Every week in Magistrates’ Courts across Victoria, some first-time or low-level offenders are offered a path that avoids a criminal conviction altogether. It is called diversion, and while it is widely used, our newsroom regularly hears from readers who are unclear on how it actually works, who qualifies, and what it means for a person’s record.
What the diversion program actually is #
The Criminal Justice Diversion Program operates under section 59 of the Criminal Procedure Act 2009 (Vic). It allows a magistrate to divert a person away from the usual conviction-and-sentence process, provided the prosecution — Victoria Police or another informant — consents and the accused person accepts responsibility for the conduct alleged.
Instead of entering a plea and having the matter proceed to a hearing, an eligible accused can have their case adjourned while they complete a set of conditions. If those conditions are completed to the court’s satisfaction, the charges are formally discharged. No conviction is recorded, and in most cases no finding of guilt is recorded either.
It is important to be precise about what diversion is not. It is not an acquittal, and it is not a declaration that the allegations were untested or false. Court documents in a diversion matter will typically show the accused acknowledged the essential facts of the alleged offending as a condition of being considered. Diversion is a discretionary alternative pathway, not a finding on the merits.
Who is generally considered eligible #
Eligibility is assessed case by case, and the final decision always rests with the informant and the magistrate — there is no automatic entitlement. That said, court practice and the framework under the Act generally point to certain threshold factors:
- The accused has no prior criminal record, or a limited one, particularly for similar offending.
- The alleged offence is relatively minor — commonly summary offences or less serious indictable offences that can be heard summarily, such as low-level theft, minor property damage, some drug possession matters, or first-time driving offences.
- The accused acknowledges responsibility for the conduct alleged and consents to diversion.
- The informant (usually a police prosecutor) does not object.
- The magistrate is satisfied diversion is an appropriate outcome having regard to the nature of the offending, the impact on any victim, and the public interest.
Serious violent offences, sexual offences, matters involving significant injury, and offences carrying mandatory sentencing consequences are generally considered unsuitable for diversion. Family violence matters are also treated with particular caution given the protective purpose of the family violence intervention order system, and diversion is rarely available where an active intervention order or serious risk indicators are involved.
How the process works in practice #
Diversion typically begins with either the informant flagging suitability early, or defence lawyers making a formal request. A diversion coordinator — usually attached to the court — assesses the referral and may prepare a report for the magistrate considering factors such as the person’s circumstances, any victim impact statement, and the appropriateness of proposed conditions.
At a diversion hearing, the magistrate will explain the process to the accused, confirm they understand they are accepting responsibility for the alleged conduct, and set conditions with a compliance date — commonly between three and six months later. The matter is then adjourned rather than finalised.
If a victim is involved, courts frequently seek their views before diversion is approved, and a condition of diversion is commonly a letter of apology or an agreed reparation payment. Victims are not able to veto diversion outright, but their position is a relevant consideration for the magistrate and informant.
What conditions typically apply #
The conditions attached to diversion vary depending on the offence and the person’s circumstances, but commonly include some combination of:
- A donation to a charity or community organisation nominated by the court.
- A written letter of apology to any victim.
- Attendance at a relevant program — for example, a drug diversion education program, anger management course, or road safety course.
- Compensation or reparation paid to a victim for loss or damage.
- A good behaviour requirement for the diversion period, meaning no further offending.
- Compliance with any counselling or treatment plan considered relevant to the offending.
The court will set a compliance date, at which point the matter returns before a magistrate to confirm the conditions have been met.
The no-conviction benefit — why it matters #
The central appeal of diversion is straightforward: successful completion means the criminal charge is discharged and no conviction is recorded. For many people, particularly younger offenders or those in professions requiring a working with children check, a police check for employment, or overseas travel, this can be significant.
A conviction — even a minor one — can appear on standard police checks and can affect visa applications, professional registration, and employment in fields such as teaching, healthcare, aviation, and financial services. Diversion allows a person to avoid that outcome entirely, provided they complete what the court requires.
It is worth noting diversion is different from a court proceeding without conviction under section 8 of the Sentencing Act 1991 (Vic), where a person is found guilty but the court exercises discretion not to record a conviction. Diversion sits a step earlier — the charge is diverted before any finding of guilt is made at all, and it does not appear on a person’s criminal record in the same way a proven charge might.
What happens if conditions are not met #
If a person fails to complete the agreed conditions, the matter is brought back before the court and proceeds in the ordinary way — meaning the person will need to enter a plea and the charge will be dealt with as if diversion had not been offered. In that circumstance, the acknowledgement of responsibility made for the purpose of diversion is not automatically treated as an admission for a subsequent contested hearing, though the practical position varies with legal advice sought at the time.
Diversion is generally a one-time or limited opportunity. Magistrates and prosecutors will consider whether a person has previously been diverted when assessing a new application, and repeat use of the program for further offending is far less likely to be approved.
A tool with limits #
Diversion reflects a long-standing principle in Victorian sentencing policy: that minor, first-time offending by people who take responsibility for their actions can sometimes be better addressed through rehabilitation and reparation than through the formal conviction process. It is not available to everyone, it is not guaranteed, and it still requires an accused person to acknowledge the conduct alleged against them.
For readers navigating a matter before the Magistrates’ Court, eligibility for diversion is a question best directed to a lawyer or Victoria Legal Aid, since outcomes depend heavily on the specific charge, the person’s history, and the position taken by police and any victim involved.
If you need support: Crime Stoppers 1800 333 000 | Lifeline 13 11 14 | 1800RESPECT 1800 737 732 | Safe Steps 1800 015 188 | Sexual Assault Crisis Line 1800 806 292 | Beyond Blue 1300 22 4636 | 13YARN 13 92 76.
