Page 3506 - Week 09 - Thursday, 23 August 2018
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This change strikes a delicate balance between promoting access to restorative justice for young offenders and providing a safe process for victims of crime. This amendment has particular importance for its potential to reduce the number of Aboriginal and Torres Strait Islander young people who come into contact with the formal criminal justice system. It makes allowance for the potential for historically based mistrust of law enforcement that may influence the response of some young Aboriginal and Torres Strait Islander offenders following apprehension by police.
I turn now to an important change made by the bill which will support victim-led referrals. The current scheme does not support the Victims of Crime Commissioner to make a referral through restorative justice because, as a victim services provider, the Victims of Crime Commissioner does not have the ability to liaise directly with offenders to obtain their agreement to participate in restorative justice or to provide them with an explanation of restorative justice. This contradicts the objectives of the Crimes (Restorative Justice) Act as it limits the rights of victims of offences to make decisions about how to repair the harm done by offences.
The bill introduces significant reforms which will allow post-sentence referring entities, including the Victims of Crime Commissioner, to make a referral to restorative justice where they are satisfied, having regard to the objects of the act, that it is not appropriate or it is not reasonably practicable in the circumstances to notify the offender that the offence is being considered for restorative justice. This amendment will strengthen the Victims of Crime Commissioner’s ability to utilise her referral powers, and provide additional scope for the restorative justice unit, once phase 3 has commenced, to manage some offences of sexual and family violence where power imbalances mean that it is not safe to notify the offender at the point of referral that the referral has been made.
At this stage, the amendments will only allow for referrals without prior notification of an offender where the offender has already been sentenced for the offence. Further work will be undertaken, including consultation with stakeholders, to consider whether there is scope for such referrals earlier in the criminal justice process in ways which support victim-led referrals and at the same time protect the human rights of offenders.
I turn now to the provisions in this bill relating to referrals made by the courts. The courts have the ability to make a referral to restorative justice prior to the entry of a plea before them. These referrals are regulated by section 27 of the restorative justice act. The courts have requested that section 27 of the act be clarified to highlight that it only applies to referrals made prior to the entry of a plea. Where section 27 is triggered, additional reporting requirements are placed on the courts. The amendments introduced by this bill transfer a court’s duty to provide a copy of a court referral order to an offender and victim of crime, to the director-general of restorative justice.
Referrals made under section 27 introduce additional reporting requirements for the director-general of restorative justice. Currently, the director-general must report to the court which made the referral about the outcome of the restorative justice referral, and make comment on the eligibility of the offence and the suitability of participants for restorative justice. The bill makes a change to prioritise the privacy of participants
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