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Legislative Assembly for the ACT: 2004 Week 10 Hansard (Tuesday, 24 August 2004) . . Page.. 4085 ..

I think it needs to be reiterated that restorative justice under the scheme that we are debating tonight will only be accessible for less serious offences during the first phase of the scheme. That first phase, which we have indicated we anticipate will last one year, will come about through the operations of clauses 14 (3), 15 (4) and 16 (4). But restorative justice will not be available for any sexual assault or domestic violence offence in the first year. That applies to both young offenders and adult offenders. Acknowledging that, as we have, we have provided that, in its first year of operation, the restorative justice option will essentially extend only to young offenders and not to adult offenders, in any event. As I say, it is anticipated that, as a consequence, in that first year we will not be providing a restorative justice option in relation to sexual assault or domestic violence offences.

For an adult offender in a domestic violence offence, as set out in clause 16 (3) of the bill, restorative justice will only be available if the adult offender pleads guilty to the offence or has been found guilty of the offence. This clause does not distinguish between serious and less serious domestic violence offences. By requiring that, for any domestic violence offence, restorative justice can only be applied if the adult offender pleads guilty or has been found guilty, a more rigorous test than the acceptance of responsibility threshold, which applies generally, will be established.

There is—I need to explain, Mr Speaker—one exception to that. There is an exception at clause 16 (2). It excludes domestic violence offences from pre-court referral conferences, which will be strictly limited just to young offenders. But that does not take effect until the second phase of the scheme, which is set out in clause 16 (4), comes in, and that will be after a year. The rationale for that exception is the recognition that in intra-family violence, violence within families, parents will often resist seeking any intervention for fear of their children becoming caught up in the traditional criminal justice system—a fear that one, of course, would accept as quite natural, in that parents will almost always seek to protect their children from becoming engaged with the criminal justice system.

So by enabling a referral to restorative justice at the pre-court stage, in those situations, an early intervention that may break the cycle of offending becomes possible, and of course that is inherently what we are seeking in relation to restorative justice. We want to break the cycle of offending and that is why we have established the scheme in the way that we have.

In a similar vein, and also not applicable until phase 2, clause 27 (4) will require exceptional circumstances to exist in order to justify referral to restorative justice by a court for serious domestic violence offences allegedly committed by a young offender. In addition, clause 33 (1) (a) will enable the restorative justice unit to determine that an offence is not suitable for restorative justice if it would undermine a policy governing the treatment of particular offences. For example, if providing restorative justice for a family violence offence would undermine the current family violence intervention program, then the unit may entirely, on this basis, decide that the offence is not suitable for restorative justice. We need to understand the significance of provisos such as that in response to the concerns that have been expressed about inclusion within the restorative justice regime. But the prospect is that, after a year, domestic violence and sexual offences will be made part of the scheme.

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