Restoring the focus

Restorative justice has been used for a generation in the criminal-law system as an alternative to court trials in order to resolve offenses and persuade perpetrators to change their behaviour.

Academics and policymakers are increasingly considering whether this type of conflict-resolution practice can be expanded to better regulate business practices.

In a typical restorative justice (RJ) conference, a trained facilitator leads a structured dialogue between an offender and victims – which may include family members and others who were affected – that addresses the nature of the crime and its impact. All sides get to offer their version of events and then reach a consensus on an outcome, which often involves the offender paying for damages, enrolling in rehabilitation programs or taking other actions.

These conferences are a conversational form of regulation that tries to bring the offender to a position of remorse rather than denial, said CAP Professor John Braithwaite, one of the first to bring academic underpinnings to this practice. Victims, offenders and other stakeholders share their versions of the offenses, discuss possible ways to prevent them from happening again and come to a consensus on the steps needed to make the victim feel that justice is served.

The practice runs counter to typical criminal or civil proceedings where each side brings in their own lawyers, witnesses and others whose role is to cause as much damage as possible to the other side, Braithwaite said. Those found to have caused offenses are fined, jailed or otherwise penalised, but the results often leave victims dissatisfied with the outcome and fail to stop perpetrators from committing future offenses.

Over the past 25 years, CAP academics have produced extensive research on RJ theory and practice, and Braithwaite’s name is pre-eminent in the field. Additionally, many CAP researchers were involved in early restorative justice activities that sprung up in Australia after 1990.

RJ conferences are extensions Maori-influenced family group conferences that started in New Zealand in the 1980s, Braithwaite said. The first RJ program in Australia was established in Wagga Wagga, NSW, in 1991 to intervene in juvenile justice cases. Other programs were established later in most Australian states and territories.

While critics say it simply involves people sitting around in circles and talking, RJ has shown many benefits, including an increased satisfaction with the criminal-justice system by both victims and offenders, and reduced re-offending, especially with violent offences, Braithwaite said. A Campbell Collaboration meta-analysis by the former head of the RegNet Centre for Restorative Justice, Dr Heather Strang, and Cambridge Professor Lawrence Sherman showed a significant reduction in re-offending.

“It’s about the idea that because crime hurts, justice should heal,” Braithwaite said. “Additionally, if that plays through to keeping some people out of prison, you can get a very good cost-benefit result because imprisonment is so expensive.”

RJ efforts to address crime have popped up in nearly all countries over the last 30 years. In 1999, the United Nations Economic and Social Counsel adopted a resolution that called on nations to develop procedures within their legal systems to adopt RJ policies and examine ways to facilitate the practice.

The form of conflict-resolution also has spread beyond criminal justice to address other issues including sexual harassment, reconciliation in the aftermath of wars, health care, drug abuse and business regulation.

In 2018, the Victorian government awarded a grant to a CAP research team led by Associate Professor Miranda Forsyth to design and test an RJ pilot program in partnership with the state’s Environmental Protection Authority (EPA). This would be one of first attempts to use RJ in environmental restoration and would shift the EPA’s regulatory focus from fixing pollution problems to preventing them from occurring in the first place.

But RJ has worked in other areas. Braithwaite and other CAP researchers worked with the Australian government in the late 1980s to change federal oversight over nursing homes.

They met with the industry, unions and consumer groups to consensually develop outcome standards for nursing care in a shift away from a rule book of specific regulations.

The regulatory focus changed to concentrate on quality of resident care, and a final evaluation of the program found both improvement in care quality at nursing homes and compliance with the law.

Braithwaite recounted another example of RJ when he served as a part-time commissioner on the Australian Trades Practices Commission in the 1990s. A group of insurance companies were accused of selling useless insurance policies, including one that targeted Aboriginal communities and had policy premiums deducted from their welfare checks.

Company officials participated in RJ conferences with victims, local Aboriginal Community Councils and other regulators. The executives later met with insurance regulators, industry associations and others, and the company agreed to a self-investigation and compensating 2,000 policy holders.

The result was that 80 company officials were dismissed, new internal controls were put in place and several external regulations were changed without involving the courts. .

At a time of cynicism about many democratic institutions, RJ offers an alternative that involves many stakeholders investing their time to fix situations, Braithwaite said. The process is more complicated and time consuming but can lead to better outcomes for both the individuals involved and the greater community.

RJ conferences require citizens to get actively involved rather than passively rely on regulatory institutions to fix things, Braithwaite said.

“Restorative justice has the potential to contribute not only to the creation of a more crime-free society but also to a society where our whole legal system works more efficiently and fairly, to a society where we do better at developing the human and social capital of our young and to a more peaceful world.”

Research funded by: Australian Research Council, Victoria Environmental Protection Authority, Smith Richardson Foundation, US Department of Justice, US National Science Foundation Youth Justice Board for England and Wales, Criminology Research Council, US business leader Jerry Lee, Road Safety Research Council, Australia Department of Health and Human Services

Related website: John Braithwaite’s restorative justice

Related research: Professor John Braithwaite

Updated:  24 April, 2017/Responsible Officer:  Dean, ANU College of Asia & the Pacific/Page Contact:  CAP Web Team