14.1 A privilege is essentially a right to resist disclosing information that would otherwise be required to be disclosed.[1] Privileges are generally established as a matter of public policy. For example, client legal privilege is premised on the principle that it is desirable for the administration of justice for clients to make full disclosure to their legal representatives so they can receive fully informed legal advice. Privileges are not only available as part of the rules of evidence, but can also apply outside court proceedings as a substantive doctrine wherever disclosure of information may be compelled, including by administrative agencies.[2] Therefore, privilege may be claimed in the production of documents before a trial (including with respect to an application for discovery or the issue of a subpoena), the answering of interrogatories, the giving of testimony or in the course of an administrative investigation.

14.2 Under the Evidence Act 1995 (Cth), the following privileges are available:

  • client legal privilege;[3]

  • privilege in respect of religious confessions;[4] and

  • privilege in respect of self-incrimination in other proceedings.[5]

14.3 In addition, there are three types of evidence which may be excluded in the public interest:

  • evidence of reasons for judicial decisions;[6]

  • evidence of matters of state (public interest immunity);[7] and

  • evidence of settlement negotiations.[8]

14.4 The Evidence Act 1995 (NSW) contains these and two additional privileges: a professional confidential relationship privilege and a sexual assault communications privilege.[9] The Evidence Act 2001 (Tas) has the same privileges as the Commonwealth Act. It also contains two additional privileges, ss 127A and 127B, which respectively cover medical communications and communications to a counsellor (by a victim of a sexual offence in the course of receiving counselling or treatment for any harm suffered in connection with the offence). Section 127A operates only in civil proceedings and s 127B operates only in criminal proceedings.

14.5 The privileges under the uniform Evidence Acts (with the exception of s 127, which concerns religious confessions) apply only to the adducing of evidence, thus separating the privilege rules under the legislation from the application of the common law in pre-trial evidence gathering processes such as discovery and subpoenas. The Terms of Reference of the previous Evidence inquiry limited the extent to which the ALRC could deal with privileges in the pre-trial context.

14.6 This chapter discusses the effect of the limitation of the privilege provisions of the unifom Evidence Acts to the adducing of evidence at trial and the potential ways in which the Acts could be applied to pre-trial proceedings. The chapter then recommends amendments to some of the client legal privilege sections with the aim of clarifying unclear terms or, in some cases, aligning the Acts with developments at common law that are supported by the Commissions. The remaining privileges are discussed in Chapter 15.

[1] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 91.

[2]Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Sorby v Commonwealth (1983) 152 CLR 281; Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 35 FCR 466.

[3] Evidence Act 1995 (Cth) Pt 3.10, Div 1.

[4] Ibid s 127.

[5] Ibid s 128.

[6] Ibid s 129.

[7] Ibid s 130.

[8] Ibid s 131.

[9]Evidence Act 1995 (NSW) Pt 3.10, Div 1A and Div 1B (applying to civil matters only). The sexual assault communications privilege available in criminal proceedings is in Chapter 6 of the Criminal Procedure Act 1986 (NSW). These provisions are discussed in Ch 15.