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Restorative justice in Australia

To date, restorative justice in Australia has been used to deal almost exclusively with offenders who have admitted to an offence (Daly 2001). It can and has been employed at most points of contact with the criminal justice system. For example, it can be used by police to divert offenders away from court (eg youth conferencing), by courts as a sentencing outcome (eg referral to conferencing) or as a means of arriving at a sentence (eg circle and forum sentencing), or following release from prison (eg victim–offender mediation).

At the time of Strang’s 2001 review of restorative justice programs in Australia, such programs were usually only available to juvenile offenders, as the programs were considered most suited to younger, less serious offenders. In the 12 years since that was written, these practices have become mainstream in Australian juvenile justice and have been extended for use with adult offenders. Given the extent of this uptake of restorative justice programs, particularly conferencing, across the criminal justice system and the fact that the majority are legislated, the use of restorative justice practices can no longer be considered peripheral. In fact, as Sherman and Strang (2011) note, restorative justice conferencing is very near to achieving mainstream adoption.

In the two decades since youth conferencing was first used by the NSW Police Service in Wagga Wagga, restorative justice has largely been incorporated into existing criminal justice systems. As the Justice and Community Directorate states in relation to the ACT Scheme, ‘it [restorative justice] ‘augments’ the criminal justice system without replacing it’ (ACT Government 2013). Across the country, restorative justice processes now run alongside existing criminal justice responses. In 2011, the National Justice CEOs Group considered the need to develop national guidelines to underpin restorative justice practices for criminal matters in Australia (National Justice CEOs Group 2011). The Standing Council on Law and Justice (SCLJ) endorsed the Restorative Justice National Guidelines at its meeting on 10–11 October 2013 (SCLJ 2013a). The Guidelines are intended to promote consistency in the use of restorative justice in criminal matters across Australia and provide guidance on outcomes, program evaluations and training (SCLJ 2013b).

A summary of restorative justice programs across Australia was presented in Strang’s 2001 report to the Criminology Research Council. At that time, all states and territories had some form of conferencing for young offenders in operation and adult conferencing was operating only in Queensland, Western Australia and the Australian Capital Territory. In the 12 years since that report, restorative justice programs have grown considerably and span conferencing for both young and adult offenders, circle sentencing and victim–offender mediation programs (see Table 1 for a summary).

Conferences: Young and adult offenders

Youth (sometimes referred to as family) conferencing operates in all states and territories (see Richards 2010 for an overview of the legislative and policy context in which restorative justice is applied to young offenders). Conferences present an opportunity for the young person to take responsibility for their actions and to see firsthand how their behaviour has affected others. In determining whether the matter is suitable for a conference, the seriousness of the offence, the level of violence involved, the harm caused to the victim, the nature and extent of offending by the young person, the number of times they have received warnings or cautions under the relevant Act and other matters deemed relevant must be taken into consideration.

If the offender is found to be suitable and eligible, and agrees to participate, a conference may be organised with the relevant parties. Conferences are held at different stages of the process and are run by police, courts or juvenile justice agencies. The assessment of suitability is based on the offender’s acceptance of responsibility, level of remorse, feelings towards the victim, their interpersonal skills and various safety issues including substance abuse and cultural values. This usually involves bringing the victim and offender together with facilitators, police and other support people to attempt to repair the harm caused by the offender’s actions and to devise an intervention plan or agree on an undertaking for the offender. In some jurisdictions, conferences may go ahead without the victim being present. The plan may include making an apology or reparation to the victim, doing community service or an education program, donating to charity, counselling, or working for the victim or their parent. It can also include drug and alcohol treatment where this has been identified as an influence on their offending behaviour. Generally, the agreed outcomes must not be more onerous than a court would order. Offenders who do not comply with the outcomes of a conference may return to the conventional criminal justice system, although in some jurisdictions, there is some discretion as to how matters involving offender who do not comply with their agreement may be dealt with, including a caution or no further action.

Restorative justice options are also available for adult offenders. Several jurisdictions have piloted conferencing for adults over the years, however, it is currently only available in four jurisdictions—New South Wales, Victoria (up to 20 years of age), South Australia and in Queensland. Further, restorative justice conferencing for adults is primarily available at the pre-sentencing stage. The various conferencing options that are currently available for both youth and adult offenders across Australia are summarised in Table 2.

Table 1 Restorative justice practices available in Australian criminal justice systems
Youth conferencing Adult conferencing Victim–offender mediation Circle sentencing

New South Wales

Victoria

Queensland

South Australia

Western Australia

Northern Territory

Tasmania

Australian Capital Territory

New South Wales

In New South Wales, a young person can be offered a conference for the same offences that may be cautioned under the Young Offenders Act 1997, but often following previous warnings and cautions, as conferences were not designed for first-time minor offenders. In practice, a youth may be diverted to a conference after receiving three cautions. Participants must admit their guilt and consent to participate in a conference, although sexual assault, drug and traffic offences, offences causing death and breaches of apprehended violence orders are not eligible for conferencing. Eligible youth are referred to a conference that involves a meeting of the young offender, their parents (should the offender wish them to attend), the victim, their support person and the police. For victims who choose not to attend themselves, they may send a representative. Ideally, an outcome plan is reached with the agreement of all participants and where a victim has attended in person, the plan is enforceable only when both the youth and the victim agree. Where no agreement is reached, the matter is referred back to the police or court that first referred the matter. The Conference Convenors, who are engaged as required for a conference, are individuals who live and work in the local communities.

An early Bureau of Crime Statistics and Research (BOCSAR) study examining the reoffending outcomes for young people who were processed through Youth Justice conferences and those eligible for a conference but processed through the Children’s Court, found that there was a ‘moderate reduction’ in reoffending among those who participated in a youth justice conference (Luke & Lind 2002:1). A second evaluation examining the effect of youth conferencing on reoffending in New South Wales reported no significant difference in reoffending, the length of time to first (proven) reoffence, the level of seriousness of reoffending, or the number of proven offences (Smith & Weatherburn 2012). A more recent study assessing the impact of the NSW Young Offenders Act 1997 (YOA) on the likelihood that a young offender would receive a custodial order, found that that the YOA had been effective in diverting both Indigenous and non-Indigenous young people from custody (Wan, Moore & Moffatt 2013).

Conferencing for adult offenders commenced in New South Wales as the Community Conferencing for Young Adults Pilot. This measure was trialled in September 2005 for offenders aged between 18 and 24 years in Liverpool Local Court and the Tweed Heads Local Court Circuit. This is now available to all offenders regardless of age and is known as Forum Sentencing. Among the guiding principles of the program is the need to enhance the rights and place of victims in the justice process and promote active participation and empowerment of all participants—offenders, victims and the families and support persons of both.

Potential participants are referred by the court after a plea or finding of guilt and prior to sentencing. Offenders who have committed serious violent crimes or have been charged with child prostitution, child pornography, stalking or intimidation offences involving the use of a firearm or domestic violence, are ineligible for the program. A draft intervention plan must be approved by the court, after which the offender undertakes the plan either prior to sentencing or as part of the sentence. Satisfactory completion of the plan is notified to the court, who can then consider the outcome during sentencing, or if the plan was part of the sentence the court can finalise the matter. An early evaluation of the program found that participants (victims, offenders and support persons) were generally satisfied with Forum Sentencing (People & Trimboli 2007) and that recidivism of offenders was low; however, the latter finding should be interpreted with caution as the study was limited by a short follow-up period and absence of a suitable comparison group (Jones 2009). The evaluation also reported a great deal of support among participants for eligibility to be broadened to all adults (People & Trimboli 2007) and as a result, the upper age limit was dropped in 2008. In 2008, driving offences (such as driving without a licence) that do not have a direct victim were made ineligible.

Table 2 Conferencing for youth and adult offenders currently operating in Australia
Program name Legislation Eligible participants Eligible participants Victim participation Point of referral

New South Wales

Youth Justice Conferences

Young Offenders Act 1997

Youth (10 to under 18 years)

Sexual assault, drug and traffic offences, offences causing death and breaches of apprehended violence orders

Conference can proceed without a victim present

Police and court (pre-sentence)

Forum Sentencing

Criminal Procedure Legislation 2010 NSW (Part 7)

Adults—18 years and older

Murder, manslaughter and serious violent and sexual offences, offences of stalking and intimidation, drug supply, cultivation and manufacture, firearms offences

Conference can proceed without a victim present

Court (pre-sentence)

Victoria

Youth Justice Group Conferencing

Children, Youth and Families Act 2005

Youth (10 to under 18 years) and young adults (10 to 20 years)

None stipulated in the legislation but in practice, homicide, manslaughter, sex offences or serious crimes of violence are excluded

Conference can proceed without a victim present

Court (pre-sentence)

Youth Justice Conferencing

Youth Justice Act 1992

Youth (10 to under 17 years), although some adults may be referred by police

None stipulated in the legislation

Conference can proceed without a victim present

Police and court (pre-sentence)

Queensland

Justice Mediation Program

Dispute Resolution Centre Act 1990

Adults (17 years and over)

None stipulated in the legislation

Conference can proceed without a victim present

Mostly diversionary but can come at all stages of the criminal justice process

South Australia

Family Conferencing

Young Offenders Act 1993

Youth (10 to under 18 years)

Legislation stipulates youth who admit to committing a ‘minor’ offence may be referred by police, however no offences are specifically prohibited.

Conference can proceed without a victim present

Police and court (pre-sentence)

Port Lincoln Aboriginal Conferencing

Criminal Law Sentencing Act 1988

Adults—18 years and older

Conference can proceed without a victim present

Court (pre-sentence)

Western Australia

Family Group Conferencing

Young Offenders Act 1994

Youth (10 to under 18 years)

Schedule 1 and 2 offences, which include homicide offences, sexual offences, some drug offences, arson and offences against justice procedures

Conference can proceed without a victim present

Police and court (pre-sentence)

Northern Territory

Youth Justice Conference

Youth Justice Act

Youth (10 to under 18 years)

Murder, attempted murder, manslaughter, terrorism offences, threats to kill, a range of other violent offences (eg robbery), sexual offences, some property offences and a range of drugs offences

Conference can proceed without a victim present

Police and court (pre-sentence)

Tasmania

Community Conference

Youth Justice Act 1997

Youth (10 to under 18 years)

Murder, attempted murder, manslaughter, aggravated sexual assault, rape, armed robbery, aggravated armed robbery and being armed with a dangerous or offensive weapon

Conference can proceed without a victim present

Police and court (sentencing option)

Australian Capital Territory

Restorative Justice Unit

Crimes (Restorative Justice) Act 2004—operating in phase one

Youth (10 to 17 years)

Serious property offences (over 14 years’ imprisonment); serious offences against the person (over 10 years’ imprisonment), all domestic violence offences, all sexual assault offences

Conferences cannot proceed without a victim (or their nominated substitutes) participation

From apprehension to post-sentence

A subsequent evaluation that compared recidivism among Forum Sentencing participants with offenders processed through courts, found no significant difference on four outcomes relating to reoffending (Jones 2009; see section three of this report for a further discussion of these results). Further changes were made to the program in 2010, where offences with no direct victim such as possession of prohibited drugs and driving with mid-range blood alcohol concentration were excluded (Hart & Pirc 2012). Following these changes, the 2009 BOCSAR evaluation was recently repeated and again found no evidence that participation in Forum Sentencing reduces reoffending. However, as reoffending is ‘just one of six objectives’ (Poynton 2013: 12) of Forum Sentencing, more comprehensive evaluations are required to determine whether the program is meeting other objectives. More recently, Rossner, Bruce and Meher (2013) conducted an in-depth study of the dynamics of how forum sentencing operates within the courts and identified several factors contributing to ‘successful’ forums and ways in which the process could be improved. Improvements included establishing ‘an active referral pathway’ by the courts, strengthening relationships between Forum Sentencing and police, and identifying respected community members with a connection to the forum participants or case, among others (Rossner, Bruce & Meher 2013).

Victoria

The Youth Justice Group Conferencing program began as a pilot in Victoria in 1995, based on existing provisions in the Children and Young Persons Act 1989. It is now covered by the Children, Youth and Families Act 2005. The conferencing program is coordinated by the Department of Human Services and run by a number of non-government organisations such as Anglicare. Young people appearing before the Children’s Criminal Court, who were aged from 10 to 18 years at the time of the offence, are eligible if they meet other criteria. Participants must have pleaded or been found guilty of offences not including homicide, manslaughter, sex offences or serious crimes of violence. The offence must be serious enough for the court to consider probation or a youth supervision order and the youth must be referred to the program within 12 months of the commission of the offence. If the young person is considered eligible, their sentence is deferred so that they can be assessed for suitability to participate in the program. Failure to attend the conference or lack of participation is reported to the court. At the time of sentencing, the court may also take the behaviour of the young person during the conference, the pre-sentence report and the group conference report into consideration.

An early evaluation of the program found it had positive benefits for young people by diverting them away from supervisory orders and future contact with the criminal justice system (Success Works Pty Ltd 1999). A recent evaluation conducted by KPMG also reported positive outcomes, including that young people who were conferenced were less likely than young people who received probation or a youth supervision order to have reoffended within 12 or 24 months. All participants believed that victim participation led to improved conferencing outcomes and although only a small number of victims were surveyed, most reported feeling satisfied with the process and also felt that the offender would be less likely to reoffend and improve their behaviour. Half of those surveyed felt that the conference helped repair the damage caused by the offence (KPMG 2010). In 2007, group conferencing was extended to cover offenders up to 20 years of age.

In 2008, the Young Adult Restorative Justice Group Conferencing program was piloted for two years, ending in March 2010. The program was based on the Youth Justice Group Conferencing Program and delivered by Anglicare Victoria at the Neighbourhood Justice Centre (Keating & Barrow 2010) and was underpinned by five objectives:

  • improve victim satisfaction with the justice process;
  • promote greater participation by all parties;
  • increase offender awareness of the consequences of their actions and encourage reparation;
  • promote the rehabilitation and reintegration of young adult offenders; and
  • promote community confidence in the justice system.

The Young Adult Restorative Justice Group Conferencing program was open to offenders aged between 18 and 25 years who were living in, or were alleged to have committed the offence in, the City of Yarra. Aboriginal or Torres Strait Islanders with a close connection to the area and who were alleged to have committed the offence in the City of Yarra were also eligible for the program. Referrals occurred through three pathways at both pre- and post-sentence stages:

  • through the existing Criminal Justice Diversion Program as part of their diversion plan;
  • through the Deferral of Sentence provisions of the Sentencing Act 1991 (s 83A); or
  • at the post-sentencing stage through custodial orders, post-release parole provisions and community correction orders (Keating & Barrow 2010).

An evaluation of the pilot was unable to provide definitive conclusions regarding the program’s effectiveness due to low referrals and difficulties in accessing program participants (Keating & Barrow 2010). The evaluation did note that the program needed to function in a different manner than that which was considered successful with offenders aged less than 18 years due to the significant differences between young people and young adults. The latter were considered to have few of the social supports that the program assumed were present, a greater level of offending with no identifiable victim (resulting in low referrals to the program) and they required greater flexibility in the types of restorative justice options available, for example, face-to-face meetings and shuttle dialogue (Keating & Barrow 2010).The evaluation made several recommendations, including to remove the upper age limit such that the program would be available to all adults, expand the program to other courts and consider extending the range of offences dealt with under the program, noting that ‘the greater the harm, the greater the need and opportunity for healing’ (Keating & Barrow 2010: 18).The pilot program ended in March 2010 and at present, group conferencing is not available to adult offenders in Victoria.

Queensland

Community conferencing (now named youth justice conferencing) was introduced in Queensland in 1997 through the Juvenile Justice Act 1992 as a pilot project operating in three locations and providing both a diversionary and a sentencing option. Police could divert young offenders from the court system by referring them to conferencing, or the court could choose to divert or order a pre-sentence conference or indefinite referral as a method of dealing with a charge.

The Community Conferencing Pilot was expanded across the state following the recommendation of an evaluation in 1998 (Queensland Government 2013a). Following changes to the legislation in 2003, the program became the Youth Justice Conferencing program and was subject to amendments, including the removal of victim consent before referring making a referral to a conference. Due to a significant increase in demand, the program underwent further changes to service delivery structure in 2006 to better deliver the program across the state (Queensland Government 2013a).

As there are no limitations regarding the type of offences that can be referred, conferences can deal with a range of offences, such as shop stealing, break and enter, unlawful use of a motor vehicle, wilful damage, arson and assault. Where the offender is an Indigenous youth, the conference convenor must consider asking an elder or respected member of the Indigenous community to attend the conference.

Data reported by the Queensland Department of Communities (Queensland Government 2010), for all conferences held between 1997 and October 2008, indicate a high proportion of both victims and offenders who were satisfied with conference outcomes and who reported the process was fair. During 2012–13, 99 percent of youth justice conferencing participants (including the victim and/or their representative) were satisfied with the outcome (Queensland Government 2013a). A study of the impact of the conference experience on reoffending among a sample of 25 young offenders who participated in conferences in southeast Queensland between 2004 and 2006, found that reoffending was less likely for those young offenders who saw the conference as a positive experience after hearing the victim’s story and realising the impact of their actions (Hayes, McGee & Cerruto 2011).

As at 1 January 2013, following amendments to the Youth Justice Act 1992 (formally Juvenile Justice Act), young offenders can only be referred to a youth justice conference by a police officer; that is, they can no longer be referred to a conference by a court (Queensland Government 2013b).

Conferencing has been available for adults under the Justice Mediation Program (under a number of different titles) since 1992. The program is primarily for adult defendants/offenders with limited or no criminal history.It is predominantly used in relation to less serious offences, such as property-related offences and minor assaults. Mediations may be convened for more serious offences if it would benefit the complainant or victim. Defendants must acknowledge responsibility for their actions to be able to participate. The program is based on restorative justice principles and uses a victim–offender conferencing model. The program is intended to divert defendants or offenders from the criminal justice system and result in less reoffending/recidivism. Offenders/defendants are held accountable for behaviour to the person(s) harmed by their actions. It provides the victim(s) with an opportunity for healing and reintegration with their family (when a defendant or offender is a family member), as well as an opportunity to be involved in the criminal justice process (Department of Justice & Attorney-General personal communication October 2013).

Referrals to the program can be made at any stage of the criminal justice process and are received from courts, police prosecutions, Queensland Police Service officers (with Police Prosecutions’ approval) and the Office of the Director of Public Prosecutions. Participation is voluntary for all parties. The court or prosecuting entity refers matters after conducting eligibility assessments to ensure only appropriate matters are referred. Further extensive assessment and preparation is undertaken by staff to ensure suitability of the parties and for the prevention of re-victimisation. Approximately 300 conferences are conducted each year. Agreement rates are consistently high, as is compliance by offenders with all the terms of the agreement (Department of Justice & Attorney-General personal communication October 2013). The Justice Mediation Program was expanded to Cairns, Townsville and the Gold Coast in November 2007 and continues to operate in these locations.

In 2011, an internal review was conducted to provide an assessment of the effectiveness of the Justice Mediation Program with regard to client and stakeholder satisfaction and the degree of reoffending. The review found that the Justice Mediation Program is effective in achieving a number of important outcomes—high participant satisfaction rates and indicative low reoffending rates. For those participants who responded to the client satisfaction survey, satisfaction rates are high. Indicative reoffending rates found in this review were an average of eight percent, with one location having a rate of 1.5 percent. The review also found that the stakeholders were generally satisfied with the operation of the program, although they did make a number of suggestions for improvement, including increasing the number of locations in which the service is available (Department of Justice & Attorney-General personal communication October 2013).

Western Australia

In Western Australia, if an offence is deemed to warrant more than a written caution, the youth may be referred to a Juvenile Justice Team (JJT). JJTs are based on the restorative justice model and operate statewide to divert young offenders from the criminal justice system. JJTs are multi-agency and involve police officers and representatives from the Department of Corrective Services and the Department of Education and Training, and can also involve representatives of cultural or ethnic communities as appropriate. The family group conference, which involves a meeting of the young person, their parents, the victim, their support persons and family members, and other parties as relevant to either the victim or offender, is considered a major intervention. Participation on behalf of the victim is voluntary, whereas it is mandatory for the parents or guardian(s) of the youth to attend the meeting. A contract, known as an action plan, is negotiated between the young person, their parents and the victim, and outlines the penalty to be imposed on the young person.

There is no limit to the number of times a young person can be referred to a JJT, although teams have the right to recommend that a young person be sent to the Children’s Court if they continue to reoffend. Youths can be referred to the JJTs by police officers of the Children’s Court. For cases referred by the Children’s Court, the matter must be dismissed upon successful completion of the action plan. Where the plan expires or is incomplete, the youth returns before the JJT and either another action plan is designed or a report is sent to the referring authority with suggestions for further action if the matter is unresolved. For referrals from the court or from police officers, successful completion of the action plan allows the youth to exit the criminal justice system without a criminal record, although a formal caution is issued and is recorded on the police database.

Court conferencing is another option available in Western Australia. This operates in a manner similar to that of the family group conference but was developed for more serious or persistent young offenders who would be excluded from the JJT process due to their pattern of offending behaviour. To be eligible, a matter before the Children’s Court must have an identifiable victim, the offender must agree to the referral and the court must determine guilt. The process is similar to that for family group conferencing and results in an agreement or action plan. If an agreement expires or is incomplete, another meeting may be arranged to discuss the youth’s failure to undertake the negotiated terms. If the matter remains unresolved, it is referred back to the Children’s Court. If an agreement is successfully completed, there must be no further sanction imposed upon the young offender by the court.

At the time of Strang’s 2001 report, a pilot project involving the conferencing of adult males had been undertaken at the Courts of Petty Sessions in Perth and Fremantle. Offenders who pleaded guilty were referred to the project team prior to sentencing. For those offenders who were willing to participate in a conference, victims were contacted. Participation was voluntary for all. Once a conference was complete, a report would be prepared for the referring magistrate and consideration would be given to the outcomes of the conference when making a sentencing decision. In a comparison of outcomes following a conference (36 offenders and their victims) with conventional court processes (47 offenders and their victims), it was found that both victims and offenders who participated in conferences were more satisfied, that conferenced offenders were more likely to take responsibility for their actions and that victim satisfaction was not related to satisfaction with the outcome of the process (Beven et al. 2011). Despite the positive results of the pilot study, adult conferencing has not been introduced in Western Australia.

South Australia

In South Australia, the Young Offenders Act 1993 provides for young offenders aged between 10 and 18 years to be dealt with by a family conference. Where the youth has admitted to an offence that does not warrant prosecution and for which there is a victim, and the offence warrants the youth entering an undertaking, a family conference can be conducted by a Youth Justice Coordinator. It is an opportunity for the young person to take responsibility for their actions and to see firsthand how their behaviour has affected others. South Australia is the only jurisdiction in Australia that offers conferencing to young offenders who have committed sexual offences (Daly 2006).

The Adult Restorative Justice Conferencing Pilot ran between mid-2004 and June 2005 in an effort to extend restorative justice practices to adult offenders in South Australia. The model differed from youth conferencing as it was only available post-plea and not as an alternative to formal sentencing (Goldsmith, Halsey & Bamford 2005). Conferences followed the same process as those run for young offenders and included a wide range of offences. An evaluation of the pilot found that although only 12 conferences were completed in the pilot period, there were ‘encouraging indicators’ (Goldsmith, Halsey & Bamford 2005: 4) of the value in extending this option to adult offenders. In particular, high levels of victim satisfaction were reported and many offenders readily accepted responsibility for their actions and readily offered apologies (Goldsmith, Halsey & Bamford 2005). Based on the available information, it appears that the program did not continue beyond the pilot.

A second adult conferencing pilot, the Port Lincoln Aboriginal Conference Pilot, commenced in late 2007. Aboriginal defendants who reside in the area, have family in the local community and plead guilty are eligible to attend a conference prior to sentencing. Conference participants include a police prosecutor, an offender, a victim, supporters of both the offender and victim and respected members of a local Aboriginal community. The meeting, which is facilitated by a conference coordinator and a Baronial Justice coordinator, provides an opportunity to acknowledge the harm done to the victim and for participants to be involved in developing responses to address the offending behaviour. Following the conference, a report is provided to the magistrate to assist in sentencing. The goals of the pilot were threefold:

  • involve members of the community and victims in order to make the offender is aware of the harm caused;
  • encourage contrition and reparation; and
  • support the magistrate’s decision making with information leading to constructive sentencing options.

A review of the pilot conducted during 2007–08 found that it had achieved all but one of its stated aims. It was felt that the small scale of the pilot program was insufficient to influence community confidence in the sentencing process, however, all stakeholders were very supportive of the continuation of conferencing in Port Lincoln and felt that community confidence would increase over time (Marshall 2008). The program combines Indigenous sentencing practices with adult conferencing (Marshall 2008). The program was changed from a pilot to a permanent Courts Administration Authority program in February 2010.

Northern Territory

In the Northern Territory, restorative justice practices such as youth justice conferences are available under the Youth Justice Act 2005 may be offered pre-arrest or pre-trial. The conferences involve a facilitated meeting between the victim and offender, and can also involve family members and persons who are important to the youth, such as teachers and community elders. It is an informal process, which is flexible with regard to different cultural practices, such as for Indigenous participants who may wish to vary the time and place of the conference. The flexibility of the process allows outcomes to be culturally relevant. The conference is carried out by an authority figure who is considered to have the most influence over the juvenile’s behaviour. They are generally facilitated by a police officer from the Youth Diversion Unit but can also be facilitated by an Aboriginal elder or other respected community member, or another suitable person. Efforts are made to ensure that where the youth is of Aboriginal, Torres Strait Islander or other ethnic descent, the conference is conducted in a culturally relevant and appropriate manner. Conferences can have a range of outcomes including, a verbal or written apology, restitution or repair to damage caused by the offender or the imposition of a range of conditions such as attending a relevant program or not associating with certain individuals. An analysis of reoffending outcomes for youth diverted (using warnings or conferences) from court in the Northern Territory between 2000 and 2005 found that diverted youths were significantly less likely to reoffend than those who were sent to court and that the time take to reoffend was longer for diverted youths (Cunningham 2007). The program has not been formally evaluated at this stage but the need to do so was emphasised in the Review of the Northern Territory Youth Justice System (Northern Territory Government 2011).

Australian Capital Territory

On 1 January 1994, restorative justice, in the form of diversionary conferencing was introduced on an experimental basis in the Australian Capital Territory through police-run conferences led by ACT Policing. The NSW Police model that originated in Wagga Wagga in 1991 was adopted. The operation of the police run conferences has been documented in several reports from the Re-integrative Shaming Experiment (RISE) project, which are discussed in more detail in section three of this report. The studies reported positive outcomes on victim and offender perceptions of fairness, victim feelings of safety and on reducing reoffending among offenders who were conferenced following a violent offence (Sherman, Strang & Woods 2000; Strang et al. 2011).

In 2001, the ACT Government outlined its intention to expand restorative justice options for the ACT criminal justice system. After extensive consultation with government agencies and community services, an Issues Paper was released which set out an innovative model of restorative justice. The model was to be underpinned by legislation and on 31 January 2005, the Crimes (Restorative Justice) Act 2004 (the Act) commenced operation. The ACT Restorative Justice Unit is part of the Justice and Community Safety Directorate. Working in partnership with ACT Policing, the Restorative Justice Unit incorporates the operation of ACT Policing’s former diversionary conferencing program.

The ACT scheme is unique and underpinned by principles of restorative justice; beginning with the fact that it is entirely voluntary and victim focused. The Act allows for less serious offences to be referred as a diversion or in conjunction with criminal charges. It limits the referral of serious offences to only after criminal proceedings have commenced and once the offender pleads or is found guilty of the offence. This reflects the commitment to ensure serious offences are dealt with appropriately within the criminal justice system while also providing victims, offenders and their supporters’ opportunities to deal with the personal effects and impacts of crime through restorative justice.

Key points in relation to the ACT scheme include:

  • victim-centric scheme—a process cannot proceed unless a victim or parent of a child victim (or substitute participant for either) participates, as well as the offender;
  • voluntary for both offenders and victims—participants may withdraw from participating at any point in the process;
  • available at every stage of the criminal justice system—from the point of apprehension through to post-sentence;
  • once fully operational, available for both young and adult offenders for less serious and serious offences including family violence and sexual assault-related offences;
  • no restrictions on the number of times a person may be referred; and
  • accepting responsibility for the offence does not prevent an offender from pleading not guilty in court.

The Crimes (Restorative Justice) Act 2004 is designed to be implemented in two phases. The first and current operational phase involves the referral of young offenders aged between 10 to 17 years of age for less serious offences involving a victim. The seriousness of a crime is determined by the penalty it would attract in a court of law. Less serious offences are defined as offences punishable by imprisonment for a term equal to or less than 14 years if the offence relates to money or property and 10 years in any other case such as offences against a person. Phase one excludes the referral of domestic violence and sexual offences to restorative justice.

Phase two will see the scheme expand to include adult offenders, as well as serious offences for both young and adult offenders. Guidelines to provide a framework for the management of domestic violence and sexual offences are currently being developed in consultation with key government and community stakeholders. Once fully operational, it will be available to both young and adult offenders for all types of offences. It sits parallel to the criminal justice system allowing matters to be referred as a diversion from, in conjunction with and separate to criminal proceedings.

Tasmania

A conference is one of the diversionary options available in the three-tiered Tasmanian Youth Diversion Program under the Youth Justice Act 1997. A young person may be referred to a conference by police or the Magistrate’s Court (Youth Division). A youth must admit guilt to be eligible for referral and conferences must at least include a facilitator, the youth and a police officer. Conferences involving Indigenous youths must invite an Aboriginal elder or representative from an Aboriginal organisation. A youth cannot be prosecuted for the offence for which a conference was convened or issued with a caution if they fulfil all obligations agreed to in the undertaking made. Conference outcomes may include an agreement by the young person to apologise, repair damage, undertake volunteer work or community service, or take other steps to repair the harm caused by their actions. Outcomes from community conferences seek to ensure that young people take responsibility, make restoration and reparation, and are deterred from further offending. Young persons who fail to fulfil the agreed undertaking may then be referred to court.

Circle sentencing

Circle sentencing often falls under the umbrella of Indigenous courts in Australia and it is important to distinguish between them for the purpose of this paper. Indigenous courts have been established in New South Wales, Victoria, Queensland, Western Australia, South Australia and the Australian Capital Territory as a means of providing a more culturally responsive and appropriate alternative to the traditional court system. The Indigenous courts seek, among other things, to provide a culturally appropriate process in which Indigenous offenders and their communities can participate. By increasing the cultural relevance of the court process for Indigenous offenders, these courts seek to dispense sentences that are more appropriate and more likely to have an impact on reoffending, thereby leading to a reduction in the rate of Indigenous imprisonment.

As discussed in the first section, such courts may have ‘restorative’ elements; however, they are not necessarily examples of restorative justice, largely due to the focus on offender rehabilitation and the traditional role of the victim in the process. For example, while the ACT Galambany Court is to provide support to victims of crime and enhance their rights and participation, this is not a primary goal at this point in time. It has been argued that although Indigenous courts are in part influenced by both restorative justice and therapeutic justice approaches, they actually belong in a separate category as neither of these approaches reflects the political and ideological objectives of Indigenous sentencing courts (Marchetti 2012; Marchetti & Daly 2007). Further, the goals of such courts are to provide more appropriate sentencing options for Indigenous offenders and in doing so, reduce both the overrepresentation of Indigenous offenders in Australian prisons and future offending. The healing of relationships between an offender, victim and community was not a primary goal of such courts (Marchetti 2012). For the purpose of the current review, only the circle sentencing courts operating in New South Wales and the community courts in Western Australia (which are closer to the ideals of restorative justice as reparation of harm is among their goals and each seeks to more actively involve victims in the process, although all may operate in the absence of a victim), are reviewed in this report.

Circle sentencing is based upon the traditional practices conducted by Indigenous communities in Canada and was reintroduced in 1992 in the Yukon Territory and other Canadian communities, before being adopted in the United States in 1996 (Bazemore & Umbreit 2001). Circle sentencing places the sentencing court in a community setting in order to achieve the following goals (Bazemore & Umbreit 2001: 6):

  • promoting healing for all affected parties;
  • providing an opportunity for the offender to make amends;
  • empowering victims, community members, families and offenders by giving them a voice and a shared responsibility in finding constructive resolutions;
  • addressing the underlying causes of criminal behaviour;
  • building a sense of community and its capacity for resolving conflict; and
  • promoting and sharing community values.

The process is as much about the needs of victims and communities as it is about addressing offending. It is about resolving problems, building stronger relationships and preventing further offending from occurring. The ‘circle’ involves judges, lawyers, police officers, offenders, victims and community members coming together to determine an appropriate sentence for the offender.

Box 1: NSW Circle Sentencing Case Study

An Aboriginal man attended a party where he became abusive, threatened other Aboriginal people and assaulted one female victim. The family hosting the party called the police who agreed to take him home. He abused and assaulted the police officer after entering his own home. The police officer had a close relationship with the offender’s family, particularly with his grandmother.

The Circle discussed these relationships and stressed that the offender’s actions had brought shame on his family, particularly his grandmother. The offender expressed a great deal of remorse about the shame he had brought on his grandmother.

The Circle discussed the offender’s health, as he has some slight brain damage as a result of a previous assault. The Circle learned that the offender had been taking the wrong medication and it reacted with alcohol to make him violent. One Circle member volunteered to accompany the defendant to a psychiatrist to reassess his medication.

The elders in the Circle stressed that violence was not part of Aboriginal culture and that the offender’s violent action was disrespectful to his culture and traditional Aboriginal law.

The Circle and police present at the meeting discussed relations between the Aboriginal community and police. They resolved to discuss ways to improve those relations.

The first assault victim from the party told the Circle about how it hurt her to be treated that way. She also described a number of other incidents where she had been the victim of an assault. The victim was well-known in the community, however, it was the first time she had spoken about the assaults and her experiences.

The Circle members formed a small group and assisted her in receiving victim’s counselling and in making a victim’s compensation application. The victim had also developed an alcohol problem as a result of her experiences and the group has helped her enter an alcohol treatment program.

Sentence

Six months and one week suspended sentence. The elders recommended he maintain contact with his elders and learn about his culture. Elder men in the Circle agreed to teach the offender aspects of traditional Aboriginal men’s law and to assist him to better appreciate his culture.

Outcome

Since Circle Sentencing, the offender has been taking his correct medication and is completing his sentence satisfactorily.

Source: Lawlink NSW 2009

New South Wales

The Circle Sentencing Program was established on a pilot basis in Nowra in 2002. The program has steadily expanded and now operates at nine courts across New South Wales. The program is underpinned by the Criminal Procedure Amendment (Circle Sentencing Program) Regulation 2005. Aboriginal community members and the magistrate determine the appropriate sentence in light of the offence and background issues. Victims can also be involved as well as respected members of the community and the offender’s family. An example of a circle sentence process in New South Wales is set out in Box 1. The example depicts the coming together of the offender, the victim, Indigenous elders, the police officer, a judicial officer and support persons to discuss the offence, the offender’s circumstances and the impact on the victim. As evident in this example taken from Lawlink NSW, Indigenous elders play an important role in reinforcing the incongruence of the offender’s actions with Aboriginal culture and traditional law, and they also recommend an appropriate sentence to the magistrate.

An early evaluation of the program found high levels of satisfaction among the offenders, victims, community representatives, support persons and legal practitioners who had participated (Potas et al. 2003). The evaluation also found there were fewer barriers between courts and Indigenous people, as well as improved support for Indigenous offenders and that healing and reconciliation were promoted alongside support for victims. The program was considered successful and the evaluation recommended that it be expanded to other areas of the state. Notably, the evaluation was based on a very small number of circle sentencing case studies (n=8), of which information on reoffending was only available for four cases. Further, there was no control group and the follow-up periods for the four cases on which reoffending was assessed were either three months or six month, far shorter than the generally accepted norm of two years ‘at-risk’ time.

A further three studies have examined various aspects of Circle Sentencing. Fitzgerald (2008) examined reoffending among Indigenous offenders sentenced through Circle Sentencing and a sample of Indigenous offenders sentenced through the Courts and matched to the Circle Sentencing group on Indigenous status, age at reference court appearance, gender, reference offence, date of reference court appearance, prior proven court appearances and pros imprisonment. The study was skewed towards Circles in Dubbo (40 of the 68 analysed) and the follow-up time (15 months) was relatively short. Taking these limits into consideration, the evaluation found no effects on the frequency of offending, the time taken to reoffend and the seriousness of further offending; however, it was acknowledged that the program’s objectives go beyond reducing recidivism and a qualitative evaluation conducted by the Cultural and Indigenous Research Centre found the program had a number of positive outcomes for the community (including that barriers between Indigenous people and the courts were lowered, perception among participants that Circle Sentencing had an impact on reoffending and changes in offender behaviour such as drug/alcohol use, employment and relationships) and met seven of eight legislated objectives; that is:

  • the format allowed for community involvement;
  • empowered Aboriginal communities in the sentencing process;
  • provided support to Aboriginal victims of crime;
  • increased confidence in the sentencing process;
  • reduced barriers between Aboriginal communities and courts;
  • provided more appropriate sentencing options; and
  • provided effective support to Aboriginal defendants.

This was confirmed in a further evaluation conducted in 2008 (Daly & Proietti-Scifoni 2009).

Western Australia

Although there have been community courts operating in various areas of Western Australia for some time, the first formal Indigenous court began operating in late November 2006 as a two year pilot program. The Kalgoorlie–Boulder Community Court aims to reduce the overrepresentation of Indigenous people in the justice system by employing culturally relevant processes. The court sits within the Magistrates Court. Participants—the defendant, magistrate, lawyers and family members—sit at a table with elders and respected members of the Indigenous community who provide advice to the magistrate on cultural matters. To be eligible, defendants must plead guilty and accept responsibility for their actions. Victims may attend and when they do, are given an opportunity to discuss what they experienced. The court is able to sentence in the same way as the Magistrates Court and can hear the same matters, with the exception of sexual and family violence offences. In 2010, the pilot was extended for a further two years and was to increase the focus on referring a wider range of offenders to the court.

Victim–offender mediation

Victim–offender mediation (VOM), which is sometimes also referred to as victim–offender conferencing, began in Canada in 1974 and refers to meetings between victims and offenders that are facilitated by a trained mediator (Condliffe 2004). VOM usually involves fewer participants than conferences (often just the victim and offender) and is often the only option available to offenders who are serving a prison sentence. It is offered in all Australian states and territories with the exception of Victoria, South Australia and the Australian Capital Territory. While there is no formal VOM service offered in South Australia through the Department of Correctional Services, VOM has occurred previously on an ad-hoc basis. Where a victim approaches the Department with a request for VOM, all efforts are made to accommodate this request (Department of Correctional Services personal communication 2 December 2013). A summary of mediation across Australian states and territories is presented in Table 3.

VOM can occur for a range of offences and only if the offender accepts responsibility and both parties agree to participate. The process provides an opportunity for victims and offenders to discuss the offence, its impact on them and discuss how the harm caused could be repaired. These processes are available for both young and adult offenders in most states and territories and generally follow the same format.

Mediation differs from conferencing options in that these processes generally require victim involvement to proceed, whereas while victims are invited to conferencing, the process can proceed without their involvement. In Australia, VOM often takes place following sentencing, however, it can be offered at other points. For example, in Western Australia, reparative mediation takes place post-conviction but pre-sentence (Victim–offender Mediation Unit 2013a, 2013b). Similarly, Tasmania offers a court-ordered mediation program at the pre-sentence stage. More often than not, VOM is confidential and offenders do not receive a reduction in their sentence.

New South Wales

In New South Wales, restorative justice is also offered at the post-sentence stage through the Restorative Justice Unit within Corrective Services NSW (Milner 2012). The Unit focuses on addressing the needs of victims through a process designed to heal some of the trauma caused by serious offending. The victim–offender conferencing offered by the Restorative Justice Unit operates within a best practice context and is based on key principles of voluntariness, full participation of the victim and offender, well-informed participants who are prepared for process, accountability, appropriateness, responsiveness and safety (Milner 2012). As Milner (2012: 88) notes ‘…there is no incentive for either party to participate, beyond the restorative potential for making things better’. Referral for a victim–offender conference may come from either a victim or offender, with the exception that referrals from sex offenders are not accepted. In such cases, a referral must come from the victim of a sex offence or a psychologist following successful completion of a treatment program (Milner 2012).The conference itself involves the two primary parties—the victim and offender—a trained facilitator and their support persons (which can include professional support for victims and a staff member from Corrective Services NSW to provide support to the offender). A great deal of preparation is undertaken with both primary parties prior to a conference and the offender’s capacity for taking responsibility is assessed as this is a key criteria determining whether a conference will proceed. Emotional and physical safety of participants is also a primary concern and is considered in the assessment of whether a conference is appropriate. An evaluation of the impact of the process on participants is currently being undertaken by the University of New South Wales and will conclude in late 2013 (Milner 2012; Milner personal communication September 2013).

Table 3 Victim–offender mediation in Australia
Program name Legislation Eligible offenders Excluded offences Initiated by Point of referral

New South Wales

Victim–offender conferencing (Restorative Justice Unit)

Not governed by specific legislation

Sentenced adult offenders

None, however, offences must have an identifiable victim

Victim or offender (with the exception of sex offenders)

Post-sentence

Queensland

Post-sentence Justice Mediation

Dispute Resolution Centre Act 1990

Adults (17 years and over)

None

Victim or offender

Post-sentence

Western Australia

Reparative Meditation

Sentencing Act 1995

Young Offender’s Act 1994

Youth and adults

Murder, sexual assault, kidnapping, deprivation of liberty, and domestic violence involving intimate partners

Victim, offender, magistrate/judge, police prosecutor, lawyers, victim support counsellors or Community Corrections/Youth Justice officers

Post-conviction and pre-sentence

Victim–offender Dialogue

Not governed by specific legislation

Youth and adults

Any offence type is referable. Most commonly murder and sexual abuse

Victim only

Post-sentence

Northern Territory

Correctional Centre Conferencing and Ponki Mediation

Community Justice Centre Act 2005

Youth and adults

None, however, generally for very serious offences such as murder and manslaughter

Victim, offender, lawyers, reintegration officers, judges, elders, witness assistance or community members

Post-sentence

Tasmania

Victim–offender Mediation

Youth and adults

None stipulated in legislation, however, most involve indictable offences

Victim or offender

Post-sentence

Court-ordered Mediation

Sentencing Act 1997

Youth and adults

None stipulated in legislation, however, most involve indictable offences

Pre-sentence

Queensland

The Justice Mediation Program (summarised earlier in this section) accepts post-sentence referrals at the request of a victim, victim’s family or offender wishing to meet the other party after the court process runs its course. These requests are generally for very serious offences, for example manslaughter and murder. They require a separate process and may come at any time after sentencing. These mediations are generally case managed and conducted by the senior Justice Mediation Program staff. Usually the offender is in prison or on parole and they do not occur very often (Department of Justice & Attorney-General personal communication October 2013).

Western Australia

Mediation is offered for offenders and victims of crime in Western Australia through the Victim–offender Mediation Unit. The Victim–offender Mediation Unit provides three types of mediation services:

  • Reparative (court-based) Mediation;
  • Protective Conditions Process (a process that seeks to ensure that victims are protected from unwanted offender contact); and
  • Victim–offender Dialogue process.

Reparative mediation is legislated for adults under the Sentencing Act 1995 and available for youth under the Young Offenders Act 1994, which states that the court is able to request the provision of any information that it requires, such as a reparative mediation report. Reparative mediation may be undertaken for any offence with an identifiable victim including robbery, assaults, burglaries, damage and fraud. Offences of murder, sexual assault, kidnapping, deprivation of liberty and domestic violence involving intimate partners are excluded from reparative mediation. The process can only take place once an offender has been found guilty by a court and prior to sentencing (Victim–Offender Mediation Unit 2013a and 2013b). As a result, the court may make decisions regarding the offender’s sentence using the information presented in a reparative mediation report. Both parties must agree to mediation and the process seeks enable the parties to communicate about the offence and its impact, as well as to reach an ‘agreement’ between the offender and victim with the goal of repairing the harm caused by the crime. Outcomes may include and apology, an explanation of the offender’s actions, the return of goods or property, payment for any harm or loss suffered, or any other agreement reached between the parties (Victim–offender Mediation Unit 2013a and 2013b).

In addition, the Department of Corrective Services also offers Victim–offender Dialogue, a post-sentence process that can only be initiated by a victim upon their request to meet face to face with the offender who committed crime(s) against them. Meetings are co-facilitated by qualified and experienced mediation officers working for the Victim–offender Mediation Unit. The process is in place to help a victim cope with the trauma caused by an offender and does not involve financial reparation, nor in many cases an apology. Both parties must be willing and prepared to participate, and participation is entirely voluntary. Victim–offender Dialogue will not proceed in any case where the Victim–offender Mediation Unit determines either party may be placed at risk by participating, including risk of further trauma. Any offence type is referable, with murder and sexual abuse offences the most common. Outcomes of the communication are confidential and as such, are not provided to the releasing or supervising authorities (Victim–offender Mediation Unit 2013b).

Northern Territory

The Northern Territory Community Justice Centre conducts Correctional Centre Conferences, a reintegration scheme for offenders returning to their home communities following incarceration, under the Community Justice Centre Act (NT). Participation for all parties is voluntary and offenders do not receive a reduction in their sentence. Victims may attend with support persons and of the matters held to date, offences have included murder and manslaughter. In the Northern Territory, VOM can also take the form of community-based mediation. The Ponki mediation program, which was established in April 2008, is based on the Correctional Centre Conferencing. Ponki mediation is available in the Tiwi Islands and draws on the influential role played by senior men and women within the families and communities affected. The program encourages accountability and an understanding by the offender of the impact of their actions as a first step in repairing harm and becoming accepted by the community once more (Okazaki 2011).

Tasmania

VOM was established in Tasmania in 2001 with the commencement of Victims Support Services within the Department of Justice. It is open to both juvenile and adult offenders who have committed any offence, although the majority of cases involve indictable offences. VOM may be requested by either party following sentence, however, it usually occurs prior to release from prison. Outcomes may include an apology by the offender and/or an explanation of the offender’s actions, however, Victims Support Services do not get involved in restitution. Further, while VOM is available in Tasmania, it does not take place very often.

A more formal program, set out in the Sentencing Act 1997 also offers court-ordered mediation at the pre-sentence stage. Where a victim agrees, a court may adjourn proceedings in order for mediation to be undertaken following a finding of guilt. Mediation may be undertaken for any offence. A mediation report (either oral or written) describes on the attitude of the offender towards mediation, towards the victim and to the impact of their offence on the victim. It also reports on any agreement made regarding reparation. The court may make decisions regarding the offender’s sentence using the information presented in a mediation report, however, it may also rule the whole, or any part of, a mediation report to be inadmissible. While court-ordered mediation is available in Tasmania, it does not take place very often.