Evidence Act 2011

The court may direct that evidence not be presented in a proceeding if the court finds that presenting it would disclose—

a protected confidence; or

the contents of a document recording a protected confidence; or

protected identity information.

The court may give a direction under this section—

on its own initiative; or

on the application of the protected confider or confidant (whether or not either is a party).

The court must give a direction under this section if it is satisfied that—

it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is presented; and

the nature and extent of the harm outweighs the desirability of the evidence being presented.

Without limiting the matters that the court may take into account for this section, it must take into account the following matters:

the probative value of the evidence in the proceeding;

the importance of the evidence in the proceeding;

the nature and gravity of the offence, cause of action or defence and the nature of the subject matter of the proceeding;

the availability of any other evidence relating to the matters to which the protected confidence or protected identity information relates;

the likely effect of presenting evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider;

the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed;

if the proceeding is a criminal proceeding—whether the party seeking to present evidence of the protected confidence or protected identity information is a defendant or the prosecutor;

whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or someone else;

the public interest in preserving the confidentiality of protected confidences;

the public interest in preserving the confidentiality of protected identity information.

The court must state its reasons for giving or refusing to give a direction under this section.