Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.
7.53One of the most commonly cited examples of a restorative justice practice in the literature is New Zealand’s family group conference (FGC) model, used in the youth justice area and legislated by the Children, Young Persons, and Their Families Act 1989. FGCs are a conferenced-based form of restorative justice that allow a young person, his or her family, a complainant, Police and other youth justice professionals to collaboratively address the underlying causes of offending while still holding the young person accountable. FGCs can occur at a variety of times and for a number of related purposes. The two most common are the “court-ordered FGC” and “intention to charge FGC”.
7.54An intention to charge FGC may be convened in order to determine whether an offence in respect of which proceedings have been commenced should be dealt with by the court, or whether the matter can be dealt with by way of a plan that is completed and monitored outside of the court process. If a plan is formulated, this might require a young person to undertake treatment, do community work, or make redress. The plan is not filed with the court, but is monitored by Police and Child, Youth, and Family. If the plan is successfully completed this is the end of the matter and no charges are laid. In effect this amounts to pre-charge diversion. However, if the plan is not fulfilled, charges may be laid.
7.55Sexual violence in the youth justice area is more likely to be dealt with by a court-ordered FGC. In those cases the purpose of the FGC is to formulate a plan to address the consequences and the causes of offending which will then be presented to and monitored by the Youth Court.
7.56Although restorative in nature, FGCs are focused on the young person who is alleged to have offended, and do not target the justice needs of victims. However, the “intention to charge” FGC does demonstrate the potential for certain types of offending to be dealt with outside of the court. Police act as gatekeepers of the public interest at the outset, before acting in conjunction with Child, Youth, and Family to monitor the plan, completely outside of the court. If the plan fails the court exists as a “backstop”. And the use of FGCs even in cases of alleged sexual violence demonstrates the application of restorative practices in this area, although in a way that is focused on the offender rather than the victim/complainants.
Although there is great enthusiasm for R[estorative] J[ustice] in many countries, careful and well-reasoned analyses raise concerns that these methods could create new risks and potential harms for [victims] of intimate crime… [In designing our programme] we recognized that our planning must acknowledge the unique features of sexual assault, consider how alternative justice practices might improve [victim] experiences in documented areas of dissatisfaction, involve [perpetrators] without violating their constitutional or statutory rights, and anticipate and minimize potential risks of restorative methods.
7.61In order to ensure that programmes are safe, we considered whether one specific programme should be endorsed for use by all providers of an alternative justice mechanism dealing with sexual violence. One option would be to roll out the programme developed by Project Restore throughout the country and utilise the Ministry of Justice standards already in place.
7.62However, throughout consultation, it was emphasised to us by those who work in the area that a range of programmes to suit different victims is preferable. As sexual violence can occur in a variety of different contexts, and given that not all victims will want the same outcomes or have the same needs, a range of programmes is preferable rather than a “one size fits all” programme. Therefore, rather than endorsing one specific programme, we recommend that an accreditation framework be developed which covers the key values and components that should be present in every programme established under this model.
7.64Our preference is to give victims the ability to decide which route to take, but with a public interest override. If an alternative process is elected but a case is unsuitable, that will be identified through an assessment process (discussed in Chapter 8). As such, the model proposed in this Report has parallels with restorative justice practices and may draw upon them, however we wish to present an alternative process as unattached and unaligned to other restorative justice approaches in New Zealand and elsewhere.
7.65Pre-sentence restorative justice referrals (such as to Project Restore) would continue to be available as an option.