THE AUSTRALIAN Law Reform Commission has urged wide-ranging reform to harmonise evidence laws across the country, including extending privilege in confidential communications to pre-trial matters and beyond client/lawyer relationships.
The 18-month-long joint inquiry by the ALRC, the Victorian Law Reform Commission and the NSW Law Reform Commission has also recommended several changes to clear up uncertainty over whether advice given by in-house lawyers to their employers is privileged.
“The changes are very significant in relation to the Commonwealth [Evidence] Act, because we are proposing the adoption of the professional confidential relationship privilege, which is currently in the NSW [Evidence] Act 1995,” Associate Professor Les McCrimmon, the ALRC commissioner in charge of the inquiry told Lawyers Weekly.
“So that the Commonwealth would extend it to any relationship where there’s an expectation of confidentiality.” This might include doctor/client or journalist/source relationships.
As well as in the NSW Act, he said there is also “patchy” protection for confidential professional communications in Tasmania’s evidence laws.
The Uniform Evidence Law report also proposes extending client legal privilege to pre-trial proceedings such as discovery and inspection of documents.
McCrimmon said these changes are not as significant, but were an attempt to overcome complexities that had arisen in common law.
The report said decisions by the High Court had found the uniform evidence acts’ protection of privilege only applied to trial proceedings because only a few jurisdictions had adopted uniform laws on evidence. The ALRC said this had led to different laws applying in a single proceeding.
The report makes several recommendations affecting legal privilege for in-house lawyers. McCrimmon said the recommendations clarify the test for whether privilege applies to lawyers working outside of private practice.
In part due to “modern business practices” under the evidence acts, he said privilege applies to some in-house counsel, such as government lawyers, but not all corporate counsel.
The ALRC said s117(1)(a) of the uniform evidence acts should be amended to allow that a ‘client’ of a lawyer be defined as a person who engages a lawyer to provide professional legal services, or who employs a lawyer for that purpose, including under a contract of service. It specifically refers to the example of an in-house counsel.
It is proposed that the definition of a ‘lawyer’ in the dictionary of the uniform evidence acts should also be changed to “a person who is admitted to the legal profession in an Australian jurisdiction or in any other jurisdiction”.
As well, s118(c) of the uniform laws should be amended to replace the words “the client or a lawyer” with “the client, a lawyer or another person”.
Recent court cases have considered the holding of a practising certificate by an in-house counsel to have a bearing on determining whether their communications were privileged.
“Our view is that shouldn’t be a requirement,” McCrimmon said. “Again, that arises because a number of in-house counsel do not hold practising certificates, nor do they need to.
“So, the main thing is, in our view, that they have been admitted to practise and take on the professional obligation of being admitted.”
It has been proposed that rules on improper questioning in cross examination in NSW criminal law should also be extended to civil cases in all jurisdictions.
The Commonwealth, NSW, Tasmania, ACT and Norfolk Island introduced uniform evidence acts after an ALRC inquiry in 1987.
Victoria, Western Australia and the Northern Territory have indicated they will enter the uniform scheme.
ALRC president, Professor David Weisbrot, said the introduction of uniform evidence rules based on the new recommendations would reduce the complexity and costs associated with two evidence regimes operating in the same jurisdiction and would also reform unsatisfactory and archaic aspects of the common law.
“It is crazy that we currently have so many different evidence law regimes operating in this country — it is far too complicated for litigants and lawyers and contributes to unnecessary cost and red tape,” he said.
“For example, a Brisbane lawyer who goes into the Supreme Court one day, and the Federal or Family Court the next, needs to master two completely different sets of evidence laws.”
The ALRC said there should also be an “intergovernmental agreement”, which provides that, subject to limited exceptions, any proposed changes to evidence acts must be approved by the Standing Committee of Attorneys-General.
Federal Attorney-General Philip Ruddock supports the introduction of uniform evidence laws, including extensions of professional privilege outside the legal profession.
He said a joint working group would now be advising federal, state and territory attorneys-general on amendments to be made to implement the recommendations.