The first principle he used was that of imprisonment and detention as a last resort. Currently there are 29.1 per 100,000 imprisoned in the country but as was pointed out this figure masks the difference between states. The Northern Territory for example has a rate of 97.5 per 100,000. Cuneen pointed out that this figure was worrying when one factored in the high number of Aboriginals resident in this jurisdiction. He then highlighted the different rates of imprisonment between New South Wales and Victoria, two jurisdictions comparable when taking into consideration population size. Victoria has a rate of 7.1 whereas New South Wales has a rate of 35. The last 25 years has seen a reduction in the rate of incarceration, Cunneen did identify a slight upswing of late but he is hopeful that this is a temporary change. A negative issue that has recently become apparent is the large number of youths on remand having been refused bail. In 2006 58% of the detention population was made up of remand prisoners. There has been a tightening of the bail laws in the adult legislation that has now also been applied to juveniles without any thought. Cunneen pointed out the knock on effect of this is that a large number of youths are placed in detention system pending their trial and because they have been convicted of no crime, no programmes can be implemented to tackle any problems the youths may have.
The second principle he used was the availability and use of diversion options. Cunneen pointed out that Australia has a number of similar initiatives to Ireland in operation to divert youths from the full rigours of the criminal justice system. Again he stressed how each jurisdiction differed slightly in their approach. Warnings, cautions and family conferencing are all at the heart of diversion. The criteria for their use is established in legislation where the seriousness of the offence, level of violence, harm and the offending history of the child are all taken into consideration when deciding what route to take. The family conference is taken from the New Zealand model. The youth must admit to the offence, agree to participate and the victim must also agree to participate. The police, DPP or a judge may refer a case to a conference. Cunneen acknowledged the mixed results of conferences internationally. In New South Wales youths are less likely to re-offend if they are diverted for property or violent offences than if they came before the courts for the same offence. There is a limited use of drug courts in Australia where half the people referred to the programme are refused admission and 40 % who are admitted complete the programme. Cunneen pointed out that a recent problem has been the increase in the number of people before the courts where the number being diverted has remained the same. The enthusiasm for reform can wear out after a period.
The final general principle Professor Cunneen examined was the prohibition against racial discrimination. He opened by highlighting the fact that Aborigines do not enjoy the same of benefits of diversion. He gave the example of a young female shoplifter. If the shoplifter is black s/he three times more likely to be arrested than if s/he is white. The result is a massive over representation of Aboriginals in the Australian detention system. More than 50 % of the detention population are of Aboriginal extraction. Cunneen pointed out that where detention levels are going down overall, the numbers of Aboriginals being held in detention is rising.
Professor Cuneen concluded by outlining how the diversion system can improve. There needs to be a range that responds hierarchically to the seriousness of offending, adequate resources, the diversion options must be seen as viable options and there is the need for legislation to provide clarity and consistency. He finished by arguing that once rates of recidivism for diversion are as good, if not better, than those for detention then they must be used.
Summary provided by John Cronin, LL.M (Criminal Justice) Candidate