23.138 Restorative justice has been described as ‘a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future’. However, such processes need not involve face-to-face meetings between victims and offenders, and can be used for victims alone or involve representatives of victims. Restorative justice initiatives may be employed at any stage in the criminal justice process, including the sentencing stage. Other stages could include: before or at the time a person is charged; after a person is convicted but before sentencing; and after a person has served his or her sentence. There are a number of restorative justice practices, with the three most common being victim-offender mediation, conferencing, and circle and forum sentencing.
23.139 Restorative justice practices in Australia differ widely in their application to family violence. There are some general limits to, and criteria for, these programs that restrict their application to family violence. In addition, a large number of programs have specific exclusions, either by way of legislation or guidelines, for conduct that might constitute family violence. In particular, it is common for such programs to exclude sexual offences and certain violent offences.
23.140 The Consultation Paper raised questions about the application of restorative justice processes in family violence cases and in relation to sexual assault offences and offenders.
Submissions and consultations
23.141 Many of the submissions in response indicated concern about, or opposition to, the use of restorative justice in family violence cases, and particularly in cases involving sexual assault.
23.142 However, there was some support for the use of restorative justice in family violence cases. One stakeholder argued that it is important to dispel the myths—particularly cultural assumptions and stereotypes—about restorative justice and to have restorative justice recognised as an alternative approach with respect to sexual violence within Indigenous communities. It was argued that such programs could potentially be tailored, with safety precautions and screening processes, and introduced in Victoria for persons of Aboriginal and Torres Strait Islander descent.
23.143 Hannah McGlade commented that, while family violence and sexual assault against Indigenous victims may be serious criminal offences, the criminal justice system often does not respond to them as such. She advocated for the use of Aboriginal justice models to deal with violence and abuse of Indigenous women and children:
Aboriginal customary law has not ceased to exist, although subjected to abuse from colonisation onwards. Violence offences against women and children are a grave breach of Aboriginal customary law, which includes women’s customary law, however, the non-Aboriginal criminal justice system continues to diminish Aboriginal women by supporting violence, often as a matter of ‘culture’. Aboriginal justice models will encourage the revival of our culture and lawful ways that prohibit violence and abuse of women and children.
23.144 Professor Julie Stubbs commented that restorative justice has limited application because it is not a forum for fact finding. In her view, claims made about restorative justice practices assisting victims have been ‘overstated, or not tested’. She noted that most of the evidence is derived from existing models in juvenile justice; and many of these models confine what might be provided to victims to apologies, or to the limited reparations the offender can make. She was of the view that ‘effective justice for domestic violence, sexual assault or gendered harms might reside in hybrid models that are not limited by [restorative justice] or by conventional criminal justice’.
23.145 In the Consultation Paper, the Commissions expressed a preliminary view that the use of restorative justice practices in the context of family violence appears to be fraught with difficulties. The Commissions also suggested that the dynamics of power in a relationship where sexual offences have been committed make it very difficult to achieve the philosophical and policy aims of restorative justice, and that the use of restorative justice practices in that context appears to be generally inappropriate. Many of the comments made in submissions reflected these concerns.
23.146 As noted in the Consultation Paper, the Commissions agree with the Victorian Law Reform Commission (VLRC) that appropriate models of restorative justice must be based on rigorous research. Further research, trials and evaluations had been recommended by the VLRC, the Victorian Parliament Law Reform Committee, and the National Council to Reduce Violence Against Women and their Children. Given current and proposed developments, the Commissions conclude that it is premature to make any recommendations in this area, and that this issue should be revisited at a later stage.
 T Marshall, Restorative Justice: An Overview (1996), prepared for the Home Office—United Kingdom, 5.
 For example, the NSW legislation establishing youth justice conferencing, the Young Offenders Act 1997 (NSW), excludes its application to offences under the relevant family violence legislation (including a breach of a protection order, stalking and intimidation), and to a range of other offences that may constitute family violence.
 Consultation Paper, Questions 11–7 and 11–8.
 Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; P Easteal, Submission FV 40, 14 May 2010.
 Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 69, 2 June 2010; P Easteal, Submission FV 40, 14 May 2010.
 Law Society of New South Wales, Submission FV 205, 30 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Confidential, Submission FV 71, 1 June 2010.
 Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.
 H McGlade, Submission FV 84, 2 June 2010.
 J Stubbs, Submission FV 186, 25 June 2010 (referring to international models).
 Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), 84.
 Ibid; Law Reform Committee—Parliament of Victoria, Inquiry into Alternative Dispute Resolution and Restorative Justice (2009), Recs 72–73. In the Consultation Paper, the Commissions also referred to consultation and planning by the ACT Department of Justice and Community Safety’s Restorative Justice Unit to implement provisions in the Crimes (Restorative Justice) Act 2004 (ACT). These provisions apply restorative justice practices to crimes constituting family violence under ACT family violence legislation.