Page 3555 - Week 08 - Thursday, 18 August 2011
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Currently in the ACT there is a restriction on distribution of sexual assault counselling notes. What the restriction means is that people accused of committing a sexual assault cannot subpoena the counselling notes unless the judge is satisfied that the notes contain discussion of facts directly relevant to the charge. The legal terminology is that the records need to be related to a legitimate forensic purpose. The judge also needs to be satisfied that it is in the public interest to allow access to the counselling notes, so there is a two-part test to be satisfied before the notes are released to the defendant.
As the attorney has previously discussed, the policy basis for this restriction is well accepted. If sexual assault victims know that their counselling notes will be distributed publicly, then they will not approach counsellors for support. What is also known is that counsellors may become motivated to keep false records to protect their clients, and this is also not in the interests of victims.
What the amendment does is extend the restriction so that it applies equally to both criminal and civil matters, not just criminal matters as is currently the case. There is an important balancing act to perform at the heart of this amendment. There are the interests of victims, their right to privacy and their right to have their innermost thoughts and private conversations remain so. On the other hand, there is the right of the defendant to a trial where relevant evidence is available for cross-examination.
While the current restriction which applies to criminal offences appears to have been working well for almost eight years, my office approached stakeholder groups for comment on the proposed extension to civil matters. The responses were very useful, and I would like to discuss them briefly.
On the one hand, we have the ACT branch of the Australian Lawyers Alliance expressing concern for the rights of defendants to evidence in cross-examination. In their letter to me, they expressed their interest in preserving the right of a defendant to access information that is related to a legitimate forensic purpose—that is, information that goes directly to one of the elements of the alleged crime. I understand and accept the importance of retaining access to that type of information.
However, on the other hand, the Greens also received correspondence from organisations involved in providing counselling and advice to sexual assault victims. I would like to thank the Canberra Rape Crisis Centre, the Women’s Legal Centre and the ACT Council of Social Services, who were all good enough to provide comments in their busy programs.
I will not quote directly from each letter, but they all very warmly welcomed the government amendments and provided very compelling reasons in support of the proposed change. Importantly, these three organisations are all involved in supporting or advising victims of sexual assault and have firsthand practical experience of what is actually contained in the counselling notes. They were able to describe the re-traumatisation that comes from disclosure and the chilling effect that comes from the very threat of disclosure where victims are fearful of counselling notes being accessed.
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