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

Appendix B
Evidence Amendment (Confidential Communications) Bill (NSW)

[STATE ARMS]

New South Wales

Evidence Amendment (Confidential Communications) Bill 1996

No ,

A Bill for

An Act to amend the Evidence Act 1995 to expand the categories of privilege that may prevent evidence being adduced to include professional confidential relationship privilege.

The Legislature of New South Wales enacts:

1. Name of Act

This Act is the Evidence Amendment (Confidential Communications) Act 1996.

2. Commencement

This Act commences on a day to be appointed by proclamation.

3. Amendment of Evidence Act 1995 No 25

The Evidence Act 1995 is amended as set out in Schedule 1.

Schedule 1    Amendment

(Section 3)

Division 1A
Insert after section 126:

Division 1A Professional confidential relationship privilege

126A Definitions

In this Division:
protected confidence means:

(a) a communication made by a person in confidence to another person (in this section called the confidant) acting in a professional capacity and who, when the communication was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant, or

(b) the contents of a document relating to a communication of a kind referred to in paragraph (a), or

(c) information about, or enabling a person to ascertain, the identity of the person who made a communication of a kind referred to in paragraph (a) known by the confidant.

protected confider means person who made a protected confidence.

Note. Clause 8 of Part 2 of the Dictionary provides that a reference to a document includes a reference to:

(a) any part of the document, or

(b) any copy, reproduction or duplicate of the document or of any part of the document, or

(c) any part of such a copy, reproduction or duplicate.

126B Exclusion of evidence of protected confidences

(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose a protected confidence.

(2) The court may give such a direction:

(a) on its own initiative, or

(b) on the application of the protected confider or confidant concerned (whether or not either is a party).

(3) The court must give such a direction if it is satisfied that:

(a) if the evidence is adduced it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider, and

(b) the nature and extent of the harm outweighs the desirability of the evidence being given.

(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:

(a) the importance of the evidence in the proceeding,

(b) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,

(c) the availability of any other evidence concerning the matters to which the protected confidence relates,

(d) the likely effect of adducing evidence of the protected confidence, including the likelihood of harm, and the nature and extent of harm, that would be caused to the protected confider,

(e) the means available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence is disclosed,

(f) if the proceeding is a criminal proceeding--whether the party seeking to adduce evidence of the protected confidence is a defendant or the prosecutor,

(g) whether the substance of the protected confidence has already been disclosed by the protected confider or any other person.

(5) The court must state its reasons for refusing to give a direction under this section.

126C Loss of professional confidential relationship privilege:

misconduct

(1) This Division does not prevent the adducing of evidence of a communication made or the contents of a document prepared in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty.

(2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that:

(a) the fraud, offence or act was committed, and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,

the court may find that the communication was so made or document so prepared.

1126E Ancillary orders

Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence, the court may:

(a) order that all or part of the evidence be heard in camera, and

(b) make such orders relating to the suppression of publication of

Last update 19/8/99 ©Parliament of Victoria