As the peak national body of the legal profession, the Law Council faces a mighty challenge:  distilling the views of 104,000 lawyers, sixteeen constituent bodies and the nation’s largest law firms.

On some issues this must be difficult. But when it comes to the core doctrines of the rule of law, the Law Council has proven itself to be a champion of principle.

Adherence to those ideals is most difficult - and important - when it means taking a stand that is not in line with the political fashion of the day.

And so it is with the Law Council’s response to an inquiry that, according to the federal government, is aimed at “improving the experience” of complainants in sexual assault cases.

That is how the goal of this inquiry was described in a joint press release issued on January 23 by attorney-general Mark Dreyfus, social services minister Amanda Rishworth and minister for women Katy Gallagher.

The inquiry is concerned with how the justice system deals with issues of sexual violence and is being conducted by the Australian Law Reform Commission.

Unfortunately it has been given terms of reference that instruct the commission to consider discussions that took place at a ministerial-level meeting on August 23 last year.

This where it could run off the rails.

 The report of last year’s meeting says “the participants discussed the need for the inquiry to consider overhauling long-standing legal principles where needed. This included the defendant’s right to silence.”

The report does not reveal who favoured overhauling the right to silence, nor does it reveal who liked the idea of a new tribunal system for sexual assault cases “comprising one member of the public, one judge and one person with specialist training in the area.”

These omissions mean the proposals are effectively anonymous. They could have come from anyone at the meeting.

That should undermine the weight attached to them by the Law Reform Commission, despite the fact that the report says the participants included Dreyfus, Gallagher, Rishworth, most state attorneys-general, bureaucrats and community activists.

Instead of considering ideas from people who have not put their names to their proposals, the commission should instead look carefully at what the Law Council has to say.

Its submission makes the necessary point that those who have experienced sexual violence should be properly supported when they seek help.

It also supports reasonable and proportionate adjustments to the criminal trial process. But it draws the line at eroding fundamental principles.

    “The presumption of innocence, the right to silence, the right to a trial by jury, the burden of proof resting on the prosecution, and the criminal standard of proof (beyond reasonable doubt) are all essential to the integrity of the
criminal justice system,” the Law Council says.

     “There is a substantial risk that any dilution of these core
principles will result in the community losing confidence that the criminal justice system can provide an accused person with a fair trial.”

Skewing the balance in criminal justice in order to achieve a pre-determined outcome is a sign of a society that is prepared to sacrifice human rights.

Legislatures have been grappling for years with how to take account of the legitimate interests those who claim to be victims of sexual assault while maintaining the rigour of the way the courts dispense justice.

Getting this wrong can cause immense harm - which is exactly what happened in the flawed conviction of the late Cardinal George Pell.

Relevant evidence about the complainant in that case was kept from the jury by virtue of legislation that was put in place to protect those who claim to be victims of sexual assault.

The intention was noble. The result was catastrophic.

The Pell jury was never told that the complainant had a history of psychological problems that required treatment. 

Nor were they told that Pell’s legal team was rebuffed in court in the absence of the jury when they attempted to gain access to records showing the extent of the complainant’s psychological problems.

In a case that depended entirely on the credibility of the complainant, this evidence might have led to a different outcome - and prevented Pell from spending 13 months and 10 days in prison for a crime he did not commit.

Much of the odium about the Pell affair has been directed to the Victorian justice system.

 But it should also be directed to state politicians who skewed the rules of evidence by introducing section 32D of that state’s Evidence (Miscellaneous Provisions) Act.

This provision changed the balance in favour of those who allege they are victims of sexual assault.

It meant the jury in the Pell case was deliberately kept in the dark about evidence that was clearly relevant.

This episode only came to light in the cardinal’s special leave application to the High Court.

That application says: “The appplicant (Pell) could not tell the jury that the complainant had had psychological treatment and the applicant had been denied the ability to obtain records of it”.

Pell’s defence team should have been free - with judicial permission - to explore the full extent of the complainant’s psychological problems. Had he, for example, ever suffered from delusions?

Section 32D is what can happen when politicians allow the interests of justice to become subservient to the goal of “improving the experience” of complainants.

The future of the sexual assault communications privilege which is reflected in section 32D is one of the bellwhether issues at this inquiry.

If the right to a fair trial means anything, this privilege needs reform.