Contents

Chapter 9
Proposal for reform

Performance of the oversight functions

9.193As we have identified at the beginning of this chapter, oversight of the alternative process is required to give it credibility and authority, to inspire public confidence, to assure independence, and to attribute responsibility for the functions outlined in this chapter.

9.194The question is which body, or bodies, should be allocated these oversight functions.

Court oversight

9.195We have ruled out the court or tribunal as an appropriate oversight body, as the aim is to provide victims with an option outside of the criminal justice model, that may align more appropriately with the needs and interests of victims including in cases where there is otherwise insufficient evidence for a prosecution to be brought.

9.196Nevertheless, some of those we consulted with, including the Family Violence Death Review Committee (FVDRC), considered that ideally the court should have oversight of these processes. The concern of FVDRC was that where cases of sexual violence also involved family violence, to have a different entity having oversight would cause yet another fragmentation of information within the system which will put victims of family violence at risk.

9.197During consultation on our draft report Professor Leigh Goodmark, a practitioner and academic from the United States, commented to us that an oversight body needs to be independent of the criminal justice system:662

because one of the major reasons that women are refusing to come forward is that they are not interested in having the criminal justice system intervene, particularly when the criminal justice system intervenes in ways that rob them of autonomy.  Having the [alternative] process affiliated with the courts or police, for example, could lead some women to fear that their matters will become public despite their wishes or they will lose control of their right to terminate the process.  Whether this is in fact true or not, the perception that the [alternative] process will be a criminal justice system-run process could dissuade people from using it.

9.198We continue to be of the view that a body outside of the criminal justice system is needed.

Ministry of JusticeTop

9.199A possibility would be for a body to sit within the executive branch of government. From a cost and efficiency perspective, we have considered whether it may be possible for some of the oversight functions to sit within the Ministry of Justice – given that it already has experience working with presentence restorative justice providers, particularly those working with cases of sexual violence. For instance the Ministry of Justice is responsible, amongst other things, for contracting with, funding and evaluating restorative justice providers and accrediting facilitators, and has prepared the Ministry of Justice standards referred to above, outlining what is required of providers and programmes operating in cases of sexual violence.663

9.200Therefore on one view the Ministry’s role could be extended in order to conduct the functions outlined above of:

9.201However, our preferred view is for an oversight body to be independent of the executive arm of government, given the “justice outcomes” that result when the alternative process is completed by a perpetrator (there would be a bar on prosecution of the same incident). In our view such independence is necessary in order to ensure transparency and freedom from actual or perceived executive influence.

9.202At a minimum, we consider that the function of maintaining records and a central register (and the review panel function) should be carried out by an entity that is independent of government.

A new independent entityTop

9.203Our preference is that a specific body be established that has responsibility for the alternative process and that conducts all the functions discussed above.

9.204In Part D of this Report we highlight that a certain number of coordination and oversight functions in the sexual violence sector are not being fulfilled, and propose a new oversight body (that we call a “commission”) to fulfil these functions. Should that recommendation be accepted, this commission would be well placed to exercise the oversight functions set out in this chapter. The accreditation and oversight functions proposed in this chapter in respect of providers and programmes in the alternative process could easily be extended to the sexual violence sector.

9.205However, there would need to be a clear separation between the parts of the commission that fulfil those roles (oversight of the sector and oversight of the alternative process). The first function is based on improving the wider victim experience and increasing uptake and follow-through participation in the justice process. That function may conflict or be seen to conflict with the second function, part of which would involve assessing entry of perpetrators into programmes and ensuring fair processes for perpetrators.

9.206One possibility may be for the commission to split those responsibilities between two commissioners. Another possibility is to follow the model employed in the Human Rights Commission, in which the Office of Human Rights Proceedings sits under the Human Rights Commission but is independent of it and has an independently-appointed director.

Other independent entityTop

9.207If our recommendation for a commission is not accepted, we recommend that the independent review panel be set up by statute to perform the functions attributed to it in this chapter, with the additional responsibility of maintaining records and the central register. The other oversight functions discussed throughout this chapter should be performed by the Ministry of Justice.

recommendations

662Email from Leigh Goodmark to the Law Commission regarding review of criminal justice response to victims of sexual violence (10 September 2015).
663We understand that the Ministry of Justice has recently awarded the contract to a body that will be responsible for training and assessment of facilitators, and possibly including further specific training in sexual violence. It may be appropriate for this same body to take on the process of training and assessing providers and programmes and accrediting, under contract with the Ministry of Justice.