Scope of federal government inquiry into the judicial response to sexual violence revealed

The government has announced the parameters for an inquiry that could potentially overhaul judicial responses to sexual violence, with the report set to be released in a year’s time.

The Australian Law Reform Commission (ALRC) inquiry into how the justice system handles sexual violence, a Labor budget promise, will look to shore up the criminal justice system’s response to sexual assault and prevent further harm being caused to victim-survivors

Last year, a national roundtable was set up to inform the terms of reference for the long-promised inquiry which involved notable activists and victim-survivors including Angela Lynch, Grace Tame, Chanel Contos and Nina Funnell.

The government, in a statement, thanked those who attended the roundtable describing the contributions as “powerful and moving” and “critical to shaping” the inquiry’s terms of reference. 

Ms Tame, involved in the roundtable discussions, said the Australian criminal justice system “causes both re-traumatisation and fresh trauma” for victim-survivors. 

“Victim-survivors are expected to relive their experiences through jarring, repetitious, protracted interrogative processes that involve ceding power to several fractured players with different motives — police, legal counsel, prosecutors, court reporters, the wider media, and the public,” she said. 

“We are effectively treated as witnesses in our own case. Ironically, this escalating loss of control replicates the power imbalance that underpins abuse.”

Last year, data from the Australian Bureau of Statistics (ABS) Personal Safety Survey found that one in five women have experienced sexual violence — representing over 2 million women across the country.

But, according to the government, fewer than one in eight women reported their most recent assault to police — a statistic that Attorney-General Mark Dreyfus said would be examined by the inquiry. 

“Prosecution rates are low, conviction rates are even lower,” he said. 

“Many find the process traumatising and we want the Australian Law Reform Commission to look at a whole range of aspects of the justice system to make sure it is simpler and more accessible.” 

The who and what of the inquiry

The inquiry is set to look at laws and frameworks about evidence, court procedures, processes and jury directions — also, laws about consent, policies, training for judges, police and legal practitioners as well as support services for those who have experienced sexual violence. 

Retired Victorian Supreme Court justice Marcia Neave and South Australian Judge Liesl Kudelka have been installed as commissioners leading the inquiry — Ms Neave headed the inquiry into the Tasmanian government’s responses to child sexual abuse.

“Ms Neave and Judge Kudelka bring a wealth of expertise in law reform and justice responses to sexual violence,” Mr Dreyfus said.

He said the breadth of the inquiry would mean further consultation, talking “extensively” with victim-survivors. 

“They will be assisted by an expert panel of victim-survivors, people with lived experience of sexual violence, to make sure that this is a really effective inquiry that produces recommendations on which both national and state governments can act.” 

The terms of reference detailed who the inquiry would be targeting, particularly those who have been “disproportionately reflected in sexual violence statistics, and on those with identities intersecting across cohorts, including”:

a.    Women

b.    First Nations people

c.    People from culturally and linguistically diverse (CALD) backgrounds

d.    People with disability

e.    People who are Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual, Brother boy, Sister girl, or who have other genders and sexualities (LGBTQIA+)

f.    People who have been convicted of criminal offences, and been incarcerated

g.    People who are migrants or newly arrived refugees impacted by an insecure visa status

h.    People living with HIV

i.    People employed in sex work

j.    People in residential care settings

k.    Older people, especially those experiencing cognitive decline

l.    Young people

The ALRC inquiry said it would also look to speak with relevant stakeholders:

a.    people who have experienced sexual violence

b.    people and organisations representing population cohorts that are over-represented in sexual violence statistics as listed above

c.    state and territory government and law enforcement agencies

d.    policy and research organisations

e.    community service providers (especially specialist sexual assault service providers and legal assistance service providers)

f.    the broader legal profession (including prosecutors and defence lawyers)

‘The status quo is shameful’

Ms Tame said of the current state of the judicial system and its treatment of victim-survivors: “The status quo is shameful.”

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