The NSW Government has commissioned an independent review into whether stronger legal protections are needed for the confidential counselling records of sexual assault victim-survivors.
The research will examine how the state’s Sexual Assault Communications Privilege operates in practice, including how often counselling records are subpoenaed, accessed or used during criminal proceedings.
It will also consider whether the current laws discourage victim-survivors from seeking counselling or add further trauma to their experience of the justice system.
Current protections under review
NSW has maintained legal protections for confidential sexual assault counselling communications since the late 1990s.
Under the current framework, counselling records cannot be compelled or used during preliminary criminal proceedings.
Once a case reaches trial, the records remain protected by a qualified privilege. A court may allow access only after determining that the material has substantial evidentiary value, that alternative evidence is unavailable and that the public interest in disclosure outweighs the need to preserve confidentiality.
Despite these protections, victim-survivors, counsellors and support workers have raised concerns about the impact of subpoenas seeking access to highly personal therapeutic records.
The review will examine whether the existing framework is operating as intended and whether further reform is required.
Absolute privilege among options considered
The University of Sydney will conduct the research under the leadership of Professor Rita Shackel.
Researchers will analyse other legal models, including absolute privilege, which could prevent counselling communications from being disclosed regardless of their potential relevance to a criminal case.
The project will also directly engage with victim-survivors, counsellors and other professionals with experience of the current system.
The findings are expected to be provided to the NSW Department of Communities and Justice in June 2027.
No decision has yet been made to introduce absolute privilege or amend the existing legislation. Any potential reform will be considered after the research is completed.
Concerns about further trauma
NSW Attorney General Michael Daley said criminal proceedings could be difficult and retraumatising for people who had experienced sexual violence.
He said the research would assess whether existing protections could be strengthened to reduce the additional trauma experienced by complainants during court proceedings.
Minister for the Prevention of Domestic Violence and Sexual Assault Jodie Harrison said the review followed concerns raised by victim-survivors and advocates.
NSW Women’s Safety Commissioner Hannah Tonkin said people should not feel forced to choose between accessing therapy and pursuing justice.
Broader investment in victim support
The research forms part of a wider NSW Government program aimed at improving victim-survivors’ experiences of the justice system.
The 2026–27 NSW Budget includes $4.9 million for measures designed to improve support within the justice system, alongside a broader $184.1 million investment in frontline domestic and family violence services.
The NSW and Australian governments have also announced a $5 million package to expand access to specialist legal assistance for sexual violence victim-survivors.
The package includes a Sexual Violence Community Justice System Navigators Pilot, specialist navigators within the Women’s Domestic Violence Court Advocacy Service and additional resources for Legal Aid NSW.
The review will now examine whether the legal protection of counselling records needs to be strengthened, with any possible legislative changes unlikely to be considered until after the final report is delivered in 2027.