Improving the Justice System Response to Sexual Offences: Report (html)

9. Restorative justice for sexual offences

Overview

• Restorative justice enables people who have been affected by a crime, including the person responsible, to communicate about the damage that has been caused and work together to repair it.

• There is strong support for making restorative justice available in Victoria, as an additional justice option alongside the criminal justice system. Everyone agrees it must be done safely and well.

• This chapter sets out a restorative justice scheme with guiding principles for sexual violence cases. It includes recommendations on:

– how to manage the risks of using restorative justice for sexual violence

– the relationship between restorative justice and the criminal justice system

– who should govern and have oversight of the restorative justice scheme.

Why restorative justice?

9.1 People who have experienced sexual violence have a range of justice needs. Being believed, feeling in control, having a voice—these are what many victim survivors want from justice but too often do not get.

9.2 The criminal justice system is central to the response to sexual violence, but not every victim survivor wants the person who harmed them to go to prison. Even if that is what they want, most reports of sexual violence do not result in convictions.

9.3 We discuss this ‘justice gap’ in Chapter 1. In this chapter, we explain how restorative justice can help fill the justice gap. Restorative justice supports people involved in or affected by a crime ‘to heal and put things as right as possible’.[1]

9.4 Making restorative justice available is a way of expanding the justice options for some people who have experienced sexual violence. In many cases, it will not be possible or appropriate.[2] But while restorative justice may not be the right option for most, for some it can be powerful.

9.5 It allows people who have experienced sexual violence to speak and be heard. They can influence the process. Their sense of self can be restored.[3]

9.6 For people responsible for sexual violence, restorative justice provides a way to take responsibility. They can acknowledge the effects of their actions, apologise, and do what the person harmed asks to make amends.

Ailbhe Griffith’s story

Ailbhe Griffith’s experience, and the restorative justice process described here, took place in Ireland. The man who assaulted Ailbhe was charged, convicted, sentenced and imprisoned. Ailbhe requested the restorative justice process after his release from prison, while he was under post-release supervision. It was facilitated by a restorative justice organisation. Ailbhe was separately supported by an independent restorative justice practitioner with sexual violence expertise.[4]

_________________________________________________________

There is one man alive in this world today that I have met only twice in my life … once, when he violently sexually assaulted me and the other, when we sat on opposite sides of a round table wishing each other a successful future …

I would consider the journey that I have undertaken to be a cycle of healing. It began … when a man followed me, physically attacked me, sexually assaulted me, repeatedly choked me and threatened to kill me…

The following months and indeed years I was submerged in the depths of post-traumatic stress … I kept repeating and repeating and repeating the assault in my mind. I couldn’t stop it … I was just stuck there …

I began to imagine sitting face-to-face with him … Could I ever accept that he was a human? … An interesting thing about humans is that they are much less scary than monsters … Fear of monsters can control us; fear of humans is much less likely to …

I wanted him to see that I was a human too … I wanted to let this man know how I had experienced his assault on me and the full implications of this event on my life …

I wanted him to hear about the fear and shock I felt as he assaulted me; I needed him to know how confused I was about his rage towards me …

I wanted him to be aware of how a victim of sexual violence becomes a piece of physical evidence after such an assault and how de-humanising that experience is. I wanted him to hear me speak about the post-traumatic stress disorder, the depression, the eating disorders, the shift in my perception of reality—all of it … [And] I needed to ask him some questions. These were questions that only this man could answer …

[During the preparation phase for restorative justice,] it became clear to me that the man I was hoping to meet had very little empathy for me, if any … Additionally, it became clear that an apology from him was out of the question. Finally, I was made aware [by the facilitators who were working with him] that he was willing to answer my questions … but that he would only speak the full truth and would only be ‘real’ about it. All of this was acceptable for me …

As I walked into that room I was met with a sheepish, and a very human half-smile … My fear of this man suddenly began to evaporate …

I did not hold back in telling this man what it felt like to me during his assault of me. I did not gloss over the aftermath … All the while I was able to look directly at him with no real fear.

[I told him I needed] to see him as a human so that I could let go of the remaining negativity that I felt towards him. I let him know that sitting in front of him, hearing him speak to me … was causing this to actually manifest.

I told him that I hoped he was now [able] to see me as a human and that perhaps he might remember this moment in the future and realise that others are human like me too …

Finally, I was given the opportunity to ask the … questions that had been lingering in my mind for all these years. I asked him whether he did intend to kill me … He told me ‘no’, but it could have happened accidentally when he was choking me … I asked him [why he did it]. Again, the answer I received was truthful, forthright and as understandable as it could ever be coming from behaviour that is so deeply irrational.

I thanked him and told him that it helped because I could now put [the] jig-saw pieces together and that left me with a full and clear picture of things. I believe that I could never have let go until I could see this for myself.

As the meeting came to an end … I said goodbye. The moment I stepped outside that room … I felt physically lighter …

[F]ollowing our meeting, I received a message through one of the facilitators indicating that this person wanted to say that he was very sorry for the pain he caused me … I could never have imagined that happening, but because I have met him, I do believe that he means it.

I am continually processing the enormous impact that this meeting has had on me … I can honestly say that I’m still just in awe of the powerful nature of restorative justice …

I have concluded that the man I met … is a human rather than a monster. [He] is no angel, but he’s also not a devil. The man I encountered did not really wish to be the way he was, and he had a strong desire to do something ‘good’ by meeting with me …

now … I feel nothing but compassion and pity for him … and truly I wish him all the best in his future life. …

[The experience] has … changed the reaction I have when I think of the violence of that night all those years ago. When I think back now I am automatically catapulted into my restorative justice meeting with him, and therefore … it actually generates a feeling of contentment. This is a dynamic that I could never have imagined occurring … before this meeting, the memories I had equalled emotional pain, a strong feeling of disempowerment, fear, de-humanisation and an intense hatred for the offender.

But now, when I think back to that night, the memories of it generate a strong feeling of empowerment, fulfilment and compassion for this man. I know that for me, no amount of therapy could ever have achieved that.

What forms can restorative justice take?

9.7 Restorative justice can take many forms, including:

• an exchange of letters between the person harmed and the person responsible

• engagement between the person harmed and a representative of an institution, where the violence occurred in an institutional context, such as a church or school[5]

• conferences with the person harmed and the person responsible, like Ailbhe Griffith’s experience. These can also include counsellors or professional support people, a trained facilitator, and sometimes other family or community members.

9.8 The restorative justice scheme we recommend allows for flexible processes. It does not limit restorative justice to a particular format, but conferences are common and they are our focus in this chapter. Participants can decide whether they want to be involved. They are screened for suitability, and there is careful preparation before the conference.

9.9 At a conference, the person who experienced sexual violence can explain how it affected them and how they want the person responsible to make amends. Other people who were affected and the person responsible have an opportunity to speak.

What is an ‘outcome agreement’?

9.10 Often conferences aim to produce an agreement (the ‘outcome agreement’) on what will be done to prevent future violence and promote healing. For example, the person responsible may enrol in a treatment program to address the causes of their offending, stay away from places or gatherings where the person harmed will be, give a written apology, or pay the person harmed compensation.[6]

Figure 15: Restorative justice conference flow chart[7]

Restorative justice for sexual offences has strong support

9.11 Other jurisdictions have seen the value of restorative justice in sexual offences and now practise it. It is supported by positive program evaluations and recent inquiries. Many people we heard from during our inquiry expressed support for it if it is done well. For all these reasons, we are convinced it is time to make restorative justice an option for sexual offences in Victoria.

Where is restorative justice for sexual offences used?

9.12 For adult sexual offending in Australia, restorative justice can be used in:

• the Australian Capital Territory, where it is governed by a legislated framework

• Queensland, where it is based on a dispute resolution model plus the courts’ general powers to adjourn cases

• New South Wales, but only in a limited way (after a criminal conviction and while the person responsible is serving their sentence).

9.13 Appendix E provides an overview of restorative justice for sexual offences in Australia and New Zealand where the person responsible is an adult.

9.14 The Queensland Government recently announced it will expand access to restorative justice, acknowledging its potential ‘to deliver improved outcomes for victims, offenders and communities’.[8]

9.15 Several European countries provide restorative justice for adult sexual offending, including Belgium, Denmark and Norway.[9] Other countries where it can be used include England and Wales, Ireland, Canada and New Zealand.[10]

9.16 Most states in the United States offer some form of restorative justice but exclude sexual offences.[11] Arizona’s ‘RESTORE’ program was one of the earliest restorative justice programs for sexual offences, running from 2003 to 2007.[12] It was positively evaluated and became a template for ‘Project Restore—NZ’.[13]

9.17 Two examples are often cited as best practice: Project Restore—NZ and the Australian Capital Territory.[14]

9.18 In Australia and overseas, restorative justice principles are widely used in youth justice, but not usually for sexual offences. Restorative justice conferences are available for youth sexual offending in Belgium, England, the Australian Capital Territory and South Australia.[15] In Victoria, restorative justice conferences can be part of treatment programs for children and young people displaying harmful sexual behaviours, as we discuss below.

What do evaluations of restorative justice suggest?

Restorative justice can benefit the person harmed

9.19 Evaluations indicate that, for criminal offending generally, restorative justice meets various justice needs.[16] It is viewed by many victims of crime as ‘fairer, more satisfying, more respectful, and more legitimate’ than what the criminal justice system offers.[17]

9.20 There have been only a few small evaluations of restorative justice for sexual offences, but they show there can be powerful benefits for the person harmed. A 2016 review considered evaluations of fifteen restorative justice programs that all dealt with sexual offences. The review found participation in restorative justice was ‘very beneficial’ for the people who had been harmed where programs met certain conditions. These conditions included providing safety and being responsive to their needs.[18]

9.21 In a study facilitated by the South Eastern Centre Against Sexual Assault (SECASA), eight people who had experienced sexual violence said restorative justice should be made available to other victim survivors.[19] The mother of one participant said the process had:

enabled her to live her life, it was a part of the process that stopped her taking her life.[20]

9.22 A 2018 New Zealand evaluation found four of six people whose cases involved sexual offences ‘felt better’ after the process and ‘more positive’ about the criminal justice system generally.[21]

9.23 In all these evaluations, restorative justice was only beneficial for people who had experienced sexual violence if their needs were catered for and they felt safe. In addition, when restorative justice was positively evaluated, the person responsible for the violence was usually receiving independent support or therapeutic treatment.[22]

Restorative justice can benefit the person responsible and reduce reoffending

9.24 The benefits of restorative justice are not limited to the person who was harmed. Evaluations indicate it can help people responsible for violence to better understand the impact of what they did. It gives them a meaningful chance to take responsibility and make amends.[23]

9.25 Another benefit of restorative justice is that it appears to reduce the likelihood of reoffending. Reoffending is higher among people who committed violent crimes that were dealt with solely through the criminal justice system.[24]

9.26 By reducing repeat offending, restorative justice may help reduce the burden that sexual offending puts on the criminal justice system.[25]

What have recent inquiries said about restorative justice?

We endorsed restorative justice in our Victims of Crime report

9.27 In our report on The Role of Victims of Crime in the Criminal Trial Process (the Victims of Crime report), we recommended making restorative justice available for all indictable (serious) offences. For these offences, we said it should be available alongside criminal processes and should not be used to divert people from criminal prosecution.[26]

9.28 Our recommendations reflected support from people we consulted with and submissions we received, and research showing high levels of satisfaction with restorative justice conferencing among victims of crime. We found restorative justice gave victims ‘a more supportive and flexible forum for active participation’ than the criminal justice process.[27]

The Royal Commission into Family Violence endorsed restorative justice

9.29 The Royal Commission into Family Violence also endorsed restorative justice. It was told that restorative justice can provide a forum for women to be heard on their own terms and acknowledged, and where the perpetrator can be held accountable. It concluded that restorative justice processes could ‘meet a broad range of victims’ needs that might not always be met through the courts’.[28]

9.30 The Royal Commission recommended setting up a pilot program and restorative justice framework for family violence.[29] The Victorian Government did this. After being successfully piloted, the Family Violence Restorative Justice Service is now ongoing.[30]

Restorative justice for sexual harassment has support

9.31 The Australian Human Rights Commission (AHRC) recently suggested using restorative engagement in a truth-telling process for people with past experience of workplace sexual harassment. It said that ‘there is a healing power in having one’s experience heard’.[31]

9.32 In its submission to the AHRC’s review of sexual harassment, the Victorian Equal Opportunity and Human Rights Commission supported making restorative justice available for sexual harassment complaints. It is developing restorative engagement pathways for sexual harassment cases.[32]

What did people tell us about restorative justice?

For me restorative justice would have been beneficial … I had and still have, many questions I would like answered and would gladly agree to meet the offender if it was offered to me today.

Not all victims will want to or benefit from meeting with the offender but I think it should be discussed and available.[33]

9.33 Many people we heard from in our inquiry supported making restorative justice an option for sexual offences. They stressed that it must be done well and governed by best practice principles.[34]

9.34 Support came from people who have experienced sexual violence, and from sexual assault and family violence services and representative organisations. It came from people working in the criminal justice system. Victoria Legal Aid, for example, said that restorative justice has some of ‘the greatest potential to effect positive change in the [justice system’s] response to sexual offending’.[35] We also spoke with restorative justice practitioners who described its transformative power.[36]

Restorative justice can meet needs that the criminal justice system cannot

9.35 We were told that restorative justice should be an option because the criminal justice system was not designed for victims of crime and could not meet all their needs.[37]

The flow-on effects are huge and I don’t think people who offend realise what those flow-on effects are. My children have had to change their surnames, I’m now financially ruined, my children have lost educational opportunities, and they will always be marginalised as a result of the offending. My children have lost their friends, and I have lost friends.

There should be a space to have a dialogue with the offender around what those broader implications have been.—‘Marie’[38]

9.36 The Victims of Crime Commissioner said:

Alternative forms of participation or alternative justice responses—such as restorative justice—can meet more of victims’ most commonly articulated needs, including participation, voice, validation, vindication and offender accountability.[39]

9.37 Domestic Violence Victoria told us that restorative justice can provide ‘an opportunity to be heard’. They said that restorative justice ‘should be available as victim survivors do not often get the opportunity to be heard during the criminal justice process’.[40]

9.38 A victim survivor who had been to court felt that if she had used restorative justice, she ‘would have at least been able to tell the truth of what happened’, even if the accused denied the assault.[41]

Restorative justice gives people more choices

Restorative justice ‘is a great idea—as many opportunities for victims to heal as possible should be offered to them to allow choice, and control over the choices … It’s very important that victim survivors have control over what happens, because as victims they haven’t had control.’—Cecilia[42]

9.39 Deborah, another victim survivor of sexual assault, thought restorative justice sounded risky but said, ‘It is good for people to have options.’ [43] Another person said restorative justice might be a ‘more supportive, less scary’ option than running into the people who had sexually assaulted her and having to speak to them on her own.[44]

Restorative justice provides another form of accountability

I would like to see access to restorative justice for those who want this pathway and ways to safely do that, and for people to have choice if that is additional to prison time … or for victims who don’t want their perpetrator to go to prison for them to also have that choice.[45]

9.40 As Sexual Assault Services Victoria pointed out, ‘justice looks different to different people’. They explained:

Often a [victim survivor] may just want the perpetrator to understand the impacts of their behaviour, acknowledge the crime and/or offer an apology. They may not necessarily want the offender to serve jail time.[46]

9.41 The Victorian Aboriginal Legal Service (VALS) noted the desire in some Aboriginal communities for a process:

where the offender is held to account, not with the result being a prison sentence, but rather … an acknowledgement of the harm that the offender has caused the victim.[47]

9.42 Several victim survivors who responded to our online form said that they would have liked to use restorative justice. One person did not want the person responsible to go to prison but wanted them to ‘realize the gravity of their actions’. She felt that restorative justice processes might be more likely to achieve this. Another person, a parent, said she supported it because even with a conviction ‘the person won’t necessarily change for the better’.[48]

Restorative justice can be healing

9.43 In the experience of Sexual Assault Services Victoria, restorative justice can help:

in shifting the common negative core beliefs … that [victim survivors] bear: responsibility, shame, guilt, feeling that they are bad.[49]

9.44 The Magistrates’ Court of Victoria supported making restorative justice available for sexual offences, with clear rules and guidelines. In its view, restorative justice can be a way for someone to find ‘healing, repair and acknowledgement’.[50]

Some people had concerns, and some said restorative justice would be out of the question for them

Some people … are manipulative. In a restorative justice process, he would have manipulated the process. He would have presented himself as the picture of remorse.—Nicole Lee[51]

9.45 Some victim survivors we heard from opposed restorative justice. They were worried people responsible for sexual violence would manipulate the process. Others doubted that the person who had assaulted them would be prepared to admit the assault or take responsibility for it.

In my experience of being the victim of a crime, the offender just doesn’t care and doesn’t want to change.[52]

9.46 Some said that they would never want to see the person who had assaulted them again.[53] One said that meeting her attacker in person, even with a trained facilitator, would be ‘out of the question, far too distressing and traumatising’.[54]

9.47 One person thought providing restorative justice could imply that sexual violence is trivial or unimportant. She said it could support the view that:

what has happened is just going to be accepted by the police and society. It suggests that rapes can continue to go under-reported, under-charged and under-convicted.[55]

9.48 Other people who had experienced sexual violence said restorative justice should be an option, even though they would never use it. One thought it could be ‘very powerful’, even though she would not be ‘brave enough to confront my assaulter’.[56]

Restorative justice carries risks

9.49 Even advocates of restorative justice recognise it carries serious risks.

9.50 The two main concerns about using restorative justice for sexual offences are:

• It implies sexual violence is unimportant, and a private rather than public concern.

• Restorative justice could repeat the dynamics of the original violence and retraumatise the person harmed.

Restorative justice risks hiding sexual violence from public view

9.51 In the past, many forms of sexual violence were treated ‘as private matters, not deserving of public condemnation’. The trauma and suffering sexual violence caused was ignored or minimised.[57]

9.52 Sexual violence continues to be an isolating experience. It is often hidden behind ‘veils of secrecy and shame’. For many people, even their close family and friends are unaware of the offending and its impact.[58]

9.53 There is a risk that crimes which were once minimised and treated as ‘private matters’ may be hidden away again if restorative justice is used instead of public prosecutions and trials.[59] Apart from the content of outcome agreements, what happens during restorative justice is private and confidential, as we discuss below.

Restorative justice risks retraumatising the person harmed

9.54 In restorative justice, the person responsible for the harm can speak, so there is a risk they will repeat the dynamics of the original harm. They may denigrate the person they harmed and challenge their account of what happened. The person harmed may feel silenced and violated, as they were during the sexual violence.

9.55 If other participants in restorative justice believe an alternative version of events given by the person responsible, it will be retraumatising. This is especially so, because:

a considerable element of the trauma that victims of sexual assault experience is the denial and disbelief … many encounter.[60]

9.56 Even if the person harmed is believed, they may be intimidated or traumatised by the presence of the person responsible. This may cause them to freeze or be unable to speak freely, echoing their experience of the violence.[61]

9.57 Intimidation or control in abusive relationships is often subtle. This may be difficult for restorative justice facilitators to recognise and counter.[62] For example, inviting the person responsible to apologise may be inappropriate, because ‘apology and forgiveness … are characteristics of the cycle of abuse’.[63]

9.58 The more unequal the relationship, the greater the risk. Partly for this reason, the Royal Commission into Institutional Responses to Child Sexual Abuse concluded that restorative justice processes are unlikely to assist many victim survivors of institutional child sexual abuse.[64]

Guiding principles can minimise the risks

9.59 Sexual violence is a public wrong that the state must redress. Dealing with sexual violence in the criminal justice system is an important way of signalling how serious it is. This is part of how society condemns the violence and holds the people responsible for it to account. The justice system should be a focus of reform, and it is in this report.

9.60 But in too many cases, criminal justice does not redress the wrong at all. In others, it deals with it in a way that does not meet the needs of victim survivors. Clearly, more justice options should be available. Restorative justice has powerful potential to provide choice, voice, acknowledgment and healing for some survivors of sexual violence.

9.61 The risks of restorative justice are real and need to be managed. We are not recommending that restorative justice replaces criminal justice. Neither are we saying that sexual violence should be treated as unimportant or as a private wrong. Instead, restorative justice should be an option that supplements criminal justice.

9.62 The risks of restorative justice can be managed through careful design and implementation of a principle-based scheme. The principles we recommend are listed in Table 11 and expanded on in the following sections. They are drawn from Australian and international expertise and regulatory frameworks. Many were developed for sexual or other serious offences involving violence.[65]

9.63 For example, the Framework for the Family Violence Restorative Justice Service was informed by extensive research and consultation. It includes each of the principles we recommend, although some are expressed differently.[66] In New Zealand, restorative justice for sexual offences is based on similar principles.[67]

9.64 We tested these principles through our issues paper.[68] They received widespread support.[69]

Table 11: Guiding principles for restorative justice in cases involving sexual offences

Voluntary participation

Consent is informed and participants are free to withdraw at any time.

Accountability

The person responsible accepts responsibility. Outcome agreements are fair and reasonable.

The needs of the person harmed take priority

The process centres on the needs and interests of the person harmed.

Safety and respect

Safety measures are provided. The process is flexible and responsive to diverse needs, including the needs of children and young people, and of Aboriginal communities. Power imbalances are redressed, and the dignity and equality of participants is respected. The process is supported by skilled personnel with specialist expertise in sexual violence, and it is well resourced.

Confidentiality

What is said and done during restorative justice is confidential, with some exceptions.

Transparency

De-identified results are publicised to contribute to continuous program improvement. Programs are regularly evaluated.

An integrated justice response

The process is part of ‘an integrated justice response’. Other criminal and civil justice options are available, as well as therapeutic treatment programs.

Clear governance

Legislation sets out the guiding principles, provides for implementation and oversight, and explains how restorative justice interacts with the criminal justice system.

Participation is voluntary

Consent is informed and participants are free to withdraw

9.65 Participants must be fully informed about restorative justice. They should understand what the process will require of them, what they can expect from it and what their rights are. They are entitled to legal advice about the implications of participation. They should not feel pressured to participate and may withdraw at any time.[70] In Chapter 12 we discuss legal advice for people who have experienced sexual violence.

9.66 The principle of voluntary participation reduces the risk of re-traumatisation for victim survivors and protects the rights of the person responsible. It reflects that restorative justice is about giving participants control over the decisions that will affect their lives.[71] If participation is forced, a restorative engagement will not empower, heal or rehabilitate.

9.67 Facilitators and support workers, as part of their preparation, should scrutinise whether participants are able to make free decisions to participate. There is a risk that people who have experienced sexual violence at the hands of a family or community member will be under communal pressure to participate. This was a particular concern for some Aboriginal groups and community members.[72]

9.68 The person responsible for the violence could also be pressured to participate. Again, this risk should be managed through careful preparation, and by making sure they have independent support and counselling. They should not be penalised for choosing not to participate. (We discuss this below.)

9.69 Restorative justice should not continue if a facilitator decides a participant is being pressured to participate.

There is accountability for the harm

The person responsible accepts responsibility

9.70 If a person responsible for sexual violence wishes to participate in restorative justice, they must accept some responsibility for the harm they have caused. This starting point is important to support the healing potential of restorative justice, and to avoid retraumatising the person harmed.[73]

9.71 Guidelines in New Zealand suggest restorative justice should not occur in sexual offence cases unless the person responsible has acknowledged responsibility for the offence. A guilty plea is viewed as the clearest way of acknowledging responsibility.[74] District (mid-tier) Courts may refer people to restorative justice after a conviction, but they will not be accepted for restorative justice if they still deny responsibility for the offending.[75]

9.72 The Family Violence Restorative Justice Service says that a person responsible for violence can gain insight into their behaviour through a restorative justice process, so the ‘threshold for a perpetrator to commence engagement’ can be ‘quite low’.[76] A person who moves from some acceptance of responsibility to greater acceptance while preparing for a restorative justice conference will be able to participate:

• if the conference can happen safely, and

• it is what the person harmed wants.

If the person responsible fails to accept an appropriate level of responsibility, the restorative justice process will be stopped.[77]

9.73 We consider this a sensible approach. As a restorative justice practitioner in the Australian Capital Territory told us, a person might accept some responsibility for the harm they have caused while disputing criminal liability. Also, their attitude to their own responsibility may shift over time.[78] In the Australian Capital Territory, a person who commits an offence is eligible for restorative justice if they accept responsibility for committing the offence. However, they can still plead not guilty to the offence in court.[79]

Outcome agreements are fair and reasonable

9.74 In line with the focus of restorative justice on healing and respect, outcome agreements must be fair and reasonable. The person responsible must be able to carry them out. They are not meant to unfairly punish, nor to humiliate the person responsible for the violence.[80] Restorative justice should help people responsible for violence to feel and express shame in a way that is ‘rehabilitative and non-stigmatising’.[81]

9.75 The content of outcome agreements should be considered carefully before any restorative justice conference. In New Zealand, Project Restore’s preparation for conferences involves identifying ‘clearly defined action plans that reflect what participants think will put offending right’, including ‘consequences if the action plan is not complied with’.[82]

9.76 In New Zealand and the Australian Capital Territory, outcome agreements are given to sentencing courts if they referred the matter for restorative justice.[83] We discuss adopting this practice in Victoria below.

The needs of the person harmed take priority

The process centres on the needs and interests of the person harmed

9.77 In this inquiry we heard about how important it is to place the needs of the person harmed at the centre of the restorative justice process.[84]

9.78 In the past, a focus of restorative justice was on repairing relationships and communal bonds. This made giving all participants an equal voice important. When dealing with sexual violence, aiming to repair relationships and treating all voices as equal cannot be the starting point. This is because sexual violence uses and increases power imbalances between the person harmed and the person responsible.[85]

9.79 Making the needs of the person harmed a priority helps ensure that the dynamics of the original violence are not repeated. To achieve this, facilitators and counsellors are guided by the wishes of the person harmed. They work closely with them to assess their safety needs, how they want the restorative justice process to run, and what they hope to achieve from it.[86]

The process is safe and respectful

Safety measures are provided

9.80 Restorative justice should only go ahead if it is safe for all participants. It is important not to risk further trauma. Safety measures should cover physical and psychological safety and be trauma-informed.[87]

9.81 The process involves careful screening of participants and preparation. This will usually take several months. It will involve input from allied service providers and support personnel, working separately with the person harmed and the person responsible.[88]

9.82 In cases of intimate partner violence or ongoing relationships, additional risk assessment tools and management plans are used. The Australian Capital Territory’s Restorative Justice Unit and the Family Violence Restorative Justice Service use standardised risk assessment tools.[89]

9.83 Safety measures should cover practical steps, like making sure participants can enter and exit any conference rooms safely and without running into each other, and having security staff on site if needed.[90]

9.84 Safety assessments should be ongoing and restorative processes should stop at any time if the facilitator decides it is unsafe to continue.[91]

9.85 Part of ensuring safety is responding to the diverse needs of participants. In the next sections, we discuss how restorative justice can meet diverse needs, including by protecting the safety of children and young people, and involving Victoria’s Aboriginal communities in its design and delivery.

The process is flexible and responsive to diverse needs

9.86 Restorative justice is flexible and can be responsive to the diverse needs of participants. As the Centre for Innovative Justice told us, these are ‘key’ benefits.[92] However, it is important that robust safety protocols and good governance balance flexibility and responsiveness.[93]

9.87 Tailoring restorative justice to the diverse needs of participants could include changing the format for participants who have cognitive disabilities or who prefer non-verbal communication. Instead of a conference, there might be an exchange of video recordings, or some other form of engagement. Restorative justice might also include using accessible language, interpreters or other specialist supports.[94]

9.88 A flexible process might include varying where restorative justice takes place. The Family Violence Restorative Justice Service meets participants wherever they feel most comfortable and secure, if possible.[95]

The process responds to the needs of children and young people

9.89 Victoria Police suggests it may not be appropriate for children who have been sexually abused to participate in restorative justice.[96] Differences in power may be more extreme and easier for the person responsible for the abuse to exploit. Children may not have the cognitive or emotional maturity, or the agency, to make an informed decision to participate.[97]

9.90 One response is to require additional safeguards for cases involving children. In New Zealand:

• Specialist input from child specialists is required.

• The Department for Children, Youth and Family must be informed and invited to contribute.

• The person responsible for sexual abuse must be assessed for therapeutic treatment if they are going to be involved.[98]

9.91 In the Australian Capital Territory children under 10 years old are excluded from participation. They can be represented in restorative justice processes by a related adult.[99]

9.92 Ten is the age when children can be held criminally responsible in the Australian Capital Territory and Victoria.[100] Excluding children under 10 from restorative justice fixes a point in time for when they are able to make their own choices. In reality, this will vary between children. There are also problems with tying any age minimum to the age of criminal responsibility, given debate about how appropriate this age is.[101]

9.93 We prefer to deal with these concerns in a similar way to New Zealand and include more safeguards for children, including adolescents under the age of 18.

9.94 We agree that restorative justice will not be appropriate for most children and young people who have been sexually abused. But rather than excluding some completely, we recommend that these decisions be made on a case-by-case basis. As well as the standard restorative justice screening procedures, there should be an independent assessment of any child or young person who wishes to take part.

9.95 The assessment should consider the child or young person’s ability to freely consent, given the specific context of the violence. If their participation is appropriate, they should have independent support throughout the restorative justice process by someone specialised in working with children.

What role can restorative justice have when children and young people use harmful sexual behaviour?

9.96 Additional issues arise in relation to children or adolescents who have been abused by other children or adolescents.

Responding to harmful sexual behaviour among children and young people

Children and young people (up to 18) using harmful sexual behaviour can be diverted from the criminal justice system through a Therapeutic Treatment Order made by the Children’s Court. They can also be voluntarily referred to therapeutic treatment (called a Sexually Abusive Behaviour Treatment Service) before contact with the justice system.

We discuss the response to harmful sexual behaviours in Chapter 8.

Some therapeutic treatment programs use elements of restorative justice. They may invite the participation of a child who has been harmed, usually where the child responsible for the harm is a sibling.[102]

9.97 The Gatehouse Centre strongly supports restorative processes for children and young people displaying harmful sexual behaviours.[103] A senior sexual assault worker at SECASA was also supportive. She explained the benefits:

Restorative justice is incredibly powerful in cases involving families who have young people that have caused harm, for example, to a sibling. It can involve an acknowledgement of the behaviour by the person responsible which is witnessed by the parents and person harmed.

This can be very important for the person harmed, especially when the young person responsible whole heartedly acknowledges the harm.[104]

9.98 Jesuit Social Services told us that restorative justice plays an important role in responding to harmful sexual behaviours but pointed out that ‘processes like group conferencing involve highly verbal social exchanges that require higher order cognitive skills’.[105] While they do not think children should be excluded, they stressed the need for careful screening procedures.[106]

9.99 The Children’s Court can refer children (up to the age of 18) who have been convicted of certain offences to group conferencing, but sexual offences are excluded.[107] These cases should not be excluded automatically from restorative justice. Restorative justice should be available and fully integrated with the Therapeutic Treatment Order system and with Sexually Abusive Behaviour Treatment Services.[108]

9.100 It is important that independent assessments are conducted of the child/young person who was harmed and the child/young person responsible for the harm, in addition to standard restorative justice screening procedures. This will ensure restorative justice only occurs if it is a safe and appropriate response for all participants.

How can restorative justice involve Aboriginal communities?

9.101 Victoria’s Aboriginal communities should be central in the design of any restorative justice scheme. Many told us they could see the benefits of restorative justice but stressed that it should not be imposed on them.[109]

9.102 The Aboriginal Justice Caucus, supported by the Victorian Aboriginal Legal Service, said:

There is evidence to support Restorative Justice processes can be effective in responding to sexual offending. However, design, development and implementation of these justice responses will take time, and must be community led. Responses must be aligned with Aboriginal Community values, victim-centred and responsive to the community.[110]

9.103 Djirra called for Aboriginal women to co-design any restorative justice model offered to Aboriginal communities. It added that tailored models were needed for each of Victoria’s 38 original clans.[111]

9.104 Djirra said victim survivors should have an appropriate person to sit with them through any restorative justice process, to support and advise them where needed.[112] The Victorian Aboriginal Legal Service also highlighted the importance of appropriate support.[113]

9.105 The Australian Capital Territory’s Restorative Justice Unit has an Indigenous guidance partner who:

supports Aboriginal and Torres Strait Islander victims and those responsible for an offence and their supporters to understand the restorative justice process. This is to help them decide whether they will participate and also to support compliance with any agreements made as part of participating in the process.[114]

9.106 The Indigenous guidance partner attends restorative justice conferences and can assist people responsible for harm to fulfil outcome agreements. For example, they help with transport to placements or appointments.[115]

9.107 We hear the strong message from Victoria’s Aboriginal communities that they wish to be listened to and involved in the design of restorative justice for their communities.

9.108 The governance framework we recommend below can incorporate input from Aboriginal communities. It is based on several restorative justice providers running restorative justice. These could include Aboriginal-led or designed providers. While the Department of Justice and Community Safety would have responsibility for restorative justice, and the new Commission for Sexual Safety that we recommend in Chapter 22 would provide specialised oversight, the governance team could include Aboriginal community representatives.

Power imbalances are redressed and there is respect for dignity and equality

9.109 Respecting the dignity and equality of all participants is critical to restorative justice processes.[116] A dialogue with healing potential needs participants who listen respectfully to each other and can see each other’s humanity.

9.110 Respect for equality does not mean equal input. As discussed earlier, equality requires that problematic power dynamics are redressed.[117] But restorative justice is not about demeaning the person responsible for sexual violence. The process must not be punitive or de-humanising.[118]

9.111 Instead, a focus is on helping the person responsible take responsibility for the violence and providing them with professional support so they do not reoffend.

Expert personnel and adequate resourcing are critical

9.112 Restorative justice needs to be well resourced and supported by skilled personnel.[119]

9.113 Facilitators may come from a range of backgrounds, including psychology, psychotherapy and social work.[120] All should have a combination of theoretical and practical training in restorative justice. Separate from their training in restorative justice, it is crucial that they have specialist expertise in sexual violence.[121] This is because:

• People responsible for sexual violence may use sophisticated forms of manipulation.

• The dynamics of sexual violence are complex.

• Victim survivors often blame themselves and feel shame.[122]

9.114 As well as being experts in sexual violence, restorative justice practitioners should:

understand the effects of trauma, recognize the symptoms and signs of trauma … and be familiar with trauma-informed communication and interventions.[123]

9.115 Training that includes mentoring or apprenticeship models is especially effective. The Australian Association for Restorative Justice recommends building skills by starting with more straightforward cases and developing them for use in more complex cases. It stressed that ‘ongoing coaching and skill development are essential’.[124]

9.116 The person harmed and the person responsible should be provided with independent support, in line with the model used by Project Restore.[125] For the person harmed, this role could be filled by a victim advocate (see Chapter 12).

What is said and done is confidential

9.117 It is widely accepted that restorative discussions and information exchanged should be confidential but that there must be some limits on this. For example, statements or information may need to be disclosed in court (admissible) for some purposes.

9.118 Confidentiality allows genuine engagement between participants and helps them feel safe. It allows the person responsible for sexual violence to freely acknowledge their responsibility.[126] Through open communication, participants can gain insight into the causes and consequences of the offending. This can be a deeply transformative and healing process for all participants.[127]

9.119 In the Australian Capital Territory, statements made by the person responsible during restorative justice are not admissible in court if they relate to less serious offences, which can be punished by imprisonment for 10 years or less. Details can still be provided as part of an outcome agreement for a sentencing court to consider. Statements relating to serious offences may sometimes be admissible in legal proceedings for the offences. If something is said during restorative justice about a proposed offence—whether it is a serious offence or not—this may be admissible in future legal proceedings related to the offence.[128]

9.120 In the Victims of Crime report, we said that a privilege—preventing disclosure in court—should apply to discussions during restorative justice conferences unless:

• the participants agree to disclosure or

• there is an immediate risk of harm to a person.[129]

9.121 This is a straightforward way to protect the safety of participants while encouraging genuine and open communication.

9.122 It would not prevent later criminal or civil proceedings for an alleged offence that was discussed during restorative justice. But discussions about the offence that occurred during restorative justice should not be admissible.[130] Also, the fact that a person participated in restorative justice should not be admissible as evidence of guilt.[131] However, the law that sexual offences committed by adults against children must be reported would still apply.[132]

The process is transparent

9.123 It is important that restorative justice processes are transparent. A transparent process avoids the risk of privatising sexual violence. The public is entitled to know how restorative justice processes work. People thinking about restorative justice as an option should be clear about what to expect.

9.124 The public should have access to de-identified data about the use of restorative justice. The new Commission for Sexual Safety (see Chapter 22) should collect data about restorative justice for sexual violence. This data should be published in an annual report (see Chapter 6).

9.125 Restorative justice should be carefully evaluated. The results of evaluations should inform ongoing program improvements.[133]

Restorative justice is part of an integrated justice response

There should be other criminal and civil options

9.126 We agree with submissions which stressed that restorative justice should be part of an integrated justice response. It should supplement but not replace other criminal or civil justice options.[134] This will ensure sexual violence is taken seriously and is not treated as private. If restorative justice is part of an integrated justice response, people who have experienced sexual violence will have more justice options available to them.

Therapeutic treatment services should be available

9.127 Another aspect of an integrated justice response is providing support services. As discussed earlier, people who have experienced sexual violence should be supported during their participation in restorative justice.[135] The person responsible for violence should also be supported. They should have access to therapeutic treatment throughout the process and be able to commit to further treatment in an outcome agreement.[136]

9.128 In Chapter 13, we discuss the need to increase the availability of treatment programs as part of a coordinated approach to preventing sex offending. Making treatment programs available for people responsible for sexual violence who participate in restorative justice should be part of this coordinated response. Integrated supports reduce the risks and improve the safety of restorative justice. With them in place, it can be done well and contribute to healing.

There is clear governance

9.129 To manage the risks of restorative justice, there must be clear governance. As we discuss in more detail below, a new scheme for restorative justice should:

• set out the guiding principles listed here

• be implemented through legislation

• explain who can refer matters for restorative justice and when they can do this

• explain how restorative justice interacts with the criminal justice system and how to monitor restorative justice agreements

• establish who will provide restorative justice

• establish who will have oversight.[137]

9.130 Without clear governance, restorative justice may be unsafe. Sexual violence could be treated as private or not taken seriously. It could retraumatise people who have experienced it. Some restorative justice practitioners and people working in criminal justice say that the way restorative justice is used for sexual offences in Queensland is unsafe. In part, this is because it does not have a formal governance framework.[138]

We should establish a restorative justice scheme

The scheme should apply to all offences—not just sexual offences

9.131 We continue to support our previous recommendation in the Victims of Crime report that restorative justice should be available for all indictable offences.[139] Introducing restorative justice for sexual offences alone could give the wrong impression that sexual offending is less serious than other crimes.

9.132 In the Victims of Crime report we recommended a staged approach, with sexual and family violence brought into the restorative justice scheme at a later stage.[140] This was ‘to allow time to develop appropriate processes and procedures’.[141] However, a staged approach is no longer necessary.

9.133 The Family Violence Restorative Justice Service is already running. Around the same time as it was being piloted, the Centre for Innovative Justice at RMIT University piloted a restorative justice program for serious motor vehicle accidents. The Centre has now made restorative justice available for a range of offences, including sexual offences, through a program called ‘Open Circle’.[142]

9.134 These developments, plus strong support for restorative justice in this inquiry, mean that a staged approach is no longer needed.

The scheme should be set out in legislation

9.135 The Victorian Government should pass legislation that creates a clear and comprehensive framework for delivering restorative justice. It should support best practice and address the risks of restorative justice. For sexual offences, the legislation should include the guiding principles listed earlier.

9.136 A legislative framework will give restorative justice visibility. It will make restorative justice accessible and transparent. It will ensure there is authority and accountability in its practice (for example, to make sure outcome agreements are followed). Together, these features will ensure that restorative justice is not a ‘second-tier’ or hidden form of justice.[143] Instead, it will be viewed as a legitimate option that supplements criminal justice.[144]

Referrals should be available to all

9.137 For restorative justice to be a meaningful justice option, people who have been harmed need to know about it and be able to request it. Information about and connections to restorative justice should be widely available.

9.138 In the Australian Capital Territory, a range of people and bodies in the criminal justice system including police, prosecution, the courts and the Victims of Crime Commissioner may refer matters for restorative justice. Their power to refer matters depends on the stage in criminal proceedings. For example, police and the Victims of Crime Commissioner can refer matters before charges are filed.

9.139 We see the value of a similarly broad approach in Victoria. In Chapter 4, we recommend amending the Victims’ Charter Act 2006 (Vic) to give victims of sexual offences the right to be referred to restorative justice, where appropriate. As we discuss in Chapter 18, people working in criminal justice will need training about what restorative justice is and the kinds of cases that may be suitable for it. Sexual assault and family violence services should also be able to refer people who have experienced sexual violence to restorative justice. People who have experienced sexual violence should be able to self-refer.

9.140 Everyone who reports a sexual offence should be told about restorative justice as part of an ‘options talk’. We discuss the options talk in Chapter 17. They would be free to reject the offer or take it up at a later stage. Requiring people working in criminal justice to tell victim survivors of sexual violence about restorative justice will ensure equal access to it. It will prevent personal views that people working in justice might have about the process from affecting what victim survivors are told. This requirement should be part of the legislative scheme.

The relationship between restorative and criminal justice should be clear

9.141 In our Victims of Crime report we recommended that any restorative justice scheme should supplement the criminal justice system, and be available:

• where a decision is made by the Director of Public Prosecutions (DPP) to discontinue a prosecution

• after a guilty plea and before sentencing

• after a guilty plea and in connection with an application for restitution or compensation orders by a victim.[145]

9.142 Restorative justice should be available in the above situations. In addition, restorative justice should be available:

• where there has been no police report or charges filed

• where a decision is made by the police to discontinue a prosecution

• after a conviction and before sentencing

• following sentencing.

9.143 It was outside the scope of the Victims of Crime report to consider if restorative justice should be available without a police report or charges or when the police file but later withdraw charges. In the current inquiry, there was strong support for making restorative justice available without a police report, or after a report, if the investigating or prosecuting agency decides that a criminal prosecution will not proceed.[146] This is consistent with the approach in the Australian Capital Territory and New Zealand.[147] It is especially important for sexual offences, where most offences are not reported and many do not proceed to charge. We discuss this in Chapter 1.

9.144 However, the availability of restorative justice should not be considered by the police or DPP when deciding to file charges or continue a prosecution. Their decision should be guided by the prospects of conviction and the public interest.[148] To ensure that sexual offending is not privatised, the legislative framework should include a section providing that a referral to restorative justice does not affect any other action in relation to the offence. For example, in the Australian Capital Territory, the legislation governing restorative justice says:

referral [to restorative justice] is to have no effect on any other action or proposed action in relation to the offence or the offender.[149]

9.145 The DPP’s ‘Policy’ includes a section listing ‘improper considerations’ in decisions to prosecute. This should also be amended to provide that the availability of restorative justice must not influence prosecution decisions.[150]

9.146 In the Victims of Crime report we noted concerns that participation by the person responsible in restorative justice might be insincere. For this reason, we recommended limiting its availability to after a guilty plea. We said it should not be available after a conviction at trial, given the person convicted had pleaded not guilty.[151]

9.147 We now think this approach is too restrictive. As we discussed earlier, a person responsible for violence may accept some responsibility for the harm while denying criminal responsibility. Their attitude towards responsibility may shift with time. If the person harmed would like to engage in restorative justice even with the ‘not guilty’ plea, this option should be available. This gives victim survivors control and a wider range of justice options.

9.148 In the Victims of Crime report we also said that restorative justice should not be available during a criminal prosecution.[152] We noted that restorative justice ‘presents unique challenges’ in this context.[153] These include that participants may experience conflict between their roles in the criminal prosecution and their ability to engage fully in restorative justice.[154] In this inquiry, a representative from the Restorative Justice Unit in the Australian Capital Territory told us:

it can be tricky if restorative justice is going on at the same time as the criminal justice process – the person responsible then has a leg in both the adversarial and restorative areas.[155]

9.149 Some people we heard from supported making restorative justice available at any time during a criminal prosecution.[156] However, the Centre for Innovative Justice at RMIT University disagreed, saying ‘a restorative process should not proceed at a point in time where this may compromise criminal proceedings’.[157]

9.150 We have concluded that restorative justice should not be available during a criminal prosecution. The position is similar in the Australian Capital Territory for cases involving sexual offences.[158] In our view, this strikes the right balance between providing a range of justice options for people who have experienced sexual violence and preventing the use of restorative justice as an alternative to criminal justice.

Restorative justice outcomes should be considered in sentencing

9.151 Sentencing courts should consider restorative justice outcomes, but restorative justice participation should not automatically result in a lighter sentence. This is consistent with the law in the Australian Capital Territory and New Zealand.[159] It gives an incentive for the person responsible to engage in restorative justice but helps ensure that only genuine engagement leads to a reduced sentence.[160]

9.152 The County Court of Victoria told us that allowing sentencing courts to take restorative justice outcomes into account in sentencing could result in unfairness. This is because not everyone found guilty of a crime will be able to participate in restorative justice—it can only occur if the person who was harmed wants it. But courts are already required to take a range of factors into account in their sentencing decisions, including the impact an offence had on the victim.[161] Some of these factors are outside the control of the person responsible and will vary between cases. This need not create unfairness because there are other ways that an offender can show their commitment to rehabilitation.[162]

9.153 The principle that restorative justice participation must be voluntary means that sentencing courts should not increase a sentence because an offender chose not to take part in restorative justice or stopped taking part. This is the position in the Australian Capital Territory.[163]

Restorative justice outcome agreements should be monitored

9.154 Courts could have a role monitoring outcome agreements. If restorative justice occurs after a guilty plea or verdict and before sentencing, and the person harmed wishes it, the sentencing court could use its powers to defer sentencing for up to twelve months.[164] This would be enough time to see if the terms of an outcome agreement were met. If the offender fails to do what they said they would, the court could consider this in its sentencing decision.[165]

9.155 Other referring bodies, such as the police, could also monitor outcome agreements, as happens in the Australian Capital Territory.[166] Where restorative justice occurs without a police report or criminal charges, after a criminal prosecution has been discontinued, or after sentencing, the restorative justice service provider should monitor the outcome agreements. If a person responsible for sexual violence does not do what they said they would, this should be reported to the body that has oversight of restorative justice.[167]

A range of providers should run restorative justice

9.156 We recommend that a range of providers be eligible for accreditation to provide restorative justice for sexual offences. Several organisations and agencies, including the Family Violence Restorative Justice Service, Open Circle, and—in the area of youth justice—Jesuit Social Services, have built up expertise providing restorative justice. If they meet the accreditation criteria, their expertise should not be wasted. We also see the benefits of organisations working within diverse communities to provide restorative justice programs that are responsive to those communities. They should have the opportunity to provide restorative justice.[168]

The Department of Justice and Community Safety should have responsibility for restorative justice

9.157 The Department of Justice and Community Safety should have responsibility for the restorative justice scheme. Specialised oversight of restorative justice for sexual violence should be provided. This is important so that the guiding principles discussed here are implemented consistently and there is quality control. The oversight body should:

• establish training programs

• establish accreditation processes

• make sure that restorative justice outcome agreements are monitored and that there are processes to manage failures to comply with outcome agreements

• establish and manage a complaints process

• evaluate programs regularly and collect data.

To support quality control, restorative justice accreditation should be renewed annually.

9.158 The new Commission for Sexual Safety (Chapter 22) should provide this oversight of restorative justice for sexual violence. The specifics could be set out in a Memorandum of Agreement with the Department of Justice and Community Safety.

Recommendations

28 The Victorian Government should establish a restorative justice scheme in legislation (‘the restorative justice scheme’) that applies to all offences. The following principles should guide restorative justice for sexual violence in the restorative justice scheme:

a. voluntary participation

b. accountability

c. the needs of the person harmed take priority

d. safety and respect

e. confidentiality

f. transparency

g. the process is part of an ‘integrated justice response’

h. clear governance.

29 The restorative justice scheme should be adequately resourced to ensure:

a. victim survivors and people responsible for harm have independent, professional support throughout the process

b. participants have access to independent legal advice

c. independent assessments for children who wish to participate are conducted, in addition to the standard screening procedures

d. children who participate are provided with independent and specialised support.

30 Victoria’s Aboriginal communities should be supported to design accredited restorative justice programs for Aboriginal people.

31 The restorative justice scheme should supplement criminal justice and be available in the following situations:

a. where a person harmed does not wish to report the harm or to pursue a criminal prosecution

b. where a harm is reported but there are insufficient grounds to file charges

c. where charges were filed but the prosecution discontinues the prosecution

d. after a guilty plea or conviction and before sentencing

e. after a guilty plea or conviction and in connection with an application for restitution or compensation orders

f. at any time after sentencing.

32 The Director of Public Prosecutions should amend the Policy of the Director of Public Prosecutions for Victoria to ensure that the availability of restorative justice does not influence prosecution decisions.

Recommendations

33 Therapeutic treatment programs should be available to support people responsible for sexual violence who are participating in restorative justice and/or commit to participating in a program as part of an outcome agreement. These supports should be developed as part of the coordinated approach to preventing sexual offending in Recommendation 47.

34 The restorative justice scheme should require justice agencies to inform victim survivors they are entitled to request a restorative justice process.

35 Restorative justice for sexual violence should be available through several providers.

36 The Department of Justice and Community Safety should be responsible for the restorative justice scheme. The Commission for Sexual Safety (Recommendation 90) should work with the Department to provide oversight in relation to restorative justice for sexual violence. Oversight should include:

a. establishing training standards

b. establishing accreditation criteria

c. ensuring restorative justice outcome agreements are monitored

d. establishing and managing a complaints process

e. evaluating programs and collecting data.


  1. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol IV, 137 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>, citing Howard Zehr, The Little Book of Restorative Justice (Good Books, 2002) 37. Other aims of restorative justice include to: ‘support perpetrators in non-offending by increasing their insight into the impact of the harm; improve victim-survivors’ experience of justice by considering their wellbeing and addressing specific needs; improve … access to justice by offering a different avenue for addressing the harm; and to build healthy communities where relationships are strengthened’: Jane Bolitho and Karen Freeman, The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms (Report, Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) 7 <http://www.childabuseroyalcommission.gov.au/getattachment/9f328928-a343-4c65-b98e-94e3185894c7/Restorative-justice-following-child-sexual-abuse-o>.

  2. This may be because of safety issues, or because the person responsible for the violence does not accept responsibility or does not wish to participate. The Family Violence Restorative Justice Service told us that of 33 referrals they had received, half were not suitable for restorative justice: Consultation 3 (Family Violence Restorative Justice Service). In some cases, restorative conferences involving family or community members can still be valuable, even without the person responsible. Sometimes, a person who has experienced sexual violence does not want to engage with the person responsible, but wants to explain to their parents or members of the extended family how the harm affected them and their disappointment with how the family responded: Consultation 2 (Centre for Innovative Justice).

  3. Bebe Loff, Liz Bishop and Bronwyn Naylor, Community-Based, Victim-Centred Restorative Justice for Sexual Violence—A Pilot (Report, July 2019) 41 <http://www.naj2017.com/1729>.

  4. Extracted from Marie Keenan and Ailbhe Griffith, ‘Two Women’s Journeys: Restorative Justice after Sexual Violence’ in Brunilda Pali (ed), The Praxis of Justice (Eleven Publishing, 2019) 310–16. Additional paragraph spaces have been introduced in the extracts.

  5. Many redress schemes also incorporate restorative elements or forms of engagement: see Victorian Law Reform Commission, Sexual Offences: Civil Law and Other Non-Criminal Responses (Issues Paper H, October 2020) 5–6; Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Executive Summary and Parts I-II, 2017) 190.

  6. Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 25 <https://cij.org.au/research-projects/sexual-offences/>.

  7. The quotes in Fig. 15 come from the following sources: ‘Referral’ quote: Consultation 3 (Family Violence Restorative Justice Service); ‘Assessment & preparation’ quote: Marie Keenan and Ailbhe Griffith, ‘Two Women’s Journeys: Restorative Justice after Sexual Violence’ in Brunilda Pali (ed), The Praxis of Justice (Eleven Publishing, 2019) 314; ‘Conference & post-conference’ quote: Bebe Loff, Liz Bishop and Bronwyn Naylor, Community-Based, Victim-Centred Restorative Justice for Sexual Violence—A Pilot (Report, July 2019) 26 <http://www.naj2017.com/1729>.

  8. Queensland Sentencing Advisory Council, Penalties for Assaults on Public Officers (Final Report, August 2020) 290 <https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0003/657732/chapter-11-institutional-responses.pdf>.

  9. Marie Keenan, Caroline O’Nolan and Estelle Zinsstag, ‘Sexual Violence and Restorative Practices in Belgium, Ireland and Norway: A Thematic Analysis of Country Variations’ (2016) 4(1) Restorative Justice: An International Journal 86; Estelle Zinsstag and Marie Keenan (eds), Restorative Responses to Sexual Violence: Legal, Social and Therapeutic Dimensions (Routledge, 1st ed, 2017) 6–7. It is also available for family violence in Austria, Finland, the Netherlands, Germany and Greece: Andrea Păroşanu, ‘A Review of European Standards on Restorative Justice and Domestic Violence’ (Occasional Papers in Restorative Justice Practice 4, Victoria University of Wellington, 2016) <https://www.restorativecommunity.org.nz/uploads/1/2/0/1/120126684/european_standards.pdf>.

  10. See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [7.263]–[7.265], [7.324]; Government of Canada, ‘Restorative Justice’, Department of Justice (Web Page, 13 January 2000) <https://www.justice.gc.ca/eng/cj-jp/rj-jr/index.html>; Marie Keenan, Caroline O’Nolan and Estelle Zinsstag, ‘Sexual Violence and Restorative Practices in Belgium, Ireland and Norway: A Thematic Analysis of Country Variations’ (2016) 4(1) Restorative Justice: An International Journal 86; Ian D Marder, ‘Restorative Justice as the New Default in Irish Criminal Justice’ (2019) 16 Irish Probation Journal 23.

  11. See Thalia González, ‘The State of Restorative Justice in American Criminal Law’ [2020] (6) Wisconsin Law Review 1147, 1163–4.

  12. Mary P Koss, ‘The RESTORE Program of Restorative Justice for Sex Crimes: Vision, Process, and Outcomes’ (2014) 29(9) Journal of Interpersonal Violence 1623. Koss has since speculated that the program did not receive continued funding because of the ‘tough on crime’ mentality in the United States. See Allison Griner, ‘The Better Way to Support Rape Victims: Put Their Needs First’, The Guardian (online, 13 March 2018) <http://www.theguardian.com/global/2018/mar/13/restorative-justice-putting-the-needs-of-victims-first>.

  13. Shirley Jülich and Fiona Landon, ‘Achieving Justice Outcomes: Participants of Project Restore’s Restorative Processes’ in Estelle Zinsstag and Marie Keenan (eds), Restorative Responses to Sexual Violence: Legal, Social and Therapeutic Dimensions (Routledge, Taylor & Francis Group, 2017) 192, 192; Mary P Koss, ‘The RESTORE Program of Restorative Justice for Sex Crimes: Vision, Process, and Outcomes’ (2014) 29(9) Journal of Interpersonal Violence 1623.

  14. Consultation 38 (Australian Association for Restorative Justice); Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 31 <https://cij.org.au/research-projects/sexual-offences/>; Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol IV, 142 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

  15. Kathleen Daly, Brigitte Bouhours, and Australian Centre for the Study of Sexual Assault, Conventional and Innovative Justice Responses to Sexual Violence (Report, Australian Institute of Family Studies (Cth), 2011) 10, 18–9; Shelby Sewak et al, Youth Restorative Justice: Lessons from Australia (Report, HAQ Centre for Child Rights, June 2019) 58 <https://haqcrc.org/wp-content/uploads/2019/07/restorative-justice-in-australia.pdf>.

  16. Centre for Innovative Justice, RMIT University, It’s Healing to Hear Another Person’s Story and Also to Tell Your Own Story: Report on the CIJ’s Restorative Justice Conferencing Pilot Program (Report, October 2019) 17–18 <https://cij.org.au/cms/wp-content/uploads/2018/08/rmit_8691-rjcpp-report-web.pdf>; Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 26 <https://cij.org.au/research-projects/sexual-offences/>; United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series, 2nd ed, 2020) 8–10.

  17. This view is shared by people responsible for crime: Meredith Rossner, ‘Restorative Justice and Victims of Crime: Developments and Directions’ in Sandra Walklate (ed), Handbook of Victims and Victimology (Routledge, 2017) ch 12, 238.

  18. Jane Bolitho and Karen Freeman, The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms (Report, Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) <http://www.childabuseroyalcommission.gov.au/getattachment/9f328928-a343-4c65-b98e-94e3185894c7/Restorative-justice-following-child-sexual-abuse-o>; Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (Report, December 2017) 185 <https://www.childabuseroyalcommission.gov.au/final-report>.

  19. Bebe Loff, Liz Bishop and Bronwyn Naylor, Community-Based, Victim-Centred Restorative Justice for Sexual Violence—A Pilot (Report, July 2019) <http://www.naj2017.com/1729>.

  20. Ibid 31.

  21. Gravitas Research and Strategy Ltd, Ministry of Justice—Restorative Justice Survey (Victim Satisfaction Survey 2018, Ministry of Justice (NZ), September 2018) 26, 40 <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-Justice-Victim-Satisfaction-Survey-Report-Final-TK-206840.pdf>.

  22. Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (Report, December 2017) 184–5 <https://www.childabuseroyalcommission.gov.au/final-report>.

  23. Marie Keenan, ‘Training for Restorative Justice Work in Sexual Violence Cases’ (2018) 1(2) The International Journal of Restorative Justice 291, 291; Vince Mercer and Karin Sten Madsen, Doing Restorative Justice in Cases of Sexual Violence: A Practice Guide (Report, 2015) 12–13.

  24. See, eg, Jacqueline Joudo Larsen, Restorative Justice in the Australian Criminal Justice System (Research and Public Policy Series No 127, Australian Institute of Criminology (Cth), 2014) 23–5 <https://www.aic.gov.au/publications/rpp/rpp127>; Marie Keenan, ‘Training for Restorative Justice Work in Sexual Violence Cases’ (2018) 1(2) The International Journal of Restorative Justice 291, 292; United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series, 2nd ed, 2020) 8.

  25. Queensland Sentencing Advisory Council, Penalties for Assaults on Public Officers (Final Report, August 2020) 294, 296 <https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0003/657732/chapter-11-institutional-responses.pdf>.

  26. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016), 177 [7.250]–[7.251] Recommendation 32.

  27. Ibid xix [55]–[56].

  28. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol IV, 135 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

  29. Ibid Recommendation 122.

  30. Consultation 3 (Family Violence Restorative Justice Service); Department of Justice and Regulation (Vic), Restorative Justice for Victim Survivors of Family Violence (Framework, Family Violence Restorative Justice Project, August 2017) <http://www.justice.vic.gov.au/restorative-justice-for-victim-survivors-of-family-violence-framework>; Justice and Community Safety (Vic), ‘Restorative Justice for Victim Survivors of Family Violence’, The Family Violence Restorative Justice Service (Web Page) <https://www.justice.vic.gov.au/fvrjservice>.

  31. Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 511, Recommendation 27 <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>.

  32. Victorian Equal Opportunity and Human Rights Commission, Submission to the Australian Human Rights Commission, National Inquiry into Sexual Harassment in Australian Workplaces (February 2019) 3, 42–3 <https://www.humanrights.vic.gov.au/static/f72f3b7bf8c99ca4911c6f76ba5abcc1/Submission-National_inquiry_sexual_harassment-Feb_2019.pdf>.

  33. Submission 32 (A victim survivor of sexual assault (name withheld)).

  34. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 10 (Carolyn Worth AM and Mary Lancaster), 12 (Women’s Legal Service Victoria), 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria), 18 (In Good Faith Foundation), 21 (Victorian Aboriginal Child Care Agency), 22 (knowmore legal service), 24 (Jesuit Social Services), 25 (Dr Steven Tudor), 27 (Victoria Legal Aid), 40 (Law Institute of Victoria), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 50 (Project Respect), 52 (Centre for Innovative Justice), 53 (Liberty Victoria), 54 (Victorian Multicultural Commission), 56 (Domestic Violence Victoria), 58 (Law and Advocacy Centre for Women Ltd); Consultations 32 (Anonymous member, Victim Survivors’ Advisory Council), 56 (Cecilia, a victim survivor of sexual assault), 64 (Marie (a pseudonym)), 69 (Deborah, a victim survivor of sexual assault), 71 (Magistrates’ Court of Victoria (No 1)); Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

  35. Submission 27 (Victoria Legal Aid).

  36. Consultations 1 (ACT Restorative Justice Unit and academics), 2 (Centre for Innovative Justice), 3 (Family Violence Restorative Justice Service), 12 (Project Restore), 38 (Australian Association for Restorative Justice).

  37. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 12 (Women’s Legal Service Victoria), 25 (Dr Steven Tudor), 52 (Centre for Innovative Justice), 53 (Liberty Victoria).

  38. Consultation 64 (Marie (a pseudonym)).

  39. Submission 45 (Victims of Crime Commissioner).

  40. Submission 56 (Domestic Violence Victoria).

  41. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

  42. Consultation 56 (Cecilia, a victim survivor of sexual assault).

  43. Consultation 69 (Deborah, a victim survivor of sexual assault).

  44. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

  45. Consultation 32 (Anonymous member, Victim Survivors’ Advisory Council).

  46. Submission 17 (Sexual Assault Services Victoria).

  47. Submission 67 (Victorian Aboriginal Legal Service).

  48. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

  49. Submission 17 (Sexual Assault Services Victoria).

  50. Consultation 71 (Magistrates’ Court of Victoria (No 1)).

  51. Consultation 59 (Ashleigh Rae, Nicole Lee, Penny).

  52. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

  53. Ibid.

  54. Submission 15 (Danielle).

  55. Consultation 63 (A victim survivor of sexual assault, name withheld).

  56. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

  57. Submission 52 (Centre for Innovative Justice).

  58. Ministry of Justice (NZ), Restorative Justice Standards for Sexual Offending Cases (Report, 2013) 19 <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-justice-standards-for-sexual-offending-cases.pdf>.

  59. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [7.249].

  60. Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 86 <https://cij.org.au/research-projects/sexual-offences/>.

  61. Vince Mercer and Karin Sten Madsen, Doing Restorative Justice in Cases of Sexual Violence: A Practice Guide (Report, 2015) 14.

  62. Tristan Russell, William R Wood and Samantha Jeffries, ‘Adult Restorative Justice and Gendered Violence: Practitioner and Service Provider Viewpoints from Queensland, Australia’ (2021) 10(13) Laws 1, 3; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 177 [7.249].

  63. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol IV, 138 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

  64. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Executive Summary and Parts I-II, 2017) 190. While it did not recommend making restorative justice available, the Royal Commission included restorative elements as a central component of its redress scheme. The scheme provides for a direct personal response from a senior representative of the institution where the abuse occurred, including an apology and acknowledgment of the abuse and its impact: Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, Royal Commission into Institutional Responses to Child Sexual Abuse, September 2015) ch 5 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

  65. See, eg, Department of Justice and Regulation (Vic), Restorative Justice for Victim Survivors of Family Violence (Framework, Family Violence Restorative Justice Project, August 2017) <http://www.justice.vic.gov.au/restorative-justice-for-victim-survivors-of-family-violence-framework>; Ministry of Justice (NZ), Restorative Justice—Best Practice Framework (Report, 2017) <https://www.justice.govt.nz/assets/Documents/Publications/restorative-justice-best-practice-framework-2017.pdf>; Ministry of Justice (NZ), Restorative Justice Standards for Sexual Offending Cases (Report, 2013) <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-justice-standards-for-sexual-offending-cases.pdf>; Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ESC Res 2002/12, 37th plen mtg (24 July 2002) <https://www.unodc.org/pdf/criminal_justice/Basic_Principles_on_the_use_of_Restorative_Justice_Programs_in_Criminal_Matters.pdf>; United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (Handbook, United Nations, 2006) 33–44.

  66. Department of Justice and Regulation (Vic), Restorative Justice for Victim Survivors of Family Violence (Framework, Family Violence Restorative Justice Project, August 2017) 6–9 <http://www.justice.vic.gov.au/restorative-justice-for-victim-survivors-of-family-violence-framework>.

  67. Ministry of Justice (NZ), Restorative Justice—Best Practice Framework (Report, 2017) <https://www.justice.govt.nz/assets/Documents/Publications/restorative-justice-best-practice-framework-2017.pdf>; Ministry of Justice (NZ), Restorative Justice Standards for Sexual Offending Cases (Report, 2013) <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-justice-standards-for-sexual-offending-cases.pdf>. But note also that in New Zealand, it is a principle that ‘full participation of the victim and offender should be encouraged’: ibid 10 [2]. This is not a principle we have adopted because it may create tension with the principle that the process should be centred around the needs of the person harmed.

  68. Victorian Law Reform Commission, Sexual Offences: Restorative and Alternative Justice Models (Issues Paper G, October 2020). In our issues paper, we listed 12 best practice principles. Here, we have amalgamated some principles to arrive at the list of eight guiding principles. ‘Safety and respect’ now incorporates the following components, which were listed separately in the issues paper: protection from harm; power imbalances redressed and dignity and equality of participants recognised; appropriate resourcing and expert personnel; flexibility and responsiveness to diverse needs. ‘Accountability’ now incorporates two components that were listed separately in the issues paper: the person responsible accepts responsibility; outcome agreements are fair and reasonable.

  69. Some submissions focused on particular principles, or expressed the principles in slightly different form, but there was strong overall support. See, eg, Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 10 (Carolyn Worth AM and Mary Lancaster), 22 (knowmore legal service), 27 (Victoria Legal Aid), 52 (Centre for Innovative Justice), 53 (Liberty Victoria), 55 (Springvale Monash Legal Service), 68 (Victoria Police).

  70. Submissions 22 (knowmore legal service), 27 (Victoria Legal Aid), 52 (Centre for Innovative Justice), 53 (Liberty Victoria), 68 (Victoria Police). See also Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ESC Res 2002/12, 37th plen mtg (24 July 2002) [7], [13] <https://www.unodc.org/pdf/criminal_justice/Basic_Principles_on_the_use_of_Restorative_Justice_Programs_in_Criminal_Matters.pdf>.

  71. Marie Keenan, ‘Training for Restorative Justice Work in Sexual Violence Cases’ (2018) 1(2) The International Journal of Restorative Justice 291, 292.

  72. Submissions 9 (Djirra), 20 (Anonymous member of Aboriginal community), 67 (Victorian Aboriginal Legal Service).

  73. Submission 53 (Liberty Victoria). See also United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series, 2nd ed, 2020) 6–7.

  74. However, a person who first pleaded not guilty and later admitted guilt may still be accepted for restorative justice: Ministry of Justice (NZ), Restorative Justice Standards for Sexual Offending Cases (Report, 2013) 12 [4] <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-justice-standards-for-sexual-offending-cases.pdf>.

  75. Ibid 8, 12 [4]; Sentencing Act 2002 (NZ) ss 24A, 25(1)(b).

  76. Department of Justice and Regulation (Vic), Restorative Justice for Victim Survivors of Family Violence (Framework, Family Violence Restorative Justice Project, August 2017) 7 <http://www.justice.vic.gov.au/restorative-justice-for-victim-survivors-of-family-violence-framework>.

  77. Ibid. See also Justice and Community Safety (Vic), ‘Restorative Justice for Victim Survivors of Family Violence’, The Family Violence Restorative Justice Service (Web Page) <https://www.justice.vic.gov.au/fvrjservice>.

  78. Consultation 1 (ACT Restorative Justice Unit and academics).

  79. Crimes (Restorative Justice) Act 2004 (ACT) ss 19(1)(b), 20(1). Young people need not actively accept responsibility—they are able to participate in restorative justice for less serious offences (punishable by 10 years imprisonment or less) if they do not deny responsibility: s 19(1)(b).

  80. See, eg, Crimes (Restorative Justice) Act 2004 (ACT) s 51(3)–(4).

  81. Vince Mercer and Karin Sten Madsen, Doing Restorative Justice in Cases of Sexual Violence: A Practice Guide (Report, 2015) 13.

  82. Shirley Jülich et al, An Exploratory Study of Restorative Justice and Sexual Violence (Report, AUT University, Project Restore—NZ, May 2010) 37.

  83. Crimes (Restorative Justice) Act 2004 (ACT) ss 48, 53(e), 54; Sentencing Act 2002 (NZ) s 8(j).

  84. See, eg, Submissions 10 (Carolyn Worth AM and Mary Lancaster), 14 (Gatehouse Centre, Royal Children’s Hospital), 18 (In Good Faith Foundation), 27 (Victoria Legal Aid), 52 (Centre for Innovative Justice).

  85. Bebe Loff, Liz Bishop and Bronwyn Naylor, Community-Based, Victim-Centred Restorative Justice for Sexual Violence—A Pilot (Report, July 2019) 7 <http://www.naj2017.com/1729>; Tristan Russell, William R Wood and Samantha Jeffries, ‘Adult Restorative Justice and Gendered Violence: Practitioner and Service Provider Viewpoints from Queensland, Australia’ (2021) 10(13) Laws 1, 3.

  86. Marie Keenan, ‘Training for Restorative Justice Work in Sexual Violence Cases’ (2018) 1(2) The International Journal of Restorative Justice 291, 297–9; Vince Mercer and Karin Sten Madsen, Doing Restorative Justice in Cases of Sexual Violence: A Practice Guide (Report, 2015) 14–5.

  87. Submission 52 (Centre for Innovative Justice); Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ESC Res 2002/12, 37th plen mtg (24 July 2002) 41 <https://www.unodc.org/pdf/criminal_justice/Basic_Principles_on_the_use_of_Restorative_Justice_Programs_in_Criminal_Matters.pdf>.

  88. The Family Violence Restorative Justice Service told us that screening and preparation for family violence restorative justice conferences typically takes at least six months: Consultation 3 (Family Violence Restorative Justice Service). See also Submission 53 (Liberty Victoria); Consultation 1 (ACT Restorative Justice Unit and academics); Clare McGlynn, Nicole Westmarland and Nikki Godden, ‘“I Just Wanted Him to Hear Me”: Sexual Violence and the Possibilities of Restorative Justice’ (2012) 39(2) Journal of Law and Society 213, 226.

  89. In the case of the ACT’s Restorative Justice Unit, the Family Violence Risk Assessment Tool or ‘FVRAT’ is used, which has a scoring system for analysing dynamics of power and control: Consultation 1 (ACT Restorative Justice Unit and academics). See also Consultation 3 (Family Violence Restorative Justice Service); Ministry of Justice (NZ), Restorative Justice Practice Standards for Family Violence Cases (Report, 2 August 2019) 19–20 <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-Justice-Family-Violence-Practice-Standards-August-2019.pdf>.

  90. Bebe Loff, Liz Bishop and Bronwyn Naylor, Community-Based, Victim-Centred Restorative Justice for Sexual Violence—A Pilot (Report, July 2019) 46 <http://www.naj2017.com/1729>.

  91. Ministry of Justice (NZ), Restorative Justice Standards for Sexual Offending Cases (Report, 2013) 15 [6] <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-justice-standards-for-sexual-offending-cases.pdf>.

  92. Submission 52 (Centre for Innovative Justice). See also Submission 53 (Liberty Victoria); Tristan Russell, William R Wood and Samantha Jeffries, ‘Adult Restorative Justice and Gendered Violence: Practitioner and Service Provider Viewpoints from Queensland, Australia’ (2021) 10(13) Laws 1, 11.

  93. Marie Keenan, ‘Training for Restorative Justice Work in Sexual Violence Cases’ (2018) 1(2) The International Journal of Restorative Justice 291, 292–3; United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series, 2nd ed, 2020) 60–1.

  94. Submission 52 (Centre for Innovative Justice); Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 7, 24, 39 <https://cij.org.au/research-projects/sexual-offences/>.

  95. Consultation 3 (Family Violence Restorative Justice Service).

  96. Submission 68 (Victoria Police).

  97. The Centre for Innovative Justice discusses these concerns. It supports making restorative justice available for children and young people, and other potentially vulnerable participants, with appropriate safeguards and assessed on a case-by-case basis: Submission 52 (Centre for Innovative Justice).

  98. Ministry of Justice (NZ), Restorative Justice Standards for Sexual Offending Cases (Report, 2013) 26 <https://www.justice.govt.nz/assets/Documents/Publications/Restorative-justice-standards-for-sexual-offending-cases.pdf>.

  99. Crimes (Restorative Justice) Act 2004 (ACT) ss 17(1)(b)–(2).

  100. Children, Youth and Families Act 2005 (Vic) s 344; Criminal Code 2002 (ACT) s 25. However, children in the Australian Capital Territory aged between 10 and 13 years can only be held criminally responsible if they know their conduct is wrong: Criminal Code 2002 (ACT) s 26.

  101. Oliver Gordon, ‘Australia Urged by 31 Countries at UN Meeting to Raise Age of Criminal Responsibility’, ABC News (online, 21 January 2021) <https://www.abc.net.au/news/2021-01-21/un-australia-raise-the-age-of-criminal-responsibility/13078380>.

  102. Children, Youth and Families Act 2005 (Vic) pt 4.8, dv 3; Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

  103. Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

  104. Consultation 16 (Senior sexual assault worker, South Eastern Centre Against Sexual Assault).

  105. Submission 24 (Jesuit Social Services).

  106. When making these points, Jesuit Social Services referred to people with cognitive impairments as well as children: ibid.

  107. Children’s Court of Victoria, ‘Group Conferencing’, Children’s Court of Victoria (Web Page, 2021) <https://www.childrenscourt.vic.gov.au/criminal-division/group-conferencing>; Children, Youth and Families Act 2005 (Vic) s 415. Currently, the conferencing process focuses on supporting the rehabilitation of the child responsible for harm. The consent or participation of the person harmed are not preconditions: s 415(4).

  108. Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

  109. Submissions 9 (Djirra), 65 (Aboriginal Justice Caucus), 67 (Victorian Aboriginal Legal Service).

  110. Submission 65 (Aboriginal Justice Caucus).

  111. Submission 9 (Djirra).

  112. Ibid.

  113. Submission 67 (Victorian Aboriginal Legal Service).

  114. Justice and Community Safety (ACT), ‘Indigenous Support’, Justice and Community Safety Directorate (Web Page) <https://justice.act.gov.au/standard-page/indigenous-support>.

  115. Ibid.

  116. Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ESC Res 2002/12, 37th plen mtg (24 July 2002) preamble <https://www.unodc.org/pdf/criminal_justice/Basic_Principles_on_the_use_of_Restorative_Justice_Programs_in_Criminal_Matters.pdf>.

  117. Submission 52 (Centre for Innovative Justice).

  118. Centre for Innovative Justice, RMIT University, It’s Healing to Hear Another Person’s Story and Also to Tell Your Own Story: Report on the CIJ’s Restorative Justice Conferencing Pilot Program (Report, October 2019) 8 <https://cij.org.au/cms/wp-content/uploads/2018/08/rmit_8691-rjcpp-report-web.pdf>.

  119. Council of Europe, Recommendation Concerning Restorative Justice in Criminal Matters (Doc No CM/Rec 2018) 8 [54] <http://giustiziariparativa.comune.tempiopausania.ot.it/attachments/article/3972/CM%20Rec%20(2018)%208%20concerning%20restorative%20justice%20in%20criminal%20matters%2003.10.18.pdf>.

  120. Marie Keenan, ‘Training for Restorative Justice Work in Sexual Violence Cases’ (2018) 1(2) The International Journal of Restorative Justice 291, 296.

  121. Submission 53 (Liberty Victoria); Consultations 3 (Family Violence Restorative Justice Service), 12 (Project Restore); Bebe Loff, Liz Bishop and Bronwyn Naylor, Community-Based, Victim-Centred Restorative Justice for Sexual Violence—A Pilot (Report, July 2019) 45 <http://www.naj2017.com/1729>; Clare McGlynn, Nicole Westmarland and Nikki Godden, ‘“I Just Wanted Him to Hear Me”: Sexual Violence and the Possibilities of Restorative Justice’ (2012) 39(2) Journal of Law and Society 213, 236–7.

  122. Marie Keenan, ‘Training for Restorative Justice Work in Sexual Violence Cases’ (2018) 1(2) The International Journal of Restorative Justice 291, 297–8.

  123. United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series, 2nd ed, 2020) 72.

  124. Consultation 38 (Australian Association for Restorative Justice).

  125. Submission 52 (Centre for Innovative Justice); Consultation 12 (Project Restore); Clare McGlynn, Nicole Westmarland and Nikki Godden, ‘“I Just Wanted Him to Hear Me”: Sexual Violence and the Possibilities of Restorative Justice’ (2012) 39(2) Journal of Law and Society 213, 230, 237.

  126. Submissions 27 (Victoria Legal Aid), 52 (Centre for Innovative Justice), 53 (Liberty Victoria). See also Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ESC Res 2000/14, UN Doc E/2000/INF/2/Add.2 (15 August 2000) 41 [14] <https://www.undocs.org/E/2000/INF/2/Add.2>; Centre for Innovative Justice, RMIT University, It’s Healing to Hear Another Person’s Story and Also to Tell Your Own Story: Report on the CIJ’s Restorative Justice Conferencing Pilot Program (Report, October 2019) 9 <https://cij.org.au/cms/wp-content/uploads/2018/08/rmit_8691-rjcpp-report-web.pdf>.

  127. Vince Mercer and Karin Sten Madsen, Doing Restorative Justice in Cases of Sexual Violence: A Practice Guide (Report, 2015) 12–13.

  128. Crimes (Restorative Justice) Act 2004 (ACT) ss 59, 60. See also s 12 (definition of less serious offence). Note as well that it is an offence for people working under the Territory’s restorative justice legislation to disclose information they learn during restorative justice: s 64.

  129. We noted that ‘Details about the application of the privilege and its relationship with the conference facilitator’s report and any agreement reached by the parties, and whether any other exceptions should apply, are matters that require additional consideration’: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [7.288] and see generally [7.286]–[7.289].

  130. Various legislative provisions protect the confidentiality of discussions or (more narrowly) provide that they are not admissible in subsequent legal proceedings: see, eg, Criminal Procedure Act 2009 (Vic) s 127(3) (evidence of things said or done during a committal case conference is not admissible except with the consent of the parties); Children, Youth and Families Act 2005 (Vic) s 415(9), (10) (the proceedings of a group conference are confidential and must not be disclosed without leave of the court or the consent of the parties).

  131. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [7.286].

  132. Crimes Act 1958 (Vic) s 327.

  133. Submission 52 (Centre for Innovative Justice); Department of Justice and Regulation (Vic), Restorative Justice for Victim Survivors of Family Violence (Framework, Family Violence Restorative Justice Project, August 2017) 9 <http://www.justice.vic.gov.au/restorative-justice-for-victim-survivors-of-family-violence-framework>.

  134. Submissions 17 (Sexual Assault Services Victoria), 52 (Centre for Innovative Justice), 53 (Liberty Victoria).

  135. Submissions 17 (Sexual Assault Services Victoria), 52 (Centre for Innovative Justice); Consultation 12 (Project Restore).

  136. Submissions 27 (Victoria Legal Aid), 52 (Centre for Innovative Justice), 53 (Liberty Victoria).

  137. Submissions 52 (Centre for Innovative Justice), 53 (Liberty Victoria); Consultation 12 (Project Restore); Centre for Innovative Justice, RMIT University, It’s Healing to Hear Another Person’s Story and Also to Tell Your Own Story: Report on the CIJ’s Restorative Justice Conferencing Pilot Program (Report, October 2019) 10 <https://cij.org.au/cms/wp-content/uploads/2018/08/rmit_8691-rjcpp-report-web.pdf>.

  138. Tristan Russell, William R Wood and Samantha Jeffries, ‘Adult Restorative Justice and Gendered Violence: Practitioner and Service Provider Viewpoints from Queensland, Australia’ (2021) 10(13) Laws 1, 24.

  139. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendation 32. Our recommendation was restricted to indictable crime in line with our limited terms of reference, but there is no reason in principle why restorative justice should not be available for summary offences as well.

  140. Ibid Recommendation 34.

  141. Ibid [7.328].

  142. Submission 52 (Centre for Innovative Justice); Centre for Innovative Justice, RMIT University, It’s Healing to Hear Another Person’s Story and Also to Tell Your Own Story: Report on the CIJ’s Restorative Justice Conferencing Pilot Program (Report, October 2019) 26–7 <https://cij.org.au/cms/wp-content/uploads/2018/08/rmit_8691-rjcpp-report-web.pdf>.

  143. Sexual Assault Services Victoria emphasised that restorative justice for sexual offences should not become a ‘second-tier’ alternative to criminal prosecutions: Submission 17 (Sexual Assault Services Victoria).

  144. Submission 52 (Centre for Innovative Justice); Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol IV, 144 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

  145. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendation 32.

  146. Submissions 17 (Sexual Assault Services Victoria), 27 (Victoria Legal Aid), 52 (Centre for Innovative Justice), 53 (Liberty Victoria).

  147. In New Zealand: Consultation 12 (Project Restore). In the Australian Capital Territory, a person can be referred for restorative justice before other options for dealing with an alleged offence are considered. However, the legislation provides that ‘the referral is to have no effect on any other action or proposed action in relation to the offence or the offender’. As a result, charges may still be filed or a prosecution continued regardless of a restorative justice process or outcome: Crimes (Restorative Justice) Act 2004 (ACT) s 7(1)–(2).

  148. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [7.292].

  149. Crimes (Restorative Justice) Act 2004 (ACT) s 7(1). References to ‘offender’ or ‘offence’ include references to ‘alleged offender’ and ‘alleged offence’: s 12 (definition of ‘offence’ and ’offender’).

  150. Policy of the Director of Public Prosecutions for Victoria (Report, 17 September 2020) 4 [6] <https://www.opp.vic.gov.au/getattachment/a26fab55-0c8a-48a9-b4e5-71f3a898e6cb/DPP-Policy.aspx>.

  151. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [7.297].

  152. Ibid [7.283].

  153. Ibid [7.280].

  154. Ibid [7.281]–[7.282].

  155. Consultation 1 (ACT Restorative Justice Unit and academics).

  156. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 27 (Victoria Legal Aid).

  157. Submission 52 (Centre for Innovative Justice).

  158. Crimes (Restorative Justice) Act 2004 (ACT) s 16(3). In the Australian Capital Territory, less serious offences can be referred for restorative justice during criminal prosecutions, but less serious sexual offences should only be referred and accepted for restorative justice, where a criminal prosecution is underway, in exceptional circumstances: ibid ss 27(5), 33(2) (exceptional circumstances). Less serious offences are punishable by a term of imprisonment of 10 years or less: s 12 (definition of ’less serious sexual offences’).

  159. Sentencing Act 2002 (NZ) ss 8(j), 10; Crimes (Sentencing) Act 2005 (ACT) s 33(1)(y); Crimes (Restorative Justice) Act 2004 (ACT) s 53(e).

  160. Submission 53 (Liberty Victoria); Consultation 1 (ACT Restorative Justice Unit and academics).

  161. Sentencing Act 1991 (Vic) ss 5(2)(daa), 5(2)(e).

  162. To implement our recommendation, section 5 of the Sentencing Act 1991 (Vic) could be amended to provide that a court must have regard to participation in restorative justice in sentencing an offender (but not for the purposes of imposing a more severe sentence if the offender chose not to participate or to withdraw from restorative justice). A sentencing court may in any event consider participation in restorative justice under section 5(2C), which provides that the court may have regard to the conduct of an offender on or in connection with the trial or hearing as an indication of remorse, or lack of remorse .

  163. Crimes (Restorative Justice) Act 2004 (ACT) ss 25(f)(ii), 53(e)(ii); Crimes (Sentencing) Act 2005 (ACT) s 34(1)(h).

  164. In Victoria, courts are empowered to defer sentencing for up to 12 months to allow an adult offender ‘to participate in a program or programs aimed at addressing the impact of the offending on the victim’. A court must only defer a matter if the offender agrees: Sentencing Act 1991 (Vic) s 83A. This provision could enable the County Court to order the deferral of a sentence for the purposes of a restorative justice conference: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [7.248].

  165. The person harmed by the offence could choose to defer providing a Victim Impact Statement until after restorative justice. Their Victim Impact Statement could be provided in the usual way before the sentencing hearing, and they would have the opportunity to read it at the sentencing hearing: Sentencing Act 1991 (Vic) pt 3, div 1C.

  166. Crimes (Restorative Justice) Act 2004 (ACT) s 58.

  167. See generally ibid div 8.5.

  168. The availability of restorative justice through the Family Violence Restorative Justice Service would not prevent civil organisations with appropriate expertise applying for accreditation to provide restorative justice for family violence.