overview
flows
pornography
global
Australian law
overseas law
agencies
advocacy
texts
free speech
walls & tunnels
news
books
comics
photography
performance
film & video
games
broadcast
official secrets
FOI
archives
whistleblowing
reporting
professional
confessional
education
street life
related
Profiles:
Human
Rights
Aust
Constitution
& Cyberspace
Defamation
related
Guides:
Privacy
Intellectual
Property
Publishing
|
professional
privilege
This page looks at professional privilege and broader
'freedom to be silent'.
It covers -
introduction
Western legal systems (whether through common law or through
specific enactments) provide protection for the confidentiality
of information that forms part of many relationships,
including information handled on a privileged basis in
the course of employment, information provided to professional
advisers such as doctors and lawyers and information provided
to government regarding taxation or health services.
Perceptions of the boundaries of that confidentiality
vary. Most common law protection is not absolute: it can
be overridden through a judicial subpoena or during the
process of legal discovery. Different jurisdictions have
adopted varying stances on protection for particular relationships,
notably those involving the media and religion, with legislation
and practice ranging from protection for those relationships
to requirement that information be provided to courts
in judicial proceedings.
Those differences illustrate questions about civil society,
human rights (and responsibilities) and the nature of
information in post-industrial societies. They reflect
divergent histories regarding intellectual property, privacy,
the obligations of the ruled and the duties of rulers.
They include conflicts between legal requirements and
individual or professional codes of ethics, where journalists
for example have cited personal beliefs in refusing to
divulge the identity of informants who provided information
on a confidential basis.
They also include conflicts between legal systems, with
a clash for example between secular law and canon law
over disclosure of information provided on a confessional
basis. More
recently there have been moves to reduce clerical privilege
in the UK, US and Eire after incidents of sexual abuse
involving clergy of several churches.
We have explored questions
of medical confidentiality in the Privacy Guide elsewhere
on this site.
a
right to be silent
Freedom of speech, discussed earlier in this guide, is
complemented by the 'freedom to be silent', arguably almost
as important.
It encompasses recognition in common and slatute law of
rights against self-incrimination, broadly that individuals
are not obligated to disclose anything that may subject
them to criminal liability. Most regimes feature provisions
requiring full disclosure for law enforcement purposes
and judicial proceedings. Such provisions sometimes include
restrictions on use of disclosed information as the basis
of a prosecution.
Australia
[under development]
In Australia the salient study is Legal Professional
Privilege in Australia (Chatswood: LexisNexis Butterworths
2005) by Ronald Desiatnik.
New Zealand
[under development]
Canada
[under development]
UK
Lord
Denning of the English Court of Appeal noted in 1963 that
The
only profession that I know which is given the privilege
from disclosing information to a court of law is the
legal profession, and then it is not the privilege of
the lawyer but of his client. Take the clergyman, the
banker or the medical man. None of these is entitled
to refuse to answer when directed to by a judge. Let
me not be mistaken. The judge will respect the confidences
which each member of these honourable professions receives
in the course of it, and will not direct him to answer
unless not only it is relevant but also it is a proper,
and indeed, necessary question in the course of justice
to be put and answered. A judge is the person entrusted,
on behalf of the community, to weigh these conflicting
interests - to weigh on the one hand the respect due
to confidence in the profession and on the other hand
the ultimate interest of the community in justice being
done.
Disclosure
of sources also inhibits official/private leaks. As we
have noted in discussing official
secrets legislation and practice the UK government
has on occasion prosecuted officials for unauthorised
disclosure of information. Sarah Tisdall for example received
a six-month jail sentence in 1983 after the Guardian
disclosed that she was its source, providing documents
from the office of Foreign Secretary Michael Heseltine
about stationing of US cruise missiles.
USA
US courts have had an uneven record in recognition of
professional privilege, with acceptance in some fora and
jailing of individuals for contempt by other courts.
next page
(confessional)
|
|
