Women

For additional information in relation to women or men who are transgender or transsexual (that is, who were originally living as the opposite gender) — see Section 9.

7.1 Introduction[1]

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 confronts Aboriginal women and is manifested in a lived experience of racism and sexism.[2] “Women’s Business”[3] 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.

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.[4]

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 or 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:

  • feel uncomfortable, resentful or offended by what occurs in court

  • feel that an injustice has occurred

  • 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” is usually used to refer to the anatomical and physiological differences between male and female at birth. “Gender”, as defined by the World Health Organization (WHO), refers to the “socially constructed characteristics of women and men, such as norms, roles, and relationships of and between groups of women and men. It varies from society to society and can be changed”.[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 transgender or transsexual (ie, who were originally living as the opposite gender) as well as gender diverse 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

In 2018, the population of NSW had a slight majority of female residents (3.794 million, 50.7%) compared with male residents (3.686 million, 49.3%).[10] Of those female residents:

  • most live in the Greater Sydney region (2.4 million)[11]

  • just under 109,000 are Aboriginal, comprising 50.3% of the total Aboriginal population of NSW[12]

  • almost a third were born overseas (30.1%) as compared to 29.2% men[13]

  • 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 relationship[14]

  • 15,000 were experiencing homelessness on Census night in 2016 (along with 22,500 males)[15]

  • 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, 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:

  • the endurance of gender stereotypes in the Australian community and the “acceptance of the impact of inappropriate behaviour as a norm”

  • that structural and systemic barriers to gender equality are reinforced by negative and discriminatory gender stereotypes

  • 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

  • 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]

  • 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 2019-20 and the COVID-19 virus which emerged in 2020.[25]

Based on data prior to the impact of COVID-19:

  • Overall, almost half of employed persons in Australia are women[26] 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.

  • In NSW, as of December 2019:[29]

    - 46.8% of employed persons are female (1.939 million), of whom 57% (1.108 million) work full-time and 43% (0.834 million) work part-time.

    - 53.2% of employed persons are male (2.206 million), of whom 81% (1.784 million) work full-time and 19% (0.419 million) work part-time.

  • Breaking the workforce into full-time and part-time workers:

    - of the full-time workers in NSW, 61.7% are male (1.784 million) and 38.3% are female (1.108 million). The gender ratio roughly approaches 2 male workers to 1 female worker.

    - 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.

  • 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%).[30]

  • In 2016, 27.6% of NSW females were employed on a casual basis, compared with 22.3% of males.[31] More female workers in NSW (188,400) were underemployed than male workers (154,000),[32] and of the NSW population aged over 15 years who were not in the labour force, women make up almost 60%.[33]

  • Within families with children under 12, 44% of mothers work part-time compared to 5% of fathers.[34]

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.[35] 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.

Wages

  • As at May 2019 in NSW, the average weekly wage for people working full-time ordinary hours was $1,507.40 for females, compared with $1,765 for males.[36] The discrepancy can be expressed as a weekly gender wage gap of 15% (ie on average, women earn $257.60 per week less than men).[37] The national gender pay gap is approximately the same at 13.9%.[38]

  • 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.[39] 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%.[40] In the NSW public service, the gender pay gap increased from $252 in 2017 to $949 in 2018 in favour of men based on median salary by gender.[41]

  • Average total income over 40 years across men and women with and without children has been estimated as follows:[42]

    • men without children: $2 million

    • men with children: $2.5 million

    • women without children: $1.9 million

    • women with children: $1.3 million.

  • 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.[43] The three key factors causing the gender pay gap have been identified and weighted according to causality by KPMG:[44]

    • workplace discrimination (see 7.2.1.3): 39%

    • care, family and workforce participation (see 7.2.1.4): 39%

    • occupation and industrial segregation (see 7.2.1.3): 17%

Superannuation

  • There is also a gender gap in superannuation. Australian women live longer on average than Australian men[45] but they have less invested in superannuation, a situation that is slowly improving. In 2016-17, the average balance for males was around $146,420 (58.1% of superannuation assets) and females $114,350 (41.9%).[46]

  • 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 to 59.[47] As at March 2020, superannuation is not paid to those earning less than $450 per month. Given the rates of casual and part-time roles that women work, this primarily impacts women. Similarly, there is no statutory requirement for superannuation to be paid during periods of unpaid or paid parental leave, which is primarily taken by women.[48]

  • 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.[49]

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.[50] Poverty in retirement is the result of women’s cumulative experiences of economic disadvantage over their lifespan.[51] 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.[52]

Between 2011 and 2016, women aged 55 years and over were the fastest growing cohort of homeless Australians (31%).[53] 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.[54]

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.[55] 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.[56]

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.[57] Only 4% reported it to a government body.[58] 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.[59] Over 80% of mothers who experienced discrimination also experienced a negative impact as a result, such as to their mental health or finances.[60]

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:

  • health care and social assistance (80% women: 20% men, with a 16% pay gap in favour of men),

  • education and training (63% women: 37% men, with a 9% pay gap in favour of men) and

  • retail (58% women: 42% men, with a 16% pay gap in favour of men).[61]

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.[62]

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.[63]

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.[64]

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.[65] Consequences of these imbalances include women’s economic disadvantage, a lack of diversity within industries[66] and a failure to cater for the needs of the whole population.[67]

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.[68] 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”.[69]

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.[70]

It should not be assumed that the legal and judicial professions are unaffected by unconscious bias.

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.[71] 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”.[72] Women account for 93.5% of primary parental leave in the non-public sector.[73]

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.[74] 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.[75]

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.[76] 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.[77]

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. [78] 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).[79] 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.[80]

In the context of the COVID-19 pandemic in 2020, social commentators have observed that women’s paid jobs in heterosexual households may be sacrificed in order to preserve the men’s employment, given that women already earn less and spend more time on unpaid carer work than men. This would maximise household income for the duration of the social distancing measures but may also further entrench traditional gender roles and undercut progress towards gender equality and the long term economic independence and financial security of women.[81]

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.[82]

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.[83] Statistics about the division between paid and unpaid work in families match traditional gender stereotypes in Australia when considering:

  • “stay at home dads” are part of only a very small percentage of Australian families in 2016 (5%), increasing only 1% since 1991[84]

  • 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.[85]

Only one in four men take parental leave[86] and fathers staying at work is a leading cause of the pay gap.[87] 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.[88] This is consistent with research that identifies gender stereotypes and discrimination as significant in explaining the gender pay gap.[89]

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.[90]

Economic inequality, domestic violence and caring responsibilities significantly affect women in RRR areas.[91] 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.[92]

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.[93]

Workplace participation rates in RRR areas are lower for women than men (66.8% for men and 56.5% for women).[94] Women’s unpaid roles in family businesses in these settings also potentially undermine their financial security by leaving them without entitlements or superannuation.[95]

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.[96] 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”.[97] Transitioning economies and natural disasters can increase the effects of pre-existing inequalities and discrimination on women in RRR areas.[98]

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.[99] It is unlawful in certain areas of public life.[100] Sexual harassment is a form of gender-based violence.[101] (See 7.5 below for further discussion of violence against women.)

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 reports that the rate of change has been disappointingly slow. Australia now lags behind other countries in preventing and responding to sexual harassment.[102]

The report found that:

  • 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.[103]

  • 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.[104]

  • 53% of First Nations people compared to 32% of non-First Nations people reported harassment.[105]

  • 79% reported that one or more of the harassers was male.[106]

In the legal profession, it has been reported that:

  • 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.[107]

  • In 2018, 47% of Australian female respondents to the International Bar Association survey reported experiencing sexual harassment at work.[108]

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:

  • repeated invitations to go on dates or requests or pressure for sex

  • sexually explicit pictures, posters or gifts

  • intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, indecent exposure, or being followed, watched or someone loitering nearby

  • inappropriate physical contact, such as unwelcome touching, hugging, cornering or kissing

  • actual or attempted rape or sexual assault

  • 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. [109]

Workplaces where there is a higher risk of experiencing sexual harassment include those that:

  • 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

  • involve high level of contact with third parties eg customers, clients or patients, or

  • are organised according to a hierarchical structure.[110]

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,[111] reporting of sexual harassment by judicial officers is arguably under-reported and if reported, not actioned for fear of repercussions for a complainant.[112]

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”.[113] Factors that were cited as contributing to this issue include: [114]

  • power of judges over employees

  • strict hierarchical structures in which an employee has a single supervisor

  • autonomy of judicial chambers

  • isolation of judicial chambers

  • significant turnover in staff, with new clerks joining every year or two

  • leadership that is frequently male dominated

  • unique requirements of confidentiality, and

  • 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:[115]

[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”.[116] 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. The NSW Attorney General also ordered a review into the way that NSW courts and tribunals handle complaints of sexual harassment.[117]

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.[118] 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.[119]

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.[120] 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.[121] 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 violence[122]: see also Section 8 and Section 9.

Some further instances of intersectional discrimination experienced by women are described below.

Women with disabilities: see also Section 5

  • Women with disabilities are 40% more likely than women without disabilities to be victims of domestic violence.[123]

  • Over 25% of women with a disability have experienced sexual violence, compared with 15% of women without a disability.[124]

  • When living in group homes, women experiencing violence cannot choose with whom they live.[125]

  • 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.[126]

Older women: see also Section 11

  • Older women are significantly more likely than older men to be victims of elder abuse.[127]

  • 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.[128]

Women from migrant and refugee backgrounds: see also Section 3

  • 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.[129]

  • These women report fear that reporting violence would impact future visas and future work opportunities.[130]

LGBTIQA+ people: see also Section 8

  • 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). [131]

First Nations women: see also Section 2

  • 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. [132]

  • The maternal mortality ratio for First Nations women between 2012 and 2017 was more than three times higher than for non-First Nations women.[133]

  • First Nations women are 3.4 times more likely to experience sexual assault than non-First Nations women[134] 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).[135]

  • 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.[136]

The Judicial Council on Cultural Diversity has produced the National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait Islander women and migrant and refugee women (“the JCCD framework”) as a court-level response to intersectional discrimination. The JCCD 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”.[137]

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”.[138] 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”.[139]

In terms of specific intersectional discrimination, the JCCD 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”.[140] 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.[141]

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. [143]

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”.[144] It can include physical, sexual, emotional, psychological and financial abuse and violence. Violence includes attempted or threatened violence.[145] 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. [146]

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.[147] However, “domestic violence” is the term used in NSW case law and legislation.[148]

“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”.[149] It is through the framework of coercive control that an eight-stage progression towards domestic homicide has recently been identified.[150] There are laws that criminalise coercive control in jurisdictions in the United Kingdom, but there is no such offence in any Australian jurisdiction.[151]

The term “domestic violence offence” is used in the legislation that regulates the system of apprehended violence orders in NSW.[152] 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”.[153]

Family violence” is used in some states and in family law.[154] It is “violent or intimidating behaviours against a person, perpetrated by a family member including a current or previous spouse or domestic partner”.[155] It is also the term that is often preferred as more culturally appropriate in First Nations communities.[156] 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.[157] 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 control[161] and spikes with particular events, such as the grand final games of the various codes of football.[162]

Key statistics:[163]

In NSW in 2017:[164]

  • there was a total of 60,371 incidents of assault reported to police. Females were the victim in 47.9% (31,490) of the reported incidents. However, the majority (66.3%) of the reported assaults against females were perpetrated by someone with whom they were currently, or had previously been, in a domestic relationship. [165]

  • most domestic assault victims who reported to police were female (68.3%), and most perpetrators male (79.4%)[166]

  • most domestic homicide victims were female (17 out of 27, 63%)[167]

  • more females than males were repeat victims of assault related to domestic violence[168]

  • the rate of females who were the victim of actual bodily harm or grievous bodily harm because of domestic violence was 1.8 times the rate of males[169]

  • females were hospitalised 5.7 times more than men because of violence their spouse or domestic partner had perpetrated (in 2016-17)[170]

  • Aboriginal females were victims of domestic violence assault at a rate of 4.6 times that of non-Aboriginal females[171]

  • most people being protected under an Apprehended Domestic Violence Order were female (2.3 times the rate of males)[172]

  • over 70% of women in custody in NSW in 2015 had been involved in at least one abusive relationship (27.6% of men). 11.7% of men and 40% of women had been involved in more than one violent relationship[173]

  • a higher proportion of women in custody surveyed had experienced each of three specified forms of sexual violence (immobilisation, threats of violence and acts of violence)

  • women’s physical violence is more likely than men’s violence to be motivated by self-defense and fear, whereas men’s physical violence is more likely than women’s to be driven by control motives.[174]

  • Almost all (99%, or 1.6 million) female victims of violence from a current or previous cohabiting partner experienced violence from a male partner. Less than 1.4% of female victims said they experienced violence from a female partner (23,100 victims). For male victims of partner violence, the overwhelming majority (96%, or 524,000 victims) reported that they experienced violence from a female partner. A further 5% (29,600) experienced violence from a male partner.[175]

  • Trend data relating to domestic violence in NSW shows that in the 24 months prior to December 2019 there was a 5% increase in incidents of recorded domestic violence related assaults (29,710 over 12 months to December 2018 and 31,187 over 12 months to December 2019)[176] and a 12.4% increase in AVO breaches due to an increase in domestic violence related breaches.[177]

    It is unclear whether the increase in recorded domestic violence incidents is because of increased reporting or increased offending.[178]

  • Women’s Domestic Violence Court Advocacy Services, funded by Legal Aid NSW, assisted more than 51,000 women through 117 local courts in 2019.[179] The 12% increase on the previous year came from referrals from police and the number of apprehended domestic violence orders sought at local courts. As with recorded crime, it is not clear whether the increase reflects an increase in incidence or reporting.[180]

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.[181] The proportion of women who experienced partner violence (in the previous 12 months) is relatively stable (1.5% in 2005, 1.7% in 2016).[182] The proportion of men who experienced violence has increased to 0.8% in 2016 from 0.4%.[183]

Domestic violence-related homicides[184]

There were 1683 homicide deaths[185] in total in NSW between July 2000 and June 2019 (1127 males, 555 females, 1 transgender person).[186] Of these:

  • 31% occurred in a context of domestic violence (ie 530 deaths: 272 women, 155 men and 103 children)[187]

  • 57% of homicides with a female victim were domestic violence (DV) related[188]

  • 19% of homicides with a male victim were DV related[189]

  • 292 people were intimate partner (IP) homicide victims ie they were killed by a current or former intimate partner in the context of domestic violence[190]

  • IP homicides make up 55% of DV related homicides

  • 80% of IP homicide victims were women (234 women, 58 men). Female victims ranged from 15 to 80 years of age[191]

  • 36% of women were killed by a former intimate partner. Of these, 2/3 had ended the relationship within three months of being killed[192]

  • 14% of women (32) and 26% of men (15) killed identified as Aboriginal.[193] The First Nations population is approximately 3% of the total NSW population, meaning Aboriginal people are highly overrepresented as IP homicide victims.[194]

  • 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.[195] 291 perpetrators (239 men (82%), 52 women (19%)) killed the 292 victims[196]

  • 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)[197]

    • 57% of adult victims were men and 43% were women

    • 58% of adult victims were the primary DV victim in the relationship with the relative/kin who killed them

    • 14% of adult victims identified as Aboriginal

    • 96 perpetrators (62 men (65%), 34 women (35%)) killed the 103 child homicide victims[198]

    • 82 perpetrators (68 men (83%), 14 women (17%)) killed the 84 adult homicide victims[199]

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”.[200] Being a woman is the biggest risk factor for becoming a victim of sexual assault and/or domestic and family violence.[201]

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.[202] The National Community Attitudes Survey 2017 (NCAS 2017)[203] 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.[204]

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. [205] 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”.[206] 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.[207]

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.[208]

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.[209]

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.”[211]

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.[212] It is sometimes called “intimate terrorism”[213] and some victims have described it as the “worst part” of their experience of domestic violence.[214]

Common behaviours by perpetrators of coercive control against their victim include:[215]

  • isolating their victim from friends and family, eg controlling and preventing access to them, and convincing their victim that their loved ones hate them[216]

  • depriving their victim of basic needs, eg access to food

  • monitoring of their victim’s time

  • 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

  • controlling finances and/or deliberately incurring debts in their victim’s name

  • monitoring and/or surveillance through mobile phones and online communication tools, spyware or other technology — see technology-facilitated abuse below at 7.5.4

  • depriving access to support services, eg medical services

  • repeatedly using put-downs, eg calling their victim worthless

  • humiliating, degrading or dehumanising their victim (eg urinating on their victim)[217]

  • making threats (eg to kill their victim, themselves, their children or pets)[218] or intimidation

  • gaslighting, ie emotionally abusing and manipulating “forcing them to question their thoughts, memories, and the events occurring around them.”[219] 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.[220]

  • reinforcing traditional gender roles[221]

  • where there are children, turning children against the other parent[222]

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.[223] It is difficult and dangerous to leave situations of coercive control and domestic violence.

An eight-stage progression through coercive control to intimate partner homicide has been identified.[224] This research highlights the extent to which such homicides are planned and that they may be the first acts of physical violence.

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”.[225] The term includes behaviours such as:

  • sending abusive text messages or emails

  • making continuous threatening phone calls

  • spying on and monitoring victims through the use of tracking systems

  • abusing victims through social media sites

  • sharing intimate images of someone without their consent (also known as image-based abuse or “revenge porn”); and

  • using technology to control or manipulate home appliances, locks and other connected devices.[226]

Specific examples of harassing and abusive behaviours that are enabled by technology include: [227]

  • trolling: when an anonymous user abuses or harasses others for fun, and enjoys the upset reactions their comments provoke

  • 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)

  • 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

  • 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.[228] 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.[229] 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[230]

  • 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

  • doxing: when personal details are shared or published online, potentially inviting offensive comments, unwanted calls, contact or visits from strangers

  • 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

  • defamatory comments: comments made online with the intention of causing harm to the reputation of a person or their business[231]

  • virtual mobbing and dog-piling: when online users are encouraged en masse to incite hatred and harass individuals [232]

  • baiting: humiliating people online by labelling them as sexually promiscuous[233]

  • spamming: sending multiple junk email or viruses to others.[234]

Text messages, Facebook, and GPS tracking of smartphones are the most common means of harassment and abuse in situations of domestic violence.[235]

Online abuse and harassment is gendered: women experience more of it in all forms and predominantly from men[236]

Women and girls are more likely to be targets of online abuse in all its forms.[237] Although both men and women experience online harassment and abuse, women are more likely to experience sexual harassment online. [238] Men are harassed and abused online by other men and women in equal proportion. Women are harassed and abused online almost exclusively by men.[239]

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.[240] 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.[241]

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 Terms of Reference[242] include the experiences of all women, including First Nations women, rural women, culturally and linguistically diverse women, LGBTQI women, women with a disability, and women on temporary visas.

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”.[243] 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.[244]

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.[245] The health problems reported included problems with urination, painful periods, genital inflammation and irritation, sexual and fertility problems, chronic pain and psychological problems.[246] 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.[247]

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.[248] 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.[249]

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.[250] 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.[251]

7.5.6 Sexual assault

Prevalence

In NSW in 2019, there were 11,009 recorded victims of sexual assault. Four in five victims were female and over a quarter (29%) of these women were between 15 and 19 years of age.[252] Most assaults took place at a residential location (62%) and less than 1% involved the use of a weapon.[253] The rate of sexual assault recorded by NSW Police has been increasing with an average annual rate of 9.4% over the two years to June 2020.[254]

Sexual assault offenders in NSW reached the highest recorded number in the time series (2,415) increasing by 3% since the previous year.[255]

Sexual assault and domestic violence are often inter-related. In 2018, 75% of all sexual assault victims knew the offender.[256] The term “intimate partner sexual violence” is sometimes used to specifically describe the perpetration of sexual acts without consent:[257] see also Domestic violence at 7.5.2.

Like domestic violence, sexual assault is under-reported. In 2018-2019 only 28% of persons who experienced sexual assault had their incident reported to the police.[258]

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

In mid-2018, the NSWLRC was asked to undertake an enquiry to review and report on consent and knowledge of consent in relation to sexual assault offences with particular reference to s 61HE (formerly s 61HA) of the Crimes Act 1900. Draft proposals published in October 2019 included: suggested changes to the structure and language of provisions; the introduction of new interpretive principles; clarification of the meaning of “consent” and of the law on knowledge of consent; a list of circumstances in which a person “does not consent”; and new jury directions to avoid common misconceptions about consent and sexual offending causing injustice or misunderstanding. The directions are proposed to be available in trials involving offences to which s 61HE Crimes Act 1900 currently applies.[259]

7.6 Women and criminal law

7.6.1 Female offenders

  • Social and economic dependence, linked to violent and abusive relationships and addiction, often characterises the contact of women with the criminal justice system.[260]

  • Around 70 to 90% of women in custody have experienced violence and abuse and women become trapped in cycles of abuse and imprisonment.[261]

  • There is growing evidence that at least half of female perpetrated domestic violence occurs in circumstances where the women are the person most in need of protection, but have been misidentified as an aggressor.[262]

  • There are significantly fewer female offenders in NSW than male offenders: 23% of NSW offenders proceeded against by police in 2018–2019 were female.[263]

  • 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 2018–2019, only 28.5% of Legal Aid clients in NSW were female.[264]

  • First Nations women are over-represented in the NSW prison population: almost a third of women prisoners are First Nations, despite the First Nations people making up less than 3% of the Australian population.[265]

  • As at March 2020, there were 942 adult women in custody, 305 of whom were First Nations. As at June 2020, there were 831 adult women in custody, 266 of whom were First Nations. [266]

  • The gender breakdown of the most serious offences committed by inmates in full-time custody in NSW in 2018 was as follows:[267]

    • acts intended to cause injury: 2,863 men (22.6% of male prison population); 220 women (20.5% of female prison population)

    • illicit drug offences: 2,161 men (17.1%); 203 women (19%)

    • sexual assault and related offences: 1,793 men (14.1%); 31 women (2.9%)

    • offences against justice procedures: 1,160 men (9.2%); 102 women (9.5%)

    • fraud, deception and related offences: 271 men (2.1%); 96 women (9%)

  • The gender breakdown of security level for inmates in full-time custody (convicted and unconvicted) in NSW in 2018 was as follows:[268]

    • maximum security: 19.6% (570) male inmates, 1.6% (6) of female inmates

    • medium security: 37.2% (1,118) male inmates, 9.6% (36) of female inmates

    • minimum security: 40.3% (1,211) male inmates, 76.3% (287) of female inmates

  • In 2018, a higher percentage of women than men in full-time custody had sentences of less than two years.[269]

    Experience of mental health of women in custody:

  • A higher proportion of women (54.9%) had received some form of psychiatric care prior to their current period of incarceration than men (48.8%).[270]

  • Women were more likely to report a diagnosis for all the mental disorders canvassed, with the exceptions of psychosis, ADD/ADHD, and developmental disorders.[271]

  • A higher proportion of women reported:

    • having experienced suicidal ideation (43.3% of women, 29.6% of men)

    • having engaged in self-harming behaviour (24.6% of women, 10.9% of men).[272]

  • A history of mental health diagnosis was acknowledged by almost half of participants, of which the most common reported were:

    • depression (61.2% of women, 36.4% of men)

    • anxiety (51% of women, 23% of men)

    • drug abuse or dependence (30.6% of women, 19.6% of men).[273]

Childhood experiences of women in custody [274]

A higher proportion of women (23.9% of the prison population) than men reported they had been placed in care at some time before the age of 16 (13.6%). 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.[275] 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.[276]

Education experiences of women in custody [277]

  • 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.

  • The median number of high schools attended (3) was the same for men and women.

  • 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 incarceration[278]

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%).

  • Unemployed: 52.0% males, 38.8% females

  • 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.[279]

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.[280]

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.[281]

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.[282]

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.[283] 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.[284]

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 Diversionary Programs menu at https://jirs.judcom.nsw.gov.au/menus/services_index.php. See also Sentencing Bench Book at [3-500]ff.[286]

The most common penalties imposed on female offenders by the NSW Local Court were fines (36.2%), Conditional Release Orders without conviction (19.3%) and Community Correction Orders (17.2%), compared with male offenders; fines (39.4%), Conditional Release Orders without conviction (13.5%), and Community Correction Orders (18.3%).

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

Web: aifs.gov.au

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:

Web: www.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.facs.nsw.gov.au/about/contact/helplines

Domestic Violence Line: 1800 656 463

Web: www.facs.nsw.gov.au/domestic-violence/helpline

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

Web: www.correctiveservices.justice.nsw.gov.au/ Pages/CorrectiveServices/programs/women-offenders/women-offenders.aspx

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

Web: www.lawaccess.nsw.gov.au

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

Web: www.victimsservices.justice.nsw.gov.au

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

Web: familyviolencelaw.gov.au

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.

Legal Aid NSW

Client referrals and enquiries: .
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:

Web: www.nationalfvpls.org

Individual locations:

Web: www.nationalfvpls.org/Where-We-Are.php

Web: www.nationalfvpls.org/Contact-Us.php

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)

Web: 1800respect.org.au

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.

Our Watch

GPO Box 24229, Melbourne VIC 3001

Web: ourwatch.org.au

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.

Rape & Domestic Violence Services Australia

NSW Rape Crisis: 1800 424 017 

Sexual Assault Counselling Australia: 1800 211 028

Web: www.rape-dvservices.org.au

Telephone and online counselling services for anyone affected by sexual assault in NSW. Open 24 hours, 7 days a week.

Redfern Legal Centre (RLC): Financial Abuse Legal Service NSW

73 Pitt Street, Redfern NSW 2016

Ph: 0481 730 344

Web: rlc.org.au/our-services/financial-abuse-legal-service

RLC’s Financial Abuse Legal Service provides free, confidential legal information and advice to people in intimate partner relationships who have experienced financial abuse.

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:

Web: www.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 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:

Web: 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

Ph: 0474 779 847

(for media, policy practice and law reform)

Web: www.womenssafetynsw.org.au/

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.

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 at http://classic.austlii.edu.au/au/journals/UNSWLawJl/2019/41.html, accessed 2 June 2020.

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, at https://journals.sagepub.com/doi/pdf/10.1177/1748895817728380, accessed 15 January 2020.

H Douglas and E Fell, “Malicious reports of child maltreatment as coercive control: mothers and domestic and family violence” (2020) Journal of Family Violence at https://link.springer.com/article/10.1007/s10896-019-00128-1?shared-article-renderer, accessed 2 June 2020.

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.

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 — at https://dfvbenchbook.aija.org.au/, accessed 2 June 2020.

The Public Defenders, “Childhood exposure to domestic and family violence”, The Bar Book Project, 2019, at www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/bar-book/exposure-dfv.aspx, accessed 2 June 2020.

Government reports

Australian Human Rights Commission, A conversation in gender equality, March 2017, at www.humanrights.gov.au/our-work/sex-discrimination/publications/conversation-gender-equality-2017, accessed 2 June 2020.

Australian Human Rights Commission, Unleashing the power of gender equality — priorities of Kate Jenkins, Australian Sex Discrimination Commissioner, November 2017, at www.humanrights.gov.au/our-work/sex-discrimination/publications/unleashing-power-gender-equality-2017, accessed 2 June 2020.

Australian Human Rights Commission, Everyone’s business: fourth national survey on sexual harassment in Australian workplace, 2018, at www.humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual, accessed 2 June 2020.

Australian Human Rights Commission, Everyone’s business: sexual harassment of SDA members, 2019, at www.humanrights.gov.au/everyones-business-sexual-harassment-sda-members, accessed 2 June 2020.

Australian Human Rights Commission, Risk of homelessness in older women, Background paper, 2019 at www.humanrights.gov.au/our-work/age-discrimination/publications/older-womens-risk-homelessness-background-paper-2019, accessed 2 June 2020.

Australian Human Rights Commission, Respect@Work: Sexual harassment national enquiry report, 2020, at https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020, accessed 2 June 2020.

Australian Institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story 2019, at www.aihw.gov.au/reports/domestic-violence/family-domestic-sexual-violence-australia-2019/contents/table-of-contents, accessed 2 June 2020.

Department of Social Services, National plan to reduce violence against women and their children 2010-2022, at www.dss.gov.au/sites/default/files/documents/08_2014/national_plan1.pdf, accessed 2 June 2020.

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, at https://jccd.org.au/wp-content/uploads/2017/09/JCCD_National_Framework.pdf, accessed 2 June 2020.

NSW Government, It stops here: standing together to end domestic and family violence in NSW, 2014, at www.women.nsw.gov.au/__data/assets/file/0003/289461/It_stops_Here_final_Feb2014.pdf, accessed 2 June 2020.

NSW Government, NSW Sexual Assault Strategy 2018-2021, 2018, at www.women.nsw.gov.au/strategies-and-resources/sexual-assault/nsw-sexual-assault-strategy, accessed 13 January 2020.

NSW Ministry of Health, NSW domestic and family violence blueprint for reform 2016-2021: safer lives for women, men and children, 2016, at http://domesticviolence.nsw.gov.au/__data/assets/pdf_file/0004/379849/dfv-blueprint-for-reform.pdf, accessed 2 June 2020.

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, at www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/ViolenceAust, accessed 2 June 2020.

Women NSW, Women in NSW report 2018, 2018, at www.women.nsw.gov.au/strategies-and-resources/reports-and-data/women-in-nsw-report, accessed 2 June 2020.

Workplace Gender Equality Agency, 2018-19 Gender equality scorecard, 2019, at www.wgea.gov.au/data/wgea-research/australias-gender-equality-scorecard/2018-19-gender-equality-scorecard, accessed 2 June 2020.

News reports

C Cain Miller, “Pink-collar problem: how women’s workforce gains conceal a problem”, psnews.com.au, at https://psnews.com.au/2020/02/03/pink-collar-problem-how-womens-workforce-gains-conceal-a-problem/, accessed 5 June 2010.

C Cain Miller, “Why men don’t want the jobs done mostly by women”, The New York Times (online), 4 January 2017 at www.nytimes.com/2017/01/04/upshot/why-men-dont-want-the-jobs-done-mostly-by-women.html, accessed 11 March 2020.

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” at https://anrows.org.au/project/the-views-of-australian-judicial-officers-on-domestic-and-family-violence-perpetrator-interventions/, accessed 24 August 2020.

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, at https://ncas.anrows.org.au/wp-content/uploads/2019/04/300419_NCAS_Summary_Report.pdf, accessed 2 June 2020.

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 at https://aic.gov.au/publications/tandi/tandi584, accessed 2 June 2020.

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, at https://d2rn9gno7zhxqg.cloudfront.net/wp-content/uploads/2019/05/16000450/2017-NCAS-ATSI-Sub-Report.pdf, accessed 13 January 2020.

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 at https://aic.gov.au/publications/tandi/tandi551, accessed 2 June 2020.

P Gallagher et al, Sentencing disparity and the gender of juvenile offenders, Research Monograph No 16, Judicial Commission of NSW, 1997, at www.judcom.nsw.gov.au/wp-content/uploads/2016/10/Sentencing-disparity-and-the-gender-of-juvenile-offenders-1.pdf, accessed 2 June 2020.

A Gombru et al, “Sentencing for domestic violence”, Sentencing Trends & Issues, No 45, Judicial Commission of NSW, 2016, at www.judcom.nsw.gov.au/wp-content/uploads/2016/07/sentencing_trends_45.pdf, accessed 2 June 2020.

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, at https://aic.gov.au/publications/tandi/tandi580, accessed 2 June 2020.

KPMG, The cost of violence against women and their children in Australia, (Final Report), 2016, at www.dss.gov.au/sites/default/files/documents/08_2016/the_cost_of_violence_against_women_and_their_children_in_australia_-_summary_report_may_2016.pdf, accessed 2 June 2020.

Law Council of Australia, The Justice Project — Part 1: People who experience family violence, (Final Report), 2018, at www.lawcouncil.asn.au/justice-project/final-report, accessed 13 January 2020.

NSWLRC, Consent in relation to sexual offences, Consultation paper 21, 2018, at www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Consent/Consent.aspx, accessed 2 June 2020.

NSWLRC, Consent in relation to sexual offences, Draft Proposals, 2019 at www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Consent/Consent.aspx, accessed 2 June 2020.

NSW Domestic Violence Death Review Team, Report 2015-2017, 2017, at www.coroners.justice.nsw.gov.au/Documents/2015-2017_DVDRT_Report_October2017(online).pdf, accessed 2 June 2020.

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, Our Watch, 2015, at www.ourwatch.org.au/resource/change-the-story-a-shared-framework-for-the-primary-prevention-of-violence-against-women-and-their-children-in-australia, accessed 2 June 2020.

Our Watch, Change the story: three years on, Our Watch, 2019, at www.ourwatch.org.au/resource/change-the-story-three-years-on/, accessed 2 June 2020.

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, at https://ncas.anrows.org.au/wp-content/uploads/2019/05/2017NCAS-Youth-SubReport.pdf, accessed 2 June 2020.

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, at www.refuge.org.uk/files/Whats-yours-is-mine-Full-Report.pdf, accessed 2 June 2020.

M Stathopoulos et al, Addressing women’s victimisation histories in custodial settings, ACSSA Issues, No 13, 2012, at https://aifs.gov.au/sites/default/files/publication-documents/i13.pdf, accessed 2 June 2020.

S Tarrant, J Tolmie and G Giudice, Transforming legal understandings of intimate partner violence, Research report 03/2019, ANROWS, 2019, at www.anrows.org.au/project/transforming-legal-understandings-of-intimate-partner-violence/, accessed 2 June 2020.

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 at www.anrows.org.au/publication/crossing-the-line-lived-experience-of-sexual-violence-among-trans-women-of-colour-from-culturally-and-linguistically-diverse-cald-backgrounds-in-australia-key-findings-and-future-directions/, accessed 1 July 2020.

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, at https://d2rn9gno7zhxqg.cloudfront.net/wp-content/uploads/2019/10/17021902/anr001-NCAS-report-WEB-1019.pdf, accessed 2 June 2020.

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, at https://d2rn9gno7zhxqg.cloudfront.net/wp-content/uploads/2019/12/05051533/2017NCAS_NMESC_Report.1.pdf, accessed 2 June 2020.

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, at https://melbourneinstitute.unimelb.edu.au/hilda/publications/hilda-statistical-reports, accessed 2 June 2020.

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 13 contains information about how to send us your feedback.



[1] When 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.

[2] C Thomas and J Selfe, Aboriginal Women and the Law, NSW Women’s Coordination Unit, 1993.

[3] Men’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 at https://pmc.gov.au/resource-centre/indigenous-affairs/communicating-aboriginal-and-torres-strait-islander-audiences, accessed 13 August 2020.

[4] See also, Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, p 169, at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 27 July 2020.

[5] Women 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 per cent — involved a male killing his female partner. Of those men, almost all — 93 per cent — 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.

[6] World Health Organization, “Gender, equity and human rights”, at www.who.int/gender-equity-rights/knowledge/glossary/en/, accessed 22 July 2020.

[7] Anti-Discrimination Act 1977, Pt 3.

[8] ibid, Pt 3A.

[9] ibid, s 5.

[10] Australian Bureau of Statistics (ABS), 2016 Census QuickStats, Canberra, 2018, at https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/1, accessed 19 February 2020.

[11] ibid.

[12] ibid.

[13] Women NSW, Department of Family and Community Services, Women in NSW 2018, 2019, p 10, at www.women.nsw.gov.au/strategies-and-resources/reports-and-data/women-in-nsw-report accessed 19 February 2020. China, England, India, New Zealand and Philippines are the top five overseas countries of birth for general population of NSW, according to ABS, 2016 Census QuickStats, Canberra, 2018, at https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/1, accessed 19 February 2020.

[14] ABS, 2016 Census of Population and Housing for NSW, Table G06 — Social marital status by age by sex, Canberra, at https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/communityprofile/1 accessed 19 February 2020.

[15] ABS, Census of Population and Housing: Estimating homelessness, 2016, 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 at https://abs.gov.au/statistics/people/housing/census-population-and-housing-estimating-homelessness/latest-release, accessed 22 September 2020. See also Homelessness Australia, “Homelessness statistics” at https://homelessnessaustralia.org.au/about/homelessness-statistics, accessed 19 February 2020.

[16] ABS, 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.

[17] AHRC, A conversation in gender equality, March 2017, p 24 at https://humanrights.gov.au/sites/default/files/document/publication/AHRC_conversation_gender_equality_2017_2.pdf, accessed 5 June 2020.

[18] ibid, pp 9, 27, 34.

[19] ibid, p 34.

[20] ibid, 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 (2015) Change the story: a shared framework for the primary prevention of violence against women and their children in Australia, Melbourne, Australia at www.ourwatch.org.au/change-the-story/, accessed 2 June 2020.

[21] AHRC, 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.

[22] ABS Education and Work, Australia, May 2019, Canberra, ABS cat 6227.0, November 2019, Table 9, at https://abs.gov.au/statistics/people/education/education-and-work-australia/latest-release, accessed 19 February 2020.

[23] ibid.

[24] For 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 July 2018, at www.abc.net.au/news/2018-04-17/fact-check-casualisation/9654334, accessed 11 March 2020.

[25] For 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 March 2020, Financial Review, at www.afr.com/policy/economy/risk-rising-for-first-recession-in-29-years-economists-20200305-p5472w, accessed 11 March 2020.

[26] 47% based on “trend” data, according to ABS, Labour Force, Australia, Dec 2019, Canberra, ABS cat 6202.0, Table 1. Labour force status by Sex, Australia — Trend, Seasonally adjusted and original at https://abs.gov.au/statistics/labour/employment-and-unemployment/labour-force-australia/dec-2019, accessed 20 February 2020.

[27] 47% based on “trend” data, ibid, Table 4. Labour force status by Sex, New South Wales — Trend, Seasonally adjusted and original at https://abs.gov.au/statistics/labour/employment-and-unemployment/labour-force-australia/dec-2019, accessed 20 February 2020.

[28] M Reddy, “‘Poor culture’ at executive level”, The Sydney Morning Herald, March 2020 at https://tomorrows-female-leaders-2020.smh.com.au/poor-culture-at-executive-level, accessed 10 March 2020. The article cites Chief Executive Women (CEW) as the source of this data: see https://cew.org.au/wp-content/uploads/2019/03/A-long-way-to-the-top-February-2019-.pdf , which in turn cites ABS September 2018 at www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4125.0~Sep%202018~Main%20Features~Education~5, accessed 10 March 2020.

[29] Based on participation rates of 60.3% for females and 71% for males where there are 4.145 million persons employed: ABS, above n 27.

[30] M Reddy, above n 28.

[31] Women NSW, above n 13, at p 16.

[32] ABS, above n 22; Table 23. Underutilised persons by State and territory and sex — Trend, Seasonally adjusted and original at ABS, above n 20; Gender indicators, Australia, latest release at https://abs.gov.au/statistics/people/people-and-communities/gender-indicators-australia/latest-release, accessed 19 February 2020.

[33] In February 2019, 918,300 males and 1,296,000 females in NSW were not in the labour force: Australian Bureau of Statistics (ABS), Table 21.1 — Populations by State or Territory of usual residence in Participation, Job reach and mobility, Australia, Feb 2019, cat. 6226.0, Canberra, July 2019 at www.abs.gov.au/ausstats/abs@.nsf/mf/6226.0, accessed 19 February 2020.

[34] G Dent, “Five facts every Australian needs to know about men at work”, Women’s Agenda, 17 March 2020, at https://womensagenda.com.au/latest/five-facts-every-australian-needs-to-know-about-men-at-work/, accessed 23 March 2020. 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.

[35] KPMG, She’s Price(d)less – the economics of the gender pay gap, 2019, summary report, p 8 at https://home.kpmg/au/en/home/insights/2019/08/gender-pay-gap-economics.html. See Full Report at https://home.kpmg/content/dam/kpmg/au/pdf/2019/gender-pay-gap-economics-full-report-2019.pdf, accessed 26 February 2020.

[36] ABS, Average weekly earnings, Australia, May 2019, Canberra, ABS cat no 6302.0, August 2019, Table 11A, Average weekly earnings, New South Wales (dollars) — trend, at www.abs.gov.au/ausstats/abs@.nsf/mf/6302.0?opendocument&ref=HPKI, accessed 19 February 2020.

[37] As calculated by applying the formula of the Workplace Gender Equality Agency (WGEA) to the ABS data: “Calculating the gender pay gap” at www.wgea.gov.au/data/fact-sheets/australias-gender-pay-gap-statistics, accessed 19 February 2020.

[38] As calculated by WGEA using ABS data at wgea.gov.au/newsroom/media-releases/national-gender-pay-gap-remains-stable-0, accessed 25 February 2020.

[39] M Reddy, above n 28.

[40] Workplace Gender Equality Agency (WGEA), GradStats – starting salaries February 2016, at www.wgea.gov.au/sites/default/files/documents/GradStats_factsheet_2016.pdf, p 2, accessed 19 February 2020.

[41] NSW Government, 2018 State of the NSW Public Sector Report at pp 2, 19 at https://psc.nsw.gov.au/reports---data/state-of-the-nsw-public-sector/previous-editions/state-of-the-sector-2018/chapter-one, accessed 19 February 2020: women $85,782 and men $86,731.

[42] G Dent, above n 34.

[43] KPMG, above n 35 at p 12.

[44] ibid at p 7.

[45] “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 (1965-67), 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 at www.abs.gov.au/ausstats/abs@.nsf/mediareleasesbyCatalogue/AF546E30F9A0B803CA2580580015DA6A?OpenDocument, accessed 11 March 2020. See also 11.1.6 Care and assistance in Older Persons section.

[46] R Clare, Better retirement outcomes: a snapshot of account balances in Australia, The Association of Superannuation Funds of Australia Limited (ASFA), 2019, p 5 at www.superannuation.asn.au/ArticleDocuments/359/1907-Better-Retirement-Outcomes-a-snapshot-of-account-balances-in-Australia.pdf.aspx?Embed=Y, accessed 25 February 2020. 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, at www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Economic_security_for_women_in_retirement/Report, accessed 26 February 2020.

[47] See Industry Super Australia, “It’s time to bridge the super gender gap” at www.industrysuper.com/assets/FileDownloadCTA/200304-Its-time-to-bridge-the-super-gender-gap.pdf, accessed 26 July2020. See also the current federal government “Retirement income review” which was due to be tabled in June 2020: see https://treasury.gov.au/review/retirement-income-review, accessed 2 June 2020.

[48] See Industry SuperFunds, “The gender super gap”, 31 December 2017, at www.industrysuper.com/media/the-gender-super-gap/, accessed 11 March 2020.

[49] See C Hobbs, “Things to consider on the new option to access superannuation early”, Women’s Agenda, 1 April 2020, at https://womensagenda.com.au/latest/things-to-consider-on-the-new-option-to-access-superannuation-early/, accessed 6 April 2020.

[50] Senate Economics References Committee, above n 46, p 13.

[51] AHRC, Everyone’s business: 2018 sexual harassment survey, 12 September 2018, p 12 at www.humanrights.gov.au/about/news/everyones-business-2018-sexual-harassment-survey, accessed 13 April 2020.

[52] ibid. See also ASFA, "Women's economic security in retirement", May 2018, at www.superannuation.asn.au/ArticleDocuments/359/1805-Women_Security_Retirement.pdf.aspx?Embed=Y, accessed 4 April 2020. KPMG also identified these factors in its submission to the Retirement income review at https://treasury.gov.au/sites/default/files/2020-02/kpmg030220.pdf, accessed 25 February 2020.

[53] AHRC, “Older women’s risk of homelessness: background paper, 2019 p 8 at https://humanrights.gov.au/our-work/age-discrimination/publications/older-womens-risk-homelessness-background-paper-2019, accessed 16 September 2020.

[54] ABS, 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).

[55] AHRC, “Older women’s risk of homelessness: background paper”, 2019, p 8 at https://humanrights.gov.au/our-work/age-discrimination/publications/older-womens-risk-homelessness-background-paper-2019, accessed 16 September 2020.

[56] ABS, 2049.0 Census of Population and Housing: Estimating homelessness, 2016, Factsheet: domestic and family violence, 2018; ABS 2049.0 Census of Population and Housing: Estimating 42 Homelessness, 2016, Factsheet: Aboriginal and Torres Strait Islander Homelessness, 2018 at https://abs.gov.au/statistics/people/housing/census-population-and-housing-estimating-homelessness/2016, accessed 16 September 2020.

[57] AHRC, Supporting working parents: pregnancy and return to work national review — report, 2014, p 1 at www.humanrights.gov.au/sites/default/files/document/publication/SWP_Report_2014.pdf, accessed 31 March 2020.

[58] ibid, 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.

[59] As summarised in G Jennings-Edquist, “Pregnant and discriminated against at work? Here's what to do”, ABC Life, 24 October 2018, updated 19 August 2019, at www.abc.net.au/life/pregnancy-discrimination-what-to-do/10378212, accessed 31 March 2020.

[60] ibid.

[61] WGEA Data Explorer, 2019, at https://data.wgea.gov.au/overview, accessed 4 April 2020.

[62] ibid.

[63] M Reddy, above n 28.

[64] L Andelman, “Restructure required to bridge the gender gap”, 8 March 2020, LSJ Online at https://lsj.com.au/articles/restructure-required-to-bridge-the-gender-gap/, accessed 10 March 2020.

[65] C Williams, “The glass escalator: hidden advantages for men in the ‘female’ professions”, (1992) 39(3) Social Problems 253 at www.jstor.org/stable/3096961?seq=1, accessed 2 April 2020. 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 April 2020, at https://womensagenda.com.au/latest/how-gender-segregation-creates-glass-elevators-for-men-and-pay-gaps-for-women/, accessed 10 April 2020.

[66] AHRC, 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, at www.aph.gov.au/Parliamentary_Business/Committees/Senate/Finance_and_Public_Administration/Gendersegregation/Report, accessed 13 April 2020.

[67] Faculty of Business and Economics at University of Melbourne, Episode 4: “His and Hers” Jobs, Women are the business at https://fbe.unimelb.edu.au/__data/assets/pdf_file/0003/3335466/Women-are-the-Business-Episode-4-Industry-Segregation.pdf, accessed 10 April 2020, 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.

[68] WGEA, Gender segregation in the workplace and its impact on women’s equality, August 2019 at www.wgea.gov.au/data/wgea-research/gender-equitable-recruitment-and-promotion, accessed 13 April 2020.

[69] International Labour Organisation (ILO), Breaking barriers: unconscious gender bias in the workplace, International Labour Office, August 2017, p 3 at www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---act_emp/documents/publication/wcms_601276.pdf, accessed 13 April 2020.

[70] C BasuMallick, Is unconscious bias training enough to eliminate workplace bias? HR Technologist, 25 June 2019 at www.hrtechnologist.com/articles/diversity/is-unconscious-bias-training-enough-to-eliminate-workplace-bias/, accessed 25 May 2020.

[71] KPMG, above n 35.

[72] ibid.

[73] M Reddy, above n 28.

[74] “Calculating the gender pay gap”, above n 37 at p 27.

[75] T Livermore, J Rodgers and P Siminski, “The effect of motherhood on wages and wage growth: evidence for Australia” (2010) 87 (S1) Economic Record 80.

[76] The 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?” at www.abs.gov.au/websitedbs/D3310114.nsf/home/2016+Census+National; ABS, 2071.0 — Census of Population and Housing: Reflecting Australia — Stories from the Census, 2016 — Employment Data Summary, at www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/2071.0~2016~Main%20Features~Employment%20Data%20Summary~67; ABS, Table 12. Hours worked by hours of unpaid domestic labour by sex, count of employed persons, downloadable in “Employment” Data Cube, at www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/2071.02016?OpenDocument, accessed 26 February 2020.

[77] R 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 97–8, at https://melbourneinstitute.unimelb.edu.au/__data/assets/pdf_file/0011/3127664/HILDA-Statistical-Report-2019.pdf, accessed 25 February 2020.

[78] L Ruppanner, “Census 2016: Women are still disadvantaged by the amount of unpaid housework they do”, The Conversation, 11 April 2017 at https://theconversation.com/census-2016-women-are-still-disadvantaged-by-the-amount-of-unpaid-housework-they-do-76008, accessed 26 February 2020.

[79] WGEA, “Unpaid care work and the labour market, November 2016, at www.wgea.gov.au/data/wgea-research/unpaid-care-work-and-the-labour-market, accessed 10 March 2020.

[80] J Thorpe, R Tyson and N Neilson, Understanding the unpaid economy, March 2017, PwC at https://pwc.com.au/australia-in-transition/publications/understanding-the-unpaid-economy-mar17.pdf, accessed 16 September 2020.

[81] Y Strengers, “Coronavirus has sparked a work from home revolution, but is it a backward step for gender equality?” ABC News, 6 April 2020, at https://abc.net.au/news/2020-04-06/yolande-stengers-gender-and-corona/12109010, accessed 13 April 2020.

[82] L Ruppanner, “Understanding the mental load, what it is and how to get it under control”, Opinion, ABC News at www.abc.net.au/news/health/2017-09-14/the-mental-load-and-what-to-do-about-it/8942032, accessed 2 June 2020.

[83] G Dent, above n 34. See also, KPMG, above n 35; P Ryan and R Puppazzoni, “Gender discrimination driving a pay wedge between men and women”, ABC News Online, 22 August 2019, at www.abc.net.au/news/2019-08-22/gender-discrimination-driving-a-pay-wedge-between-men-and-women/11436612, accessed 31 March 2020.

[84] G Dent, above n 34.

[85] ibid.

[86] C Duffy, “Pushing parental leave in Australia to help close the gender pay gap, ABC news online, 4 February 2020, at https://abc.net.au/news/2020-02-04/stay-at-home-parent-dads-learn-about-beer-and-bubs/11909706, accessed 25 May 2020.

[87] ibid.

[88] A Crabb, “Why don’t more dads take parental leave? The answer is in their heads”, ABC News Online, 8 September 2019, at www.abc.net.au/news/2019-09-08/parental-leave-for-fathers/11471762, accessed 31 March 2020.

[89] KPMG, above n 35, p 28.

[90] 25.2% of women live outside major cities in NSW in 2018: see Women in NSW 2018, p 10, at www.women.nsw.gov.au/download?file=647391, accessed 26 May 2020.

[91] National Foundation for Australian Women, 2019, Women & Housing Fact Sheet, as stated in YWCA National Housing Report, May 2020, p 9 at www.ywcahousing.org.au/research/, accessed 22 May 2020.

[92] YWCA National Housing Report, ibid.

[93] ibid, p 4.

[94] Commonwealth of Australia, Department of the Prime Minister and Cabinet, Towards 2025: a strategy to boost Australian women’s workforce participation, 2017, at https://womensworkforceparticipation.pmc.gov.au/rural-and-regional-women.html, accessed 15 April 2020.

[95] AHRC, A conversation in gender equality, March 2017, pp 7 and 13, at www.humanrights.gov.au/our-work/sex-discrimination/publications/conversation-gender-equality-2017, accessed 27 February 2020.

[96] ibid at pp 6 and 13.

[97] ibid at p 13.

[98] ibid at p 14. Recent and ongoing events of these kinds include the NSW drought that started in 2017, the 2019-20 bushfire season. As of April 2020, approximately 70% of NSW continues to be in drought or drought-affected condition: see https://edis.dpi.nsw.gov.au/ accessed 15 April 2020. 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 February 2020, at www.science.org.au/news-and-events/news-and-media-releases/australian-bushfires-why-they-are-unprecedented, accessed 18 April 2020. The greater isolation and vulnerability to coercive control and domestic abuse that some women experience in RRR areas may also be exacerbated by the social distancing and quarantine responses to the COVID-19 global pandemic.

[99] See definitions in Anti Discrimination Act (NSW), 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 at www.humanrights.gov.au/quick-guide/12096, accessed 15 June 2020. Section 28A of the Sex Discrimination Act 1984 (Cth) (SD Act) defines sexual harassment in the same terms as the NSW Act.

[100] Such as employment, education, provision of goods, services and accommodation, land dealings, sport, and State laws and programs: Anti-Discrimination Act 1977 (NSW), Pt 2A.

[101] United 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).

[102] AHRC, Respect@Work: national inquiry into sexual harassment in Australian workplaces (2020), March 2020, foreword at www.humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020, accessed 14 September 2020.

[103] AHRC, Everyone’s business, p 27, above n 51.

[104] ibid.

[105] ibid at p 28.

[106] ibid at p 33.

[107] L Knowles, “Sexual harassment of women rife in Australian legal profession, survey finds”, ABC news, 8 March 2019, at www.abc.net.au/ news/2019-03-08/70-per-cent-female-lawyers-report-sexual-harassment-survey-finds/10880632, accessed 3 July 2020.

[108] International Bar Association, “Us Too? Bullying and sexual harassment in the legal profession”, 2019, pp 51–52, at www.ibanet.org/ bullying-and-sexual-harassment.aspx, accessed 3 July 2020.

[109] AHRC, above n 102, pp 17–18.

[110] ibid.

[111] AHRC, above n 102, p 18.

[112] K Nomchong, “Sexual harassment and the judiciary” (2020) 32 JOB 55 at 56.

[113] J A Santos, “When justice behaves unjustly: addressing sexual harassment in the judiciary” (2018) 54 Ct Rev 156 at 157.

[114] ibid.

[115] Statement by the Hon Susan Kiefel AC, Chief Justice of the High Court of Australia, at https://cdn.hcourt.gov.au/assets/news/Statement%20by%20Chief%20Justice%20Susan%20Kiefel%20AC.pdf, accessed 21 July 2020.

[116] Supreme Court of NSW, “Supreme Court policy on inappropriate workplace conduct”, 2020, at www.supremecourt.justice.nsw.gov.au/Documents/Home%20Page/Announcements/2020_07_02_Workpace%20Conduct%20Policy_v4.0_FINAL.pdf, accessed 3 July 2020.

[117] The review has not been finalised as at 14 September 2020.

[118] AHRC, above n 17 at 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.

[119] P Easteal, Less than equal: women and the Australian legal system, Butterworths, 2001 at 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.

[120] “A husband is not a retirement plan”, above n 46, p 13.

[121] Supreme Court of Queensland, above n 4, p 169.

[122] University 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, at https://static1.squarespace.com/static/54d05b39e4b018314b86ca61/t/56a81bbcdf40f3b389188201/1453857741055/Calling_It_What_It_Really_Is.pdf, accessed 30 May 2020.

[123] D Brownridge, “Partner violence against women with disabilities: prevalence, risks and explanations” (2006) 12(9) Violence against Women 805.

[124] AIHW, People with disability in Australia, web report 2019, at Figure 1. Prevalence of violence by violence type, disability status (at time of survey) and sex 2016, at www.aihw.gov.au/reports/dis/73-1/people-with-disability-in-australia/justice-and-safety/violence-against-people-with-disability, accessed 30 May 2020.

[125] AHRC, A conversation in gender equality, above n 17 at p 16.

[126] ibid.

[127] AIFS, Elder abuse: understanding issues, frameworks and responses, 2016, p 5 at https://aifs.gov.au/publications/elder-abuse, accessed 30 May 2020.

[128] Australian Research Centre in Sex, Health and Society, Norma’s Project: a research study into the sexual assault of older women in Australia, 2014, p 16 at https://apo.org.au/node/40334, accessed 30 May 2020.

[129] AHRC, A conversation in gender equality, above n 17 at p 16.

[130] ibid, p 17.

[131] L 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.

[132] ABS, 3302.0.55.003 — Life Tables for Aboriginal and Torres Strait Islander Australians, 2015–2017, at www.abs.gov.au/ausstats/abs@.nsf/MediaReleasesByCatalogue/1A6806AB01AB38CDCA25835300141767?OpenDocument, accessed 17 June 2019.

[133] AIHW, Maternal deaths in Australia, November 2019, “Characteristics of women who died – maternal First Nations status”, at www.aihw.gov.au/reports/mothers-babies/maternal-deaths-in-australia/contents/maternal-deaths-in-australia, accessed 3 June 2020.

[135] BOCSAR, unpublished data 2018, supplied by the NSW Bureau of Crime Statistics in July 2019.

[136] K Cripps and D Habbis, “Improving housing and service responses to domestic and family violence for Indigenous individuals and families”, 2019 at https://ahuri.edu.au/research/final-reports/320, accessed 13 April 2020. See also 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 at https://jccd.org.au/wp-content/uploads/2017/09/JCCD_National_Framework.pdf, accessed 5 March 2020.

[137] JCCD, ibid at p 4.

[138] ibid.

[139] ibid at p 6.

[140] ibid.

[141] ibid.

[142] See Cultural Diversity E-Learning under “Training Resources” at https://jccd.org.au/resources/, accessed 2 June 2020.

[143] United Nations General Assembly, Declaration on the elimination of violence against women, 1993, at www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.21_declaration%20elimination%20vaw.pdf, accessed 26 April 2020.

[144] AIHW, Family, domestic and sexual violence in Australia: continuing the national story, 2019, p 17, at www.aihw.gov.au/getmedia/b180312b-27de-4cd9-b43e-16109e52f3d4/aihw-fdv4-FDSV-in-Australia-2019_in-brief.pdf.aspx?inline=true, accessed 2 May 2020.

[145] ABS, 4906.0 – Personal safety, Australia, 2016 at www.abs.gov.au/ausstats/abs@.nsf/Lookup/4906.0main+features42016, accessed 2 June 2020.

[146] Some examples of behaviours used to define the concept of emotional abuse are found in ABS, 4906.0 — Personal safety, ibid.

[147] See J Hill, See what you made me do: power, control and domestic violence, Black Inc, 2019; “A core dysfunction in our society”, A Cottrell, "A core dysfunction in our society", Kill Your Darlings, 7 August 2019 at www.killyourdarlings.com.au/article/conversation-with-jess-hill/, accessed 25 April 2020.

[148] See for example Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4 and 5.

[149] E 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, at www.welshwomensaid.org.uk/wp-content/uploads/2017/08/evan_stark_article_final_100812.pdf, accessed 25 April 2020. Stark was the first to use the term “coercive control” in E Stark, Coercive control: how men entrap women in personal life, OUP, 2007.

[150] J Monckton-Smith, “Intimate partner femicide: using Foucauldian analysis to track an eight stage progression to homicide”, 2019, at https://journals.sagepub.com/doi/pdf/10.1177/1077801219863876, accessed 27 July 2020.

[151] Some Australian States have or are considering this, most recently in response to the domestic violence-related deaths of a woman and her children in Queensland in early 2020. See P McGorrery and M McMahon, Criminalising coercive control, Springer Books, 2020.

[152] Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 11.

[153] 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 Judicial Officers’ Bulletin 49 at 50.

[154] ibid.

[155] AIHW, Family, domestic and sexual violence in Australia: continuing the national story, above n 144, p 17.

[156] A 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 144, p 17.

[157] ibid.

[158] 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; Australian Domestic & Family Violence Clearinghouse, Staying/​leaving: barriers to ending violent relationships, Fast Facts No 7, July 2012, at www.adfvc.unsw.edu.au, accessed 8 April 2013, and references referred to therein.

[159] For example, “Family violence myths and facts”, Safe Steps Family Violence Response Centre, at www.safesteps.org.au/understanding-family-violence/family-violence-myths-facts/, accessed 3 May 2020.

[160] Section 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 July 2020 at www.smh.com.au/national/exercise-extreme-caution-when-celebrity-abuse-cases-end-up-in-the-media-20200723-p55ex6.html, accessed 27 July 2020.

[161] See National Sexual Assault, Domestic Family Violence Counselling Service at www.1800respect.org.au/inclusive-practice/violence-in-times-of-disaster/, accessed 3 May 2020.

[162] P Hayes, “Bracing for violence on grand final day”, NewsGP, 24 September 2019, at www1.racgp.org.au/newsgp/clinical/bracing-for-family-violence-on-grand-final-day, accessed 3 May 2020.

[163] Our Watch, Quick facts, at www.ourwatch.org.au/quick-facts/, accessed 27 April 2020.

[164] Women NSW, above n 13, p 13.

[165] ibid at 63.

[166] ibid.

[167] ibid.

[168] ibid at 66.

[169] ibid at 65.

[170] ibid at 67.

[171] ibid at 62.

[172] ibid at 80.

[173] ibid at 72.

[174] S Swan, above n 5.

[175] AIWH, Family, domestic and sexual violence in Australia 2018, p 32 at https://aihw.gov.au/getmedia/d1a8d479-a39a-48c1-bbe2-4b27c7a321e0/aihw-fdv-02.pdf.aspx?inline=true, accessed 1 September 2020.

[176] BOCSAR, NSW recorded crime statistics,quarterly update, December 2019, 4 March 2020, p 18 at www.bocsar.nsw.gov.au/Publications/RCS-Quarterly/NSW_Recorded_Crime_December_2019.pdf, accessed 15 June 2020.

[177] ibid.

[178] See comments of Acting Director of BOCSAR at NSW Bureau of Crime Statistics and Research (BOCSAR), “NSW Recorded Crime Statistics quarterly update December 2019”, 4 March 2020, at https://bocsar.nsw.gov.au/Pages/bocsar_media_releases/2020/mr-NSW-Recorded-Crime-Statistics-Quarterly-Update-Dec-2019.aspx, accessed 27 April 2020.

[179] Legal Aid NSW, “Annual Report 2018-2019”, pp 58-59.

[180] ibid.

[181] ABS, Personal Safety Survey, Australia, 2016, ABS cat no 4906.0, Canberra. “Intimate partner” includes a current or former cohabiting partner and non-cohabiting partners and dates.

[182] ABS,“Prevalence of partner violence over time”, ABS 4906.0 - Personal Safety, Australia, 2016, Nov 2017, at   www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4906.0~2016~Main%20Features~Prevalence%20of%20partner%20violence%20over%20time~19, accessed 2 May 2020.

[183] ibid.

[184] Data 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, at www.coroners.justice.nsw.gov.au/Pages/Publications/dv_annual_reports.aspx, accessed 2 May 2020.

[185] The 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 at p xv.

[186] ibid.

[187] ibid at p xv.

[188] ibid at p xv.

[189] ibid at p xv.

[190] ibid.

[191] ibid.

[192] ibid.

[193] ibid at p 10.

[194] ibid.

[195] ibid at p xvi.

[196] ibid at p 8.

[197] ibid at p xvi.

[198] ibid at p 14.

[199] ibid at p 17.

[201] ibid at p 26.

[202] ANROWS, “National community attitudes towards violence against women”, 2017, p 28 at www.anrows.org.au/NCAS/2017/understanding-violence-against-women/, accessed 2 May 2020.

[203] The survey is part of the of Council of Australian Governments, The National Plan to reduce violence against women and their children 2010-2022 at https://dss.gov.au/sites/default/files/documents/08_2014/national_plan1.pdf, accessed 11 September 2020 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 2 May 2020.

[204] 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, 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.

[205] ibid, p 8.

[206] 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, ANROWS Insights, Issue 02.2019, Sydney, p  8, at https://d2rn9gno7zhxqg.cloudfront.net/wp-content/uploads/2019/12/05051533/2017NCAS_NMESC_Report.1.pdf, accessed 16 September 2020.

[207] National Plan, above, n 203.

[208] above n 203, p 17.

[209] S Hulme, A Morgan & H Boxall, “Domestic violence offenders, prior offending and reoffending in Australia” (2019) 580 Trends & issues in crime and criminal justice, Australian Institute of Criminology at www.aic.gov.au/publications/tandi/tandi580, accessed 13 February 2020.

[210] [2016] NSWSC 1181 at [52] per RA Hulme J.

[211] J Hill, “Patriarchy and power: how socialisation underpins abusive behaviour”, The Guardian, 8 March 2020 at www.theguardian.com/society/2020/mar/08/patriarchy-and-power-how-gender-inequality-underpins-abusive-behaviour, accessed 12 June 2020.

[212] This “mental dislocation” has been described by Amnesty International as “torture”: J Hill, ibid.

[213] H Gleeson, “Coercive control: the ‘worst part’ of domestic abuse is not a crime in Australia, but should it be?” updated 19 November 2019, ABC News Online, at www.abc.net.au/news/2019-11-19/coercive-control-domestic-abuse-australia-criminalise/11703442, accessed 12 June 2020.

[214] J Hill, above n 211. See also H Gleeson, ibid.

[215] Unless otherwise specified, this list is adapted from Women’s Aid UK webpage, “What is coercive control?” at www.womensaid.org.uk/information-support/what-is-domestic-abuse/coercive-control/, accessed 3 May 2020.

[216] C Lamothe, “How to recognise coercive control”, Healthline, 10 October 2019 at www.healthline.com/health/coercive-control#isolation, accessed 12 June 2010.

[217] Examples cited from research into media reporting of coercive control offences in the UK by a Deakin University academic described in www.abc.net.au/news/2019-11-19/coercive-control-domestic-abuse-australia-criminalise/11703442, accessed 3 May 2020.

[218] ibid.

[219] S York Morris, “How to recognise gaslighting and get help”, Healthline, 31 March 2017 at www.healthline.com/health/gaslighting, accessed 3 May 2020.

[220] ibid.

[221] above n 216.

[222] ibid.

[223] C 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 April 2020 at https://victimsfirst.gc.ca/res/cor/UCC-CCC/index.html#TOC-1-3, accessed 1 September 2020.

[224] J Monckton-Smith, above n 150.

[225] eSafety Commissioner, Domestic and family violence at www.esafety.gov.au/key-issues/domestic-family-violence, accessed 15 June 2020.

[226] ibid.

[227] eSafety Commissioner, Online abuse targeting women, at www.esafety.gov.au/women/online-abuse-targeting-women, accessed 20 April 2020.

[228] M Bromberg, “The devil you know is not better — the non-consensual distribution of intimate images and sentencing, (2020) 44 Crim LJ 173.

[229] Sections 91Q and 91R, Crimes Act 1900 (NSW).

[230] Section 91N, Crimes Act 1900; See also s 9B, Enhancing Online Safety Act 2015 (Cth).

[231] above n 227.

[232] Equal Treatment Bench Book (UK), p 147, at www.judiciary.uk/wp-content/uploads/2018/02/ETBB-February-2018-amended-March-2020.pdf, accessed 16 April 2020.

[233] ibid.

[234] ibid.

[235] D 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, at www.dvrcv.org.au/sites/default/files/ReCharge_0.pdf, accessed 20 April 2020.

[236] eSafety Commissioner, Know the facts about women online, at www.esafety.gov.au/women/know-facts-about-women-online, accessed 20 April 2020

[237] ibid.

[238] A Powell and N Henry, Digital harassment and abuse of adult Australians: a summary report, RMIT University, p 1, at www.parliament.nsw.gov.au/lcdocs/other/7351/Tabled%20Document%20-Digital%20Harassment%20and%20Abuse%20of%20A.pdf, accessed 16 April 2020.

[239] ibid.

[240] D Woodlock, above n 235.

[241] AHRC, above n 17, p 17.

[243] WHO, “Eliminating female genital mutilation: the imperative” OHCHR, UNAIDS, UNDP, UNCEA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, 2008.

[244] WHO, “Female genital mutilation”, 3 February 2020 at https://who.int/news-room/fact-sheets/detail/female-genital-mutilation, accessed 11 September, 2020.

[245] AIHW, “Discussion of female genital mutilation/cutting data in Australia”, 2019 at www.aihw.gov.au/reports/men-women/discussion-of-female-genital-mutilation-cutting/contents/table-of-contents, accessed 15 June 2020.

[246] ibid, p 10.

[247] Sections 45 and 45A, Crimes Act 1900 (NSW).

[248] [2019] HCA 35 at [13], [37], [44]; [155]; [165], [174].

[249] The Queen v A2 at [58], [67]; [158]. See also, A2 v R; Magennis v R; Vaziri v R [2020] NSWCCA 7.

[250] S Johnsdotter and B Essén, “Cultural change after migration: circumcision of girls in western migrant communities” (2016) 32 Best Pract Res Clin Obstet Gyneacol 15.

[251] WHO, above n 243, p 12.

[253] ibid.

[254] BOCSAR, NSW Recorded Crime Statistics quarterly update, June 2020, at p 16, https://bocsar.nsw.gov.au/Publications/RCS-Quarterly/NSW_Recorded_Crime_June_2020.pdf, accessed 28 September 2020.

[255] ABS, Recorded Crime – offenders 2018-19, Offenders, principal offence by sex, New South Wales, at https://abs.gov.au/statistics/people/crime-and-justice/recorded-crime-offenders/2018-19#new-south-wales, accessed 28 September 2020.

[256] ABS, above n 252.

[257] ANROWS, Intimate partner sexual violence: research synthesis, 2019, 2nd ed, p 1, at www.anrows.org.au/publication/intimate-partner-sexual-violence-research-synthesis/, accessed 7 June 2020.

[258] ABS, Crime victimisation 2018-19, cat 4530, February 2020, at www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4530.0~2018-19~Main%20Features~Victims%20of%20assault~2, accessed 3 May 2020.

[259] NSWLRC, Consent in relation to sexual offences at www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Consent/Consent.aspx, accessed 4 June 2020.

[260] Sydney Community Foundation, Keeping women out of prison — position statement, September 2016, p 4, at www.crcnsw.org.au/wp-content/uploads/2016/10/Miranda-Project-position-statement.pdf, accessed 3 May 2020.

[261] ANROWS, Women’s imprisonment and domestic, family, and sexual violence: research synthesis, ANROWS Insights, 03/2020, at https://anrows.org.au/publication/womens-imprisonment-and-domestic-family-and-sexual-violence/, accessed 31 August 2020.

[262] H 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, Jan 2020 at www.aic.gov.au/sites/default/files/2020-05/ti584_female_perpetrated_domestic_violence-v2.pdf, accessed 31 August 2020; J Mansour, Women defendants to AVOs: what is their experience of the justice system, Women’s Legal Service NSW, 2014, at http://wlsnsw.org.au/wp-content/uploads/womendefAVOsreport.pdf, accessed 31 August 2020.

[263] ABS, Recorded Crime – offenders 2018-19, above n 255.

[264] Legal Aid NSW, Annual report 2018–2019, pp 13, 33, 36 and 40 at www.legalaid.nsw.gov.au/publications/annual-report, accessed 31 January 2020.

[265] Keeping Women Out of Prison Coalition, “Profile of women in prison in NSW”, 2020, at https://apo.org.au/node/303147, accessed 27 July 2020.

[266] BOCSAR, New South Wales Custody Statistics — Quarterly Update, March 2020, at 2.1.17 Adult Custody Profile (Total Female and Indigenous Female rows), and BOCSAR, New South Wales Custody Statistics – Quarterly Update, June 2020 at https://bocsar.nsw.gov.au/Publications/custody/NSW_Custody_Statistics_Jun2020.pdf, accessed 1 September 2020. Although the impact of COVID-19 on incarceration rates appears to have decreased numbers, the percentage of First nations women remains the same at 32%.

[267] S Corben and H Tang, NSW inmate census 2018: summary of characteristics, Statistical Publication Number 47, August 2019, at www.correctiveservices.justice.nsw.gov.au/Pages/CorrectiveServices/related-links/publications-and-policies/corrections-research-evaluation-and-statistics/nsw-offender-census.aspx, accessed 31 May 2020.

[268] ibid at p 25.

[269] ibid.

[270] Justice Health and Forensic Mental Health Network, 2015 Network Patient Health Survey Report, May 2017, p 14 at www.justicehealth.nsw.gov.au/publications/2015_NHPS_FINALREPORT.pdf, accessed 31 January 2020.

[271] ibid, p 83.

[272] ibid.

[273] ibid at p 5.

[274] ibid at p 24.

[275] M 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, at https://correctiveservices.justice.nsw.gov.au/Documents/women-as-offenders-women-as-victims-the-role-of-corrections-in-supporting-women-with-histories-of-sexual-assault.pdf, accessed 31 August 2020.

[276] Australian Law Reform Commission, Pathways to justice: Inquiry into the incarceration rates of Aboriginal and Torres Strait Islander Peoples, 28 March 2018, at www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarceration-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/11-aboriginal-and-torres-strait-islander-women/drivers-of-incarceration-for-aboriginal-and-torres-strait-islander-women/, accessed 31 August 2020.

[277] ibid at p 26.

[278] ibid at p 27.

[279] A 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, at https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22media/pressrel/G7PB6%22;src1=sm1, accessed 2 June 2020; 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, at www.austlii.edu.au/au/journals/AUJlGendLaw/2012/3.pdf, accessed 2 June 2020.

[281] ibid at p 5.

[283] University 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 program, p 3 at http://assets.justice.vic.gov.au/corrections/resources/b5ef4e77-10e5-4a27-bbfd-9a5c3e9cdb69/mothersandchildren_programs.pdf, accessed 31 August 2020.

[284] Corrective Services NSW Mothers and Children’s Program at www.correctiveservices.justice.nsw.gov.au/Pages/CorrectiveServices/programs/women-offenders/women-programs.aspx, accessed 31 August 2020 and Diversionary programs on JIRS at https://jirs.judcom.nsw.gov.au/menus/services_index.php. 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 at https://journals.sagepub.com/doi/10.1177/1748895819848814, accessed 31 August 2020.

[285] Bugmy Bar Book, “Incarceration of a parent or caregiver”, Executive summary, 2019 at www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/bar-book/parental-incarceration.aspx, accessed 31 July 2020.

[286] See also the NSW Department for Communities & Justice website, Programs for Women at www.correctiveservices.justice.nsw.gov.au/Pages/CorrectiveServices/programs/women-offenders/women-programs.aspx, accessed 2 September 2020.

[287] E Buxton-Namisnyk and A Butler, above n 153 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.

[288] See further Criminal Trial Courts Bench Book at [6-150] Duress.

[289] ibid at [6-450].

[290] See further Criminal Trial Courts Bench Book at [6-440].

[291] There 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 www.smh.com.au/opinion/jury-convinced-by-expert-evidence-on-freeze-fright-response-in-rape-victims-20140406-zqrkd.html, accessed 4 June 2020; 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 at https://lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Consent/Consent.aspx, accessed 25 August 2020.

[292] Criminal Procedure Act, s 294B(7).

[293] Criminal Procedure Act, s 293 and Evidence Act, s 41(1)(d).

[294] [2020] NSWCCA 150 at [15]. Note that a further appeal has been made to the High Court on this issue.

[295] ibid 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, 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.