Page 2952 - Week 07 - Thursday, 30 June 2011
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question of whether the public interest in ensuring a fair trial to the accused outweighs the public interest in preserving the confidentiality of the counselling notes.
The policy argument in favour of this immunity is well accepted. Sexual assault counsellors serve a crucial role in the justice system and it is not unreasonable to assume that if counselling notes are not confidential, complainants will not seek counselling or will not be entirely frank during counselling sessions. This will reduce the efficacy of the counselling process.
Further, if complainants do not use the services of counsellors then the likely result will be a lower reporting of sexual offences and the withdrawal of complaints. If notes are not protected, sexual assault counselling services may adopt practices such as minimal record keeping or making dummy files that both inhibit the counselling relationship and mitigate against the accountability of the counsellor.
It is also argued that records of counselling will have very limited relevance in cases involving allegations of sexual assault. Counsellors argue that sexual assault counselling is concerned with the emotional and psychological responses of the complainant to the assault. As such, the facts surrounding the assault are likely not to be discussed and the exploration of feelings will undermine the forensic reliability of what is recorded.
This bill includes amendments to extend this existing protection for criminal proceedings to civil proceedings. There is no compelling reason why the protections afforded in criminal proceedings should not be extended to civil proceedings. The public interest in encouraging victims of sexual assault to seek counselling exists in both the criminal and civil sphere. Indeed, legislation in New South Wales, South Australia and Victoria provides protection in civil and criminal proceedings. The extension has been agreed by stakeholders.
Mr Speaker, an exposure draft of the bill was circulated to key stakeholders in the justice system in April this year. These stakeholders included the Bar Association, Law Society, Legal Aid, Australian Lawyers Alliance, Civil Liberties Australia, a range of ACT government stakeholders, including courts and tribunals, the DPP, Human Rights Commission and ACT Policing, as well as Women’s Legal Centre, Domestic Violence Crisis Service, Canberra Rape Crisis Service, Victim Support ACT, ACTCOSS, the Welfare Rights and Legal Centre and Street Law. Approximately half of these stakeholders provided comments on the bill, and in general these stakeholders supported the amendments contained in it.
Two main changes were made to the bill in response to comments received from stakeholders. Firstly, comments were received on the amendments which were designed to preserve existing provisions in the Evidence Act 1971. The comments were useful in identifying provisions which are actually redundant and therefore do not need to be preserved. For those provisions which do need to be retained, comments were provided which assisted in ensuring that the provisions were updated to reflect current practices.
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