Improving the Justice System Response to Sexual Offences: Report (html)

Australian Capital Territory

Established in legislation in 2004. Available for sexual offences since 2018.

In less serious cases, if the person responsible participates in restorative justice (RJ), the police may decide not to file charges.^[1]

Legislation sets out underlying principles/objects and a framework for operation based on a victim-centred approach.^[2]

RJ does not replace the criminal justice system or change ‘the normal process of criminal justice’.^[3]

For most sexual offences, RJ is only available after the person responsible has been charged and has pleaded or been found guilty.^[4]

Outcomes may be considered in sentencing, but the court is not required to adjust a sentence to reflect participation in RJ.^[5]

New South Wales

Since 1999, RJ has been available in a limited way.^[6]

Either the person harmed or the person responsible can request RJ if the person responsible has been found guilty, sentenced, and is serving a sentence, whether in custody or on parole. All legal matters must have been finalised.^[7]

The Restorative Justice Team says RJ is provided in a way that is ‘safe, private and confidential and managed by skilled and experienced facilitators’.^[8] It says it places ‘victims at the centre of the process’.^[9]

New South Wales

RJ is provided by a Restorative Justice Team located within Corrective Services NSW Victims Support Unit.^[10]

No enabling legislation or published operational framework or guiding principles, aside from the information above, which is available on Corrective Services NSW’s website.^[11]

The risk of re-privatising sexual offending is averted because matters are only eligible for RJ following a successful criminal prosecution.

Queensland

RJ conferencing has been available since the early 1990s. It was formerly referred to as ‘justice mediation’ and is still described as mediation in the Dispute Resolution Centres Act 1990 (Qld), under which it can be provided. The Act provides that mediation sessions should be conducted with as ‘little formality and technicality, and with as much expedition, as possible’.^[12]

Referrals may be made by the courts, police, prosecutors or corrective services. Victim survivors, and accused people/offenders through their legal representative, can request RJ.^[13]

RJ conferencing can occur at any stage of the criminal justice process.^[14] Availability as a pre-sentence option is based on the courts’ general powers to adjourn cases.^[15]

Where the matter is before a court, the referrer will decide the best way to proceed, including whether the court process should continue or what impact this will have on the sentence imposed.^[16]

There is no formal governance framework for RJ in Queensland.

Convenors are accredited mediators appointed under the Dispute Resolution Centres Act.^[17] The Act provides that mediators are only eligible for appointment if considered to have relevant knowledge, experience or skills.^[18] Their appointment should take into account ‘the desirability of the mediators appointed reflecting the social, gender and cultural diversity of the general community’.^[19]

The Dispute Resolution Centres Act provides that mediation is voluntary.^[20] Anything said and any admissions are not admissible in legal proceedings.^[21]

The Queensland Department of Justice and Attorney monitors outcome agreements.^[22]

Victoria

The Family Violence Restorative Justice Service was established in 2017 for people who have experienced family violence.^[23] It is run by the Department of Justice and Community Safety.

A published ‘Framework’ contains guidance on principles and processes for best practice RJ for family violence, as well as on program development.^[24]

The Framework describes the following principles as essential elements of RJ for family violence:

• victim-centred

• do no (further) harm

• participation is voluntary

• perpetrator acceptance of responsibility

• appropriate resources and skills

• integrated justice

• transparency of process and outcomes.^[25]

The Framework also says that RJ should be private and confidential.^[26]

The Framework says that RJ for family violence is independent of the ‘traditional justice system’ and ‘should not be seen as a substitute for criminal or civil law processes’,^[27] nor used as a ‘diversionary or perpetrator accountability mechanism’.^[28]

New Zealand

There is no single enabling legislation for RJ in New Zealand. Four separate Acts govern RJ for adults.^[29]

RJ is available for all criminal offences, including sexual offences. The person harmed has a right to request RJ at any point in criminal proceedings. Court staff, police and—where relevant—probation officers, are obliged to refer cases for RJ in accordance with such requests,^[30] although this obligation is not legally enforceable.^[31]

There are no court referrals for sexual offences until after a conviction.

The Ministry of Justice has published a ‘Best Practice Framework’^[32] for the conduct of RJ, and ‘Restorative Justice Standards for sexual offending cases’.^[33]

New Zealand

Since 2014, all District (mid-tier) Court cases, including those involving sexual offences, must be referred for an RJ suitability assessment after a guilty plea and before sentencing.^[34] In addition, all courts have a discretion to refer cases for RJ following a guilty finding (ie a conviction following a not guilty plea) and before sentencing.^[35]

Outcomes of RJ must be considered in sentencing.^[36]

RJ is run by community-based groups, contracted by the Ministry of Justice.^[37]

Project Restore–NZ is an Auckland-based RJ provider that specialises in cases involving sexual harm. It takes court-referred cases as well as community-based referrals.

The best practice framework principles are:

• participation is voluntary

• victim and offender are encouraged to participate fully, although victim must determine their own level of involvement

• participants are well informed

• the offender is held accountable and acknowledges responsibility

• the process is flexible and responsive

• the emotional and physical safety of participants is an overriding concern.^[38]

In addition to the ‘Best Practice Framework’ principles above, RJ for sexual offending must be:

• victim/survivor-driven

• designed both to maximise the opportunity to experience a sense of justice and the chances of healing, and to minimise the chances of harm.^[39]

The independent ‘Resolution Institute’ is funded by the Ministry of Justice to provide training and accreditation for RJ providers.^[40]

The practice model used by Project Restore–NZ involves a convenor plus dedicated support personnel for the person harmed (the ‘survivor specialist’) and the person responsible (the ‘harmful behaviour specialist’), all of whom have an understanding of or backgrounds working in sexual violence. In addition, a clinical supervisor provides supervision and training in weekly case review meetings.^[41]