Lewis, Melissa --- "Privileging Confidential Communications: the Uniform Evidence Act Inquiry" [2005] ALRCRefJl 32; (2005) 87 Australian Law Reform Commission Reform Journal 61

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Reform Issue 87 Summer 2005/06

This article appeared on pages 61 – 64 of the original journal.

Privileging confidential communications: The uniform Evidence Act inquiry

By Melissa Lewis *

The Australian Law Reform Commission—with the New South Wales and Victorian law reform commissions—has completed an 18-month inquiry into the uniform Evidence Acts.¹ At the time of print, the report was under embargo, awaiting tabling in the Commonwealth, NSW and Victorian parliaments, preventing disclosure of the final recommendations. One of the key areas under review, Melissa Lewis writes, was the law of privilege.

In mid-2005, two Victorian journalists, Michael Harvey and Gerard McManus, were charged with contempt for refusing to disclose the identity of a source in criminal proceedings against a former public servant alleged to have leaked confidential government documents. A privilege exists in NSW allowing journalists to protect the identity of their source,² however, such protection is not available in other states and territories or in the federal jurisdiction. The Federal Attorney-General, Philip Ruddock, unsuccessfully sought to intervene in the contempt proceedings, arguing that the court should exercise its discretion to dismiss the charges against the journalists in light of the proposal in the joint Discussion Paper (DP 69) of the Australian Law Reform Commission (ALRC), the New South Wales Law Reform Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC)³—released in July 2005—to introduce a qualified professional confidential relationship privilege into the Evidence Act 1995 (Cth). In the submission, Mr Ruddock expressed support for the Commissions’ proposal, stating that such confidential communications should be protected except where disclosure is necessary in the interests of justice.⁴ In response to the Harvey-McManus contempt case, Mr Ruddock and the Attorney-General of Victoria, Rob Hulls, have signalled the need for uniform evidence laws in all Australian jurisdictions that offer greater protection to journalists and other professionals whose codes of ethics and professional responsibilities impose a duty of confidentiality.⁵

Unsurprisingly, the case has received significant media attention, fuelling the movement for reform in this area.

The law of privilege

The law of privilege accords individuals the right to resist the otherwise compulsory disclosure of confidential information. The existence of a privilege does not make the evidence inadmissible per se, however the end result of a successful claim to privilege is the withholding from the court of otherwise admissible evidence. The law of privilege constitutes a derogation from the general principle that all relevant evidence should be available for the court’s consideration, and hence the scope and application of the privilege doctrine are the subject of contention.

The common law has traditionally been loath to exclude evidence other than where necessary to ensure the fair and effective administration of justice. Hence the only relationship in respect of which the common law recognises a privilege is that between lawyer and client,⁶ the rationale being that it is a fundamental requirement of the justice system that individuals be able to make full and frank disclosure to their legal representatives without fear that the information communicated will be disclosed to an opponent. The High Court has distinguished this privilege (known at common law as ‘legal professional privilege’) on the grounds that it is integral to the operation of the rule of law⁷ and constitutes a ‘practical guarantee of fundamental, constitutional or human rights’.⁸ The common law affords no protection to communications made in the course of other professional confidential relationships, such as communications between doctor and patient, counsellor and client, or journalist and source.

In recognition of other public policy grounds upon which it may be argued that a court’s access to otherwise admissible evidence should be limited, legislation in a number of jurisdictions has extended the doctrine of privilege to other confidential relationships. There now exist in some jurisdictions privileges in respect of medical communications,⁹ sexual assault communications¹⁰ and religious confessions.¹¹ Uniform Evidence Act jurisdictions afford absolute privileges in respect of communications between lawyer and client¹² and religious confessions.¹³ The Evidence Act 2001 (Tas) contains additional privileges in respect of sexual assault communications and medical communications,¹⁴ and the Evidence Act 1995 (NSW) contains additional privileges in respect of sexual assault communications and professional confidential relationships.¹⁵ New South Wales is the only jurisdiction to provide a broad discretionary privilege in respect of communications made in the course of a professional confidential relationship.

Rationale for the privilege

As highlighted by the Harvey-McManus contempt case, there is an ongoing tension between the codes of ethics and professional responsibilities of many professions in Australia and the legal duty to reveal confidential information to the courts. The public disclosure of information imparted to a professional in confidence can have a number of negative consequences. The confider may suffer high levels of distress and humiliation or may be subject to harassment, threats to physical safety or financial ruin. The professional may be in breach of his or her code of ethics and subject to either formal or informal sanctions. On a broader level, the absence of a guarantee of confidentiality may discourage individuals from seeking professional assistance or advice, or from making disclosures that would expose corruption or maladministration in government.

In its original evidence inquiry, the ALRC recognised that there are many professional relationships in respect of which a public interest in maintaining confidentiality can be established.¹⁶ In light of the competing policy considerations involved and the controversial nature of the proposal to extend protection to a broad category of relationships, the ALRC proposed the creation of a broad discretionary privilege to cover confidential professional relationships:

‘The public interest in the efficient and informed disposal of litigation in each case will be balanced against the public interest in the retention of confidentiality within the relationship and the needs of particular and similar relationships.’¹⁷

While this proposal was not adopted at the time the uniform Evidence Acts were enacted, the NSW Act was amended to include this privilege in 1997.¹⁸

The NSW professional confidential relationship privilege

Section 126B of the Evidence Act 1995 (NSW) provides the court with a discretion to direct that evidence not be adduced where it would involve the disclosure of a protected confidence. For the purposes of the section, ‘protected confidence’ is defined as a communication made by a person in confidence to another person (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.¹⁹

The professional confidential relationship privilege covers a wide range of confidential communications, including confidences imparted to medical and health professionals, counsellors, social workers, journalists, and any other relationship where confidentiality may be an integral element of the communication.²⁰

Prior to directing that evidence of a protected confidence not be adduced, the court must be satisfied that:

(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced; and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.²¹

In conducting the balancing test specified above, the court must take into account the matters set out in s 126B(4), including the probative value of the evidence in the proceeding, the nature and gravity of the relevant offence, and the likely effect of adducing evidence of the protected confidence (including the nature, extent and likelihood of harm to the confider).

Proposal for reform

The Commissions expressed their support in DP 69 for the uniform introduction of a qualified professional confidential relationship privilege on the same basis as it was proposed in the original evidence inquiry.²² Given that submissions and consultations indicate that the NSW provisions are working well, the Commissions proposed that, subject to the extension of their application to pre-trial procedures, the NSW provisions should be included in the Evidence Act 1995 (Cth).²³

In light of the Harvey-McManus contempt case and statements by the Federal Attorney-General in support of such amendment, this proposal received significant attention in submissions to the Inquiry and in the media generally. The Commissions received numerous submissions in support of the proposal, primarily for the reasons outlined in DP 69. Many submissions emphasised the importance of the ability of journalists to protect the identity of their sources and the public interest in the free flow of information in the media to encourage political discussion and scrutinise the democratic process.

Some submissions opposed the extension of the privilege on the ground that the rationale underpinning client-legal privilege does not apply to other professional relationships. It was argued that it is not a fundamental requirement of the justice system that such communications be protected, and therefore that the exclusion of such evidence where otherwise relevant and admissible is not justified. It was also argued that the extension of the privilege to other professional relationships could create avenues for abuse, hindering criminal and other investigations. This risk was attributed to the fact that, unlike lawyers, other professionals do not have an overriding duty to the court. It was further argued that if the privilege is to be extended beyond the lawyer-client relationship, such extension should be confined to particular areas, such as sexual assault counselling and medical communications, but should not be extended to include business and commercial areas.

A more detailed discussion of the professional confidential relationship privilege and related topics is contained in the final report.

The Evidence Inquiry

In July 2004, the Attorney-General of Australia asked the ALRC to examine the operation of the Evidence Act 1995 (Cth). The legislation is based on a uniform Evidence Act scheme, implemented by the Commonwealth, NSW, Tasmania, the Australian Capital Territory and Norfolk Island.

The uniform Evidence Acts are the product of a previous ALRC inquiry, completed in 1987. In this latest inquiry, the ALRC was asked to consider whether any refinement of the uniform Evidence Act scheme was needed, based on 10 years’ experience with its use.

Key issues for the inquiry were:

• the examination and re-examination of witness;

• the hearsay rule and its exceptions;

• the opinion rule and its exceptions;

• the coincidence rule;

• the credibility rule and its exceptions; and

• the application of the rules of evidence contained in the Evidence Act to pre-trial procedures.

The ALRC has worked closely with the NSWLRC and VLRC, producing a joint final report which was delivered to the Commonwealth, NSW and Victorian Attorneys-General on 5 December 2005.

During the course of the inquiry, ongoing consultative relationships were also developed with the Queensland Law Reform Commission, the Northern Territory Law Reform Committee, the Tasmania Law Reform Institute and the Law Reform Commission of Western Australia. The participation of the state and territory agencies in this inquiry has produced real momentum for reform of evidence laws in Australia and renewed hope that a truly national evidence scheme can be introduced.

At the time of print, the report was under embargo pending tabling in the three parliaments. Once tabled, it will be available for free download from www.alrc.gov.au or by contacting the ALRC.

* Melissa Lewis is a Legal Officer at the Australian Law Reform Commission.

Endnotes

1. In this article, reference to the ‘uniform Evidence Acts’ means the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2004 (NI). Where it is necessary to differentiate between the statutes, this will be done expressly.

2. The NSW provision is discussed below.

3. Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005).

4. P Ruddock (Attorney-General), ‘Submissions Lodged in Journalist Contempt Case’ (Press Release, 4 November 2005).

5. See M Schubert, ‘Ruddock Helps Out Contempt Journos’, The Age (online), 5 November 2005, <www.theage.com.au> at 25 November 2005.

6. Note that the common law provides other privileges, such as the privilege against self-incrimination, however the relevant consideration here is communications between persons in the course of a professional confidential relationship.

7. Carter v The Managing Partner Northmore Hale Davy and Leake (1995) 183 CLR 121, 128.

8. Ibid, 161.

9. Evidence Act 1939 (NT) s 12; Evidence Act 2001 (Tas) s 127A; Evidence Act 1958 (Vic) s 28.

10. Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 54; Criminal Procedure Act 1986 (NSW) ss 296–396; Evidence Act 1995 (NSW) pt 3.10 div 1B; Evidence Act 1939 (NT) s 56; Evidence Act 1929 (SA) ss 67D–67F; Evidence Act 2001 (Tas) s 127B; Evidence Act 1958 (Vic) div 2A ss 32B–32G; Evidence Act 1906 (WA) ss 19A–19L.

11. Uniform Evidence Acts s 127; Evidence Act 1958 (Vic) s 28(1); Evidence Act 1939 (NT) s 12.

12. Uniform Evidence Acts pt 3.10 div 1.

13. Ibid s 127.

14. Evidence Act 2001 (Tas) ss 127A, 127B.

15. Evidence Act 1995 (NSW) pt 3.10 divs 1A, 1B.

16. Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [911].

17. Ibid, [955]. See also Australian Law Reform Commission, Evidence, ALRC 38 (1987), xxi. Similarly, in 1993 the Law Reform Commission of Western Australia recommended the enactment of a general discretion to protect information disclosed in the course of a confidential relationship. The recommendation was based on s 35 of the Evidence Amendment Act (No 2) 1980 (NZ) and was similar to the ALRC’s recommendation, proposing that the court weigh the public interest in having the evidence disclosed against the public interest in the preservation of confidentiality between the confider and the professional: Law Reform Commission of Western Australia, Professional Privilege for Confidential Relationships Project No 90 (1993), 129–130.

18. The NSW Attorney General made a recommendation in 1996 similar to that made by the ALRC in the original evidence Reports: see Attorney General’s Department (NSW), Protecting Confidential Communications from Disclosure in Court Proceedings, DP (1996).

19. Evidence Act 1995 (NSW) s 126A.

20. NSW, Legislative Council, Debates (22 October 1997), 1121; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [956].

21. Evidence Act 1995 (NSW) s 126B(3).

22. See Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [918]. Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.205].

23. Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–7.