Evidence Bill 2025
Admissibility of evidence Part 3
Evidence of family violence Division 10
s. 147
page 111
(2) In a civil proceeding in which family violence is an issue, the1
court may treat any of the family violence direction matters that2
are relevant to the proceeding as matters for which proof is not3
required.4
(3) This section does not prevent evidence being adduced of a5
family violence direction matter.6
Evidence Bill 2025
Part 4 Privileges
Division 1 Client legal privilege
s. 148
page 112
Part 4 — Privileges1
Division 1 — Client legal privilege2
148. Terms used3
(1) In this Division —4
client includes the following —5
(a) a person or body who engages a legal representative to6
provide legal services or who employs a legal7
representative (including under a contract of service);8
(b) an employee or agent of a client;9
(c) an employer of a legal representative if the employer10
is —11
(i) the Commonwealth or a State or Territory; or12
(ii) a body established by a law of the13
Commonwealth or a State or Territory;14
(d) if, under a law of a State or Territory relating to persons15
who lack capacity, a manager, committee or person16
(however described) is for the time being acting in17
respect of the person, estate or property of a client — the18
manager, committee or person acting;19
(e) if a client has died — a personal representative of the20
client;21
(f) a successor to the rights and obligations of a client,22
being rights and obligations in respect of which a23
confidential communication was made;24
confidential communication means a communication made in25
such circumstances that, when it was made, either the person26
who made it or the person to whom it was made was under an27
express or implied obligation not to disclose its contents,28
whether or not the obligation arises under law;29
confidential document means a document prepared in such30
circumstances that, when it was prepared, either the person who31
Evidence Bill 2025
Privileges Part 4
Client legal privilege Division 1
s. 148
page 113
prepared it or the person for whom it was prepared was under an1
express or implied obligation not to disclose its contents,2
whether or not the obligation arises under law;3
legal representative means —4
(a) a lawyer; or5
(b) an Australian-registered foreign lawyer (as defined in6
the Legal Profession Uniform Law (WA) section 6(1));7
or8
(c) a natural person who, under the law of a foreign country,9
is permitted to engage in legal practice in the foreign10
country; or11
(d) an employee or agent of a person referred to in12
paragraph (a), (b) or (c);13
party includes the following —14
(a) an employee or agent of a party;15
(b) if, under a law of a State or Territory relating to persons16
who lack capacity, a manager, committee or person17
(however described) is for the time being acting in18
respect of the person, estate or property of a party — the19
manager, committee or person acting;20
(c) if a party has died — a personal representative of the21
party;22
(d) a successor to the rights and obligations of a party, being23
rights and obligations in respect of which a confidential24
communication was made.25
(2) A reference in this Division to the commission of an act26
includes a reference to a failure to act.27
Compare:28
Evidence Act 1995 (Commonwealth) s. 11729
Evidence Bill 2025
Part 4 Privileges
Division 1 Client legal privilege
s. 149
page 114
149. Legal advice1
(1) Evidence must not be adduced if, on objection by a client, the2
court finds that adducing the evidence would result in disclosure3
of —4
(a) a confidential communication made between the client5
and a legal representative that is privileged under this6
section; or7
(b) a confidential communication made between 2 or more8
legal representatives acting for the client that is9
privileged under this section; or10
(c) the contents of a confidential document (whether11
delivered or not) prepared by the client, legal12
representative or another person, being a confidential13
document that is privileged under this section.14
(2) A confidential communication, or a confidential document, is15
privileged under this section if it was made or prepared for the16
dominant purpose of the legal representative, or 1 or more of the17
legal representatives, providing legal advice to the client.18
Compare:19
Evidence Act 1995 (Commonwealth) s. 11820
150. Litigation21
(1) Evidence must not be adduced if, on objection by a client, the22
court finds that adducing the evidence would result in disclosure23
of —24
(a) a confidential communication between the client and25
another person, or between a legal representative acting26
for the client and another person, that is privileged under27
this section; or28
(b) the contents of a confidential document (whether29
delivered or not), being a confidential document that is30
privileged under this section.31
Evidence Bill 2025
Privileges Part 4
Client legal privilege Division 1
s. 151
page 115
(2) A confidential communication, or a confidential document, is1
privileged under this section if it was made or prepared for the2
dominant purpose of the client being provided with professional3
legal services relating to —4
(a) an Australian or overseas proceeding (including the5
proceeding before the court) in which the client is or6
may be, or was or might have been, a party; or7
(b) an anticipated or pending Australian or overseas8
proceeding in which the client is or may be, or was or9
might have been, a party.10
Compare:11
Evidence Act 1995 (Commonwealth) s. 11912
151. Unrepresented parties13
(1) Evidence must not be adduced if, on objection by a party who is14
not represented in the proceeding by a legal representative, the15
court finds that adducing the evidence would result in disclosure16
of —17
(a) a confidential communication made between the party18
and another person that is privileged under this section;19
or20
(b) the contents of a confidential document (whether21
delivered or not) that was prepared, either by or at the22
direction or request of, the party, being a confidential23
document that is privileged under this section.24
(2) A confidential communication, or a confidential document, is25
privileged under this section if it was made or prepared for the26
dominant purpose of preparing for or conducting the27
proceeding.28
Compare:29
Evidence Act 1995 (Commonwealth) s. 12030
Evidence Bill 2025
Part 4 Privileges
Division 1 Client legal privilege
s. 152
page 116
152. Loss of client legal privilege: generally1
(1) This Division does not prevent the adducing of evidence2
relevant to a question concerning the intentions, or competence3
in law, of a client or party who has died.4
(2) This Division does not prevent the adducing of evidence if,5
were the evidence not adduced, the court would be prevented, or6
it could reasonably be expected that the court would be7
prevented, from enforcing an order of an Australian court.8
(3) This Division does not prevent the adducing of evidence of a9
communication or document that affects a right of a person.10
Compare:11
Evidence Act 1995 (Commonwealth) s. 12112
153. Loss of client legal privilege: consent and related matters13
(1) This Division does not prevent the adducing of evidence given14
with the consent of the client or party concerned.15
(2) This Division does not prevent the adducing of evidence if the16
client or party concerned has acted in a way that is inconsistent17
with the client or party objecting to the adducing of the evidence18
because it would result in a disclosure of a kind referred to in19
section 149(1), 150(1) or 151(1).20
(3) Without limiting subsection (2), a client or party is taken to21
have acted in a way that is inconsistent with objecting to the22
adducing of the evidence if —23
(a) the client or party knowingly and voluntarily disclosed24
the substance of the evidence to another person; or25
(b) the substance of the evidence has been disclosed with26
the express or implied consent of the client or party.27
(4) The reference in subsection (3)(a) to a knowing and voluntary28
disclosure does not include a reference to a disclosure by a29
person who was, at the time of the disclosure, an employee or30
agent of the client or party or of a legal representative of the31
Evidence Bill 2025
Privileges Part 4
Client legal privilege Division 1
s. 153
page 117
client or party unless the employee or agent was authorised by1
the client, party or legal representative to make the disclosure.2
(5) A client or party is not taken to have acted in a manner3
inconsistent with the client or party objecting to the adducing of4
the evidence merely because —5
(a) the substance of the evidence has been disclosed —6
(i) in the course of making a confidential7
communication or preparing a confidential8
document; or9
(ii) as a result of duress or deception; or10
(iii) under compulsion of law; or11
(iv) if the client or party is a body established by, or a12
person holding an office under, an Australian13
law — to the Minister, or the Minister of the14
Commonwealth, the State or Territory,15
administering the law, or part of the law, under16
which the body is established or the office is17
held;18
or19
(b) of a disclosure by a client to another person if the20
disclosure concerns a matter in relation to which the21
same legal representative is providing, or is to provide,22
professional legal services to both the client and the23
other person; or24
(c) of a disclosure to a person with whom the client or party25
had, at the time of the disclosure, a common interest26
relating to the proceeding or an anticipated or pending27
proceeding in an Australian court or a foreign court.28
(6) This Division does not prevent the adducing of evidence of a29
document that a witness has used to try to revive the witness’s30
Evidence Bill 2025
Part 4 Privileges
Division 1 Client legal privilege
s. 154
page 118
memory about a fact or opinion or has used as mentioned in1
section 41 or 42.2
Compare:3
Evidence Act 1995 (Commonwealth) s. 1224
154. Loss of client legal privilege: accused5
In a criminal proceeding, this Division does not prevent an6
accused from adducing evidence unless it is evidence of —7
(a) a confidential communication made between a8
co-accused and a legal representative acting for the9
co-accused in connection with the prosecution of that10
co-accused; or11
(b) the contents of a confidential document prepared by a12
co-accused or by a legal representative acting for the13
co-accused in connection with the prosecution of that14
co-accused.15
Compare:16
Evidence Act 1995 (Commonwealth) s. 12317
155. Loss of client legal privilege: joint clients18
(1) This section only applies to a civil proceeding in connection19
with which 2 or more parties have, before the commencement of20
the proceeding, jointly retained a legal representative in relation21
to the same matter.22
(2) This Division does not prevent 1 of those parties from adducing23
evidence of —24
(a) a communication made by any of them to the legal25
representative in connection with that matter; or26
(b) the contents of a confidential document prepared by or27
at the direction or request of any of them in connection28
with that matter.29
Compare:30
Evidence Act 1995 (Commonwealth) s. 12431
Evidence Bill 2025
Privileges Part 4
Client legal privilege Division 1
s. 156
page 119
156. Loss of client legal privilege: misconduct1
(1) In this section —2
power means a power conferred by or under an Australian law.3
(2) This Division does not prevent the adducing of evidence of a4
communication, or the contents of a document, made or5
prepared by a client or legal representative (or both), or a party6
who is not represented in a proceeding by a legal representative,7
if —8
(a) the communication or document was made or prepared9
in furtherance of the commission of a fraud or an10
offence or the commission of an act that renders a11
person liable to a civil penalty; or12
(b) the client or legal representative (or both), or the party,13
knew or ought reasonably to have known that the14
communication or document was made or prepared in15
furtherance of a deliberate abuse of power.16
(3) If the commission of the fraud, offence or act, or the abuse of17
power, is a fact in issue, the court may find that a18
communication was made or a document was prepared in19
furtherance of the fraud, offence or act or the abuse of power20
if there are reasonable grounds for finding that —21
(a) the fraud, offence or act, or the abuse of power, was22
committed; and23
(b) the communication was made or the document was24
prepared in furtherance of the commission of the fraud,25
offence or act or the abuse of power.26
Compare:27
Evidence Act 1995 (Commonwealth) s. 12528
157. Loss of client legal privilege: related communications and29
documents30
If, because of the application of section 152, 153, 154, 15531
or 156, this Division does not prevent the adducing of evidence32
Evidence Bill 2025
Part 4 Privileges
Division 2 Professional confidential relationship privilege
s. 158
page 120
of a communication or the contents of a document, those1
sections do not prevent the adducing of evidence of another2
communication or document if it is reasonably necessary to3
enable a proper understanding of the communication or4
document.5
Example for this section:6
A legal representative advises a client to understate the client’s income7
for the previous year to evade taxation because of potential tax liability8
“as set out in my previous letter to you dated 11 August 2019”. In a9
proceeding against the taxpayer for tax evasion, evidence of the10
contents of the letter dated 11 August 2019 may be admissible (even if11
that letter would otherwise be privileged) to enable a proper12
understanding of the second letter.13
Compare:14
Evidence Act 1995 (Commonwealth) s. 12615
Division 2 — Professional confidential relationship privilege16
158. Terms used17
(1) In this Division —18
confidant —19
(a) means a person to whom a communication is made in20
confidence; and21
(b) includes a journalist (as defined in section 179);22
protected confidence means a communication made by a person23
in confidence to a confidant —24
(a) in the course of a relationship in which the confidant25
was acting in a professional capacity; and26
(b) when the confidant was under an express or implied27
obligation not to disclose its contents, whether or not the28
obligation arises under law or can be inferred from the29
nature of the relationship between the person and the30
confidant;31
protected confider means a person who made a protected32
confidence;33
Evidence Bill 2025
Privileges Part 4
Professional confidential relationship privilege Division 2
s. 159
page 121
protected identity information means information about, or1
enabling a person to ascertain, the identity of a protected2
confider.3
(2) For the purposes of this Division, if a person makes a4
communication in confidence to a minister of religion acting in5
the minister’s capacity as a minister of religion and in6
accordance with the tenets of the minister’s faith or religion, the7
communication is made in the course of a relationship in which8
the minister is acting in a professional capacity.9
(3) For the purposes of this Division, a communication may be10
made in confidence even if it is made in the presence of a third11
party if the third party’s presence is necessary to facilitate12
communication.13
Compare:14
Evidence Act 1906 s. 20A15
159. Exclusion of evidence of protected confidences16
(1) A court may direct that evidence not be adduced in a proceeding17
if the court finds that adducing it would disclose —18
(a) a protected confidence; or19
(b) the contents of a document recording a protected20
confidence; or21
(c) protected identity information.22
(2) The court may give a direction under subsection (1) —23
(a) on its own initiative; or24
(b) on the application of the protected confider or confidant25
concerned (whether or not either is a party).26
(3) The court must give a direction under subsection (1) if satisfied27
that —28
(a) it is likely that harm would or might be caused (whether29
directly or indirectly) to a protected confider if the30
evidence is adduced; and31