The ancient British system of criminal law involved the prosecution of one citizen by another, with compensation being made to the victim or the victim's family. It had its strengths but over time, it was recognised that there was benefit in reserving criminal matters to the jurisdiction of the state.
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Our legal system now operates on the premise that the state takes action to prosecute and, if convicted, punish people who commit crime. There is a very good rationale for this approach.
By taking the complainant or victim out of the process of prosecution and punishment, the state is able to ensure, so far as is possible, that only those who have been found guilty beyond reasonable doubt will be punished, and that, in looking at the community interest as a whole, only those who should be prosecuted, are, based on the broader public interest.
This provides a good level of protection for both accused people and the community as a whole. But it is a system not without fault in the eyes of many.
One perceived weakness of the present criminal justice system is that the victim has very little involvement in the process and the outcome. Conversely, there is very limited scope for the offender to make recompense to the victim, emotionally or practically (as opposed to financially which can be ordered).
It is for this reason that state-based criminal justice is increasingly tempered in many western justice systems. The ability to present a victim impact statement to the court is one such way.
Another very positive development is restorative justice. This process sees offender and victim brought face to face. It allows for human empathy to play its part in ameliorating the hurt of the victim and in both promoting, and providing a vehicle for expression of, the offender's remorse. A successful process can be cathartic, even life changing, for the participants.
This approach is not suitable for all matters but it has been tried and tested, nationally and internationally, with extremely positive results.
I commend the government's commitment to supporting the work of the courts in administering justice by providing the framework, legislative and financial, for restorative justice.
ACT Chief Magistrate Lorraine Walker
