Evidence Bill 2025
Privileges Part 4
Counselling communications relating to sexual offences Division 3
s. 172
page 133
172. Effect of consent1
(1) This Division does not prevent a protected communication from2
being disclosed or being required to be disclosed in, or in3
connection with, any criminal proceeding if the sexual offence4
complainant by, to or about whom the protected communication5
is made has consented to the disclosure.6
(2) Consent is not effective for the purposes of this section7
unless —8
(a) it is given in writing; and9
(b) it is given expressly for the purposes of this Division.10
(3) This section does not apply if the complainant is a child.11
Compare:12
Evidence Act 1906 s. 19H13
173. Loss of privilege: misconduct14
(1) This Division does not prevent the production or adducing of15
evidence of a communication made, or the production of a16
document prepared, in the furtherance of the commission of a17
fraud or an offence or the commission of an act that renders a18
person liable to a civil penalty.19
(2) If the commission of the fraud, offence or act is a fact in issue,20
the court may find that the communication was made, or the21
document was prepared, in furtherance of the commission of the22
fraud, offence or act if there are reasonable grounds for finding23
that —24
(a) the fraud, offence or act was committed; and25
(b) the communication was made or the document was26
prepared in furtherance of the commission of the fraud,27
offence or act.28
Compare:29
Evidence Act 1906 s. 19I30
Evidence Bill 2025
Part 4 Privileges
Division 3 Counselling communications relating to sexual offences
s. 174
page 134
174. 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, or the contents of a document4
recording, a protected communication, the court may —5
(a) order that all or part of the evidence be heard or6
document produced in private; and7
(b) make any order relating to the production, inspection,8
copying or reproduction of the document that, in its9
opinion, is necessary to protect the safety and welfare of10
any protected person and is in the interests of justice;11
and12
(c) make any order relating to the suppression of13
publication of all or part of the evidence given before14
the court that, in its opinion, is necessary to protect the15
safety and welfare of any protected person and is in the16
interests of justice; and17
(d) make any order relating to disclosure of information that18
would tend to identify any protected person that, in its19
opinion, is necessary to protect the safety and welfare of20
any protected person and is in the interests of justice.21
Compare:22
Evidence Act 1906 s. 19J23
175. Application of other laws24
(1) A provision of this Division does not affect the operation of any25
rule of law in relation to evidence in a criminal proceeding26
except to the extent that it expressly or necessarily has that27
effect.28
(2) Without limiting subsection (1), this Division does not affect the29
operation of a rule of law so far as it relates to the inspection of30
a document required to be produced in, or in connection with, a31
criminal proceeding.32
Evidence Bill 2025
Privileges Part 4
Journalist privilege Division 4
s. 176
page 135
(3) This Division does not affect the operation of the Children and1
Community Services Act 2004 sections 124F and 240.2
Compare:3
Evidence Act 1906 s. 19L4
176. Application to civil proceedings5
If evidence of a protected communication is found to be6
privileged in a criminal proceeding under this Division, the7
evidence must not be adduced in a civil proceeding in which8
substantially the same acts are in issue as the acts that were in9
issue in relation to the criminal proceeding.10
Compare:11
Evidence Act 1995 (New South Wales) s. 126H12
177. Regulations13
The regulations may make provision for the following —14
(a) the forms to be used for an application for leave to15
disclose or require disclosure of a protected16
communication and supporting affidavit;17
(b) the manner in which a protected communication must be18
described in an application for leave or supporting19
affidavit;20
(c) other matters to be included in an application for leave21
or supporting affidavit;22
(d) the procedure relating to an application for leave.23
Compare:24
Evidence Act 1906 s. 19M25
Division 4 — Journalist privilege26
178. Application of Division27
(1) This Division extends to a proceeding before a person acting28
judicially.29
Evidence Bill 2025
Part 4 Privileges
Division 4 Journalist privilege
s. 179
page 136
(2) This Division does not affect any power a person acting1
judicially has under any written law to take any action if it is in2
the interests of justice to do so.3
Note for this section:4
Section 15 provides that if a provision of this Act expressly extends to5
a proceeding before a person acting judicially, a reference in the6
provision to a court includes a reference to a person acting judicially.7
Compare:8
Evidence Act 1906 s. 20G and 20H9
179. Terms used10
In this Division —11
exclusion order has the meaning given in section 181(1);12
informant means a person who gives information to a journalist13
in the normal course of the journalist’s work in the expectation14
that the information may be published in a news medium;15
journalist means a person engaged in the profession or16
occupation of journalism in connection with the publication of17
information in a news medium;18
journalist privilege means the privilege conferred by19
section 180(1);20
misconduct, by a journalist or an informant, means any of the21
following conduct by the journalist or informant —22
(a) the commission of a fraud or an offence or the23
commission of an act that renders a person liable to a24
civil penalty;25
(b) deceit, dishonesty, inappropriate partiality or a breach of26
trust;27
(c) acting corruptly, or corruptly failing to act, in any28
capacity;29
(d) corruptly taking advantage of their position to obtain a30
benefit for themselves or another person or to cause a31
detriment to another person;32
Evidence Bill 2025
Privileges Part 4
Journalist privilege Division 4
s. 180
page 137
(e) conduct that adversely affects, or could adversely affect,1
directly or indirectly, the honest or impartial2
performance of the functions of any person in any3
capacity;4
(f) misusing information or material that the journalist or5
informant acquired in any capacity, whether the misuse6
is to obtain a benefit for themselves or another person or7
to cause a detriment to another person;8
(g) conduct providing reasonable grounds for terminating9
the employment of the journalist or informant;10
(h) conduct providing reasonable grounds for disciplining11
the journalist or informant for unsatisfactory12
professional conduct or professional misconduct, or for13
the breach of a professional standard that applies to the14
profession of the journalist or informant, whether or not15
the journalist or informant is a member of the body that16
prescribed the standard;17
news medium means any medium for the dissemination to the18
public or a section of the public of news and observations on19
news.20
Compare:21
Evidence Act 1906 s. 20G and 20K22
Evidence Act 1995 (Commonwealth) s. 126J23
180. Journalist privilege relating to identity of informant24
(1) If a journalist has promised an informant not to disclose the25
informant’s identity, neither the journalist nor the journalist’s26
employer is compellable to answer any question or produce any27
document that would disclose the identity of the informant or28
enable that identity to be ascertained.29
(2) This section does not apply if the court, on application of a30
party, makes an exclusion order in relation to the evidence.31
Compare:32
Evidence Act 1995 (Commonwealth) s. 126K33
Evidence Bill 2025
Part 4 Privileges
Division 4 Journalist privilege
s. 181
page 138
181. Exclusion of journalist privilege: public interest test1
(1) A court may make an order (an exclusion order) that journalist2
privilege does not apply to any evidence.3
(2) A court may make an exclusion order if it is satisfied that,4
having regard to the issues to be determined in that proceeding,5
the public interest in the disclosure of evidence of the identity of6
the informant (identifying evidence) outweighs —7
(a) any likely adverse effect of the disclosure on the8
informant or any other person; and9
(b) the public interest in the communication of facts and10
opinion to the public by the news media and,11
accordingly, in the ability of the news media to access12
sources of facts.13
(3) Without limiting the matters to which the court may have regard14
for the purposes of this section, it must have regard to the15
following —16
(a) the probative value of the identifying evidence in the17
proceeding;18
(b) the importance of the identifying evidence in the19
proceeding;20
(c) the nature and gravity of the relevant offence, cause of21
action or defence and the nature of the subject matter of22
the proceeding;23
(d) the availability of any other evidence concerning the24
matters to which the identifying evidence relates;25
(e) the likely effect of giving the identifying evidence,26
including the likelihood of harm, and the nature and27
extent of harm that would be caused to the informant or28
any other person;29
(f) the means (including any ancillary orders that may be30
made under section 184) available to the court to limit31
the harm or extent of the harm that is likely to be caused32
if the identifying evidence is given;33
Evidence Bill 2025
Privileges Part 4
Journalist privilege Division 4
s. 182
page 139
(g) the likely effect of giving the identifying evidence in1
relation to —2
(i) a prosecution that has commenced but has not3
been finalised; or4
(ii) an investigation, of which the court is aware, into5
whether or not an offence has been committed;6
(h) whether the substance of the identifying evidence has7
already been disclosed by the informant or any other8
person;9
(i) the risk to national security or to the security of the10
State;11
(j) whether or not there was misconduct by the informant or12
the journalist in relation to obtaining, using, giving or13
receiving information.14
(4) The court may make the exclusion order subject to any15
conditions the court thinks fit.16
Compare:17
Evidence Act 1906 s. 20J18
Evidence Act 1995 (Commonwealth) s. 126K19
182. Special consideration: misconduct20
(1) The court may make, but is not required to make, an exclusion21
order if the court finds that there was misconduct by an22
informant or a journalist in relation to obtaining, using, giving23
or receiving information.24
(2) The court must have regard to the following when deciding25
whether or not to make an exclusion order in a case involving26
misconduct —27
(a) that generally an exclusion order should be made in the28
circumstances referred to in subsection (3);29
(b) the public interest in making or refusing to make the30
order.31
Evidence Bill 2025
Part 4 Privileges
Division 4 Journalist privilege
s. 182
page 140
(3) The following are the circumstances in which generally an1
exclusion order should be made —2
(a) the misconduct involved the commission of an offence3
under The Criminal Code section 81 or a breach of a4
public sector standard, code of ethics or code of5
conduct, as those terms are defined in the Public Sector6
Management Act 1994 section 3(1), and the offence or7
breach involved the disclosure of information that —8
(i) was public interest information as defined in the9
Public Interest Disclosure Act 2003 section 3(1);10
and11
(ii) could have been, but was not, disclosed in12
accordance with the Public Interest Disclosure13
Act 2003;14
(b) the information given to the journalist could have been15
provided, in a way that did not constitute misconduct, to16
another person to deal with the concern;17
(c) the information given to the journalist could have been18
obtained by the journalist under the Freedom of19
Information Act 1992 or by other lawful means;20
(d) the misconduct involved a breach of privacy that was21
not warranted in the circumstances, having regard to the22
value to be attached to —23
(i) the privacy of information regarding private24
citizens generally; or25
(ii) the privacy of information regarding matters that26
may be commercial in confidence; or27
(iii) the principle of Cabinet confidentiality; or28
(iv) the principle of public interest immunity;29
(e) the communication made to the journalist, if published,30
would give rise to a risk to national security or to the31
security of the State.32
Evidence Bill 2025
Privileges Part 4
Journalist privilege Division 4
s. 183
page 141
(4) If misconduct by a journalist or an informant is a fact in issue,1
the court may find that there was misconduct by the journalist or2
informant in relation to obtaining, using, giving or receiving3
information if there are reasonable grounds for making that4
finding.5
(5) This section does not limit —6
(a) the circumstances in which the court may make an7
exclusion order; or8
(b) the matters to which the court may have regard in9
deciding whether to make an exclusion order.10
Compare:11
Evidence Act 1906 s. 20K12
183. Application of journalist privilege to preliminary13
proceedings14
(1) In this section —15
disclosure requirement —16
(a) means a court process or court order that requires the17
disclosure of information or a document; and18
(b) includes the following —19
(i) a summons or subpoena to produce documents or20
give evidence;21
(ii) pre-trial discovery;22
(iii) non-party discovery;23
(iv) interrogatories;24
(v) a notice to produce;25
(vi) a request to produce a document under Part 826
Division 4.27
(2) If, in response to a disclosure requirement, a person claims that28
the person is not compellable to answer a question or produce a29
document because of journalist privilege, a party who seeks30
Evidence Bill 2025
Part 4 Privileges
Division 5 Self-incrimination
s. 184
page 142
disclosure of information or a document under the disclosure1
requirement may apply to the court for an exclusion order.2
Compare:3
Evidence Act 1995 (Commonwealth) s. 131A4
184. Ancillary orders5
Without limiting any action that the court may take to limit the6
possible harm, or extent of the harm, likely to be caused by the7
disclosure of evidence identifying an informant, the court8
may —9
(a) order that all or part of the evidence be heard in private;10
and11
(b) make any order relating to the suppression of12
publication of all or part of the evidence given before13
the court that, in its opinion, is necessary to protect the14
safety and welfare of the informant and is in the interests15
of justice.16
Compare:17
Evidence Act 1906 s. 20M18
Division 5 — Self-incrimination19
185. Terms used20
In this Division —21
disclosure certificate has the meaning given in section 188(7);22
disclosure order —23
(a) means an order made by a court in a civil proceeding24
that requires a person to disclose information as part of,25
or in connection with, a freezing or search order made26
under the rules of the Supreme Court; but27
(b) does not include an order made by a court under the28
Criminal Property Confiscation Act 2000 or the29
Proceeds of Crime Act 2002 (Commonwealth);30
Evidence Bill 2025
Privileges Part 4
Self-incrimination Division 5
s. 186
page 143
evidence certificate has the meaning given in section 186(7);1
incriminate, a person, means tend to prove that the person —2
(a) has committed an offence against or arising under an3
Australian law or a law of a foreign country; or4
(b) is liable to a civil penalty.5
186. Privilege in respect of self-incrimination in other6
proceedings7
(1) A witness may object to giving particular evidence, or evidence8
on a particular matter, on the ground that the evidence may9
incriminate the witness.10
(2) A witness is taken to have objected to giving evidence under11
this section if the witness expresses an unwillingness to give12
evidence on the ground that the evidence might incriminate the13
witness.14
(3) A witness may object to giving evidence under this section15
whether or not the witness is compellable to give that evidence.16
(4) The court must determine whether or not there are reasonable17
grounds for the objection.18
(5) If the court determines that there are reasonable grounds for the19
objection, the court —20
(a) must not require the witness to give the evidence, except21
under subsection (6); and22
(b) must inform the witness —23
(i) that the witness is not required to give the24
evidence unless the court requires it under25
subsection (6); and26
(ii) that the court will give the witness an evidence27
certificate if the witness gives the evidence28
(either with or without being required to do so);29
and30
(iii) of the effect of the evidence certificate.31