The need for extension of privilege

14.7 Since the commencement of the Commonwealth and New South Wales legislation in 1995, a number of appellate cases have applied the privilege provisions to discovery and inspection of documents on the basis that the uniform Evidence Acts have a derivative application to the common law.[10] However, in Mann v Carnell[11]and Esso v Commissioner of Taxation,[12] the High Court rejected this approach and found that the uniform Evidence Acts apply to the adducing of evidence only in relevant proceedings. The High Court in Esso emphasised the fact that the uniform Evidence Acts had been adopted only by the Commonwealth and certain states. To modify the common law only in those states which had adopted the uniform legislation was considered by the Court to be an unacceptable fragmentation of the common law.[13]

14.8 The introduction of the uniform Evidence Acts has thus created a situation in which two sets of laws operate in the area of privilege. The uniform Evidence Acts govern the admissibility of evidence of privileged communications and information. The common law does not apply. In all other situations the common law rules persist, unless a statute abrogates the privilege.

14.9 This has several consequences:

  • within a single proceeding different laws apply at the pre-trial and trial stages;

  • different laws also apply in determining privilege applications in the context of warrants and in reviewing decisions of bodies not bound by the uniform Evidence Acts;

  • legal practitioners are required to understand and advise on two sets of laws; and

  • individuals and bodies are subject to two legal regimes which determine their ability to resist or obtain disclosure of information. Their ability to resist or obtain disclosure of the same information may differ depending on the context in which it is sought.

14.10 This has led to criticism of the uniform Evidence Acts:

The ALRC Reports failed to come to terms in any meaningful way with the practical consequences that would flow from the enactment of detailed provisions governing privilege that would apply only to the admission of evidence once privilege had, under the different common law rules, been determined not to apply to that evidence at the pre-trial process stage.[14]

14.11 Kirby J has stated that a ‘great deal of inconvenience would be avoided if the bringing forward of evidence for use in a later trial (as by responding to an order for discovery, a subpoena or some other ancillary process) were held to fall within the Act’.[15] The Commissions agree that this is an undesirable situation and needs to be addressed. There are different ways of doing so.

Providing uniformity in the law of privilege in Australia

14.12 Common law privileges are not merely rules of evidence. Some are free standing common law rights available in all contexts to resist disclosure of information unless abrogated or altered by statute. In order to eliminate the dual regimes created by the uniform Evidence Acts and the common law without diminishing the availability of the common law privileges there are three principal options:

  • repeal the privilege provisions of the uniform Evidence Acts and replace them with a provision preserving the common law;

  • extend the reach of the uniform Evidence Act provisions to all situations in which the common law applies; or

  • remove the privilege provisions from the uniform Evidence Acts and enact a separate Privileges Act with application to all situations in which the common law applies.

14.13 Each option has its own difficulties. The first option would detract from the integrity and completeness of the uniform Evidence Acts. It would also mean the loss of the codification and structure the Acts provide in this area, and in that sense would be a backwards step. It also fails to address the issue of statutory privileges which have no common law equivalent such as the professional confidential relationship privilege and the sexual assault communications privilege.

14.14 The second option would allow uniformity in relation both to the privilege provisions of the Acts which replace common law privileges and to those which create statutory privileges. However, the option involves extending the reach of the uniform evidence Acts beyond their ordinary operation and therefore raises difficulties of drafting. In order successfully to replace the common law in all jurisdictions it would also require that the Act be taken up in all states and territories. The Commonwealth lacks power to legislate generally in this area.

14.15 The third option would eliminate some of the difficulty in drafting provisions in the uniform Evidence Acts. However, it shares the disadvantages of the first option in that it would detract from the integrity and completeness of the uniform Evidence Acts. It would also require mirror legislation to be passed in all the states and territories so as effectively to replace the common law.

14.16 While the Commissions are committed to the goal of greater uniformity and are hopeful that the uniform Evidence Acts will be taken up in all Australian jurisdictions, they must confront the practical reality that achieving ultimate uniformity of the law of privilege is dependent on matters beyond the reach of the legislative power of the governments for which this Report is prepared.

14.17 Therefore, the Commissions must consider the best means to achieve the more modest goal of increasing uniformity within uniform Evidence Act jurisdictions beyond that currently provided by the Acts. There are two interrelated issues involved:

  • how far to extend the application of the Acts; and

  • how best to achieve this.

Extending privileges in uniform Evidence Act jurisdictions

Scope of the extension of privilege

14.18 The areas in which the common law applies in uniform Evidence Act jurisdictions can be broadly categorised as follows:

  • pre-trial disclosure processes such as discovery, subpoenas and orders to deliver up documents (such as might arise on an injunction application);

  • execution of warrants, particularly those authorising seizure of documents;

  • hearings before boards of inquiry and tribunals, and disclosure processes issued by those bodies; and

  • enforcement of compulsory disclosure powers of government agencies.

14.19 Ultimately, courts are called upon to resolve disputed claims for privilege arising from their own processes, and those arising in other contexts. Therefore, in order to allow courts in uniform Evidence Act jurisdictions to apply a single set of privilege laws, the uniform Evidence Act provisions would need to extend to each of the above situations. Given the underlying policy behind the statutory privileges created by the Acts, there is a need to extend the operation of the Acts to some or all of these categories.

Federal and state legislative powers

14.20 The extension of the uniform Evidence Acts beyond their current sphere of operation raises constitutional issues, particularly in relation to the Evidence Act 1995 (Cth).

14.21 Commonwealth legislation must be supported by Commonwealth legislative power under the Australian Constitution. As presently drafted, the Evidence Act 1995 (Cth) applies in federal courts, with parts of the Act also extending more broadly to Australian courts. The application of the Act in federal courts can be supported by s 51(xxxix) of the Constitution as incidental to the power in s 71 to create federal courts. Certain sections of the Evidence Act 1995 (Cth) are given extended operation by s 5 of the Act, which provides that the sections listed therein apply in an Australian court. The provisions which have extended operation pursuant to s 5 are independently supported by separate heads of Commonwealth legislative power, such as s 51(xxv).[16]

14.22 As noted above, the Commonwealth does not have any general power to legislate with respect to privilege outside federal courts. Therefore, as with the extended operation given to sections of the Evidence Act 1995 (Cth) by s 5, any extension of the privilege provisions must be supported by some other head of Commonwealth legislative power. This can be done by confining the extension of the Evidence Act 1995 (Cth) to:

  • pre-trial disclosure processes in federal courts;

  • the execution of warrants issued under Commonwealth legislation;

  • hearings before, and any compulsory processes of, boards of inquiry and tribunals created by or under Commonwealth legislation; and

  • enforcement of compulsory disclosure powers of Commonwealth government agencies.

14.23 In this way the extended application will be supported by the same heads of legislative power which support the provisions requiring disclosure. The Commonwealth could potentially rely on other legislative powers to extend the operation of the privilege provisions to all matters in which a state court exercises federal jurisdiction. Such an extension would however, be undesirable. In Chapter 2, the Commissions argue that the best path to uniformity is through the participation of all states and territories in the uniform Evidence Acts scheme, rather than by mandating the application of the Evidence Act 1995 (Cth) to all proceedings in all Australian courts exercising federal jurisdiction.

14.24 Federal jurisdiction is enlivened in a number of ways, not all of which will necessarily be apparent at the commencement of proceedings.[17] Extending the operation of the Commonwealth privilege provisions to all matters within federal jurisdiction could lead to uncertainty in relation to the law to be applied, and, given that judicial officers and practitioners would need to be familiar with both the Acts’ provisions and the policy underlying the Acts, it could be confusing and unworkable.

14.25 The ‘autochthonous expedient’, whereby state courts are invested with federal jurisdiction,[18] has operated in Australia almost since federation. In practice, the federal judicial system has always relied heavily on the state court systems to exercise federal jurisdiction. One of the major benefits of this system is that it avoids issues of lack of jurisdiction and enables federal and non-federal issues to be considered in a single proceeding. An integral part of this arrangement has been that the laws of each state, including the laws relating to procedure, evidence, and the competency of witnesses apply to a state court exercising federal jurisdiction, except as otherwise provided by the Australian Constitution or the laws of the Commonwealth.[19] Allowing state courts to operate in the same manner regardless of whether they are hearing matters in state or federal jurisdiction avoids uncertainty and the need to consider complicated questions of jurisdiction.

14.26 It was submitted during the course of the Inquiry that it would be helpful to the Commonwealth and Commonwealth agencies to have a single law of privilege applying in whichever jurisdiction they operate.[20] Again the Commonwealth could legislate to extend the privilege provisions, or indeed the whole Commonwealth Act, to proceedings in which the Commonwealth or a Commonwealth agency is a party. However, this could undermine another long established principle that, in proceedings in which the Commonwealth is a party, the rights of parties shall as nearly as possible be the same as in a suit between subject and subject.[21]

14.27 The uniform Evidence Act states are not subject to the same legislative constraints as the Commonwealth. However, the extension of the privilege in the state Acts is limited by two factors—the broad concept of connection with the state,[22] and avoiding inconsistency with Commonwealth legislation.[23] Therefore the state legislation would need to be drafted to apply to:

  • pre-trial disclosure processes in state courts;

  • the execution of warrants issued under state legislation;

  • hearings before, and disclosure processes issued by, boards of inquiry and tribunals created by or under state legislation; and

  • compulsory disclosure powers of state government agencies.

14.28 A combination of the state and federal laws would effectively replace common law privilege within uniform Evidence Act states. The Evidence Act 1995 (Cth) would apply in federal courts and in other clearly identified circumstances.[24]

The means of extending the operation of the provisions

Court Rules

14.29 There have been attempts in uniform Evidence Act jurisdictions to extend the operation of the provisions through the use of court rules.

14.30 In New South Wales, the Supreme Court and the District Court have amended their rules to provide specifically that the Evidence Act 1995 (NSW) applies pre-trial.[25] Since the enactment of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), privileged documents are defined in the Dictionary of the Rules as information that could not be adduced under Part 3.10 of the Evidence Act 1995 (NSW).[26] The rules apply Part 3.10 of the Evidence Act 1995 (NSW) to discovery, interrogatories, subpoenas, notices to produce and oral examinations. These rules apply the Actonly to civil proceedings and not, for example, to subpoenas in criminal matters.

14.31 In the Federal Court, O 33, r 11 of the Federal Court Rules (Cth) states that where the court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the court shall not compel production of that document or thing except to the court for the purpose of ruling on the objection. Under the rule, a ‘ground of privilege’ means a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act 1995 (Cth).[27]

14.32 The effect of this extension in the Federal Court is presently unclear. It was previously assumed that O 33, r 11 had the effect of applying the Evidence Act 1995 (Cth)pre-trial, as is the case under the New South Wales Supreme Court rules.[28] However, in the recent case of Seven Network Limited v News Limited,[29] the Full Federal Court found that such an application was not the intention of the rule. The Court held that the rule is limited to circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence, and not to the production of documents under subpoena before the commencement of the trial.[30]

14.33 The incorporation of the provisions of the uniform Evidence Acts through court rules achieves only a limited extension to pre-trial processes in civil proceedings. The soundness of using rules as the means to achieve this end has been questioned, although much will depend on the scope of the rule making power granted by the relevant legislation.

Inserting a mutatis mutandis provision in the uniform Evidence Acts

14.34 Another option for extending the operation of Part 3.10 would be to leave the provisions of the Part as they are and insert a single provision requiring the provisions to be applied where disclosure is required as if the objection to production were an objection to giving or adducing evidence. The provisions applying to proceedings would thus apply mutatis mutandis.[31] Such a section could be drafted in the following terms:


(1) a person is required by a disclosure requirement to give information or produce a document which would result in the disclosure of a communication, document or information of a kind referred to in Part 3.10;[32] and

(2) that person objects to giving such information or providing such document;

such objection shall be considered and determined by the application of those provisions of Part 3.10 as if the objection to give information or produce the document was an objection to the giving or adducing of evidence of them.

14.35 A ‘disclosure requirement’ could then be defined to include some or all of the situations not currently covered by the Act, within the confines of the jurisdictional limits outlined above.

14.36 If ‘disclosure requirements’ is defined to cover claims for privilege which are determined by courts in the first instance—such as pre-trial disclosure processes issued by the court; warrants; and claims to resist the compulsory powers of government agencies—the drafting is simplified. Each claim of privilege can be tied to the determination of questions by the court.

14.37 However, if ‘disclosure requirements’ includes the compulsory powers of quasi-judicial bodies, such as tribunals and boards of inquiry, a number of issues arise:

  • such a provision will sit uneasily with the current application provision in s 4 of the uniform Evidence Acts, which confines the operation of the Acts to courts (as defined). A consequential amendment might be required to clarify the situation;

  • who determines the claim for privilege? What if the statute establishing the body hearing the matter provides that the body is not bound by the rules of evidence? Arguably common law privileges still apply because they are not merely ‘rules of evidence’; and

  • the mutatis mutandis provision would need to make it clear that the uniform Evidence Act privileges apply in respect of such bodies unless they are expressly excluded, in the same manner as the common law privileges must be excluded.

14.38 This raises another problem with this approach—the interaction of the uniform Evidence Acts with provisions in other legislation which abrogate the common law privileges in certain circumstances. If the uniform Evidence Acts are extended to replace the common law, to achieve the same outcome the provisions in other legislation abrogating the common law will need to exclude the operation of the Acts.

Amending Part 3.10

14.39 The third option for extending the operation of the privilege provisions is to amend Part 3.10 of the uniform Evidence Acts to provide that the provisions are not confined to the adducing of evidence. For example, s 118 of the Evidence Act 1995 (Cth) could be redrafted in the following terms:

A federal court is not to require disclosure of information by any compulsory process if, on objection by a client, the court finds that it would result in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, a lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

‘Compulsory process’ could then be defined to include the various contexts in which the provisions are to apply.

14.40 Alternatively, additional sections could be inserted in Part 3.10 applying specifically to pre-trial and non-curial disclosure requirements. The sections could establish the procedure by which privilege is to be claimed, and then replicate the existing privilege provisions as to the basis on which claims for privilege are to be determined.

14.41 The considerations raised in relation to the mutatis mutandis provision, regarding the overarching application of the Acts and their interaction with the provisions of other legislation, apply equally to amending Part 3.10.


14.42 There are a number of imperfect options available to achieve varying degrees of uniformity in the law of privilege. The Commissions are of the view that the best way to achieve uniformity is to enact mirror legislation at the Commonwealth, state and territory levels. Clearly, as more jurisdictions enact a uniform Evidence Act, there will be greater scope for uniformity in areas, such as the law of privilege, where significant difference now exists. In the interim, uniform Evidence Act jurisdictions will have to determine the means and extent to which uniform Evidence Act privileges are to apply in pre-trial and other contexts.

[10] SeeTelstra Corporation v Australis Media Holdings (No 1) (1997) 41 NSWLR 147; Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360; Akins v Abigroup (1998) 43 NSWLR 539; S Odgers, Uniform Evidence Law (6th ed, 2004), 451.

[11]Mann v Carnell (1999) 201 CLR 1.

[12]Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.

[13] Ibid, [23].

[14] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), 416.

[15] Mann v Carnell (1999) 201 CLR 1, 45.

[16] Australian Constitution s 51(xxv) confers the power to legislate with respect to the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the states.

[17] For example, a matter arising under Commonwealth legislation may only be raised in the defence, and an issue arising under the Australian Constitution or involving its interpretation may be raised on appeal. The Commonwealth may be joined as a party at a later stage of proceedings.

[18]Judiciary Act 1903 (Cth) s 39. See R v Kirby; Ex Parte the Boilermakers’ Society of Australia (1956) 94 CLR 254.

[19] Judiciary Act 1903 (Cth) s 79.

[20] Australian Securities & Investments Commission, Submission E 97, 20 September 2005.

[21] Judiciary Act 1903 (Cth) s 64.

[22] The extension of the privilege should not exceed the legislative power of the state as set out in its own Constitution: see Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1.

[23] In order to avoid invalidity under s 109 of the Australian Constitution.

[24] Such as where a state court is called upon to determine a claim for privilege in relation to a warrant issued under Commonwealth legislation.

[25] Previously this occurred through the Supreme Court Rules Pts 23, 24, 36 and 75, and the District Court Rules Pts 22, 22A and 29.

[26] J Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7th ed, 2005), [8.1].

[27] See also Supreme Court Rules (ACT) O 34, r 3.

[28] A LeSurdo, Legal Professional Privilege in the Pre-Trial Compulsion Process (2005) 43(9) Law Society Journal 75, 76.

[29]Seven Network Limited v News Limited [2005] FCAFC 125.

[30] Ibid, [17] (Branson J).

[31] Mutatis mutandis means ‘the necessary changes being made’.

[32] Or such provisions of Part 3.10 as are to be extended.