In the Report, the Commissions make many recommendations directed towards improving the legal frameworks in the area of family violence. In particular, reforms are directed to developing a common interpretative framework, enhancing corresponding jurisdictions, improving the quality and use of evidence and the interpretation and application of sexual assault laws.
Common interpretative framework
A key plank of the Commissions’ recommendations is the adoption of a common interpretative framework in relation to family violence across state and territory family violence legislation, the Family Law Act and, in limited circumstances, the criminal law. This involves: establishing a shared understanding of what constitutes family violence across these legislative schemes; and of the nature, features and dynamics of family violence. In relation to state and territory family violence legislation, it also involves the adoption of core guiding principles based on a human rights framework, the adoption of core purposes, and striving for equality of treatment of family violence victims by establishing common grounds for obtaining protection orders and a core set of persons to be protected.
The common interpretative framework, discussed in Chapters 5 to 7, is based on the same core definition of family violence, describing the context in which behaviour takes place, as well as a shared common understanding of the types of conduct—both physical and non-physical—that may fall within the definition of family violence in the following legislation:
state and territory family violence legislation;
the Family Law Act; and
the criminal law—in the limited circumstances where ‘family violence’ is defined in the context of defences to homicide.
The Commissions recommend, in Chapters 5 and 6, that each legislative regime should provide that family violence is violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful. Such behaviour may include but is not limited to:
(a) physical violence;
(b) sexual assault and other sexually abusive behaviour;
(c) economic abuse;
(d) emotional or psychological abuse;
(f) kidnapping or deprivation of liberty;
(g) damage to property, irrespective of whether the victim owns the property;
(h) causing injury or death to an animal irrespective of whether the victim owns the animal; and
(i) behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.
Adopting consistent definitions of family violence across different legislative schemes allows the courts to send clear messages about what constitutes family violence. The Commissions also recommend, in Chapter 7, that this definition be complemented in family violence legislation by a provision that explains the nature, features and dynamics of family violence, including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children. In addition, family violence legislation should refer to the particular impact of family violence on: Indigenous persons; those from a culturally and linguistically diverse (CALD) background; those from the gay, lesbian, bisexual, transgender and intersex communities; older persons; and people with disabilities. The Commissions recommend the adoption of a similar provision in the Family Law Act.
The Commissions are not advocating that all types of conduct that constitute family violence should be criminalised, nor that family violence should be given the same treatment in the various legal frameworks considered in the Report. In each case, the severity and context of particular family violence may carry varying weight in different legal proceedings, depending on the reasons for advancing evidence of family violence and the purposes of the respective legal frameworks—which are analysed in Chapter 4. Nor do the Commissions consider that the adoption of a shared understanding of what constitutes family violence in any way compromises the objects and purposes of the legislative schemes that are the subject of this approach. It is imperative that common definitions of family violence reflect a consistent and shared understanding of the concepts that underlie the legislative schemes, reinforced by appropriate and regular training.
The Commissions consider that there is a stronger case for uniformity of the definition of family violence across an individualstate or territory’s family violence and criminal laws, in the limited circumstances where family violence is defined in the context of defences to homicide. Uniformity of the definition within an individual state or territory—as opposed to a core definition with a shared understanding of what constitutes family violence—has the advantage of clearly conveying a legislative intention for a consistent interpretation of family violence across criminal and civil jurisdictions. Moreover, this will also facilitate the proper recognition in the criminal law of the broad ambit of family violence, as discussed in Chapter 14, in the context of defences to homicide.
The Commissions consider that significant systemic benefits would flow from the adoption of a common interpretative framework, across different legislative schemes, promoting the foundational policy principles of seamlessness and effectiveness underlying the approach to reform advocated by this Inquiry. Embracing a common understanding of family violence is also likely to have a positive flow-on effect in the gathering of evidence of family violence for use in more than one set of proceedings. Another significant benefit of adopting a commonly shared understanding of family violence is that it will facilitate the registration and enforcement of family violence protection orders under the proposed national registration of protection orders scheme, considered in Chapter 30, and provide more useful and comparable data upon which policies to address family violence can be based.
A crucial set of recommendations in the Report, in the chapters identified below, is aimed at implementing in law the concept of ‘one court’, through an expansion of jurisdiction of federal, state and territory courts responding to family law, family violence and child protection issues. In particular, while the Commissions conclude that the prospect of a single new specialist court to deal with all legal matters relating to family violence is not practicable, an effective way to achieve the benefits of ‘one court’ is to develop corresponding jurisdictions, in which each of the jurisdictions of courts dealing with family violence correspond to an appropriate degree. Enhancing the ability of courts to deal with matters outside their core jurisdiction will allow victims of family violence to resolve their legal issues relating to family violence in the same court, as far as practicable, consistent with the constitutional division of powers.
State and territory courts
The Commissions recommend, in Chapter 16, that the Family Law Act should be amended to allow state and territory courts, when making or varying a protection order, to make a parenting order under pt VII of the Family Law Act until any further order—a reinstatement of the jurisdiction that was removed from state and territory courts in 2006.
State and territory magistrates courts are often the first point of contact with the legal system for separating families who have experienced family violence. As such, the Commissions consider that it is important that state and territory magistrates courts can deal with as many issues relating to the protection of victims of family violence as possible. Making an interim parenting order at this time may take the heat out of the situation by regulating how separating parents spend time and communicate with their children. For example, while a protection order may include conditions to protect a person from violence or harassment, a parenting order may prescribe handover arrangements to minimise contact between the parents. In appropriate cases, a judicial officer making a parenting order during protection order proceedings could also make orders to facilitate transfer to a federal family court, for example by making orders about family counselling or appointing an independent children’s lawyer.
One reason for the recommendation to repeal the power of state and territory courts to make parenting orders, was the view that magistrates courts had limited time and resources to perform this role. The Commissions acknowledge the force of the practical concerns reflected in submissions to this Inquiry. The recommendations made in the Report are put forward as part of a package. The goal of ensuring that legal systems that deal with issues of family violence are as accessible and seamless as possible requires that changes to the jurisdiction as well as the practices of state and territory courts to be implemented together.
In particular, the Commissions consider that developing and extending specialised practices in family violence in state and territory courts is an important way to foster the expertise and focus the resources of courts, judicial officers and legal practitioners. The importance of specialisation in the exercise of family law jurisdiction by state and territory magistrates courts is discussed in Chapter 16, while the benefits of specialised practice across the systems responding to family violence are considered in Chapter 32.
The Commissions have made a number of recommendations to improve the interaction of family violence and criminal laws. In Chapter 10, the Commissions recommend that in granting bail, judicial officers should be required to consider whether to impose protective bail conditions, issue or vary a family violence protection order, or do both.
In Chapter 11, the Commissions recommend that state and territory family violence legislation should include an express provision conferring on courts a power to make a protection order on their own initiative at any stage of a criminal proceeding. Any such order made prior to a plea or finding of guilt should be interim until there is a plea or finding of guilt. The Commissions have also recommended prosecutors be empowered to apply for protection orders where a person pleads guilty or is found guilty of an offence.
Further, a court before which a person pleads guilty or is found guilty of an offence involving family violence should be required to consider whether any existing protection order needs to be varied to provide greater protection for the person against whom the offence was committed.
The combined effect of these recommendations is to increase the likelihood that judicial officers and prosecutors in family violence related criminal proceedings will focus on victim safety and protection and lessen the trauma, stress and time involved in a victim having to apply for a protection order, or the variation of such an order, in separate civil proceedings.
Federal family courts
In Chapter 17, the Commissions consider how to make the federal family courts’ jurisdiction as similar as possible to that of state and territory magistrates courts with respect to the protection it can provide for personal safety. Although federal family courts already have powers directed towards the safety of victims of family violence who come within the jurisdiction of the Family Law Act, the Commissions have heard that solutions available for victims of family violence in federal family courts are largely ineffective. Consequently, the Commissions recommend reforms to make injunctions for personal protection more effective for victims of family violence who are before a federal family court. The Commissions recommend that the existing framework for protection orders in the Family Law Act be amended to provide that a breach of such orders is a criminal offence—so that they operate as closely as possible to the protection provisions available under state and territory legislation.
In making this recommendation, the Commissions do not suggest the development of a protection order practice in federal family courts to replicate exactly the jurisdiction of state and territory courts. The Commissions consider that state and territory courts should remain the primary jurisdiction for obtaining a protection order—particularly given the role of police in proceedings in those courts, the wider range of persons who may be protected by state and territory family violence legislation, and the considerable experience of state and territory magistrates and court staff with respect to family violence protection order proceedings.
However, the Commissions are of the view that victims of family violence—in particular, those for whom family law proceedings are on foot or anticipated—should be able to obtain effective orders for their protection in federal family courts, if they need them. This allows victims to resolve their legal issues to a greater extent in the one court process—in this instance, in federal family courts. The Commissions consider that fostering the seamlessness of the court process in this way has significant benefits for victims of family violence. This approach also minimises victims’ exposure to multiple proceedings in different jurisdictions, thereby avoiding the personal and financial impacts of repeated proceedings and consequent reiteration of the same facts before different courts.
The Commissions acknowledge the potential resource implications in developing corresponding jurisdictions, notably in the provision of training to judicial officers and police, which is the subject of a specific set of recommendations, drawn together in Chapter 31. Developing the ability of federal family courts to deal with matters of personal protection may also have an effect on legal aid funding. However, the Commissions consider these reforms will lead to long term savings, by reducing replication across different jurisdictions.
Parenting orders and child protection agencies
A clear jurisdictional gap in the power of federal family courts to respond to family violence arises where a case involves allegations of child abuse and the court wishes to make an order giving parental responsibility to the child protection agency because the judge considers that there is no other viable option for that child. This also attracted attention when in 2009 the Family Law Council recommended that:
The Attorney General as a member of SCAG address the referral of powers to federal family courts so that in determining a parenting application federal family courts have concurrent jurisdiction with that of State Courts to deal with all matters in relation to children including where relevant family violence, child protection and parenting orders.
While the Commissions are disinclined to recommend a general reference of child welfare powers to federal family courts, in Chapter 19 it is recommended that there be a limited referral of powers to enable the Australian Government to make laws allowing family courts to confer parental rights and duties on a child protection agency in cases where there is no other viable and protective carer—but only in this limited class of case.
State and territory children’s courts
Each state and territory court of summary jurisdiction is vested with jurisdiction under pt VII of the Family Law Act. Magistrates are able to exercise federal family law jurisdiction under s 69J of the Family Law Act, but children’s court magistrates are not always able to do so. Seen and Heard: Priority for Children in the Legal Process (ALRC Report 84) criticised legal processes which required a child’s persistent and multiple engagement with the legal system as being contrary to the child’s best interests. It is also at odds with the goal of seamlessness that the Commissions have identified as a principal aim of this Inquiry.
The Commissions consider that, wherever possible, matters involving children should be dealt with in one court—or as seamlessly as the legal and support frameworks can achieve in any given case. This was also the outcome recommended by the Family Law Council in 2002 in its report on family law and child protection, as part of its ‘one court’ principle—that is, that state and territory courts should have a broad power to make residence and contact orders under the Family Law Act in child protection proceedings so that one court can deal with all substantive matters and ensure the child’s best interests and welfare are addressed.
The Commissions therefore recommend, in Chapter 19, that the Family Law Act should be amended to provide that when a matter is before a children’s court, such courts should have the same powers to make decisions under the Family Law Act as magistrates courts—including the expanded powers recommended in Chapter 16.
Expanding the jurisdiction of children’s courts in this way would have the advantage that where a case commences in a children’s court but raises parenting issues, a court apprised of the child protection concerns and having evidence from a child protection authority would be able to decide if it were more appropriate for a decision to be made under child protection legislation, or under the Family Law Act. It would have jurisdiction to make both types of orders.
A number of state and territory family violence laws already confer jurisdiction on children’s courts to make family violence protection orders, although the powers conferred on some state and territory children’s courts are more limited than others.
The Commissions recommend, in Chapter 20, that all Australian children’s courts should have clear jurisdiction under family violence legislation to hear and determine applications for family violence protection orders where the person affected by the family violence, to be protected, or against whom the order is sought, is under 18 years. However, the jurisdiction should only be enlivened where there are proceedings in the court involving the child or young person, or a member of the child’s or young person’s family.
Expanding the jurisdiction of children’s courts to make family violence protection orders is consistent with the Commissions’ overarching policy objective that, to the maximum extent possible, families who enter the legal system should be able to apply for, and be granted the orders they need to address their safety concerns by the court with which they first engage. Such orders would be a significant adjunct to the orders presently available under child protection legislation to ensure the safety of the child and the child’s non-offending parent.
Jurisdiction to make family violence protection orders also fits squarely within the expertise of children’s court magistrates. Family violence issues are part of the core work of children’s courts. Many children’s courts magistrates are also likely to have experience in exercising jurisdiction under family violence legislation in their capacity as local court magistrates. The benefits of the enhanced jurisdiction are significant. It creates a more seamless system for victims of family violence—including children—to allow them to access as many orders and services as possible in the court in which the family is first involved; removes the need for the child and the family to have to navigate multiple courts; reduces the need for victims of family violence to have to repeat their stories; and consequently reduces the likelihood that people will drop out of the system without the protections they need.
Where a children’s court has jurisdiction to hear a family violence protection order application, the court should also be able to make a family violence protection order in favour of siblings of the child or young person who is the subject of proceedings, or other children or young people within the same household, who are affected by the same or similar circumstances; and to make a family violence protection order for the protection of an adult where the adult is affected by the same or similar circumstances.
Improving evidence of family violence
From the first moment a victim of family violence enters the legal system—most often in a state or territory magistrates court—the aim of the recommendations in the Report is to capture the evidence in a way that reduces the need for repetition—a common complaint. Some recommendations are aimed at improving what information is provided by parties; others focus on what courts are expected to ask of parties; others place attention on ensuring that information about family violence is properly considered.
The Commissions consider that legal and other responses to family violence are improved if information is provided and obtained better from the outset. In Chapter 18, the Commissions recommend that state and territory courts should ensure that application forms for protection orders include information about the kinds of conduct that constitute family violence and should require that applicants swear or affirm a statement incorporated in, or attached to, the application form, setting out the basis of the application. In Chapter 16 a similar recommendation is made with respect to seeking information about property orders under the Family Law Act or any pending application for such orders.
Complementing this encouragement of better information from the parties, the Commissions recommend—in Chapters 30 and 16 respectively—that courts exercising jurisdiction under state and territory family violence legislation should inquire about existing parenting orders under the Family Law Act or pending proceedings for such orders; and when considering whether to make personal property directions in protection order proceedings, to inquire about and consider any property orders under the Family Law Act or pending application for such orders.
As discussed in Chapter 15, in the family law context there are a number of ways that information about family violence may be brought to the attention of the court, including where information is supplied by the parties, or by other professionals working with the parties. Information may also be shared between different courts or between agencies and organisations and the courts—this is considered in Chapter 30. The Commissions are of the view that a range of mechanisms should be used to collect information relevant to parenting proceedings in the family courts.
Currently, the Initiating Application (Family Law) includes one general question seeking information on existing orders and one general question seeking information on ongoing cases about family law, child support, family violence or child welfare. In comparison, some state and territory protection order application forms ask separately for details about, for example, children’s court orders, protection orders, and family court orders. The Commissions support this more detailed approach in which questions are asked, or tick boxes provided, in relation to each different order and each different kind of case.
The Commissions acknowledge that some caution must be exercised in using family violence protection orders as evidence of family violence in the family court system in some circumstances, and this issue is discussed in detail in Chapter 18. However, it is important that the family court system be aware that such orders exist so as to avoid, as far as possible, the making of inconsistent parenting orders.
In relation to family law applications, in Chapter 30, the Commissions recommend amending initiating application forms to clearly seek information about past and current family violence protection and child protection orders obtained under state and territory family violence and child protection legislation and past, pending or current proceedings for such orders. Then, in assessing what parenting order to make in the context of allegations of family violence, the Commissions recommend in Chapter 17 that a court, when determining the best interests of the child, must consider evidence of family violence given, or findings made, in relevant family violence protection order proceedings.
Further, to improve the understanding of victims of family violence concerning their options in the context of family dispute resolution under the Family Law Act, the Commissions recommend in Chapter 23 that participants are advised that: they may be exempt from requirements to participate in family dispute resolution; they should inform a family dispute resolution practitioner about any family violence protection orders or proceedings; and they should inform federal family courts about any family violence protection orders or proceedings, where family court proceedings are initiated.
These recommendations represent a combination of ‘push’ and ‘pull’ factors directed towards better information capture on the most likely first occasion of presentation.
A number of recommendations throughout the Report are directed to ensuring fairness—both to victims of family violence and to those who have used it—reflecting a key reform principle in this Inquiry.
To the victim
To improve the experience of victims of family violence in the context of family violence proceedings, the Commissions recommend, in Chapter 18, that state and territory family violence legislation should prohibit the respondent in protection order proceedings from personally cross-examining any person against whom the respondent is alleged to have used family violence. Further, where a decision is made not to grant an exclusion order against the person who has used family violence, even though such order has been sought, the Commissions recommend in Chapter 11 that a court should be required to give reasons for declining to make the order. Transparency of decision-making is an essential ingredient of fairness.
To ensure that victims are fully informed about decisions in relation to family violence offences committed against them, the Commissions recommend, in Chapter 10, that state and territory legislation should impose an obligation on police and prosecutors to inform victims of family violence promptly of decisions to grant or refuse bail and, where bail is granted, the conditions of release. Victims should also be given or sent a copy of the bail conditions, or such conditions should be sent to family violence legal and service providers with whom a victim is known to have regular contact. Where there are bail conditions and a protection order, police and prosecutors—properly trained about such matters—should explain how these interact.
The Commissions also make recommendations in the context of criminal offences that recognise the nature and dynamics of family violence and the impact on victims. For example, such as the recommendation, in Chapter 12, that state and territory legislation should provide that a person protected by a protection order under family violence legislation cannot be charged with or found guilty of an offence of aiding, abetting, counselling or procuring the breach of a protection order. In addition, the Commissions recommend, in Chapter 14, that state and territory criminal legislation should ensure that defences to homicide accommodate the experiences of family violence victims who kill.
A key aspect of fairness is the accountability of those who use family violence. While the imposition of rehabilitation and counselling conditions as part of a protection order raises some challenging issues in application, the Commissions consider that these challenges ought to be met as part of a broad integrated response to family violence. It is important for family violence legislation expressly to allow for courts making protection orders to impose conditions requiring persons to attend rehabilitation or counselling programs in appropriate circumstances. Recommendations to this effect are made in Chapter 11.
Rehabilitation programs are an essential measure for treating the causes rather than the symptoms of family violence. While protection order conditions prohibiting or restricting a respondent’s contact with the victim may assist in reducing or preventing violence against that victim in the short term, successful participation by a respondent in appropriate and relevant rehabilitation and counselling programs has the advantage of targeting the long-term reduction or prevention of family violence—including as against persons other than the victim who is the subject of the protection order.
In addition, where appropriate, state and territory courts should provide persons against whom protection orders are made with information about relevant culturally and gender-appropriate rehabilitation and counselling programs.
To the respondent/accused
The Commissions have made recommendations to ensure fair treatment of those who use family violence—whether in civil family violence proceedings, in a criminal trial, or in sentencing.
In Chapter 9, the Commissions make a recommendation limiting the circumstances in which police can issue protection orders against those who have used family violence. The ALRC is under an obligation under the Australian Law Reform Commission Act 1996 (Cth) to ensure that the laws it reviews do not make the rights and liberties of citizens unduly dependent on administrative rather than judicial decisions.
In Chapter 11, the Commissions recommend that judicial officers making protection orders be required to consider whether or not to make an exclusion order. While the primary factor to consider in making this decision is the necessity of ensuring the safety of a victim or affected child, the Commissions also consider that relevant secondary factors include the accommodation needs and options available to the parties, particularly in light of any disability that they may have.
Fairness to a person accused of a criminal offence is a fundamental principle of justice and, as discussed in Chapter 2, reflective of obligations under the International Covenant on Civil and Political Rights, including the right to a ‘fair and public hearing’ in art 14 with minimum procedural guarantees in the case of criminal charges.
In the context of the trial of an accused for an offence arising out of conduct that is the same or substantially similar to that on which a protection order is based, the Commissions recommend—in Chapter 11—that references cannot be made, without the leave of the court, to:
(a) the making, variation and revocation of protection orders in proceedings under family violence legislation—unless the offence the subject of the trial is breach of a protection order, in which case leave of the court is not necessary;
(b) the refusal of a court to make, vary or revoke a protection order in proceedings under family violence legislation; and
(c) the existence of current proceedings for a protection order under family violence legislation against the person the subject of the criminal proceedings.
To allow references to be made to facts that have not been subject to the criminal standard of proof may be prejudicial to an accused, affecting his or her rights to a fair trial. The risk of prejudice is significantly increased in circumstances where an accused has agreed to a protection order without admission of liability. Evidence about whether protection orders were made, varied or revoked, or whether applications for such orders were rejected, could improperly influence juries in their deliberations. Where the evidence is about the making of a protection order, or a variation to increase the protection provided by such an order, adverse inferences might be drawn by jurors, which may operate unfairly for an accused.
On the other hand, the fact that a protection order was made or that the court refused to vary or revoke an order could, for example, be relevant to tendency or coincidence or motive. Requiring a party to seek the leave of the court to lead evidence of such matters acts as an important safeguard in ensuring that an accused is given a fair trial.
In Chapter 12, the Commissions recommend that state and territory family violence legislation should not impose mandatory minimum penalties or mandatory imprisonment for the offence of breaching a protection order. The maintenance of individualised justice and broad judicial discretion are essential attributes of our criminal justice system, outweighing any potential deterrent effect that mandatory sentencing might have.
One aspect of achieving fairness in sentencing is the Commissions’ recommendation, in the context of family violence related offences, that state and territory legislation should provide that a court sentencing an offender should take into account:
(a) any protection order conditions to which the person being sentenced is subject, where those conditions arise out of the same or substantially the same conduct giving rise to the prosecution for the offence; and
(b) the duration of any protection order to which the offender is subject.
Sexual assault laws
Each Australian jurisdiction has its own set of substantive and procedural criminal laws. The main point of divergence between jurisdictions is whether the criminal law is codified or remains guided by the common law.
Legislative reform is only one of a number of mechanisms available to respond to problems arising from the response of the legal system to sexual assault. Nonetheless, to the extent that reform of the content of sexual offences can help ensure fairness through consistent expectations and treatment of sexual assault matters across jurisdictions, the Commissions support further harmonisation of sexual assault offence provisions.
Jurisdictions also differ as to the adoption of the uniform Evidence Acts. The implementation of the uniform Evidence Acts in all Australian jurisdictions—as recommended in Uniform Evidence Law (ALRC Report 102)—is a critical step towards ensuring consistent application of laws in cases of sexual assault.
The recommendations in the Report focus particularly on those aspects of sexual assault laws that are most likely to arise in a family violence context—that is, for those who have been sexually assaulted by a current or former intimate partner (spouse, de facto, boyfriend/girlfriend) or family member. However, most of the issues apply to all sexual assault proceedings, regardless of the relationship between the complainant and the perpetrator.
Part G highlights ways in which particular laws and procedures operate for victims of sexual assault. In many instances, Australian jurisdictions take different approaches to law and procedure in the areas discussed. As a result, these chapters examine which approaches best recognise the nature of sexual violence and address the negative experience of complainants in the criminal justice system. Where it is possible to identify certain approaches as more promising and progressive than others, the Commissions propose that the Australian, state and territory governments should implement consistent measures of these kinds.
The Commissions make a number of recommendations aimed at consistency of laws concerning sexual assault that arise in a family violence context. The recommendations concern, among other things: objectives and guiding principles in relation to sexual offences; definitions of consent and other elements of offences; and jury directions. Recommendations are also made in relation to a range of procedural and evidentiary issues.
Many areas of law and procedure relating to sexual assault proceedings are not addressed in the Report. Given the timeframe and ambit of the Terms of Reference, the Commissions’ work focused on inconsistencies in the interpretation or application of laws in those areas which have the most direct impact on victims of sexual assault in a family violence context. The Commissions acknowledge that reform in this area has been substantial over the last three decades, resulting in legislative and procedural changes which have improved legal responses to sexual assault committed in a family violence context. However, much remains to be done to address both legislative and practice-based gaps and inconsistencies which have a negative impact on victims of sexual assault.
Guiding principles and objects clauses
Statements of objectives and guiding principles can perform an important symbolic and educative role in the application and interpretation of the law, as well as in the general community. While much more is required to change culture, such statements provide an important opportunity for governments and legal players to articulate their understanding of sexual violence and provide a benchmark against which to assess the implementation of the law and procedure.
Such objectives and principles are intended to provide a contextual framework for the legislative response to sexual assault, rather than any exhaustive list of issues to which judicial officers and jurors should have regard. The Commissions’ recommendations do, however, expand on the Victorian provisions, which are used as a model, to incorporate certain other matters. In particular, the Commissions consider that it is desirable to acknowledge that sexual violence in the family context constitutes family violence, as it is precisely these cases that criminal justice systems deal with least effectively. Further, it is important to recognise the particular vulnerability of certain groups of women and, as a result, specifically recognise the experiences of Aboriginal and Torres Strait Islander women, those from CALD backgrounds and women with a cognitive impairment.
The Commissions recommend that legislative statements of objectives should underline the aims of upholding individual sexual autonomy and agency, while ensuring the protection of vulnerable persons from sexual exploitation. In addition, guiding principles should be incorporated in sexual offences, criminal procedure or evidence legislation, to recognise the nature and dynamics of sexual assault.
In particular, the Commissions recommend that state and territory legislation dealing with sexual offences should state that the objectives of the sexual offence provisions are to:
(a) uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity; and
(b) protect children, young people and persons with a cognitive impairment from sexual exploitation.
Complementing such objectives, the Commissions recommend the inclusion of guiding principles in state and territory legislation dealing with sexual offences, criminal procedure or evidence, to which courts should have regard when interpreting provisions relating to sexual offences. At a minimum, these guiding principles should refer to the following, that:
(a) sexual violence constitutes a form of family violence;
(b) there is a high incidence of sexual violence within society;
(c) sexual offences are significantly under-reported;
(d) a significant number of sexual offences are committed against women, children and other vulnerable persons, including those from Indigenous and CALD backgrounds, and persons with a cognitive impairment;
(e) sexual offenders are commonly known to their victims; and
(f) sexual offences often occur in circumstances where there are unlikely to be any physical signs of an offence having occurred.
In Chapter 25, the Commissions make a number of recommendations with respect to the definition of sexual intercourse or penetration; the age of consent for all sexual offences; consent—based on the concept of free and voluntary agreement—and the circumstances that may vitiate consent.
The Commissions recommend that the definition of sexual intercourse or penetration should be broad and not gender-specific, and should be made more consistent across jurisdictions. The definition is in keeping with the shift away from historically gendered and restrictive definitions of sexual intercourse and is consistent with the definition in the Model Criminal Code.
The Commissions recommend the age of consent for sexual activity should be made more uniform both within and across jurisdictions and that there be no distinction made based on gender, sexuality or any other factor.
In adult sexual assault trials, it is common for the defendant to admit sexual activity but assert a belief that it was consensual. This is a matter for the jury to determine by reference to the defendant’s actual state of mind—and, in some jurisdictions, by reference to whether that state of mind was reasonable—at the time the sexual conduct occurred. In a family violence context, where the complainant and the defendant know each other, the issue of consent is particularly complex.
The Commissions recommend the adoption of a statutory definition of consent across all Australian jurisdictions. The Commissions consider that a definition based on agreement properly reflects the two objectives of sexual offences law: protecting the sexual autonomy and freedom of choice of adults; and reinforcing both positive and communicative understandings of consent through use of the term ‘agreement’.
To the extent that introducing the concept of ‘agreement’ to the definition of consent may give rise to interpretation issues and problems in practice, the Commissions consider that supplementing any legislative provision that defines consent with a provision that includes a list of circumstances where free agreement may not have been given will assist, in practice, to clarify the meaning and expression of ‘agreement’.
Identifying the circumstances where there can be no consent, and where there may be no consent, as determined by the jury, has been a key concern of law reform in this area. The Commissions recommend that, at a minimum, federal, state and territory legislation should recognise certain specified circumstances as ones where consent may be vitiated. The recommendation intentionally leaves it open to the Australian, state and territory parliaments to decide whether particular circumstances should be considered as automatically negating consent. The recommended list of circumstances is non-exhaustive, as is presently the case in all Australian jurisdictions. This allows juries to find, on the evidence, that there was no consent, even if a case does not fall within one of the listed circumstances.
Procedure and evidence
In Chapters 26 to 28, the Commissions examine selected developments aimed at reducing attrition and improving the experiences in the criminal justice system of those who have suffered a sexual assault, and make a range of recommendations concerning criminal procedure and evidence.
Some of these reforms are of particular application to sexual assault cases involving multiple incidents and multiple complainants—a situation that often arises in a family violence context, for example, where a number of siblings allege that a parent has sexually abused them.
In such situations, the prosecution is likely to make a pre-trial application to have the counts against the defendant heard in a joint trial, rather than separate trials. The defence, in contrast, is more likely to apply for separate trials for each offence. The power to order a joint trial is discretionary and is exercised in order to prevent prejudice to the defendant.
When the complainant’s credibility is attacked in a separate trial, evidence that would support his or her credibility may be disallowed and the jury kept in ignorance of the fact that there are multiple allegations of abuse against the defendant. This has the potential to cause unfairness and injustice.
Further, if separate trials are held, children involved may have to give evidence numerous times, a process which can exacerbate the emotional stress experienced by child complainants. Adult victims of sexual offences in a family violence context also face additional trauma, especially as the pattern of offending is often long term, rather than centred on one specific incident.
The Commissions recommend, in Chapter 26, a presumption of joint trial to encourage judges to order joint trials in sexual offence proceedings wherever possible. The main justification for this recommendation is that joint trials tend to reduce trauma for complainants. It would still be open to a court to order separate trials where evidence on one charge is inadmissible on another charge—for example, because its probative value is outweighed by the danger of unfair prejudice to the defendant.
Recommendations in Chapter 27 address aspects of evidence law, including in relation to: restrictions on the admission of evidence of a complainant’s sexual experience or activity; the admission of expert evidence on the development and behaviour of children and implications for their credibility as witnesses; and the admission of tendency or coincidence evidence.
Complementing these recommendations are others in Chapter 28 that concern jury directions—specifying what a judge should, or should not, say to a jury in any sexual assault proceedings, in order to ensure a fair trial. These include recommendations intended to: ensure that judges in sexual assault proceedings do not suggest to juries that complainants as a class are unreliable witnesses, or give a general warning about the danger of convicting on the uncorroborated evidence of any complainant or witness who is a child; and restricting the circumstances in which directions regarding the effect of delay in complaint, or absence of complaint, on the credibility of the complainant may be given.
Protecting victims of sexual assault
The Commissions make a range of recommendations concerning the protection of victims of sexual assault in relation to the giving of evidence. While these recommendations are principally directed to situations most likely to involve family violence, they are of more general application to sexual assault proceedings.
In relation to committal hearings, the Commissions recommend, in Chapter 26, that state and territory legislation should prohibit: any child; and any adult complainant, unless there are special or prescribed reasons, from being required to attend to give evidence at committal hearings in relation to sexual offences.
Most states and territories have enacted regimes for the comprehensive pre-recording of evidence for child victims of sexual assault (and those who are cognitively or intellectually impaired). The Commissions recommend that similar provisions should be available in relation to the evidence of all adult complainants of sexual assault, to minimise the negative experiences of complainants of sexual assault in the criminal justice system where this can be done without prejudicing defendants’ rights to a fair trial.
In Chapter 26, the Commissions recommend that all Australian jurisdictions should adopt comprehensive provisions dealing with pre-recorded evidence in sexual offence proceedings, permitting the tendering of pre-recorded evidence of interview between investigators and a sexual assault complainant as the complainant’s evidence-in-chief. Such provisions should apply to all complainants of sexual assault (adults and children).
In addition, child complainants of sexual assault, and complainants of sexual assault who are vulnerable as a result of mental or physical impairment, should be permitted to provide evidence recorded at a pre-trial hearing. This evidence should be able to be replayed at the trial as the witness’ evidence. Adult victims of sexual assault should also be permitted to provide evidence in this way, by order of the court.
Sexual assault communications privilege
From the mid-1990s, ongoing reform of sexual assault laws and procedure has included the enactment of legislation to limit the disclosure and use of sexual assault communications—communications made in the course of a confidential relationship between the victim of a sexual assault and a counsellor. The defence may seek access to this material to assist with their preparation for trial and for use during cross-examination of the complainant and other witnesses.
The Commissions concluded that more needs to be done to ensure that existing legislative provisions operate effectively, in practice, to protect counselling communications. The Commissions recommend, in Chapter 27, that federal, state and territory legislation relating to subpoenas and the operation of the sexual assault communications privilege should ensure that the interests of complainants in sexual assault proceedings are better protected, including by requiring:
parties seeking production of sexual assault communications, to provide timely notice in writing to the other party and the sexual assault complainant;
that any such written notice issued be accompanied by a pro forma fact sheet on the privilege and providing contact details for legal assistance;
that subpoenas be issued with a pro forma fact sheet on the privilege, also providing contact details for legal assistance.
 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), Rec 7.