Crimes (Restorative Justice) Act 2004 (ACT)
Crimes (Restorative Justice) Act 2004
A2004-65
Republication No 27
Effective: 27 March 2024
Republication date: 27 March 2024
Last amendment made by A2023‑45
About this republication
The republished law
This is a republication of the Crimes (Restorative Justice) Act 2004 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 27 March 2024. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 27 March 2024.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).
Crimes (Restorative Justice) Act 2004
Contents
Page
Part 1 Preliminary
1 Name of Act 2
3 Dictionary 2
4 Notes 2
5Offences against Act—application of Criminal Code etc 3
Part 2 Underlying principles
6 Objects of Act 4
7 Application of restorative justice 5
8 When restorative justice is available 5
9 No obligation to participate 6
Part 3 Key concepts
10 Definitions—restorative justice 7
11 Definitions—child victim, parent and victim 8
12 Definitions—offences and offenders 8
13 Definition—sentence-related order 11
Part 4 Application of Act
14 Application of Act—less serious offences 12
15 Application of Act—serious offences 12
16 Application of Act—family violence offences and sexual offences 13
Part 5 Eligibility for restorative justice
17 Eligible victims 14
18 Eligible parents 15
19 Eligible offenders 15
20 Accepting or not denying responsibility for offences 16
Part 6 Referral for restorative justice
Division 6.1 Preliminary
21 Definitions—referral 17
Division 6.2 General
22 Referring entities 17
23 Referral—procedure 21
24 Referral power 21
25 Explanation of restorative justice 22
26 Referral by DPP—less serious family violence offences and less serious sexual offences 23
Division 6.3 Referral by courts
27 Referral during court proceeding—before offender enters plea 24
28 Court referral orders—reports 25
Division 6.4 Referrals not requiring offender notification
28A Referrals not requiring offender notification—post‑sentence stage 26
Part 7 Suitability for restorative justice
29 Meaning of personal characteristics 28
30 Suitability—eligibility requirement 28
31 Finding of eligibility by referring entity 28
32 Suitability—decision 29
32A Explanation of restorative justice––before consent 30
33 Suitability—general considerations 31
34 Suitability—victims 32
35 Suitability—eligible parents 32
36 Suitability—offenders 33
Part 8 Restorative justice conferences and agreements
Division 8.1 General
37 Definitions—pt 8 34
38 Meaning of referring entity—pt 8 34
39 Decision to call conference 34
Division 8.2 Convenors
40 Appointment of convenors 35
41 What a convenor does 36
Division 8.3 Conduct of conference
42 Required participants 37
43 Substitute participants 37
44 Invited participants 37
45 Explanation for participants 39
46 Form of conference 40
47 Discontinuance of restorative justice 40
48 Report to referring entity about outcome 41
Division 8.4 Restorative justice agreements
49 Application—div 8.4 42
50 Agreement as object of conference 42
51 Nature of agreement 42
52 Form of agreement 43
53 Explanation of effect of agreement 44
54 Notice of agreement 45
55 Amendment of agreement 45
Division 8.5 Monitoring compliance with restorative justice agreements
56 Application—div 8.5 47
57 Monitoring compliance—director‑general (restorative justice) 47
58 Monitoring compliance—referring entities 48
Division 8.6 Evidence of statements made at conferences
59 Evidence of offences 49
60 Evidence of future offences 50
Part 9 Administration
Division 9.1 General administration
61 Restorative justice guidelines 51
62 Police participation in restorative justice 51
63 Information sharing 52
64 Secrecy 52
65 Secrecy about information acquired under other Acts 54
66 Protection from liability 55
Division 9.2 Reporting and records
67 Meaning of referring entity—div 9.2 55
68 Quarterly reporting by director‑general 55
69 Record-keeping by referring entities 57
70 Record-keeping by director‑general 57
71 Restorative justice database 58
Part 10 Miscellaneous
72 Exercise of functions by director‑general 59
73 Approved forms 60
74 Regulation-making power 60
Dictionary61
Endnotes
1 About the endnotes 64
2 Abbreviation key 64
3 Legislation history 65
4 Amendment history 69
5 Earlier republications 75
6 Expired transitional or validating provisions 78
Crimes (Restorative Justice) Act 2004
An Act to provide a process of restorative justice for victims, offenders and the community, and for other purposes
Part 1Preliminary
Name of Act
This Act is the Crimes (Restorative Justice) Act 2004.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.
For example, the signpost definition ‘adult offender—see section 12.’ means that the term ‘adult offender’ is defined in s 12.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
Notes
A note included in this Act is explanatory and is not part of this Act.
NoteSee Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Note 2Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.
Part 2Underlying principles
Objects of Act
The objects of this Act are as follows:
(a)to enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences;
(b)to set up a system of restorative justice that brings together victims, offenders and their personal supporters in a carefully managed, safe environment;
(c)to ensure that the interests of victims of offences are given high priority in the administration of restorative justice under this Act;
(d)to enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice;
(e)to enable access to restorative justice in relation to offenders and offences not dealt with by the criminal justice process;
(f)to enable referral of offences for restorative justice by—
(i)agencies that have a role in the criminal justice system; and
(ii)entities that have a role in dealing with offenders, and harm caused by offences, not dealt with by the criminal justice process.
Note 1Offence includes an offence that is alleged to have been committed, but has not yet been tried in court, or proven (see s 12).
Note 2Offender includes a person who carries out an offence but cannot be held criminally responsible because of their age (see s 12).
Application of restorative justice
(1)In deciding how to deal with an offence, a referring entity may consider whether it is appropriate to refer the offence for restorative justice before considering other action.
NoteReferring entities are listed in table 22 and include agencies responsible for the various stages of the criminal justice process in relation to an offence, an entity responsible for dealing with offenders not dealt with by the criminal justice process and any entities prescribed by regulation.
(2)However, if an offence is referred for restorative justice, the referral is to have no effect on any other action or proposed action in relation to the offence or the offender by the referring entity.
Example
Sían is arrested and charged with an offence. The chief police officer refers the offence for restorative justice. The referral of the offence does not prevent Sían being required to attend court to answer the charge.
When restorative justice is available
Restorative justice is available for an offence if all of the following requirements are satisfied:
(a)there is an eligible victim or eligible parent in relation to the offence;
(b)the offender is an eligible offender;
(c)the offence is referred for restorative justice by a referring entity;
(d)the director‑general decides that restorative justice is suitable for the offence.
Note 1Victims, parents and offenders are eligible for restorative justice if they qualify under part 5.
Note 2The director‑general may only decide that restorative justice is suitable for an offence according to the requirements of pt 7 (see s 10, def).
Note 3The restorative justice process is provided for by this Act as follows:
· pt 5 (Eligibility for restorative justice) deals with eligibility of victims (or their parents) and offenders for restorative justice
· pt 6 (Referral for restorative justice) deals with the referral of offences for restorative justice
· pt 7 (Suitability for restorative justice) deals with the suitability of restorative justice for an offence.
· pt 8 (Restorative justice conferences and agreements) deals with the calling of restorative justice conferences and the making of restorative justice agreements for an offence
No obligation to participate
There is no obligation on a victim, a parent of a child victim or an offender—
(a)to take part in restorative justice; or
(b)to continue to take part in restorative justice after it has started.
NoteVictims (or their parents) and offenders must be given clear explanations of the purpose and procedures involved in the restorative justice process before agreeing to take part. In addition, the legal status of the process and the legal effect of entering into a restorative justice agreement must be clearly explained to victims (or their parents) and offenders. See the following:
· s 25 (Explanation of restorative justice)
· s 45 (Explanation for participants)
· s 53 (Explanation of effect of agreement).
Part 3Key concepts
Definitions—restorative justice
In this Act:
eligible offender—see section 19.
eligible parent—see section 18.
eligible victim— see section 17.
referred, for restorative justice—an offence is referred for restorative justice if a referring entity proposes that consideration be given to whether restorative justice is suitable for the offence.
referring entity—
(a)see section 22; but
(b)for part 8 (Restorative justice conferences and agreements)—see section 38; and
(c)for division 9.2 (Reporting and records)—see section 67.
restorative justice means the process of restorative justice provided under this Act, including a restorative justice conference under this Act.
suitable—restorative justice is suitable for an offence, or an eligible victim, parent or offender in relation to an offence, if the director‑general decides under part 7 that restorative justice is suitable for the offence, victim, parent or offender.
Definitions—child victim, parent and victim
In this Act:
child victim, of an offence, means a victim of an offence who is a child.
NoteA child is an individual under 18 years old (see Legislation Act, dict, pt 1, def child).
parent, of a child, means a person with parental responsibility for the child within the meaning of the Children and Young People Act 2008, division 1.3.2 (Parental responsibility).
victim—
(a)has the meaning given by the Victims of Crime Act 1994, section 6; and
(b)includes a person who would be a victim if a reference in that Act to an offence included a reference to an offence that is alleged to have been committed.
Definitions—offences and offenders
(1)In this Act:
adult offender, in relation to an offence, means an offender who was an adult when the offence was committed.
NoteAn adult is an individual who is at least 18 years old (see Legislation Act, dict, pt 1, def adult).
child offender, in relation to an offence, means an offender who was at least 10 years old but under the age of criminal responsibility for the offence when the offence was committed or allegedly committed.
commission, of an offence that is alleged to have been committed, includes the alleged commission of the offence.
NoteOffence is defined to include an offence that is alleged to have been committed. Offender is defined in similar terms. See definitions of offence and offender in this section.
family violence offence—see the Family Violence Act 2016, dictionary.
less serious family violence offence means—
(a)an offence if the conduct making up the offence is family violence under the Family Violence Act 2016 that is punishable by a term of imprisonment of—
(i)if the offence relates to money or other property—14 years or less; or
(ii)in any other case—10 years or less; and
(b)a contravention of a protection order under the Family Violence Act 2016, section 43.
less serious offence means an offence other than a serious offence.
less serious sexual offence means an offence under the Crimes Act 1900, part 3 that is punishable by a term of imprisonment of 10 years or less.
offence—
(a)means an offence against a territory law; and
(b)includes an offence against a territory law that is alleged to have been committed by a person, unless—
(i)a court has acquitted the person of the offence; or
(ii)a court has dismissed a proceeding against the person for the offence without finding the person guilty.
offender—
(a)means a person who has been convicted or found guilty of an offence against a territory law; and
(b)includes a person who is alleged to have committed an offence against a territory law, unless—
(i)a court has acquitted the person of the offence; or
(ii)a court has dismissed a proceeding against the person for the offence without finding the person guilty.
serious family violence offence means an offence if the conduct making up the offence is family violence under the Family Violence Act 2016 that is punishable by a term of imprisonment of—
(a)if the offence relates to money or other property—more than 14 years; or;
(b)in any other case—more than 10 years.
serious offence means an offence punishable by imprisonment for a term longer than—
(a)if the offence relates to money or other property—14 years; or
(b)in any other case—10 years.
serious sexual offence means an offence under the Crimes Act 1900, part 3 that is punishable by a term of imprisonment of more than 10 years.
sexual offence means a less serious sexual offence or a serious sexual offence.
young offender, in relation to an offence, means an offender who was under 18 years old but not under the age of criminal responsibility for the offence when the offence was committed or allegedly committed.
(2)In this section:
under the age of criminal responsibility—a person is under the age of criminal responsibility for an offence if the person is not criminally responsible under the Criminal Code, section 25 for the offence.
Definition—sentence-related order
In this Act:
sentence-related order, for an offender who is found guilty of an offence, means any of the following orders of the court:
(a)an order sentencing the offender;
(b)an order under the Crimes (Sentencing) Act 2005, section 12 (Suspended sentences) or section 17 (Non‑conviction orders—general).
Examples—par (a)
1 an order for a sentence of imprisonment
2 an order for intensive correction under the Crimes (Sentencing) Act 2005
3 a good behaviour order under the Crimes (Sentencing) Act 2005, including an order subject to a community service condition
NoteOrders under the Crimes Act 1900, s 402 (Conditional release of offenders without proceeding to conviction) (repealed) and s 403 (Conditional release of offenders) (repealed) are taken to be orders under the Crimes (Sentencing) Act 2005, s 12 or s 17 (see Crimes (Sentence Administration) Act 2005, s 336 to s 338).
Part 4Application of Act
Application of Act—less serious offences
(1)This Act applies to a less serious offence committed by a child offender, young offender or an adult offender.
(2)This Act applies to a less serious offence committed by a child offender, young offender or an adult offender even if the offence was committed before the day this section commenced.
(3)This section does not apply to a family violence offence or a sexual offence.
NoteFor the application of this Act to family violence offences and sexual offences, see s 16.
Application of Act—serious offences
(1)This Act applies to a serious offence committed by a child offender.
(2)This Act applies to a serious offence committed by a young offender or adult offender, if the offender—
(a)is charged with the offence; and
(b)either—
(i)pleads guilty to the offence; or
(ii)is found guilty of the offence (whether or not the offender is convicted or sentenced for the offence).
(3)This Act applies to a serious offence committed by a child offender, young offender or adult offender, even if the offence was committed before the day this section commenced.
(4)This section does not apply to a family violence offence or a sexual offence.
NoteFor the application of this Act to family violence offences and sexual offences, see s 16.
Application of Act—family violence offences and sexual offences
(1)This Act applies to a less serious family violence offence or a less serious sexual offence committed by a child offender, young offender or adult offender.
(2)For a young offender or adult offender, subsection (1) applies whether or not the young offender or adult offender is charged with the offence.
Note 1An offence may have been committed if it is alleged that the offence was committed (see s 12, def commission).
Note 2For the director-general to decide that a less serious family violence offence or a less serious sexual offence committed by a young offender or an adult offender is suitable for restorative justice under pt 7 before the offender pleads guilty to the offence or is found guilty of the offence, the director-general must be satisfied that exceptional circumstances exist for the calling of a restorative justice conference (see s 33 (2)).
(3)This Act applies to a serious family violence offence or a serious sexual offence committed by a child offender.
(4)This Act applies to a serious family violence offence or a serious sexual offence committed by a young offender or adult offender if—
(a)the offender is charged with the offence; and
(b)either—
(i)the offender pleads guilty to the offence; or
(ii)the offender is found guilty of the offence (whether or not the offender is convicted or sentenced for the offence).
(5)This Act applies to a family violence offence or a sexual offence committed by a child offender, young offender or adult offender even if the offence was committed before the day this section commenced.
Part 5Eligibility for restorative justice
Eligible victims
(1)A victim of an offence is eligible for restorative justice in relation to the offence if—
(a)this Act applies to the offence and the offender under part 4; and
(b)the victim is at least 10 years old.
(2)If a victim of an offence is younger than 10 years old, an immediate family member of the victim is eligible for restorative justice in relation to the offence if—
(a)this Act applies to the offence and the offender under part 4; and
(b)the immediate family member is at least 10 years old.
NoteAlternatively, a parent of a child victim of an offence may take part in restorative justice as an invited participant (see s 44).
(3)For this Act, a victim of an offence, or an immediate family member of a victim of an offence, is an eligible victim in relation to the offence if the victim or immediate family member is eligible for restorative justice under this section.
(4)In this section:
immediate family member, in relation to a victim of an offence, means a person who was, at the time the offence was committed—
(a)a parent of the victim; or
(b)a sibling of the victim.
Examples of siblings
1brother or sister
2half-brother or half-sister
3step-brother or step-sister
4someone who has the same guardian or foster parent as the victim
Eligible parents
(1)A parent of a child victim of an offence (no matter how old the child victim is) is eligible for restorative justice in relation to the offence if—
(a)this Act applies to the offence and the offender under
part 4; and
(b)the child victim is incapable of adequately understanding or responding to the experience of the offence, or has died.
(2)For this Act, a parent of a child victim of an offence is an eligible parent in relation to the offence if the parent is eligible for restorative justice under this section.
Eligible offenders
(1)An offender who commits an offence is eligible for restorative justice if—
(a)this Act applies to the offence and the offender under
part 4; and
(b)any of the following apply to the offender:
(i)the offender accepts responsibility for the commission of the offence;
(ii)if the offender is a young offender and the offence is a less serious offence—the offender does not deny responsibility for the commission of the offence;
(iii)if the offender is a child offender—the offender does not deny responsibility for the commission of the offence; and
(c)the offender agrees to take part in restorative justice.
(2)For this Act an offender is an eligible offender in relation to the offence if the offender is eligible for restorative justice under this section.
Accepting or not denying responsibility for offences
(1)This Act does not prevent an offender from pleading not guilty to an offence only because section 19 (1) (b) applies to the offender.
(2)A court is not required to reduce the severity of any sentence it may impose on an offender because the court is aware section 19 (1) (b) applies to the offender.
Note 1To be eligible to take part in restorative justice, an offender must accept responsibility for the commission of the offence or, if the offender is a young offender and the offence is a less serious offence or the offender is a child offender, must not deny responsibility for the commission of the offence (see s 19).
Note 2The Crimes (Sentencing) Act 2005, s 33 (1) (y) provides that, in deciding how an offender should be sentenced (if at all) for an offence, the matters known to the court that it must consider include whether this Act, s 19 (1) (b) applies to the offender.
However, the Crimes (Sentencing) Act 2005, s 34 (1) (h) provides that a court must not increase the severity of the sentence that it would otherwise impose on a person for an offence because the offender has chosen not to take part, or to continue to take part, in restorative justice for the offence.
Part 6Referral for restorative justice
Division 6.1 Preliminary
Definitions—referral
In this Act:
director‑general (children and young people)—see section 22 (3).
director‑general (corrections)—see section 22 (3).
director‑general (restorative justice)—see section 22 (3).
court referral order—see section 27 (2).
NoteReferred is defined in s 10.
referring entity—see section 22.
section 24 referral conditions—see section 24.
Division 6.2 General
Referring entities
(1)An entity mentioned in table 22, column 2 (a referring entity) may refer an offence for restorative justice at the stage described for the entity in column 3 in relation to the offence.
(2)However, for an offence involving a child offender, the referring entity may refer the offence for restorative justice at any time.
(3)In table 22:
director‑general (children and young people) means the director‑general of the administrative unit responsible for the administration of the Children and Young People Act 2008, acting in that capacity.
director‑general (corrections), in relation to an offender for whom a sentence-related order is made, means the director‑general of the administrative unit responsible for the administration of the order, acting in that capacity.
director‑general (restorative justice) means the director‑general of the administrative unit responsible for the administration of this Act, acting in that capacity.
Example (definitions of all directors‑general)
For this example, the administrative unit responsible for the administration of sentence-related orders (for both young and adult offenders) is also the administrative unit responsible for the administration of this Act and the Children and Young People Act 2008. The administrative unit has a single director‑general. That director‑general, in different capacities corresponding to those different responsibilities, may be differently described as follows:
· The director‑general is the director‑general (children and young people) while exercising a function in relation to an offence allegedly committed by a child who is the subject of a care and protection order under the Children and Young People Act 2008.
· The director‑general is the director‑general (corrections) while exercising a function in relation to a young or adult offender who is the subject of a sentence-related order.
· The director‑general is the director‑general (restorative justice) while exercising a function relating to the administration of this Act.
Note 1If this Act refers simply to the director‑general (without a tag) this is a reference to the director‑general of the administrative unit responsible for the administration of this Act (see Legislation Act, s 163).
Note 2A director‑general may delegate any powers given to the director‑general under this Act under the Public Sector Management Act 1994, s 20.
prosecution referral, for an offender, means referral of the offender for prosecution by any of the following:
(a)a voluntary agreement to attend court;
(b)a court attendance notice under the Magistrates Court Act 1930.
(c)a summons;
(d)the arrest and charging of the offender.
therapeutic support panel—see the Children and Young People Act 2008, dictionary.
Table 22Referring entities
| column 1 item | column 2 referring entity | column 3 stage when referral may be made |
| 1 | chief police officer director‑general (restorative justice) director‑general (children and young people) police officer victims of crime commissioner | (a) after the offender is cautioned or apprehended; and (b) before a prosecution referral is made for the offender |
| 2 | director of public prosecutions | (a) after a prosecution referral is made for the offender; and (b) before a second mention hearing for the offence by a court has begun |
| 3 | Magistrates Court (including the Childrens Court) Supreme Court | unless, or until, the offender pleads guilty to the offence— (a) after a second mention hearing for the offence has begun; and (b) before the end of a pre-hearing mention or case status inquiry for the offence |
| 4 | Magistrates Court (including the Childrens Court) Supreme Court | if the offender pleads guilty to, or is found guilty of, the offence— (a) after the offender pleads guilty to, or is found guilty of, the offence (whether or not the offender has been convicted or sentenced); and (b) before the end of the proceeding |
| 5 | director‑general (children and young people) director‑general (corrections) director‑general (restorative justice) sentence administration board victims of crime commissioner | (a) after a court has made a sentence-related order in relation to the offender; and (b) before the end of the term of the sentence-related order or the sentence (if any) of which it forms part (whichever is later) |
| 6 | therapeutic support panel | at any time after a child offender has been referred to the panel |
| 7 | referring entity prescribed by regulation | stage prescribed by regulation |
Referral—procedure
(1)The referring entity must give a referral to the director‑general (restorative justice).
NoteSection 72 deals with what happens if the referring entity is the same director‑general as the director‑general (restorative justice), but the referral is made by the director‑general as director‑general (corrections) or director‑general (children and young people).
That section provides that the director‑general must ensure that appropriate administrative arrangements are made for the referral to be given by a delegate of the director‑general as director‑general (corrections) or director‑general (children and young people) to a delegate of the director‑general as director‑general (restorative justice).
(2)The referral—
(a)must be in writing, stating the grounds for referral; and
(b)if the referring entity is a court—may be in the form of a court referral order or sentence-related order, or as a condition of a bail order.
NoteIf a form is approved under s 73 for this provision, the form must be used.
(3)This section does not apply if the referring entity is the director‑general (restorative justice).
NoteThe referring entity may be the director‑general (restorative justice) under table 22, item 1 or 5.
Referral power
(1)A referring entity may refer an offence for restorative justice if the entity is satisfied that all the following conditions (the section 24 referral conditions) apply:
(a)the offender is an eligible offender;
(b)there is an eligible victim or parent in relation to the offence;
(c)an explanation has been given under section 25 to the eligible offender, before the offender agrees to take part in restorative justice.
NoteThe conditions under which a victim, parent or offender may be eligible are set out in s 17, s 18 and s 19.
(2)The restorative justice guidelines may prescribe procedures for making decisions about referrals under subsection (1).
(3)This section is subject to the following sections:
(a)section 26 (Referral by DPP—less serious family violence offences and less serious sexual offences);
(b)section 27 (Referral during court proceeding—before offender enters plea).
(4)This section does not apply to a referral under section 28A (Referrals not requiring offender notification—post‑sentence stage).
Explanation of restorative justice
Before an offence is referred for restorative justice, the referring entity must ensure that reasonable steps are taken to explain to the eligible offender (in language that the offender can readily understand)––
(a)the purpose of restorative justice generally and for the particular offence; and
(b)the nature of restorative justice, including the following:
(i)the nature of a restorative justice conference;
(ii)who may take part in a restorative justice conference;
(iii)the nature of a restorative justice agreement; and
(c)that the offender may seek independent legal advice about taking part in restorative justice; and
(d)that no-one is under an obligation to take part, or continue to take part, in restorative justice after it has started; and
(e)if the offender has not entered a plea in relation to the offence—that the offender is not prevented from pleading not guilty to the offence only because section 19 (1) (b) (i) applies to the offender; and
(f)if a sentence-related order has not been made for the offender—that, if the offender is found guilty of the offence, a court, in sentencing the offender—
(i)may consider whether section 19 (1) (b) (i) applies to the offender, but is not required to reduce the severity of any sentence as a result; and
(ii)must not consider whether the offender has chosen not to take part, or not to continue to take part, in restorative justice.
Referral by DPP—less serious family violence offences and less serious sexual offences
(1)This section applies if the director of public prosecutions is the referring entity for a less serious family violence offence or a less serious sexual offence allegedly committed by a young offender or an adult offender.
(2)The director of public prosecutions may refer the offence for restorative justice if—
(a)the section 24 referral conditions apply; and
(b)the director has consulted each person who could be an eligible victim or parent for the offence.
Division 6.3 Referral by courts
Referral during court proceeding—before offender enters plea
(1)This section applies if—
(a)a court is the referring entity for an offence under table 22, item 3; and
(b)the prosecution and any lawyer representing the offender agree that the offence should be referred for restorative justice; and
(c)either—
(i)the court is satisfied that the section 24 referral conditions apply; or
(ii)the court considers that it is appropriate to refer the offence for restorative justice, and the court has ensured that an explanation has been given under section 25 (Explanation of restorative justice) to the offender.
(2)The court may by order (a court referral order) adjourn the proceeding for a stated period, and refer the offence for restorative justice, on the application of—
(a)the director of public prosecutions; or
(b)the offender’s legal representative.
(3)The court must ensure that a copy of the court referral order is given to—
(a)the director-general (restorative justice); and
(b)the director of public prosecutions; and
(c)any lawyer representing the offender.
(4)The director-general (restorative justice) must ensure that a copy of the court referral order received under section (3) (a) is given to—
(a)each person who could be an eligible victim or eligible parent in relation to the offence; and
(b)the offender.
(5)For the referral of a less serious family violence offence or a less serious sexual offence alleged to have been committed by a young offender or an adult offender, the court may make a court referral order, before the offender pleads guilty to the offence or is found guilty of the offence, only if it considers that exceptional circumstances exist to justify the referral.
NoteThis Act does not apply to a serious family violence offence or a serious sexual offence unless the offender pleads guilty to the offence, or is found guilty of the offence (see s 16).
Court referral orders—reports
(1)This section applies if a court makes a court referral order for section 27 in relation to a proceeding for an offence.
(2)The director‑general must give the court a written report about the outcome of restorative justice for the offence within the period for which the proceeding is adjourned under the order.
(3)The report must include a statement of the following:
(a)whether the director-general is satisfied that, in relation to the offence—
(i)there is an eligible victim or eligible parent in relation to the offence; and
(ii)there is an eligible offender in relation to the offence; and
(iii)the offence is a suitable offence for restorative justice;
(b)whether a restorative justice conference was held;
(c)if a restorative justice conference was held—
(i)the extent to which the conference met the objects of this Act; and
(ii)whether a restorative justice agreement was reached at the conference.
(4)If a restorative justice agreement was reached at a restorative justice conference for the offence, the report must include a copy of the agreement.
(5)The director-general must give a copy of the report to—
(a)each person who is a required participant in a restorative justice conference under section 42 (Required participants); and
(b)the director of public prosecutions; and
(c)any lawyer representing the offender.
Division 6.4 Referrals not requiring offender notification
28AReferrals not requiring offender notification—post‑sentence stage
(1)A post-sentence referring entity may refer an offence for restorative justice if—
(a)the entity is satisfied there is an eligible victim or eligible parent in relation to the offence; and
(b)the offender—
(i)was at least 10 years old when the offence was committed; and
(ii)is in the post-sentence stage in relation to the offence; and
(c)the entity is satisfied, having regard to the objects of this Act, that it is not appropriate, or it is not reasonably practicable in the circumstances, to notify the offender that the offence is being considered for restorative justice.
NoteFor a referral under this section, the referring entity is not required to be satisfied the offender is an eligible offender. However, the director‑general must be satisfied of that before deciding the offence is suitable for restorative justice (see s 30 (b)).
(2)The restorative justice guidelines may prescribe procedures for how a post-sentence referring entity must make decisions about referrals under subsection (1).
(3)In this section:
post-sentence referring entity means an entity mentioned in table 22, item 5, column 2.
post-sentence stage, in relation to an offence for which the offender is found guilty, means—
(a)after a court has made a sentence-related order for the offender; and
(b)before the end of the term of the sentence-related order or the sentence (if any) of which it forms part (whichever is later).
Part 7Suitability for restorative justice
Meaning of personal characteristics
In this Act:
personal characteristics, of a victim, or a parent of a child victim, or offender, means personal characteristics of the victim, parent or offender that might affect—
(a)the capability of the victim, parent or offender to agree to take part in restorative justice; or
(b)the outcome of restorative justice for the relevant offence.
Examples
· age
· gender
· social or cultural background
Suitability—eligibility requirement
The director‑general may decide that an offence is suitable for restorative justice only if satisfied that—
(a)there is an eligible victim or eligible parent for the offence; and
(b)the offender is an eligible offender.
Finding of eligibility by referring entity
(1)This section applies if, in a referral under section 23 (Referral—procedure) or section 28A (Referrals not requiring offender notification—post‑sentence stage), a referring entity states that a person is an eligible victim, parent, or offender and gives grounds for that statement.
NoteFor a referral under s 28A, the referring entity is not required to be satisfied that the offender is an eligible offender.
(2)For this part, the referring entity’s statement—
(a)is sufficient for the director‑general to be satisfied of the fact of eligibility; but
(b)does not prevent the director‑general from being satisfied that a victim, parent or offender is not eligible for restorative justice.
Suitability—decision
(1)The director‑general is responsible for deciding whether restorative justice is suitable for an offence.
(2)The director‑general may decide whether restorative justice is suitable for an offence only after considering the following:
(a)the general considerations mentioned in section 33;
(b)suitability for the eligible victim or parent under section 34 or section 35;
(c)suitability for the offender under section 36.
(3)Subject to section 32A, if the director‑general decides that restorative justice is suitable for an offence, the director‑general must ask the following for written consent for a restorative justice conference to be called for the offence:
(a)the eligible victim or parent, or both (if there is an eligible victim and an eligible parent);
(b)the eligible offender.
NoteIf a form is approved under s 73 for this provision, the form must be used.
(4)In this section:
written consent includes oral or other consent, if a written record of the consent is made by a person who was with the person giving the consent when it was given.
Example
Royce is an eligible victim who has an acquired brain injury that limits his ability to write and speak. Royce is able to indicate his consent by using a communication board. Royce’s mother is with Royce when he consents and makes a written record of his actions.
32AExplanation of restorative justice––before consent
Before obtaining written consent under section 32 (3), the director‑general must ensure that reasonable steps are taken to explain to each eligible victim and parent, and the offender (in language that the victim, parent or offender can readily understand)—
(a)the purpose of restorative justice generally and for the particular offence; and
(b)the nature of restorative justice, including the following:
(i)the nature of a restorative justice conference;
(ii)who may take part in a restorative justice conference;
(iii)the nature of a restorative justice agreement; and
(c)that the person may seek independent legal advice about taking part in restorative justice; and
(d)that no-one is under an obligation to take part, or continue to take part, in restorative justice after it has started; and
(e)if the offender has not entered a plea in relation to the offence—that the offender is not prevented from pleading not guilty to the offence only because section 19 (1) (b) (i) applies to the offender; and
(f)if a sentence-related order has not been made for the offender—that, if the offender is found guilty of the offence, a court, in sentencing the offender—
(i)may consider whether section 19 (1) (b) (i) applies to the offender, but is not required to reduce the severity of any sentence as a result; and
(ii)must not consider whether the offender has chosen not to take part, or not to continue to take part, in restorative justice.
Suitability—general considerations
(1)In deciding whether restorative justice is suitable for an offence, the director‑general must consider the following:
(a)any government or administrative policy relating to the treatment of offences of the relevant kind;
(b)the nature of the offence, including the level of harm caused by or violence involved in its commission or alleged commission;
(c)the appropriateness of restorative justice at the current stage of the criminal justice process or any other process associated with the offence;
(d)any potential power imbalance between the people who are to take part in restorative justice for the offence;
(e)the physical and psychological safety of anyone who is to take part in restorative justice for the offence.
(2)The director-general may decide that restorative justice is suitable for a less serious family violence offence or a less serious sexual offence committed by a young offender or an adult offender before the offender pleads guilty to the offence or is found guilty of the offence only if satisfied that exceptional circumstances exist to justify the calling of a restorative justice conference for the offence.
Suitability—victims
(1)In deciding whether restorative justice is suitable for an eligible victim, the director‑general must consider the following:
(a)the victim’s personal characteristics;
(b)the victim’s motivation for taking part in restorative justice;
(c)the impact of the offence as perceived by the victim.
(2)For this Act, an eligible victim is a suitable victim if the director‑general decides under section 32 that the victim is suitable for restorative justice.
Suitability—eligible parents
(1)In deciding whether restorative justice is suitable for an eligible parent of a child victim, the director‑general must consider the following:
(a)the relationship between the parent and the child;
(b)the parent’s and the child victim’s personal characteristics;
(c)the parent’s and the child victim’s motivation for taking part in restorative justice;
(d)the impact of the offence as perceived by the parent and the child victim.
(2)For this Act, an eligible parent is a suitable parent if the director‑general decides under section 32 that the parent is suitable for restorative justice.
Suitability—offenders
In deciding whether restorative justice is suitable for an offender, the director‑general must consider the following:
(a)the extent (if any) of the offender’s contrition or remorse for the offence;
(b)the offender’s personal characteristics;
(c)the offender’s motivation for taking part in restorative justice;
(d)the impact of the offence as perceived by the offender.
Part 8Restorative justice conferences and agreements
Division 8.1 General
Definitions—pt 8
In this part:
referring entity—see section 38.
required participant, in a restorative justice conference—see section 42.
restorative justice agreement—see section 50.
substitute participant—see section 43.
suitable parent—see section 35.
suitable victim—see section 34.
Meaning of referring entity—pt 8
(1)In this part:
referring entity—see section 22.
(2)However, if an offence is referred for restorative justice by a court in making a sentence-related order, referring entity means the director‑general (corrections).
Decision to call conference
(1)The director‑general may require a restorative justice conference to be called for an offence if—
(a)the director‑general decides, under section 32 (Suitability—decision) that restorative justice is suitable for the offence; and
(b)the eligible victim or parent, and the eligible offender, gives consent under section 32 (3) for the conference to be called.
(2)The director‑general must assign a convenor to a conference called under this section.
(3)The director‑general must ensure, before the conference begins, that the convenor has received sufficient legal training to—
(a)advise the participants of their rights and duties at law and under this Act; and
(b)otherwise exercise the functions of a convenor under this Act.
Division 8.2 Convenors
Appointment of convenors
(1)The director‑general may appoint a person as a convenor for this part.
Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).
(2)The director‑general may appoint a person as convenor only if—
(a)the person has the qualifications and experience prescribed by regulation; and
(b)if the person is not a lawyer—the director‑general is satisfied that the convenor has received, or has the capacity to receive, sufficient legal training—
(i)to advise those who take part in restorative justice of their rights and duties in relation to restorative justice under this Act; and
(ii)otherwise to exercise the functions of a convenor for this Act.
(3)Subsection (2) (b) does not prevent a regulation being made requiring a convenor to be a lawyer.
What a convenor does
(1)The convenor of a restorative justice conference, subject to this part, may do anything necessary or desirable to be done in relation to calling the conference, including the following:
(a)consulting a person with knowledge of or experience in a particular culture;
(b)inviting a person to take part in the conference;
(c)deciding whether the conference should require the participants to meet in person, or to communicate in any other way;
(d)fixing a time for the conference, and for any continuation of the conference;
(e)fixing a venue for the conference, if the participants are to meet in person;
(f)identifying the issues that should be addressed at the conference;
(g)facilitating the conference;
(h)warning participants about the potentially incriminating nature of any statement to be made, or being made, at the conference;
(i)facilitating an agreement between the participants;
(j)ensuring that this Act is complied with in relation to the conference and any agreement;
(k)any other function required by regulation.
(2)The convenor must carry out the functions mentioned in subsection (1) in a way that ensures that no-one’s safety, rights or dignity is compromised.
Division 8.3 Conduct of conference
Required participants
(1)A restorative justice conference for an offence must not proceed unless each of the following takes part in the conference:
(a)a suitable victim or parent, or a substitute participant for a suitable victim or parent;
(b)the offender.
(2)A person mentioned in subsection (1) who takes part (or who is to take part) in a restorative justice conference for an offence is a required participant in the conference for this part.
NoteThe convenor may invite supporters of the offender and victim to take part in the conference, and the informant police officer (see s 44).
Substitute participants
A person (a substitute participant) acting for a suitable victim or parent may take part in a restorative justice conference instead of the victim or parent if—
(a)the victim or parent asks for, or agrees to, the substitution; and
(b)the convenor agrees to the substitution.
NoteIf the conference results in a restorative justice agreement, the substitute participant for the victim or parent must sign the agreement, and is taken to do so on behalf of the victim or parent (see s 52).
Invited participants
(1)Any of the following may take part in a restorative justice conference if invited by the convenor:
(a)the police officer who is the informant for the offence;
(b)a parent of a suitable victim or the offender;
(c)a family member or domestic partner of a suitable victim, a suitable parent or the offender;
(d)a person in a domestic relationship with a suitable victim, a suitable parent or the offender;
(e)anyone else, if—
(i)a suitable victim or parent, or the offender, considers the person can provide emotional or practical support for the victim, parent or offender; or
(ii)the convenor considers that the participation of the person would help to promote the objects of this Act in relation to the conference.
(2)If a required participant asks the convenor to invite a person mentioned in subsection (1) to take part in the conference, the convenor must not refuse the request unless the convenor considers, on reasonable grounds, that to invite the participant would be significantly detrimental to the objects of this Act in relation to the conference.
(3)If a participant in a restorative justice conference is represented by someone acting for the participant in a professional capacity, the representative may not take part in the conference in that capacity.
Examples of people acting for participants in a professional capacity
1 lawyers
2 victim intercessors
3 offender intercessors
(4)In this section:
domestic relationship—see the Domestic Relationships Act 1994, section 3.
NoteFor the meaning of domestic partner, see Legislation Act, s 169.
Explanation for participants
Before a restorative justice conference begins, the convenor must ensure that reasonable steps are taken to explain to each person who is to take part in the conference (in language that each can readily understand)—
(a)the objects of this Act in relation to the conference, including the purpose of restorative justice generally and for the particular offence; and
(b)the nature of restorative justice, including the following:
(i)the nature of a restorative justice conference;
(ii)who may take part in a restorative justice conference;
(iii)the nature of a restorative justice agreement; and
(c)that the person may, before and after the conference is called, seek independent legal advice about taking part in a restorative justice conference and about the effect of any restorative justice agreement reached at a conference; and
(d)that no-one is under an obligation to take part in the conference, or to continue to take part in conference after it has started; and
(e)if the offender has not entered a plea in relation to the offence—that the offender is not prevented from pleading not guilty to the offence only because section 19 (1) (b) (i) applies to the offender; and
(f)if a sentence-related order has not been made for the offender—that, if the offender is found guilty of the offence, a court, in sentencing the offender—
(i)may consider whether section 19 (1) (b) (i) applies to the offender, but is not required to reduce the severity of any sentence as a result; and
(ii)must not consider whether the offender has chosen not to take part, or not to continue to take part, in restorative justice.
Form of conference
The convenor of a restorative justice conference may conduct the conference in any form (or combination of forms) consistent with the restorative justice guidelines that would, in the convenor’s opinion, best facilitate—
(a)interaction between the participants; and
(b)the promotion of the objects of this Act in relation to the conference.
Examples of conference forms
1 face-to-face meeting
2 exchange of written or emailed statements between participants
3 exchange of prerecorded videos between participants
4 teleconferencing
5 videoconferencing
Discontinuance of restorative justice
(1)The convenor of a restorative justice conference may decide to—
(a)cancel the conference before it is conducted; or
(b)discontinue the conference at any time after it has started.
(2)The convenor may cancel or discontinue the conference only if, in the convenor’s opinion based on reasonable grounds, there is no significant prospect of promoting the objects of this Act by conducting, or continuing to conduct, the conference.
(3)Without limiting subsection (2), the convenor must cancel or discontinue the conference if, in the convenor’s opinion based on reasonable grounds, before or during the conference—
(a)a suitable victim or parent has withdrawn his or her agreement to take part in the conference, and there is no other suitable victim or parent (or substitute participant for a suitable victim or parent) who agrees to take part in the conference; or
(b)the offender has withdrawn his or her agreement to take part in the conference.
(4)If the convenor decides to cancel or discontinue the conference, the convenor must give notice of the decision to—
(a)each required participant in the conference; and
(b)the referring entity for the offence.
Report to referring entity about outcome
(1)After the end of a restorative justice conference, the convenor must give a report about the outcome of the conference to the referring entity for the offence.
(2)The report about the outcome of the conference must include the following information:
(a)details of the conference and when it ended; and
(b)whether the conference resulted in a restorative justice agreement.
NoteIf the conference resulted in an agreement, the convenor must give a copy of the agreement to the referring entity as well (see s 54).
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No and date Effective Last amendment made by Republication for R1
31 Jan 200531 Jan 2005–
24 Mar 2005not amended new Act R2
25 Mar 200525 Mar 2005–
21 Dec 2005A2005‑13 amendments by A2005‑13 R3
22 Dec 200522 Dec 2005–
1 June 2006A2005‑60 amendments by A2005‑60 R4
2 June 20062 June 2006–
11 Apr 2007A2006‑23 amendments by A2006‑23 R5
12 Apr 200712 Apr 2007–
1 July 2008A2007‑3 amendments by A2007‑3 R6
2 July 20082 July 2008–
28 July 2008A2007‑3 commenced expiry R7
29 July 200829 July 2008–
26 Aug 2008A2008‑22 amendments by A2008‑22 R8
27 Aug 200827 Aug 2008–
26 Oct 2008A2008‑29 amendments by A2008‑29 R9
27 Oct 200827 Oct 2008–
26 Feb 2009A2008‑46 amendments by A2008‑20 R10
27 Feb 200927 Feb 2009–
7 Mar 2009A2008‑46 amendments by A2008‑20 R11
8 Mar 20098 Mar 2009–
29 Mar 2009A2008‑46 amendments by A2008‑42 R12
30 Mar 200930 Mar 2009–
16 Dec 2009A2008‑46 amendments by A2008‑46 R13*
17 Dec 200917 Dec 2009–
30 June 2011A2009‑49 amendments by A2009‑49 R14
1 July 20111 July 2011–
4 June 2012A2011‑22 amendments by A2011‑22 R15
5 June 20125 June 2012–
9 June 2014A2012‑21 amendments by A2012‑21 R16
10 June 201410 June 2014–
24 Feb 2016A2014-18 amendments by A2014-18 R17
25 Feb 201625 Feb 2016–
1 Mar 2016A2016‑4 amendments by A2016‑4 R18
2 Mar 20162 Mar 2016–
31 Aug 2016A2016‑4 amendments by A2016‑4 R19
1 Sept 20161 Sept 2016–
30 Apr 2017A2016-52 amendments by A2016-52 R20
1 May 20171 May 2017–
23 May 2017A2017‑10 amendments by A2016‑42 as amended by A2017‑10 R21
24 May 201724 May 2017–
31 Dec 2017A2017‑14 updated endnotes
as amended by A2017‑14R22
1 Jan 20181 Jan 2018–
24 Apr 2018A2017‑14 amendments by A2016-55 as amended by A2017‑14 R23
25 Apr 201825 Apr 2018–
30 Sept 2018A2018-12 amendments by A2018-12 R24
1 Oct 20181 Oct 2018–
1 Nov 2018A2018‑34 amendments by A2018‑34 R25
2 Nov 20182 Nov 2018–
22 June 2021A2018‑34 expiry of transitional provisions (s 16 (5)-(8), s 26 (3)‑(8), s 27 (6)-(11), s 33 (3)-(8) R26
23 June 202123 June 2021–
26 Mar 2024A2021‑12 amendments by A2021‑12
Expired transitional or validating provisions
This Act may be affected by transitional or validating provisions that have expired. The expiry does not affect any continuing operation of the provisions (see Legislation Act 2001, s 88 (1)).
Expired provisions are removed from the republished law when the expiry takes effect and are listed in the amendment history using the abbreviation ‘exp’ followed by the date of the expiry.
To find the expired provisions see the version of this Act before the expiry took effect. The ACT legislation register has point-in-time versions of this Act.
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