Australia has established itself as a leader in the effective utilisation of restorative justice, with legislative backing to set up statutory schemes in four jurisdictions, representing a broad social movement that favours restoration over retribution.
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4. Choose a theory of non-adversarial justice and trace its application or influence in a legal process in Australia or internationally. The prevailing view, both domestically and internationally, hold that means of retributive justice, such as tougher punishment or longer prison sentences, are effective means of deterring crime. Whilst in theory, it administers just and proportionate punishment that should deter crime and prevent recidivism, in practice it fails to correct or deter, just as often making things worse.1 Over the last decade, a rehabilitative approach has been promoted as a solution to the failings of the conventional criminal justice system. This form of non-adversarial justice, termed 'restorative justice', focuses on the core values of participation, repair, healing and reintegration of those effected and their community. It seeks to make offenders accountable for their actions, through confronting the harm they have caused a victim, and allowing the victim to contribute directly to the process of seeking remedy and justice.2 Australia has established itself as a leader in the effective utilisation of restorative justice, with legislative backing to set up statutory schemes in four jurisdictions, representing a broad social movement that favours restoration over retribution. History of restorative justice in Australia The term of restorative justice, albeit relatively new, has conceptually existed for several decades, and was derived from many indigenous as well as pre-industrial Western justice traditions. Principles of restorative justice were first used in the 1970's to refer to victim-offender mediation programs in North America, and Western Europe.3 As with its modern counterpart, such programs sought to provide a medium in which those parties to a dispute could come to a resolution, in which there would be an emphasis on reparation. However, it was the New Zealand model that had the most influence in the development of restorative justice in Australia. New Zealand, in 1989 enacted the Children, Young Persons and Their Families Act, to resolve decades of dissatisfaction with the treatment of juvenile offenders, particularly those of indigenous background.4 The act sought
In 1998, the South Australian Police Department developed administrative orders to guide what offences should be directed to conferencing. These include any offence for which the youth has already been formally cautioned, any offence which the police considers desirable for the victim to participate and any offence resulting in a loss of property between $5000 and $25000.21 Given the discretion police have, in conjunction with the power of the youth court to refer cases to conferencing, South Australia has also conferenced a substantial proportion of serious cases including serious assault and sexual assault.22 The way in which conferences are carried out in South Australia are similar to that of the New Zealand approach and to other Australian jurisdictions as discussed above. The Young Offenders Act requires that the offender, the victim and their respective families or supporters, be in attendance with a conference convenor and a representative of the police. In the event no agreement is reached via the conference, the matter is referred to the Youth Court in which a magistrate decides the outcome. New South Wales As previously mentioned, one of the first restorative justice programs in Australia was established in 1991 by members of the New South Wales Police in Wagga Wagga. The program was viewed by many to be problematic in its first few years,23 and as such was succeeded in 1995 by a pilot scheme of Community Youth Conferences, which were operated jointly by the police, the Department of Juvenile Justice, the NSW Children's Court and Community Justice centres. It was not until 1998, following the pronouncement of the Young Offenders Act 1997, that a statutory conference scheme based on the New Zealand model was established.24 Administrative responsibility for the conferencing program was assigned to the Department of Juvenile Justice and began operating in 1998. Under the Act, those eligible for conferencing are persons aged 10 to 17 who commit summary offences or indictable offences, which can be dealt with summarily.
As previously mentioned, one of the pre-conditions for most restorative justice schemes is that the offender must have accepted responsibility for their crimes. Any acknowledgement and/or apology on the part of the offender must be genuine. Some academics suggest one of the biggest problems victims who are confronted with is when an offender who shows no remorse. As a result, they often feel worse after the conference,41 which defeats the very purpose of conference. In such cases, it would be difficult for the victim to feel that justice has been done, and possibly feel further violated by the offender, particularly if the victim feels that the offender is manipulating the process just to get out of conventional court process. Expansion of scope of restorative justice Whilst to date, most restorative justice schemes have been applied to juvenile offenders and minor crimes, many advocates of restorative justice promote the extension of its use to other aspects such as adult conferencing, domestic violence and other gendered harms such as sexual assault.42 Whilst it is suggested that conferencing is best suited to juvenile rather than adult offenders due partly to a desire to try new programs first on less serious offenders, or an existence of a realistic opportunity for intervention, several Australian jurisdictions, as discussed above, have already been using conferencing programs with adults, or for more serious crimes such as sexual offences, indicating willingness, albeit slow, to expand the scope in which restorative justice can apply. Conclusion Whilst the prevailing view still remains that retributive justice stands at the forefront of crime deterrence, the social movement towards non-adversarial justice systems such as restorative justice has become increasingly evident, particularly to make up for the short falls of the conventional justice system. In order for the mechanisms of restorative justice to operate effectively, it must firstly be concerned with vindicating the harms suffered by victims (via retribution and reparation) and only then, consider the rehabilitation of offenders,43 something that can only be ultimately achieved through the victim's direct contribution in the process of seeking remedy and justice.
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