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 flourishing. We are social animals for whom free communication is essential for our personal growth and for the development of society. Through it we make connections, develop our sense of ourselves, explore the areas of fear, doubt and guilt in our lives, make plans for our future and consult on matters of vital concern to other persons and groups.
Good conversation demands mutual trust. When it is deep and about delicate relationships, it must be protected by a surrounding wall of silence. Whatever of the law, it is lacking in decency for participants to disclose what is understood among them to be confined to the conversation group. It would be similarly unethical to bug others' conversations, listen at keyholes, raid their wastepaper baskets for records, and to link the conversation to a loudspeaker blaring out over the town.
In conversation we normally expect a level of confidentiality, and our reputation for seriousness as human beings is rightly made dependent on our preservation of it. The expectation of confidentiality, however, depends on the seriousness of the conversation. To publicise the football allegiance of conversation partners would be trivial; to publicise an affair that they talked through with us, or to share with others outside a government committee secret information about a forthcoming major currency devaluation would be a gross breach of trust.
In the case of confession the argument for preserving its absolute confidentiality is based on the conviction that it is a conversation about the deepest realities, including discreditable behaviour, of people’s lives, and is understood by the partners to include God as the major partner in the conversation. That is why disclosure, voluntary or forced, of what is confessed in that conversation has been seen as a gross violation of trust and of religious duty.
The disclosure by a lawyer of what is said by a client in the course of privileged conversation has also been seen as a gross abuse of trust with potentially harmful consequences. The harm is not confined to the relationship between the client and the lawyer, but extends to society as a whole.
If confidence in this relationship is eroded by information damaging to the defendant being made available to the prosecution, and if police officers connive in breaches of fiduciary duty, trust in the fairness of the judicial system will be lost. Justice will no longer be seen as blind but as one-eyed, and all conversations will become guarded.
The erosion of confidentiality is serious because it can easily become incremental. Authorities in any organisation always find life easier when they can operate in secrecy and have access to information about those they supervise. It is natural for police to want access to confidential interviews and for governments to legislate to give themselves access to personal information. Once conceded, the demands become more extensive. This can be documented in many areas of Australian life over the last decade. Further down that path Stasiland looms.
Nevertheless, the right to confidentiality in serious matters is not absolute. It can be overridden by the certain threat of serious harm that will occur if it is maintained. But given the harmful social consequences that follow from breaches of confidentiality that threat needs to be established and not merely surmised. There should be a bias in favour of confidentiality: exceptions should be defined as narrowly as possible and should be regularly reviewed.
Andrew Hamilton is consulting editor of Eureka Street.
Main image: Victorian Premier Daniel Andrews (Kelly Defina/Getty Images)