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Legislative Assembly for the ACT: 2004 Week 10 Hansard (Tuesday, 24 August 2004) . . Page.. 4076 ..

The scrutiny of bills committee raised a number of specific concerns. Fundamentally, I think that it is fair to say that we need to find a balance to ensure that restorative justice conferences do not become a means of gathering evidence for a court trial and that a conference does not offer a means for an offender to avoid the standard court process by disclosing evidence or other offences in a protective setting.

The scrutiny of bills committee did raise these issues with the government and the government responded by dealing with quite a lot of the concerns. One of the comments that we made related to the protection of offenders in terms of what they disclose in a conference and the government said in its response—I do not have it with me, but my recollection is that it was to do with clause 41—that that was covered by the bill because it says that the convenor will warn people of potential liability, which deals with those issues.

However, that is not to say that that means that they would have the legal protections that they would have in the criminal justice system. For example, in the Evidence Act protections exist around the use later of something that was not said earlier. For example, if there were an offence and a person did not say that he or she had an alibi, but did say later that he or she had an alibi, under the Evidence Act that person would be protected in terms of being seen as not being a credible witness because he or she had made potentially two different statements. That kind of protection is not there and I do not think that the government is claiming that it is.

That is why I think it is really important that we keep an eye on what we are creating. As I said, the Greens are very supportive of restorative justice and this model as well, but we are interested in keeping an eye on that. We would like to be assured that, should rights be breached, that would be identified as a problem and changes would be made. For example, although one of the benefits of this scheme is to make the restorative process an option from all points along the existing system, some of the problems with rights come about because conferences may be run before a case goes to court. If it emerges that a conference does create problems or is somehow being used as an evidence gathering exercise, I hope that that would be identified by the unit.

The other comment I would make is that this scheme definitely is a victim-oriented scheme that excludes offender aims, which is of concern. However, given the time we had to look at the bill, we could not see how we could amend it without doing a lot of careful work, which we just did not have the time to do in the three weeks following the tabling of the bill. I think that that will mean that there will be some situations where the benefits of adopting a restorative approach may not be part of this system for offenders.

It will be difficult under this scheme to deal with situations in which there is not a victim. In other places there have been successful systems under which a member of the community stands in the victim role. That can be where, for example, a person was apprehended for shooting off an air gun in the suburbs but no-one was actually hurt. We know that in the ACT the offences related to violence had the most successful conferencing outcomes in reduced recidivism. Drink driving is another example of a victimless crime if a drink driver is apprehended before any injuries occur. In fact, there was a conference diversionary scheme for drink-driving, but an evaluation of it found that the results were not good; so, I understand, it was stopped.

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