The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

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Tables - Sexual offense laws and procedures in Australia

TABLE 1: Sexual history provisions by jurisdiction
  ACT NSW NT QLD
Legislative provisions Evidence (Miscellaneous Provisions Act) 1991 ss 50-53 Criminal Procedure Act 1986 s 293 Sexual Offences (Evidence and Procedure) Act 1983 s 4 (1-4) Criminal Law (Sexual Offences) Act 1978 Part 2 s 4
Application Applies to all court processes including bail, interlocutories, committals and sentencing Applying to all offences and in whatever court dealt with Evidence Act applies to all court processes including examination of witnesses and trials Includes examination of witnesses and trials
Evidence that is not admissible under any circumstances Sexual reputation of complainant Sexual reputation of complainant   General reputation of complainant "with respect to chastity"
Evidence that is only admissible with the court's permission Evidence of sexual activities of complainant with any person other than the accused Evidence that discloses or implies complainant has or may have had sexual experience or lack of sexual experience, or has or may have taken part in any sexual activity with any person, is inadmissible unless it falls within one of the exceptions listed below Reputation as to chastity and sexual activities with any person other than the accused Sexual activities with any person
Primary criteria for admissibility of evidence Evidence must have substantial relevance to facts in issue OR Be a proper matter for crossexamination about credit Evidence that discloses or implies complainant has or may have had sexual experience or lack of sexual experience, or has or may have taken part in any sexual activity with any person, is inadmissible unless it falls within one of the exceptions listed below Substantial relevance to facts in issue Evidence must have substantial relevance to facts in issue OR Be a proper matter for cross examination about credit
Additional guidance on admissibility Evidence does not have substantial relevance because it raises an implication about the complainant's general disposition Evidence is not a proper matter for cross-examination unless likely to materially impair confidence in reliability of complainant's evidence Evidence must have relevance to facts in issue and: Concern events close in time to, or part of a connected set of events including alleged offence OR Concern ongoing/recent relationship of complainant and accused OR Could explain presence of semen/regnancy/disease/injury OR Could show complainant or accused had a disease that the other did not have OR Could show allegation made upon discovery of pregnancy or disease OR Unfair prejudice to the accused would occur if complainant could not be questioned about matters raised in the prosecution case and probative value of evidence in rebuttal outweighs potential distress, humiliation, or embarrassment to the complainant Evidence has substantial relevance if it took place at the same time as the offence or was part of a sequence of events "that explain the circumstances in which the alleged offence was committed” Evidence does not have "substantial relevance” if it merely raises an implication about complainant’s general disposition Evidence is not a proper matter for cross examination unless likely to materially impair confidence in reliability of complainant’s evidence Evidence has substantial relevance if it took place at the same time as the offence or was part of a sequence of events that may explain the circumstances in which the alleged offence may have been committed Evidence does not have "substantial relevance" if it merely raises an implication about the complainant's general disposition Evidence is not a proper matter for cross examination unless likely to materially impair confidence in reliability of complainant's evidence
Process for seeking admission of evidence Application in writing Application must be determined in the absence of any jury Complainant may be excluded from hearing at accused's request Application must be determined in the absence of any jury prior to any questions being put to the witness Application must be determined in the absence of any jury Complainant may be excluded from hearing at accused's request  
Requirements for written reasons If granting permission the court must give written reasons If granting permission, the Court must give written reasons and describe the nature and scope of the admissible evidence in writing    
Table 1 contined
  SA TAS VIC WA
Legislative provisions Evidence Act 1929 (SA) s 34i Evidence Act 2001 s194 M Crimes Act 1958 s 37A Evidence Act 1906 ss 36B-36BC
Application Every proceeding before any court whatever Any proceeding before a magistrate or court including sentencing proceedings Any proceeding that relates to a charge for a sexual offence including a committal Every legal proceeding
Evidence that is not admissible under any circumstances Sexual reputation of complainant Sexual reputation of complainant General reputation of complainant "as to chastity" Sexual reputation or disposition of complainant
Evidence that is only admissible with the court’s permission Recent sexual activities with the accused The complainant's sexual activities before or after the events of and surrounding the alleged offence Sexual experiences of the complainant other than those which were part of the events or circumstances out of which the charge arose Cross-examination or evidence of sexual activities with accused or any other person Sexual experiences of the complainant with any person other than those immediately connected with the alleged offence
Primary criteria for admissibility of evidence Evidence must be of substantial probative value OR Likely materially to impair confidence in the reliability of the evidence of the alleged victim AND Admission must be required in the interests of justice Direct and substantial relevance to a fact or matter in issue Evidence must have substantial relevance to facts in issue OR Be a proper matter for crossexamination as to credibility OR Be of substantial relevance to appropriate sentence (in some circumstances) AND Court must believe admission is in the interests of justice Substantial relevance to facts in issue
Additional guidance on admissibility Court must give effect to the principle that "alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment" Evidence about sexual history is not permitted if its only purpose is to raise inferences about the complainant's general disposition complainant Evidence should only be admitted if its probative value outweighs potential distress, humiliation, or embarrassment to the complainant Evidence does not have direct or substantial relevance to a fact or matter in issue if it is relevant only to the credibility of the person against whom the offence is alleged to have been committed Court must consider age of complainant and number and nature of questions likely to be put to them in assessing likely distress and humiliation Evidence does not have "substantial relevance" because it raises an implication about the complainant's general disposition Evidence is not a proper matter for cross examination unless there are special circumstances which mean it is likely materially to impair confidence in reliability of complainant's evidence Evidence should only be admitted if its probative value outweighs potential distress, humiliation, or embarrassment to the complainant
Process for seeking admission of evidence Application must be determined in the absence of any jury Application must be determined in the absence of any jury Application to the court in writing, and notice to Police or DPP, at least 14 days before hearing and set out the questions sought to be asked, expected scope of questioning and relevance of evidence Application must be determined in the absence of any jury Complainant may be excluded from hearing at accused's request Application must be determined in the absence of any jury
Requirements for written reasons   If granting permission, the Court must give reasons addressing each of the requirements for admissibility If granting permission, the court must give written reasons and cause them to be entered into the court records  
TABLE 2: Defining "sexual intercourse” or "sexual penetration” by jurisdiction
  ACT NSW NT QLD
Name of offence(s) Sexual intercourse without consent Sexual assault Sexual intercourse without consent Rape
Legislation which establishes the offence/s s54 Crimes Act 1900 Ss 61I Crimes Act 1900 S 192 Criminal Code Act 1983 S 349 Criminal Code Act 1899
Genital sexual contact Penetration to any extent of the vagina or anus of one person by another person with any body part or object Unless done for a proper medical purpose or otherwise authorised by law Penetration of the female genitals or anus by any part the body or any object controlled by another person Unless done for a proper medical purpose Insertion to any extent of any body part into the internal or external female genitals or anus of another person Unless done for medical purposes Penetration of vagina or anus with a penis to any extent; Penetration of vulva, vagina or anus to any extent with an object or part of the body other than a penis Unless done for proper medical, hygienic or law enforcement purposes
Oral sexual contact Insertion of any part of the penis of one person into the mouth of another; Cunnilingus Introduction of any part of the penis of one person into the mouth of another; Cunnilingus Insertion of any part of one person's penis into the mouth of another; Cunnilingus; Fellatio Penetration to any extent by the penis of one person into the mouth of another
Continuation Continuation of sexual intercourse Continuation of sexual intercourse Continuation of sexual intercourse  
Surgically constructed genitalia   "Female genitalia" includes a surgically constructed vagina "Vagina" includes a surgically constructed vagina  
Additional information Sexual assaults in the first to third degree require aggravating circumstances and do not require proof of sexual intercourse Additional offence of "sexual assault by forced self-manipulation"; Additional offences of aggravated assault; Additional offence of "assault with intent to have sexual intercourse" requires proof of aggravating circumstances but does not require proof of sexual intercourse Additional offence of "coerced self-manipulation" Additional offence of "assault with intent to commit rape" does not require proof of sexual penetration
Table 2 continued
  SA TAS VIC WA
Name of offence(s) Rape Rape Rape Sexual penetration without consent
Legislation which establishes the offence/s S 48 Criminal Law Consolidation Act 1935 S 185 Criminal Code Act 1924 Criminal Code Amendment (Consent) Bill 102/2003 before Upper House (Feb 2005). S 38 Crimes Act 1958 S 319 Criminal Code Act 1913
Genital sexual contact Penetration to any extent of the external lips of the vagina ("labia majora") or anus with any part of the body or any object Agreement to an act on the basis that it is being done for medical or hygienic purposes is not agreement for any other purpose Penetration to any degree of "the vagina, genitalia, anus, or mouth by the penis" Penetration of the vagina, external genitalia or anus of another person with an object or any part of the body Unless done in good faith for medical or hygienic purposes Penetration of the vagina, labia majora, anus or urethra of one person with any part of the body of another or any object controlled by another person Unless done for proper medical purposes
Oral sexual contact Cunnilingus; Fellatio   Penetration to any extent by the penis of one person into the mouth of another Introduction to any extent of one person's penis into the mouth of another; Cunnilingus; Fellatio
Continuation Continuation of sexual penetration Continuation of sexual penetration Continuation is included in definition of "rape" Continuation of sexual penetration
Surgically constructed genitalia "Vagina" and "penis" include surgically constructed genitalia "Vagina" includes a surgically constructed vagina  
Additional information   Additional offence of aggravated sexual assault addresses penetration of the vagina, genitalia or anus by any part of the body other than a penis or by an inanimate object "Sexual penetration" includes compelling a male to sexually penetrate another person with his penis; and Compelling a male "not to withdraw his penis" from another person Additional offence of "assault with intent to commit rape" does not require proof of sexual penetration "Sexual penetration" includes manipulation of any part of the complainant's body in order to cause sexual penetration of the accused; Additional offences of aggravated sexual penetration without consent
TABLE 3: What the accused thought by jurisdiction
  ACT NSW NT QLD
Name of offence(s) Sexual intercourse without consent Sexual assault Sexual intercourse without consent Rape
What mental state (if any) is required for a conviction? Knowledge of non-consent OR Awareness of possibility of nonconsent Knowledge of non-consent OR Awareness of the possibility of non-consent OR Failure to give any thought to the question of consent OR Knowledge consent has been given due to fraud or mistake

Knowledge of non-consent

OR Awareness of the possibility of non-consent

Neither intention nor recklessness need to be proved

Defence of honest and reasonable but mistaken belief in consent is available

Table 3 continued
  SA TAS VIC WA
Name of offence(s) Sexual intercourse without consent Sexual assault Sexual intercourse without consent Rape
What mental state (if any) is required for a conviction? Knowledge of non-consent OR Awareness of possibility of nonconsent Intention to sexually penetrate Neither intention nor recklessness need to be proved Defence of honest and reasonable but mistaken belief in consent available UNLESS Mistaken belief is caused by *self-inflicted intoxication, *recklessness about consent or *failure to take reasonable steps to check consent

Awareness of non-consent OR Awareness of possibility of non-consent

Neither intention nor recklessness need to be proved Defence of honest and reasonable but mistaken belief in consent is available
TABLE 4: Non-consent
  ACT NSW NT QLD
Name of offence(s) Sexual intercourse without consent Sexual assault Sexual intercourse without consent Rape
Consent standard Legislation states circumstances in which consent is negated Legislation states circumstances in which consent is negated Free agreement Free and voluntary consent by a person with cognitive capacity to consent
Directions which must be given to the jury A person has not consented only because: They did not say or do anything to indicate non-consent; They did not protest, physically resist or sustain physical injury; They consented to sexual acts with the accused or someone else on this, or a previous occasion   A person has not consented only because: They did not protest, physically resist or sustain physical injury; They consented to sexual acts with the accused on this, or a previous occasion  
Circumstances which invalidate consent: the law does not recognise consent if it is brought about by
Force Infliction of violence or force on the complainant or someone present or nearby Aggravated sexual assaults provisions apply Force used against complainant or someone else Force
Threats Threats of violence or force against complainant or someone present or nearby; Threats to inflict violence or force or use extortion against another person; Threats of public humiliation; disgrace, physical or mental harassment against the complainant or someone else Threats against the complainant or someone else See fear of force, below Threats
Fear Intimidation   The complainant, or someone else being terrified Fear of force, or fear of harm of any type to complainant or someone else Intimidation Fear of bodily harm
Circumstances affecting consciousness: Alcohol Drugs Intoxication Unconsciousness Sleep Helplessness The effects of alcohol, drugs or anaesthetic; The complainant's physical helplessness   Complainant is asleep, unconscious or so affected by alcohol or another drug that they are not capable of free agreement Complainant unable to form a decision about consent because asleep or intoxicated
Fraud and deceit (generally) A fraudulent misrepresentation of any fact      
Fraud or mistake about the nature or purpose of the act See fraud provisions above Mistaken belief about the nature of the act brought about by fraud A false representation about the nature or purpose of the act False and fraudulent misrepresentation about the nature or purpose of the act
Fraud or mistake about medical or hygienic purposes See fraud provisions above Fraud about medical or hygienic purposes for the act Mistaken belief the act is for medical or hygienic purposes  
Fraud or mistake about the identity of the person proposing intercourse A mistaken belief about the identity of the person proposing intercourse A mistaken belief they were married to the other person; A mistaken belief about the identity of the other person Mistake about the identity of the other person The accused bringing about a mistaken belief by the complainant that the accused was the complainant's sexual partner
Inability to understand the nature of the act Inability to understand the nature of the sexual act   Inability to understand the sexual nature of the act Consent means free and voluntary consent given by a person who has the cognitive capacity to give consent
Unlawful detention Unlawful detention of the complainant   Unlawful detention of the complainant  
Abuse of authority or trust Abuse of a position of authority or trust in relation to the complainant     Exercise of authority
Significance of physical resistance or physical injury (see also jury instructions, above) A person has not consented just because they did not physically resist A person has not consented just because they did not physically resist See jury directions above  
Table 4 continued
  SA TAS VIC WA
Name of offence(s) Rape Rape Rape Sexual penetration without consent
Consent standard Free and willing consent Free agreement: A person does not freely agree if they do not say or do anything to communicate consent Free agreement (see jury direction below) Freely and voluntarily given consent
Directions which must be given to the jury     If a person does not say or do anything to indicate free agreement that is normally enough to show they do not freely agree; A person has not freely agreed only because they did not protest, physically resist or sustain physical injury or because they consented to sexual acts with the accused or someone else on this, or a previous occasion  
Circumstances which invalidate consent: the law does not recognise consent if it is brought about by
Force Force Force used against complainant or someone else Force used against complainant or someone else Force
Threats Threats of force Threats of any kind used against complainant or someone else See fear of force, below Threats
Fear Intimidation   Reasonable fear of force Fear of force or harm of any type to complainant or someone else Intimidation
Circumstances affecting consciousness: Alcohol Drugs Intoxication Unconsciousness Sleep Helplessness Complainant unable to form a decision about consent because asleep or intoxicated Complainant is asleep, unconscious or unable to form a rational opinion about consent due to effects of alcohol or drugs Complainant is asleep, unconscious, or so affected by alcohol or another drug they are unable to freely agree  
Fraud and deceit (generally)   Fraud on the part of the accused   Deceit, or any fraudulent means
Fraud or mistake about the nature or purpose of the act Fraud about the nature of the act Complainant being reasonably mistaken about the nature or purpose of the act Complainant being mistaken about the sexual nature of the act See fraud provisions above
Fraud or mistake about medical or hygienic purposes Agreement on the basis the act is needed for medical or hygienic purposes is not consent for any other purpose   Mistaken belief the act is necessary for medical or hygienic purposes See fraud provisions above
Fraud or mistake about the identity of the person proposing intercourse Fraud about the identity of the person proposing intercourse Complainant being reasonably mistaken about the identity of the accused Complainant being mistaken about the identity of the person proposing intercourse See fraud provisions above
Inability to understand the nature of the act Inability to understand the nature of the act due to young age or cognitive impairment Inability to understand nature of the act Inability to understand the sexual nature of the act  
Unlawful detention   Unlawful detention of complainant or someone else Unlawful detention  
Abuse of authority or trust   Complainant being overborne by the nature or position of another person    
Significance of physical resistance or physical injury (see also jury instructions, above) An accused can be found guilty of rape whether or not the complainant physically resisted If complainant suffers serious physical harm due to, or in connection with a sexual offence the injury is evidence of non-consent unless there is proof to the contrary See jury directions above A person has not consented just because they did not physically resist
TABLE 5: Protection of sexual assault counselling records Note that Queensland currently has no legislation protecting sexual assault counselling records and does not appear on this table.
  ACT NSW NT SA
Legislative provisions Evidence (Misc Provisions) Act 1991 s 54 Criminal Procedure Act 1986 ss 296-306 Evidence Act 1939 s 56 Evidence Act 1929 ss 67D-67F
What is protected? Counselling communications made by, to or about a person against whom a sexual offence was or is alleged to have been committed Communications made in a context giving rise to a reasonable expectation or a duty of confidentiality Counselling communications made by, to or about a victim or alleged victim of a sexual offence OR Made to or about the complainant by the counsellor or a support person in the course of counselling; OR Made between counsellors about the complainant Communications made in confidence by a complainant to a counsellor in the course of the counselling relationship; OR About the complainant by a parent, carer or other supportive person to the counsellor or by a counsellor to the supportive person Communications made to enable a counsellor to assess trauma or provide therapy to complainant Must be made in a therapeutic context in circumstances giving rise to a duty or reasonable expectation of confidentiality
What is specifically not protected? Information obtained by a doctor because of a physical examination of a complainant; Any communication made in the course, or because, of such an examination; Communications for criminal investigations or criminal proceedings arising from sexual offences Addressed by definition of counselling communication Communications made about a physical examination of the complainant by a medical practitioner or registered nurse Communications about a physical examination of the complainant by a medical practitioner or registered nurse Communications made for the purposes of legal proceedings arising from the sexual offence
Are communications prior to charged sexual assault covered? Yes Yes Yes Not addressed (Wilson v Magistrates Court of South Australia and ANOR [2004] SASC 297 found that the provisions could apply to records of counselling prior to a disclosure of sexual assault, but found it unnecessary to decide whether counselling prior to the commission of an alleged offence would be protected)
Primary rules protecting sexual assault counselling communications Counselling communications are never admissible in preliminary proceedings Evidence disclosing the content of sexual assault counselling is not admissible in other proceedings without permission of the court Counselling communications are never admissible in preliminary proceedings Evidence disclosing the content of sexual assault counselling is not admissible in other proceedings without permission of the court Evidence disclosing the content of sexual assault counselling is not admissible without permission of the court Counselling communications are never admissible in preliminary proceedings and are not liable to pre-trial disclosure Evidence disclosing the content of sexual assault counselling is not admissible in other proceedings unless court grants permission and limits established by the court are complied with
Standards which must be met for disclosure to be ordered There must be a legitimate forensic purpose for disclosure Disclosure must be of significant assistance to applicant's case The evidence must have substantial probative value There must be no other evidence which could prove the disputed facts The evidence must have substantial probative value There must be no other evidence which could prove the disputed facts There must be a legitimate forensic purpose for disclosure Disclosure must be of significant assistance to applicant's case
Factors court must consider in deciding whether to order disclosure Whether public interest in ensuring fair trial outweighs public interest in maintaining confidentiality; Whether disclosure is necessary for full defence; Public interest in ensuring complainants receive counselling; Whether disclosure will allow proof of a disputed fact; Whether disputed facts could be proved in another way; Probability disclosure will change outcome; Whether request for disclosure was made on the basis of a "discriminatory belief or bias"; Whether complainant or counsellor object to disclosure; Whether confidentiality of information has decreased with time or changed circumstances Whether public interest in disclosure substantially outweighs public interest in protection of confidential communications and the confider; The "likelihood, nature, and extent" of potential harm to the complainant Whether public interest in disclosure outweighs potential harm to the complainant; Likelihood, nature, and extent of potential harm to the complainant Probative value of the evidence and whether exclusion may lead to a miscarriage of justice; Whether public interest in maintaining confidentiality between complainant and therapist outweighs risk of miscarriage of justice from non-disclosure; Complainant's attitude to disclosure; Whether application for disclosure is being made on basis of discriminatory beliefs or bias; Need to encourage complainants to seek counselling the effectiveness of which may depend on confidentiality; Extent of infringement of reasonable expectation of privacy to anyone who would otherwise be protected by public interest immunity
Is court inspection of documents required or discretionary? Preliminary examination must be made if court is satisfied the applicant has a legitimate forensic purpose and evidence would significantly assist the applicant's case If the court needs to rule on an objection concerning a confidential document, the document must be produced for inspection by the court   Preliminary examination may be made only if court is satisfied the applicant has a legitimate forensic purpose and there is an arguable case the evidence would significantly assist the applicant's case
Is notice required?   Applicant must give reasonable notice in writing to each other party and the protected confider if they are not a party    
Significance of complainant's consent to disclosure These provisions apply whether or not the confider has consented or has not objected to disclosure Disclosure permitted with express consent of an adult complainant in writing Disclosure permitted with consent of the confider, or of an appropriate person where complainant is under 14 Permission for disclosure cannot be granted by the counsellor, the complainant or their guardian
Circumstances in which protection can be lost Communications in the commission of a criminal offence, fraud or civil wrong Communications in the commission of fraud, or an act giving rise to a civil penalty Where there is evidence of criminal fraud or perjury Communications providing evidence of a criminal fraud, perjury or other offence
Additional orders the court can make if disclosure is ordered Orders designed to limit harm to complainant including: Orders closing the court to the public while the protected evidence is disclosed; Orders that the document be edited or a copy be disclosed instead of the original; Orders suppressing of publication; Orders about disclosure of information about the identity of the protected confider Orders designed to limit harm to complainant including: Orders closing the court to the public while the protected evidence is disclosed; Orders for production, inspection and copying which may be necessary for safety and welfare; Orders suppressing publication; Orders restricting access to identities of people mentioned in documents Orders designed to limit harm to complainant including: Orders closing the court to the public while the protected evidence is disclosed; Orders for production and inspection which may be necessary for safety and welfare; counsellor or any other party; Orders suppressing publication; Orders restricting access to identities of people mentioned in documents Orders to prevent publication or dissemination of the evidence; or for any other purpose the court considers appropriate
Table 5 continued.
  TAS VIC WA
Legislative provisions Evidence Act 2001 s 127B Evidence Act 1958 Division 2A ss 32B-32G Evidence Act 1906 ss 19A-19L
What is protected? Communications made in a context giving rise to a reasonable expectation or a duty of confidentiality Communication must have been made by the complainant to a counsellor in the course of counselling or treatment relating to harm suffered in connection with the offence OR To, or in relation to the victim for the purposes of counselling or treatment Communications made in confidence by the complainant to a registered medical practitioner or counsellor in the course of the relationship between medical practitioner and patient Counselling communications made by, to or about a complainant in a sexual offence Counselling communications made in confidence by the complainant to a counsellor about harm the complainant may have suffered; OR Made to or about the complainant by the counsellor or a support person in the course of counselling; OR Made between counsellors about the complainant
What is specifically not protected? Addressed by definition of counselling communication Information about a physical examination by a medical practitioner Communications made for the purposes of legal proceedings arising from the sexual offence Addressed by definition of counselling communication
Are communications prior to charged sexual assault covered? No Yes Yes
Primary rules protecting sexual assault counselling communications Disclosure is permitted only if complainant has given consent There is no obligation on anyone to produce counselling related documents unless complainant has consented Evidence disclosing the content of sexual assault counselling is not admissible without permission of the court Evidence disclosing the content of sexual assault counselling is not admissible without permission of the court Production of counselling communications can be required only with the court's permission-subpoenas issued without court permission are of no effect
Standards which must be met for disclosure to be ordered Not applicable The evidence must have substantial probative value There must be no other evidence which could prove the disputed facts There must be a legitimate forensic purpose for disclosure proved by the applicant There must be no other evidence which could prove the disputed facts Disclosure can be ordered if and only if disclosure is in the public interest
Factors court must consider in deciding whether to order disclosure Not applicable Whether public interest in disclosure substantially outweighs interest in preservation of confidentiality and possible harm to the complainant Likelihood, nature, and extent of potential harm to the complainant Whether information will provide substantial evidence; Extent to which disclosure is necessary for a full defence; Likelihood outcome will be affected; Public interest in access to effective counselling; Public interest in adequate counselling records; Likelihood, nature and extent of potential harm to complainant; Any other relevant matter
Is court inspection of documents required or discretionary?   For the purpose of determining an application for leave the court may inspect the document Preliminary examination may be made only if court is satisfied the applicant has proved a legitimate forensic purpose
Is notice required? Consent of complainant is required The applicant must give 14 days written notice other parties, the informant and the medical practitioner or counsellor if not a party Court must notify the applicant and each other party when the application is going to be heard in court
Significance of complainant's consent to disclosure The confidential communication cannot be admitted as evidence unless the alleged victim consents to disclosure Disclosure permitted with consent of the confider, or of an appropriate person where complainant is under 14 Disclosure permitted with express consent of an adult complainant in writing Consent by or on behalf of a child witness not permitted
Circumstances in which protection can be lost Not addressed Communications in the commission of a fraud, perjury or an act giving rise to a civil penalty Communications as part of a fraud, offence or an act giving rise to a civil penalty
Additional orders the court can make if disclosure is ordered Not addressed Orders designed to limit harm to complainant closing the court to the public while the protected evidence is disclosed; Orders suppressing publication; Orders about disclosure of the identity of the confider or practitioner Orders designed to limit the harm caused by disclosure including: Orders closing the court to the public while protected evidence is disclosed; Orders for production, inspection and copying which may be necessary for safety and welfare; Orders suppressing publication; Orders restricting access to identities of people mentioned in documents
TABLE 6: Sexual offences against close relatives
  ACT NSW NT QLD
Legislative provisions s62 Crimes Act 1900 s 78 Crimes Act S 134 Criminal Code Act 1983 s 222 Criminal Code Act
Name of offence Incest Incest Incest Incest
Sexual conduct addressed Sexual intercourse Sexual intercourse Sexual intercourse Carnal knowledge
Relationships addressed Lineal descendants Siblings half siblings stepchildren Close family member aged 16 or older who has been a family member since birth. Parent Child Sibling Half Sibling Grandparent Grandchild Close family member who has been a family member since birth. Parent Grandparent Lineal descendant Sibling Half sibling Lineal descendant Half-, adoptive or step-lineal descendant Sibling Half-, adoptive or step-sibling Parent Grandparent Uncle/Aunt Nephew/Niece
Mental state Knowledge of the family relationship None stated None stated Knowledge of the family relationship, or a relationship of that type
Defences Coercion Not realising that the other person was related Coercion Coercion Lawful marriage Entitlement to be lawfully married
Other   A person on trial for sexual assault or aggravated sexual assault may be found not guilty of the sexual assault but guilty of incest Sexual offences against people under 16 covered by separate offences   Includes step-relationships arising from de facto relationships, fostering and other legal arrangements Excludes step relationship beginning after those involved became adults
Table 6 continued.
  SA TAS VIC WA
Legislative provisions s 72 Criminal Law Consolidation Act s 133 Criminal Code Act s 44 Crimes Act 1958 s 329 Criminal Code Act 1913
Name of offence Incest Incest Incest Sexual offences by relatives
Sexual conduct addressed Sexual intercourse Sexual intercourse Sexual intercourse Sexual penetration of a person over 18 Consent to sexual penetration by a person 18 or over
Relationships addressed Parent Child Sibling Lineal ancestor Lineal descendant Siblings Half-siblings Lineal descendant Step-child Lineal descendant or step child under 18 of de facto spouse Sibling Half sibling Lineal ancestor or step parent (in the case of a person over 18 years) Lineal ancestor Lineal descendant Sibling Half-siblings
Mental state None stated Knowledge of the family relationship Knowledge of the family relationship Knowledge of the family relationship
Defences None stated None stated Coercion None stated
Other   Explicitly includes ancestors and descendants related by blood rather than marriage   Explicitly includes half-relationships, blood relationships and relationships established by written law Sexual offences against people under 16 covered by separate offences