2011
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Attorney-General)
Evidence Amendment Bill 2011

Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
	4	New divisions 3.10.1A and 3.10.1C	2
	5	Privilege in relation to selfincrimination in other proceedings
Section 128 (3)	8
	6	Section 128 (7) (b)	9
	7	New section 128 (13) to (15)	9
	8	Privilege in relation to selfincrimination—exception for certain orders etc
New section 128A (12) to (14)	10
	9	Application of div 3.10.4 to preliminary proceedings of courts
Section 131A (1) (a)	10
	10	Section 131A (2), new notes	11
	11	Dictionary, part 1, new definitions	11
	12	Dictionary, part 2, section 4 (1) (c) to (f)	12

2011
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Attorney-General)
Evidence Amendment Bill 2011

A Bill for
An Act to amend the Evidence Act 2011

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Evidence Amendment Act 2011.
2	Commencement
This Act commences on the commencement of the Evidence Act 2011, section 3.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Legislation amended
This Act amends the Evidence Act 2011.
4	New divisions 3.10.1A and 3.10.1C
insert
Division 3.10.1A	Professional confidential relationship privilege
126A	Definitions—div 3.10.1A
	(1)	In this division: 
confidant—see the definition of protected confidence.
harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (for example, shame, humiliation and fear).
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
protected confidence means a communication made by a person in confidence to someone else (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.
protected confider means a person who made a protected confidence.
protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence.
	(2)	For this division, a communication may be made in confidence even if it is made in the presence of a third party if the third party’s presence is necessary to facilitate communication.
126B	Exclusion of evidence of protected confidences
	(1)	The court may direct that evidence not be presented in a proceeding if the court finds that presenting 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 a direction under this section— 
	(a)	on its own initiative; or
	(b)	on the application of the protected confider or confidant (whether or not either is a party).
	(3)	The court must give a direction under this section 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 presented; and
	(b)	the nature and extent of the harm outweighs the desirability of the evidence being presented.
	(4)	Without limiting the matters that the court may take into account for this section, it must 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 offence, cause of action or defence and the nature of the subject matter of the proceeding;
	(d)	the availability of any other evidence relating to the matters to which the protected confidence or protected identity information relates;
	(e)	the likely effect of presenting 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 present 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 someone else;
	(i)	the public interest in preserving the confidentiality of protected confidences;
	(j)	the public interest in preserving the confidentiality of protected identity information.
	(5)	The court must state its reasons for giving or refusing to give a direction under this section.
126C	Loss of professional confidential relationship privilege—consent
This division does not prevent the presenting of evidence with the protected confider’s consent.
126D	Loss of professional confidential relationship privilege—misconduct
	(1)	This division does not prevent the presenting 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 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 made or the document was prepared as mentioned in paragraph (b).
126E	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 or protected identity information, the court may—
	(a)	order that all or part of the evidence be heard in closed court; and
	(b)	make an order relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, is necessary to protect the safety and welfare of the protected confider.
126F	Application—div 3.10.1A
	(1)	This division extends to a protected confidence made before the commencement of this division.
	(2)	This division does not apply in relation to a proceeding the hearing of which began before the commencement of this division.
	(3)	This division does not apply in relation to a protected confidence within the meaning of the Evidence (Miscellaneous Provisions) Act 1991, division 4.5. 
Note	The Commonwealth Act does not include this subsection.
	(4)	The court may give a direction under this division in relation to a protected confidence or protected identity information whether or not the protected confidence or protected identity information is privileged under another section of this part or would be privileged except for a limitation or restriction imposed by that section.
	(5)	For subsection (2), the hearing of a proceeding has begun if the court has begun to take oral or written evidence in the proceeding (other than in relation to bail or any other interlocutory matter).
Note	The Commonwealth Act and NSW Act do not include this subsection.
Division 3.10.1C	Journalist privilege
126J	Definitions—div 3.10.1C
In this division:
informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.
journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.
news medium means a medium for the dissemination to the public or a section of the public of news and observations on news.
126K	Journalist privilege relating to informant’s identity
	(1)	If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor the journalist’s employer is compellable to answer any question or produce any document that would disclose the informant’s identity or enable that identity to be ascertained.
	(2)	The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be decided in the proceeding, the public interest in the disclosure of the informant’s identity outweighs—
	(a)	any likely adverse effect of the disclosure on the informant or anyone else; and
	(b)	the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the news media’s ability to access sources of facts.
	(3)	An order under subsection (2) may be made subject to the conditions (if any) the court thinks fit.
Note	The Commonwealth Act, s 126H is equivalent to this section.
126L	Application—div 3.10.1C
	(1)	This division extends to information given by an informant before the commencement of this division.
	(2)	This division does not apply in relation to a proceeding the hearing of which began before the commencement of this division.
	(3)	This division (as applied by section 131A) does not apply to a disclosure requirement mentioned in that section made before the commencement of this division.
	(4)	For subsection (2), the hearing of a proceeding has begun if the court has begun to take oral or written evidence in the proceeding (other than in relation to bail or any other interlocutory matter).
Note	The NSW Act does not include this subsection and the Commonwealth Act does not include this section.
5	Privilege in relation to selfincrimination in other proceedings
Section 128 (3)
omit everything before paragraph (a), substitute
	(3)	Subject to subsection (4), if the court decides that there are reasonable grounds for the objection, the court must not require the witness to give the evidence and must tell the witness—
6	Section 128 (7) (b)
before
any
insert
evidence of
7	New section 128 (13) to (15)
before the notes, insert
	(13)	If a person has been given a certificate under a prescribed State or Territory provision in relation to evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.
	(14)	For subsection (13), a prescribed State or Territory provision is a provision of a State or Territory law declared by regulation to be a prescribed State or Territory provision for that subsection.
	(15)	Subsection (13) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a Commonwealth law or for the recovery of a civil penalty under a Commonwealth law.
Note 	The Commonwealth Act, s 128 (12) to (14) gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal courts and in prosecutions for Commonwealth offences.
8	Privilege in relation to selfincrimination—exception for certain orders etc
New section 128A (12) to (14)
insert
	(12)	If a person has been given a certificate under a prescribed State or Territory provision in relation to information mentioned in subsection (6) (a), the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.
	(13)	For subsection (12), a prescribed State or Territory provision is a provision of a State or Territory law declared by regulation to be a prescribed State or Territory provision for that subsection.
	(14)	Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a Commonwealth law or for the recovery of a civil penalty under a Commonwealth law.
Note	The Commonwealth Act does not contain provisions corresponding to s 128A (12) to (14).
9	Application of div 3.10.4 to preliminary proceedings of courts
Section 131A (1) (a)
after
division 3.10.1
insert
, division 3.10.1A, division 3.10.1C
10	Section 131A (2), new notes
insert
Note 1	The Commonwealth Act, s 131A applies only to that Act, div 1A (Journalists’ privilege).
Note 2	The Commonwealth Act includes a provision (s 131B) that extends the application of that Act, div 1A to proceedings in all Australian courts for Commonwealth offences.
11	Dictionary, part 1, new definitions
insert
confidant, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
harm, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
informant, for division 3.10.1C (Journalist privilege)—see section 126J.
journalist, for division 3.10.1C (Journalist privilege)—see section 126J.
news medium, for division 3.10.1C (Journalist privilege)—see section 126J.
protected confidence, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
protected confider, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
protected identity information, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
12	Dictionary, part 2, section 4 (1) (c) to (f)
substitute
	(c)	the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
	(d)	it would be unlawful for the person to give the evidence; or 
	(e)	a provision of this Act prohibits the evidence being given; or 
	(f)	all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success; or 
	(g)	all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. 

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on	2011.
2	Notification
	Notified under the Legislation Act on	2011.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2011