Australian Institute of Criminology

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Executive summary

In 2001, Heather Strang prepared a report for the Criminology Research Council summarising restorative justice programs in Australia (Strang 2001). At that time, restorative justice was largely seen as suitable for juvenile offenders and for less serious offences. Every state and territory had a youth conferencing scheme in place, while only Queensland, Western Australia and the Australian Capital Territory were using conferencing with adult offenders. At the time, the use of restorative justice beyond police and courts was beginning to be explored.

In 2013, the Australian Institute of Criminology undertook to build on this early work by reviewing restorative justice programs currently operating within Australian criminal justice systems and identifying the issues currently facing restorative justice.

The final report comprises four sections:

  • section one provides a brief discussion relating to definitions and key concepts underpinning restorative justice;
  • section two presents an overview of restorative justice programs currently operating across Australia;
  • section three provides a summary of the literature regarding the impact of restorative justice; and
  • section four discusses current challenges with reference to those highlighted by Strang in 2001 and also considers future challenges for restorative justice.

Defining restorative justice

While there remains some disagreement regarding practices that should and should not be considered ‘restorative justice’, the definition offered by Marshall (1996: 37) of

a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future

has been widely accepted.

The scope of this report is limited to ‘programs involving meetings of victims, offenders and communities to discuss and resolve an offence’ (Strang 2001: 5).

The most common forms of restorative justice programs operating in Australian criminal justice systems are victim–offender mediation, conferencing (for both adult and young offenders) and circle sentencing.

Restorative justice in Australia

Since 2001, restorative justice practices have become mainstream in Australian juvenile justice and have been extended for use with adult offenders. In the 12 years since Strang’s 2001 report, restorative justice programs now span conferencing for both young and adult offenders, circle sentencing and victim–offender mediation.

As at 30 October 2013, a wide range of restorative justice options were available across Australia, specifically:

  • conferencing for young offenders was available in all Australian states and territories;
  • conferencing for adult offenders was available in New South Wales and South Australia;
  • circle sentencing was available in New South Wales and Western Australia; and
  • victim–offender mediation was available in jurisdictions, with the exception of Victoria and the Australian Capital Territory.

Impact of restorative justice

The evidence on the impact of restorative justice on reoffending is mixed but research suggests positive impacts for both victims and offenders. That is, a growing body of research indicates that restorative justice may be more effective for more prolific offenders, more effective for more serious offenders and more effective post- rather than pre-sentence.

While the ability of restorative justice to reduce reoffending is still contested, a focus on reoffending outcomes alone fails to capture the extent of other benefits, such as victim satisfaction, offender responsibility for actions and increased compliance with a range of orders, among others.

Challenges faced in the implementation and application of restorative justice

Current status of challenges identified in 2001

While there have been some improvements in the issues affecting the implementation of restorative justice programs identified in 2001; that is, upscaling following pilot programs, caseflow problems (including net-widening), safeguarding rights and whether it is appropriate and effective in Indigenous and ethnic communities; some difficulties remain. In particular:

  • Upscaling following pilot programs—many pilot programs have successfully been adopted and expanded, however there remain difficulties in this area. Several pilot programs across Australia have not been adopted despite positive results. The reasons for this are not always available, although it is likely that cost is a key factor.
  • Caseflow problems—as Strang (2001) predicted, for many programs, problems relating to low referrals have dissipated as key stakeholders have come to better understand the goals of restorative justice. However, low referral rates remain a challenge for some programs and this is more pronounced in the early stages of implementation.
  • Safeguarding rights—there remains a tendency among advocates for victims and offenders to characterise any benefit for, or enhancement in the rights of, one party as being ‘at the expense of the other’ (Strang & Sherman 2003: 36). Research on the impact of restorative justice has contradicted this zero-sum approach and has been relatively consistent in reporting satisfaction among victims. Research has also failed to show that offender’s rights are violated in restorative justice processes.
  • Appropriate and effective in Indigenous and ethnic communities—many of the issues relating to the use of restorative justice in Indigenous and ethnic communities that were identified in 2001 (ie low referral rates, few Indigenous conference convenors, high number of youths failing to appear for conferences and a lack of awareness among Indigenous communities of the potential benefits of restorative justice) remain today. Notably, efforts have been undertaken to reduce these barriers by increasing the cultural relevance of restorative justice programs through a range of ways, including the involvement of respected community members and elders. Further research is required to better understand the impact of restorative justice for racial and ethnic minority groups in Australia.

Future challenges

Three key challenges face restorative justice into the future:

  • Extending restorative justice to adult offenders—while restorative justice has primarily been used for young offenders, an increasing number of practices extend to, or are designed for, adult offenders and the victims of their offences. There remains some debate as to whether it is appropriate to extend restorative justice to older offenders, however, the research to date has reported some positive outcomes in reducing reoffending, victim and offender satisfaction, and positive attitudinal change among adult offenders.
  • Extending restorative justice to serious offences—similarly, while restorative justice was formerly seen as appropriate only for less serious offences, it is increasingly being used to respond to the harm caused by more serious offending, such as murder, sexual assault and family violence, and there is growing evidence of positive outcomes in this space.
  • Achieving ‘restorativeness’—whether ‘restorativeness’ is achieved is highly dependent on the willingness of victims and offenders to engage in restorative justice processes. Further, it is difficult to assess whether restorativeness has translated into programs the way it was intended, as there are many variations in implementation and what is considered to be ‘restorative’. This is also complicated by the fact that theory in this space has, and continues to, develop alongside practice. The recently endorsed Restorative Justice National Guidelines are intended to provide guidance on outcomes, program evaluations and are an important step towards promoting consistency in the use of restorative justice in criminal matters across Australia.

Conclusion

Following the emergence of restorative justice practices in the 1990s and their widespread use in Australia and overseas, the body of research into the impact of such programs has grown steadily and now paints a picture of a range of processes that continue to evolve but that largely result in positive outcomes for both victims and offenders.

The question, ‘does it work?’ is asked of all interventions in the criminal justice field and is most often answered by assessing the impact on reoffending. On this point, the evidence for restorative justice remains mixed. However, the literature is replete with reports of high levels of victim satisfaction and feelings that the process is fair. Further, while some significant issues remain, research conducted to date consistently demonstrates that restorative justice programs work at least as well as formal criminal justice responses.

Although there remains much debate about where restorative justice fits in, what is certain is that where it is done well, it goes beyond what traditional responses can achieve and as a result, the potential impact upon individuals, communities and society is substantial.

Restorative justice is about more than traditional notions of justice; it is about repairing harm, restoring relationships and ultimately, it is about strengthening those social bonds that make a society strong.

The evidence base on restorative justice would benefit from future research extending the focus from asking ‘does it work?’, to considering how, when and for whom it works best in order to contribute to the growing evidence that seeks to provide a more nuanced understanding of the circumstances under which restorative justice is most effective.