27.99 Sexual assault communications are communications made in the course of a confidential relationship between the victim of a sexual assault and a counsellor. The defence may seek access to this material to assist with their preparation for trial and for use during cross-examination of the complainant and other witnesses.
27.100 From the mid-1990s, ongoing reform of sexual assault laws and procedure has included the enactment of legislation to limit the disclosure and use of these communications. Every state and territory—except Queensland—now has specific legislation protecting counselling communications.
27.101 The sexual assault communications privilege has been considered by a number of law reform bodies, including MCCOC, the VLRC, and by the ALRC, VLRC and NSWLRC in ALRC Report 102. These reports have generally taken the view that the privilege serves the important public interest of encouraging people who have been sexually assaulted to seek therapy, and may also encourage people who are sexually assaulted to report the crime to the police.
27.102 Models of a sexual assault communications privilege differ markedly. Provisions may be formulated either as a privilege or as an immunity. A ‘privilege’ is a right to resist disclosing information that would otherwise be required to be disclosed. An immunity prevents the disclosure of certain information in court proceedings, generally when the public interest in non-disclosure outweighs the public interest in disclosure.
27.103 For example, the NSW provisions operate as a privilege—a person can object to producing a protected confidence on the ground that it is privileged; but the primary protected confider (the victim of a sexual assault) can consent to disclosure. The South Australian provisions are formulated as an immunity, stating that sexual assault communications are ‘protected from disclosure in legal proceedings by public interest immunity’. The immunity cannot be waived by participants in the protected communication.
27.104 For simplicity, the discussion below uses the term ‘privilege’ to refer to both models for protecting sexual assault communications from disclosure in court proceedings.
27.105 Other points of divergence are whether the privilege is qualified or absolute; and whether the privilege applies in preliminary criminal proceedings, such as committal proceedings.
27.106 The privilege for communications to sexual assault counsellors under s 127B of the Evidence Act 2001 (Tas) provides absolute protection for the communications unless the complainant consents to their production.
27.107 In New South Wales, South Australia, the ACT and the Northern Territory, there is an absolute prohibition against requiring the production of counselling communications in preliminary criminal proceedings and against the use of counselling communication in such proceedings. Otherwise, the privilege that applies in all jurisdictions, except Tasmania, is qualified, both in relation to the production of documents and the use of notes in evidence.
27.108 One of the main issues relating to the scope of the privilege is that, in many jurisdictions, the current restrictions on admission of sexual assault counselling communications do not prevent a defence lawyer from issuing a subpoena requiring a person to produce counselling notes. As a result, subpoenas are frequently used to ‘require counsellors to attend and give evidence or produce notes’ and ‘[p]rivate counsellors who are unaware that the law protects confidential counselling communications may produce records, rather than appearing in court to resist a subpoena’.
27.109 Other factors that affect the scope of the privilege, and which are defined or dealt with inconsistently across the jurisdictions, include:
the scope of the communications protected;
whether preliminary examination by a judicial officer—to determine questions of leave to produce or adduce protected confidences—is a mandatory or discretionary requirement;
the thresholds at which the court must be satisfied before ordering production;
the factors the court must take into account for the purposes of the public interest balancing test; and
the express exemptions to the privilege.
Further reform of sexual assault communications privilege
27.110 The harmonisation of sexual assault communications privileges has been considered by SCAG through the National Working Group on Evidence. The Working Group agreed that it is not appropriate to provide for a single model sexual assault counselling protection in Australia because of the ‘satisfactory operation of a variety of protections for sexual assault counselling communications and the variation between jurisdictions in criminal practice and procedure’.
27.111 Instead, the SCAG Ministers agreed on seven principles (the SCAG principles) to be applied as the minimum standard for protection of sexual assault counselling communications in Australia, if jurisdictions legislate to restrict the disclosure of sexual assault counselling communications in criminal trials.
27.112 In undertaking this Inquiry, the Terms of Reference instruct the ALRC to be ‘careful not to duplicate … the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of model sexual assault communications immunity provisions’. For this reason, the focus of the Commissions’ consideration of the sexual assault communications privilege has been on how they operate in practice rather than on the harmonisation of provisions.
27.113 The SCAG principles acknowledge the importance of practical measures that facilitate the implementation of the privilege and its protection. For example, one of the seven principles provides that ‘jurisdictions should consider adapting court processes, with the aim of limiting inadvertent disclosure of sexual assault counselling communications’.
Assisting complainants to invoke the privilege
27.114 As observed during this Inquiry, in practice, the sexual assault communications privilege may not achieve its intended policy objective of protecting the public interest in maintaining the confidentiality of the counselling relationship and its therapeutic benefits.
27.115 In 2009, Women’s Legal Services NSW coordinated a project providing pro bono representation to sexual assault victims seeking to maintain privilege over their counselling and medical records. The Sexual Assault Communications Pro Bono Referral Pilot Project in the Downing Centre (SACP Pilot)—a New South Wales Local Court—involved the NSW Bar Association, the Office of the Director of Public Prosecutions NSW (NSW ODPP) and three private commercial law firms. The project aimed to provide a ‘stop-gap’ measure for legal service provision, investigate the operation of the privilege, and identify areas in need of legislative and procedural reform.
27.116 Women’s Legal Services NSW has identified the following continuing problems for victims of sexual assault and counsellors pursuant to existing sexual assault communications privilege provisions:
some counselling services do not inform sexual assault victims that their counselling notes have been subpoenaed;
some counselling services produce material to the court without raising an objection or claiming the privilege;
some counselling services give sexual assault victims inaccurate advice about the privilege;
sexual assault victims may not receive written notice of the subpoenaed documents;
sexual assault victims have difficulty obtaining legal assistance to uphold their privilege;
sexual assault victims who seek to uphold their privilege often require legal representation at short notice, and the legal representation retained may only gain limited access to relevant materials;
judicial officers permit reliance on improperly obtained confidences to support arguments about admissibility;
the party seeking access to protected confidences may re-ventilate arguments about admissibility before trial judges—after a judicial officer presiding at an interlocutory hearing has made a ruling—and trial judges may overrule the decision;
sexual assault victims have reported feelings of violation due to the legal processes associated with seeking disclosure of their counselling records and seeking to uphold their privilege.
27.117 Many of these problems appear to arise because, while the privilege is legally that of the participants in the counselling process, the privileged documents sought to be produced and admitted belong to counselling services or individual counsellors responsible for their creation whose attitude to disclosure may differ from that of the victim because of the different professional and privacy interests at stake.
27.118 A qualified sexual assault communications privilege serves the broader public interest of ensuring the legal system is fair both to the accused and the complainant. However, sexual assault victims, who are unrepresented in criminal proceedings, may not be in a position to claim or seek to enforce the privilege.
27.119 This difficulty has generated debate about whether victim advocates should be employed in the criminal justice process to make submissions as to rulings on the sexual assault communications privilege. It is beyond the scope of the current Inquiry to consider that debate, which would require detailed consideration of difficulties inherent in reconciling the role of a separate legal representative with the current constraints of the adversarial system.
27.120 Complainants, whether represented or unrepresented, may be assisted to invoke the sexual assault communications privilege by implementing some or all of the following measures:
requiring the party seeking production to provide notice in writing to each other party and if the sexual assault complainant is not a party—the sexual assault complainant;
requiring that any such written notice issued be accompanied by a pro forma fact sheet on the privilege and providing contact details for assistance;
educating defence counsel about their obligation to identify records potentially giving rise to the privilege to encourage compliance with any such written notice provisions;
providing counsellors with education about the sexual assault communications privilege and next steps if they are served with a subpoena;
requiring that subpoenas be issued with a pro forma fact sheet on the privilege, providing contact details for legal assistance;
improving access to free legal assistance about the sexual assault communications privilege;
requiring that the court issuing a subpoena provide a copy of all subpoenas to the prosecution;
educating prosecutors: to identify possible claims of the sexual assault communications privilege arising out of subpoenas; to inform the court of any such possible claims of the sexual assault communications privilege during pre-trial processes; where subpoenas are served at short notice during a trial, to query short service applications; to inform the court where documents containing protected confidences are improperly adduced, admitted or used in the course of proceedings;
educating defence counsel generally about the sexual assault communications privilege with a view to limiting the use of improperly obtained protected confidences; and
educating judicial officers about the impact of sexual assault on complainants, the role of counselling in alleviating victims’ trauma and the desirability of encouraging people who have been sexually assaulted to seek therapy.
Submissions and consultations
27.121 In the Consultation Paper, the Commissions asked what procedures and services would best assist sexual assault complainants to invoke the sexual assault communications privilege, assuming they continue to be unrepresented in sexual assault proceedings.
27.122 Some stakeholders expressed support for the adoption of the measures raised in the Consultation Paper to assist sexual assault complainants to invoke the sexual assault communications privilege.
27.123 The NSW ODPP submitted that the counselling communications privilege has not had adequate attention paid to it by participants in the criminal justice system in NSW—including the courts, legal practitioners, counsellors, medical practitioners and organisations holding personal records. The NSW ODPP noted that the absolute prohibition on the production of a document recording a protected confidence in committal proceedings is not respected in practice. Rather, subpoenas are regularly issued and documents produced, often without the knowledge of the prosecution.
27.124 The NSW ODPP stated that complainants involved in the SACP Pilot gave ‘very positive’ feedback about the assistance they had received. The ODPP considers that the SACP Pilot has increased awareness of the privilege and the complainant’s rights and that legal assistance should be available to complainants either through a community victim’s advocacy service or the relevant legal aid commission. The NSW ODPP identified a number of problems with the sexual assault communications privilege, some of which were also identified by other stakeholders.
27.125 First, the prosecutor’s role in regard to privileged material was observed to be problematic because of the potential for conflict with the prosecutor’s obligations of disclosure. The NSW ODPP considered that it is inappropriate for the prosecutor to vet material, advise the complainant and argue the privilege, although the prosecutor should be present for any argument to assist the court.
27.126 Secondly, the subpoena of counselling records puts complainants at risk of having their place of residence, contact information and other personal details disclosed to the court and others without appropriate vetting.
27.127 Thirdly, the NSW ODPP observed that victims of family violence are particularly susceptible to the subpoena of counselling records because the offender’s knowledge of the victim enables them to identify potential sources of personal information. This can result in the issuing of multiple subpoenas, which can be perceived as an attempt to intimidate the victim.
27.128 Fourthly, late notice of the return date of a subpoena was a consistent problem encountered by the SACP Pilot and presented particular problems when this date was close to the scheduled trial date. In some instances, the complainant must choose between proceeding with the trial or claiming the privilege.
27.129 The NSW ODPP suggested that:
stringent procedures need to be adopted and adhered to by the Court in regard to subpoenas;
where counselling notes are subpoenaed, there should be mandatory notification of the ‘other party’, so that, for instance, the prosecution has the opportunity to ask that access is not granted until such time as the complainant has been notified; and
consideration should be given to introducing provisions to ensure that subpoenas are issued in a timely way.
27.130 The Magistrates’ Court and Children’s Court of Victoria observed that the application of the privilege to civil proceedings, which may be related to criminal proceedings, has prevented ‘backdoor’ impermissible access to confidential communications. In the Courts’ experience, difficulties with the operation of the privilege in practice arise more commonly where access is sought from individual health professionals, as opposed to sexual assault-specific service providers. Centres Against Sexual Assault (CASA) are often represented and the complainant’s views are put before the court either by the prosecution or by the CASA.
27.131 The Courts observed that particular difficulties arise where access is sought to departmental records, particularly where child protection issues arise in relation to the complainant. The Courts suggested that it may be appropriate to require human services departments to categorise their material and be legally represented in relation to any subpoenas to which the department is required to respond.
27.132 The Courts expressed support for an approach that ensures that all stakeholders’ legitimate interests are put before the court and that minimises the potential for the subpoena of counselling records to operate as a ‘fishing exercise’.
27.133 Other stakeholders also expressed views about how to improve the operation of the privilege in practice for sexual assault complainants. For example, the Women’s Legal Service Queensland supported the development of processes to better enable unrepresented people to assert the privilege. The National Association of Services Against Sexual Violence (NASASV) suggested that measures should target third parties who hold confidential records to ensure that they are informed about the communications privilege. The Canberra Rape Crisis Centre supported absolute protection of communications unless the complainant consents to their production.
27.134 The SCAG National Working Group on Evidence found that the varying models for protecting the confidentiality of sexual assault counselling communications are operating satisfactorily. The Commissions are, however, unconvinced by this conclusion.
27.135 While the SCAG principles may assist in harmonising legislative provisions, the Commissions consider that the principles do not deal adequately with the fundamental cause of difficulties with the operation of the privilege in practice identified by stakeholders in this Inquiry. That is, while the privilege is legally that of the participants in the counselling process, the documents subject to the privilege belong to counselling services or individual counsellors responsible for their creation, and it is to these parties that subpoenas will be directed. Counsellors may have professional and therapeutic reasons to oppose disclosure, but these interests may differ from the privacy and other interests of the complainant. Moreover, counsellors are not always aware of their rights and responsibilities in relation to subpoenas issued for the production of counselling communications concerning complainants.
27.136 In the Commissions’ view, more needs to be done to ensure that existing legislative provisions operate effectively to protect counselling communications. In particular, steps should be taken to ensure that complainants are notified, in a timely manner, about the subpoena of counselling communications and given information about their legal rights and options for accessing legal advice. In this context, SCAG Principle 4 states that jurisdictions ‘should consider adapting court processes, with the aim of limiting inadvertent disclosure of sexual assault counselling communications’.
27.137 The Commissions recommend that federal, state and territory legislation relating to subpoenas and the operation of the sexual assault communications privilege should ensure that the interests of complainants in sexual assault proceedings are better protected, including by requiring:
parties seeking production of sexual assault communications, to provide timely notice in writing to the other party and the sexual assault complainant;
that any such written notice be accompanied by a pro forma fact sheet on the privilege and providing contact details for legal assistance;
that subpoenas be issued with a pro forma fact sheet on the privilege, also providing contact details for legal assistance.
27.138 Education and training to improve awareness about the existence of the privilege and how it may be asserted would also assist in this regard. Bodies such as the Law Council and NASASV (the peak body for organisations who work with victims of sexual violence) may be appropriate bodies to pursue such an initiative. Judicial officers may also benefit from greater awareness of the privilege and how it may be asserted.
27.139 The release of the evaluation of the SACP Pilot may provide an opportunity for consideration by governments and law reform bodies of other measures that might be taken to improve the operation of the sexual assault communications privilege.
Recommendation 27–8 Federal, state and territory legislation and court rules relating to subpoenas and the operation of the sexual assault communications privilege should ensure that the interests of complainants in sexual assault proceedings are better protected, including by requiring:
(a) parties seeking production of sexual assault communications, to provide timely notice in writing to the other party and the sexual assault complainant;
(b) that any such written notice be accompanied by a pro forma fact sheet on the privilege and providing contact details for legal assistance; and
(c) that subpoenas be issued with a pro forma fact sheet on the privilege, also providing contact details for legal assistance.
Recommendation 27–9 The Australian, state and territory governments, in association with relevant non-government organisations, should work together to develop and administer training and education programs for judicial officers, legal practitioners and counsellors about the sexual assault communications privilege and how to respond to a subpoena for confidential counselling communications.
 M Heath, The Law of Sexual Offences Against Adults in Australia (2005), prepared for the Australian Institute of Family Studies, 15.
 For current provisions see: Criminal Procedure Act 1986 (NSW) ch 6 pt 5 div 2; Evidence (Miscellaneous Provisions) Act 1958 (Vic) pt 2 div 2A; Evidence Act 1906 (WA) ss 19A–19M; Evidence Act 1929 (SA) pt 7 div 9; Evidence Act 2001 (Tas) s 127B; Evidence (Miscellaneous Provisions) Act 1991 (ACT) pt 4 div 4.5; Evidence Act 1939 (NT) pt VIA. Some jurisdictions also provide for a ‘professional confidential relationships privilege’ capable of applying to sexual assault counselling communications: Evidence Act 1995 (Cth) ss 126A–126F; Evidence Act 1995 (NSW) ss 126A–126F.
 Model Criminal Code Officers Committee—Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5, Fatal Offences Against the Person: Discussion Paper (1998).
 Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.71]–[4.98].
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [15.45]–[15.84].
 Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.71].
 For example, common law (and statutory) privileges against self-incrimination, client legal privilege, parliamentary privilege and the privilege in aid of settlement: Australian Law Reform Commission, Making Inquiries: A New Statutory Framework, Report 111 (2009), [3.20].
 Ibid, [3.20]–[3.22]. See also, J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 108–109.
Criminal Procedure Act 1986 (NSW) s 298(1).
 Ibid s 300.
Evidence Act 1929 (SA) s 67E(1).
 Ibid s 67E(3).
Criminal Procedure Act 1986 (NSW) s 297.
Evidence Act 1929 (SA) s 67F.
Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 57.
Evidence Act 1939 (NT) s 56B.
 See also, Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C; Evidence Act 1906 (WA) s 19C.
 Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.74].
 See, eg, Evidence Act 1906 (WA) s 19A, cf Evidence Act 1929 (SA) s 67D.
 See, eg, Criminal Procedure Act 1986 (NSW) s 298(1)(a), cf Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C(6).
 See, eg,Criminal Procedure Act 1986 (NSW) s 298(3),(4), cf Evidence Act 1906 (WA) s 19E.
 See, eg, Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32D(2) cf Evidence Act 1929 (SA) s 67F(5)–(6).
 See, eg, Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32E cf Evidence Act 1939 (NT) s 56F.
 Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.
 Standing Committee of Attorneys-General, Communiqué, 7 May 2010.
 Women’s Legal Services NSW, Consultation, Sydney, 20 January 2010.
 Women’s Legal Services NSW, Submission FV 182, 25 June 2010. At the time of writing, an evaluation report for the SACP Pilot was being prepared by Women’s Legal Services NSW.
 Women’s Legal Services NSW, Consultation, Sydney, 20 January 2010.
 For example, as the ‘protected confider’ who made the ‘counselling communication’: Criminal Procedure Act 1986 (NSW) ss 295, 296. This may include the sexual assault victim, the person who provides the counselling service, and those present to facilitate the counselling process, such as a non-offending parent.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [15.81].
 See, eg, Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 179–180.
 The NSW Criminal Justice Sexual Offences Taskforce observed that while ‘there may be some merit to utilising independent legal representation in matters arising under the sexual assault communications privilege, as this is a privilege that belongs to the complainant, the proposal, as it currently stands, appears to create more problems than it may solve’: Ibid, 180.
 These proposed practices reflect the views of Women’s Legal Services NSW as contained in: Women’s Legal Services NSW, The NSW Sexual Assault Communications Privilege: Current Procedure and Issues for Reform: Submission to the NSW Attorney-General’s Department (2008).
 See, eg, Women’s Legal Services NSW, Counsellors and Subpoenas: A Practical Guide for Counsellors Served with Subpoenas (2004).
 Consultation Paper, Question 18–5.
 National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010.
 Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
 The DPP NSW noted that one District Court Judge, on hearing an argument for privilege, observed: ‘again nobody paid any attention to the legislation and access was granted to those records [of a psychiatrist treating a complainant as a result of an assault] which is precisely the situation that the legislation is designed to avoid’: Ibid.
 Women’s Legal Service Queensland similarly noted that the involvement of prosecutors in a claim for the privilege is limited: Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
 This concern was also expressed by a victim of family violence who related their experience with the subpoenaing of counselling records during court proceedings: Confidential, Submission FV 14, 5 November 2009.
 Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
 Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
 National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.
 Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010.
 Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.
 The sexual assault victim who is counselled, the person who provides the counselling service and those present to facilitate the counselling process, such as a parent.
 Standing Committee of Attorneys-General, Communiqué, 7 May 2010, 10.