Order In Council Closes Evidence Act’s Gap In Privilege
Evidence Act 2006
The Evidence Act 2006, which came into force in New Zealand on 1 August 2007, largely codified New Zealand's common law evidence rules. However, as a result of some late changes, legal professional privilege did not attach to legal advice obtained from overseas practitioners.
The gap arose from certain statutory definitions. The Act provided for privilege to attach to communications between persons and their legal advisers. The definition of "legal adviser" includes only lawyers (limited to practitioners with current New Zealand practising certificates), registered patent attorneys and overseas practitioners. An "overseas practitioner" is defined to include Australian lawyers and patent attorneys, and legal advisers in other jurisdictions if their country is specified by an Order in Council. Until recently, no Order in Council had been made, despite pressure from the New Zealand Law Society. This left open the risk of advice provided by overseas practitioners being discoverable in New Zealand proceedings.
On 7 August 2008, an Order in Council came into force which lists 87 countries. The list includes both civil and common law countries including Canada, China, France, Germany, Japan, Russia, the United Kingdom and the United States. Communications with practitioners from the listed jurisdictions will now be protected by legal privilege in New Zealand, so long as the communications are intended to be confidential and are made in the course, or for the dominant purpose, of obtaining legal services.
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