Outline of the Report
Privilege in Perspective: Client Legal Privilege in Federal Investigations (ALRC 107) is the final report of the ALRC’s Client Legal Privilege Inquiry.
The terms of reference directed the ALRC to consider the following questions:
(i) would further modification or abrogation of legal professional privilege in some areas be desirable in order to achieve more effective performance of Commonwealth investigatory functions?
(ii) would it be desirable to clarify existing provisions for the modification or abrogation of legal professional privilege, with a view to harmonising them across the Commonwealth statute book?
(iii) would it be desirable to introduce or clarify other statutory safeguards where legal professional privilege is modified or abrogated, with a view to harmonising them across the Commonwealth statute book? and
(iv) any related matter.
From the outset, the ALRC signaled that privilege should not be viewed as some peculiar entitlement of lawyers, but rather as an important right of clients, based in the relationship between a client and his or her lawyer. Consistent with this approach, the ALRC adopted the term ‘client legal privilege’ rather than ‘legal professional privilege’. This is also consistent with the terminology of the uniform Evidence Acts.
The ALRC considered arguments for and against privilege, in order to establish principles for determining when privilege should apply. The ALRC accepts that privilege—where appropriately exercised—encourages compliance with the law, by creating an environment in which clients can make full and frank disclosure and receive accurate legal advice.
However the ALRC recognises that this privilege must be balanced with the other public interest in ensuring efficient, effective investigations. The ALRC acknowledges that there have been some examples in which claims of privilege had been used primarily to delay or frustrate proceedings, with some disputes taking some years to resolve.
The ALRC’s research identified over 40 federal bodies with coercive information-gathering powers (as well as Royal Commissions established from time to time) and many more than 40 statutes that addressed the powers of these bodies. Many of these statutes are silent on the issue of privilege, and where privilege is addressed, there is no consistency of approach.
In the Privilege in Perspective report, the ALRC made a number of recommendations to improve existing laws and procedures. The key recommendations focused on achieving greater consistency in the application of privilege within the context of federal investigations, and improving processes for making claims of privilege and resolving disputes over claims of privilege.
The Executive Summary in ALRC 107 summarises the key findings and recommendations in the report.