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.
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 establish a type of 'conferencing' or 'family conferencing', encompassing characteristics of traditional Maori practices of conflict resolution and law, most notably the direct involvement of both the offender and the victim and their respective families and supporters, with the objective of healing the harm caused by the offence.
The Australian model of restorative justice borrowed heavily from the conferencing model developed in New Zealand, and was introduced into the Australian juvenile and criminal systems in the early 1990's.5 In 1991, in the city of Wagga Wagga, New South Wales, the police were the first to embrace the concept of 'conferencing' in the face of increased crime rates amongst juvenile offenders. Later to become the "Wagga model" internationally, it borrowed characteristics from the New Zealand model, but in the form of conferences that was run by police officers.6 Following the "Wagga model', the remainder of the States tried conferencing on a pilot basis, which shall be discussed in detail later.
What is restorative justice?
Restorative justice seeks to be a means of diverting offenders, particularly youths, away from the trappings of the conventional criminal justice system, by offering them an opportunity to attend a conference to discuss and resolve the offence, instead of being charged and appearing in court. Whilst it was never intended to be a substitute for the conventional system, in most jurisdictions, it does exist as an alternative, in which referrals are made pre-court by the police, or by the court as a sentencing option.7
Whilst the methods and processes of restorative justice schemes, such as conferencing, may vary from State to State, and particularly internationally, it's fundamental purpose is to allow a discussion between an offender, who admits to the offence, and the victim, in the presence of their respective families or supporters, and either or both a police officer and a conference convenor. This is vastly different to the conventional adversarial approach in court, as methods of restorative justice allows for a 'story telling' phase, followed by discussions and negotiations. Here the offender is asked to account for their offence, including such aspects as the description of circumstances leading up to the offence, and what they were thinking and/or feeling at the time.8 The victims are then given a chance to describe the impact of the offence against them, which may include any emotional or physical harm sustained.9 Family members and supporters on either side are then asked to comment on how the entire incident has affected them.
The conference then moves to a discussion, where all participants engage in a negotiation and develop an agreement by consensus as to how the offender can make it up to the victim for their offence. The sanctions or reparations encompassed in the agreements may include verbal and written apologies, paying some form of monetary compensation, working for the victim or doing other community work,10 in addition to a commitment to not re-offend. However, it must be noted that, such a process is only restorative, to the extent that both the offenders and victims are interested in repairing the harm.11
Aims of restorative justice.
In Australia, whilst the concept of restorative justice is relatively new and thus has no real agreed definition, there is a general sense as to what its purpose is. Restorative justice seeks to emphasise the repair of harms and ruptured social bonds resulting from crime or other kinds of conflict.12 Such notions of repair are characterised by restoring the property loss or the personal injury, in addition to the restoration of any adverse emotional or psychological effects caused by the offender to the victim as a result of the crime. It achieves this by translating a dispute or incident into a system of conferencing, which focuses on the relationships between the disputants, or between crime victims/offenders, their families, communities and the societies that they live in.13 This is achieved by encouraging the offender to acknowledge the harm they have caused. The offender in such a situation is confronted with the effect of their crime, and can accept responsibility in the face of the victim. Additionally, the offender is able to offer a sincere apology to their victims.
Such a restorative process seeks to provide a victim with several common benefits. Stubbs in her paper on restorative justice14 lists several desired outcomes including: repairing the harm, the chance to receive an apology, reparation, healing and/or empowerment, the opportunity to tell one's story, respect, participation in the process and in decisions about the outcome of the matter, the change to learn about the offender and the offence and in doing so to become less angry and/or less fearful and/or the chance to improve or restore the relationship. All these desired outcomes ultimately seek to alleviate any disempowerment ...
This is a preview of the whole essay
Such a restorative process seeks to provide a victim with several common benefits. Stubbs in her paper on restorative justice14 lists several desired outcomes including: repairing the harm, the chance to receive an apology, reparation, healing and/or empowerment, the opportunity to tell one's story, respect, participation in the process and in decisions about the outcome of the matter, the change to learn about the offender and the offence and in doing so to become less angry and/or less fearful and/or the chance to improve or restore the relationship. All these desired outcomes ultimately seek to alleviate any disempowerment the victim feels as a result of the 'indignity of being a victim of crime',15 by allowing the victim to contribute directly to the process of seeking remedy and justice.
Offenders on the other hand, could not be said to have suffered any real harm, but for the shame of their crimes. A restorative justice approach would likely seek to restore the dignity of offenders, by allowing them to accept responsibility and apologising with sincerity.16 Braithwaite in his article Restorative and a better future17 draws a distinction between shaming via stigmatisation, used by conventional justice systems and reintegrative shaming, applied in restorative justice. He holds the stigmatisation is the kind of shaming that makes problems worse. It is disrespectful and humiliating, as it treats criminals as evil people who have done evil acts. On the other hand, reintegrative shaming essentially seeks to separate the person from the act, such that whilst the act of the offender is condemned, the offender, as a person is not. By doing so, makes it easier for the offender to acknowledge their crimes and have greater empathy with their victims. This allows for a greater deterrent effect, than any retributive punishment such as stigmatisation. Additionally, claims have been made about other various benefits for offenders who attend conferences, including: the opportunity to be involved in the process of determining the outcome, to explain and make amends, to apologise, to gain an increased understanding of the victim, to be understood by others, which may also lead to reduced recidivism.18
Restorative justice schemes in Australia
Australia first began trialling a restorative justice program in 1991 in the state of New South Wales. However, it was not until 1994, that South Australia was the first state to enact legislation to recognise a restorative justice scheme. Since then, all the remaining Australian states and territories (with the exception of Victoria) have introduced diversionary legislation for young offenders that apply restorative justice conferencing.19 The following contains a detailed examination of the various restorative justice programs operating in the various states of Australia.
South Australia
South Australia became the first Australian jurisdiction to implement a statutory conferencing scheme after the enactment of the Young Offenders Act 1993. Since its implementation, both the police and the Youth Court refer a large number of young offenders to a conference for their crimes. South Australia sought to adopt the New Zealand model of conferencing, where conference programs are run by specially trained professionals. The conference administration is managed by 'The Family Conference Team of the South Australian Courts Administration Authority'20 and does not fall within the jurisdiction of the South Australian police. In accordance with the Act, conferencing is available for juveniles, aged 10 to 17 who commit a 'minor' criminal offence. However, it should be noted that the Act does not provide any definitions as to what a 'minor' criminal offence is.
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. Offences such as sexual offences, offences causing death, certain drug offences, and some traffic offences are not covered by the Act.25 Referrals can be made either pre-court by the police or by the court as a sentencing option.
Despite the fact that the NSW's conferencing program is run primarily by police, problems still remain in terms of the low number of referrals from police. In order to counter such issues, there are 80 or so police specialist youth officers for each Local Area Command in NSW, whose responsibilities are to identify cases to be referred to a conference.26
Queensland
Community conferences were first introduced to Queensland in 1997 and were administered by the Department of Justice and Attorney-General upon amendments to the Juvenile Justice Act 1992. One particular difference to other statutory schemes was that before a case could even be referred to a conference, it was required that the young offender admit to the offense and the victim's consent be acquired for the matter to be resolved via a conference.27 In 1998 administration shifted to the QLD Department of Communities, which funds all programs and trains and accredits all conference convenors. Additionally the requirement of victim consent was removed following further amendments to the Act in 2003.28
In accordance with the Act, participants are to include the offender in addition to a family member, the victim or their representative together with a victim supporter, the referring police officer and two conference convenors.29 What is interesting however is that whilst juveniles are referred under the Act, the QLD program also accepts referrals for adult offenders, under an administrative arrangement with the police.30
Western Australia
Following the enactment of the Young Offenders Act 1994 in Western Australia, 'Juvenile Justice Teams' were established in partnership with the Ministry of justice, police and the Education Department, to convene restorative justice conferences involving young offenders, their parents, victims and their supporters, and police. Under the Act, only offenders who 'accept responsibility for the act or omission constituting the offence' may be referred to a Juvenile Justice team by the police or the Youth Court. Conferencing in Western Australia is typically used for juvenile offenders aged 10 to 17, and tends to be used for first time offenders and minor offences such as simple assault, theft and burglary.31
Victoria
Victoria is the only Australian jurisdiction without a statutory conferencing scheme. In 1995, the Juvenile Justice Group Conferencing Pilot Program was established by Anglicare Victoria based on provisions of the Children's and Young Persons Act 1989.32 The Victorian program whilst administered by the Melbourne Children's Court, is also overseen by various other bodies such as the Department of Human Services, Victorian Police, Legal Aid and the Department of Justice.33 Like other jurisdictions, it is modelled on the New Zealand family group conferencing program, and involves the offender, their family, the police, legal representatives and community members. Victims have the choice to attend or not, and may be represented.
A key feature that differentiates the Victorian system is that this process is not used in minor or trivial matters, but acts as a serious diversionary measure to prevent young offenders at risk of progressing through the conventional justice system. By doing so, serves to address the offending behaviour as the process empowers them to develop a plan with the intention of alleviating recidivism.
Tasmania
Tasmania, similarly to New South Wales Wagga program, was originally set up as a police-run scheme in 1994. In February 2000, upon the proclamation of the Youth Justice Act 1997, Tasmania has been running a 'dual system', where conferences are operated by the police using the community conference process to administer formal police cautioning as a means of primary diversion for young offenders.34 Referrals are made by police, for offenders aged 10 to 17 who have admitted their offences. Like Queensland' s Juvenile Justice Act, there are no upper limits on the types of offences that may be referred to conference, but much more serious crimes may be excluded. The Act requires the attendance of the offender and their guardians or relatives, the victim and supporters, a representative from the police, and anyone else whom the conference facilitator believes may be able to participate.
Northern Territory
The Northern Territory formally established conference scheme since 1999, labelled a 'post-court detention diversion program', which was essentially a court referred conference program for young offenders, as an alternative to custody.35 However, such a alternative is only available to second time property offenders, aged between 15 and 17. Those who refuse to take part are found guilty, and automatically given a 28 day custodial sentence.
Does restorative justice work?
Over the past decade, many evaluations have been performed on various restorative justice programs around the world. Two of the largest studies on the successfulness of restorative justice schemes were conducted on Australian programs. These included Canberra's Re-Integrative Shaming Experiments (RISE) project and the South Australian Juvenile Justice (SAJJ) Research.
RISE Project
The RISE project commenced in 1995, with an aim to measure the impact and successfulness of restorative policing on offenders' and victims' perceptions of procedural justice, in addition to offenders' post-conference behaviour.36 RISE gathered data on various offences that could be conferenced, such as drink-driving, juvenile property crime (personal and organisational victims) and juvenile violent crime. RISE found that:37
* Offenders reported greater procedural justice (defined as being treated fairly and with respect) in conferences than in court;
* Offenders reported high levels of restorative justice (defined as the opportunity to repair the harm they had caused) in conferences than in court;
* Victim's sense of restorative justice was also high for those who went to conferences rather than to court; and
* Conferences more than court increased offenders' respect for the police and law.
SAJJ Research
SAJJ differs from RISE in that it SAJJ's primary focus was on conferences that used the New Zealand model, rather than the Wagga model. It sought to determine whether conferences did actually promote procedural and restorative justice elements and how conferences affect participants in the future.38 SAJJ found that:39
* Conferences received high marks by members of the conference groups, which consisted of police, coordinators, victims and offenders, with regards to measures of procedural justice. These included being treated fairly and with respect, and having a voice in the process.
* There was relatively less evidence of any restorativeness.
* Despite the fairness of conferences, there were limits on the offenders' interests to repair the harm and on victims' capacities to see offenders in a positive light.
* Conferences reduces victims' anger and fear.
* Majority of victims, one year later, said that the conference was worthwhile and satisfied with how their case was handled, and that they had fully recovered from the incident.
Generally
Luke and Lind, in their article 'Reducing Juvenile Crime: Conferencing versus Court',40 summarised the research with respect to individual schemes. In Victoria, they found that conferencing provided no significant difference in re-offending as compared to probationary measures issued by the courts. In South Australia and New Zealand, evaluations found lower rates of recidivism, but only when the offender showed genuine remorse and participated in the negotiation of the outcome/agreement. In New South Wales, they found that offenders who appeared before the youth justice conferences for property and violent crimes were less likely to re-offend when compared to similar offenders appearing before court. Such evaluations tend to show encouraging signs that schemes of restorative justice are in fact achieving their aims of restoration and harmony.
Unsuitability of restorative justice
Whilst there are many encouraging factors that point to the success of restorative justice techniques, in many cases, its use, or proposed use may be unsuitable or a failure. 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.
Bibliography
Australia Institute of Criminology, Restorative Justice, http://www.aic.gov.au/rjustice - last accessed 17/9/07
Bargen J., 'Kids, courts, cops and conferencing: a note on perspectives', Australian Journal of Human Rights, No.2 pp. 209-228, 1996
Braithwaite, J., 'Restorative justice and a better future', Dalhousie Law Review, 17th October 1996
Daly, K., 'Restorative Justice: Moving past the Caricatures', Institute of Criminology, 1998
Daly, K., Hayes, H., 'Restorative Justice and Conferencing in Australia', Australian Institute of Criminology - Trends & Issues in crime and criminal justice, No. 186, 2001
Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2
Palk G, H Hayes & T Prenzler 1998, 'Restorative justice and community conferencing: summary of finding from a pilot study', Current Issues in Criminal Justice 10(2): 138-155.
Strang, H., 'Restorative Justice Programs in Australia', Report to the Criminology Research Council, 2001
Stubbs, J., 'Restorative Jusice, Domestic Violence and Family Violence', Australian Domestic & Family Violence Clearinghouse, Issue 9, p. 3
Braithwaite, J., 'Restorative justice and a better future', Dalhousie Law Review, 17th October 1996, p 3
2 Strang, H., Braithwaite, J. 'Restorative Justice and Family Violence', Cambridge University Press, 2002
3 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 129
4 Strang, H., 'Restorative Justice Programs in Australia', Report to the Criminology Research Council, 2001, p.4
5 Australia Institute of Criminology, Restorative Justice, http://www.aic.gov.au/rjustice - last accessed 17/9/07
6 Ibid.
7 Strang, H., 'Restorative Justice Programs in Australia', Report to the Criminology Research Council, 2001, p.8
8 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 136
9 Ibid.
0 Daly, K., Hayes, H., 'Restorative Justice and Conferencing in Australia', Australian Institute of Criminology - Trends & Issues in crime and criminal justice, No. 186, 2001, p.2
1 Ibid at p.2
2 Daly, K., 'Restorative Justice: Moving past the Caricatures', Institute of Criminology, 1998, p.2
3 Ibid.
4 Stubbs, J., 'Restorative Jusice, Domestic Violence and Family Violence', Australian Domestic & Family Violence Clearinghouse, Issue 9, p. 3
5 Braithwaite, J., 'Restorative justice and a better future', Dalhousie Law Review, 17th October 1996, p 3
6 Ibid at p.7
7 Ibid.
8 Stubbs, J., 'Restorative Jusice, Domestic Violence and Family Violence', Australian Domestic & Family Violence Clearinghouse, Issue 9, p. 3
9 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 135
20 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 137
21 SAPOL General Order 8980, 1998.
22 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 136
23 Bargen J., 'Kids, courts, cops and conferencing: a note on perspectives', Australian Journal of Human Rights, No.2 pp. 209-228, 1996
24 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 137
25 Strang, H., 'Restorative Justice Programs in Australia', Report to the Criminology Research Council, 2001, p.7
26 Ibid at p.8
27 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 138
28 Ibid.
29 Strang, H., 'Restorative Justice Programs in Australia', Report to the Criminology Research Council, 2001, p.15
30 Palk G, H Hayes & T Prenzler 1998, 'Restorative justice and community conferencing: summary of finding from a pilot study', Current Issues in Criminal Justice 10(2): 138-155.
31 Strang, H., 'Restorative Justice Programs in Australia', Report to the Criminology Research Council, 2001, p.19
32 Ibid at p.10
33 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 143
34 Maxwell, G., Hayes, H., 'Restorative Justice Developments in the Pacific Region: A Comprehensive Survey', Contemporary Justice Review, Vol. 9, No. 2, p. 141
35 Ibid at p. 142
36 Daly, K., Hayes, H., 'Restorative Justice and Conferencing in Australia', Australian Institute of Criminology - Trends & Issues in crime and criminal justice, No. 186, 2001, p.5
37 Ibid
38 Ibid
39 Ibid
40 Luke, G. & Lind, B. 'Reducing Juvenile Crime: Conferencing versus Court', Crime and Justice Bulletin, No. 69, New South Wales Bureau of Crime Statistics and Research, 2002, pp. 2-3.
41 Wemmers, J., 'Restorative justice for victims of crime: A victim orientated approach to restorative justice', International Review of Victimology, Vol. 9, No. 1, p. 52
42 Braithewaite, J, & Daly, K., 'Masculinities, violence and communitarian control' in T. Newburn and E. Stanko (eds) Just boys doing business? Men, masculinities and crime, Routledge, London.
43 Daly, K., 'Restorative justice: the real story', Punishment and Society, Vol. 4, No. 1, pp. 58
