Improving the Justice System Response to Sexual Offences: Report (html)

3. A community that stands against sexual violence

Overview

• Sexual violence is a social problem that calls for a community-wide response. People who experience sexual violence should not have to suffer in silence and on their own—too many do.

• Taking collective responsibility for sexual violence means that everyone should be able to identify it and respond appropriately when it happens.

• Confused or mistaken views about sexual violence are widespread. Education is needed to improve the public’s understanding of what sexual violence is, when and how it happens, and how to respond if someone discloses sexual violence.

• A community response to sexual violence requires stronger obligations on organisations like clubs, schools, employers and local government. There should be penalties for failure to comply with the existing duty to take steps to eliminate sexual harassment.

• We also need a new duty to take steps to eliminate sexual violence.

Sexual violence requires a community response

3.1 Sexual violence is not caused by a handful of wayward people on society’s fringe.^[1] It is endemic and ‘systemic’, which means it is supported by ‘policies, practices and attitudes that are entrenched’ in society.^[2]

3.2 The effects of sexual violence can be devastating and lasting. Often, they are experienced alone and in silence. To reduce sexual violence, the community must take more responsibility for it. We need to challenge cultures where sexual violence thrives.

3.3 This requires action to promote gender equality.^[3] Gender inequality contributes to sexual violence and makes it worse.^[4] For example, it produces economic inequality that prevents women from leaving abusive relationships.^[5] It can help make male sexual aggression and treating women as sex objects seem normal.^[6] Work is already being done to advance gender equality nationally and in Victoria.^[7]

3.4 Work is also under way in Victoria to reduce family violence.^[8] Some state agencies are investigating whether family violence initiatives could work for sexual violence outside the family.^[9] The sexual assault strategy being developed by the Victorian Government (see Chapter 1) will build on this work.

3.5 In this inquiry, people told us about the importance of ‘primary prevention’ initiatives.^[10] The Royal Commission into Family Violence and the Royal Commission into Institutional Responses to Child Sexual Abuse also highlighted the urgent need to support primary prevention programs.^[11] The Commission endorses their recommendations about primary prevention.

3.6 However, this inquiry deals with the response of the justice system to sexual violence, rather than on the ways that sexual violence can be prevented in the first place. In this chapter we focus on building community knowledge about sexual violence. This is important for overcoming barriers to reporting sexual violence and making sure victim survivors receive the support they need, which is a focus of our terms of reference.

3.7 A society that understands sexual violence is better able to support people who experience it. It creates an environment where they can speak up and seek justice. We know that if victim survivors receive a supportive response when they first disclose sexual violence, they are more likely to take the next step to seek support or report to police.^[12]

3.8 If the community has a good understanding of sexual violence, that will also improve the justice system’s response to sexual offences. Jurors in sexual offence trials and people involved in criminal and other justice processes are all members of the community.^[13]

3.9 We can improve the community response to sexual violence by strengthening legal obligations on certain people and groups, including people who provide goods and services, clubs, industrial organisations, employers and education providers. They should support people who have experienced sexual violence and challenge cultures where sexual violence thrives.

Sexual violence is not well understood—this contributes to a culture that silences people who experience it

3.10 Many people who experience sexual violence do not speak about it or get the help they need. The nationwide Personal Safety Survey found that only half of all women who had been assaulted reached out for advice or support after their most recent experience of sexual assault by a male.^[14]

3.11 Children find it very difficult to tell someone or get help if they have been sexually abused. Usually, they will take time before telling someone.^[15] Most do not disclose the abuse at all until they are adults.^[16]

3.12 We discuss why most people do not report sexual violence to the police in Chapter 2. Reasons include feeling ashamed, and being afraid they will not be believed. It is clear that misconceptions about sexual violence are common and people receive mixed responses when they speak about it.^[17] Nationwide research indicates that:

• Around one-third of Australians believe that rape results from men being unable to control their need for sex.^[18]

• Almost one in five Australians (19 per cent) don’t know that non-consensual sex in marriage is against the law.^[19]

• In 2021, more than one in five Australians (22 per cent) disagreed with the statement that sexual assault allegations are almost always true. Another 18 per cent were neutral or did not know what they thought about the statement.^[20]

• This suggests that 40 per cent of adult Australians either do not know or do not believe that false allegations of sexual assault are very rare. Research indicates that no more than 5 per cent of all reported allegations are false.^[21]

3.13 We heard in this inquiry that many people who experience sexual violence, or want to help someone who has experienced it, do not know:

• what support services, including specialised sexual assault counselling and medical services, are available or how to access them

• what should be done to preserve evidence of a sexual assault

• the reporting options

• what is involved in making a police report, and in a police investigation, including how the police take statements

• what is involved in a criminal prosecution, including:

– the role of the victim in a prosecution (as a witness for the prosecution, not a party to the proceedings)

– how sexual offences are charged and sometimes withdrawn

– possible outcomes of a prosecution

• other justice options (for example, civil litigation and financial assistance for victims of crime) and how to access them.^[22]

3.14 Other inquiries and research also highlight these gaps in knowledge.^[23]

3.15 In Chapter 7 we discuss how best to provide the information that people need if they experience sexual violence.

There should be a commitment to public education about sexual violence

3.16 Since the rise of #MeToo, a powerful movement has grown demanding action to prevent sexual violence and support people who experience it. A call for action to improve the community’s knowledge about sexual violence was made repeatedly in this inquiry.^[24]

3.17 We hear this call. Its momentum should be harnessed.^[25] As has happened with family violence, the Victorian Government should commit to educating the community about sexual violence. Preventing sexual violence must become ‘everybody’s business’.^[26]

How should public education be delivered?

3.18 Community education about sexual violence should be ongoing and well resourced.^[27] It should be up to date and informed by evidence from the behavioural sciences about how to achieve lasting cultural change. The following things will be important:

• expanding support services before launching awareness raising education, so that when more people come forward seeking support, they can access it

• using community-level strategies as well as mass media

• tailoring communications for diverse audiences

• building on positive behaviour rather than focusing only on what is going wrong

• using peers and leaders to champion good behaviour.^[28]

3.19 In Chapter 7 we recommend a website that provides the public with information about sexual violence and the support and justice options available. In Chapter 22, we recommend a new Commission for Sexual Safety which could guide and coordinate the commitment to public education discussed here.

What information about sexual violence needs to become common knowledge?

3.20 Public education should achieve the following aims:

• People who experience sexual violence:

– should be able to identify and name the violence. Children and people with cognitive impairments should know what kinds of touching or behaviour is not appropriate.

– should know their rights under the law

– should know what their support and justice options are. Children and people with cognitive impairments should know where they can get reliable, safe help.

– should feel confident accessing support

– should feel confident exploring their justice options.^[31]

• People who experience sexual violence should be able to make informed choices about how they want to address the violence.^[32]

• People in the community should respond constructively to disclosures of sexual violence.^[33]

3.21 Identifying and naming the violence includes understanding image-based sexual abuse, harmful sexual behaviour among children, child abuse, and sexual violence within intimate partner relationships.^[34] It involves knowing that these are sexual offences.

3.22 Public education should challenge and correct common misconceptions about sexual violence (see Table 2).

Table 2: Common misconceptions about sexual violence

3.23 If the community knows these things, people who have experienced sexual violence will feel that they can speak up and seek support or justice if they want to. If people know what will happen when they report sexual violence, they may find it easier to take the first step.^[42] We discuss this and the information people need about their support and justice options in Chapter 7.

What groups and settings should be a focus?

Families and friends are often the first to know

3.24 When people disclose that they have been sexually assaulted, the first person they usually turn to is a family member or friend. The 2016 Personal Safety Survey indicated that seven out of 10 women who were sexually assaulted by a man and who reached out for support turned to a family member or friend.^[43]

3.25 Some family and friends can be ‘patently unsupportive and unhelpful’.^[44] But even those who want to be helpful may find it difficult. One study found that most ‘wanted to help but were … unsure about what to do or say’.^[45] They may not know about support or justice options. Some may share the common misconceptions about sexual violence.

3.26 One victim survivor told us that if the friend she spoke to after her assault had been ‘educated on how to respond’, she might not have ‘waited 15 years to get counselling’.^[46]

3.27 Many victim survivors who responded to our online form said that they spoke to family or friends about their assault but did not seek any other support or report the assault.^[47] This may be because their family and friends were not well informed about other support or justice options.

3.28 Depending on that first reaction, a person who has experienced sexual violence may not get the help they need and may not report to police. Because many people disclose sexual violence to family and friends, everyone needs to be educated on how to react in these circumstances.

Schools and higher education are important contexts

3.29 Schools and tertiary education providers are important settings for addressing sexual violence. Children and young people are more likely to experience sexual violence than older people. In 2018, the rate of police-recorded sexual assaults:

• against children aged 0–14 was nearly twice that of people in older age brackets^[48]

• against young people aged 15–19 years was higher than for any older age brackets.^[49]

3.30 Another reason to focus on educating young people is that their understanding of sexual violence has declined over time. In 2017, it was lower than all other age groups.^[50]

3.31 A victim survivor told us she had not recognised that what happened to her was sexual assault. She said the concept of ‘consent needs to be pushed harder in schools’. She thought this could have helped her recognise what happened and made her ‘more willing to go to someone straightaway’.^[51]

3.32 Another person who had been sexually assaulted stressed the importance of better education in schools:

3.33 In Victoria, the Respectful Relationships Education program takes a public health approach to family and sexual violence.^[53] The curriculum is based on building respectful, non-violent relationships.^[54]

3.34 For older students, education can cover issues such as what consent to sexual activity involves and how to find out if someone is consenting. It discusses navigating sexual encounters and alcohol, sexual offences, pornography, and sexting. It explains how to react if a friend or someone else discloses sexual violence or abuse.^[55]

3.35 Respectful Relationships Education can be tailored to the needs of different schools. It works best when implemented through a ‘whole of school’ approach.^[56] This is about making sure that respectful relationships are a part of all aspects of how schools are run. For example, there should be efforts to achieve gender equity in staff leadership roles. The ‘whole of school’ approach is effective at reducing gender-based and sexual violence—if it is well resourced and implemented.^[57]

3.36 The national anti-violence organisation, Our Watch is developing resources for higher education settings and working with Australian universities to develop a consistent approach.^[58] The need for better knowledge about sexual violence in higher education was highlighted by Dr Patrick Tidmarsh and Dr Gemma Hamilton and End Rape on Campus in our inquiry.^[59] The Australian Human Rights Commission and the Tertiary Education and Quality Standards Agency have found high rates of sexual violence in higher education and inadequate reporting and response mechanisms.^[60]

3.37 Other organisations are playing a role in educating children and young people about sexual violence. Victoria Legal Aid provides a training module for high school students: Sex, Young People, and the Law. Djirra discusses issues of sexual violence and consent in its Young Luv program for 13–18-year-olds.^[61]

3.38 We have identified opportunities to improve education for children and young people about sexual violence:

• Increase the take up of Respectful Relationships Education. The Royal Commission into Family Violence recommended that Respectful Relationships Education be introduced to all Victorian government schools.^[62] As of November 2020, 75 per cent of government schools had adopted it.^[63] A much lower percentage of Catholic and independent schools had adopted it.^[64]

• Increase the focus on sexual violence. There is a need for a greater focus on sexual violence, as the current emphasis is on family violence.^[65]

• Increase the focus on diverse needs and experiences. Young people with cognitive impairments and other disabilities are not receiving age-appropriate education about sexual violence.^[66] There is a need to tailor education about sexual violence for children and young people from diverse communities.^[67]

Health providers should be a focus

3.39 Health providers such as maternal and child health services and general practitioners are widely accessible. After family and friends, people who choose to disclose a sexual assault most often turn to a general practitioner or other health professional.^[68]

3.40 Without specific training and education, many health providers share ‘the systemic blindness we have as a community’ about sexual violence.^[69] Interactions with these providers can be ‘lost opportunities’ to identify sexual or family violence.^[70] When people do disclose violence, the response they receive is sometimes unhelpful.^[71]

3.41 Victim survivors who responded to our online form told us how important it is to receive good support from health professionals. A few said doctors need training in trauma-informed care and responding to sexual violence. One described disclosing a sexual assault to a health care professional who did not provide a referral to any sexual assault support services.

3.42 Another reported that, while her doctor was supportive, harmful comments by another doctor at the same practice had stopped her from talking about the experience. Another said she was asked ‘victim-blaming questions’ by doctors. A person we met with had a more positive experience. She said that after her sexual assault:

3.43 Given how accessible they are and how common it is for them to receive sexual violence disclosures, it important that health providers react constructively to disclosures of sexual violence.

3.44 Community organisations told us that all service providers should be responsive to the needs of diverse communities.^[73] This includes thinking about how to engage effectively with adolescents as a group distinct from children:

In my experience working with young people, usually the ages of 12 and above, I have commonly heard ‘I’m not a kid’ … Services aimed at children which have child friendly environments with children’s toys, games, etc can make young people feel that they don’t belong and the service is not aimed at them. Although child friendly environments are necessary, ensuring spaces which promote the inclusion of both children and young people can remove barriers to young people engaging.^[74]

3.45 Constructive responses from health providers will make it more likely that victim survivors get the help and access to justice that they need. Health professionals could be supported to access family and sexual violence training and professional development including under the MARAM framework (see Chapters 1 and 18).^[75] In Chapter 18, we recommend a review of guidance and training under family violence reforms to strengthen the profile of sexual violence. This would involve training all those who respond to family violence, including health and education providers.

3.46 Regulatory regimes can also protect against and respond to sexual violence. These include regulations and codes of conduct in areas such as mental health, aged care and disability services. In Chapter 4 we recommend a working group of regulators to develop and implement best practice in responding to sexual violence.

Employers and other groups must do more

The response to sexual harassment places a heavy burden on individuals

3.47 Sexual harassment is unwelcome sexual behaviour, such as a sexual advance or request for sexual favours, that is offensive, humiliating or intimidating.^[77] It is a form of sexual violence.^[78] It is not criminal but is banned by state and federal laws in many public settings, including workplaces, schools, tertiary education, clubs, industrial organisations and in the provision of goods and services.^[79]

3.48 People who have experienced sexual harassment may seek redress under either federal or state law, but not both.^[80] They can make a complaint to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) or the Australian Human Rights Commission (AHRC),^[81] which can investigate and try to resolve complaints.

3.49 An application alleging sexual harassment can also be made to the Victorian Civil and Administrative Tribunal (VCAT).^[82] VCAT can make orders for financial compensation or other forms of redress, such as a written apology.^[83]

3.50 If a complaint to the AHRC cannot be resolved, the person alleging harassment can take the matter to the Federal Court of Australia or the Federal Circuit Court for determination.

3.51 As with other forms of sexual violence, most people who experience sexual harassment do not report it.^[84] People who do report sexual harassment are often targeted for speaking up. As the Australian Human Rights Commission observed:

Almost one in five people who made a formal report or complaint were labelled as a troublemaker (19 per cent), were ostracised, victimised or ignored by colleagues

(18 per cent) or resigned (17 per cent).^[85]

Victoria has a systemic response to sexual harassment, but it does not go far enough

3.52 In Victoria there is an obligation under section 15 of the Equal Opportunity Act 2010 (Vic) to ‘take reasonable and proportionate measures’ to eliminate sexual harassment ‘as far as possible’. This is a positive duty to take active steps to eliminate sexual harassment. It applies to a range of people and groups in the public settings listed earlier, including workplaces, schools and clubs (see paragraph 3.47).^[86]

3.53 VEOHRC has identified six standards that organisations must meet to comply with the positive duty:

• knowledge—Organisations should understand their obligations under the Equal Opportunity Act and have up-to-date knowledge about sexual harassment. Leaders and supervisors should understand how to identify and respond to sexual harassment.

• a prevention plan—Organisations should develop and implement a sexual harassment prevention plan. It should be documented and regularly updated, with input from staff or members.

• organisational capability—Expectations of respectful behaviour should be clearly communicated. Leaders should model and drive a culture of respect.

• risk management—Risks of sexual harassment should be identified, with input from staff or members. The aim should be to build a culture of safety and address risk regularly.

• reporting and response—Sexual harassment should be addressed consistently and confidentially to hold harassers to account. Responses should put the victim survivor at the centre.

• monitoring and evaluation—Outcomes and strategies should be reviewed and evaluated regularly, and improvements based on evaluation.^[87]

3.54 Every duty holder must address the minimum standards, but the specific measures or actions depend on an organisation’s size and resources. The legislation requires that in deciding whether a measure is ‘reasonable and proportionate’, the following factors must be considered:

• the size of the person’s business or operations

• the nature and circumstances of the person’s business or operations

• the person’s resources

• the person’s business and operational priorities

• the practicability and the cost of the measures.^[88]

3.55 An example of action to meet the duty to take steps to eliminate sexual harassment is bystander training. VEOHRC provides bystander education and training as part of its ‘Raise It! Conversations about workplace equality and sexual harassment’ program.^[89]

3.56 VEOHRC’s role includes educating organisations about eliminating sexual harassment. It can also investigate serious and systemic issues, such as a reluctance to discipline people for sexual harassment. It can ask for information and apply to VCAT for an order compelling someone to provide the information.^[94] Following an investigation, it can do a range of things, including reporting the matter to the Attorney-General or referring it to VCAT.^[95]

The duty to take steps to eliminate sexual harassment should be enforceable

3.57 The failure to take steps to eliminate sexual harassment is a problem in many settings, such as workplaces and tertiary education. Despite repeated public calls to action, efforts to reduce sexual harassment have been patchy.^[97] There is a need for strong enforcement. But VEOHRC’s enforcement role is limited to encouraging compliance using its education and investigative functions.

3.58 In its Respect@Work report, the AHRC recommended the Federal Government amend the Sex Discrimination Act 1984 (Cth) to introduce a duty on all employers to take reasonable and proportionate measures to eliminate sexual harassment, discrimination, and victimisation. This would parallel the existing duty in Victoria.^[98]

3.59 The AHRC recommended that it have the power to enforce the duty by issuing compliance notices.^[99] Compliance notices set out the details of the unlawful behaviour and the necessary steps to prevent it. A notice may require the organisation to create and monitor an action plan.^[100]

3.60 Victoria Legal Aid told us that the duty in Victoria should be similarly enforceable.^[101] VEOHRC made the same point in a submission to the AHRC’s sexual harassment inquiry. It described the duty to take steps to eliminate sexual harassment as ‘a critical tool to encourage employers and others to proactively prevent sexual harassment, rather than simply react to complaints’:

If accompanied by appropriate enforcement powers, which are currently missing … the positive duty would help to deliver systemic change and alleviate the present burden on victims/survivors.^[102]

3.61 Giving VEOHRC stronger enforcement powers would be a clear signal that the Victorian Government takes sexual violence seriously. It would ensure there is community responsibility for the problem. Enforcing compliance would push people and groups that are resistant towards positive action. Enforcement processes are public, so enforcement would expose and reject organisational cultures that allow sexual violence.

3.62 VEOHRC could be empowered to issue compliance notices for persistent failures to comply. People and groups that are trying to do better would have a chance to act in line with the compliance notice. If they still do not comply, the process could escalate.

3.63 The Equal Opportunity Act could be amended to allow VEOHRC to apply to VCAT for a declaration that there has been a failure to comply and an order requiring payment of a financial penalty. Alternatively, a new offence of failure to comply with a compliance notice could be created. Like the existing offences under part 12 of the Equal Opportunity Act, it could be prosecuted summarily by VEOHRC or a person authorised by it, or by the police.^[103]

The current legal framework does not adequately encourage employers to create and enforce harassment-free workplaces … [better enforcement] could include … ensuring employers … are compelled to proactively address the issue or face penalties for breaching their duties.^[104]

3.64 The Victorian Government is already considering penalising employers under workplace health and safety laws for failure to provide a workplace free of sexual harassment.^[105] Our recommendation would address the need for broader action outside the workplace.

There should be an enforceable duty to take steps to eliminate sexual violence

3.65 People and groups who have a duty to take steps to eliminate sexual harassment should have a parallel duty in relation to other forms of sexual violence. They should be required to take reasonable and proportionate measures to eliminate sexual violence as far as possible. Like sexual harassment, educating the community about broader sexual violence and improving responses to it should be a shared responsibility. Creating a new duty would play an important communicative role. It would signal that sexual violence is a widespread social problem and it is ‘everybody’s business’ to address it.^[106]

3.66 The duty to take steps to eliminate sexual violence should apply to the same people and groups, and be enforced in the same way, as the duty to eliminate sexual harassment. The new Commission for Sexual Safety we recommend in Chapter 22 could work with VEOHRC to educate people about the new duty.

3.67 People and groups under the duty should be required to comply with the six standards identified by VEOHRC above:

• knowledge

• a prevention plan

• organisational capability

• risk management

• reporting and response

• monitoring and evaluation.

3.68 While some of the behaviours targeted by the existing sexual harassment duty fall within the broader category of sexual violence, the new duty would go further than the sexual harassment duty.

3.69 The new duty would require activities and training on issues such as the diverse forms of sexual violence, sexual offences and the meaning of ‘consent’, and common misconceptions. These topics are not usually covered by strategies to eliminate sexual harassment. Any dedicated disclosure officers or ‘first responders’ would need this special training too.

3.70 The processes for responding to disclosures of criminal sexual violence would also be different. They might include providing referrals to specialist sexual violence support services or information about justice options.

3.71 What we heard in this inquiry underscored the need for a duty like this. A victim survivor who responded to our online form called for mandatory training in workplaces.^[107] In relation to the higher education sector, Dr Patrick Tidmarsh and Dr Gemma Hamilton pointed out that:

where one might expect a well informed population, it is notable how little is still understood of what constitutes sexual offending, what avenues of reporting are available, and what the processes and consequences of reporting may be.^[108]

3.72 A new duty would help, in a practical way, to build an understanding of sexual violence and how best to respond to it.

1. Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 141 <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>.

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2. For the definition of a ‘systemic’ problem, see Julian Gardner, An Equality Act for a Fairer Victoria (Equal Opportunity Review Final Report, Department of Justice (Vic), June 2008) 8. See below for sources supporting the argument that sexual violence is systemic.

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3. Submissions 17 (Sexual Assault Services Victoria), 27 (Victoria Legal Aid), 55 (Springvale Monash Legal Service).

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4. Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 26 <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>; Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol 1, 2, 11, Recommendation 187 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>; VicHealth, Violence against Women in Australia: An Overview of Research and Approaches to Primary Prevention (Report, 2017) <https://www.vichealth.vic.gov.au/-/media/ResourceCentre/PublicationsandResources/PVAW/Violence-Against-Women-Research-Overview.pdf>; Victorian Equal Opportunity and Human Rights Commission, Submission to the Australian Human Rights Commission, National Inquiry into Sexual Harassment in Australian Workplaces (February 2019) 140–142 <https://www.humanrights.vic.gov.au/static/f72f3b7bf8c99ca4911c6f76ba5abcc1/Submission-National_inquiry_sexual_harassment-Feb_2019.pdf>; Victorian Government, Safe and Strong: A Victorian Gender Equality Strategy (Report, 2016) 7 <http://www.vic.gov.au/safe-and-strong-victorian-gender-equality>; World Health Organisation, Promoting Gender Equality to Prevent Violence against Women (Report, 2009).

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5. Christine Chinkin, ‘Gender and Economic, Social, and Cultural Rights’ in Eibe Riedel, Gilles Giacca and Christophe Golay (eds), Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (Oxford University Press, 2014) 134, 144.

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6. Our Watch, Putting the Prevention of Violence against Women into Practice: How to Change the Story (Report, 2017) 27, 80 <https://media-cdn.ourwatch.org.au/wp-content/uploads/sites/2/2019/11/07042017/Putting-prevention-into-practice-AA-web.pdf>.

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7. Nationally, this includes the ‘Change the story’ initiative: ‘Change the Story’, Our Watch (Web Page, 2021) <https://www.ourwatch.org.au/change-the-story/>; Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Report, 8 April 2021) <https://www.ag.gov.au/rights-and-protections/publications/roadmap-for-respect>. In Victoria, it includes ‘Safe and Strong: Victoria’s Gender Equality Strategy’: Victorian Government, Safe and Strong: A Victorian Gender Equality Strategy (Report, 2016) <http://www.vic.gov.au/safe-and-strong-victorian-gender-equality>; Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Report, 1 November 2020) 10–11 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>.

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8. See Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Report, 1 November 2020) <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>. Agencies involved include Family Safety Victoria and Respect Victoria. Although the focus has not been on sexual violence, there is growing understanding that sexual violence often occurs in the context of family violence and family violence responses need to be responsive to this: Consultations 73 (Family Safety Victoria (No 1)), 75 (Family Safety Victoria (No 2)).

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9. Consultations 73 (Family Safety Victoria (No 1)), 75 (Family Safety Victoria (No 2)).

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10. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 15 (Danielle), 17 (Sexual Assault Services Victoria), 21 (Victorian Aboriginal Child Care Agency), 22 (knowmore legal service), 24 (Jesuit Social Services), 27 (Victoria Legal Aid), 39 (Rape & Domestic Violence Services Australia), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 65 (Aboriginal Justice Caucus).

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11. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) Recommendations 187–9, see also vol 1, 11, 38–9, vol 6 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>; Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (Report, December 2017) Recommendations 6.1–6.6, 13.7, 13.8 <https://www.childabuseroyalcommission.gov.au/final-report>.

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12. A study by Lievore highlighted ‘the instrumental role of informal social networks and health providers in facilitating further help-seeking from formal sources, including police’: Denise Lievore, No Longer Silent: A Study of Women’s Help-Seeking Decisions and Service Responses to Sexual Assault (Report, Australian Institute of Criminology (Cth), June 2005) v <https://aic.gov.au/publications/archive/no-longer-silent>.

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13. Submission 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton). A respondent to our online survey also suggested there is a need to educate ‘lawyers on gender-based violence before they are qualified’: Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

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14. Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 4–5 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>. Respondents were asked about whether they sought advice after ‘their most recent sexual assault’, recognising that some respondents had been sexually assaulted more than once. These figures represent a decline in help-seeking from 2013, when six out of 10 women who had experienced a sexual offence sought advice or help from others: Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 4 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>.

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15. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 4, 17 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>.

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16. Ibid. The Royal Commission into Institutional Responses to Child Sexual Abuse found the average delay for reporting child abuse that happened in an institution such as a school or religious setting was 23.9 years: Royal Commission into Institutional Responses to Child Sexual Abuse, Identifying and Disclosing Child Sexual Abuse (Final Report) 33. Note that the figure of 22 years is often cited. This comes from the earlier report of the Royal Commission: Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, Royal Commission into Institutional Responses to Child Sexual Abuse, September 2015) 444 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

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17. See, eg, Denise Lievore, No Longer Silent: A Study of Women’s Help-Seeking Decisions and Service Responses to Sexual Assault (Report, Australian Institute of Criminology (Cth), June 2005) vi <https://aic.gov.au/publications/archive/no-longer-silent>. This issue is not confined to Australia. In Northern Ireland, the Gillen review found there was a ‘crucial’ need for ‘well-funded public and school campaigns to debunk [common] myths’ about sexual violence: John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, 9 May 2019) 14 <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf>. Many of the misconceptions we discuss below have also been identified in the United Kingdom: Crown Prosecution Service (UK), ‘Rape and Sexual Offences—Annex A: Tackling Rape Myths and Stereotypes’, Legal Guidance, Sexual Offences (Web Page, 21 May 2021) <https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-annex-tackling-rape-myths-and-stereotypes>.

    ↑

18. Results of the National Community Attitudes towards Violence against Women survey 2017. Note that this survey canvasses attitudes among Australians aged 16 and over: Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 4 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

    ↑

19. Results of the National Community Attitudes towards Violence against Women survey 2017: ibid.

    ↑

20. Lucy Sweeney and Sally Sara, ‘Grace Tame Says Change Is a Marathon Effort. But Australia Talks Data Shows Our Perception of Sexual Assault Is Changing’, ABC News (online, 10 June 2021) <https://www.abc.net.au/news/2021-06-10/grace-tame-australia-talks-believing-sexual-assault-allegations/100155474>. Statistics from the ‘Australia Talks National Survey 2021’, research conducted by ABC in partnership with Vox Pop Labs. Respondents to the survey were people who had participated previously in the ABC’s Vote Compass Surveys.

    ↑

21. Submission 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton); Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 9 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>; Lucy Sweeney and Sally Sara, ‘Grace Tame Says Change Is a Marathon Effort. But Australia Talks Data Shows Our Perception of Sexual Assault Is Changing’, ABC News (online, 10 June 2021) <https://www.abc.net.au/news/2021-06-10/grace-tame-australia-talks-believing-sexual-assault-allegations/100155474>.

    ↑

22. See, eg, Submissions 32 (A victim survivor of sexual assault (name withheld)), 37 (Madison), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton); Consultations 25 (CASA senior counsellor/advocates), 50 (End Rape on Campus), 81 (Danielle, a victim survivor); Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

23. See, eg, Australian Law Reform Commission, Family Violence—A National Legal Response (Report No 114, October 2010) <https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/>.

    ↑

24. See, eg, Submissions 38 (Bravehearts), 39 (Rape & Domestic Violence Services Australia), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 49 (inTouch Multicultural Centre Against Family Violence); Consultation 50 (End Rape on Campus).

    ↑

25. The Royal Commission into Family Violence pointed to similar momentum in support of action on family violence at the time it released its final report, and highlighted the importance of harnessing this momentum through community engagement: Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol 1, 13 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

    ↑

26. Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Report, 1 November 2020) 9 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>.

    ↑

27. Velleman and Northover stress the importance of long-term engagement and adequate resourcing. They cite a ‘global study of the effectiveness of mass-media interventions for HIV prevention between 1986 and 2013 [which] found that the longest campaigns, stretching over four years, were approximately three times more effective in encouraging condom use than those that lasted a year, and 10 times more effective than short bursts of a few days’: Yael Velleman and Henry Northover, Mass Behaviour Change Campaigns: What Works and What Doesn’t (Briefing Paper, WaterAid, October 2017) 4. See also Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol 1, 11 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

    ↑

28. See Sara Rafael Almeida et al, Insights from Behavioural Sciences to Prevent and Combat Violence against Women — Literature Review (Science for Policy Report, European Commission Joint Research Centre, 2016); Iseult Cremen and Tiina Likki, ‘How to Stop Sexual Harassment as a Bystander’, Behavioural Insights Team (BIT) (Blog Post, 24 September 2019) <https://www.bi.team/blogs/how-to-stop-sexual-harassment-as-a-bystander/>; Tiina Likki and Leonie Nicks, ‘More than a Few Bad Apples? What Behavioural Science Tells Us about Reducing Sexual Harassment’, Behavioural Insights Team (BIT) (Blog Post, 6 March 2020) <https://www.bi.team/blogs/more-than-a-few-bad-apples-what-behavioural-science-tells-us-about-reducing-sexual-harassment/>.

    ↑

29. Consultation 46 (Safer Families Research Centre and Monash Social Inclusion Centre).

    ↑

30. Consultation 53 (Elizabeth Morgan House and a victim survivor of sexual assault).

    ↑

31. See, eg, Submissions 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 49 (inTouch Multicultural Centre Against Family Violence); Consultation 81 (Danielle, a victim survivor).

    ↑

32. See, eg, Submission 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton).

    ↑

33. Ibid.

    ↑

34. Submission 15 (Danielle); Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 2 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

    ↑

35. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 6 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>; Crown Prosecution Service (UK), ‘Rape and Sexual Offences—Annex A: Tackling Rape Myths and Stereotypes’, Legal Guidance, Sexual Offences (Web Page, 21 May 2021) <https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-annex-tackling-rape-myths-and-stereotypes>.

    ↑

36. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 7 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>; Lori Haskell and Melanie Randall, The Impact of Trauma on Adult Sexual Assault Victims (Report, 2019) 10 <http://www.deslibris.ca/ID/10103348>.

    ↑

37. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 4 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>; Lori Haskell and Melanie Randall, The Impact of Trauma on Adult Sexual Assault Victims (Report, 2019) 10 <http://www.deslibris.ca/ID/10103348>.

    ↑

38. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 4 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>; Lori Haskell and Melanie Randall, The Impact of Trauma on Adult Sexual Assault Victims (Report, 2019) 10 <http://www.deslibris.ca/ID/10103348>.

    ↑

39. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 12 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>; Crown Prosecution Service (UK), ‘Rape and Sexual Offences—Annex A: Tackling Rape Myths and Stereotypes’, Legal Guidance, Sexual Offences (Web Page, 21 May 2021) <https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-annex-tackling-rape-myths-and-stereotypes>.

    ↑

40. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 12, 17 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>; Crown Prosecution Service (UK), ‘Rape and Sexual Offences—Annex A: Tackling Rape Myths and Stereotypes’, Legal Guidance, Sexual Offences (Web Page, 21 May 2021) <https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-annex-tackling-rape-myths-and-stereotypes>.

    ↑

41. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 8 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>.

    ↑

42. Marta Garnelo et al, Applying Behavioral Insights to Intimate Partner Violence: Improving Services for Survivors in Latin America and the Caribbean (Report, Behavioural Insights Ltd, 2019) 25–6.

    ↑

43. Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 4–5 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

    ↑

44. Denise Lievore, No Longer Silent: A Study of Women’s Help-Seeking Decisions and Service Responses to Sexual Assault (Report, Australian Institute of Criminology (Cth), June 2005) vi <https://aic.gov.au/publications/archive/no-longer-silent>.

    ↑

45. Ibid.

    ↑

46. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

47. Ibid.

    ↑

48. Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 1 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

    ↑

49. Ibid 5.

    ↑

50. ‘National Community Attitudes towards Violence against Women Survey (NCAS)’, ANROWS Australia’s National Research Organisation for Women’s Safety (Web Page) <https://www.anrows.org.au/research-program/ncas/>. The survey defines young people as those aged 16–24; children younger than sixteen years old were not included.

    ↑

51. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

52. Consultation 81 (Danielle, a victim survivor).

    ↑

53. Consultation 51 (Associate Professor Debbie Ollis and Professor Amanda Keddie); Department of Education and Training (Vic), Respectful Relationships Whole School Approach (Web Page, 2020) <https://www.education.vic.gov.au:443/school/teachers/teachingresources/discipline/capabilities/personal/Pages/respectfulrelapproach.aspx>.

    ↑

54. Department of Education and Training (Vic), ‘Resilience, Rights and Respectful Relationships—Teaching Resources’, FUSE (Web Page) <https://fuse.education.vic.gov.au/ResourcePackage/ByPin?pin=2JZX4R>.

    ↑

55. Department of Education and Training (Vic), Resilience, Rights and Respectful Relationships: Level 11–12 Learning Materials (Report, 2018); Debbie Ollis, Building Respectful Relationships —Stepping out against Gender-Based Violence (Report, Department of Education and Training (Vic), 2018) <https://fuse.education.vic.gov.au/ResourcePackage/ByPin?pin=H9WQYK>.

    ↑

56. Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Report, 1 November 2020) 25 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>; Sarah Kearney, Cara Gleeson and Loksee Leung, Respectful Relationships Education in Schools: The Beginnings of Change (Final Evaluation Report, Department of Premier and Cabinet and Department of Education and Training (Vic), February 2016).

    ↑

57. Sarah Kearney, Cara Gleeson and Loksee Leung, Respectful Relationships Education in Schools: The Beginnings of Change (Final Evaluation Report, Department of Premier and Cabinet and Department of Education and Training (Vic), February 2016).

    ↑

58. Consultation 51 (Associate Professor Debbie Ollis and Professor Amanda Keddie).

    ↑

59. Submission 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton); Consultation 50 (End Rape on Campus).

    ↑

60. Universities Australia commissioned the Australian Human Rights Commission to conduct a nationwide survey of university students, which found that one in five (21%) had been sexually harassed in a university setting in 2016: Australian Human Rights Commission, Change the Course: National Report on Sexual Assault and Sexual Harassment at Australian Universities (Report, 2017) 34 <https://humanrights.gov.au/our-work/sex-discrimination/publications/change-course-national-report-sexual-assault-and-sexual>. See also Tertiary Education Quality and Standards Agency (TEQSA) (Cth), Report to the Minister for Education: Higher Education Sector Response to the Issue of Sexual Assault and Sexual Harassment (Report, January 2019) <https://apo.org.au/node/220121>. TEQSA is working with tertiary education providers to improve their sexual violence prevention and response frameworks: Tertiary Education Quality and Standards Agency (TEQSA) (Cth), Preventing and Responding to Sexual Assault and Sexual Harassment in the Australian Higher Education Sector (Good Practice Note, July 2020) <https://apo.org.au/node/306861>.

    ↑

61. Submissions 9 (Djirra), 27 (Victoria Legal Aid).

    ↑

62. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) Recommendation 189 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

    ↑

63. Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Report, 1 November 2020) 25 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>.

    ↑

64. As of term 1, 2020, 59 of approximately 220 independent schools and 220 of 497 Catholic schools in Victoria had introduced Respectful Relationships teaching: Lauren Roberts, ‘Push to Introduce Mandatory, Unified Sexual Consent Lessons in Australian Schools’, ABC News (online, 29 February 2020) <https://www.abc.net.au/news/2020-02-29/australian-schools-on-how-they-teach-kids-consent/11969964>. Figures for total numbers of independent and Catholic schools are taken from ‘About Us’, Independent Schools Victoria (Web Page) <https://is.vic.edu.au/about-us/>; Catholic Education Commission of Victoria Ltd, Victorian Catholic Schools Statistics at a Glance 2019 (Report, 2019) 2 <https://www.cecv.catholic.edu.au/getmedia/b2396ba8-3735-40fa-bce7-4f920771e548/Statistics-at-a-Glance-2019.aspx?ext=.pdf>.

    ↑

65. Consultation 51 (Associate Professor Debbie Ollis and Professor Amanda Keddie). See also Consultation 65 (Commission for Children and Young People).

    ↑

66. Consultation 49 (Victoria Legal Aid).

    ↑

67. This has been a focus of recent work by Our Watch: Consultation 51 (Associate Professor Debbie Ollis and Professor Amanda Keddie).

    ↑

68. Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 5 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

    ↑

69. Karen Williams, ‘A Plea from the Frontline of Violence against Women: You Can’t End It without Our Help’, The Age (online, 4 July 2021) <https://www.theage.com.au/national/a-plea-from-the-frontline-of-violence-against-women-you-can-t-end-it-without-our-help-20210621-p582ui.html>. This article discusses both sexual and family violence.

    ↑

70. Ibid.

    ↑

71. Denise Lievore, No Longer Silent: A Study of Women’s Help-Seeking Decisions and Service Responses to Sexual Assault (Report, Australian Institute of Criminology (Cth), June 2005) vi <https://aic.gov.au/publications/archive/no-longer-silent>.

    ↑

72. Consultation 63 (A victim survivor of sexual assault, name withheld).

    ↑

73. See, eg, Submissions 49 (inTouch Multicultural Centre Against Family Violence), 65 (Aboriginal Justice Caucus).

    ↑

74. Consultation 85 (Roundtable on the experience of children and young people).

    ↑

75. Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Report, 1 November 2020) 141–2 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>; Kelsey Hegarty, ‘Confronting the Nature of Abuse and Violence’ (2021) April (14) InSight+ <https://insightplus.mja.com.au/2021/14/confronting-the-nature-of-abuse-and-violence/>.

    ↑

76. Submission 27 (Victoria Legal Aid).

    ↑

77. Equal Opportunity Act 2010 (Vic) s 92(1); Sex Discrimination Act 1984 (Cth) s 28.

    ↑

78. Australian Bureau of Statistics, Defining the Data Challenge for Family, Domestic and Sexual Violence (Catalogue No 4529.0, 7 February 2013) <https://www.abs.gov.au/statistics/people/crime-and-justice/defining-data-challenge-family-domestic-and-sexual-violence/latest-release>. See also Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 25 <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>; WorkSafe Victoria, Work-Related Gendered Violence Including Sexual Harassment: A Guide for Employers (Guide, March 2020) 1 <https://content.api.worksafe.vic.gov.au/sites/default/files/2020-03/ISBN-Work-related-gendered-violence-including-sexual-harassment-2020-03.pdf>.

    ↑

79. Laws banning sexual harassment include the Sex Discrimination Act 1984 (Cth), the Equal Opportunity Act 2010 (Vic), fair work laws, and workplace health and safety provisions. Employers are obliged under the Occupational Health and Safety Act 2004 (Vic) to ‘provide and maintain a work environment that is safe and without risk to the health of their employees, so far as is reasonably practicable’. There is no explicit duty in relation to sexual harassment, but WorkSafe Victoria says ‘sexual harassment is a common and known cause of physical and mental injury’ and as such, employers have an obligation to address the risk of sexual harassment. This is supplementary to their obligations under the Equal Opportunity Act 2010 (Vic): WorkSafe Victoria, Work-Related Gendered Violence Including Sexual Harassment: A Guide for Employers (Employers’ Guide, March 2020) <https://content.api.worksafe.vic.gov.au/sites/default/files/2020-03/ISBN-Work-related-gendered-violence-including-sexual-harassment-2020-03.pdf>.

    ↑

80. Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 28 <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>.

    ↑

81. Equal Opportunity Act 2010 (Vic) pt 8; Australian Human Rights Commission Act 1986 (Cth) pt IIB.

    ↑

82. Equal Opportunity Act 2010 (Vic) s 122.

    ↑

83. Ibid s 125.

    ↑

84. Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (Report, 2018) 9 <https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual>.

    ↑

85. Ibid.

    ↑

86. Equal Opportunity Act 2010 (Vic) s 15(1)–(2).

    ↑

87. Victorian Equal Opportunity and Human Rights Commission, Preventing and Responding to Workplace Sexual Harassment—Complying with the Equal Opportunity Act 2010 (Guideline, August 2020) 12 <https://www.humanrights.vic.gov.au/resources/sexual-harassment-guideline/>; Victorian Public Sector Commission, Guide for the Prevention of Sexual Harassment in the Workplace (Guide, November 2018) ch 5.

    ↑

88. Equal Opportunity Act 2010 (Vic) s 15(6)(a)–(e).

    ↑

89. ‘Raise It! Conversations about Sexual Harassment and Workplace Equality’, Victorian Equal Opportunity and Human Rights Commission (Web Page) <https://www.humanrights.vic.gov.au/education/raise-it/>. Vic Health has also developed a guide to help organisations introduce bystander initiatives: VicHealth and Behavioural Insights Team, Take Action: Empowering Bystanders to Act on Sexist and Sexually Harassing Behaviours (Report, Victorian Health Promotion Foundation, October 2019) <https://www.vichealth.vic.gov.au/-/media/ResourceCentre/PublicationsandResources/PVAW/Take-Action-Bystander_Oct2019.pdf?la=en&hash=D3150832DDE6E645A0B854AC2CD57B119E03BD22>.

    ↑

90. Victorian Government, ‘How to Be an Active Bystander’, VicHealth (Web Page, 24 September 2019) <http://www.vichealth.vic.gov.au/media-and-resources/publications/bystander-research-project>.

    ↑

91. Ibid.

    ↑

92. VicHealth and Behavioural Insights Team, Take Action: Empowering Bystanders to Act on Sexist and Sexually Harassing Behaviours (Report, Victorian Health Promotion Foundation, October 2019) 3 <https://www.vichealth.vic.gov.au/-/media/ResourceCentre/PublicationsandResources/PVAW/Take-Action-Bystander_Oct2019.pdf?la=en&hash=D3150832DDE6E645A0B854AC2CD57B119E03BD22>.

    ↑

93. Ibid 5.

    ↑

94. Equal Opportunity Act 2010 (Vic) ss 127, 130, 131.

    ↑

95. Ibid s 139. If a matter is referred to VCAT, the Tribunal must conduct an inquiry into the matter and if it is satisfied that there has been a breach of the duty, it can order that the person stop breaching the duty or take action to fix the situation: ibid s 141(1).

    ↑

96. Submission 27 (Victoria Legal Aid). In its submission, Victoria Legal Aid makes this point in relation to workplace health and safety laws, but it applies more generally. This is clear in the work of the ‘responsive regulation’ scholars who are cited by Victoria Legal Aid: see Ian Ayres and John Braithwaite (1992) Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press.

    ↑

97. In relation to workplaces: see Department of Justice and Community Safety (Vic), Addressing Sexual Harassment in Victorian Workplaces (Consultation Paper, 2021). Nationwide in 2019, less than half of all TAFEs and independent education providers collected data on incident reports or offered face-to-face training on responding to sexual assault or harassment. A quarter did not offer people who reported sexual harassment or assault any form of counselling: Tertiary Education Quality and Standards Agency (TEQSA) (Cth), Report to the Minister for Education: Higher Education Sector Response to the Issue of Sexual Assault and Sexual Harassment (Report, January 2019) <https://apo.org.au/node/220121>. See also Australian Human Rights Commission, Change the Course: National Report on Sexual Assault and Sexual Harassment at Australian Universities (Report, 2017) <https://humanrights.gov.au/our-work/sex-discrimination/publications/change-course-national-report-sexual-assault-and-sexual>.

    ↑

98. Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) Recommendation 17 <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>.

    ↑

99. Ibid Recommendation 18.

    ↑

100. Julian Gardner, An Equality Act for a Fairer Victoria (Equal Opportunity Review Final Report, Department of Justice (Vic), June 2008) 130–1. In Victoria, VEOHRC can conduct ‘reviews of compliance’ with Equal Opportunity Act obligations at the request of an organisation. Where it has conducted a review, it can provide an action plan for how the organisation should achieve compliance, but there is no sanction for a failure by the organisation to comply with the action plan: Equal Opportunity Act 2010 (Vic) ss 151–153.

     ↑

101. Submission 27 (Victoria Legal Aid).

     ↑

102. Victorian Equal Opportunity and Human Rights Commission, Submission to the Australian Human Rights Commission, National Inquiry into Sexual Harassment in Australian Workplaces (February 2019) 2 <https://www.humanrights.vic.gov.au/static/f72f3b7bf8c99ca4911c6f76ba5abcc1/Submission-National_inquiry_sexual_harassment-Feb_2019.pdf>.

     ↑

103. Equal Opportunity Act 2010 (Vic) ss 180, 181.

     ↑

104. Department of Justice and Community Safety (Vic), Addressing Sexual Harassment in Victorian Workplaces (Consultation Paper, 2021) 2, 5.

     ↑

105. Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Report, 8 April 2021) 5 <https://www.ag.gov.au/rights-and-protections/publications/roadmap-for-respect>.

     ↑

106. Our proposed new duty is not unprecedented. Since 2016, many organisations in Victoria have had a duty to take steps to prevent child abuse by applying ‘child safe standards’. The Commission for Children and Young People has powers to assess and enforce compliance: Child Wellbeing and Safety Act 2005 (Vic) pt 6.

     ↑

107. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

     ↑

108. Submission 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton).

     ↑