NSW's review into victim-survivors' counselling records leaves the machinery of intrusion intact

When the New South Wales Government announced independent research into how sexual assault victim-survivors’ counselling records are accessed in criminal proceedings, many of us who have spent years campaigning for reform felt something we rarely get to feel: heard.

That feeling did not last long.

For decades, victim-survivors, counsellors and legal advocates have warned that a justice system cannot claim to encourage reporting while allowing a victim’s most intimate therapy notes to be weaponised against them.

Women including Jess Denham, whose confidential counselling records ended up in a podcast, and Madi Lane, whose call to 1800RESPECT was read aloud to her perpetrator in court, have made this hidden practice impossible to ignore. 

Counsellors and sexual assault services have also been fighting this battle for decades. In 1995, counsellor Dianne Lucas went to jail rather than surrender a client’s file. As Nina Funnell has reported, Lucas spent more time in prison than Madi’s convicted offender ever would.

Against that history, the Government’s decision to review the Sexual Assault Communications Privilege is welcome. But the review has been designed around only part of the problem. 

It asks whether counselling records should receive greater protection. It does not ask what happens when medical files, diaries, text messages, employment records, school files and other private material are sought instead. And it leaves out the person at the centre of the process.

A victim-survivor may be the person whose private life is being examined, but they are not a party to the criminal case. The prosecution represents the state. The defence represents the accused. Unless they have an independent lawyer, nobody in the courtroom is there to represent the victim-survivors’ privacy and interests.

So asking whether survivors’ counselling records should be better protected, while excluding consideration of whether they should have a voice when courts decide if those records — and other deeply personal information — should be disclosed, makes little sense. It leaves the machinery of intrusion intact.  

Protecting confidential information and giving victim-survivors independent legal representation are not unrelated reforms. They are two parts of the same safeguard.

The Australian Law Reform Commission understood this. Recommendation 10 of the inquiry into justice responses to sexual violence did not simply call for stricter rules around counselling notes, it proposed an integrated framework in which victim-survivors would be notified when their private records were sought, and independent lawyers would be able to appear on their behalf. 

It also went beyond counselling communications, covering personal, sensitive and confidential information more generally. That framing is significant, because victim-survivors do not experience privacy breaches in neat legal categories. A counselling file may be protected while a medical record is not. A therapist’s notes may be restricted while text messages, diaries or employment records remain available for perusal. Close one pathway and the search for “damaging” material simply moves elsewhere.

Recent Australian Institute of Criminology research reinforces this. Victim-survivors commonly have on average 2.6 different types of private records sought, not only counselling notes. The research also shows why independent legal representation matters — because on average, only 43% were warned that their information might be accessed. A lawyer can explain what is happening, challenge overly broad access applications and ensure the court hears from the person whose privacy is actually at stake.

Without that representation, even a strong legal privilege can fail in practice.

A right is only as useful as a person’s ability to exercise it. So why has the New South Wales Government separated reforms that evidence says belong together?

The most generous explanation is that the Government wants a tightly defined research project. The less generous explanation is that by keeping the terms of reference narrow, they can avoid facing the actual problem and continue to exclude victim-survivors from decisions made about their own lives. 

It is simpler to strengthen a privilege on paper than to fund lawyers who can enforce it. It is simpler to announce research than to admit that victim-survivors have already described the harm, the gaps and the reform required.

For almost 30 years, New South Wales has been seen as a leader in protecting confidential counselling communications. It now has an opportunity to lead again. But leadership would mean broadening the review to reflect the reality victim-survivors face.

Protecting survivors' private records is not only about what the law says. It is also about who gets to speak when that law is tested. Without an independent voice, New South Wales may protect the counselling file while leaving the victim-survivor exposed. 

Sarah Rosenberg is the Executive Director of With You We Can and a nationally recognised advocate for justice system reform. Since 2023, she has led the effort to advance independent legal representation for victims of sexual violence through policy and media, driving pilot implementation across the country.