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

15. Expanding access to justice for victim survivors of sexual violence

Overview

• The justice system should support everyone’s different communication needs. The existing programs need to be strengthened.

• Intermediaries provide valuable support to children and people with communication difficulties. More people should be able to access them.

• Independent third persons provide valuable support in police interviews to people with cognitive disabilities. This service should have enough funding and a referral function, and should be promoted.

• Funding for language services should be increased, because many people use them to disclose and report sexual violence. Investing in specialised training is also a priority.

Everyone has the right to be heard and understood

15.1 Everyone in the Victorian community should have equal access to the justice system. All victim survivors should be able to report sexual offences to the police and tell their story in court. When they do so, they should be heard and understood. This is especially important in sexual offences, when so much turns on the evidence of the person who experienced sexual violence.

15.2 Victim survivors should also be communicated with in a way that enables them to understand how the justice system works. This is important to meet victim survivors’ justice needs, such as the need for information. We discuss these justice needs in Chapter 2.

15.3 People accused of sexual offences should be able to understand the charges and evidence against them and how the justice system works. In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) requires that people accused of criminal offences are provided with information in a form they can understand. They are entitled to interpreters and appropriate communication aids.^[4] People’s right to be free from discrimination and receive reasonable adjustments is also protected in legislation.^[5]

15.4 However, people who experience sexual violence often turn to a justice system that cannot understand or communicate with them. Someone charged with sexual offences can face a similar situation. Clear communication is crucial for justice processes to be fair. But people’s communication needs are sometimes not identified or met.

15.5 Ideally, our justice system would be accessible to everyone, without the need for special supports.^[8] This principle of ‘universal design’ recognises that barriers to justice arise when systems only accommodate the needs of some.^[9]

15.6 At this stage, special supports are still needed for people to have real access to justice. They enable people to access and participate in the justice system, who would otherwise be prevented. With support, everyone can be heard, and understand the process and their rights.

15.7 In this report we make recommendations to improve special supports. We propose a program of victim advocates with a focus on people with disability (Chapter 12). We call for Victoria Police to be more accessible (Chapter 17) and for better access to reporting for people living in residential environments (Chapter 7). We also suggest reforms to improve access to information, support and reporting for people with diverse needs and experiences (Chapters 3 and 8).

15.8 This chapter discusses another three key initiatives:

• intermediaries,

• independent third persons

• language services.

What is the Intermediary Pilot Program?

15.9 For too long, the justice system in Victoria failed to address the communication difficulties of some witnesses, especially children and people with disability. We recognised this in our 2016 inquiry into the Role of Victims of Crime in the Criminal Trial Process (Victims of Crime). We recommended a legislative scheme that made intermediaries available for ‘child victims and victims who have a disability … that is likely to diminish the quality of their evidence’.^[10]

15.10 Intermediaries are ‘language specialists who help ensure that the questioning of witnesses with communication difficulties is conducted in a way that is developmentally appropriate, respectful and most likely to produce reliable evidence’.^[11] Intermediaries assist with communication in police interviews and in court. Details of how they may assist in court are discussed in ‘ground rules hearings’.^[12] (We explain what ground rules hearings are in Chapter 21.)

15.11 Overall, intermediaries help to reduce the stress felt by the witnesses they work with and they make trials more efficient.^[13] They are impartial officers of the court.^[14]

15.12 In 2018, the Victorian Government amended the Criminal Procedure Act 2009 (Vic) to allow for the use of intermediaries. The law now makes intermediaries available in criminal proceedings to all witnesses (excluding the accused) who are under 18 or have a ‘cognitive impairment’.^[15] The Act explains that a cognitive impairment includes ‘impairment because of mental illness, intellectual disability, dementia or brain injury’.^[16]

15.13 The Victorian Government set up the Intermediary Pilot Program in July 2018. The program operates on a narrower basis than the law allows. Program intermediaries are only available to ‘vulnerable’ witnesses in homicide matters or ‘vulnerable’ complainants in sexual offence matters. ‘Vulnerable’ witnesses or complainants are those who are under 18 or have a cognitive impairment.^[17] The program is also limited geographically—it is available only in courts and some police locations across Melbourne, as well as in a smaller number of courts and police stations regionally.^[18]

The intermediary scheme provides ‘much, much better access to justice’

15.14 Even with these limitations, the intermediary scheme in Victoria has been widely acknowledged as a successful and much-needed reform. It has been praised for increasing access to justice and for driving positive change in the practice and attitudes of police, lawyers and judges.

15.15 The County Court of Victoria said the program provides eligible witnesses with ‘much, much better access to justice’.^[19] Without the program, many cases would not have even made it to court.^[20] The Magistrates’ Court of Victoria also expressed strong support for the program.^[21]

15.16 Intermediaries noted a significant and encouraging change—after some initial caution—in stakeholder attitudes towards the program. They say it is now ‘positively received’.^[22] They noticed a ‘huge shift’ in relation to the police.^[23] Victoria Police, for its part, said that police officers regard the program positively.^[24]

15.17 While there were isolated reports of some judicial officers being reluctant to engage with the program,^[25] these were in a context of strong support for it. Overall, it is clear that people view the intermediary scheme as being very positive.^[26]

The intermediary scheme could be improved

15.18 The 2021/22 Victorian Budget provided an additional year of funding for the Intermediary Pilot Program.^[27] This is a positive development. But it is our view that the intermediary scheme must be expanded to a broader class of people and more courts.

The intermediary scheme should extend to the accused

15.19 The legislative scheme currently applies to witnesses ‘other than the accused’.^[28] This is problematic. One recent commentary describes the exclusion of accused individuals as ‘[p]erhaps the greatest flaw’ of the program, and a denial of fair trial rights under the Charter of Human Rights and Responsibilities Act.^[29]

15.20 The intermediary scheme is clearly intended to increase access to justice for people with diverse needs. So it is difficult to see why accused persons with communication difficulties should be excluded. Intermediaries are available to the accused in criminal proceedings in the Australian Capital Territory.^[30]

15.21 We heard support for the intermediary scheme to be extended in this way. The County Court of Victoria and the Law Institute of Victoria pointed to the intermediary system in England and Wales, where intermediaries are available to accused people.^[31]

15.22 Victoria Legal Aid echoed this point. It said that the court process can ‘be extremely distressing and confusing’ for an accused person who is a child or has a cognitive impairment.^[32] It also noted that intermediaries may assist the accused to enter guilty pleas where appropriate.^[33]

15.23 In 2016, we offered in-principle support for expanding the intermediary program to accused people because it would promote equal access to justice.^[34] We now repeat this call.

The intermediary scheme should extend to people with communication difficulties

15.24 The Criminal Procedure Act makes intermediaries available where the witness is under 18 years of age or has a cognitive impairment.

15.25 Some people have a physical disability that affects their ability to communicate. Not having a ‘cognitive impairment’, they might find themselves outside the scope of the legislative scheme. Even though they have communication difficulties that might affect the quality of their evidence, they are denied the support they need. This is a troubling gap in the system, which denies some people access to justice.

15.26 Intermediaries suggested to us that the definition of cognitive impairment should be broadened to include people with physical disabilities.^[35] For example, they told us that people living with cerebral palsy are not technically covered by the current definition.^[36]

15.27 Other people we heard from also suggested expanding the intermediary scheme to ‘other witnesses with communication difficulties’.^[37] In our Committals report we recommended making intermediaries available to all witnesses with communication difficulties.^[38]

15.28 The Australian Capital Territory takes a comprehensive approach. There, intermediaries may be appointed for any witness who has a communication difficulty.^[39]

15.29 Our recommendations in The Role of Victims of Crime in the Criminal Trial Process report (Victims of Crime report) and the Committals report were broad. In the Victims of Crime report we suggested that victims ‘with a disability … that is likely to diminish the quality of their evidence’ should be eligible for intermediaries.^[40] In the Committals report we recommended that intermediaries assist all witnesses with communication difficulties.^[41] Some physical disabilities are likely to diminish the quality of a witness’s evidence. Allowing courts to appoint intermediaries where witnesses have communication difficulties would ensure that these witnesses are included.

The intermediary scheme should have a wider geographical reach

15.30 The Intermediary Pilot Program is only available in some court locations. Most people living in regional Victoria do not get this assistance if they need it. This reduces their access to justice.

15.31 Sexual Assault Services Victoria highlighted the ‘high financial costs’ and ‘loss of emotional and personal supports’ often experienced by witnesses who must travel to Melbourne for intermediary support.^[42]

15.32 To fix this situation, and to build on the clear successes of the intermediary scheme, we recommend expanding it to all County Court of Victoria locations. Given most sexual offence trials happen in the County Court of Victoria, this reform would extend support to a significant number of witnesses.

15.33 The County Court of Victoria supports such a change.^[43] The Magistrates’ Court of Victoria supports ‘embedding the intermediary scheme permanently in all court venues as a high priority’.^[44] The intermediaries we spoke to also highlighted the need to roll out the program to cover the whole state.^[45]

15.34 We acknowledge the scheme’s expansion would require further resources. But given how effective it is in increasing the quality of evidence from witnesses with communication difficulties,^[46] we see this expansion as necessary to support equal access to justice.

Who are independent third persons?

15.35 Independent third persons (ITPs) provide support at the police stage for people with a cognitive disability.^[48] They assist people being interviewed by police or giving a formal statement.

15.36 The role of ITPs is to

• help people understand the justice process—including their rights and what they are being asked to do

• assist communication between a person and the police—for example, an ITP can ask the police to ask a question in a different way or can help people to give Video Audio Recorded Evidence (VARE) (see Chapter 21).^[49]

15.37 An ITP is an independent and objective support person. They can help someone contact a lawyer or request a break for the person being interviewed. The Office of the Public Advocate trains ITP volunteers.^[50]

15.38 ITPs ensure that people with cognitive disabilities are not disadvantaged by processes that were not designed to meet their communication needs.

Police interviews often require people to comprehend complex issues and information quickly, understand their legal rights, and be able to communicate with people in positions of authority.^[51]

15.39 ITPs operate alongside other crucial supports for people in police custody, such as the youth referral and independent person program.^[52]

15.40 ITPs play a ‘vital role in our justice system’.^[53] They enable access to justice and help ensure fair treatment.^[54]

15.41 Reviews note resourcing issues, some variability in the quality of ITPs, and inconsistent police referrals, but endorse the program.^[55] Like us, the reviews support reforms to ensure ITPs are made more consistently available to those who need them.^[56]

The ITP program should be strengthened

15.42 We recommend that the ITP program be better funded and promoted, and given a referral function.

ITPs will continue to provide crucial support alongside other programs

15.43 ITPs and intermediaries provide complementary but different support. ITPs assist a wider range of people than intermediaries, including people with cognitive disabilities who have witnessed, experienced or are accused of a sexual offence, and people on the Register of Sex Offenders. Victim survivors of sexual offences make up the majority (61 per cent) of the victims supported by ITPs.^[57]

15.44 ITPs are also more available than intermediaries. They are available 24 hours a day to attend any police station in Victoria, and do not have to be booked in advance. In 2019–20, 183 ITPs assisted in 3718 police interviews.^[58] During a similar timeframe (2018–19), there were 41 intermediaries who met 177 police requests for assistance.^[59]

15.45 To date, in sexual offence cases, intermediaries have mainly supported children (in around 71 per cent of the sexual offence cases they were involved with).^[60] As officers of the court, intermediaries focus on ensuring that communication with witnesses is as ‘complete, coherent and accurate as possible’.^[61] They largely provide support to prepare for and during court proceedings, and assist with VAREs.^[62] ITPs are not officers of the court but independent support people, who are present as early as practicable at the police stage, to make sure people with cognitive disabilities understand the justice process and know their rights. As many reports of sexual offences do not proceed to prosecution (see Chapter 1), supporting people at the police stage is crucial.

15.46 If our other recommendations were adopted, ITPs would continue to have a role alongside an expanded intermediary program and victim advocates for people with disabilities (see Chapter 12). They would assist a wider range of people than these other programs (including witnesses and people on the Register of Sex Offenders). As intermediaries require tertiary or other qualifications,^[63] ITPs are likely to remain more available.

15.47 In relation to victim advocates, ITPs would continue to provide support if the victim advocate program did not have statewide, 24-hour coverage. Below we propose that ITPs are given a referral function, enabling them to refer people to victim advocates.

15.48 In practice, the two programs can work together. A pilot advocate program for people with a cognitive disability, Making Rights Reality, involved sexual assault counsellor advocates being trained as ITPs.^[64]

The growing demand for ITP services needs to be supported

15.49 Demand for the ITP program has grown over the last three years. However, we heard that the ITP program is not funded to meet this demand.^[65] This means that the Office of the Public Advocate is not always able to provide an ITP when someone requests one:^[66]

There have been recent examples of SOCIT officers interviewing children and vulnerable adults without an independent third party. This has been said to be because there is a lack of ITPs, or it takes too long to get hold of one.^[67]

15.50 A joint report by Jesuit Social Services and the Centre for Innovative Justice (Enabling Justice report) states that an interview or statement should not be relied on if an ITP was not used when needed.^[68] If the starting point is that someone with a cognitive disability requires support when they are giving a statement to the police, not having this support in place casts doubt over the fairness and quality of evidence given.^[69] A lack of support might also mean that someone did not understand the questions they were asked or was distressed.^[70]

15.51 We were told that ‘if a program is important in ensuring access to justice, it should be funded’.^[71] The ITP program is important to making justice accessible. We agree with the recommendations of recent research, and the Office of the Public Advocate, that the program should be funded to meet demand, including with enough resources to train all volunteers.^[72]

Everyone should know about ITPs

15.52 ITPs are not always used in interviews when they could be.^[73] This can be because someone’s communication difficulties have not been identified by the police.^[74] This concern has been raised by successive reviews.^[75]

15.53 The Victoria Police Manual includes guidance on how to identify if someone has a cognitive disability.^[76] It links to a ‘Ready Reckoner’ document to help with this assessment. Victoria Police updated the ‘Ready Reckoner’ following a recommendation in a report by the Victorian Equal Opportunity and Human Rights Commission.^[77] The report also suggested regular online training for police on the ITP program:^[78]

While police cannot be expected to be experts in disability, they must be trained to recognise when someone might need support and facilitate this to occur.^[79]

15.54 The Enabling Justice report suggested ‘mainstreaming’ accessible communication. This means using plain-language and flexible approaches in all situations, even if a communication need has not been identified. It also recommended that Victoria Police should tell everyone about the option to have an ITP. Everyone could be told about the scheme (similarly to everyone being told about their rights) or given a pamphlet, or ITPs could be rostered at stations.^[80] Other people suggested that multi-disciplinary centres could have people to assist with communication.^[81]

15.55 The Office of the Public Advocate called for the program to be legislatively mandated so that an ITP must be at any interview of someone with an ‘apparent cognitive impairment or mental illness’.^[82] While other independent advocate supports are legislated, ITPs are only required in the Victoria Police Manual.^[83]

15.56 In its report, the Victorian Equal Opportunity and Human Rights Commission recognised that legislation requiring ITPs could improve their consistent use.^[84] Victoria Police told us it had concerns about mandating an external or volunteer-based program whose availability it could not ensure.^[85]

15.57 Since late 2019, the Victims’ Charter Act 2006 (Vic) has required criminal justice agencies to ‘be responsive’ to factors that might affect someone’s ability to understand them.^[86] As discussed earlier, the Charter of Human Rights and Responsibilities Act also provides some protection for an accused’s rights to communication assistants or tools in criminal proceedings.^[87]

15.58 We endorse the recommendation of the Enabling Justice report that Victoria Police should tell each person about the option to have an ITP. Given our terms of reference, we suggest this should happen in sexual offence cases, although we note that it could apply to other cases. Telling each person about the ITP program gives them the opportunity to confirm their eligibility and makes it more likely that a person’s communication needs are identified and met.

15.59 We also suggest that the Victorian Government consider if existing legislative rights to communication are working in practice or need strengthening.^[88] In Chapter 4 we also recommend the Victims of Crime Commissioner has stronger oversight of the operation of these rights.

ITPs should be able to refer people to support services

15.60 The ITP program is only one support service among many that a person may need. Even though ITPs may become aware of a person’s other needs, they have no role in connecting them with services that could help (‘referrals’).

15.61 ITPs support people in their early engagement with the justice system so they are well placed to ‘bridge the gap in the support and advocacy service system’.^[89] Recent program data shows that ITP clients (almost 20 per cent) can be seen multiple times.^[90] An earlier report noted that sexual assault victims were the majority (69 per cent) of victims with a cognitive disability seen by ITPs more than once.^[91] Repeated contact with their clients makes them well placed to refer people on to other services.

15.62 In other situations, someone may receive ITP support as a victim before needing an ITP for an offence they allegedly committed. Their repeated contact with the police may indicate that their support needs were not met the first time.^[92] Again, repeated contact with the ITP program creates an opportunity to be referred to services:

A young man with Autism Spectrum Disorder (ASD) was supported by an ITP in an interview as the victim of rape. He received little support at the time to deal with the trauma experienced. Eighteen months later, he was again supported by an ITP but as an alleged offender for a sexual assault.^[93]

15.63 The Office of the Public Advocate suggested that ITPs should be able to play a referral function. We agree, in line with our focus on making sure systems work together to respond to sexual violence (see Chapter 5).^[94] Their referral function could operate alongside the Victoria Police VPeR (Victoria Police e-referral) program. But an ITP referral system may also have the value of being independent from the justice system. This could be important for people with less trust in police (see Chapter 8).^[95]

15.64 ITPs could link victim survivors with our proposed victim advocates for people with disability, as well as existing sexual assault services for people with cognitive disabilities (see Chapter 12). In this way, they can help meet people’s need for support (see Chapter 2).

15.65 In Chapter 4, we recommend a multi-agency protocol that could support formal referral arrangements between organisations. The ITP referral function should be supported through this protocol.

ITP training needs must be met

15.66 The Office of the Public Advocate recommended that ITPs who attend VAREs receive specialist government-funded training. This is in addition to funding for enough training for all volunteers, which we discuss above. Given the critical role they play in supporting access to justice, it is important that ITPs have the right training.^[96]

15.67 If the intermediary scheme is expanded to a wider range of people as we recommend, it will result in fewer ITPs supporting people in VAREs. Any role they continue to have in VAREs should receive funding and enough training.

What are language services?

15.68 Everyone is entitled to access the services and justice they need.^[97] This includes people who need or prefer to communicate in a language other than English or in sign language. Language services are crucial to ensuring access to justice.

15.69 Language services enable communication with people who ‘have limited English, are Deaf or hard of hearing’. They include services where people interpret one language to another, translate written information into a language other than English, and from written English into Auslan or audio.^[98]

15.70 Language services are especially important in the context of sexual violence. As Chapter 2 discusses, sexual violence affects some groups more than others, including people who use language services. Language services also play an important role because of the importance of context and nuance when talking about such a personal experience.

15.71 Victorian Government guidelines set out key principles for the appropriate use of language services. The guidelines recommend that all government departments and agencies should have their own policies and procedures on language services.^[100] The law also requires government department and agencies to report on their use of language services.^[101]

15.72 The Victorian Government has recognised the need for investing in language services, including in a family violence context. It is reviewing how effectively language services are procured.^[102] The recent Victorian budget provided funding to ‘build the capacity of the [family violence and sexual assault] service system to respond to culturally and linguistically diverse communities and faith communities’.^[103]

We heard concerns about language services

15.73 While laws and policies set out the principles and guidance clearly, we heard that in practice the use of language services was not always appropriate or skilled enough. We also heard that there were gaps in access and the availability of appropriate language services for dealing with sexual violence.

Language services are not always used appropriately

15.74 Participants in a consultation focusing on disability inclusion told us that police frequently neglect to use interpreters, including Auslan interpreters. They told us this was ‘likely due to both a failure to appropriately recognise a victim-survivor’s communication needs and an unwillingness to respond to them’.^[104] In some cases, police used the victim survivor’s abusive partner or child as an interpreter.^[105]

15.75 Sexual Assault Services Victoria said there was no ‘systematic process for how police respond when someone wants to report and they need an interpreter’.^[106] They described examples of police refusing to provide Auslan interpreters, police using friends of victim survivors to interpret, and police taking statements from people with limited English language skills.^[107]

Access and availability of language services is limited

15.76 There was strong consensus about the barriers people faced in using language services:

• People were concerned about their privacy in discussing sexual violence with interpreters, especially over the phone.

• In small communities, there were not enough interpreters, or interpreters of a preferred gender, for people to feel safe in using them to disclose sexual violence.

• Some interpreters were not comfortable working with LGBTIQA+ people.

• Some languages lack appropriate words to describe sexual violence.^[108]

15.77 Participants in the Refugee Health Network and Refugee Health suggested sourcing interstate interpreters to address concerns about privacy.^[109] The Victorian Multicultural Commission identified a lack of readily available resources and support materials in languages other than English.^[110]

Language services have capability gaps

15.78 We were told that some interpreters were not skilled in interpreting information in the context of family or sexual violence.^[111] We also heard there was a lack of support, debriefing and training for interpreters.^[112]

15.79 Several organisations, such as InTouch Multicultural Centre against Family Violence and the Refugee Health Network, told us of the need for more specialist training to deal with family and sexual violence.^[113]

15.80 The Gatehouse Centre, which works with children, expressed concern about how translators interpret questions in interviews involving children. The centre stressed a need for literacy in trauma, child development, and (where relevant) disability.^[114]

Language services should be strengthened

15.81 The system responding to sexual violence is falling short of its obligation to ensure equal access to people who prefer or need language services. These are serious barriers to improving reporting, especially among people who already find it difficult to access justice.

15.82 We are concerned to hear that police practices are not meeting their obligations. We note that, following the recommendations of the Royal Commission into Family Violence, a practice note was developed for the use of interpreters, and that this guidance is in the Victoria Police Code of Practice for family violence.^[115] Similar guidance is included in the Code of Practice for sexual crime.^[116]

15.83 We also note that education about the appropriate use of interpreters is being provided to police, with more training underway.^[117] We recommend in Chapter 17 that Victoria Police should encourage specialised police to take part in the training programs that are developed.

15.84 In Chapter 4, we also recommend extending or introducing some rights under the Victims’ Charter Act. Similar legislation in Scotland sets out the right to interpretation and translation.^[118] We consider that this is a crucial right, and should be set out clearly in the legislation (see Chapter 4).

15.85 We recognise there are significant challenges to privacy in small communities. Addressing these requires broader reform and investment in improving language services. For example, reforms could increase the number of people who can provide accredited language services and the use of bilingual workers could be increased.^[119] These may be addressed in the current review of procurement processes.

15.86 We also encourage addressing this through other reforms, such as the development of the next National Plan to reduce violence against women and their children. For example, if interstate interpreters are used, strengthening language services in gender-based violence across Australia could increase the supply of language services for small communities.

15.87 In the meantime, there may be opportunities to address these gaps through cooperative arrangements with other states. For example, Queensland has an Immigrant Women’s Support Service which combines both family and sexual violence services. It runs regular sessions to train interpreters on how to interpret in a family violence or sexual violence context. These sessions are offered to any interpreter who wants to work in the field.

15.88 This service provides a useful model for encouraging and supporting training in these critical contexts. We recommend funding services such as InTouch Multicultural Centre against Family Violence, and other women’s health services working with migrant and refugee women, to provide this kind of ongoing training within Victoria. It should be extended to other language services, including Auslan interpreters.

15.89 The Victorian Government should consider the need for incentives and access arrangements to attract people to this kind of work. For example, the Victorian Government already offers scholarships and bursaries for interpreter training.^[120] This could be enhanced for interpreters interested in these roles.

15.90 In Chapter 7, we recommend improving information and guidance for all people experiencing sexual violence, including a central website. This should include translated versions, as is already done with the Orange Door website. Such resources should be promoted widely through existing networks, organisations and services.

4. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(a), (i), (j).

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5. Equal Opportunity Act 2010 (Vic) ss 44–45; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8(2).

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6. Consultation 11 (Family violence and sexual assault practitioners focusing on disability inclusion).

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7. Consultation 14 (Sexual Assault Services Victoria); Submission 17 (Sexual Assault Services Victoria).

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8. Consultation 19 (Dr Frank Lambrick); United Nations Human Rights Special Procedures, International Principles and Guidelines on Access to Justice for Persons with Disabilities (Report, 2020) 14.

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9. Universal design requires that ‘systems, programs and services should be designed so that all people, regardless of capability, background, and age can make use of them, without the need for additional support’: Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) 7 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>. See also Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 2, art 4(1)(f). On social barriers, see generally ‘Social Model of Disability’, Australian Federation of Disability Organisations (Web Page, 21 June 2018) <https://www.afdo.org.au/social-model-of-disability/>.

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10. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 174, Recommendation 30.

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11. Natalia Antolak-Saper and Hannah MacPherson, ‘Vulnerable Witnesses and Victoria’s Intermediary Pilot Program’ (2019) 43 Criminal Law Journal 325, 325.

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12. During ground rules hearings, the court can issue directions on how a witness must be questioned to ensure that the court proceeding remains ‘fair and efficient’: Criminal Procedure Act 2009 (Vic) s 389B(3).

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13. Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2017, 4359 (Martin Pakula, Attorney-General).

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14. Criminal Procedure Act 2009 (Vic) s 389I(2); ibid.

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15. Criminal Procedure Act 2009 (Vic) s 389F(1)(a).

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16. Ibid s 3.

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17. County Court of Victoria, Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearings (Guide No 2/2021, 22 March 2021) 5 <https://www.judicialcollege.vic.edu.au/sites/default/files/2021-04/Multi-jurisdictional%20Court%20Guide%20for%20IPP%20%20-%20final%20220321.pdf>.

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18. Ibid; County Court of Victoria, Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearings (Guide No 1/2018, 28 June 2018) 3 <https://www.judicialcollege.vic.edu.au/sites/default/files/2019-07/Multi%20jurisdictional%20Court%20Guide%20for%20the%20IPP_0.pdf>.

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19. Consultation 24 (County Court of Victoria).

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20. Ibid.

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21. Consultation 71 (Magistrates’ Court of Victoria (No 1)).

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22. Consultation 13 (Intermediary Pilot Program, Department of Justice and Community Safety).

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23. Ibid.

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24. Submission 68 (Victoria Police).

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25. Consultation 61 (Children’s Court of Victoria).

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26. See, eg, Consultations 14 (Sexual Assault Services Victoria), 15 (Child Witness Service), 17 (Roundtable consultation focused on the experience of women with disability), 19 (Dr Frank Lambrick); Submissions 14 (Gatehouse Centre, Royal Children’s Hospital), 22 (knowmore legal service), 40 (Law Institute of Victoria), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 55 (Springvale Monash Legal Service), 63 (Office of Public Prosecutions).

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27. Premier of Victoria, ‘Better Outcomes for Victims and Young People’ (Media Release, 20 May 2021) <http://www.premier.vic.gov.au/better-outcomes-victims-and-young-people>.

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28. Criminal Procedure Act 2009 (Vic) s 389F(1)(a).

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29. Natalia Antolak-Saper and Hannah MacPherson, ‘Vulnerable Witnesses and Victoria’s Intermediary Pilot Program’ (2019) 43 Criminal Law Journal 325, 336.

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30. Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AA, 4AJ(1).

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31. Submission 40 (Law Institute of Victoria); Consultation 24 (County Court of Victoria).

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32. Submission 27 (Victoria Legal Aid).

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33. Consultation 49 (Victoria Legal Aid).

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34. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 173.

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35. Consultation 13 (Intermediary Pilot Program, Department of Justice and Community Safety).

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36. Ibid.

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37. Consultation 71 (Magistrates’ Court of Victoria (No 1)). See also Submission 22 (knowmore legal service).

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38. Victorian Law Reform Commission, Committals (Report No 41, March 2020) [11.114], Recommendation 47.

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39. ‘ACT Intermediary Program’, ACT Law Society (Web Page, 12 March 2020) <https://www.actlawsociety.asn.au/article/act-intermediary-program>.

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40. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 174.

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41. Committals (Report No 41, March 2020) Recommendation 31.

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42. Submission 17 (Sexual Assault Services Victoria).

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43. Submission 59 (County Court of Victoria).

    ↑

44. Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

45. Consultation 13 (Intermediary Pilot Program, Department of Justice and Community Safety).

    ↑

46. For a positive evaluation of the similar scheme in England and Wales: see generally Emily Henderson, ‘“A Very Valuable Tool”: Judges, Advocates and Intermediaries Discuss the Intermediary System in England and Wales’ (2015) 19(3) International Journal of Evidence and Proof 154.

    ↑

47. Submission 17 (Sexual Assault Services Victoria).

    ↑

48. The Office of the Public Advocate explains that this can include people with an intellectual disability, a mental illness, or an acquired brain injury: Submission 41 (Office of the Public Advocate).

    ↑

49. ‘Independent Third Persons’, Office of the Public Advocate (Web Page, 2021) <https://www.publicadvocate.vic.gov.au/opa-volunteers/independent-third-persons>.

    ↑

50. Submission 41 (Office of the Public Advocate); ‘Independent Third Persons’, Office of the Public Advocate (Web Page, 2021) <https://www.publicadvocate.vic.gov.au/opa-volunteers/independent-third-persons>.

    ↑

51. Justice and Community Safety (Vic), Manual of Procedures: Victim Services, Support and Reform—Intermediary Program (Manual, August 2019) 14–15. See also Submission 41 (Office of the Public Advocate).

    ↑

52. Similar to the independent third person program, the youth referral and independent person program provides trained volunteers to support young people in police interviews, when their parent or guardian cannot do so: ‘About Us’, YRIPP (Web Page, 2019) <https://www.cmy.net.au/yripp/about-us/>.

    ↑

53. Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 65 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

    ↑

54. Submission 41 (Office of the Public Advocate). See also Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) 78 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>.

    ↑

55. Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) 78–80 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>; Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 65–7, 111 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

    ↑

56. See also Victoria Legal Aid’s support for expanding the use of ITPs: Consultation 78 (Roundtable on reporting).

    ↑

57. Submission 41 (Office of the Public Advocate).

    ↑

58. These figures relate to the program as a whole, not just sexual violence: ibid.

    ↑

59. These figures relate to the program as a whole, not just sexual violence. As well as responding to police requests, the intermediary pilot program met 134 requests for intermediaries in court matters: Victorian Government, Annual Report 2019—Royal Commission into Institutional Responses to Child Sexual Abuse (Report, December 2019) 16 <http://www.vic.gov.au/victorian-government-annual-report-2019-royal-commission-institutional-responses-child-sexual-abuse/redress-civil-litigation-report-2015>.

    ↑

60. Consultation 13 (Intermediary Pilot Program, Department of Justice and Community Safety).

    ↑

61. Justice and Community Safety (Vic), Manual of Procedures: Victim Services, Support and Reform—Intermediary Program (Manual, August 2019) 16.

    ↑

62. The programs have a memorandum of understanding guiding their cooperation regarding VAREs: ibid 15.

    ↑

63. See Criminal Procedure Act 2009 (Vic) 389H(2).

    ↑

64. Patsie Frawley and La Trobe University, Making Rights Reality: Final Evaluation Report (Report, La Trobe University, 2014) 6–7, 27–8.

    ↑

65. Submission 41 (Office of the Public Advocate).

    ↑

66. Submissions 17 (Sexual Assault Services Victoria), 41 (Office of the Public Advocate). This comprised around 10% of requests before the COVID pandemic. Following the pandemic, phone support is now offered, but this is recognised to have limitations: ibid; Consultation 17 (Roundtable consultation focused on the experience of women with disability).

    ↑

67. Consultation 25 (CASA senior counsellor/advocates).

    ↑

68. Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) 78, n 3 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>; Magdalena McGuire, Breaking the Cycle Using Advocacy-Based Referrals to Assist People with Disabilities in the Criminal Justice System (Report, Office of the Public Advocate, 2012) 19.

    ↑

69. Magdalena McGuire, Breaking the Cycle Using Advocacy-Based Referrals to Assist People with Disabilities in the Criminal Justice System (Report, Office of the Public Advocate, 2012) 19. See also Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) 326.

    ↑

70. Goodfellow, J, and M Camilleri, Beyond Belief—Beyond Justice: The Difficulties for Victim/Survivors with Disabilities When Reporting Sexual Assault and Seeking Justice (Report, Disability Discrimination Legal Service, 2003) 60.

    ↑

71. Consultation 17 (Roundtable consultation focused on the experience of women with disability).

    ↑

72. Submission 41 (Office of the Public Advocate). See also Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) Recommendation 13 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>.

    ↑

73. Consultation 17 (Roundtable consultation focused on the experience of women with disability).

    ↑

74. Submission 41 (Office of the Public Advocate); Consultation 40 (Roundtable consultation with Transgender Victoria, Bisexual Alliance and Drummond Street Services); Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 66 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

    ↑

75. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol 5, 196 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>; Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 104 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>; Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) 77–8 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>.

    ↑

76. Victoria Police, ‘Interviews and Statements’ in Victoria Police Manual (2018) 12.

    ↑

77. Consultation 91 (Victoria Police (No 3)); Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 111 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

    ↑

78. Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 111 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

    ↑

79. Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) 115 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>.

    ↑

80. Ibid 66, 79, Recommendation 12.

    ↑

81. Consultation 11 (Family violence and sexual assault practitioners focusing on disability inclusion). This could be a complementary reform to expanding ITPs or be part of an expanded ITP role.

    ↑

82. Submission 41 (Office of the Public Advocate).

    ↑

83. Victoria Police, ‘Interviews and Statements’ in Victoria Police Manual (2018) 13. For example, the Crimes Act 1958 (Vic) requires children and young people to have an independent person present at a police interview (with some exceptions): s 464E(1). See also Submission 41 (Office of the Public Advocate).

    ↑

84. Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 111 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

    ↑

85. Consultation 91 (Victoria Police (No 3)).

    ↑

86. Victims’ Charter Act 2006 (Vic) s 7B(c).

    ↑

87. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(a), (i), (j).

    ↑

88. For example, Scottish legislation includes a right ‘to be understood’ as well as ‘to understand’: Victims and Witnesses (Scotland) Act 2014 (Scot) s 3E. In Victoria, there is also a legislative requirement (with some exceptions) for children and young people to have an independent person present at a police interview: Crimes Act 1958 (Vic) s 464E(1).

    ↑

89. Jesuit Social Services and RMIT Centre for Innovative Justice, Recognition Respect and Support: Enabling Justice for People with Acquired Brain Injuries (Report, 21 September 2017) 79 <https://jss.org.au/recognition-respect-and-support-enabling-justice-for-people-with-acquired-brain-injuries/>. See also Magdalena McGuire, Breaking the Cycle Using Advocacy-Based Referrals to Assist People with Disabilities in the Criminal Justice System (Report, Office of the Public Advocate, 2012) 7; Submission 41 (Office of the Public Advocate).

    ↑

90. Submission 41 (Office of the Public Advocate).

    ↑

91. Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) 28 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

    ↑

92. Magdalena McGuire, Breaking the Cycle Using Advocacy-Based Referrals to Assist People with Disabilities in the Criminal Justice System (Report, Office of the Public Advocate, 2012) 111, 10.

    ↑

93. Submission 41 (Office of the Public Advocate).

    ↑

94. In our 2016 report, we also state that people providing communication assistance should be in a position to refer victims with disability to the support and advocacy they need for the criminal trial process: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [6.134].

    ↑

95. Magdalena McGuire, Breaking the Cycle Using Advocacy-Based Referrals to Assist People with Disabilities in the Criminal Justice System (Report, Office of the Public Advocate, 2012) 7. See also Submission 41 (Office of the Public Advocate).

    ↑

96. Our earlier Sexual Offences inquiry, for example, highlighted the need that existed then for specialist sexual assault training for ITPs: Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) Recommendation 154.

    ↑

97. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8; Equal Opportunity Act 2010 (Vic) s 3, pts 2 & 4; Multicultural Victoria Act 2011 (Vic) preamble (3), s 4(3).

    ↑

98. Victorian Government, ‘Understanding Language Services’, VIC.GOV.AU (Web Page, 28 October 2019) <http://www.vic.gov.au/guidelines-using-interpreting-services/understanding-language-services>.

    ↑

99. Consultation 17 (Roundtable consultation focused on the experience of women with disability).

    ↑

100. Department of Premier and Cabinet (Vic), Using Interpreting Services—Victorian Government Guidelines on Policy and Procedures (Report, August 2019) 8 <https://www.vic.gov.au/guidelines-using-interpreting-services>.

     ↑

101. Multicultural Victoria Act 2011 (Vic) s 26.

     ↑

102. Victorian Government, Multicultural Policy Statement (Report, 2017) 34 <http://www.vic.gov.au/multicultural-policy-statement>.

     ↑

103. Victorian Government, Service Delivery (Budget Paper No 3, 2020) 51 <http://www.budget.vic.gov.au/budget-papers>.

     ↑

104. Consultation 11 (Family violence and sexual assault practitioners focusing on disability inclusion).

     ↑

105. Ibid.

     ↑

106. Submission 17 (Sexual Assault Services Victoria).

     ↑

107. Ibid.

     ↑

108. See, eg, Submissions 17 (Sexual Assault Services Victoria), 49 (inTouch Multicultural Centre Against Family Violence), 54 (Victorian Multicultural Commission); Consultations 47 (Refugee Health Network and Refugee Health Program) 66 (Consultation focused on people who have a lived experience of states of mental and emotional distress commonly labelled as ‘mental health challenges’), 72 (Asylum Seeker Resource Centre (ASRC)).

     ↑

109. Consultation 47 (Refugee Health Network and Refugee Health Program).

     ↑

110. Submission 54 (Victorian Multicultural Commission).

     ↑

111. Consultations 47 (Refugee Health Network and Refugee Health Program), 66 (Consultation focused on people who have a lived experience of states of mental and emotional distress commonly labelled as ‘mental health challenges’), 72 (Asylum Seeker Resource Centre (ASRC)); Submissions 49 (inTouch Multicultural Centre Against Family Violence), 54 (Victorian Multicultural Commission).

     ↑

112. Consultation 72 (Asylum Seeker Resource Centre).

     ↑

113. Submission 49 (inTouch Multicultural Centre Against Family Violence); Consultation 47 (Refugee Health Network and Refugee Health Program).

     ↑

114. Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

     ↑

115. The practice note informs police of the need for a professional interpreter, of the risk of emotional trauma if children or people known to the affected family member are used, of the possibility someone may hesitate to provide information for certain reasons, and that all reasonable steps must be taken to ensure the interpreter is not associated with the victim or their immediate cultural community: Victoria Police, Code of Practice for the Investigation of Family Violence (Interim Version, Police) [9.2] <http://www.police.vic.gov.au/code-practice-investigation-family-violence>; Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) Recommendation 159 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

     ↑

116. Victoria Police, Code of Practice for the Investigation of Sexual Crime (Policy, 2016) <https://content.police.vic.gov.au/sites/default/files/2019-01/Code-of-Practice-for-the-Investigation-of-Sexual-Crime-%282016%29.pdf>.

     ↑

117. Victorian Government, ‘Victoria Police Amend the Code of Practice around the Use of Interpreters’, VIC.GOV.AU (Web Page, 18 May 2020) <http://www.vic.gov.au/family-violence-recommendations/victoria-police-amend-code-practice-around-use-interpreters>.

     ↑

118. Victims and Witnesses (Scotland) Act 2014 (Scot) s 3F.

     ↑

119. Federation of Ethnic Communities’ Councils of Australia (FECCA), Australia’s Growing Linguistic Diversity (Report, 2016) 34–43 <http://fecca.org.au/publications/australias-growing-linguistic-diversity/>.

     ↑

120. Victorian Government, ‘Interpreter Scholarships’, VIC.GOV.AU (Web Page, 2021) <http://www.vic.gov.au/interpreter-scholarships>.

     ↑