About the Inquiry
On 29 November 2006, the ALRC received Terms of Reference from the Attorney-General of Australia to inquire into the application of legal professional privilege to the coercive information gathering powers of Commonwealth bodies—such as the Australian Federal Police, the Australian Crime Commission, the Australian Competition and Consumer Commission, the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission, the Australian Taxation Office, the Australian Communications and Media Authority, Centrelink, Medicare Australia, the Commonwealth Director of Public Prosecutions and federal Royal Commissions.
Coercive information gathering powers include the power to compel the production of documents, the answering of questions, and the entering of premises to inspect and copy documents or to search and seize records under warrant.
The Terms of Reference direct the ALRC to consider the investigatory and associated functions of Commonwealth bodies. The ALRC is also directed to consider whether it is desirable to:
- modify or abrogate the privilege in order to achieve a more effective performance of Commonwealth investigatory functions;
- clarify all existing federal provisions that modify or remove the privilege, with a view to harmonising them across the Commonwealth statute book; and
- introduce or clarify other statutory safeguards where the privilege has been modified or abrogated, with a view to harmonising them across the Commonwealth statute book.
In Principled Regulation: Federal Civil and Administrative Penalties in Australia (ALRC 95), the ALRC noted the significant inconsistencies in the availability of the privilege across regulatory statutes and recommended that a review be undertaken of federal investigative powers compelling disclosure of information and the operation of the privilege with a view to providing greater certainty and consistency. The ALRC also considered legal professional privilege—now more accurately referred to as client legal privilege—in its recent report Uniform Evidence Law (ALRC 102). Client legal privilege is a fundamental principle of the common law. It protects against the compulsory disclosure of confidential communications between a lawyer and client that were made for the dominant purpose of providing or seeking legal advice, or for use in existing or anticipated legal proceedings. It also extends to documents that are not communications, if these are brought into existence for the dominant purpose of preparing for, or of use in, anticipated legal proceedings.
As with other common law rights—such as the privilege against self-incrimination—client legal privilege can be modified or abrogated by statute where the legislature affords a competing public interest a higher priority. The ALRC’s Inquiry will consider the circumstances, if any, in which it may be appropriate to give priority to other public interests over the public and private interests in maintaining the privilege.
Client legal privilege is a heavily litigated area of the law. Questions of privilege commonly arise in relation to the exercise of coercive information gathering powers by Commonwealth bodies. The Inquiry raises issues of major importance to the effective operation of Commonwealth agencies with investigative and associated powers. It also raises significant issues for individuals and organisations who may be subject to Commonwealth investigatory powers—in particular the targets of those inquiries, but also potential witnesses and the custodians of relevant information. One key issue for the ALRC will be to determine the use to which privileged information subsequently can be put, in the event that privilege is abrogated.
The ALRC will consult widely with stakeholders and encourages those with an interest in the Inquiry—including members of the judiciary, the legal profession, Commonwealth bodies, individuals and organisations who have been involved in Commonwealth investigations, and the victims of unlawful conduct the subject of Commonwealth investigation—to register an interest. Those who have registered an interest will receive updates on the progress of the Inquiry and a free copy of the ALRC’s consultation papers.
The ALRC released an Issues Paper Client Legal Privilege and Federal Investigatory Bodies (IP 33) in April 2007. The Issues Paper outlined the scope of the inquiry and posed 31 questions for stakeholder feedback.
On 26 September 2007, the ALRC released Discussion Paper 73, Client Legal Privilege and Federal Investigatory Bodies (DP 73), which set out 76 proposals for reform.
The final report to the Attorney-General, containing recommendations for reform, was provided to the Attorney-General on 24 December 2007 and will be publicly available after its tabling in federal Parliament.
This page was posted on 20 December 2006 and updated 29 January 2008