Part 3.10Division 1 Client legal privilege
(1) In this Division:client includes the following:
(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),(b) an employee or agent of a client,(c) an employer of a lawyer if the employer is:(i) the Commonwealth or a State or Territory, or(ii) a body established by a law of the Commonwealth or a State or Territory,(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting,(e) if a client has died—a personal representative of the client,(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it, or(b) the person to whom it was made,was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it, or(b) the person for whom it was prepared,was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.lawyer means:
(a) an Australian lawyer, and(b) an Australian-registered foreign lawyer, and(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).party includes the following:
(a) an employee or agent of a party,(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party—a manager, committee or person so acting,(c) if a party has died—a personal representative of the party,(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.(2) A reference in this Division to the commission of an act includes a reference to a failure to act.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication made between the client and a lawyer, or(b) a confidential communication made between 2 or more lawyers acting for the client, or(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or(b) the contents of a confidential document (whether delivered or not) that was prepared,for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication between the party and another person, or(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party,for the dominant purpose of preparing for or conducting the proceeding.(2) (Repealed)
121 Loss of client legal privilege: generally
(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.
122 Loss of client legal privilege: consent and related matters
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.(3) Without limiting subsection (2), a client or party is taken to have so acted if:(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:(a) the substance of the evidence has been disclosed:(i) in the course of making a confidential communication or preparing a confidential document, or(ii) as a result of duress or deception, or(iii) under compulsion of law, or(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
123 Loss of client legal privilege: defendants
In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of:(a) a confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person, or(b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person.Note. Associated defendant is defined in the Dictionary.
124 Loss of client legal privilege: joint clients
(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter.(2) This Division does not prevent one of those parties from adducing evidence of:(a) a communication made by any one of them to the lawyer, or(b) the contents of a confidential document prepared by or at the direction or request of any one of them,in connection with that matter.
125 Loss of client legal privilege: misconduct
(1) This Division does not prevent the adducing of evidence of:(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in 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(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:(a) the fraud, offence or act, or the abuse of power, was committed, and(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,the court may find that the communication was so made or the document so prepared.(3) In this section:power means a power conferred by or under an Australian law.
126 Loss of client legal privilege: related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.Note. Example:A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability “as set out in my previous letter to you dated 11 August 1994”. In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.
Division 1A Professional confidential relationship privilege
(1) In this Division:harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear).
protected confidence means a communication made by a person in confidence to another person (in this Division called 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 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 necessary to facilitate communication.
126B Exclusion of evidence of protected confidences
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:(a) 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,(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 adducing of evidence given with the consent of the protected confider concerned.
126D Loss of professional confidential relationship privilege: misconduct
(1) This Division does not prevent the adducing of evidence of a communication made or the contents of a document prepared in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty.(2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that:(a) the fraud, offence or act was committed, and(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,the court may find that the communication was so made or document so prepared.
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 camera, and(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 and welfare of the protected confider.
(1) This Division does not apply in relation to a proceeding the hearing of which began before the commencement of this Division.(2) This Division applies in relation to a protected confidence within the meaning of this Division whether made before or after the commencement of this Division.(3) This Division does not apply in relation to a protected confidence within the meaning of Division 1B or Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.Note. The Commonwealth Act does not include this subsection.(4) The court may give a direction under this Division in respect of 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 so privileged except for a limitation or restriction imposed by that section.
Division 1B Sexual assault communications privilege
Note. The Commonwealth Act does not include this Division.
In this Division:criminal proceeding has the same meaning as criminal proceedings has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.
principal protected confider has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.
protected confidence has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.
sexual assault offence has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.
126H Exclusion of evidence of protected sexual assault communications
(1) This section applies only in a civil proceeding in which substantially the same acts are in issue as the acts that were in issue in relation to a criminal proceeding.(2) If evidence was found to be privileged in a criminal proceeding under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986, the evidence may not be adduced in a civil proceeding to which this section applies.
(1) This Division does not apply in relation to a civil proceeding the hearing of which began before the commencement of this section.(2) This Division applies, subject to subsection (1), in respect of a protected confidence whether made before or after the commencement of this section.
Division 1C Journalist privilege
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 engaged in the profession or occupation of journalism in connection with the publication of information 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 identity of informant
(1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant 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 determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs:(a) any likely adverse effect of the disclosure on the informant or any other person, and(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.(3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.
(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 referred to in that section made before the commencement of this Division.
(1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.(2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.(3) This section applies even if an Act provides:(a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence, or(b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground.(4) In this section:religious confession means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned.
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or(b) is liable to a civil penalty.(2) The court must determine whether or not there are reasonable grounds for the objection.(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:(a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and(b) that the court will give a certificate under this section if:(i) the witness willingly gives the evidence without being required to do so under subsection (4), or(ii) the witness gives the evidence after being required to do so under subsection (4), and(c) of the effect of such a certificate.(4) The court may require the witness to give the evidence if the court is satisfied that:(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and(b) the interests of justice require that the witness give the evidence.(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.(6) The court is also to cause a witness to be given a certificate under this section if:(a) the objection has been overruled, and(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.(7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:(a) evidence given by a person in respect of which a certificate under this section has been given, and(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.Note. This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an “Australian Court” instead of a “NSW court”.(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.(9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:(a) did an act the doing of which is a fact in issue, or(b) had a state of mind the existence of which is a fact in issue.(11) A reference in this section to doing an act includes a reference to failing to act.(12) If a person has been given a certificate under a prescribed State or Territory provision in respect of 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.(13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of 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 law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.Notes.1 Bodies corporate cannot claim this privilege. See section 187.
2 Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.
3 Section 128 (12)–(14) of the Commonwealth Act give effect to certificates in relation to self-incriminating evidence under the NSW Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences.
4 Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen [2007] HCA 12 (22 March 2007).
128A Privilege in respect of self-incrimination—exception for certain orders etc
(1) In this section:disclosure order means an order made by a NSW court in a civil proceeding requiring a person to disclose information as part of, or in connection with, a freezing, search or other order under Part 25 of the Uniform Civil Procedure Rules 2005 but does not include an order made by a court under the Proceeds of Crime Act 2002 of the Commonwealth or the Confiscation of Proceeds of Crime Act 1989 or Criminal Assets Recovery Act 1990 of New South Wales.
relevant person means a person to whom a disclosure order is directed.
(2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person:(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or(b) is liable to a civil penalty,the person must:(c) disclose so much of the information required to be disclosed to which no objection is taken, and(d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope, and(e) file and serve on each other party a separate affidavit setting out the basis of the objection.(3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.(4) The court must determine whether or not there are reasonable grounds for the objection.(5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person.(6) If the court is satisfied that:(a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and(b) the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and(c) the interests of justice require the information to be disclosed,the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.(7) If the whole or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must cause the relevant person to be given a certificate in respect of the information referred to in subsection (6) (a).(8) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section, and(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information,cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.(9) Subsection (8) does not prevent the use against the relevant person of any information disclosed by a document:(a) that is an annexure or exhibit to a privilege affidavit prepared by the person in response to a disclosure order, and(b) that was in existence before the order was made.(10) Subsection (8) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.(11) If a person has been given a certificate under a prescribed State or Territory provision in respect of information of a kind referred to 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.(12) For the purposes of subsection (11), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection.(13) Subsection (11) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.Note. Section 87 of the Civil Procedure Act 2005 makes provision with respect to protection against self-incrimination in relation to certain matters to which this section does not apply.
Division 3 Evidence excluded in the public interest
129 Exclusion of evidence of reasons for judicial etc decisions
(1) Evidence of the reasons for a decision made by a person who is:(a) a judge in an Australian or overseas proceeding, or(b) an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration,or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person.(2) Such evidence must not be given by tendering as evidence a document prepared by such a person.(3) This section does not prevent the admission or use, in a proceeding, of published reasons for a decision.(4) In a proceeding, evidence of the reasons for a decision made by a member of a jury in another Australian or overseas proceeding, or of the deliberations of a member of a jury in relation to such a decision, must not be given by any of the members of that jury.(5) This section does not apply in a proceeding that is:(a) a prosecution for one or more of the following offences:(i) an offence against or arising under section 319, 321, 322 or 333 of the Crimes Act 1900,(ii) an offence against or arising under section 67 of the Jury Act 1977,(iii) an offence connected with an offence mentioned in subparagraph (i) or (ii), including an offence of conspiring to commit such an offence, or(b) in respect of a contempt of a court, or(c) by way of appeal from, or judicial review of, a judgment, decree, order or sentence of a court, or(d) by way of review of an arbitral award, or(e) a civil proceeding in respect of an act of a judicial officer or arbitrator that was, and that was known at the time by the judicial officer or arbitrator to be, outside the scope of the matters in relation to which the judicial officer or arbitrator had authority to act.Note. Subsection (5) (a) differs from section 129 (5) (a) of the Commonwealth Act.
130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:(a) prejudice the security, defence or international relations of Australia, or(b) damage relations between the Commonwealth and a State or between 2 or more States, or(c) prejudice the prevention, investigation or prosecution of an offence, or(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or(f) prejudice the proper functioning of the government of the Commonwealth or a State.(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:(a) the importance of the information or the document in the proceeding,(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,(e) whether the substance of the information or document has already been published,(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.(6) A reference in this section to a State includes a reference to a Territory.
131 Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of:(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.(2) Subsection (1) does not apply if:(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent, or(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute, or(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, or(d) the communication or document included a statement to the effect that it was not to be treated as confidential, or(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute, or(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue, or(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence, or(h) the communication or document is relevant to determining liability for costs, or(i) making the communication, or preparing the document, affects a right of a person, or(j) the communication was made, or the document was prepared, in 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(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.(3) For the purposes of subsection (2) (j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that:(a) the fraud, offence or act was committed, and(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,the court may find that the communication was so made or the document so prepared.(4) For the purposes of subsection (2) (k), if:(a) the abuse of power is a fact in issue, and(b) there are reasonable grounds for finding that a communication was made or document prepared in furtherance of the abuse of power,the court may find that the communication was so made or the document was so prepared.(5) In this section:(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding, and(b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding, and(c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person, and(d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent, and(e) a reference to commission of an act includes a reference to a failure to act.(6) In this section:power means a power conferred by or under an Australian law.
131A Application of Part to preliminary proceedings of courts
(1) If:(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and(b) the person objects to giving that information or providing that document,the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:(a) a summons or subpoena to produce documents or give evidence,(b) pre-trial discovery,(c) non-party discovery,(d) interrogatories,(e) a notice to produce,(f) a request to produce a document under Division 1 of Part 4.6.
132 Court to inform of rights to make applications and objections
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.
133 Court may inspect etc documents
If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.
134 Inadmissibility of evidence that must not be adduced or given
Evidence that, because of this Part, must not be adduced or given in a proceeding is not admissible in the proceeding.