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336

13
RESTORATIVE JUSTICE AND
JUVENILE CONFERENCING

CHAPTER HIGHLIGHTS
Introduction
The origins of restorative justice
Practical forms of restorative justice
Diversion and juvenile conferencing in Australia
Police cautions
Juvenile conferencing
Strengths and limitations of restorative justice
Social justice and community wellbeing
Conclusion

INTRODUCTION
How the state and members of the community respond to young offenders is shaped by our
images of the ‘typical’ young offender, the types of measures popularised in the mass media,
and theories (popular and academic) regarding the central causes or reasons for offending.
Copyright © 2015. Oxford University Press. All rights reserved.

Responses to young offenders are also influenced by international conventions and human
rights considerations. Since the early 1990s, a new way of thinking about juvenile offenders
and how to deal with them has emerged and captured the imagination of many people
associated with the juvenile justice system. This new approach to the issues is premised upon
radically diverting young people away from the traditional pathways of the juvenile justice
system.
In practice, once a young person has been drawn into the formal processes of the criminal
justice system, there are several institutional approaches that might be adopted in regard to
their offending behaviour. The usual debate here is over a perceived split between a ‘justice’
approach and a ‘welfare’ approach (see Chapter 10). This divide has now been supplemented
by reference to a third path: that of ‘restorative justice’ (see Bazemore 1991). Box 13.1
provides a summary of the three approaches.

Cunneen, Chris, et al. Juvenile Justice : Youth and Crime in Australia, Oxford University Press, 2015. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/csuau/detail.action?docID=4786472.
Created from csuau on 2024-01-24 04:00:30.
CHAPTER 13 RESTORATIVE JUSTICE AND JUVENILE CONFERENCING 337

BOX 13.1 THREE WAYS TO RESPOND TO YOUNG OFFENDERS

PUNISHMENT APPROACHES
• Regimentation
• Responsibility
• Retribution
For example: Tougher sentences, greater use of incarceration, boot camps, stricter
regimes of discipline, parental fines
WELFARE APPROACHES
• Rehabilitation
• Resocialisation
• Remedial treatment
For example: Therapeutic services, remedial education, wilderness camps,
individualised treatment, community-based programs
RESTORATIVE APPROACHES
• Reconciliation
• Reparation
• Reintegration
For example: Family group conferences, direct work experience, victim-reparation
schemes, youth development programs

Generally speaking, punishment approaches emphasise such things as juveniles’

responsibility for their actions, as well as punishment, control-oriented objectives, and a
focus on what the offender has actually done wrong. Juvenile justice is thus something that
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is done to you. Often this involves the use of incarceration in a detention centre, or stringent
penalties of some other kind. The idea is to get ‘tough’ on the young offender, and to punish
that offender for what he or she has done.
Welfare approaches place the emphasis on the offender, and favour greater use of
community-based sanctions, individual treatment services, and attempts to resocialise
or address the ‘deficits’ within the young person that are seen to be associated with the
commission of crime. In this case, juvenile justice is something that is done for you. The point
of this kind of intervention is rehabilitation, taking into account the vulnerability and
special needs of young people. Most juvenile justice systems around the country embody
elements drawn from the justice and welfare models.
Restorative approaches have gained popularity in recent years, and emphasise ‘restorative
justice’. This type of approach wishes to maintain a relationship of respect with the offender

while simultaneously making amends for the harm caused. In its more developed form, this
approach attempts to weigh up the specific requirements of each case of offending, and to
variably respond to each offender in terms of personal accountability, the development of
individual competencies, and the need for community-based incapacitation (Bazemore
1991; Bilchik 1998). Here, juvenile justice is something that is done by you.
The aim of this chapter is to explore the dynamics and nature of ‘restorative justice’ as it
has developed in Australia. The chapter begins by discussing the origins and theoretical basis
of restorative justice. It then describes the ways in which restorative justice approaches have
been institutionalised, in terms of the various models and forms restorative justice takes at
a practical level. The limitations and potential of restorative justice in addressing issues of
juvenile offending are explored in the final part of the chapter.
The most popular example of the restorative justice approach in the Australian
and New Zealand context is the juvenile conferencing model. Juvenile or youth justice
conferencing operates under a legislative framework in all eight of Australia’s jurisdictions
(see Richards 2010 for an overview). It is known by a variety of names, including youth
justice conferencing (New South Wales, Queensland, and Northern Territory), community
conferencing (Tasmania), restorative justice conferencing (Australian Capital Territory),
group conferencing (Victoria), juvenile justice teams (Western Australia), family conferencing
(Northern Territory and South Australia), victim offender conferencing (Northern
Territory), and pre-sentence conferencing (Northern Territory) (Richards 2014a). This type
of intervention is based on the idea of bringing the young offender, the victim, and their
respective families and friends together in a meeting chaired by an appropriate independent
adult (juvenile justice worker or police officer). Collectively, the group goes through the
reasons for the crime, the harms suffered, and the best ways to resolve the issues. Usually,
some kind of apology is made by the offender to the victim, and often the offender has to
repair the damage they have caused in some way (through undertaking community work, or
personal services for the victim such as mowing their lawns for a month).
Copyright © 2015. Oxford University Press. All rights reserved.

Many believe the restorative approach has the greatest potential to effect positive change
in the young offender’s behaviour and attitudes. This is because it does not exclude young
people from the community (or, conversely, expose them to a school of crime, as in the case
of detention centres), nor does it pathologise young offenders by placing most attention
on their faults and weaknesses. The restorative perspective is driven by the idea that the
offender deserves respect and dignity (they are a person), and that they already have basic
competencies and capacities that need to be developed further if they are not to reoffend. In
this framework, the emphasis is on what the young person could do, rather than what they
should do. What is important is that young offenders achieve things at a concrete level, for
themselves, including making reparation to their victims. In the end, the point of dealing
with young offenders in particular ways is to reinforce the notion that they have done
something wrong, to repair the damage done as far as possible, and to open the door for
their reintegration into the mainstream of society.

THE ORIGINS OF RESTORATIVE JUSTICE

The idea of ‘restorative justice’ has been embraced in many jurisdictions around the
world since the early 1990s, particularly in relation to juvenile justice (Braithwaite 1999;
Bazemore & Walgrave 1999a; McLaughlin et al. 2003). Restorative justice refers to an
emphasis on dealing with offenders by focusing on repairing harm, and in so doing involving
victims and communities—as well as offenders—in the reparation process.
The contemporary roots of restorative justice are said to be found in a range of different
approaches in criminology and law emerging during the 1960s and 1970s that provided
a broader milieu for the contemporary development of restorative justice. These origins
include the development of ‘informal’ justice, including victim–offender mediation, and in
particular the rise of the victims’ movement (see Richards 2007). In addition, a number
of intellectual traditions supported the development of restorative justice, including
European critical traditions of abolitionism, religious traditions stressing reconciliation and
healing, and in North America, Australia and New Zealand those that stressed the values
of Indigenous cultures and dispute resolution processes in pre-state societies (Cunneen
& Hoyle 2010:109–10; Daly & Immarigeon 1998; Richards 2009c).

THE ‘RESTORATIVE LENS’

One of the most influential perspectives in the area of restorative justice is that based on
biblical traditions and Judaeo-Christian principles (see Zehr 1990). When discussing broad
system orientations and imperatives, a distinction is often made between ‘retributive’ and
‘restorative’ justice (see Daly 2013), although the terminology varies depending on the writer
(see, for example, Zehr 1990; Braithwaite & Pettit 1990). The weaknesses and limitations
of retributive justice are generally juxtaposed with the strengths and opportunities of
restorative justice (see Zehr 1990; Bazemore & Umbreit 1995; Richards 2014b).
Zehr posits two contrasting lenses in regard to conceptions of justice. These are (Zehr
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1990:181):
• retributive justice, where crime is a violation of the state, defined by lawbreaking and
guilt; justice determines blame and administers pain in a contest between the offender
and the state directed by systematic rules
• restorative justice, where crime is a violation of people and relationships. It creates
obligations to make things right. Justice involves the victim, the offender, and the
community in a search for solutions that promote repair, reconciliation, and reassurance.
In developing alternative principles of justice and intervention, this approach to
restorative justice stresses the moral framework that should guide decisions and actions over
crime; that is, what ought to be the norm in how we respond to the majority of ‘ordinary’
offences. It also points to the actual experiences of people, both victims and offenders (and
those around them), and the considerable damage and lack of satisfaction associated with
conventional forms of punishment and retribution. Ultimately, the goal of intervention is to

build positive social relationships, and the mission is to reflect Judaeo-Christian beliefs and
practices as part of this process (Zehr 1990:185).
Translated into specific assumptions and principles, the restorative lens advocated here is
one based upon three interrelated propositions (Zehr & Mika 1998):
• Crime is fundamentally a violation of people and interpersonal relationships. The key issue
is that victims and the community have been harmed and are in need of restoration.
Importantly, victims, offenders, and affected communities are seen as the key stakeholders
in justice, and as such ought to be directly involved in the justice process.
• Violations create obligations and liabilities. It is felt that the offender’s obligation is to
make things right as much as possible for the harm they have caused. However, it is also
argued that the community’s obligations extend to victims and to offenders, and to the
general welfare of its members. Obligations are thus both individual and collective in
nature.
• Restorative justice seeks to heal and put right the wrong. The starting point for justice is
victims’ need for information, validation, vindication, restitution, testimony, safety, and
support. The process of justice ought to maximise the opportunities for exchange of
information, participation, dialogue, and mutual consent between victim and offender,
and the justice process ought to belong to the community. The offenders’ needs and
competencies also are to be addressed. In the end, justice needs to be mindful of the
outcomes—intended and unintended—of its responses to crime and victimisation.
The basis for restorative justice in this framework is religious belief and principles.
That is, from the point of view of particular faith communities, issues of crime and justice
ought to be driven by particular moral precepts that are meant to guide how members of
communities relate to one another generally, as well as in specific instances of social harm.

REPUBLICAN THEORY
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Other approaches to restorative justice may likewise be built upon certain ethical principles,
but they are grounded less in religious traditions than in political theory. The most influential
of these, particularly in the Australian setting, is the republican theory of criminal justice.
While bearing many similarities to faith-driven models, it nevertheless proceeds from a
secular conceptual base. The republican theory of criminal justice offers a perspective on
juvenile justice that attempts to combine elements of strain theory and labelling (among
other theoretical approaches) through a series of practical institutional measures. It is argued
that the key to crime control is ‘reintegrative shaming’. Before discussing what this means,
it is useful to sketch out some of the details of the normative bases of republican theory as
a whole.
The core concept of this theory is the notion of republican liberty, or ‘dominion’. This
refers to a form of liberty where non-interference in our lives by other people (including state
officials) is protected by law and general community norms, but so too is interventionist
state policy that secures equality of liberty prospects for all. According to the authors of

republican theory, Braithwaite and Pettit (1990), the prime goal of any society should be to
maximise the enjoyment of dominion (personal liberty).
In this framework, crime is seen as the denial of dominion. This is so at three different
levels:
• Crime is a negative challenge to the dominion status of the person who is the victim.
That is, a threat to or disregard of the dominion of an individual attacks the status of that
individual as someone who holds a protected dominion in society. If someone commits a
crime against an individual, the criminal act asserts the vulnerability of the victim to the
will of the criminal, nullifying the protected status of the victim.
• If successful, the criminal attempt not only disregards the victim’s dominion status,
but also directly undermines, diminishes, and perhaps even destroys the individual’s
dominion. For example, kidnapping or murdering someone destroys that person’s
dominion, while stealing someone’s property diminishes the property owner’s dominion
by undermining certain exercises of choice they might have otherwise pursued.
• Every crime also represents communal evil. That is, not only does a crime affect the
dominion status of the individual victim, but it also endangers the community’s
dominion generally. This is because the fear of crime, or lack of action taken to assist
the victim, can have the impact of reducing the liberty of those who fear possible
victimisation themselves.
If every act of crime represents damage of some kind to dominion, then the task of the
criminal justice system is to promote dominion by rectifying or remedying the damage
caused by the crime. What should the courts do in response to the convicted offender?
Theoretically, in sentencing the convicted offender there are three considerations that need
to be taken into account: recognising the evil on the part of the offender, recompensing the
victim for the harm suffered by them, and reassuring the community as a means to restore
confidence in collective dominion.
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The focus of republican theory is on restoring dominion for the victim, for the community,
and—importantly—for the offender as well. In other words, republican theory is based
upon an equilibrium model in which the needs of victim, offender, and community are
considered. Republican responses to crime, therefore, include the following three elements
(see Braithwaite & Pettit 1990; Pettit & Braithwaite 1993):
• Recognition—The offender must recognise the personal liberty of the victim in order to
restore the dominion status of the victim. In order to do this, the offender must withdraw
the implicit claim that the victim did not enjoy the dominion that was challenged by the
crime. This can be achieved through some type of symbolic measure; for example, an
apology on the part of the offender for their behaviour, a commitment not to reoffend,
and/or reconciliation with the victim.
• Recompense—In order to restore the victim’s former dominion (which might not have
been simply disregarded, but which might have been destroyed or diminished), there
must be some form of recompense for the damage done to that dominion. This can be

achieved through a range of substantive measures, such as restitution to the victim of

whatever was lost in the commission of an offence, compensation where restitution is not
possible, and reparation where restitution or compensation is not possible (for example
compensation could be made to those close to and dependent upon a victim of murder).
• Reassurance—General reassurance must be given to the community at large of a
kind that will undo the negative impact of the crime on its members’ collective and
personal enjoyment of dominion. This means that there has to be some guarantee that
the community will be protected from future acts. For example, through a process of
reprobation, the criminal justice system should expose offenders in a constructive
way to community disapproval, and reintegrate the victim and the offender back into
community life.
In the specific area of juvenile justice, Braithwaite (1989) argues that the restoration
of dominion can be achieved through a process of ‘shame and reintegration’. It is argued
that we need to distinguish between stigmatisation, which increases the risk of reoffending
by the shamed actor, and reintegrative shaming, in which disapproval is extended but a
relationship of respect is maintained with the offender.
Stigmatisation or disintegrative shaming is disrespectful of the offender. It is a humiliating
form of shaming, where the offender is branded an evil person and cast out of the community
in a permanent or open-ended fashion. Reintegrative shaming, by contrast, seeks to shame the
evil deed, but sees the offender in a respectable light. The shaming is finite and the offender is
given the opportunity to re-enter society by recognising their wrongdoing, apologising for
their actions, and repenting. In this way, shame is seen as a useful means of combating crime,
as long as it is not applied in a stigmatising manner.
Braithwaite (1989) argues that we need in society a culture in which we promote a self-
sanctioning conscience. That is, if certain norms and values are generally accepted and widely
promoted, individuals will not engage in certain activities because their conscience will
prevent them from doing so. Thus, the theory looks both to external processes of shaming
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(through the criminal justice system) and to internal mechanisms of shaming (by way of
socialisation through the family, media, and schooling).
An important feature of republican theory is the way in which it attempts to combine
many elements of the different theories of juvenile offending within criminology. Thus,
for example, republican theory tries to explain crime in terms of conditions affecting the
individual and those occurring at a societal level. Crime is seen to stem from a combination
of individual factors (such as being unemployed, male, unmarried, and/or a young
person), social processes (such as stigmatisation and/or criminal subcultural formation),
and institutional structures (such as blocked legitimate opportunities and/or presence of
illegitimate opportunities).
A reintegrative shaming strategy works—or at least works effectively—only under
certain conditions. These relate to the degree of interdependency (attachment to
parents, school, neighbours, employer) experienced by the individual, and the degree of

communitarianism (the extent and depth of interdependent social networks) at the level
of society as a whole. As Braithwaite (1989:101) explains it: ‘Interdependent persons are
more susceptible to shaming. More importantly, societies in which individuals are subject
to extensive interdependencies are more likely to be communitarian, and shaming is much
more widespread and potent in communitarian societies. Urbanization and high residential
mobility are societal characteristics which undermine communitarianism.’
While republican theory acknowledges the importance of economic variables (such as a
lack of opportunities for employment) and cultural variables (such as stigmatisation) in the
construction of criminality, the main practical thrust of the theory is on the reintegrative
shaming process.
In summary, republican theory, as it relates to juvenile justice policy, is framed in terms
of responding to crime (rather than crime prevention per se), and doing so in a manner that
distinguishes between reintegrative shaming and stigmatisation. The aim of any resulting
policy is to reintegrate the victim and offender into the society (and hence to restore
dominion). Such policy is thus aimed at reinforcing communal disapproval of the criminal
act, while acknowledging and valuing the individual offender.

PRACTICAL FORMS OF RESTORATIVE JUSTICE

In abstract terms, clear differences can be drawn between a system of justice based primarily
on the concept of retribution, and one based on restoration. This is recognised in most of the
literature dealing with restorative justice (see, for example, Zehr 1990; Bazemore & Umbreit
1995; Daly 1999; Richards 2014a). There are nevertheless different analytical emphases
within the broad restorative justice literature, with some writers placing greater importance
than others on community, some putting the victim at the centre of the criminal justice
process, and others paying most attention to how best to respond to the offender (Church
Council on Justice and Corrections 1996; Bazemore 1997). Different approaches thus
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emphasise different objectives. These include victim restoration, shaming and denouncing
offenders, citizen involvement, and community empowerment (Bazemore 1997).
There is, then, a range of specific models and institutional approaches to restorative
justice, from family group conferencing, for instance, through to circle sentencing
and victim–offender mediation programs (Bazemore 1997; Braithwaite 1999). Some
approaches are based on moral categories such as reintegrative shaming, where the aim is to
shame the offence while offering forgiveness to the offender (Braithwaite 1989). Others are
based upon the strategic assessment of offenders and events (such as the balanced restorative
approach), in which the aim is to design interventions that best address issues of offender
accountability, competency development, and community safety (Bazemore 1991; Bilchik
1998). Some approaches focus almost exclusively on meeting victim needs (usually through
some method of restitution or compensation involving the offender), while others place
emphasis on widespread community engagement in dealing with underlying problems and
issues, of which specific offending is but one manifestation.

Some of the different practical approaches to restorative justice may be summarised as

follows (for comprehensive overviews, see Sullivan & Tift 2006; Johnstone & Van Ness
2007; Joudo Larsen 2014).
• Victim–offender mediation and dialogue, in which victim restoration is highly important,
along with active victim involvement, protection of the victim, and meeting of victim
needs. It involves a process, under the guidance of a trained mediator, in which victims
and offenders meet in a safe and structured setting to discuss the nature of the harm
committed. An important component of the process is for the offender to be held
directly accountable for their behaviour and to provide assistance to the victim in an
agreed manner.
• Family group conferencing, in which victim restoration is highly valued, and where the
offender’s actions are denounced through reintegrative shaming. Affected community
members are encouraged to participate (including especially the friends and family
of the victims and offenders). The purpose of the meeting is to discuss how the crime
has affected the various parties, and to decide as a group how the offender may repair
the harm.
• Circle sentencing or peacemaking circles, in which citizen involvement and sharing of
power, as well as community empowerment, are highly regarded. This involves creating
a respectful space (literally a circle of concerned people) in which consensus decisions
can be made on an appropriate disposition or outcome that addresses the concerns of all
parties. Emphasis is placed on speaking from the heart, in an effort to find the best way
to assist in healing all affected parties and preventing future occurrences.
• Reparative probation, in which the main concern is with victim restoration and
community empowerment through offenders undertaking tasks that directly benefit
victims and communities. The young person works in the community to perform
personal services (such as house painting) for victims and/or community services. For
the latter, often the community service project is oriented towards enhancing conditions
Copyright © 2015. Oxford University Press. All rights reserved.

for disadvantaged or less fortunate people within particular communities.

• Balanced restorative justice, in which victims are afforded services and opportunities
for involvement and input, offenders are given the opportunity to increase their skills
and capacities, and connections can be forged between different community members.
It involves assessing offenders from the point of view of ensuring community safety,
allowing offenders accountability for their actions, and enhancing offenders’ competency
development while they are in the criminal justice system.
Under the restorative justice umbrella, there are differences between those who see
restorative justice as, essentially, a form of diversion from the formal criminal justice system,
and those who view it as a potential alternative to that system and thus as something that
could supplant the existing system completely (see Bazemore & Walgrave 1999b). Whatever
the specific differences, it appears that the central thread underlying restorative justice is the
spirit within which ‘justice’ is undertaken; that is, the intent and outcomes of the process are

meant to be primarily oriented towards repairing harm caused by a crime, and this means
working to heal victims, offenders, and communities that have been directly injured by the
crime (Zehr & Mika 1998; Bazemore & Walgrave 1999b).
The restorative justice approach constitutes another ‘add-on’ to systems that have
developed, usually in an ad hoc manner, in ways that to varying degrees include elements
associated with classical (for example ‘justice’) and positivist (for example ‘treatment’)
understandings of crime and criminality. Historically, the development of criminal justice
systems has been marked essentially by the simultaneous incorporation of apparently
contradictory sentencing principles (such as retribution versus rehabilitation) and
conflicting institutional responses (such as punishment versus treatment). Community
service, for example, can be associated with rehabilitation objectives or with restorative
justice objectives (see Walgrave 1999). The specific content of the practice therefore will
vary according to the philosophical framework informing its implementation.

DIVERSION AND JUVENILE CONFERENCING IN AUSTRALIA

The favoured model of restorative justice in the Australian context is that of juvenile
conferencing, a form of conferencing heavily influenced by the family group conferences
first trialled in New Zealand in the 1980s. Before discussing juvenile conferencing as such,
it is useful to review the philosophy and history of ‘diversion’, since the introduction of
conferencing is in many ways associated with this concept (see, for example, Chan 2005).
Young people who offend, and who are apprehended for (allegedly) doing so, are subject
to a range of state sanctions. They may have to attend court, and may be sentenced to a wide
range of dispositions. However, not all young people end up in court, and of those who do,
not all have the case adjudicated or decided upon in the formal court setting.
This is where ‘diversion’ is employed as a key concept within the juvenile justice system.
The term generally refers to instances where young people are turned away from the more
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formal processes, procedures, and sanctions of the criminal justice system, although there
is little consensus on a definition of this concept (see Richards 2014c for a discussion).
The rationale for diversion is threefold. First, concerns have long been raised regarding the
harmful effects of the stigmatisation that may accompany the formal court and detention
process. According to labelling theory, young people are seen to be particularly vulnerable to
the social effects of negative labelling, and if labelled ‘bad’ or ‘criminal’ by the courts, may take
on the behaviours and attitudes described by the label (see Chapter 2). In practice, however,
the evidence in support of labelling theory is mixed, with few research studies attempting
to determine whether court appearances are experienced by young people as stigmatising,
and if they are, whether this has an impact on future offending (McGrath 2009). McGrath’s
(2009) study of 206 young people sentenced in the NSW Children’s Court found that
they reported only low levels of stigmatisation as a result of their court hearing. McGrath
(2009:34) concluded that while ‘court does not have an inevitably stigmatising effect on
offenders’, those young people who did report feeling stigmatised were substantially more

likely to reoffend than those who did not feel stigmatised. McGrath’s (2014) subsequent
study of 394 young people sentenced in the NSW Children’s Court found, however, that
feeling stigmatised by the court appearance predicted future reoffending by young women,
but not young men. It is important to recognise that McGrath’s (2009) methodology is
limited in that the young people were surveyed directly after their sentencing (thus only
provided an insight into their feelings of stigmatisation in the very short term), and because
it provides an insight only into offenders’ own subjective views about stigmatisation
rather than more objective community views. Young people undoubtedly face negative
ramifications stemming from a court appearance regardless of how they feel about it.
Second, diversionary measures emerged in response to concerns about the financial cost
of the criminal justice system (Zagar et al. 2013) and the benefits to efficiency that might
be realised if minor cases were channelled out of the court system and dealt with informally
(Pratt 1986; Sarri 1983b; Seymour 1988).
Third, the move towards diversion emerged in response to concerns that formal criminal
justice measures were not necessarily the most beneficial or appropriate for responding to
(particular types of ) offending or (particular categories of ) offenders, and in the context of
the social movement towards decarceration or deinstitutionalisation—towards what Cohen
(1985:31) termed the ‘destructuring impulse’ (see further Richards 2014c). This shift
aligned with the international human rights frameworks that support the use of diversion for
young people in conflict with the law. Actual program developments tend to reflect varying
emphases on these two rationales. Diversion in a strong or traditional sense means to divert
the young person from the system as a whole. At a policy level, this is manifest in statements
that see diversion as a form of non-intervention, or at best minimal intervention. The nature
of diversionary processes is complex, however, and involves assessment of different types of
diversionary intervention. For instance, any analysis of diversion needs to take into account
the following sorts of considerations:
• The different points within the criminal justice system at which diversion may occur—
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such as police contact, pre-court meetings, and court-ordered alternatives to detention.

The first two points refer to diversion from formal systems of court adjudication, the
latter to diversion from incarceration.
• Diversion may be reserved for certain types of offences, such as minor infringements or
first-time offending, and particular types of offenders, such as those who have had little
or no prior contact with the criminal justice system. Serious and repeat offenders may
not be diverted from the formal systems of criminal justice.
• Regardless of the seriousness or triviality of the offence, or the background of individual
offenders, there are some cases in which diversion is simply not allowed. This was the
case, for example, with mandatory sentencing for certain prescribed property offences
in the Northern Territory in the late 1990s. Regardless of circumstances, judges and
magistrates were not given discretionary latitude to divert young people from the
penalties mandated by law.

• Diversionary measures may be set out formally in legislation, they may stem from
organisational initiatives (such as police guidelines encouraging the use of informal
means of conflict resolution), or they may be linked to particular pilot projects (such as
the targeted use of juvenile conferencing in particular geographical locations).
The use of diversion is certainly not new to the criminal justice system, and whereas
policy prescriptions such as zero tolerance policing (see Chapter 9) tend to undermine its
use, these may be offset by legislation that guides the use of police discretion in favour of the
use of diversionary measures (Chan 2005).

POLICE CAUTIONS
The use of an informal police caution (or warning) is one example of the practical application
of diversion. This is where a police officer advises a young person directly, and on the spot,
that they have done or are doing something wrong and will suffer bad consequences if they
persist in the offending behaviour. In other words, an informal police caution usually consists
of police on the beat telling young people to move on or to desist from certain behaviours.
Police take no further action, providing the young person heeds the caution. Informal
warnings or cautions are usually not recorded, although police may in some jurisdictions
record warnings for intelligence purposes (Richards 2009a:26).
Similarly, a formal police caution usually aims to divert the young person from the
formal court system. This process involves an admission by the juvenile and a warning from
the police officer, often in the presence of the young person’s family. This normally takes
place at the police station, and is officially recorded. No further action is taken, although a
caution having been issued is likely to affect later police interactions with the young person.
There have been important legal and administrative differences among the states in
relation to police cautions. For example, in some states cautioning programs are the result of
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administrative policy decisions, whereas in others the rules guiding the cautioning program
are stipulated in legislation that sets out the purpose of the caution and the procedures
involved. The actual use of the formal police caution, in terms of frequency, also varies
considerably among jurisdictions. Research from Queensland suggests that young people
cautioned for their first offence are less likely to reoffend than those who are brought before
the courts (Dennison, Stewart & Hurren 2006; see further Weatherburn, McGrath &
Bartels 2012).
A further type of police caution involves a much higher degree of police intervention
and youth engagement with criminal justice officials. This style of police cautioning directly
involves the young offender and their family (and significant others), and the victim and
their family, with the police officer taking an active part in discussions. It makes use of
models of conflict resolution that emphasise victim–offender relations. It incorporates
many of the philosophical principles of the republican theory and the New Zealand family
group conference experience (see O’Connell 1993). However, most juvenile conferencing in

Australia is now incorporated into relevant juvenile justice legislation (Richards 2010), and
most favours non–police-run conference models (Daly & Hayes 2001). A notable exception,
however, is in Tasmania, where there exist police-run ‘cautioning’ conferences and juvenile
conferencing undertaken by the Department of Health and Human Services.
From the point of view of diversion, a significant question is whether the use of schemes
such as Tasmania’s police-run cautioning conferences represent anything other than a major
increase in state intervention. The crucial area of change is that more cases can be dealt with
on a more informal basis, without referral to courts or legal assistance. Hence, it is diversion
to other parts of the criminal justice system, rather than diversion from the system itself (see
Richards 2014c for a discussion). It is also an intensification of state intrusion, insofar as
immediate imposition of penalty is now possible at the very earliest stages of the process.
Importantly, the prime referring bodies for conferencing, whether this be police-run or
not, are the police as well as the courts (Richards 2010). The police therefore have great
input into the manner in which young people will be treated, and where within the criminal
justice system they will be dealt with. A recent evaluation of police practices in New South
Wales, however, indicated that where legislation clearly sets out the procedures, conditions
and target offences for diversionary options, then the groundwork exists for a substantial
increase in warnings and cautions of a non-conference nature (Chan 2005). From an
implementation point of view, a lot depends upon how police discretion is regulated at the
gate-keeping level, and how ‘diversion’ itself as a concept is interpreted by police agencies.
A recent review of youth justice in NSW clearly highlighted this issue. The review found
that the rate at which police diverted young people to youth justice conferences varied
considerably across Local Area Commands (LACs) (Noetic Solutions 2010). The authors
of the report concluded that this variation was not due to different population sizes across
localities, but was at least in part a result of varying levels of police acceptance of and support
for youth diversion. Ringland and Smith (2013) further investigated this issue by examining
the proportion of all eligible young people who were diverted by police across all LACs
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in NSW. They found that LACs diverted between 31 and 95 per cent of eligible young
people (although they describe the LAC that only diverted 31 per cent of young people as
an outlier, and state that if that LAC is excluded from analysis, the proportion ranges from
55 to 95 per cent). Across NSW, over 85 per cent of LACs diverted at least 70 per cent of
eligible young people. Ringland and Smith (2013) conclude that LACs account for a small
but significant amount of the variation in diversion across the state.

JUVENILE CONFERENCING
Dealing with juveniles charged with minor offences has generally been framed in terms of
finding ways to divert them from formal court proceedings and sanctions. In most Australian
jurisdictions, there has been a notable increase since the early 1990s in the role and powers
of the police in relation to referring young people to court alternatives. In addition to police

cautionary measures, the main method of diversion has been through the use of juvenile
conferencing.
For many years, some states had panel systems as an alternative to court (see generally
Seymour 1988). For example, in South Australia the majority of matters used to go before a
Children’s Aid Panel rather than the children’s court. In more than 80 per cent of the matters
before the Aid Panel, the child was warned and counselled (Cunneen & Morrow 1994).
Recent changes to young offender legislation in most states, however, have seen the panels
superseded by juvenile conferencing. These forms of intervention are much more intensive
in nature than the previous panels, and involve a larger number of people in their operation.
The introduction of these particular alternatives reflects a major shift in thinking, away from
a narrowly defined concern about the negative effects of labelling young offenders, towards
making them responsible for their actions within a wider communal framework.
The impetus for adopting juvenile conferencing for dealing with young offenders stems
from varying pressures, depending upon jurisdiction. In some cases, it has been linked to
grassroots developments among Indigenous people (Morris & Maxwell 1993; Maxwell &
Morris 1994; but see also Richards 2009d and Tauri 1999 for a different view), in other cases
to police initiatives (O’Connell 1993), and, more generally, to new thinking at a theoretical
level about juvenile justice (Braithwaite 1989, 1993). Certainly, the rhetoric of this approach
has caught on in most jurisdictions within Australia, although it is highly questionable
whether the philosophical basis of the model is necessarily being adhered to in practical
programs. It may be more likely that restorative justice is consonant with developments in
neoliberalism that stress individual and family responsibility and accountability, and the
partial transfer of crime control to non-state actors under the watchful eye of the state
(Cunneen & Hoyle 2010:123; Richards 2014a).
In terms of actual program development, the leading example of juvenile conferencing
was provided by New Zealand’s family group conference model. The approach to juvenile
justice adopted in New Zealand in the late 1980s emphasised the need to keep children
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and young people with their families and in their communities. The model emphasises the
following key elements (see Maxwell & Morris 1994:15–17):
• Justice—Making young offenders accountable for their offences, and doing so in the legal
context of proportionality of punishment and respect for due process.
• Diversion, decarceration, and destigmatisation—A means of avoiding the negative
labelling of young people.
• Enhancing wellbeing and strengthening families—Providing support for young people
and their families.
• Victim involvement, mediation, reparation, and reconciliation—Reflecting wider trends
to cater better for the needs of victims and to see ‘justice’ in terms of conflict resolution.
• Family participation and consensus decision-making—To ensure people are empowered by
the process itself.
• Cultural appropriateness—Services and procedures are to be appropriate to the
background of the people involved.

The practical elements of the family group conference model have been described as
follows (Braithwaite 1993:40):
• Convene a conference of the offender, the people who are most supportive of the
offender (usually the family), the victim, and people to support the victim.
• Give all the participants an opportunity to explain how the offence affected their lives
and to put forward proposals for a plan of action.
• After the offender and the offender’s family have listened to the other speakers, empower
them to propose plans until they come up with one that is agreeable to all participants in
the conference (including the police).
• Monitor the plan’s implementation, particularly those elements involving compensation
to victims, and community work.
In Australia, all states and territories have now implemented some form of conferencing,
although most jurisdictions refer to these forums as juvenile conferencing rather than family
group conferences. The intended outcome of the conferences is that the young offender
is expected to complete some kind of agreement or undertaking; thus: ‘The sanctions or
reparations that are part of agreements include verbal and written apologies, paying some
form of monetary compensation, working for the victim or doing other community work,
and attending counselling sessions, among others’ (Daly & Hayes 2001:2). The form of the
conference is basically the same, although there are jurisdictional differences in terms of the
kinds of offences that are conferenced, the volume of activity that is engaged in through
conferencing, the upper limit on conference outcomes, the statutory basis for conferencing,
and the organisational placement or administration of the conferencing process (Richards
2010). Evaluation research that has been carried out to date indicates that ‘conferences are
perceived as fair and participants are satisfied with the process and outcomes’ (Daly & Hayes
2001:6; see also Sherman & Strang 2010; Strang 2001; Chan 2005).
Programs and strategies designed to divert the young offender from formal court
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proceedings are generally characterised by a degree of informalism in terms of their structures,

operations, and records. From a theoretical perspective, the trend towards informalism and
community-based programs has been conceptualised as an expansion of regulation. While
superficially power is transferred to the community level, and into the hands of members of
the community, the overall tendency is for the state to retain control over the process and for
social control to be maintained in fairly conventional ways. For example, Cohen (1985:44)
argues that such moves, while defended on the basis of being less intrusive and less coercive
than formal court-based systems, serve as a form of net-widening. Specifically, Cohen argues
that we need to evaluate the impact of apparently benign community-based programs such
as those just described. Accordingly, we need to enquire into the size of the net that is being
constructed to process the young offender, and ask whether those now in the net would have
been processed previously (is the net wider?). We need to examine the level of intervention,
and ask whether it is more intense than in the past (is the net denser?). And finally, we need
to evaluate whether the new agencies and strategies are supplementing rather than replacing
the original, formal mechanisms of social control (is the net different?).
Cunneen, Chris, et al. Juvenile Justice : Youth and Crime in Australia, Oxford University Press, 2015. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/csuau/detail.action?docID=4786472.
Created from csuau on 2024-01-24 04:00:30.
CHAPTER 13 RESTORATIVE JUSTICE AND JUVENILE CONFERENCING 351

In practical terms, there are likewise a number of issues that continue to require attention
and further debate. For example, concerns have been raised regarding the systematic denial
of young people’s legal rights due to the informal nature of some community-based schemes
and the prior guilty plea demanded of young people (Warner 1994). More generally,
evaluations of previous diversionary programs have tended to be mixed: net-widening
was seen as a persistent problem, and there were gender discrepancies in the use of such
mechanisms (see Alder 2000; Alder & Polk 1985). Thus, community-based programs may
not only be unequal in application to specific groups of young people, but they may also
serve to channel young people into a system that they might otherwise have avoided (see
Chapter 6; see also Prichard 2010 for an overview of the research on youth diversion and
net-widening). On the other hand, systematic evaluation of developments in New South
Wales show that increased diversion in recent years has not resulted in net-widening (Chan
2005). Prichard (2010) likewise found that in the decade following the introduction of a
diversionary system of youth justice in Tasmania, net-widening did not occur.
Research indicates that Indigenous young people are not diverted from the court
system—via either police cautions or youth justice conferences—at the same rate as non-
Indigenous young people. Allard and colleagues’ (2010) study of the contact of all young
people born in Queensland in 1990 who had contact with the justice system as a young
person found that even when offence seriousness and offending history were controlled for,
Indigenous young people were three times less likely than non-Indigenous young people to
be cautioned compared to going to court, two times less likely to be referred by police to
conferencing compared to going to court, and 1.5 times less likely to be cautioned compared
to being referred to conferencing. Snowball’s (2008) study of young people in Western
Australia, South Australia and NSW similarly found that Indigenous young people were
less likely to be diverted than non-Indigenous young people with similar characteristics (for
example sex, age, offence type, number of prior contacts with the youth justice system, and
number of prior custodial sentences). Ringland and Smith’s (2013) study of youth diversion
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in NSW reached a similar conclusion. Thus while the introduction of legislation for young
offenders that focuses on diversion may have fostered increased diversion of Indigenous
young people (Chan 2005), such legislation appears to have most benefit for non-Indigenous
young people.

STRENGTHS AND LIMITATIONS OF RESTORATIVE JUSTICE

Theoretically, restorative justice promises a more constructive, positive approach to criminal
justice than retributive or therapeutic approaches. Punitive responses have not taken into
account specific offender circumstances and how these shape offending behaviour. At a
systemic level, punitive responses have proved to:
• be costly
• damage offenders’ life chances once a sanction has been applied

• do little to prevent recidivism

• fail to act as a general deterrent, or to address the fundamental causes of crime.
The sooner a young person comes into contact with the more formal parts of the criminal
justice system, the more likely they are to reoffend and to re-enter that system. A high
proportion of young people making their first appearance in a children’s court continue
their offending into adulthood, particularly if their first court appearance occurred when
they were young (Chen et al. 2005). As Weatherburn, McGrath and Bartels’ (2012) recent
research in New South Wales found, young people who had their first contact with the
youth justice system in 1999 (via a caution, conference or proven court appearance) went
on to have an average of four further proven court appearances during the next ten years.
Welfare responses, on the other hand, have been criticised for their lack of attention to
victim needs, for viewing offenders in deficit terms, for their patronising ‘expert’ attitudes
towards ‘clients’, for their failure to link efforts to change offender lives to efforts to transform
social contexts, and for inadequate transitional arrangements between treatment and non-
treatment phases (see Cunneen & White 1995; Walgrave 1999). Such approaches have
also been criticised for apparent inconsistencies in the treatment of offenders. Some young
people, for example, were subjected to long periods of treatment (including incarceration)
if perceived not to be responding to the assistance provided, while others experienced
only short periods of treatment if they showed the right signs and demonstrated a positive
response to the ‘expert’ intervention. In either case, the treatment response was not seen to
be appropriate to the situation.
Restorative justice, with its emphasis on repairing harm, emphasises reintegrative
and developmental principles. It offers the hope that opportunities will be enhanced for
victims, offenders, and their immediate communities, with the direct participation of all
concerned in this process. The most detailed and sophisticated example of restorative justice
is probably the balanced restorative approach (see Bilchik 1998), although considerable
institutional resources have also been put into juvenile conferencing, especially in places
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such as Australia (Braithwaite 1999; Daly 2000; Joudo Larsen 2014; Richards 2010).
The benefits of restorative justice can be seen in terms of its emphasis on ‘active agency’
(young people doing things for themselves), cost-effectiveness (compared with detention or
imprisonment), victim recognition and engagement (often through face-to-face meetings
with offenders), and community benefit (through participation and through community
service). While it can be argued that juvenile conferencing actually incorporates elements
of retributive justice, rehabilitative justice, and restorative justice, at least at the experiential
level (see Daly 2002), there is nevertheless a distinctiveness in orientation that marks this
approach off from others within the field.
Compared with previous theoretical approaches to offending, restorative justice appears
to offer a practically effective, philosophically attractive, and financially prudent method
of doing justice (see Webber 2012 and Weatherburn and Macadam 2013 for discussion
of the relative costs of children’s court and youth justice conferencing). It is peacemaking

in orientation, rather than punishment-based. It is socially inclusive rather than reliant

upon experts and officials. It attempts to provide a symbolic and practical solution to actual
harms, rather than a response to violation of laws (that represent, in abstract, acts against the
state). Victims and community, as well as offenders, are central to resolving issues of harm,
rather than peripheral to the processes of criminal justice. At the level of sentiment and
utopian vision, restorative justice does indeed have a powerful emotional appeal (Richards
2005). This has drawn the critical attention of those who question its basic propositions
about justice, its reliance on ‘good news’ stories, and its apparent optimism that even the
most heinous of crimes can be dealt with in a restorative manner (Acorn 2004).
Even supporters of the broad thrust of restorative justice have asked hard questions
about restorative justice (Daly 2006). What is being done to whom, why, and with what
consequences, remain central questions for sceptic and supporter alike. We know that serious
and repeat juvenile offenders are often excluded from juvenile conferencing in Australia.
One result of this is that Indigenous young people—due to their early and repeated contacts
with the criminal justice system—may be less likely than non-Indigenous young people to be
referred to conferences, and less likely to have a successful outcome if they attend. We know
that many victims would prefer not to be involved in conferencing (Hill 2002; Wemmers &
Cyr 2004), and that while many of those who do participate express satisfaction with having
done so, victims are often less satisfied than offenders and other participants (Braithwaite,
1995; Triggs, 2005) (see further Box 13.2). Further, research suggests that victim satisfaction
with restorative justice declines over time. For example, Morris and Maxwell’s (1998) study
of family group conferencing for juveniles in New Zealand found that it was not uncommon
for victims to express satisfaction with a restorative conference immediately following it, but
to express dissatisfaction at a later date (see also Wagland, Blanch & Moore 2013). Triggs
(2005) similarly found that most victims who took part in restorative conferences involving
adult offenders felt satisfied with the process immediately after it, but that this satisfaction
had declined within the year following the conference. Both Triggs’ (2005) and Wagland,
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Blanch and Moore’s studies found that this was particularly the case if offenders had not
completed their outcome plans (see Richards 2012 for a discussion).

BOX 13.2 YOUNG PEOPLE, VICTIMS AND RESTORATIVE

JUSTICE
Much restorative justice literature argues that victims are eager to participate
in restorative justice processes such as youth justice conferencing (for example
Pranis 2004). Such claims are, however, based on studies of victims who have already
opted to participate in restorative justice, and are therefore not representative of
victims generally. Wemmers and Cyr’s (2004) study of a mediation program for juvenile
offenders in Montreal, Canada, sought to avoid this bias by interviewing a sample of
victims who had been asked to participate in the program, irrespective of whether

they had ultimately agreed to do so. They discovered a range of reasons for victims’
refusal to take part, including ‘because they did not have the time or interest to invest
time in a mediation session’ (Wemmers & Cyr 2004:267; see similarly Hill 2002).
Bolitho’s (2012) research on youth justice conferences in NSW found that reasons
for victims not wanting to take part included not thinking the conference would be
useful, not wanting to discuss the experience, being fearful or angry, and believing that
no real harm had occurred.
Victims who participate in restorative justice measures typically report satisfaction
with this approach to justice, and in some cases, even reduced trauma symptoms (see
Angel 2005). Recent research by Weatherburn and Macadam (2013), however, argues
that few studies have compared victim satisfaction with restorative justice with victim
satisfaction with court for comparable offences. Further, Gal and Moyal (2011) found
that young people who participate in restorative justice processes as victims are less
satisfied with the process than young people who participate in court as complainants.
Their analysis suggests that this is due to adults dominating restorative processes and
having little regard for young people’s needs (see more generally Hogeveen 2006).
• Hear crime victim Susie Lomax discuss her reasons for taking part in a New Zealand
family group conference, and her experience of participating: <http://www.youtube.
com/watch?v=R89LgqxzO9c>.

In terms of apologies at youth justice conferences, we know that many victims who are
involved are not convinced of the sincerity of young people’s apologies (Daly 2006). We know
that about one in four young people who apologised did not feel sorry for their victim but
thought they would ‘get off more easily’. Others apologised to make their own families feel
better, and a high proportion also felt ‘pushed into it’ (Daly 2006:140). This is not to deny
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that many offenders feel genuinely sorry for what they have done—although their apologies
may not be accepted as sincere from some victims (see Box 13.3). However, the act of the
apology and its reception involve a complex interaction. We demand this from young people
who are vulnerable and may not have the capacity to engage fully with the expected outcomes.

BOX 13.3 YOUNG OFFENDERS, RESTORATIVE JUSTICE

CONFERENCES AND APOLOGY
While apologies may be the ‘unspoken touchstone of restorative justice’, they are
nonetheless ‘complex, variable and fragile gesture[s]’ (Blecher 2011:95). Blecher
(2011:99) argues that victims of crime have highly varying expectations of apologies from
offenders, with some ‘able to read into the simple expression, “I’m sorry,” the qualities
of a full-blown apology … [and] … [o]thers … simply not requir[ing] much more than a
heartfelt condolence’. In terms of the effects of apology on offenders themselves, research

suggests that young people who apologise to their victim(s) as part of a restorative
justice conference are less likely to reoffend than those who do not apologise. Morris and
Young’s (2000) research found that offenders who apologised to victims were three times
less likely to be reconvicted within four years than those who had not apologised. As
outlined above, however, young offenders do not always apologise for the ‘right’ reasons,
with some feeling pressured to do so without genuinely feeling remorseful. Hayes and
Hayes (2008:388) conducted research into youth conferencing in Queensland and found
that ‘some young offenders may offer apologies less out of a moral sense that it is the
right thing to do, than out of a practical sense that they are obliged to do so’, as this
transcript of Hayes and Hayes’ (2008:389) interviews demonstrates:
Interviewer: So did you let the victim know you were sorry?
Offender: I kind of smiled when I said sorry. I didn’t really mean it because I don’t really
like her.
Interviewer: So it sounds like you didn’t really want to apologise?
Offender: Not really.
Interviewer: Do you feel like you were pressured to apologise?
Offender: He said ‘Would you like to apologise to her’, so it was kind of like, yeah,
apologise.
Interviewer: Okay, so what do you think would have happened if you had said ‘No I don’t
want to apologise.’?
Offender: I think I’ll have a harsher consequence (Hayes & Hayes 2008:389).
The issue of the genuineness of offenders’ apologies came to media attention in
the United Kingdom in 2011. A 16-year-old offender, made to write an apology letter
to the victim of his burglary as part of his participation in the Intensive Supervision
and Surveillance Program (ISSP) wrote what journalist Casciato (2011) called a ‘barely
literate diatribe’ blaming his victim for the offence. In the letter, the juvenile offender
admitted he had been ‘forced to write this letter by ISSP’, claimed that the burglary ‘was
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your own fault anyways’ and offered to outline to the victim ‘the dumb mistakes you
made’ (Casciato 2011).
A copy of the letter, which was never sent to the victim, can be read in the Daily Mail
Online.

Partly due to the diversity of opinion, values, and models that reside under the restorative
justice tag, there has been a tendency for specific forms of restorative justice to be implemented
in a manner that actively reproduces the dominant forms of social control. For example,
juvenile conferencing may be used solely for first-time offenders and/or trivial offences (as a
means of diversion at the ‘soft’ end of the juvenile justice spectrum), and therefore as a filter
that reinforces the logic and necessity of the ‘hard’ end of the system (the ‘real justice’ of
retribution and punishment). The former thus may well help to legitimise the latter, rather
than constitute a challenge to it. Substantial variations in the introduction of restorative

justice are apparent across diverse jurisdictions, if we compare legislative, administrative,

and operational frameworks (Daly & Hayes 2001; see also Chan 2005). In almost all cases,
however, restorative justice has been blended into existing institutional patterns, as part of
the continuing hybridisation of criminal justice. How this ‘blending’ occurs is important,
of course, as it makes a major difference in terms of overall system orientation. The degree
of expansion of restorative justice into the criminal justice system, for example, to include
more serious kinds of offences and offenders with extensive criminal records, could provide
one indication of potential systemic change.
It is worth reflecting on the impact of restorative justice in New South Wales, which
has a very well-developed system of justice conferencing for young people, established in
legislation, and a dedicated team of conference managers and local conference convenors.
There are clearly articulated legislative and administrative procedures for the use of
conferences. The system has been in place since the late 1990s, developed after various trials
of restorative justice for young people that date back to the early 1990s.
Early research into restorative justice schemes for young people showed modest benefits
in reduction of reoffending compared with court (for example Chan 2005; Luke & Lind
2002). Many of these studies were, however, plagued by selection bias; that is, they found
that young people who participated in a conference were less likely to reoffend than those
who went to court without recognising that young people referred to a conference are likely
to be less serious offenders to begin with (Weatherburn, McGrath & Bartels, 2012; see also
Daly et al. 2013). What then, after nearly 20 years, has been the net outcome? Depending
on the year, between two and four per cent of police interventions involving young people
result in referral to a youth justice conference (Richards 2010). Police prefer all other forms
of intervention, including police warnings, cautions, infringement notices (on-the-spot
fines), summons to appear in court, or legal process by way of arrest and charge. Indeed,
the real growth during this period has been in the use of infringement notices by police
against young people for a range of typically minor public order offences. In jurisdictions in
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which both the police and the courts can refer young people to a conference, many referrals
come from the court (Richards 2010). As Richards and Lee (2013) argue, in these cases any
diversionary impact of conferencing is lost, as young people are first pushed through the
legal system to court prior being sent to an alternative process.
The ALRC and HREOC (1997:482) found that all models of youth conferencing in
Australia have been the subject of criticism, and recommended that national standards for
juvenile justice should provide best-practice guidelines for conferencing (Recommendation
200). They found that standards should include the following (ALRC and HREOC
1997:482–3):
• the desirability of diversionary schemes being administered by someone independent
of law-enforcement bodies, such as a judicial officer, youth worker, or community-based
lawyer
• the need to monitor penalties agreed to in conferences, to ensure that they are not
significantly more punitive than those a court would impose as appropriate to the offence

• the need to ensure that young people do not get a criminal record as a result of
participating in conferencing
• the need to monitor conferencing proceedings, to ensure that they do not operate in a
manner oppressive or intimidating to the young person
• the need to ensure the child’s access to legal advice prior to the agreement to participate
in a conference
• the need to determine whether it is preferable for schemes to have a legislative basis, so
that the process is more accountable and less ad hoc
• the need to monitor the overall effect of conferencing schemes to ensure they do not
draw greater numbers of young people into the criminal justice system or escalate
children’s degree of involvement with the system.
In addition to specific legal and criminological concerns about how youth conferencing
ought to be undertaken, attention has been directed to how conferencing often embodies
a narrow rather than expansive version of restorative justice. Within restorative justice
frameworks, the idea of social harm is generally conceptualised in immediate, direct, and
individualistic terms (and hence often ignores the broader social processes underpinning—
and patterns of—both offending and victimisation). One consequence of this is that
the emphasis on repairing harm tends to be restricted to the immediate violations and
immediate victim concerns, thereby ignoring communal objectives and collective needs
in framing reparation processes. Thus, the heart of the matter remains that of changing
the offender—albeit with their involvement—rather than transforming communities
and building progressive social alliances that might change the conditions under which
offending takes place. The distinction between ‘restorative justice’ and ‘community justice’
has been described in the following terms (Crawford & Clear 2001:129):
While restorative justice is about cases, community justice is about places … A
restorative justice program ‘works’ when key constituents experience a restorative
process and end up feeling restored by it. Community justice programs ‘work’ when
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the quality of life in a given place improves.

Most discussions of restorative justice tend to concentrate on ‘cases’ within existing
criminal justice systems, and to evaluate practice in relation to traditional criminal justice
objectives (such as reducing juvenile reoffending). Conversely, ‘community empowerment’,
which connotes a concern to intervene in and perhaps to transform community relations,
does not feature strongly in some of the more popular restorative justice models, such as
family group conferences and juvenile conferencing (see Bazemore 1997).

SOCIAL JUSTICE AND COMMUNITY WELLBEING

There is a sense in which the basic principles and practices of restorative justice can be
thought of as prefiguring the changes required for creating a just and equal society (see
Walgrave & Bazemore 1999). The key challenge is how to engage in ‘restorative social justice’

(White 2000a) by shifting the focus of intervention much more directly onto the tasks of
community-building. For example, the guiding concepts might be solidarity, compensation,
and community empowerment (see White 2003a):
• Solidarity implies that the politically and socially weak members of a group need
to be included rather than excluded, in the sense that tasks are to be performed for
and by them, and emotional support is to be given to them. Offenders and victims
need to be offered solidarity, a voice in what affects them, and support in the healing
process.
• Compensation refers to the idea that weakness, on the part of the victims and the
offenders, ought to be compensated. We need to address the social disadvantages of
people who offend, and the social harms experienced by those who are victimised. The
process of repairing harm has to be reconceptualised as social rather than solely individual
in nature. This involves state-provided resources as well as input from individuals and
groups.
• Community empowerment is about enhancing the welfare and prospects of collectivities,
of which individuals are integral members. The point of intervention is to change the
material conditions and circumstances of neighbourhoods and family networks, with
the active involvement of local people.
Conceptually, the general contours of a restorative social justice model, as a specifically
juvenile justice model of intervention, can be organised around four general themes (White
2003a), which are:
• an emphasis on social inclusion in any process involving young offenders, victims, and
potential offenders
• responsive practices that are based upon communal objectives
• the formation of communities of support
• enhancement of community resources.
Copyright © 2015. Oxford University Press. All rights reserved.

SOCIAL INCLUSION
What the restorative social justice approach implies is that any strategy of reform and positive
change must be premised upon the ideas of social inclusion and community engagement.
This means that victims (and offenders) have a right to be heard and to be compensated,
but does not mean that victims should necessarily become part of a punishment process
per se. Such a principle also implies that young offenders ought to be viewed as part of
communities, not simply as individuals. Repairing social harm should not be seen as a
‘micro’ event, involving only the immediate affected parties: it is indicative of much broader
social processes, in which both victim and offender are implicated. A central idea relating
to social inclusion is to bring into any decision-making process a wide range of interested
parties. These ought to include young people, as well as authority figures.

COMMUNAL OBJECTIVES
We know that substantive inequalities restrict individual choice and freedom, and narrow
the scope for the expression of positive agency in an environment hostile to working-class,
Indigenous, and ethnic minority youth. Any response to specific offending should take this
as its starting point. In programmatic terms, this means that communal objectives, rather
than individual incentives or punishments, should form the framework for reparation.
That is, the expression of ‘taking responsibility’ and the performance of certain tasks on the
young offender’s part should bear a direct relation to what the community needs in order
to break the cycle of violence and crime. This is too important to be left solely to criminal
justice administrators, victims, and immediate family members. Thus, social inclusion
means, among other things, taking into account the specific needs and wishes of particular
communities. This requires a sense of what is happening at the local level, and which groups
or individuals can most benefit from the assistance provided by young people.

COMMUNITIES OF SUPPORT
The building of communities of support is an essential part of transforming the conditions
that give rise to criminality and criminalisation. Crime is not reducible to the individual:
it is a social phenomenon. Concentrating solely on the individual offender, or specific
incidents of harm, belies the necessity for widespread changes in particular locales. An
important task in dealing with young offenders is to use the opportunity of intervention
to rebuild communities, and as part of this to foster the ideas of solidarity and cooperation.
Reintegration, to be meaningful, must involve the nesting of the young offender in a web
of familiar, prosocial relationships oriented towards community improvement. Victims,
likewise, need access to such relationships, with similar objectives. This is especially so given
that victims are generally members of the same neighbourhood or community.

The enhancement of community resources is a crucial aspect of any anti-crime and social
justice strategy. In this regard, in addition to political campaigns for greater assistance in
the redevelopment of local neighbourhoods, creative thinking has to go into how best to
use existing community resources in the here and now. The mapping of assets, capacities,
and skills of residents, associations, and institutions can provide some indication of the
strengths that can be built upon. There is also much scope for the alternative use of existing
resources; for example, schools should be used as multi-purpose community resources, and
not be treated as age-specific or function-limited. Developing a variety of physical sites
for connecting people is an important component in rekindling community pride and
neighbourhood spirit. These also provide avenues for the provision of programs and services
(such as mentor schemes), which are particularly important in ensuring that young offenders
have the chance to participate in communal life.

The development of restorative community justice ultimately rests upon the type
of intervention strategy chosen, and the interest, professionalism, and enthusiasm of the
service providers who oversee the intervention process. Depending upon individual
circumstances and specific situations, different types of intervention will be appropriate in
relation to specific kinds of clients. However, the weight given to each form of intervention
will very much shape the allocation of resources, staff time, and energy being put into
specific measures. There is considerable scope to develop further a restorative social justice
style of intervention (see Bilchik 1998; White 2003a). To do so, however, implies serious
consideration of the preferred roles and activities of juvenile justice workers, whether in
government or non-government sectors.

CONCLUSION
This chapter has provided an outline of restorative justice principles and juvenile
conferencing practices. Philosophically, restorative justice offers a major change of lens from
retributive views on criminal justice. As such, restorative justice can be seen at one level as
a major challenge to more conservative law-and-order types of approaches that emphasise
punishment and coercive means of dealing with young offenders. Nevertheless, questions
can be asked regarding how restorative principles can be integrated into existing systems
in ways that modify or transform the operation of these systems as a whole. The precise
institutional weight given to restorative justice is hugely important in terms of the overall
direction and orientation of juvenile justice, from the point of police contact through to the
use of detention centres.
In its practical forms, restorative justice also places great faith in community-based and
community-oriented solutions to youthful offending. That is, it encourages greater public
participation in addressing victim concerns and needs, and takes into account the context
and conditions under which certain types of youth offending occur. It is an active model
Copyright © 2015. Oxford University Press. All rights reserved.

of justice, yet concerns have been raised about the potential net-widening effect of early
intervention forms of juvenile conferencing (especially in respect to relatively minor or
first offences). One might also wonder about the potential negative impact of conferencing
on those young people who may not have the family or friendship resources to respond
adequately to the emotional and resource demands of conference processes and agreements.
Yet another practical problem relates to the fact that most young people are members
of peer networks of some kind. There have been cases, for example, where an individual
offender has attended a conference, has been publicly shamed during the conference process,
and has agreed to make recompense to the victim. The offender’s friends, however—some of
whom have attended the conference—have ended up taking revenge on the victim (outside
the conference, at a later date, and through violent means) for the perceived humiliation the
offender suffered at the conference. Sometimes it is easy to forget that important affective

ties bind individual young people into affinity groups. This has implications not only for
the manner in which offending occurs (that is, in groups) but also for how specific incidents
might be responded to by the criminal justice system. Individualised justice, whether in the
form of conferences or otherwise, does not adequately address the collective nature of much
offending behaviour.
Finally, while the restorative justice framework provides a vital starting point for juvenile
justice reform, much more needs to be done to explore conceptually and practically the links
between restorative justice and social justice. Given the disadvantaged backgrounds and
circumstances of most officially designated young offenders, these are not trivial issues. They
go to the heart of the criminal justice system and societal relationships generally. Unless the
responses to youthful offending begin to address wider structural issues of (among others)
unemployment, poverty, and homelessness, it is hard to see what, in fact, is being ‘restored’
for the offender. Victims and offenders need to be nurtured and respected as human beings.
Being held accountable or being encouraged to participate are not sufficient in themselves
to rectify unpleasant situations and environments that generate much of the pressure or
impetus to offend in the first place. Social empowerment and community development
objectives remain as pertinent as ever in any discussion of juvenile justice reform and
innovative practice, including restorative justice.
Copyright © 2015. Oxford University Press. All rights reserved.

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