Untitled document

Evidence (Confidential Communications) Act 1998

Act No. 21/1998

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	1
3.	Principal Act	2
4.	New Division 2A inserted in Part II	2
Division 2A—Confidential Communications	2

32B.	Definitions	2
32C.	Exclusion of evidence of confidential communications	4
32D.	Restriction on granting leave	5
32E.	Limitations on privilege	6
32F.	Ancillary orders available on a granting of leave	8
32G.	Operation of Division	8

5. New section 154 inserted 9

154. Transitional provisions (Division 2A of Part II) 9

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NOTES 11

i

Victoria

No. 21 of 1998

Evidence (Confidential

Communications) Act 1998†

[Assented to 5 May 1998]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to amend the Evidence Act 1958 so as to protect from disclosure in legal proceedings confidential communications between

the victim or alleged victim of a sexual offence
and a medical practitioner or counsellor. The Act
enables a court to order disclosure but specifies
matters about which the court must be satisfied

before doing so.

2. Commencement

Evidence (Confidential Communications) Act 1998

Act No. 21/1998

(1) Sections 1, 3 and this section come into operation

on the day on which this Act receives the Royal

Assent.

(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a

day to be proclaimed.

(3) If the provisions referred to in sub-section (2) do

not come into operation before 1 September 1998,

they come into operation on that date.

3. Principal Act

In this Act, the Evidence Act 1958 is called the	No. 6246. Reprint No. 11
Principal Act.	as at 26 June 1997. Further
amended by Nos 8/1991,
4/1997, 58/1997,
81/1997, 102/1997 and
108/1997.

4. New Division 2A inserted in Part II

After Division 2 of Part II of the Principal Act insert—

'Division 2A—Confidential Communications

32B. Definitions

(1) In this Division—

"confidential communication" means a

communication, whether oral or
written, made in confidence by a person
against whom a sexual offence has
been, or is alleged to have been
committed to a registered medical
practitioner or counsellor in the course
of the relationship of medical
practitioner and patient or counsellor
and client, as the case requires, whether

Evidence (Confidential Communications) Act 1998

s. 4	Act No. 21/1998
before or after the acts constituting the offence occurred or are alleged to have occurred;

"counsellor" means a person who is treating

a person for an emotional or
psychological condition;

"harm" includes actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or

psychological harm (such as shame,
humiliation or fear);

"protected confider" means a person who made a confidential communication;

"protected evidence" means evidence that

is protected from being adduced by
section 32C(1);

"protected identity information", in

relation to a person, is information
about, or enabling a person to ascertain,
the address (including a private,
business or official address) or
telephone number (including a private,
business or official telephone number)

of the person;

"registered medical practitioner" means a

registered medical practitioner within the meaning of the Medical Practice Act 1994;

"sexual offence" means an offence to which

clause 1 of Schedule 1 to the
Sentencing Act 1991 applies.

(2) For the purposes of 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

Evidence (Confidential Communications) Act 1998

Act No. 21/1998 s. 4

necessary to facilitate communication or

further the treatment or counselling process.

32C. Exclusion of evidence of confidential

communications

(1) Evidence is not to be adduced in a legal

proceeding if it would disclose—

(a) a confidential communication; or

(b) the contents of a document recording a confidential communication—

unless the court grants leave to adduce it and
the party seeking to have it adduced has
given notice of their intention in accordance

with sub-section (2).

(2) A party seeking to adduce protected

evidence must, not less than 14 days before
the evidence is proposed to be adduced, give

notice in writing of their intention to—

(a) each other party to the proceeding; and

(b)	in the case of a criminal proceeding, the informant; and
(c)	the medical practitioner or counsellor, as the case requires, if not a party.

(3) The court may—

(a)	fix a period of notice shorter than that referred to in sub-section (2); or
(b)	waive the requirement to give notice under sub-section (2).

(4) On receipt of a notice under sub-section

(2)(b), the informant must give a copy of the
notice to the protected confider within a
reasonable time after its receipt.

Evidence (Confidential Communications) Act 1998

s. 4 Act No. 21/1998

(5) Whether or not notice has been given under

sub-section (2) or (4), the medical
practitioner or counsellor, as the case
requires, and the protected confider may,
with the leave of the court, appear in the
proceeding and make submissions.

(6) For the purpose of determining an

application for leave under sub-section (1) or (5), the court may order that the document be produced to it and may inspect it but must
not make the document available, or disclose
its contents, to the applicant for leave.

(7) Evidence that, because of sub-section (1), is

not to be adduced in a legal proceeding is not
admissible in the proceeding.

32D. Restriction on granting leave

(1) A court must not grant leave to adduce

protected evidence unless it is satisfied, on

the balance of probabilities, that—

(a)	the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce it, have substantial probative value to a fact in issue; and
(b)	probative value concerning the matters

other evidence of similar or greater is not available; and

(c) confidentiality of confidential
communications and protecting a
protected confider from harm is
substantially outweighed by the public

the public interest in preserving the evidence of substantial probative value.

Evidence (Confidential Communications) Act 1998

Act No. 21/1998 s. 4

(2) Without limiting the matters that the court may take into account for the purposes of sub-section (1)(c), the court must take into

account the likelihood, and the nature or
extent, of harm that would be caused to the
protected confider if the protected evidence

is adduced.

(3) Leave may be granted to adduce evidence of

part of—

(a) a confidential communication; or

(b) the contents of a document recording a confidential communication—

and, if so, that part of the document may be
made available, or that part of its contents
disclosed, in any manner that the court thinks
fit to the party seeking to adduce it in

evidence.

(4) The court must state its reasons for giving or
refusing to give leave under this section.

(5) If leave is refused under this section, that

fact must not be referred to in the presence

of the jury, if any.

32E. Limitations on privilege

(1) This Division does not prevent the adducing of evidence—

(a)	with the consent of the protected confider or, if he or she is under 14 years of age, with the consent of any
person whom the court regards as being an appropriate person to give that consent; or
(b)

of information acquired by a registered examination (including

Evidence (Confidential Communications) Act 1998

s. 4	Act No. 21/1998
communications made during the examination) of the protected confider in relation to the commission or alleged commission of the sexual offence; or

(c)	of a communication made, or the contents of a document prepared, for the purpose of a legal proceeding arising from the commission or alleged commission of the sexual offence; or
(d)	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; or
(e)	of a communication made if it is evidence of the commission of an offence of wilful and corrupt perjury.

(2) For the purposes of sub-section (1)(d), 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 the commission of the fraud, offence or act—

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

(3) If consent to the adducing of evidence is not given under sub-section (1)(a), that fact must not be referred to in the presence of the jury, if any.

Evidence (Confidential Communications) Act 1998

Act No. 21/1998 s. 4

32F. Ancillary orders available on a granting of

leave

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

(a)	order that all or part of the evidence be heard in camera; or
(b)	make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety or welfare of the protected confider or the registered medical practitioner or counsellor, as the case requires; or
(c)	make such orders relating to disclosure of protected identity information as, in the opinion of the court, are necessary to protect the safety or welfare of the
protected confider or the safety of the registered medical practitioner or counsellor, as the case requires.

32G. Operation of Division

(1) Nothing in this Division affects the operation

of—

(a) section 28, 37, 37A, 39 or 40; or

(b) Division 1A of Part 6 of the Sentencing Act 1991.

(2) Sub-section (1) applies whether a

communication was made before or after the
date on which the sexual offence was
committed or alleged to have been
committed and whether made before or after

Evidence (Confidential Communications) Act 1998

s. 5 Act No. 21/1998

the date on which section 4 of the Evidence (Confidential Communications) Act 1998 came into operation.'.

5. New section 154 inserted

After section 153 of the Principal Act insert—

"154. Transitional provisions (Division 2A of

Part II)

(1) The amendment of this Act made by section

4 of the Evidence (Confidential
Communications) Act 1998 applies to—

(a) any committal proceeding or hearing of a charge for an offence that commences on or after the commencement of that

section; or

(b)	a hearing under section 5 of the Crimes (Criminal Trials) Act 1993 that commences on or after that commencement; or
(c)	any trial that commences on or after that commencement; or
(d)	any civil proceeding that commences on or after that commencement—

irrespective of when the offence to which the
committal proceeding, hearing, trial or civil
proceeding relates is alleged to have been

committed.

(2) For the purposes of sub-section (1)—

(a) a committal proceeding commences on the committal mention date; and

Evidence (Confidential Communications) Act 1998

Act No. 21/1998 s. 5

(b)	a hearing of a charge for an offence commences on the taking of a formal plea from the accused; and
(c)	a trial commences on arraignment of the accused in accordance with Subdivision (12) of Division 1 of Part III of the Crimes Act 1958.".

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Evidence (Confidential Communications) Act 1998

Notes Act No. 21/1998

NOTES

†

Minister's second reading speech—

Legislative Assembly: 19 March 1998

Legislative Council: 21 April 1998

The long title for the Bill for this Act was "to amend the Evidence Act 1958 so as to protect from disclosure in legal proceedings confidential communications between the victim or alleged victim of a sexual offence

and a medical practitioner or counsellor and for other purposes."