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 

4. 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)
5. 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

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

The Australian Law Reform Commission (ALRC) has been asked to inquire into justice responses to sexual violence in Australia.

This Inquiry forms part of the Government’s commitment to strengthen and harmonise sexual assault and consent laws, and to improve outcomes and experiences for victim-survivors in the justice system. This Inquiry will be informed by, and build on, the comprehensive inquiries and reviews previously undertaken in several Australian jurisdictions.

In August 2023, the Government hosted a National Roundtable on Justice Responses to Sexual Violence which brought together victim-survivors, representatives from the service and advocacy sectors, other experts, and Commonwealth, state and territory ministers. These discussions informed the Terms of Reference for this Inquiry.

The Terms of Reference for this Inquiry ask the ALRC to have regard to:

• laws and frameworks about evidence, court procedures/processes and jury directions;
• laws about consent;
• policies, practices, decision-making and oversight and accountability mechanisms for police and prosecutors;
• training and professional development for judges, police, and legal practitioners to enable trauma-informed and culturally safe justice responses;
• support and services available to people who have experienced sexual violence, from the period prior to reporting to the period after the conclusion of formal justice system processes; and
• alternatives to, or transformative approaches to, criminal prosecutions, including restorative justice, civil claims, compensations schemes, and specialist court approaches.

The Government has convened a lived-experience Expert Advisory Group comprising victim-survivors and their advocates. This Group will support the ALRC’s Inquiry, helping to centre the experiences of victim-survivors. The Group will also advise the Government on implementation of ALRC recommendations.

The ALRC recognises the inherent sensitivities involved in undertaking an inquiry relating to sexual violence. In conducting this reference, the ALRC will employ a trauma-informed and holistic approach to support all stakeholders, particularly victim-survivors of sexual violence, and to minimise re-traumatisation.

The ALRC has been asked to provide its final report to the Attorney-General by 22 January 2025.

Contact us:

For enquiries, please email [email protected]

Support services:

If you, or someone you know, need help, the following services are available:

• 1800RESPECT call 1800 737 732, text 0458 737 732, https://www.1800respect.org.au/
• Full Stop Australia 1800 385 578 http://www.fullstop.org.au/
• Lifeline 13 11 14 https://www.lifeline.org.au/
• 13YARN 13 92 76  https://www.13yarn.org.au/about-us
• Kids Helpline 1800 55 1800 https://www.kidshelpline.com.au
• Compass (support service for elder abuse) 1800 353 374 https://www.compass.info/
• Rainbow Sexual, Domestic and Family Violence Helpline 1800 497 212 https://fullstop.org.au/get-help/our-services/rainbowviolenceandabusesupport

If you, or someone you know, need legal support, the following services are available:

• Women’s Legal Services: https://www.wlsa.org.au/members/
• Community Legal Centres: www.clcs.org.au
• Legal Aid: www.nationallegalaid.org/contact
• Law Societies and Institutes: contact your State or Territory law society/institute to receive support finding a lawyer.

If you are feeling unsafe or frightened, or if threats have been made against you, you should contact your local police for assistance and if you are in immediate danger, dial Triple Zero (000).

To report a crime or to contact police in a non-urgent situation, contact your local police on 131 444. Some states and territories offer online and alternative methods of reporting. If you want to report a crime anonymously, call Crime Stoppers on 1800 333 000 or visit www.CrimeStoppers.com.au.

The Translating and Interpreting Service is available for callers who need translating or interpreting support. To access the service call 13 14 50 and provide them with the name and phone number of the support service you would like to speak with.

For more information on local support services available, please visit:

• 1800Respect Service Directory https://www.1800respect.org.au/services
• National Association of Services Against Sexual Assault Support Directory https://www.nasasv.org.au/support-directory

The views and opinions expressed in the submissions belong to their authors and do not reflect those of the Australian Law Reform Commission. Readers are advised that some submissions contain content that they may find offensive and distressing.

Extensive consultations have been undertaken previously on the issues under examination in the inquiry into Religious Educational Institutions and Anti-Discrimination Laws. The ALRC is considering submissions and reported findings from previous inquiries, in addition to key reports, published over almost 40 years, from 1984-2022, at both Federal and State or Territory levels. These reports have been published by:

• State and Territory governments
• Attorney-General’s Departments (Cth and state/territory)
• Parliamentary committees (Cth)
• Law reform commissions (Cth and state/territory)
• Equal opportunity, human rights and sex discrimination commissions (Cth and state/territory)

Insights from reported findings and recommendations made from past inquiries, alongside consultation findings from this current inquiry, will inform proposals and recommendations made by the ALRC.

List of past relevant inquiries and key reports

2022

Queensland Human Rights Commission, Building Belonging: Review of Queensland’s Anti-Discrimination Act 1991 (2022) 

Law Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA) (2022) 

ACT Government, Listening Report (2022) 

Parliamentary Joint Committee on Human Rights, Inquiry Report on the Religious Discrimination Bill 2021 and Related Bills (2022) 

Senate Legal and Constitutional Legislation Affairs Committee, Religious Discrimination Bill 2021 [Provisions]; Religious Discrimination (Consequential Amendments) Bill 2021 [Provisions] and Human Rights Legislation Amendment Bill 2021 [Provisions] (2022) 

2021

Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (2021) 

ACT Justice and Community Safety Directorate, Inclusive, Progressive, Equal: Discrimination Law Reform – Discussion Paper 1, Extending the Protections of Discrimination Law (2021) 

2020

Religious Discrimination Bill 2019 Second Exposure Draft, 290 published submissions (no report)

2019

House of Representatives Joint Standing Committee on Foreign Affairs, Defence and Trade, Freedom of Religion and Belief, the Australian Experience: Inquiry into the Status of the Human Right to Freedom of Religion Belief (2019) 

2018

Expert Panel (Chaired by Philip Ruddock), Religious Freedom Review: Report of the Expert Panel (2018) 

Senate Legal and Constitutional Affairs References Committee, Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff (2018) 

2017

Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Legal Foundations of Religious Freedom in Australia (2017)

Attorney-General’s Department (NT), Discussion Paper: Modernisation of the Anti-Discrimination Act (2017) 

2016

South Australian Law Reform Institute, ‘Lawful Discrimination’: Exceptions under the Equal Opportunity Act 1984 (SA) to Unlawful Discrimination on the Grounds of Gender Identity, Sexual Orientation, and Intersex Status (2016) 

Australian Law Reform Commission, Traditional Rights and Freedoms (ALRC Report 129, 2016) 

2015

Australian Human Rights Commission, Religious Freedom Roundtable: Issues Paper (2015) 

2011

Australian Human Rights Commission (Professor Gary Bouma, Professor Desmond Cahill, Dr Hass Dellal, and Athalia Zwartz), Freedom of religion and belief in 21st century Australia: A research report prepared for the Australian Human Rights Commission (2011) 

Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011) 

2009

SARC, Parliament of Victoria, Exceptions and Exemptions to the Equal Opportunity Act 1995: Final Report (2009) 

2000

Joint Standing Committee on Foreign Affairs, Defence and Trade, Conviction with compassion: a report on freedom of religion and belief (2000) 

1999

NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW) (Report 92, 1999) 

1998

Human Rights and Equal Opportunity Commission, Article 18: Freedom of religion and belief (1998) 

1994

Australian Law Reform Commission, Equality before the Law: Justice for Women (ALRC Report 69, Part 1, 1994) 

1992

Sex Discrimination Commissioner, Report on Review of Permanent Exemptions under the Sex Discrimination Act 1984 (1992)

House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of the Commonwealth of Australia, Halfway to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (Lavarch Report, 1992)

1984

NSW Anti-Discrimination Board, Discrimination and religious conviction: a report of the Anti-Discrimination Board in accordance with Section 119 (a) of the Anti-Discrimination Act 1977 (1984)

The ALRC also ran a survey to allow individual members of the public to contribute their personal views and experiences to its Inquiry into anti-discrimination laws as they apply to religious educational institutions. It closed on 24 February 2023.

The survey is a consultation tool and is not intended to reflect a representative sample of the population. The ALRC will use the survey answers for qualitative purposes rather than to produce any statistical data. It will form only one source of information about the issues the subject of this Inquiry — the ALRC will also examine academic research, submissions to previous inquiries, ALRC consultation meetings, and submissions to the Consultation Paper.

​The ALRC forms an advisory committee, or panel of experts, for each Inquiry:

• Professor Farrah Ahmed, Melbourne Law School and Laurance S Rockefeller Visiting Faculty Fellow 22-23, Princeton University
• Professor Rufus Black, Vice-Chancellor, University of Tasmania
• The Hon Justice Susan Brown, Supreme Court of Queensland
• Dr Christopher Duncan, Chief Executive Officer, Association of Heads of Independent Schools of Australia
• Professor Sarah Joseph, Professor of Human Rights Law, Griffith University
• Mr Pat Mullins, Partner, Mullins Lawyers and Chancellor, Roman Catholic Archdiocese of Brisbane
• The Hon Justice Elizabeth Raper, Federal Court of Australia
• Professor Lucy Vickers, Head of School of Law, Oxford Brookes University

In its Terms of Reference, the Attorney-General has directed the ALRC to have regard to extensive consultations previously undertaken on the relevant issues, including by considering reports of and submissions to previous state and territory inquiries and reviews.

I, the Hon Mark Dreyfus KC MP, Attorney-General of Australia, having regard to the Government’s commitment to amend the Sex Discrimination Act 1984 (Cth) and other Federal anti-discrimination laws (as necessary), including the Fair Work Act 2009 (Cth), to ensure that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

• must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
• must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.

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), a consideration of what reforms to Federal anti-discrimination laws (including section 38 of the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth)) should be made in order to ensure, to the extent practicable, Federal anti-discrimination laws reflect the Government’s commitments (as set out above) in a manner that is consistent with the rights and freedoms
recognised in the international agreements to which Australia is a party including the International Covenant on Civil and Political Rights.

Scope of the reference

In undertaking this reference, the ALRC should have regard to existing reports and inquiries, including state and territory inquiries or reviews, that it considers relevant. The ALRC should also have regard to the Government’s commitment to introduce legislation to (among other things) prohibit discrimination on the basis of religious belief or activity, subject to a number of appropriate exemptions. In doing so, the ALRC should consider whether some or all of the reforms recommended as a result of this inquiry could be included in that legislation.

Consultation

The ALRC should have regard to the extensive consultations previously undertaken on these issues. In particular, the ALRC should review submissions to previous inquiries and tailor consultations accordingly. The ALRC should also undertake targeted consultation with religious organisations, the education sector, unions, legal experts and other civil society representatives.

In conducting targeted consultation, to the extent possible, the ALRC should be sensitive to the availability of individuals and organisations over the school holiday period and – in particular – on or around periods of religious observance.

Timeframe for reporting

The ALRC should provide its report to the Attorney-General by 31 December 2023.

Federal anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth), prohibit discrimination in a wide range of settings against people on grounds including sex, sexual orientation, gender identity, marital or relationship status, or pregnancy. However, these laws provide exceptions for religious educational institutions, including schools.

These exceptions mean that discrimination on certain grounds by religious schools is not unlawful under Federal law where it is ‘in good faith’ and ‘in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’.  The exceptions recognise the impacts that anti-discrimination law, which protects fundamental rights to non-discrimination and equality, may have on the exercise of the fundamental right to freedom of thought, conscience, and religion.

The Australian Government has committed to reforming Federal anti-discrimination laws to ensure that a religious educational institution:

• must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
• must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.

The Government has asked the ALRC to consider what changes should be made to Federal anti-discrimination laws to ensure, to the extent practicable, that these laws reflect the Government’s commitments in a manner that is consistent with Australia’s international human rights obligations.

Under treaties that it has signed, Australia has obligations to respect and protect human rights including rights to non-discrimination and equality, freedom of thought, conscience and religion, life, privacy, freedom of expression, freedom of association, work, education, cultural rights, and children’s rights. In undertaking this reference, the ALRC will consider the frameworks that international human rights law provides for managing the intersections of these rights, and the experiences of other jurisdictions, to propose reforms consistent with Australia’s international obligations.

The Terms of Reference for this Inquiry replace those of a previous Inquiry into Religious Exemptions in Anti-Discrimination Legislation that had been on hold since March 2020 pending potential legislative developments.

The ALRC released a Consultation Paper on 27 January 2023, and submissions closed on 24 February 2023. In light of the large volume of submissions received, the ALRC requested an extension to its reporting deadline. This extension was confirmed on 20 April 2023, with amended Terms of Reference extending the date for reporting to 31 December 2023. 

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Prototype Legislation B

In September 2022, the ALRC released prototype legislation to illustrate the ALRC’s proposed legislative model for financial services regulation. In particular, Prototype Legislation B illustrates how Proposals B1–B9 and B15 discussed in Interim Report B could be implemented.

Prototype Legislation B is accompanied by an Explanatory Note and a Reverse Concordance Table.

Prototype Legislation B further develops the legislative model first introduced in Prototype Legislation A, focussing on aspects of the law related to financial product disclosure.

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Prototype Legislation A

In November 2021, the ALRC released prototype legislation to illustrate how some of the reforms discussed in Interim Report A could be implemented. The prototype legislation includes explanatory notes and a concordance table.

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