Div 9Protected communications

Division 9—Protected communications 67D—Interpretation In this Division— committal proceedings—see Part 5 Division 3 of the Criminal Procedure Act 1921; counsellor or therapist means a person whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma (and includes a person who works voluntarily in that field); protected communication means a communication that is protected by public interest immunity under section 67E; psychiatric or psychological therapy includes counselling; therapeutic context—a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if— (a) the communication is made— (i) to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or (ii) for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and (b) the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality. 67E—Certain communications to be protected by public interest immunity (1) A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity. (2) However, the following communications are not subject to public interest immunity: (a) a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or (b) a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or (c) a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence. (3) A public interest immunity arising under this section cannot be waived by— (a) the counsellor or therapist; or (b) a party to the protected communication; or (c) the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim. 67F—Evidence of protected communications (1) Evidence of a protected communication— (a) is entirely inadmissible in committal proceedings; and (b) cannot be admitted in other legal proceedings unless— (i) the court gives permission to a party to the proceedings to adduce the evidence; and (ii) the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and (c) is not liable to discovery or any other form of pre-trial disclosure. (2) On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that— (a) the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and (b) there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case. (3) For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following: (a) to provide written answers to questions; (b) to produce written materials relating to the relevant protected communications; (c) to appear for oral examination. Exceptions— 1 If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case. 2 An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted. (4) The following provisions govern the conduct of a preliminary examination: (a) the preliminary examination is to be conducted— (i) in the absence of the jury (if any); and (ii) in a room closed to the public; and (b) the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and (c) no record of the preliminary examination is to be available for public access. (5) In deciding whether to grant permission to adduce evidence of a protected communication, the court is to weigh— (a) the public interest in preserving the confidentiality of protected communications; against— (b) the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence. (6) In weighing the above considerations, the court is to have regard to— (a) the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim; (b) the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice; (c) the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence; (d) whether admission of the evidence is being sought on the basis of a discriminatory belief or bias; (e) the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity. (7) The court is not to grant permission to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence. (8) If the court decides to grant permission to adduce evidence of a protected communication, it may make ancillary orders— (a) to prevent further publication or dissemination of the evidence; or (b) for any other purpose the court considers appropriate.