NSW Aboriginal Legal Service solicitor James Clifford says the young offenders act, which allows police to caution children rather than taking them to court, isn't working well.
Police are restricted by the type of offences that can be dealt with under the legislation when they are willing to issue a caution, Mr Clifford told a NSW parliamentary inquiry on Wednesday.
"(Police) should have the discretion ... (to) make an assessment ... on whether or not this offence is too serious or is appropriate to be dealt with under the young offenders act," Mr Clifford said.
Police Assistant Commissioner Andy Holland told the inquiry police want young people to get the support they need.
"We're not into locking children up," he said.
There's been a decline in the proportion of young offenders being diverted from the court system. (Mick Tsikas/AAP PHOTOS)
But young offenders were engaging in more serious crimes which meant they were not entitled to diversion under the legislation.
"They're stepping right into aggravated break-and-enters, things like that, stolen motor vehicles," he said.
NSW Bureau of Crime Statistics and Research executive director Jackie Fitzgerald similarly noted a shift to more serious offending when the bureau released research on diversionary programs in September.
The bureau found a decline in the proportion of young offenders being diverted from the court system, dropping from 51 per cent in 2022-23 to 46.8 per cent in 2023-24.
Superintendent David Cooper says diversion schemes work well, when police can use them, but there remains a "problematic" requirement for young people accused of crimes to make admissions in order to be eligible.
"At times, the legal advice they're given is not to say anything," Supt Cooper said.
He suggested diversions should be expanded to send children to support services and educational programs, not just away from court.
"I would love to see another layer attached to that, where when they are diverted out of the criminal justice system … we divert them to something," he said.
Mr Clifford told the hearing linking young offenders with support services would make diversions more meaningful.
Locking up children doesn't help with rehabilitation and leads to them self-identifying as a "bad kid", Mr Clifford said.
Children were spending time on remand because they could not be issued cautions by police, leaving them in custody awaiting their day in court, where they would then get a caution.
"If they actually pled guilty and were sentenced, waived their defence, they would be released on a community-based order," he said.
"We should not be having a remand population that is 72 per cent of those in custody," Mr Clifford said.
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