Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021 

• A human rights approach
• The changing Australian context
• Accessible and equitable justice for women and their children
• Just civil remedies must operate in parallel with criminal law and prioritise safety
• Excellence in legal responses to women and their children
• Judicial officers, law enforcement personnel and other professionals within the legal system have appropriate knowledge and expertise
• References

Article 4 of the Declaration on the Elimination of Violence against Women, adopted by the United Nations General Assembly in 1994, unambiguously states the premise on which our legal response to violence against women should be based.

Violence against women and children is a fundamental violation of their basic human rights. States are therefore obliged to prevent violations of human rights in the private sphere; to regulate and control private actors; and to investigate violations, punish perpetrators and provide effective remedies to victims¹¹⁵. States may be held responsible for private acts, such as domestic and family violence, if they fail to act with due diligence to prevent, investigate, or punish acts of violence, and for providing compensation¹¹⁶.

In 2009, Australia became a party to the Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The Optional Protocol enables women in Australia to make a complaint, after other legal options have been exhausted, to the United Nations’ Committee on the Elimination of Discrimination against Women about alleged violations of Australia's obligations under CEDAW.

A human rights approach

Human rights frameworks have also recently articulated principles that should underpin our legal response to violence against women¹¹⁷. The Council sees these principles as being closely aligned to the concerns raised during its consultations and to Australia’s recent adoption of the Optional Protocol to CEDAW.

These core principles provide the basis against which Australia’s performance in upholding, respecting, and protecting the right of women and children to live free from violence must be measured. They are:

• Make criminal and civil laws gender sensitive.
• Ensure access to justice for women.
• Ensure best practice during investigation and prosecution.
• Administer appropriate punishments.
• Provide civil remedies in conjunction with criminal penalties.
• Mandate professional development for judicial and law enforcement personnel, and other professionals within the legal sector.
• Provide for adequate reparation and compensation.
• Enact national plans of action and gender mainstreaming.
• Undertake research and compilation of sex disaggregated data.
• Allocate adequate budgets.

The Council’s work is informed by these principles to the extent that they reflect the priority areas identified though the consultations, and other evidence-based research it has undertaken. These priorities do not encompass the full breadth and complexity of the legal issues that affect women and children who experience sexual assault and domestic and family violence. The Council trusts that the principles underpinning the Plan of Action will help serve those who continue to advocate for reforms across the full range of issues encountered by women in seeking a 'just' legal response.

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The changing Australian context

Against the background of these international developments, decades of reform to sexual assault and domestic and family violence laws and procedures in Australia (driven largely by advocates committed to equality and justice for women), have resulted in substantial change to the laws, procedures and practices that govern our legal response to violence against women.

The Council acknowledges the extensive and progressive legislative and procedural reforms recently undertaken by the States and Territories in this area. These developments have included:

• widening the definition of offences so that women’s and children’s experiences of violence are more appropriately recognised and encompassed within the law;
• introducing pro-arrest policies and risk assessment tools to improve police practices when responding to reports of violence;
• introducing specialist approaches such as priority listing of sexual offence cases and of domestic and family violence hearings;
• establishing specialist court support services and introducing more flexible arrangements within courts to reduce the extent to which victims feel intimidated and alienated;
• improving access to information and support for victims (such as witness assistance schemes and specialist court support services, and the provision of applicant support workers);
• attending to procedural reforms aimed at improving the experience of giving evidence (such as introducing alternative arrangements for giving evidence and prohibiting or limiting the extent to which the accused, or the defendant, can directly cross-examine the victim).

Despite these changes, the legal response remains inadequate for many women and children. The extent to which the legal system fails to adequately protect and ensure the safety of women and children affected by violence was frequently addressed by service providers and experts with whom the Council consulted; and was courageously expressed through a substantial number of submissions from those directly affected by violence¹¹⁸.

Accessible and equitable justice for women and their children

Access to justice and equality before the law are fundamental concepts within the Australian legal system. That means that the legal system must ensure that it is accessible to all, regardless of gender, ethnicity, sexuality, disability, age, socio-economic background, or any other such characteristic¹¹⁹. Equality and freedom from discrimination should be the hallmark of a just response to violence against women and their children.

Notwithstanding the significant past reforms to improve access to justice for women subjected to violence and their children, the Council’s consultations highlighted the following examples where persistent barriers effectively undermine women’s equal access to justice:

• when access is differentiated by ethnic diversity, disability, class, or age;
• where services and access to justice are not available because of geographic remoteness and isolation;
• where appropriately trained interpreters are not made available to overcome language barriers and complex communication needs;
• where only one interpreter is provided to assist both the complainant and the defendant during the reporting process and subsequent court hearings;
• when women with disabilities face misconceptions about their credibility and their memory, as a result of which their complaints about assault may not be taken seriously by police or the courts;
• where legal aid is not provided to ensure appropriate legal representation.

Aboriginal and Torres Strait Islander women experiencing domestic and family violence face particular barriers to justice for themselves and their children. These obstacles include the historic distrust of police associated with their role in the colonisation of Aboriginal and Torres Strait Islander people and the removal of children; and the over-representation of Aboriginal and Torres Strait Islander people, including women, in the criminal justice system¹²⁰. Other factors which discourage Aboriginal and Torres Strait Islander victims/survivors from reporting violence, particularly in remote areas, include a lack of police, entrenched community attitudes that violence is normal, or even a fear of retribution from the perpetrator’s family.

Barriers to access to justice for immigrant and refugee women and children experiencing violence were also identified throughout the consultations. These included lack of knowledge of the legal system, limited translated information about legal rights, and fear of interaction with the legal system based on pre-migration experiences. A particular issue that is consistently raised by various immigrant and refugee groups and communities is that of ensuring access to the family violence provisions of the Migration Regulations 1994¹²¹.

The Family Violence Provisions¹²² of the Migration Regulations are designed to ensure that visa applicants do not remain in abusive relationships in order to obtain permanent residence in Australia. In addition to the trauma of being in violent relationships, women in these situations have the added vulnerability of being recent immigrants to Australia, often without family or social support networks independent of their abusive partner. They are in an unfamiliar environment and often are unaware of domestic violence provisions in the Migration Regulations and the existence of support services.

Recent amendments to the Migration Regulations¹²³ have attempted to address some of the more pressing issues, but barriers to a just outcome remain. For instance, the evidence requirements to prove domestic and family violence for the purposes of the Migration Regulations can be difficult for some women experiencing such abuse. Evidence can be judicial or non-judicial. Judicial evidence usually requires a final civil law protection order. Research points to a high level of under-reporting of domestic and family violence, especially among immigrant and refugee women, and few proceed right through the court process¹²⁴. This would suggest that many immigrant and refugee women would have difficulty meeting the judicial evidence requirement of the regulations.

Non-judicial evidence, involving the provision of statutory declarations from professionals identified in the regulations as 'competent persons', can also be challenging, particularly as the legislation is prescriptive about the type of professional that can be considered to be a competent person. For women in rural and remote regions of Australia, accessing these professionals may be very challenging¹²⁵.

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Just civil remedies must operate in parallel with criminal law and prioritise safety

The civil law has a pivotal role in responses to women and children experiencing violence, including through the provision of crimes compensation and civil protection orders.

Compensation

Both customary international law and various international treaties to which Australia is a signatory provide the legal foundation for victims' right to compensation. This has been expressed through a range of different pieces of legislation that provide restitution, compensation, and in some cases rehabilitation or counselling.

Crime compensation for victims of sexual assault and family violence serves a variety of important functions. Firstly, it may provide financial assistance and support for victim/survivors to manage the material aspect of their loss. Research¹²⁶ undertaken with victim/survivors highlights that compensation is not primarily about financial recompense, it may also assist in restoring the victim/survivor’s sense of dignity and raise public awareness about the harms victims have suffered¹²⁷. Compensation schemes can further form a crucial part of restorative justice and serve as focal points in the healing process. As such, criminal compensation schemes must be a core component of a just legal response.

Protection orders under civil domestic and family violence law

Each Australian jurisdiction has domestic/family violence laws which provide for a civil protection order and an accompanying criminal offence for a breach of such an order, to give the order force. Apart from breach provisions, civil domestic and family violence protection orders are intended to be used in conjunction with the criminal law, where there is evidence that a crime has been committed. This includes, for example, criminal assault and criminal damage to property. The combined use of civil and criminal law in this way aims to restrain offenders from perpetrating future violence, while appropriately holding them accountable for past violence.

The circumstances in which civil protection orders can be made and breached vary depending on the jurisdiction, but they are generally aimed at protecting victims from future domestic and family violence; however that is defined in the respective jurisdiction. The civil nature of the order allows for a lower standard of proof, making orders easier to obtain than a conviction and can be tailored to each situation, prohibiting behaviour not always covered by the criminal law.

Ouster/exclusion orders in domestic and family violence cases

While not all victims of domestic and family violence want to end their relationship (preferring to stay in the relationship, but wishing the violence to stop), many have no other option. In those cases, a just response is to ensure that perpetrators of domestic and family violence are removed from the family home where it is safe, appropriate and desirable for the woman and her children to remain. Legally, this can be achieved under all State and Territory domestic and family violence laws, which provide for 'exclusion' or 'ouster' orders as a condition on a civil protection order¹²⁸.

There is broad commonality on the central features of different State and Territory legislation, though with some significant differences¹²⁹. Some jurisdictions give greater emphasis to the needs of the protected person than others, some provide a statutory presumption in favour of the protected person, while others require that a range of factors be considered by the court in relation to such orders. These factors include the accommodation needs of the perpetrator of the violence and the welfare of any children.

Several jurisdictions¹³⁰ have recently sought to increase the use of ouster/exclusion orders through various means¹³¹. However, these provisions remain under-utilised due to:

• factors such as legitimate concerns about safety and security, some of which can and will be addressed through increased brokerage funding¹³²;
• attitudes of justice officials about the rights of the perpetrator, compared to those of the victim;
• the interface with tenancy law¹³³.

For example, where the victim of violence requires the perpetrator to be removed from the home, some jurisdictions link domestic and family violence laws with relevant tenancy law to enable amendments to tenancy agreements to accommodate ouster/exclusion orders.

The Council endorses and extends the strategies contained in The Road Home¹³⁴ to increase access to ouster/exclusion orders to remove perpetrators of domestic and family violence and enable women and their children to remain safely in their home, with strengthened support and protection.

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Removing geographic boundaries for domestic and family violence protection orders

For some women, ending a violent relationship will mean fleeing to another State or Territory in the pursuit of safety¹³⁵. Reciprocal legislative arrangements enable the registering of external orders. That is, an order made in any Australian State or Territory or New Zealand may be registered in any other Australian State or Territory or New Zealand. These arrangements involve a registration application to the relevant court in the receiving state, an administrative task carried out by an official of the court. Once registered, the external order is enforceable in the receiving jurisdiction as if it were made there. This falsely assumes a high degree of consistency in the domestic and family violence legislation across jurisdictions.

While these reciprocal arrangements appropriately intend to protect victims of domestic and family violence, the system is cumbersome, and leaves some women legally unprotected from further abuse, although a court order has been made for their protection. Many women who have fled violence remain unaware of the need to register an interstate order, or they forgo legal protection because they are afraid that registering the order will alert the respondent to their whereabouts. In some cases there may be two or more orders, with various conditions, operating in different jurisdictions because of adaptations made in receiving States or Territories.

Another difficulty with the portability system is that it does not address situations in which the respondent has moved to another state but continues to intimidate and harass the aggrieved through various means including telephones. Such a scenario might involve a victim in Queensland, with a Queensland protection order, and a perpetrator who has moved across the border into New South Wales but who continues to breach a no-contact order. Without the woman registering the order in New South Wales (which would require her to move there), the New South Wales police cannot enforce the Queensland order, and the Queensland police have no jurisdiction in New South Wales.

Further, the system requires the registering court to notify the Commissioner of Police and, in some jurisdictions, the court where the original order was made.

The issues of natural justice, safe transition and continued protection across jurisdictions, as well as supporting efficiency for courts, could be addressed through a national protection order registration scheme. Under this scheme, a domestic and family violence order would be automatically included on the national register upon being made by the relevant court, and subsequent registrations and adaptations in other jurisdictions would also be automatically registered and coordinated in the national registration system. Consideration would need to be given to the registration of police-issued protection orders, operating in some jurisdictions in this proposed system.

On the basis of these issues highlighted in the process of developing its Plan of Action, the Council recommends that urgent attention be given to the need for automatic registration of civil protection orders to safeguard women and their children fleeing domestic and family violence.

The nexus between family law, child protection and domestic and family violence

Domestic and family violence is a common cause of relationship breakdown¹³⁶, with the process of separation creating specific vulnerability to chronic and dangerous post-separation violence for some women and their children^{137 138 139 140 141 142}. The violence they experience can escalate and take different forms after separating (such as stalking; actual or threatened child abduction; and litigation abuse, including legal action to prevent abused women and children from re-locating)^{143 144}.

Paradoxically, and in spite of the dangers, separation is a key safety strategy that women and their children use to escape violence and the escalation of trauma-induced mental health problems. Many child-protection workers regard women continuing to live with domestic violence as evidence of a 'failure to protect'. Separation from the perpetrator of violence and abuse is a primary safety strategy advocated by child-protection workers who sometimes threaten removal of children from the home if action to separate is not taken¹⁴⁵. Issues of family violence and child abuse are therefore central, not peripheral, issues in the family law arena^{146 147}.

The Family Law Amendment (Shared Parental Responsibility) Act 2006, however, represents a potential obstruction to a just and integrated response to family violence in Australia¹⁴⁸. The Act states that 'in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).' Subsection (2) states: 'the primary considerations are: a) the benefit of the child of having a meaningful relationship with both of the child’s parents; and b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence¹⁴⁹.'

Under the Family Law Amendment (Shared Parental Responsibility) Act 2006, it is left to the court to decide how to reconcile the objectives of a child’s right to a meaningful relationship with both parents and the protection of the child from exposure to violence when there is conflict. Section 61DA also states that: '[w]hen making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.'

While the legislation does not necessarily privilege either of the primary considerations, it seems that there have been considerable problems in reconciling the two in practice. Under previous (almost identical) legislation¹⁵⁰, evidence emerged that a very strong pro-contact culture had arisen and that the 'the opportunity for a significant relationship with both parents' took precedence over a history or even recent experiences of violence and abuse¹⁵¹. Evidence from the Council’s consultations, and from the judiciary itself, tends to show that such a presumption is inappropriate for a great number of families using the Act¹⁵².

Firstly, the legislation places the burden of rebutting this presumption on the most vulnerable people who are using the Act (namely women and children escaping violence and abuse). This is because evidence is required to show that there are reasonable grounds that the parent of the child has engaged in abuse, or family violence, or that it is not in the child’s best interests to have shared parental responsibility¹⁵³.

Secondly, where there is violence, women are commonly unable to meet both the 'protective parent' criteria and the criteria for a 'friendly parent', defined as 'the willingness of each parent to facilitate the child’s relationship with the other parent'¹⁵⁴, and they risk state child protection intervention without a protective stance towards the safety and well-being of their children¹⁵⁵. And, finally, the tension between the children’s long-term need to 'know their father' in a 'pro-contact' culture, over their safety and wellbeing and damage to their neurological development requires early evaluation and review. The Council therefore proposes that any future reform be informed by both empirical research and the views of those involved in the family law system.

It is also the case that State and Territory civil protection orders and orders under the Family Law Act 1975 can overlap or conflict. While state legislation is progressively widening definitions of domestic and family violence, the Family Law Amendment (Shared Parental Responsibility) Act 2006 has moved to a more restrictive definition, whereby the person must be in reasonable fear or apprehension for their well-being or safety due to actual or threatened conduct of a violent family member¹⁵⁶. There is anecdotal evidence from Women’s Legal Services Australia that this tension can result in orders that are unenforceable in practice. The 2008 Report on Domestic Violence and Sexual Assault Laws in Australia¹⁵⁷ also notes the difference between legislation as written and legislation in practice. Many State and Territory magistrates are concerned about cutting across Family Law Act 1975 matters, and they do not use legitimate powers to revive, vary, discharge or suspend existing Family Law Act 1975 orders that relate to contact with children when these may be jeopardising the safety of women and children. Further, the inherent tension in the Family Law Amendment (Shared Parental Responsibility) Act 2006 between facilitating children’s contact with both parents and protecting children and their parents from family violence is exacerbated when child contact is written as an exception on protection orders and state police may then be reluctant to enforce orders.

It should be noted that the family courts have the power to clarify inconsistencies, and some States and Territories have now strengthened the civil protection legislation to provide clarity and direction to magistrates to enhance the safety and protection of children. Some also provide extensive training in relation to children, family violence and the impact of contact orders¹⁵⁸ which could form a comparative point of difference to identify the most effective legislative and policy utilisation of ouster/exclusion orders.

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Presentation of evidence

Certain sections in the Family Law Amendment (Shared Parental Responsibility) Act 2006 can tend to mitigate against the presentation of evidence of violence in the first place. These include: the provision that some or all of the costs of litigation can be awarded against a party knowingly making a false allegation or statements in the proceedings¹⁵⁹; the more restricted definition of family violence¹⁶⁰; and the 'friendly parent' provision which assesses 'the willingness of each parent to facilitate the child’s relationship with the other parent¹⁶¹. This is of significant concern because past violence, although not always recognised by the future-focus of family law, is the key indicator of future violence¹⁶².

The evidence of past violence is therefore needed to inform decision making in family law proceedings and to rebut the presumption of shared parental responsibility, but the obstacles to information-sharing by stakeholders in the family law system remain a significant impediment to ensuring that women and their children are safe. Evidence of violence is collected on a case-by-case basis via subpoena to different organisations, but confidentiality guidelines and legislative limitations on disclosure restrict access to child-protection records, civil and criminal law records and education and medical records. With the exception of the Family Court of Australia’s Magellan Case Management project¹⁶³, there is a 'factual vacuum'¹⁶⁴ as there are few formal agreements and communication channels between organisations able to provide this evidence, and neither the Family Court of Australia nor associated socio-legal services have the power to investigate allegations of abuse¹⁶⁵.

Service practices also vary across jurisdictions and a recurrent problem occurs when child protection workers close cases as soon as a 'viable carer' is identified and they do not provide active support through the court and follow-up monitoring to ensure the safety of the contact arrangement¹⁶⁶. Practices regarding communication and coordination between state child protection departments, and between those departments and courts dealing with Commonwealth family law matters, require development¹⁶⁷. Protocols between child protection and family law also need to be expanded upon and/or uniformly applied, to resolve problems of evidence, coordination and case management. Joint education forums between family law and child protection practitioners to address the procedural and legislative conflicts would also result in practical benefits for women seeking legal redress for violence.

Family dispute resolution

Many women who experience violence¹⁶⁸ prefer, for a range of reasons, to attempt to resolve their case through engagement with family dispute resolution rather than through the courts. Participation in family dispute resolution is required under the Family Law Amendment (Shared Parental Responsibility) Act 2006 before filing an application for a court order unless an exception applies. One of the exceptions covers the situation of family violence. Family dispute resolution practitioners can also issue a certificate where they consider that resolution would be inappropriate due, for example, to the existence of significant power imbalances between the parties¹⁶⁹. However, the 'future focus' of family dispute resolution can divert attention from the quality of previous parenting, the risks of continuing post-separation violence, and the potential for on-going re-traumatisation of children who have been either directly abused, or exposed to violence¹⁷⁰.

While family dispute resolution practitioners are required to develop competence in the area of family violence¹⁷¹, the development of this specialised area is in its early stages¹⁷². Without attention to family violence, women may feel pressured into shared parenting arrangements that provide endless opportunities for perpetrators to continue to exert power and control over both women and children. Every woman should enjoy access to a variety of victim/witness services, but it is crucial that staff are knowledgeable and qualified to support them in their interaction with the justice system.

It is imperative that the judiciary, legal officers, government agencies and service support workers understand the multifaceted nature of domestic and family violence. The motivation for ongoing domination and control, the impact and consequences of the action on the other person, and the inter-relationship between the criminal and civil law in protecting against such violence all need to be taken into account in family-law decision-making to ensure that women and their children who have experienced abuse receive consistent support from the justice and family law system.

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Alternative or parallel justice models

Since the 1990s there has been increasing debate about the utility of alternative justice models for cases of domestic and family violence and sexual assault. While alternative justice models may be broadly categorised as 'therapeutic jurisprudence', 'restorative justice' and 'Indigenous justice'¹⁷³, it is restorative justice that has received most attention in these debates.

• Restorative justice encompasses a range of practices. These include community conferencing and mediation (the most commonly used restorative justice practices in Australia). Perceived benefits of restorative justice for cases of gendered violence, when compared to the conventional criminal justice system, include that the more flexible process is less threatening for victims;
• it enables victims to talk about the offence from their perspective, highlighting what they see as relevant, rather than focussing more narrowly on what is considered legally relevant;
• it can result in marshalling family and community resources to support victims;
• it enables the victim to have some say in what should happen to the offender¹⁷⁴.

The major concerns with restorative justice relate to:

• the unequal power relationships between victims and perpetrators of gendered violence, and the capacity of the perpetrator, through subtle forms of intimidation, to exert power over their victim and therefore the restorative justice process;
• the assumption of a uniform set of community values that condemns violence against women;
• the appeal to apology and forgiveness, which are characteristics of the cycle of abuse¹⁷⁵ in intimate partner violence¹⁷⁶;
• a concern that restorative justice will be favoured by governments because it may be seen as a cheaper option.

Largely due to concerns about the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system, Aboriginal and Torres Strait Islander women have advocated for the application of restorative justice for cases of domestic and family violence (noting that sexual assault is generally incorporated into Indigenous women’s concepts of family violence)¹⁷⁷. While it may be that restorative justice offers some potential for a more effective justice response than the criminal justice system, this conclusion is conditional upon 'restorative justice being part of a holistic response, based on an assumption of Indigenous self-determination, built from the grassroots up and with control of the program and process in the hands of respected Indigenous elders, rather than criminal justice system officials'¹⁷⁸. It must also be ensured that the rights of victims of violence are given priority, and their voices heard, in any community process to consider restorative justice measures.

These perceived benefits of and concerns about restorative justice have not been adequately tested because gender-based violence has been almost entirely excluded from restorative justice processes in Australia and internationally.

In efforts to guard against the risks of revictimisation, women subjected to sexual assault and domestic and family violence may be deprived of potential enhancements in access to justice. With this in mind, the National Council supports the cautious exploration of how elements of restorative justice may be incorporated into, or run in parallel with, the conventional criminal justice system to achieve just outcomes for women.

Excellence in legal responses to women and their children

Australian laws and practices governing violence against women traverse Commonwealth and State and Territory jurisdictions and encompass criminal laws associated with rape, sexual assault, other person-related assaults, criminal damage and stalking; civil domestic and family violence laws; child protection laws; the Family Law Act 1975; and migration law.

The administration of these diverse areas of law has been the subject of reform, in terms of substance and operation, for decades. As such, it is beyond the scope of this Plan of Action to comprehensively map and consider all of the areas of law that affect women and children seeking legal redress.

However, examples of excellent practice in legal responses to violence against women emerged during the course of the Council’s consultations, and we take this opportunity to consider the extent to which they appear able to fulfil the principle of ensuring that women and children are provided with a 'gold-standard' legal response.

Broadly, these examples include a range of model strategies and practical measures to better ensure a just legal response. Core components of these strategies and measures include primacy being given to the safety of women and children, and initiatives aimed at risk minimisation. In the context of responses to sexual assault, there was:

• concern about the variation in consent provisions across State and Territory jurisdictions;
• strong criticism of the law’s continued reticence to interpret and apply reforms to allow for multiple victims, particularly children or adult survivors of childhood sexual assault, to seek a balanced and fair criminal justice response;
• variation in domestic and family violence law reform;
• mention made of the recent introduction of specialist approaches to prosecutions (including the introduction of specialist courts).

The following section provides a broad overview of the reforms that have been implemented in the States and Territories and which were often referred to in consultations as approaches that could be considered national benchmarks of a fair and just response to violence against women (particularly in terms of sexual offences), or as initiatives that warrant particular attention for their capacity to better secure women’s and children’s right to live free from violence in their own homes and communities.

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Key reform initiatives in sexual offence cases and consent laws

The historical treatment of consent in sexual offence cases is often said to epitomise the law’s inherent bias against women. In the absence of clear and unequivocal principles about what constitutes genuine consent in sexual offence cases, juries have typically drawn on rape myths and preconceived assumptions and ideas as to how consent should be legally assessed¹⁷⁹. This can be further compounded by the extent to which judges’ directions have, in the past, reinforced traditional views about sexual assault victims and offences, and the collective influence this has had on generating consistently low conviction rates^{180 181}.

Most States and Territories have moved towards a definition of consent that applies a 'communicative' model through defining consent as 'free agreement' or 'free and voluntary agreement'¹⁸². These new definitions require juries to consider what a complainant has said or done to indicate their free agreement, rather than assume that silence or submission equals consent¹⁸³. Some also stipulate that inactivity and/or silence should be equated with non-consent¹⁸⁴.

For example, Victoria’s provisions state that: 'the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person’s free agreement'¹⁸⁵.

A number of jurisdictions have also created lists of vitiating circumstances under which free agreement cannot be said to have been given (such as under force of threat or of physical or economic harm, under the influence of heavy drug or alcohol consumption, or if the complainant is asleep) and has introduced judicial directions to juries to help them apply these modern definitions. Mandatory jury directions are designed to ensure consistency and 'formalise good practice'. However, the extent to which States and Territories have been prepared to incorporate these more progressive changes into their laws and procedures remains uneven.

The accused’s 'honest belief' in consent

Another contentious aspect of rape law has been the extent to which an accused can claim to have held an honest, though unreasonable, belief in consent.

In the past, an honest, though unreasonable, belief in consent could amount to a complete defence, even if the accused had done nothing to find out whether the complainant was consenting. This provided poor protection for the law’s claim to protect sexual autonomy, placing 'the onus on a person approached for sex to indicate lack of consent, instead of requiring the initiator to ascertain whether the other person is consenting'¹⁸⁶. Trials tended to focus on the complainant’s conduct and mental state rather than on that of the accused, often resulting in re-victimisation of the complainant¹⁸⁷.

The states of Western Australia, Tasmania and Queensland, Tasmania and Queensland¹⁸⁸ have now restricted the availability of defence based on a mistaken belief in consent by requiring an honest and reasonable belief in consent¹⁸⁹. This approach does not mandate consideration of steps taken by the accused to ascertain consent, but these steps should be relevant to assessing the reasonableness of their belief about consent. Several jurisdictions have explicitly recognised that an accused who has not considered the question of consent at all does not have a defence.

Victoria has adopted a different model that retains the defence of honest belief in consent but restricts its use. A defence of mistaken belief is not available unless the accused took reasonable steps to find out whether the complainant was consenting¹⁹⁰.The defence is not available in a number of other situations: for example, where one of the statutory factors inconsistent with 'free agreement' was present and the accused knew it was present¹⁹¹. In relevant situations, a direction requiring the jury to consider the reasonableness of any belief in consent must be given to the jury¹⁹².

These models represent different approaches to restricting the availability of mistaken-belief defences that are worthy of consideration by other jurisdictions.

The law’s treatment of multiple cases/offences/victims of sexual assault

Allegations of sexual offending are often made by several complainants about a single accused¹⁹³. These cases represent one of the key places where sexual offending and family violence of other kinds can overlap. In many Australian jurisdictions, the law effectively precludes a joint trial of offences committed against more than one person where complainants know one another¹⁹⁴. Instead, each allegation is heard in a separate trial. This approach is intended to protect the accused’s right to a fair trial. It stops the jury deciding that the accused is guilty because of a believed tendency to commit sexual crimes rather than by thoroughly considering the evidence available to support the allegations relevant to individual victims. It is also designed to prevent unfairness to the accused should witnesses concoct evidence.

However, separating trials leads to delay and may mean a complainant is required to testify in many trials¹⁹⁵. When individual trials are ordered, witnesses (often children) must give their evidence without referring to their knowledge of offences committed against anyone else, even where this information would help the jury to understand matters essential to the narrative of events or explain, for example, the complainant’s fear of the accused¹⁹⁶. 'Witnesses swear an oath to tell … the whole truth, yet must stick to a legally constrained script of evidence'¹⁹⁷.' The jury does not hear the instructions given to the complainant and may draw inferences about their truthfulness from any resulting awkwardness. They may also draw inappropriate inferences from gaps in the evidence presented¹⁹⁸.

The fact that only a small proportion of childhood sexual assault cases will result in prosecution has been blamed, at least partially, on these kinds of structures within the law that continue to prejudice the outcomes of sexual offence cases. The artificial separation of court hearings involving multiple victims of the same offender, often a family member, coupled with the continued and disproportionate use of corroboration warnings in cases involving adult survivors of childhood sexual assault, continue to preclude a just response to victims, and, for some writers and researchers, are akin to 'court licensed abuse'¹⁹⁹.

Victoria has enacted legislation²⁰⁰ creating a presumption that allegations presented to the court together should be tried together. Further amendments²⁰¹ altered the rule that evidence would be inadmissible if there was a possibility of witnesses concocting evidence²⁰².

As a consequence of these amendments, where there is a possibility of concoction, evidence still will be admissible provided its admission is in the interests of justice. The jury then decides on the credibility of the evidence. Evaluation found joint trials had become more common since the introduction of the provision, 'although there will still be some circumstances where the counts will be separated in order to avoid the possibility of prejudice'²⁰³. It appears that since the amendment, 'the Court starts from the presumption that the matters will be heard together'²⁰⁴. The Council proposes these amendments as worthy of consideration across other jurisdictions in Australia.

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Guiding principles

Research shows that traditional stereotypes about the nature of sexual offences have historically been reflected within every stage of the criminal justice process²⁰⁵. 'The fundamental causes of the high attrition rates and low conviction rates which distinguish this area of the law lie primarily in the assumptions, images and values that shape the enforcement processes in general and the reception of evidence in particular²⁰⁶.' In responding to this context, a United Nations’ Expert Meeting has emphasised the need for clear legislative goals and the adoption of guiding principles by which legislation can be implemented²⁰⁷.

Guiding principles will not be sufficient for the successful implementation of reforms: '[t]he last 20 years of research [tell] us … that new statute law, policies and protocols must be accompanied by implementation processes which expand and deepen understandings of the realities of rape²⁰⁸.' Without these changes, cases which do not fit a narrow template dictated by myths and stereotypes will continue to be filtered out of the criminal justice system, resulting in further trauma and injustice to women²⁰⁹.

Guiding principles nonetheless have a role to play in achieving improved outcomes. It is highly desirable that they recognise the overrepresentation of especially vulnerable members of the community among victims (for example, Aboriginal and Torres Strait Islander women²¹⁰ and women with intellectual disabilities)²¹¹.

It is also important that legislation explicitly acknowledges sexual offences as constituting domestic and family violence. Recent Australian research drawing on the best evidence available estimates that one in 10 Australian women will experience partner rape in their lifetimes²¹². However, the criminal justice system responds least effectively to sexual offences committed against women by male partners²¹³.

Guiding principles for the interpretation of the law relating to sexual offences²¹⁴ should also be considered for legislation which sets out the rules of evidence in each jurisdiction²¹⁵.

Key reform initiatives in domestic and family violence

A suite of policy and legislative reforms across State and Territory jurisdictions have been introduced in recent years to enhance domestic and family violence victims’ access to justice and improve the accountability of offenders.

Co-ordinated Inter-Agency System Responses

In 1998, the Australian Capital Territory adopted the Family Violence Intervention Program, a coordinated criminal justice and community response to criminal family violence matters²¹⁶. The program provides:

• immediate access to victim support that continues throughout the criminal justice process;
• pro-prosecution of criminal family violence cases where there is sufficient evidence, and where the prosecution is in the public interest;
• coordination and case management of criminal family violence cases;
• rehabilitation programs for perpetrators.

The Tasmanian Government’s response to family violence, Safe at Home, builds on the Family Violence Intervention Program and provides a highly coordinated and integrated service response to victims. Safe at Home is facilitated by the Tasmanian Family Violence Act 2004. The Act represents a two-pronged criminal justice response that provides for criminal justice sanctions and civil protection orders, and removes decision-making from the victim, placing it entirely in the hands of the state.

Safe at Home legislation provides police with a considerable extension of their powers to detain a person without charge. Another key feature of the Safe at Home model is that it allows families to stay within the home while the perpetrators are removed. This capacity also exists in other State and Territory civil legislation, as discussed below.

Other improvements in jurisdictions have included:

• preambles within legislation that acknowledge the social realities and dynamics of violence, including the gendered nature of domestic and family violence;
• more inclusive definitions of experiences of violence and types of relationships, such as carers who can be regarded as being like a family member. Inclusions such as these are important because women with disabilities experience violence at higher rates and more frequently than other women²¹⁷.

Council’s consultations, and the available evidence base, suggest that in some jurisdictions, concerns remain that the criminal law is under-utilised in cases of domestic and family violence^{218 219} .

The limited use of the criminal law may serve to undermine the effectiveness of the formalised procedures, policies and laws. It is important to recognise that criminal law should be a practical option in the community's response to domestic and family violence and should work in conjunction with the civil law reform in different statutory regimes. The factors that operate to 'filter out' the use of the criminal law should be recognised and addressed²²⁰.

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Increasing the application of the criminal law

Efforts to increase the application of the criminal law have centred on 'pro-arrest' and 'no-drop' prosecution policies that remove or limit police and judicial discretion in decision-making. However, these policies have resulted in a number of unintended consequences, including the arrest of both parties after police intervention²²¹, commonly referred to as 'dual arrests'. In these cases, the law is ostensibly applied without:

• due consideration and investigation of the motivation for the violent actions (domination and control versus self-defence);
• the impact of the actions;
• the consequences of the action for the other person’s physical, emotional and social wellbeing.

In effect, dual arrests are frequently re-victimising women who are the victims of domestic and family violence.

Research from North America²²² and anecdotal evidence within Australia²²³ indicate significant variance in the rates of dual arrests within jurisdictions that often have similar policies. In some cases, women constitute about one quarter of the people arrested, which is much greater than the percentage that research suggests might be reasonably expected²²⁴. More information is required about the way in which pro-arrest policies and associated legislation are applied, with a view to ensuring that victims of violence are not being re-victimised as a result of these policies.

Domestic and family violence fatality review processes

Victoria has established, and New South Wales is in the process of establishing, domestic and family violence fatality review processes. The purpose of these processes is to systematically review the circumstances of the fatality and the system’s response to victims prior to their deaths; to use the review results to improve the system’s response and consequently, reduce such fatalities.

Each year in Australia, 70 to 80 intimate partner homicides occur^{225 226} . The majority (75 per cent) of these cases involved men killing women, and 84 per cent involved women as victims²²⁷. Australian parents also kill 25 children, on average, each year, with 63 per cent of the child killers being the child’s fathers. Where known, the most prevalent motives were 'domestic altercation' (21 per cent) and family separation (9 per cent)²²⁸.

Experience in jurisdictions within the United States of America and Canada indicate that domestic and family violence homicides are preventable through system coordination (communication, collaboration and cooperation across justice and social service agencies) and systematic monitoring and review of policy and procedures²²⁹. The Santa Clara Domestic Violence Death Review Board, for example, reported a 94 per cent decrease in domestic and family violence homicides (from 51 such homicides to three) over the 10 years from 1997 to 2007²³⁰. Establishing and building upon the homicide/fatality review processes across Australia to review deaths that result from domestic and family violence would enhance our understanding of the primary risk factors leading to these deaths, improve system and service responses and inform policy designed to reduce rates of domestic-related homicide.

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Specialist approaches to sexual assault and domestic and family violence

The quality of the experience of sexual assault victims in the criminal justice system is closely associated with the degree to which services, the police, legal professionals and courts understand the social context in which sexual offences occur. The establishment of specialist lists and courts should be considered as important mechanisms for improving the treatment of sexual assault victims before the courts²³¹. In a specialised environment, judges, court staff and legal counsel are said to be:

• more responsive to the need for victims to be treated in a dignified and sensitive manner;
• more willing to apply laws that have increasingly sought to protect victims from being unfairly cross-examined about their sexual histories and character²³²;
• more likely to allow the use of alternative methods for victims to give their evidence;
• more likely to be presided over by judges who consistently direct juries in accordance with legislative reforms that have redefined consent and its application.

Where it is used, specialisation has led to 'significant changes in practice' and 'criminal justice culture'; higher levels of complainant participation and satisfaction and increased public confidence in the criminal justice system²³³.

Various jurisdictions have introduced specialist domestic and family violence courts or divisions to:

• improve integration, coordination and safety for victims of domestic and family violence in contact with the criminal justice system;
• engage in active case-tracking of criminal family violence matters;
• ensure that the magistrates assigned and the police prosecutors undertaking domestic and family violence matters receive specialist training and are chosen for their expertise or experience in working with victims/survivors of domestic and family violence;
• allow magistrates to hear related matters at the same time as they hear the application for the protection orders (for example, Family Law Act contact issues that require review after an episode of violence or after the protection order has been granted). They might also hear an application for victim’s assistance or financial assistance;
• recognise the different needs of those subjected to domestic and family violence and perpetrators;
• ensure that perpetrators who are charged with domestic and family violence are held accountable for their actions.

The establishment of specialist domestic and family violence courts recognises that problems caused by domestic violence are multiple and complex; and that addressing the issue involves services and intervention by multiple agencies to provide a vast range of culturally appropriate services to victims, not merely an appropriate criminal justice response.

Evaluations have found that successful domestic and family violence courts produce high levels of satisfaction in complainants and perceptions of success from professional stakeholders. However, they sometimes generate limited evidence of improved conviction, penalty, reporting and withdrawal rates²³⁴. Complainant participation is essential to effective prosecution, and procedural justice is more important to complainants’ assessment of their experience than the outcome. It is critical to identify and implement specialist court processes that also maximise the chances of successful reporting, withdrawal and conviction outcomes. Enhanced complainant confidence and satisfaction is essential to achieving these long-term goals.

Both specialisation and fast tracking must be augmented with appropriate support, training, adherence to practice goals, integration of service provision and adequate funding. Successful implementation also requires funding and support for essential services such as quality, reliable closed circuit television facilities and timely forensic evidence processing.

Specialised domestic and family violence courts in Australia and elsewhere often include an element of therapeutic justice, such as diversion to treatment rather than imprisonment. Since sexual violence commonly occurs with other forms of domestic and family violence, the relationship between these specialist jurisdictions must be clearly established.

Successful and just outcomes for women who experience violence require more than specialisation. Specialist prosecution is a key factor in the success of specialist jurisdictions, with high-quality investigation, case-building and brief-preparation increasing the likelihood of conviction, and often facilitating guilty pleas. An integrated multi-agency approach, in which the court becomes a central point for service coordination, is also important.

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Judicial officers, law enforcement personnel and other professionals within the legal system have appropriate knowledge and expertise

The need for ensuring education and professional development for judicial officers, police and other professionals working within the legal system is increasingly being recognised by the professions themselves.

For example, family violence was the subject of a national two-day conference in 2006 organised by the Australian Institute of Judicial Administration²³⁵. More recently, the National Judicial College of Australia has undertaken a gender audit of its training and education programs. The Australasian Policing Strategy for the Prevention and Reduction of Family Violence is another example of sector initiated reform, and includes as one of its ten priorities for action, education and training aimed at improving investigation and management of domestic and family violence by policing organisations.

The attitudes and responsiveness of police and the judiciary are central to ensuring that responses to violence against women are just. Through education and training, police are more likely to pursue matters. Similarly, judges, court staff and legal counsel can be more responsive to the needs of victims/survivors so that they can be treated in a dignified and sensitive manner. They are more willing to apply laws that have progressively sought to protect victims from being unfairly cross-examined about their sexual histories and character, and are more likely to allow the use of alternative methods for victims to give evidence. Cases are more likely to be presided over by judges who consistently direct juries in accordance with legislative reforms that have re-defined what consent means and how it should be applied, and which have abolished the requirement for corroboration.

Ongoing, thorough and consistent training in the areas of domestic and family violence and sexual assault for judicial officers, police and other professionals working within the legal system, is critical to ensuring legal outcomes that are just, and that are perceived to be just.

Strategies for Action

To improve the law’s capacity to provide just responses to women and children, the Plan of Action prioritises five key strategy areas:

4.1 Ensure accessible and equitable justice for women and their children.

4.2 Ensure just civil remedies operate in parallel with criminal law and prioritise safety.

4.3 Ensure excellence in legal responses to women and their children.

4.4 Ensure judicial officers, law enforcement personnel and other professionals within the legal system have appropriate knowledge and expertise.

4.5 Build the evidence base.

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115. Draft Articles on Responsibility of States for Internationally Wrongful Acts, as contained in Report of the International Law Commission on the Work of its 53rd Session, 2000.
116. CEDAW General Comment 19: Violence against Women, as contained in UN Doc A/47/38 (1992). The Beijing Declaration and Platform for Action adopted by the Beijing Fourth World Conference on Women reaffirmed this principle: Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995, UN GAOR, Annex I, 1995.
117. Amnesty International, 2004.
118. The Council uses the authority it was given by the 2,000 or more people across Australia who contributed to the Plan of Action through consultations, to identify the priority issues of national relevance and concern at this time. These are addressed under the following themes:
     • Ensuring accessible and equitable justice for women and their children
     • Ensuring the availability of just civil remedies in parallel with criminal penalties
     • Ensuring excellence in legal responses to women and their children
     • Ensuring judicial officers, law enforcement personnel and other professionals within the legal system have appropriate knowledge and expertise.
     There are points at which these principles might apply equally to sexual assault and domestic and family violence and, therefore, their exploration is more meaningful if considered together. At the same time, some issues require separate consideration. This is largely the result of the different historical and political paths that have characterised the contexts in which reform agendas have been set across each sector, and how responsive governments and the legal system have been to their demands for reform.
119. Australian Law Reform Commission, 1994.
120. See, for example, Indigenous Deaths in Custody: Report prepared for Aboriginal and Torres Strait Islander Commission, 1996; Memmott et al 2001; Aboriginal and Torres Strait Islander Women’s Taskforce on Violence Report, 2000.
121. New South Wales Migrant Resource Centres and Immigrant Women’s Speakout Forum, 2008.
122. Division 1.5 Special provisions relating to family violence.
123. The most recent amendments to the Migration Regulations took effect on 15th October 2007.
124. NSW Women’s Legal Service, 2007.
125. Immigrant Women’s Domestic Violence Service, 2006.
126. CASA House, 1997.
127. Ibid.
128. Each State and Territory has slightly different terminology (protection orders; restraining orders; apprehended violence orders; intervention orders; injunctions).
129. Langman, C. 2008.
130. ACT, Tasmania, Northern Territory, New South Wales and Victoria.
131. For example, Tasmania and Victoria enable ouster/exclusion orders to be part of police issued protective orders; Victoria requires that a court making a Family Violence Intervention Order (including an interim FVIO) must also consider excluding the respondent from the home; and the Northern Territory legislation contains an express presumption that the protection of the aggrieved is best achieved by them remaining in the home, excluding the respondent.
132. Department of Families, Housing, Community Services and Indigenous Affairs, 2008.
133. In the case of Queensland and Victoria, for example, the ‘ouster /exclusion order’ provisions are linked with the relevant tenancy law to enable relevant changes to tenancy agreements at the time an ouster order is made.
134. Department of Families, Housing, Community Services and Indigenous Affairs, 2008.
135. Intimate partner violence frequently escalates after separation, and separation is a high risk factor for domestic homicide. Wallace, A. 1986; Wilson, M. and Daly, M. 1993; Hotton, T. 2001; Johnson, H. and Hotton, T. 2003.
136. See the Standing Committee on Law and Justice, 2006; where 60 per cent of couples cited family violence as a contributing factor and 30 per cent describing it as a major reason why their relationship ended.
137. Humphreys, C. and Thiara, R.K. 2003.
138. Mouzos, J. and Makkai, T. 2004.
139. Johnson, H. 1998.
140. Wilson, M. and Daly, M. 1992.
141. Dearden, J. and Jones, W. 2008.
142. Mouzos, J. 2005.
143. Johnson, C. 2005.
144. Richards, L. 2004.
145. Humphreys, C. 2008; Magen, R. 1999; Zannettino, L. 2006; Irwin, J., Waugh, F. and Wilkinson, M. 2002.
146. A review of 240 case files drawn from the Family Court of Australia and Federal Magistrates Court in 2003 found that in the general litigant sample 22 per cent contained allegations of child abuse, though in the judicially determined sample this rose to 46.4 per cent. Most allegations of family violence occurred alongside allegations of child abuse. Moloney, L. Smyth, B. Weston, B., Richarson, N. Qu, L. and Gray, M. 2007.
147. Moloney, L. Smyth, B. Weston, B. Richarson, N. Qu, L. and Gray, M. 2007.
     See also Standing Committee on Law and Justice, 2006.
148. While it is early in the implementation of the Family Law Amendment (Parental Responsibility) Act 2006 to make this statement, the major consultation across the sector (see p.11) showed unanimous concern about the impact the Act was already having on women and children living with domestic and family violence.
149. Family Law Amendment (Parental Responsibility) Act 2006, section 60CC. Additional considerations are noted in section 60CC (3).
150. Section 60(B) of the Family Law Act (Commonwealth), 1975.
151. Kaye, M. Stubbs, J. and Tolmie, J. 2003; McInnes, E. 2007; Kaspiew, R. 2005; Laing, L. 2008; Rhoades, H. Graycar, R. and Harrison, M. 2000; Dewar, J. and Parker, S. 1999.
152. Former Chief Justice Nicholson states: –‘an assumption that a relationship with both natural parents is invariably in the best interests of the child…is not an assumption based upon established research, but rather an emotional assumption that has been assiduously fed by lobby groups to the point where the Federal Parliament has amended the Family Law Act in such a way as to give legislative force to it and, I believe, has therefore placed many of our children in much greater danger than was the case previously.’ Nicholson, A. 2007.
153. This is not to suggest that time with a child’s parent even where there is a history of violence is impossible. In some (but not all) cases time which is safe can be negotiated. However, where there is a history of violence the day by day negotiations required for shared parental responsibility provide too many opportunities for continuing conflict, abuse and violence which are highly damaging to children as well as their mothers - see for discussion of children’s on-going distress. Bream, V. and Buchanan, A. 2003.
154. Family Law Amendment (Parental Responsibility) Act 2006, section 60CC(4)(c).
155. Bromfield, L. M., & Holzer, P. J. 2008.
156. This definition may also not pick up on one of the most heavily weighted risk factors: obsessive jealousy and highly controlling behaviour. The evaluation of serious domestic violence offenders in Cardiff suggests that ‘perpetrator is jealous or controlling’ is a particularly important risk factor, as its presence makes 11 of the 14 other risk factors significantly more likely to occur (Robinson, 2004, p. 3). One analysis of homicide and intimate partner violence showed 26 per cent of men were over-possessive and jealous (Dobash et al, 2005), while another found that 67 per cent of homicide cases (14 of 21 cases) involved jealousy and controlling behaviour (Richards, 2003). Cited in Humphreys C. 2007.
157. Langman, C. 2008.
158. Victorian Family Violence Protection Act 2008, sections 89-93. (Particularly section 93, Conditions – Children’s Arrangements.)
159. Family Law Amendment (Parental Responsibility) Act 2006, section 117AB. This is a particular problem when women may have limited corroborative evidence of the violence or child abuse.
160. Family Law Amendment (Parental Responsibility) Act 2006, section 61DA(2).
161. Family Law Amendment (Parental Responsibility) Act 2006, section 60CC(4)(c).
162. Women most vulnerable to post-separation violence are those who suffer more serious abuse prior to separation. This included both physical violence and serious psychological abuse. Risk assessments based on reviews of homicide data also indicate that past abuse is the most useful indicator of future abusive behaviour.
163. See Brown, T. and Alexander, R. 2007; Higgins, D. 2007.
164. Moloney, L. Smyth, B. Weston, B. Richarson, N. Qu, L. and Gray, M. 2007; Shea Hart, A. and Bagshaw, D. 2008.
165. Higgins, D. 2007.
166. Ibid.
167. Kelly, F. and Fehlberg, B. 2002.
168. Braaf, R. and Sneddon, C. 2007.
169. Family Law Amendment (Parental Responsibility) Act 2006, section 60I.
170. Bailey, A. and Bickerdyke, A. 2005.
171. The Council notes the advice of the Attorney-General’s Department that the Attorney-General announced in 2008 that all Family Dispute Resolution practitioners will be required to demonstrate competency in identifying and managing complex family violence issues in order to retain accreditation, from 1 July 2009.
172. Braaf, R. and Sneddon, C. 2007; Bailey, A. and Bickerdyke, A. 2005.
173. In a presentation to the National Council’s Judicial Roundtable Professor Kathy Daly explained the difference in terms of the key relationships in the justice process, with the offender being central in each case. In therapeutic jurisprudence the key relationship is between the judge/magistrate and the offender; in the restorative justice the key relationship is between the offender and the victim; and in Indigenous justice, the key relationship is between the offender and the elders and, in some cases, a magistrate/judge.
174. See, for example, Braithwaite, J. and Daly, K. 1994; Coker, D. 1999, 2001, 2002; Daly, K. 2002, 2006; Daly, K. and Curtis-Fawley, S. 2006; Hudson, B. 1998, 2002; Koss, M. 2000; Koss, M. Bachar, K. Hopkins, C. Quince Hopkins, C. and Carlson, C. 2004; Morris, A. 2002; Pennell, J. and Burford, G. 2002; Pennell, J. and Anderson, G. 2005.
175. Walker, L. 1979.
176. Stubbs, J. 1995, 1997, 2002, 2003; Coker, D. 1999, 2001, 2002; Busch, R. 2002 and Cossins, A. 2008.
177. Aboriginal and Torres Strait Islander Women’s Taskforce on Violence (2000); Nancarrow, H. 2006. As discussed in Nancarrow 2006, Indigenous women also report that criminal justice system intervention results in more, not less violence for Indigenous women and that restorative justice is seen as better able to meet their justice objectives. At the special consultation between the Hon. Tanya Plibersek MP, Minister for the Status of Women, and Aboriginal and Torres Strait Islander representatives in February 2009, participants also raised concerns about the consistency and fairness of sentences given to perpetrators of violence against Indigenous women and their children.
178. Nancarrow, H. 2006; Behrendt, L. 2002 and Kelly, L. 2002.
179. Taylor, N. 2007.
180. Gray, J.M. 2006.
181. Stubbs, J. 2003.
182. These definitions move toward implementing the United Nation’s recommended definition of consent as ‘unequivocal and voluntary agreement’. United Nations Division for the Advancement of Women, Good practices in legislation on violence against women (2008), 28. Three different approaches are considered at Criminal Justice Sexual Offences Taskforce, Responding to sexual assault: the way forward (2005), 35
183. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code Chapter 5: Sexual Offences Against the Person (1999), 43.
184. Victorian Law Reform Commission, 2004.
185. Ibid.
186. Ibid.
187. nited Nations Division for the Advancement of Women, 2008.
188. Together with New Zealand and the United Kingdom, among others.
189. This approach was also favoured in Criminal Justice Sexual Offences Taskforce, 2005.
190. The UN Expert Meeting has recommended requiring ‘proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting’. United Nations Division for the Advancement of Women, 2008.
191. Victorian Law Reform Commission, 2004. This provision prevents the defence presenting an argument that the accused knew that the complainant was, for example, asleep, and yet the accused honestly believed the complainant was consenting.
192. Ibid.
193. Chapman, L. 2006.
194. Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, 2005. See De Jesus v R (1986) 71 ALJR 1 and Hoch v R (1988) 165 CLR 292.
195. Victorian Law Reform Commission 2001, 132; Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, 2005; Chapman, L. 2006.
196. Taylor, C. 2004.
197. Ibid.
198. Taylor, N. 2007.
199. Taylor, C. 2004.
200. Crimes Act 1958 (Victoria), section 372(3AA)-372(AC).
201. Crimes Act 1958 (Victoria), section 398A.
202. Victorian Law Reform Commission, 2004. The evidence became admissible ‘even if there is a reasonable explanation of the facts which is consistent with the innocence of the accused person.’
203. Victorian Law Reform Commission, 2001. On propensity evidence, see Victorian Law Reform Commission, 2004.
204. Victorian Law Reform Commission, 2004. Despite this, submissions to the Commission described severance that was believed to be inappropriate, and the Commission’s research revealed some cases in which the logic behind decisions to order separate trials was difficult to grasp.
205. Stubbs, J. 2003; Heenan, M. and Murray, S. 2006; Temkin, J. and Krahe, B. 2008.
206. Lacey, N. 2001. Recent research in the UK and in Australia suggests that attitudinal change is still needed. Amnesty International, 2005; Taylor, N. 2007; VicHealth, 2006.
207. United Nations Division for the Advancement of Women, 2008.
208. Kelly, L. 2005.
209. Campbell, R. Wasco, S.M. Ahrens, C.F. Sefl, T. and Barnes, H.E. 2001.
210. Mouzos, J. and Makkai, T. 2004.
211. Lievore, D. 2005a.
212. Parkinson, D. and Cowan, S. 2008.
213. Heenan, M. 2004. Victorian research shows that where the accused was a current or former partner, fewer charges were laid, and more were withdrawn, while police continued to express disbelief that sexual assault by an intimate partner was possible. See Heenan, M. and Murray, S. 2006 and Victorian Law Reform Commission, 2004.
214. The current Victorian ‘Guiding Principles’ for the interpretation of the law relating to sexual offences represent one current good practice model which could be further refined.
215. Victorian Law Reform Commission, 2004 recommended: ‘A similar interpretative clause should be included in the Evidence Act 1958 to apply to provisions relevant to sexual offence trials including Part 2 Division IIA, sections 37A to 37C and sections 39 to 41.’
216. Holder, R. and Mayo, N. 2003.
217. Healey, L. 2008.
218. Douglas, H. and Godden, L. 2002.
219. Douglas, H. 2008.
220. Ibid.
221. Braaf, R. and Sneddon, C. 2007.
222. Ibid.
223. National Council consultations in Tasmania, Victoria, the Australian Capital Territory and the Northern Territory.
224. Access Economics, 2004. Part 1, p. 16 and Part 2, p. 7 for discussion on the prevalence of male victims of domestic and family violence.
225. Mouzos, J. and Rushforth, C. 2003.
226. Australian Institute of Criminology, 1989-90 to 2006-07.
227. Mouzos, J and Rushforth, C 2003.
228. Ibid.
229. Taylor, B. 2008.
230. Ibid.
231. Stewart, J. 2005.
232. Victorian Law Reform Commission, 2004.
233. Holder, R. and Mayo, K. 2001.
234. West Australian Police Service, 2002.
235. Now named the Australasian Institute of Judicial Administration.