Page 2951 - Week 07 - Thursday, 30 June 2011
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current drafting style include removing redundant words and phrases, updating and simplifying language and updating the headings of certain provisions to ensure that they appropriately reflect the content of those provisions.
Amendments have also been made which are consequential on the establishment of the territory’s Evidence Act. For example, amendments have been made to replace references to the commonwealth Evidence Act with references to the ACT Evidence Act. On commencement of these reforms, the commonwealth Evidence Act will no longer apply in the territory. Two types of amendments have also been made to clarify the operation of the Evidence (Miscellaneous Provisions) Act 1991.
Firstly, amendments have been made to clarify how many of the protections offered to witnesses under the act apply in proceedings under the Domestic Violence and Protection Orders Act 2008. The amendments clarify that the protections apply in proceedings for an offence for contravention of a protection order where those proceedings are related to sexual or violent offences. The second set of amendments to clarify the operation of the act are the amendments that provide that the court is not bound by the rules of evidence and may inform itself as it considers appropriate when making certain determinations.
These amendments will allow the court to consider hearsay evidence in determining whether a witness requires special measures to facilitate the giving of their evidence. This evidence could include evidence from a counsellor or from a psychologist and would reduce the need to subject a witness to further trauma. This trauma would be caused by examining the witnesses in the normal process to establish that they require special measures to facilitate them giving their evidence. Finally, amendments have been made to replicate existing sections of the Evidence Act 1971 which need to be preserved when that act is repealed as part of the evidence reform process.
Mr Speaker, I will now turn to discuss one of the most important reforms included in this bill, and these are the amendments which restrict access to sexual assault counselling communications in civil proceedings. Currently, division 4.5 of the act provides an immunity framework for an ACT court to apply when a party seeks to disclose the counselling notes of a sexual offence victim in a criminal proceeding. The immunity is absolute in preliminary criminal proceedings—for example, proceedings for the committal of a person for trial or proceedings relating to bail.
This means that counselling notes are not to be disclosed in these proceedings as it will not generally be possible for the court to have enough information about the case presented to determine whether to maintain the immunity. In all other criminal proceedings—for example, a trial, sentencing proceeding, appeal or review—the court must give leave before counselling notes are to be disclosed. The court may only give leave once two tests have been satisfied.
Firstly, the applicant seeking to disclose the notes must identify a legitimate forensic purpose and satisfy the court that there is an arguable case that disclosure would materially assist the applicant in his or her case in the proceeding. Once this threshold test is satisfied, the court inspects the notes and determines leave for disclosure on the basis of a public interest test. It is for the court to weigh a set of factors relevant to the
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