Legislative Assembly for the ACT: 2011 Week 09 Hansard (Thursday, 25 August 2011) . . Page.. 3856 ..
implement amendments to the model law endorsed by attorneys-general in 2010. These amendments have yet to be adopted by the commonwealth.
The ACT’s new Evidence Act does not currently establish the model professional confidential relationship privilege, as this has not been implemented by the commonwealth. In keeping with the government’s commitment to uniformity in evidence law, this bill will now establish the model privilege in the territory.
The privilege is designed to protect communications from disclosure where one of the parties involved is a professional and is acting under an obligation not to disclose the communications. This protection will extend to a wide range of professions, including doctors and other health professionals, journalists, social workers and professionals in other relationships where confidentiality is key.
The bill will provide the court with a guided discretion to exclude evidence of a confidential communication. The evidence must be excluded if it is likely that harm would, or might, be caused to the person who imparted the confidence and the nature and extent of that harm outweighs the desirability of having the evidence given.
In determining whether to exclude the evidence, the court will be guided by a list of specific matters set out in the act. These factors include, among others, the probative value and importance of the evidence, the nature of the proceeding, the availability of other evidence and the likely effect of adducing the evidence.
By establishing the privilege, which received the support of key ACT stakeholders, the ACT will be consistent with other participating uniform evidence jurisdictions, including New South Wales and Tasmania.
In the 2005 review of the uniform evidence law, there were a number of issues identified that were not addressed in the amendments which were endorsed by attorneys-general in 2007. In 2010, following further consideration and consultation, attorneys-general agreed to a small number of amendments to the uniform law to address these issues.
At this stage, the commonwealth has not incorporated these amendments into the commonwealth evidence law operating in the territory. Therefore, these amendments are not currently part of ACT law. By including these amendments in this bill, key stakeholders were given the opportunity to consider the appropriateness of these new evidence provisions applying in the territory.
The amendments include an expanded definition of “unavailability of people” in the dictionary to address concerns raised in the 2005 review of uniform evidence law that the law failed to take into account circumstances when requiring a person to give evidence may cause that person serious emotional or psychological harm. The bill expands the definition to provide that a person is unavailable if the person is mentally or physically unable to give the evidence and it is not reasonably practical to overcome the inability.