New Law Reform Report: The role of Restorative Justice in responding to sexual violence. A focus on First Nations women

Posted on 07/03/2025 by Associate Professor Becky Batagol

By Lavanya de Mel

This post is part of a series of the best blog posts written by undergraduate law students enrolled in 2024 in Non-Adversarial Justice at Monash Law.

The criminal justice system often leaves victim-survivors feeling that they themselves are on trial, paving the way for Restorative Justice (‘RJ’) to emerge as a compelling alternative. However, is RJ suitable for responding to sexual violence? More importantly, does it resonate with the experiences of First Nations women, who are significantly overrepresented in sexual violence statistics?

The Australian Law Reform Commission (ALRC) yesterday released its report, Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence, recommending use of RJ in some sexual violence matters. In particular, the ALRC recommends funding for First Nations communities to design, build, and deliver accredited restorative justice programs for First Nations people (recommendation 63).

This blog post explores the extent to which RJ can effectively respond to sexual violence, and how it can be implemented to respect First Nations women’s experiences. We hope the ALRC’s proposals lead to prioritising First Nations voices in discussions around RJ as a response to sexual violence.

– “June Oscar signing” by AusHumanRights, used under CC BY 2.0

Due to the limited availability of direct testimonies, this post primarily draws on general perspectives of First Nations women gathered from reports by First Nations organisations and the Wiyi Yani U Thangani (‘Women’s Voices’) project.

The need for an alternative justice response

First Nations women experience sexual violence at a rate approximately three times higher than non-Indigenous women. This alarming statistic both stems from and perpetuates the ongoing negative impacts of colonisation, which have resulted in increased socioeconomic disadvantage and intergenerational trauma.

The criminal justice system often compounds this issue, by failing to provide an adequate response to First Nations women. A staggering 90% of violence goes unreported due to a fundamental fear of the police, compounded by police inaction and discriminatory decision-making. First Nations women describe their interactions with the justice system as having exacerbated the impacts of violence and worsened their trauma. Research shows that typical ‘Western’ responses to sexual violence, including the current criminal justice response, are often ineffective for First Nations communities.

The question then becomes whether alternative forms of justice, such as RJ, can provide a better response to sexual violence.

What is RJ and how can it respond to sexual violence?

RJ is multifaceted concept, sometimes perceived as confusing and incoherent. The Australian Law Reform Commission defines RJ is a ‘victim-centred, party-led process’ focused on identifying and addressing the harm caused by the offence and exploring options for repairing that harm’. Unlike the criminal justice system, which prioritises punishing the offender, RJ is designed to address the victim-survivor’s needs and experiences. It typically involves a voluntary and confidential dialogue between the victim-survivor and personal responsible.

The use of RJ in cases of sexual violence has sparked debate. Proponents argue that RJ can meet the complex needs of victim-survivors in ways the criminal justice system often cannot. For instance, victim-survivors often need to tell their story in their own words, have their story believed, and ask the person responsible any unresolved questions, and see them take accountability. RJ can provide a platform for these needs to be met.

However, critics are concerned that RJ risks re-privatising and decriminalising sexual violence. It may be seen as a ‘soft’ approach that diminishes the seriousness of sexual violence. Given that persons responsible often abuse the trust of victim-survivors, there are concerns that they might exploit their position of relative power in the RJ process and further harm victim-survivors. Additionally, RJ processes might not be culturally appropriate for some participants and might face challenges with linguistically diverse individuals.

Conclusively determining the effectiveness of RJ as a response to sexual violence is difficult due to the limited number of peer-reviewed studies. However, the risks of RJ are real and should be managed through a well-designed principle-based approach.

The Victorian Law Reform Commission has recommended the following principles to address some of these challenges:

Voluntary participation: Participants join voluntarily and can leave at any point.
Accountability: The person responsible must be truthful and admit to their actions.
Prioritising victim-survivors: RJ processes should prioritise the victim survivor’s needs and interests.
Safety and respect: RJ processes should adapt to different needs, with power imbalances addressed and skilled experts in sexual violence involved.
Confidentiality: What happens during RJ remains strictly confidential.
Transparency: Anonymised data is used to continually improve RJ processes.
Integrated justice response: RJ processes should work alongside the criminal justice system and therapeutic services.
Clear governance: Legislation should empower and oversee RJ.

Adopting a RJ model based on these principles shows promising potential for dealing effectively with sexual violence. The question then, is how might it be successfully implemented for First Nations women?

RJ and First Nations women: a potential solution

Research in the context of family violence indicates that First Nations women tend to favour RJ more than non-First Nations women. This preference is linked to their perception of the criminal justice system as oppressive and contributing to the violence against them. First Nations women interviewed by Heather Nancarrow expressed optimism that RJ processes could empower them. They believed that involving their families and broader community in RJ would lead to successful outcomes. A practical model for this might involve Elders and respected members of First Nations communities on an expert panel that conveners in the RJ conference could consult with.

Implementing RJ in a way that allows victim-survivors to share their story in a culturally appropriate and safe setting, would likely facilitate more effective healing and validate their experiences. First Nations victim-survivors have long understood that they ‘have the answers to confront what is wrong and to create what is right’.

By offering opportunities for self-determination that respect cultural values, RJ might help First Nations women feel empowered, and lead to more meaningful resolutions to sexual violence.

RJ and First Nations women: challenges and concerns

Despite these potential benefits, the application of RJ must carefully navigate concerns raised by First Nations women. There are significant fears that RJ processes could inadvertently perpetuate harm rather than heal it. Some women fear that RJ, if not carefully managed, might become a vehicle for reinforcing power imbalances within their communities or become another ‘white justice model’ that doesn’t fully respect or address their needs.

There are also concerns about how RJ might be received within their communities. Concerns include the potential for male leaders or community members to misuse the RJ process to their advantage, or for cultural arguments to be employed in ways that undermine victim-survivors’ needs.

For RJ processes to be an effective response to sexual violence, it is crucial to design them with these risks in mind and establish strong safeguards.

What needs to be done?

To effectively implement RJ for First Nations women, a collaborative design process involving meaningful engagement with their lived experiences is vital. Many First Nations organisations, such as Djirra, stress that any RJ model must be co-designed with First Nations women to ensure it is sufficiently sensitive to their needs and does not become another mechanism of oppression. It is necessary to hear from First Nations women directly to identify the wellbeing, safety, procedural and privacy aspects they might need for an RJ model to work.

Ultimately, the potential benefits of RJ as a response to sexual violence appear to outweigh the challenges, provided a principle-based approach is implemented to address the risks. RJ offers a promising alternative to the criminal justice system for addressing sexual violence against First Nations women. Its success, however, depends on the active participation of families and communities as well as the establishment of a culturally safe environment. Through a collaborative design process, RJ has the potential to be a powerful response to sexual violence that aligns with the experiences of First Nations women.

ChatGPT (version 4.0) was used to check grammatical errors and suggest improvements in writing style in this blog post.

About Lavanya de Mel

Lavanya is a final-year law student at Monash University, minoring in Economics and Business Strategy. She is passionate about improving access to justice for culturally diverse and socioeconomically disadvantaged individuals. Later this year, she will begin her legal career as a graduate lawyer at a commercial law firm, where she hopes to explore the role of alternative dispute resolution in a commercial context.

Forty years of anti-discrimination law — how far have we come?

Posted on 27/04/2018 by Dominique Allen

This article was originally published in Impact on 24 April 2018

Photo credit: x1klima, Woman and Grief

Anti-discrimination law was introduced in Victoria in 1978. But after 40 years we don’t seem to be any closer to equality for all. Could establishing a corporate watchdog be the answer?

Photo credit: Classic Film, Creative Commons

Wanted: Female, 22-25, for a secretarial role. Prefer single.

Imagine running a job ad like this today. Yet, before the advent of anti-discrimination laws, employers were able to limit applicants to very specific age groups, sex and marital status.

The introduction of Victoria’s Equal Opportunity Act in 1977 put a line in the sand for sexual discrimination in the workplace. While race discrimination laws already existed at a federal level, the various state governments brought in their own legislation to cover issues such as sex, age and disability discrimination.

In 1979 flight instructor and qualified pilot Deborah Wardley took Ansett Airlines to task under the new legislation after she was prohibited from being employed by them as a pilot due to her childbearing potential.

Writing to the Women’s Electoral Lobby, General Manager, Reg Ansett said: “we have a good record of employing females in a wide range of positions within our organisation but we have adopted a policy of only employing men as pilots. This does not mean that women cannot be good pilots, but we are concerned with the provision of the safest and most efficient air service possible [and so] we feel that an all-male pilot crew is safer than one in which the sexes are mixed.”

Subsequently, the case came before the High Court of Australia and much to the chagrin of Reg Ansett, Wardley won and went on to a successful career as a pilot.

Not far in 40 years

Fast-forward 40 years and have we really made that much progress?

Monash Business School’s Dr Dominique Allen doesn’t think so. And the move to private mediation is the main reason.

Dr Allen explains that in the early days of the legislation a number of prominent cases helped weed out the most blatant forms of discrimination and served to educate the public.

“When Deborah Wardley won the case, it was a significant victory for women fighting discrimination in the workplace,” Dr Allen says.

“But our legislation has really stagnated since then.”

Since the courts moved towards mediation and conciliation, most anti-discrimination cases are settled privately.

“The public thinks that discrimination was addressed in the 1980s and that it doesn’t happen anymore,” Dr Allen says.

And there are many reasons why people settle: the exorbitant costs involved, the risk of more costs if you lose, damage to their reputation and importantly the psychological pressures of being involved in litigation.

Most people don’t want to spend years pursuing a claim, and others who have lost their job simply move on and find another one, rather than front up to court.

While this makes perfect sense, it means that the whole system has become privatised — taking place behind closed doors so people aren’t aware that discrimination still happens and how it is resolved.

What does compliance look like?

While settling cases may seem sensible, from a business or employer perspective, they don’t know what compliance looks like.

There is no deterrent aspect – they can’t see that someone else has made a claim against a certain issue or behaviour and make moves to prevent it from happening in their own organisation.

“There are problems with the system which focuses on the individual rather than the broader society,” Dr Allen says “We cannot rely on an individual to address the discrimination to “name, blame and claim” it as discrimination.”

She advocates a watchdog similar to corporate regulators to shift the focus to the employers and to business because they are best placed to foresee the impact of their actions on equality.

She proposes that such an enforcement body could make claims on behalf of people or represent them, in the way the Fair Work Ombudsman can in the industrial relations sphere; currently, there is not an equivalent body for equal opportunity.

“There’s nobody like the Australian Securities and Investment Commission (ASIC) or the Australian Competition and Consumer Commission (ACCC) that can step in and enforce the law or pursue a case – it relies on an individual who is often a vulnerable person,” she says.

Other options to improve the current system include putting requirements on employers and business to act first, rather than waiting until discrimination occurs. Dr Allen says the UK does something similar; public authorities need to have “due regard to the need to advance equality of opportunity” in their undertakings.

Tickets please

Another early case involved Victorian trams issuing scratch tickets that were difficult for visually impaired people to use, while removing conductors who had traditionally assisted people with different disabilities to use public transport. Nine people with various physical disabilities took the Public Transport Corporation to court on the basis that these actions were a form of indirect discrimination. The judges of the High Court agreed.

Dr Allen says that it was one of the unusual instances where the court ruled that it was not just going to compensate people, it ordered the government to review the ticketing system on trams.

It would be unusual today to see a wide order like this. Now, court-awarded damages are fairly insignificant amounts. Yet Dr Allen says it is one of the things that is needed to tackle discrimination effectively.

She says that while having the conciliation system is good – in that it saves costs and the deal remains confidential – from a societal perspective it doesn’t address broader issues.

Bring in the stick

From a business perspective, low amounts ordered by courts are not a deterrent and don’t encourage compliance with the law. Dr Allen says: “there is no big stick to wave if people are not doing the right thing. There is no fear, as would be the case if the ACCC was pursuing them, that a hefty penalty may be imposed if they’re found to have acted unlawfully.”

So in 40 years have we addressed the discrimination in this state?

“I think we have come a long way. There are barriers that have been broken down and blatant forms of discrimination don’t happen anymore but there’s still much more than the law could do to address those hidden systemic forms of discrimination,” Dr Allen says.

Victoria’s legislation was modernised in 2010 and Dr Allen is currently working on research to see how effective these changes have been which is due later in the year.

This article was first published on Impact. Read the original article