Page 5254 - Week 13 - Tuesday, 15 November 2011
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change the law of evidence applying for the territory. The act as established implements the bulk of the uniform evidence law which had been implemented by the commonwealth.
While the commonwealth has implemented the bulk of the law, there are a number of agreed reforms that have not yet been implemented. Accordingly, these reforms have not been part of the territory’s law to date. Through implementing these reforms in the territory, this bill will ensure that the ACT fulfils its commitment to uniformity in evidence law. It will also bring our evidence law more closely into line with legislation in New South Wales, Victoria and Tasmania.
The most significant of these reforms is the establishment of the uniform professional confidential relationship privilege. This 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.
It is important to clarify that the privilege is not analogous to the more commonly known client legal privilege or legal professional privilege. In no way is the professional confidential relationship privilege an extension of client legal privilege.
Client legal privilege affords an absolute protection because it is always in the interests of justice that a client knows that any facts relating to past events revealed to a lawyer will remain confidential. The professional confidential relationship privilege, on the other hand, is not a “true” privilege. It only gives the court a discretion to direct that evidence not be adduced where it would involve the disclosure of a protected confidence. It acknowledges that it may be in the interests of justice to protect the confidentiality of a particular relationship in the circumstances of the case.
The courts will exercise a guided discretion to exclude evidence 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 exercising its discretion, the court is also 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.
During consultation, the Law Society raised a concern that the privilege provides the courts with an unguided discretion to direct that evidence not be adduced, in addition to a guided discretion. It is clear that the privilege was only ever intended to involve one discretion. In exercising this one discretion, the court is to be guided by a number of factors listed in the legislation in determining whether the evidence that would be caused through disclosure outweighs the desirability of the evidence being given. A review of the case law in New South Wales indicates that this is how the privilege has been interpreted since it was established there in 1997.
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