Contents

Chapter 9
Proposal for reform

Review process

9.113Although the alternative process is voluntary, arguably it may be considered to be “quasi-judicial”, as there are justice outcomes that flow from completion of the alternative process – in that there would be a statutory bar on the perpetrator being prosecuted for that specific incident of violence.

9.114Therefore, in our view, in order to ensure that there is transparency of provider decision-making and broad consistency around entry into the process, some decisions of providers should be subject to review by an independent review panel.

9.115We do not consider that there should be review of a provider’s decision regarding the suitability of the victim and perpetrator to enter the alternative process (the suitability assessment). This is a more subjective assessment which the provider is best placed to make based on their expertise and skills, having met and worked with the victim and perpetrator. It also needs to be borne in mind here that the alternative process is not available as of “right’ to a perpetrator, since the initial election to participate is that of the victim and a perpetrator must meet the eligibility and suitability tests to participate.

9.116However, the more objective decisions of providers made in applying the risk assessment framework,643  for instance to deny a perpetrator entry into the alternative process or suspend or cease provision of a programme due to community safety concerns, are ones that ought to be reviewable.

9.117We do not consider there should be any review or appeal of the outcome of any agreements reached through the alternative process programmes, as the victim and perpetrator are engaged in a voluntary process; any outcome agreements are reached by the victim and perpetrator themselves (albeit with the oversight of the provider); and the victim and perpetrator are able to access legal advice prior to confirming the outcome agreement.

A multi-disciplinary panel approach

9.118The review function could be conducted by a review panel comprised of a multidisciplinary “team” of experts from a number of fields, but especially those with an understanding of sexual violence.644
9.119As noted in Chapter 8, the approach of Project Restore in assessing community referral and court-mandated restorative justice cases is to have a team made up of two sexual violence specialists, a clinical psychologist, and a specialist restorative justice facilitator. The Report of the Centre for Innovative Justice recommended a multidisciplinary assessment panel approach to risk assessment. It endorsed the approach of Project Restore and that of the Therapeutic Treatment Board used in Victoria, Australia. The Report made a recommendation for an assessment panel consisting of a forensic mental health professional, a representative of the Office of Public Prosecutions, a senior restorative justice conference provider, and victim and offender specialists.645

9.120If our proposal for a multi-disciplinary panel is accepted, we would suggest that panel members should be comprised respectively of specialists in forensic mental health, child psychology and development, criminal justice, restorative justice, and sexual violence, from the perspective of both victims and perpetrators. We also suggest that the membership could be representative of New Zealand’s cultural and ethnic make-up, particularly bearing in mind that Māori are overly represented in the victim and offender populations for sexual offending.

9.121We also note that, if a panel of this kind is created, it could share resources with the new commission entity that we propose in Part D of this Report.

Procedure for reviewTop

9.122The grounds for an application for review should be set out in legislation and specify that an application for review of a provider decision could be made to the review panel where, for instance, the provider failed to correctly apply the risk assessment framework (including the public interest legislative descriptor test); based its decision on erroneous or irrelevant information; or failed to take into account relevant information.

9.123We recommend that the review panel should set its own procedures for review and that applicable policies and procedures are developed to guide the panel in carrying out its reviews. On most occasions we envisage that the reviews would be paper-based, with information provided to the review panel by the provider who conducted the initial triage, but the review panel could seek further information that would be of assistance to it. The review panel may not need to meet the victim or perpetrator unless it considers that necessary.

9.124If, after review, the review panel determined that the initial decision was incorrectly made by the provider, we consider it should be able to identify any errors and refer the case back to the provider with a direction to reconsider. However, if the review panel determined that the initial decision was made correctly, it would need to advise the victim and perpetrator of its decision.

Recommendations

643See Chapter 8: this risk assessment incorporates a decision of whether to exclude cases based on a public interest descriptor test set out in legislation, and a decision of whether the perpetrator poses an unacceptable level of risk to community safety.
644To ensure an understanding, amongst other things, of “rape myths” (see Chapter 1) and the power dynamic that may be present in sexual violence.
645The Therapeutic Treatment Board (TTB) comprises a member of the Victoria police, a member of the Office of Public Prosecutions, an approved health services representative and a Department of Human Services representative. The TTB was established by section 339 of the Children, Youth and Families Act 2005 (Vic) to provide advice on the making of therapeutic treatment orders (TTOs). TTOs were developed to provide a therapeutic rather than criminal response to young people aged 10 to 15 years exhibiting sexually abusive behaviours. The TTB is comprised of 16 members, who are each members of one of four subgroups. The subgroups meet fortnightly to determine referrals for TTOs. Centre for Innovative Justice, above n 589, at 42.