Evidence (Miscellaneous Provisions) Act 1958

A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—

the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and

other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and

the public interest in preserving the confidentiality of confidential communications and protected health information and protecting a protected person from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.

Additionally, in a criminal proceeding, a court must not grant leave described in subsection (1) unless it is satisfied that—

the protected person—

is aware of the application for leave; and

has had a reasonable opportunity to consider obtaining legal advice about the application; or

the prosecuting party has ensured that all reasonable steps were taken to locate the person to whom notice is to be given under section 32CD, but that person has not been located; or

the protected person has consented in writing to not being notified about an application for leave under section 32C(1); or

notice has already been given under section 32CD—

in respect of the same confidential communication or protected health information as that to which the application relates; and

in the same proceeding as that in which the application is made.

Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—

the likelihood, and the nature or extent, of harm that would be caused to the protected person if the protected evidence is produced or adduced;

the extent to which the protected evidence is necessary to allow the accused to make a full defence;

the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;

whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;

whether the protected person objects to the disclosure of the protected evidence;

the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.

A court may grant leave to compel the production of, or to produce or adduce, part of—

a confidential communication or protected health information; or

the contents of a document recording a confidential communication or protected health information—

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

If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.