Page 3505 - Week 09 - Thursday, 23 August 2018
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were actively embraced by the new referring entities, with more than 315 adult offenders being referred to restorative justice between February 2016 and June 2018. During this period, phase 2 referring entities have actively engaged with the restorative justice unit and identified a number of opportunities to improve the operation of the restorative justice scheme, including by removing legislative barriers which limited their ability to use their referral powers under the Crimes (Restorative Justice) Act 2004.
Today’s bill highlights the government’s continued focus on prioritising the justice needs of victims of crime. Referring entities have spoken, and the government is introducing these reforms in response to issues they have raised following the implementation of phase 2.
These reforms, once passed, will allow more victims of crime to access restorative justice if and when they need or want it, providing greater agency for victims of crime navigating the criminal justice system. I would like to thank the referring entities: ACT Policing, the courts, child and youth protection services, the Director of Public Prosecutions, Corrective Services and the Victims of Crime Commissioner for their input into these reforms.
A key change made by the bill is to one of the eligibility criteria for a referral of an offence for restorative justice. Under the current scheme, when making a referral through restorative justice, referring entities are required to conduct an assessment of each required participant’s capability to agree to participate in the restorative justice process. The ACT Supreme Court expressed concerns about the ambiguous nature of this process in the 2016 case of R v Forrest. Then Justice Refshauge identified that referring entities were being required to draw indirect references about the capability of a potential participant to agree to participate in restorative justice where the participant was not before the courts. The bill removes the requirement for a referring entity to assess a potential participant’s capability to agree to participate in restorative justice prior to making a referral. Instead, this assessment will be conducted at the suitability assessment stage by dedicated expert staff in the restorative justice unit. These amendments simplify referral processes for referring entities and ensure that participants are subject to a consistent assessment process conducted by officers with experience and training in restorative justice practices.
Another key change made by the bill is another amendment to the eligibility criteria for referral. Currently, for an offence to be referred to the referring entity, they must be satisfied that the offender accepts responsibility for the commissioning of the offence. The change made by the bill will allow for young offenders who have been charged with a less serious offence to be referred to restorative justice where they do not deny responsibility for the commission of an offence. This is a subtle but significant reform which recognises that there may be a range of reasons that a person may not accept responsibility for an offence at the point of apprehension. Young offenders who access restorative justice under this modified threshold will be subject to the same suitability assessments, once the referral has been made, as other offenders, meaning that they will need to accept responsibility for the offence for the purpose of participation in restorative justice for a restorative justice conference to take place.
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