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Communications) Bill 1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
Privilege in respect of self-incrimination protects a witness from disclosure of
self-incriminatory evidence (section 128). Evidence of reasons for judicial
decisions, matters of state and settlement negotiations may be excluded on
public policy grounds (sections 129-131).
* Amended in committee--see table at end of volume.
The object of this Bill is to amend Part 3.10 of the Evidence Act 1995 so as to
expand the categories of privilege that may prevent evidence being adduced
to include:
(a)
evidence protected from disclosure on the ground that it concerns a
confidential communication made to a confidant acting in a
professional capacity in circumstances in which the confidant was
under an express or implied obligation not to disclose its contents, a
document recording such a communication or information about the
identity of the maker of the confidential communication, and
(b) evidence protected from disclosure on the ground that it concerns a
confidential communication or a document recording such a
communication made in the course of a relationship in which a person
against whom a sexual assault offence has been committed, or has
been alleged to be committed, is being treated by a counsellor for any
emotional or psychological condition.
Under section 134 of the Evidence Act 1995, evidence that because of Part
3.10 must not be adduced or given in a proceeding is inadmissible in the
proceeding.
Creation of the new categories of privilege for these kinds of confidential
communications will also provide a ground for a person to object to the
production of a document by subpoena on the ground that to do so would
disclose such a communication (see, for example, rule 13 of Part 36 of the
Supreme Court Rules 1970).
Section 132 of the Evidence Act 1995 will require a court to be able to satisfy
itself that a witness or party is aware of his or her rights to claim either of the
new privileges if it appears that the witness or party may have a ground for
making an application under the proposed provisions.
Section 133 of the Evidence Act 1995 gives a court the power to order the
production of, and inspect, any document in respect of which a claim for
privilege is made under Part 3.10.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendment to the
Evidence Act 1995 set out in Schedule 1.
Schedule
1 inserts proposed Divisions 1A (sections 126A-126F) and 1B
(sections 126G-126L) into Part 3.10 of the Evidence Act 1995.
Explanatory note page 2
Division 1A Professional confidential relationship privilege
Division l A sets out the grounds for claiming that evidence should not be
required to be adduced described in paragraph (a) of the Overview of this
Bill.
Division 1A will enable claims such as the claim of a doctor to refuse to
answer questions about his or her patients and the claim of a journalist to
refuse to disclose his or her sources to be tested.
Proposed section 126A defines terms (including protected confidence,
protected confider and protected identity information) for the purposes of
Division 1A. A protected confidence is a communication made by a person
in confidence to another person (in Division
1A called the confidant):
(a)
in the course of a relationship in which the confidant was acting in a
professional capacity, and
(b)
when the confidant was under an express or implied obligation not to
disclose its contents, whether or not the obligation arises under law or
can be inferred from the nature of the relationship between the person
and the confidant.
Protected identity information is information about, or enabling a person to
ascertain, the identity of the person who made a protected confidence.
Proposed section 126B enables a court to direct that evidence not be adduced
in a proceeding if the court finds that adducing it would disclose a protected
confidence, the contents of a document recording a protected confidence or
protected identity information. The court will be required to give such a
direction if it is satisfied that if the evidence is adduced it is likely that harm
would or might be caused (whether directly or indirectly) to a protected
confider and that the nature and extent of the harm outweighs the desirability
of the evidence being given.
A court will be able to ensure that any part of a communication or document
that should not be disclosed is not adduced.
The court may give such a direction on its own initiative or on the application
of the protected confider or confidant concerned (whether or not either is a
party).
Proposed section 126B (4) sets out some of the matters the court may take
into account in determining whether to exclude evidence. These include, for
example, the probative value of the evidence in the proceeding, the nature of
the subject matter of the proceeding and the importance of the evidence.
Explanatory note page 3
Proposed sections 126C and 126D set out some circumstances when the
proposed Division will not prevent the adducing of evidence. Evidence will
be able to be adduced with the consent of the protected confider concerned.
Professional confidential relationship privilege will be lost for
communications made and documents prepared in the furtherance of a fraud,
an offence or an act that renders a person liable to a civil penalty.
Proposed section 126E gives some examples of ancillary orders that a court
may make to limit the harm, or extent of the harm, that may be caused if
evidence of a protected confidence or protected identity information is
disclosed.
Proposed section 126F provides for the application of the Division. It makes
it clear that the Division does not apply in relation to a proceeding the
hearing of which began before the commencement of the Division but applies
to protected confidences made whether before or after the commencement.
The court will be able to give a direction under the Division in respect of a
protected confidence or protected identity information whether or not the
confidence or information is privileged under another section of Part 3.10 or
would be so privileged except for a limitation or restriction imposed by that
section. For example, existing section 127 of the Evidence Act 1995 entitles
members of the clergy to refuse to divulge the contents of communications
made to them in their professional capacity but is limited to communications
made as religious confessions. The proposed Division will enable clergy to
object to disclosure of confidences made to them other than confessions.
Division 1B Sexual assault communications privilege
Division 1B sets out the grounds for claiming that evidence should not be
adduced described in paragraph (b) of the Overview of this Bill.
Division 1B provides a means for testing claims to privilege such as the
claim of a sexual assault counsellor to refuse to disclose notes made in the
course of counselling sessions with a victim of sexual assault.
Proposed section 126G defines the terms protected confidence, protected
confider, protected counselling communication, protected identity
information and sexual assault offence.
A protected counselling communication is a communication made by a
person in confidence to another person (in Division 1B called the counsellor)
in the course of a relationship in which the counsellor is treating the person
for any emotional or psychological condition.
Explanatory note page 4
A protected confidence is a protected counselling communication made by a
person against whom a sexual assault offence has been, or is alleged to have
been, committed, whether before or after the acts constituting the offence
occurred or are alleged to have occurred.
A protected confider is a person who makes a protected confidence.
Protected identity information is information about, or enabling a person to
ascertain, the address or telephone number of a protected confider or a
counsellor of a protected confider.
A sexual assault offence is:
(a)
an offence referred to in section 578 of the Crimes Act 1900, or
(b)
an offence prescribed by the regulations for the purposes of this
definition.
Proposed section 126H prevents evidence of a protected confidence or the
contents of a document recording such a confidence from being adduced
unless the court gives leave to adduce the evidence. The court must not give
leave unless it is satisfied that:
(a)
the evidence will, either by itself or having regard to other evidence
adduced or to be adduced by the party seeking to adduce the evidence,
have substantial probative value, and
(b)
other evidence concerning the matters to which the protected
confidence or document relates is not available, and
(c)
the public interest in preserving the confidentiality of protected
confidences and protecting the protected confider from harm is
substantially outweighed by the public interest in admitting into
evidence information or a document of substantial probative value.
The evidence cannot be adduced unless the party seeking to adduce it has
given reasonable notice in writing of its intention to do so.
Proposed sections 126I and 126J set out some circumstances when the
proposed Division will not prevent the adducing of evidence. Evidence will
be able to be adduced with the consent of the protected confider concerned.
Sexual assault communication privilege will be lost for communications
made and documents prepared in the furtherance of a fraud, an offence or an
act that renders a person liable to a civil penalty.
Proposed section 126K gives some examples of ancillary orders that a court
may make to limit the harm, or extent of the harm, that may be caused if
evidence of a protected confidence is disclosed. The proposed section will
Explanatory note page 5
not limit the power of a court to make orders under provisions such as section
577A of the Crimes Act 1900. (Section 577A provides that a witness in a
criminal proceeding is not required to disclose his or her private, business or
official address or telephone number unless it is a materially relevant part of
the evidence or a court makes an order requiring disclosure. Such an order
can only be made if the court is satisfied that the disclosure is not likely to
present a reasonably ascertainable risk to the welfare or protection of any
person or the interests of justice outweigh the risk).
Proposed section 126L provides for the application of the Division. It makes
it clear that the Division does not apply in relation to a proceeding the
hearing of which began before the commencement of the Division but applies
to a protected confidence whether made before or after the commencement.
The court will be able to give a direction under the Division in respect of a
protected confidence whether or not the protected confidence is privileged
under another section of Part 3. 10 or would be so privileged except for a
limitation or restriction imposed by that section.
Explanatory note page 6