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Thursday, 9 March 1972
Page: 637

Senator MURPHY (New South Wales) (Leader of the Opposition) - As I have already pointed out, the Opposition takes the view that although some injustice could occur - one could conjure up cases - it is a very great principle of law that the relationship of spouses ought not to be invaded. A moment's reflection will show that the law has created other categories in which similar objections could arise. For example, state documents are privileged. The state might, within the well known limits, object to the production in a court of documents because of some reason of state. It may well be that an injustice could result from documents of this nature not being produced. A party may think that the production of these documents will help to turn the scales in that party's favour but the law says: 'The interests of the state are paramount. No matter what injustice may be done to an individual state documents are not to be produced'.

The law also states that a privilege exists between a legal adviser and his client, lt may well be that if one were to call the solicitor of the other person he would say: That is not the story he told me originally' or 'Here is some fact or circumstance that J got out of working as his client which will blow his case sky high'. However, the other party would be unable to cause that legal adviser to come and give evidence. Indeed, the law forbids the solicitor of a client to give evidence against him. He must claim privilege. It is the solicitor's duty to do so. That applies in criminal matters as well as in civil matters, except in some very unusual circumstances that it is not necessary for me to go into.

Senator Greenwood - There is one difference, though, in that the solicitor who disclosed prior to a court case what it was his obligation to conceal because it was a client's privilege might find himself in trouble before his law institute or his professional academy. A wife is under no such compulsion.

Senator MURPHY - But leaving aside the exceptional circumstances and speaking generally there is a privilege attaching to communications between a solicitor and his client. That extends right across the board. I can think of much stronger reasons for saying: 'Let us sweep that privilege away' than I can for saying: 'Let us sweep away the communication between a husband and his wife'. I should think that one would have much less cause to complain about one's solicitor being forced to come and give opposing evidence than about one's wife being forced to do that. If a litigant lost his case because of evidence given by the solicitor he would probably grumble and say: 'Well, that is the law'. But I should imagine that it would not be very helpful to a happy conjugal relationship if he lost his case because his wife gave evidence against him, even under a subpoena.

I really think that we ought to preserve this privilege. I know that the existence of it may in some cases give rise to an injustice in that a spouse, if he or she could be called, could give evidence which would assist the other party. But one has to lake into consideration that a spouse can be called to give evidence if that spouse wants to do so. It would be a pretty rare case where a spouse who could give evidence which would be helpful to the other party would do so without being compelled by the other party to give evidence. In the practical realities of life one docs not call a witness unless one knows what thai witness is going to say.

I do not think that there would be much injustice caused in practice if the amendment were carried and we were to preserve something that the law has regarded through the ages, as being of extreme importance, namely, the privileged relationship between a husband and his wife. I suggest to honourable senators that there would have to be much more than the theoretical approach of some writers on these matters before this very great principle should be broken down. I believe that we ought to do whatever we can to preserve this principle. Unless we are satisfied that there is a real evil occurring in some way in our society as a result of the operation of this privilege, we should not do anything to break it down.

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