Page 3554 - Week 08 - Thursday, 18 August 2011
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This is a classic catch-22. The defence, unaware of the notes or their content, has to argue a legitimate forensic purpose which cannot be argued because the defence does not know of the existence of the notes or their contents.
All of this said, I do acknowledge the dilemma that admission of counselling notes to evidence might diminish the candour of communication between the victim and the counsellor. It is for this reason and certainly not the rationale advanced in the explanatory statement that we will support the amendment at this time. The challenge that remains for us as legislators is to find a balance that delivers justice for all parties which, at the same time, protects the special relationship that victims have with counsellors. This bill does not achieve that balance, and I call on the government to do more work in this area.
The Bar Association also raised another element of concern in relation to this amendment. Their concern is that if there is to be a restriction on counselling communication being admitted to evidence, why is it being limited only to sexual assault? Why does it not extend to other forms of assault, such as grievous bodily harm, for example, a stabbing where the victim has suffered no less a personal intrusion and which creates no less an emotional and physical trauma and which is no less deserving of counselling? Why are counselling communications in such cases not subject to the same restrictions as for sexual assault? Should there be a more equitable process in relation to these communications? If so, how can these best be delivered?
This bill proposes a disproportionate application of the justice system for the ACT community, and that disproportionality is found in the bald claim of no compelling argument. There is a compelling argument, and the government needs to address that argument.
So in supporting this bill, we do so reservedly. We will be monitoring the impact of this amendment on the delivery of justice in the territory and to the people of the ACT, and we will be considering our position in relation to policy reform in this area in light of that.
MR RATTENBURY (Molonglo) (4.35): The Greens will be supporting this bill today. It is one of a number of evidence bills the government has foreshadowed they will be releasing this year. I understand it is the second in a series of three. This bill amends the existing Evidence (Miscellaneous Provisions) Act 1991 in two ways: firstly, there are a large number of amendments that are consequential on the first Evidence Bill passed earlier this year. This set of amendments also makes minor updates in clarifications that have become necessary over time. These amendments are uncontroversial. I am aware of two drafting issues raised by the Law Society during the government’s consultation and that these two issues have been addressed by the government in the final bill and explanatory statement as presented to the Assembly.
Secondly, there is the more substantive amendment regarding access to notes taken during sexual assault counselling sessions, as has already been discussed by Mrs Dunne. The Greens support this amendment, and I would like to set out our reasons.
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