One widely accepted definition of restorative justice is ‘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.
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. 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.
The most ambitious restorative justice legislation in Australia, the Crimes (Restorative Justice) 2004 Act (ACT), makes specific provision for restorative justice practices to apply (in the case of both young and adult offenders) to crimes constituting family violence under its family violence legislation. However, these provisions are part of the ‘second phase’ of the restorative justice program, and to date have not been brought into effect. The Restorative Justice Unit of the ACT Department of Justice and Community Safety is currently consulting and planning for this second phase. The ‘first phase’ of the program applies to ‘less serious offences’ committed by young offenders. The restorative justice program in the ACT is broad, operating at every stage of the criminal process and enabling multiple agencies to refer cases to such processes.
The Victorian Law Reform Commission (VLRC) has considered the use of restorative justice practices in the context of family violence and sexual offences. In its review of family violence, it concluded that establishing a restorative justice model in relation to family violence depends on the development of appropriate models based on rigorous research.
Time for Action concluded that the perceived benefits of and concerns about restorative justice have not been adequately tested because gender-based violence has been almost entirely excluded from restorative justice processes in Australia and internationally. The National Council recommended that trials should be undertaken and evaluated, ‘with necessary caution … to explore the utility and suitability of restorative justice for cases of domestic and family violence and sexual assault’.
The Commissions’ preliminary view is that the use of restorative justice practices in the context of family violence is fraught with difficulties, and any use of such practices in that context requires extremely careful thought and preparation. These difficulties have, to date, caused family violence to be excluded from the scope of a number of restorative justice practices, or to be subject to additional protocols. If restorative justice practices are to be used in the family violence context, the Commissions’ preliminary view is that these should be implemented only after extensive community consultation in the development of protocols by restorative justice professionals, as the Restorative Justice Unit in the ACT is currently doing.
The use of restorative justice practices for sexual offences, however, appears to the Commissions to be inappropriate generally. 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 in that context. The Commissions consider that restorative justice processes carry a high risk of secondary victimisation for victims of sexual offences. Nevertheless, in view of the availability of conferencing for sexual assault in certain jurisdictions, the Commissions are interested in hearing about the experiences of participants. The Commissions are also interested in hearing whether conferencing is appropriate for a limited class of sexual offences or offenders and, if so, what safeguards are necessary or desirable.
The Commissions agree with the recommendations of the VLRC that appropriate models need to be ‘based on rigorous research’. Further research was recommended by the VLRC and the Victorian Parliament Law Reform Committee. As well, the Restorative Justice Unit in the ACT is presently exploring the application of restorative justice processes in the context of family violence. Further trials and evaluations were also recommended by the National Council to Reduce Violence Against Women and their Children. In the Commissions’ view, in light of these current and proposed developments it is premature to make proposals in this area. This issue should be revisited at a later stage.
The Commissions are interested, however, in views from stakeholders as to the appropriateness or otherwise of restorative justice in the context of family violence, including whether it is appropriate for particular types of conduct or categories of people. If it is appropriate at all, the Commissions are interested in hearing what safeguards are necessary to ensure both the safety of the victims and the efficacy of the practice.
Question 11–7 Is it appropriate for restorative justice practices to be used in the family violence context? If so, is it appropriate only for certain types of conduct or categories of people, and what features should these practices have?
Question 11–8 Is it appropriate for restorative justice practices to be used for sexual assault offences or offenders? If so, what limits (if any) should apply to the classes of offence or offender? If restorative justice practices are available, what safeguards should apply?
T Marshall, Restorative Justice: An Overview (1996) Home Office—United Kingdom, 5.
Crimes (Restorative Justice) Act 2004 (ACT) ss 16(1), (2).
Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), 84.
National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children,
2009–2021 (2009), Rec 4.5.2.