15.85 A specific privilege in respect of religious confessions was not recommended by the ALRC in its earlier inquiry because it was considered that confessions fell under the confidential communications privilege. Such a privilege was nevertheless enacted in s 127 of the uniform Evidence Acts. The religious confessions privilege applies in pre-trial matters, as it relates not only to the adducing of evidence but also allows a member of the clergy (of any religion and religious denomination) to refuse to divulge that a religious confession was made or the contents of the confession.
15.86 The Commissions are of the view that the findings of the ALRC in ALRC 26 were correct in proposing that a relationship between a cleric and a member of a church should fall within the broader confidential relationships privilege and not be treated separately. This would allow the court to consider all the circumstances in which the communication was made, and balance the need for confidentiality against the need for disclosure.
15.87 It would also overcome the definitional problems which could arise from attempting to define who is a member of the ‘clergy’ for the purpose of the Acts, and what is a ‘religious confession’. Although the uniform Evidence Acts contain a broad definition of religious confession that takes into account the practices of different religions and religious denominations, the Commissions received one submission that suggested that not all religious practices could fall under this definition.
15.88 It was noted in ALRC 26 that in practice the need for the court to exercise the discretion to order disclosure of a religious confession would rarely arise because it would be unusual for a party in litigation to find out about a communication to a cleric. The Commissions do not recommend any amendment to s 127 at this time. However, should Recommendation 15–1 be adopted, the Commissions are of the view that the Standing Committee of Attorneys-General (SCAG) should consider whether s 127 is still a necessary part of the uniform Evidence Acts.
 Australian Law Reform Commission, Evidence, ALRC 38 (1987), proposed s 109.
Evidence Act 1995 (Cth) s 127.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), –.
 Christian Science Committee on Publication Federal Representative for Australia, Submission E 81, 15 September 2005.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .