Evidence Bill 2025
Part 4 Privileges
Division 2 Professional confidential relationship privilege
s. 159
page 122
(b) the nature and extent of the harm outweighs the1
desirability of the evidence being given.2
(4) Without limiting the matters that the court may take into3
account for the purposes of this section, the court must take into4
account the following matters —5
(a) the probative value of the evidence in the proceeding;6
(b) the importance of the evidence in the proceeding;7
(c) the nature and gravity of the relevant offence, cause of8
action or defence and the nature of the subject matter of9
the proceeding;10
(d) the availability of any other evidence concerning the11
matters to which the protected confidence or protected12
identity information relates;13
(e) the likely effect of adducing evidence of the protected14
confidence or protected identity information, including15
the likelihood of harm, and the nature and extent of16
harm that would be caused to the protected confider;17
(f) the means (including any ancillary orders that may be18
made under section 162) available to the court to limit19
the harm or extent of the harm that is likely to be caused20
if evidence of the protected confidence or the protected21
identity information is disclosed;22
(g) if the proceeding is a criminal proceeding — whether23
the party seeking to adduce evidence of the protected24
confidence or protected identity information is an25
accused or the prosecutor;26
(h) whether the substance of the protected confidence or the27
protected identity information has already been28
disclosed by the protected confider or any other person;29
(i) the public interest in preserving the confidentiality of30
protected confidences;31
(j) the public interest in preserving the confidentiality of32
protected identity information.33
Evidence Bill 2025
Privileges Part 4
Professional confidential relationship privilege Division 2
s. 160
page 123
(5) The court must state the reason for giving or refusing to give a1
direction under this section.2
Compare:3
Evidence Act 1906 s. 20C4
160. Loss of professional confidential relationship privilege:5
consent6
This Division does not prevent the adducing of evidence given7
with the consent of the protected confider concerned.8
Compare:9
Evidence Act 1906 s. 20D10
161. Loss of professional confidential relationship privilege:11
misconduct12
(1) This Division does not prevent the adducing of evidence of a13
communication made or the contents of a document prepared in14
the furtherance of the commission of a fraud or an offence or15
the commission of an act that renders a person liable to a civil16
penalty.17
(2) If the commission of the fraud, offence or act is a fact in issue,18
the court may find that the communication was made, or the19
document was prepared, in furtherance of the commission of the20
fraud, offence or act if there are reasonable grounds for finding21
that —22
(a) the fraud, offence or act was committed; and23
(b) the communication was made or the document was24
prepared in furtherance of the commission of the fraud,25
offence or act.26
Compare:27
Evidence Act 1995 (New South Wales) s. 126D28
Evidence Bill 2025
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 162
page 124
162. Ancillary orders1
Without limiting any action that the court may take to limit the2
possible harm, or extent of the harm, likely to be caused by the3
disclosure of evidence of a protected confidence or protected4
identity information, the court may —5
(a) order that all or part of the evidence be heard in private;6
and7
(b) make any order relating to the suppression of8
publication of all or part of the evidence given before9
the court that, in its opinion, is necessary to protect the10
safety and welfare of the protected confider and is in the11
interests of justice.12
Compare:13
Evidence Act 1906 s. 20F14
163. Relationship between this Division and other privileges15
(1) This Division does not apply to a protected communication.16
(2) However, a court may direct that evidence not be adduced under17
this Division whether or not the evidence is privileged under18
another section of this Part or would be privileged except for a19
limitation or restriction imposed by that section.20
Compare:21
Evidence Act 1906 s. 20B(3) and (6)22
Division 3 — Counselling communications relating to sexual23
offences24
164. Terms used25
(1) In this Division —26
counselling communication has the meaning given in27
section 165(2);28
counsels has the meaning given in section 165(4);29
Evidence Bill 2025
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 165
page 125
discloses, in relation to a protected communication, has the1
meaning given in section 166(2);2
protected person, in relation to a protected communication,3
means —4
(a) the sexual offence complainant; or5
(b) any person who made the protected communication; or6
(c) an interpreter through whom the protected7
communication was made;8
require disclosure, of a protected communication, has the9
meaning given in section 166(3);10
supporting affidavit has the meaning given in section 167(1)(b);11
support person, for a complainant, means a parent, carer or12
other supportive person who is present when a person counsels13
the complainant to facilitate communication between the14
complainant and the counsellor or to further the counselling15
process in some other way.16
(2) In this Division, a reference to a document recording a protected17
communication includes a reference to a document recording18
any report, observation, opinion, advice, recommendation or19
other matter that relates to a protected communication made by20
a protected person.21
Compare:22
Evidence Act 1906 s. 19A and 19B23
165. Counselling communications that are protected24
communications25
(1) A counselling communication that is made by, to or about a26
sexual offence complainant is a protected communication.27
(2) Each of the following is a counselling communication —28
(a) a communication made in confidence by a sexual29
offence complainant to another person (the counsellor)30
who is counselling the complainant in relation to any31
harm the complainant may have suffered;32
Evidence Bill 2025
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 165
page 126
(b) a communication made in confidence to or about a1
sexual offence complainant by the counsellor in the2
course of the counselling process;3
(c) a communication made in confidence about a sexual4
offence complainant by a support person in the course of5
the counselling process;6
(d) a communication made in confidence by or to the7
counsellor to or by another person who is counselling, or8
has at any time counselled, a sexual offence9
complainant.10
(3) For the purposes of subsection (2), a communication can be11
regarded as being made in confidence even if it is made in the12
presence or with the assistance of a support person or an13
interpreter.14
(4) A person counsels another person if —15
(a) the person has undertaken training or study or has16
experience that is relevant to the process of counselling17
persons who have suffered harm; and18
(b) the person does any of the following, whether or not for19
fee or reward —20
(i) listens to and gives verbal or other support or21
encouragement to the other person;22
(ii) advises, gives therapy to or treats the other23
person.24
(5) This section extends to a counselling communication —25
(a) whether it was made before or after the commission, or26
alleged commission, of a sexual offence; and27
(b) whether or not it was made in connection with a sexual28
offence or an alleged sexual offence or any condition29
arising from a sexual offence or alleged sexual offence;30
and31
Evidence Bill 2025
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 166
page 127
(c) whether it was made before, on or after the day on1
which this section comes into operation.2
(6) This section extends to a communication made through an3
interpreter.4
Compare:5
Evidence Act 1906 s. 19A6
166. Protected communications not to be disclosed7
(1) A person cannot disclose or require disclosure of a protected8
communication in or in connection with any criminal9
proceeding unless the court gives leave.10
(2) A person discloses a protected communication if the person11
discloses, or adduces or produces anything that would12
disclose —13
(a) the protected communication; or14
(b) the contents of a document recording the protected15
communication.16
(3) To require disclosure of a protected communication includes17
the following —18
(a) to require (whether by the issue of a subpoena or any19
other process or procedure) the production of a20
document recording the protected communication;21
(b) to seek an order of the court that will, if made, result in22
the disclosure of the protected communication or the23
production of a document recording the protected24
communication.25
(4) If a subpoena that purports to require disclosure of a protected26
communication is issued without the leave of the court, the27
subpoena is of no effect.28
Evidence Bill 2025
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 167
page 128
(5) Evidence that cannot be disclosed or required to be disclosed1
under this section without the leave of the court is not2
admissible in a criminal proceeding unless that leave is given.3
Compare:4
Evidence Act 1906 s. 19A, 19C and 19K5
167. Application for leave6
(1) An application for leave of the court to disclose or require7
disclosure of a protected communication —8
(a) must be made to the court in writing; and9
(b) must be accompanied by an affidavit (a supporting10
affidavit).11
(2) The application must be made to the court at least 28 days12
before the date set for the start of a trial in the proceeding,13
unless the applicant satisfies the court that exceptional14
circumstances justify the application being made at a later date.15
(3) The supporting affidavit must state why the applicant has a16
legitimate forensic purpose for disclosing or requiring17
disclosure of the protected communication.18
(4) If an application is duly made and the court considers that the19
supporting affidavit establishes that, in the absence of evidence20
to the contrary, the applicant has a legitimate forensic purpose21
for disclosing or requiring disclosure of the protected22
communication, the court must fix a day and time for hearing23
the application.24
(5) The court must hear the application before the start of the trial25
in the proceeding, if practicable.26
(6) The court must give notice of when the application will be27
heard, together with copies of the application and the supporting28
affidavit, to the following —29
(a) the applicant and each other party to the criminal30
proceeding;31
Evidence Bill 2025
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 168
page 129
(b) each protected person identified in the application or the1
supporting affidavit;2
(c) any other person identified in the application or the3
supporting affidavit as a person to whom the protected4
communication was made.5
(7) The notice must also inform each protected person, or person to6
whom the protected communication was made, who is identified7
in the application or supporting affidavit, of the person’s right to8
appear, or be represented by legal counsel, at the hearing.9
(8) If the court does not consider that the supporting affidavit10
establishes that, in the absence of evidence to the contrary, the11
applicant has a legitimate forensic purpose for disclosing or12
requiring disclosure of the protected communication, the court13
must —14
(a) refuse leave to disclose or require disclosure of the15
protected communication, without proceeding to a16
hearing of the application; and17
(b) notify the applicant that leave has been refused.18
Compare:19
Evidence Act 1906 s. 19C20
168. Hearing of application21
(1) A hearing of an application for leave to disclose or require the22
disclosure of a protected communication must be held in the23
absence of the jury (if any).24
(2) The following persons are entitled to appear, or be represented25
by legal counsel, at the hearing —26
(a) each protected person identified in the application or the27
supporting affidavit;28
(b) any other person identified in the application or the29
supporting affidavit as a person to whom the protected30
communication was made.31
Evidence Bill 2025
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 169
page 130
(3) The court may, if it thinks it necessary to enable it to determine1
the application, conduct a preliminary examination of the2
evidence that is the subject of the application.3
(4) For the purpose of a preliminary examination, the court may4
require a protected person —5
(a) to provide written answers to questions; or6
(b) to appear for oral examination.7
(5) A preliminary examination must be conducted in the absence of8
the parties.9
Compare:10
Evidence Act 1906 s. 19D and 19F11
169. Test to be applied by court12
A court may, after hearing an application for leave, give leave to13
disclose or require disclosure of a protected communication if14
and only if it is satisfied that —15
(a) the applicant has a legitimate forensic purpose for16
disclosing or requiring disclosure of the protected17
communication; and18
(b) other evidence to the same effect as the protected19
communication or the document recording the protected20
communication is not available; and21
(c) it is in the public interest to give leave to disclose or22
require disclosure of the protected communication.23
Compare:24
Evidence Act 1906 s. 19E(1) and 19G(1)25
170. Establishing legitimate forensic purpose26
(1) In order to establish a legitimate forensic purpose for disclosing27
or requiring the disclosure of a protected communication, it is28
Evidence Bill 2025
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 170
page 131
not sufficient for an applicant for leave to assert, without1
proving, 1 or more of the following —2
(a) that the protected communication discloses a prior3
inconsistent statement of the sexual offence4
complainant;5
(b) that the protected communication relates to the6
credibility of the sexual offence complainant or another7
witness in the criminal proceeding;8
(c) that the protected communication relates to the9
reliability of the testimony of the sexual offence10
complainant merely because the complainant has11
received or is receiving counselling.12
(2) It is also not sufficient for the applicant to prove 1 or more of13
the following —14
(a) that the protected communication exists;15
(b) that the protected communication relates to activity that16
is the subject of the criminal proceeding;17
(c) that the protected communication was made close in18
time to the activity that is the subject of the criminal19
proceeding;20
(d) that the protected communication reveals allegations of21
the commission of a sexual offence against the sexual22
offence complainant by a person other than the23
applicant.24
(3) Subsections (1) and (2) do not limit —25
(a) the matters that the court can consider in deciding26
whether the applicant has a legitimate forensic purpose27
for disclosing or requiring disclosure of a protected28
communication; or29
(b) the grounds on which the court can decide that the30
applicant does not have a legitimate forensic purpose for31
Evidence Bill 2025
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 171
page 132
disclosing or requiring disclosure of a protected1
communication.2
Compare:3
Evidence Act 1906 s. 19E(2) and (3)4
171. Public interest test5
For the purpose of determining whether it is in the public6
interest to give leave to disclose or require disclosure of a7
protected communication, the court must have regard to the8
following —9
(a) the extent to which disclosing or requiring the disclosure10
of the protected communication is necessary to allow the11
applicant for leave to make a full defence;12
(b) whether the evidence of the protected communication or13
the contents of the document recording the protected14
communication will have substantial probative value;15
(c) the likelihood that disclosing or requiring the disclosure16
of the protected communication will affect the outcome17
of the proceeding;18
(d) the public interest in ensuring that sexual offence19
complainants receive effective counselling, and the20
extent to which failure to preserve the confidentiality of21
protected communications may dissuade complainants22
from seeking counselling or diminish the effectiveness23
of counselling;24
(e) the public interest in ensuring that adequate records are25
kept of counselling communications;26
(f) the likelihood that disclosing or requiring the disclosure27
of the protected communication will cause harm to the28
sexual offence complainant, and the nature and extent of29
that harm;30
(g) any other matter that the court considers relevant.31
Compare:32
Evidence Act 1906 s. 19G(2)33