PROFESSIONAL PRIVILEGE

IN THE
LAW OF EVIDENCE

report of the
torts and general
law reform committee

Presented to the Minister of Justice

March 1977

CONTENTS
PAGE

INTRODUCTION
CHAPTER I
BARRISTERS AND SOLICITORS

CHAPTER II
CITIZENS ADVICE AND LEGAL ADVISORY BUREAUX

CHAPTER III
PATENT ATTORNEYS

CHAPTER IV
ACCOUNTANTS

CHAPTER V
BANKERS

CHAPTER VI
MEDICAL PRACTITIONERS

CHAPTER VII
PSYCHOLOGISTS

CHAPTER VIII
CLERGYMEN

1
11
16
18
28
35
37
38

41

CHAPTER IX
COUNSELLORS AND SOCIAL WORKERS

CHAPTER X
SCHOOL TEACHERS, LECTURERS AND STUDENT
COUNSELLORS

CHAPTER XI
JOURNALISTS

CHAPTER XII
REFORM RECOMMENDATIONS

LIST OF MEMBERS OF COMMITTEE

APPENDIX I
APPENDIX II

52
57
72
78

1.

INTRODUCTION

Privilege in the law of evidence is the right to

refuse to disclose in court, or to allow another person to
disclose in court, evidence otherwise admissible that is
relevant to the matter in issue.
It arises out of the
conflict between the need to preserve confidence on the one
hand, and the need to ascertain the truth on the other.
Our courts are concerned to arrive at the truth.
They must ascertain the facts of the matter before they can
apply the law to those facts, or consider whether or not to
exercise a discretion and in what manner.
To establish the
true facts the courts rely on witnesses as well as on
documentary and other material evidence.
Relevant facts
may be known to some persons, and not to others.
The
accuracy of observation and
recollection of different
witnesses varies, as may also their veracity.
To the
extent that material evidence is not placed before the
court, there is a risk of mistake and consequent injustice.
It is important, therefore, that so far as practicable, all
relevant evidence should be brought forward and considered.
To achieve this object, we rely on the adversary
system. Court proceedings take the form of a contest
between opposing parties.
Each is concerned to bring
forward the facts and arguments which support his own
contentions, and to expose the weaknesses in his opponent's
case.
Each has the opportunity through cross-examination
to probe the accuracy and the reliability of the testimony
called
by his opponent.
Each will
normally
engage
professional counsel who is not only skilled in
the

2.

presentation of
court.

case,

but has an overriding duty to the

The court is dependent on the parties to place the

relevant evidence before it.
If evidence is relevant to
any question that is in issue it will normally support one
side or the other.
One party at least will have an
interest to
bring
that
evidence
forward.
It is
fundamental, however, that he should have the right and
power to do so.
In general, each party to the proceedings has the
right to place before the court all evidence relevant to the
questions in issue.
For this purpose he can compel
witnesses to attend and give evidence of relevant facts
within their knowledge.
He can compel the production of
relevant documents.
Failure to attend after being served
with a subpoena and failure to answer proper questions when
asked or to produce relevant documets in the possession of
the witness is a serious matter, punishable as a contempt of
court.
Privilege is an exception to this power of the party
to compel relevant and otherwise admissible evidence to be
placed before the court.
To the extent that it exists, it
deprives the court of material which might have helped or
influenced it in arriving at a decision.
The absence of
such evidence may, therefore, result in a different decision
made in ignorance of the full facts.
Injustice may result.
It is clear, therefore,that privilege must be regarded as
something exceptional, to be recognised and admitted only
where there are compelling and overriding reasons which
outweigh the risk of injustice.
Evidentiary privilege is a legal right that a witness
should not give certain evidence in court, even though the

3.

evidence is relevant to the issues before the court, and is

otherwise admissible.
Privilege also enables a party or
witness to refuse to produce relevant documents or other
evidence, and enables a party to refuse in pre-trial
procedures to produce certain documents for inspection by
the other party, or to answer questions submitted to him.
It is a narrower question than in the wider issue of
the so-called right of privacy.
The proper scope of the
search warrant, for example, and the investigatory powers of
various government departments lie outside the scope of
privilege although they intrude on privacy.
The reasons for claiming privilege must be carefully
examined in order to weigh the importance of confidentiality
in a particular relationship against the importance of
ensuring that all relevant material is placed before the
court in the interests of justice.
This point is made by
Wigmore
who suggests four fundamental conditions which
should be satisfied before a privilege can be said to be in
the public interest.
1.

The communications must originate

that they will not be disclosed.

2.

This element of confidentiality must be essential to

the full and satisfactory maintenance of"the relation
between the parties.

3.

The relation must be one which in the opinion of the

community ought to be sedulously fostered.

4.

The injury

1.

that

would

in

a confidence

inure to the relation by the

8 Wigmore, Evidence, para. 2285 (McNaughton rev. 1961).

4.

disclosure
of
the
communications
greater than the benefit thereby
gained
correct disposal of litigation.

must
be
for the

These criteria have seemingly won universal acceptance.

They contain no magic formula for decision making although
the regularity with which they are cited both for and
against claims for privilege would suggest otherwise.
Privilege at common law
The common law regards evidentiary privileges as
exceptional and courts have been consistently unwilling to
recognise new privileges.
The major common law privileges
are:
(a)

The privilege against self incrimination.

one is bound to answer any question if
answer thereto would, in the opinion of
judge, have a tendency to expose him to
criminal charge,

(b)

Legal professional privilege.

Communications
passing between a client and his legal adviser,
and in some cases, between them and third
parties, may not be given in evidence without
the consent of the client if they are made
either:
(i)

2,

Ho
the
the
any

With reference to litigation which is

actually taking place or was in the
contemplation of the client; or

As well as being quoted with approval In cases as far afield

as Ireland (Cook v Carroll [1945] Ir E 515) and Canada
(Re Kryschuk and Zulynik
(1958) 14 DLR (2d)
676),
the
conditions are invariably utilized in articles considering
'evidentiary privileges.
See for a good example Fisher,
"Psychotherapeutic Professions and the Law of Privileged
Communications" (1964) 10 Wayne LR 609 at p.611 et seq.

5.

(ii)

To enable the client to obtain,

adviser to give, legal advice.

or

the

(c)

Statements
made
without
prejudice.
To
encourage parties to settle disputes out of
court, statements made in an attempt to settle
are not admissible unless the privilege is
waived.
Without
this
privilege,
frank
discussion between the parties would often be
impossible.

(d)

Title deeds.
There is an obsolete rule under
which a witness who is not a party cannot be
compelled to produce the title deeds to his
property.

Several statutes modify the common law privileges and

others create additional privileges.
The following are
examples:
(a)

The
common
law
privilege
against
self
incrimination is modified by various statutory
provisions, notably s.5{2) provios (c) and (d)
of
the
Evidence
Act 1903, s.70 of the
Insolvency Act 1967, s.262(5) of the Companies
Act 1955 and s.297 of the Customs Act 1966.

(b)

Section 69 of the Matrimonial Proceedings Act

196 3 gives a witness in proceedings under that
Act the right to refuse to answer a question
where the answer may show or tend to show that
the witness has committed adultery unless proof
of that adultery would be material to the

6.

decision of the case.

The

earlier statutory

provision gave a much wider privilege.

(c)

Section 6 of

the

Evidence

that a person shall

not

Act

proceedings to disclose any

to

that

person

by

1908 provides

be compellable in any
communication made

his or her spouse

during

their marriage.
(d)

Section

of

the Evidence Act

1908

carefully circumscribed privileges

confers

in the case

of ministers of religion and doctors.

Hearsay rule
The law

of evidence in New Zealand still retains the

common law rule under

inadmissible.

which

hearsay

evidence is generally

Facts must be proved by

witness

personal knowledge of them, and not by proof

made

by

other persons.

in certain defined cases.

in

has

While it remains in force it has

much of the evidence in respect

is

who

statements

The rule is subject to exceptions

a considerable relevance to the question

be claimed

of

of

of

privilege,

as

which a privilege might

any event inadmissible under the hearsay

rule.

Privilege is
information

concerned

received

practitioner,

in

with

the

non-disclosure of

confidence.

The

him by his patient

for

the purposes of treatment.

doctor were asked to give evidence of these

however, his

medical,

for example, receives communications made

evidence

would

the matters stated.

If

proceedings,

the

then

the

by

be hearsay as to the truth of

patient

patient's

party.

If the

communications,

were

a party to the

statements

admissible under an exception to the hearsay rule

admissions made

to

There

is

could
as

be
being

a* considerable

7.

overlap between the situations where a question of privilege

might arise, and situations already covered by the rule
which excludes hearsay.

ago

The hearsay rule was considerably modified some years

in the United Kingdom (3)' and recommendations for the

admission of hearsay evidence in New Zealand under certain

stringent safeguards were made in this Committee's Report on
"Hearsay Evidence" (July 1967),
The court's discretion
Although the cases in which the law recognises an
absolute right to claim privilege are strictly limited, the
courts have in other cases exercised a discretion to
disallow a question or to permit a witness to refuse to
answer, having regard to the confidential nature of the
communication and to all the other circumstances of the
case.
The value of this discretionary approach was
stressed in the 16th report of the Law Reform Committee in
the United Kingdom "Privilege in Civil Proceedings" (4) where
it said:

"Privilege in the main is a creation of the

common law whose
policy,
pragmatic as
always, has been to limit to a minimum the
categories of privileges which a person has
an absolute right to claim, but to accord to
the judge a wide discretion to permit a
witness, whether a party to the proceedings
or not, to refuse to disclose information

3.

Civil Evidence Act 1963; Criminal Evidence Act 1965.

4.

Cmnd 3472 para. 1.

where disclosure would be a breach of some

ethical or social value and non-disclosure
would be unlikely to result in serious
injustice in the particular case in which it
is claimed.
Where under this discretionary
power disclosure is compelled, the court can
impose such limitations as it thinks fit as
to the persons to whom the information is to
be disclosed and as to the use to be made of
it outside the particular proceedings in
which
it
is
disclosed
(cf.
Chantrey Martin & Co v. Martin [1953] 2 QB
286T~. This policy has, we think, in general
worked satisfactorily.
In exercising his
discretion the judge can take into account
all the circumstances of the case.
To
replace this wide judicial discretion by a
more comprehensive and
rigid
statutory
classification of privileges together with
detailed provision as to the circumstances
in which each of them could or could not be
claimed would, we think, be more likely to
defeat than to promote the interests not
only of justice but also of those social
values which it is the object of a privilege
to protect."

In Attorney-General v. Mulholland and Foster

the
English Court of Appeal rejected a journalist's claim for
privilege in respect of
his
confidential sources of
information.
The Court considered, nevertheless, that it
had a wide discretion to exclude evidence which, although
relevant, would involve a breach of confidence.
"While the
journalist has no privilege
entitling him as of right to refuse to
disclose the
source,
so
I think the
interrogator
has no absolute right
to
require such disclosure.
In the first
place the question has to be relevant to be
admissible at all:
in the second place it
ought to be one the answer to which will
serve a useful purpose in relation to the
proceedings in hand ...
And over and above

5.

[1963] 2 QB 477.

9.

these two requirements, there may be other

considerations, impossible to
define in
advance, but arising out of the infinite
variety of fact and circumstance which a
Court encounters, which may lead a judge to
conclude that more harm than good would
result
from compelling a disclosure or
punishing a refusal to answer ...
The
judge should
always
keep
an ultimate
discretion.
This would apply not only in
the case of journalists but in other cases
where information is given and received
under the seal of confidence ..."
Per Donovan L.J.
"The only profession that I know which is
given
a
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 or, in the
case of a tribunal such as this, in a proper
investigation being made into these serious
allegations.
If the judge determines that
the
journalist
must answer,
then
no
privilege will avail him to refuse."
Per Denning M.R.

6.

Ibid. 492.

7.

Ibid. 489-90.
As will be seen, no statutory privilege
applies to clergymen or medical practitioners in England.

10.

In D v. National Society for the Prevention of Cruelty

to Children*8^ the Court of Appeal (Scarman L.J. and Sir
John Pennyculck, Denning M.R. dissenting) held that although
confidentiality might be a weighty factor in holding the
scales between the public interest and the requirements of
justice, it is not a separate head of privilege and cannot
of itself afford a ground for non-disclosure of documents in
legal proceedings.
Scarman L.J. nevertheless accepted that
confidence can be broken only where the court holds that the
evidence is relevant and necessary to enable justice to be
done.
The existence of such a discretion in New Zealand has
not been discussed in any reported decision.
Whatever the
status of the rule in New Zealand, the Committee is of the
opinion that such a discretion is desirable and should be
clarified.
Need for a new approach
Privilege and the need for privilege have been
claimed by many groups.
The Committee feels that when
considering whether any of these groups should have their
own particular privilege it is necessary to take into
account the general discretion exercised by judges.
This
discretion, if given the force of statute and exercised in
accordance with guidelines laid down by statute, could
provide a satisfactory and
certainly
more
desirable
alternative to the granting of privilege to a wider number
of named groups.
We propose to examine each of the various
groups which call for consideration and then to return to
the question of the desirability or otherwise of a general
statutory discretion.

8.

[1976] 3 WLR 124.

11.

CHAPTER 1

BARRISTERS AND SOLICITORS

This
is
the only professional
privilege recognised by the common law.
Its
rationale
Gaskell (1) to be:

was

stated

in

evidential"}

Greenough

v.

"It is not (as has sometimes been said) on

account of any particular importance which
the law attributes to the business of legal
professors, or any particular disposition to
afford them protection .,.
But it is out
of regard to the interests of justice, which
cannot'
be. upholden,
and
to
the
administration of justice, which cannot go
on, without the aid of men skilled in
jurisprudence,
in
the practice of the
courts, and
in those matters affecting
rights and obligations
which
form the
subject of all judicial proceedings.
If
the privilege did not exist at all, everyone
would
be
thrown upon his
own
legal
resources;
deprived of all professional
assistance, and man would not venture to
consult any skilful person, or would only
dare to tell his counsellor half his case."
The privilege is not recognised in order to protect
confidentiality as such, but because of the additional fact

1.

(1833) 1 My and K 98, 103; 39 ER 618, 620, per Lord Brougham.

12.

that legal advice is concerned "with rights and liabilities

enforceable in law, i.e. in
the
ultimate resort by
litigation
in
the courts or in some
administrative
tribunal".
It is claimable in both civil and criminal
proceedings.
The privilege covers three kinds of communications:
(a)

"communications between the client or his agents and

the client's professional legal advisers";

(b)

"communications between the client's professional

legal advisers and third parties, if made for the
purpose of pending or contemplated litigation"; and

(c)

"communications between the client or his agent and

third parties, if made for the purpose of obtaining
information
to
be submitted to
the
client's
professional
legal advisers for the purpose of
obtaining
advice upon pending
or
contemplated
litigation".( 3)

Under the first of these headings it- is sufficient if

the client is merely seeking advice; it is unnecessary that
he be involved in pending or anticipated litigation. (4)
Under the second and third of these headings there must at
the very least be some definite prospect of litigation.

2.

16th Report of the English Law Reform Committee, para. 19.

3.

Ibid. para. 17.

4.

Greenough v Gaskell
(8973) 8 Ch App 361.

5.

For the subtleties of this requirement, see e.g. Laurenson v

Wellington City Corporation [1927] NZLR 510; Alfred Crompton
Amusement Machines Ltd v
Customs and Excise
Commissioners
[1974] AC 405;
Konia
v
Morley
[1976] 1 NZLR 455;
Cross on Evidence (4th e d . ) , 251-3.

(1833)

1 My and K 98;

Minet v

Morgan

13.

The privilege is that of the client, not that of his

legal adviser, and may be waived by the client.
The
privilege is not recognised if a client
communicates
something to a lawyer in the course of seeking advice
intended to guide him in the commission of a crime or a
fraud.< 6 )
If a solicitor is called as a witness, it has
recently been stated that it is "his duty to claim privilege
on behalf of his client unless instructed otherwise".
The
privilege may be claimed by a witness in former proceedings
who now stands indicted for perjury for allegedly giving
false
evidence
in
those
proceedings.
When
a
communication was originally privileged, and the privilege
is claimed against the prosecution in criminal proceedings
in respect of evidence by the client originally concerned or
his solicitor, an onus rests on the prosecution to show that
the claim cannot be sustained.
This it can do, for
example, by showing that "there is no ground on which the
client could any longer be reasonably regarded as having a
recognisable interest in asserting the privilege", or by
showing that an established exception applies. f 9) "If
there are documents in the possession or control of a
solicitor which, on production, help to further the defence
of an accused man ... no privilege attaches".

6.

R v Cox and Railton (1884) 14

NZLR 597, 599.

QBD 153, cf. R v Craig [1975] 1

7.

R v Craig [1975] 1 NZLR 597, 598, per Cooke J.

8.

Ibid.

9.

Ibid.

10.

R v Barton [1972] 2 All ER 1192, 1194, per Caulfield J.

The
precise implications of this rule have yet to be worked out.

14.

Legal professional privilege is so deeply ingrained

in our legal system that it was held to prevail over the
general words of s.163 of the Land and Income Tax Act 1923,
requiring "every person" to furnish information in writing
and
produce
documents
for income tax purposes,
in
Commissioner of Inland Revenue v. West-Walker.
Section
2 of the Inland Revenue Department Amendment Act 1958
confirmed the privilege of non-disclosure in respect of
communications brought into existence for the purpose of
giving legal advice or assistance. At the same time the
195 8 amendment made it clear that this privilege did not
extend to any information, book or document which was part
of a solicitor's records.
Further changes were effected,
after discussion with representatives of the New Zealand Law
Society, in the Inland Revenue Department Act 1974.
As a
result
the
privilege
in
respect
of
confidential
communications was extended to apply also to communications
of a like kind passing between solicitors.
But it was also
provided that the Commissioner is entitled to obtain details
from solicitors of receipts and income handled bythem on
behalf of their clients, either on a general basis (i.e. in
respect of all clients) or in respect of specified clients.
The effect, as regards clients' investment receipts arising
on or after 1 April 1975, was to put solicitors on the same
footing as bodies such as trust companies and banks.
Such
information is not privileged if it is contained in a book,
account, statement or other record prepared or kept by the
legal practitioner in connection with his trust account.
Legal
professional privilege is
most
commonly
asserted in an affidavit of documents filed in response to

11.

[1954] NZLR 191.

12.

Inland Revenue Department Act 1974, s.20(2) and (3).

15.

an order for discovery.

In cases where there is any doubt
as to whether the privilege has been properly claimed, the
court has power, in interlocutory proceedings, to inspect
the documents in respect of which privilege is claimed and
it may call for a further affidavit.
The Committee does not recommend any alteration in
the law.
It has not received any submissions advocating
change from the New Zealand Law Society, and the various
District Law Societies which responded to the Committee's
working paper expressed themselves as content with the
status quo.
The privilege is essential to the adversary
system.
The
16th Report of the English Law Reform
Committee did not recommend any changes.
Nor, despite some
doubts about the details of the law, does the study paper
prepared by the Law of Evidence Project undertaken by the
Canadian Law Reform Commission.
That paper does not
exaggerate when it asserts:
"To abolish the privilege of legal advisers
would require the re-examination and total
reformulation of the attorney's
role in
society. " (15)

The Committee has no wish to tinker with the precise

details of the law, which may safely be left to be developed
by the courts as particular problems arise.
The Committee
knows that many solicitors are uneasy about the width of the
Inland Revenue Department Act 1974 but that Act represents a
very recent balancing by the Legislature of the conflicting
interests in confidentiality on the one hand and the need to
verify returns of income so as to enable the collection of
the proper amount of tax on the other, and the Committee
makes no recommendations for change in this special area
either.

13.

See the recommendation In the 16th Report of the Law Reform

Committee, para. 29; the speech of Lord Kilbrandon In the
Alfred Crompton case, supra; and Konia v Morley, supra.

14.

Evidence "12. Professional Privileges before the Courts" (The

Law Reform Commission of Canada, 1975).

16.

CHAPTER II

CITIZENS ADVICE AND LEGAL ADVISORY BUREAUX

Citizens advice and legal advisory bureaux are a

recent innovation, the product of an increasing social
awareness of the need to ensure that advice on legal and
other problems is readily available to less privileged
members of society in their own areas.
Legal aid, duty
solicitors, neighbourhood law centres and legal advisory
bureaux are new and valuable concepts in our legal system.
Legal assistance in these bureaux is provided by
legal practitioners who in some instances are assisted by
law students.
Law students at the different law faculties
also operate advice schemes for university students.
These
are supervised by faculty members who hold practising
certificates.
Where advice is given by a qualified practitioner it
is thought that the same professional privilege as would
attach to communications to that practitioner in his own
office attaches to the advice given in a bureau even though
that advice be gratuitous:

"Neither a formal retainer, nor the payment

of fees, is necessary to constitute the
relationship of solicitor and client; it is
enough if the adviser is in
any
way
consulted in his professional character."
(1)

17.

Where a student legal adviser is acting under the

direct supervision of a qualified practitioner in such a way
that he can properly be described as the agent of the
practitioner the ordinary legal privilege will apply. In
other cases, communications to the student legal adviser may
not be privileged.
The Committee feels that any problems
in this area can be
resolved either by the bureau
organising its affairs so that an agency situation is
created or alternatively by a general discretion of the
court.
Citizens advice bureaux are not concerned solely with
giving advice on legal matters.
Communications on other
matters can be protected where necessary by a general
discretion of the court.

18.

CHAPTER I I I

PATENT ATTORNEYS

Patent law
Patents Act 1953
Zealand

has

and
and

its
its

always

practice

are

governed

regulations.

by the

Patent law in New

closely followed t h a t

in

the

United

Kingdom and the present l e g i s l a t i o n i s no exception.

The r e g i s t r a t i o n of patents

and

r e l a t e d matters are

the r e s p o n s i b i l i t y of the Commissioner of

Patents

Patents

duties

Office.

however, purely
are

well

recognised

Opposition
and

an

The

Commissioner's

administrative
as

as

being

and
are

are

argued

not,

he has many powers t h a t

(2)
judicial
in
nature.

proceedings involving an applicant for a

opponent

the

patent

before the Commissioner

determined by him subject to a r i g h t of appeal.

c e r t a i n revocation proceedings involving

and

Similarly

petitioner
and
(4)
patentee are determined by the Commissioner.
Apart from
proceedings

commenced

by

others,

empowered in c e r t a i n circumstances
for

patents,

to

the

Commissioner

reject

is

applications

or t o refuse the grant of a patent once an

1.

The present United Kingdom legislation is contained in the

Patents Act 1949.
The New Zealand Act of 1953 introduced
into our law several modifications and refinements found in
the United Kingdom Act of 1949.
See the "Report of the
Commission to Inquire into and Report upon the Law of Patents,
Designs, and Trademarks" (1950).

2.

See Noonan v Giant Products Ltd [1960] NZLR 202 at 204 per
McGregor J.; "Report of Commission to Inquire into and Report
upon the Law of Patents, Designs, and Trademarks" (1950) para.
94.

3.

Section 21.

4.

Section 42.

5.

Section 17.

19.

application has been accepted.

Many other provisions of
the Patents
Act
1953 countenance the exercise of a
discretion by the Commissioner and s.94 is in this respect
an important general provision.
Section 94 provides that:

"Without prejudice to any provisions of this

Act requiring the Commissioner to hear any
party to proceedings thereunder, or to give
to any such . party an opportunity to be
heard, the Commissioner shall give to any
applicant for a patent, or for amendment of
a specification, an opportunity to be heard
before exercising adversely to the applicant
any discretion vested in the Commissioner by
or under this Act."

The Commissioner may in proceedings before him hear

evidence by affidavit, statutory declaration or orally.
He can administer oaths, compel the attendance of witnesses
(R)
and order the discovery of documents.
In practice
discovery is not ordered as parties voluntarily supply the
Commissioner with relevant documents.
As regards the conduct of business and
before the Commissioner, s.101 provides:
"101. Powers of patent attorneys
patent attorney -

(1)

(a)

Shall be
entitled to prepare all
documents, transact all business, and
conduct all
proceedings
for the
purposes of this Act; and

(b)

Shall have
such other rights
privileges as may be prescribed.

6.

Section 22.

7.

Section 96(1).

8.

Section 96(2).

and

20.

(2)
Nothing
in
this
section
shall
authorise a patent attorney to transact
business or conduct proceedings in a Court.
(3)
A patent attorney shall not be guilty
of an offence against [section eighteen of
the Law Practitioners Act 1955] by reason
only of the preparation by him of any
document for use in proceedings under this
Act before the Commissioner."

Practice as a patent attorney is regulated by the

Act.
Particular qualifications involving
in
part
a
specialist knowledge of certain areas of the law are called
for and registration required before a person can practise,
act, describe himself or hold himself out as a patent
(9)
attorney.(9)
The functions of a patent attorney in New Zealand
appear similar to those in Australia which have been stated
to be:
1.

Advice to clients and overseas associates on matters

of law and practice in the fields of patents, trade
marks
and
designs;
including
patentability,
registrability,
prosecution
and
amendment
of
applications, opposition, infringement,
validity,
revocation, assignment, licensing registered users,
working of patents, etc.

2.

Preparation of patent specifications

and
documents for proceedings under the Patents,
Marks and Designs Acts and Regulations.

9.

Section 100;
XXX.

Patents Regulations 1954 (S.R.

1954/211),

other
Trade

Part

21.

3.

Filing and prosecution of patent, trade mark and

design applications, and of oppositions and other
proceedings under the above Acts and Regulations.

4.

Investigations and searches of patent records and, in

some cases, of technical literature, and reporting
thereon.

5.

Attendance
at hearings before the Commissioner,
Registrar or Law Officer and at interviews with
examiners and other officials.

6.

Instructing or advising
infringement, revocation
behalf of clients.

Counsel
in opposition,
or other proceedings, on

7.

Payment of
clients.

other

8.

Maintenance of adequate records of patents, trade

marks and designs taken out for clients or in which
clients are interested, including records of fees and
actions due thereon, and reminding clients in advance
of fees to be paid or actions to be taken and of the
due dates therefor.

renewal

and

fees

on behalf

of

The patent attorney is a professional practising in a

specialised area of law.
His profession is regulated and
he is qualified to advise on particular legal matters.
In
fact the areas of the law in which the patent attorney has a
specialist knowledge, patents, designs and trade marks, are

10.

Hack, "The Profession of a Patent Attorney" (1961)

of the Australian Patent Office Society 6 at 9.

Journal

22.

not taught as part of the law student's general curriculum

in New Zealand law faculties.
Responsibility for these
aspects of the law rests on the shoulders of the parent
attorney.
The patent attorney's identification with the
law goes even further than that of adviser and technical
expert.
As his title itself suggests, he may before the
Commissioner take the role of counsel and represent his
client in various proceedings some of which involve contests
between two opposing parties.
In
spite
of
the
patent
attorney's
close
identification with the law, neither the common law, nor
statute law in New Zealand, recognises an evidentiary
privilege
in
respect
of
confidential
professional
communications to a patent attorney.
The common law rule was settled at a time when there
were no restrictions in the United Kingdom on practising as
a patent agent.
This situation is discussed in Moseley v.
The Victoria Rubber Company.
In
that
case
the
defendant sought discovery of certain documents relating to
discussions between the plaintiff and his solicitor who also
acted for the plaintiff as a patent agent.
Counsel for
both parties and the court took it as being clear that
communications to the solicitor in his capacity as a patent
agent were not privileged and Chltty J., who determined the
summons, ordered that the plaintiff give the defendant a
further and more particular answer in his affidavit of
discovery as to whether the documents in issue related to
communication with the solicitor as a solicitor or as a
patent agent.

11.

(1886) 55 LT 482.

23.

The English Law Reform

Committee
declined
to
recommend
a
general
privilege
for
professional
communications between patent agents and their clients.
It
recommended
that
privilege
should
be
confined
to
communications made in respect of pending or contemplated
"proceedings" in the Patents Office or the Patents Appeal
Tribunal. (12)
It is not clear what the Committee meant by
Tribunal.
the term "proceedings"
The Committee further considered that where a patent
agent was consulted as to contemplated court proceedings, as
distinct
from
proceedings before the Comptroller
or
Tribunal, professional communications to a patent agent
would be protected by the existing rules as to legal
professional privilege as a lawyer would necessarily be
instructed as well.
We think that legal professional
privilege may be sufficient to cover coinmunications to a
patent attorney after a solicitor or counsel has been
instructed, but it is
inadequate
to protect earlier
communications which in New Zealand commonly extend over a
considerable period.
The claim of the patent attorney for privilege is
based on an analogy with the legal profession, and the
analogy does not stop with the "litigation" role.
The
functions and professional qualifications of the patent
attorney show him to be a practitioner in a specialised
field of the law, whether he is conducting proceedings
before the Commissioner,
preparing
specifications
or
generally advising his clients.
A legal quality permeates
all his work.

12.

Cmnd 3472 para. 26.

13.

Cmnd 3472 para. 24.

24.

The common law has long recognised that the privilege

for legal
advisers
to
be effective must extend to
communications to and from a legal adviser for the purposes
of obtaining advice irrespective of whether proceedings are
pending or contemplated.
The same should be true of patent
attorneys once their involvement in legal matters is seen.
The provision enacting the Civil Evidence Committee's
recommendation, it is submitted, recognises this fact.
Section 15 of the Civil Evidence Act 1968 provides:

"Privilege
for
certain
communications
relating to patent proceedings - (1)
This
section applies to any communication made
for
the purpose
of
any
pending
or
contemplated proceedings under the Patents
Act 1949 before the Comptroller or the
Appeal Tribunal, being either (a)

a communication between the patent

agent of a party to those proceedings
and that party or any other person; or

(b)

a communication between a party to

those proceedings and a person other
than his patent agent made for the
purpose of obtaining, or in response
to a request for, information which
that party is seeking for the purpose
of submitting it to his patent agent.

For the purposes of this subsection

a
communication made by or to a person acting
(1)

on behalf of a patent agent;

or

(ii)

on behalf of a party to any pending or

contemplated proceedings,

shall be treated as made by or to that

patent agent or party, as the case may be.
(2)
In any legal proceedings other* than
criminal
proceedings a communication1 to
which
this
section
applies shall
be
privileged from disclosure in like manner as

25.

if
the
proceedings
mentioned
in the
foregoing subsection had been proceedings
before the High Court and the patent agent
in question had been the solicitor of the
party concerned.
(3)
For the purposes of this section a
communication made for the purpose of a
pending or contemplated application for a
patent or any other pending or contemplated
proceeding under the Patents Act 194 9 shall
be treated as made for the purpose of
contemplated proceedings under that
Act
before the comptroller
or
the
Appeal
Tribunal of every kind to which a proceeding
of that description may give rise, whether
or not any such proceedings are actually
contemplated when the communication is made.
(4)

In this section 'the

comptroller 1
and
'the Appeal
Tribunal' have the same meanings as in
the Patents Act 194 9;
'patent
agent 1
means
a
person
registered as a patent agent in the
register of patent agents maintained
pursuant to the Patents Act 1949 or a
company
lawfully
practising as a
patent agent in the United Kingdom or
the Isle of Fan; and
'party'
in
relation
contemplated proceedings,
prospective party thereto."

The

to
any
means
a

deeming provision in subs. (3) removes the doubt

as to

what

doing

so grants a

the

Committee
privilege

meant

by "proceedings", and in

virtually

as

wide

as

that

enjoyed generally by legal practitioners.

The privilege is
clearly wider than that recommended by the Committee. (14)

14.

The Committee's draft provision in the annex to* their report

contains no subsection corresponding to subsection (3). Cmnd
3472 Annex 2.

26.

The use of a restrictive form in drafting a privilege

is in itself productive of difficulties.
Section 15 of the
Civil Evidence Act 1968 may show that a restrictive approach
necessitates complexity in drafting and results in problems
of definition.
The privilege in s.15 protects a wide range
of
professional
communications, some not specifically
related to proceedings anticipated or otherwise, and yet at
the same time leaves a residual area of unprivileged
communications the boundaries of which are far from clear.
The complex provisions in
the
United
Kingdom
legislation may be compared with the simple approach to the
problem adopted in Australia.
Section 134(1A) of the
Patents Act 1952-69 provides:
"(1A) A communication between a patent attorney
and his client is privileged to the same extent
as a communication between a solicitor and his
client."
It is doubtful whether this formula goes any further
than the more complex English provision.
It has the virtue
of simplicity and is designed to equate the position of the
patent attorney to that of the solicitor.
In our view this
is a desirable objective.
The related areas of designs and trademarks should,
in our view, give rise to similar protection as for patents.
The principal law as to designs is now contained in the
Designs Act 1953, and as to trademarks in the Trademarks Act
1953.
These are specialised areas where advice is given by
patent attorneys and disputes are resolved with professional
assistance.
The
Commissioner
under each
Act
has
considerable discretionary powers and opportunity must be

27.

given to a party to be heard before a power is

adversely to him.

exercised

We
received submissions from the
New
Zealand
Institute of Patent Attorneys and from practitioners in this
field.
The Institute submitted that
an
evidentiary
privilege, similar to that in Australia, should be enacted
in New Zealand.
It drew attention to the large number of
disputes between parties concerning trade marks.
In our
view the Australian approach is simpler and preferable to
that of the English statute.
We recommend that a provision
similar to that in the Australian Act be enacted in New
Zealand by amendment
to the Evidence Act 1908.
The
privilege should extend to communications between a patent
attorney and his client and to the work done by registered
patent attorneys in the fields of designs and trademarks as
well as patents.
In order to avoid the possibility that a
provision similar to the Australian section
could be
construed as applying only to communications between a
patent attorney and his client for the purpose of obtaining
or giving legal advice, it is recommended that the provision
be worded as follows:
"A communication between a registered patent
attorney and his client made for the purpose
of obtaining or giving advice in relation to
any patent design or trademark or to any
application in respect of a patent design or
trademark is privileged to the same extent
as a communication between a solicitor and
his client made for the purpose of obtaining
or giving legal advice."

28.

CHAPTER IV

ACCOUNTANTS

Common law
No
privilege
exists
to
protect
confidential
communications between an accountant and his client.
In
Chantrey Martin & Co v. Martin
a firm of accountants
engaged in litigation objected to the production of certain
of their documents on the ground that

"they embodied information which was the

subject
of professional
confidence
as
between the
plaintiffs
and the client
company and their
production,
and the
consequent disclosure
of their contents
would be a breach by the plaintiffs of their
duty to the client company." (2)
The English Court of Appeal in a unanimous judgment
delivered by Jenkins L.J. had little hesitation in rejecting
the accountants' submission:
"Outside the area of legal professional
privilege, which is not in question here, we
do not think this is a sufficient ground for
refusing an order for production." (3)

1.

[1953] 2 All ER 691.

2.

Ibid. 695.

3.

Idem.

29.

A passage from Bray on Discovery was quoted with approval:

"The mere fact that the giving of the
discovery
will
involve
a
breach
of
confidence as against some third person or
in any way affect or prejudice his interests
does not constitute of itself an independent
objection
to
giving the discovery,
a
disclosure under the compulsion of the court
being for this purpose distinguished from a
voluntary disclosure out of court." (4)

Statutory privilege
The common law position has been modified in several
United States jurisdictions.
In all, 16 States have
granted some
form
of
evidentiary protection to theaccountant or his client.
Puerto Rico also has an
accountants' privilege.
Such privileges vary greatly in the extent of the
protection afforded.
At one extreme the Illinois statutory
privilege provides wide protection in the following terms:

"A public accountant shall not be required

by any court to divulge information or
evidence which has been obtained by him in
his
confidential capacity as a
public
accountant." (6)
At the other extreme, that in Michigan provides only limited
protection for confidential communications:

[1953] 2 All E.R. 696.

These statutory provisions are set out in a note "Privileged
Communications - Accountants and Accounting - A critical
Analysis of Accountant-Client Privilege Statutes" 66 Mich LR
1264.
Illinois Revised Statutes.

Ch. 110 1/2 para. 51 (1965).

30.

"Except by written permission of the client

... a certified public accountant, or a
public accountant ... shall not be required
to, and shall not voluntarily, disclose or
divulge information of which he or she may
have become possessed relative to and in
connection with any examination of, audit
of, or report on, any books, records, or
accounts which he or she may be employed to
make.
The information derived from or as
the result of such professional service
shall be deemed confidential and privileged.
This section shall not be construed as
prohibiting the disclosure to a third party
having an interest in or relying on an
opinion rendered by
a certified public
accountant." (7)

Need for a privilege

The
appearance
of
statutory
privileges
for
accountants in the United States has not engendered much
support outside of the accounting
profession
in the
particular State concerned.
The American Bar Association's Committee on the
Improvement of the Law of Evidence in 1937-38 placed the
accountant's privilege at the top of its list of undesirable
novel privileges:
"Novel Privileges.
Of recent years, there
have appeared on the statute book of several
Legislatures certain novel privileges
of
secrecy.
Their
history
has not been
traced; but they bear the marks of having
been enacted at the instances of certain
occupational organizations of semi-national
scope.
The demand for these privileges
seems to have been due, in part to a pride
in their organization and a desire to give
it some mark of professional status, and in
part to the invocation of a false analogy to
the long-established privileges for certain
professional communications.

31.

The
analogies are not
convincing
(though this is not the
place
for a
demonstration).
Moreover, the tendency is
an unwholesome one.
Yet it threatens to
spread not only to other Legislatures but to
other occupations.
The correct tendency
would rather be to cut down the scope of the
existing privileges, instead of to create
any new ones.
We recommend that the Legislatures
refuse to create any new privileges for
secrecy of communications in any occupation;
and particularly we recommend against any
further recognition of
(A)

Privilege for information obtained

Accountants;

(B)

Privilege for information

Social Workers;

(C)

Privilege for information obtained by

Journalists." (8)

The position of social workers

considered later in this report.

by

obtained by

and

journalists is

The
position
of the accounting profession has
remained in essence unchanged and it is considered that the
comments of the A.B.A.'s Committee with respect to an
accountant's privilege are still pertinent.
The view of
the A.B.A.'s Committee were found
acceptable by both the framers of the Model Code of Evidence
approved in 1942 by the American Law Institute and of the
Uniform Rules of Evidence approved in 1953 by the National
Conference on Uniform State Laws in 1953.
Neither of these
codes contains a privilege for accountants or their clients.

"Report of the A.B.A.'s Committee on the Improvement of the

Law of Evidence".
Quoted in 8 Wigmore, Evidence para. 2286
(McNaughton rev. 1961)

32.

Wigmore also placed an accountant's privilege on

list of undesirables:

his

"In recent times in the United States,

however, legislation has been sought, here
and there successfully, to establish new
privileges.
Most of these attempts have
been made by organised occupational groups
who believe that for the protection of their
own particular interests a privilege is
needed and is justified.
In no instance
has
it been made to appear that
the
occasional
disclosure,
in
judicial
proceedings, of the communication sought to
be kept secret would be injurious to the
general exercise of the occupation, or that
all the conditions exist which justify a
general privilege ...
Among the recent legislation are found
statutes in several states privileging .,.
communications to accountants ..." (9)
It is noteworthy that the American Institute of
Certified Public Accountants is apparently divided on the
issue of an accountant's privilege and has yet to adopt a
position in favour of or against the privilege. "
The
absence of any substantial support, in a country where
certain jurisdictions have enacted such a privilege is in
itself significant.
A claim for an accountant's privilege has recently
been made in the New Zealand Accountants' Journal.
After
setting out various legal rules that offer some evidentiary
protection to the accountant, the author argues in favour of
a statutory privilege in the following terms:

9.

8 Wigmore, Evidence para. 2286 (McNaughton rev. 1961).

10.

66 Mich. L.R. 1264 at 1270 n.23.

11.

Eagles, "Accountant-Client Privilege" (1973) 52

Journal 9.

Accountants'

33.

"While the common

law
recognised
the
existence of legal professional privilege as
early as 1577, it has been reluctant to
extend the doctrine to other professional
persons.
It has been said that the special
position of lawyers is justified because of
their
part
in
the
trial
process.
Litigation, it is said, obviously would
become impossible if a party's first witness
was
the
other
party's lawyer.
This
argument might be maintainable if legal
privilege were confined to those situations
where litigation was anticipated but it is
not (at least in so far as information
received from the client is concerned.)
In
fact, the privileges is founded upon the
necessity of ensuring that a person is not
afraid to seek legal advice because he is
afraid that what he says may later be
disclosed in court.
This argument applies
equally to other professions, a fact which
has received limited statutory recognition
in New Zealand.
Thus s.8 of the Evidence
Act 1908 confers a privilege on medical
practitioners although no such privilege
existed at common law.
There seems no
reason why a similar privilege, subject to
certain qualifications, should not apply to
accountants, especially in those areas where
the services they perform overlap with those
of lawyers.
Thus, in the field of giving
advice
on
taxation
matters
neither
profession
can
claim
an
exclusive
competence.
Why then should the privilege
be available to the one and not the other?"
(12)

This argument is open to the same criticisms that the

A.B.A.'s Committee and Wigmore have made in respect of
accountant privileges in the United States.
It is based on
the invocation of false analogies and, given the exceptional
nature of evidentiary privileges, the author of the argument
fails to demonstrate that the occasional disclosure in
judicial proceedings of the communication sought to be kept
secret would be injurious to the accountant's client.

12.

Ibid. 12.

34.

Any general analogy between the accounting profession

and the legal profession as to the need for an evidentiary
privilege should be rejected.
The lawyer is far more
frequently concerned with situations of actual or potential
dispute than is the accountant.
As McCormick has said, the
lawyer's office
is the very ante room to the court
house,
house.
The same cannot be said of the accountant's
office.
The view has been put that there can be an overlap
between the functions of the accountant and the lawyer in
the area of tax advice where neither professional has
exclusive competence.
There are situations in which advice
given by a lawyer might be privileged and yet the same
advice given by an accountant acting within his professional
capacity would not be privileged.
The fact remains that it
will be rare that an accountant will be called on to prove
statements made to him by his client.
If the statements
are made with a view to possible litigation they may well be
covered by legal privilege. The few cases which remain can
best be dealt with by the exercise of judicial discretion.
The New Zealand Society of Accountants accepted the
view
that an
evidentiary
privilege
protecting
the
accountant/client relationship cannot be justified.
It
said it had no reason to believe that difficulties are
encountered in practice through lack of a privilege.
In the opinion of the Committee the accountant/client
relationship can be adequately protected in cases where this
is desirable by a general discretion vested in the court.

13.

McCormick, Handbook of the Law of Evidence (1954) para. 108.

35.

CHAPTER V

BANKERS

It is an implied term of the banker's contract with

his client that the banker will not disclose to third
parties matters relating to his client's account unless the
client
consents.
The contractual duty is, however,
subordinate to the duty to give evidence and no privilege
exists to prevent the compelled disclosure o'f confidences in
court. (1)
There are certain special provisions in the Banking
Act 1908 relating to evidence by bankers.
Section 19
provides that a copy of entries in banking books is prima
facie evidence of all entries, matters, transactions and
accounts recorded. Because of this particular dispensation
from the normal evidentiary rules as to proof, the banker is
protected in s.20 from being compelled to appear personally
or to produce his books in any suit where he is not a party
and the matter can be proved under s.19.
These particular rules are desirable in the interests
of the expeditious settlement of disputes and adequately
recognise any demand the banker or his client might have for
evidentiary protection.

1.

Tournler
v
National Provincial and Union Bank of England
[1924] 1 KB 461.

36.

There is no apparent need for evidentiary privilege

in this area and those banks that responded to
the
Committee's invitation to comment on the present situation
indicated that no change was necessary.
In the unlikely event of a situation arising where
there might be any real injustice in requiring a banker to
give evidence of a communication received from his client a
general discretion vested in the court should provide a
sufficient safeguard.

37.

CHAPTER VI

MEDICAL PRACTITIONERS

Medical privilege was the subject of a separate

Report presented to the Minister of Justice on 11 November
1974.
The Report on "Medical Privilege" is published as
Appendix I to this Report.

38.

CHAPTER VII

PSYCHOLOGISTS

The clinical psychologist's claim for an evidentiary

privilege has already been considered in our Report on
"Medical Privilege".
We now consider the position of other
psychologists.
No common
law privilege exists to protect the
confidences between patient and psychologist and this is not
surprising having regard to the restrictive approach of the
common law and the comparative novelty of psychology.
While psychologists in New Zealand have their own
professional association, it cannot be
said that the
practice of psychology exists as a distinct profession in
terms of statutory control or functions performed.
They
may share a common scientific discipline but the functions
they perform are varied.
Quite apart from clinical work
psychologists are engaged in counselling, in research work
and in the commercial world as occupational and industrial
psychologists.
The absence of any statutory regulation and lack of a
clear professional
identity
would of itself make it
difficult to define the scope of any evidentiary privilege
for psychologists.
So far as the counselling role of the psychologist is
concerned, the issue as to privilege is of considerable
importance, not only for psychologists but for all involved
in counselling roles.
A great number of those engaged in

39.

counselling work do not have the psychologist's particular

expertise and we are of the view that any distinction
between different types of counsellors based on their
adherence to a particular "profession" or discipline could
be both arbitrary and undesirable.
If there is to be
evidentiary protection to confidences to a psychologist
engaged in counselling work, this protection should be given
because the psychologist is a counsellor rather than because
he is a psychologist.
The rationale for granting a
privilege would
be drawn from tbe particular service
performed and not from any professional allegiance.
The
position of counsellors and social workers is dealt with in
a later section of this report.
Whilst
in
recent
times
some
United
States
jurisdictions have
thought
fit
to grant evidentiary
privileges to psychologists,
in most instances such
privileges have been an adjunct to a medical privilege.
Privilege has been granted
to
psychotherapists
thus
emphasising the curative aspect of psychology.
An American
commentator
has criticised
widely
drawn
evidentiary
privileges:
"... It would not seem desirable to protect
the confidences of
the
client
of the
industrial consulting psychologist, or those
of psychologists engaged in market research,
survey
research,
advertising,
contract
research
(in
social
or
experimental
psychology), administration, etc....
These
functions
do
not involve
vital
human
relations, whose inviolate privacy benefits
society.
Including these functions under a
privilege
to
clients
of
psychologists
needlessly
impedes
fact
finding
in
litigation." (2)

1.

Thirty-one
U.S.
jurisdications currently have
such
a
privilege.
The first was enacted in
Montana in 1935.
Twenty-one of these privileges have been enacted since- 1960.
See the tables in Schroeter, "Protection of Confidentiality in
the Courts:
The Professions" (1969) 16 Social Problems 376,
380.

2.

Geiser and Rhelngold,

Testimonial Privileged
Psychologist 831, 835.

"Psychology and
Communications"

the Legal
(1964) 19

Process:
American

40.

In
its
submission
to
us,
the New
Zealand
Psychological
Society (Inc.), requested
that
medical
privilege be extended to psychologists and it was suggested
that a psychologist should be defined as any member of the
New Zealand Psychological Society or any person who is
clearly entitled to be a member.
Attention was also drawn to the question of privilege
in relationships between psychologists and member's of the
public in non-clinical situations, examples being given of
the occupational and the research
psychologist.
The
submission indicated that the occupational or industrial
psychologist in the course of personnel selection might
obtain information of a potential benefit both to employer
and employee, but which was potentially damaging and should
normally be regarded as confidential.
So far as the research psychologist is concerned, we
are informed that many research programmes involve obtaining
information potentially damaging to the subject of the
research if made public.
Such areas include drug use,
crime, marital relations and sexual behaviour .
The
information was regarded
as
vital
to
the research
programmes.
It was submitted that current research by
members of the Psychological Society relied on being able to
promise confidentiality and that should an occasion arise
when a research psychologist was called to give evidence,
say on drug using subjects,then the possibility of anyone
carrying out such research in the future would be severely
reduced if not prevented with a consequential loss of
necessary information from the community.
We do not recommend any specific statutory privilege
for communications to psychologists but feel that the
matters urged upon us in this area by the Psychological
Society are adequately met by the recommendations we are
making as to the court's discretion with
respect to
confidential situations generally.

41.

CHAPTER VIII

CLERGYMEN

The common law does not recognise an evidentiary

privilege
for
confessions
or
other
confidential
communications to clergy.
The argument in favour of
such a privilege was expressed by Alderson B. in R v.
Griffin:( 2 )
"The principle upon which an attorney is
prevented from divulging what passes with
his client is because without an unfettered
means of communication the client would not
have proper legal assistance.
The same
principle applies to a person deprived of
whose advice the prisoner would not have
proper spiritual assistance.
I do not lay
this down as an absolute rule; but I think
such evidence ought not to be given."
A statutory privilege has been granted by s.8
Evidence Act 1908:

of the

"(1) A minister shall not divulge in any

proceedings any confession made to him in
his professional character, except with the
consent of the
person
who
made such
confession.
(3)
Nothing in this section shall protect
any communication made for any criminal
purpose ..." (3)

1.

Normanshaw
v Normanshaw (1893) 69
Le Marchant (1881) 17 Ch D 675, 681.

LT

468;

Wheeler

2.

Kv

3.

A statutory privilege was first granted by the Evidence

Further Amendment Act 1885, s.7.
The
wording of the
privilege was changed slightly in the Evidence
Further
Amendment Act 1895, s.9 and yet again in the Evidence Act
1905, s.8.
The present privilege is identical with that in
the Act of 1905 and substantively the same as the original
privilege.

Griffin 6 Cox CC 219.

42.

The privilege recognises the special role of the clergyman

in society as someone to whom people can turn for spiritual
guidance and help without fear or restraint.
The terms of
the provision have not been considered in any reported
case. (4)
"Minister" is defined in s.2 of the Evidence Act 1908
to mean an "officiating minister" under the Marriage Act
1955. The Marriage Amendment Act 1976 dispenses with the
term "Officiating Minister" and amends s.2 to read:
"'Minister1 means a minister of religion,
and, in relation to a religious body the
constitution or tenets of which do not
recognise
the
office
of minister
of
religion, includes a person for the time
being
exercising functions analogous to
those of a minister of religion."
This definition alters the scope of s.8 but the
Committee considers that the new definition describes more
appropriately the class of person to whom the privilege
should apply.
It is clear that not all confidential communications
to a minister would be protected by the privilege.
A
confession is a particular type of communication.
In one
sense of the word it refers to an act of penitence and/or of
spiritual
discipline.
Whether the word
"confession"
embraces other confidential communications is uncertain.
Communications to a minister for temporal guidance, e.g.
marital conciliation, may not be protected by the statutory
privilege.

4.

In Lucena v NMLA. (1912) 31 NZLR 481 at 490 per Stout C.J.

there is a brief mention of the privilege.

43.

The Committee is of the view that the existing

privilege is both adequate and
unexceptionable.
The
Churches would like to see it retained but did not generally
urge extension of its scope.
The Committee likewise does
not propose to recommend any extension of the privilege.
Confidences communicated and not covered by the statute can
be protected by a discretion of the court where appropriate.
We think that this meets the suggestion of the Presbyterian
Church that there might be privilege for statements made to
clergy during marital counselling.

44.

CHAPTER IX

COUNSELLORS AND SOCIAL WORKERS

Counsellors and social workers do not form a distinct

occupational group.
The need for privilege by those who
carry out any counselling functions is considered here.
Common law
No general evidentiary privilege is recognised in
respect of confidences exchanged between a client and a
social worker or counsellor.
An evidentiary rule protects from disclosure in court
communications made "without prejudice" in negotiations
which attempt to settle a legal dispute.
In McTaggart v.
McTaggart
the English Court of Appeal interpreted this
rule to protect communications made by estranged spouses to
a person seeking their reconciliation.
The social concern
in preserving marital and family life has resulted in a
beneficial interpretation of the rule as to
"without
prejudice"
negotiations
where
marital
disputes
are
concerned.
McTaggart
Canadian
and

has received
Australian

the approval of courts

jurisdictions as well

1.

[1949] P 94.

2.

Pool v
Pool
[1951]
P471; Mole v Mole
Theodoropoulas v Theodoropolous [1964] P 311;
[1950] P 154; Pals v Pals [1971] P 119.

3.

Brysh v Davidson (1964) 42 DLR (2d) 673; Re Kryschuck and

Zulynik
(1958)
14
DLR (2d) 676;
cf.
the
somewhat
unsatisfactory decision In Cronkwright v Cronkwrlght (1971) 14
DLR (3d) 168 criticised by Sopinka 50 Can B Rev 111.

4.

Impliedly inConstable

[1951] P 21;
contra Bostock

v Constable [1964] SASR 68.

in
as

45.

England.
It has yet to be considered in any reported New
Zealand decision.
It is likely that if the issue were to
arise our courts would have little hesitation in adopting
the decision.
There has been no indication of any willingness on
the part of courts to convert the decision in McTaggart into
a general privilege for social workers.
Attempts to do so
in other jurisdictions have been rejected.
The doctrine
of
"Crown privilege" offers some
evidentiary protection in respect of confidences between
clients
and
government
employed social workers
arid
counsellors.
The protection of confidential communications
by this doctrine depends on the court holding that the
evidence should be excluded because on balance the interest
of the State in excluding it outweighs the public interest
in the due administration of justice.
It is likely in the
case of communications to counsellors or social workers to
be almost impossible to sustain a claim to exclusion on this
ground of public policy.
In any event, as a substantial
part of the social services available in New Zealand are
offered by private organisations the circumstances in which
a claim to "Crown privilege" might be advanced are rare.
Statutory privilege
No legislature in any common law jurisdiction has
considered it necessary to enact a general evidentiary
privilege for social workers or their clients.
There is

5-

Pals v Palssupra n.2;

Constable v Constable supra n.4.

6.

Pollock
v
Pollock and Grey
[1970]
NZLR
771;

National Society for the Prevention of Cruelty to Children

[1976] 3 WLR 124.

46.

some
evidentiary protection in the area of
marriage
guidance.
Section 18 of the Australian Family Law Act 1975
provides:
"(1)

This section applies to (a)

a marriage counsellor;

(b)

a person nominated, or acting o n

behalf
of
an
organization
nominated, in accordance with
subparagraph 14 (2)(c)(ii); or

(c)

a person to whom a party to a

marriage has been referred by a
marriage counsellor, or by a
person referred to in paragraph
(b),
for
medical
or other
professional consultation.

(2)
Evidence of anything said or of any
admission made at a conference with a person
to whom this section applies acting in the
capacity referred to in subsection (1) is
not admissible
in
any
court (whether
exercising federal jurisdiction or not) or
in proceedings before a person authorised by
a law of Australia or of a
State or
Territory, or by consent of parties, to hear
evidence."
In New Zealand s.5(l) of the Matrimonial Proceedings
Act 1963 and S . 1 8 ( 1 ) of the Domestic Proceedings Act 1968
provide evidentiary protection for communications made to
marriage guidance counsellors who are acting pursuant to the
conciliation provisions of
those Acts.
Section 5(1)
provides:
"5.
Statements privileged (1)
No
evidence of any information received by, or
of anything said or of any admission made to
a person nominated pursuant to subsection
(1) of section 4 of this Act in the course
of an endeavour to effect a reconciliation
under that section shall be admissible in
any court
or before any person acting
judicially."

47.

Section 18(1) is in corresponding terms.

Need for a privilege
(i)

Marriage guidance counsellors

It was suggested to the English Law Reform Committee

that some undesirable consequences might result from the
operation of the common law rule in McTaggart; that one
party may be enabled to present the conduct of the other
party in an entirely false light;
that the duty of the
court in matrimonial cases is to satisfy itself of the truth
and any privilege which enables part of the truth to be
suppressed is inconsistent with the court's duty; and that
in wardship and custody cases the court might be hampered in
discharging its paramount duty to do what is best for the
child.
These arguments were evaluated by the English Law
Reform Committee in its report on "Privilege in Civil
Proceedings".
It found on balance that the public
interest expressed in McTaggart outweighed the hardship that
might result in individual cases.
We regard this view as
correct.
The
occasions
when
the disclosure of
a
communication made to a counsellor would be decisive of
matrimonial proceedings would be rare.
The same can be
said for custody disputes.
The possibility that the court
will not be fully informed on all relevant matters is even
more remote due to the flexibility of the rules as to the
admissibility of evidence in such proceedings.
Communications exchanged in the course of counselling
are likely to include matters of obvious legal significance.

7.

Law Reform Committee Sixteenth Report ("Privilege in Civil

Proceedings) (Cmnd 3472) para. 38.

48.

Fear of confidences being disclosed in court could be a real

inhibiting factor that needs to be overcome
by
the
counsellor.
We conclude
that some protection against
disclosure of communications made during counselling is
justified.
The limits of the decision in McTaggart have to be
considered.
The privilege is vested in the spouses, and if
they should so desire they may compel the marriage guidance
counsellor to give testimony.
This aspect of the decision
has been criticised.
If marriage guidance counsellors
are compelled to give evidence in court in matrimonial
proceedings suitable persons may be deterred from offering
their services for the work.
The knowledge that if he is
unsuccessful in his attempt at conciliation he may be called
to give evidence in court is not likely to assist the
counsellor in his task.
The public might lose confidence
in the marriage guidance movement if counsellors appear in
court.
The submissions received did not all support these
objections.
Reference is made later to the submissions
made by the Salvation Army and the New Zealand Council of
Christian Social Services.
The English Law Reform Committee considered that
unless the spouses were themselves deprived of their right
of waiver - which in principle should not be done - a
privilege vested in marriage guidance counsellors would
either be ineffective or would cause injustice.
The
privilege should continue to be the joint privilege of the
parties and to be capable of being waived by them if both so
wish. (9)
We agree with this.
To accord a personal
privilege to marriage guidance counsellors, or protect their

8.

Royal Commission on Marriage and Divorce, (Morton Report)

(Cmnd 9678) (1956) paras. 357-358.

9.

Ante n.7 para. 40.

49.

activities by means of a general rule of inadmissibility,

would be to place that counsellor, as regards his duty as a
witness, in a position superior to all other professional
groups.
If any really exceptional cases arise in which a
personal privilege would be desirable, they can be dealt
with by the exercise of the court's discretion.
The position of the court sponsored marriage guidance
counsellor under s.5(l) of the Matrimonial Proceedings Act
1963 and S.18(1) of the Domestic Proceedings Act 1968 can be
distinguished from other marrige guidance counsellors.
The
crucial difference is that in most cases the spouses would
have found themselves before the court sponsored counsellor
not as a result of their own volition but as a result of one
of them seeking to obtain a separation order or a divorce.
In such circumstances it is important to isolate the
counselling relationship from the legal processes that
compelled it.
Without such isolation
the effect of
adjourning proceedings in the interests of reconciliation
might merely be to change temporarily the venue for dispute.
It is undesirable that the court should with one hand
be seen to coerce the spouses into settling at least some of
their difficulties by counselling and with the other be seen
to sanction the
use of confidences exchanged in the
counselling relationship to resolve a dispute that finds its
way back to the courts.
Such a situation could undermine
public confidence in court sponsored marriage guidance
counselling.
(ii)

Probation officers and other social workers

Social workers receive confidential communications

from many people in areas outside the field of marriage
counselling.
Social work and counselling are undeniably
important in an age of sophisticated concern for public
welfare.
Confidentiality between social worker, counsellor
and client is usually imperative for the work to succeed.

50.

The Salvation Army thought that there was not much

force in the reasoning that social workers might be deterred
from undertaking work out of fear that they might have to
submit to a gruelling cross-examination in court.
Social
workers are generally dedicated people and would probably
regard such a court experience as an unpleasant side of the
work outweighed by other considerations.
On the other
hand, the New Zealand Council of Christian Social Services
felt that any compulsion on social workers to give evidence
would dry up the supply of social workers because it would
contradict the principles of the profession.
It was not
suggested that the lack of any privilege in the present law
has already had the effect of inhibiting the recruitment of
social workers.
The probation officer/probationer relationship, since
it is intimately connected with the courts, is an area of
social work where it might also be said that sensitivity as
to
courtroom
disclosures
is
a
factor
of
some
significance.
The position of the probation officer
is, however, a special one.
While he owes a duty to the
probationer in his attempt to achieve social adjustment, the
officer's ultimate responsibility is to the supervising
court.
Such responsibility cannot be fettered by an
evidentiary privilege vested in either the probationer or
the officer.
Situations may arise in which social workers or
counsellors are required to disclose in a court matters that
may have been communicated in confidence, but such occasions
are rare.
One such case is D v. National Society for the
Prevention of Cruelty to Children
. Disclosure
is

10.

Bagot, "Two Problems of Confidentiality in Probation" (1972) 4

Adelaide LR 257.

11.

[1976] 3 WLR 124.

51.

absolutely prohibited in cases falling within s.5(l) of the

Matrimonial Proceedings Act 1963 or S.18(1) of the Domestic
Proceedings Act 1968.
In other cases under these statutes
where disclosure may be required in court, wider publication
is prohibited.
In this situation we do not accept that
the policy considerations which urge a general privilege for
communications between the
counsellor
and his client
outweigh the social interest in
facilitating the due
administration of the law.
Fear of a courtroom disclosure
is unlikely to operate as an inhibiting factor of any
importance in such relationships.
We
agree
that
protection should be given in
circumstances such as those which arose in McTaggart and we
do not doubt that that decision would be followed by the New
Zealand courts.
We do not think that a statutory provision
is necessary.
If situations arise in which social workers or
counsellors
may
be required to disclose confidential
communications in court, they may be dealt with under a
general discretion of the court.
The submissions received
do not disagree with this approach.

12.

Section 84 of the Matrimonial Proceedings Act 1963; s.112

Domestic Proceedings Act 1968.

52.

CHAPTER X

SCHOOL TEACHERS, LECTURERS AND STUDENT

COUNSELLORS

At common law there is no privilege protecting

pupil's confidential communications to his teacher.

So far as we are aware no statutory privilege has

ever been granted to school teachers as such.
In the
United States, three States - Indiana,
Michigan
and
Wisconsin - have granted statutory privileges to public
school counsellors. Wisconsin also protects communications
to Deans in Universities and other institutions of higher
learning.
School counsellors are now employed in many New
Zealand secondary schools and it is likely that there will
in the future be an integration and expansion of school
counselling, psychological and
support services.
The
functions
of
a
student
counsellor
or
educational
psychologist are different from those of the teacher in the
classroom.
The
occasions when the question of
an
evidentiary privilege for communications arises will be less
frequent in the case of the school teacher as such than for
a teacher in a counselling role.
The student counsellor is
in much the same position as the counsellors referred to in
the section on social workers.
The Psychological Service of the Department
of
Education should also be differentiated from the teaching
profession as such.
The functions of the Psychological
Service have been outlined as being:

53.

"The psychological assessment of children

referred to it for examination and report:
The counselling of children:
The counselling of parents
children referred to [it]:

in

respect

of

The advice to head teachers and teachers on

aspects of a child's school performance on
which a psychologist's - or an organizer of
special classes - knowledge and experience
may be relevant:
Consultation
with
members of
advisory
committees charged with the responsibility
of selecting children for particular forms
of special education:
Participation, as appropriate, in courses of
in-service training for teachers on aspects
of child and adolescent development and on
ways by which teachers can identify and
assist children with learning or behavioural
problems:
The dissemination of
the principles of
mental health among teachers, parents, and
more widely in the community, as well as
preventive activities in promotion of child
development:
Appropriate therapy - particularly where
other resources are not available." (1)

Psychologists in the service have on occasions been

subpoenaed as either ordinary or expert witnesses to give
evidence as to children they have examined.
The doctrine
of "Crown privilege" almost certainly cannot be invoked to
protect communications to psychologists employed by the
Service.
The Psychological Service, while not engaged in
clinical psychology, would
fall within that group of
psychologists engaged in the diagnosis or treatment of

1.

Letter from Education Department, June 1976.

54.

mental or emotional problems and its position is similar to

that of the psychologists discussed elsewhere in the Report.
The class teacher will have built up a position of
trust and respect with the pupils and can become the
confidant of the pupil.
There was a difference of opinion
in the submissions made to us from educational sources as to
whether this confidential relationship should be protected.
Some of the submissions expressed concern that the
disclosure of confidential information would tend to destroy
the particular pupil-teacher relationship and also prejudice
such relationships generally within the school concerned.
Others take the view that there is a good case for privilege
being extended to counsellors but no sound case for it being
extended to teachers.
Good pupil-teacher relationships are in the interests
of the pupil, teacher and the community itself but we doubt
whether the existence or absence of an evidentiary privilege
would affect, the relationship itself.
The occasions when a
disclosure might be sought would not arise frequently.
A
teacher might be involved with respect to custody disputes,
child assault or delinquency cases.
It would only be on
rare
occasions
where
the question of disclosure of
confidences by the pupil would arise, where such disclosure
would be adverse to the interests of the child itself. Such
confidences might be given in cases where the conduct of the
child itself is in question including the area of offences
by the child or the child's involvement with drugs or sex.
In its submissions to us the Department of Education
of the University of Canterbury emphasised the professional
ethics of teachers and took the view that the main point of
privilege was to safeguard the right of a teacher to remain
silent on grounds of professional ethics where he believes
he has a duty to keep a confidence.

55.

The evidentiary privilege that we are considering is

a privilege for
the person who makes a confidential
communication to another, not of the witness himself.
The same submissions emphasise that all teachers to
some extent share the role of a counsellor and that it may
be difficult to distinguish when a teacher is acting in that
capacity or when he is acting as a delegate of the principal
as for example when speaking to pupils about the enforcement
of school rules.
The
New
Zealand
Educational Institute in its
submissions accepted that the teacher's area of expertise
should be available to the court and that evidence of a
child's academic, intellectual, emotional, social and even
physical development may properly fall within a teacher's
area of professional competence.
With respect to matters which become known to the
teacher because he is a child's teacher, there is a feeling
amongst teachers that confidences should be respected.
The
teacher should not be liable to be forced to reveal this
kind of information if it is prejudicial to the continuation
of the good relationship between the teacher, pupil and
parents.
It is said not to be uncommon for children,
particularly from a disturbed home situation, to re pose
confidences in their teacher.
The Institute believes that
while it may be useful to draw a distinction between
psychologists, counsellors and teachers, it must be accepted
that it is the task of the teacher not only to refer a child
to support personnel but also to accommodate that child
within the class before, after and during such referrals.
The teacher is privy, either directly from the child or on a
confidential
basis from
support
personnel,
to
the
information which is given to
the
psychologist
and
counsellor.

56.

The Institute submitted that the frequency of cases

in which a
teacher
has been called upon to reveal
confidences" is a poor indicator of the importance of the
principle.
The important matter was the possibility of
evidence being "extracted" in court from the teacher that
might inhibit a parent or a child in turning to the teacher
for professional assistance.
The Institute submitted that
privilege should be extended to teachers in cases involving
civil action but it did not seek nor did it think desirable
that any protection for teachers be given in criminal
matters.
The
Committee is of the view that no special
privilege
for school teachers, lecturers
or
student
counsellors should be enacted.
The question of privilege
arises only when a witness is required to disclose relevant
information in a court of law or a body having similar
powers.
The teacher is not bound to reveal confidences to
the police if he chooses not to do so.
The same will apply
before a tribunal which does not have the power to compel
the attendance
of
witnesses.
Cases in which such
information is relevant to
court proceedings and its
disclosure is required by a party to the proceedings are
rare.
In the Committee's view, these are best dealt with
under a general discretion vested in the court.

57.

CHAPTER XI

JOURNALISTS

The journalist's position is quite different from

that of all the other groups we have considered in this
Report.
His desire is to keep secret the identity of his
informant.
The concern of the other groups is to keep
secret the content of the information.
Common law
Various arguments have been made in support of a
journalist's privilege.
The issue was before the High
Court of Australia in McGuinness v. Attorney-General for
Victoria
.
An article had appeared in Australian Truth
charging unnamed members of Parliament with accepting bribes
in connection with certain Bills before Parliament.
A
Royal Commission was set up to investigate these charges and
the editor of Truth was called to testify.
The editor,
when questioned, refused to disclose the identity of some of
his sources and his intransigence resulted in a citation for
contempt and a fifteen pounds fine.
The editor appealed to
the High Court of Australia inter alia on the ground that
there is a special journalist's privilege entitling editors
and reporters to refuse disclosure of the sources of
information used in the production of newspaper articles.
The High Court had no difficulty in unanimously rejecting
this contention.
Such a privilege was not recognised by

1.

(1940) 63 CLR 73.

58.

the common law.

The Court did not examine in any way the
various policy arguments that might suggest the desirability
of a privilege for journalists. Their rejection was simply
in terms of the common law's non-recognition of such a
privilege in the past.
Rich J. did state that:

"It is easy to understand that editors and

other journalists would find it some help in
their search for news if they were able to
assure those in possession of information
that they could secretly impart it without
fear that courts of law would be able to
discover its source.
But this is probably
true
of
a great many
other
trades,
businesses and pursuits.
Privilege from
disclosure
in
courts
of
justice
is
exceptional and depends upon
only
the
strongest considersations of public policy.
The paramount principle of public policy is
that the truth should be always accessible
to the established courts of the country".
(2)
The Judge did not, however, consider whether there were
considerations of public policy peculiar to the journalist
so as to distinguish him from the other unstated trades,
businesses and pursuits and ultimately his rejection of the
appellant's argument rested on the fact that no privilege
had ever been previously recognised.
The Vassall spy case
of 1962 and a spate of
sensational
accompanying
newspaper
articles had
its
aftermath in a Royal Commission, commissioned by the United
Kingdom
Parliament to
investigate
the
circumstances
surrounding Vassall's spying activities as an Admiralty

2.

Ibid. 87.

3.

The issue of privilege arose in a later Australian case,

Re Buchanan (1964) 65 SR (NSW) 9 and was also rejected.

59.

clerk
and
to
ascertain whether there had been any
dereliction of duty or breach of security arrangements by
others employed in the Admiralty.
Amongst those called to
testify before the Commission were journalists who had
written articles relating to the Vassall affair.
The refusal of three journalists to disclose the
sources of their information lead to contempt proceedings
being taken against them.
In Attorney-Generalv. Clough (4)
the journalist refused to reveal the identity of his
informant.
Parker C.J. rejected the argument of counsel
that the journalist had a privilege at common law to retain
inviolate the sources of his information.
The Chief
Justice started from the viewpoint "that any privilege which
exists constitutes a shackle on the discovery of the truth
and an impediment on the due administration of the law"
and continued to state that no privilege for journalists had
been recognised at common law.
In Attorney-General v. Mulholland and Foster
one
journalist refused to disclose the source of his information
and the other refused to disclose the type of source.
Counsel for the former journalist gave in his submissions a
useful summary of the arguments in favour of a journalist's
privilege:
1.

A journalist has an obligation towards his

suppliers of information and it would be
dishonourable for him to reveal them.

4.

[1963] 1 QB 773.

5.

Ibid. 787.

6.

[1963] 2 QB 477.

7.

Ibid. 482.

60.

2.

A journalist owes a duty to his employers not

to imperil their receipt of information in the
future, which would clearly occur
if an
informant knew that the reporter would break
his confidence.

3.

A journalist has a self interest in the matter

because he would be out of business if it were
known
that
he
revealed
confidential
information.

4.

The law will not force a

trade secrets.

5.

Journalists have a conscientious objection to

revealing sources of information which is part
of the ethics of their profession.
A person
should not be asked to commit a breach of
professional ethics.

man

to disclose his

Lord Denning stated his view of these arguments thus:

"The journalist
puts
forward
as
his
justification the pursuit of truth.
It is
in the public interest, he says, that he
should obtain information in confidence and
publish it to the world at large, for by so
doing he brings to the public notice that
which they should know.
He can expose
wrongdoing and neglect of duty which would
otherwise go unremedied. He cannot get this
information, he says, unless he keeps the
source of it secret.
The mouths of his
informants will be closed to him if it is
known that their identity will be disclosed.
So he claims to be entitled to publish all
his information without ever being under any
obligation, even when directed by the court
or a judge, to disclose whence he got it.
It seems to me that the journalists put the
matter much too high.
The only profession
that I know which is given a privilege from

61.

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 or,
in the case of a tribunal such as this, in a
proper investigation being made into these
serious
allegations.
If
the
judge
determines that the journalist must answer,
then no privilege will avail him to refuse."
(8)
On the facts before him Lord Denning concluded that the
public interest required the one journalist to disclose the
source of his information, and the other to disclose the
type of source. (9) In the absence of a privilege his
Lordship's conclusion was inevitable.
Where the public
interest lay was made clear by the fact that Parliament had
deemed it necessary to set up a Commission to investigate
the very matters the journalists had concerned themselves
with.

8.

Ibid. 489-490.

9.

Donovan L.J. emphasised in his judgment what he, like Lord

Denning, conceived as a discretion vested in the court to
exclude
evidence
that
would
involve
a
breach
of
confidentiality and although relevant was not essential to the
proceedings before the court.
Supra, n.6 at 492-3.

6-2.

The journalist has been protected from having to

disclose his sources in interlocutory proceedings.
Where
the defence of qualified privilege or fair
comment is
pleaded in a defamation action and the plaintiff in replyhas alleged express malice, the honesty of the defendant's
belief in the words published becomes directly in issue. In
the ordinary course, it would be a proper subject for
interrogatories.
It has been established in a series of
cases, however, that the defendant in such a case will not
be compelled to disclose the names of the persons from whom
he
obtained
his
information,
except
in
special
circumstances. ' ' Examples are Hall v. NZ Times Co Ltd
and Gordon v. NZ Times Co L t d ( 1 2 ) I n England Order 82 r.6
provides that in an action where the defendant pleads fair
comment or privilege
no
interrogatories
as
to the
defendant's sources of information or grounds of belief are
to be allowed.
This extends the rule to defendants other
than newspapers.
In the United States the common law has similarly
denied the existence of a journalist's privilege.
Since
the case of Garland v. Torre (14) the picture has been
somewhat complicated by the utilisation of constitutional
arguments to establish the existence of a privilege.
The
First Amendment to the United States Constitution provides,
inter alia:
"Congress shall make no law ... abridging the
freedom ... of the press ..."

10.

The privilege is referred to in Sim, The Practice and Procedure

of the Supreme Court and Court of Appeal in New Zealand
11th
ed. p.121; and in Gatley on Libel and Slander, 7th ed. para.
1157.

11.

(1907) 26 NZLR 1324.

12.

(1912) 31 NZLR 1060.

13.

Ex parte Lawrence, 48 P 124 (1897) is

cited.

14.

259 F 2d 545 (1958).

the

case most commonly

63.

It has been argued in many cases during the last 15

years
that a free press necessitates the availability to
journalists of wide and divergent sources so that the
greatest range of factual information and informed comment
can be presented for public consideration, and, in the
absence of an evidentiary privilege, journalists and the
public will be denied access to information from persons
wishing to preserve anonymity.
To use what seems to be the
appropriate cliche, "there is a chilling effect on first
amendment freedoms".
This argument had won some measure of acceptance in
various United States courts
but has now been rather
indecisively rejected by the Supreme Court in a recent
decision, Branzburg v. Hayes
.
This case
was
a
consolidation
of
three
separate
actions
involving
journalists' attempts to resist subpoenas to appear before
grand juries.
The facts in respect of the appellant
Branzburg are illustrative. Branzburg, a reporter, wrote a
newspaper article in which he detailed his having witnessed
the manufacture of hashish. The article came complete with
a photograph of a pair of hands engaged in the manufacturing
process and a statement that the "manufacturers" claimed a
net profit of $5,000 in three weeks.
A further article
followed on a later date dealing with drug use in a State
capital and claimed that he, Branzburg, had spent two weeks
interviewing local drug users and had watched some smoking
marijuana.
Branzburg was summoned before two grand juries
and refused to disclose the identity of his sources and
related information.

15.

E.g. Garland v Torre, supra, n.14; In re Goodfader's appeal

367 P 2d 472; State v Buchanan, 436 P 2d 729; Caldwell v
P.S. 434 F 2d 1081; State v Knops 183 NW 2d 93.

16.

See especially Caldwell v tL_S. 434 F 2d 1081.

17.

408 US 665 (1972).

18

Caldwell v U.S. 434 F 2d 1081;

In re Pappas 266 NE 2d 297.

64.

Before the Supreme Court bench Branzburg and his

fellow petitioners argued their case on the basis that the
first amendment accorded to a journalist a privilege not to
appear before a grand jury unless the government could show
that he was likely to have information relevant to a
particular crime being investigated, that the evidence was
essential and that in the particular case the public
interest would benefit more from disclosure than from a
maintenance of confidentiality.
The argument was rejected
by a majority of five to four.
The majority (19) saw the petitioners' claim for
privilege as antithetical to the very purpose of the grand
jury which is to investigate criminal activity.
The
majority recognised that where journalists are called to
testify, this might in individual cases result in some
constriction of the journalist's channels of communication
with confidential sources but refused to see this as a
substantial impairment of the journalist's role:
"This case involves no intrusions
upon
speech or assembly, no prior restraint or
restriction on what the press may publish
and no express or implied command that the
press publish what it prefers to withhold.
No exaction of tax for the privilege of
publishing,
and
no
penalty, civil or
criminal, related
to
the
content
of
published material is at issue here.
The
use of confidential sources by the press is
not forbidden or restricted;
reporters
remain free to seek news from any source by
means within the law.
No attempt is made
to require the press to publish its sources
of
information
or indiscriminately
to
disclose them on request."(20)

19.

The leading judgment was delivered by Justice White, in which

Justices Blackman, Rehnquist and Burger concurred and Justice
Powell delivered a separate concurring opinion.

20.

408 US 665 at 681-682.

65.

Any restrictions that there might be were offset by the

public interest in law enforcement in general and proper
grand jury proceedings in particular:
"On the records now before us, we perceive
no basis for holding that
the
public
interest in law enforcement and in ensuring
effective
grand
jury
proceedings
is
insufficient to override the consequential,
but uncertain, burden on news gathering that
is said to result
from insisting that
reporters, like other citizens, respond to
relevant questions put to them in the course
of a valid grand jury investigation or
criminal trial." (21)
Mr Justice Powell suggested in a concurring opinion and the
majority appeared to accept that there were circumstances
where first amendment protection might be available:
(a)

where a
newsman;

(b)

where the grand jury proceedings

good faith;

(c)

where the newsman is called to give information

bearing only a remote and tenuous relationship
to the subject of the investigation;

(d)

where confidentiality
would
be
without
a
legitimate
need
(22)
enforcement.

21.

Ibid. 690-691.

22.

Ibid. 709-10.

subpoena

was issued to

harrass

were

not

the

in

imperilled
for
law

66.

Two dissents were filed, the most important being that of Mr

Justice
Stewart. (23)
Stewart
J.
advanced
various
safeguards
to
protect first amendment freedoms
when
journalists were called upon to give testimony.
His
safeguards were substantially the same as those put forward
in argument by the petitioners.
The United States Supreme Court, in spite of the
benefit of constitutional arguments that have not been made
in other jurisdictions, does not appear to have moved any
nearer than the English courts to recognising a privilege
for journalists. In fact the approach taken in Mulholland
appears to fall midway between the majority and minority
opinions in Branzburg.
The Court of Appeal in Mulholland
countenanced a judicial discretion to exclude what was
relevant but unnecessary. (24)
In contrast, the majority in
Branzburg stated that while there is no privilege, grand
juries should be warned
of
conducting investigations
in bad faith.
Stewart J, for the minority went further
than the English Court of Appeal and suggested strict
requirements which the government must fulfil before the
journalist's testimon y can be compelled.
In more recent cases lower Federal Courts have held
that some qualified protection is available for newsmen. In
(27)
Democratic National Committee v. McCord,
a Watergate

23.

Justices Marshall and Brennan concurred and Justice Douglas

filed a separate dissent.

24.

Supra., n.9.

25.

408 US 665 at 707-708.

26.

Ibid. 725.

27.

356 F Supp 1394 (1973).

67.

case, the Federal District Court quashed subpoenas issued to

newsmen to testify in civil proceedings arising out of the
Watergate break-in:
"This Court cannot blind itself to the
possible 'chilling effect' the enforcement
of these broad subpoenas would have on the
flow of information to the press, and so to
the public." (28)
A similar view was taken by the United States Court of
Appeals for the 8th Circuit in a civil libel case: Cervantes
v.
Time Inc (29) .
The Court felt civil actions were not
disposed of
by
the
holding
of
the Supreme Court
in Branzburg.
Statutory privilege
Some State legislatures in the United States have
conferred an
evidentiary
privilege
to
protect from
disclosure a newsman's sources.
Maryland was the pioneer.
The statute of that state protects confidential sources but
does not protect confidential information received from the
source.
Sixteen other States have statutes of one sort or
another enacting a privilege.
Michigan, New Mexico and New
York shield the information as well as the source.

28.

Ibid. 1397.

29.

464 F 2d 986 (1972).

30.

For an article predicting that it is "highly unlikely that the

Supreme Court will recognise a special press right in the near
future", see Comment by Loveland "Newsgathering: Second-Class
Right Among First Amendment Freedoms" (1975) 53 Texas taw
Review 1440, 1482.

31.

For details and citations to the various state laws see Note
by Shuford "Newsman - Source Privilege: A Foundation in
Policy for Recognition at Common Law" (1974) 26 University of
Florida Law Review 453, 462.
All statutes appear to apply to
both criminal and civil proceedings.

68.

The

Maryland

statute,

criticism of Wigmore.
substance
unique."

as

it

is

enacted

in 1896,

drew

the

It was, lie stated, "detestable

in

form

[and]

in

will probably remain

(32)

While time has proved Wigmore wrong as

character

of

the

treatise as to the

first

provision,

the

to the unique

opinion

in

his

desirability of such a privilege remains

unchanged:
"In recent times in the United States,
however, legislation has been sought, here
and there successfully, to establish new
privileges.
Most of these attempts have
been made by organized occupational groups
who believe that for the protection of their
own particular interests a privilege is
needed and is justified.
In no instance
has it been made
to
appear that the
occasional
disclosure,
in
judicial
proceedings, of the communication sought to
be kept secret would be injurious to the
general exercise of the occupation, or that
all the conditions exist which justify a
general privilege
,,.
Among the recent
legislation are found statutes in several
states privileging sources,of
information
given to journalists..."

The need for a privilege

The
lies

in

liberties

strongest argument for a journalist's

the area of constitutional liberties.
can

statements of

only
law,

be

deduced

privilege
While

our

from a series of negative

concern for them should be no less than

that of the Americans for

their

respect of this issue of liberty

Constitution.
that

the

It

is in

argument

for a

32.

Wigmore, Evidence para. 2286 n.7 (2d ed. 1923).

33.

8 Wigmore, Evidence para. 2286 (McNaughton rev. 1961).

69.

journalist's privilege
transcends that of professional
honour and pride and becomes one of public interest.
A free press is an essential requirement of a truly
democratic society.
Without a well informed public the
ability of society to carry out the democratic processes and
to appreciate and respond in a rational way to its problems
is restricted.
Thus the public has a right to receive the
widest possible range of information and comment to enable
it to act in an informed and responsible way.
Since in our
complicated world no individual has the time or resources to
gather information
himself,
the journalist's role is
extremely important.
The journalist's role of information
gathering, it is argued, will be inhibited if he labours
under the fear of compelled disclosure of his confidences in
court.
This is because to varying degrees persons who have
information that should be disseminated in the public
interest may wish to preserve their anonymity, whether
because the source was engaged in some illegal activity or
through fear of some extra-legal sanction such as loss of
employment, victimisation or simply loss of privacy.
To
put the argument in absolutes, it might be said that the
greater
public
interest
in
these situations is in
maintaining existing channels of communication and not
stifling the development of new ones.
It has been urged
upon us that the question whether disclosure is desirable in
a particular case should be left to the conscience of the
individual journalist.
The
extent
to
which local newsmen
rely
on
confidential sources of information is not known.
Research
in the United States has shown that confidential sources are
mostly
utilised
by those engaged
in
in-depth
and
investigative reporting.
Such techniques appear to be used
relatively little by local newsmen on topics which could
lead to
their
being
subpoenaed in subsequent court
proceedings.
Certainly the problem arises more often in

70.

the United States.

It has usually arisen in that country
in the context of grand jury proceedings and there is no
similar body to this in New Zealand.
The grand jury has
the ability
to
subpoena
and
a
responsibility for
investigating crime; the fear is that it can use the
investigating journalist and his sources of information to
do its own work and the need for privilege is much greater
in these circumstances.
The enactment of a privilege could create its own
problems as it would protect bad as well as good journalism.
It is not unknown for an irresponsible journalist to
"interview his typewriter" and publish a fictitious story
ascribed to a fictitiuous source.
While the journalist has
the ability to inform the public, he also has the ability to
mislead.
The accuracy of the information and the validity
of comment must be open to public scrutiny otherwise the
very purpose of supplying information to the public i.e.to
inform and enable it to act responsibly, may be frustrated.
The Committee considers that one important aspect of
news is the reaction it generates from society.
In some
cases the appropriate response is investigation or legal
proceedings.
It is contradictory to assert the public
interest in receiving the "news" and at the same time deny
society the ability to make what
is the appropriate
response. This is clearly seen in the facts of McGuinness,
Clough and Mulholland.
In McGuinness, for example, an
allegation of bribery had been made in respect of Members of
Parliament, a serious matter.
The obvious response would
be investigation and, if warranted, formal proceedings.
If
justice requires that the identity of the journalist's
source be disclosed, the public interest demands such
disclosure. An allegation such as that in McGuinness, the
proof of which is frustrated, is of no more value to society
than one never made.
If an allegation is made which cannot
be proved untold harm can be done to the reputation of an
innocent person.

71.

The negative effects of a journalist's privilege on

legal proceedings should also be emphasized.
The most
likely civil proceedings in which disclosure of journalist's
confidences would be in issue are libel suits.
The
operation of a privilege in such proceedings would be
totally unmeritorious. A person defamed by untruths should
have a legal remedy and that remedy should not be frustrated
by a defendant able to plead defences such as qualified
privilege and fair comment and at the same time plead
confidentiality in respect of his sources of information.
As regards criminal proceedings, a defendant should not have
his right to call witnesses to prove his innocence fettered
by a privilege vested in newsmen.
This is the most
compelling case for mandatory testimony.
A privilege as
regards prosecution subpoenas is equally undesirable:
the
ascertainment
of truth in individual cases would
be
frustrated for no sufficient public return.
For these reasons the Committee does not consider
that journalists should be granted a special privilege.
We
recognise that journalists will sometimes have a strong
claim to confidentiality which will need to be weighed
carefully against the need for disclosure in the interests
of justice in the particular case.
The proper weighing of
these competing considerations can best be done by the court
in the exercise of a general discretion.

72.

CHAPTER XII

REFORM RECOMMENDATIONS

The Committee has considered the

professions
for
an
evidentiary
recommendations are as follows:
1.

need of particular
privilege.
Our

Medical privilege

The
evidentiary
privilege
in
respect
of
communications to medical practitioners is dealt with in our
earlier Report a copy of which is published as Appendix I to
this Report. A number of changes in the law are recommended
as set out in the final section of the Report.
2.

No change in existing privileges

The
professional
groups
other
than
medical
practitioners whose activities are to some extent covered by
existing privileges are barristers and solicitors (and law
students acting as agents of barristers and solicitors at
legal advisory bureaux), clergymen, and marriage guidance
counsellors.
We recommend no change in their existing
statutory and/or common law privileges.
3.

Enactment of a privilege for

patent attorneys

We recommend that a privilege be granted to patent

attorneys by amendment to the Evidence Act 1908.
It is
recommended that the provision be worded as follows:

73.

"8A. Communications to patent attorneys - A

communication between a registered patent
attorney and his client made for the purpose
of obtaining or giving advice in relation to
any patent design or trademark or to any
application in respect of a patent design or
trademark is privileged to the same extent
as a communication between a solicitor and
his client made for the purpose of obtaining
or giving legal advice."
4.

A general discretion vested in courts, tribunals

authorities and persons acting judicially

In the introduction to this Report we refer to the

general discretion of the court to disallow a question or
permit a witness to refuse to answer, having regard to the
confidential nature of the communication and to all the
other circumstances of the case.
Although not discussed or
expressly recognised in any reported New Zealand case, such
a discretion has been exercised from time to time.
It has
been recognised in England in Attorney-General v. Mulholland
and Foster.
In New Zealand there has been a passing
reference to the discretionary power of the court in respect
of matters lying outside the strict scope of the statutory
privilege
for
medical
witnesses
in
McDougall
v.
(2)
Henderson.
We have
expressed
the view that the
existence of such discretion is desirable and should be
clarified.
In considering particular areas where professional
privilege might be thought desirable, we have in a number of
instances
recommended against the introduction of any

1.

[1963] 2 QB 477.
See also D v National Society for the
Prevention of Cruelty to Children [1976] 3 WLR 124.

2.

[1976] 1 NZLR 59, 63.

74.

special privilege and have regarded the general discretion

of the court as an adequate safeguard.
In reaching this
conclusion we have been assisted by the study paper on
evidence "Professional
Privileges
before
the Courts"
published in 1975 by the Law Reform Commission of Canada.
It remains for us to indicate
the
nature
of
the
clarification of this discretion which we see as desirable.
Because the existence of the discretion rests on
practice largely unsupported by reported authority, we think
it should be placed beyond doubt by being given a statutory
basis.
While it is desirable that the discretion remain
flexible, to enable account to be taken of the wide variety
of circumstances which may arise, some guidelines should be
laid
down
to
ensure
a
reasonable consistency and
predictability of approach.
Questions of privilege are normally dealt with in the
course of the trial or other proceeding at the time when the
particular question is put to the witness.
Often it is
known in advance that questions of confidentiality and
possible privilege will arise.
In such cases it may be
convenient to provide a means whereby the issue can be
raised and argued in advance.
This is sometimes done in
practice.
An example is McDougall v. Henderson (supra) in
which a psychiatrist witness applied for an order setting
aside a witness summons that had been issued to him.
If
the question depends on the exercise of discretion, a final
decision will not ordinarily
be
possible
until the
appropriate stage of the trial, as it is only then that the
true significance of the evidence can be assessed.
We
think that express provision should be enacted to enable a
party or witness to seek a prior ruling on a question of
privilege, but the court or tribunal should be entitled to
adjourn the application or reserve its decision if it feels
that it can only be properly determined at the appropriate
stage of the hearing.

75.

We therefore recommend:
1.

That

the

general

conferred

by

discretionary

statute

authorities

and

disallow

question

on

persons

power

courts,

be

tribunals,

acting judicially to

or

permit

a witness to

refuse to answer a question which would involve

the disclosure of a confidential communication.

2.

The

statute

should

determination

of

make
any

obligation of a witness
or

produce

It

should

documents
be

open

proceedings and to
evidence

ruling, either
at any

stage

for

the

to

the

as

to divulge information
obtained in confidence.
to

any

as a witness

provision
question

any

party

person
to

to

the

called to give

apply

for

such

before the hearing commences or

during

the hearing.

The court,

tribunal, authority or person acting judicially

should be entitled if

it thinks fit to adjourn

the

application or reserve its decision

the

appropriate

until

stage of the hearing has been

reached.

3.

Without limiting

the

discretion of the court,

tribunal, authority or person acting judicially

regard should be had to the following factors:(a)

The
to

likely
the

significance of the evidence

resolution

of

the issues to be

decided in the proceedings.

(b)

The

nature of the confidence and of

special

relationship

confidant and the witness.

between

the
the

76.

(c)

The likely effect of the disclosure

the confidant or any other person.

on

(d)

Whether or not the disclosure would be in

the public interest.

(e)

The
desirability
of
respecting
confidences between
persons
in
the
relative positions towards each other of
the confidant and the witness, including
the
importance
of encouraging
free
communication between such persons.

We recommend that a section along the following lines

be included in the Evidence Act 1908 to give effect to these
recommendations:

"8B. Discretion of court, etc. to exclude

evidence - CTS
In any proceedings before
any court,
or
before any tribunal or
authority constituted by or pursuant to any
Act
and having power
to
compel
the
attendance of witnesses, or before any other
person
acting judicially, the court or
tribunal or authority or other person may,
in its or his discretion, excuse any witness
from answering any question or producing any
document
that
he
would otherwise
be
compellable to answer or produce, on the
ground that to supply the information or
produce the document would be a breach by
the witness of a confidence that, having
regard to the special relationship existing
between him and the person from whom he
obtained the information or document and to
the matters specified in subsection (2) of
this section, the witness should not be
compelled to breach.
(2)
Without limiting the matters that the
court or tribunal or authority or person
acting judicially may take into account, the

77.

court or tribunal or authority or person, in

deciding any application for the exercise of
its or his discretion under subsection (1)
of this section, shall have regard to (a)

The
likely
evidence to
issues
to
proceedings:

significance
of
the resolution of
be
decided
in

the
the
the

(b)

The nature of the confidence and of

the special relationship between the
confidant and the witness:

(c)

The likely effect of the disclosure on

the confidant or any other person:

(d)

Whether or not the disclosure would be

in the public interest:

(e)

The
desirability
of
respecting
confidences between persons in the
relative positions towards each other
of 'the confidant and the witness,
including
the
importance
of
encouraging free communication between
such persons.

(3)
Nothing in subsection
(1) of this
section
shall derogate from any
other
privilege or from any discretion vested in
any court or in any tribunal or in any
authority constituted by or pursaunt to any
Act and
having
power
to
compel the
attendance of witnesses or in any other
person
acting
judicially
or by other
provision of this Act or of any other Act or
by any rule of the common law.
(4)
Any application to the
court
or
tribunal or authority or person
acting
judicially for the exercise of its or his
discretion under subsection
(1) of this
section may be made by any party to the
proceedings or by the witness concerned at
any time before the commencement of the
hearing of the proceedings or
at
the
hearing."

(I.L. McKay)
Chairman
for the Committee
March 1977

78.

MEMBERSHIP OF COMMITTEE

Mr I.L. McKay (Chairman)

Mr S.C. Ennor
Mrs J.E. Lowe
Mr B. McClelland Q.C.
Mr P.D. McKenzie
Mr J.P. McVeagh
Dr D.L. Mathieson
Ms M.E. Nixon (Secretary)
Mrs F.E. Verrity (Typist)

APPENDIX I

REPORT ON MEDICAL PRIVILEGE

A.

ROLE OF THE COMMITTEE

In 1970 the Law Revision Commission referred the

topic of professional privilege in the law of evidence to
the Torts and General Law Reform Committee for study and
report.
The Committee chose to tackle this task by
commissioning an LL.M. student at Victoria University of
Wellington, Mr D.C. McKelvey, to prepare a series of
background papers canvassing the whole spectrum of
professional privilege: the privilege of the legal
profession, patent attorneys, legal advice bureaux,
medical practitioners, psychologists, accountants and
bankers, schoolteachers, journalists, clergymen and
social workers.
The Committee was anxious to gain a practical
perspective to its task and these papers were circulated
to the various interested parties.
In the medical
sphere the substantive paper was sent in October 1973 to
the Medical Association of New Zealand, the Medical
Schools, the Health Department, the Hospital Boards
A
Association, and the Private Hospitals Association.
resume of the paper was sent to the Pharmacy Board of New
Zealand, the Chemists' Service Guild of New Zealand Inc.,
the New Zealand Society of Physiotherapists, the Chiropractic Board and the New Zealand Nurses Association.
The approach in all these sectors was designed to gauge
whether the existence of a privilege or lack of it helped
or hindered the doctor/patient relationship.
The
Committee was concerned to ascertain whether practical
problems were encountered that stemmed from the operation
of medical privilege.
At the request of the Minister of Justice on

2.

3 October 1974 the report on medical privilege has been

prepared in advance of a comprehensive review and report
on the whole topic of professional privilege.
B.

INTRODUCTION

The public at large believes that there is and

ought to be total confidentiality in the doctor/patient
relationship.
This belief has an objective basis in the
existence of an ethical obligation that the medical
profession has long recognised not to reveal to others
what patients have told them, except when this is necessary to ensure adequate treatment of the patient by other
members of the profession.
The law to some extent supports
the common belief.
Thus it is actionable in many
circumstances for people, including doctors, to divulge
confidences which have been reposed in them.
Moreover
it may constitute the tort of negligence to divulge
information that causes mental shock to the patient.
But
the law of evidence does not enforce total confidentiality
in relation to the evidence of doctors in court proceedings.
This runs contrary to much popular belief.
In truth there
is merely a limited evidentiary privilege, as this report
will show.
The rationale of evidentiary privilege
An evidentiary privilege is a legal right that a
witness should not give certain evidence in Court even
though that evidence is relevant to the issues before the
Court.
In respect of a professional man, the concern is
to protect from disclosure matters that have been communicated in confidence to him so that he can act for his
patient or client.
In this case the privilege is that
of the patient or client who alone can waive it.
All rules allowing persons in a particular category
to withhold relevant information from Courts of law must

3.

be regarded as exceptional.
In general, all relevant
evidence that one of the parties wishes to place before a
Court should be admitted, so that the Court may have
before it a full appreciation of the relevant facts.
Justice is less likely to be attained if the whole truth
is not permitted to emerge.
Not all relevant evidence
is admissible, but an evidentiary privilege is a right
that a witness should not give relevant and otherwise
admissible evidence.
The interest that someone has that
another should not reveal his confidences is not in itself
a sufficient justification for granting a privilege.
One
must assess the relationship in question in terms of its
social importance, and the importance of confidentiality
to that relationship, and decide whether it is so important
that it should prevail over the interest of society as a
whole in attaining the fullest measure of justice that can
be achieved.
Similarly, the existence of the rule of
professional medical ethics already referred to is in
itself insufficient to justify an evidentiary privilege.
The existence of medical privilege, it is claimed,
encourages persons to consult their doctors and to be
perfectly frank with them in all medical matters.
This
argument leaves unanswered the essential questions
whether a medical privilege does facilitate recourse to
the medical profession in times of need, and whether it
does in fact encourage a candour on the part of patients
that would otherwise be lacking.
The scope of medical privilege
The medical privilege of a witness will generally
only be of practical significance where:
(a)

the doctor and/or patient are involved in

criminal activity;

(b)

disclosure of the truth would prejudice

the patient's position in civil litigation;

4.

(c)

disclosure of the patient's condition could

affect chances of promotion or public
office (e.g. alcoholism);

(d)

disclosure could attract a moral stigma

(e.g. V.D.).

At common law the hearsay rule renders inadmissible

a large proportion of patient/doctor communications, with
the result that questions of medical privilege do not
arise.
However confessions, admissions and declarations
against interest by deceased persons in civil proceedings
provide exceptions to the hearsay rule, and it is in this
sphere particularly that there is scope for an evidentiary
privilege.
The implementation of a comprehensive accident
compensation scheme has now severely reduced the number of
cases in which medical privilege is likely to be claimed
in the sphere of civil proceedings.
When the outcome
depended on the proof of fault, an award of damages could
hinge on the disclosure of an admission made by the patient
to the doctor.
The Accident Compensation Act 1972 by and
large dispenses with inquiries into fault.
An admission
will only be relevant under the accident compensation
scheme as a disqualifying factor where the issue is whether
the injury was self-inflicted or not.
Despite the demise
of actions in tort for personal injuries, there remain
areas where the condition of the "litigant", and hence
medical privilege, will continue to be relevant.
These
areas include family protection claims, applications for
maintenance and custody orders (in so far as the medical
condition has a bearing on one party's ability to earn and
on the welfare of the child), and certain claims in
contract where a party's condition affects the quantum of
damages.
In a nutshell, medical privilege is of limited
practical significance in civil proceedings.

5.

C.

THE STATUTORY PRIVILEGE

Historical perspective
No privilege exists at common law.
Inspired by
the existence of a statutory medical privilege in
Victoria, a medical privilege was enacted by s.7 of the
Evidence Further Amendment Act 1885.
This privilege
extended to both civil and criminal proceedings and
protected communications to a physician or surgeon.
The privilege was short lived.
By the Evidence Further
Amendment Act 1895 a privilege limited to civil proceedings was enacted in its place.
The 1895 privilege remains with us today, re-enacted
with only minor linguistic variations in s.8 of the Evidence
Act 1908.
The relevant parts of this section are:
"(2)

A physician or surgeon shall not, without

the consent of his patient, divulge in any
civil proceedings (unless the sanity of the
patient is the matter in dispute) any communication made to him in his professional
character by such patient, and necessary to
enable him to prescribe or act for such
patient.

(3)

Nothing in this section shall protect any

communication made for any criminal purpose,
or prejudice the right to give in evidence
any statement or representation at any time
to or by a physician or surgeon in or about
the effecting by any person of an insurance
on the life of himself or any other person."

In many jurisdictions, especially in the United

States, privileges have been enacted protecting from
disclosure confidential communications to such diverse
professional men as doctors, clergymen, psychologists,
accountants, journalists and teachers.
By contrast, in
the United Kingdom demands for statutory privileges have
been continually rejected.
In New Zealand an intermediate position has been adopted.
Section 8 of the

6.

Evidence Act 1908 contains evidentiary privileges in

respect of communications to medical men and confessions
to the clergy, but the umbrella of privilege has not been
extended further.
Legal perspective
An elucidation of the words of s.8 is the proper
starting point for any assessment of the shape medical
privilege might assume in the future:(a)
Section 69 of the Medical Practitioners Act
1968 provides that only a registered medical
practitioner may use the titles of physician or
surgeon.
The privilege probably extends to all
registered medical practitioners although this is
not wholly clear.
It does not extend to paramedical persons who are not so registered, such as
nurses, psychologists, physiotherapists and chiropractors.
(b)

"communication"
Only the patient's communication to the
doctor are the subject of medical privilege.
Any
communication by the doctor to the patient, or
information obtained by the doctor other than from
the patient's communications, will be subject to
disclosure in Court provided it would not involve
disclosure of the patient's communications.
The Court of Appeal has held that the word
"communication" refers to that which the patient
communicates to his doctor by means of writing,
(1 )
words or signs.
The submission by a patient
of his body for medical examination was not

1.

Lucena v. N.M.L. Association of Australasia (1912)

31 NZLR 481, at 489, 494.

7.

therefore a "communication" within the meaning of

the section and any information a doctor acquired
as a result of his own observations of a patient
was not privileged.
(c)

"without the consent of the patient"

The section provides only a privilege against
the disclosure of certain medical communications
and does not render such communications inadmissible.
If the patient does not object to the doctor giving
evidence of what the patient has told him, such
evidence is admissible.
However, if the patient
is not himself in Court, or is unrepresented,
different considerations apply, and the Court will
be astute to protect his rights in respect of his
medical confidences.
As the patient can resist the tendering of
medical evidence by his doctor to which he has not
consented, it is important to know what constitutes
consent.
There is no requirement that such
consent be express.
Clearly something less than
express consent is sufficient but what act or
conduct is sufficient is far from clear.
Each
case must ultimately turn on its own facts.

(d)

"patient"
While the issue is not beyond doubt, there
need not be any creation of a contractual relationship between a person and a doctor for the former
to be a "patient" within the meaning of the
section.
If a doctor is called to treat accident
victims, or is assigned to treat a person in
(2)
hospital, the medical privilege will apply.

2.

X.

v.

Y.

(No-

) [1954] V.L.R. 708 at 711.

In the accident situation the injured are

receiving treatment.
The idea of treatment (in a
wide sense) is fundamental to the doctor/patient
relationship but is lacking in the situation where
a person submits to a medical examination for the
purposes of litigation, or to a blood test under
the Transport Act 1962.
The qualification that
treatment must be contemplated is express in our
medical privilege and its Victorian counterpart by
the proviso that communications to be privileged
must be "necessary to enable [the doctor] to
prescribe or act for such patient",
A large
proportion of the medical evidence tendered in civil
Courts is that of a doctor to whom a person has
been referred for medical examination.
Such a
person is not regarded as a "patient".v
This
helps to explain why medical privilege is of
limited practical significance.

This expression serves to exclude communications to a doctor about medical matters outside of
a doctor/patient relationship.
Thus medical
privilege is confined in the same way as the
analogous legal professional privilege, which rests
on the common law,
(f)"necessarytoenable[thedoctor]toprescribe
or act"
This is an important limitation on the
extent of the privilege.
The Courts have stated
that to satisfy this requirement communications
mut have reference to something that is to be done
(k)
by the doctor.v '
3.

National Mutual Life Association of Australasia Ltd.

v. Godrich (1909) 10 C.L.R. 1; Johnston v. Commonwealth of Australia [1974] V.R. 638.

4.

Lucena supra, n.1 at 491.

9.

Exceptions to the medical privilege

The privilege does not apply if the sanity of the
patient is the matter in dispute.
"Sanity" is here used
in a generalised sense meaning mental fitness.*' '
As in the case of legal professional privilege, the
medical privilege does not protect communications made to
facilitate a criminal purpose.
A special exemption to the privilege is provided in
respect of insurance companies.
In practice insurance
companies avoid the danger of medical privilege prejudicing
their case in litigation against insured persons by
insisting on medical examinations, and by inserting
provisions as to waiver of privilege in insurance proposals,
rather than by relying on the exception in s.8(3) of the
Evidence Act 1908.
D.

REF0RM

PR0P0SALS
I : CIVIL PROCEEDINGS

Medical practitioners generally

Any reform of the statutory privilege in civil
proceedings would involve either extending, limiting,
abolishing or modifying the operation of, s.8.
Extension:
An extension of the scope of the
privilege can be achieved by widening the range of material
shielded from disclosure.
This would involve attaching
the privilege not only to actual communications made by
the patient to the doctor but also to such information as
may be derived from the medical examination of a patient.
The implementation of this proposal would in a few cases,

5.

X. v. Y. (No. 1) supra, n. 2 at 712.

Cf. also
Hare v. Riley and A.M.P. Society [1974] V.R. 577.

10.

but in those cases very significantly, reduce the range

of information derived from medical sources that is
presently available to the court.
The Committee is
opposed to such an extension primarily on this ground.
It believes that the competing interests in medical
frankness and due administration of justice are correctly
balanced in s.8 as it stands.
A second reason for
opposing such an extension is that the Committee is
convinced that the availability of a medical evidentiary
privilege rarely makes any difference to a person's
decision whether or not to seek medical help.
Limitation:
A medical privilege has long existed
in New Zealand.
In spite of the limited legal effect of
the privilege any attempt to narrow the privilege would no
doubt be regarded as a retrograde step by the medical
profession and by the public as a whole.
The Committee is not prepared to recommend that the
privilege should be narrower.
Abolition:
The advocates of abolition assert that
the vacuum created by such a repeal would be filled by the
common law with its inherent characteristic of flexibility.
The Committee does not share the confidence of such
advocates that the common law is sufficiently developed in
this.area to cope.
In England, it was held by the Court
of Appeal in 1963 that a Judge has a wide discretion to
permit a witness, whether a party to the proceedings or not,
to refuse to disclose information where disclosure would
be a breach of some ethical or social standard, and nondisclosure would be unlikely to result in serious
injustice,'' '
But this discretionary rule is still in
its infancy, and there is no guarantee that it would
operate to prevent the disclosure of information in which

6.

Attorney-General v. Clough [1963] 1 Q.B. 773;

Attorney-General v. Mulholland [1963] 2 Q.B. 477.

11.

society now recognizes there is a legitimate claim to

confidence.
Further a discretionary rule would create
uncertainty and it may be important to know in advance
whether or not the evidence may be admitted.
Modification:
The Committee accepts that s.8
requires modification in detail, leaving the essence of
the existing privilege intact.
1.

"Necessary to enable the medical practitioner

to pre scribe or act"

As presently framed, s.8(2) demands an

objective assessment as to whether the treatment
was necessary or not.
The Committee is strongly
persuaded that s.8(2) should be cast in subjective
terms.
Since the rationale of medical privilege
is the encouragement of frank disclosure by a
patient to his doctor, it is unreasonable to exempt
from the protection of privilege communications
that were not in truth relevant to the particular
treatment sought, but which the patient with his
mere lay understanding of his own complaint, cannot
avoid disclosing if he is to put the doctor in the
picture.
This is not to advocate the attachment of
privilege to information that is not medically
relevant; it merely means that the line should be
drawn by considering what matters the patient
considered medically relevant, rather than by an
objective analysis.
The subjective approach would
be achieved by deleting the words "and necessary to
enable" in s.8(2) and substituting the words "for
the purpose of enabling".
A modification along
these lines would provide a limitation on the
protection afforded and at the same time protect
confidences that the patient must unavoidably repose
in a doctor if he seeks medical treatment.

12.

2.
In its submission to the Committee the
Department of Health asserts that this portion of
the section is "archaic and ill-suited to modern
medical practice",
The Department observes that
"a doctor examines and treats; treatment may or
may not involve 'prescribing'".
The Committee recommends the deletion of the
word "prescribe" and advocatestheinsertionof
words so that the section willwillread"forthepurpose
of enabling him to examine, treat or act for such
patient".

3."Unlessthesanityofthepatientisin
dispute"
The exception to privilege incorporated in
s.8(2) is framed in terms of sanity being the matter
in dispute.
Construction of similar words in two
Australian jurisdictions has suggested that it is
sufficient if sanity is merely an issue in respect
of which medical evidence is tendered.
The
Committee is convinced that this view is correct in
principle and that the exception should not be
confined to those cases where sanity is the sole
matter in dispute.
Otherwise a party could
deliberately complicate proceedings by raising a
number of other issues in order to retain the
privilege.
The replacement of "the" by "an" as
qualifying "matter in dispute" will clarify the
ambit of the exception.
Such an issue may arise in
custody proceedings when determining the fundamental
issue, which is which of the parties should have
custody of the child.
Section 8(2) is wanting in its failure to
deal with testamentary capacity.
Here communications are of greater importance because they may

13.

themselves rank as symptoms of a mental condition

and that condition may be the very question in issue.
Public policy undoubtedly requires that such an
important legal issue as testamentary capacity
should not be hamstrung by medical privilege and
the insertion of the words "or testamentary or
other legal capacity" after the words "the sanity"
is recommended.
4.

Waiver of the privilege

The operation of the privilege after the

patient's death requires clarification.
While
case law is unanimously in favour of the privilege
(7)
continuing after the patient's death,(7) there is
no authoritative determination as to who, if anybody, can waive the privilege after the patient's
death.
The language of s.8 does not contemplate
the patient's death.
Three options exist: first,
the privilege terminates with the patient's death;
secondly, the privilege continues but may be waived
by the personal representative; or, thirdly, the
privilege continues with no provision for waiver.
The latter proposition converts what is a privilege
into an absolute rule of exclusion.
Not only does
this depart from the theoretical basis of a
privilege (i.e. that it may be dispensed with by
consent); it also affords a "patient" greater
protection after death than during his life.
The Committee is persuaded that the privilege
should continue after death, but should be waivable
by the personal representative of the deceased
patient.

7.

Lucena supra, n. 1;

Godrich supra, n.3

14.

The psychiatrist
In contrast to other areas of medical practice, the
maintenance of confidentiality is essential to the
therapeutic relationship between psychiatrist and patient.
Psychiatric treatment has been greatly extended since 1908.
In this field the Committee believes that conferment of a
privilege does in fact usefully encourage patients to be
candid.
Accordingly, the Committee believes that
"physician or surgeon" is now too narrow, and recommends
the substitution of "registered medical practitioner".
This will make it clear beyond doubt that psychiatrists,
or any other specialists, who are registered medical
practitioners, are persons subject to the privilege which
the patient has.
If s.8(2) were to remain in its present objective
form, the Committee would have no option but to recommend
that the privilege of psychiatrists be isolated from the
privilege of other medical practitioners and treated in a
subjective manner.
If, however, the substitution of a
subjective test as recommended in the previous section is
adopted, the need for special measures to promote the
psychiatrist/patient relationship will be obviated.
Para-medical personnel
For the purposes of assessing whether para-medical
personnel should enjoy professional privilege it is
necessary to scrutinize their activities at two levels:
(i)

where they are involved in the capacity of

assisting the medical practitioner in the
performance of his task, and

(ii)

where they act in their own right.

The force of the rationale of privilege is not

reduced merely because it is the nurse, physiotherapist
and the like who attends to one aspect of the doctor's

15.

treatment programme.
The Committee recommends an
extension of medical privilege to persons in para-medical
categories when they perform their task while "acting on
behalf of" the medical practitioner.
This formula
envisages tasks both preliminary as well as following
actual examination or treatment by the doctor and is
intended to extend to the doctor's receptionist.
A
particular problem exists where the initial communication
by the patient to the doctor is in turn relayed to either a
consultant (who will himself be a medical practitioner) or
a para-medical person.
A Supreme Court decision of 1913
vintage established that the privilege is not lost merely
because a third party (a matron in this case) committed
the patient's communication to a case book.
This case
has been regarded in some quarters as extending privilege
to "communications" within the meaning of s,8 subsequently
repeated to others by a doctor acting in the course of
his duty.
The Committee does not share the confidence
with which this view is promoted, and recommends a legislative modification to ensure that privilege does attach
to any such relayed communication if it would have been
privileged had it been communicated to the doctor only.
When assessing whether para-medical personnel
should enjoy a privilege in their own right it is necessary
to consider some of the various categories individually:
Clinical psychologist:
The clinical
psychologist has, in the Committee's view, a valid
claim to be covered by the evidentiary privilege,
and this because the clinical psychologist like
the psychiatrist is engaged in the treatment or
diagnosis of mental or emotional problems.
Privilege is again an incentive to candour.
The
Committee, however, does not recommend that

Re The St. Helens Hospital (1913) 32 NZLR 682.

16.

privilege should be extended to clinical psychologists at present.

While psychologists in New
Zealand have their own professional association
there is as yet an absence of statutory recognition
and regulation of clinical psychologists.
The
Committee therefore considers it would be premature
to confer any privilege, but recommends that when
clinical psychologists are able to register under
an Act of Parliament, privilege should attach to
the communications made to them by patients.
Industrial nurse:
An industrial nurse
copes with medical problems at the "grass roots"
level.
The opportunity for relevant and admissible
information to be communicated to him or her in a
situation that might justify privilege has been so
reduced by the Accident Compensation Act 1972 that
any residual case would be virtually non-existent.
In this situation, to confer a privilege would be of such
little consequence that the Committee recommends
that the status quo should continue.
Chemist, chiropractor, nurse, pharmacist,
physiotherapist:
These para-medical groups, in
response to individual approaches by the Committee,
sought inclusion in the ambit of medical privilege.
However their response generally did not differentiate between tasks under the supervision or at the
instance of a medical practitioner and tasks
performed on their own initiative.
While asserting
a claim to medical evidentiary privilege, these
groups gave no examples of cases in which the
absence of privilege had caused difficulty.
The
New Zealand Society of Physiotherapists did
comment that
"at present medical referral notes are often
not complete because information considered

17.

confidential between patient and doctor is

omitted.
In these cases physiotherapists
have to treat patients with incomplete
information.
This is particularly difficult
in cases of rehabilitation when information
should be available to all those closely
involved."
This problem has nothing to do with evidentiary
privilege but is a matter of medical ethics.
The
reform suggested at the level of para-medical
involvement on referral from a doctor will extend
medical privilege to communications to a physiotherapist so acting.
Social, workers:
The Committee has instituted
a separate stud/ on social workers and feels it would
be premature to undertake any analysis at this
Juncture.
Social workers should enjoy a privilege
to the extent that they act on behalf of the doctor
in gleaning such information as he considers an
ingredient of proper treatment.
If privilege is
extended to persons acting on behalf of the doctor
as recommended above the position will be covered
without any need to define "social worker".
I I : CRIMINAL PROCEEDINGS
Medical privilege is designed to eliminate any
reluctance to speak frankly to a doctor induced by the
fear of involvement in legal proceedings.
The Legislature, however, has singled out civil proceedings only as
deserving of privilege.
On one view this distinction is
not only unwarranted but illogical, as the strongest case
for a privilege can be advanced in the criminal context.
A person is more likely to be deterred from seeking medical
assistance where criminal rather than civil repercussions
are involved.
Conversely," there is a stronger public
interest than in civil proceedings in ensuring that any

18.

determination in the criminal sphere is made with complete

knowledge of all the relevant factors.
The rationale for
excluding the privilege from criminal proceedings is the
overriding importance of the proper administration of
justice in such cases.
Not only does society have a
prime interest in protecting itself against such wrongs
but the accused should not be denied the right to put
forward all evidence which may be relevant to his defence.
Medical privilege may work for or against an accused.
From a reform viewpoint the operation or otherwise
of a privilege in the criminal sphere needs to be examined
at two levels.
The first is where the communication is
designed to advance a criminal purpose, while the other
occurs where the communication is subsequently rendered
relevant to criminal proceedings.
The first level is catered for by s.8(3); the
statutory denial of a privilege corresponds with that of
the common law where disclosure to a lawyer designed to
further a criminal purpose is not privileged.
The
Committee strongly affirms this approach.
The role of privilege at the second level does not
permit of the same clear-cut treatment.
It is essential
at the outset to identify the potential scope' of privilege
in the criminal sphere in order to gain a practical
perspective.
Significant admissions are rarely necessary
for treatment, and hence the lack of a medical privilege
does not generally deter people from seeking medical
treatment.
In a nutshell, the possibility of disclosure
in criminal proceedings of a relevant and admissible
communication is rare, and where this does occur the
element of public interest outweighs the individual
interest in confidentiality.
For instance, a physical
characteristic or an injury received in the course of a
crime may become known to a doctor and serve as a means of

19.

identification.
On the other side of the coin, where the
doctor himself is the accused in criminal proceedings
he should be able to adduce evidence of the communication
in his defence.
For example, on a charge of unlawfully
performing an abortion the nature of the woman's communication relating to her reasons for seeking an abortion will
be relevant to the doctor's defence.
One area of criminal proceedings however calls for
a different assessment.
This is where the medical
consultation is itself an alternative to the criminal
process.
Just as the interests of justice demand that
there be no general extension of medical privilege into
the criminal sphere, so too in this area the public
interest in securing due compliance with the law is
achieved by successful medical treatment.
This area
primarily consists of the problem of drug abuse and
addiction.
Where society has determined that treatment
is merited rather than punishment, a privilege applicable
in criminal proceedings is essential to achieve that social
objective.
Drug addiction necessarily involves criminal
activity.
The addict is in the unfortunate position of
being caught between two worlds, the legal and the medical.
While his use of drugs outside of medical prescription is
illegal, the rigours of the criminal law cannot cure his
problem; only medical treatment can,
Thus, while
society may have a legitimate interest in preventing drug
abuse, there is little point in effecting such a policy
by the imposition of legal sanctions on those who are
beyond legal persuasion.
Public policy demands the
addict's cure; the alleviation of an individual's
medical plight, his reintegration as a valuable member
of society, and the avoidance of illegal activities both
by the addict and those that stand to benefit from his
addiction.
An evidentiary privilege protecting the

20.

addict's medical confidences from the criminal law

would therefore actually promote public policy.
Apart from the compulsory committal provisions of
the Alcoholism and Drug Addiction Act 1966, which are of
significance in only a few cases, the treatment of
addicts is, as it should be, on a voluntary basis.
It
can be argued that an evidentiary privilege would be of
value in fostering voluntary recourse to medical treatment.
There are two disincentives to an addict seeking
medical treatment that might be overcome by an evidentiary
privilege; the legal sanction against using or possessing
narcotics, and the illegal activities that may have
sustained the supply of drugs.
The law governing narcotics is currently under
review and the Committee suggests that the Drugs (Prevention
of Misuse) Bill may have a gap to the extent that it does
not confer any form of evidentiary privilege.
While the
Committee does not claim any expertise in the area, it
does recognise the force of the arguments of those who
advocate attaching medical privilege to communications
made to a registered medical practitioner (including, of
course, psychiatrists who are so registered) by the person
seeking help with his addiction problem.
The Committee,
therefore, suggests that a privilege available in criminal
proceedings be enacted in respect of treatment for narcotic
addiction.
This suggestion may be implemented by inserting
in s.8(2) the following words:
"[A medical practitioner shall not divulge] in any
proceedings if the patient is being treated for
drug dependency ..."
The term "drug dependency" can be readily defined by
adopting the definition in Regulation 25A(2) of the
Narcotics Regulations 1966 (as amended by S.R. 1973/100):-

21.

"'drug dependency' means the state of periodic

or chronic intoxication, produced by the
repeated consumption or other use of a
narcotic detrimental to the person in
relation to whom the word is used, and
involving a compulsive desire to continue
consuming or otherwise using the narcotic
or a tendency to increase the dose of the
narcotic."
Moving on to problems other than drug addiction,
the Committee thinks that to the extent that the cure for
certain types of criminal activity lies in the medical
sphere, so there is a stronger case for demanding that
medical privilege be attached.
Such activities include
the activities of various sexual deviants, klemptomania,
and "baby-bashing".
Many such conditions permit of
psychiatric treatment and the Committee feels that this
avenue should not be closed for fear of subsequent disclosure of communications in criminal proceedings.
The
Committee supports a medical privilege in criminal
proceedings covering damaging communications by a patient
to a doctor while in the course of treatment for behaviour
that constitutes a criminal offence.
E.

REFORM RECOMMENDATIONS

1.

Section 8(2) of the Evidence Act 1908 should be

modified along the following lines:
(a)

The reference to "physician or surgeon"

should be deleted, and "registered medical
practitioner" substituted.

(b)

The privilege should be cast in subjective

terms so that it will apply to matters the
patient considers are medically relevant.

(c)

The privilege should be aligned with current

medical idiom and practice by substituting

22.

the words "examine, treat or act for..."

in place of "prescribe or act for".
(d)

Privilege should not be available in any

proceedings where sanity or testamentary or
other legal capacity is an issue.

(e)

Privilege should continue after death but

should be waivable by the personal representative of the deceased patient.

2.

When anyone performs a task while "acting on behalf

of" the medical practitioner, the privilege should
attach.

3.

A clinical psychologist-patient relationship has

a valid claim to privilege in its own right, but
the extension of privilege to it should await
statutory recognition and regulation of this
profession.

4.

In general the privilege should not be extended

so as to be claimable in criminal proceedings.

5.

Exceptionally, there should be a medical privilege

in criminal proceedings covering damaging communications by a patient to a doctor while in the course
of treatment for behaviour that constitutes a
criminal offence.

MEMBERS:
I.L.
McKay
Mr S.C. Ennor
Chairman
Mrs J.E. Lowe
Mr B. McClelland
Mr P.D. McKenzie
Mr J.P. McVeagh
Dr D.L. Mathieson
Ms R.M. Richardson (Secretary)
11 November 1974.

APPENDIX II
ORGANISATIONS WHICH MADE SUBMISSIONS
TO; THE COMMITTEE

Archbishop of Wellington (Peter Cardinal McKeefry)

Associated Trustee Savings Banks of New Zealand
Association of Teachers in Technical Institutes (Inc.)
Auckland Secondary Teachers' College
Auckland Teachers College
Auckland Technical Institute
Central Institute of Technology
The Chiropractic Board
Christchurch Hospitals' Medical Staff Association
Christchurch Teachers' College Council
Christchurch Technical Institute
Church of the Province of New Zealand
Commonwealth Press Union
Department of Education
Department of Health
Dunedin Teachers' College
Ennis, Callander & Gault
Interdenominational Committee of Independent
Schools
Law Societies of the Districts of Auckland,
Canterbury and Wellington
Medical Association of New Zealand
Medical Superintendents' Association
National Council of Churches in New Zealand
N.Z. Broadcasting Authority
N.Z. Council for Civil Liberties
N.Z. Council of Christian Social Services
N.Z. Education Boards' Association (Inc.)
N.Z. Educational Institute
N.Z. Institute of Patent Attorneys
N.Z. (except Northern) Journalists Union

ii.

N.Z. Legal Association

N.Z. Nurses' Association
N.Z. Parent Teacher Associations Inc.
N.Z. Post Primary Teachers Association
N.Z. Psychological Society (Inc.)
N.Z. Society of Accountants
N.Z. Society of Physiotherapists (Inc.)
North Shore Teachers' College
Otago Polytechnic
Palmerston North Teachers' College
Pharmaceutical Society of New Zealand
Presbyterian Church of New Zealand
Royal Australasian College of Radiologists
Salvation Army
Savings Branch, Post Office
Society of St. Vincent de Paul
Southland Polytechnic
Student Teachers' Association of New Zealand (Inc.)
Taranaki Polytechnic
University of Auckland Department of Education
School of Medicine
University of Canterbury Department of Education
Reader in Journalism
University of Otago Department of Education
University of Waikato Department of Education
Victoria University of Wellington Department of Education
Wellington Hebrew Congregation
Wellington Polytechnic
West-Walker, McCreddie & Co.