Australian Uniform Evidence Law

This chapter discusses the rights (‘privileges and immunities’) that allow a party to resist compulsory demands for information. Privileges have a long history in the common law, with some departure from traditional privilege rules arising in statutory formulations. Privilege is a ‘bar to compulsory process for the obtaining of evidence rather than a rule of inadmissibility’. However, a successful claim of privilege will result in the exclusion of evidence, derogating from the general principle that all relevant evidence should be admitted.

Privilege can generally be regarded as an evidentiary right, allowing individuals to refuse to disclose evidence. In some cases, privileges allow directions to be given to others not to disclose. Some privileges extend to corporate entities. Privileges may arise because of the circumstances in which information is communicated, or the way in which it may be used.

The common law’s stance on privilege and the consequent restriction on access to evidence are reflected to a large extent in the Acts. Nonetheless, the categories of privilege have expanded under the legislation and, inevitably, anomalies have arisen between the two branches.