Advocates have welcomed recommendations from a report into the criminal justice system’s treatment of victims of sexual violence as “incredibly symbolic”, but others say the commission’s failure to suggest radical change was a ‘missed opportunity’.
The Albanese government released the Australian Law Reform Commission’s report on justice responses to sexual violence on Thursday, while announcing a $21m package to strengthen support services.
The report, which made 64 recommendations, found “systemic” barriers prevented victim-survivors from accessing justice, with 92% of women choosing not to go to the police after they were sexually assaulted.
The commission recommended every person who has experienced sexual violence should receive legal advice to help them decide whether to engage with the justice system.
If they choose to do so, legal advisers should provide support throughout the entire process, including to represent complainants in court when applications are made to subpoena or inspect materials that may contain their personal, sensitive, or confidential information.
However, the review stopped short of recommending victims legal representation throughout a trial.
“At this stage, the ALRC does not consider there is a need to go further. Our recommended targeted representation is in the context of a broad model of legal advice. It is important to promote and protect the complainant’s rights while protecting the accused person’s right to a fair trial,” the report reads.
In Australia’s adversarial system, there is limited ability for complainants to have their own legal counsel. The system consists of two sides – the crown, or prosecutor, and the defence – with a sexual assault complainant categorised as a witness.
New South Wales and Queensland allow sexual assault complainants to be legally represented when challenging defence applications for the disclosure of their counselling notes and other confidential records before the actual criminal trial begins.
Sarah Rosenberg, a victim-survivor and co-founder of online resource With You We Can, welcomed the commission’s recommendation to extend a victim-survivor’s access to their lawyer in the courtroom but noted it was up to each jurisdiction to adopt it.
“What’s the point of only having your armour for a third of the battle? Victims are most vulnerable in the courtroom [when they’re] on their own and don’t have anyone to advocate for their interests,” she said.
“It is well and truly time that Australia catches up with the rest of the world and I think [these recommendations] have done just that.”
Rosenberg said the recommendation was “incredibly symbolic” and a “huge shift to viewing victims as valued participants upon whom the criminal justice system relies to be able to prosecute crime”.
Reflecting on her own case, Rosenberg said while victim-survivors often expected to be retraumatised and treated with a lack of respect during a case, they should not be denied appropriate legal advice from an independent lawyer.
“Everyone should be concerned that our justice system is not fit for purpose,” she said.
In an Australian first, leading victims’ advocate Michael O’Connell, in his role as South Australia’s inaugural Commissioner for Victims’ Rights, was given the power to appoint counsel to assist complainants during criminal proceedings and intervene in cases where their privacy may become compromised.
O’Connell said the commission’s decision not to take recommend more sweeping changes was a “missed opportunity”.
“It’s disappointing that the commission was not prepared to recommend radical changes, but at least the incremental change is consistent with the evolution of victims rights,” he said. “It shifts the operation of our justice system in the right direction.”
O’Connell had been calling for complainants to be allowed their own lawyers throughout the entire legal process to “resolve the underlying inequality in the system”.
“There are currently three interests in the administration of justice. That is, the state, the accused and the victim,” O’Connell said.
“It is fundamentally unfair that the interests of the state are represented by the prosecutor and the accused’s interests are represented by legal counsel but the person who did not choose to become a victim has no genuine standing, no equal standing in our criminal justice system.”
At the report’s release, the women’s minister, Katy Gallagher, acknowledged the justice system can add to the trauma of many victim-survivors.
The government is now considering its response to the report and will need to work with the states and territories.
Three specialist trauma-informed sexual assault legal services in Victoria, WA, and the ACT will receive $19.6m over three years to extend their programs.
This will include trialling new non-legal services recommended by the commission and culturally safe Justice System Navigators, who support people to access any chosen justice pathway.
More than half a million dollars will go to bringing on academics to look into an independent complaints system to seek review of police decisions not to pursue charges and scrutinise supports provided during the police investigation phase.
The commission will also receive $1.2m over two years to extend an advisory group recommending how to implement its report.
“We will continue to work hand in hand with victim-survivors, advocates, and states and territories on the next steps from this report, but this announcement also increases access to services right now,” Gallagher said, “ensuring women can access more support when they need it”.
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). and the National Sexual Abuse and Redress Support Service is at 1800 211 028. In the UK, Rape Crisis offers support on 0808 500 2222. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
