The Australian criminal justice system has come under criticism for incarcerating growing numbers of people. With recidivism rates closing in on fifty percent – meaning nearly half of those released from prison are back within 2 years – many believe a punitive system that produces “revolving door” criminals can’t be the answer.
But, there are alternatives.
Restorative justice is an approach to dealing with crime that has a focus on rehabilitating the offender through reconciliation with the victim, and other family members and friends. The practice gives the victim a voice in the justice process, which empowers them, as well as providing the offender with an understanding of the impact of their actions and a direct avenue to make amends.
This form of justice has traditionally been practised in Indigenous cultures. But in the modern setting, it began to emerge in New Zealand in the early 1990s, as an effective way to deal with juvenile offenders using family group conferences to assist in repairing the harm caused by crime.
In Australia, restorative justice was pioneered by NSW police Terry O’Connell and John McDonald, who worked with ANU’s John Braithwaite in the 1990s. Today, restorative justice programs are operating throughout the country.
Restorative justice in Canberra
The ACT Restorative Justice Unit (RJU) was established on January 31 2005, and it operates in accordance with the ACT Crimes (Restorative Justice) Act 2004. During the year 2015 to 2016, the RJU received a total of 120 referrals, which involved 295 offences, 152 offenders and 206 victims.
A typical restorative justice conference involves a meeting between the perpetrator of a crime and the victim, as well as any other affected parties, such as family members. The meeting can be face-to-face or indirect, depending on the needs of the participants.
These meetings are attended by a trained professional, who guides the participants through a structured dialogue. The conversation addresses the nature of the offending behaviour, the impact on those harmed, and what’s required to reconcile the matter and prevent further harm.
An offender is given the choice of whether they want to participate in the restorative justice process, and the form of reparations carried out afterwards varies from case to case.
In 2014, international research led by Cambridge University found that this process benefits both the victim and the offender. And it can lead to a 55 percent reduction in reoffending rates for some offences, compared to when the same offence is dealt with in the criminal justice system.
The ANU Centre for Restorative Justice is a world leader in the theoretical research into restorative responses to crime. The centre is part of the university’s School of Regulation and Global Governance (RegNet).
Sydney Criminal Lawyers® spoke with Dr Miranda Forsyth, Associate Professor at the Centre for Restorative Justice, about the theory behind restorative justice, its application at the RJU, and how restorative principles can be integrated into the wider community.
Firstly, Miranda, broadly speaking, how would you describe what restorative justice is?
Broadly speaking, restorative justice involves seeking ways for all people who have been affected by an injustice to discuss how they’ve been hurt by it, to heal those hurts, to repair relationships, to take responsibility for reform, and prevent reoccurrence of that harm.
And what is the theory behind it? How does it work?
Restorative Justice is based upon explicitly recognising the importance of relationships in the way individuals, communities, state and international institutions grow.
One of its strengths is that it engages individuals and communities in taking responsibility for managing conflict in restorative ways, and also seeks to invest the wider governance structures with the same principles.
The Restorative Justice approach challenges the traditional punitive focus of western criminal justice that results in a relative exclusion of the victim from the process and disengages the offender from both the consequences of their actions and their circles of support.
Restorative Justice also creates avenues for raising awareness about more structural and systemic factors that have led to the harm in particular cases, rather than just focussing upon the individuals concerned.
On average, restorative justice processes leave both offenders and victims more satisfied with their interaction with the justice system. It’s substantially cost-effective. It reduces victim post-traumatic stress, reduces their fear and their desire for revenge.
And there’s been a number of meta-analyses that have found statistically significant effects for lower re-offending where there are restorative justice approaches used.
The ACT Restorative Justice Unit has been operating in Canberra since January 2005. What sort of success has the centre had? And why isn’t it better known around the rest of the country?
It is quite well-known. Canberra is seen within the international restorative justice community as being one of the leading centres for restorative justice in the world.
I’ve attended a number of different conferences – in Halifax and other places – and really Canberra is seen as being one of the leaders in restorative justice.
In 2010, the Australian Law Reform Commission described the ACT’s restorative justice legislation as being the most comprehensive and ambitious restorative justice legislation in Australia.
The establishment of the ACT RJU followed ten years of experimentation with restorative justice in many domains from drink driving to business fraud.
As you said, the RJU started work in 2005. That was phase one that focussed on juvenile offenders. Then phase two commenced in 2016, and that included offences committed by adults, with the exception of domestic and family violence, and sexual offences. But those offences are anticipated to be included as of 2018.
What sort of offenders are sent to the RJU today? How do they get the opportunity to appear there?
They have to be assessed as being suitable for restorative justice. And they need to have accepted responsibility for their crimes. So people that are disputing that they are criminally liable, then that’s not appropriate. It’s only someone who says, “Yes. I did it.”
And it used to be only juvenile offenders. You’re saying now it’s broadened its scope to include adult offenders?
That’s right, since 2016. And that’s consistent with what’s happened in other parts of Australia as well. Whereas Canberra was an early adopter, other states have moved forward to adult offenders more quickly than the ACT.
So these sort of programs are operating in the rest of the country as well?
Yes. Restorative justice programs have operated across all states and territories starting in 1991.
And what’s it like during a restorative justice conference? What happens?
There’s an opportunity for the people who’ve been affected by the harm – it may just be the victim, or it may be other people as well – to explain how the harm has impacted on them.
So for example, they may say if they were a victim of a break-in, how that has traumatised them. Every time they come back to the house, they’re afraid that they might find someone there. So they’re able to express all of that and to have the offender hear what they’ve got to say.
Then there is an opportunity for the offender to explain how they have responded to hearing what the victim has said. And to have a discussion about what can be done in order to make both parties be able to move forward.
And in regards to the offenders, what sort of outcomes has the program had? And what happens after the conference?
There’s a range of different outcomes. Generally, offenders can undertake to do certain rehabilitative programs.
So for example, go to anger counselling, to work on substance abuse programs, to payback compensation for harm that was caused, or else, make a donation to charity if that’s what the victim would prefer.
There’s really a lot of very creative possibilities that can be utilised. And it very much depends on the circumstances of the case.
Are victims usually willing to attend these meetings? And for those that do, what’s the general consensus afterwards?
It varies on whether the victim wants to do it or not. Some victims are not interested at all. And they say, “We don’t want to ever see this person.” So it’s not for everybody.
The important thing is that restorative justice is an alternative approach that some offenders and some victims can find helpful. But it’s certainly not something for everybody, and there’s never any obligation for anybody to do it.
The overall response from victims is positive after they have engaged in one of these conferences. The evidence is that they feel less stress, less desire for revenge, and they also have an increased perception that procedural fairness and rights were respected.
They very much appreciate being given a voice in the process, rather than being excluded, as tends to happen in the normal criminal justice process.
So these programs are operating Australia-wide, where else in the world are they being carried out?
They’re operating almost all over the world. In every Canadian province. Thirty two states in the USA have now got statutory support for restorative justice, and all the other states have got non-statutory programs. And another place where it’s being used a lot is in New Zealand.
Restorative justice was initially used a lot in the criminal justice system and also in schools. But now it’s really expanded enormously. It’s being used in a whole range of different sectors.
In universities. In the health sector. So Canberra, for example, is just setting up a restorative hospital. That’s at the University of Canberra.
Internationally, it’s also being used a lot in child protection, reconciliation after war and dealing with sexual harassment, for example on university campuses.
The latest movement has been the concept of a restorative community, or a restorative city. Where entire communities are saying, “We’re going to commit to adopting a restorative philosophy, across all sectors.”
That’s what I was going to ask next. Back in 2015, a Restorative Communities Conference took place at the ACT Legislative Assembly, hosted by then-ACT attorney-general Simon Corbell.
What does that mean in broader terms for the wider community?
Canberra is working towards establishing itself as a restorative city, in the way in which cities – such as Whanganui in New Zealand, Hull, Leeds, Bristol in the UK, Halifax, Canada and Vermont, USA – have all declared themselves restorative cities.
And the idea is that restorative approaches are used in the health sector, in family services and education. There’s a lot of sharing of insights about restorative approaches across these sectors and support for people to use these approaches.
Because, what happens sometimes is people might have been supportive of adopting a restorative approach, but if a crisis comes up, people say, “No. This is too dangerous. This is too problematic. We have to go back to our old punitive approach.”
So it’s very important that you’ve got a whole city saying, “We want to support each other in going forward in a restorative way.” Then that can help to create that resilience, when there are those signs of push back.
And lastly, how far along is Canberra on the way to becoming a restorative city?
In February 2016, the ACT Legislative Assembly called on the government to work towards the declaration of Canberra as a restorative city. Then in August 2016, the ACT attorney-general requested the ACT Law Reform Advisory Committee to enquire into and report on the legal dimensions and the priorities for achieving this.
That’s at the state level. But then, at the community level there has been the Restorative Communities Network that has been established by a number of different partners. And they’ve held a series of different workshops looking at how restorative approaches are used in different sectors.
They’ve looked at the disability sector, the health sector, the aged care sector, the criminal justice system, the education sector and most recently restorative approaches to gendered violence. That’s a continuing process. So there’s a network of individuals, groups and institutions that are all interested in how a restorative approach can be used in their sector.
Dr Forsyth thanks so much for taking the time to speak with us today. And best of luck with the continued success of the restorative justice initiatives in Canberra.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.