23.01.2024

Terms of Reference

I, the Hon Mark Dreyfus KC MP, Attorney-General of Australia, having regard to the Government’s commitment to strengthen and harmonise sexual assault and consent laws, refer to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 (Cth), an inquiry into justice responses to sexual violence. Through this referral, the ALRC should seek to promote and consider just outcomes for people who have experienced sexual violence,1 including minimising re-traumatisation.

Scope of the Reference

  1. In undertaking this reference, the ALRC should have regard to:
    1. Laws and frameworks about evidence, court procedures/processes and jury directions
    2. Laws about consent
    3. Policies, practices, decision-making and oversight and accountability mechanisms for police and prosecutors
    4. Training and professional development for judges, police, and legal practitioners to enable trauma-informed and culturally safe justice responses
    5. Support and services available to people who have experienced sexual violence, from prior to reporting, to after the conclusion of formal justice system processes. This should include consideration of:
      1. Current supports such as legal assistance, appropriately trained and accredited interpreters, witness assistance and intermediaries, and the accessibility of those supports
      2. Innovative supports including independent legal representation
      3. Information and resources provided to victims and survivors about supports available and justice processes
    6. Alternatives to, or transformative approaches to, criminal prosecutions, including restorative justice, civil claims, compensations schemes, and specialist court approaches.

  2. In the context of the significant under-reporting of sexual violence and the limited prosecution of reported cases, the ALRC should take a trauma-informed, holistic, whole-of-systems and transformative approach. The ALRC should also consider the particular impact(s) of laws and legal frameworks on population cohorts that are disproportionately reflected in sexual violence statistics, and on those with identities intersecting across cohorts, including:
    1. Women
    2. First Nations people
    3. People from culturally and linguistically diverse (CALD) backgrounds
    4. People with disability
    5. People who are Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual, Brotherboy, Sistergirl, or who have other genders and sexualities (LGBTQIA+)
    6. People who have been convicted of criminal offences, and been incarcerated
    7. People who are migrants or newly arrived refugees impacted by an insecure visa status
    8. People living with HIV
    9. People employed in sex work
    10. People in residential care settings
    11. Older people, especially those experiencing cognitive decline
    12. Young people.

  3. In undertaking this Inquiry, the ALRC should consider the matters raised for reform and detailed in the Summary Report of the ministerial-level national roundtable on justice responses to sexual violence. The ALRC should also identify and consider relevant reports, inquiries and action plans, including but not limited to the list below. Where appropriate, the ALRC should synthesise and build on relevant federal, state and territory reports, with a focus on identifying opportunities to explore new ground and not duplicate existing work.
    1. The Senate Legal and Constitutional Affairs References Committee report into Consent Laws, tabled in federal Parliament on 14 September 2023.
    2. Australian Institute of Criminology’s national review of child sexual abuse and sexual assault legislation in Australia (2023).
    3. Standing Council of Attorneys-General Work Plan to Strengthen Criminal Justice Responses to Sexual Assault 2022-2027.
    4. National Plan to End Violence against Women and Children 2022–2032 and associated Action Plans and consultation reports.
    5. Wiyi Yani U Thangani Report (2020) and Implementation Framework (2022).
    6. Mayi Kuawyu – National Study into Aboriginal and Torres Strait Islander Wellbeing.
    7. ACT Sexual Assault Prevention and Response Program Steering Committee Listen.  Take Action to Prevent, Believe and Heal Report (2021), and the ACT Government Response (2022).
    8. Queensland Women’s Safety and Justice Taskforce (2022) Hear Her Voice – Report Two (2022) and the Queensland Government response (2022).
    9. New South Wales Law Reform Commission Report: Consent in relation to sexual offences (2020).
    10. Victorian Law Reform Commission Report: Improving the Response of the Justice System to Sexual Offences Report (2021).
    11. AIC Research Report: Sexual harassment, aggression and violence victimisation among mobile dating app and website users in Australia (2022).
    12. Australian Human Rights Commission: Respect@Work: Sexual Harassment National Inquiry Report (2020).
    13. House Standing Committee on Social Policy and Legal Affairs report: Inquiry into family, domestic and sexual violence – Parliament of Australia (aph.gov.au).
    14. Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (2017).
    15. National Strategy to Prevent and Respond to Child Sexual Abuse 2021-2030.
    16. National Agreement on Closing the Gap 2020.
    17. The forthcoming Senate Legal and Constitutional Affairs Committee inquiry into missing and murdered First Nations women and children report.
    18. Attorney-General’s Department, Australasian Institute of Judicial Administration, and Central Queensland University: Specialist Approaches to Managing Sexual Assault Proceedings: an Integrative Review (2023).

Consultation 

  1. In undertaking this Inquiry, the ALRC should identify and consult with relevant stakeholders across Australia, including but not limited to:
    1. people who have experienced sexual violence
    2. people and organisations representing population cohorts that are overrepresented in sexual violence statistics as listed above
    3. state and territory government and law enforcement agencies
    4. policy and research organisations
    5. community service providers (especially specialist sexual assault service providers and legal assistance service providers)
    6. the broader legal profession (including prosecutors and defence lawyers)
  2. Consultation should include the lived-experience Expert Advisory Group, established by the Attorney-General’s Department, primarily comprising victims and survivors of sexual violence and their advocates.

Timeframe

  1. The ALRC should provide its final report to the Attorney-General by 22 January 2025.

 

  1. We acknowledge that a range of terms are used to refer to people who have experienced sexual violence, including ‘victims and survivors’, and that some individuals may not identify with this terminology.↩︎