Contents

Chapter 9
Proposal for reform

Providers and specialist facilitators

9.54Providers, as the first point of contact and the ones responsible for risk assessments, will be the gatekeepers into the alternative process. Under the alternative process victims and perpetrators will also be relying on the process and the providers, rather than the court.

9.55The public and those participating in the alternative process need to be assured that providers and facilitators are specialists, skilled at what they do, robust in their practice and processes, operating to a high standard, and capable of safely delivering the alternative programmes.

9.56We consider it fundamental that provider organisations are comprised of staff or contractors with specialist skills who are trained in working with sexual violence and able to deliver safe programmes in this context.614

Providers

9.57Currently, the Ministry of Justice standards require providers who conduct restorative justice sexual violence cases to have links with family violence and sexual violence specialist agencies; to have a team of victim and offender specialists; and a system of allocating cases to specialist restorative justice facilitators.615 At present, providers are not accredited but the standards of service and delivery of programmes are covered by each provider’s contract with the Ministry of Justice. Providers report regularly and are evaluated.

9.58In our view, in order to ensure at the outset that such standards are met and that providers are competent and staff are skilled specialists, there is a case for requiring that all providers (and programmes) are assessed on a one-on-one basis for competency against rigorous standards. In our view this is preferable to relying only on providers’ contractual obligations to comply with standards, although that too will assist in ensuring on an ongoing basis that standards are met. If providers meet the standards then they will be accredited.

9.59Accreditation of providers is also necessary as it would be theoretically possible for providers to set up and offer programmes through the alternative process without Ministry of Justice funding. Such providers would not be bound by any contractual terms to abide by the Ministry of Justice standards.

9.60We therefore recommend that the accreditation framework should also incorporate standards and competencies relating to providers against which they are assessed and accredited. The standards and competencies could draw on those already set out in the Ministry of Justice standards.

9.61In our view, after accreditation, providers should be regularly monitored and their accreditation renewed on a regular basis (such as twice a year).

FacilitatorsTop

9.62Currently the Ministry of Justice requires that only a facilitator who is accredited to do so can deliver restorative justice services for sexual violence, and only four providers have accredited facilitators. The process for accreditation of facilitators is paper-based, which means that a facilitator must be first accredited as a general restorative justice facilitator, and then an application is made for accreditation as a sexual violence facilitator.616

9.63Our understanding is that the Ministry of Justice has, as a result of recent tendering processes, contracted with an external organisation to conduct the training and accreditation process for facilitators. This means there will be a transfer of responsibility for accreditation of facilitators from the Ministry of Justice to an independent party.

9.64The new accreditation processes conducted by the independent party will be based on a training and accreditation framework developed to identify and confirm key skills and competencies required to deliver services, whether these are standard restorative justice services or apply to family violence or sexual violence cases.617 The aim is to provide assurance that facilitators are competent. The Ministry of Justice has advised that it is likely that training and individualised assessments of sexual violence facilitators will be the new standard.618

9.65In our view, this is an improvement on the current situation, where, although the general accreditation standards have been well developed by the Ministry of Justice, facilitators’ expertise in relation to sexual violence is only assessed on paper, rather than in a one-on-one assessment of a facilitator’s skills, competency, and any qualifications.

9.66We also consider that those seeking accreditation for sexual violence facilitation should be, at a minimum, specifically trained and preferably also hold qualifications in psychology, social work or law (with a focus on alternative dispute resolution).619 SECASA requires its facilitators to undertake specific training on sexual violence dynamics and assessment of perpetrators based on forensic psychiatry.620

9.67If the change to accreditation processes does not eventuate as anticipated by the Ministry of Justice, then we recommend that the accreditation framework we are recommending, discussed above, should also incorporate standards and competencies relating to facilitators against which they are assessed and accredited.

9.68After accreditation, facilitators should be regularly monitored and their accreditation renewed on a regular basis (such as twice a year).

Statutory prohibitionTop

9.69In our view, significant harm could result to victims and possibly to the public if providers who are not accredited are responsible for entry of cases into the alternative process (through the assessment process) and offer programmes that are not accredited. We consider that no one should be permitted to deliver alternative process programmes unless they are an accredited provider, using accredited facilitators (if relevant to the programme model) and delivering accredited programmes. To support this we recommend that it should be a breach of the legislation to do so.

recommendations

614Writing on this point, McDonald and Tinsley also stress the possible damage to victims unless those involved in programmes understand the dynamic of sexual violence. This in turn, they note, will require a commitment to fund and support providers: McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 588, 377 at 420–421.
615Restorative justice standards for sexual offending cases (Ministry of Justice, 2013).
616Facilitators are accredited after successfully completing modules; receiving generic training on restorative justice technique; co-working some cases and then being assessed by an external assessor. However any who wish to work in specialist areas (such as sexual violence) are then further accredited “on the papers”. An application is made (including a statement of support from the provider), which details a person’s knowledge and experience. In response, accreditation may be conferred in full; not conferred if there is insufficient evidence of the skills, knowledge and experience; or provisionally granted (some oversight is required while the applicant gains further skills, knowledge or experience). Email from Andrea King (Ministry of Justice) to the Law Commission regarding alternative trial process project (18 September 2015).
617Email from Andrea King (Ministry of Justice) to the Law Commission regarding alternative trial processes project (18 September 2015).
618Phone conversation between Andrea King and the Law Commission regarding alternative trial processes project (1 October 2015).
619Email from Bebe Loff to Law Commission regarding SECASA (7 September 2015).
620Email from Bebe Loff to Law Commission regarding SECASA (7 September 2015).