Rossi & Hardwicke
[2024] FedCFamC1F 335
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rossi & Hardwicke [2024] FedCFamC1F 335
File number(s): CAC 1225 of 2022 Judgment of: GILL J Date of judgment: 17 May 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application of ACT provisions relating to sexual assault and family violence counselling records to proceedings conducted under the Family Law Act1975 – Section 79 of the Judiciary Act 1903 – The provisions of the Family Law Act and the Federal Circuit and Family Court of Australia (Family Law) Rules and the Evidence Act 1995 provide otherwise – ACT provisions do not apply Legislation: The Australia Constitution – s 109
Australian Capital Territory (Self-Government) Act 1988 (Cth) – s 28
Evidence Act 1995 (Cth) – ss 56 and 138
Family Law Act 1975 (Cth) – s 95 and Pt VII
Judiciary Act 1903 (Cth) – s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – Pt 6.5
Evidence (Miscellaneous Provisions) Act 1991 (ACT) – Div 4.4.3
Cases cited: Herron v Harper Collins Publishers Australia Pty Ltd [2022] FCAFC 68
Northern Territory v GPAO (1999) 196 CLR 553
Rizeq v Western Australia (2017) 262 CLR 1
University of Wollongong v Metwally (1984) 158 CLR 447
Division: Division 1 First Instance Number of paragraphs: 58 Date of last submission/s: 9 May 2024 Date of hearing: 3 May 2024 Place: Canberra Solicitor for the Applicant: Mr McBride, Bevan & Co Solicitor for the Respondent: Ms Storrier, JS Family Law Counsel for the Independent Children's Lawyer: Dr Leslie Solicitor for the Independent Children's Lawyer: Infinity Legal Solicitor for the Other: Ms Musgrove, Government Solicitor for the Australian Capital Territory, as amicus curiae ORDERS
CAC 1225 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROSSI
Applicant
AND: MS HARDWICKE
Respondent
ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Other
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
1.The provisions of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) do not apply to documents the subject of subpoenas issued in these proceedings.
2.The proceedings are adjourned for further directions and orders concerning subpoenas issued in the proceedings, and material produced in response to such, to 10 am on 5 June 2024 before a Judicial Registrar.
IT IS NOTED THAT
3.The orders prohibiting access to certain material produced on subpoena without further order of the court are, at present, not discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym, Rossi & Hardwicke, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
This matter involves the determination of procedures that govern the compulsory production to this court of documents containing protected confidences, as defined by the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (“EMPA”), and their use as evidence in proceedings before this court.
The EMPA contains provisions that set out a strict framework for the production of such documents to the court, and for the adduction of such into the proceedings. In short, each requires the active intervention of the court, and for the court to grant leave. The precise terms of those requirements are set out later in this judgment. The key issue is whether these provisions are picked up by s 79 of the Judiciary Act 1903 (Cth) (“Judiciary Act”), or displaced by operation of the Evidence Act 1995 (Cth) (“Evidence Act”), the Family Law Act 1975 (Cth) (“FLA”), the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Rules”), the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCoA Act”), or s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (“Self-Government Act”).
Background
The background to this judgment is the conduct of primary proceedings in this court, concerning the parenting arrangements for children of the relationship. A key, but contested issue in those proceedings is whether the father has engaged in family violence or sexual abuse of the mother, Ms Hardwicke, or of a child of the relationship, namely X or Y.
In preparation of the case, the father has caused subpoenae to be directed to a number of agencies, in particular the Domestic Violence Crisis Service (“DVCS”), ACT Victim Support (“ACTVS”), and the Canberra Rape Crisis Centre (“CRCS”) with schedules seeking the production of counselling records and counselling notes involving the mother and/or two named children, X and Y. The father was candid that the objective of the subpoenae was the production of protected confidences, being communications made with the expectation of confidentiality, and hence documents purportedly falling under the protection of the EMPA.
On identification of the fact that the ACT has a legislative scheme dealing with the production to a court of, and admission into evidence of family violence and sexual assault counselling documents, the proceedings were listed for argument to determine whether such provisions bind this court. The ACT Attorney-General was notified of the issue, and appeared as amicus curiae on the argument.
INTERACTION BETWEEN FEDERAL COURTS AND TERRITORY LEGISLATION
A similar question of the interaction of Territory law with a court exercising federal jurisdiction arose in the High Court in Northern Territory v GPAO (1999) 196 CLR 553 (GPAO), where the collision was between a Territory provision that “stipulated that an [authorised person] was not to be required to produce the documents “in a court” except for the purposes of the Community Welfare Act”[1] and a subpoena issued by the Family Court of Australia compelling the production of the documents to the court.
[1] GPAO at [12].
In determining the issue Gleeson CJ and Gummow J identified a number of issues that are relevant to resolving the current conflict.
The first is the question of whether the EMPA has no effect by operation of s 109 of The Constitution, for inconsistency with a law of the Commonwealth, and is thereby invalid.[2] This was answered in a compact fashion by Gleeson CJ and Gummow J who concluded that the “terms of s 109 are not addressed to the relationship between laws of the Commonwealth and those enacted by the legislatures in the Territories.”[3] They then observed that, given that the Act that “gives life to and sustains” the Territory legislature is a law of the Commonwealth, it is subject to express and implied repeal by subsequent laws of the Commonwealth. In that case they determined that the paramountcy principle contained in the FLA which was raised as being in opposition to the immunity, was directed to the ultimate issue of what parenting order should be made, and that the immunity in the Northern Territory law did not, when it protected a person from the issue of a subpoena, “vary, impair or detract” from the operation of the paramountcy principle, nor that there was an intention to cover the field by the paramountcy principle.
[2] GPAO at [38].
[3] GPAO at [53].
Accordingly they concluded that there was no implied repeal, or inconsistency with the Northern Territory law which would displace it.
The second is the application of s 28 of the Self-Government Act which provides that a law made by the Legislative Assembly is of “no effect to the extent that it is inconsistent with a law in force in the Australian Capital Territory, not being an enactment of the Assembly or a subordinate law.” Chief Justice Gleeson and Gummow J went on to describe “that s28 operates not as a denial of power otherwise conferred by s8, but as a denial of effect to a law so made ‘to the extent’ of its inconsistency.” They further explained that, although analogous with s 109 of the Constitution, the “criterion for inconsistency – incapacity of concurrent operation – is narrower than that which applies under s 109, where the federal law evinces an intention to make exhaustive or exclusive provision upon a topic within the legislative power of the Commonwealth.”[4]
[4] GPAO [60].
The third is as to whether the EMPA is picked up by operation of s 79 of the Judiciary Act as a federal law that binds Division 1 of the FCFCoA, or whether a law of the Commonwealth provides otherwise. This third aspect should be considered in the light of a later High Court case of Rizeq v Western Australia (2017) 262 CLR 1 where the court examined the interaction of State laws with the exercise of federal jurisdiction, concluding that States lack the power to govern the exercise of federal jurisdiction, the effect State enactments have upon the exercise of federal jurisdiction being governed by s 79 of the Judiciary Act. It, however, remains unclear from Rizeq whether this restriction also applies to the Territory legislatures.
The EMPA Scheme
Division 4.4.3 of the EMPA (set out in the attached schedule) sets out a scheme in relation to protected confidences, which are relevantly defined at s 79A(1):
For this Division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been committed (the counselled person).
The term ‘counselling communication’ is in turn defined at s 79A(3):
(3)For this section, a counselling communication is a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality—
(a)by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(b)to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(c)by the counselled person to a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(d)to the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(e)about the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor to—
(i) the counselled person; or
(ii) the counsellor; or
(iii) another third party to whom subsection (4) applies; or
(f)about the counselled person by a counsellor to someone else who has also been a counsellor for the counselled person; or
(g)about the counselled person to a counsellor by someone else who has also been a counsellor for the counselled person.
As noted above, the father concedes that the documents sought fall within this description.
The EMPA then sets out at s 79D a scheme prohibiting disclosure to a court, including production to a court, absent leave being granted by the court, and prohibits the admission into evidence in the absence of leave being granted. At s 79E requirements for an application for leave are set out, along with, at s 79F, an obligation upon a court to refuse leave as a threshold issue, if not satisfied of a legitimate forensic purpose.
If satisfied of a legitimate forensic purpose, s 79G requires the court to examine the protected confidence evidence, allowing the court to compel its production for the court’s inspection, or to require a relevant counsellor to give written answers or to attend for oral examination. The content of this aspect of the proceedings must not be disclosed to the parties save for in certain circumstances relating to appeal.
Pursuant to s 79H, the court may give leave for disclosure, relevantly for civil proceedings if the court is satisfied that:
… the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence
A series of mandatory considerations are then set out at s 79H(3) and (4) as follows:
(3) In making a decision under subsection (1), the court must have regard to—
(a)for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and
(b)the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and
(c)the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and
(d)whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and
(e)the likelihood that disclosure of the protected confidence will affect the outcome of the case; and
(f)whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and
(g)whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and
(h)the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.
(4) Subsection (3) does not limit the matters to which the court may have regard.
In summary it may be seen that the EMPA provides a comprehensive scheme, prohibiting disclosure for, or subsequent use for the purpose of court proceedings without leave being granted, with the process for determining leave being subject to a strict framework.
Does the reference to proceedings in the EMPA include parenting proceedings under Part VII of the FLA?
Without suggesting it is so, if it is assumed that unlike the States, Territory Legislatures may be able to bind courts as to the manner of exercise of federal jurisdiction, consideration should be given to whether the EMPA, on its terms, does so. If the EMPA does not deal with proceedings under Part VII of the FLA, then, unless otherwise picked up by the Judiciary Act, there is no impact on the current proceedings, and no need to consider whether the Territories are in a different position to the States following Rizeq.
Strong reason for a construction that does not bear upon the FLA is seen in GPAO, where at [34] Gleeson CJ and Gummow J observed that the undefined reference to “court” in the Northern Territory legislation would normally “be read as identifying the courts of the Northern Territory itself.” Similarly here there is no particular reason to consider that what was intended was anything other than the courts of the ACT and the proceedings before them. It was further observed by Gleeson CJ and Gummow J that such a circumstance does not preclude the picking up of the provisions by a court exercising federal jurisdiction should the other criteria in s 79 of the Judiciary Act be met. This was the central point made by the Attorney-General for the ACT, who accepted that it was not intended by the Territory Legislature to apply to federal proceedings, emphasising that it is the Judiciary Act that will cause it to have application.
There are a number of reasons to agree with the Attorney-General for the ACT that the legislation was not directed to federal proceedings. Perhaps consistent with the EMPA being directed to Territory rather than federal proceedings, the heading of the Chapter containing the provisions, which is titled “Sexual, violent and family violence offence proceedings” while Division 4.4.3 is titled “Sexual and family violence offence proceedings-protection of counselling communications.”
It may be noted that the definitions for the Chapter describe sexual offence proceedings at s 41, violent offence proceedings at sections 29 and 40, and family violence offence proceedings at s 38 in a manner that identifies distinctly Territory proceedings, and is not inclusive of FLA proceedings.
However, it must also be accepted that the headings do not restrict the application of the provisions to the Territory proceedings as described by the headings, as despite the heading, s 79D is expressed to apply in relation to a proceeding, with proceedings relevantly defined for the Division at s 79 as “a civil or criminal proceeding.”
The father submits that the evolution of the EMPA also points away from a legislative intent to capture federal proceedings. He noted that as initially enacted, the provisions were directed to the production and use of protected confidences in criminal proceedings. The then s 58 of the EMPA was amended to its current form as s 79D through the Evidence (Miscellaneous Provisions) Amendment Act 2011 which extended the operation to civil proceedings. The Explanatory Memorandum provided as follows:
Sexual assault counselling communications immunity
Division 4.5 of the Evidence (Miscellaneous Provisions) Act 1991 currently provides immunity for sexual offence communications. It provides a framework for an ACT court to apply when a party seeks to disclose the counselling notes of a sexual offence victim in a criminal proceeding.
The policy argument in favour of the immunity is well accepted. Sexual assault counsellors serve a crucial role in the justice system, and 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.
The Bill includes amendments to extend this existing protection to civil proceedings. There is no compelling reason why the protections afforded in criminal proceedings should not be extended to civil proceedings. The public interest in encouraging victims of sexual assault to seek counselling exists in both the criminal and civil sphere. Indeed, legislation in New South Wales, South Australia, and Victoria provides protection in civil and criminal proceedings.
The amendments strike a balance between ensuring that victims do not face unreasonable barriers in adducing evidence of their own counselling communications, and ensuring that unreasonable barriers are not created for other parties which could adversely impact on the administration of justice in the Territory.
It is noteworthy that, consistent with the ordinary meaning of court as identified by Gleeson CJ and Gummow J, the Explanatory Memorandum is focussed upon “an ACT court” and the “administration of justice in the Territory.”
It should be concluded that, as in the case of GPAO, the Territory provisions are directed to the Territory courts, proceedings and processes.
In this instance, a corollary is that the terms and operation of the EMPA, directed as they are to Territory proceedings and not federal proceedings, are not inconsistent, in a relevant sense, with a federal law leading to either implied repeal, or displacement by s 28 of the Self-Government Act.
As noted above this does not prevent their picking up as federal laws by the Judiciary Act provided that the federal laws do not provide otherwise.
Section 79 of the Judiciary Act.
Section 79(1) of the Judiciary Act is in the following terms:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all case to which they are applicable.
In Rizeq the High Court explained that:
the Judiciary Act takes the text of State laws conferring or governing powers that State courts have when exercising State jurisdiction and applies that text as Commonwealth law to confer or govern powers that State courts and federal courts have when exercising federal jurisdiction.
As to the exclusion of that effect, Gleeson CJ and Gummow J observed that the notion “otherwise provided” was that identified by Mason J in University of Wollongong v Metwally (1984) 158 CLR 447, where he described inconsistency or repugnancy between statutes is when they are “in conflict, so much so that they cannot be reconciled one with the other” and that the law which is proposed as picked up by the Judiciary Act, “which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.” They considered that on the then state of the FLA enforcement provisions, room was left for the operation of the immunity conferred by the Northern Territory legislation, allowing that the immunity provided an answer of reasonable excuse to the obligation to produce, and concluding thereby that Part VII of the FLA did not relevantly provide otherwise.
Also significant to this conclusion was the place of the paramountcy principle of Part VII of the FLA. Chief Justice Gleeson and Gummow J concluded that the paramountcy principle was directed to the ultimate issue to be decided, that is, the particular parenting orders for the particular child, and so the immunity under the Northern Territory law, applied as it was to an adjectival rather than determinative step in the proceedings, did “not vary, impair or detract from the operation of the ‘paramountcy principle’” and did not render it impossible to give effect to the paramountcy principle.[5] Similarly Gaudron J identified that the paramountcy principle was directed to the making of the child related order, and so “has nothing to say about the Family Court’s power to compel the production of documents.”[6]
[5] GPAO [67], [68],[71]
[6] GPAO [143]
Justice Gaudron observed[7] more generally that:
With perhaps one presently irrelevant exception, no provision of the Act or the Rules bears on the question whether a person can be compelled to produce specific documents, for example documents which are the subject of legal professional privilege or are privileged on public interest grounds. The act and the Rules being relevantly silent in that regard, the issue is left to the general law. That being so neither the Act nor the Rules provides otherwise for the purpose of s79 of the Judiciary Act.
[7] GPAO [145]
However, it may be observed that the statutory framework governing this court has shifted since GPAO.
The Rules and the FLA
As in GPAO, the power exercised is the power to compel production to the court by subpoena. Given the answers in GPAO, the powers set out in the Rules, if considered alone, would not relevantly provide otherwise in respect of the EMPA.
As was the case observed by Gaudron J in relation to the Rules at the time of GPAO, the Rules remain silent in respect of privilege. Then, as now, provision was made in the Rules for the setting aside of a subpoena. Now, unlike then, there is a process for objection to inspection. Now, as then, the issue of privilege falls to the substantive law, being the applicable common law. It may also be considered that if the EMPA is picked up, it would grant a conditional immunity from production. In this way, if applicable, it could be accommodated by the Rules.
However, there are other features of the legislative scheme that were not in existence at the time GPAO was determined.
The first new feature relates to the manner in which the best interest of a child now attaches to adjectival procedural steps. Unlike at the time of GPAO, where it was determined that the paramountcy principle was directed to the determination of the particular parenting order and, although the principle permeated the whole of Part VII of the FLA, it was not directed to the adjectival steps, the consideration of the best interests of the child has now been extended into the practice and procedure of the court.
Section 95 of the FLA provides as follows:
95 Overarching purpose of the family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) in a way that ensures the safety of families and children; and
(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration—in a way that promotes the best interests of the child; and
(c) according to law; and
(d) as quickly, inexpensively and efficiently as possible.
Note: For family law practice and procedure provisions, see subsection (4).
(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:
(a) the just determination of all such proceedings;
(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;
(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;
(d) the disposal of all such proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act:
(a) the applicable Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court.
It may be observed that in proceedings in which the paramount consideration applies, the overarching purpose of the practice and procedure provisions, such as the Rules includes promoting the best interest of a child.
Of greater significance, since GPAO was determined s 69ZN, which sets out the Principles for conducting child related proceedings was enacted in the following terms:
69ZNPrinciples for conducting child‑related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
a. in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
b. in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
a. the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
b. the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
When the scheme provided for by the EMPA is considered, the central component to the issue of the granting of leave to produce, and for requiring production, is the stipulation of the mandatory considerations contained at s 79H that will determine whether or not leave should be granted. Those considerations include matters that may be consistent with the Principles set out above. However, they contain matters that potentially conflict with the Principles.
For example, considerations of public interest in ensuring that victims of sexual offences receive effective counselling or other treatment, or the extent that disclosure may dissuade victims of sexual offences from seeking counselling or treatment, are foreign considerations to the Principles.
This is not a commentary on whether or not such matters are worthy legislative objectives. However they are objectives, that form mandatory considerations, that are not necessarily aligned with the needs of the child the subject of the proceedings. They are considerations that deflect the court from making adjectival orders that reflect the Principles, or that reflect the overarching purpose of the practice and procedure provisions.
It may also be thought that the provision in the EMPA that provides for the judge to inspect the produced material, without such being disclosed to the parties, conflicts with s 97 of the FLA insofar as it provides, subject to particular exceptions, that proceedings are to be conducted in open court, a provision that reflects the principle of open justice.
If the current legislative circumstances reflected the position at the time of GPAO, there can be no doubt that the EMPA would not be displaced on the basis that Commonwealth provisions provide otherwise. However, the suite of changes indicate that for the ground occupied by the EMPA in relation to the production of material, the laws of the Commonwealth now provide otherwise. There are now mandated Principles to be applied. The purposes of the practice and procedure provisions are directed, at least in part, to the best interests of the child.
Conclusion as to the application of the EMPA to the production of material
The EMPA does not apply to bind courts exercising jurisdiction pursuant to the FLA in relation to compelling the production of protected confidences by subpoena.
The Evidence Act
The EMPA also deals with conditions placed upon the adducing of protected confidences.
GPAO was directed to the issue of the production of documents, not the adduction of evidence, and so potential inconsistency with the Evidence Act did not arise.
However, the EMPA purports to deal not only with production, but adduction, placing a requirement of the grant of leave before the documents may be tendered into evidence. Although there is perhaps some ambiguity as to whether that means the leave that was required for production, or a further species of leave, either restriction must be measured against the Evidence Act.
Whether or not the provisions relating to production of protected confidences are picked up as federal laws, the Evidence Act provides the scheme for the admission of such. This may be seen in at least two particular respects. The first is that the scheme of the Evidence Act is, pursuant to s 56:
(1) Except as otherwise provided by this Act, evidence that is relevant is a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
That is, relevance is the sole criterion for admissibility, subject to the application of a provision that would otherwise exclude the evidence.
To the extent that leave to admit is required pursuant to s 79D of the EMPA, it imposes a criterion foreign to s 56. Section 56 otherwise provides, as was similarly concluded by the Full Court of the Federal Court in Herron v Harper Collins Publishers Australia Pty Ltd [2022] FCAFC 68 at [363].
To the extent that the leave required for admission is the leave for disclosure earlier referred to in the section, then, if production occurred absent leave admission is precluded. If this is the effect of the provision it conflicts with s 138 of the Evidence Act, which deals with the admission of evidence obtained illegally or improperly. Section 138 provides a framework of default exclusion of evidence obtained improperly or in contravention of an Australian law, or in consequence thereof, subject to a determination that the desirability of admitted in the evidence outweighs the undesirability of admitting evidence that has been obtained in that way.
In terms of dealing with the admission of material obtained improperly, that is, without leave, s 138 relevantly provides otherwise.
The Attorney-General for the ACT, appearing as amicus curiae, appropriately conceded that the Evidence Act provides otherwise.
Conclusion as to the application of the EMPA to the adducing of evidence
The conclusion is that insofar as the EMPA may be construed as placing a requirement for leave as a precursor to admission, the Evidence Act provides otherwise and the EMPA is not picked up by s 79 of the Judiciary Act.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 May 2024
Schedule
Evidence (Miscellaneous Provisions) Act 199179 Definitions—div 4.4.3
In this division:
civil proceeding does not include a criminal proceeding.
counselling means counselling, therapy or treatment for an emotional or psychological condition, whether or not the counselling, therapy or treatment is provided for remuneration.
counsellor means a person who—(a)has undertaken training or study, or has experience, relevant to the process of counselling people who have suffered harm; or
(b)is supervised by someone to whom paragraph (a) applies.
criminal proceeding means—
(a) a proceeding for any offence; or
(b) a sentencing proceeding for a person convicted or found guilty of any offence; or(c)an appeal or other review (whether by prerogative order or otherwise) arising out of a proceeding mentioned in paragraph (a) or (b); or
(d)an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c);
but does not include a preliminary criminal proceeding.
document recording a protected confidence includes––
(a)a copy, reproduction, republication, duplicate or summary of, or extract from, a document recording a protected confidence; and
(b)the part of a document recording a protected confidence; and
(c)the part of a document containing a report, observation, opinion, advice, recommendation or anything else in relation to a protected confidence that is—
(i)made or given by the person who made the protected confidence; or
(ii)made or given by a third party mentioned in section 79A (4) in whose presence the protected confidence is made; and
(d)a copy, reproduction, republication, duplicate or summary of, or extract from, the part of a document mentioned in paragraph (b) or (c).
harm includes––
(a) actual physical harm; and
(b) stress or shock; and
(c) prejudice to privacy; and
(d) emotional or psychological harm, including, for example, shame, humiliation and fear; and
(e) damage to reputation; and
(f) financial loss.preliminary criminal proceeding means—
(a)a committal proceeding for any offence; or
(b)a proceeding in relation to bail for a person charged with any offence; or
(c)an appeal or other review (whether by prerogative order or otherwise) arising out of a proceeding mentioned in paragraph (a) or (b); or
(d)an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).
proceeding means a civil or criminal proceeding.
protected confidence––see section 79A (1).
protected confidence evidence means––
(a) oral or written evidence that would disclose a protected confidence; or
(b) a document recording a protected confidence; or(c)oral or written evidence that would disclose the contents of a document recording a protected confidence.
79A Meaning of protected confidence—div 4.4.3
(1)For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person).
(2) A counselling communication is a protected confidence even if––
(a)it is made before the happening, or alleged happening, of the acts constituting the sexual offence or family violence offence; or
(b)it is not made in relation to––
(i)the sexual offence or any sexual offence; or
(ii)a condition arising from the sexual offence or any sexual offence; or
(iii)the family violence offence or any family violence offence; or
(iv)a condition arising from the family violence offence or any family violence offence.
(3)For this section, a counselling communication is a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality—
(a)by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(b)to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(c)by the counselled person to a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(d)to the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(e)about the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor to—
(i)the counselled person; or
(ii)the counsellor; or
(iii)another third party to whom subsection (4) applies; or
(f)about the counselled person by a counsellor to someone else who has also been a counsellor for the counselled person; or
(g)about the counselled person to a counsellor by someone else who has also been a counsellor for the counselled person.
(4)For this section, in deciding whether a communication was made in circumstances that gave rise to a reasonable expectation of confidentiality, it does not matter that the communication was made in the presence of a third party, if the third party was present to assist or encourage communication between the counselled person and counsellor or otherwise assist the counselling process.
Examples—third parties
1a parent, partner, carer, spiritual adviser or other supportive person
2a person present at the request of the counsellor to take notes of the counselling session
(5)In this section:
family violence offence includes alleged family violence offence.
sexual offence includes alleged sexual offence.
79B When does div 4.4.3 apply?
This division applies to a protected confidence made before or after the commencement of this division.
79C Immunity for protected confidences in preliminary criminal proceedings
(1)A protected confidence must not be disclosed in, or for the purposes of, a preliminary criminal proceeding.
(2) Without limiting subsection (1)––
(a)a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to a preliminary criminal proceeding, to produce a document recording a protected confidence; and
(b)protected confidence evidence is not admissible in the preliminary criminal proceeding.
Example––par (a)
A person could not be required to disclose a protected confidence in response to a request for production of documents in a preliminary criminal proceeding.
79D General immunity for protected confidences
(1) This section applies in relation to a proceeding.
(2)A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure.
(3) Without limiting subsection (2)––
(a)a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and
(b)protected confidence evidence is not admissible in the proceeding, unless the court gives leave.
Example––par (a)
A person could not be required to disclose a protected confidence in response to a request for production of documents in a proceeding unless the court gives leave.
79E Application for leave to disclose protected confidence
(1) An application for leave must—
(a)be in writing; and
(b)set out the leave sought; and
(c)set out the applicant’s arguments in support of the application (including the matters mentioned in section 79F (2)).
(2) The application must also––
(a)set out briefly the nature of the protected confidence evidence (if known); and
(b)set out, or be accompanied by a copy of, any relevant documents.
79F Threshold test––legitimate forensic purpose
(1)The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.
(2) To establish a legitimate forensic purpose, the applicant must—
(a)identify a legitimate forensic purpose for seeking the leave; and
(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.
(3)The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.
79G Preliminary examination of protected confidence evidence
(1)If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.
(2) For the preliminary examination, the court may––
(a)require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or
(b)require the counsellor or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity––
(i) to give the court written answers to any questions; or
(ii) to attend the court for oral examination.
(3)The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.
(4)Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.
(5) The preliminary examination must be conducted––
(a)in the absence of the public and the jury (if any); and
(b)in the absence of the parties to the proceeding and their lawyers, except to the extent otherwise decided by the court.
(6)Evidence taken at the preliminary examination must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court or an appellate court under section 79H (6).
(7)A record of the preliminary examination must be made, but must not be made available for public access.
79H Giving of leave to disclose protected confidence
(1)After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that—
(a)for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or
(b)for a criminal proceeding—the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.
(2)To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document.
(3)In making a decision under subsection (1), the court must have regard to—
(a)for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and
(b)the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and
(c)the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and
(d)whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and
(e)the likelihood that disclosure of the protected confidence will affect the outcome of the case; and
(f)whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and
(g)whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and
(h)the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.
(4)Subsection (3) does not limit the matters to which the court may have regard.
(5)Leave under this section may be given subject to conditions.
(6)If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 79G, and may make the orders about the disclosure of the evidence it considers appropriate.
79I Ancillary orders for protection of person who made protected confidence
(1)The court may make any order it considers appropriate to limit possible harm, or the extent of possible harm, to a person who made a protected confidence by the disclosure of protected confidence evidence.
(2)Without limiting subsection (1), the court may––
(a)order that the court be closed to the public while all or part of the protected confidence evidence is presented; or
(b)for a document recording a protected confidence––order that a document be edited as directed by the court or that a copy of a document (or part of a document) be disclosed instead of the original; or
(c)make orders in relation to the suppression or publication of all or any part of the protected confidence evidence; or
(d)for a document recording a protected confidence––make orders about the production or inspection of the document; or
(e)make orders in relation to the disclosure of—
(i)protected identity information about the person who made the protected confidence; or
(ii)information that discloses the identity of the person who made the protected confidence; or
(iii)information from which the identity of the person who made the protected confidence might reasonably be inferred.
(3)This section is in addition to section 74 (Prohibition of publication of complainant’s identity).
(4)In this section:
protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.
79J No waiver of protected confidence immunity
This division applies whether or not a person who has made a protected confidence consents or does not object to the disclosure of the protected confidence.
79K No protected confidence immunity for medical information
This division does not apply in relation to––
(a)information obtained by a doctor because of a physical examination of a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed; or
(b)any communication made in the course, or because, of the examination.
79LNo protected confidence immunity for communications for criminal investigations and proceedings
This division does not apply to a communication made for the purpose of—
(a)an investigation by a law enforcement entity into the commission or alleged commission of a sexual offence or family violence offence; or
(b)a preliminary criminal proceeding or criminal proceeding arising from the commission or alleged commission of a sexual offence or family violence offence.
79M No protected confidence immunity in case of misconduct
(1)This division does not apply in relation to a communication made, or a document prepared, in the furtherance of the commission of an offence, a fraud or an act that makes a person liable to a civil penalty.
(2)A court may find that a communication was made, or a document was prepared, in the furtherance of the commission of an offence, a fraud or an act if there are reasonable grounds for finding that––
(a)the offence, fraud or act was committed; and
(b)the communication was made, or document prepared, in the furtherance of the offence, fraud or act.
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