04.06.2025
Address to the National Press Club of Australia by ALRC President the Hon Justice Mordecai Bromberg, 4 June 2025
CHECK AGAINST DELIVERY
Can I commence by acknowledging the Ngunnawal and Ngambri peoples as the traditional custodians of the land on which we meet today. I pay my deep respects to their Elders, past and present. I also extend my thanks to the National Press Club for giving Micaela and I the opportunity to shine a spotlight on a social problem which is clearly out of control.
Not only out of control because sexual violence is experienced in Australia in endemic proportions, but out of control in the sense that no strategy has yet effectively addressed the problem. There are many levers government can pull to help address sexual violence, such as improved education, improved social services, and improving the way the justice system deals with sexual violence. Commendably, Government has begun to address that third lever. Improving the Justice System’s response to sexual violence was the focus of a recently completed 12-month Australian Law Reform Commission inquiry.
One of the principal findings of our Inquiry, and the fundamental point that I want to make today, is that the problem of sexual violence will not be addressed unless the justice system is given a better opportunity to deal with it, in circumstances where currently, it is largely not dealing with it. Why – because, typically, sexual violence occurs in Australia without leaving a trace on the justice system. Most perpetrators are not held to account, and the vast majority of people who have experienced sexual violence are not given the opportunity of a just outcome.
Nine out of ten women who disclosed to a recent ABS survey that they had been subjected to sexual violence did not report to police. But even when victims do report, their engagement with the justice system is typically short-lived. In New South Wales, Victoria, and right here in the ACT (and likely across all States and Territories), in the order of 75-85% of reports to police do not proceed to a charge.
That all suggests that only about 2% of women who say they have been subjected to sexual violence are able to overcome the barriers to access to justice. It also suggests that, at best, only about 2% of those alleged to have perpetrated sexual offending are held accountable before the law.
That is why the Australian Law Reform Commission says that most people who experience sexual violence in Australia shoulder that harm without an opportunity for a just outcome; and why we say that most people who perpetrate sexual violence face no consequences for their wrongdoing. This means that in our society, sexual violence is typically invisible – it is not recorded, recognized, or renounced. Community safety is not enhanced.
The justice system – and by that, I mean police, prosecutors, the legal profession and the Courts – will not fix the staggering prevalence of sexual violence on its own. However, the justice system has a critical role to play and the problem of sexual violence cannot be addressed unless the significant failings of the justice system are rectified. Many of the barriers to engagement with the justice system for people who have experienced sexual violence, are barriers for which the justice system bears some responsibility. Those barriers need to be addressed and are the main subject of the ALRC’s report.
We need to better understand that people who have experienced sexual violence need to be assisted to access the justice system and the just outcomes it is capable of providing. We also need to better appreciate that for our community to be safer, society needs the perpetrators of sexual violence to be brought to justice – for their conduct to be exposed, renounced, and addressed, and for a message to be sent to all – that sexual violence will no longer occur in Australia with impunity. Bringing people who have perpetrated sexual violence to account under the law is a fundamental requirement of a society governed by the rule of law.
The Australian Law Reform Commission is government’s trusted, expert and independent research and advisory body on law reform, providing government with frank, fearless, and expert advice for the last 50 years. In our national inquiry into the adequacy of the justice system’s response to sexual violence, the ALRC received hundreds of submissions, and was greatly assisted by the insight of a lived experience Expert Advisory Group. We also extensively consulted with police, prosecutors, defence lawyers, and judges. Front-line service providers were also consulted as well as academic experts. We also heard from many other people with lived experience of sexual violence and the justice system. Those valuable contributions were then supplemented by research and the astute consideration of our talented team of law reformers, led by subject-matter experts the Honourable Marcia Neave and Judge Liesl Kudelka.
Our 12-month inquiry produced a report titled “Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence”, which makes 64 recommendations for either reform or further inquiry.
Of all the conclusions made about the justice system’s response to sexual violence, the ALRC considers under-engagement with the justice system to be the most significant problem. Most of the recommendations made in the Report are directed at addressing the barriers to access and engagement with the justice system that people who have experienced sexual violence face.
The ALRC, does not suggest that the problem of low trust and underuse of the justice system by those who have experienced sexual violence is the fault of those harmed.
Nor, by focusing on that problem, have we ignored the problem that many victims of sexual violence who do engage with the justice system are subjected to more harm than good. To the contrary, the ill-treatment and re-traumatization often experienced by complainants of sexual violence who do engage with the justice system, is itself one of the most significant barriers to engagement. The reason that many people who have experienced sexual violence do not engage with the justice system is their fear of ill treatment by police and prosecutors and during a trial. To address this, the ALRC has made many recommendations, including to:
- improve education and training about trauma for police, prosecutors, lawyers and judges;
- strengthen police and prosecution guidelines to better prevent traumatisation and the high rates of disengagement;
- ensure that prohibitions on inappropriate questioning of complainants during cross-examination are properly applied and enforced;
- challenge and address myths and misconceptions about sexual violence; and
- provide more assistance to complainants so that they can effectively engage with the justice system by giving them access to their own legal advice and to legal representation to protect them from the unwarranted disclosure of their private and confidential information.
If those failings of the justice system can be avoided or diminished, then one of the most significant causes for the under-engagement problem – the perception that if you engage with the justice system you will be re-traumatised – will itself be diminished.
The ALRC’s road map to improving the justice system otherwise addresses the under-engagement problem in three main ways.
First, we tackle the current absence of a safe, informed and supportive place to report sexual violence as a pathway into the justice system. Currently, police reporting is the principal place that people who have experienced sexual violence seek access into the justice system.
We know that people who experience sexual violence can feel scared, ashamed, humiliated or embarrassed. Feeling angry and betrayed, and feeling powerless and unworthy, can stop people who experience sexual violence from talking about what happened to them. We know that the formal disclosure of sexual violence can be a difficult experience. To overcome this significant barrier, the ALRC found that people who have experienced sexual violence need a safe, informed and supported place to disclose.
Research tells us that properly-resourced front-line sexual assault service providers can provide a best practice, trusted and safe place to formally report sexual violence. These services are also well placed to connect people who have experienced sexual violence to the legal advice that they need. Once connected, people who have experienced sexual violence can then make well-informed choices about their rights and entitlements, and to decide whether and how to engage with the justice system. The ALRC proposes, firstly, that this kind of legal assistance and advice be available to every person who has experienced sexual violence irrespective of where they live. And secondly, that the support services of a Justice System Navigator be provided – that is a support person who would walk alongside and guide complainants through the criminal justice system, including by supporting them to report
to police.
Second, we tackle the high attrition rate – the up to 85% disengagement rate for those people who have reported to police. The 2021 inquiry held here in the Australian Capital Territory found that the predominant reason for the low charge rates in the ACT is the failure of police to properly and appropriately investigate sexual offences. The findings of the ACT Review reflect what complainants of sexual violence have been saying for decades – that they feel disempowered, disrespected, and re-traumatised by police responses to their reports and consequently withdraw.
The ALRC considers that greater scrutiny and accountability of police behaviour and decision-making is required. To better understand the systemic reasons sexual violence matters typically drop out of the criminal justice system, we have recommended that each state and territory establish a task force to review all reports of sexual violence made to police within the last 12-18 months. We also recommend establishing an independent review and complaints mechanism, to both facilitate the on-going review of police decision-making, and enable an opportunity for complainants to challenge decisions made by police not to progress to charge.
Thirdly, the ALRC considers that people who have experienced sexual violence will more likely engage with the justice system if we expand their access to civil and to restorative justice pathways and remedies. We recognise that people who have experienced sexual violence have diverse justice needs well beyond a need to see a perpetrator convicted and imprisoned through the criminal justice system.
In the context of 1.7 million Australians experiencing sexual harassment over a recent 12-month period, the ALRC makes recommendations to make civil justice pathways more accessible by:
- extending the prohibition on sexual harassment (which in practical terms is currently mainly confined to workplaces) to all areas of public activity;
- reducing financial barriers and giving expanded access to cheaper and quicker tribunal processes;
- shifting the burden of, and responsibility for, addressing sexual harassment from the individual
harmed to organisations and regulatory bodies; and - expanding the range of orders that can be made when a court or tribunal finds that someone has been sexually harassed.
These proposals build upon the very good work undertaken by the Australian Human Rights Commission’s “Respect At Work” Report.
We also recommend making the restorative justice pathway more accessible — by legislating for restorative justice in sexual violence matters so this pathway is more widely available.
There are many more recommendations I don’t have time to outline, such as the need for better data collection and better evaluation of previous law reform exercises. But it is important to emphasise that all of the ALRC’s recommendations can be implemented without compromising the fundamental rights of an accused person to a fair trial.
Finally, may I conclude by saying that The National Plan to End Violence against Women and Children puts the annual economic cost of gender-based violence, including sexual violence, against women and children at $26 billion. It states that ‘more needs to be done to ensure justice systems are safe, accessible, and easy for victim-survivors to navigate’. Doing more will require more commitment and more resources. However, the investment necessary is well justified. It far outstrips the financial and human cost of sexual violence remaining widespread, under-reported, and, in the words of the National Plan, ‘in the shadows’.
The work of Micaela and the Domestic, Family, and Sexual Violence Commission and the ALRC’s proposed reforms will help to take Australia out of those shadows. We shine a light on both the problem and the solution. My appeal to you – the media here gathered – is that you now amplify that light into the blow torch required to help to finally bring the problem of sexual violence under control.
