|
Best Practice in the Diversion of Alcohol and other Drug Offenders Proceedings of the ADCA Diversion Forum Produced by: The Alcohol and other Drugs Council of Australia Canberra |
|
Best Practice in the Diversion of Alcohol and other Drug Offenders Proceedings of the ADCA Diversion Forum Produced by: The Alcohol and other Drugs Council of Australia Canberra |
Strengths and
Weaknesses of Current Approaches to Diversion
What is Good
Diversion Practice?
The Ideal Pre-court
Diversion Program
Ideal Court
Diversion and Alternative Sentencing Options
Barriers to Good
Diversion Practice
EXECUTIVE SUMMARY
In October 1996, 50 representatives from Police Services, Health and Attorney Generals’ Departments in each state and territory joined the staff of drug diversion programs, consumers and representatives of the ADCA Law and Law Enforcement Reference Group to explore best practice in the diversion of drug offenders. The two day Forum saw this broad group examine current practice in diversion, develop ideal models of diversion, identify barriers to the implementation of good diversion practice, and develop action plans for better diversion practice. Participants worked in small groups which reported to the main Forum.
The Forum was part of the two year ADCA Diversion Study which has involved a literature review, a survey of 200 practitioners in the field of diversion, key informant interviews, and six case studies documenting current diversion practice. The final report of the ADCA study, due in early 1997, will make a number of recommendations based on the research findings and the key principles outlined below.
The following list of key issues condenses two days of exploration into a number of informing principles. These principles may be used as a guide to the development of best practice in the diversion of drug offenders.
Principles for Best Practice in Diversion
- police
- offenders/clients
- correctional services
- juvenile justice workers
- treatment services
- magistrates and judges
- court workers
- There should be clear communication between the various stakeholders involved in the delivery of the program. In more formal programs this will be manifest in procedures documents, regularly reviewed, outlining the roles and functions of each of the participants.
- Both formal and informal diversion practice should be documented clearly, providing guidelines for all workers involved in the various processes but also providing a flexible framework within which police and others can operate confidently.
- Processes and guidelines should be outlined in such a way that good diversion practice is recognised as a legitimate part of the work of police, court workers and others for whom diversion may not generally be considered a part of ‘core business’.
- Good diversion practice will not compromise the rights an offender would enjoy during the normal course of the criminal justice process, in particular, rights to procedural fairness, the right to appeal and protection from self incrimination.
As a general principle, the
imposition of a diversion option should be no more onerous than the penalty that might
have reasonably been expected had the criminal justice system run its normal course.
Offenders should be offered the
choice of participating in diversion programs or allowing the criminal justice system to
run its normal course.
Those involved in all stages of
direct client contact should be in a position to outline the various diversion options
that might be available.
Where possible, and with due
consideration for issues of privacy, databases held in different jurisdictions could be
compiled in such a way as to allow comparisons across state and territory borders.
The ADCA Diversion Forum marked the culmination of ADCA’s efforts to focus discussion on the diversion of offenders affected by alcohol and/or other drugs. In 1994 the National Drug Crime Prevention Fund funded ADCA to examine the diversion of drug offenders. As a part of that study ADCA has:
The aim of the ADCA Diversion Forum was to develop a set of guidelines for ‘best practice’ in diversion. To achieve this ADCA brought together many of the practitioners who had participated in the study to date. Along with these program staff, ADCA invited others involved in diversion including magistrates, lawyers and other court workers, representatives from drug treatment agencies and user groups. In order to foster the process of program and policy development, ADCA also invited representatives from Health Departments and Attorney Generals’ Departments or their equivalents from each state and territory. A selection of Commonwealth representatives were also invited. A list of the 50 participants who attended the Forum is included with this report.
After brief presentations from program staff, participants spent most of the two-day Forum considering the strengths and weaknesses of current approaches to diversion, what ideal programs might look like and strategies to achieve better practice in the future. Their deliberations make up the bulk of this report.
ADCA anticipates that the outcome of the Forum will be twofold. Firstly, it is hoped that this document, and the final report on the ADCA Diversion Study to follow, will encourage further debate on the issues which arise in relation to diversion. Secondly, and more importantly, it is ADCA’s hope that by bringing together key stakeholders from each state and territory, the ADCA Diversion Forum will have helped to foster networks in each jurisdiction that will continue to work for the development of better diversion programs long into the future. The action plans for each state and territory indicate participants are motivated to foster change.
Throughout this report the term "drug" is used to embrace licit drugs, such as alcohol and prescription medications, and illicit drugs, unless otherwise specified in the text.
8.30 am Welcome - Professor Ian Webster AO, ADCA President
8.40 am Opening - Dr Michael Wooldridge, Minister for Health and Family Services
9.00 am Current Diversion Practice In Australia
Speakers will outline a range of programs which currently divert drug offenders. Time will be allocated to allow questioning of various practitioners from these programs.
ADCA Diversion Study
West Australian Court Diversion Service
South Australian Drug Assessment and Aid Panel
10.45 - 11.00 am Morning Tea
ACT Drugs Of Dependence Act
Victorian Section 28 orders
Northern Territory Sobering Up Shelter
Police Cautioning
1.00 pm Lunch
2.00 pm Evaluating Current Practice
Participants will break into small groups to discuss the strengths and weaknesses of various approaches to diversion. After approximately 1 hour, groups will report back to the Forum on the strengths and weaknesses of various approaches.
3.45 pm Afternoon Tea
4.00 pm What Is Good Diversion Practice?
The Forum will break into small groups to discuss and develop initial descriptions of good diversion practice. The Forum will reconvene after approximately 1 hour, and each group will report on its discussions.
5.30 pm End Of Day 1
Friday 11th October 1996
8.30 am Review Day 1 And Discussion Of Day 2 Objectives
9.15 am Barriers To Good Diversion Practice
Small groups will spend time discussing the barriers to the implementation of good diversion practice. After approximately 1 hour, each group will report to the Forum on their discussions.
10.45 am Morning Tea
11.00 am Facing The Barriers
Groups will develop strategies to overcome the barriers outlined in the earlier session. After approximately 1 hour, each group will report to the Forum on its discussions.
1.00 pm Lunch
2.00 pm Planning For Diversion
The Forum will reconvene to discuss the development of practical strategies to facilitate the implementation of diversion programs in each jurisdiction. The Forum will then break into small groups to discuss specific strategies to promote good diversion practice.
3.30 pm Afternoon tea
4.00 pm Where To From Here?
The Forum will reconvene and small groups report on the strategies developed for each state and territory and to discuss future action. Evaluation and follow-up for the Forum will be discussed.
5.00 pm Forum Ends
ADCA was delighted that the Federal Minister for Health and Family Services, Dr Michael Wooldridge MP, was able to open the ADCA Diversion Forum. The Minister’s address provided an encouragement to those working in the field. Dr Wooldridge indicated that his government is committed to continuing the National Drug Strategy (NDS) in some form after the current evaluation is completed. He also indicated that the State Health Ministers had recently given the NDS unanimous endorsement.
Thank you to Professor Ian Webster and to those associated with organising and supporting this Forum.
I must say that when I found out I was invited to a "Diversion Forum" I wasn't quite sure what to expect. When I think of diversion I think of distractions.
Of course, when we are talking about diversion programmes in relation to drugs, we are talking about programmes that provide an alternative to people who have committed drug related offences. These alternatives vary considerably across Australia, but most involve acknowledging the health and life-style aspects of drug use, and provide treatment and rehabilitation options in addition to custodial sentences in correctional institutions.
The purpose of this Forum is to develop best practice models of diversion.
Within this room are a broad range of people who all have direct experience of diversion practice - police, magistrates, court workers, health workers, consumers and policy officers. There are people from government and non-government organisations, from user groups, treatment agencies, magistrates' courts and from every state and territory in Australia.
Your work over the next two days may have a very significant impact on reducing the level of drug related harm in Australia. As most of you are only too aware, drugs and crime are very often closely associated.
I would like today to highlight the Commonwealth's commitment to the National Drug Strategy. There has been speculation about the support given to this valuable programme by the Commonwealth. Whilst we are always looking to improve what work we are doing in the area, there is no doubt for me of the important role the National Drug Strategy has played, and will continue to play in our ability to deal with drug issues in our community.
The Commonwealth has increased funding to the states and territories this year for the Strategy and I will campaign to ensure that future funding is maintained at current levels.
Whilst there needs to be more research in this area, there can be no doubt that a substantial percentage of all prisoners have either committed crimes while under the influence of drugs, or are in prison on a specific drug related offence.
We are all aware of the devastating harm associated with drug misuse in the Australian community. The harm arises in many different ways - through violence and crime, family and social disruption, as well as loss of productivity in the workplace.
A study commissioned by the National Drug Strategy estimated that drugs cost the community a staggering $18.9 billion annually. Within this figure, the misuse of alcohol is estimated to cost the community in excess of $4.5 billion each year, and costs Australian industry more than one billion dollars through absenteeism and lost production. The use of tobacco costs the Australian community $12.7 billion and the misuse of illicit drugs costs us $1.7 billion each year. In anyone's language, these are big problems and drug related crime is a large part of the problem.
An important role for you as participants in this Forum is to explore alternative options for people convicted of drug related crimes, not only in the interests of those offenders experiencing drug problems, but also in the interests of the whole community. ADCA is to be congratulated for organising this Forum, which is an important part of work under the National Drug Strategy to address diversion issues and to improve the range of diversion strategies.
Another related initiative is the "Reintegrative Shaming, Drugs and Crime project", which is being conducted by Professor John Braithwaite at the Australian National University.
The project is comparing the effectiveness of normal court processing of offenders with a method whereby offenders are brought face to face with their victims. The project has so far shown promise and we await the final outcomes with interest.
An aspect of this Forum today that is particularly interesting to me is the degree to which diversion practice represents an example of a public health programme extending beyond the traditional health model.
As someone with a genuine commitment to reducing health problems in Australia, it is pleasing to see law and law enforcement professionals working with health workers to develop strategies that will reduce drug related harm and promote health.
I wonder how many other countries in the world can claim to have the mix of professionals represented in this room all working together to achieve shared goals?
One of the great successes of the Government's National Drug Strategy has been the links forged between the health and law enforcement sectors. Through the Ministerial Council on Drug Strategy the Commonwealth has developed a partnership with State and Territory Police and Health Ministers and the Federal Attorney General to ensure that what we do in the health area can be implemented with unilateral support. As you would well know - whatever health outcomes targeted and harm minimisation strategy endorsed, we will only succeed with a conciliatory approach to community groups and law enforcement agencies. After all, they will be the bodies that will largely determine the success of what is decided.
Australia is undoubtedly a world leader in developing innovative and practical solutions to drug problems. It is my intention that we continue to be a leader in this field.
The National Drug Strategy has been successful in forging strong links between the levels of government, industry groups and the non-government sector. As you would be aware, the National Drag Strategy is about to undergo a major independent evaluation.
The Federal Government has appointed two distinguished professors as independent evaluators to report and recommend on the Strategy. They are Professor Eric Single, Professor of Preventive Medicine and Biostatistics and Professor of Sociology at the University of Toronto; and, Professor Timothy Rohl, Director of the Australian Graduate School of Police Management at Charles Sturt University.
The evaluation will look at the appropriateness of the goals and activities of the NDS; the extent to which the NDS has met its goals; the conceptual basis of the NDS, especially the philosophy of harm minimisation; the appropriateness of the processes, mechanisms and structure of the NDS, with particular emphasis on the health/law enforcement partnership; and Australia's capacity to measure the impact of the drug harm minimisation policy.
The evaluation report is expected to be completed by March next year when it will be considered by the Ministerial Council on Drug Strategy.
Before I officially open the Forum I would like to acknowledge the work of the Alcohol and other Drugs Council of Australia which organised this Forum, and the National Drug Crime Prevention Fund which supported the Diversion Project over a period of two years and provided almost $57,000 in funding.
I wish the conference every success and hope your deliberations produce some meaningful and practical outcomes that will help reduce the level of drug related harm in Australia.
I will certainly be very interested in your recommendations. I now take great pleasure in officially opening the ADCA Diversion Forum.
The Hon. Dr Michael Wooldridge MP
Minister for Health and Family Services
Prior to the ADCA Diversion Forum, ADCA visited six diversion programs to gather information about the kinds of issues that they face. The issues raised in these six case studies were documented in some detail in a previous report, Case Studies in the Diversion of Alcohol and other Drug Offenders, available from ADCA.
Practitioners from each of the programs were asked to present to the Forum issues arising from their own programs. These presentations set the agenda for the discussion that ensued over the next two days. It was important to the Forum that efforts were focussed on practical issues facing program staff. A more detailed examination of these and other diversion programs will be included in the final report of the ADCA Diversion Study, early in 1997.
Sobering Up Shelter - DASA, Alice Springs
Sobering up shelters have operated in the Northern Territory since 1983. The aim of the shelters is to provide a safe place for drunk people to sober up as an alternative to the police cells.
The program in the Northern Territory has built on the experiences of New South Wales where some difficulties had been encountered. McDonald highlighted the major problems which the Northern Territory program sought to avoid; self referrals are not allowed, intoxication is a prerequisite for entry, and the program has no medical or counselling component.
The program itself is quite straightforward. At intake, personal details are collected for the shelter’s ongoing records. Personal property is collected and bagged for later collection and all clothing is taken and washed and dried. This procedure also ensures (albeit discreetly) that weapons and alcohol are not taken into the shelter. Clients are then showered, dressed in pyjamas and given a drink of cordial to aid re-hydration. Clients then go to bed where they are constantly monitored by shelter staff. Upon waking, clients are dressed, provided with a substantial breakfast, returned their personal property and sent on their way.
Relevant Legislative Provisions
Public drunkenness is decriminalised in the Northern Territory - it is not an offence to be drunk in a public place. Legislation allows, however, that police may take a drunk person into protective custody. It is this group who are the main target group for the sobering up shelter. In this sense the program does not provide an alternative to prosecution - those apprehended would not face prosecution in any case. The program does operate as a direct alternative for drunk people, and in Alice Springs the vast majority are Aboriginal people, who would otherwise be detained in the police cells.
William Booth Institute - Salvation Army, Sydney
The William Booth Institute is a full-time residential treatment program which incorporates a medically supervised detoxification facility and a therapeutic community. The program is linked to the Court Chaplaincy Service which provides a court based referral service dealing with a wide range of issues facing offenders and victims attending the courts. Both the programs are operated by the Salvation Army.
Police do not refer directly to this program very often. It is far more common for offenders to find their way into the program after they have been charged with offences. The rehabilitation program is frequently undertaken prior to sentencing or as part of a non-custodial sentence imposed by the courts. The Court Chaplaincy Service provides a link between those attending the courts, as offenders or as victims, and the services provided by the William Booth Institute, although this is by no means the only link.
Relevant Legislative Provisions
There is no legislation dealing specifically with this program. While on bail, offenders frequently seek out assistance for drug problems that have not been successfully addressed in the past. Being charged with an offence and appearing before the courts precipitates action on the part of the offender for two main reasons:
The William Booth Institute is not unlike many drug treatment agencies in all Australian States and Territories. Offenders before the courts, or soon to be before the courts, are taken into various treatment programs. The processes by which offenders are referred to these programs are generally ad hoc, dependent on the personal relationships between the workers involved rather than on formal processes. Agencies are generally expected to fund the treatment and rehabilitation of offenders without receiving any additional resources from within the legal system.
Drug Assessment and Aid Panels - South Australia
The South Australian Drug Assessment and Aid Panels (DAAP) consist of one legal practitioner and two members with extensive knowledge of "the physical, psychological and social problems connected with the misuse of drugs" or "the treatment of persons experiencing such problems". Panel members are appointed for a three year renewable term. The DAAP is supported by an administrative officer and a social worker.
The Panels deal with a wide diversity of clients who are individually assessed by the Panel before making a six month (or less) undertaking to cooperate with the Panel and to follow all reasonable directions. The exact nature of involvement varies considerably from client to client. As an evaluation by Gray et al. describes:
"The Act permits undertakings to cover a broad range of issues, from specific treatment programmes for the illicit drug use that brought the client to the Panel, to a range of broader programmes, including those that may be associated with the client's drug use but not necessarily a direct product of it. (Section 37). This breadth is important: the Panel's clients often come from a background of considerable psycho-social adversity, and issues such as unemployment, domestic violence and substance abuse have often been significant and destructive influences in clients' lives."
Relevant Legislative Provisions
(a) knowingly have in his possession a drug of dependence or a prohibited substance;
Drugs of Dependence Act - Australian Capital Territory
In matters where an offender comes before the Australian Capital Territory's courts and the offending behaviour is related to dependence on an illicit substance, the magistrate may order that the offender be referred for assessment and possibly treatment managed by a panel of experts in the field.
Once a finding has been made by the courts against an offender, the issue of drug use may be considered. A magistrate may order that the offender be referred for an assessment, in which case the offender makes contact with the Drugs of Dependence (DODA) panel. An intake worker takes a full history of the offender's drug use and related matters and the case then comes before the DODA panel, comprised of a legal representative and two drug treatment experts. After assessment, recommendations may be made for treatment and the offender is required to make contact with the appropriate agencies (which have been recommended by the DODA Panel). Once contact has been made, a treatment strategy is developed and approved by the court. Progress through treatment is then reviewed by the DODA panel and by the court, which may deal with breaches of undertakings and non-attendance at treatment.
Relevant Legislative Provisions
The ACT Panels are enabled by the Drugs of Dependence Act. This Act targets drug offenders (drugs other than alcohol) rather than targeting a particular category of drug related offences, as is the case with the South Australian Drug Assessment and Aid Panels.
Court Diversion Service - West Australia
The Western Australian Court Diversion Service (CDS) has been in operation since 1988. The coordinator of the service, Mr Lynton Piggot, once described the development of the Western Australian Court Diversion Service as,
"...a process which attempted to formalise an informal practice whereby offenders self referred themselves to drug agencies whilst on bail, and then asked the agencies to report to the courts at sentencing time (or not to report if the treatment had not gone well)".
The program provides an assessment, testing and referral service to those alleged offenders who admit to the use of illicit substances other than cannabis.
The CDS assesses defendants while they are on remand or bail, and makes a recommendation to the court regarding the suitability of the individual to participate in the program. The defendant is then placed on bail with a condition that they obey the legal directions of the CDS. This condition provides a possible trigger for the matter to be brought back to court if compliance becomes a problem. Following assessment, the defendant is given a range of treatment options to chose from, and their progress through treatment is monitored closely by the CDS officer, including thrice weekly urinalysis, and is reported to the courts. CDS treatment workers are placed half time with the CDS and half time with non-government treatment organisations.
Relevant Legislative Provisions
The program is not supported by specific legislation other than the Bail Act. It is funded jointly by the Alcohol and Drug Service of the Health Department and the Department of Corrections.
Section 28 Orders - Victoria
In Victoria, magistrates and judges have the option of making a specific order, in this case a Section 28 order, when an offender is found guilty of an offence and there is some evidence that drugs may be considered to be partly responsible for the offending behaviour. A Section 28 order requires that the offender undergo compulsory treatment for their drug problem. In the spirit of the Act, it is intended that a Section 28 order is the most serious disposition preceding a prison sentence. The program operates in a similar manner to the WA Court Diversion Service in so far as assessment and administration is conducted through a government service but ongoing treatment is provided through a range of funded services.
Relevant Legislative Provisions
The Section 28 system is specifically intended as a means of providing offenders with appropriate treatment.
Note
Victoria, and some other states, have specific legislation to deal with drug offenders whereas the WA Court Diversion Service relies solely on the Bail Act. It is important to note here that both the Victorian Section 28 legislation, and elements of the West Australian Sentencing Act, are currently under review and this will have potential impact on the manner in which both programs are operating.
Strengths and Weaknesses of Current Approaches to Diversion
During this session participants were asked to assess the strengths and weaknesses of current approaches to diversion practice. Participants broke into small groups on the basis of their involvement or interest in pre-court diversion programs on the one hand, and court based diversion programs on the other. Participants were not asked to assess particular programs but rather to consider the strengths and weaknesses of formal approaches to diversion practice and of informal approaches to diversion practice. There was remarkable similarity in the feedback received from all the four groups, with considerable congruence of views.
For the purposes of this discussion, informal programs included diversion practices undertaken at various stages of the criminal justice process that are not part of a specific purpose program. Informal diversion includes informal police cautioning and referral. Formal diversion programs on the other hand are more clearly identifiable programs which aim to divert drug offenders. Formal programs include the SA Drug Assessment and Aid Panels and the Section 28 program.
One of the difficulties Forum participants encountered during this part of the program was balancing the benefits gained by certain approaches to diversion against the negative impacts of those same approaches. The most obvious example lies in assessing the informal nature of many of the current approaches to diversion practice. Informality can give rise to greater flexibility in processes and in outcomes focussed on the needs of particular offenders rather than on the provision of a generic service. However, informality can also leave open the possibility of unequal outcomes for different offenders in similar circumstances. Should ‘informality’ be listed as a strength, or a weakness, or both?
The main thrust of the group discussions are incorporated in the following sections. Notwithstanding the overlap between strengths and weaknesses, they have been listed separately.
Perhaps the greatest strength of diversion programs is that they offer hope to offenders rather than offering eventual imprisonment as the inevitable consequence of drug offences. It should be remembered that outcomes for the community will only be realised with successful outcomes for offenders.
The position of drug offenders highlights the tension that exists between law and health sectors, between punishment and rehabilitation. Programs that manage this tension, satisfying both the requirements of the law and the requirements of appropriate drug interventions, were seen as providing the most valuable contribution. The legal system requires the assistance of health professionals in order to ensure appropriate interventions in the lives of offenders. Similarly, health professionals need those in the legal system to manage the requirements of legal supervision. The separation of the legal supervision and treatment intervention, with cooperation between the two sides, makes both goals more achievable.
Diversion programs provide the opportunity for different outcomes for similar offences. This allows genuine "client matching" - the provision of appropriate services based on the apparent needs of the offender rather than upon the "needs" of the legal system or the service provider. Diversion programs frequently allow for a diverse range of professionals to have input into a particular case rather than thrust all the responsibility for case management and planning onto an individual worker.
Legislation that is carefully framed, with regard for those who will be providing services, can provide a backbone to otherwise informal practices. Another benefit of carefully framed legislation is that it can create certain standards or minimum requirements for programs.
The main benefit of formal diversion programs is that clearer guidelines and procedures exist for the way in which cases should be managed. There was a perception among Forum participants that these guidelines and procedures help to protect diversion programs and their staff against allegations of mismanagement or even corruption in matters where those on the front-line are frequently called upon to exercise their discretion. This is illustrated by the example of a police officer who uses her discretion and issues an informal warning to a drunk offender, along with some advice regarding assistance that might be available locally, rather than charge them with an offence. In most cases this action will be applauded as a sensible alternative to the costly processes of the law. But who protects the officer from criticism if the offender moves on to commit a more serious offence later in the evening? Some kind of formal processes, even the documentation of "informal warnings" were seen to offer protection for those involved.
A further benefit of formal programs was their "higher status" before the courts. One of the more beneficial services offered by those currently involved in diversion programs is clear and comprehensive reporting to magistrates and judges. Formal diversion programs, with identifiable structures and processes are better positioned to offer such advice to the courts, thereby shaping possible outcomes for offenders.
Formal diversion programs are also more clearly identifiable for the purposes of funding. Alcohol and other drug agencies are less and less able to allocate resources from their core funding to provide informal assistance and advice to other agencies. Funding is increasingly likely to be allocated on the basis of defined services and predetermined outcomes. If diversion programs cannot be separately identified as a service with measurable outcomes, then funding will be increasingly difficult to find. Many drug agencies have placed limits on the work they do with offenders because this work draws resources away from the tasks that they are being funded to perform.
Strengths of Informal Programs
Informal diversion programs were seen to be potentially more innovative and responsive than formal programs. The informal nature of these programs allows for variations in the processes for referral, assessment, intervention, follow-up.
Informal programs are generally seen to be more dependent on cooperative relationships between the various workers who might be involved. Informal programs rely on negotiated processes and outcomes and these negotiations can even involve the offender.
Because informal programs frequently rely more on cooperation between workers within existing structures, they can also be more cost-effective. Informal programs do not have layers of bureaucracy and costly processes and procedures in place. As such, outcomes that are achieved for offenders are achieved within the resources of existing programs.
Informal diversion programs have the obvious benefit of reducing demand on formal programs where they exist. Having some offenders dealt with informally frees resources within existing formal programs.
Some participants identified the potential of "diversion like" programs to intervene early in the lives of potential or likely offenders. In this case diversion programs operate more as prevention programs. Through the provision of health, education and employment services early in the life of the "at risk" young person, later offending behaviour may be prevented entirely.
A weakness in the discussion of current diversion practice, rather than in current diversion practice itself, is that inconsistent use of terminology makes discussion of various approaches difficult. One of the potential benefits of the current ADCA diversion project, and even of the Diversion Forum itself, is that it may contribute to a more common understanding of language and terminology, thus facilitating discussion of various approaches.
A further weakness in the area of drug diversion is that there is little if any agreement between the major stakeholders in the field as to what constitutes a satisfactory outcome for diversion programs. Are we aiming for reduced offending, reduced drug use, improved offender health, safer drug use among offenders, higher rates of completion of court orders, outcomes achieved at lower cost, or some combination of all these elements? As different stakeholders will likely have different outcomes in mind, discussion between the various players was considered essential.
Current approaches to diversion are seen to be relatively ad hoc. No Australian state has yet implemented a comprehensive suite of diversion programs, addressing drug offences at all stages of the criminal justice system process. This has meant that the particular programs are asked to achieve more than they should be reasonably expected to achieve on their own.
There was a fairly clear perception among those providing services that abstinence models still seem to be supported more enthusiastically than programs based on broader harm reduction or moderation principles. This bias limits the potential outcomes that might otherwise be achieved for offenders.
A recurring theme was the difficulty caused by arbitrary distinctions between drugs. For example, some diversion legislation excludes alcohol offences, some exclude other dug use. Offenders using a wide range of licit and illicit substances frequently experience similar difficulties. The legislative distinctions between various substances are often arbitrary and based more on the need to limit the resources available to a programs than on the needs of offenders for services.
For both formal and informal diversion programs there is a danger interventions may become more onerous than the normal course of the criminal justice system. In matters where an offender might reasonably expect to receive a small fine without conviction before a magistrate, diversion programs should not impose onerous reporting and drug testing requirements over prolonged periods. One implication of this is the need to further develop a range of interventions scaled from the very brief through to more intensive and longer term options including residential treatment.
A weakness recognised across all forms of current diversion practice is a lack of knowledge about the range of options available. This lack of knowledge leads to inappropriate referral to programs from magistrates, police and others. Offenders in similar circumstances may also find themselves referred to entirely different programs depending on the personal knowledge of the individual making the referral rather than on either their individual need or on the range of services available. This lack of knowledge is linked to a lack of resources for specific training among police, magistrates, judges and others in a position to refer to programs.
Access to programs in rural and remote areas was recognised as a problem across all diversion programs, although this was particularly problematic in formal programs with centralised administration at a state level and a heavy dependence on treatment services offered by local agencies. Many rural and remote areas simply do not have services available to support such programs.
Funding support for current programs has been very limited. This lack of funding manifests itself in at least two ways. Firstly, programs can only be implemented on a limited basis with fairly arbitrary restrictions on entry to the program applied through age restrictions, restrictions on particular drugs and so on. This limited implementation means programs are not in a position to "market" themselves effectively to potential sources of referral. Limited funding also means that the limited number of offenders who are accepted into programs are likely to be those with the highest level of need. This limits the outcomes that can be demonstrated from the program. Secondly, given limited funding, programs frequently place all their efforts and resources into meeting the overwhelming need confronting them and evaluation activities are severely limited.
Formal diversion programs frequently involve the establishment of some kind of agency that is in a position to assess clients involved in the criminal justice system and refer them on to treatment agencies and others in a position to provide interventions. Increasingly, formal diversion programs find it more difficult to identify agencies that are in a position to offer the services required. As diversion programs are frequently established separate from drug treatment services, this disparity between the services required and the services provided, seem likely to continue.
The concept of "net widening" also received some attention. Net widening involves offenders and others who would not normally come to the attention of the courts being referred to programs established to provide interventions for offenders. Police and others see the potential benefits of the diversion program and are more inclined to refer to the program than they are to charging offenders. In this way the "net" cast by the system as a whole is widened and the system ends up dealing with higher numbers than before the diversion program was available.
Weaknesses of Informal Programs
Quality assurance and program monitoring is difficult in the absence of clear policies and procedures. While informal programs offer some the capacity to act swiftly and imaginatively to resolve drug problems, these actions are difficult to evaluate. The capacity to evaluate action, through clear procedures and the documentation of actions taken in various circumstances, may come at the cost of the informality and "spontaneity" of the interventions that are possible.
One of the most important weaknesses of informal diversion programs is that there are no processes for review of decisions and no capacity for offenders to "appeal" against the decisions that might be made. Offenders are frequently in quite a vulnerable position relative to others involved in the criminal justice process. While often offering offenders many benefits, there is also the potential that diversion practices may seriously compromise the rights of offenders and the review of these situation is fraught with difficulty.
Of course, offenders are not the only ones who are offered some protection by clearly defined processes and procedure. Police, and others who are called upon routinely to exercise their discretion in sensitive matters, often feel that some degree of formality in diversion practice offers them some protection against accusations of negligence or corruption. Accountability and discretion can be viewed as being at opposite ends of the same scale. Participants felt that some kind of balance was required which allowed trained professionals to exercise their discretion while remaining accountable.
What is Good Diversion Practice?
Having examined the ADCA document Case Studies in the Diversion of Alcohol and other Drug Offenders, having heard from those involved in current diversion practice, and having considered the various strengths and weaknesses of these approaches, this session asked participants to consider what ‘ideal’ diversion programs and practice might look like. Once again, participants broke into small groups and then reported to the main Forum. The findings reported to the main group were then collated and used to develop an "ideal" pre-court diversion program, an "ideal" court based diversion program, and subsequently a set of principles for best practice in diversion.
It is important to note that participants were asked to consider the general principles that might underpin good diversion practice, rather than develop specific models which could then be applied across all jurisdictions. Specific programs undertaken in one jurisdiction may be entirely inappropriate and unsuitable in another jurisdiction. Programs operate within complex legal and social environments that vary greatly from one jurisdiction to another. For this reasons the factors that might be considered to contribute to good diversion practice are expressed in general terms which can be applied across jurisdictions.
Principles for Best Practice in Diversion
The principle of harm reduction
underpins good diversion practice. It is therefore imperative that those professionals
involved in delivering diversion programs, the politicians asked to fund the programs, and
the public who are asked to support the programs have a sound understanding of the
principles and implications of a harm reduction philosophy.
Diversion should be seen as
initiating the process of social change, rather than simply treating ‘drug
problems’. Good diversion practice will recognise the interplay of various social
issues eg. employment, finance, health, legal etc. and will engage, where appropriate, a
whole range of support services to address these issues.
A broad range of options should be
available for diversion, allowing different levels of intervention according to the need
of the offender and the seriousness of the offences that have brought them to the
attention of the police and the courts.
Where possible, state legislation
should be consistent with, or at least not contradictory to, the legislation of other
states.
The complex nature of both the
criminal justice system and of drug problems indicate that good diversion practice will
involve the following groups at appropriate stages of planning, implementation and review;
Good diversion practice will be
characterised by clear communication between the various stakeholders involved in the
delivery of the program. In more formal programs this will be manifest in procedures
documents outlining the roles and functions of each of the participants which are
regularly reviewed.
Both formal and informal diversion
practice should be documented clearly, providing guidelines for all workers involved in
the various processes and providing a flexible framework within which police and others
can operate confidently
Processes and guidelines should be
outlined in such a way that good diversion practice is recognised as a legitimate part of
the work of police, court workers and others for whom diversion may not generally be
considered a part of ‘core business’.
Good diversion practice will not
compromise the rights an offender would enjoy during the normal course of the criminal
justice process, in particular, rights to procedural fairness, the right to appeal and
protection from self incrimination.
As a general principle, the
imposition of a diversion option should be no more onerous than the penalty that might
have reasonably been expected had the criminal justice system run its normal course.
While particular diversion programs
should be carefully targeted, good diversion planning will ensure that a range of well
targeted programs are available to offenders regardless of their age, preferred substance,
gender, cultural background, geographic location and economic status.
Good Diversion programs will ensure
that appropriate follow-up services are made available to offenders once their legal
obligations have been fulfilled. This requirement will be greater where the diversion has
involved intensive or long-term intervention.
Diversion programs should provide
specific training to all those expected to deliver various aspects of the program. This
may include, for instance, police, magistrates and judges, court workers, and those
providing treatment and other services. Training should address the principles underlying
the approach (for instance harm reduction) but should also make clear the specific tasks
and functions each key stakeholder is expected to perform.
Those involved in all stages of
direct client contact should be in a position to outline the various diversion options
that might be available.
Good diversion programs will be
funded on a three year basis with clear procedures for review. Funding allocations will
include a specific allocation for data collection and evaluation activities, consistent
with the specified aims of the program.
Good diversion programs will be
evaluated according to agreed outcome measures. Such evaluation will collect quantitative
data, demonstrating throughput and output measures along with qualitative data which might
demonstrate the impact of the program on the lives of the offenders who participate.
Where possible, and with due
consideration for issues of privacy, databases held in different jurisdictions could be
compiled in such a way as to allow comparisons across state and territory borders.
The Ideal Pre-court Diversion Program
This brief outline has been developed as a combination of key factors considered desirable in an ideal model of pre-court diversion.
There are guidelines to clearly
define the process, options and specific procedures emphasising the earliest possible
diversion intervention.
Where possible, any required
enabling legislation is consistent, or at least ‘harmonious’, nationally.
No intervention to be initiated
unless the client agrees to participate in the diversion.
The outcome for any client
participating in an early diversion program should be less onerous than the imposition of
the normal penalty.
Age should be no boundary to
participation in a diversion program.
All staff involved in the diversion
program need to be fully trained and committed to the principles of harm reduction and
diversion (police, court workers, service providers, etc.).
All staff, clients and significant
others should be aware of all the diversion options that are available.
All key stakeholders should have a
clear understanding of their roles, and the roles of others involved in the process.
Different professions involved in
the diversion should regularly communicate and, where possible review individual cases.
Access and equity is incorporated
into the provision and availability of appropriate diversion options including; locality,
culture, gender, age, and drug of choice.
Equitable and long-term funding
should be provided for programs, including non-government service agencies.
Ongoing qualitative evaluation,
consolidation and sharing of databases and monitoring of outcome indicators are fully
funded ongoing components of good diversion practice.
There is high profile communication
of the benefits (harm reduction) of diversion to all stakeholders and the broader
community.
Adequate resources are provided -
people and money - to match options with client needs.
There are safeguards to ensure
privacy and protection of the interests of clients and other key stakeholders.
Where appropriate, support services
are provided for significant others (including, in some cases, victims of drug related
crime).
Ideal Court Diversion and Alternative Sentencing Options
This brief outline has been developed as a combination of key factors considered desirable in an ideal court diversion model
Operates within a supportive
environment
appropriate legislative framework
which sanctions and enables diversion
common understanding between key
stakeholders which is clearly articulated in agreed guidelines/procedures
appropriate availability of a
range of accredited and appropriately funded treatment options (taking into account
gender, culture, age location)
community and key stakeholder
appreciation of the benefits of diversion
Objectives
Program description
Barriers to Good Diversion Practice
During this session of the Forum, participants were asked to identify barriers which may prevent "ideal" diversion programs from being implemented. Participants considered pre-court programs and court based programs separately. In broad ranging discussion, participants considered some of the barriers to the implementation of particular programs as well as more general considerations. Once again, participants broke into small groups for discussion and then reported to the main Forum. This reporting is summarised below.
One of the barriers to the implementation of good diversion practice was a lack of understanding about the potential benefits of such programs. This lack of understanding, in both the public and the political arena, was seen to arise because of the limited availability of information about current programs, and because the information that is available is poorly disseminated. In the political arena in particular, punishment and control is far more marketable than rehabilitation and harm reduction. This means diversion programs, which do not provide a "quick fix" solution are less likely to secure and maintain support.
A further barrier to the implementation of good diversion practice is the lack of agreed outcomes for diversion programs. This is clearly related to issues raised under ‘evaluation’ below. In order to secure funding for good diversion practice it is necessary to identify the outcomes that will be achieved and the relative benefits of the expenditure.
Legislative frameworks for diversion programs, where they do exist, are not comprehensive and broad. Current legislative programs target a limited range of offences or offenders. The result is that certain offenders ‘slip through the net’ and are not offered services.
A further barrier exists where there is poor communication between legislators and program practitioners. This poor communication can result in legislation which is not based on good diversion practice, legislation that is impractical or cumbersome and legislation that is ignored or avoided by those who might be in a position to implement it.
There is a lack of harmony between jurisdictions and even between different criminal codes regarding good diversion practice and appropriate legislation. Participants indicated that "harmonious" legislation was a more realistic and useful goal than uniform legislation across jurisdictions.
Legislative reform generally takes a very long time and requires constant and strong political campaigning. As some of the reforms that might be required to achieve good diversion practice are quite complex, achieving legislative reform may pose a barrier to the implementation of good practice. This is particularly true where there is no high profile personality to "champion" the cause of diversion, in the manner with which a figure like Brian Burdekin championed the cause of youth homelessness.
Diversion programs generally lie somewhere between Health and Corrections and as such can fall into a funding wilderness. There is currently inadequate support for existing programs and generally little indication that new funding will be made available to new programs. This is in part due to a lack of a high level political commitment and support for good diversion practice for the reasons outlined above.
The lack of funding allocated specifically for data collection and evaluation poses a particular threat because it inhibits the possibility of programs demonstrating their suitability for further funding.
Funding agreements are still generally quite short term, frequently for periods as little as 12 months, and do not allow for long-term planning by agencies offering programs. This means agencies are often forced to spend undue amounts of time trying to secure funding for subsequent funding periods (or for current funding periods), and can devote less time to long-term strategic planning, research and development activities and evaluation.
At least partly due to the competitive nature of current and emerging funding arrangements, cooperation between agencies can be increasingly difficult. This lack of cooperation may occur because agencies are competing for the same funding, or because funding is so difficult to acquire for core services that services that are ‘non core’ are abandoned or severely curtailed.
This lack of cooperation manifests itself at a practical level with differences regarding entry requirements into programs, duplication of assessment and intake tools between agencies, and differences of opinion regarding appropriate outcomes for program activities.
The lack of cooperation is in part the result of programs operating across department, frequently Health and Attorney Generals or their equivalent. If no agency has clear responsibility for the coordination of various activities across the departments involved then good diversion practice is difficult to establish and maintain.
Lack of cooperation and communication between agencies can also result in a lack of clarity regarding roles across agencies and workers involved in the system. Who follows up when orders are breached? Who should information be communicated to at various stages of the process? Who receives information and follow-up once orders and undertakings have been completed?
While there seems to be clear evidence suggesting that communication between agencies is vital to good diversion practice, the mechanisms for achieving this communication are frequently ad hoc. Where no procedures exist for regular communication between agencies and workers within the system good diversion practice is likely to break down.
The notion of harm minimisation is still relatively new to many involved in the criminal justice system. Participants noted that there is still quite a large gap between the approach taken by drug treatment agencies and the approach taken by many involved in the criminal justice system. Training may provide one avenue to promote a shared understanding of what harm reduction might mean for programs based in the criminal justice system.
Further, there is a perceived lack of knowledge regarding the range of options for diversion that are available currently. This is in part linked to high staff turnover in the field, and a lack of experienced and well trained staff in both the courts and in drug agencies. Lawyers and other workers require adequate training if they are to accurately inform offenders of their options. This training must take account of the high turnover of staff in both the courts and drug agencies.
One of the greatest barriers to diversion in the current context is the lack of clear procedures and guidelines for the agencies involved in the processes. Unclear procedures frequently result from poor communication between the workers and agencies involved. This lack of communication often begins at the first contact with the offenders, where various agencies each require extensive intake information. With appropriate checks and balances this information could be shared and offenders could be spared duplicate intake procedures.
A further barrier to the implementation of good diversion practice is a lack of clarity regarding the roles of the various workers who may be involved in any given case. Who takes responsibility for initiating breach proceedings? Who reports poor attendance? What happens when the offenders circumstances change, for instance a change of address? A lack of clear procedures leads to duplication of services and gaps in services.
A recurring theme in the discussion of barriers to good diversion practice was the geographical isolation of rural and remote offenders. Diversion programs frequently rely on the careful integration of a range of services perhaps including the courts, corrections services and drug treatment agencies. Frequently this range of services simply do not exist in rural areas. There are very limited services currently available to rural and remote offenders and this is unlikely to be addressed without some effort being spent on the development of new models for the delivery of diversion services to offenders in these settings.
The earlier discussion of resource allocation highlighted the very limited scope that diversion programs have had to evaluate their practices. Programs are frequently over stretched simply meeting the needs of the offenders who are referred to them. This leaves little time to market their services to major stakeholders such as police and the courts, not to mention funding bodies. While many formal diversion programs collect information about those who are using their services few resources are available to analyse that data or to conduct careful and culturally relevant evaluation studies over long periods of time.
The failure of funding bodies to allocate resources for evaluation can result in a loop which sees programs inadequately funded, therefore pressed just to meet demand and unable to allocate resources to evaluation, therefore unable to demonstrate the effectiveness of their services, therefore unable to secure adequate funding. This poses a significant barrier to good diversion practice.
Forum participants were asked to consider the kinds of broad strategies which might overcome the barriers that were identified in the previous session. Participants were not asked, at this stage, to commit themselves to any of these actions.
This list is closely related to the weaknesses that were identified earlier in the Forum. Once again participants were not asked to identify actions that should be taken to correct difficulties in one particular program. It is anticipated that addressing the issues outlined here would strengthen good diversion practice.
Planning and Goal Clarification
One of the most important tasks to be identified by Forum participants was the need to clarify the aims of diversion programs and to state them clearly. Participants felt that such clarification would then allow rational discussion on the issue between the various stakeholders involved. Such discussion is currently made difficult by the lack of agreement over the use of terminology and the lack of agreement over possible outcome measures.
Participants identified a need for a coherent set of policies to guide the development of programs both now and in the future. Many diversion programs currently exist and it was felt that a detailed description of those programs would provide a solid basis for the development of future programs.
One of the main areas of concern was the need to document some of the options currently available in the area of informal pre-court diversion. The potential of these programs to act as opportunities for early intervention was recognised and the need to capitalise on these opportunities was stressed.
Participants expressed very strong support for the concept of diversion, in spite of a perceived lack of evidence supporting the approach. They identified a need to take advantage of media and political opportunities that might exist to foster more general support for good diversion practice. Participants anticipated strong political support for diversion programs once the benefits of these programs was more clearly demonstrated to politicians and other decision makers.
The group also identified the need to bring these issues into the public Forum, notwithstanding the emotive and irrational manner with which the media and public debate concerning drug issues has sometimes occurred in the past.
The view was expressed repeatedly that the status quo, the present criminal justice system, generally deals so poorly with the problems of drug offenders that the obvious advantages of diversion programs should be readily accepted. The main barrier to this occurring is the failure of current diversion programs and researchers to clearly articulate the aims of diversion programs, the outcomes that are being achieved, and the possibilities for future action.
Communicating the deliberations of the ADCA Diversion Forum to members of key decision making bodies, such as National Drug Strategy Committee (NDSC) and the Ministerial Council on Drug Strategy (MCDS) was identified as an important strategy to raise awareness of options for diversion. Another key strategy was to support specific Forums to educate and enlist the support of key stakeholder groups such as police, lawyers, judiciary, and health professionals. It was noted that this educative process may be the first step in creating a cultural shift within organisations whose culture may not currently be entirely supportive of diversion.
Several areas for concrete action were identified in relation to research and evaluation.
Given the complex range of questions which might reasonably be asked in research and evaluation projects the view was expressed that several longer term studies (3 years) might be undertaken to assess the impact of various alternatives.
The provision of longer term funding to diversion programs (3 year agreements), with adequate budgetary allocation for evaluation activities, would allow programs to plan for the longer term and to evaluate and develop their activities in a manner made impossible by current funding arrangements.
Further to the funding of particular agencies, the question "Who funds the intervention for this client?" needs to be resolved. One proposal was to develop a "voucher" system to ensure that funding follows the clients to various agencies and that agencies can be paid by the appropriate department for the services that are offered to the offender. Current systems determine that drug agencies, who are under increasing pressure to provide only contracted services, may well be asked to provide services for an offender by Corrections, even though no funding is available to pay for those services.
The final session of the Forum involved representatives from each state and territory coming together to consider strategies that could be taken up by Forum participants in each jurisdiction. The strategies that were developed by participants from each state and territory are included below. Groups were asked to specify a time-frame and nominate a representative to progress each strategy. Where groups complied with this request the information has been included.
Alternatives to be considered by the meeting:
Issues to be considered by the meeting to include:
Options to be considered after the statewide meeting
Action plan to include
Pre-court Options
Post Court Options
Issues for committee to consider
As indicated at the beginning of this report, one of the main aims of the ADCA Diversion Forum was to impact current diversion practice for the better. With this in mind ADCA intends to conduct a follow-up of Forum participants over the next four months to determine what concrete actions have been undertaken as a result of the Forum. This evaluation will revisit the strategies that each of the state and territory groups developed during the final session of the Forum.
As part of the evaluation participants will be asked to indicate
The results of this follow-up evaluation will be made available to Forum participants.
