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This is a Bill, not an Act. For current law, see the Acts databases.


EVIDENCE (CONFIDENTIAL COMMUNICATIONS) BILL 1998

                 PARLIAMENT OF VICTORIA

 Evidence (Confidential Communications) Act 1998
                                  Act No.


                     TABLE OF PROVISIONS
Clause                                                               Page
  1.     Purpose                                                        1
  2.     Commencement                                                   2
  3.     Principal Act                                                  2
  4.     New Division 2A inserted in Part II                            2
         Division 2A--Confidential Communications                       2
         32B. Definitions                                               2
         32C. Exclusion of evidence of confidential communications      4
         32D. Restriction on granting leave                             5
         32E.   Limitations on privilege                                6
         32F.   Ancillary orders available on a granting of leave       8
         32G. Operation of Division                                     8
  5.     New section 154 inserted                                       9
         154.   Transitional provisions (Division 2A of Part II)        9
                           

NOTES                                                                  11




                                      i
532003B.I1-17/3/98

 


 

PARLIAMENT OF VICTORIA A BILL to amend the Evidence Act 1958 so as to protect from disclosure in legal proceedings confidential communications between the victim or alleged victim of a sexual offence and a medical practitioner or counsellor and for other purposes. Evidence (Confidential Communications) Act 1998 The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Evidence Act 1958 so as to protect from disclosure in legal proceedings confidential communications between 5 the victim or alleged victim of a sexual offence and a medical practitioner or counsellor. The Act enables a court to order disclosure but specifies 1 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 2 Act No. matters about which the court must be satisfied before doing so. 2. Commencement (1) Sections 1, 3 and this section come into operation 5 on the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day to be proclaimed. 10 (3) If the provisions referred to in sub-section (2) do not come into operation before 1 September 1998, they come into operation on that date. 3. Principal Act No. 6246. In this Act, the Evidence Act 1958 is called the Reprint No. 11 15 Principal Act. as at 26 June 1997. Further amended by Nos 8/1991, 4/1997, 58/1997, 81/1997, 102/1997 and 108/1997. 4. New Division 2A inserted in Part II After Division 2 of Part II of the Principal Act insert-- 'Division 2A--Confidential Communications 20 32B. Definitions (1) In this Division-- "confidential communication" means a communication, whether oral or written, made in confidence by a person 25 against whom a sexual offence has been, or is alleged to have been committed to a registered medical 2 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 4 Act No. practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether 5 before or after the acts constituting the offence occurred or are alleged to have occurred; "counsellor" means a person who is treating a person for an emotional or 10 psychological condition; "harm" includes actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or psychological harm (such as shame, 15 humiliation or fear); "protected confider" means a person who made a confidential communication; "protected evidence" means evidence that is protected from being adduced by 20 section 32C(1); "protected identity information", in relation to a person, is information about, or enabling a person to ascertain, the address (including a private, 25 business or official address) or telephone number (including a private, business or official telephone number) of the person; "registered medical practitioner" means a 30 registered medical practitioner within the meaning of the Medical Practice Act 1994; "sexual offence" means an offence to which clause 1 of Schedule 1 to the 35 Sentencing Act 1991 applies. 3 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 4 Act No. (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is 5 necessary to facilitate communication or further the treatment or counselling process. 32C. Exclusion of evidence of confidential communications (1) Evidence is not to be adduced in a legal 10 proceeding if it would disclose-- (a) a confidential communication; or (b) the contents of a document recording a confidential communication-- unless the court grants leave to adduce it and 15 the party seeking to have it adduced has given notice of their intention in accordance with sub-section (2). (2) A party seeking to adduce protected evidence must, not less than 14 days before 20 the evidence is proposed to be adduced, give notice in writing of their intention to-- (a) each other party to the proceeding; and (b) in the case of a criminal proceeding, the informant; and 25 (c) the medical practitioner or counsellor, as the case requires, if not a party. (3) The court may-- (a) fix a period of notice shorter than that referred to in sub-section (2); or 30 (b) waive the requirement to give notice under sub-section (2). (4) On receipt of a notice under sub-section (2)(b), the informant must give a copy of the 4 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 4 Act No. notice to the protected confider within a reasonable time after its receipt. (5) Whether or not notice has been given under sub-section (2) or (4), the medical 5 practitioner or counsellor, as the case requires, and the protected confider may, with the leave of the court, appear in the proceeding and make submissions. (6) For the purpose of determining an 10 application for leave under sub-section (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave. 15 (7) Evidence that, because of sub-section (1), is not to be adduced in a legal proceeding is not admissible in the proceeding. 32D. Restriction on granting leave (1) A court must not grant leave to adduce 20 protected evidence unless it is satisfied, on the balance of probabilities, that-- (a) the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party 25 seeking to adduce it, have substantial probative value to a fact in issue; and (b) other evidence of similar or greater probative value concerning the matters to which the protected evidence relates 30 is not available; and (c) the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is 35 substantially outweighed by the public 5 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 4 Act No. interest in admitting, into evidence, evidence of substantial probative value. (2) Without limiting the matters that the court may take into account for the purposes of 5 sub-section (1)(c), the court must take into account the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is adduced. 10 (3) Leave may be granted to adduce evidence of part of-- (a) a confidential communication; or (b) the contents of a document recording a confidential communication-- 15 and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to adduce it in evidence. 20 (4) The court must state its reasons for giving or refusing to give leave under this section. (5) If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any. 25 32E. Limitations on privilege (1) This Division does not prevent the adducing of evidence-- (a) with the consent of the protected confider or, if he or she is under 30 14 years of age, with the consent of any person whom the court regards as being an appropriate person to give that consent; or 6 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 4 Act No. (b) of information acquired by a registered medical practitioner by physical examination (including communications made during the 5 examination) of the protected confider in relation to the commission or alleged commission of the sexual offence; or (c) of a communication made, or the contents of a document prepared, for 10 the purpose of a legal proceeding arising from the commission or alleged commission of the sexual offence; or (d) of a communication made, or the contents of a document prepared, in the 15 furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or (e) of a communication made if it is 20 evidence of the commission of an offence of wilful and corrupt perjury. (2) For the purposes of sub-section (1)(d), if the commission of the fraud, offence or act is a fact in issue and there are reasonable 25 grounds for finding that-- (a) the fraud, offence or act was committed; and (b) a communication was made or document prepared in furtherance of 30 the commission of the fraud, offence or act-- the court may find that the communication was so made or document so prepared. (3) If consent to the adducing of evidence is not 35 given under sub-section (1)(a), that fact must 7 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 4 Act No. not be referred to in the presence of the jury, if any. 32F. Ancillary orders available on a granting of leave 5 Without limiting any action that the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of protected evidence, the court may-- 10 (a) order that all or part of the evidence be heard in camera; or (b) make such orders relating to the suppression of publication of all or part of the evidence given before the court 15 as, in its opinion, are necessary to protect the safety or welfare of the protected confider or the registered medical practitioner or counsellor, as the case requires; or 20 (c) make such orders relating to disclosure of protected identity information as, in the opinion of the court, are necessary to protect the safety or welfare of the protected confider or the safety of the 25 registered medical practitioner or counsellor, as the case requires. 32G. Operation of Division (1) Nothing in this Division affects the operation of-- 30 (a) section 28, 37, 37A, 39 or 40; or (b) Division 1A of Part 6 of the Sentencing Act 1991. 8 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 s. 5 Act No. (2) Sub-section (1) applies whether a communication was made before or after the date on which the sexual offence was committed or alleged to have been 5 committed and whether made before or after the date on which section 4 of the Evidence (Confidential Communications) Act 1998 came into operation.'. 5. New section 154 inserted 10 After section 153 of the Principal Act insert-- "154. Transitional provisions (Division 2A of Part II) (1) The amendment of this Act made by section 4 of the Evidence (Confidential 15 Communications) Act 1998 applies to-- (a) any committal proceeding or hearing of a charge for an offence that commences on or after the commencement of that section; or 20 (b) a hearing under section 5 of the Crimes (Criminal Trials) Act 1993 that commences on or after that commencement; or (c) any trial that commences on or after 25 that commencement; or (d) any civil proceeding that commences on or after that commencement-- irrespective of when the offence to which the committal proceeding, hearing, trial or civil 30 proceeding relates is alleged to have been committed. (2) For the purposes of sub-section (1)-- 9 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 Act No. (a) a committal proceeding commences on the committal mention date; and (b) a hearing of a charge for an offence commences on the taking of a formal 5 plea from the accused; and (c) a trial commences on arraignment of the accused in accordance with Subdivision (12) of Division 1 of Part III of the Crimes Act 1958.". 10 10 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 Notes Act No. NOTES By Authority. Government Printer for the State of Victoria. 11 532003B.I1-17/3/98

 


 

Evidence (Confidential Communications) Act 1998 Act No. 12 532003B.I1-17/3/98

 


 

 


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