Evidence (Miscellaneous Provisions) Act 1991

If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.

For the preliminary examination, the court may––

require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or

require the counsellor or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity––

to give the court written answers to any questions; or

to attend the court for oral examination.

The court may also permit a written statement be made by the counselled person about the harm the counselled person is likely to suffer if leave is given.

The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.

Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.

The preliminary examination must be conducted––

in the absence of the public and the jury (if any); and

in the absence of the parties to the proceeding and their lawyers, except to the extent otherwise decided by the court.

Evidence taken at the preliminary examination—

if the evidence is a statement taken under subsection (3)—must not be disclosed to the parties or their lawyers (other than the counselled person or their lawyer); or

in any other case—must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court.

A record of the preliminary examination must be made, but must not be made available for public access.