Policing and diversions 2000-present
Diversions are options that police can use to prevent people from entering or continuing in the criminal legal system. Law and policy place some conditions on when diversions can be used. Police also have discretion about whether to use diversions. Research shows that diversions are underused for Aboriginal people, especially for Aboriginal children.
For a range of complex reasons, including the role of police discretion (see SUB0421), the criminalisation of social disadvantage, the ongoing impact of colonisation and intergenerational trauma, Aboriginal people are over-represented in the criminal legal system (, ).
Diversion has been identified as a way to reduce this over-representation and was the focus of several recommendations in the Royal Commission into Aboriginal Deaths in Custody (, ).
Diversions are processes that prevent people from entering or continuing in the criminal legal system (). This can include issuing a warning or caution instead of charging a person. Research has shown that people who are diverted are less likely to reoffend (, ).
It has been recognised that police are less likely to use diversionary options for Aboriginal people, especially youth and women, who are more likely to be charged compared to non-Indigenous people (, , , , , )
Diversion of minor offences
For some minor offences, police can choose to issue a warning or a caution to a person.
This means a person is not charged with the offence and does not have a penalty for that offence. However, a caution is formally recorded by police and can impact whether a person is eligible for certain diversions in future.
In 2002, penalty notices were introduced for minor offences such as offensive conduct, language, and shoplifting (). These notices are commonly referred to as Criminal Infringement Notices (CINs) and require a person to pay a fine.
Police can issue CINs to people on the spot. This means a person is not charged with an offence, does not have to go to court, and will not have a conviction recorded. The government said the purpose of CINs was to reduce reoffending for first-time offenders, and to improve efficiency for police, prosecutors and the courts ().
Reviews of the CIN system have expressed concern that they have a ‘net-widening’ effect, especially for Aboriginal people (, , , ). That is, police are choosing to give a person a CIN when previously they would have given a caution or not taken any action.
In 2005 the NSW Ombudsman observed that ‘almost two-thirds of the offensive language CINs … were in circumstances where the recipient may have had a sufficient defence if the matter was heard in court’ () and that CINs had led to a net increase in legal action being taken on offensive language and offensive conduct (). The NSW Law Reform Commission made a similar finding in a 2012 review ().
Aboriginal people have historically been over-represented in legal action for offensive language and offensive conduct, including in the use of CINs (, see also SUB0552).
There is very little oversight of when police use CINs. The police’s Standard Operating Procedures explain the CIN process but do not provide guidance on whether the use of a CIN is appropriate (). While people are allowed to challenge a CIN in court, this rarely occurs in practice (, ).
CINs can have long-term detrimental effects due to the impact of fines debt, which can lead to financial hardship, driving licence disqualification and secondary offending (, , , , ).
Diversion of drug offences
The New South Wales Cannabis Cautioning Scheme was introduced in 2000 to allow police to give cautions instead of charging for minor cannabis offences (, ).
When the scheme was introduced, a person was not eligible if they had a prior conviction of a low-level or serious drug offence or a sexual or violent offence (, ). In 2024, the eligibility criteria were changed so that a person was only ineligible if they had a prior conviction of certain serious drug offences ().
In 2024 the government introduced the Early Drug Diversion Initiative for people found in possession of small quantities of prohibited drugs (other than cannabis), drug-use equipment, or self-administration offences (, ). People issued with a fine under this scheme can choose to pay the fine or attend a medical appointment (, , ).
People are not eligible for this scheme if they have already received two CINs for any offence covered by the scheme or have a prior conviction for certain serious drug offences ().
The use of these schemes by police is discretionary. Police can still choose to charge a person, rather than issue a caution or CIN, although the Guidelines and Standard Operating Procedures for each scheme encourage the use of the diversionary option where available (, ).
Reviews of these schemes suggest that their implementation has been uneven, and that Aboriginal people are more likely to be charged than to be issued cautions (for cannabis offences) or CINs (for other drug offences) (, , , ).
This is partially due to the strict eligibility criteria for each scheme, but may also be due to the use of police discretion (, , , ).
Diversion of Young offenders
There have also been efforts to divert young people away from the criminal legal system. The Young Offenders Act 1997 (NSW) was introduced to regulate discretion by establishing a framework of warnings, cautions, and youth justice conferences for minor offences. The Act includes a list of ‘principles’ for people making decisions under the law, including that ‘the least restrictive form of sanction is to be applied’ ().
One of the objects of the law is to ‘to address the over representation of Aboriginal and Torres Strait Islander children in the criminal justice system through the use of youth justice conferences, cautions and warnings’ ().
Since the law began, diversion for Aboriginal youth has improved, especially first-time offenders. Data shows a 50% reduction in court proceedings for this group ().
However, research shows that Aboriginal youth are still less likely to be cautioned and more likely to be taken to court (, , ).
A 2010 strategic review of the NSW Youth Justice System also found that many local police underutilised youth conferencing, with 28 of 77 Local Area Commands referring only 1-5 children over two years. The review concluded that outcomes often depended on the attitudes and leadership of individual police commanders ().
The NSW/ACT Aboriginal Legal Service recommends that diversion for youth needs to be mandated, rather than being left to police discretion ().
The law and policy in this subject is accurate as of 15 May 2026.