Page 3677 - Week 10 - Tuesday, 18 September 2018
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This threshold has been monitored by the Justice and Community Safety Directorate. In 2016 the directorate became aware that there were concerns among some referring entities about how this threshold should operate in practice, with some referrers considering that formal admissions of responsibility needed to be recorded before a referral could be made.
To address these concerns, the bill introduces a limited “doesn’t deny” threshold to young offenders for less serious offences, which recognises that there may be a range of reasons why a person may not initially accept responsibility for an offence at the point of apprehension. Offenders who choose to be silent or have limited engagement with law enforcement officials would be eligible for a referral as they have not made an outright denial of responsibility for the offence. Young people who access restorative justice via this threshold will be subject to the same suitability assessment as other offenders, meaning they must accept responsibility for the offence for the purpose of participation in restorative justice to be able to engage in a restorative justice conference.
This change strikes a delicate balance between promoting access to restorative justice and providing safe and accountable processes for victims of crime. Importantly, this change has the potential to reduce the number of Aboriginal and Torres Strait Islander young people coming into contact with the formal criminal justice system. The “doesn’t deny” threshold supports police, in particular, to actively make diversionary referrals for young people where their actions at the point of apprehension may be influenced by historically based mistrust of law enforcement.
I turn now to an important change made by the bill which supports victim-led referrals. Under the current legislation, opportunities for victim-initiated referrals are limited by a requirement that referring entities must seek the agreement of an offender to participate in restorative justice and provide them with an explanation of restorative justice before a referral can be made. This means the Victims of Crime Commissioner, as a victim-service provider, cannot utilise their referral powers.
This bill supports post-sentence referring entities, including the Victims of Crime Commissioner, to make victim-led referrals in particular circumstances. Having considered the objects of the restorative justice act, a referring entity may decide that it is not appropriate to notify the offender of the referral in the first instance. Referring entities may also consider that, in all the circumstances, it is not reasonably practicable to notify the offender of their intent to refer.
Once phase 3 is commenced, this referral opportunity will provide additional scope for the restorative justice unit to manage offences of sexual and family violence where power imbalances may mean it is not safe to notify the offender at the point of referral that a referral has been made. The amendments only allow for referrals without prior notification of an offender where the offender has been sentenced.
For the purpose of assessing whether the offence is suitable for restorative justice, restorative justice unit staff will need to have access to relevant information about prospective participants. Existing provisions of the act will be relied on to authorise the provision of information by referring entities.
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