Chapter 5Conclusions and recommendations
5.1Before setting out its findings, the Legal and Constitutional Affairs References Committee (the committee) wishes to again acknowledge those who have experienced and survived sexual assault. To victim‑survivors, the committee deeply regrets what has happened to you, and the barriers you have faced in seeking justice. To those individuals who courageously shared their experiences and views with the committee, thank you.
5.2Sexual violence is a national crisis. It is a crisis that disproportionately affects women and young people. It is a crisis the true extent of which we do not know, given how few incidences of sexual violence are reported, and fewer still brought before the courts. However, based on the disturbing results of detailed research and the testimony of victim-survivors, it is a crisis which requires action across the whole of Australian society. The scale of human tragedy is unacceptable. Every Australian has a responsibility to understand the true extent of the crisis and to do everything within their domain to address the issue.Victim-survivors deserve nothing less.
5.3Theterms of reference for this inquiry specifically asked the committee to consider the legal framework and consent education in Australia, but it is clear—as stated above—that lasting, transformative change requires a whole‑of‑society response.
Victim-survivors’ agency
5.4Agency can be broadly defined as the ability of an individual to actively and independently make their own choices, to shape their own life, to control their behaviours and actions. Sexual violence is a denial of that agency. In undertaking this inquiry, the committee was cognisant of this and sought to ensure that the voices of victim-survivors were heard.
5.5Evidence to this inquiry, described elsewhere in this report, demonstrated that it is all too common for victim-survivors to be re-traumatised by the responses to their assault, exacerbating the trespass on their agency and causing further damage. The responses of some universities to students that have disclosed allegations of sexual violence are notable, albeit shocking, examples.
5.6The committee is firmly of the view that the agency of victim‑survivors must be acknowledged and respected at all levels; it must be central to all reforms.
5.7The committee recommends that, in all responses to sexual violence, governments and non-government organisations ensure that the agency of victim-survivors is paramount, actively respected and upheld.
Australia’s sexual consent laws
5.8In recent years, Australian state and territory governments have considered the legal definition of sexual consent, which has led to actual or proposed legislative changes in most jurisdictions.
5.9In general, there is a level of consistency in the definition of sexual consent based on a communicative consent standard, with some variation in related provisions. One of these variations is the introduction of an affirmative consent standard.
5.10The committee heard, and recognises, that an affirmative consent standard aims to address legal and practical challenges that have been experienced by victim‑survivors who seek redress through the criminal justice system, byshifting the focus from the victim-survivor and what they did to communicate a lack of consent to the alleged perpetrator and what they did to ascertain consent.
5.11The committee heard divergent views with respect to the drafting of criminal law provisions which seek to reflect the affirmative consent model. The issues raised are detailed in Chapter 2 of the report.
The consent standard: communicative or affirmative?
5.12The implementation of affirmative consent models in Australian jurisdictions is a relatively recent reform, and the impact of that change in those jurisdictions is not yet fully understood. The committee cannot point to any empirical evidence about the impacts of implementing an affirmative consent standard or the practical outcomes arising from particular provisions which have been adopted by a state or territory.
5.13Given several jurisdictions have legislated different provisions seeking to implement an affirmative consent standard, thecommittee is of the opinion that it would be beneficial for those states and territory to monitor and evaluate the impact of the standard so that evidence can inform the process of reform across the country. In particular, the committee considers it important that the effect of an affirmative consent standard is assessed by the collection and examination of data on:
the disclosure and reporting of sexual assaults;
the number and nature of alleged sexual assaults investigated by police;
the laying of charges;
matters being brought to trial; and
conviction rates.
5.14There should also be a qualitative assessment undertaken with respect to the impact of the reforms, including consideration of the issues raised by several witnesses and submitters. This includes the matters raised by the Law Council of Australia regarding the need to ensure that any reforms uphold fundamental legal principles.
5.15Close consultation with and feedback from victim-survivors about their experiences of the justice system in jurisdictions with an affirmative consent model should be an express design element, involving victim-survivors who wish to be a part of the evaluation.
5.16As discussed below, it is noted that the Attorney‑General has referred the issue of criminal law responses to sexual violence to the Australian Law Reform Commission (ALRC). It is suggested that states and territories work with the ALRC in relation to the framework for evaluation of the standard.
5.17The committee recommends that Australian jurisdictions that have recently legislated an affirmative consent model, design and implement a framework for the evaluation of that standard, with outcomes to be reported to the Standing Council of Attorneys-General and the Australian Law Reform Commission, to inform all Australian governments about the impacts of an affirmative consent model in sexual consent laws and to assist the Australian Law Reform Commission in conducting its review process (referred to below).
5.18The committee recommends that state and territory evaluations of the impact of affirmative consent models is an annual standing item on the agenda of the Standing Council of Attorneys-General.
5.19The committee notes that Recommendations 2 and 3, as well as other recommendations in this chapter, will require coordination between governments and non-government bodies. To give effect to the critical changes required, the committee strongly urges all stakeholders to take into consideration how they can best deliver the cohesive reform required to address sexual offending in Australia.
Consistency in sexual consent laws
5.20The committee heard that inconsistency amongst definitions of sexual violence and consent is a significant contributor to the difficulties encountered by victim-survivors. For example, one obstacle is the lack of knowledge and understanding about whether certain sexual activities are a criminal act and vitiating factors. The committee accepts that this is partly due to a lack of consistency between jurisdictions in the detailed provisions relating to the definition of sexual consent.
5.21In this regard, the committee highlights especially the examples of intoxication and ‘stealthing’ as vitiating factors for consent and the role of intoxication in the code jurisdictions’ mistake of fact defences.
5.22The committee considers that sexual violence is a crime without borders and all Australians should be able to refer to clear and consistent legislation, tounderstand when a sexual crime has been committed. In addition, clear and consistent legislation sets a strong legal and behavioural standard.
5.23Accordingly, in the committee’s view, Australia’s criminal law frameworks should adopt a unified approach to sexual consent laws.
5.24The committee acknowledges that governments have previously attempted to harmonise Australia’s criminal law frameworks with the Model Criminal Code project. This recognition of the benefits of harmonisation might have been ambitious but it was not misplaced.
5.25The committee considers that consistency through the use of a communicative consent standard, and recent attempts to better reflect modern community standards, demonstrates a willingness to enact legislation that prevents and addresses the prevalence of sexual violence nationally.
5.26The Law Council of Australia rightly noted that the national harmonisation of sexual consent laws would be difficult to achieve but that the inherent challenges are not ‘insurmountable’. In the committee’s view, the difficulty in achieving a necessary and worthwhile outcome is no reason to resist reform.
5.27During the inquiry, the Attorney-General, the Hon Mark Dreyfus KC MP, announced Commonwealth government funding for measures to strengthen and harmonise sexual assault and consent laws in Australia.
5.28The committee understands that one of these measures will be an ALRC inquiry into criminal justice responses to sexual violence, with a focus on law reform proposals to strengthen sexual assault laws, and to improve the outcomes for and experiences of victims and survivors in the justice system. The committee wholeheartedly supports such an inquiry.
5.29The committee recommends that the Australian Law Reform Commission includes an affirmative consent standard in any proposal to harmonise Australia’s sexual consent laws and taking into account the evidence of the operation of recently adopted affirmative consent laws.
5.30The committee recommends that the Commonwealth government responds to recommendations made by the Australian Law Reform Commission, within six months of the Commission presenting its report.
The evidence base
5.31Throughout the inquiry, and as reflected in this report, the committee received information about previous, current and contemplated surveys, studies and research. The committee recommends that the Commonwealth government provides ongoing funding for research into the prevalence of sexual violence in Australia and the impact of responses to it, including through regular surveys of students and young people projects. This information forms an evidence base to support knowledge, understanding and policy at all levels and across jurisdictions.
5.32There are disturbing statistics in relation to the prevalence of sexual violence, particularly amongst young people and students. When confronted with this evidence, policy makers and the justice system must use it as a guide to where greater efforts must be directed and more effective strategies implemented.
5.33The committee considers that the data gathered through these surveys and studies are essential to our understanding of sexual violence in Australia and critical to assessing the consequences of reform. The committee commends those bodies whose work has contributed and continues to contribute to our knowledge in this area.
5.34The committee strongly believes that such research should be undertaken on a regular consistent basis to inform policy responses and to track the effectiveness of reforms, including those relating to education programs.
5.35The committee further acknowledges that there are a number of specific research projects in relation to the handling of sexual assault cases by the justice system and victim-survivors’ courtroom experiences, such as the impact of rape myths and misconceptions (see below). These projects provide valuable insight into the responses of systems and actors within those systems to sexual violence, victim-survivors and alleged perpetrators.
5.36The committee recommends that the Commonwealth government provides ongoing funding for research into the prevalence of sexual violence in Australia and the impact of responses to it, including through regular surveys of students (including those living in university residences) and young people.
Supporting victim-survivors in the criminal justice system
5.37Approximately 87 per cent of victim-survivors do not report having been sexually assaulted. The majority of complaints do not lead to criminal charges. Only a fraction of sexual offence trials results in a conviction. Sentencing outcomes do not match the expectations of those who have been assaulted.
5.38The committee heard that, in addition to these realities, the criminal justice process is significantly re-traumatising victim-survivors, in some instances more so than the offence itself. Overwhelmingly, the committee was told that victim-survivors have little hope of achieving justice through the criminal court process. When the deep and sustained trauma of sexual assault is considered in this context, it is difficult to conclude that our justice system is serving victim‑survivors as it should.
5.39As an example, the committee heard that an accused can access a victim‑survivor’s counselling notes. The committee queries what probative value there is in sharing the deeply personal impacts of a sexual crime with a perpetrator? Moreover, the committee is concerned that the risk of access to a victim-survivor’s counselling notes may dissuade victim-survivors from seeking the counselling they need.
5.40Victim-survivors deserve to be supported by the system that purports to protect them and to hold perpetrators accountable, including by not leading evidence that might effectively put them on trial and by providing them with sufficient information to make informed decisions about the reporting and prosecution of a complaint. This information for victim-survivors should specifically include guidance about what the committee heard is the most difficult part of a prosecution: the giving of evidence-in-chief and cross-examination.
5.41Victim-survivors themselves told the committee that it often came as a shock that they were ‘mere’ witnesses to their own sexual assault, and that this was not always made apparent to them in their limited dealings with prosecutors.
5.42Not only should victim-survivors be provided with information about the supports available to them and the legal process; they also ought to be provided with or have access to specialist legal assistance, to assist them to better understand and navigate legal processes in a way that respects their agency and supports their interests, including recovery and healing.
5.43The committee recommends that state and territory governments, in collaboration with relevant stakeholders, develop and deliver materials to provide people who report sexual assaults with appropriate guidance and information, including:
an explanation of how a complaint will be investigated;
an explanation of how the criminal justice system operates;
the purpose of giving evidence-in-chief and cross examination;
the level of detail required for evidential purposes; and
the obligation on the accused’s legal representative to challenge evidence.
5.44The committee heard that the Commonwealth government is piloting a new legal service model that aims to provide victim-survivors with greater access to specialised and trauma-informed legal services as they consider, enter and/or navigate the criminal justice system (see Chapter 3). The committee considers that the appropriate and broad-ranging delivery of legal services would provide much needed support to victim-survivors.
5.45The committee recommends that the Commonwealth government assess the success of pilot projects for specialised and trauma-informed legal services and, if successful, fund an expansion of the provision of such services for the benefit of victim-survivors.
Alternative approaches to the traditional criminal court process
5.46The committee supports alternative approaches to the traditional criminal court process, provided these are effective alternatives with clear outcomes and the process respects the agency of victim-survivors as detailed in Recommendation1.
5.47The committee heard that one such alternative could be restorative justice options. The committee understands this this may be a controversial suggestion; however, the committee accepts that it could offer some victim-survivors the redress and justice that they are seeking. The choice of whether to utilise restorative justice must be that of the victim-survivor. It is also essential that the implementation and use of restorative justice mechanisms does not come at the expense of genuine reform of the criminal justice system.
5.48Consistent with its views on having an evidence-base for reform, the committee considers that the Commonwealth government should investigate the impact of restorative justice approaches to sexual offences, both nationally and internationally.
5.49Some stakeholders suggested that specialist sexual violence courts might also provide a sensitive and trauma-informed alternative to the traditional court process.
5.50The committee is aware that New Zealand has piloted a sexual violence court, which could offer some insight into whether such a pilot should be conducted in Australia.
5.51The committee further notes that the Australasian Institute of Judicial Administration (AIJA) will shortly complete a literature review of ‘specialist approaches to managing sexual assault proceedings’. If this review identifies a best practice model, then consideration should be given to a pilot project, possibly in Queensland where specialist domestic and family violence courts have been successfully trialled.
5.52The committee recommends that the state and territory governments consider establishing a restorative justice pilot program and a specialist sexual violence court pilot for sexual offending, to explore more sensitive and trauma-informed approaches to sexual violence in the criminal justice system.
Rape myths and misconceptions
5.53Throughout the inquiry, stakeholders raised the issue and impacts of rape myths and misconceptions.
5.54According to the 2021 National Community Attitudes towards Violence against Women Survey, rape myths and misconceptions continue to persist in Australian society. The committee heard that this contributes to the prevalence of sexual violence and the ways in which some members of the community, police, legal practitioners and judicial officers respond to sexual assault.
5.55Based on information presented to the inquiry, the committee concludes that there is a highly problematic consent culture in Australia that must be addressed through concerted and ongoing efforts at all levels.
Law enforcement – education and training
5.56Stakeholders emphasised that police officers must be provided with specialist education and training, to recognise rape myths and misconceptions, and to respond to victim-survivors in a sensitive and trauma-informed manner.
5.57The committee recognises that this training would help to ensure that victim‑survivors are responded to and advised appropriately at what is often their first contact with the criminal justice system. This first encounter and how well (or how badly) it is handled has a significant impact on whether complainants continue to pursue an allegation of sexual violence through the criminal justice system.
5.58In 2022, the Commonwealth government committed funding for the development and delivery of a national training package. The committee notes that this measure will not extend past 2026 and encourages the government to think creatively about longer-term measures that will enable state and territory law enforcement agencies to embed culturally appropriate and trauma‑informed responses to sexual offences.
5.59The committee recommends that the Commonwealth government, through the Police Ministers Council, develops principles to guide ongoing specialist education and training to state and territory law enforcement officers, to ensure culturally appropriate and trauma-informed responses to victim‑survivors of sexual assault.
Legal practitioners – education, training and professional practice rules
5.60Victim-survivor advocates and specialist frontline workers described the harmful impacts of sexual offence trials on victim-survivors. The committee heard that it is common for some legal practitioners to intentionally or unintentionally deploy rape myths and misconceptions during the course of a trial.
5.61The Law Council of Australia sought to assure the committee that the situation is being addressed through continuing legal education. Having heard the evidence of other legal experts, while a cultural shift is underway, the committee considers there is clearly a long way to go.
5.62In the committee’s view, legal practitioners have a particular duty—including as part of their paramount duty to the court—to act with integrity and not to invoke rape myths and misconceptions which are known—or should be known by those who practise the law—to have no factual or legal basis. This is particularly true for those practitioners who have acquired specialist accreditation in the criminal law.
5.63The committee strongly urges the Law Council of Australia and its members to give this matter deliberate consideration, including, for example, the option of strengthening practice rules or sanctions, or mandatory relevant education and training as a requirement for the awarding of criminal law specialist accreditation.
Judicial officers – education and training
5.64Stakeholders made little comment about the education and training of judicial officers, although there is a perception that more is required for the conduct of sexual offence trials.
5.65Last financial year, the Commonwealth government committed funding for a justice sector education and training package. The committee welcomes this measure.
5.66The committee suggests to the AIJA that it should publish online the papers for the national conference that will be funded by the measure, to increase the transparency of judicial officers’ efforts to acquire culturally sensitive and trauma-informed education and training.
5.67The committee is also aware of the National Domestic and Family Violence Bench Book, which has recently been updated to capture coercive control. There is no specific section on sexual violence, although many of the issues relevant to victim-survivors’ courtroom experiences are covered within the context of domestic and family violence (DVF) (see ‘Fair hearing and safety’).
5.68Consistent with its view that sexual violence can be quite distinct from and separate to DFV, thecommittee considers that there should be a National Sexual Violence Bench Book or, at a minimum, a section within the existing bench book, to recognise the gravity of sexual offences, to assist judicial officers within the courtroom, and to facilitate a consistent approach across state and territory jurisdictions.
5.69The committee recommends that the Attorney-General’s Department, in collaboration with the Australian Institute of Judicial Administration and other relevant stakeholders, develops and delivers a National Sexual Violence Bench Book, to assist judicial officers to recognise and respond to sexual violence in a culturally appropriate and trauma-informed manner. This resource should specifically address rape myths and misconceptions.
Jury directions
5.70Stakeholders reflected on the availability and scope of jury directions, which are used throughout Australia to clarify the law and to challenge rape myths and misconceptions. The committee heard that the directions vary from state‑to‑state and that research supports these directions being given before and throughout sexual offence trials, to contemporaneously ‘correct’ evidence.
5.71The committee understands that jury directions are not always used proactively, meaning that rape myths and misconceptions can be introduced into evidence. This can affect jury deliberations but also has devastating impacts on victim‑survivors who are then ‘put on trial’, with details of their personal lives publicly examined and critiqued.
5.72The committee considers that, where jurisdictions have established frameworks for the authorisation of jury directions, these frameworks should explicitly require a direction to be given contemporaneously with evidence that raises a rape myth or misconception.
5.73The committee recommends that the Australian Law Reform Commission considers whether model jury directions should be developed as part of any initiative to harmonise Australia’s sexual consent laws. This model should include express requirements as to the timing and circumstances in which jury directions must be given.
Education and awareness
5.74A recurrent theme throughout the inquiry was the need for an holistic response to sexual violence in Australia. While law reform and reforms in the criminal justice system are an important part of this response, attitudinal and behavioural changes are also required throughout the community.
5.75As demonstrated in the 2021 National Community Attitudes towards Violence against Women Survey (NCAS), false and damaging myths and stereotypes about violence against women persist.
5.76Based on information received from education experts, the committee considers that Australia should seek to effect a critical cultural change through a sustained whole‑of-community approach.
5.77This cultural change must begin with age-appropriate and comprehensive respectful relationships education (RRE) in primary and high schools, and continue in an appropriate manner throughout higher education settings.
5.78The broader Australian community must also be provided with and have access to information that helps every Australian understand consent and sexual violence, and be equipped to identify and respond appropriately to sexual violence. In addition, it is important that Australian families understand and appreciate the scale of the current issue and the risk it poses to young people.
Australian schools
5.79The 7th National Survey of Secondary Students and Sexual Health revealed that a significant proportion of secondary students have been or are sexually active, yet less than one quarter considered their RRE to have been very relevant.
5.80The committee heard that the curriculum has significant content deficiencies and does not address the needs of all children and young people. Consequently, among other things, there is a poor understanding of sexual consent and sexual violence.
5.81In this context, the committee welcomes the transition from Australian Curriculum 8.4 to Australian Curriculum 9.0, which will strengthen the explicit teaching of consent and respectful relationships from F–10 in age-appropriate ways.
5.82Education experts advised that comprehensive RRE should be taught in Australian schools, as it provides an opportunity to shape children and young people’s attitudes, beliefs and behaviour around gender equality, respect and consent at an early developmental stage.
5.83The committee heard that successful implementation of RRE will require a professional learning strategy that enables teachers to deliver the new and complex curriculum. There are various options to support teachers to acquire knowledge in this area and to leverage the expertise of third-party providers and also of other young people.
5.84In the committee’s view, the successful delivery of comprehensive RRE will require relevant education for all professional and support staff within schools, with a higher degree of professional learning for teachers who are responsible for delivery of the new curriculum. Given the complexities of the new curriculum, there is merit in the idea of a lead teacher to coordinate delivery and provide extra assistance to the teaching staff when required.
5.85The committee recommends that the Commonwealth government, through the Education Ministers Meeting and in consultation with relevant stakeholders, develops a strategy and delivers funding (in conjunction with the states and territories) for upskilling the education workforce, to achieve the consistent and effective delivery of comprehensive Respectful Relationships Education in Australian schools. This should include consideration of mandatory education in the Initial Teacher Education Curriculum.
5.86In 2022, the Commonwealth government committed over $77 million to state, territory and non-government school systems for services that support the delivery of RRE. The committee suggests that, while this investment might be sufficient to kick-start implementation of the new curriculum, in the long-term governments will need to examine whether additional funding is required for continued implementation, including upskilling of the education workforce.
5.87The committee recommends that the Commonwealth government considers ongoing funding as a National Partnership Payment, to sufficiently resource those elements of Australian Curriculum 9.0 that provide for Respectful Relationships Education, including through a strategic investment in workforce development. Particular consideration should be given to addressing long-standing concerns about under-funding in public schools and the need to additionally resource specialist third-party providers.
5.88The committee acknowledges that the Commonwealth government’s Consent and Respectful Relationships measure is currently being implemented and urges the expert working group to take into consideration the findings and recommendations in this report.
Tertiary education settings
5.89According to two creditable surveys—the Change the course, National Report on Sexual Assault and Sexual Harassment at Australian Universities (the Change the Course report)and the National Student Safety Survey (NSSS)—sexual violence on campus is as prevalent in tertiary education settings as it is in the community, if not more so.
5.90Some stakeholders expressed a view that the university sector pays ‘lip service’ to the persistent issue of sexual violence on campus. The committee acknowledges that this is partially a corollary of entrenched cultural and societal attitudes and beliefs.
5.91The committee also acknowledges that, through the Respect. Now. Always. and subsequent initiatives, the university sector has attempted to respond to sexual violence affecting both staff and students.
5.92However, despite these efforts, the committee heard that the university sector’s commitment has, at best, waned and, at worst, stalled. Preventative measures and support services are inconsistently delivered at Australian universities. Some universities appear to be approaching consent education and reducing sexual violence within their community proactively and with genuine commitment. Others appear to find the issue too confronting or difficult; their responses might be generously described as inadequate but are, in some cases, outright damaging and deeply troubling. The committee finds such approaches by certain Australian universities utterly unacceptable.
Current prevalence data
5.93The committee acknowledges that the 2021 NSSS was based on limited responses and that staff and students are far from satisfied with the current responses to sexual violence on campus.
5.94The limitations were due to fewer students being on campus during the COVID‑19 pandemic but also as the tens of thousands of 17-years-old students were deemed not ‘age-appropriate’ for inclusion in the survey sample. This is despite 15 to 19-years-old young people being the most likely age group for both victims and offenders in sexual assault.
5.95The committee considers that the university sector must commit to another NSSS, to more accurately gauge the extent of sexual violence on campus and to determine the safety and support needs of staff and students, particularly those who are at higher risk.
5.96Noting the deficiencies in the 2021 NASS, the committee recommends that the next NSSS be conducted no later than 2025 and preferably earlier, with survey findings published for the benefit of all stakeholders in the university sector as well as the broader Australian community.
5.97The committee recommends that Universities Australia conducts a second National Student Safety Survey, with survey results made publicly available no later 2025, and commits to conducting a national student safety survey on an ongoing basis every three years, to provide all stakeholders with up-to-date and accurate information about sexual violence on campus. This survey should encompass students of all ages on campus, including 17-year-old students who are at no less risk of sexual harm by virtue of not yet being 18.
Personal experiences
5.98Information provided to the committee—including at public hearings and an incamera hearing—presented a deeply disturbing picture of universities’ responses to sexual assault on campus.
5.99The committee was appalled to hear students’ personal experiences, indicating that—similar to victim-survivors’ experiences within the criminal justice system—universities, with few exceptions, are re-traumatising students by failing to provide readily accessible, timely and appropriate support.
5.100Students on campus are typically young people, many of whom are living away from home for the first time, often in residential accommodation and some of whom are from culturally and linguistically diverse (CALD) backgrounds.
5.101In the committee’s view, students in tertiary education settings are a particularly vulnerable cohort, for the reasons stated above. There is a particular obligation and duty of care—if not legal, then certainly moral—for universities to provide proper sexual violence protection and responses to people who have experienced sexual violence while on campus or within the university community.
5.102On this point, the committee especially acknowledges evidence from End Rape on Campus Australia that there are many simple ways in which universities could act in a trauma-informed manner.
5.103For example, the committee suggests that, at a very minimum, common decency demands that victim-survivors are not forced into study or living arrangements that place them in close proximity to their perpetrator.
5.104It is totally without surprise that universities’ responses to sexual assault contribute to low reporting rates and increasing demand for specialist student support services. University students who have experienced sexual violence are being significantly re‑traumatised and, in some instances, are unable to continue their higher education, as a consequence of their treatment by their university. The committee cannot over-emphasise how troubled it is by these outcomes, nor over-state how disappointed it is in the university sector’s overall response.
5.105It is a searing indictment of Australia’s university sector and the regulator, theTertiary Education Quality and Standards Agency (TEQSA), that dedicated and courageous advocates for university students who have suffered from sexual violence on campus should hold the view that the process of making complaints and how universities and the regulator deal with such complaints is causing great trauma to the victims of sexual violence. In the strongest terms, this committee says that is a shameful state of affairs. It is unacceptable.
Consent awareness campaign
5.106In 2019, the Commonwealth government committed specific funding to Universities Australia, to develop ‘a campaign specifically around raising awareness of sexual assault on campus’.
5.107A consent awareness campaign—presumably similar to the proposed National Consent Campaign (see below)—aimed directly at students and staff is an essential, and would have been a welcome measure.
5.108The committee understands that, from November 2021 to June 2022, Australian universities represented by Universities Australia considered two different campaign proposals: the first comprising four concepts and the second two revised concepts. All six concepts were rejected on the basis that they were ‘unlikely to have the cut-through required to be effective in shifting behaviours and attitudes’. Based on the evidence received and commented upon below, the committee does not understand how this view was arrived at by the universities.
5.109The committee notes that one of the revised concepts in the second campaign proposal was ‘conducive to promoting a journey from engagement to attitudinal and ultimately behaviour change’.
5.110The committee considers that Commonwealth government funding produced a consent awareness campaign that consistently communicated key messages about respectful relationships and consent that was supported by students in focus-group testing. The committee reiterates that the final concept tested was assessed to be an effective way of engaging the target audience, leading to behaviour change: the desired outcome. Why wasn’t this adopted? It is inexplicable.
5.111For reasons which are considered inadequate by this committee, the university sector sought to terminate the funding contract and did not proceed with an education and information campaign. During the hearings, witnesses highlighted reports that some Vice-Chancellors had blocked the proposed consent education content on the basis of it being too ‘risqué’. Universities Australia declined to confirm or deny this. To its credit the Department of Social Services salvaged what it could so that at least some product could be delivered. However, this ramshackle process and inferior result should be an embarrassment to the university sector; especially given the serious nature of the problem.
5.112In these circumstances, the committee considers that Australian taxpayers’ money has not been well spent and, more regrettably, an opportunity to provide engaging, informative and effective material to students and staff about respectful relationships and consent has been entirely missed. All universities should reflect on this. This is not just a matter for Universities Australia as the peak body, the responsibility primarily falls on each university and their senior leadership teams.
Effective oversight
5.113In 2017, the Australian Human Rights Commission obtained information from Australian universities, to identify actions undertaken by them following the release of the Change the Course report. Six years later, the committee heard that while some universities have been proactively reporting their progress, the great majority have not been subject to any scrutiny.
5.114Stakeholders suggested that a large part of the problem is the lack of effective oversight of the university sector, with TEQSA ill-equipped and failing to effectively enforce Tertiary Education Threshold Standards 2.3 and 2.4 (theThreshold Standards).
5.115Some stakeholders remarked that universities are not being effectively oversighted by TEQSA, with little, if any, enforcement of the Threshold Standards. Student representative bodies commented that the regulator’s action—or inaction—is actually so harmful to victim-survivors that it would be immoral to consider TEQSA as an avenue for redress.
5.116The committee welcomes the Commonwealth government’s announcement that Australian governments will be working towards improving universities’ governance. Inparticular, the committee understands that a working group will be convened to advise the education ministers on actions that could be taken to improve student and staff safety on campus.
5.117The committee recognises that concerns in this area have long been identified and, in the years of inaction, numerous students have been irreparably, needlessly and inexcusably harmed, including (shamefully) through the response of universities in particular cases.
5.118Given the evidence, the committee lacks confidence that the university sector (as a whole) will respond appropriately to the crisis without strong intervention. This is a regrettable conclusion that the committee does not come to lightly.Thetime for ‘working groups’ has passed.In the committee’s view, a taskforce with effective powers should be immediately established to ensure accountability in the university sector.
5.119The committee recommends that the Commonwealth government implements an independent taskforce with strong powers, to oversight universities’ policies and practices to prevent and respond to sexual violence on campus and in residences. The committee recommends that the taskforce provides:
an effective and accessible complaints process;
meaningful accountability for both universities and residences if standards are not met; and
transparency around which institutions are providing appropriate and effective responses and prevention initiatives.
5.120The committee heard that the universities’ failure to respond meaningfully to sexual assault on campus has been exacerbated by the regulator. Although TEQSA has received dozens of complaints since the Change the Course report was published, the regulator has continually failed to exercise the full breadth of its powers to hold universities accountable for their woeful responses.
5.121The committee recommends that the Commonwealth government commissions an independent review of the Tertiary Education Quality and Standards Agency’s response to sexual violence on university campuses.
The broader Australian community
5.122The committee welcomes the Commonwealth government’s funding commitment toward a consent and respectful relationships campaign (the National Consent Campaign). The committee acknowledges that this campaign aims to keep young people safe from sexual violence and will have the additional benefit of broadly educating the community in relation to gendered sexual violence, including rape myths and misconceptions.
Concluding comment
5.123This inquiry has shone a light on sexual violence in modern Australia. At times, it has been uncomfortable and deeply disturbing, which the committee acknowledges cannot possibly compare to the real-life impacts of sexual violence.
5.124The committee hopes that its findings and recommendations will assist policy and decision-makers to adopt more sensitive and trauma-informed approaches to victim-survivors, with a strong focus on agency, healing and justice.
5.125The committee commends this report to the Senate.
Senator Paul Scarr
Chair
Liberal Senator for Queensland