Mandatory Compensation Orders for Crime Victims and the Rhetoric of Restorative Justice
| Author | Jenny Gawlik,Kate Warner |
| Date | 01 April 2003 |
| DOI | 10.1375/acri.36.1.60 |
| Published date | 01 April 2003 |
60 THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 36 NUMBER 1 2003 PP.60–76
Address for correspondence: Professor Kate Warner, Faculty of Law, University of Tasmania,
GPO Box 252–89, Hobart, TAS 7001, Australia. Email: kate.warner@utas.edu.au
Mandatory Compensation Orders
for Crime Victims and the Rhetoric
of Restorative Justice
Kate Warner and Jenny Gawlik
University of Tasmania, Australia
Increased recognition of the need for victims of crime to be integrated
into the criminal justice system and to receive adequate reparation has
led, in a number of jurisdictions,to legislative measures to encourage the
greater use of compensation orders. The Sentencing Act 1997 (Tas)
(which came into force on 1 August 1998) went further and made
compensation orders compulsory for property damage or loss resulting
from certain crimes. This article shows that this measure has failed
victims and argues that they have been used in the service of other ends.
Mandatory compensation orders are a token gesture repackaged as
restorative justice to gain public support for the administration of the
criminal justice system. Ways in which compensation orders could be
made more effective and the possibilities of accommodating restorative
compensation into a conventional criminal justice system are explored.
In recent decades attempts have been made to accommodate the interests of
victims in the criminal justice system. The impetus for this trend came first from
the victims’ movement and more recently from the restorative justice movement.
The victims’ movement has focused on welfare services for victims and procedural
rights for victims (Zdenkowski, 2000, p. 168) while proponents of restorative
justice seek more fundamental change. Arising out of a general dissatisfaction with
the criminal justice system, restorative justice seeks a new approach to crime. It has
been described as “a process whereby parties with a stake in a specific offence
collectively resolve how to deal with the aftermath of the offence and its implica-
tions for the future” (Marshall, 1999, p. 5). Bazemore and Walgrave argue that this
definition is too narrow and see restorative justice as “every action that is primarily
oriented towards doing justice by restoring the harm that has been done to the
victim” (Walgrave, 2000, pp. 259–260). However, there appears to be general
agreement that reparation — attending to victims’ needs (material, financial,
emotional and social) — is a primary objective of restorative justice. Equally impor-
tant objectives include reintegration, the prevention of re-offending by reintegrat-
ing offenders into the community, and accountability: enabling offenders to assume
crim36_1 4/1/03 10:05 AM Page 60
active responsibility for their actions (Marshall, 1999, p. 6). Some advocates of
restorative justice prefer to see restorative justice as a form of diversion from the
criminal justice system (Mashall, 1996) while others, such as Wright, (1991),
Barnett (1977), Braithwaite and Pettit (1990) and Bazemore and Walgrave (1999)
see it as a “fully-fledged alternative” to retributive and rehabilitative approaches to
crime (Walgrave, 2000, p. 262). In practice, restorative or reparative principles
have not overthrown the paradigm of punishment. Instead attempts have been
made to accommodate restorative or reparative concepts such as conferencing,
mediation and compensation within the conventional criminal justice system.
There are obvious synergies between the goals of the victims’ movement and
restorative justice. In fact, the terminology of restorative justice is sometimes used to
describe any victim-oriented measure, although restorative justice is potentially a
more far-reaching development. In a climate of popular punitiveness and law and
order politics, victim oriented measures and restorative principles have strong politi-
cal appeal. For those on the left, support and compensation for victims is a natural
corollary of welfarism, and the attraction for conservatives is that it represents a
softer face of the law and order lobby (Zedner, 1997, p. 598; Mason, 2000, p. 4). But
their introduction raises questions about the very purpose of the criminal justice
system and the compatibility of retributive and restorative goals (Zedner, 1997).
Moreover, reorientation of the criminal justice system towards victims in a political
climate of punitiveness has led to questions about the extent to which victims have
been prostituted rather than empowered. Ashworth, for example, has warned of the
twin dangers of “victims in the service of severity” and “victims in the service of
offenders” (Ashworth, 2000a, p. 186). Crawford (2000, p. 292) has added “victims
in the service of system efficiency” to these dangers. In the light of these question
marks over integrating a victim perspective in the criminal justice system, we
examine the attempt in Tasmania to make compensation for victims of certain
property offences a priority, a change which was made under the banner of a
restorative justice approach. Compensation for victims has long been a feature of
the Australian criminal justice system and while compensation orders have been
repackaged as a restorative justice measure, they are merely restorative in outcome
and need not be tied to a restorative process which brings the offender and victim
together to negotiate the outcome. Their success or failure does not have implica-
tions for pure restorative processes and restorative theory but relates to the issue of
reconciling restorative and retributive goals.
Mandatory Compensation Orders
under the Sentencing Act ( Tas)
In his second reading speech the Attorney General claimed that the Sentencing Act
1997 (Tas) promoted a focus on restorative justice and that the government was
concerned to do all it could to protect the interests of victims (Tasmanian
Parliamentary Debates, 1997). One of the restorative justice measures in the Act
was the introduction of mandatory compensation orders for some offences. The
Attorney noted that compensation orders in criminal proceedings are often given
low priority with claims for damages being adjourned indefinitely. The purpose of
the new compensation order provisions was to give them greater priority. The Act
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MANDATORY COMPENSATION ORDERS FOR CRIME VICTIMS
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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