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Thursday, 9 March 1972
Page: 642

Senator GREENWOOD (VictoriaAttorneyGeneral) - Senator Murphy raised a number of points. Firstly, I think the analogy he draws between the fact that a person may have a solicitor called as a witness who may give evidence on some things but cannot be asked about other matters which have passed between the solicitor and client is not a true analogy. After all, the solicitor is not a person who makes known - so that other people are aware of it - what has passed between his client and himself. A wife is a little different. Often she will speak her mind and what might have passed between herself and her husband, particularly if he is her ex-husband, becomes public knowledge. In that way there is knowledge which passes to the other party and knowledge which is the foundation of the questions which are sought to be asked. I think that is one restriction which is of some validity and I think it. weakens very much the analogy which is sought to be made by Senator Murphy

Senator Byrne - Supposing there was a question of litigation in negligence by a client against the solicitor?

Senator GREENWOOD - It would then be the client's privilege. If the client seeks to open up what occurred between himself and his solicitor the matter is opened up for all purposes - at least that is the law in Victoria, and I should imagine that it would be the law generally in this area. On the other hand, if a spouse calls his wife or his ex-wife and asks her to give evidence, she may give such evidence as relates to the matters for which her husband calls her, but if she chooses not to disclose the communications which passed between herself and her husband she may shut up. That seems to me, as I said earlier, to be an unjust result. Senator Murphy did not advert to the situation about exspouses.

Senator Murphy - That is covered in the question. If they are married, communications are privileged. The compellability clause is restricted to espoused parties, but the non-disclosure of communications is protected from compulsion if they have ever been married.

Senator GREENWOOD - I think it takes it wider. A person who has been married cannot be compelled to disclose a communication. There are some much married people in the community and therefore a wide range of protection is afforded.

Senator Murphy - The reason why we put that is to protect the relationships. A man can talk freely to his wife knowing that, at least unless she wants to, she cannot be forced by any party thereafter to disclose that information. That is tending to preserve the relationship between the spouses. That is the reason why it applies even if the marriage is gone.

Senator GREENWOOD - I acknowledge the way in which that is put, but on the other hand we may reach the situation that a person cannot be compelled to give evidence but is competent to give evidence in other areas. This would create a dichotomy which I feel would work against the ends of justice which litigation is designed to serve. That, to me, is a factor which one cannot leave out of this consideration. I understand that at present in the Australian Capital Territory a spouse is not only competent but compellable, but nevertheless not compellable to disclose communications which pass between them. That situation is different from what Senator Murphy is proposing.

Senator Murphy - It would disappear under the Minister's proposal.

Senator GREENWOOD - It is different from what is involved in the legislation for which I am responsible and it is different from what Senator Murphy is putting. I am not sure whether it is the situation for which Senator Byrne would contend, if he could. But the point is that I feel that if we have reached a stage where a witness is a compellable witness to give evidence on some matters, that witness should be available to be tested on all matters. It is not as though in being tested on all matters there is a probing inquiry into the matrimonial relationship. This is a situation in which the rules of relevance determine the matter and in which the only questions that can be asked are those for which there is some basic foundation to enable counsel to ask the question, and it must be related to issues which are before the court. In the ordinary circumstance I cannot see that there is any real difficulty which the adoption of the provision will create.

Senator Byrne - The Minister indicated that if I felt so disposed, he would in some way accommodate me on this matter. Could 1 know what the Minister had in mind?

Senator GREENWOOD - I said that if the honourable senator wished to have this clause postponed I would accommodate him. I cannot speak for the Committee, but certainly I would not oppose its postponement so that there might be some further consideration of the clause.

Senator Byrne - Postponed until when?

Senator GREENWOOD - A later hour this day - which may mean not until Tuesday week.

Senator Byrne - That would be very good. I would be happy about that.

Senator GREENWOOD - If the honourable senator asks for that I shall not oppose it.

Motion (by Senator Byrne) agreed to:

That consideration of clause 54 and the amendment proposed thereto by Senator Murphy be deferred until a later hour this day.

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