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Published date: Thursday 21 June 2018

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The embarrassment or distress of a defendant in sexual offence prosecutions will no longer be sufficient to enable the suppression of the defendant’s identity under new laws to improve the operation of sexual offence proceedings passed by NSW Parliament.

Attorney General Mark Speakman said the new laws will also enact provisions:

  • to protect complainants from disclosing the identity of their counsellor; and
  • to clarify the definition of ‘private parts’ to include undeveloped breasts of a person identifying as female.

“These laws will better protect complainants during sexual offence proceedings and uphold the important principle of open justice,” Mr Speakman said.

“This principle underpins our legal system and there’s a strong public interest in requiring a defendant in a sexual offence prosecution to be identified unless there are compelling reasons why this shouldn’t happen,” Mr Speakman said.

Under the old law, a defendant in a sexual offence prosecution could seek to suppress their identity to avoid undue distress or embarrassment. The defendant will now need to prove exceptional circumstances to obtain an order on these grounds. The power to grant orders to protect the complainant’s identity or the safety of any person will be retained.

The NSW Liberals & Nationals Government is also acting to prevent sexual assault complainants being forced to disclose the identity of their counsellor.

“Discussions between victim and counsellor are confidential and protected by a sexual assault communications privilege, but this hasn’t stopped some defence counsel from directly contacting complainants seeking their psychologist or psychiatrist’s name,” Mr Speakman said.

“While this process is often little more than a fishing expedition it can be very intimidating for victims to receive a subpoena for the name of their counsellor.”

In addition, the laws will overcome the effect of a recent Court of Criminal Appeal decision that found pre-pubescent breasts were not considered ‘private parts’ for the purposes of offences relating to child abuse material. The new definition will make clear that undeveloped breasts of a person identifying as female are private parts for these purposes, as well as for offences of voyeurism and distributing intimate images.

“The laws that passed Parliament last night make common sense changes to better enable our courts to deliver justice in these distressing cases,” Mr Speakman said.