Crimes (Restorative Justice) Amendment Act 2018 (ACT)

Case

Crimes (Restorative Justice) Amendment Act 2018

A2018-34

Contents

Page

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

4            Eligible victimsSection 17 (1) (c) and (2) (c), except note  2

5            Eligible parentsSection 18 (1) (c)  2

6            Eligible offendersSection 19 (1) (b)  2

7           Section 20  3

8            Referring entitiesTable 22, item 3, column 3, paragraph (b)  4

9            Referral powerSection 24 (3) (b)  4

10          New section 24 (4)  4

11          Explanation of restorative justiceSection 25 (e)  4

12          Section 25 (f) (i)  5

13          Section 27 heading  5

14          Section 27 (3)  5

15          Court referral orders—reportsSection 28 (3)  6

16          Section 28 (5)  6

17          New division 6.4  7

18          Section 29  8

19          Finding of eligibility by referring entitySection 31 (1)  9

20          Section 31 (1), new note  9

21          Suitability—decisionNew section 32 (4)  9

22          Explanation of restorative justice—before consentSection 32A (e)  10

23          Section 32A (f) (i)  10

24          Explanation for participantsSection 45 (e)  10

25          Section 45 (f) (i)  10

26          Form of agreementNew section 52 (3)  11

27          Explanation of effect of agreementSection 53 (d)  11

28          Section 53 (e) (i)  11

29          SecrecySection 64 (1), definition of protected information, paragraph (b)           12

30          Dictionary, definition of personal characteristics  12

Schedule 1Crimes (Sentencing) Act 2005—Consequential amendment 13

Crimes (Restorative Justice) Amendment Act 2018

A2018-34

An Act to amend the Crimes (Restorative Justice) Act 2004, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

  1. Name of Act

    This Act is the Crimes (Restorative Justice) Amendment Act 2018.

  2. Commencement

    This Act commences on 1 October 2018.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

  3. Legislation amended

    This Act amends the Crimes (Restorative Justice) Act 2004.

    NoteThis Act also amends other legislation (see sch 1).

  4. Eligible victims
    Section 17 (1) (c) and (2) (c), except note

    omit

  5. Eligible parents
    Section 18 (1) (c)

    omit

  6. Eligible offenders
    Section 19 (1) (b)

    substitute

    (b)the offender—

    (i)either—

    (A)accepts responsibility for the commission of the offence; or

    (B)if the offender is a young offender and the offence is a less serious offence—does not deny responsibility for the commission of the offence; and

    (ii)was at least 10 years old when the offence was committed, or was allegedly committed; and

    (iii)agrees to take part in restorative justice.

  7. Section 20

    substitute

  8. 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) (i) applies to the offender.

    (2)A court is not required to reduce the severity of any sentence it may impose on an offender or young offender because the court is aware section 19 (1) (b) (i) 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, must not deny responsibility for the commission of the offence (see s 19).

    Note 2The Crimes (Sentencing) Act 2005, section 33 (1) (y) provides that, in deciding how an offender or young 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) (i) applies to the offender.

    However, the Crimes (Sentencing) Act 2005, section 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 (including a young offender) has chosen not to take part, or to continue to take part, in restorative justice for the offence.

  9. Referring entities
    Table 22, item 3, column 3, paragraph (b)

    omit

    case management hearing

    substitute

    pre-hearing mention

  10. Referral power
    Section 24 (3) (b)

    substitute

    (b)section 27 (Referral during court proceeding—before offender enters plea).

  11. New section 24 (4)

    insert

    (4)This section does not apply to a referral under section 28A (Referrals not requiring offender notification—post‑sentence stage).

  12. Explanation of restorative justice
    Section 25 (e)

    substitute

    (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

  13. Section 25 (f) (i)

    substitute

    (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

  14. Section 27 heading

    substitute

  15. Referral during court proceeding—before offender enters plea

  16. Section 27 (3)

    substitute

    (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.

    (3A)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.

  17. Court referral orders—reports
    Section 28 (3)

    substitute

    (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.

  18. Section 28 (5)

    substitute

    (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.

  19. New division 6.4

    insert

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).

  1. Section 29

    substitute

  2. 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

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  3. Finding of eligibility by referring entity
    Section 31 (1)

    after

    section 23 (Referral—procedure)

    insert

    or section 28A (Referrals not requiring offender notification—post‑sentence stage)

  4. Section 31 (1), new note

    insert

    NoteFor a referral under s 28A, the referring entity is not required to be satisfied that the offender is an eligible offender.

  5. Suitability—decision
    New section 32 (4)

    after the note, insert

    (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.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  6. Explanation of restorative justice—before consent
    Section 32A (e)

    substitute

    (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

  7. Section 32A (f) (i)

    substitute

    (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

  8. Explanation for participants
    Section 45 (e)

    substitute

    (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

  9. Section 45 (f) (i)

    substitute

    (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

  10. Form of agreement
    New section 52 (3)

    after the note, insert

    (3)If a required participant is not able to sign a restorative justice agreement but has given oral or other consent to the agreement, the director-general must ensure that a written record of the consent is—

    (a)made by a person who was with the person giving the consent when it was given; and

    (b)kept with the restorative justice agreement.

  11. Explanation of effect of agreement
    Section 53 (d)

    substitute

    (d)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

  12. Section 53 (e) (i)

    substitute

    (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

  13. Secrecy
    Section 64 (1), definition of protected information, paragraph (b)

    substitute

    (b)does not include—

    (i)information in a restorative justice agreement; or

    (ii)information disclosing who attended a restorative justice conference; or

    (iii)a written record of consent made under section 52 (3).

  14. Dictionary, definition of personal characteristics

    substitute

    personal characteristics, of a victim, or a parent of a child victim, or offender—see section 29.


Schedule 1Crimes (Sentencing) Act 2005—Consequential amendment

(see s 3)

[1.1]Section 33 (1) (y)

substitute

(y)if the Crimes (Restorative Justice) Act 2004, section 19 (1) (b) (i) applies to the offender—that fact;

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 23 August 2018.

  2. Notification

    Notified under the Legislation Act on 26 September 2018.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Crimes (Restorative Justice) Amendment Bill 2018, which was passed by the Legislative Assembly on 18 September 2018.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2018

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