In Victoria, confidentiality has recently been much discussed. Following the Royal Commission into the Sexual Abuse of Children the state government has promised legislation to force religious ministers to report the sexual abuse of children even if the information has been received in Confession. In Catholic practice the seal of confession has been sacrosanct.
More recently the Victorian government has called its own royal commission to deal with the public revelation that a lawyer had breached the professional duty of confidentiality to clients by cooperating with police. She had passed on to police the substance of conversations conducted under legal privilege.
The government has acted because the use in court of evidence gained in this way might invalidate the convictions of high profile criminals. The government has been careful to absolve the police leadership from blame in their decision to use evidence obtained in this way.
In each of these cases the confidentiality of privileged conversations with lawyer or priest, which those entering the conversation would once have seen as absolute, has now been breached once by legislation and once by the deliberate breach of a professional code by lawyer and police.
The two matters are, of course, different in their scope and the justifications offered for them, but together they suggest that in society authorities regard confidentiality as more negotiable than was once the case. For that reason the implications of these breaches of confidentiality deserve reflection.
In both cases the reasons given for weakening the protection of confidentiality were based on the relative consequences of respecting and of breaching it. To protect the confidentiality of confession within a religious context could result in crimes of sexual abuse against children continuing with impunity.
The Victorian police argued that they were involved in a war against crime in which many people were being killed. They were therefore justified in using lawyers as informers who could provide information by violating their professional duty of confidentiality to their clients. In any case, they argued that they violated no law in doing so. They did not, however, consider the possibility that cases brought against criminals trapped through the breach of confidentiality would be vitiated.
"This can be documented in many areas of Australian life over the last decade. Further down that path Stasiland looms."
Does it matter that confidentiality is infringed in these ways? The value of confidentiality is grounded paradoxically in the value of conversation which is central for human