Page 3678 - Week 10 - Tuesday, 18 September 2018
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Specifically, section 63 of the act already provides that the director-general or their restorative justice unit delegate may ask a referring entity to provide information about a victim, parent of a victim, an offender or anyone else if the information is necessary for the administration of the act. Referring entities must do everything reasonable to comply with this request.
Reliance on existing section 63 to support the provision of information necessary to decide if a matter is suitable for restorative justice has been acknowledged in the human rights analysis in the explanatory memorandum to the bill, as noted in the comments on the bill made by the scrutiny of bills committee.
However, the scope and nature of information, and the purposes for which it can be requested, relying on section 63, will not change, by virtue only of the fact that, where a referral is made without the knowledge of a sentenced offender, section 63 may be relied on to obtain relevant information about that offender. Existing provisions of the act requiring the protection of such information will continue to support the right to privacy of victims or offenders about whom information is obtained from referring entities.
While at this stage referrals without the knowledge of the offender will only be able to occur where the offender has been sentenced, further consultation will be undertaken to consider whether there is scope for such referrals to occur earlier in the criminal justice system 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 the bill which relate to referrals made by the law courts. The amendments clarify that section 27 of the restorative justice act only applies to referrals made by the court prior to the entry of a plea and transfer the 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.
Section 27 referrals trigger additional reporting requirements for the director-general of restorative justice. Currently, the director-general must report to the referring court about the outcome of the restorative justice referral and provide comment about the eligibility of the offence and the suitability of individual participants for restorative justice. The director-general is also required to give a copy of this report to all persons whom the court is aware are a victim, or a parent of a child victim, in relation to the offence.
This bill makes changes to prioritise the privacy of participants in restorative justice processes by removing the requirement for the director-general to report on their individual suitability for restorative justice and instead requiring the director-general to report on the overall suitability of the offence which has been referred. This creates necessary safeguards for victims by reducing the risk that their choice to decline to participate in a restorative justice process will be conveyed directly to an offender.
This bill also amends the requirements placed on the director-general to distribute the report, to ensure that information is only provided to relevant conference participants.
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