Restorative Justice in South Australia
You’d be forgiven for missing Restorative Justice Week last week but, as Dr Ben Livings writes, it’s an area that South Australia has been a world leader but has sadly fallen behind lately.
In the traditional criminal justice model, crime is seen as a violation of the law, and the criminal process works to establish the guilt of the offender and imposes punishment to allocate blame and to deter. Restorative justice shifts the focus and aims to address the harms caused by criminal offending.
In a restorative model, crime is seen as a violation of one person by another, and the emphasis is on problem-solving, dialogue, mutuality and the possibility of forgiveness and reparation.
One way in which this might be achieved is through mediated meetings between offenders and their victims. The meetings allow victims to explain the harm they have suffered, while offenders are given an opportunity to apologise. The parties may agree on a course of action that will give effect to reparation.
Studies consistently demonstrate the value of restorative justice to victims. For instance, a two-year study carried out across a wide range of crime types in the United Kingdom found a victim satisfaction rate of 85 per cent.
Studies have also shown that the use of restorative justice results in a lower rate of re-offending across a wide range of offence-types, and that these benefits are achieved at a fraction of the cost of the criminal justice alternatives.
South Australia has been a leader in the use of restorative justice, as the first state to implement “family group conferencing” to divert young offenders who have admitted responsibility for relatively low-level offending away from court processes. This practice has now been adopted across the country.
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But South Australia has fallen behind when it comes to the provision of restorative justice in relation to adult offending, which is increasingly seen in other jurisdictions as an integral part of the services offered to victims of crime. This is despite research consistently indicates that there is an appetite to increase the use of restorative justice in South Australia.
The ACT has had dedicated legislation and a government-funded restorative justice unit since 2004, and the provision of restorative justice in relation to adult offending is also publicly funded in New South Wales, Queensland and Western Australia. In the United Kingdom, police and other criminal justice agencies are obliged to make victims aware of the availability of Restorative Justice and to advise on the local provision of it.
In South Australia, the Centre for Restorative Justice was set up in 1997, as part of the non-governmental Offenders Aid and Rehabilitation Services (now OARS Community Transitions).
The Centre for Restorative Justice continues to operate, but restorative justice is rarely publicly funded in South Australia and there are no established referral pathways when it comes to offences committed by adults. As a result, the Centre for Restorative Justice only provides services for a handful of cases each year.
Those who advocate for the widespread adoption of restorative justice face challenges.
Politicians are attracted by the empirical evidence that shows it works to increase victim satisfaction and reduce reoffending, all while cutting costs, but are put off by any suggestion that it might be a soft option for offenders.
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This concern is misplaced, since offenders who participate in restorative justice processes often recount how confronting the experience is.
It is also important to note that Restorative Justice approaches can be used instead of or alongside the primarily punitive approach of the mainstream criminal justice system. In appropriate cases, it is possible to impose serious punishments such as imprisonment while also allowing a parallel restorative justice process to take place.
Similarly, concerns have been raised about the risks for victims of taking part in restorative justice programs, particularly where they have been harmed by domestic violence or sexual offences.
These concerns highlight the need for appropriately trained facilitators, who can identify suitable cases and are able to implement appropriate safeguards. Participation in is entirely voluntary and the parties involved are counselled and supported throughout the process.
Indeed, proponents suggest that restorative justice can be well-suited to sexual offending. In its 2021 report Improving the Justice Response to Sexual Offences, the Victorian Law Reform Commission points to ways in which restorative justice can meet the needs of survivors in ways that the mainstream criminal justice system does not.
Restorative Justice works.
It helps victims to come to terms with what has happened to them, allows offenders to confront the harm they have caused, and results in costs savings and reduced rates of re-offending.
Restorative justice may not be appropriate for everybody, but it can be transformative for those who do take part.
Dr Ben Livings is an Associate Professor of Criminal Law and Evidence at the University of South Australia
