Women
Statistics show that women experience inequality and disadvantage which arise because of their sex and gender characteristics. Being female is only one of many personal characteristics which intersect with other factors associated with unequal treatment or disadvantage. The purpose of this chapter is to:
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highlight socio-economic factors and gender disadvantage, including occupational segregation and workplace discrimination, sexual harassment and violence against women which contribute to gender imbalance; and
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provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.
7.1 Introduction1
The focus of this section is on the issues that may arise for women in their interactions with the justice system. Statistics reported in this section show that women experience inequality and disadvantage which arise because of their sex and gender characteristics. It should not be assumed that all women’s experiences are the same. Being female is only one of many personal characteristics: gender inequality and sex discrimination can intersect with other factors that are also associated with unequal treatment or disadvantage. Some of these characteristics are the subject of other sections in this Bench Book, including being Aboriginal [see Section 2], having CALD status [see Section 3], having a disability [see Section 5], having LGBTQI status [see Section 8] and [Section 9] and being an older person [see Section 11]. When these characteristics intersect, vulnerability and disadvantage can be compounded, for example, in the increased risk of older, single women to homelessness.
The intersection of gender and race is a problem that often confronts Aboriginal women and is manifested in a lived experience of racism and sexism.2 It can also be the case that particular issues only arise when these factors occur in combination, such as the difficulty which may arise for Aboriginal and Torres Strait Islander women in legal proceedings which relate to traditional “women’s business” which cannot be disclosed to men. 3
“Women’s Business”4 is a term that refers to distinct cultural practice and ceremony, where Aboriginal women are the custodians of special knowledge and practice holding significant /immense “religious” and spiritual power and authority.
While there are ways in which men are disadvantaged by the existing inequality between the sexes, such as the mindsets which inhibit taking up of parental leave by men, this section acknowledges that gender inequality is generally to the detriment of women. Similarly, it is acknowledged that men do experience domestic violence and women do perpetrate it.5 However, statistically, the prevalence of domestic violence against women is such that its occurrence needs to be approached with an understanding of its gendered nature. Likewise sexual harassment is usually perpetrated by men to the detriment of women although it is acknowledged that men can also be victims.
It is true that not all individual women fare badly in comparison to men, or feel discriminated against in comparison with men. However, the general existence of gender inequality, sex discrimination and bias in our society means that, for many women, unless appropriate account is taken of the examples of potential gender bias listed, a woman may:
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feel uncomfortable, resentful or offended by what occurs in court
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feel that an injustice has occurred
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in some cases, be treated unfairly and/or unjustly.
See 7.7 Practical considerations for examples of how a judicial officer can take appropriate account of these factors in court proceedings.
Use of terminology in this section
While the terms “sex” and “gender” are often used interchangeably, it is important to note their distinctions. The word “sex” usually refers to the anatomical and physiological differences between male and female at birth. “Gender”, as defined by the World Health Organization (WHO), refers to the “characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviours and roles associated with being a woman, man, girl or boy, as well as relationships with each other. As a social construct, gender varies from society to society and can change over time”.6 A person’s sex will usually be the same as their gender but that should not be assumed. It is a person’s chosen presentation — their gender identity — that is to be acknowledged and respected. Note that there is a wide range of gender identities (a gender spectrum) that includes the binary model of male and female. For discussion of particular issues in relation to women and men who are trans or gender diverse (ie, who were originally living as the opposite gender) and intersex people, see Section 9. For the purposes of this section, the terms “male”, “female”, “women” and “men” are used according to the context.
It is noted that the Anti-Discrimination Act 1977 (NSW) prohibits discrimination on the basis of “sex”7 and of being “transgender”.8 The Act binds the Crown in right of NSW,9 but operates only in relation to prescribed areas of activity, such as employment and the provision of goods and services.
7.1.1 Population demographics: a snapshot
According to the 2021 census, the population of NSW (8.072 million) had a slight majority of female residents (4.088 million, 50.7%) compared with male residents (3.984 million, 49.3%).10 Of those female residents:
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most live in the Greater Sydney region11
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169,236 are Aboriginal, comprising 49.8% of the total Aboriginal population of NSW12
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almost a third were born overseas (30.1%) as compared to 29.2% men13
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of those who are 15 years of age and over: 47.2% are in a registered marriage; 43.7% are not married; and 9.1% are in a de facto relationship14
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15,000 were experiencing homelessness on Census night in 2016 (along with 22,500 males)15
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over 255,000 are the lone parent in their household (82.2% of the 311,000 lone parent families).16
7.2 Socio-economic factors and gender disadvantage
The socio-economic data set out below demonstrates ways in which gender inequality exists in NSW. Despite making up a slight majority of the population (other than in the First Nations population), women tend to have lower status and fewer resources in various domains.
In summary, despite the fact that proportionately more women in NSW attain higher levels of qualification than men (see 7.2.1), women work fewer hours in paid work and do more of society’s unpaid caring and domestic work than men (see 7.2.1.4). They are paid less from the beginning of their careers (see 7.2.1.1), end up with smaller superannuation balances, and are at a higher risk of poverty in retirement than men. Women also experience more sexual harassment, more sexual violence and more domestic violence than men do (see 7.3 and 7.5.2).
These “interconnected burdens” over the course of a lifetime produce economic disadvantage to women.17 In 2017, the Sex Discrimination Commissioner found during community consultations that, although these factors are usually framed as individual women’s “choices”, it becomes apparent that the roles that individuals play are shaped by structural discrimination, gendered stereotypes and unconscious bias that are inherent within apparently neutral systems.18 Those conversations captured:
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the endurance of gender stereotypes in the Australian community and the “acceptance of the impact of inappropriate behaviour as a norm”
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that structural and systemic barriers to gender equality are reinforced by negative and discriminatory gender stereotypes
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that a “key” barrier to gender equality is the “acceptance of a degree of ‘everyday sexism’ as harmless”.19
There is a consistent association found between higher levels of violence against women and lower levels of gender equality in both public life and personal relationships.20 There are sections of the Australian community that think that discrimination and inequality are no longer issues. The Sex Discrimination Commissioner has observed that generational change alone will not eliminate reported problematic attitudes towards women given the results of the survey the subject of the report.21
7.2.1 Education and employment
More women attain higher levels of education
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As of May 2019, 7.9% of females in NSW in the age range of 15 to 74 years reported obtaining a postgraduate degree (as opposed to 7.2% of males).22
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In the NSW population, as at May 2019, a higher proportion of males (20.5%) than females (11.5%) reported their level of highest educational attainment as Certificate III/IV. A higher proportion of females (32.3%) than males (29.1%) have a highest attainment level of Bachelor or higher.23
Despite making up almost half the paid workforce, overall, fewer women than men work full-time and almost twice the number of women work part-time than do men
Accordingly, this means that female workers as a group are less embedded in the workforce than male workers. This weaker connection to the workforce experienced by women as a group appears more apparent when casual employment, under-employment and people not in the labour force are also considered.24 These workers have less security at times of economic hardship, including the major disruptions to the economy that have occurred following the severe bushfire season of 2019–2020 and the COVID-19 virus which emerged in 2020.25
Based on data prior to the impact of COVID-19:
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Overall, almost half of employed persons in Australia are women26 and the proportion in NSW is very similar.27 Australia lags behind countries including Canada, the UK and New Zealand in women’s full-time employment.28 The gender breakdown of participation rates, and full-time versus part-time work reveals an important difference.
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In NSW, as of August 2022:29
- Women’s participation in the paid workforce continues to increase but remains lower than men’s.
- The average participation rate for men was 70.5% and for women was 61.1%, an 8.5% difference.
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Breaking the workforce into full-time and part-time workers:30
- of the full-time workers in NSW, 61.7% are male and 38.3% are female.
- of the part-time workers, 33.4% are male (0.419 million) and 66.6% female (0.834 million), a ratio of 1 male worker to 2 female workers.
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Not only are women over-represented in part-time work, only a very small proportion of those women are working at management level (6.4%).31
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In 2021, when considering all employees aged 15 years and over, women (26.4%) are more likely to work in casual jobs than men (22.5%) based upon access to paid leave entitlements. For women, those aged 15–34 years were the most likely to be employed casually (36.3%). For men, those aged 65 years or older were most likely to be employed casually (38.1%).32
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Within families with children under 12, 44% of mothers work part-time compared to 5% of fathers.33
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The largest difference between men and women was for people aged between 30 and 39 years where women were around three times more likely than men to be out of the labour force:
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30–34 years, 22.2% of women compared with 8.3% men
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35–39 years, 22.5% of women compared with 7.4% men.34
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The progress on women reaching the most senior leadership roles in corporate Australia is going backwards, according to the 2022 Chief Executive Women (CEW) Senior Executive Census, and at this rate it will take 100 years for women to make up at least 40% of all CEO positions on the ASX200.35
7.2.1.1 Gender pay gap in wages and superannuation
The “gender pay gap” is an internationally established measure of the position of women in the economy in comparison to men. It is the result of the social and economic factors that combine to reduce women’s earning capacity over their lifetime.36 There is a gender pay gap between the average weekly income for full-time ordinary hours of men and women. The impact can be seen in women’s lower take-home income and lower superannuation balances. The gender pay gap measures the difference between the average earnings of women and men in the workforce. In May 2022, the gender pay gap stood at 14.1%.37
Impact of COVID-19
For every month affected by the COVID-19 pandemic, Australian women lost one year of progress towards economic equality, with COVID impacting on women’s employment trends, leadership, wages, superannuation and unpaid work.38 Women’s jobs were hit harder than men’s during the COVID lockdowns. At the peak in April 2021, almost 8% of Australian women had lost their jobs, and women’s total hours worked were down 12%. The figures for men were 4% and 7%. Remote learning and the loss of formal and informal childcare and household support services led to a big rise in unpaid work which disproportionately fell on women during the lockdowns. Many women found it impossible to juggle this with their existing paid work commitments.39 The economic effects of time out of the workforce are magnified for women, especially mothers, many of whom are already on a “stop/start” career path. Six months out of work can add another $100,000 to the $2 million average lifetime earnings gap between men and women.40
The Federal Government’s recovery package was directed to personal income tax cuts, investment tax breaks and a big spend on infrastructure, with more direct support flowing to the male-dominated construction and energy sectors.
Further, women are much more likely to work in a short-term casual job, and so were ineligible for the Federal Government JobKeeper scheme during lockdown.41
Wages
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As at November 2022 in NSW, the average weekly wage for people working full-time ordinary hours was $1,684.90 for females, compared with $1896.80 for males.42 The discrepancy can be expressed as a weekly gender wage gap of 11.8% (ie on average, women earn $211.90 per week less than men).43 The national gender pay gap is similar at 13.3%.44
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The wage differential between men and women is apparent from the outset of careers: women graduates start out earning less in 15 of 19 key industries.45 The median full-time starting salary for graduates in Australia was $2,000 more for males than females in 2015, with an overall gender pay gap of 3.6%.46 In the NSW public service, the gender pay gap increased from $2,053 in 2020 to $3,905 in 2021 in favour of men based on median salary by gender.47
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Average total income over 40 years across men and women with and without children has been estimated as follows:48
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men without children: $2 million
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men with children: $2.5 million
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women without children: $1.9 million
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women with children: $1.3 million.
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The gender pay gap deprives the Australian economy of potentially billions of dollars in gross domestic product (GDP) and affects men and women on the basis of gender.49 The three key factors causing the gender pay gap have been identified and weighted according to causality by KPMG:50
The NSW Government has published a Gender Equality Dashboard to provide data showing progress in key indicators of women’s social and economic outcomes (currently economic opportunity and advancement; health and wellbeing; and participation and empowerment).51
Superannuation
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There is also a gender gap in superannuation. Australian women live longer on average than Australian men52 but they have less invested in superannuation, a situation that is slowly improving. In 2017–2018, the average balance for males at age 55–64 was around $332,700 and females $245,100. 53
Further, 23% of women retire with no superannuation at all.54 Despite the Productivity Commission recommendation,55 superannuation will not be added to taxpayer-funded parental leave payments after the Australian government rejected a plan from its retirement income reviewer, leaving hundreds of thousands of women financially worse off in retirement if they have a child. Industry Super analysis found 1.6 million women have taken up government-funded paid parental leave since it was introduced a decade ago but missed out on $1.86 billion in super due to taking time out of the workforce.56
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At age 25, the average woman has 9.1% less in her superannuation than the average man of the same age. The gap at age 39 increases to 24.6%, reaching 40.4% for average workers aged 55–59.57 There is no statutory requirement for superannuation to be paid during periods of unpaid or paid parental leave, which is primarily taken by women.58
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The COVID-19 pandemic will have a long-term impact on superannuation balances, due to market behaviour and the economic measure introduced allowing access to a limited amount of superannuation funds in 2020. 59
Under the Government’s early release scheme during the height of the pandemic, one in seven women were withdrawing a larger proportion of the superannuation to pay bills.60 This means that the gender super gap is set to get even bigger for female workers who accessed the Government’s COVID early release super scheme.61
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Further, the Australian Institute of Superannuation Trustees has suggested that women were coerced by abusive partners into taking out superannuation early under the federal government’s pandemic relief scheme, with one estimate saying there could be tens of thousands of women affected.62 See further 7.5.3 Coercive control.
7.2.1.2 Cumulative economic disadvantage
Cumulative economic disadvantage leads to poverty and homelessness in retirement
In retirement, women are at greater risk of poverty than men, and older, single women have been identified as a growing cohort of people living in poverty.63 Poverty in retirement is the result of women’s cumulative experiences of economic disadvantage over their lifespan.64 Those experiences are the “result of interconnected burdens” such as those discussed above (more part-time/casual work, lower superannuation balances, gender pay gap, gender segregated work, career interruptions, workplace discrimination and undertaking most unpaid domestic and care work) as well as financial hardship arising through events such as domestic violence, sexual harassment and divorce.65
Between 2011 and 2016, women aged 55 years and over were the fastest growing cohort of homeless Australians (31%).66 The 2016 Census estimated that 6,866 older women were homeless, with a further 5,820 older women living in marginal housing and may be at risk of homelessness.67
These figures reveal that in NSW, there were 2,186 women who were homeless, with 29% of those women living in severely over-crowded dwellings.68 Women experiencing homelessness often stay with friends or family, live in severely crowded dwellings, under the threat of violence or are physically hiding. Due to the hidden nature of women’s homelessness and the statistical methods used to count homelessness, it is recognised that these figures understate the true extent of the issue, particularly for women experiencing family or domestic violence, or Aboriginal and Torres Strait Islander women.69
7.2.1.3 Occupational segregation and workplace discrimination
Workplace discrimination is experienced twice as much by working mothers as working fathers
In 2014, one in two mothers (49%) experienced discrimination in the workplace at some point during pregnancy, parental leave, or on return to work. More than one in four fathers and partners (27%) also experienced discrimination in the workplace related to parental leave and return to work.70 Only 4% reported it to a government body.71 Groups most likely to experience pregnancy-related discrimination include young mothers (18–24 years), single mothers and mothers with disabilities. Casual workers are more likely to report experiencing discrimination than mothers on permanent/ongoing or fixed-term contracts.72 Over 80% of mothers who experienced discrimination also experienced a negative impact as a result, such as to their mental health or finances.73
Many industries have unequal gender composition, and even when there is greater participation from women, all have pay gaps in favour of men
Occupational segregation, or gender segregation, refers to the way in which some professions and industries tend to be male-dominated and others female-dominated. The male-dominated industries tend to be better paid and enjoy higher social status. The female-dominated professions tend to be aligned with caring, such as nursing and teaching and generally have lower pay rates and less job security than male dominated industries. In Australia in 2019, there are more women than men in:
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health care and social assistance (80% women: 20% men, with a 16% pay gap in favour of men),
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education and training (63% women: 37% men, with a 9% pay gap in favour of men) and
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retail (58% women: 42% men, with a 16% pay gap in favour of men).74
Men dominate jobs in industries including construction, information media and communications, and mining. The gender composition is closer to equal in financial and insurance industries (55% women: 45% men) and arts (51% women: 49% men), however there are pay gaps in favour of men of 29% and 20% respectively. None of the industries has an overall pay gap in favour of women.75
The metaphor of the “glass ceiling” is used to convey the persisting difficulty for women to achieve the highest positions in organisations. In 2019, only one in four executive leadership teams in the top 200 listed companies in Australia included women. Men occupy 87% of “line roles” in these teams. Line roles are typically the pathway to CEO appointment.76
In the Australian legal profession in 2020, women make up the greater proportion of graduates and the profession overall, but are only a small proportion of practitioners who are partners in firms or at the bar. The degree to which power is shared between women and men in the profession does not reflect their levels of participation. It has been suggested that the model of the ideal lawyer and the concept of merit are based on a gendered stereotype of a professional who is completely available to the demands of his working life, in part because he has a wife at home to tend to other responsibilities. In reality, few men, let alone women, have lives that conform to that persistent stereotype.77
The Law Council of Australia launched the Equitable Briefing Policy in 2016, with the aim to have women barristers briefed in at least 30% of all matters by July 2020. This target was met with 31% of briefs going to female barristers and 69% to male barristers. A similar goal for reducing the gap between fees paid to male and female barristers, while reduced, has not been realised.78
A second glass metaphor describes a structural gender inequality in female-dominated industries and workplaces. By virtue of the “glass escalator”, men in these environments tend to be paid more and be promoted faster than women.79 Consequences of these imbalances include women’s economic disadvantage, a lack of diversity within industries80 and a failure to cater for the needs of the whole population.81
Gender discrimination, or a lack of gender diversity, in the workplace is not always about deliberate exclusion on the basis of gender, but can be the product of “unconscious bias”
Gender bias has been identified as a significant issue in the creation of inequality, for example, in employment and promotion decisions in the workplace.82 While it may be explicit, it can also be implicit, hidden or unconscious.
Unconscious gender bias can be understood as the “unintentional and automatic mental associations based on gender, stemming from traditions, norms, values, culture and/or experience”.83
Workplace policies and awareness training are commonly used to mitigate unconscious bias, given the impact a lack of diversity can have in terms of workplace participation, productivity and economic performance for organisations and more broadly.84
It should not be assumed that the legal and judicial professions are unaffected by unconscious bias.
Electoral representation
Across Australia, women continue to be significantly under-represented in parliament, with a “critical mass” of 30% regarded by the United Nations as the minimum level necessary for women to influence decision-making in Parliament.85
In NSW, women represent 34.4% of members of the NSW Legislative Assembly and 30.9% of the NSW Legislative Council as at May 2022.86 First Nations women are under-represented in all State and Territory parliaments.87 Gender imbalance also underlies a negative culture for women within parliament.88
Described as “glass cliff candidates”, women standing for both major parties in the 2022 Federal Election faced a greater battle to get into parliament, with new analysis showing they are more likely to be running in a marginal or unwinnable seat than male counterparts.89
7.2.1.4 Caring, domestic work and the mental load
Women’s careers are more likely to be interrupted by carer responsibilities that can also lead to long-term reduced wage growth, including the uptake of parental leave
Career interruptions impact career progression. They can be connected to shorter tenure in roles, lower levels of experience, depreciation of skills or missed opportunities for skill development.90 Caring for children or other family members is a key factor in time spent out of the workforce for women. The incidence of career interruption for this reason is “gendered and highly persistent”.91 Women account for 93.5% of primary parental leave in the non-public sector.92
On returning to work from parental leave, women may experience a “motherhood penalty”, that is, status, opportunity and pay may be lower than before the interruption.93 The otherwise unexplained motherhood wage penalty in Australia has been quantified at about 5% for one child and 9% for two or more children, emerging over time through reduced wage growth.94
Older women may also need to leave the workforce due to carer responsibilities for adult children with higher support needs, elderly relatives and “baby-sitting/child-care” arrangements: see Older People at 11.1.6 Care and assistance and 11.1.7 Grandparents.
Women spend more time than men on unpaid domestic work than the men with whom they are partnered, independent of paid employment
The “typical” Australian woman spends five to 14 hours per week doing unpaid domestic housework, compared to less than five hours per week for the “typical” Australian man, based on 2016 Census data.95 In couples without children, the overall time spent in paid and unpaid work for males and females correlates to income. Once there are dependent children, however, where the male and female earn approximately the same, or there is a “female-breadwinner”, the female spends more overall time in paid and unpaid (housework and childcare) work. This pattern of time spent by gender did not change between 2002–2004 and 2015–2017.96
Regardless of employment status, the time women spend in housework increases when a heterosexual couple starts to cohabit, and the gap between men’s and women’s time widens further when couples have children. 97 Women undertake 72% of all unpaid work in Australia. The monetary value of unpaid work has been estimated at $650.1 billion, the equivalent to 50.6% of gross domestic product (GDP).98 If monetised, unpaid childcare in Australia would be the single largest sector in the economy — three times larger than the financial and insurance services industry which is the largest in the formal economy — and the second largest sector would be unpaid caring.99
Women’s unpaid workload increased during the COVID-19 pandemic, which meant less time for employment and education. Although unpaid work increased for both men and women for the duration of public health orders, an ABS Survey in June/July 2020 found that women were twice as likely as men to report that they did most of the unpaid domestic work (80% compared to 39%) and more than three times as likely to report that they did most of the unpaid caring responsibilities (38% compared to 11%) in their household.100 Most families (64% used parent-only care during the initial lockdown compared to 30% pre- COVID), and the primary carer both before and during the crisis was predominantly the mother.
The experience of carrying out paid and unpaid work: multi-tasking and the “mental load”
While time spent in housework and childcare activities is quantifiable, it should be noted that there is mental and psychological labour involved in taking responsibility for a household’s activities and arrangements. This is sometimes referred to as the “mental load”, and as women spend more time than men on housework and childcare-related activities, they are also equivalently experiencing the mental load.101
Parental leave and flexible working: expectations that women take leave and work flexibly and men do not
It has been argued that “until men are as free to leave the workplace as women are to enter it”, gender equity will not have been achieved.102 Statistics about the division between paid and unpaid work in families match traditional gender stereotypes in Australia when considering:
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“stay at home dads” are part of only a very small percentage of Australian families in 2016 (5%), increasing only 1% since 1991103
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uptake of the federal government’s paid parental leave scheme between 2010 and 2019 is not dissimilar. Of over 1.24 million parents who received the payments, 99.5% were women.104
Only one in four men take parental leave105 and fathers staying at work is a leading cause of the pay gap.106 Factors that may explain this discrepancy include the strength of internalised gender stereotypes that define men’s identity in terms of work and the way in which workplaces may lag (or be perceived to lag) in making flexibility as accessible for men as for women.107 This is consistent with research that identifies gender stereotypes and discrimination as significant in explaining the gender pay gap.108
7.2.1.5 Rural, regional and remote women
Living in rural, regional and remote (RRR) areas is not a prescribed attribute of a person for purposes of the Anti-Discrimination Act and therefore is not a legal ground of discrimination in the way that age, ethnicity, disability and other personal factors are. However, these environments can raise specific issues for women that should be noted given that a quarter of NSW women live outside of Greater Sydney.109
Economic inequality, domestic violence and caring responsibilities significantly affect women in RRR areas.110 Women across Australia also face particular housing challenges due to the structural barriers such as lack of pay equity, gender inequality and interrupted or limited earning capacity due to primary caring responsibilities mentioned above. Women are more likely to experience economic insecurity as a result of relationship breakdown, separation and divorce, and they are more likely to reach retirement with much lower superannuation balances than men. Research found that one in eight women living on low to moderate incomes in regional Australia had been homeless in the past five years.111
First Nations women, young women, women living with a disability, older women, culturally and linguistically diverse women and people working in essential services such as health and social care (the majority of whom are women), are particularly vulnerable to homelessness.112
Workplace participation rates in RRR areas are lower for women than men (66.8% for men and 56.5% for women).113 Women’s unpaid roles in family businesses in these settings also potentially undermine their financial security by leaving them without entitlements or superannuation.114
Women report that the presence of negative attitudes and everyday sexism can be amplified in more isolated RRR environments and it can be more difficult to speak up or escape when sexual harassment, discrimination or violence occurs and where a police station may be located some distance away and/or there are fewer numbers of police officers.115 Women also report that there is a “high tolerance of sexism and discrimination against women working in traditionally male-dominated industries like agriculture and mining”.116 Transitioning economies and natural disasters can increase the effects of pre-existing inequalities and discrimination on women in RRR areas.117
7.3 Sexual harassment
Sexual harassment is unwelcome sexual behaviour that makes — or that would reasonably be expected to make — a woman feel offended, humiliated or intimidated.118 It is unlawful in certain areas of public life.119 Sexual harassment is a form of gender-based violence.120 (See 7.5 below for further discussion of violence against women.) There is no legal requirement that the perpetrator intended to sexually harass the victim and sexual harassment includes conduct that need not be sexually explicit and includes holding up the victim to sexual ridicule amongst their colleagues.121
In 1984, the Australian Government enacted the Sex Discrimination Act 1984, which specifically prohibited sexual harassment at work and established the role of Australia’s Sex Discrimination Commissioner. However, 35 years on, in a landmark report, the Sex Discrimination Commissioner reported that the rate of change has been disappointingly slow and that Australia lagged behind other countries in preventing and responding to sexual harassment.122
The report found that:
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women were more likely than men to have been sexually harassed in the workplace in the last five years (39% of women compared with 26% of men), and made up almost three in five (58%) of victims of workplace sexual harassment in the past five years.123
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people aged 18–29 or 30–39 years (45% and 37% respectively) were more likely than those in other age groups to have been sexually harassed in the workplace in the past five years.124
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53% of First Nations people compared to 32% of non-First Nations people reported harassment.125
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79% reported that one or more of the harassers was male.126
In the legal profession, it has been reported that:
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71% of the 242 of respondents to the Women Lawyers Association of NSW 2019 survey for the legal profession reported being sexually harassed, but only 18% had made a formal complaint.127
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In 2018, 47% of Australian female respondents to the International Bar Association survey reported experiencing sexual harassment at work.128
The most common forms of sexually harassing behaviour were sexually suggestive comments or jokes and intrusive questions about one’s private life or physical appearance. Other forms included:
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repeated invitations to go on dates or requests or pressure for sex
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sexually explicit pictures, posters or gifts
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intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, indecent exposure, or being followed, watched or someone loitering nearby
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inappropriate physical contact, such as unwelcome touching, hugging, cornering or kissing
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actual or attempted rape or sexual assault
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sexual harassment involving the use of technology, including sexually explicit emails, SMS or social media, indecent phone calls, repeated or inappropriate advances online, or sharing or threatening to share intimate images or film without consent. 129
Workplaces where there is a higher risk of experiencing sexual harassment include those that:
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are male-dominated because of gender ratio, over-representation of men in senior leadership roles, the nature of work being considered “non-traditional” for women, and a masculine workplace culture, or
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involve high level of contact with third parties eg customers, clients or patients,130 or
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are organised according to a hierarchical structure.131
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth), which commenced 12 and 13 December 2022, was enacted in response to the Australian Human Rights Commission (AHRC)’s recommendations in the Respect@Work report. Most significantly, the Act has introduced a positive duty with the enactment of Pt IIA into the Sex Discrimination Act 1984 (Cth) on an employer or a person conducting a business or undertaking to “take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct” (ss 47B, 47C) including sexual harassment, sex discrimination, sex-based discrimination and certain types of victimisation in a workplace context. Among other changes, it also confers new powers on the AHRC (see Div 4A and 4B Australian Human Rights Commission Act 1986 (Cth)) to inquire into possible issues of systemic unlawful discrimination and research and assess compliance with the new positive duty.132
7.3.1 Sexual harassment and the judiciary
It cannot be assumed that judicial officers will not sexually harass their staff or colleagues by reason of their judicial office. While specific data on complaints to the NSW Judicial Commission about judicial sexual harassment is unavailable, this should not lead to the conclusion that the problem does not exist. As workplace sexual harassment is enabled by power disparities,133 reporting of sexual harassment by judicial officers is arguably under-reported and if reported, not actioned for fear of repercussions for a complainant.134
The American Judges Association Court Review suggested in 2018 that “despite the stringent codes of conduct that bind judges and judicial employees, employment within the judiciary (and particularly within judicial chambers) has all of the hallmarks of a workplace environment that makes harassment more likely, and that makes speaking up against harassment nearly impossible”.135 Factors that were cited as contributing to this issue include: 136
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power of judges over employees
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strict hierarchical structures in which an employee has a single supervisor
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autonomy of judicial chambers
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isolation of judicial chambers
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significant turnover in staff, with new clerks joining every year or two
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leadership that is frequently male dominated
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unique requirements of confidentiality, and
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strong desires to avoid any public disclosure of wrongdoing in the interests of maintaining public confidence.
In the wake of allegations against a former High Court justice made public in June 2020, the Chief Justice of Australia, the Honourable Susan Kiefel AC, stated that:137
[t]here is no place for sexual harassment in any workplace. [The High Court has] strengthened our policies and training to make clear the importance of a respectful workplace at the Court and we have made sure there is both support and confidential avenues for complaint if anything like this were to happen again.
The Supreme Court of NSW in June 2020 published the “Supreme Court Policy on Inappropriate Workplace Conduct”.138 This policy is designed to clarify the process as it applies to judges and judicial staff in the court and provide additional avenues for a person to raise an issue.
7.4 Intersectional discrimination
The Australian Human Rights Commission has defined intersectional discrimination as “discrimination on the basis of a combination of attributes”, such as gender, race, disability, age, sexual orientation, gender identity, intersex status or socio-economic status.139 Australian discrimination law frameworks, by contrast, are based on discrimination which is experienced as a result of only one of a specific selection of attributes at a time.140
When different bases of discrimination overlap or intersect, vulnerability and disadvantage related to each attribute can be cumulative. This can be seen, for example, in the greater vulnerability of older, single women to homelessness.141 Intersectional discrimination can also occur in particular ways that only arise when these attributes occur in combination, such as the difficulties which may arise for First Nations women in legal proceedings which relate to traditional “women’s business” which cannot be disclosed to men.142 Women can be left without adequate support when the intersecting nature of their experiences is not acknowledged, for instance, women with diverse sexual orientations, transgender and gender diverse women and intersex women can find there are insufficient inclusive services to help them recover from violence143: see also Section 8 and Section 9.
Section 28AA of the Sex Discrimination Act 1984 (Cth) (SDA) was inserted with effect from 11 September 2021 to include the meaning of harassment on the ground of sex. The considerations listed at paras 28AA(2)(a) to (c) are modelled on the existing considerations in para 28A(1A)(a) to (c) of the SDA (sexual harassment) and ensures that the intersectionality between sex and other protected attributes are considered when applying the reasonable person test. For example, a young woman with disability or an Aboriginal woman may experience sexual or sex-based harassment differently. The importance of considering intersectionality was illustrated in Djokic v Sinclair [1994] HREOCA 16, in which the complainant’s superior and co-workers regularly referred to her in a demeaning way with phrases such as “stupid wog bitch”. In that case, the element of race was intermingled with incidents of sexual harassment and sex discrimination. The complainant succeeded in respect of all grounds, but there was a question about whether she would have satisfied the burden of proof if the various incidents had been disaggregated.144
Some further instances of intersectional discrimination experienced by women are described below.
Women with disabilities: see also Section 5
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After the age of 15, 40% of women with a disability have experienced physical violence, compared with 26% of women without a disability.145
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After the age of 15, 25% of women with a disability have experienced sexual violence, compared with 15% of women without a disability.146
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When living in group homes, women experiencing violence cannot choose with whom they live.147
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Beyond physical, sexual and economic abuse, women recount humiliation by family members, invasion of privacy and lack of consultation in decision-making in relation to reproductive rights.148
Older women: see also Section 11
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Older women are significantly more likely than older men to be victims of elder abuse.149
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Sexual assault of women over 65 occurs in a wide range of contexts including by partners, family members and service providers, including in nursing homes, on whom they may rely on for general care, health care and intimate care.150
Women from migrant and refugee backgrounds: see also Section 3
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Women from migrant and refugee backgrounds are dealing with the complex interaction of cultural values and immigration status. They are less likely to report harassment or violence and may lack local networks or knowledge of Australian law to help achieve safety from violent situations.151
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These women report fear that reporting violence would impact future visas and future work opportunities.152
LGBTIQA+ people: see also Section 8
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Women who identify as lesbian, bisexual, and mainly heterosexual were twice as likely to report physical abuse by a partner as compared to women who identified as exclusively heterosexual (24%, 29%, and 22%, versus 12%, respectively). 153
Transgender women: see also Section 9
First Nations women: see also Section 2
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The life expectancy of First Nations women in NSW is 7.8 years less than the life expectancy of non-First Nations women. In remote areas, life expectancy for First Nations women is 69.6 years. 156
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The maternal mortality ratio for First Nations women between 2012 and 2017 was more than three times higher than for non-First Nations women.157
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First Nations women are 3.4 times more likely to experience sexual assault than non-First Nations women158 and are almost five times more likely than non-Aboriginal women to be victims of domestic assault (2,071 per 100,000 population compared to 434 per 100,000 in 2018).159
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First Nations women and children are part of a community impacted by inter-generational trauma of previous Stolen Generations (see [2.2.2]). First Nations children are over-represented in out-of-home care. Aboriginal women in situations of family violence are the most acutely affected of all low-income women in relation to potential removal of their children: if they stay with the perpetrator, they are at risk having their children removed for being a "non-protective parent, and if they leave but cannot find or fund suitable housing (which is in short supply), the risk is allegations of neglect.160
Indigenous women who are also carers experience “triple jeopardy”: Indigenous, woman, carer. That is, the combination of these three aspects of their identity overlap to amplify their experiences of discrimination and exclusion at work.161
The Judicial Council on Diversity and Inclusion (JCDI) (formerly the Judicial Council on Cultural Diversity) produced the National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait Islander women and migrant and refugee women (“the JCDI framework”) in 2017 as a court-level response to intersectional discrimination. The JCDI framework is designed to create a “national approach to improving access to justice and equality before the law for Aboriginal and Torres Strait Islander women and migrant and refugee women.” It focuses on “court policies, procedures and resources of the courts, not the content of the law”.162
While acknowledging that not all women have the same experiences, the framework aims to create a “system that caters to the needs of the most disadvantaged” because that “will cater to all using the system”.163 It recognises that “an understanding of gendered inequality and gendered violence is integral to ensuring that judicial officers and courts can respond appropriately to the needs of women appearing before them in family violence matters and recognise the difficulties women may face in engaging with the justice system”.164
In terms of specific intersectional discrimination, the JCDI framework also acknowledges that First Nations women “may have a legacy of trauma and may have experienced a lifetime of institutional discrimination, making them reluctant to engage with the justice system” and that many “carry significant fears that reporting violence will mean that authorities will remove children”.165 Further, migrant and refugee women may be affected by the “potentially adverse impact of pre-arrival experiences, such as persecution at the hands of authorities, as well as contemporary pressures around financial dependence and immigration status” and that these factors may affect a woman’s responses to court processes and personnel.166
7.5 Violence against women
7.5.1 Terminology and statistics
According to Art 1 of the United Nations Declaration on the Elimination of Violence against Women 1993:
Violence against women is any act of gender-based violence that causes or could cause physical, sexual or psychological harm or suffering to women, including threats of harm or coercion, in public or in private life. 168
Various terms are used in different contexts to capture abuse occurring within personal relationships.
“Domestic violence” can be understood as “a set of violent or intimidating behaviours usually perpetrated by current or former intimate partners, where a partner aims to exert power and control over the other, through fear”.169 It can include physical, sexual, emotional, psychological and financial abuse and violence. Violence includes attempted or threatened violence.170 Emotional abuse can include controlling or preventing a person from having contact with friends and family; constant insults, shouting or verbal abuse intended to humiliate; using lies to turn the victim’s children against them; and, threatening to take children away. 171
The term “domestic abuse” is being increasingly preferred in the literature because it takes the emphasis away from violence in its physical form. It is inclusive of the range of forms abuse can take, whether or not physical violence is also present.172 However, “domestic violence” is the term used in NSW case law and legislation.173
“Coercive control”: There has previously been a tendency to understand domestic violence or abuse as a single incident of (usually physically) violent behaviour, even if occurring multiple times. By contrast, coercive control refers to “a pattern of domination that includes tactics to isolate, degrade, exploit and control them, as well as to frighten them or hurt them physically”.174 It is through the framework of coercive control that an eight-stage progression towards domestic homicide has been identified.175 See 7.5.3 Coercive control.
The term “domestic violence offence” is used in the legislation that regulates the system of apprehended violence orders in NSW.176 The legislation addresses a broad range of relevant “domestic” relationships in which violence may occur and covers offences of physical violence as well as offences, “the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both)”: s 11(1)(c) of the Crimes (Domestic and Personal Violence) Act 2007. Paragraph (c) has been seen as important because it highlights “the centrality of coercion and control in domestic violence … [illustrating] that domestic violence is about exercises of power, in which physical violence is but one manifestation”.177
“Family violence” is used in some states and in family law.178 It is “violent or intimidating behaviours against a person, perpetrated by a family member including a current or previous spouse or domestic partner”.179 It is also the term that is often preferred as more culturally appropriate in First Nations communities.180 The term “intimate partner violence” relates to the “violent or intimidating behaviours” “perpetrated by a current or cohabiting partner, boyfriend, girlfriend or date”, as opposed to a relative or kin.181 These violent and intimidating behaviours towards women are not solely confined to intimate or domestic contexts. Women are also subject to violence from strangers. See also Sexual harassment at 7.3.
Research demonstrates that domestic violence increases with events such as natural or financial disasters over which perpetrators have no control185 and spikes with particular events, such as the grand final games of the various codes of football.186
Key statistics:
In NSW in 2021:187
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there was a total of 64,689 incidents of assault reported to police. Females were the victim in 48.3% (31,264) of the reported incidents. However, the majority (53%) of the reported assaults against females were perpetrated by a family member compared with 25% of males.188
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almost one third of homicide and related offences were related to family and domestic violence (26 victims).189
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most victims of family and domestic violence related assault were women (64.3%). An even larger proportion (85.3%) of family and domestic violence related sexual assault victims were women. Across Australia, women were also overwhelmingly (84.3%) the victims of family and domestic violence related kidnapping/abduction.190
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in 2021–22, 76% of family and domestic violence offenders were male, with the male offender rate more than three times that of the female offender rate.191
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in 2022, most people being protected under an Apprehended Domestic Violence Order were female (around double the rate of males).192
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in 2020, 87% of women in custody in NSW had been the victim of abuse in either childhood or adulthood. Women in prison were at a higher risk of intimate partner violence and physical and emotional abuse than women in the general population.193
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trend data relating to domestic violence in NSW shows that over the five years prior to June 2022 there was a 2.6% increase in incidents of recorded domestic violence related assaults (28,720 over 12 months to June 2018 and 31,775 over 12 months to June 2022). The two-year trend, however, was stable.There was also a 9.3% increase in AVO breaches over the five years prior to June 2022 (a 5.8% increase over the two years prior).194
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Women’s Domestic Violence Court Advocacy Services, funded by Legal Aid NSW, assisted more than 52,729 women in 2021–2022, up from 43,947 in 2017–2018 but relatively consistent with the numbers over the previous couple of years.195
Nationally, nearly 1 in 4 Australian women (23.0%) has experienced physical or sexual violence by a current or former intimate partner since age 15.196 The proportion of women who experienced intimate partner violence decreased from 2.3% in 2016 to 1.5% in 2021–2022. The proportion of men who experienced intimate partner violence similarly dropped from 1.3% in 2016 to 0.6% in 2021–2022. Women continue to be far more likely than men to experience violence, emotional abuse and economic abuse by a cohabiting partner.197
Following public health orders implemented in NSW to curb the spread of COVID-19, figures from BOCSAR indicated that there was “no evidence of an increase in domestic violence related assault over the period from March 2020, through to December 2020 when restrictions ended”.198 However, evidence from domestic violence services indicated that lockdowns made seeking help for women challenging, with clients not coming forward because of safety concerns. Further, an AIC report199 indicated that the pandemic coincided with the onset of domestic violence for many women. For other women, it coincided with an increase in the frequency or severity of ongoing violence or abuse.
For more information and statistics on domestic violence, see Judicial Commission of NSW, “Sentencing for domestic violence in the Local Court”, Sentencing Trends and Issues, No 48, July 2022.
Domestic violence-related homicides200
There were 1683 homicide deaths201 in total in NSW between July 2000 and June 2019 (1127 males, 555 females, 1 transgender person).202 Of these:
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31% occurred in a context of domestic violence (ie 530 deaths: 272 women, 155 men and 103 children)203
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57% of homicides with a female victim were domestic violence (DV) related204
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19% of homicides with a male victim were DV related205
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292 people were intimate partner (IP) homicide victims ie they were killed by a current or former intimate partner in the context of domestic violence206
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IP homicides make up 55% of DV related homicides
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80% of IP homicide victims were women (234 women, 58 men). Female victims ranged from 15 to 80 years of age207
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36% of women were killed by a former intimate partner. Of these, 2/3 had ended the relationship within three months of being killed208
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14% of women (32) and 26% of men (15) killed identified as Aboriginal.209 The First Nations population is approximately 3% of the total NSW population, meaning Aboriginal people are highly overrepresented as IP homicide victims210
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84% of men killed by a female intimate partner had been the primary DV abuser in the relationship. All 7 men killed by a male intimate partner had been the primary DV victim in the relationship.211 291 perpetrators (239 men (82%), 52 women (19%)) killed the 292 victims212
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187 people were relative / kin homicide victims ie killed by a relative/kin in a context of domestic violence (84 adults and 103 children under 18 years)213
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57% of adult victims were men and 43% were women
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58% of adult victims were the primary DV victim in the relationship with the relative/kin who killed them
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14% of adult victims identified as Aboriginal
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96 perpetrators (62 men (65%), 34 women (35%)) killed the 103 child homicide victims214
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82 perpetrators (68 men (83%), 14 women (17%)) killed the 84 adult homicide victims.215
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7.5.2 Cultural and social attitudes to domestic violence
As with sexual assault, while both men and women can be perpetrators and/or victims of domestic violence, the “overwhelming majority of violence and abuse is perpetrated by men against women”.216 Being a woman is the biggest risk factor for becoming a victim of sexual assault and/or domestic and family violence.217
Societal attitudes towards domestic violence can serve as a barometer for social tolerance of violence and concomitantly, the prevalence of domestic violence. Negative or uninformed attitudes to gender equality have been identified as key to a lack of understanding about domestic violence.218 The National Community Attitudes Survey 2017 (NCAS 2017)219 found that the best predictors of a person’s attitude towards violence against women are their level of support for gender equality, their understanding of violence against women, their level of prejudice towards others, and their level of support for violence in general.220
Further, although most Australians understand violence as constituting a continuum of behaviours, they are more likely to recognise obvious physical violence and forced sex than emotional, social and financial forms of abuse and control as forms of violence against women. 221 Among people born in non-main-English-speaking countries (N-MESCs), a “concerning” minority tend to blame victims and excuse perpetrators of violence against women, are two-and-a-half times more likely than people in the Australian-born sample to agree that “domestic violence can be excused if it results from people getting so angry that they temporarily lose control” and are two-and-a-half times more likely to agree that “domestic violence is a private matter to be handled in the family”.222 Gender equality underpins the National Plan to Reduce Violence Against Women and their Children 2010-2022 (“National Plan”) and accompanying four action plans, as well as the “Change the Story” framework.223
Reducing domestic violence prevalence
The first focus of the National Plan is strongly on prevention. It aims to look to the long term, build respectful relationships and work to increase gender equality to prevent violence from occurring in the first place. It also focuses on holding perpetrators accountable and encouraging behaviour change.224
Further strategies have been identified by research to reduce domestic violence offending in Australia, include targeting male perpetrated violence; reducing violence in Indigenous communities; and reducing repeat offending, particularly among prolific offenders.225
7.5.3 Coercive control
Coercive control is “an ongoing system of control, in which the abusive partner seeks to override their partner’s autonomy and destroy their sense of self. The end game — whether the perpetrator knowingly sets out to achieve it — is to make their partner entirely subordinate and to control. To do this, they isolate, micro-manage, humiliate, degrade, surveil, gaslight and create an environment of confusion, contradiction and extreme threat.”227
Evan Stark devised the term “coercive control”. He identified four key factors: violence, intimidation, isolation, and control.228 Violence includes all types of punishment: emotional, psychological, sexual, and physical. Intimidation involves threats including emotional blackmail, menacing behaviours, vows to harm or ruin the victim or loved ones. Isolation involves actions that make it difficult or impossible for victims to maintain relationships with others. Control includes loss of agency by the victim over every aspect of life through strict rules and demands. It includes close monitoring and surveillance through means such as scrutinising devices or installing stalker apps.
Coercive control has the effect of isolating the victim, depriving them of independence and their sense of safety. It makes victims constantly fearful, hyper-vigilant, confused, and puts them in a state of “mental dislocation”, constantly doubting themselves.229 It is sometimes called “intimate terrorism”230 and some victims have described it as the “worst part” of their experience of domestic violence.231
Common behaviours by perpetrators of coercive control against their victim include:232
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isolating their victim from friends and family, eg controlling and preventing access to them, and convincing their victim that their loved ones hate them233
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depriving their victim of basic needs, eg access to food
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monitoring of their victim’s time
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controlling of everyday life, including where their victim can go, who they can see, what they wear, when they sleep, what they eat, whether they can work
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controlling finances and/or deliberately incurring debts in their victim’s name
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monitoring and/or surveillance through mobile phones and online communication tools, spyware or other technology — see technology-facilitated abuse below at 7.5.4
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depriving access to support services, eg medical services
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repeatedly using put-downs, eg calling their victim worthless
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humiliating, degrading or dehumanising their victim (eg urinating on their victim)234
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making threats (eg to kill their victim, themselves, their children or pets)235 or intimidation
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gaslighting, ie emotionally abusing and manipulating “forcing them to question their thoughts, memories, and the events occurring around them.”236 Examples of gaslighting include trivialising people’s feelings, reporting that others are talking about the person behind their back, saying things that are later denied, hiding things and denying knowledge of where they are, insisting on things that are not true.237
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reinforcing traditional gender roles238
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where there are children, turning children against the other parent239
Coercive control may also accompany physical and sexual violence. It generally occurs incrementally over time, so it can be difficult for victims to recognise that it is happening.240 It is difficult and dangerous to leave situations of coercive control and domestic violence. A 2021 study241 found that women who had experienced coercive control were unlikely to seek help from formal or informal sources if they had not also experienced physical/sexual forms of abuse.
Overall, the experiences reported by women highlight the complexity of describing coercive control and the need to avoid over-generalisations about what constitutes domestic violence. The evidentiary challenge with the use of the term “coercive control” is that the definition of associated behaviours is “deeply contextual”.242 The term offers a more detailed definition of domestic violence. It does not inform how coercively controlled relationships are created, how they are maintained, or why it can be so difficult for victims to exit.243 Without that understanding, new laws may provide an opportunity for perpetrators to continue their repertoire of controlling behaviours.244
An eight-stage progression through coercive control to intimate partner homicide has been identified.245 This research highlights the extent to which such homicides are planned and that they may be the first acts of physical violence.
See also NSW Domestic Violence Death Review Team Report 2019/2021246 for examples of case studies of coercive control resulting in homicide.
NSW is the first of the Australian States and territories to implement a stand-alone offence for coercive control through the Crimes Legislation Amendment (Coercive Control) Act 2022 (assented to 23/11/2022), which will commence in mid-2024. The Act followed recommendations of a NSW Parliamentary Joint Select Committee report, Coercive Control in domestic relationships, Report 1/57, June 2021, that coercive control be criminalised on the basis that current laws do not provide adequate protection for victims.
The Act amends the Crimes Act 1900 to create a new offence relating to abusive behaviour towards intimate partners (both current and former). It also amends the Crimes (Domestic and Personal Violence) Act 2007 to provide a new definition of domestic abuse that takes into account elements that are often at the core of coercive control including financially abusive behaviour (s 6A(c)), verbally abusive, degrading and intimidating behaviour (s 6A(d)–(f)), stalking (s 6A(g)), and acts causing a person to be isolated such as preventing a person from keeping connections with their family, friends or culture (s 6A(j)). The Act’s lengthy implementation period of between 14 and 19 months is designed to allow time for resourcing, education, training and raising community awareness.247
Queensland Parliament passed the Domestic and Family Violence Protection (Combating Control) and other Legislation Amendment Bill 2022 in February 2023 which, through measures such as broadening the definition of domestic and family violence, responds to the recommendations of the Women’s Safety and Justice Taskforce and is designed to lay the foundation for a standalone offence of coercive control later in 2023.248 Some aspects of coercive control are already illegal in Tasmania.249
For further background to this offence, see D McMillan, “Criminalising coercive control: a complex discussion” (2021) 33(6) JOB 57.
7.5.4 Technology-facilitated abuse
Technology can be used to perpetrate violence that occurs both online and offline
“Technology-facilitated abuse” is “a form of domestic violence in which abusers control, stalk and harass their victims using technology”.250 The term includes behaviours such as:
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sending abusive text messages or emails
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making continuous threatening phone calls
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spying on and monitoring victims through the use of tracking systems
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abusing victims through social media sites
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sharing intimate images of someone without their consent (also known as image-based abuse or “revenge porn”); and
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using technology to control or manipulate home appliances, locks and other connected devices.251
Specific examples of harassing and abusive behaviours that are enabled by technology include: 252
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trolling: when an anonymous user abuses or harasses others for fun, and enjoys the upset reactions their comments provoke
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cyber abuse: abuse that can be sexist, misogynistic, racist, homophobic or transphobic from users who want to humiliate or punish their targets, arising from anger or hatred (and in that sense, similar but distinguishable from trolling)
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cyberstalking: a form of cyber abuse which may include “false accusations, abusive comments, attempts to smear reputation, threats of physical or sexual violence or repeated unwanted sexual requests”. It can also include “monitoring, identity theft and gathering of information that may be used to threaten, embarrass or harass”. It is often accompanied by real time or offline stalking
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image-based abuse (also known as revenge porn or sextortion): the sharing, or threat to share, of an “intimate” image or video without the person’s consent, primarily using mobile phones. “Sexting” usually refers to sending implicit or explicit messages of sexual desire or intent, often with images of the sender in varying degrees of undress.253 It is an offence when intimate images are intentionally or recklessly recorded without the knowledge and/or consent of the person; or if they are intentionally or recklessly distributed without consent; or if there is a threat to record or distribute the intimate images.254 Material is an “intimate” image if the material depicts, or appears to depict: a person’s genital or anal area, whether covered or bare; breasts of a female/transgender/ intersex person; private activity, such as dressing, using the bathroom, washing/bathing; sexual activity. 255
A 2017 national survey256 conducted by the Office of the Safety Commissioner found that while one in 10 online adult Australians have experienced their nude/sexual image being shared without their consent, women, younger adults, Indigenous Australians and those who identify as LGBTI are more likely to be the targets of online image-based abuse.
The survey found that:257
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Women are twice as likely to have their nude/sexual images shared without consent than men.
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Women are more likely to experience image-based abuse at the hands of a former intimate partner than men.
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Women are considerably more likely to report negative personal impacts as a result of image-based abuse.
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Experiences of stalking or threatening behaviour are higher amongst women than men, especially amongst young women aged 18–34 years.
Rectification orders are now available under s 91S of the Crimes Act 1900. Where a court finds a person guilty of an offence of recording or distributing an intimate image without consent under ss 91P and 91Q of that Act, the court can make a rectification order requiring the person to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person.258
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fake accounts and impersonation: fake accounts are set up in the name of real people and used to abuse, bully, harass, monitor or damage the reputation of those targeted people and/or others. Romance scams based on fake accounts are sometimes used by organised crime to trick people into giving money and buying gifts
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doxing: when personal details are shared or published online, potentially inviting offensive comments, unwanted calls, contact or visits from strangers
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swatting: when an abuser makes a hoax call to emergency services so responders will attend a person’s home address eg falsely reporting a bomb threat, hostage scenario, or a mental health emergency
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defamatory comments: comments made online with the intention of causing harm to the reputation of a person or their business259
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virtual mobbing and dog-piling: when online users are encouraged en masse to incite hatred and harass individuals 260
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baiting: humiliating people online by labelling them as sexually promiscuous261
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spamming: sending multiple junk email or viruses to others.262
Text messages, Facebook, and GPS tracking of smartphones are the most common means of harassment and abuse in situations of domestic violence.263
A key function of the eSafety Commissioner established by the Online Safety Act 2021 (Cth) is to administer a complaints system for cyber-bullying material targeted at an Australian child; a complaints system for cyber-abuse material targeted at an Australian adult; complaints and objections system for non-consensual sharing of intimate images and an online content scheme.264
Online abuse and harassment is gendered: women experience more of it in all forms and predominantly from men265
Women and girls are more likely to be targets of online abuse in all its forms.266 Although both men and women experience online harassment and abuse, women are more likely to experience sexual harassment online. 267 Men are harassed and abused online by other men and women in equal proportion. Women are harassed and abused online almost exclusively by men.268
Domestic violence sector practitioners have identified that women of culturally and linguistically diverse (CALD) backgrounds, women of Aboriginal backgrounds and women with disabilities are at particular risk from technology-facilitated abuse.269 Additionally, particular risk of online harassment has been self-reported by women with diverse sexual orientations, transgender women, gender diverse women, intersex women and women from CALD communities. Women who advocate on women’s rights issues (including family and domestic violence and sexual harassment) or who are deemed to be feminist are also frequent targets of this form of harassment.270
Technology-facilitated domestic violence
Domestic and family violence perpetrators commonly use technology such as phones and other devices as a weapon to control and entrap victims and survivors, alongside other forms of abuse. A 2022 Report271 found that technological abuse occurred in relationships and that it continued and often escalated post-separation. These harms could be enacted using physical devices (phones, computers, tablets, GPS trackers), virtual or electronic accounts (such as social media profiles, email accounts, consumer accounts or institutional or employment portals) or software or platforms. The Report found that access to these channels may be achieved through force, coercion, deception or stealth.
Parliamentary inquiry into family, domestic and sexual violence
On 4 June 2020, the Commonwealth House Standing Committee on Social Policy and Legal Affairs adopted an inquiry into family, domestic and sexual violence to shine a light on the scourge of family, domestic, and sexual violence, and to examine how governments and the community can prevent violence against women and their children, and to better support those most at risk. The Committee published its report on 1 April 2021272 and was advised that the Government’s response to the report would be provided after the finalisation of the next National Plan to reduce violence against women and their children.273
7.5.5 Female genital mutilation/cutting (FGM/C)
The World Health Organisation defines FGM/C as “the partial or total removal of the external genitalia, or other injury to the female genital organs for non-medical reasons”.274 FGM/C is a collective term that describes a range of interventions that vary in severity and in their potential health consequences. No religious scripts prescribe the practice, with religious leaders taking various positions from promotion to contributing to its elimination. In most societies where it is practiced, it is considered a socio-cultural tradition.275
The Australian Institute of Health and Welfare has estimated that about 53,000 women and girls currently living in Australia but born elsewhere have undergone FGM/C. There were 477 hospitalisations recorded in Australia from 2015-16 to 2017-18, where FGM/C was an additional diagnosis.276 The health problems reported included problems with urination, painful periods, genital inflammation and irritation, sexual and fertility problems, chronic pain and psychological problems.277 As FGM/C is a deeply ingrained expectation in some cultures, families living in Australia can feel pressure from extended family either here or in their country of origin to have their daughters undergo FGM/C.
All States and Territories of Australia prohibit female genital mutilation both within their jurisdictions and extraterritorially and it is a criminal offence to remove a child from Australia, or to assist, whether overtly or tacitly, in such a removal for the purpose of submitting her to any form of female genital mutilation overseas.278
Section 45 of the Crimes Act 1900 (NSW) came into effect on 1 May 1995. In an appeal to the High Court concerning the proper construction of s 45(1)(a) of the Act, a majority held that the term “otherwise mutilates” in s 45(1)(a) does not bear its ordinary meaning, but has an extended meaning that takes account of the context of female genital mutilation, and which encompasses the cutting or nicking of the clitoris of a female child. The purpose of s 45, evident from the heading to the provision and the extrinsic materials, is to criminalise the practice of female genital mutilation in its various forms: The Queen v A2; The Queen v Magennis; The Queens v Vaziri.279 A majority also held that the term “clitoris” in s 45(1)(a) is to be construed broadly, having regard to the context and purpose of s 45. Section 45(3) provides limited defences to FGM practices on medical grounds.280
Some evidence suggests that the risk of girls in Australia undergoing FGM/C is small due to factors such as cultural change after migration, changing community attitudes and Australian prevention initiatives.281 The general lack of evidence of FGM/C occurring in Australia or being arranged from Australia (except for a small number of reported cases) could be seen as evidential support for this view. However, because the practice is criminalised in Australia, it is possible that it is continuing within some families in secret.282
7.5.6 Sexual assault
Prevalence
In NSW in 2021, there were 11,546 recorded victims of sexual assault, the highest number that has been recorded for the offence over the 29-year time series. Four in five victims were female and 49% of these women were between 10 and 17 years of age.283 Most assaults took place at a residential location (65%) and less than 1% involved the use of a weapon.284 The rate of sexual assault recorded by NSW Police has been increasing with an average annual rate of 3.4% over the five years to June 2022.285
Sexual assault and domestic violence are often inter-related. In 2021, 83% of all sexual assault victims knew the offender and around 41% of sexual assault incidents were family and domestic violence related.286 The term “intimate partner sexual violence” is sometimes used to specifically describe the perpetration of sexual acts without consent:287 see also Domestic violence at 7.5.2.
Like domestic violence, sexual assault is under-reported. In 2021 only 65% of persons who experienced sexual assault had reported the incident to the police within a year.288
Sexual Assault Communications Privilege
The sexual assault communications privilege is a statutory right contained in Ch 6 Pt 5 Div 2 of the Criminal Procedure Act 1986 (CPA). The privilege recognises that there is a public interest in preserving the confidentiality of counselling records of sexual assault victims and so seeks to protect the confidentiality of sexual assault victims’ confidential records so victims are not further harmed in court proceedings or discouraged from reporting crimes, seeking counselling or feeling forced to choose between the two. The privilege aims to limit the production and adduction of protected confidences made by, to or about a victim or alleged victim of a sexual assault.
A “protected confidence” means “a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence” (CPA, s 296(1)). The privilege does not just apply to counselling records of the complainant in relation to the sexual assault, but to any counselling of a client who has been sexually assaulted, or counselling that may have occurred prior to the sexual assault.
The definition of a counsellor for the purposes of the sexual assault communications privilege is broad: someone who has “undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm” and they may be either paid or unpaid for that role (CPA, s 296(5)).
The range of records that can be protected by the privilege are diverse and include records from sexual assault services, health centres, drug and alcohol services, youth services, mental health services, records from the Department of Education and Communities, Department of Family and Communities and Justice Services, hospital records, doctors’ records, counsellors in private practice and others.
If a party is seeking to subpoena a protected confidence, they must be granted the court’s leave to do so.
Consent law reforms 2022
The NSW Attorney General referred to the NSW Law Reform Commission (NSWLRC) a review of s 61HA of the Crimes Act 1900 partly as a result of the two NSWCCA decisions in 2016 and 2017.289 Following the NSWLRC inquiry, legislation to change the law of consent in NSW commenced in June 2022 and made three significant changes:
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it altered the definition of consent in the Crimes Act;
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it altered the circumstances in which knowledge of the absence of consent is demonstrated by specifying that the accused’s belief in consent will not be reasonable unless the accused says or does something to ascertain whether the other person consents to the particular sexual activity; and
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it introduced into ss 292A to 292E of the Criminal Procedure Act 1986 (CPA) five directions about consent to address the potential impact on a jury of misconceptions about the way complainants conduct themselves in the context of an alleged sexual assault.
In addition, changes have been made which concern other aspects of the evidence given by a complainant in a sexual assault trial.290 These provisions reflect the evolution in understanding of a complainant’s possible ranges of behaviour, both during and following a sexual assault, and the trauma-informed approach which is increasingly taken to their evidence.
For a comprehensive summary of the changes, see P Mizzi and R Beech-Jones, “The law on consent is changing” (2022) 34(1) JOB 1.
7.5.7 Incels and manosphere-related misogynist violence
The “manosphere” is an umbrella term referring to a number of interconnected misogynistic communities online. It encompasses multiple types and degrees of misogyny — from broader male supremacist discourse to men’s rights activism and "involuntary celibates" (Incels).291
MRAs, or Men’s Rights Activists, believe that men are being victimised by employment and family law, among other things. Incels believe that all men deserve to have sex with women on demand and without regard for women’s interest or preference.292
Incel forums are overwhelmingly male-dominated and rife with misogyny that ranges in severity from broader generalisations of women to pro-rape discourse. Violent Incel discourse and propaganda is now readily available across fringe platforms like 4chan and 8Kun, as well as more mainstream sites like Reddit. Also prevalent are sites created by Incels for Incels, many of which remain online despite incitements to and glorification of violence present throughout.293
See “The Threat Landscape”294 for key narratives and terminology related to the manosphere.
7.6 Women and criminal law
7.6.1 Female offenders
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Social and economic dependence, linked to violent and abusive relationships and addiction, often characterises the contact of women with the criminal justice system.295
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Around 70 to 90% of women in custody have experienced violence and abuse and women become trapped in cycles of abuse and imprisonment.296
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There is growing evidence that at least half of female perpetrated domestic violence occurs in circumstances where the woman is the person most in need of protection but has been misidentified as an aggressor.297
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There are significantly fewer female offenders in NSW than male offenders: 25% of NSW offenders proceeded against by police in 2021–2022 were female.298
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Due to the relative funding priorities given to criminal matters over family and civil matters, the vast majority of Legal Aid clients are men. Overall and consistent with previous years, in the period 2021–2022, only 34.4% of Legal Aid clients in NSW were female.299
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Between December 2021 and December 2022, the First Nations female custody population made up 38% of the adult women population (315 out of 827), despite the First Nations population making up less than 3% of the Australian population. First Nations female prisoners also increased by 7.9%.300
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The gender breakdown of the most serious offences committed by inmates in full-time custody in NSW in 2021 was as follows:301
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acts intended to cause injury: 3,248 men (26.5% of male prison population); 221 women (25.4% of female prison population)
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illicit drug offences: 1,863 men (15.2%); 146 women (16.8%)
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sexual assault and related offences: 2,169 men (17.7%); 41 women (4.7%)
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offences against justice procedures: 1,212 men (9.9%); 85 women (9.8%)
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fraud, deception and related offences: 224 men (1.8%); 69 women (7.9%)
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The gender breakdown of security level for inmates in full-time custody (convicted and unconvicted) in NSW in 2021 was as follows:302
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maximum security: 28.2% (3,461) male inmates, 1.5% (13) of female inmates
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medium security: 27.7% (3,399) male inmates, 20.1% (175) of female inmates
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minimum security: 39.8% (4,878) male inmates, 66.4% (578) of female inmates
Experience of mental health of women in custody:
-
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A higher proportion of women (52.4%) had received some form of previous treatment for a mental health problem than men (45.8%).303
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A higher proportion of women reported:
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A history of mental health diagnosis was acknowledged by almost half of participants, of which the most common reported diagnoses were depression (58.3% of women, 48.5% of men), anxiety and schizophrenia. According to Kessler 10 criteria (a screening tool for psychological distress), moderate to severe distress was more prevalent among women (36.4%) than men (28.8%).306
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In the four weeks before entering custody, 60.6% of women (compared to 52% of men) reported drug use. A higher proportion of women also reported smoking (75.9% of women compared to 68.5% of men).307
Childhood experiences of women in custody308
A higher proportion of women (23.9% of the prison population) than men (13.6%) reported they had been placed in care at some time before the age of 16. The median age that women reported being placed into care was age 10 years, compared with nine years for men.
Most women in custody have complex histories of sexual and physical violence starting in childhood,309 with 87% of women in prison reporting to have been victims of abuse in either childhood or adulthood.310 The rates of previous victimisation are highest for First Nations women, with some studies suggesting that up to 90% of First Nations women are survivors of family and other violence.311
Education experiences of women in custody312
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The same trend in school leaving appeared for men and women: very few had received no schooling at all but a majority had left at year 10 or earlier.
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The median number of high schools attended (3) was the same for men and women.
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A considerably higher proportion of men (42%) had been expelled than women (27.9%).
Employment status of women in custody in 2015 in 30 days prior to incarceration313
A much higher proportion of men (48.2%) than women (26.1%) were employed in the 30 days prior to their incarceration. Of those, a higher proportion of employed men (69%) were in full-time employment than employed women (50.5%).
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Unemployed: 52.0% males, 38.8% females
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Unable to work: 20.7% males, 13.3% females.
7.6.2 Sentencing
7.6.2.1 Impact of imprisonment
Effect of a mother’s incarceration on children
The majority of women in custody are mothers. More women than men in custody were the primary carer of their children immediately prior to their incarceration, but the majority of women in custody did not have their children in their care at the time of their arrest.
While the children of male prisoners are usually cared for by their mother, research shows that the children of female prisoners are frequently cared for by temporary carers which impacts much more negatively on their children. It also means that contact between children and mothers or primary carers in custody is less frequent and more disrupted.314
Attachment research shows that separation of children from their primary caregivers before three years of age can have deleterious effects on the quality of their attachment to their mothers, which in turn is strongly associated with compromised psychological development that may reverberate throughout life. Prior to age three, infants experience heightened periods of separation anxiety and stranger anxiety. Separations during these stages of development are associated with behavioural problems in the short term and in the longer term impaired mental health, and social and occupational functioning. The younger the age of separation, the greater the emotional trauma experienced.315
Separations or disruptions to the attachment between a mother and her child before three years of age can have major negative consequences for the child’s subsequent development that may reach into adulthood. Failure to develop secure attachment through high quality parent-child relationships in early life also has a significant impact on later mental health and illness.316
Parental incarceration can significantly impact children’s development, behaviour, education and risk of engagement with the child protection and/or criminal justice systems, particularly for First Nations children.317
There is also evidence that women who participate in programs that allow their children to live with them in custody are less likely to return to prison than mothers who are separated from their children.318 The Corrective Services NSW Mothers and Children’s Program has a residential program called Jacaranda Cottages based at Emu Plains Correctional Centre, where children up to school age can live with their mothers or primary carers.319
7.6.2.2 Alternatives to imprisonment
Information about diversionary facilities and programs and alternatives to incarceration for women in NSW is available on the Judicial Commission of NSW’s JIRS site under the Court-based and other diversionary programs menu which may be accessed from the JIRS homepage on the left hand menu bar. See also Sentencing Bench Book at [3-500]ff.
The most common penalties imposed on female offenders by the NSW Local Court over the three-year period from January 2020 to December 2022 were fines (42.3%), Community Correction Orders (16.5%) and Conditional Release Orders without conviction (16%), compared with male offenders: fines (42.9%), Community Correction Orders (18.4%) and Conditional Release Orders without conviction (11.4%).321
7.7 Practical considerations
Some particular points to consider in relation to women in the context of legal proceedings include:
7.8 Further information or help
The following organisations can provide a range of crisis support, legal advice, information and expertise about women.
| Name of organisation and contact details | Description | |
|---|---|---|
|
Australian Institute of Family Studies (AIFS) Level 4, 40 City Road, Southbank VIC 3000 Ph: (03) 9214 7888 Fax: (03) 9214 7839 |
The AIFS is the Australian Government’s key research body in the area of family wellbeing. Particular research expertise areas include violence and families, and work and families. |
|
|
Australia’s National Research Organisation for Women’s Safety (ANROWS) PO Box Q389, Queen Victoria Building NSW 1230 Ph: (02) 8374 4000 Email: enquiries@anrows.org.au |
ANROWS is a not-for-profit independent national research organisation. It was established by the Commonwealth and all State and Territory governments as an initiative of Australia’s National Plan to Reduce Violence against Women and their Children 2010-2022. Its purpose is to produce, disseminate and assist in applying evidence for policy and practice addressing violence against women and their children. |
|
|
Department of Communities and Justice Crisis lines Web: www.dcj.nsw.gov.au/contact-us/helplines.html Domestic Violence Line: 1800 656 463 Web: https://dcj.nsw.gov.au/children-and-families/family-domestic-and-sexual-violence.html Link2home Homelessness: 1800 152 152 Web: www.facs.nsw.gov.au/housing/help/ways/are-you-homeless Child Protection Helpline: 13 2111 Web: www.facs.nsw.gov.au/families/Protecting-kids/reporting-child-at-risk/should-i-call |
Domestic Violence Line is the NSW telephone crisis counselling and referral service for women, including transgender women. Link2home is the statewide homelessness information and referral telephone service. The Child Protection Helpline is for any member of the community, including mandatory reporters, who suspects, on reasonable grounds, that a child or young person is at risk of significant harm. These crisis lines are open 24 hours, 7 days a week. |
|
|
Department of Communities and Justice Corrective Services NSW GPO Box 31, Sydney NSW 2001 Ph: (02) 8346 1333 Fax: (02) 8346 1205 |
Corrective Services has a program for female offenders. Arrangements for female offenders include women’s centres; female-only units and female-designated beds within facilities; residential programs and facilities and transitional centres. |
|
|
Department of Communities and Justice LawAccess NSW Law Access: 1300 888 529 |
LawAccess NSW is a free government telephone service that provides legal information, advice and referrals for people who have a legal problem in NSW. Open business hours: Monday to Friday, 9am to 5pm (excluding public holidays) |
|
|
Department of Communities and Justice Victim Services Victims Access Line (VAL): 1800 633 063 Aboriginal Contact Line: 1800 019 123 |
VAL is the single-entry point for victims of crime in NSW to access services including: victims support service; approved counsellors; restitution; specialist victims support service; child sexual offence evidence program; redress; and families and friends of missing persons. The Aboriginal Contact Line is a confidential enquiry line for Aboriginal victims of crime who would like information on victims’ rights, how to access counselling and financial assistance. Open business hours: Monday to Friday, 9am to 5pm (excluding public holidays) |
|
|
Family Violence Law Help |
The Family Violence Law Help website provides information for people affected by domestic and family violence. It is by National Legal Aid, which represents the directors of the eight state and territory legal aid commissions in Australia, and funded by the Commonwealth Attorney-General’s Department. |
|
| Full Stop Australia Web: www.fullstop.org.au |
Full Stop Australia offers trauma specialist counselling and support, education and advocacy for people affected by sexual, domestic or family violence. | |
| Legal Aid NSW Client referrals and enquiries: sacps@legalaid.nsw.gov.au |
The Sexual Assault Communications Privilege Service (SACPS) is a victims' legal service that helps protect the privacy of counselling notes and other confidential therapeutic records in criminal proceedings involving sexual offences. They support sexual assault victims to claim the privilege when their confidential records are subpoenaed. | |
|
National Family Violence Prevention Legal Services (FVPLS) National Family Violence Prevention Legal Services Secretariat C/o Djirra, 292 Hoddle Street, Abbotsford VIC 3067 Ph: (03) 9244 3333 Email: secretariat@fvpls.org Individual locations: |
The FVPLS Program provides specialist, culturally safe legal services and supports to Aboriginal and Torres Strait Islander victim/survivors of family violence across Australia. There are 13 FVPLSs servicing 31 areas located in rural and remote locations around Australia. National Family Violence Prevention Legal Services Forum is the national peak body for First Nations survivors of family violence and sexual assault. It is comprised of the service organisations under the FVPLS Program. |
|
|
National Sexual Assault, Family & Domestic Violence Counselling Line 1800 RESPECT (1800 737 732) |
For any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault. Open 24 hours, 7 days a week. |
|
|
NSW Sexual Violence Helpline NSW Sexual Violence Helpline: 1800 424 017 Sexual Abuse and Redress Support Service: 1800 211 028 Sexual, Domestic and Family Violence Helpline: 1800 943 539 Rainbow Sexual, Domestic and Family Violence Helpline: 1800 497 212 |
|
|
|
Our Watch GPO Box 24229, Melbourne VIC 3001 |
Our Watch states that it is a national leader in the primary prevention of violence against women and their children in Australia. Change the story is the national framework created by Our Watch for a consistent and integrated approach to preventing violence against women and their children in Australia. The website includes various tools, resources and publications. |
|
|
Redfern Legal Centre (RLC): Financial Abuse Legal Service NSW 73 Pitt Street, Redfern NSW 2016 Ph: 0481 730 344 |
RLC’s Financial Abuse Legal Service provides free, confidential legal information and advice to people in intimate partner relationships who have experienced financial abuse. |
|
|
Staying Home Leaving Violence program Department of Communities and Justice Ph: 1800 656 463 (DV hotline) |
The program works in cooperation with NSW Police to remove the perpetrator (the violent partner) from the family home. Other support includes safety planning, help in managing finances, support for children, and assistance with complicated legal processes. |
|
|
Wirringa Baiya Aboriginal Women’s Legal Centre Addison Road Community Centre Building 13, 142 Addison Road, Marrickville NSW 2204 PO Box 785 Marrickville NSW 2204 Ph: (02) 9569 3847 or 1800 686 587 Fax: (02) 9569 4210 Email: info@wirringabaiya.org.au |
Wirringa Baiya is a State-wide community legal centre for Aboriginal and Torres Strait Islander women, children and youth. It has a focus on issues relating to violence. See website for opening hours. |
|
| Women’s Domestic Violence Court Advocacy Program (WDVCAS) – Legal Aid NSW Phone: 1800 938 227 Web: www.legalaid.nsw.gov.au/about-us/our-partners/womens-domestic-violence-court-advocacy-program |
|
|
|
Women’s Legal Service NSW PO Box 206, Lidcombe NSW 1825 Ph: (02) 8745 6900 (Administration) Women’s Legal Advice Line: (02) 8745 6988 or 1800 801 501 Domestic Violence Legal Advice Line: (02) 8745 6999 or 1800 810 784 First Nations Women’s Legal Contact Line: (02) 8745 6977 or 1800 639 784 Working Women’s Legal Service: online form Fax: (02) 9749 4433 Email: reception@wlsnsw.org.au |
Women's Legal Service NSW is a community legal centre providing women across NSW with a range of free legal services. The Women’s Legal Advice Line provides free confidential legal information, advice and referrals for women with a focus on family law, domestic violence, parenting issues and sexual assault. The Domestic Violence Legal Advice Line provides free confidential legal information, advice and referrals for women with a focus on domestic violence and Apprehended Domestic Violence Orders. The First Nations Women’s Legal Contact Line provides legal help for Aboriginal and Torres Strait Islander women with family law, child protection and domestic and family violence. The Working Women’s Legal Service provides help in relation to sexual harassment and discrimination on grounds including: pregnancy; caring and/or family responsibilities; and, being a woman. See website for opening hours. |
|
|
Women’s Safety NSW PO Box K278, Haymarket NSW 1240 Phone: 0474 779 847 (for media, policy practice and law reform) |
A State-wide peak body for women's specialist services advocating for women’s safety in the context of domestic and family violence through systemic reform and cultural change. |
7.9 Further reading
Articles
A Crabb, “Men at work: Australia’s parenthood trap” (2019) 75 Quarterly Essay.
A Blackham & J Temple “Intersectional discrimination in Australia" (2020) 43(3) UNSWLJ 773.
D McMillan, “Criminalising coercive control: a complex discussion” (2021) 33(6) JOB 57.
E Bourova, I Ramsay and P Ali, “Limitations of Australia’s legal hardship protections for women with debt problems caused by economic abuse” (2019) 42(4) UNSW Law Journal 1146, accessed 16/6/2023.
M Bronberg, “The devil you know is not better — the non-consensual distribution of intimate images and sentencing” (2020) 44 Crim LJ 173.
E Buxton-Namisnyk and A Butler, “What’s language got to do with it? Learning from discourse, language and stereotyping in domestic violence homicide cases” (2017) 29(6) JOB 49.
H Douglas, “Legal systems abuse and coercive control” (2018) 18(1) Criminology & Criminal Justice 84.
H Douglas and E Fell, “Malicious reports of child maltreatment as coercive control: mothers and domestic and family violence” (2020) Journal of Family Violence 35(1).
D McMillan, “Criminalising coercive control: a complex discussion” (2021) 33(6) JOB 57
D McMillan and A David, “The domestic violence dynamic” (2006) 18(10) JOB 81.
S Meyer, “Why women stay: a theoretical examination of rational choice and moral reasoning in the context of intimate partner violence” (2012) 45(2) ANZJ Crim 179.
M Segrave and B Carlton, “Women, trauma, criminalisation and imprisonment …” (2010) 22(2) CICJ 287.
JJ Spigelman, “Violence against women: the dimensions of fear and culture” (2010) 84 ALJ 372.
Books
S Bronnitt and P Easteal, Rape law in context: contesting the scales of injustice, Federation Press, 2018.
E Buxton-Namisnyk and A Butler, “Judicial discourse versus domestic violence death review: an Australian case study” in A Howe and D Alaattinoğlu (ed) Contesting femicide: feminism and the power of law revisited, Routledge, 2018.
A Crabb, The wife drought, Random House Australia, 2014.
C Criado-Perez, Invisible women: exposing data bias in a world designed for men, Chatto & Windus, 2019.
L Gelsthorpe and G Sharpe, “Women and sentencing: challenges and choices” in J Roberts, Exploring sentencing practice in England and Wales, Palgrave McMillan, p 118.
J Hill, See what you made me do: power, control and domestic abuse, Black Inc, 2019.
P McGorrery and M McMahon, Criminalising coercive control, Springer Books, 2020.
S Meyer and A Frost, Domestic and family violence: a critical introduction to knowledge and practice, Routledge, 2019.
Bench and bar books
Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book, 2019 —, accessed 14/6/2023.
The Public Defenders, “Childhood exposure to domestic and family violence”, The Bar Book Project, 2019, accessed 14/6/2023.
Government reports
Australian Human Rights Commission, A conversation in gender equality, March 2017, accessed 14/6/2023.
Australian Human Rights Commission, Unleashing the power of gender equality — priorities of Kate Jenkins, Australian Sex Discrimination Commissioner, November 2017, accessed 14/6/2023.
Australian Human Rights Commission, Everyone’s business: fourth national survey on sexual harassment in Australian workplace, 2018, accessed 14/6/2023.
Australian Human Rights Commission, Everyone’s business: sexual harassment of SDA members, 2019, accessed 14/6/2023.
Australian Human Rights Commission, Risk of homelessness in older women, Background paper, 2019, accessed 14/6/2023.
Australian Human Rights Commission, Respect@Work: Sexual harassment national enquiry report, 2020, accessed 14/6/2023.
Australian Institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story 2019, accessed 14/6/2023.
Department of Social Services, National plan to reduce violence against women and their children 2010–2022, accessed 14/6/2023.
Judicial Council on Cultural Diversity (now the Judicial Council on Diversity and Inclusion), National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait Islander women and migrant and refugee women, 2017, accessed 14/6/2023.
NSW Government, It stops here: standing together to end domestic and family violence in NSW, 2014, accessed 14/6/2023.
NSW Government, NSW Sexual Assault Strategy 2018–2021, 2018, accessed 14/6/2023.
NSW Ministry of Health, NSW domestic and family violence blueprint for reform 2016–2021: safer lives for women, men and children, 2016, accessed 14/6/2023.
NSW Parliament, Joint Select Committee on Coercive Control, Coercive control in domestic relationships, Report 1/57, June 2021, accessed 14/6/2023.
J Phillips and P Vandenbroek, Domestic, family and sexual violence in Australia: an overview of the issues, Parliamentary Library Research Paper Series 2014–15, 2014, accessed 14/6/2023.
Workplace Gender Equality Agency, 2018–19 Gender equality scorecard, 2019, accessed 14/6/2023.
News reports
C Cain Miller, “Pink-collar problem: how women’s workforce gains conceal a problem”, psnews.com.au, 3/2/2020, accessed 14/6/2023.
C Cain Miller, “Why men don’t want the jobs done mostly by women”, The New York Times (online), 4/1/2017, accessed 14/6/2023.
Research papers and reports
Australia’s National Research Organisation for Women’s Safety, “The views of Australian judicial officers on domestic and family violence perpetrator interventions”, June 2020, accessed 14/6/2023.
Australia’s National Research Organisation for Women’s Safety, Are we there yet? Australians’ attitudes towards violence against women & gender equality, Summary findings from the 2017 National Community Attitudes towards Violence against Women Survey (NCAS), 2019, accessed 14/6/2023.
H Boxall, C Dowling and A Morgan, “Female perpetrated domestic violence: prevalence of self-defensive and retaliatory violence”, Trends & Issues in Crime and Criminal Justice, No 584, Australian Institute of Criminology, 2020, accessed 16/6/2023.
K Cripps et al, Attitudes towards violence against women and gender equality among Aboriginal people and Torres Strait Islanders: findings from the 2017 National Community Attitudes towards Violence against Women Survey (NCAS), ANROWS Insights, Issue 03/2019, ANROWS, 2019, accessed 14/6/2023.
C Dowling et al, “Protection orders for domestic violence: a systematic review”, Trends & Issues in Crime and Criminal Justice, No 551, Australian Institute of Criminology, 2018, accessed 14/6/2023.
P Gallagher et al, Sentencing disparity and the gender of juvenile offenders, Research Monograph No 16, Judicial Commission of NSW, 1997, accessed 14/6/2023.
A Gombru et al, “Sentencing for domestic violence”, Sentencing Trends & Issues, No 45, Judicial Commission of NSW, 2016, accessed 14/6/2023.
S Hulme et al, Domestic violence offenders, prior offending and reoffending in Australia, Trends & Issues in Crime and Criminal Justice, No 580, Australian Institute of Criminology, 2020, accessed 14/6/2023.
KPMG, The cost of violence against women and their children in Australia, Final Report, 2016, accessed 14/6/2023.
Law Council of Australia, The Justice Project — Part 1: People who experience family violence, Final Report, 2018, accessed 14/6/2023.
NSWLRC, Consent in relation to sexual offences, Consultation paper 21, 2018, accessed 14/6/2023.
NSWLRC, Consent in relation to sexual offences, Draft Proposals, 2019, accessed 14/6/2023.
NSW Domestic Violence Death Review Team, Report 2019–2021, 2022, accessed 14/6/2023.
Our Watch, Australia’s National Research Organisation for Women’s Safety (ANROWS) and VicHealth, Change the story: a shared framework for the primary prevention of violence against women in Australia, Our Watch, 2nd edn, 2021, accessed 14/6/2023.
V Politoff et al, Young Australians’ attitudes to violence against women and gender equality: findings from the 2017 National Community Attitudes towards Violence against Women Survey (NCAS), ANROWS Insights, Issue 01/2019, ANROWS, 2019, accessed 14/6/2023.
N Sharp, “What’s yours is mine”: The different forms of economic abuse and its impact on women and children experiencing domestic violence, Refuge, 2008, accessed 14/6/2023.
E Summerhayes and M Ryan, “The glass cliff election”, Global Institute for Women’s Leadership at ANU, May 2022, accessed 14/6/2023.
M Stathopoulos et al, Addressing women’s victimisation histories in custodial settings, ACSSA Issues, No 13, 2012, accessed 4 May 2022.
S Tarrant, J Tolmie and G Giudice, Transforming legal understandings of intimate partner violence, Research report 03/2019, ANROWS, 2019, accessed 14/6/2023.
J Usher et al, Crossing the line: lived experience of sexual violence among trans women of colour from culturally and linguistically diverse (CALD) backgrounds in Australia, Research report 14/2020, ANROWS, 2020, accessed 14/6/2023.
K Webster et al, Australians’ attitudes to violence against women and gender equality: findings from the 2017 national community attitudes towards violence against women Survey (NCAS), Research report 03/2018, ANROWS, 2018, accessed 14/6/2023.
K Webster et al, Attitudes towards violence against women and gender equality among people from non-English speaking countries: findings from the 2017 National Community Attitudes towards Violence against Women Survey (NCAS), ANROWS Insights, Issue 02/2019, ANROWS, 2019, accessed 14/6/2023.
R Wilkins et al, The household, income and labour dynamics in Australia survey: selected findings from waves 1 to 17, Melbourne Institute, University of Melbourne, 2019, accessed 14/6/2023.
7.10 Your comments
The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.
We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.
In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.
Section 14 contains information about how to send us your feedback.
1When this section was first published in 2006, two sources were important to its drafting. To the extent that these foundations remain in place following the 2020 update, they are acknowledged: in relation to identifying the relevance of gender; R Graycar and J Morgan, The hidden gender of law, 2nd edn, Federation Press, 2002; informing the practical considerations; A Ainslie-Wallace, “Gender awareness”, paper presented to the following conferences — National Judicial Orientation Program, 6–10 August 2000, Brighton-le-Sands; National Judicial Orientation Program, 21–25 October 2001, Brighton-le-Sands; and NSW Land and Environment Court, 2001 Annual Conference, 11–12 October 2001, Hunter Valley.
2C Thomas and J Selfe, Aboriginal women and the law, NSW Women’s Coordination Unit, 1993.
3See also, Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, p 169, accessed 14/6/2023.
4Men’s and Women’s Business: In Aboriginal and Torres Strait Islander culture there are customs and practices that are performed by men and women separately. This gender-specific practice is often referred to as Men’s and Women’s Business. These practices have very strict rules. Men’s and Women’s Business includes matters relating to health, wellbeing, religious ceremony and maintenance of significant geographic sites and differs from community to community. Topics discussed during Men and Women’s Business can differ between communities: see Australian Government Department of The Prime Minister and Cabinet, Communicating with Aboriginal and Torres Strait Islander audiences, 2016, p 8.
5Women are injured more often and more severely in domestic violence incidents than men, and are more likely to be killed by an intimate partner. In that respect, the domestic homicide gender gap paints a stark picture: an analysis of 152 intimate partner homicides in Australia in the four years to June 2014 found the majority — 80% — involved a male killing his female partner. Of those men, almost all — 93% — had been the primary abuser in their relationship. Just two of the 28 women who killed male partners had been the primary abuser prior to the homicide: see S Swan, et al, “A review of research on women's use of violence with male intimate partners” (2008) 23(3) Violence Vict 301.
7Anti-Discrimination Act 1977, Pt 3.
8ibid, Pt 3A.
9ibid, s 5.
10Australian Bureau of Statistics (ABS), Census QuickStats, 2021, Canberra, accessed 14/6/2023.
11ABS, Census QuickStats, 2016, Canberra, accessed 14/6/2023.
12ibid.
13Women NSW, Department of Family and Community Services, Women in NSW 2018, 2019, p 10, accessed 19/2/2020. China, England, India, New Zealand and Philippines are the top five overseas countries of birth for general population of NSW, according to ABS, Census QuickStats, 2016, Canberra, accessed 14/6/2023.
14ABS, 2016 Census of Population and Housing for NSW, Table G06 — Social marital status by age by sex, Canberra.
15ABS, Census of Population and Housing: Estimating homelessness, 2016, released 2018, cat 2019.0, “State and territory of usual residence, Sex by age of person” Data Cube, Table 4.2 Homelessness operational groups and other marginal housing, New South Wales — Sex by age of person — 2016. See also Homelessness Australia, accessed 14/6/2023.
16ABS, Census of Population and Housing: Reflecting Australia — Stories from the Census, 2016 — Snapshot of Australia, Table 16, Sex of Lone Parent and State and Territory of Enumeration, Count of lone parent families. The proportion is effectively unchanged since 2011, although the numbers have increased: 82.2% (just under 256,000) in 2016 (just under 256,000) compared with 82.7% (just over 181,000) in 2011.
17AHRC, A conversation in gender equality, March 2017, p 24, accessed 14/6/2023.
18ibid pp 9, 27, 34.
19ibid p 34.
20ibid, referring to research captured in the Our Watch, “Change the story” framework; Our Watch, Australia’s National Research Organisation for Women’s Safety (ANROWS) and VicHealth, Change the story: a shared framework for the primary prevention of violence against women and their children in Australia, 2015, Melbourne, accessed 14/6/2023.
21AHRC, above n 17, p 35, citing research including Victorian Police survey and Our Watch Survey in 2015 that showed that one in six 12–24 year olds believe “women should know their place” and that more than a quarter believed that “male verbal harassment” and “pressure for sex towards females” were “normal” behaviours.
22ABS Education and Work, Australia, May 2019, Canberra, ABS cat 6227.0, Table 9, released 13/11/2019, accessed 14/6/2023.
23ibid.
24For some information about casualisation of the workforce and insecure work, see S Das, “Fact check: has the rate of casualisation in the workforce remained steady for the last 20 years?” ABC News, 12/7/2018, accessed 14/6/2020.
25For examples of media coverage foreshadowing recession even before the strict measures to inhibit the spread of COVID-19 in Australia from mid-March 2020, see: M Cranston, “Risk of first recession in 29 years rising”, 5/3/2020, Financial Review, accessed 14/6/2023.
2647% based on “trend” data, according to ABS, Labour Force, Australia, December 2019, Canberra, ABS cat 6202.0, Table 1, Labour force status by Sex, Australia — Trend, seasonally adjusted and original, released 23/1/2020, accessed 14/6/2023.
2747% based on “trend” data, ibid, Table 4. Labour force status by Sex, New South Wales — Trend, Seasonally adjusted and original, accessed 11 October 2022.
28M Reddy, “‘Poor culture’ at executive level”, The Sydney Morning Herald, March 2020. The article cites Chief Executive Women (CEW) as the source of this data: see “A long way to the top: women at work in Australia”, which in turn cites ABS, 4125.0 — Gender indicators, Australia, September 2018, accessed 14/6/2023.
29Based on participation rates of 61.6% for females and 70.5% for males where there are 4267.7 total persons employed: ABS, above n 27.
30as at December 2019, ibid.
32ABS, Gender indicators — economic security, 2019–2020, accessed 14/6/2023.
33G Dent, “Five facts every Australian needs to know about men at work”, Women’s Agenda, 17/3/2020, accessed 14/6/2023. The author is summarising an address made by journalist Annabel Crabb for International Women’s Day 2020, based on her main thesis of her text, The Wife Drought.
34ibid.
35Chief Executive Women, “2022 CEW census an urgent wakeup call — CEO gender balance 100 years away”, accessed 14/6/2023.
36KPMG, She’s Price(d)less – the economics of the gender pay gap, 2019, summary report, p 8. See Full Report, accessed 14/6/2023.
38B Hartge-Hazelman, “Australian women are losing one year of progress for every month of the pandemic”, Women’s Agenda, 18/8/2020, accessed 14/6/2023.
39D Wood, K Griffiths and T Crowley, “Women’s work: the impact of the COVID crisis on Australian women”, Grattan Institute, March 2021, accessed 14/6/2023.
40ibid p 3.
41ibid p 10.
42ABS, Average weekly earnings, Australia, November 2022, released 23/2/2023, accessed 13/6/2023.
43As calculated by applying the formula of the Workplace Gender Equality Agency (WGEA) to the ABS data: “Calculating gender pay gaps (GPG)”, accessed 13/6/2023.
44As at February 2023, calculated by WGEA using ABS data, “Gender pay gap data”, accessed 14/6/2023. The WGEA also reports on data submitted in accordance with the Workplace Gender Equality Act 2012 (Cth) from non-public sector employers with over 100 employees: in the report from 1 April 2021 to 31 March 2022, Australia’s gender pay gap was calculated to be 22.8%. WGEA, Australia’s gender equality scorecard, December 2022, p 4, accessed 14/4/2023.
46Workplace Gender Equality Agency (WGEA), GradStats – starting salaries, February 2016, p 2, accessed 13/6/2023.
47NSW Government, State of the NSW Public Sector Report 2021, pp 37–38, accessed 13/6/2023: women $90,394 and men $94,299.
50ibid p 7.
51See NSW Government, “NSW Gender equality dashboard”, accessed 14/6/2023.
52“Life expectancy in Australia has reached record highs with a boy born today expected to live to 80.7 years and a girl to 84.9 years. Around 50 years ago (1965–1967), life expectancy at birth in Australia was 67.6 years for males and 74.2 years for females, a gap of 6.6 years. The gap has now narrowed to 4.2 years in 2016-2018”, from ABS media release to Life Tables, States, Territories and Australia, 2016–2018, cat 3302.0.55.001, released 30/10/2019, accessed 14/6/2023. See also 11.1.6 Care and assistance in Older Persons section.
53R Clare, Better retirement outcomes: a snapshot of account balances in Australia, The Association of Superannuation Funds of Australia Limited (ASFA), July 2019, p 5, accessed 14/6/2023. Clare cites ATO data and also references ABS data for 2017–18: an average in 2017–18 of $168,500 for males and $121,300 for females. See also Senate Standing Committees on Economics, Report from the Economic Security for Women in Retirement inquiry, Report: “A husband is not a retirement plan” — achieving economic security for women in retirement, Ch 2: Background, 2016, accessed 14/6/2023.
54J Dunn, “Women less than equal in retirement” Financial Review, 8/12/2020, accessed 14/6/2023.
55Productivity Commission, “Paid maternity, paternity and parental leave”, Inquiry Report, May 2009, accessed 14/6/2023.
56Industry Super Australia, “Paying Super on parental leave”, 16/9/2021, accessed 14/6/2023.
57See Industry Super Australia, “It’s time to bridge the super gender gap”, 8/3/2020, accessed 14/6/2023. See also the “Retirement income review” which was released in November 2020, accessed 14/6/2023.
58See Industry SuperFunds, “The gender super gap”, 31/12/2017, accessed 14/6/2023.
59See C Hobbs, “Things to consider on the new option to access superannuation early”, Women’s Agenda, 1/4/2020, accessed 14/6/2023.
60D Hughes, One-in-seven women using all their super to pay bills”, Financial Review, 31/5/2020, accessed 14/6/2023, citing analysis by AMP.
61AIST, “Gender super gap set to widen for women who applied for COVID early release”, Media and News, accessed 14/6/2023.
62K Curtis, “A perfect storm: up to 70,000 women may have been coerced into withdrawing super”, Sydney Morning Herald, 21/2/2022, accessed 14/6/2023.
64AHRC, Everyone’s business: 2018 sexual harassment survey, 12/9/2018, p 12, accessed 13/4/2020.
65ibid. See also ASFA, “Women's economic security in retirement”, May 2018, accessed 14/6/2023. KPMG also identified these factors in its submission to the Retirement income review, 3/2/2020, accessed 14/6/2023.
66AHRC, “Older women’s risk of homelessness: background paper”, 2019, p 8, accessed 14/6/2023.
67ABS, Census of Population and Housing: Estimating homelessness: State and territory of usual residence, Sex by age of person, 2016, Data cube: Excel spreadsheet, Cat. No. 2049.0 (2018).
69ABS, 2049.0 Census of Population and Housing: Estimating Homelessness, 2016, Factsheet: domestic and family violence, released 14/3/2018; ABS 2049.0 Census of Population and Housing: Estimating Homelessness, 2016, Factsheet: Aboriginal and Torres Strait Islander Homelessness, released 14/3/2018, accessed 14/6/2023.
70AHRC, Supporting working parents: pregnancy and return to work national review — report, 2014, p 1, accessed 14/6/2023.
71ibid, p 33; see also A Heron and S Charlesworth, “Effective protection of women at work: still waiting for delivery” (2016) 29 Australian Journal of Labour Law 1.
72As summarised in G Jennings-Edquist, “Pregnant and discriminated against at work? Here's what to do”, ABC Life, 24/10/2018, updated 19/8/2019, accessed 14/6/2023.
73ibid.
74WGEA Data Explorer, 2019, accessed 14/6/2023.
75ibid.
77L Andelman, “Restructure required to bridge the gender gap”, 8/3/2020, LSJ Online, accessed 14/6/2023.
78J Doraisamy, “Women barristers now receiving 30% of briefs”, Lawyers Weekly online,10/3/2022, accessed 14/6/2023.
79C Williams, “The glass escalator: hidden advantages for men in the ‘female’ professions”, (1992) 39(3) Social Problems 253. In the Australian context, see Women’s Agenda, “How gender segregation creates glass elevators for men and pay gaps for women”, Women’s Agenda, 3/4/2020, accessed 14/6/2023.
80AHRC, above n 17, p 29. See also Senate, Finance and Public Administration References Committee, Gender segregation in the workplace and its impact on women's economic equality, Report, June 2017, accessed 14/6/2023.
81Faculty of Business and Economics at University of Melbourne, Episode 4: “His and Hers” Jobs, Women are the business, accessed 14/6/2023, transcript at p 4. The example given in the transcript is the consequence of crash test dummies being based on the average size of men, so that women (who are, on average, smaller) were more severely injured in circumstances perceived as safe based on those crash test dummy results. The gender bias that underpins data collection is explored in C Criado Perez, Invisible women: exposing data bias in a world designed for men, Vintage Publishing, 2019.
82WGEA, Gender segregation in Australia’s workforce, August 2019, accessed 14/6/2023.
83International Labour Organisation (ILO), Breaking barriers: unconscious gender bias in the workplace, International Labour Office, August 2017, p 3, accessed 14/6/2023.
84C BasuMallick, Is unconscious bias training enough to eliminate workplace bias?, HR Technologist, 25/6/2019, accessed 14/6/2023.
85J McCann and J Wilson, “Representation of women in Australian Parliaments 2014”, Parliament of Australia, July 2014, accessed 14/6/2023.
86NSW Government, “NSW Gender Equality Dashboard — Electoral representation”, accessed 14/6/2023.
88R Nolan and J Pawluk, “Only more women will fix Parliament’s ‘culture’ problem. Here’s how to do it …”, The McKell Institute, March 2021, accessed 14/6/2023.
89G Hitch and K Calderwood, “Female federal election candidates still more likely than men to be running in margional or unwinnable seats, analysis shows”, ABC News, 13/5/2022, accessed 14/6/2023.
91ibid.
94T Livermore, J Rodgers and P Siminski, “The effect of motherhood on wages and wage growth: evidence for Australia” (2010) 87(S1) Economic Record 80.
95The largest percentage of males (35.6%) spent less than five hours, compared with the largest group of females (36.4%) who spent 5 to 14 hours: ABS, “National: who was the ‘typical’ Australian in 2016?”; ABS, 2071.0 — Census of Population and Housing: Reflecting Australia — Stories from the Census, 2016 — Employment Data Summary; ABS, Table 12. Hours worked by hours of unpaid domestic labour by sex, count of employed persons, downloadable in “Employment” Data Cube, accessed 14/6/2023.
96R Wilkins, I Laß, P Butterworth and E Vera-Toscano, The household, income and labour dynamics in Australia survey: selected findings from waves 1 to 17 (“the HILDA Survey”), 2019, Melbourne Institute of Applied Economic & Social Research, University of Melbourne, pp 97–98, accessed 14/6/2023.
97L Ruppanner, “Census 2016: Women are still disadvantaged by the amount of unpaid housework they do”, The Conversation, 11/4/2017, accessed 14/6/2023.
98WGEA, “Unpaid care work and the labour market”, November 2016, accessed 10/3/2020.
99J Thorpe, R Tyson and N Neilson, Understanding the unpaid economy, March 2017, PwC, accessed 14/6/2023.
100ABS, “Household Impacts of COVID-19 survey”, July 2020, released 27/72020, as reported in “Women’s work: the impact of the COVID crisis on Australian women”, above n 39, p 18.
101L Ruppanner, “Understanding the mental load, what it is and how to get it under control”, Opinion, ABC News, accessed 14/6/2023.
102G Dent, above n 33. See also, KPMG, above n 36; P Ryan and R Puppazzoni, “Gender discrimination driving a pay wedge between men and women, report finds”, ABC News, 22/8/2019, accessed 14/6/2023.
104ibid.
105C Duffy, “Pushing parental leave in Australia to help close the gender pay gap”, ABC News, 4/2/2020, accessed 14/6/2023.
106ibid.
107A Crabb, “Why don’t more dads take parental leave? The answer is in their heads”, ABC News, 8/9/2019, accessed 14/6/2023.
10925.2% of women live outside major cities in NSW in 2018: see Women in NSW 2018, p 10.
110National Foundation for Australian Women, 2019, Women & Housing Fact Sheet, as stated in YWCA, Women’s housing needs in regional Australia, May 2020, p 9, accessed 14/6/2023.
111ibid.
112ibid p 4.
113Commonwealth of Australia, Department of the Prime Minister and Cabinet, Towards 2025: a strategy to boost Australian women’s workforce participation, 2017, accessed 14/6/2023.
114AHRC, A conversation in gender equality, March 2017, pp 7 and 13, accessed 14/6/2023.
115ibid pp 6 and 13.
116ibid p 13.
117ibid p 14. Recent and ongoing events of these kinds include the NSW drought that started in 2017 and the 2019–2020 bushfire season. The 2019–20 bushfire season, referred to as “Black Summer”, has been frequently described as “unprecedented” in scale. See, for example, Australian Academy of Science, “The Australian bushfires and why they are unprecedented”, 3/2/2020, accessed 14/6/2023. The greater isolation and vulnerability to coercive control and domestic abuse that some women experience in RRR areas may also have been exacerbated by the social distancing and quarantine responses to the COVID-19 global pandemic.
118See definitions in Anti Discrimination Act 1977 s 22A and the discussion at www.antidiscrimination.justice.nsw.gov.au/Pages/adb1_antidiscriminationlaw/sexualharassment.aspx; see also the discussion of the meaning of sexual harassment at the Australian Human Rights Commission website, accessed 14/6/2023. Section 28A of the Sex Discrimination Act 1984 (Cth) (SD Act) defines sexual harassment in the same terms as the NSW Act.
119Such as employment, education, provision of goods, services and accommodation, land dealings, sport, and State laws and programs: Anti-Discrimination Act 1977, Pt 2A.
120United Nations General Assembly, Declaration on the elimination of violence against women, GA Res 48/104, UN Doc A/RES/48/104, 20 December 1993, Art 1, 2(b).
121See Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403 at [35], [81], [96]–[97], [107], [109]; [125].
122AHRC, Respect@Work: national inquiry into sexual harassment in Australian workplaces, March 2020, foreword, accessed 14/6/2023.
124ibid.
125ibid p 28.
126ibid p 33.
127L Knowles, “Sexual harassment of women rife in Australian legal profession, survey finds”, ABC News, 8/3/2019, accessed 14/6/2023.
128International Bar Association, “Us Too? Bullying and sexual harassment in the legal profession”, 2019, pp 51–52, accessed 14/6/2023.
130For example, one in five retail workers has been sexually harassed at work in the past five years, with the most common perpetrators a senior colleague or a customer: University of Sydney, Gendered disrespect and inequality in retail work: a summary of findings, March 2023, pp 17–20, accessed 13/6/2023.
131ibid.
132Australian Human Rights Commission, “Fact sheet: Respect@Work – changes to the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act (December 2022)”, accessed 14/6/2023; Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth), Sch 2 and 3.
134K Nomchong, “Sexual harassment and the judiciary” (2020) 32 JOB 55 at 56.
135J A Santos, “When justice behaves unjustly: addressing sexual harassment in the judiciary” (2018) 54 Ct Rev 156 at 157.
136ibid.
137High Court of Australia, Statement by the Hon Susan Kiefel AC, Chief Justice of the High Court of Australia, accessed 14/6/2023.
138Supreme Court of NSW, “Supreme Court policy on inappropriate workplace conduct”, 2020, accessed 14/6/2023.
139AHRC, above n 17, p 11. The term “intersectionality” was first coined in 1989 by Kimberley Crenshaw in “Mapping the Margins” (1991) 43 Stanford Law Review 124, as an analytical framework to challenge structural power in the context of racism and to describe the racialising of gender and the gendering of race as invisible to discrimination law. Note that Crenshaw herself feels the term has been co-opted to mean something other than its original intent: see A Whittaker, “So white, so what” (2020) Meanjin 50.
140P Easteal, Less than equal: women and the Australian legal system, Butterworths, 2001, p 81. See also P Easteal (ed), Women and the Law in Australia, LexisNexis, 2010, for chapters on intersectionality for First Nations women, women with disabilities, and lesbians and same-sex attracted women.
143University of NSW, Calling it what It really is: a report into lesbian, gay, bisexual, transgender, gender diverse, intersex and queer experiences of domestic and family violence, 2014, p 29, accessed 13/6/2023.
144See Revised Explanatory Memorandum, Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, p 42, accessed 14/6/2023.
145AIHW, People with disability in Australia, Web report 2022, p 187, accessed 13/6/2023.
146ibid.
148ibid.
149AIFS, Elder abuse: understanding issues, frameworks and responses, 2016, p 5, accessed 14/6/2023.
150Australian Research Centre in Sex, Health and Society, Norma’s Project: a research study into the sexual assault of older women in Australia, June 2014, p 16, accessed 14/6/2023.
152ibid, p 17.
153L Szalacha et al, Mental health, sexual identity, and interpersonal violence: findings from the Australian longitudinal women’s health study, BMC Women’s Health, 2017, 17: 94.
154PwC, LGBTI perspectives on workplace inclusion, 2016, p 5,accessed 14/6/2023.
155ibid.
156ABS, 3302.0.55.003 — Life Tables for Aboriginal and Torres Strait Islander Australians, 2015–2017, accessed 14/6/2023.
157AIHW, Maternal deaths in Australia, November 2019, “Characteristics of women who died – maternal First Nations status”, accessed 14/6/2023.
158See www.indigenous.gov.au/news-and-media/announcements/ochre-ribbon-week-2020, accessed 14/6/2023.
159BOCSAR, unpublished data 2018, supplied by the NSW Bureau of Crime Statistics in July 2019.
160K Cripps and D Habbis, “Improving housing and service responses to domestic and family violence for Indigenous individuals and families”, Final report No. 320, August 2019, accessed 14/6/2023. See also Judicial Council on Diversity and Inclusion (JCDI) (formerly the Judicial Council on Cultural Diversity), National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait Islander women and migrant and refugee women, 2017, p 6, accessed 13/6/2023.
161O Evans, “Gari Yala (speak the truth): gendered insights”, WGEA Commissioned Research Report in partnership with the Jumbunna Institute of Education and Research and Diversity Council Australia, 2021, pp 3, 9, accessed 14/6/2023.
163ibid.
164ibid p 6.
165ibid.
166ibid.
167See Cultural Diversity E-Learning under “Training resources”, accessed 14/6/2023.
168United Nations General Assembly, Declaration on the elimination of violence against women, 1993, accessed 14/6/2023. See also F Leung and L Trimboli, “Improving police risk assessment of intimate partner violence”, No 244, BOCSAR, February 2022; M Zaki, B Baylock and P Poletti, “Sentencing for domestic violence in the Local Court” (2022) 48 Sentencing Trends & Issues, accessed 14/6/2023.
169AIHW, Family, domestic and sexual violence in Australia: continuing the national story, 2019, p 17, accessed 14/6/2023.
170ABS, 4906.0 – Personal safety, Australia, 2016, accessed 14/6/2023.
171Some examples of behaviours used to define the concept of emotional abuse are found in ABS, 4906.0 — Personal safety, ibid.
172See J Hill, See what you made me do: power, control and domestic violence, Black Inc, 2019; “A Cottrell, "A core dysfunction in our society", Kill Your Darlings, 7/9/2019, accessed 25/4/2020.
173See for example Crimes (Domestic and Personal Violence) Act 2007 ss 4 and 5.
174E Stark, “Re-presenting battered women: coercive control and the defense of liberty”, paper presented at Violence Against Women: Complex Realities and New Issues in a Changing World, Les Presses de l’Université du Québec, 29 May–1 June 2011, accessed 13/6/2023. Stark was the first to use the term “coercive control” in E Stark, Coercive control: how men entrap women in personal life, OUP, 2007.
175J Monckton-Smith, “Intimate partner femicide: using Foucauldian analysis to track an eight stage progression to homicide”, 2019.
176Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 11.
177E Buxton-Namisnyk and A Butler, “What’s language got to do with it? Learning from discourse, language and stereotyping in domestic violence homicide cases” (2017) 29 Judicial Officers’ Bulletin 49 at 50.
178ibid.
180A Olsen and R Lovett, Existing knowledge, practice and responses to violence against women in Australian Indigenous communities: state of knowledge paper, ANROWS, 2016, p 1. See also “family violence” in AIHW, above n 169, p 17.
181ibid.
182S Meyer, “Why women stay: a theoretical examination of rational choice and moral reasoning in the context of intimate partner violence” (2012) 45(2) ANZJ Crim 179.
183For example, “Family violence myths and facts”, Safe Steps Family Violence Response Centre, accessed 16/6/2023.
184Section 144(2) Evidence Act allows a judge to acquire common knowledge or knowledge sourced in an authoritative document in any way that the judge thinks fit. A court (including a jury, if there is one) must take such knowledge into account (s 144(3)); S McDermott, manager, Domestic and Family Violence Team, NSW Police, reported in J Baird, “Exercise extreme caution when celebrity abuse cases end up in the media”, Sydney Morning Herald, 25/7/2020, accessed 16/6/2023.
185See National Sexual Assault, Domestic Family Violence Counselling Service, accessed 16/6/2023.
186P Hayes, “Bracing for violence on grand final day”, NewsGP, 24/9/2019, accessed 16/6/2023.
187ABS, Recorded Crime – Victims, 2021, released June 2022, accessed 16/6/2023.
188ibid.
189ibid.
190ibid.
191ABS, Recorded Crime – Offenders, 2021–22 financial year, released February 2023, accessed 16/6/2023.
192BOSCAR, Domestic violence statistics for NSW, “AVO statistics”, January 2022–December 2022, accessed 16/6/2023.
193Justice Health and Forensic Mental Health Network, People in NSW public prisons: 2020 health status and service utilisation report, November 2022, p 86, accessed 16/6/2023.
194BOCSAR, NSW recorded crime statistics, quarterly update, June 2022, pp 9–10, accessed 16/6/2023.
195Legal Aid NSW, Annual Report 2021–2022, p 67, accessed 16/6/2023.
196ABS, Personal Safety, Australia, 2021–22 financial year, released 15/3/2023, accessed 16/6/2023. “Intimate partner” includes a cohabiting partner, non-cohabiting boyfriend/girlfriend or date, and ex-boyfriend/ex-girlfriend.
197ibid.
198BOCSAR, “Domestic violence in NSW in the wake of COVID-19: update to December 2020”, June 2021, accessed 16/6/2023.
199Australian Institute of Criminology, The prevalence of domestic violence among women during COVID-19 pandemic, Statistical Bulletin 28, July 2020, accessed 16/6/2023.
200Data on domestic violence related deaths, including intimate partner homicides and relative/kin homicides, is sourced from the NSW Domestic Violence Death Review Team, Report 2017–19, accessed 16/6/2023.
201The term “domestic violence related death” includes examination of not only domestic violence homicides, but also domestic violence related suicides, as well as where fatal accidents are caused by domestic violence: ibid p xv.
202ibid.
203ibid p xv.
204ibid p xv.
205ibid p xv.
206ibid.
207ibid.
208ibid.
209ibid p 10.
210ibid.
211ibid p xvi.
212ibid p 8.
213ibid p xvi.
214ibid p 14.
215ibid p 17.
216National Council to Reduce Violence against Women and their Children, Background paper to time for action: the national council’s plan to reduce violence against women and their children, 2009–2021, March 2009, p 29, accessed 16/6/2023
217ibid p 26.
218ANROWS, “National community attitudes towards violence against women”, 2017, p 28, accessed 16/6/2023.
219The survey is part of the of Council of Australian Governments, The National Plan to reduce violence against women and their children 2010–2022, accessed 16/6/2023 and is aligned with Change the story: a shared framework for the primary prevention of violence against women and their children in Australia: see www.anrows.org.au/NCAS/2017/about-the-survey/, accessed 16/6/2023.
220K Webster, et al, Australians’ attitudes to violence against women and gender equality: findings from the 2017 national community attitudes towards violence against women survey, Research Report 03/2018, 2018, p 12 at https://d2rn9gno7zhxqg.cloudfront.net/wp-content/uploads/2019/12/05062144/anr001-NCAS-report-WEB-1019.pdf, accessed 11 September 2020.
221ibid p 8.
222K Webster, et al, Attitudes towards violence against women and gender equality among people from non-English speaking countries: findings from the 2017 national community attitudes towards violence against women survey, ANROWS Insights, Issue 02.2019, Sydney, p 8, accessed 16/6/2023.
224ibid p 17.
225S Hulme, A Morgan and H Boxall, “Domestic violence offenders, prior offending and reoffending in Australia” (2019) 580 Trends & issues in crime and criminal justice, Australian Institute of Criminology, accessed 16/6/2023.
226[2016] NSWSC 1181 at [52] per RA Hulme J.
227J Hill, “Patriarchy and power: how socialisation underpins abusive behaviour”, The Guardian, 8/3/2020, accessed 16/6/2023.
228E Stark, Coercive control: how men entrap women in personal life, Oxford University Press, 2007.
229This “mental dislocation” has been described by Amnesty International as “torture”: J Hill, above n 227.
230H Gleeson, “Coercive control: the ‘worst part’ of domestic abuse is not a crime in Australia. But should it be?”, updated 19/11/2019, ABC News, accessed 16/6/2023.
232Unless otherwise specified, this list is adapted from Women’s Aid UK webpage, “What is coercive control?”, accessed 16/6/2023.
233C Lamothe, “How to recognise coercive control”, Healthline, 10/10/2019, accessed 12/6/2010.
234Examples cited from research into media reporting of coercive control offences in the UK by a Deakin University academic described in above n 230.
235ibid.
236S York Morris, “How to recognise gaslighting and get help”, Healthline, 31/3/2017, accessed 16/6/2023.
237ibid.
239ibid.
240C Gill and M Aspinall, Understanding coercive control in the context of intimate partner violence in Canada: how to address the issue through the criminal justice system, Research paper, Office of the Federal Ombudsman for Victims of Crime, 20/4/2020, accessed 16/6/2023.
241H Boxall and A Morgan, “Experiences of coercive control among Australian women”, AIC Statistical Bulletin 30, March 2021, accessed 16/6/2023.
242NSW Government, “Coercive control discussion paper”, October 2020, p 8, accessed 16/6/2023.
244H Douglas, “Legal systems abuse and coercive control” (2018) Criminology and Criminal Justice 84, accessed 16/6/2023. See also D McMillan, “Criminalising coercive control: a complex discussion” (2021) 33 JOB 57.
246NSW Domestic Violence Death Review Team, Report 2019/2021, 2022, pp 122–125, accessed 9/6/2023.
247NSW Government, NSW passes landmark coercive control reform, media release, 16/11/2022, accessed 16/6/2023.
248Queensland Government, First stage in legislating against coercive control passes Parliament, media release, 22/2/2023, accessed 13/6/2023. See also reports 1 and 2 of the Women’s Safety and Justice Taskforce, accessed 13/6/2023.
249See Family Violence Act 2004 (Tas), ss 8, 9.
250eSafety Commissioner, “Domestic and family violence”, accessed 16/6/2023.
251ibid.
252eSafety Commissioner, “Online abuse targeting women”, accessed 16/6/2023.
253M Bromberg, “The devil you know is not better — the non-consensual distribution of intimate images and sentencing”, (2020) 44 Crim LJ 173.
254Sections 91Q and 91R Crimes Act 1900.
255Section 91N Crimes Act 1900; see also s 9B, Enhancing Online Safety Act 2015 (Cth).
256Office of the eSafety Commissioner, “Image-based abuse. National survey: summary report”, October 2017, p 2, accessed 16/6/2023.
257ibid.
258Section 91S was inserted into the Crimes Act 1900 by Act 31 of 2020, Sch 1.4 commencing 27 October 2020.
260Equal Treatment Bench Book (UK), February 2018 (March 2020 revision), p 147, accessed 16/6/2023.
261ibid.
262ibid.
263D Woodlock, ReCharge: women’s technology safety, legal resources, research and training, 2015, Women’s Legal Service NSW, Domestic Violence Resource Centre Victoria and WESNET, Collingwood, p 20, accessed 16/6/2023.
264Explanatory Memoranda, Online Safety Bill, pp 1-2, accessed 16/6/2023.
265eSafety Commissioner, “Know the facts about women online”, accessed 16/6/2023.
266ibid.
267A Powell and N Henry, Digital harassment and abuse of adult Australians: a summary report, RMIT University, 2015, p 1, accessed 16/6/2023.
268ibid.
271B Harris and D Woodlock, “Spaceless violence: women’s experiences of technology-facilitated domestic violence in regional, rural and remote areas”, Trends & Issues in crime and criminal justice, No 644, February 2022, accessed 16/6/2023.
272Inquiry into family, domestic and sexual violence, accessed 16/6/2023.
273The Draft National Plan to end violence against women and children 2022–2032 closed on 25/2/2022. The draft can be accessed at https://engage.dss.gov.au/draft-national-plan-to-end-violence-against-women-and-children-2022-2032/, accessed 16/6/2023.
274WHO, “Eliminating female genital mutilation: the imperative” OHCHR, UNAIDS, UNDP, UNCEA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, 2008.
275WHO, “Female genital mutilation”, 3/2/2020, accessed 16/6/2023.
276AIHW, “Discussion of female genital mutilation/cutting data in Australia”, 2019, accessed 16/6/2023.
277ibid p 10.
278Sections 45 and 45A, Crimes Act 1900.
279[2019] HCA 35 at [13], [37], [44]; [155]; [165], [174].
280The Queen v A2 at [58], [67]; [158]. See also, A2 v R; Magennis v R; Vaziri v R [2020] NSWCCA 7.
281S Johnsdotter and B Essén, “Cultural change after migration: circumcision of girls in western migrant communities” (2016) 32 Best Pract Res Clin Obstet Gyneacol 15.
283ABS, Recorded crime — victims, Australia, 2021, released July 2022, accessed 16/6/2023.
284ibid.
285BOCSAR, NSW recorded crime statistics quarterly update, June 2022, p 10, accessed 13/6/2023.
287ANROWS, Intimate partner sexual violence: research synthesis, 2019, 2nd ed, p 1, accessed 16/6/2023.
289Lazarus v R [2016] NSWCCA 52 and R v Lazarus [2017] NSWCCA 279.
290See ss 293A, 294, and 294AA of the Criminal Procedure Act 1986.
291Institute for Strategic Dialogue & McCain Institute, “The threat landscape: incel and misogynist violent extremism”, accessed 16/6/2023.
292Anti-defamation League, “Where women are the enemy: the intersection of misogyny and white supremacy”, ADL Centre on Extremism, p 6. See also the University of Exeter, “Rewriting the representation of women in society”, 21/2/2022, accessed 16/6/2023.
294ibid.
295Sydney Community Foundation, Keeping women out of prison — position statement, September 2016, p 4, accessed 16/6/2023.
296ANROWS, Women’s imprisonment and domestic, family, and sexual violence: research synthesis, ANROWS Insights, 03/2020, accessed 16/6/2023.
297H Boxall, C Dowling and A Morgan, “Female perpetrated domestic violence: prevalence of self-defensive and retaliatory behaviour”, Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology No 584, January 2020, accessed 16/6/2023; J Mansour, Women defendants to AVOs: what is their experience of the justice system, Women’s Legal Service NSW, March 2014, accessed 16/6/2023.
299Legal Aid NSW, Annual report 2021–2022, pp 26, 40 and 46, accessed 13/6/2023.
300BOCSAR, NSW custody statistics — quarterly update, December 2022, published February 2023, accessed 13/6/2023.
301H Tang and S Corben, NSW inmate census 2021: summary of characteristics, Statistical Publication No 49, September 2020, p 6, accessed 13/6/2023.
302ibid p 9.
303Justice Health and Forensic Mental Health Network, People in NSW public prisons: 2020 health status and service utilisation report, November 2022, p 41, accessed 14/6/2023.
304ibid p 47.
305ibid p 45.
306ibid pp 44, 40.
307ibid pp 56, 50.
308Justice Health and Forensic Mental Health Network, Network patient health survey report 2015, May 2017, p 24, accessed 14/6/2023.
309M Stathopoulos and A Quadara, Women as offenders, women as victims: the role of corrections in supporting women with histories of sexual abuse, A report for the Women’s Advisory Council of Corrective Services NSW, 2014, accessed 16/6/2023.
310People in NSW public prisons, above n 303, p 86.
311Australian Law Reform Commission, Pathways to justice: Inquiry into the incarceration rates of Aboriginal and Torres Strait Islander Peoples, ALRC Report 133, 28/3/2018, accessed 16/6/2023.
312Network patient health survey report 2015, above n 308, p 26.
313ibid p 27.
314A Symonds, “Children of prisoners” (2009) 21(3) JOB 24; E Stanley and S Byrne, “Mothers in prison: coping with separation from children”, paper presented at the Women in Corrections: Staff and Clients Conference, convened by the Australian Institute of Criminology in conjunction with the Department for Correctional Services (SA), 31 October–1 November 2000, Adelaide, accessed 14/6/2023; A Larson, “Gendering criminal law: sentencing a mothering person with dependent children to a term of imprisonment” (2012) 1 Australian Journal of Gender and Law, accessed 14/6/2023.
315D Kenny, Meeting the needs of children of incarcerated mothers: the application of attachment theory to policy and programming, Consultant Report prepared for the Department of Corrective Services (NSW), October 2012, p 2, accessed 16/6/2023.
316ibid p 5.
317See Bugmy Bar Book, “Incarceration of a parent or caregiver”, Executive summary, 2019, accessed 16/6/2023.
318University of Melbourne School of Health Sciences, Save the Children Australia Centre for Child Wellbeing and the Vanderbilt University Peabody Research Institute, Literature review of prison-based mothers and children programs: final report, 2016, p 3, accessed 14/6/2023.
319Corrective Services NSW Mothers and Children’s Program, accessed 31 August 2020 and Diversionary programs on JIRS. See also J Walker, E Baldry and E Sullivan, "Residential programmes for mothers and children in prison: key themes and concepts", Criminology & Criminal Justice, 2019, accessed 16/6/2023.
321Unpublished data from the Judicial Commission of NSW. These figures are overall figures and do not take into account the effect of sentencing factors on the penalties imposed.
322E Buxton-Namisnyk and A Butler, above n 177 at p 56. See also E Buxton-Namisnyk and A Butler, “Judicial discourse versus domestic violence death review: an Australian case study” in A Howe and D Alaattinoğlu (ed), Contesting femicide: feminism and the power of law revisited, Routledge, 2018, pp 99-105. The authors here highlight the disjuncture between the ways in which a dataset of 103 intimate partner femicides in NSW are discussed in sentencing remarks compared with the more inquisitorial investigation of those cases by the DVDRT. The authors find that while the harm of domestic violence is underestimated in judicial discourse, meaning that femicide is not identified as a “foreseeable fatal conclusion to a pattern of behaviour”, there is also evidence that this is changing.
326There have been cases in Victoria and ACT where the “freeze response” has been used as expert evidence in sexual assault cases, see R v Hakimi [2012] ACTSC 11. See also K Marson, “Jury convinced by expert evidence on ‘freeze flight’ response in rape victims”, Sydney Morning Herald, 6/4/2014, accessed 16/6/2023; Meaning of consent at 7.3.1.1 in the Victorian Criminal Charge Book, Judicial College of Victoria; NSWLRC, Consent in relation to sexual offences, Draft proposals, 2019, accessed 16/6/2023.
327Inserted by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, commenced 1 June 2022. This was addressed in recommendation 6.35 of the NSWLRC, Consent in relation to sexual offences, Report No 148, 2020. This addresses “a long-standing misconception that a person who does not consent will usually, if not always, offer physical or verbal resistance”.
328Criminal Procedure Act 1986s 294B(7).
329Criminal Procedure Act 1986 s 293 and Evidence Act 1995 s 41(1)(d).
330[2020] NSWCCA 150 at [15]. Note that a further appeal has been made to the High Court on this issue.
331ibid at [24]; [233]; [239]; [246]–[247]. Other protective provisions include the requirement that proceedings must be held in camera when the complainant gives evidence (Criminal Procedure Act 1986 s 291), the prohibition on an unrepresented accused cross-examining the complainant (s 294A), the right of the complainant to give evidence away from the court of trial (s 294B) and the right to a support person (s 294C). In civil proceedings, s 41 Evidence Act 1995 provides that you must (even if no objection is taken by counsel) disallow improper questions or inform a witness that they need not be answered.