Story 10: Sexual Assault Communications Privilege Project 

2009: New South Wales

The SACP Project was a collaborative effort between Clayton Utz, Blake Dawson (now Ashurst) and Freehills (now HSF), the Women’s Legal Service, the Office of the Director of Public Prosecutions (DPP) and the NSW Bar Association.

In 2009, the protection of sexual assault communications privilege was an area where victims’ rights were not being appropriately protected. Since 2003, the NSW Criminal Procedure Act had paid lip service to protect victims of sexual assault against their counselling records being obtained under subpoena by defendants in sexual assault trials. In practice, however, the privilege was not used. The reason was that most victims had no capacity to appear before the court and argue for the privilege to apply, as Legal Aid was not available to assist victims at criminal trials, and the DPP did not act for victims.

The SACP Project provided a pathway for victims of sexual assault to be referred to free legal representation to enforce their SACP in sexual assault criminal prosecutions before the Downing Local and District Courts. Despite initial opposition, it was eventually welcomed by the judiciary. In one matter, the presiding judge said: “it is necessary to record, I think, the fact that until very recently nobody appears to have paid any regard to the legislation which provides detailed requirements in respect of protected confidences”.

The SACP issue was raised consistently before the Courts for 12 months and hard data was collected on the huge difference which legal representation made for victims’ rights. During this time, almost 100 victims of sexual assault were represented and SACP was recognised by the Courts in 91% of the matters conducted.

Due to this unique collaboration, the NSW Parliament ultimately undertook legislative reform of the privilege as recommended by the SACP Project’s pro bono firms. A permanent state-wide SACP Unit was also recommended and established within Legal Aid NSW.

In many ways, this was an exemplary pro bono project, with an identified legal access problem tackled collaboratively, reform achieved through legislation, and with the State taking ongoing responsibility for legal representation. The SACP Project was awarded the Pro Bono Partnership Award at the Law and Justice Foundation’s 2011 Justice Awards.

This story was submitted by Clayton Utz.