Source : Perth Now news
A woman steps into the witness box to speak about the most traumatising moment of her life.
She might have been given information from prosecutors about the daunting task in front of her but is then confronted by her rapist’s expensive defence barrister.
The barrister begins grilling her on counselling notes, social media posts and private diary entries.
If she has a lawyer, they do not have legal standing in court because she is a witness.
In some parts of Australia, she can seek legal advice but only about portions of her evidence.
Meanwhile, the man on trial is given legal representation throughout as a right enshrined in law.
More than 90 per cent of victims do not report sexual violence to police, and up to 85 per cent of reports do not progress to a charge, yet little has changed in decades to make the legal system easier to navigate.
“I was the one on trial and that’s very much the case for victims across the country,” survivor and advocate Sarah Rosenberg tells AAP.
“A victim is going through this process really blindly; they need independent legal advice and representation in order to make informed decisions.”
Advocates including Ms Rosenberg, who founded With You We Can to help victims navigate police and legal systems, are fighting for improved legal protections.
As the federal government’s Second National Action Plan to end violence against women is developed, they say legal advice for victim-survivors should be at its core.
Australia’s adversarial legal system was never devised to prosecute sexual assault and family and domestic violence cases, National Foundation for Australian Women chair Sally Moyle says.
“Over 30 years, I’ve been working on these issues,” she says.
“Despite real attempts by feminists, criminal lawyers and academics to amend the legal system to be more accepting of and inclusive of women, the legal system developed a thousand years ago was not intended for women.
“It’s an adversarial system where two parties argue their case.
“With gendered violence in particular, it’s an area where this arrangement does not work well.”
During a court proceeding, victims in NSW and Victoria can seek independent legal advice about defence access to their counselling notes. Victoria also permits advice for access to health information.
But this support does not always extend to victims’ diaries, phone and social media data and government, employment and school records, which can be scrutinised by the defence at trial.
In practice, Tasmania, South Australia and the Northern Territory provide little to no right to legal standing for victims, Ms Rosenberg says.
She believes the federal government should step in and amend both the Evidence Act 1995 and the Crimes Act 1914 as a model for uniform evidence laws across Australia.
In her Second National Action Plan submission, she said both acts should be reformed to insert a dedicated sexual assault communications privilege with statutory standing, mandatory notification and referral obligations to independent legal advice and representation.
“They got my school notes from back when I was experiencing high school bullying,” she says.
“It’s total free-for-all.”
Defence can issue subpoenas directly to third parties such as counselling services, she says, without specifying how the material will be used or notifying the complainant.
Ms Rosenberg was part of the Australian Law Reform Commission’s expert advisory group, which in 2025 found the system was failing people who experienced sexual assault and recommended all victim-survivors should receive legal advice.
The commission recommended amending relevant laws to give independent legal advisers standing to appear in court on behalf of complainants of sexual violence for applications to subpoena all “personal, sensitive or confidential information”.
This included a notification that a subpoena had been sent to a third party to produce personal, sensitive or confidential information – a measure not yet implemented in any jurisdiction.
The federal government is funding pilots for sexual assault legal services, initially rolled out in WA, the ACT and Victoria and expanded across Australia this year but their continuation beyond 2027 is uncertain.
NSW became the first Australian jurisdiction to enact a sexual assault communications privilege in 1997, restricting how counselling notes could be accessed or used during legal proceedings.
But it is a qualified privilege, meaning protected counselling communications can be accessed and admitted as evidence in some circumstances.
Victoria has announced plans to ban alleged sex offenders from accessing this material, which currently happens in Tasmania as it is an absolute privilege.
In recent weeks, NSW announced research to examine how often counselling notes were being subpoenaed and used in court proceedings.
But advocates say this is a missed opportunity to look at all the ways victim-survivors’ privacy is breached in the justice system.
“We are concerned about practices like accessing victim-survivors’ digital records, the entire contents of their phones, their journals, other health records, educational records, welfare records, employment records and information about their sexual history,” Women’s Legal Service NSW researcher Sarah Croskery-Hewitt says.
“But as well as stronger protections for counselling records, we want to see a leave regime for subpoenas for any of a victim-survivor’s personal, sensitive or confidential information.
“We want to ensure all victim-survivors have access to legal representation to respond to these subpoenas, as well as to early legal advice before they hand their private information to police.”
She reiterated that the prosecution “represents the state, not the victim-survivor” and that victim-survivors are left powerless without their own representation.
Ms Rosenberg says it is “bizarre” the NSW research is based on counselling notes only, not all types of private information and legal representation.
“It’s an issue and it creates harm,” she says, pointing to a deterrence in reporting of sex crimes and victims pulling out of the justice process.
Ms Moyle says “we need to go bigger” and gives the example of the Whitlam Government’s 1975 decision to introduce the family law system.
“We need to really rethink what we’re doing about this, build separate courts,” she says.
“At the time it was a really big thinking – ‘let’s do this differently’. You can’t have an adversarial system when you’re dealing with people who used to love each other.
“I think we need to do the same for sexual violence and domestic violence.”
1800 RESPECT (1800 737 732)
National Sexual Abuse and Redress Support Service 1800 211 028
