New Law Reform Report: The role of Restorative Justice in responding to sexual violence. A focus on First Nations women

Posted on 07/03/2025 by Associate Professor Becky Batagol

By Lavanya de Mel

This post is part of a series of the best blog posts written by undergraduate law students enrolled in 2024 in Non-Adversarial Justice at Monash Law.

The criminal justice system often leaves victim-survivors feeling that they themselves are on trial, paving the way for Restorative Justice (‘RJ’) to emerge as a compelling alternative. However, is RJ suitable for responding to sexual violence? More importantly, does it resonate with the experiences of First Nations women, who are significantly overrepresented in sexual violence statistics?

The Australian Law Reform Commission (ALRC) yesterday released its report, Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence, recommending use of RJ in some sexual violence matters. In particular, the ALRC recommends funding for First Nations communities to design, build, and deliver accredited restorative justice programs for First Nations people (recommendation 63).

This blog post explores the extent to which RJ can effectively respond to sexual violence, and how it can be implemented to respect First Nations women’s experiences. We hope the ALRC’s proposals lead to prioritising First Nations voices in discussions around RJ as a response to sexual violence.

– “June Oscar signing” by AusHumanRights, used under CC BY 2.0

Due to the limited availability of direct testimonies, this post primarily draws on general perspectives of First Nations women gathered from reports by First Nations organisations and the Wiyi Yani U Thangani (‘Women’s Voices’) project.

The need for an alternative justice response

First Nations women experience sexual violence at a rate approximately three times higher than non-Indigenous women. This alarming statistic both stems from and perpetuates the ongoing negative impacts of colonisation, which have resulted in increased socioeconomic disadvantage and intergenerational trauma.

The criminal justice system often compounds this issue, by failing to provide an adequate response to First Nations women. A staggering 90% of violence goes unreported due to a fundamental fear of the police, compounded by police inaction and discriminatory decision-making. First Nations women describe their interactions with the justice system as having exacerbated the impacts of violence and worsened their trauma. Research shows that typical ‘Western’ responses to sexual violence, including the current criminal justice response, are often ineffective for First Nations communities.

The question then becomes whether alternative forms of justice, such as RJ, can provide a better response to sexual violence.

What is RJ and how can it respond to sexual violence?

RJ is multifaceted concept, sometimes perceived as confusing and incoherent. The Australian Law Reform Commission defines RJ is a ‘victim-centred, party-led process’ focused on identifying and addressing the harm caused by the offence and exploring options for repairing that harm’. Unlike the criminal justice system, which prioritises punishing the offender, RJ is designed to address the victim-survivor’s needs and experiences. It typically involves a voluntary and confidential dialogue between the victim-survivor and personal responsible.

The use of RJ in cases of sexual violence has sparked debate. Proponents argue that RJ can meet the complex needs of victim-survivors in ways the criminal justice system often cannot. For instance, victim-survivors often need to tell their story in their own words, have their story believed, and ask the person responsible any unresolved questions, and see them take accountability. RJ can provide a platform for these needs to be met.

However, critics are concerned that RJ risks re-privatising and decriminalising sexual violence. It may be seen as a ‘soft’ approach that diminishes the seriousness of sexual violence. Given that persons responsible often abuse the trust of victim-survivors, there are concerns that they might exploit their position of relative power in the RJ process and further harm victim-survivors. Additionally, RJ processes might not be culturally appropriate for some participants and might face challenges with linguistically diverse individuals.

Conclusively determining the effectiveness of RJ as a response to sexual violence is difficult due to the limited number of peer-reviewed studies. However, the risks of RJ are real and should be managed through a well-designed principle-based approach.

The Victorian Law Reform Commission has recommended the following principles to address some of these challenges:

Voluntary participation: Participants join voluntarily and can leave at any point.
Accountability: The person responsible must be truthful and admit to their actions.
Prioritising victim-survivors: RJ processes should prioritise the victim survivor’s needs and interests.
Safety and respect: RJ processes should adapt to different needs, with power imbalances addressed and skilled experts in sexual violence involved.
Confidentiality: What happens during RJ remains strictly confidential.
Transparency: Anonymised data is used to continually improve RJ processes.
Integrated justice response: RJ processes should work alongside the criminal justice system and therapeutic services.
Clear governance: Legislation should empower and oversee RJ.

Adopting a RJ model based on these principles shows promising potential for dealing effectively with sexual violence. The question then, is how might it be successfully implemented for First Nations women?

RJ and First Nations women: a potential solution

Research in the context of family violence indicates that First Nations women tend to favour RJ more than non-First Nations women. This preference is linked to their perception of the criminal justice system as oppressive and contributing to the violence against them. First Nations women interviewed by Heather Nancarrow expressed optimism that RJ processes could empower them. They believed that involving their families and broader community in RJ would lead to successful outcomes. A practical model for this might involve Elders and respected members of First Nations communities on an expert panel that conveners in the RJ conference could consult with.

Implementing RJ in a way that allows victim-survivors to share their story in a culturally appropriate and safe setting, would likely facilitate more effective healing and validate their experiences. First Nations victim-survivors have long understood that they ‘have the answers to confront what is wrong and to create what is right’.

By offering opportunities for self-determination that respect cultural values, RJ might help First Nations women feel empowered, and lead to more meaningful resolutions to sexual violence.

RJ and First Nations women: challenges and concerns

Despite these potential benefits, the application of RJ must carefully navigate concerns raised by First Nations women. There are significant fears that RJ processes could inadvertently perpetuate harm rather than heal it. Some women fear that RJ, if not carefully managed, might become a vehicle for reinforcing power imbalances within their communities or become another ‘white justice model’ that doesn’t fully respect or address their needs.

There are also concerns about how RJ might be received within their communities. Concerns include the potential for male leaders or community members to misuse the RJ process to their advantage, or for cultural arguments to be employed in ways that undermine victim-survivors’ needs.

For RJ processes to be an effective response to sexual violence, it is crucial to design them with these risks in mind and establish strong safeguards.

What needs to be done?

To effectively implement RJ for First Nations women, a collaborative design process involving meaningful engagement with their lived experiences is vital. Many First Nations organisations, such as Djirra, stress that any RJ model must be co-designed with First Nations women to ensure it is sufficiently sensitive to their needs and does not become another mechanism of oppression. It is necessary to hear from First Nations women directly to identify the wellbeing, safety, procedural and privacy aspects they might need for an RJ model to work.

Ultimately, the potential benefits of RJ as a response to sexual violence appear to outweigh the challenges, provided a principle-based approach is implemented to address the risks. RJ offers a promising alternative to the criminal justice system for addressing sexual violence against First Nations women. Its success, however, depends on the active participation of families and communities as well as the establishment of a culturally safe environment. Through a collaborative design process, RJ has the potential to be a powerful response to sexual violence that aligns with the experiences of First Nations women.

ChatGPT (version 4.0) was used to check grammatical errors and suggest improvements in writing style in this blog post.

About Lavanya de Mel

Lavanya is a final-year law student at Monash University, minoring in Economics and Business Strategy. She is passionate about improving access to justice for culturally diverse and socioeconomically disadvantaged individuals. Later this year, she will begin her legal career as a graduate lawyer at a commercial law firm, where she hopes to explore the role of alternative dispute resolution in a commercial context.

Nearly Neutral: A Mediator’s Best Bet

Posted on 08/02/2017 by Associate Professor Becky Batagol

By Amanda Selvarajah

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

‘The Gate’ by Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.