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Sexual Assault Counselling Privilege (Counselling Notes Protect)

Assessment criteria

A grant of legal assistance is available to counselled persons for representation at domestic violence and criminal law proceedings to determine:

  •  If leave will be granted to subpoena protected counselling notes (regarding a related sexual assault) and/or
  • If material produced under a subpoena can be disclosed.

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance must forward all of the following documents for assessment:

  • A completed and signed Legal Aid Queensland application form.
  • A copy of any relevant court documentation.

Application received from preferred supplier or in-house practitioner

Preferred suppliers or in-house practitioners seeking a grant of legal assistance must electronically submit an ‘Other civil law application’ for aid via the Grants Online system along with:

  • A copy of any relevant court documentation.

The following documents must be retained on the practitioners file but may be requested by Legal Aid Queensland:

Interpretation

Sexual Assault Counselling Privilege (SACP) is a new protection by way of legislation, which commenced on 1 December 2017, to make counselling communications privileged where there is or has been an allegation of a sexual offence. The legislation is contained within Division 2A of the Evidence Act 1977.

The report of the Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland, which was released on 28 February 2015 contained 140 recommendations and included a recommendation that the Queensland Government introduce a sexual assault counselling privilege based on the New South Wales (NSW) legislative model. The NSW legislation has been in effect since 1997. The Taskforce Report noted that the existence of the sexual assault counselling privilege may encourage victims of sexual assault to seek counselling as it would only allow access to, or disclosure of, counselling communications in certain legal proceedings with court approval. The Queensland Government accepted all 140 recommendations of the Taskforce.

Legal Aid Queensland (LAQ) and Women’s Legal Service (WLS) are responsible for delivering the sexual assault counselling privilege legal assistance service (referred to as Counselling Notes Protect) statewide.

The service delivery model consists of:

  • Advice and task assistance to sexual assault victims seeking to prevent disclosure of or make an informed choice regarding counselling communications in criminal court proceedings

  • Court representation at application for leave proceedings for victims seeking to prevent disclosure of counselling communications; and

  • Education and training to the legal profession, sexual assault services and other support services regarding the privilege.

Funding will be made available to a state-wide, specialised panel of lawyers, backed up by LAQ’s lawyers employed in 14 offices across Queensland to support state-wide service delivery. Women’s Legal Service provides a gender based model focusing on delivering services to women and LAQ, preferred suppliers and community legal centres provide a universal model.

The operation of SACP is enlivened when a person makes a complaint to the police about a sexual offence. Once this occurs, the person’s counselling records potentially become privileged under the SACP legislation as they may be determined to be ‘protected counselling communications’. Division 2A of the Evidence Act 1977 outlines the definitions of a protected counselling communication, a counselled person and a counsellor / counselling.

Section 14F of the legislation outlines that an application for leave from the court is required to do any of the following:

  • Compel, whether by subpoena or otherwise, another person to produce protected counselling communication to a court

  • Produce to a court, adduce evidence of or otherwise use, a protected counselling communication

  • Otherwise disclose, inspect or copy a protected counselling communication.

Absolute SACP

The operation of the SACP means that in either committal proceedings (proceedings leading up to and including) or an application for bail, a party cannot subpoena protected counselling communication records. The amendments contain an absolute privilege to the counselling communications being made available where a matter is still at this stage.

Qualified SACP

In other proceedings, SACP still applies, however the court may grant access by leave if legislative requirements are met. This is known as ‘qualified privilege’ because the court can, in certain circumstances, allow access to communications. This qualified privilege relates to proceedings either at:

  • Trial or sentencing for a criminal offence – related to sexual assault offences, or

  • Domestic violence protection orders (at any stage), or

  • Civil proceedings, including DV protection, child protection and personal injury proceedings.

Note that in a child protection matter a Magistrate may allow proceedings under the Domestic and Family Violence Protection Order Act 2012 and if this occurs and privileged counselling communication issues arise the guideline will also apply to these matters.

There is a presumption that all protected counselling communication is protected by the SACP privilege.

Section 14H of the legislation provides that leave will only be granted if the court is satisfied:

  1. The notes have a substantial probative value, and

  2. Other documents or evidence about matters covered in the counselling notes are not available, and

  3. Public interest in letting the notes be made available outweighs the public interest in keeping them confidential and protecting the counselled person from harm.

Allocation of a solicitor

Matters will be allocated to Legal Aid Queensland’s in-house practice or Women’s Legal Service (WLS) in the first instance.  If the in-house practice or WLS is unable to represent the applicant due to a conflict, lack of capacity or the applicant is located a distance away, matters will be referred to practitioners on the Counselling Notes Protect panel.

Grant(s) of aid

The grant of aid for initial advice / preparation for counselled persons is CNPA.

Extension(s) of aid

Criminal law trial

The following extensions of aid are available for counselled persons seeking representation in criminal law trials:

  • CNPD -  District Court day one of a pre-trial hearing – Counselling notes protect
  • CNBD  - District Court day one of a pre-trial hearing (Replacement counsel / CLC) - Counselling Notes Protect
  • CNDD - District Court additional days of pre-trial hearing - Counselling Notes Protect
  • CNDA – District Court additional days of pre-trial hearing (Replacement counsel / CLC) – Counselling Notes Protect
  • CNPS - Supreme Court day one of a pre-trial hearing – Counselling Notes Protect
  • CNBS - Supreme Court day one of a pre-trial hearing (Replacement counsel / CLC) – Counselling Notes Protect
  • CNSD - Supreme Court additional days of pre-trial hearing – Counselling Notes Protect
  • CNSA – Supreme Court additional days of pre-trial hearing (Replacement counsel / CLC) – Counselling Notes Protect

Domestic Violence Proceedings

The following extensions of aid are available for counselled persons seeking representation in domestic violence proceedings:

  • CNV1 – Magistrates Court day one of hearing (DV) – Counselling Notes Protect
  • CNVC – Magistrates Court day one of hearing (Replacement counsel / CLC - DV) – Counselling Notes Protect
  • CNV2 – Magistrates Court additional days of hearing (DV)– Counselling notes protect
  • CNVA - Magistrates Court additional days of hearing (Replacement counsel / CLC - DV)– Counselling notes protect

Review of decisions

A Legal Aid Queensland decision to refuse legal aid funding for these types of matters may be appealed to the external review officer (refer to review of decisions).

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