Evidence Act’s Gap In Privilege Rules Spells Trouble For Overseas Practitioners
Evidence Act 2006
- On 1 August 2007, the Evidence Act 2006 came into force in New Zealand. The Act was designed to simplify the law of evidence and has had the effect of largely codifying the majority of New Zealand's common law evidence rules. However, the Act has effected some substantive and troubling changes.
- One of these major (and unintended) changes is to legal professional privilege as it applies to legal advice obtained from practitioners outside of New Zealand and Australia. The changes were made at a late stage and have resulted in removing legal professional privilege as it applies to legal advice obtained from overseas practitioners.
- The Act provides for privilege in respect of any communication between the person and a "legal adviser" in the usual way. It is the definition of "legal adviser" which has resulted in the change.
- A "Legal Adviser", as defined by section 51 of the Act, is a lawyer, a registered patent attorney or an overseas practitioner. Overseas practitioner is defined to include Australian lawyers, and Australian patent and trademark attorneys. But legal advisers in other jurisdictions will only be included if their country is specified by an Order in Council made by the Executive Committee of the Government.
- It was assumed that Orders in Council would issue at the time the Act came into force. To date, no Order in Council has been made. Accordingly, the protections of privilege do not extend to communications with legal practitioners outside of New Zealand and Australia, as they are not "legal advisers" in terms of the Act. This extends to both overseas practitioners communications with clients in New Zealand (and vice versa), as well as communications between New Zealand legal advisers and overseas practitioners.
- Some privilege protection may be gleaned from section 56, that provides a privilege for preparatory materials for proceedings. It, in effect, codifies what had previously been referred to as litigation privilege. In order to fall within this category of protection, the communication or information must be made, received, complied or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding. The privilege covers certain communications made for the dominant purpose of preparing for a proceeding or apprehended proceeding. The covered communications include those from a party to the proceeding (or apprehended proceeding) to any other person; communications made between the party's legal advisers and any other person; and information prepared by the party or the party's legal adviser (either at the party's request or a request by any other person).
- The risk of legal advice provided by overseas practitioners being discoverable in proceedings is of substantial concern to the New Zealand legal and business community. Accordingly, the New Zealand Law Society has written to the Secretary for Justice, the matter has been raised in Parliament with the Minister of Justice, and members of the profession have raised this issue and requested it be dealt with as a matter of urgency. Disappointingly, to date, no remedial action has been taken by the Minister of Justice or by Parliament.
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