Handbook on Restorative justice programmes

4.4 Legislative provisions
Clearly worded legislation and policy statements can mandate, give pref-
erence to, or make certain funding contingent on the use of restorative
practices. For example, a prominent feature of the federal Canadian Youth
Criminal Justice Act is that it directs that all means should be explored in
an attempt to reduce the number of youth being sent to custody. 
chapter 4
From principles to practice: implementing restorative justice programmes
43 
Aertsen et al., 2004, p. 46 ; see also Fellegi, 2003, p. 74.
44 
Groenhuijsen, 2000.

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In some instances, legislative amendments may be required to establish a
discretionary authority for justice officials to divert cases away from the
normal justice process or to refer them to a participatory, restorative jus-
tice process. Many innovative and promising programmes fail to meet
their objectives because of a lack of sufficient case referrals by criminal
justice officials. It is clear that the proper use of discretionary decision-
making by law enforcement and justice officials at all levels is crucial to
the success of most programmes. The proper use of discretionary author-
ity has to be facilitated and guided, often by legislation. In many criminal
justice systems, law enforcement and criminal justice officials already
have sufficient discretionary powers within the existing legal framework to
refer cases to an alternative process or to establish such a process. In other
instances, it may be necessary to establish that authority and to provide an
accountability framework. In all cases, it is important that the decision-
making process concerning referrals to alternative programmes be as
transparent as possible and monitored. An accountability framework,
sometimes grounded in legislation or in official procedures and policies, is
usually required in order to ensure that discretionary powers are not
abused and do not become either a source of unacceptable discrimination
or a temptation for corruption.
The legislative framework providing for the use of restorative justice
may enable that use, require that it be considered, or make it manda-
tory. Where it is enabling restorative justice programmes (Australia,
Belgium, Chile, Colombia, Finland, France, Ghana, The Netherlands,
the Philippines, Russian Federation, Uganda), the law gives criminal
justice personnel (most often the police and prosecutors) the discretion
to divert certain offenders, under certain clearly defined conditions,
from the conventional justice system to a restorative programme.
When the law requires that a restorative justice measure be considered
(Austria, Czech Republic, Denmark, Germany, Norway, Portugal,
Slovenia), criminal justice personnel are required to consider the
potential for diverting an offender to a restorative justice programme.
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There is one notable example of a mandatory use imposed by the law,
in New Zealand, where the police or prosecutor are required to refer
young offenders to mediation or to another diversion-type programme.
The Justice (Northern Ireland) Act, 2002, provides that, save for cer-
tain specified exclusions, children are to be diverted to Family Group
Conferences. The plans agreed upon at the FGC are to be approved by
the court.
It has been suggested that there are a number of questions that policy
makers should consider prior to developing legislation on restorative jus-
tice.
46
These include asking whether legislation is required in order to: