Australia’s High Court says “no” to Spousal Privilege

The Australian High Court
The Australian High Court

OK, so this is written like a research project, but, hey, I’m the FCIL Librarian. Comparative law raises many issues, and this comment is not meant to be a complete exploration of all the possible issues raised in comparing Australian and US laws, but given the common law heritage of the United States and Australia, the different directions being taken by the two countries on this point is striking. This post is inspired by a one from Int-Law. For a more erudite discussion, click here .

The Australian High Court
The Australian High Court

Do you have clients in Australia? You may want to advise them of this recent decision from Australia’s High Court. Overturning what many say is hundreds of years of common law tradition, the Court said that in Australia, there is no spousal privilege under common law, and the Australian Crime Commission Act (2002) which created the Crime Commission, privileges only self-incrimination, “the person” giving testimony or providing documents. (Sections 30(4) and 30(5) are cited in the judgment as the relevant parts.)

The issues before the Court, as stated in the judgment are:

Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) (“Act”) to give evidence regarding “federally relevant criminal activity” involving her husband – Witness declined to answer examiner’s questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege. Words and phrases – “compellability”, “competence”, “spousal privilege”.

Here is a link to the decision.

In the case, a wife was called before the Crime Commission investigating tax fraud, and asked to testify about the actions concerning her husband (she had worked in his accounting office as a secretary). She claimed a spousal privilege, and was upheld by the full bench of the Federal Court. But the High Court took a different view. The wife may now face jail time if she refuses to testify (although the High Court did order the Crime Commission to pay her costs). One wonders if spousal privilege was a consideration when drafting the Act? (Would be an interesting research project… )

The United States, while inheriting the same common law traditions, has taken a different approach. Spousal privilege is codified in the Federal Rules of Evidence, Rule 501 (Privileges in General).

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:

  • the United States Constitution;
  • a federal statute; or
  • rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

The issue of Husband-Wife Privilege is fleshed out at Subdivision IX, of West’s United States Code Annotated (2001).  It provides extensive explanations of issues such as which matters are privileged (notes 446-454), confidentiality of communications (notes 431-435), and exceptions to privilege (notes 455-460). (One may also want to look at the definitions in Black’s Law Dictionary and Ballentine’s Law Dictionary).

Below is the summary, extracted from the judgment. Not only is the reasoning interesting, but I was struck by paragraph 232, which quotes U.S. Supreme Court Justice Oliver Wendell Holmes. I wonder how many U.S. Supreme Court decisions would quote an Australian judge?

Summary of conclusion and orders

  1. 231.        Opinions may differ as to the interpretation of statements in older texts and cases. Such statements as there are, which suggest that one spouse might not be obliged to give evidence or answer questions which may tend to incriminate the other, do not provide a sufficient foundation for a conclusion that a spousal privilege of the kind claimed existed. Statements in All Saints were addressed to the question of compellability and later cases show that they have been so understood. Those observations are consistent with a view that the court retains the power to determine the question of the wife’s compellability. Even so, the question of her compellability was not finally determined in that case. Its lack of resolution until much later, in England, does not suggest that the topic of a substantive witness privilege was likely to have been addressed. The later application of some of the old common law views towards marriage, which informed the rule of competency, and about which it is not necessary to proffer a view on this appeal, with respect to the compellability of a spouse in criminal proceedings, does not point to the existence of a privilege. It merely states an assumption that those views meant that a privilege arose. It has not been shown that that question has been addressed by the common law courts.
  2. 232.        The observations of Justice Oliver Wendell Holmes concerning the creation of legal doctrine are apposite here. He spoke of a statement of principle occurring only after a series of determinations on the same subject matter and by a process of induction and went on to say[433]:


“And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step.”

No such developments are evident in the cases and materials to which reference has been made in this case. They suggest, at most, that a spouse might seek a ruling from the court that he or she not be compelled to give evidence which might incriminate the other spouse.

The Australian case was decided in a criminal context, on the issues of “compellability” and “competency” and, it concerns a single Act. The decision does not mean that spousal privilege may not be claimed under a different set of facts.

The implications and application of the decision are broad for Australians, and it raises several questions and issues. Marriage is a key value in society. Does this decision weaken the institution? The punishment of crime is also a key value to any society.  Is upholding the punishment of criminals a more important value (civil law is a different subject)? In many marriage vows there is the concept of ‘two’ becoming ‘one.’ Is the sanctity of marriage vows being undermined?  Is the prosecution of criminals more important than the sanctity of marriage? What impact might this decision have on Australian society’s view of the High Court?

The judgment makes for very interesting reading, covering significant historical cases, and the application of common law.  The discussion of the history of privilege is quite fun.

Here is a link to an Australian article discussing the decision which discusses the other privileges which may be under assault in Australia, such as the priest-penitent privilege. Quoting an Australian law professor, the article notes that the attorney-client privilege is under the least threat. Whew!