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The majority of recommendations to improve justice responses to sexual violence have been welcomed, but opinions are split on whether independent legal advisers should have a place in the courtroom.
In its 64 recommendations, the Australian Law Reform Commission (ALRC) has provided a roadmap to remove barriers, strengthen accountability, and expand justice pathways so victim-survivors of sexual offences can trust and feel safe in the justice system.
The ALRC report, Inquiry into Justice Responses to Sexual Violence – which was tabled in Parliament last week – found the justice system has failed to support victim-survivors and hold offenders to account.
“Overwhelmingly, people who have experienced sexual violence do not engage with the justice system for understandable reasons, including fear, lack of trust or lack of information and support,” Justice Mordy Bromberg, president of the ALRC, said in a statement.
“The community rightly expects, and the rule of law requires, a justice system that is safe and accessible, yet we have heard time and again from people who do not trust the system enough to engage in the first place, or who were let down when they did.”
Despite one in five women and one in 16 men having experienced sexual violence since the age of 15, fewer than one in 10 incidents are reported to police. Then, in at least some jurisdictions, between 75 and 85 per cent of reports to police do not proceed to a charge.
Of the estimated 737,000 women who experienced sexual assault in the last 10 years, just 8.3 per cent contacted police about the most recent incident. Further, only 27 per cent sought formal support, either from health professionals, legal services, or police.
The ALRC recommendations include reviews and oversight into police practices, an independent taskforce to review investigations, nationally consistent data frameworks, further training for police and legal professionals, and improved court processes and practices.
Defence lawyers would also receive education into myths and misconceptions about trauma, memory and responsive behaviour, as well as information on grooming behaviour and coercive control.
By implementing the recommendations, Justice Bromberg said the government could reduce retraumatisation and provide victim-survivors with options that meet individual “needs and interests”.
Lawyer and founder of the Make Police Investigate Campaign, Karen Iles, said the recommendations would have a “tangible and positive impact” on the experiences of victim-survivors.
Iles particularly welcomed recommendations to provide independent legal services for every person who has experienced sexual violence.
“Victim-survivors must be supported to take this important step – providing them with independent lawyers and other supports is exactly what is needed,” Illes said.
Under these recommendations, the legal adviser would provide the victim-survivor with advice and represent complainants in court when applications are made to subpoena or inspect materials that may contain their personal, sensitive or confidential information.
The ALRC also suggested that the Commonwealth, states, and territories amend relevant legislation to provide independent legal advisers with standing to appear in court on behalf of the victim-survivors.
“Independent legal advice and representation gives complainants access to a lawyer who is knowledgeable about the criminal justice system and focused on a complainant’s rights and interests.
“It is crucial that the advice given to complainants is accurate, practical and informed. This measure does not change or scale back the role of the prosecutor but rather preserves and respects it,” the ALRC set out.
While many of the ALRC’s recommendations were welcomed by the Australian Lawyers Alliance, spokesperson Greg Barns SC said he is concerned an independent lawyer “could confuse juries”.
“It is important to note there are already limitations on the questioning of complainants contained in legislation and ethical rules, and ample powers for judges to intervene in relation to inappropriate questioning,” Barns said.
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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