15. Privilege: Other Privileges

15–1 The uniform Evidence Acts should be amended to provide for a professional confidential relationship privilege. Such a privilege should be qualified and allow the court to balance the likely harm to the confider if the evidence is adduced and the desirability of the evidence being given. The confidential relationship privilege available under Part 3.10, Division 1A of the Evidence Act 1995 (NSW) should therefore be adopted under Part 3.10 of the Evidence Act 1995 (Cth).

15–2 If Recommendation 15–1 is adopted, Part 3.10, Division 1A of the Evidence Act 1995 (Cth) should include that in family law proceedings concerning children, the best interests of the child should be a paramount consideration and that, where a child is the protected confider, a representative of the child may make the claim for privilege on behalf of the child.

15–3 The professional confidential relationship privilege should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

15–4 Part 3.10 of the Evidence Act 1995 (Cth) and Part 3.10, Division 1B of the Evidence Act 1995 (NSW) should be amended to include a sexual assault communications privilege based on the wording of Division 2 of Part 5, Chapter 6 of the Criminal Procedure Act 1986 (NSW) applicable in both civil and criminal proceedings. The amendment should include a general discretion privilege and an absolute privilege in preliminary criminal proceedings.

15–5 If Recommendation 15–4 is accepted, Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW) should be repealed.

15–6 The sexual assault communications privilege should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

15–7 Section 128 of the uniform Evidence Acts should apply where a witness objects to giving evidence either to a particular question, or a class of questions, on the grounds that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law or a law of a foreign country or is liable to a civil penalty under such law. The section should provide that:

(a) the court is to determine whether or not that claim is based on reasonable grounds;

(b) if the court is so satisfied, the court must inform the witness that the witness may choose to give the evidence or the court will consider whether the interests of justice require that the evidence be given;

(c) the court may require that the witness give the evidence if the interests of justice so require, but must not do so if the evidence would tend to prove that the witness has committed an offence against or arising under a law of a foreign country or is liable to a civil penalty under a law of a foreign country; and

(d) if the evidence is given, either voluntarily or under compulsion, a certificate is to be granted preventing the use of that evidence against the person.

15–8 Section 128(7) of the uniform Evidence Acts should be amended to clarify that a ‘proceeding’ under that section does not include a retrial for the same offence or an offence arising out of the same circumstances.

15–9 Section 128(7) of the Evidence Act 1995 (NSW) should be amended to provide that for the purposes of that provision a ‘NSW court’ means ‘any New South Wales court or any person or body authorised by a New South Wales law, or by consent of the parties, to hear, receive and examine evidence’.

15–10 The uniform Evidence Acts should be amended to provide that the privilege against self-incrimination cannot be claimed in respect of orders made in a civil proceeding requiring a person to disclose information about assets or other information (or to attend court to testify regarding assets or other information) or to permit premises to be searched. However, it should be provided that evidence obtained in compliance with such orders cannot be used against the person in a criminal or civil penalty proceeding against the person, where the court finds that the evidence might tend to incriminate the person, or make the person liable to a civil penalty. This use immunity should only apply to documents or information created pursuant to the court order, and not to a pre-existing document or thing.

15–11 Section 130 of the uniform Evidence Acts should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.