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Introduction

Published in: Restorative justice programs in Australia : a report to the Criminology Research Council
Heather Strang
March 2001

Restorative justice is a term which has recently emerged to refer to a range of informal justice practices designed to require offenders to take responsibility for their wrongdoing and to meet the needs of affected victims and communities. It refers to the restoration of victims, offenders and communities (Bazemore & Umbreit 1994; Brown & Polk 1996) and emphasises the repair of harm resulting from the crime, including harm to relationships (Daly & Immarigeon 1998).

Restorative programs are means of dispute and conflict resolution which are characterised by principles of restorative justice. Although there is a good deal of diversity of form in restorative justice programs, essential to all of them is the principle of direct participation by victims and offenders. Victims have the opportunity for a say in how the offence will be resolved, while offenders are required to understand the consequences of their actions and the harm they have caused. Another essential aspect is the attention given to the context in which the offence occurs: that, in Leslie Wilkins' famous words (1991) '...the problem of crime cannot be simplified to the problem of the criminal.' Bazemore & Umbreit (1995) suggest that a core principle in restorative justice is to balance offender needs, victim needs and the needs of the community as well. Here 'community' is usually seen primarily as the victim's and offender's 'community of concern' (Braithwaite & Daly 1994), that is those people in the lives of the victim and offender who care most about them, though it may encompass the broader community in which the offence took place as well.

A definition of restorative justice which has become widely accepted has been offered by Marshall (email, Marshall to McCold 1997), who describes it as 'a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.' Braithwaite (1999) suggests that this can be refined so that those 'with a stake' in the offence are defined as the victim(s), the offender(s) and the affected community, which includes the families of the principals. In summary, Van Ness (1993:259) suggests that restorative justice rests on the following principles:

Although the concept of restorative justice has a lineage derived from many indigenous as well as pre-industrial Western justice traditions, the term was first used in its modern sense in the 1970s to refer to victim-offender mediation programs established in North America and now widely used in Western Europe as well. They aim to provide a process of resolution between the principals in a dispute, under the auspices of a mediator, with an emphasis on reparation. Parties other than the victim and offender are rarely present (Marshall and Merry 1990), the program is usually restricted to juvenile offenders and involves collaboration between police, probation and welfare agencies. Often the mediator meets separately with the offender and victim; sometimes the principals do not meet face-to-face at all. Although mediation is used in civil matters in Australia, principally in the Family Court, it has not been used extensively in criminal matters.

In Canada, circle sentencing emerged during the 1980s as a First Nations method of responding to offenders and is now used in a number of northern communities and to a lesser extent in urban settings too. It involves offenders, victims, the families of each and other community members in a discussion of the circumstances that underlie the causes of crime and is built on principles of mediation, indigenous peacemaking processes and consensus decision making (Stuart 1996). These programs have been criticised for their dependence on mainstream court processes and personnel in their operation (LaPrairie 1995). However, the manner in which the broader community engages in the process has allowed a greater understanding of the ways in which those beyond the principals can be involved in restorative justice.

Meanwhile in New Zealand, decades of dissatisfaction with the treatment of juvenile offenders, especially those of Maori background, led in 1989 to the introduction of the Children, Young Persons and Their Families Act, which set out radically new principles and processes for youth justice in New Zealand. It also established new procedures for dealing with child protection issues. The Act aimed to include elements of traditional Maori practices of conflict resolution, principally the direct involvement in the resolution of the offence of both the offender and the victim and their families and supporters, with the objective of healing the harm caused by the offence. The Family Group Conference was the mechanism by which these practices were delivered. The intention was to provide a forum for those most affected by the offence, rather than the state, to resolve the conflict.

Restorative justice programs in Australia, resting on the principles outlined above, are mostly based on the conferencing model developed in New Zealand. They are usually seen as most suited for dealing with juvenile rather than adult offenders. This may be an evolutionary aspect of these interventions: in New Zealand, for example, after more than a decade of experience with juveniles, programs are being extended to adults. Even in the three jurisdictions where adult conferencing is taking place (Queensland, Western Australia and the ACT), the great majority of those selected remain young offenders. It may be that, with growing confidence in the effectiveness of restorative justice programs, they may become more commonly used for adults as well.

As well as being used at various points in the criminal justice system, restorative justice programs are also employed in Australia to limited extents in a variety of other settings. In care and protection matters the restorative characteristic of the intervention refers to the active engagement of the extended family and friends in arriving at decisions affecting family members. In schools, programs have been developed primarily to deal with incidents of bullying, though they are also used in the resolution of staff disputes. Programs are also being used in the resolution of workplace disputes in the corporate sector. However, in Australia they remain primarily a justice intervention, usually as a diversion from court, though with some post-sentence applications, including in prisons. Although a variety of diversionary programs, including cautioning, Drug Courts and some initiatives in the Family court may be broadly labelled 'restorative', this paper restricts its coverage to programs involving meetings of victims, offenders and communities to discuss and resolve an offence. It deals primarily with developments in the use of these programs in 'justice', but there will also be reference to the state of play with programs in these other settings.

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