Privileges protecting other confidential communications

Professional confidential relationship privilege

15.3 Under the common law, the only relationship in which communications are protected from disclosure in court is that between a lawyer and a client. In ALRC 26, the ALRC proposed the creation of a further discretionary privilege that would cover confidential professional relationships. Such a privilege would cover communications and records made in circumstances where one of the parties is under an obligation (legal, ethical or moral) not to disclose them.

15.4 The ALRC determined that there are many relationships in society where a public interest could be established in maintaining confidentiality.^[1] These relationships could include, for example, doctor and patient, psychotherapist and patient, social worker and client or journalist and source.^[2] In ALRC 26, the Commission noted that, for example, there are circumstances in which confidentiality is crucial to the furtherance of an accountant and client relationship.^[3] Given the controversial nature of some of these categories, and the aim of the uniform Evidence Acts to allow as much evidence as possible to be made available in court proceedings, the ALRC proposed that such a privilege be granted at the discretion of the court, stating:

The public interest in the efficient and informed disposal of litigation in each case will be balanced against the public interest in the retention of confidentiality within the relationship and the needs of particular and similar relationships.^[4]

15.5 This proposal was not adopted as part of the Evidence Act 1995 (Cth). However, the Evidence Act 1995 (NSW) provides for a professional confidential relationship privilege.^[5] Section 127A of the Evidence Act 2001 (Tas) provides an absolute privilege for medical communications in civil proceedings.

15.6 In 1993, the Law Reform Commission of Western Australia (LRCWA) recommended the enactment of a general discretion to protect information disclosed in the course of a confidential relationship. The recommendation was based on s 35 of the Evidence Amendment Act (No 2) 1980 (NZ) and was similar to the ALRC’s recommendation, proposing that the court weigh the public interest in having the evidence disclosed against the public interest in the preservation of confidentiality between the confider and the professional.^[6] This proposal has not been adopted in Western Australia to date.

Confidential relationship privilege: New South Wales

15.7 Under s 126A of the Evidence Act 1995 (NSW), a ‘protected confidence’ for the purpose of the section means a communication made by a person in confidence to another person (the confidant):

(a) in the course of a relationship in which the confidant was acting in a professional capacity, and

(b) when the confidant 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.

15.8 Section 126B provides:

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

(a) a protected confidence, or

(b) the contents of a document recording a protected confidence, or

(c) protected identity information.

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

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

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

(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

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

(f) the means (including any ancillary orders that may be made under section 126E) 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 or the protected identity information is disclosed,

(g) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,

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

15.9 Although the ALRC’s reports were canvassed in the context of the New South Wales amendments, Odgers cites the source of the privilege as the New South Wales Attorney General’s Department 1996 Discussion Paper Protecting Confidential Communications from Disclosure in Court Proceedings.^[7] The discretionary approach to such a privilege, as advocated by the ALRC, was adopted in the New South Wales amendments.

The evidence must be excluded if there is a likelihood that harm would be or might be caused, whether directly or indirectly, to the person who imparted the confidence and the nature and extent of that harm outweighs the desirability of having the evidence given or the documents produced.^[8]

15.10 Division 1A does not create a true privilege, but allows the court a discretion to direct that evidence not be adduced where it would involve the disclosure of a protected confidence.^[9] The court must balance the matters set out in s 126B(4), including the probative value of the evidence in the proceeding and the nature of the offence, with the likelihood of harm to the protected confider in adducing the evidence, and then decide if it is appropriate to give a direction under the section.

15.11 There have not been a significant number of cases concerning Division 1A. In Urquhart v Latham, Campbell J considered how the test in s 126B should be exercised. His Honour noted that ‘there is a policy concerning the protection of confidences which underlies s 126B, which requires matters favouring the protection of professional confidences, of the type defined in s 126A, to be taken into account in the exercise of discretions about what evidence should be admitted in a hearing’.^[10]

15.12 The limits of the term ‘acting in a professional capacity’ have not been tested yet in New South Wales. Odgers notes that the types of relationships referred to in the definition of a protected confidence could include doctor/patient, nurse/patient, psychologist/client, therapist/client, counsellor/client, social worker/client, private investigator/client and journalist/source.^[11] It was the intention of the ALRC in its original proposal that the privilege be sufficiently flexible to allow the court to protect information in a range of relationships where confidentiality is particuarly important.^[12]

15.13 One relationship which has been brought to the attention of the Inquiry is that of medical and social researchers and their interviewees.^[13] It is envisaged by the Commissions that this type of relationship may, depending on the nature of the research undertaken, fall under the confidential relationship privilege.

15.14 In supporting the adoption of a discretionary privilege for confidential relationships, the LRCWA identified the advantages of the privilege as providing greater flexibility for the courts to assess the individual merits of each case, and placing all confidential relationships (other than that between a lawyer and a client) on an equal footing. Some of the disadvantages were noted to be that the ‘balancing test’ could be difficult to assess in some cases, that the provision could not guarantee confidentiality and that it is undesirable to create further means whereby relevant evidence can be excluded from the court.^[14]

Journalists’ sources

15.15 Since the publication of DP 69, the issue of protection of journalists’ sources has received significant media attention. Under the common law, courts have consistently refused to grant journalists a privilege or lawful excuse under which they can refuse to reveal their sources.^[15] The journalists’ code of ethics prohibits a journalist from revealing a source once a commitment to confidentiality has been made. At the time of writing, legal proceedings had commenced against two Herald Sun journalists for protecting the source of leaked government documents regarding changes to veterans entitlements.^[16] The Attorney-General of Victoria has indicated his support for a uniform national approach to journalists’ sources.^[17] The Australian Government Attorney-General has also announced that the issue would be considered by the Government.^[18]

15.16 Journalism is a profession which falls under ss 126A and 126B of the Evidence Act 1995 (NSW). The adoption of the New South Wales provisions has been mooted by a number of submitters as a possible way forward in Australia as a basis on which a journalist may legally protect a source’s identity. Since its enactment, few cases have considered the application of s 126B to journalists’ sources. NRMA v John Fairfax Publications applied the section to a journalist and source relationship. In that case, Macready M considered the discretionary factors in 126B. On the first question of whether any harm would come about as a result of the revealing of the information, the Master stated that, in the circumstances, giving the evidence was likely to lead to proceedings against the protected confider. The initation and running of proceedings might cause harm, ‘although if the proceedings are justified, the relevance of the harm is lessened’.^[19] The Master then considered the actionable breaches of the Corporations Act and other causes of action based on a directors’ code of conduct (which was the information that the source has disclosed). Finally, Master Macready took into account policy considerations based on the desirability of the flow of information and the centrality of keeping the identity of sources confidential to achieve this end. In that case, it was determined that the interests of justice in the plaintiff having an effective remedy outweighed the possible harm which could be caused to the reputation of journalists and their ability to obtain information if they were forced to reveal sources.^[20]

15.17 The New Zealand Evidence Bill 2005^[21] includes a specific privilege protecting journalists’ sources, as well as a general confidential relationship privilege. The provision is a qualified privilege, and applies a balancing test similar to s 126B. Clause 64(1) of the Bill provides a general presumption that where a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered. However, a judge may order that subsection (1) does not apply if satisfied that the public interest in the disclosure of evidence of the identity of the informant outweighs any likely adverse effect of the disclosure on the informant or any other person; and also outweighs the public interest in the communication of facts and opinion to the public by the news media and, in the ability of the news media to access sources of facts.^[22]

15.18 The New Zealand Law Commission recommended this section in its 1999 report on Evidence.^[23] The Commission based this recommendation on the need to promote a free flow of information, which is a vital component of a democratic system. Whilst the original proposal was to have journalists’ sources fall under the general confidential communications privilege, the Commission decided that a specific qualified privilege would give greater confidence to a source that his or her identity would be protected.^[24]

DP 69 proposal

15.19 In DP 69, the Commissions proposed the addition of a qualified confidential relationship privilege to the Evidence Act 1995 (Cth) for the same reason it was supported in the previous Evidence inquiry.

The provision of a discretionary privilege would allow the competing public interests to be taken into account when the court is assessing whether evidence ought in the circumstances to be compelled from witnesses, thus allowing the courts to be sensitive to the individual needs of witnesses and of relationships.^[25]

15.20 Most consultations undertaken supported the adoption of a qualified confidential relationship privilege. Practitioners and judges were unaware of areas in which the operation of either privilege has caused concern in New South Wales.^[26] Given the support expressed for the New South Wales provision, the Commissions argued it was in the interests of consistency and uniformity for the Commonwealth Act to adopt the New South Wales confidential communications provisions.^[27] The Commissions further proposed that this privilege apply to pre-trial discovery and the production of documents in response to a subpoena and non-curial contexts such as search warrants and notices to produce documents, as well as court proceedings.^[28]

Submissions and consultations

15.21 A number of submissions were opposed to this proposal.^[29] The Australian Securities and Investment Commission (ASIC) argues that the major policy rationale for legal professional privilege does not apply in the case of other professional relationships as it is not a fundamental requirement of the justice system that a client be free to obtain professional advice other than legal advice. Furthermore, not all other professions are subject to the same rigorous regime of professional obligations as legal practitioners, including the overriding obligation to the court. If privilege were extended to other professionals such as accountants, this would provide more avenues for abuse and pose greater difficulties for ASIC in its attempt to uncover the full facts. ASIC submits that if privileges are to be extended beyond the obtaining of legal advice, any such extension should be confined to particular areas, such as sexual assault communications and medical communication privilege, but should not be extended to include business and commercial areas.^[30]

15.22 This view was shared by the Commonwealth Director of Public Prosecutions (CDPP), which recommends that confidential relationships privilege not be enacted. In the CDPP’s view, it is difficult to see that the interests of justice are served by introducing provisions which could operate to inhibit evidence being tendered to a court. Further, the policy rationale for legal professional privilege does not apply to relationships other than lawyer and client. The CDPP states that claims for legal professional privilege are currently abused in criminal investigations in Australia and the extension of a confidential relationship privilege to other professional relationships would be potentially open to the same abuse.^[31]

15.23 The Office of the Director of Public Prosecutions (NSW) (NSW DPP) supports the adoption of the New South Wales provisions in the Commonwealth Act. However, the submission does not support extension of the privilege to the investigatory stage, as it could adversely impact on the ability of investigatory agencies to gather relevant material and identify leads for investigation.^[32]

15.24 On the issue of protection of journalists’ sources, the Press Council of Australia expresses support for the uniform Evidence Acts to adopt a provision based on the New Zealand Evidence Bill. However, as an alternative position, the Council supports adopting a provision equivalent to that in the Evidence Act 1995 (NSW).^[33] The Media, Entertainment and Arts Alliance expresses a similar view in its submission, arguing that, although little litigation has occurred around s 126A and therefore it is unclear the extent of the protection it offers, ‘there is a strong argument for not reinventing the wheel’. The Alliance further supports the extension of the privilege to pre-trial processes, noting that, in most cases, issues of contempt arise at this stage of the proceedings.^[34]

15.25 Corrs Chambers Westgarth makes a submission to the Inquiry on behalf of a number of major news and broadcasting services. In that submission, it is proposed that the uniform Evidence Acts be amended to give journalists a legal right to refuse to disclose the identity of confidential sources other than in exceptional circumstances. These circumstances include the protection of national security, prevention of the commission of a serious crime or protection of the physical safety of any person where it is in the public interest to allow disclosure. The submission further argues that it should be presumed that disclosure is unnecessary, and that journalists should be provided with protection from search and seizure powers which may lead to disclosure of a confidential source. The submission bases this proposal on the fundamental nature of the journalist’s undertaking not to reveal sources, and the role of the media in encouraging political discussion, and scrutiny of the democratic process.^[35] The submission notes a number of important cases where anonymous journalists’ sources have exposed matters of public significance such as the Watergate investigations, and in Australia, the Khemlani loans affair and the political corruption which resulted in the Fitzgerald Inquiry in Queensland. ^[36]

15.26 The Office of the Victorian Privacy Commissioner submits that in considering the competing interests in privacy related matters, matters additional to the public interest test should be considered. These additional matters should include the effect of disclosure on the privacy of third parties, the availability of other, less privacy-invasive means of obtaining the information, and express consideration of ways to ameliorate the harm, such as using pseudonyms and holding hearings in camera.^[37]

15.27 The Litigation Law and Practice Committee of the New South Wales Law Society supports the proposal, and its extension to pre-trial contexts. It notes that s 126A does not create a true privilege, but rather a discretion to direct that evidence not be adduced. It would be inappropriate for the privilege not to apply to pre-trial matters, such as discovery, where the issues relating to protected confidences are most likely to arise.^[38]

15.28 The Australian Government Attorney-General’s Department submits that the Government supports the introduction of a qualified professional confidential communications privilege. However it considers that clearer direction should be given to the court in how to exercise its discretion, in particular by specifying certain circumstances in which the privilege would not apply. The Australian Government’s preferred approach is that the legislation should create a presumption that a confidential communication will be protected from disclosure. However, the protection will not apply where: disclosure is required in the interests of justice, including interests of national security; there is a need to protect classified material (subject to appropriate safeguards to protect against the disclosure of sensitive information in evidence); the communication was made in furtherance of the commission of a fraud or other serious criminal offence, or participation in serious and organised crime; or the disclosure is necessary to demonstrate the innocence of an accused. It would be a matter for the court to determine whether one of the circumstances applies or the interests of justice otherwise require the disclosure of the information, in which case the court could direct a witness to answer the relevant question.^[39]

15.29 One area in which the proposal will have a significant impact is in relation to Family Court proceedings. The Commissions were told in a number of consultations that psychiatrists’ and doctors’ reports are often subpoenaed in child residency matters. This is sometimes crucial information for the court when making a parenting order. There were concerns raised that a confidential relationship privilege could prevent courts obtaining access to this information.^[40] The Family Law Council submits that other relevant information that the court may need to access includes files from state and territory child welfare agencies, medical records and school counsellors’ records. In the Council’s view, it is imperative that the court has access to this information. If a parent is able to claim privilege, it may hamper the operation of the paramountcy principle in the Family Law Act 1975 (Cth) and limit the information the court has available to make the best possible decision.^[41] The Family Law Council also has concerns about the effect of the privilege on projects such as the Family Court’s Magellan project, which involves disputes which include allegations of serious physical and sexual abuse against children. The project is based on information sharing between agencies to reach fast resolution in matters, and a confidential relationship privilege may impinge on its successful operation.^[42]

15.30 However, the Family Court of Australia agrees that, in the interests of uniformity and consistency, the Commonwealth Act should include a provision allowing the court to direct that evidence should not be adduced where it would disclose confidences made in the context of a professional relationship. In order to overcome the problem identified by the Family Law Council, the Family Court proposes that an additional balancing criterion be applied to the Evidence Act 1995 (Cth) stating that in family law proceedings concerning children, the best interests of the child should be a paramount consideration. The Family Court also suggests that provision be made for the situation where a child is the protected confider. This will allow a representative of the child to make the claim for privilege on behalf of the child.^[43]

Commissions’ view

15.31 The Commissions agree there is an ongoing tension between the codes of ethics and professional duties of many professions in Australia and the legal duty to reveal to the courts information said in confidence. In many of these relationships, there is a clear public interest that can be demonstrated in protection of a confidence, such as the encouragement of people to seek treatment or the provision of information that could expose corruption or maladministration in government. However, the exclusion of otherwise relevant evidence from the court’s consideration is a very serious matter. The legal protection of professional confidential communications thus raises a ‘difficult mix of fundamental private and public interests’.^[44]The Commissions believe that the ALRC’s original reasoning for proposing a confidential relationship privilege remains sound.

15.32 The Commissions agree that an analogy cannot be drawn between the lawyer and client relationship and other professional relationships. Client legal privilege affords an absolute protection because it is always considered to be in the interests of justice that a client knows that any facts relating to past events revealed to a lawyer will remain confidential.

15.33 A qualified professional confidential relationship privilege acknowledges that it may be in the interests of justice to protect the confidentiality of a particular relationship in the circumstances of that case. The view of ASIC regarding the potential abuse of such a privilege is noted. However, the Commissions believe that the fact that the privilege is discretionary, and that parties are able to make an argument as to why the material should be disclosed, will allow a judge to circumvent illegitimate attempts to claim the privilege.

15.34 The different formulation of a confidential relationship privilege as proposed by the Australian Government Attorney-General’s Department is noted. However, given the support expressed for the New South Wales provisions, and the lack of submissions indicating there is a serious problem with them, the Commissions believe it is in the interests of consistency and uniformity for the Commonwealth Act to adopt the New South Wales confidential professional relationship privilege provisions.^[45] These provisions 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.

15.35 The Commissions agree that in family law proceedings concerning children, the interests of the child may outweigh the harm that may be caused, whether directly or indirectly, to the person who imparted the confidence. The Commissions support the suggestion of the Family Court that, in the adoption of s 126A in the Commonwealth Evidence Act, explicit reference should be made to consideration of the paramountcy principle in family law proceedings concerning children. The Commissions also note that, in family law proceedings, a child’s interests are often represented by independent counsel. Provision should therefore be made for a representative of the child to make the claim for privilege on behalf of the child. It has been noted in consultations that additional hearing time will now be required to hear argument over whether the privilege applies to subpoenaed documents.^[46] The Commissions acknowledge that the addition of a new privilege in the family law jurisdiction will have some resource implications for the Family Court, but believe the wider benefits of the adoption of the privilege in the Commonwealth Evidence Act outweigh this concern. If adopted, the Family Court and the Australian Government should monitor the resource implications resulting from the proposal.

15.36 The Commissions therefore recommend that the uniform Evidence Acts be amended to provide for a professional confidential relationship privilege as set out in this recommendation. The proposed provisions are modelled (with some modifications) on the privilege available under Part 3.10 Division 1A of the Evidence Act 1995 (NSW). The principal elements of this privilege should be as follows.

(a) The privilege should protect:

(1) protected confidences—communications made in the course of a professional relationship, whenever made, where the person to whom the communication was made was under an express or implied obligation of confidence. The Evidence Act 1995 (NSW) definition of protected confidence (in s 126A) should be clarified to ensure that the confidentiality obligations are not restricted to those arising under law; and

(2) protected identity information—the Evidence Act 1995 (NSW) definition of this concept (in s 126A) should be clarified so that it only relates to information from which the identity of the person making the confidential communication can reasonably be ascertained.

(b) The court should be able to give such a direction on application by the person who made the confidential communication, or the person to whom it was made (whether or not a party).

(c) In determining whether to give a direction, the court should be required to balance the nature and extent of the likely harm that would or might be caused to the person who made the confidential communication by adducing the evidence against the desirability of the evidence being given. However, if it finds that the former outweighs the latter, the court should be required to give the direction.

(d) The uniform Evidence Acts should include a non-exhaustive list of factors that the court should be required to take into account under these provisions. That list should be the same as in the Evidence Act 1995 (NSW).

(e) The court should not be entitled to make an order where the person who made the confidential communication has consented to the evidence being given, or where the communication was made (or the 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. This provision should be similar to s 125(1)(a).^[47]

(f) The court should have the power to make appropriate orders to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, as provided in the Evidence Act 1995 (NSW).

15.37 A draft of Part 3.10 Division 1A is included in Appendix 1. However, the draft does not deal with the implementation of Recommendation 15–3 regarding extension of privilege for the reasons discussed in Chapter 14.

Medical communications privilege: Tasmania

15.38 Under s 127A(1) of the Evidence Act 2001 (Tas), a medical practitioner must not divulge, in any civil proceeding, any communication made to him or her in a professional capacity by the patient that was necessary to prescribe treatment or act for the patient (unless the sanity of the patient is the matter in dispute).

15.39 This privilege was carried over from the Evidence Act 1910 (Tas) and can also be found in the evidence legislation in Victoria and the Northern Territory.^[48] In these jurisdictions, the privilege is only available in civil proceedings.

15.40 As noted in Chapter 2, in addition to its participation in the joint review, the VLRC is also undertaking a review of the laws of evidence currently applying in Victoria. The VLRC has consulted widely on whether a medical communications privilege should remain in Victoria or whether a confidential relationship privilege is the preferred model. It should be noted that the VLRC has received submissions from health practitioners, nurses and pharmacists supporting the adoption of a confidential relationship privilege rather than a strict medical communications privilege.^[49]

15.41 The ALRC considered this privilege in ALRC 26 and found three main benefits—protecting patients’ privacy, encouraging people to seek treatment, and promoting the public interest in effective treatment of patients. Associate Professor Sue McNicol has criticised the privilege on the grounds that, particularly in personal injury matters, doctor-patient privilege could well constitute an impediment to the fact-finding process.^[50] She further argues that the grant of the privilege is unlikely to induce or encourage patients to visit doctors, and therefore there is no sound policy rationale for the privilege.^[51]

15.42 The ALRC noted that many of the arguments in favour of the privilege focused more on a right to privacy than on whether problems are caused by the absence of the privilege or benefits that would follow from its implementation.^[52] The ALRC found that this rationale suggests a need for a power to excuse medical witnesses in certain cases, rather than to provide a blanket privilege or primary rule of privilege with exceptions.^[53] It contrasted the position of a doctor with that of a lawyer. While each relationship is aided by confidentiality, and confidentiality will encourage people to seek professional services, different considerations apply to doctors and lawyers. Unlike the doctor’s role, the lawyer’s role cannot be performed if he or she can be compelled to give evidence against a client.^[54] As such, the ALRC proposed that the doctor–client relationship should fall under the general privilege proposed to cover confidential relationships.

15.43 The LRCWA similarly found that the public interest in the protection of confidential information in the hands of doctors does not outweigh the public interest in courts having all relevant information available to them so as to justify the creation of a privilege.^[55]

Commissions’ view

15.44 In DP 69, the Commissions did not support the inclusion of a medical relationship privilege in the Evidence Act 1995 (Cth) for the same reasons it was not supported in the previous Evidence inquiry. It was considered that proper protection of confidential medical communications could occur under the confidential relationship privilege. On that basis no recommendation regarding adoption of a medical communications privilege is made.

Sexual assault communications privilege

15.45 Sexual assault communications are communications made in the course of the confidential relationship between the victim of a sexual assault and a counsellor. From the mid-1990s onwards, ongoing reform of sexual assault laws and procedure included the enactment of legislation to limit disclosure of these communications.^[56] The question whether these communications are privileged may arise where records of counselling session are subpoenaed, or where evidence of a communication is sought to be adduced in a proceeding.

15.46 Every state and territory except Queensland now has some restriction on access to counselling communications.^[57] A number of the provisions are based on the model developed by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General in its 1999 report on Sexual Offences Against the Person.^[58] Most jurisdictions allow the court to examine the evidence and then determine whether disclosure should be ordered, based on whether the public interest in protecting the confidentiality of the communication is substantially outweighed by the interest in its disclosure. In the ACT, Western Australia and South Australia, the court can only consider an application for disclosure once it has been satisfied by the applicant that there is a legitimate forensic purpose for the application.^[59] Only Tasmania provides an absolute protection for such communications.^[60]

Rationale for the privilege

15.47 The issue of the confidentiality of sexual assault communications emerged in the 1990s. Commentators at the time noted that, as an unintended consequence of the ‘rape shield’ provisions limiting questioning of a complainant’s sexual history and conduct, subpoenas in criminal proceedings were increasingly being used by defence counsel to access counsellors’ notes. The notes were sought with a view potentially to impugn the complainant’s story.^[61]

15.48 The Model Criminal Code Officers Committee (MCCOC) suggests a number of public policy reasons in favour of a sexual assault communications privilege. It argues that sexual assault counsellors now serve a crucial role in the justice system and that it is not unreasonable to assume that, if counselling notes are not confidential, complainants will not seek counselling, or will not be entirely frank during counselling sessions. This will reduce the efficacy of the counselling process. Further, if complainants do not use the services of counsellors then the likely result will be lower reporting of sexual offences and withdrawal of complaints. If notes are not protected, sexual assault counselling services may adopt practices—such as minimal record keeping or making dummy files—that both inhibit the counselling relationship, and mitigate against the accountability of the counsellor.^[62]

15.49 The MCCOC also suggests that records of counselling will have very limited relevance in cases involving allegations of sexual assault. Sexual assault counsellors argued that sexual assault counselling is concerned with the emotional and psychological responses of the complainant to the assault. As such, the ‘facts’ surrounding the assault are likely not to be discussed, and the exploration of feelings will undermine the forensic reliability of what is recorded.^[63]

15.50 Sexual assault communications are also seen as deserving of protection because of the nature of the crime itself, which is widely considered a more distressing and intimate crime than other crimes involving physical injury. In supporting a privilege for sexual assault communications, the Supreme Court of Canada drew a distinction between sexual assault communications and other communications in a doctor/patient context.

A rule of privilege which fails to protect confidential doctor/patient communications in the context of an action arising out of sexual assault perpetuates the disadvantage felt by victims of sexual assault, often women. The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus placed in a disadvantaged position as compared with the victim of a different wrong.^[64]

Different models of sexual assault counselling privilege

15.51 While some form of protection is afforded to sexual assault counselling communications in each state and territory, the models adopted by different jurisdictions differ markedly. The main point of divergence is whether the privilege is qualified or absolute. Within that distinction, there is a further differentiation as to whether an absolute or qualified privilege applies in preliminary criminal proceedings such as committal proceedings.

15.52 A further issue encountered in this area is whether the privilege provisions apply in the context of inspection of documents produced on subpoena. A number of provisions were drafted in terms of ‘adducing evidence’. This means that the provisions do not apply to prevent counselling records being subpoenaed and inspected.^[65]

An absolute or qualified privilege?

15.53 A common argument against the availability of a sexual assault communications privilege is that an accused must be able to access all available evidence that may be used in his or her defence. A mandatory prohibition or absolute privilege is supported on the basis that the policy arguments in favour of non-disclosure of the material are sufficiently strong to support a statutory exclusion of the type given to client legal privilege.^[66] Annie Cossins and Ruth Pilkington have argued that the effect of disclosure, and its impact on complainants reporting or proceeding with claims of sexual assault, are serious impediments to the effective administration of justice.^[67] In Canada, L’Heureux-Dube J drew this conclusion in R v Osolin:

If the net result is to discourage witnesses from reporting and coming forward with evidence, then, in my view, it cannot be said that such practices would advance either the trial process itself or enhance the general goals of the administration of justice.^[68]

15.54 The MCCOC rejects any analogy between client legal privilege and a sexual assault communications privilege. It argues that the client/lawyer relationship is central to the operation of the law, and therefore requires the highest level of protection. While the outcomes of a failure to protect confidences between a complainant and a sexual assault counsellor may be regrettable if offenders are not brought to justice, the absence of a privilege does not affect the operation of the legal system.^[69] Further, the MCCOC’s view is that an accused must have the right to seek production of and access to records, as a fundamental aspect of criminal procedure. In the MCCOC’s view, a blanket prohibition will promote stay applications and increase the prospects of successful appeals against conviction on the ground that the particular conviction is unsafe and unsatisfactory.^[70]

15.55 The MCCOC supports a qualified privilege, in which competing public interests are balanced. However, the MCCOC considers that the prohibition on the production of notes at committal is justified on the basis that once production and access to the material is gained for the purposes of bail proceedings or committal, the immunity is defeated for the purposes of the trial. The MCCOC also considers that the differentiation is consistent with other provisions in some states that limit the defence’s scope to cross-examine a complainant at committal.^[71] This model has been adopted in New South Wales and a number of other states, and was recently recommended by the Victorian Law Reform Commission.^[72]

Qualified privilege: New South Wales

15.56 A qualified privilege for sexual assault communications is available under Part 3.10 Division 1B of the Evidence Act 1995 (NSW) and Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW). Originally, Division 1B of the Evidence Act 1995 (NSW) was inserted by the Evidence Amendment (Confidential Communications) Act 1997 (NSW) and applied in both civil and criminal proceedings. In 1999, part of Division 1B was re-enacted as (the then) Part 7 of the Criminal Procedure Act 1986 (NSW) and Division 1B was amended and confined to apply only in civil proceedings.^[73]

15.57 The chief reason for re-enacting the provisions in the Criminal Procedure Act was the decision in R v Young.^[74] It was held in that case that Division 1B applied only to the adducing of evidence and could not protect sexual assault communications in relation to discovery and the production of documents.

15.58 Division 1B now applies only to the adducing of evidence in civil proceedings ‘in which substantially the same acts are in issue as the acts that were in issue in relation to a criminal proceeding’.^[75] Further, the privilege only applies where the evidence is found to be privileged under Chapter 6 of the Criminal Procedure Act.^[76] This effectively limits the privilege in civil proceedings to circumstances where a criminal proceeding has been brought and a privilege claim has been made and determined in that proceeding.

15.59 At the time of enacting the confidential relationship privilege, the New South Wales Government argued that communications between a sexual assault victim and a counsellor require a particular privilege.^[77] At trial, the Criminal Procedure Act provides that evidence of counselling communications^[78] is not be disclosed or admitted unless the defence can show the evidence has substantial probative value and that the public interest in protecting the confidentiality of the communications is substantially outweighed by the public interest in allowing disclosure. The requirement that the public interest in protection be substantially outweighed by the public interest in allowing disclosure is a higher test than, for example, the similar balancing exercise under the confidential relationship privilege.^[79] In preliminary criminal proceedings, such as committal proceedings, there is an absolute prohibition on records being sought or evidence being adduced.^[80]

15.60 Central to the granting of the privilege is the existence of a counselling relationship. Under s 296(5) of the Criminal Procedure Act, a definition of ‘counselling’ is given which includes a requirement that the counsellor has undertaken study or has relevant experience, and that support, encouragement, advice, therapy or treatment is given.^[81] The counselling must also be given in relation to any harm the person may have suffered. Under s 295(1), ‘harm’ includes physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation or fear).

Absolute privilege: Tasmania

15.61 The privilege for communications to sexual assault counsellors under s 127B of the Evidence Act 2001 (Tas) differs from the privilege under the Criminal Procedure Act as the former provides absolute protection of the communications unless the complainant consents to their production. Section 127B applies only to criminal proceedings and was enacted following a review of sexual offences in Tasmania.^[82] After examining the New South Wales legislation, the Tasmanian government determined that, given the nature of the material, an absolute protection is warranted.^[83]

Victorian Law Reform Commission report

15.62 In August 2004, the VLRC released its final report on sexual offences.^[84] In that report, the VLRC considered both the New South Wales and Tasmanian models of sexual assault counselling privilege. Although considerable support was received for the Tasmanian approach of an absolute privilege, the VLRC recommended that the Victorian evidence legislation adopt a model closer to the New South Wales priovisions. Under this recommendation, a counselling communication must not be disclosed except with the leave of the court.^[85] Where a person objects to production of a document which records a counselling communication, he or she cannot be required to produce the document unless the document is produced for examination by the court for the purposes of ruling on the objection. Before ordering production, the court must be satified that:

• the contents of the document have substantial probative value;
• other evidence of the contents of the document or the confidence is not available; and
• the public interest in preserving the confidentiality of the communication and protecting the confider from harm is substantially outweighed by the public interest in allowing disclosure of the communication.^[86]

15.63 Following the NSW and MCCOC model, the VLRC also recommended an absolute privilege in committal proceedings. This is the way the privilege currently operates in South Australia^[87] and the ACT.^[88] The VLRC argues that these recommendations strike the right balance between protection of the communication and the rights of the accused.

Our recommendations will allow evidence of confidential communications to be accessed by counsel and used in evidence where specified criteria are satisfied. These criteria balance the competing public interests of ensuring a fair trial for the accused and preserving the confidentiality of protected communications to the greatest extent possible.^[89]

Submissions and consultations

15.64 In DP 69, the Commissions proposed the adoption in the Evidence Act 1995 (Cth) of a qualified sexual assault communications privilege, as enacted in Division 1B of the Evidence Act 1995 (NSW) and Chapter 6 the Criminal Procedure Act 1986 (NSW).

15.65 As was the case following IP 28, the Commissions received support for a qualified privilege protecting sexual assault communications.^[90] However, the Commissions also heard strong support for an absolute privilege, from both academics and from sexual assault counsellors.^[91] One academic argued that the public interest supports a need for victims of sexual assault to enjoy open and trusting relationships with counsellors, without the possibility that their communications will later be subject to scrutiny in court. This possibility, which is still present under qualified privilege, threatens the relationship of trust between a victim and his or her counsellor.^[92]

15.66 Women’s Legal Services Victoria argues that, in making the privilege qualified, the proposal will create disincentives for victims of sexual assault to seek counselling and may inhibit them from reporting the assaults to police. From a public policy perspective, both those outcomes are undesirable.^[93] One sexual assault service agreed with this position, noting that the possibility of counselling session notes being viewed by the judge, and potentially by the defence, is a source of anxiety and distress for many victims (and counsellors).

Allowing the court to access these notes continues the invasions of privacy that those that have been sexually assaulted routinely experience: beginning with violations of their bodily integrity at the time of the assault and persisting through the responses of the heath and legal systems.^[94]

15.67 Annie Cossins echoed this view, advising the Inquiry that her support for an absolute privilege was based on the fact that the notes serve little forensic purpose, and that some complainants will refuse to go to court if they know that the notes are going to be read, even if only by the trial judge.^[95]

15.68 The advantage of the absolute privilege is that it addresses the policy concern of preventing subpoenas from being issued by the defence. Sexual assault counselling centres continue to be required to appear in court and argue privilege.^[96] In this Inquiry, one service stated that counselling services use a substantial proportion of their limited resources defending subpoenas in court. Whilst those applications are usually successful, the cost is significant to the counselling service.^[97]

15.69 One prosecutor notes that despite the rape shield laws, in an ‘oath on oath’ case, the character of the complainant is still often very much part of the case. In his view, it is problematic to be able to delve into one side’s rehabilitative processes without the same capacity to delve into the accused’s background.^[98]

15.70 The New South Public Defenders Office (NSW PDO) does not support enactment of a sexual assault communications privilege in the Evidence Act 1995 (Cth), however, should one be recommended by the Inquiry, a qualified privilege is preferable.^[99] The Law Society of New South Wales also does not support a sexual assault communications privilege, on the basis that defendants should be able to access any information that is exculpatory.^[100]

The Commissions’ view

15.71 The Commissions agree with the finding of the VLRC (and the conclusion of the MCCOC) that such legislation serves the important public interest of encouraging people who have been sexually assaulted to seek therapy and may also encourage people who are sexually assaulted to report the crime to the police.^[101]

15.72 As noted above, the MCCOC rejected an absolute privilege on the basis that a blanket prohibition would promote stay applications and increase the prospects of a successful appeal against conviction on the ground that the conviction was unsafe and unsatisfactory.^[102] The VLRC also notes in its Sexual Offences Interim Report that a complete prohibition on access to notes may result in some people being able to appeal successfully against their conviction.^[103]

15.73 The decision to prevent what could otherwise be relevant information from consideration by a court is not one that should be taken lightly, especially in the context of a criminal trial. The strong view has been put that a failure to allow this evidence at least to be considered by a judge may result in a miscarriage of justice. In this Inquiry, the Commissions were told that it cannot be assumed that all sexual assault complainants are telling the truth.^[104] Another view is that matters communicated to a rape crisis counsellor by a complainant shortly after the event might include relevant evidence that contradicts a later version of events.^[105] In the VLRC Inquiry, the Criminal Bar Association of Victoria submitted that disclosure of counselling notes can reveal that the complainant is mentally ill, that alleged sexual misconduct did not occur, that the complainant has a documented motive to lie or that a child’s disclosure has been ‘infected’ by a person in authority.^[106]

15.74 It is the view of the Commissions, however, that this concern regarding a possible miscarriage of justice can be overstated. In a majority of cases, attacks on a complainant on the basis of disclosures made in a counselling context will be directed to the complainant’s credibility. As has been discussed earlier, disclosures made in a counselling context may well be misleading for a credit purpose due to the nature of the counselling relationship, the nature of the particular offence, and to the variances in the way that counsellors take notes.

15.75 Counsellors’ notes are generally made for the purpose of providing therapy to the client, and not as a record of the assault. As part of the counselling process, a victim of a sexual assault is likely to discuss feelings of his or her own shame and guilt, and may disclose prior assaults or be unclear about the events surrounding the assault.^[107]

15.76 This Inquiry has heard that, depending on the policies of the counselling service and the individual counsellor’s preference, notes may be taken as a stream of consciousness or they may have the views of the counsellor interspersed with those of the client. The actual ‘evidence’ or facts of the case may be quite different to what is represented in the notes.^[108] In most counselling practices, a client does not have an opportunity to check the notes that are taken, and so will not be able to correct the counsellor if an inaccurate version of his or her comments are recorded. Their forensic value cannot be equated to a police statement or other account.

15.77 Sexual assault is one of the most under-reported crimes in Australia. In its Interim Report, the VLRC found that it has the lowest reporting rate of any crime.^[109] Studies have estimated that at least 85 per cent of sexual assaults never reach the criminal justice system, and, of those that do, very few reach trial.^[110] The VLRC argues that concerns about the fairness of the criminal justice process contribute to substantial under-reporting of sexual offences and may discourage people from giving evidence against alleged offenders at committal and at trial.^[111]

15.78 Rape crisis centres have estimated that for twenty five per cent of clients the knowledge that sexual assault counselling notes can be subpoenaed had influenced the decision whether they would seek counselling or not.^[112] Similar evidence was presented to the New South Wales Government prior to the enactment of the privilege in the original Division 1B of the Evidence Act 1995 (NSW).^[113] The Australian Institute of Criminology has recently prepared a report studying the reasons behind a woman’s decision to seek help from various services following a sexual assault.^[114] The report found that, amongst other issues, two key concerns influencing the decision whether to report an assault to the police are confidentiality, fear of the assault becoming public knowledge, and the possibility of a defence lawyer being able to access details of medical and sexual histories.^[115] One woman reported:

What stopped me was what was going to come out in the trial; knowing that the defence lawyer had researched all about me, like my medical history and employment, and the offender would hear all about me.^[116]

15.79 It is clearly of the utmost importance that, in trying to make the legal system more supportive of the needs of complainants, the fundamental principles of a fair trial are not overridden. The VLRC commented:

Prosecution for a sexual offence has very serious consequences for the accused, including life-long stigma and the possibility of a lengthy prison sentence if convicted. It is vital to safeguard the presumption of innocence and ensure that the criminal justice system treats people accused of offences fairly. However, the Commission does not accept the argument that this is the sole purpose of the criminal justice system. The community has an interest in encouraging people to report sexual crimes and in apprehending and dealing with those who commit them.^[117]

15.80 The Commissions are of the view that sexual assault communications fall into a special category outside that of other confidential professional communications. As concluded by the MCCOC, the Commissions believe it is reasonable to assume that an inability to protect the confidentiality of communications with a counsellor is likely to discourage sexual assault victims from going to counsellors. It is equally clear that sexual assault counselling is a vital part of ensuring that victims are helped appropriately to recover from an assault and also that they pursue complaints.

15.81 It has been the finding of other inquiries that have considered this issue that the balancing of the interests of justice is best served by allowing a judge to determine the admission of sexual assault communications by reference to a set of determined criteria. The Commissions support the argument that a qualified sexual assault communications privilege serves the broaderpublic interest of ensuring the legal system is fair both to the accused and the accuser. Under the public interest test, the notes will only be admissible where they have substantial probative value and the public interest in protecting the confidentiality of the document is substantially outweighed by the public interest in allowing its inspection.

15.82 The Commissions agree with the VLRC that confidential sexual assault communications should not be disclosed in committal proceedings. It should be left to the trial judge to determine any issues of disclosure or admissibility. Enactment of the privilege as it currently stands in New South Wales would achieve this effect.

15.83 It is therefore recommended that the Evidence Act 1995 (Cth) be amended to adopt a sexual assault communications privilege, consistent with that provided for under Division 2 of Part 5, Chapter 6 of the Criminal Procedure Act 1986 (NSW). This privilege should apply in both civil and criminal matters, as was the intention of the original New South Wales legislation.

15.84 The Commissions further propose that the confidential communications privilege and the sexual assault communications privilege apply to pre-trial processes. This is currently what occurs in New South Wales. It is noted that the extension of these provisions will resolve the difficulty in R v Young and allow the sexual assault communications privilege sections currently located in Chapter 6 of the Criminal Procedure Act 1986 (NSW) to be re-enacted in the Evidence Act 1995 (NSW). A draft of how this might be achieved in the Commonwealth Evidence Act is included in Appendix 1. This draft does not completely implement Recommendation 15–6 for the reasons discussed in Chapter 14 regarding the extension of Part 3.10 generally.