What is restorative justice?
Restorative justice is a relatively new form of justice that attempts to refocus on the impacts of criminal offending to repair harm, rather than taking punitive measures.
The key tenants of restorative justice are:
- Collaboration; and
These principles inform the restorative justice process. Both offender and victim must freely agree to participate and they must fully understand the nature and purpose of restorative justice.1
Purposes of restorative justice
Rather than punishment being about rectifying a violation of law, it is focused as a way of repairing harm caused between individuals.
Restorative justice fosters communication between the individuals most impacted by an offence. By discussing the harm caused by offending, victims can hold the offender accountable for their actions. In contrast to victim impact statements, restorative justice is a dialogue which enables offenders to take responsibility for their actions. Having each party collaborate increases participants’ satisfaction in the criminal justice system.2
Restorative justice has proven to have a greater reduction in offending than traditional criminal justice approaches and participants in the scheme typically take longer to reoffend.3
The ACT is one of the leading Australian jurisdictions on restorative justice. Since 2018, all ACT offences are eligible for restorative justice scheme.
Various ‘referring entities’, including the police, Magistrates Court and Sentence Administration Board, can refer offenders and victims to the restorative justice scheme.4
Am I eligible for restorative justice in the ACT?
Offenders do not have to plead guilty to the offence however, they are required to accept responsibility of the offence.5 Participants must be at least 10 years old when the offence was allegedly committed.
When determining whether an offender is suitable for restorative justice, the referring entity will consider:6
- Personal characteristics (i.e. age, gender)
- The nature of the offence (level of harm caused)
- Any potential power imbalance
Both the victims and the offenders have to be considered ‘suitable’ to be eligible for restorative justice.
Depending on the circumstances, ACT Police, Director of Public Prosecutions and the Courts can choose to continue to progress the matter through the criminal justice system as well as restorative justice.
In the ACT restorative justice can occur before and after sentence depending on the circumstances of the offence.
The restorative justice process
A convenor is appointed by the Community Services Directorate. They are responsible for facilitating the conference.
Other participants can be invited by the convener if necessary. These can include the relevant police officer, a parent, family member or anyone else the victim or offender considers to provide emotional or practical support.7
The conference can occur in a number of formats, including:
- Face to face meeting
- An exchange of written or emailed statements
- Exchange of videos
One of the primary objects of the restorative justice system in the ACT is coming to an agreement. The outcome of the agreement must be fair to both the victim and offender.8 An agreement can include:
- An apology
- A plan to deal with the offending behaviour
- A work plan for the benefit of either the victim or the community.
The agreement must be in writing and signed by the offender and the victim.9
There is no obligation to participate, and the Court cannot increase an offender’s sentence because they choose not to participate. For less serious offences, statements made regarding the offence made during a restorative justice conference cannot be admitted in Court proceedings. The Court can however, consider statements made when sentencing the offender.
In New South Wales, restorative justice is facilitated through the Restorative Justice Unit within Corrective Services. Victim-offender conferencing only occurs after sentence. In order for an offender to be eligible for restorative justice they must have taken responsibility for the offence.
Unlike in the ACT, restorative justice in NSW is only eligible for matters where either the offender or the victim are over 18 years old (youth justice conferencing is available for juvenile offenders). Both victims and offenders can refer themselves to the restorative justice scheme.
In determining whether the offender is suitable for restorative justice, the following factors are considered; the offender’s acceptance of responsibility, level of remorse, feelings towards the victim and any safety issues that need to be considered.
Conferencing can occur in various manners, including letter exchanges and face to face meetings. A convenor is responsible for ensuring that all participants are comfortable and fee safe throughout the process.
1 Australian Bureau of Statistics, Restorative Justice Initiatives Public opinion and support in NSW February 2012 (Issue 77).
2 Australian Bureau of Statistics, Restorative Justice Initiatives Public opinion and support in NSW February 2012 (Issue 77).
3 Australian Bureau of Statistics, Restorative Justice Initiatives Public opinion and support in NSW February 2012 (Issue 77).
4 Crimes (Restorative Justice) Act 2001 (ACT), table 22.
5 Crimes (Restorative Justice) Act (ACT), s 19(1)(b)(i).
6 Crimes (Restorative Justice) Act (ACT), s 33.
7 Crimes (Restorative Justice) Act (ACT), s 44.
8 Crimes (Restorative Justice) Act (ACT), s 51.
9 Crimes (Restorative Justice) Act (ACT), s 52.