Emergencia de la profesionalización docente

The ALRC in 1979 was tasked with undertaking a comprehensive review of the law of evidence, with a view to producing a code of evidence and drafting a Uniform Evidence Act for all Commonwealth Courts and tribunals. The law was to apply to the Australian Capital Territory and to external Territories.109 The terms of reference for the inquiry restricted it to the adducing of evidence in Federal Courts110 and courts of the Territories. The ALRC took many years to complete the task, and was overtaken by case law; namely by Murphy J’s pronouncement in the 1983 case of Baker v Campbell111 that:

…privilege is commonly described as legal professional privilege, which is unfortunate because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client’s privilege, so that it may be waived by the client, but not by the lawyer.112

As a result the ALRC recommended in its interim Report on Evidence113 a change of name from legal professional privilege to client legal privilege.

The ALRC’s view was that the dominant purpose test proposed by Barwick CJ (in dissent) in

Grant v Downs was the more appropriate test. Therefore the Evidence Act 1995 section 118, legal advice privilege and section 119, litigation privilege both apply the dominant purpose test.114

The Attorney-General of Australia,115 set out the terms of reference for an ALRC review of the Evidence Act 1995, after a decade of its operation and identified client legal privilege as an area of particular concern. The ALRC called for submissions from interested parties via its 2005 Discussion Paper 69.116 The ALRC foresaw that difficulties might arise when a party obtains access to documents outside the courtroom, where the more stringent common law sole purpose test applied, yet those same documents would be protected in the courtroom by the dominant purpose test. In the Discussion Paper the ALRC proposed that the privilege

108

(1873) 8 LR Ch 361.

109 _{Territories, does not include the Northern Territory, as it was granted self-government in 1978. Norfolk} Island has not been specifically excluded from the report; it will be a matter for consultation with the Island Administrators, as to whether the new laws will extend to the Island.

110

The Federal Courts are the High Court of Australia, the Federal Circuit Court of Australia, the Federal Court of Australia and the Family Court of Australia.

111 _{(1983) 153 CLR 52.} 112 _{Ibid 58.}

113

Australian Law Reform Commission, Evidence, Report 38 (Interim) vol 1 (1985) [438].

114 _{Sections 118 and 119 were enacted following upon the final report of the Australian Law Reform} Commission, Evidence, Report 38 (June 1987).

115 _{The Honourable Philip Ruddock.} 116

Australian Law Reform Commission, Review of the Uniform Evidence Acts, Discussion Paper 69 (November 2005).

provisions of the Act should apply to: pre-trial discovery; the production of documents in response to subpoena; in non-curial contexts such as search warrants and notices to produce documents; as well as court proceedings.117

The Commission strongly support the view that a dual system of client legal privilege operating in any one jurisdiction is undesirable. As well as producing inevitable confusion, there is increasing disparity between the common law and the uniform Evidence Acts. …client legal privilege is the subject of extensive litigation and the law continues to develop in response to changing business and legal practices. Should the common law continue to operate pre-trial and the uniform Evidence Acts at trial, the disparity between the two systems is likely to increase.118

There was general support for this proposition in the submissions to the ALRC. The Law Council of Australia in its submission could see no justification for different privilege rules applying at trial and pre-trial, especially given that importance of the privilege at the pre-trial stage.

The difficulties posed by the failure of the Acts directly to cover pretrial proceedings can be seen in the litigation concerning client legal privilege where parties have sought to apply the statutory privilege at the important discovery and inspection stage of civil litigation. With this stage being crucial to decisions about settlement, it is here that in practice issues of privilege are necessarily fought. In the Council’s opinion it makes little sense for discovery and inspection to be governed by common law privilege rules which may enable litigants to obtain discovery and inspection of documents which, under the uniform Evidence Acts, will be unavailable at trial.119

The ALRC concluded by reasoning that having wider access to communications on discovery or under a search warrant was not unusual; noting that access is not determined by the rules of admissibility. Thus, the ALRC failed to resolve the practical consequences that flowed from having the legislative dominant purpose test applying only to the adducing of evidence, and a stricter sole purpose test apply at the pre-trial process.120 This problem was

117

Proposal 13-1, Australian Law Reform Commission, Review of the Uniform Evidence Acts, Discussion Paper 69 (November 2005) [13.49].

118 _{Ibid [13.43].}

119 _{Law Council of Australia, Submission to Australian Law Reform Commission, Issues Paper 28,} Review of the Uniform Evidence Act 1995, 14 March 2005, 22-3.

<http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/LawCouncilIP28submission- FINAL.pdf>. Submissions by the Australian Government Solicitor, the Director of Public Prosecutions in New South Wales, the Australian Securities and Investments Commission, CPA Australia and the Institute of Chartered Accountants in Australia all agreed that a single test for privilege should apply to pre-trial and trial procedures. The Australian Taxation Office and the Australian Competition and Consumer Commission in their submissions argued that client legal privilege should not apply at investigatory stages.

120

The Evidence Act 1995 (NSW) section 131A applies to pre-trial procedures in New South Wales, via the amended Supreme Court Rules (NSW) Parts 23, 24, 36 and 75, and the amended District Court Rules (NSW) Part 22, 22A and 29. The rules apply to discovery, interrogatories, subpoenas, notices to produce and oral examinations. However the Rules apply only to civil proceedings. The Australian Capital Territory Supreme Court has followed the NSW lead in amending its Rules. Section 131A of the Victorian Evidence Act 2008 and section 131A of the Tasmanian Evidence Act 1910 extend the application of client legal privilege in the same manner. The Commonwealth has also enacted a section 131A in its Evidence Act but it only extends client legal privilege to processes under which documents are produced (such as discovery and subpoenas) under Division 1A, but not to Division 1, namely sections 118 and 199.

compounded by the fact that in most instances privilege issues arise in relation to pre-trial procedures and at the interlocutory stage of civil proceedings.

5.7 The dominant purpose test, in the Australian common law following