Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Appendix A
Letter from the Commonwealth Attorney-General's Department,
dated 7 February 1996

"EVIDENCE LEGISLATION

I refer to our telephone conversations yesterday.

Amendments

2. I confirm that our only definite proposals for amendment of the Commonwealth Evidence Act 1995 (`CEA') relate to:-

• giving additional effect to certificates issued under s.128(7) of the NSW Evidence Act 1995 (`NSWEA'); and
• minor drafting changes, mainly consequential upon the NSWEA.

3. Both the CEA and NSWEA have been amended. Section 4 of the CEA was amended by the Family Law Reform (Consequential Amendments) Act 1995 to apply the CEA in appeals to the Family Court from State courts of summary jurisdiction. The amendment came into force on 26 December 1995. Section 128(7) of the NSWEA was amended by the Statute law (Miscellaneous Provisions) Act (No.2) 1995 (NSW) by substituting "a NSW court" for "an Australian court". That amendment came into force on 21 December 1995.

4. We have referred a few matters to the Evidence Act monitoring committee (none of them, incidentally, arising from decisions under the CEA or NSWEA) for its advice.

Model Act

5. The amendments referred to in paragraph 2 would not be significant for the Committee if it uses the NSWEA as a model. Since it is a State Act I think it is the appropriate model. However, some sections have been influenced by specific NSW considerations (eg. the NSW costs regime) that would not necessarily apply in other States.

6. As I mentioned, we are concerned that s.9(1) of the NSWEA could possibly lead to a restrictive interpretation of the Act.

Medical privilege

7. The decision not to include a medical privilege in the Evidence Acts was deliberate. We consider medical privilege to be unjustified. Most jurisdictions in Australia do not have such a privilege, and there is no reason to believe that the absence of a privilege has had any adverse effect on the nature, extent or quality of medical services.

8. Proponents of a privilege often seem to equate adducing in evidence with publicity. Courts have a range of powers to confine very closely, under sanction of contempt, knowledge of information adduced in evidence.

9. We are considering whether a confidential communication privilege (narrower than that proposed by the Australian Law Reform Commission) should be included in the CEA, in cases there are situations where the courts' powers to restrict information and existing privileges are inadequate.

SCAG matters

10. The Standing Committee of Attorneys-General (`SCAG') has been considering the question of a privilege for journalists. Following demands for a rape counselling privilege the questions of rape counselling privilege and confidential communication privilege will also be considered by SCAG.

11. It is not possible at this stage to predict the outcome of SCAG's consideration of these issues. However, so far all the proposals for a confidential communication privilege contemplate that it would be discretionary (based on a balancing test) and apply in criminal as well as civil cases.

Legal privilege

12. I confirm that the dominant purpose test was included in the CEA as a result of an Opposition amendment supported by the Democrats.

13. Consideration of the issue has sometimes been clouded by confusion about the nature of the sole purpose and dominant purpose tests. Some persons have considered the issue as if the relevant purposes were those sought to be achieved in the relevant communication or document rather than the purposes(s) which led to the communication being made or document prepared.

Position in other States/NT

14. The most recent particulars we have about the position in other jurisdictions is:

(a) Queensland: No decision has been made on whether or not to consider adopting the Evidence Act.

(b) WA: The CEA was circulated to interested persons for comment.

(c) Tasmania: The Tasmanian Law Reform Commissioner and the Tasmanian Law Reform Advisory Committee on Evidence Law are examining the desirability of adopting the CEA. Work is relatively advanced on an examination of each provision of the CEA and the Tasmanian Evidence Act to see how much of the latter Act may need to be retained (because it deals with some matters not covered by the CEA).

(d) SA: The South Australian Attorney-General advised South Australia will not consider adopting the Act.

(e) NT: The Northern Territory circulated for comment and is considering whether to adopt it and which provisions of the NT Evidence Act will need to be retained. A decision is expected by the end of June 1996.

15. If you require any further information please do not hesitate to contact me."

Last update 19/8/99 ©Parliament of Victoria