For the first time in Australia, private law firms will join forces with the New South Wales Director of Public Prosecutions, the state's Women's Legal Services and members of the New South Wales Bar to offer complainants in sexual assault matters free legal representation to maintain the confidentiality of their counselling and medical records.
This innovative pilot project initiated by Women's Legal Services brings leading firms Freehills, Blake Dawson and Clayton Utz together with the Office of the Director of Public Prosecutions New South Wales (ODPP) and the New South Wales Bar Association to assist in keeping the records of complainants confidential when their private files are subpoenaed for use in trials.
Following a sexual assault, many victims seek assistance from counsellors, psychologists and other health professionals. If victims perceive those discussions may not remain confidential, but instead may be shown to the perpetrator of the assault or his or her lawyer, it could deter them from seeking the help they need.
Under the current legislation, a privilege exists to protect a sexual assault victim from the harm that may be caused if his or her records are revealed as well as to safeguard the broader public interest in maintaining the integrity of counselling. The privilege relies largely on the holder of the records when subpoenaed to recognise that the privilege applies and to object to the production of the documents.
In many cases, the holder of records is often not aware that the documents contain ‘protected confidences’ nor that they are not obliged to produce the records containing those confidences. And although the legislation requires complainants to be notified that a subpoena has been issued, they are often not informed or, if they are told, they are unaware of their right to object or cannot afford representation to do so.
Freehills, Blake Dawson and Clayton Utz have come together for the new initiative to provide free access to legal representation for complainants during the pilot period, highlighting the problems with the privilege as it currently stands. All those involved in the project are also calling for permanent funding to assist complainants to assert the privilege in all sexual assault cases.
New South Wales Director of Public Prosecutions, Nicholas Cowdery AM QC said, ‘The law does protect privilege but defendants are entitled to subpoena a victim's counselling documents if they can prove they are important to their case. Victims are rarely in a position to argue privilege and the ODPP, who act on behalf the state, cannot give legal advice to the victim. This unique project sees the ODPP collaborating with private law firms, members of the New South Wales Bar and community legal service providers to allow victims the right to maintain the privilege of their counselling sessions.’
Women's Legal Services New South Wales Principal Solicitor Janet Loughman said, ‘After a sexual assault, recovering from the trauma can be greatly assisted by talking to a counsellor. The relationship with a counsellor is built on respect, trust and privacy and some people have refused to continue with counselling when they learn that the counsellor's notes could be disclosed to the Defence.’
Six cases have so far been referred to the project, with many more expected. These involve a cross section of victims including children and people with intellectual disabilities.
More information
For more information please contact