(VIC) Remove the Need for Prosecution Consent for Children to Access the Children’s Court Youth Diversion Scheme

Sandile Huaraka
Jun 18
5 min read

Updated: Jun 20

Author: Sandile Huaraka | Publish date: 18/06/2025

Problem Identification:

In VIC, the prosecution must give consent for a child or young person to enter the Children's Court Youth Diversion scheme.

Section 193(5) of the Youth Justice Act 2024 (VIC) prohibits the Children’s Court (the Court) from referring a child or young person to a youth diversion program ‘if the prosecutor does not consent.’

This means that the prosecution must agree before a child or young person can be referred to diversion. The Law Institute of Victoria has argued that this may undermine judicial discretion. Victoria Legal Aid has also noted this has contributed to inconsistent and discriminatory decision-making.

Context:

The Children’s Court Youth Diversion (CCYD) scheme refers to a legislated program in VIC that allows eligible children, or young people who were under the age of 18 at the time of the offence, to avoid a criminal record by participating in a diversion scheme. These can include activities such as attending counselling, making an apology, or engaging in community work, and aim to address the underlying causes of offending and promote rehabilitation. The scheme aims to divert young people away from the criminal justice system and toward more constructive, community-based pathways.

The CCYD is governed by the Youth Justice Act 2024 (VIC), which enshrines principles of ‘prevention, diversion and minimum intervention’, and affirms the rehabilitation potential of children and young people. A key feature of the CCYD is that it requires prosecutorial consent.

Youth diversion has been known to improve long-term outcomes for participants. According to the Victorian Department of Justice and Community Safety, as of April 2022, the CCYD had ‘overseen more than 6,000 diversions, with a successful completion rate of over 90 per cent’ since its inception in 2017. Further, a 2021-2022 legislative review found that CCYD participants were less likely to be charged with a new offence within 6 months (27%) compared to those who went through an alternative judicial pathway (40%).

A 2022 inquiry into VIC’s criminal justice system noted that prosecutorial consent decisions have been mixed, reflecting that Victoria Police policies and tools may be vague and leave decisions to the discretion of individual officers.

Victoria Legal Aid has argued that the requirement for prosecutorial consent has resulted in ‘inconsistency and discriminatory outcomes for First Nations children and those from culturally diverse backgrounds’. Similarly, the Yoorrook Justice Commission has observed that Aboriginal children are ‘less likely to be referred to a [VIC] diversion program.’

According to the Law Institute of Victoria, prosecutorial consent can lead to Victoria Police adopting a ‘quasi‑judicial position by usurping the role of the court in preventing the magistrate from considering the viability of a diversion’. They have argued that the Court should have final discretion when deciding on youth diversion.

Youthlaw, the Yoorrook Justice Commission, Victoria Legal Aid and others have called for the removal of prosecutorial consent in the CCYD. They have recommended that the Court be required to consider the prosecution’s position before making the final decision on referral to youth diversion.

They have argued that this could reduce inconsistency and subjective bias, strengthen access to diversion, and ensure that the Court can make more transparent decisions, based on the full circumstances of the case.

There is domestic precedent for court-approved youth diversion without requiring prosecutorial consent. In NSW, if a matter proceeds to court without being referred for diversion by police or prosecution already, the court can still direct the child or young person to diversion (youth justice conference) without prosecutorial consent, provided the statutory criteria are met.

Solution Identification:

Amend sections 193(5) and 193(6), and repeal section 195 of the Youth Justice Act 2024 (VIC) to remove prosecutorial consent for diversion and require the Children’s Court to consider the prosecution’s position, with the final decision resting with the Court, subject to other statutory criteria.

This could help to improve access to diversion for eligible children and young people, helping to ensure decisions are made more transparently and in line with the individual circumstances of each case.

Advice:

The VIC Minister for Youth Justice and the VIC Attorney-General should amend sections 193(5) and 193(6) and repeal section 195 of the Youth Justice Act 2024 (VIC) as specified above at the next opportunity.

Public Support:

Where to go to learn more:

CCYP’s submission to the statutory review of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (VIC) - Includes CCYP’s recommendations on youth justice reform, including youth diversion. Read the submission here.
Legal and Social Issues Committee Inquiry into Victoria’s Criminal Justice System - Parliamentary inquiry into VIC’s justice system, proposing reforms in policing, diversion and other areas. Read the report here.
Yoorrook for Justice - Documents systemic issues affecting Aboriginal and Torres Strait Islander children and young people in child protection and criminal justice systems, including lack of access to youth diversion programs. Read the report here.
Children’s Court of Victoria: Youth Diversion Service - Explains VIC’s youth diversion program. Access the website here.
Youth Justice Act 2024 (VIC) - Read the full act here.

Human Perspective:

Elijah was 16 when he took his cousin’s bike without asking. He meant to return it and just needed to clear his head, but a neighbour reported him and he was charged with theft. In the Bendigo Children’s Court, the magistrate saw a scared, remorseful boy who was willing to make amends, and wanted to refer him to youth diversion – a program that could have included mentoring and support. But the prosecutor refused consent. There was no explanation in court, and no opportunity to challenge the decision. To Elijah, it felt like someone who didn’t know him had the power to shape his future without having to explain why. Without diversion, Elijah was placed on a supervision order, had to travel for mandatory programs and missed school. He began getting into more trouble and his second court appearance ended in a conviction. One mistake became a criminal record, not because Elijah lacked potential, but because someone else chose not to see it. 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:

Children’s Court of Victoria. (2021). Youth Diversion Service.Retrieved June 6, 2025 from https://www.childrenscourt.vic.gov.au/criminal-division/youth-diversion-service

Department of Justice and Community Safety. (2022, April). Diversion: keeping young people out of youth justice to lead successful lives.https://files.justice.vic.gov.au/2022-03/Youth-diversion-statement.pdf

Department of Justice and Community Safety. (2022, May). Review of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017.https://files.justice.vic.gov.au/2022-05/Youth%20Justice%20Reform%20Act%20Review%20Report%20%282022%29.pdf

Law Institute of Victoria. (2021, September 10). Inquiry into Victoria’s Criminal Justice System. Legislative Council Legal and Social Issues Committee. https://www.parliament.vic.gov.au/4ae7ce/contentassets/c069a03a936643758395b9e959019251/submission-documents/112.-law-institute-victoria_redacted.pdf

Legislative Council Legal and Social Issues Committee. (2022, March). Inquiry into Victoria’s criminal justice system – Volume 1.https://www.parliament.vic.gov.au/495dd9/contentassets/6961bccea1ac41dd812811ab0312170d/lclsic-59-10-vic-criminal-justice-system.pdf

Victoria Legal Aid. (2024, August 7). A unique opportunity to better support children and young people.Retrieved June 6, 2025 from https://www.legalaid.vic.gov.au/unique-opportunity-better-support-children-and-young-people

Yoorrook Justice Commission. (2023, August). Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems.https://yoorrookforjustice.org.au/wp-content/uploads/2023/08/Yoorrook-for-justice-report.pdf

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

Youthlaw. (2024, July 23). Youthlaw calls for support for the Youth Justice Bill 2024.Retrieved June 6, 2025 from https://youthlaw.asn.au/youthlaw-calls-for-support-for-the-youth-justice-bill-2024/

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