Is There Such A Thing As Spousal Privilege In Australia? In 2011, the High Court of Australia determined by a majority that there was no recognition of a right of spousal privilege at common law in Australia.
In Australian Crime and Corruption Commission v Stoddart, the wife of an accountant was compelled by summons to appear before the Federal Court in order to provide evidence of her knowledge of the husband’s preparation of certain tax documents. The wife claimed privilege in the conversations she had with her husband under a general principle of common law. The issue was remitted to a higher court for determination.
The Full Court of the Federal Court determined that the privilege did exist at common law and the Act under which the husband was charged did not cancel out the privilege.
The ACC appealed to the High Court. The High Court by a 5-1 Majority determined that there was not a generally accepted principle at common law of spousal privilege. Justice Heydon gave a dissenting judgement.
So is there such a thing as spousal privilege in Australia?
The majority determined that as there was not a generally accepted substantive rule regarding spousal privilege but it was important to explain where the concept had arisen.
Competence, Culpability and Privilege
Competence is the concept that you are able to properly give evidence.
Culpability is a determination of whether you should be legally compelled to answer questions.
These issues usually arise before a witness provides evidence or when evidence is being taken.
These concepts attach to the qualifications and personal experience of the person.
Privilege is attached to evidence. Privilege is a right. Privilege can be waived, or enforced. A common example is the legal professional privilege that occurs in communication of Legal Advice between lawyer and client. The witness can therefore determine whether they wish to use the right of the privilege or to waive it.
The Court explained that there was generally a problem with the overlap of these concepts of competence, culpability and privilege and that ultimately the common law had never declared a substantive right to spousal privilege against inclination of the spouse.
It was noted by part of the majority however that a spouse may seek a ruling that they not be compelled to give evidence which might incriminate the other spouse.
Self-incrimination Generally
Section 128 certificates under the Commonwealth and Western Australian Evidence Acts allow a party to object to providing evidence where the party may incriminate themselves as to an offence against or arising under Australian or Foreign Law. The Court makes a determination as to whether there are reasonable grounds for providing a certificate protecting the person from incrimination. The Court may still compel the witness to give their evidence in the interests of justice.
Contact Daniel Sampson of Culshaw Miller Lawyers for more information about the status of spousal privilege in Australia.
Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email
Blog post by Daniel Sampson