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

22. The path forward: implementing reforms to respond to sexual violence

Overview

• The reforms in this report need to be implemented effectively.

• There are three main ways these reforms could be implemented:

– by using existing bodies

– by establishing a new Commission for Sexual Safety

– by a hybrid model.

• We recommend establishing a new Commission for Sexual Safety.

• The functions of the new Commission for Sexual Safety will span prevention, education and responses to sexual violence. It will provide a ‘systems-wide’ approach to the implementation of reforms.

• We recommend an annual report on the progress of the implementation of our and other reforms relating to sexual violence.

How should our proposed reforms be implemented?

22.1 The process of reforming the law is ‘far from straightforward’. The intention of reforms can be limited or obscured by the way they are implemented.^[1] People, institutions and systems can enable or block reform, especially when reforms require changes to attitudes and understanding.^[2]

22.2 For a reform to succeed, it must be implemented effectively. Reforms should be communicated widely, properly resourced, and should foster good relationships between partners in the sexual assault system.^[3] We make recommendations along these lines throughout this report (see Chapters 3, 4, 5 and 18).

22.3 This report recommends a range of new functions and initiatives, including:

• public education about sexual violence (see Chapter 3)

• regular publication of criminal justice data (see Chapter 6)

• a central website and phoneline for people to access information and support (see Chapter 7)

• a new restorative justice scheme (see Chapter 9)

• a specialised stream for victim survivors of sexual violence in the new financial assistance scheme (see Chapter 10)

• support for some civil litigation and enforcement of civil settlements and court orders (see Chapter 11)

• independent victim advocates (see Chapter 12)

• separate legal representation for victim survivors of sexual violence (see

Chapter 12)

• an independent review of police and prosecution decisions (see Chapter 17)

• an expert evidence panel (see Chapter 20).

22.4 Several different organisational structures could be used to implement these recommendations. Our proposed reforms are also likely to be complemented by other measures developed as part of Victoria’s Sexual Assault Strategy (see Chapter 1).

22.5 As other recent inquiries have shown, when reforms span government departments and systems, there needs to be:

• clear responsibility for delivering reform

• a way to keep a ‘systems-wide’ view of reforms

• ways to hold people accountable for delivering reforms.

22.6 This chapter looks at:

• how our reforms should be implemented

• who should implement them.

22.7 There needs to be a ‘systems-wide’ approach to implementing reforms. Our preferred model to achieve this is an independent body that is responsible for overseeing the system for preventing, reducing and responding to sexual violence.

22.8 Establishing such a body will send a strong signal to the community about the priority the government places on tackling sexual violence and improving responses to it.

22.9 This body should work closely with existing organisations within the system responding to sexual violence, and should coordinate the way these organisations work together to drive reforms.

22.10 We also recommend that the implementation of our proposed and other reforms relating to sexual violence be monitored, so that the Victorian Government, individual organisations and people are held accountable for the effective implementation of these reforms.

Who is already working on responding to sexual violence?

22.11 To identify who should deliver reforms, we need to know who is already working in the area. Sexual violence reforms overlap with many related reforms, including in family violence. It is a complex and fragmented landscape, with responsibilities across different levels of government and many systems (see Chapters 1 and 4).

22.12 These bodies and systems need to be considered in implementing reforms, as they already have roles and responsibilities related to sexual violence. As well, specialist sexual assault services and organisations within the criminal justice system play a key role in our reforms.

There are bodies established by related reforms

22.13 Related reforms, such as family violence reforms, have already set up bodies to coordinate the delivery of system-wide reform. Other organisations focus on promoting primary prevention or improving practice through research (see Table 21).

Table 21: Key bodies established to implement reforms or to promote evidence-informed practice

22.14 Some of these related reforms, such as Victoria’s family violence reforms, have established roles to monitor implementation, such as the Family Violence Reform Implementation Monitor.^[14] We discuss this later in the chapter.

22.15 Victoria’s family violence reforms have led to the creation of two agencies which have responsibilities directly relevant to sexual violence. Family Safety Victoria is the main agency responsible for family violence reforms and is leading the development of the Sexual Assault Strategy. It funds specialist sexual assault services. It is responsible for delivery of many reforms that intersect with sexual violence, including Orange Doors and the Multi-Agency Risk Assessment and Management Framework (MARAM) (see Chapters 1 and 18).^[15]

22.16 A separate, independent body, Respect Victoria, progresses primary prevention of family violence and violence against women, working with other relevant bodies.^[16] The Family Violence Reform Implementation Monitor noted that Family Safety Victoria and Respect Victoria had been ‘critical’ to driving change.^[17]

22.17 However, responsibility for family violence reforms was previously split between Family Safety Victoria, the Office for Women, and Respect Victoria. These bodies, together with the Family Violence Branch previously within the Department of Premier and Cabinet, now sit together within the Department of Families, Fairness and Housing.^[18]

Specialist sexual assault services have a major role

22.18 Specialist sexual assault services are at the heart of the sexual assault system. They help people to heal through counselling, and they support people by, for example, connecting them to services and advocating for them as they navigate a complex system. They are experts in sexual violence and in the journeys their clients take through legal and service systems.

22.19 Centres against sexual assault (CASAs) already perform, or have performed, some functions relevant to our recommendations, including:

• providing information and guidance (see Chapter 7)

• advocating for victim survivors (see Chapter 12).

22.20 In Chapters 4 and 8, we discuss the need to strengthen the capacity of specialist sexual assault services to play a systemic role. This includes as a key partner in governance and collaboration (see Chapters 4 and 5), and in supporting other organisations to respond to sexual violence (Chapter 8).

Justice agencies have a major role

22.21 Our inquiry focuses on the justice system. With previous sexual assault reforms, the Department of Justice (now the Department of Justice and Community Safety) usually took the lead.

22.22 This department is responsible for several programs and initiatives related to those that we recommend. For example, it runs the Family Violence Restorative Justice Service (see Chapter 9). It is responsible for victim support programs and the planned Victims’ Legal Service, which are relevant to our recommendations for extending victim support (see Chapter 12).

22.23 The justice system includes other organisations whose work is directly relevant to our reforms. The Crime Statistics Agency reports on police data. It has developed the family violence data portal that will be extended to sexual violence, and the family violence data collection framework. In Chapter 6, we have recommended extending its work to include reviewing attrition, including through an analysis of police and prosecution files.

22.24 We also discuss in Chapter 4 the role of the Victims of Crime Commissioner, including her power to review complaints under the Victims’ Charter Act 2006 (Vic). We recommend extending her powers and duties, and the rights under the Victims’ Charter Act, to ensure accountability for some of the reforms needed to improve the experiences of victims of crime.

22.25 The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) handles sexual harassment complaints alongside the Australian Human Rights Commission. We recommend giving VEOHRC power to enforce the duty in the Equal Opportunity Act 2010 (Vic) to take reasonable and proportionate steps to eliminate sexual harassment, as far as possible. We also recommend empowering it to enforce a new duty to take reasonable and proportionate steps to eliminate sexual violence, as far as possible (see Chapter 3).

What can we learn from the past?

22.26 Research has begun to identify best practice in implementation through ‘implementation frameworks’, which are a set of linked strategies to describe, understand or guide the process of implementation.^[19]

22.27 A review of best practice concluded:

Good implementation requires attention to the competencies and skills of both the individuals and the organisations involved. Both individual and organisational capacity must be built for implementation. … Implementation is a complex endeavour that can be influenced by the nature of the practice, program or policy being introduced; the individuals involved; the inner and outer context of the organisation implementing an intervention; and the quality of the implementation process. Hence, changes should be well planned and considered. … Implementation takes place in stages, and the effective implementation of practices, programs and policies takes time.^[20]

22.28 After four years of reform, the Family Violence Reform Implementation Monitor has identified six lessons for implementing future reforms. They include the need for dedicated roles to implement reforms both centrally and at local levels, and for reform leaders to be supported to champion and persist in their efforts. The Monitor emphasised the importance of collecting and using data to drive improvement, and of including feedback processes to ensure that reforms stay true to their intent.^[22]

What are possible models for implementation?

22.29 These lessons have informed our recommendations and they provide guidance on how best to implement them.

22.30 Many different forms of organisations could implement our proposed reforms. The Victorian Government could establish an administrative office to deliver reform, as it has done for family violence and mental health reforms (see Table 21). This model has the advantages of being closely connected to government, including funding and decision making, while still having some independence in its operations.

22.31 Another model is to create an independent office, rather than an independent body or organisation. This is done by appointing a person to hold an office, usually by legislation, supported by staff of government departments. This model is used for the Victims of Crime Commissioner (see Chapter 4), who is supported by staff from the Department of Justice and Community Safety.

22.32 An advantage of this model is that the office retains its independence but does not require a lot of money and time to set up, as the office shares its administrative resources. Models like this are fluid. ‘Commissions’ can have a variety of legal structures. ‘Commission’ can be used as a name for a business unit of the executive government. It can have its existence recognised (and powers given) by statute while still forming part of the executive government. It can also be a separate legal entity from government established by legislation with varying degrees of independence.^[23]

22.33 In England and Wales, the newly established Domestic Abuse Commissioner is an office under law but is staffed by public servants (see box).^[24]

22.34 We have considered three models for implementing the proposed reforms:

• build on existing organisations and systems (Option 1)

• create a new organisation, such as a Commission for Sexual Safety (Option 2)

• create a new office within an existing organisation to take on some functions, while building on existing organisations and systems (Option 3, a hybrid of Options 1

and 2).

Option 1: Build on what is already there

22.35 There are already many organisations with existing responsibilities for sexual violence. In Option 1, our recommendations would be implemented by the organisation best placed to take on that role (see Table 22).

Table 22: Existing bodies with responsibility for functions

22.36 In this model, Family Safety Victoria (or an extension of the agency) could remain the coordinator for system-wide reforms, and its existing role could remain as it is for family violence and child sexual abuse reforms. This is also consistent with its role leading the development of the Sexual Assault Strategy. However, the Department of Justice and Community Safety could be responsible for parts of the reform process. Specialist sexual assault services would need to be funded to fulfil a more systemic role.

Advantages of Option 1

22.37 The advantages of this model would be:

• It would strengthen existing models rather than creating new structures, enabling resources to be focused on service delivery and program implementation and evaluation.

• It would build on existing strengths, functions and expertise.

• It would align with reforms in related areas by ensuring that family violence, child sexual abuse and sexual violence reforms travel together.

• It could be achieved rapidly because it would be based on existing functions and powers.

• It would foster collaboration between organisations.

• It would be more flexible to implement.

Disadvantages of Option 1

22.38 The main disadvantage of this model is that it leaves the sexual assault system without a body or organisation that takes a system-wide view of sexual violence. This could lead to an uncoordinated and fragmented approach to reform.

22.39 Further, there is a risk that, without an organisation with a mandate focused on reform, the momentum for reform could wane. For example, the Statewide Steering Committee to Reduce Sexual Assault (see Chapter 4) disappeared as momentum and high-level support for it faded.

Option 2: Create a new body

22.40 Option 2 would be to establish by law a new Commission for Sexual Safety with a mandate to take a system-wide view.

22.41 There are several examples of how such a Commission could be structured. One is the National Mental Health Commission, which ‘acts as a catalyst for change’ to improve Australia’s mental health and suicide prevention system (see box). A Mental Health and Wellbeing Commission will also be established following the Royal Commission into Victoria’s Mental Health System.^[29]

22.42 Another relevant model is the Commission for Children and Young People in Victoria, which:

• provides independent scrutiny and oversight of services for children and young people

• advocates for best practice policy, program and service responses to meet the needs of children and young people

• supports and regulates organisations that work with children and young people to prevent abuse and make sure these organisations have child safe practices

• brings the views and experiences of children and young people to the attention of government and the community 

• promotes the rights, safety and wellbeing of children and young people.^[31]

22.43 This is similar to the model proposed by Carolyn Worth and Mary Lancaster in their submission. Their model would also provide oversight of service delivery and play a stronger role as an advocate for best practice (see Figure 19). They suggested that such a Commission could also lead a statewide Committee (see Chapter 4).^[32]

Figure 19: Proposed model for Commission for the Reduction of Sexual Harm^[33]

Advantages of Option 2

22.44 The advantages of this model are that it would:

• ensure and entrench a ‘systems-wide’ view of sexual violence within government

• highlight the priority placed by the government on tackling sexual violence

• provide strong and visible leadership and be a focal point in the reform agenda

• provide a more visible ‘front door’ for information and guidance about the complex systems for responding to sexual violence, including the justice options recommended in this report

• raise community awareness and be a part of the public debate

• provide options beyond the justice system

• bring specialised focus and expertise

• act as an advocate within the system for people who have experienced sexual violence.

22.45 Such a Commission could have a major role in the primary prevention of sexual offending and breaking down the barriers to reporting. It could also focus on responses after, or beyond, the criminal justice system. For example, the Commission could perform the functions in Table 23, in partnership with any existing agencies.

Table 23: Possible new functions of a proposed Commission

22.46 We see potential for such a Commission to oversee the future Sexual Assault Strategy.

Disadvantages of Option 2

22.47 There are disadvantages to establishing a new body. A key disadvantage is that it will be necessary to make sure a new body does not add confusion to an already complex landscape or divert resources from under-resourced programs providing access to justice and support.

22.48 Many organisations already work to prevent or respond to sexual violence. Existing bodies may be better placed to conduct some of the possible functions of a new body because, for example, of their expertise or experience. The relationship of the Commission to other organisations will need to be carefully defined. Laws would also need to be changed so that existing organisations could share their information with the new body.

22.49 It may be challenging to deliver the diverse functions of the proposed Commission—for example, it may be desirable to separate advocacy functions from functions that may require impartiality, such as regulatory functions.^[34]

22.50 Independent bodies are usually established outside government to hold government accountable or to ensure an independent voice. While independent bodies have influence, the degree of that influence depends upon how well they are funded and supported by the government of the day.

22.51 There is also a risk of creating further silos between sexual violence and other intersecting forms of violence, including family violence, child sexual abuse and sexual harassment.

22.52 The new Commission could help to direct research and identify research needs. But this function would need to be aligned with similar work being done elsewhere, including through the Victorian whole-of-government research agenda on family violence and the national agenda on reducing violence against women and their children (see Chapter 6).

22.53 Such a role would also need to align with the work of research centres, including two national bodies (ANROWS and the National Centre for the Prevention of Child Abuse) whose responsibilities cover sexual violence. Some of the research needs that are discussed in Chapter 6 might be better addressed by strengthening those bodies.

22.54 The new Commission would need significant resourcing. There would need to be a consultation process to design the Commission, which would take time.

Option 3: Adopt a hybrid model

22.55 Option 3 would aim to blend the benefits of the first two options by establishing a dedicated office for sexual safety within an existing body or related to an existing office. Some Commissions have specialist Commissioners, such as the Commissioner for Aboriginal Children and Young People which sits within the Commission for Children and Young People. The Australian Human Rights Commission has individual Commissioners representing different aspects of its work, as well as a President.^[35]

22.56 In Chapter 4, we have recommended strengthening the powers of the Victims of Crime Commissioner and extending the rights of victim survivors under the Victims’ Charter Act.^[36] These expanded powers would require resourcing and specialist expertise.

22.57 In Option 3, these expanded powers could be exercised by a specialist Commissioner responsible for sexual safety whose office is established by legislation and is supported by the Victims of Crime Commissioner’s office. The law could also require such a specialist Commissioner to have expertise in sexual safety.

22.58 For example, the specialist Commissioner could conduct the more intensive monitoring that we recommend in Chapter 4. They could exercise legal powers, similar to those of the Victims of Crime Commissioner, to access records and provide reports, and publish annual reports on compliance with the protocol we propose in Chapter 4.

22.59 As discussed in Chapter 10, the Victorian Government is establishing a new financial assistance scheme. We recommend that a specialised stream in this scheme be introduced for people who have experienced sexual violence.

22.60 A specialist Commissioner whose office is supported by the Victims of Crime Commissioner could be the decision maker for this stream, with appropriately qualified staff. This would give the management of financial assistance for sexual violence, including victim conferences, the high profile it deserves, with appropriately specialised and senior officers similar to those appointed as Royal Commissioners.

22.61 The specialist Commissioner could perform some functions envisaged for a Commission, such as taking part in public debate and leading collaboration between organisations. They could coordinate feedback from victim survivors to the partners in the sexual assault system.

22.62 In this model, a strengthened Sexual Assault Services Victoria could act as a truly independent advocate for the interests of victim survivors. This would ensure that this advocacy would have a strong connection with the experiences of victim survivors. It could also play a central role in managing the victim advocates scheme. Other initiatives could be taken over by existing organisations that are best suited to perform them (see Table 24).

Table 24: Other functions not covered by a proposed Commissioner

Advantages of Option 3

22.63 Option 3 would offer some benefits of a stand-alone Commission, including increased visibility and a ‘system-wide’ view of sexual violence.

22.64 It would also reduce the practical challenges of setting up a stand-alone Commission, and the risk of undermining and fragmenting existing organisations.

Disadvantages of Option 3

22.65 This option is a midway point which might reduce some of the visibility and symbolic significance of a stand-alone Commission. With Option 3, the relationship between the head of the Commission and the specialist office would need to be defined, to make clear which office is responsible for what area of work.

22.66 There is also a risk that these offices can be effectively left vacant,^[37] although the strength of this model depends less on the formal structure than on how well the offices are supported and resourced.

What we heard about the three options

22.67 Although our issues paper asked a question on governance and shared outcomes (see Chapter 4), it did not directly raise the issue of implementation, or the models outlined above. Only one submission, by Carolyn Worth and Mary Lancaster, directly addressed this issue.

22.68 It is difficult to discuss implementation before knowing what our recommendations will be, or which will be accepted. Even so, we explored the options set out here in consultations with relevant organisations held towards the end of our inquiry.

22.69 There were significant limits to these consultations. Most obviously, they did not give many others an opportunity to be heard.

22.70 The organisations we consulted were not provided with fully fleshed-out options. The implementation options outlined here were one of many topics discussed. The people we spoke to were asked to indicate their initial views only.

22.71 This testing revealed no consensus on a preferred option, including on the value of a new independent body or office.

22.72 Several organisations did not see the value of an independent Commission. They expressed concern about the duplication and overlap with existing and proposed bodies, and the risk of further fragmentation. They saw challenges in combining a wide range of diverse functions and observed that it would take time and resourcing to establish such a body.

22.73 The Victims of Crime Commissioner preferred the option of strengthening the existing sexual assault sector, including the peak body (SAS Victoria), the Sexual Assault Crisis Line and centres against sexual assault (CASAs). She noted that a strong, independent non-government advocacy body is vital for promoting community awareness, enhancing public policy development and holding governments to account.

22.74 She also told us there is value in driving reforms from within government, and that:

there needs to be a whole-of-government response given sexual harm crosses the justice, human services, education and gender equality sectors, requiring cooperation and coordination between multiple government departments, statutory entities and community service organisations.^[38]

22.75 SAS Victoria expressed the view that, if there was robust governance ‘with clear collaborative principles and shared leadership’ (see Chapter 4), it did not see what further value would be added by an independent Commission. While agreeing that there needed to be stronger oversight and accountability, their preference was for a governance structure that was ‘more closely linked to the lived experience of victim survivors and expert practice’.^[39]

22.76 Victoria Police expressed its concern that there appeared to be ‘limited rationale’ for creating a new government agency. It expressed its view that:

directing resources away from reform efforts that would meaningfully improve the capabilities of existing agencies, including police (which provide the interface between the victim and the criminal justice system) may be viewed unfavorably by victim-survivors, or seen as tokenistic.^[40]

22.77 On the other hand, the Magistrates’ Court of Victoria and some judges of the County Court of Victoria welcomed the model of a new body or office. They saw value in recognising that sexual violence is widespread and providing options beyond the justice system. They saw such a Commission as providing leadership and a point of focus on sexual violence, which would promote public education, inform public debate, and advocate for people who have experienced sexual violence.^[41]

We recommend establishing a new Commission for Sexual Safety

22.78 The question which the recommendation addresses raises a choice of the best structure to implement the reforms. The choice is complex and finely balanced. This was reflected in discussions and debate within the Commission, and also in the views expressed in consultations which we undertook.

22.79 On balance, we prefer the option of a stand-alone independent body, such as a new Commission for Sexual Safety. The preferred structure addresses the need:

• for a more systemic approach to overseeing and coordinating the complex landscape of responding to sexual violence

• to make sure that the intent of sexual violence reforms are realised by taking a systems-wide view.

22.80 While we recognise the need to strengthen existing parts of the system and we make recommendations to address this in other chapters (see Chapter 4), we do not consider that building upon existing bodies can achieve this (Option 1).

22.81 We see the Commission as a way of connecting different systems. It would act as a ‘systems-level governor’, ideally placed to chair the statewide governance mechanism recommended in Chapter 4.

22.82 A new Commission would recognise the longstanding and unique complexities of sexual violence and the enormous damage it does to our community. It would be a powerful signal of the issue’s importance, and the government’s commitment to tackling it. It would bring visible and continuing leadership on sexual violence.

22.83 We have considered whether an administrative office within a government department could undertake some of these functions, along the lines of Family Safety Victoria. However, the departmental relationship may make it more difficult to coordinate the whole-of-government response that sexual violence requires. We also consider that the Commission should have an advocacy role, which would not be appropriate for an agency within government.

22.84 This is especially important because so many people who experience sexual violence have had poor experiences with government agencies, such as Child Protection or the police. Independence is, in our view, critical to ensuring that people trust the new Commission to act in their interests and champion their voices.

What would be the new Commission’s relationship to existing organisations?

22.85 In recommending the establishment of a new Commission for Sexual Safety, we acknowledge the need to avoid duplicating the functions of existing bodies. To do this, it is necessary to define the relationships between the Commission for Sexual Safety and existing organisations. While this will require more work and consultation once it is known which reforms are to be implemented, it is possible now to flag some lines of demarcation between functions.

22.86 We recognise the vital role of the Victims of Crime Commissioner in relation to monitoring victim services and the response of the criminal justice system to victims (see Chapter 4). We do not expect these functions would be duplicated by the Commission and, indeed, recommend strengthening the powers of the Victims of Crime Commissioner (see Chapter 4).

22.87 The work of the Victims of Crime Commissioner would complement the broader work of the new Commission, which extends beyond the criminal justice system and spans prevention and education. The new Commission would use the work of the Victims of Crime Commissioner (for example, its proposed monitoring of the multi-agency protocol and its data on complaints) as part of its broader oversight and coordination role. It would not conduct the same intensive monitoring of victim service agencies or the criminal justice organisations as the Victims of Crime Commissioner.

22.88 In Chapter 7, we recommend a central website and phoneline. The Commission would oversee the central gateway to information and support, drawing on leading knowledge on the effective design of help-seeking websites. It would work with Sexual Assault Services Victoria and other community organisations who respond to sexual violence (Chapter 8) to ensure that the website and phoneline provide everyone in the community with the necessary information and access to support. The Commission would ensure the website and phoneline were integrated with existing support service platforms and remain current.

22.89 We take a similar view of the role of the Crime Statistics Agency and the proposed working group in Chapter 6 to address data collection, research and evaluation in the criminal justice system. We expect that the Commission here will not duplicate that role, but instead use this work to inform its oversight of the broader picture. For example, we expect that these organisations would supply data and their analyses to the Commission, and that the Commission would identify priorities and needs for data, but that it would not itself be analysing the data or conducting the research. It should also take part in the working group, to ensure that this work is aligned with other parts of the system.

22.90 In Chapter 12, we recommend a model of independent victim advocates, which would build on the existing work of counsellor advocates within CASAs and would also extend beyond CASAs. It would include, for example, Victim Assistance Program providers who are managed by the Department of Justice and Community Safety. We expect that the funding would still be administered through this model.

22.91 We expect that the role of the Commission here would be to provide high-level oversight to ensure the consistency and quality of the model by, for example, ensuring data is collected about the model and setting out guidelines for advocates. However, the employment, training and clinical supervision of victim advocates should be managed by existing services, with Sexual Assault Services Victoria potentially playing a role in supporting capacity building and training for this model.

22.92 We have also identified possible new functions that could be carried out by the Department of Justice and Community Safety. These include responsibility for a new restorative justice scheme for all offences, including sexual offences. The new Commission would play an important role exercising oversight of restorative justice for sexual violence, which, as we discuss in Chapter 9, needs to be managed carefully. The Commission would set accreditation and training standards for restorative justice providers for sexual violence. It would also monitor how well restorative justice for sexual violence was working.

22.93 We also suggest that the Commission should have a guiding role in the scheme for supporting civil litigation recommended in Chapter 11. This should include setting priorities and funding criteria. There are already various funding schemes administered by the Department of Justice and Community Safety and Victoria Legal Aid, so these organisations could support the Commission in this work, applying the funding criteria and supporting legal assistance services in their case management.

22.94 We recognise that there may be a tension if the Commission was both a strong advocate and responsible for reforms that require a body that is both impartial and seen to be impartial. For this reason, we have excluded it from the role of overseeing the independent panel that we propose should review police and prosecution decisions (see Chapter 17).

22.95 We see less of a conflict with the function of establishing an expert evidence panel, as we expect that the expert evidence will focus on non-contentious expert advice (see Chapter 20). If the expert advice is contentious, it can be contested by other experts. While we have suggested that this function could be carried out by the Commission, we recognise that there may still be concerns about partiality. If this appears to be a serious concern upon further consultation, this could be addressed by the panel being established instead by the Department of Justice and Community Safety, with input from the new Commission.

How to address potential delay in implementation

22.96 We recognise that establishing a new Commission will take time. In setting up a Commission there will need to be further consultation about its nature and the scope of its functions. While we have proposed some functions here, they would depend on the extent to which government accepts our recommendations. Other functions may need to be included as part of the Sexual Assault Strategy. There will also need to be consultation about the relationship of the new Commission with existing organisations.

22.97 We also recognise the concern that the time taken to do this work could impede the early implementation of valuable reforms. However, some of these reforms, such as restorative justice, will themselves need some time to establish properly, so further consultation and design for them could be sequenced alongside the consultations needed to establish the Commission.

22.98 The government could also consider implementing reforms through existing bodies (as identified in Option 1) at first, and then transferring those functions to the Commission when it is established, so that setting up the Commission does not delay reform. For example, an expert evidence panel could be established first by the Department of Justice and Community Safety, with further appointments to be made by the Commission when established.

What are the costs and benefits of establishing a new Commission?

22.99 It is important that the investment in the Commission should be in addition to the further investment into existing services which we recommend in Chapter 4. It is also important that any new Commission be properly funded to discharge its functions. In the end, if the Commission succeeds, we believe its cost will be greatly outweighed by the savings to government through preventing and reducing sexual violence, and through the outcomes of better supporting people who experience sexual violence.

How should the reforms be monitored?

22.100 Reforms to the family violence system, among others, have shown the value of an independent monitor to hold people to account. An independent Family Violence Reform Implementation Monitor was established by law.^[42]

22.101 The Monitor’s functions include:

• monitoring and reviewing the progress of an agency against a published implementation plan and the implementation of the recommendations of the Royal Commission on Family Violence

• consulting and engaging with agencies in performing its functions

• producing written reports on its findings and conclusions.^[43]

22.102 Victoria has adopted similar models following recommendations in other inquiries, including most recently the Royal Commission on the Management of Police Informants.^[44]

22.103 The Family Violence Reform Implementation Monitor has recently published its fourth annual implementation report. The term of the Monitor will continue until the end of 2022.^[45]

22.104 The Monitor told us that its independence from Family Safety Victoria and its ‘whole of system view’ had been valuable.^[46] We consider that this has been a valuable model which should be considered in the development of a Sexual Assault Strategy.

22.105 In Chapter 4, we make recommendations that would bring some monitoring functions within the role of the Victims of Crime Commissioner. Other recommendations in this report could also be brought within that role, such as our recommendations for a restorative justice scheme and in relation to financial assistance (see Chapters 9

and 10).

22.106 Some reforms may need different mechanisms to ensure accountability. For example, oversight of advocates would be better placed with those who have expertise in human services. This is especially likely if broader reforms are proposed, such as primary prevention and perpetrator accountability.

22.107 We see value in a role that keeps the Victorian Government, organisations and people accountable across all the reforms from this inquiry and related reforms. This monitoring would have to be independent of all those in the system, including the new Commission. It is not, however, within the scope of this inquiry to propose how to do this, especially before we know what future reforms might look like.

22.108 One option would be to extend the role and term of the Family Violence Reform Implementation Monitor. This would have the benefit of bringing the expertise developed in that role to sexual assault reforms and help to align sexual violence reform with family violence reforms.

22.109 We recommend that the Victorian Government should report annually on the progress of implementing the reforms arising from this report and other sexual violence reforms. Given the value of a formal monitoring function, we also recommend the Victorian Government should consider establishing this function for sexual violence reforms. This would need to be informed by other reforms the government plans to make.

1. Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice (Research Report No 27, Australian Institute of Family Studies (Cth), April 2014) 39 <https://aifs.gov.au/publications/victimsurvivor-focused-justice-responses-and-reforms-criminal-court-practice>.

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2. Ibid 39–42.

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3. Ibid x.

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4. Victorian Government, ‘Family Safety Victoria’, VIC.GOV.AU (Web Page, 17 August 2021) <http://www.vic.gov.au/family-safety-victoria>.

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5. ‘About’, Respect Victoria (Web Page, 2021) <https://www.respectvictoria.vic.gov.au/about>.

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6. ‘About Us’, National Office for Child Safety (Web Page) <https://childsafety.pmc.gov.au/about-us>.

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7. Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (Report, December 2017) Recommendation 9.9 <https://www.childabuseroyalcommission.gov.au/final-report>.

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8. ‘National Centre for the Prevention of Child Sexual Abuse’, Department of Social Services (Cth) (Web Page, 18 June 2021) <https://www.dss.gov.au/families-and-children-programs-services-children/national-centre-for-the-prevention-of-child-sexual-abuse>.

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9. Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Report, 8 April 2021) 7 <https://www.ag.gov.au/rights-and-protections/publications/roadmap-for-respect>.

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10. Australia’s National Research Organisation for Women’s Safety (ANROWS), ‘Who We Are’, ANROWS (Web Page) <https://www.anrows.org.au/about/>.

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11. ‘Our Story’, Mental Health Reform Victoria (Web Page, 19 November 2020) <https://www.mhrv.vic.gov.au/our-story>.

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12. Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021) Recommendation 45(3) <https://finalreport.rcvmhs.vic.gov.au/>.

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13. Mental Health Reform Victoria, Victorian Collaborative Centre for Mental Health and Wellbeing (Web Page, 2020) <https://www.mhrv.vic.gov.au/our-work/mental-health-systems-innovation/victorian-collaborative-centre-mental-health-and-wellbeing>.

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14. Family Violence Reform Implementation Monitor Act 2016 (Vic). See also the recent establishment of a similar monitor to oversee the recommendations of the Royal Commission into the Management of Police Informants: Daniel Andrews, Premier of Victoria, ‘Government to Act on All Recommendations of Royal Commission into the Management of Police Informants’ (Media Release, 30 November 2020) <http://www.premier.vic.gov.au/government-act-all-recommendations-royal-commission-management-police-informants>.

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15. Victorian Government, Family Safety Victoria, VIC.GOV.AU (Web Page, 17 August 2021) <http://www.vic.gov.au/family-safety-victoria>; Victorian Government, Service Delivery (Budget Paper No 3, 2020) 51 <http://www.budget.vic.gov.au/budget-papers>; Victorian Government, Family Violence Reform Rolling Action Plan 2020–2023: Activities Index (Combined Activity Summary) <https://www.vic.gov.au/family-violence-reform-rolling-action-plan-2020-2023>.

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16. Respect Victoria (Web Page, 2021) <https://www.respectvictoria.vic.gov.au/>. For example, it aims to work with Our Watch, ANROWs and VicHealth: ‘Our Role’, Respect Victoria (Web Page, 2021) <https://www.respectvictoria.vic.gov.au/our-role>.

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17. Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Fourth Report to Parliament, 1 November 2020) 8 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>.

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18. Ibid 149.

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19. Parenting Research Centre and Robyn Mildon, Implementation Best Practice: A Rapid Evidence Assessment (Report, Royal Commission into Institutional Responses to Child Sexual Abuse, May 2016) 14 <https://apo.org.au/node/64146>. This report summarises and critically analyses this research.

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20. Ibid 8.

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21. Parenting Research Centre, Implementation of Recommendations Arising from Previous Inquiries of Relevance to the Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, Royal Commission into Institutional Responses to Child Sexual Abuse, May 2015) xv–xvi <https://www.parentingrc.org.au/publications/review-for-royal-commission-on-implementation-of-recommendations/>.

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22. Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Fourth Report to Parliament, 1 November 2020) 26, 29–31 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>.

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23. See, eg, the National Mental Health Commission, which is an executive agency that operates under the Public Governance, Performance and Accountability Act 2013 (Cth): ‘About’, National Mental Health Commission (Web Page) <https://www.mentalhealthcommission.gov.au/About>.

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24. ‘Domestic Abuse Commissioner Factsheet’, GOV.UK (Web Page) <https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-commissioner-factsheet>.

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25. Domestic Abuse Commission (England and Wales) and SafeLives, Understanding Court Support for Victims of Domestic Abuse (Report, June 2021) 3 <https://safelives.org.uk/sites/default/files/resources/Court%20Support%20Mapping%20Report%20-%20DAC%20Office%20and%20SafeLives.pdf>.

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26. Domestic Abuse Act 2021 (UK) s 7.

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27. Ibid ss 8–9.

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28. Ministry of Justice (UK), Domestic Abuse Bill 2020 (Impact Assessment, February 2020) [51] <https://publications.parliament.uk/pa/bills/cbill/58-01/0096/IAFEB2020.pdf>.

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29. Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021) vol 4, Recommendation 44 <https://finalreport.rcvmhs.vic.gov.au/>.

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30. ‘Our Role’, National Mental Health Commission (Web Page, 2021) <https://www.mentalhealthcommission.gov.au/about/our-role>.

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31. ‘Who We Are’, CCYP (Web Page) <https://ccyp.vic.gov.au/about-the-commission/who-we-are/>. See also Commission for Children and Young People Act 2012 (Vic); Child Wellbeing and Safety Act 2005 (Vic).

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32. Submission 10 (Carolyn Worth AM and Mary Lancaster).

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33. Ibid. Acronyms have been spelled out for clarity and were not in the original submission.

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34. For example, it may be preferred to establish an expert evidence panel or an independent review of prosecutorial decisions separately from the Commission, if there is a perception that the Commission is an advocate for victim survivors.

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35. Australian Human Rights Commission Act 1986 (Cth) s 8.

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36. In Chapter 6, we note that there may be value in the Victims of Crime Commissioner working with the Crime Statistics Agency to publish regular data on the response of the criminal justice system to sexual violence.

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37. See, eg, the experience of the Office of the Australian Information Commissioner, which includes provision for a privacy commissioner that is now fulfilled by the same office holder: Stephen Easton, ‘Last Man Standing: Information and Privacy Commissioner Timothy Pilgrim to Retire’, The Mandarin (online, 20 February 2018) <https://www.themandarin.com.au/88709-last-man-standing-information-and-privacy-commissioner-timothy-pilgrim-to-retire/>.

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38. Consultation 88 (Victims of Crime Commissioner).

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39. Consultation 89 (Sexual Assault Services Victoria (No 2)).

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40. Consultation 93 (Victoria Police (No 4)).

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41. Consultation 86 (Magistrates’ Court of Victoria (No 2)); Consultation 87 (County Court of Victoria (No 2).

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42. Family Violence Reform Implementation Monitor Act 2016 (Vic).

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43. Ibid ss 5, 14.

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44. Police Informants Royal Commission Implementation Monitor Bill 2021 (Vic); Jaclyn Symes (Attorney-General (Vic)), ‘Royal Commission Implementation Monitor Appointed’ (Media Release, 1 March 2021) <https://www.premier.vic.gov.au/sites/default/files/2021-03/210301%20-%20Royal%20Commission%20Implementation%20Monitor%20Appointed.pdf>. See also Daniel Andrews (Premier of Victoria), ‘Fire Services Implementation Monitor Appointed’ (Media Release, 16 December 2020) <http://www.premier.vic.gov.au/fire-services-implementation-monitor-appointed>; Inspector-General for Emergency Management (Vic), ‘Implementation Monitoring’, IGEM (Web Page, 5 July 2021) <https://www.igem.vic.gov.au/our-work/assurance-framework-for-emergency-management/implementation-monitoring>.

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45. Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Fourth Report to Parliament, 1 November 2020) 152 <http://www.fvrim.vic.gov.au/fourth-report-parliament-1-november-2020-tabled-may-2021>.

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46. Consultation 8 (Family Violence Reform Implementation Monitor).

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