. According to the Victorian Aboriginal Legal Service (VALS), in 2020-21, only 1.3% of criminal law matters that VALS lawyers had involvement in ‘were adjourned for diversion.’ Further, the YJC argued that the disproportionate barriers to access diversion for Aboriginal people ‘contribut[es] to inequalities in the criminal justice system.’

The FCLC argued that the ‘discretion of individual officers to grant or reject access’ to diversion ‘poorly reflect[s] the legislative basis’ for the programs. The Law Institute of VIC (LIV) further argued that the prosecution is inappropriately fulfilling decision-making functions befitting of a judge, and thus is placing the prosecution in a ‘quasi-judicial position.’

The FCLC reported that ‘requiring police consent also leads to significant delays, as prosecutors often review the police brief at court, then request input from the informant or victim, leading to multiple delays and adjournments’. Moreover, they affirmed that diversion is the more ‘cost-effective’ option compared to incarceration and trials, as it reduces delays in the CJS.

According to the SAC, and echoed by the VALS, diversion is known to prevent re-offending, with those who receive diversion plans being ‘almost half as likely to reoffend…as those receiving other court outcomes.’ The SAC argued that the ‘effectiveness of diversion plans’ has shown that they should be used more when ‘appropriately targeted.’ By preventing re-offending through diversion, the FCLC reported that this would help to enable ‘safer communities.’

Advice/Solution Identification:

The FCLC, the FLS, the Office of the Public Advocate (OPA), and the Australian Community Support Organisation have all called to remove the prosecutorial consent requirement for diversion. According to the LIV, diversion should be a ‘matter for the magistrate,’ a recommendation that is echoed by the OPA, the YJC, and Liberty Victoria. The FCLC argued this change could help remove prosecutorial bias against minority groups while also reducing ‘significant delays.’ The FLS affirmed that this could help to limit ‘inconsistent outcomes.’

Precedent:

There is an international precedent for removing prosecutorial consent requirements for diversion. In Tennessee (USA), diversion is granted by judicial consent, rather than by the prosecution.

Public Support:

Broad Support:

Law Institute of Victoria (has advocated for removing the 'requirement for prosecutorial consent' and replacing it with 'a requirement for the Magistrate' to consult with the prosecutor and/or informant)
Yoorrook Justice Commission (has advocated for ‘remov[ing] the requirement that the prosecution… consent to diversion and replace it with a requirement that the prosecution be consulted’)
Liberty Victoria (has advocated for the judge to take into account whether the prosecution consents to diversion)

This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.

News Coverage:

There is a lack of relevant mainstream media coverage on this issue, to the best of the author’s knowledge. Hence, there are only 2 articles listed below.

ABC News - “‘Adult time for violent crime’? Victoria’s proposed youth justice reforms are more punitive than preventative.” Experts have challenged youth justice reforms that will curtail diversion, instead arguing that diversion and other pre-charge processes are more effective for rehabilitation among young people. By: Kate Fitz-Gibbons and Julie Edwards | 14 November 2025 - Read the article here.
ABC News - “Aboriginal cooperative pioneers Yallum Yallum crime diversion program.” A new culturally-sensitive Aboriginal-led diversion program has been trialled in VIC to hopefully combat Aboriginal people’s ‘under-representation’ in pre-plea CJS processes. By: Julie Bergin | 17 January 2025 - Read the article here.

Where to go to learn more:

(2024) Action for Justice: A Roadmap for Change - This report, prepared by the Federation of Community Legal Centres VIC, provided an in-depth analysis and accompanying recommendations of issues needing reform in the VIC criminal justice system, including prosecutorial consent to diversion. Read the report here.
(2021) Fitzroy Legal Service (FLS) submission to the Parliamentary Inquiry into the Criminal Justice System - This submission by the FLS examined numerous issues in VIC’s criminal justice system, including the prosecutorial consent requirement for diversion, and identified relevant policy solutions. Read the full submission here.
(2024) The Criminal Justice Diversion Program: Second Statistical Profile - The VIC Sentencing Advisory Council released a statistical report, providing a comprehensive snapshot of the frequency, nature, and cases where diversion is used in Victoria. Read the report here.
(2018) Justice Diverted? Prosecutorial discretion and the use of diversion schemes in Victoria - This report, published by Liberty Victoria, provided a detailed description of what diversion entails, its purpose and requirements, and issues preventing access to diversion. Read the full report here.
Criminal Procedure Act 2009 (VIC) - Read the full Act here.

Human Perspective:

Tony, a 21-year-old Aboriginal man, is facing his first criminal charge after spraying graffiti on a street wall. Tony has been studying and supporting his family, who have been in and out of prison his whole life. Tony has never been in trouble before, and his lawyer believes he is an ideal candidate for a diversion plan where counselling and an apology to the storeowner would address the harm caused without derailing his future. However, the police refuse to consent to Tony’s diversion plan, partly because Tony believes he was rude to the arresting officer. The matter is adjourned many times, which leaves Tony anxious about the risk of gaining a permanent criminal record, which he knows would affect his future employment. For Tony, a diversion plan could be life-changing. However, this discretionary refusal by the arresting officer leaves Tony feeling hopeless, scared and incredibly worried about his future.

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

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Disclaimers

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Reference list:

Australian Community Support Organisation. (2021, September 1). Submission no. 91: Inquiry into Victoria’s Criminal Justice System. https://www.parliament.vic.gov.au/495e05/contentassets/be874ea8b8664e36b9ef82040f42f358/submission-documents/091.-australian-community-support-organisation_redacted.pdf

Criminal Procedure Act 2009 (VIC). https://content.legislation.vic.gov.au/sites/default/files/2025-11/09-7aa104-authorised.pdf

Federation of Community Legal Centres VIC. (2024). Action for justice: A roadmap for change. Policy platform for Victoria’s community legal sector 2025-2030. https://assets.nationbuilder.com/fclc/pages/18/attachments/original/1752803818/FCLC_A4J%28210x297mm%29_Web%2820250715%29_FINAL.pdf?1752803818

Law Institute of Victoria. (2021, September 10). Submission no. 112: Inquiry into Victoria’s Criminal Justice System. https://www.parliament.vic.gov.au/4ae7ce/contentassets/c069a03a936643758395b9e959019251/submission-documents/112.-law-institute-victoria_redacted.pdf

Legislative Council Legal and Social Issues Committee. (2021, August 24). Inquiry into Victoria’s Criminal Justice System [Conference transcript]. https://www.parliament.vic.gov.au/495e1d/contentassets/093bc029a6c54447968eb8e62d8f0e9e/5.-final---justice---hrlc.pdf

Office of the Public Advocate. (2021, September 24). Submission no. 153: Inquiry into Victoria’s Criminal Justice System. https://www.parliament.vic.gov.au/4ae7f2/contentassets/a845d9baa7754774af98dcc72bcedb1d/submission-documents/153.-office-of-the-public-advocate_redacted.pdf

Legislative Council Legal and Social Issues Committee. (2022, March). Inquiry into Victoria’s criminal justice system: Volume 1. Parliament of Victoria. https://www.parliament.vic.gov.au/4a922e/contentassets/6961bccea1ac41dd812811ab0312170d/lclsic-59-10-vic-criminal-justice-system.pdf

Pearce, M., L’Estrange, S., & Hornung, M. (2021). Submission no. 152: Inquiry into Victoria’s Criminal Justice System. Fitzroy Legal Service. https://www.parliament.vic.gov.au/4ae7f0/contentassets/b176f914efc543e09568913052b7bbce/submission-documents/152.-fitzroy-legal-service_redacted.pdf

Revolving Doors. (2020, October 1). Police-led diversion: The LEAD approach. https://revolving-doors.org.uk/police-led-diversion-lead-approach/

Scott, E., King, B., Saravanan, S., & De Witt, D. (2018). Justice diverted? Prosecutorial discretion and the use of diversion schemes in Victoria. Liberty Victoria. https://apo.org.au/sites/default/files/resource-files/2018-05/apo-nid172361.pdf

Sentencing Advisory Council. (2024). The Criminal Justice Diversion Program in Victoria: Second Statistical Profile. Victoria State Government. https://www.sentencingcouncil.vic.gov.au/sites/default/files/2024-06/criminal_justice_diversion_program_second_statistical_profile_0.pdf

Victorian Aboriginal Legal Service and South Eastern Australian Aboriginal Justice Services Ltd. (2021, September 18). Submission no. 139: Inquiry into Victoria’s Criminal Justice System. https://www.parliament.vic.gov.au/4ae7e0/contentassets/b8fa6caf8d0a47659e5d2dd4f41352e9/submission-documents/139.-vals_eastern-australian-aboriginal-justice-services-ltd_redacted.pdf

Victorian Council of Social Services. (2021, September 17). Submission no. 137: Inquiry into Victoria’s Criminal Justice System. https://www.parliament.vic.gov.au/4ae7da/contentassets/48db57ee952f491ba7246f3d0471645a/submission-documents/137.-victorian-council-of-social-services_redacted.pdf

Yoorrook Justice Commission. (2023). Yoorrook for Justice: Report into

Victoria’s Child Protection and Criminal Justice Systems. https://cdn.craft.cloud/06ad3276-b3d9-4912-bcbb-37795aade9a8/assets/documents/Yoorrook-for-justice-report.pdf