The following article provides an introduction to restorative justice and the NSW Youth Justice Conferencing Scheme. Citations were omitted in this post for convenience. The full article with citations is available as an attachment.
Many thanks to Peter O'Brien for your time and effort in reviewing the article for publication on this website.
The NSW Youth Justice Conferencing Scheme was enacted with close reference to the theory of restorative justice (‘RJ’). Generally, RJ is a method of resolving disputes, particularly criminal offences, through reparation, reconciliation and reassurance. It involves meaningful participation of the victim, offender and the relevant community members in the process of repairing the harm caused by the offender’s transgression. The Youth Justice Conferencing scheme was established by the Young Offenders Act 1997 (NSW) (‘the Act’) as an alternative dispute resolution for young offenders. It is a decision making forum, facilitated by a convenor, where the young offender, accompanied by their support group, meets face-to-face with the victim, with their support group, to discuss matters including: the offending, the harm done to the victim, and the offender’s accepting of responsibility for their behaviour. Parties also try to negotiate some form of restitution to the victim and to reintegrate the offender into their family and community network. Though conferencing achieves many of the aspirations of RJ, it fails to reduce recidivism, however, and at times contradicts its own philosophy, particularly with respect to equality of treatment.
The primary distinguishing feature of RJ from retributive justice, as applied in the court processes, is its focus on repairing the harm as opposed to punishing the offender. Another characteristic of RJ is its assumption that crime or a serious, bad act affects the victims, the offenders and their community. Unlike retributive justice, RJ it is not focussed on public vengeance, deterrence or punishment.
Bazemore and Walgrave proposed that RJ involves four elements. The first is the harm caused by the crime, be it material loss, physical injuries, psychological harm or social dysfunctions. Secondly, there needs to be a victim. Thirdly, there is restoration which can be concrete restorations, such as repairing damages or compensation, or symbolic, for example apologies, depending on the victim’s needs. Finally, the process must do justice to the crime. This means the satisfaction of all parties. For example, satisfaction for the victim may be that they feel, after the meeting, that their victimisation had been treated seriously, their losses had been addressed; the offender had understood that their behaviour had transgressed social tolerance and had taken an opportunity to make up for the losses. Community satisfaction may lie in feeling empowered by the process and an increase in the feeling of social cohesion. Basically, the parties meet in a structured environment where the victim explains their injuries and hurts, while the offender explains their bad behaviours, accepts responsibility and makes personalised restitution to the victim.
Ultimately, the elements described above primarily operate upon the active communication between the victims and the offenders to achieve acknowledgement of fault by the offenders and a personalised outcome. This is unlike court procedures where the offenders and victims have little role and control over the process and outcomes. Ideally, through restitution, the parties achieve new mutual understandings, forgiveness and improved future behaviours. Therefore, it is argued that RJ should reduce recidivism and greater satisfaction with the process.
It had been suggested that RJ is a viable alternative to the court process in juvenile justice systems. Young people are seen to be less blameworthy than adults while the accountability of youth crime usually extends to their social groups such as the family and school. Therefore, RJ is appropriate because it provides a role for parents and other support groups. Also, young offenders are given a second chance as RJ aims to share understanding of the root causes of the crime and to heal the victim and the offender, so as to re-integrate them into the community.
NSW YOUTH JUSTICE CONFERENCING SCHEME
The NSW Youth Justice Conferencing Scheme (‘NSWJCS’) embodies a range of characteristics of RJ, as seen in the objects of the Act. The NSWCJS aims to provide an alternative process to court proceedings and an effective and direct response to certain offences committed by people between ages 10-18. The notion of providing a direct and efficient response to crime implies a feature of RJ in that it aims to restore the losses caused by the crime as opposed to punishing the offender, which is an indirect and inefficient means of addressing the losses. The Act, in addition, emphasises the offender’s acceptance of responsibility for their behaviour. This is an identical aim of RJ. Like RJ, the NSWCJS is based on the idea that crime affects the community and the conference helps young offenders to repair the harm caused to the victims. This can be seen in the objects of the Act, which is to enable a community based negotiated response to offences. Further, much as RJ includes the community in the process, conferencing gives a role to parents and other support persons in the process. The idea of a personalised outcome in RJ is also enacted in s 3(c)(i) of the Act which aims to meet the needs of victims and offenders.
The theory of RJ had been critiqued heavily in academia. Though many of the evaluations are positive, there are some concerns regarding the offender and victim’s experience in the process. A criticism is the possibility of re-victimisation of the victim during the RJ meeting. It was suggested that, though most victims find the offender shy and ashamed at the meeting, some offenders are formidable and intimidating. For example, the victim may experience threats from the offender in their meetings. However, the Act attempts to address this issue by excluding sexual offences and domestic violence cases from conferencing. Another criticism is the possibility that the offender may experience more shaming than in the court process. For example, the offender may be subject to moral lecturing, moral superiority and sarcasm from the victim. Conferencing addresses both issues by emphasising the importance of having support persons attend with both the victim and the offender. The victim’s support group should protect the offender from re-victimising. The presence of the offender’s support group also acts as a shield for the offender from undue shaming. The facilitator plays an important role in controlling the process and maintaining a safe environment for both the victims and offenders.
The conferencing scheme is shown to meet most of the aspirations of RJ. Section 34 of the Act outlines their principles and purposes of conferencing. It embodies the aspirations of RJ in rehabilitating the offender and their accepting of responsibility. The purposes include: promoting the acceptance of responsibility by the child offender, strengthening the family group of the child, providing them with developmental and support services, and cultural appropriateness.
Research has shown that, overall, participants of conferencing were satisfied with the process. Over 90% of the participants, including the offender and victims, believed the conference was fair to the offender and victim. 89% of the participants felt the conference had taken account of what they had said in deciding the outcome plan and were satisfied with it. Further, the majority of the offenders accepted responsibility for their actions in the conferences, felt that the offence committed was wrong, and understood how the victims were affected and harmed by it. These findings show that conferences meet the aspirations of acceptance of responsibility and the strengthening of the family group through collaboration of the outcome plan. This also answers the criticisms discussed above as there is evidence that all parties are shown to be satisfied with the process. Therefore, there is minimal evidence of re-victimisation and undue shaming.
Nevertheless, the scheme is not without limitations. Conferencing fails to provide equal treatment to all young offenders. Ringland and Smith conducted a study that examined the level of variation across NSW Police in diverting young persons from court to alternative resolutions, such as conferencing. They found that being male, older and of indigenous status decreased the likelihood of being referred to alternative means. Such over-representation of Indigenous offenders in the children's court may be a failure to uphold the aim of being culturally appropriate. It is also hypocritical as RJ proposes that the accountability of youth crime is spread among the child’s family and community, but children who are male, older or indigenous are held personally blameworthy and to be punished through the court process. Therefore, although the aims of the scheme and ideas of RJ are appealing, the application of it requires further work as the NSW Police have been biased with referrals to alternative resolutions. A solution for this may involve further training to raise awareness of this potential bias in law enforcements and strategies for reducing this bias, such as the implementation of a decision tree for referrals.
Conferencing fails to reduce recidivism as RJ aspires to achieve. Trimboli found in her survey that the majority of offenders expected not to re-offend. Further, past research comparing recidivism of young offenders processed through the court process, against those participating in the conferencing scheme had found that conferencing had reduced re-offending. However, many of the studies had significant methodological flaws in the study design. Smith and Weatherburn, through statistically controlling for other variables, found that there was no significant difference between conferencing or court participation in re-offending. This means that, statistically, conferencing does not reduce re-offending any better than the court. However, the Act makes no mentioning of re-offending in its objectives or principles. The only reference is in s 34 which provides that children should be given services to overcome their offending behaviour. Nevertheless, the fact that conferencing has little impact on re-offending does not undermine its success in using a less intrusive, less stigmatising and more satisfying form of resolution.
The Youth Justice Conferencing Scheme almost mirrors the theory of RJ. Though it achieves the majority of the aspirations of RJ and avoids its criticisms, it fails to address some essential elements of RJ. Conferences allow both the victim and offender, with their respective support groups, to meet face-to-face in a safe environment and discuss the offender’s acceptance of responsibility and an outcome plan to repair the harm. It has been shown that the majority of the participants of conferencing are satisfied with the process and feel the outcome plan was just. However, research has shown that conferencing does not reduce recidivism as RJ had theorised. Further, the application of the goals of the scheme and the theory of RJ require further work as the NSW Police had been treating young offenders differently depending on their age, gender and background.