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Legislative Assembly for the ACT: 2003 Week 3 Hansard (23 October) . . Page.. 4061 ..
MS TUCKER
(continuing):balance agree that this is the situation in the case of counsellors' notes. As in the case of legal professional privilege, if there is a serious accusation of professional misconduct to the extent of colluding in a crime of misleading the court, then that privilege can of course be breached. I think there is a strong argument that, similarly, the details of the actual exchange in the counselling sessions should not be open for public scrutiny unless there is a specific allegation of misconduct.
It is of course in no-one's interests to have an unfair trial. Bronnit and McSherry argue that the case for privilege and safety of counselling notes is so strong that, if there is a serious allegation of an unfair trial resulting from the privilege, the trial should be suspended. The compromise offered in this bill, and which I understand the sexual assault support services and Women's Legal Service see as a step in the right direction, is that notes may be admitted only in the criminal trial and not in the preliminary hearing. The court decides, on specific application, whether there is a legitimate forensic purpose.
Section 62 lists the matters to be considered in deciding whether part or all of the protective confidence is legitimately needed for a fair trial, and includes considering the effect of disclosure on the public interest of having effective counselling, and the question of whether there is other evidence of a similar or greater probative value available about the matters to which the evidence relates.
Bronnit and McSherry point out that expert evidence on the public interest value of sexual assault counselling may be necessary for some courts to fully understand the matters they weigh up. Education on gender issues for the judiciary is controversial but arguably necessary, along with cultural education.
I do not agree that exclusion of counselling notes from evidence means prima facie that there is a denial of a fair trial. Court discretion in the absence of awareness of the rape mythologies, and their exploration in counselling, can be unfair to the complainant. The operation of this provision will need to be watched. The government will change the language in section 55 (1) in response to the scrutiny of bills committee's concerns that using the term "victim"implies an acceptance that the alleged assault happened.
MR STANHOPE
(Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (5.44), in reply: Mr Speaker, as I indicated in my presentation speech, the bill's main purpose is to introduce immunity for the counselling communications of sexual offence complainants. This is very important legislation. It will provide certainty and allow a complainant to feel confident that their counselling notes will not be wantonly used in a trial.In the interests, though, of a fair trial, the provisions ensure that counselling communications can be admitted into evidence if there is a legitimate forensic purpose. The immunity will apply to any counselling communications relating to a person who becomes a sexual offence complainant. Counselling notes should not have a different status according to whether they relate to a sexual offence or not.
This legislation is an important step for the territory. The ACT will be the fifth jurisdiction in Australia to enact protection for counselling notes. New South Wales was the first, enacting provisions that are similar to those adopted by the Model Criminal
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