This is Part 2 of a two-part series on legal privilege. Part 1 on legal professional privilege is also available here.
Without Prejudice Privilege (WPP)
WPP protects communications between parties regarding settlement negotiations. Information from without prejudice communications cannot be used in associated legal proceedings. It may only be adduced in civil matters, not criminal ones.
WPP encourages the parties to make genuine attempts to resolve their dispute. It removes the fear that an offer made will compromise a party’s legal position in court. The rationale is that this helps reduce time in court and legal costs, so WPP plays an important public interest function.
Pursuant to section 131(1) of the Uniform Evidence Acts, the privilege applies to:
- Communications made between persons in dispute in connection with an attempt to negotiate settlement; and
- Documents prepared in connection with negotiating of the dispute, whether they are delivered or not.
Once a document has been determined to be privileged, it cannot be produced without multilateral consent by both parties.
Not all communications marked ‘without prejudice’ will attract WPP. Exceptions include:
- Evidence relating to liability for costs;
- Communications that did not make a specific compromise to settle;
- Evidence that would otherwise mislead the court if it were not produced; and
- Communications made in furtherance of a crime or civil offence.
Self-Incrimination Privilege (SIP)
SIP is the Australian parallel to the Fifth Amendment right enshrined in the United States Constitution. In the ACT, it is protected by section 22(i) of the Human Rights Act 2004 (ACT), as well as section 128(1) of the Uniform Evidence Acts.
A natural person claiming this privilege may refuse to answer a question or produce any document that may incriminate them.
The privilege exists to encourage witnesses to come forward and tell the truth when examined. It also preserves personal liberty, particularly for vulnerable witnesses.
SIP has three branches of application:
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- Against self-incrimination in criminal matters;
- Against self-exposure to a civil or administrative penalty:
(i) Including against monetary penalties stemming from administrative proceedings; but
(ii) Excluding private civil proceedings for damages; and
- Against exposure to forfeiting a right (less common).
Of course, SIP can be abrogated to protect the public interest.
Some notable examples of SIP being diminished by statute are:
- The Work Health and Safety Act 2011 (Cth), which prohibits the invocation of SIP in investigations of unsafe work practices;
- The Australian Securities and Investments Commission Act 2001 (Cth), which allows for the invocation of SIP in an examination but prevents it from being used to refuse to answer questions or produce documents; and
- The Competition and Consumer Act 2010 (Cth), which allows the witness to claim SIP for themselves in an examination, but not for their company.
Comment
WPP and SIP are important doctrines as part of the greater category of legal privileges, providing important social functions.
Nevertheless, there are a substantial number of exceptions to both. The exceptions to SIP can be especially difficult to navigate given the number of statutes that alter its usage.
