New Zealand Law Society - What's the problem? A perspective from the inside

What's the problem? A perspective from the inside

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Nelson Restorative Justice Service co-ordinator manager Mark Rutledge says the recent introduction of s 24(a) of the Sentencing Act 2002 means courts are now required to “opt out” of restorative justice rather than the previous “opting in”. If the offender pleads guilty and there is an identifiable victim, restorative justice must be investigated.

“Due to the extra referrals from [the legislative changes] some restorative justice providers have not been able to cope with the extra demand.”

But this is not the case in Nelson, he says.

“Good communication, positive relationships and well defined processes I believe has put [Nelson Restorative Justice] in a good position to deal with the changes required to meet the challenges under the Act.”

Mr Rutledge suggests strengthening relationships with and between courts, lawyers, police and other stakeholders will help solve these “teething issues”. The aim is to ensure a smooth, efficient process from guilty plea to sentencing, he says. 

The Ministry of Justice needs to fund, communicate and understand each restorative justice provider adequately, he says, as each provider is unique according to the demands of their respective communities.

Importance of restorative justice

Mr Rutledge agrees with the sentiments outlined in Desmond Tutu’s book, The Book of Forgiving (William Collins, London, 2014), as follows:

“In many countries and especially in the West, the criminal justice system controls crime and punishment. Offenders are accountable only to the State [...] When a law is broken, it is a crime against the State. Crime is seen as an individual act with consequences for the individual criminal. Punishment is meted out and the offender is defined by his or her guilt.

“In this system of justice, punishment is believed to be both a deterrent to crime and a way of changing future behaviour. Sadly overcrowded prisons and high rates of recidivism tell a different story.

“Restorative justice, on the other hand, begins from the premise that a crime is an act not against the State but against another person and against the community. In this model of justice, accountability is based on the offender taking responsibility both for the harm they have caused and for taking action to repair the hurt.

“Victims are not peripheral to this process of justice. In the restorative justice model, victims play an integral role in deciding what is needed to repair the harm done to them. The focus is on dialogue, problem-solving, reconciling relationships, making restitution, and repairing the fabric of the community.

“Restorative justice seeks to recognise the humanity in each of us, whether we are victims or perpetrators. Restorative justice strives to bring about real healing and true justice to individuals and communities.”


Mr Rutledge is of the view that domestic violence situations and charges relating to “careless use of a motor vehicle causing injury” have been extremely successful in Nelson.

Restorative justice might be inappropriate in a situation where there is an unhealthy power imbalance that proceeding to a conference could be abusive to either party, he says, or where an offender does not acknowledge responsibility.

New Zealand law now recognises the need for both restorative justice and retributive justice and while the retributive system discourages contact between the victim and the offender, “it has been our experience that a restorative justice conference facilitates a safe forum for the victim to ask questions of how the offending came to happen to them”. The conference gives the offender the opportunity to respond to the victim’s questions and to address the harm they have caused, he says.

High satisfaction levels

Professor Chris Marshall, who holds the Diana Unwin Chair in Restorative Justice at Victoria University says international research is consistent in showing extremely high levels of satisfaction from victims who choose to participate in restorative justice.

“When surveyed, typically over 80% of participants report they found the experience positive and helpful and say they would recommend it to others.

“It is important to understand that restorative justice remains an entirely voluntary process”, he says.

“Victims and offenders must both freely choose to participate. No pressure should be brought to bear on either party to agree to do so”.

In Dr Marshall’s book Beyond Retribution (Grand Rapids, United States, 2001), he writes,

“Restorative justice cannot manufacture repentance and forgiveness. But by placing a concern for the healing of hurts, the renewal of relationships, and the recreation of community at the heart of its agenda, it makes room for the miracle of forgiveness to occur and for a new future to dawn.”

Restorative Justice Aotearoa

Restorative Justice Aotearoa (RJA) is the professional association representing the growing number of New Zealand providers of Restorative Justice and Restorative Practices. RJA is the professional accreditation body for New Zealand providers of restorative justice.

RJA general manager Mike Hinton says their mandate is to provide support, service to members and to work with the government and other organisations who have an interest in restorative justice.

“There’s been a substantial change to the justice system. It now provides a greater opportunity for all victims of crime to participate in the justice process.

“It is natural to see a few hiccups as a result of the substantial changes but I’m of the view these are teething issues that can be worked out.

“We need to work through these issues sensibly and it’s a matter for providers, court staff, lawyers, and the government to sit down and discuss what’s best and what’s going to work,” Mr Hinton says.

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