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Problems and some solutions in devising and implementing programs

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

Upscaling problems

There is considerable variability between Australian jurisdictions in the uptake of restorative justice programs, though all States and Territories now have them to a greater or lesser extent. But independent of the level of uptake, there is remarkable consistency across Australia in the pattern of administrative and implementation problems, some of which may derive from the need for carefully and sensitively managed change across the justice system and in the community at large. Usually the program begins with a pilot undertaken by a small group of enthusiasts who perform well: the program is usually evaluated positively with a recommendation for wider use. The reasons for not upscaling the program usually relate to cost (though both formal evaluations and government departments making the decisions are often vague on this subject). Sometimes they relate to concerns about responsibility or 'turf'. Often they concern a generalised sense of uncertainty about the value of the program and a kind of cultural resistance to the restorative approach: this last is as evident in schools and other settings as it is in 'justice'.

Caseflow problems

Those jurisdictions which have implemented restorative justice programs have difficulties in common too. The programs sometimes have very limited eligibility criteria: they are usually restricted to juveniles, sometimes to first or early offenders, and eligible offences are often at the trivial end of the spectrum. This gives rise to criticism about the net-widening and mesh-thinning potential of a third tier of justice between cautioning and court, which is exacerbated when the referring agencies are conservative in the offences and offenders that they are prepared to recommend for these programs. Unlike New Zealand, where referral of juveniles to conferencing is mandated in the Children, Young Persons and Their Families Act of 1989 for all offences up to attempted murder for all admitted offenders, there is no imperative for referral by either court or police in any Australian jurisdiction, nor external oversight as to whether they do so or not. Even in those locations where the police either run the program themselves or have done so in the past, police have not shown great enthusiasm for referral. This difficulty may be an evolutionary one: in South Australia, where conferencing in justice has run longest, an education and training regime for police, specialist police youth officers and courts willing to divert suitable cases has reduced the caseflow problem, with around 17 percent of all juvenile cases now going to a conference (Daly 1998).

Safeguarding rights

Given the risks inherent in any informal justice procedure, there is some anxiety about the potential for the violation of due process protections of offenders (see for example Sandor 1994). These include admitting to offences in the belief that they will receive more lenient outcomes through conferencing, the potential at least theoretically for police intimidation and the lack of appeal mechanisms regarding outcome severity. As a program administrator, Bargen (unpublished) has expressed concern about ensuring that entitlements such as right to legal advice are consistently respected. There is also a potential for victims to be 'revictimised' by taking part in conferences, leaving them more fearful or anxious than before (Strang unpublished).

Restorative justice and Indigenous communities

Perhaps the most controversial aspect of restorative justice programs in Australia concerns the question of their appropriateness and effectiveness in Indigenous communities. Cunneen (1997) summarised the criticisms as follows: a failure of those setting up restorative programs to negotiate and consult with Aboriginal communities and organisations; concerns about the discretionary powers of police over access to programs; inadequate attention to cultural differences; the undermining of self-determination through a tokenistic recognition of Indigenous rights.

Bargen has addressed this subject from an operational point of view. In reviewing the first year of operation of the NSW program in 1999 she observed:

'...disappointingly, but perhaps not surprisingly, the Act is not yet working as it should in Indigenous communities. Cautioning rates and conference referral numbers for Indigenous children and young people remain low in many parts of the state. It is not always possible for an administrator to appoint an Aboriginal convenor in all appropriate cases. Many Indigenous people are still not aware of the existence of the Act nor of the part they can play in its operation nor of its potential to reduce the entry of significant numbers of Aboriginal children into the juvenile justice and ultimately adult criminal justice systems' (unpublished, p 19).

Wundersitz (1996) in her South Australian evaluation also observed that conferences did not appear to be working as well for Aboriginal cases, with around 12 percent of Aboriginal youths failing to appear for conferences. However, she noted that steps had been taken to address some of their special needs: wherever possible an Aboriginal conference convenor was assigned to the case and, rather than attempting contact by phone, these convenors preferred to visit Aboriginal youth and their families at home. Wundersitz suggested that '[T]his face to face contact is important in breaking down some of the mistrust which Aboriginal people often feel towards the criminal justice system, and it makes it easier for the coordinator to identify who, of the extended kin network, needs to be invited to the conference' (p 117-118). Similar efforts are being made in NSW and Queensland too (Strang & Braithwaite forthcoming).

Restorative justice and ethnic communities

Similar problems exist in extending the reach of the new legislation into ethnic communities. The 'structural' criticism of conferencing concerns its inability to address the social causes of crime, while at the same time both referral practices and the conference process itself may favour middle class, articulate participants. Despite the criticisms of Cunneen (1997) and others (see for example Kelly & Oxley 1999) about strategies to involve minority groups, much effort has been made in NSW to rectify this situation: for example, administrators in the Sydney region in 1999 used an innovative recruitment and training method developed in close association with those communities, resulting in an extra fifty new convenors.

Resource problems

Finally, on a practical front, limited financial resources may restrict the expansion of programs unless the political will exists to do so. As observed above, the costing of programs remains vague wherever it has been undertaken, especially in comparison with the alternatives of cautioning and court, though the Queensland evaluation report (Hayes et al 1998) suggested that '[A]t least several million dollars would be needed to fund the program State-wide' (p 60). It also observed that strategic issues needing to be addressed particularly in rural areas included transportation costs of conference participants, the location of conference coordinators and the status of convenors required only on an irregular basis: this is all true, but the same issues have been faced and dealt with, apparently successfully, in New South Wales, for example.

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