In a dispute between the Australian Crime Commission (ACC) and a person being investigated by the ACC, the High Court of Australia has unexpectedly ruled that "spousal privilege" no longer exists at common law. This may have implications for business in general.
The basis of the common law concept of spousal privilege is that a spouse cannot be compelled to give evidence that incriminates their spouse.
Ewan Stoddart was a self-employed accountant whose business procedures were the subject of investigations by the ACC. At the time of the investigation, the Defendant's wife, Louise, provided secretarial and administrative assistance in the Defendant's practice.
The ACC commenced proceedings in the Federal Court against Mr Stoddart, and subpoenaed Louise to give evidence against him as to his business practices. Louise claimed that she was not required to give evidence due to her marriage to the Defendant on the basis of "spousal privilege".
The focus of the case in the Federal Court of Australia had been on whether the particular terms of the Australian Crime Commission Act 2002 abrogated privilege. However, when this point went on appeal, the High Court of Australia held that this was irrelevant as spousal privilege no longer exists.
This judgment now serves as an authoritative statement rebutting the previously held belief in the concept of spousal privilege. It is also a caution to family-run businesses that the law can look behind marriage during regulatory investigations into the conduct of a business.
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