Client legal privilege

14.43 At common law, legal professional privilege (now characterised as client legal privilege under the uniform Evidence Acts) protected confidential communications between a lawyer and client from compulsory production in the context of court and similar proceedings.

14.44 The rationale for the creation of the privilege was to enhance the administration of justice and the proper conduct of litigation by promoting free disclosure between clients and lawyers, to enable lawyers to give proper advice and representation to their clients.[33] The privilege may also be considered a human right. Wilson J in Baker v Campbell commented that ‘the adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society and … [the] privilege … is an important element in that protection’.[34]

14.45 On balance, the benefits of this freedom are considered to outweigh the alternative benefit of having all the information available to the court to assist in decision-making. In Baker v Campbell, Deane J described legal professional privilege as ‘a fundamental and general principle of the common law’.[35] The protection only applies where it is intended for a proper purpose—communications made in furtherance of an offence or an action that would render a person liable for a civil penalty are not protected.[36]

14.46 In the Interim Report of the previous Evidence inquiry (ALRC 26), the rationale for the privilege was set out according to the types of communications it protected.

  • Communications between the Lawyer and Client. Privilege attaches where advice only is sought in addition to the situation where litigation is pending or anticipated. The privilege has been regarded as that of the client and the rationale has been the need for frank and complete communication between lawyer and client so that the client can receive adequate assistance in the protection, enforcement or creation of legal rights.

  • Third Party Communications. Three arguments were advanced for this protection. First, it was argued that it is necessary that the client be able to prevent disclosure by the lawyer of anything obtained by him or her when employed by the client. If information obtained by a solicitor for promoting his or her client’s cause were not privileged, it would be impossible to employ a solicitor to obtain the evidence and information necessary to support a case. Secondly, the lawyer’s brief should not be subject to compulsory disclosure. Thirdly, it was argued to be contrary to the interests of justice to compel a litigant to disclose to the other side before trial the evidence to be adduced.[37]

14.47 In Baker v Campbell, the High Court stated:

The restriction of the privilege to the legal profession serves to emphasize that the relationship between a client and his [or her] legal adviser has a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships.[38]

14.48 At common law, the doctrine is subject to a number of key modifications, including the extension of the privilege to investigative and administrative proceedings, such as notices to produce information under s 264 of the Income Tax Assessment Act 1936 (Cth).[39]

The test

14.49 A key development in the common law in this area was the shift from a ‘sole purpose’ test to a ‘dominant purpose’ test. Until 1995, for a communication to be protected, it had to be made for the sole purpose of contemplated or pending litigation, or for obtaining or giving legal advice, as enunciated in Grant v Downs.[40] In 1999, the High Court in Esso Australia Resources Ltd v Commissioner of Taxation[41] overruled Grant v Downs, holding that the common law test for legal professional privilege is the dominant purpose test. This is in line with the ALRC’s previous recommendation and with the uniform Evidence Acts.[42]

14.50 Section 118 creates a privilege for legal advice. In ALRC 26, the ALRC recommended changing the name of the privilege from the common law term, ‘legal professional privilege’, to ‘client legal privilege’, reflecting the view of Murphy J in Baker v Campbell:

The privilege is commonly described as legal professional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client’s privilege, so that it may be waived by the client, but not by the lawyer.[43]

14.51 Section 118 provides that evidence is not to be adduced if, on objection by the client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between two or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client or the lawyer;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

14.52 Section 119 establishes a ‘litigation privilege’, protecting confidential communications between a client and another person, or a lawyer acting for a client and another person, or the contents of a confidential document that was prepared for the dominant purpose of a client being provided with legal services related to an Australian or overseas proceeding or anticipated proceeding in which the client is or may be a party. The ALRC considered that confidential communications between a lawyer or client and third parties are a part of adversarial litigation and therefore should also be protected by client legal privilege.[44]

14.53 Legal professional privilege at common law can be claimed in civil proceedings at the interlocutory stage, during the course of a criminal or civil trial, and in non-judicial proceedings.[45]Baker v Campbell established that the doctrine applies ‘in the absence of some legislative provision restricting its application … to all forms of compulsory disclosure of evidence’.[46]

14.54 While the scope of legal professional privilege at common law is expansive, it only applies to communications given or received for the dominant purpose of giving legal advice or the provision of legal services. Associate Professor Sue McNicol has described the history of legal professional privilege under Australian law as follows:

Prior to the enactment of the Evidence Act 1995 (Cth), legal professional privilege was governed by the sole purpose test at common law due to the 1976 decision of the High Court in Grant v Downs. Then, since 1983 in Australia, legal professional privilege has applied not only in curial and quasi-curial contexts, but also in non-curial contexts, such as administrative and investigative proceedings, and in the extra-judicial processes of search and seizure and in proceedings before bodies having the statutory power to require the giving of information. This was mainly due to the landmark 4:3 decision of the High Court in Baker v Campbell which proclaimed legal professional privilege as more than just a mere rule of evidence capable of applying in judicial proceedings but as a fundamental and substantive common law principle capable of applying to all forms of compulsory disclosure, unless some legislative provision expressly or impliedly abrogated it. Then, in 1995, the Evidence Act (Cth) created a privilege, known as client legal privilege, with a dominant purpose test that applies only in the ‘adducing of evidence’ in a curial context (in the Federal courts to which the Act applies) and remained silent on other, especially pre-trial contexts. Such a course of action has led to both much litigation and confusion, especially on the question whether the Act has an indirect or implied effect on pre-trial contexts.[47]

14.55 In the case of client legal privilege, one evidence text notes that in all but a small proportion of cases, all of the privilege issues will arise in relation to pre-trial procedures.[48] McNicol notes that most claims of privilege are raised in the interlocutory stages of civil proceedings.[49]

14.56 To overcome this ongoing problem with the operation of the uniform Evidence Acts, in DP 69 the Commissions proposed that the client legal privilege provisions of the uniform Evidence Acts should apply to pre-trial discovery and the production of documents in response to a subpoena. The Commissions further proposed that the uniform Evidence Acts be extended to apply to other non-curial contexts including search warrants and notices to produce documents.[50]

Submissions and consultations

14.57 This proposal received widespread support.[51] The Law Society of New South Wales notes that the privilege has been extended to pre-trial matters in New South Wales and that there is no suggestion that any difficulty has arisen in this context.

It is clear that there is a need for legislative uniformity throughout Australia, as well as the need to limit the disparity between the common law and the regulated position both nationally and on a state by state basis.[52]

14.58 The Criminal Bar Association of the Victorian Bar considers that, given the objective of uniformity, it is preferable for the privilege to be provided for in the uniform Evidence Acts, rather than rules of court.[53]

14.59 The Australian Securities and Investments Commission (ASIC) supports the proposal. However, it notes that care should be taken in extending the privilege to ensure that the extension does not apply client legal privilege beyond the scope of legal professional privilege as it is currently recognised at common law.[54]

14.60 The Commonwealth Director of Public Prosecutions (CDPP) opposes the proposal. In its view, to include provisions relevant to non-court investigative processes will involve a departure from the approach of the uniform Evidence Acts generally. That approach is to exclude provisions about extra-curial matters. For example, matters not included in the Evidence Act are the obtaining of identification evidence and the obtaining of confessions, both of which are dealt with in detail in the Crimes Act 1914 (Cth). To extend the operation of the uniform Evidence Acts to investigative processes would mean that the common law test of legal professional privilege would continue to be applied to criminal investigations in non-Evidence Act jurisdictions but the uniform Evidence Act provisions would apply in uniform Evidence Act jurisdictions.

14.61 Where the investigation is being carried out by a federal agency different tests will be applicable. In the CDPP’s view, this may be problematic and is arguably worse than the present situation. The CDPP is of the view that client legal privilege is currently abused in investigations being carried out in Australia, and favours a review of the operation of legal professional privilege/client privilege in all jurisdictions.[55]

14.62 The Australian Federal Police supports the standardisation of the rules for client legal privilege in relation to pre-trial court processes, such as subpoenas and discovery, but is cautious in relation to extension to investigatory practices and procedure. It argues that there should be a separate review into extension of privilege to non-curial activities.[56]

The Commissions’ view

14.63 The Commissions strongly support the view that a dual system of client legal privilege operating in any one jurisdiction is undesirable. It is the clear position of the courts in Australia since Baker v Campbell[57] that legal professional privilege is a fundamental right that applies to court, administrative and investigative proceedings. The Commissions’ view is that, in the interests of clarity and uniformity, the client legal privilege sections of the uniform Evidence Acts should be extended to apply to these pre-trial contexts, as currently regulated by the common law rules of legal professional privilege.

14.64 The current system has resulted in extensive confusion and on-going litigation. Attempts to extend the privilege to some pre-trial matters via the rules of court have led to further litigation. As will be discussed further below, client legal privilege is a heavily litigated area of law and, as a doctrine, continues to develop in response to changing business and legal practices. Should the common law continue to operate pre-trial and the uniform Evidence Acts at trial, there is likely to be an increasing disparity between the two systems which can only add to the complexity of the law in this area.

14.65 Therefore, it is the Commissions’ view that the client legal privilege sections of the uniform Evidence Acts should apply to pre-trial contexts and to any situation where a person is requested to produce a document.[58]

14.66 Some of the options available to achieve this are discussed above. The Commissions do not make any specific recommendation about how this recommendation should be implemented. The draft amendments to Part 3.10 included in Appendix 1 contain only those amendments flowing from other recommendations.

Particular difficulties with investigatory agencies

14.67 In relation to the concerns raised by ASIC and the Australian Federal Police, the Commissions note that the investigatory powers of agencies are currently bound by the common law rules of legal professional privilege, unless abrogated expressly or by necessary implication.[59] It is not proposed that the application of the uniform Evidence Acts to pre-trial processes extend the protection beyond that conferred by the common law privilege. As the Acts and common law have only minor differences,[60] it is unlikely current practices of investigators will change significantly. As noted above, the civil courts in New South Wales currently apply the Evidence Act 1995 (NSW) sections to pre-trial matters via rules of court. The Commissions have not been told of any problems with this approach.

14.68 Some legislation that gives administrative agencies investigative powers, such as those exercised by the Australian Competition and Consumer Commission (ACCC) and the Australian Taxation Office (ATO), seeks to abrogate legal professional privilege. In Daniels v ACCC, the High Court held that s 155 of the Trade Practices Act 1974 (Cth)[61] does not abrogate legal professional privilege, because the privilege is an important common law right that can only be abrogated expressly or by necessary implication.[62]

14.69 The ALRC considered this issue in its report Principled Regulation: Federal Civil and Administrative Penalties in Australia (ALRC 95).[63]In that Report, the ALRC acknowledged that there may be circumstances where it is appropriate that legal professional privilege not be available due to the particular investigatory difficulties of commercial regulators (such as ASIC or the ACCC). However, the ALRC said that the approach to that difficulty should be abrogation of the privilege by clear legislative statement. The ALRC argued that, given the importance of these issues, parliament should consider and debate the circumstances where legal professional privilege should not be available.[64] ALRC 95 also noted the huge disparity between the investigative powers of regulators and advocated that a review be undertaken of federal investigative powers and the operation of legal professional privilege with a view to providing greater certainty and consistency.[65] The Commissions support that finding, and consider that the concerns of regulators and investigators regarding the scope of client legal privilege must be addressed through their own legislation, leaving the uniform Evidence Acts to remain of general application.

Recommendation 14–1 The client legal privilege provisions of the uniform Evidence Acts should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

Definitions

14.70 In DP 69, the Commissions identified some drafting difficulties with the client legal privilege provisions of the uniform Evidence Acts.[66] Section 117 defines the terms used within the division dealing with client legal privilege. Two proposals were made to change the definition of ‘client’ and ‘lawyer’ under the Act.[67]

Definition of client

14.71 Under the Division, the term ‘client’ includes:

(a) an employer (not being a lawyer) of a lawyer;

(b) an employee or agent of a client;

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory; or

(ii) a body established by a law of the Commonwealth or a State or Territory;

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting;

(e) if a client has died—a personal representative of the client;

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.

14.72 Under this definition of ‘client’, a private employer of a lawyer may not be a lawyer, whereas a government employer is not so restricted and may be a lawyer.

14.73 Following IP 28, it was put to this Inquiry that, provided sufficient independence is established, there is no sound policy reason why legal advice cannot be provided to a lawyer, that lawyer being a client of a lawyer in their employ.[68] With increasing fields of specialisation, it is not unreasonable to think that law firms will want to seek advice on particular matters, perhaps from their own specialists.[69]

14.74 The previous Evidence inquiry did not make specific reference to this issue and, in the drafting of the Bill, the proviso that a private employer of a lawyer not be a lawyer was added.

14.75 In the pre-uniform Evidence Act case of Waterford v Commonwealth, the High Court considered the issue of whether the government could claim legal professional privilege in respect of legal advice from its own salaried legal officers, and found that the privilege did apply.[70] Although this case involved a specific context of government employees exercising statutory functions, the Court also considered the case of the employed legal advisor more generally. Independence and competence were established as the basis on which the privilege could be granted. To show the requisite independence, Deane J said that salaried legal advisors should be ‘persons who, in addition to any academic or other practical qualifications, were listed on a roll of current practitioners, held a current practising certificate, or worked under the supervision of such a person’.[71]

14.76 In the case of government employees, Brennan J drew a distinction between salaried employees of government and non-government agencies. His Honour considered that the professional independence of government lawyers was protected by the statutes under which lawyers in the public service are employed.[72] It is presumably on this basis that the distinction currently drawn in the uniform Evidence Acts is based.

14.77 In Australian Securities and Investments Commission v Rich,[73] Austin J stated that independence may be construed as something to be proved as a matter of fact in each circumstance. He cited with approval the summation of Debelle J in Southern Equities Corporation Ltd (in Liq) v Arthur Anderson & Co (No 6) that

the question whether the relationship between the employed solicitor and his employer is such that the communications between them will give rise to legal professional privilege is a question of fact. The party claiming the privilege has the onus of proving that fact.[74]

14.78 Provided the requisite independence exists between the lawyer employer and the legal advisor, it is arguable that the privilege should apply.[75] In DP 69, the Commissions argued that the increasing complexity of legal practice is such that it is appropriate for legal advice provided to a private lawyer employee to be covered by the privilege. It was proposed that s 117(a) of the uniform Evidence Acts be amended to allow that a ‘client’ is an employer of a lawyer, which may include lawyers who employ other lawyers.[76]

Submissions and consultations

14.79 This proposal received significant support in submissions.[77] The Law Society of New South Wales notes that in the context of increasing specialisation, law firms frequently seek advice from their own specialist lawyers, for example, in employment and tax areas. The proposed amendment would make the situation consistent with that of a government employer.[78]

14.80 The New South Wales Public Defenders Office (NSW PDO) opposes the proposal on the basis that, in public policy terms, the decision-making process in the Director of Public Prosecutions (DPP) office should be as transparent as possible.[79] However, the Commissions do not believe this amendment will reduce the transparency of the DPP, as that agency is already likely to be covered by s 117(c).

14.81 The Commissions remain of the view that it is unnecessary for the uniform Evidence Acts to draw a distinction between government and private lawyers in allowing a client to be an employee of the lawyer. The Commissions recommend that, for the purposes of the client legal privilege provisions of the uniform Evidence Acts (Part 3.10), a client of a lawyer be defined as a person who engages a lawyer to provide professional legal services, or who employs a lawyer for that purpose, including under a contract of service (for example, as in-house counsel). The suggested amendments to the definition of ‘client’ in s 117(1)(a) implement this recommendation.

Recommendation 6–2 Section 117(1)(a) of the uniform Evidence Acts should be amended to allow that a ‘client’ of a lawyer be defined as a person who engages a lawyer to provide professional legal services, or who employs a lawyer for that purpose, including under a contract of service (for example, as in-house counsel).

Definition of lawyer

14.82 Section 117(1) defines a lawyer as including an employee or agent of a lawyer. The Acts further define a lawyer as meaning a barrister or solicitor.[80] The issue of whether that definition of ‘lawyer’ means that a person must hold a current practising certificate was raised in a number of consultations throughout this Inquiry. It is an increasingly common scenario that in-house lawyers employed by a corporation or government department do not have a practising certificate.[81]

14.83 It has been unclear under the Acts whether ‘a barrister or solicitor’ means that the lawyer must hold a current practising certificate or whether it is sufficient to be admitted as either type of legal practitioner on the roll of the relevant court.

14.84 In DP 69, the Commissions considered this issue at some length. At the time of writing the Discussion Paper, Crispin J in the Australian Capital Territory Supreme Court had found in Vance v McCormack that privilege only attached where the lawyer concerned held a current practising certificate or had a statutory right to practice.[82] Crispin J based this finding on the rationale for legal professional privilege,[83] being the public interest in proper representation of clients. Where a legal advisor has no right to represent a client, no privilege should attach.[84] His Honour noted that, in Australian jurisdictions, the statutory right to practise law generally depends on the holding of a practising certificate.[85] The only other example of a statutory right to practise noted by his Honour was that conferred on certain Commonwealth officers by the Judiciary Act 1903 (Cth) or Acts granting powers to the holders of specified positions such as a Director of Public Prosecutions or Solicitor-General.

14.85 In August 2005, the ACT Court of Appeal overturned this decision, finding that Crispin J had erred by applying the common law test rather than the Evidence Act 1995 (Cth) test when considering if the documents were covered by client legal privilege.[86]

14.86 In considering the definition of ‘lawyer’ under s 117, the Court of Appeal found that a practising certificate was an important indicator, but not conclusive on the issue of whether the legal advice was sufficiently independent to constitute legal advice under the Evidence Act requirements.[87]

Admission to practise of itself carries with it an obligation to conform to the powers of the Court to remove or suspend a legal practitioner for conduct that the Court considers justifies such a determination. Under s 55D(1)(b) of the Judiciary Act 1903 (Cth), a person whose name is on the roll of barristers, solicitors or legal practitioners of the Supreme Court of a State or Territory is entitled to practise as a barrister or solicitor in any Territory unless suspended or disentitled by Court order … The person remains bound to uphold the standards of conduct and to observe the duties undertaken upon admission to the roll of practitioners. The holding of a practising certificate reinforces that regime and makes it more immediately applicable but the underlying obligations subsist even if a current practising certificate is not held.[88]

14.87 The Court of Appeal noted that the privilege under s 118 is limited to communications for the dominant purpose of providing legal advice. Therefore, government lawyers who provide policy or other types of advice will not be covered when they act in those other capacities.[89] It concluded that the possession of a certificate will be a very relevant fact in determining whether or not an employed lawyer is providing independent, professional legal advice sufficient to make a claim of client legal privilege.

To make the holding of a practising certificate a pre-condition for such a claim, however, seems to us to go beyond the requirements of the Evidence Act and to amount to appellable error.[90]

14.88 The Court cited Australian Hospital Care v Duggan (No 2) in support of this finding.[91] That case concerned advice given by an in-house company lawyer who had been admitted to practise and held a practising certificate in the past, but did not hold a current Victorian practising certificate. In that case, Gillard J extensively outlined the case law establishing independence as a crucial element of the features that must be present for legal professional privilege to apply in respect of a confidential communication between a private sector employer and its own employee lawyer.[92]

[I]n my opinion there [are] sufficient dicta to support the proposition that the employee legal adviser when performing his role in a communication concerning a legal matter must act independently of any pressure from his employer and if it is established that he was not acting independently at the particular time then the privilege would not apply or if there was any doubt the court should in those circumstances look at the documents.[93]

14.89 Gillard J came to the conclusion that ‘the facts of qualification and entitlement to practice are safeguards against a legal practitioner failing to act independently’ but were not conclusive.

In some circumstances the failure to have a practising certificate would carry substantial weight on the question of lack of independence but each case must depend on its own particular circumstances and no doubt a court would be more concerned with the qualifications and experience of the lawyer in question more so than the question of registration.[94]

Overseas lawyers

14.90 In Kennedy v Wallace,[95] the Full Federal Court considered whether legal professional privilege[96] applies to advice obtained from an overseas lawyer. Allsop J (with whom Black CJ and Emmett J agreed on this point) found that the rationale of the privilege—serving the public interest in the administration of justice—and its status as a substantive right, mean it should not be limited to serving the administration of justice only in Australia.[97] His Honour stated that the nature of modern commercial life and the increasingly global interrelationship of legal systems ‘make the treatment of the privilege as a jurisdictionally specific right, in my view, both impractical and contrary to the underlying purpose of the protection in a modern society’.[98] The Court held that it is unnecessary to show that the overseas lawyer has the same ethical and legal responsibilities as an Australian lawyer.

Submissions and consultations

14.91 In DP 69, the Commissions proposed that the current definition of a lawyer as a ‘barrister or solicitor’ in the Dictionary of the Acts be amended to read a ‘person admitted to practi[s]e as a legal practitioner, barrister or solicitor in an Australian jurisdiction or in any other jurisdiction’.[99] This proposal was designed to clarify that a practising certificate is not a pre-requisite for privilege to arise under the Acts and to adopt the position of the common law regarding advice from foreign lawyers as outlined in Kennedy v Wallace.

14.92 This proposal was generally supported in submissions.[100] The NSW PDO supports the proposal that lawyers practising overseas be included for the purpose of client legal privilege.[101] The Law Society of New South Wales agrees that it is the substance of the relationship that is of importance rather than a strict requirement to hold a practising certificate. The Society also agrees with the view of Allsop J in Kennedy v Wallace that client legal privilege should not be a jurisdictionally specific right.[102]

14.93 In consultations, the issue was raised whether there will be difficulties in extending the privilege to communications with lawyers in jurisdictions where the rules regarding admission of legal practitioners are not comparable with those in Australia or where the concept of legal professional privilege does not exist.[103]

14.94 Both ASIC and the Australian Government Attorney-General’s Department note that the terms used in the definition of a ‘lawyer’ should be consistent with the National Legal Profession Model Bill endorsed by the Standing Committee of Attorneys-General (SCAG).[104] At the time of writing, New South Wales, Victoria and Queensland have enacted the model laws.[105] Under the Model Bill, an Australian lawyer is a person who is admitted to the legal profession,[106] and a legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate.[107]

14.95 Victoria Police does not oppose the proposed definition, but suggests that consideration be given to including a definition of ‘police prosecutor’ in the Dictionary to clarify the role of qualified police members in summary courts.[108] Given that the arrangements for police prosecutors differ across jurisdictions, the Commissions note that this suggestion could be taken up by individual states and territories adopting the uniform Evidence Acts, if required.

Commissions’ view

14.96 The Commissions support the view of the ACT Court of Appeal in Commonwealth v Vance, that it is the substance of the relationship that is of importance, rather than a strict requirement that the lawyer hold a practising certificate. It is at the time of admission that professional standards and obligations are conferred on a practitioner and it is these professional obligations that serve as a mark of the lawyer’s independence. The foundation for the availability of the privilege goes beyond the individual services provided to the client—the privilege is also granted to ‘enhance the function of the adversarial system of justice’.[109] On this basis, the privilege should be flexible enough to take into account changing practices and contexts in which lawyers are employed.

14.97 The impetus to limit the privilege to lawyers with current practising certificates may stem from fears that lawyers providing general policy or risk management advice might have the entirety of their work covered by the privilege. However, as noted by the ACT Court of Appeal, the dominant purpose test remains the ultimate limitation on the operation of the privilege. The Commissions believe that, provided the communication meets the test of being provided for the dominant purpose of providing legal advice,[110] or being provided with professional legal services,[111] relating to an Australian or overseas proceeding, the fact that the lawyer does not have a practising certificate will not extend the scope of the privilege to an unwarranted degree.

14.98 The Commissions agree that the privilege under the uniform Evidence Acts should apply to advice sought from an overseas lawyer, for the reasons stated by Allsop J in Kennedy. The concerns regarding a possible extension of the privilege to lawyers in jurisdictions that are not governed in a similar manner to the Australian legal profession are noted. However, in Kennedy, Black CJ and Emmett J took the view that, in the ordinary case of a client consulting a lawyer about a legal problem, proof of those facts will be a sufficient basis for a conclusion that legitimate legal advice is being sought and given, irrespective of a comparison with the particular legal and ethical obligations of an Australian lawyer.[112] Allsop J took a similar view stating that if a lawyer is admitted to practise in a foreign country, it seems unnecessary to require evidence about legal ethical practices and controls by foreign courts.

If a person is a lawyer in country X and legal advice is sought from that person, one can conclude that the client needs or desires such advice in the facilitation of the orderly and lawful arrangement of his or her affairs as a member of our ‘community’, not using community in any narrow sense.[113]

14.99 The Commissions’ view is that, should unusual facts about the status of a lawyer arise in a particular case, it will be open to the court to find that the prerequisite of the communication being made for the dominant purpose of providing legal advice will not have been made out. It will also be open to the party seeking the information to make a case that if client legal privilege was not available in the jurisdiction in which the communication was made, then it was not a confidential communication for the purpose of the uniform Evidence Acts. These are all matters which can be dealt with on a case-by-case basis.

14.100 The Commissions agree with the submissions stating that the definition of a lawyer in the uniform Evidence Acts should be consistent with that under the Model Legal Profession Bill. The recommendation below has been drafted to achieve this effect.

Recommendation 6–3 The definition of a ‘lawyer’ in the Dictionary of the uniform Evidence Acts should be amended to provide that a lawyer is a person who is admitted to the legal profession in an Australian jurisdiction or in any other jurisdiction.

Communications with third parties under the common law

14.101 In DP 69, the Commissions outlined significant development under the common law regarding the extension of legal advice privilege to cover communications with third parties. This change reflects divergence between the common law and the uniform Evidence Acts (which were intended to replicate the common law in this regard). The Commissions noted in DP 69 that, if the proposal to extend the client legal privilege sections of the Acts to pre-trial proceedings is adopted, the question arises whether the Acts should remain as they are now, or be amended to mirror common law developments.[114]

14.102 In 2004, in Pratt Holdings v Commissioner of Taxation, the Full Federal Court held that a third party’s communication with a client, even where there is no litigation pending, could potentially be protected by legal professional privilege.[115] Previously, it was thought that the protection would only apply where the third party was not independent, but was acting as the client’s agent in making the communication.

14.103 Two related issues arose in Pratt. First, as noted above, the chief question was whether communication with a third party, who was not operating as an agent, could be protected. Secondly, under the common law, as with the uniform Evidence Acts, legal professional privilege encompasses both a communication or advice privilege and a litigation privilege. The rationale for the two types of privilege, as expressed in ALRC 26, is noted above. With the extension of the concept of an ‘agent’ under Pratt, the question is asked whether the distinction between the two types of privilege is meaningful.

14.104 In Pratt the court considered whether legal professional privilege can extend to cover documents prepared by a firm of accountants for the client. These documents were prepared on the basis that the client would provide them to a firm of solicitors for legal advice.

14.105 At first instance, Kenny J articulated the principles relating to legal professional privilege:

The common law in Australia is, therefore, that legal professional privilege attaches to:

(1) confidential communications passing between a client and a client’s legal advisor, for the dominant purpose of obtaining or giving legal advice (‘legal advice privilege’); and

(2) confidential communications passing between a client, the client’s legal advisor and third parties, for the dominant purpose of use in or in relation to litigation, which is either pending or in contemplation (‘litigation privilege’).[116]

14.106 Kenny J rejected Pratt Holdings’ claim to privilege over the accountant’s documents on the basis that, under the advice privilege, a client’s communication with a third party could only be protected if the third party was ‘not truly a third party but, rather, the client’s “agent” in making the communication’.[117]

14.107 On appeal, the Full Federal Court rejected this position. The Court took the view that, even though the accountants’ firm was not the client’s ‘agent’, this did not mean that the firm’s communications with the client could not be privileged.[118] Finn J argued that it is not the relationship between the parties but the function which the third party performs which is of importance. Where that function is to enable the client to make the communication necessary to obtain legal advice, the third party ‘has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege’.[119]

14.108 Stone J argued that the requirement that a third party be an agent leads to an artificial distinction between situations where that expert assistance is provided by an agent or alter ego of the client and where it is provided by a third party. In her Honour’s view, provided the dominant purpose requirement is met, there is no reason why privilege should not extend to the communication to the expert by the client.[120]

14.109 Finn and Stone JJ considered that it may be difficult for a person seeking legal advice to communicate the problem in respect of which advice is sought without input from a third party.[121]

Extending legal professional privilege to protect communications made for the dominant purpose of obtaining legal advice does not require all communications between legal adviser and client to be protected. If, however, the policy implicit in the rationale for legal professional privilege is not to be subverted, the dominant purpose criterion must be applied recognising that the situations in which people need legal advice are increasingly complex and that the client may need the assistance of third party experts if he or she is to be able to instruct the legal adviser appropriately.[122]

14.110 Both judges viewed the dominant purpose test as the appropriate limitation on the availability of privilege. Stone J argued that the rationale in Pratt will not be likely to extend the boundaries of client legal privilege as the dominant purpose test will still need to be met. Her Honour noted, for example, that advice about commercially advantageous ways to structure a transaction are extremely unlikely to attract privilege because the purpose of the advice will, in most cases, be independent of the need for legal advice. Even if the parties intend that the advice will be submitted to a lawyer for comment, the purpose is still unlikely to be considered the dominant purpose for seeking the advice.[123]

Maintaining a distinction between advice and litigation privilege

14.111 It is suggested that the decision in Pratt is indicative of a move away from distinguishing between legal advice and litigation privilege.

Arguably, the Full Court’s approach represents a significant extension of the advice privilege, to a point where there is now little theoretical distinction between the advice privilege and the litigation privilege.[124]

14.112 On this view the correct formulation of client legal privilege would be ‘a communication made for the dominant purpose of providing legal services’.[125] The High Court’s description of legal professional privilege in Daniels is cited as support for this position.

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communication between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.[126]

14.113 By determining that the case could be decided under the head of legal advice privilege, the Full Federal Court in Pratt did not have to resolve this issue. However, Stone J indicated that the High Court’s exposition of the rationale for legal professional privilege in Daniels was consistent with the appellants’ submission that there is a single rationale in Australia for legal professional privilege. Her Honour found that the rationale applies both to litigation privilege and legal advice privilege, although she did not accept that adopting a single rationale should lead to a refusal to distinguish between the categories.[127]

14.114 In DP 69, the Commissions accepted the reasoning of Finn and Stone JJ in Pratt—that the policy upon which the privilege is granted is consistent with allowing a third party to prepare documentation for the client for the dominant purpose of providing legal advice. It was therefore proposed that s 118(c) be amended to provide that legal advice privilege extends to information provided by a third party to the client or lawyer for the dominant purpose of providing legal advice.[128]

Submissions and consultations

14.115 The Australian Government Solicitor (AGS) supports the proposal, stating:

It is not apparent to us that it will spark an increase in colourable claims for privilege—any more than would be the situation with clients seeking to include unnecessary documents in material sent to their solicitor for advice.[129]

14.116 The proposal was also supported by the NSW DPP,[130] the NSW PDO[131] and in consultation.[132]

14.117 The Law Society of New South Wales supports the amendment, but notes that s 118(a) may also need to be amended to provide that both documents created by a third party and communications with third parties are covered by the privilege.[133]

The Commissions’ view

14.118 The ALRC’s view in the previous Evidence inquiry was that the justifications for allowing privilege for third party communications (as outlined above) should be limited to a situation where litigation is pending or in contemplation, and do not apply to the advice context.[134] However, there have been considerable developments in common law thinking since that time.

14.119 In Pratt, Kenny J at first instance argued that the precedents were clear, but acknowledged the artificiality and narrowness of the Australian position. After surveying other jurisdictions, her Honour said that the ‘more functional’ approach adopted in the United States and in Canada (and, to a lesser extent, in New Zealand) may produce a more rational, or less artificial, result.

In the United States and Canada, a finding that a party is an agent for advice privilege purposes is resolved by finding that a communication was made by the agent for the dominant purpose of obtaining legal advice where the communicator was not acting entirely independently and ‘under his own steam’. On the other hand, this more flexible approach puts some strain on the orthodox understanding of privilege, by extending its scope to a wider range of ‘agency situations’ than that presently accepted in English and Australian law.[135]

14.120 The Full Court’s judgment has been contrasted with the English position:

[T]he current position under Australian law [after Pratt] appears more coherent and, in its more vigorous use of the dominant purpose requirement, more attuned to the realities of the increasing intermingling of commercial advice with managerial and operational issues in the undertakings of commercial corporations.[136]

14.121 Where the uniform Evidence Acts are intended to mirror the common law it is important that they do not fall behind developments in judicial thinking that are consistent with the overall philosophy on which the relevant provisions are based. The Commissions believe this is one of those examples. The Commissions are of the view, as espoused by Stone J in Pratt, that there remain crucial differences between the two types of client legal privilege. Legal advice privilege exists to protect the relationship between a lawyer and client; litigation privilege respects the important functions of the adversarial system. Therefore the distinction should not be abandoned.

14.122 Section 118(c) should be amended to provide that the legal advice privilege extends to information provided by a third party to the client or lawyer for the dominant purpose of providing legal advice. It is not recommended to extend the privilege to all communications with a third party as suggested by the Law Society of New South Wales as this may extend unduly the scope of the privilege and result in a greater blurring of the advice and litigation privileges.

Recommendation 6–4 Section 118(c) of the uniform Evidence Acts should be amended to replace the words ‘the client or a lawyer’ with ‘the client, a lawyer or another person’.

Loss of client legal privilege

14.123 Client legal privilege can be lost in circumstances such as: where a party has died; where the court would be prevented from enforcing an order of an Australian court; where the communication affects the right of a person; through waiver of the privilege; where the communication may be adduced by a criminal defendant; where there are joint clients; and where the communication is made in furtherance of the commission of an offence or fraud.

Consent

14.124 Section 122 concerns loss of client legal privilege by consent, either by express or implied waiver of the privilege. The section is drafted as a general rule, whereby the evidence can be adduced if a client or party has knowingly and voluntarily disclosed the substance of the evidence. There are a number of exceptions to this rule including where the evidence has been disclosed under duress or under compulsion of law.

14.125 The basis for the test of ‘knowingly and voluntarily disclosed’ was to address uncertainty about the effect of voluntary disclosure by the client, and not to allow waiver where a person may have inadvertently disclosed or been compelled to disclose the communication.[137]

14.126 In Newcastle Wallsend Coal Co Pty Limited v Court of Coal Mines Regulation, it was held that giving a recording of interview to a client for the sole purpose of checking its accuracy and prohibiting retention of a copy was not ‘knowing and voluntarily disclosing’.[138] However, loss of privilege did occur where a record of interview was given to a witness for his or her own purposes and without the condition that it not be disclosed. In Department of Public Prosecutions (Cth) v Kane it was held that inadvertent disclosure of a document due to a clerical mistake did not constitute a ‘knowing and voluntary’ disclosure.[139] This was also the position in Ampolex v Perpetual Trustee Co Limited where it was held that disclosure by mistake does not amount to voluntary disclosure.[140]

Waiver at common law

14.127 The approach in s 122 is different to the common law, where traditionally waiver is imputed where the circumstances are such that it is unfair for the client to say that the privilege has not been waived.[141] What is unfair in the circumstances is determined by the conduct of the client.

14.128 In Attorney-General (NT) v Maurice, Mason and Brennan JJ stated the principle as follows:

[I]n order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter.[142]

14.129 Waiver may be express or implied. Waiver of the privilege is implied or imputed where it is considered that particular conduct is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect.[143] In Goldberg v Ng, it was said that the basis of an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. That act or omission will ordinarily involve or relate to a limited (actual or purported) disclosure of the contents of the privileged material.[144]

14.130 Mann v Carnell focused the common law test on inconsistency, rather than fairness alone.

What brings about the waiver is the inconsistency, which the courts, where necessary informed by the consideration of fairness, perceive, between the conduct of the client and the maintenance of confidentiality; not some overriding principle of fairness operating at large.[145]

14.131 In DSE (Holdings) Pty Ltd v Interan Inc, Allsop J noted that by subordinating the notion of fairness to possible relevance in the assessment of the inconsistency between the act and the confidentiality of the communication, Mann v Carnell produced an important change to the existing law.[146]

14.132 This approach was recently restated by the Federal Court in SQMB v Minister for Immigration and Multicultural and Ethnic Affairs,[147] where it was found that waiver occurs ‘when a party does something inconsistent with the confidentiality otherwise contained in the communication’.[148]

Inconsistent interpretation of s 122

14.133 The courts have interpreted s 122 inconsistently, in some cases attempting to import the common law notion of fairness into the section.

14.134 In Telstra Corporation v Australasia Media Holdings (No 2),[149] it was held appropriate to extend the scope of the section to include ‘imputed’ waivers and, accordingly, apply notions of fairness in accordance with previous common law decisions. This was also the position taken in Perpetual Trustees (WA) v Equuscorp Pty Limited.[150]

14.135 Conversely, in Adelaide Steamship Pty Ltd v Spalvins,[151] the Full Federal Court held that notions of fairness (the common law) do not apply under s 122.

14.136 However, in Telstra Corporation v BT Australasia Pty Ltd,[152] the majority of the Full Federal Court found that consent under s 122 can be taken to extend beyond express consent (to include consent that was real and voluntary, although implied) and therefore that the section can be taken to apply to imputed consent.[153] The AGS submits that this would give s 122 a similar operation to the Mann v Carnell inconsistency waiver.[154]

14.137 In Carnell v Mann, the Full Federal Court stated that ‘the application of the section may well, in any given case, produce an entirely different outcome to that which would follow under the common law doctrine’.[155]

14.138 The major issue identified by the Commissions in DP 69 was whether the prescriptive approach taken in the legislation fails to allow sufficient room for flexibility.[156] One suggested advantage of the common law approach is that it allows the court to decide that there has been an imputed waiver of privilege despite the fact that there has not been an ‘express intentional general waiver of privilege’.[157]

14.139 Stephen Odgers SC has argued that when the courts do not incorporate notions of fairness into s 122,

the provision might result in loss, or retention, of the privilege in circumstances where fairness to the parties would suggest a different result. If that were the case, the adoption of the more flexible common law approach may be preferable, despite the consequent uncertainty it produces.[158]

14.140 In contrast, it has been suggested that one of the disadvantages of applying fairness considerations is that the assessment is too subjective. What is unfair or fair to one person could be completely the opposite to another. McHugh J argued this point at length in his dissenting judgement in Mann v Carnell:

To use an ‘unfairness’ test for determining waiver after disclosure to a third party also changes the fundamental nature of privilege. It changes privilege from something which inheres in communications as a matter of law to a state of affairs which exists between the parties as a kind of equitable estoppel.[159]

14.141 In DP 69, the Commissions acknowledged that there were a number of difficulties with s 122 as it is presently drafted. In particular, the Commissions accepted criticism of the section as inflexible because it does not take into account factual situations where there may be other conduct inconsistent with the maintenance of the privilege beyond a knowing and voluntary disclosure.

14.142 The Commissions proposed that s 122(2) of the uniform Evidence Acts be amended to allow that evidence may be adduced where a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence or has otherwise acted in a manner inconsistent with the maintenance of the privilege.[160]

Submissions and consultations

14.143 This proposal received widespread support.[161] The Criminal Law Committee of the Law Society of New South Wales does not support the proposal on the basis that the operation of s 122 has not presented any problems in practice. The Committee argues that the addition of a new test would make the provision unnecessarily complex and could lead to unintended consequences.[162]

14.144 The Committee also makes a number of drafting recommendations in relation to the proposed draft of s 122 that was contained in Appendix 1 of DP 69.[163] The Commissions have substantially reviewed the drafting of that proposal since DP 69, and the comments of the Committee have been noted in that process.

The Commissions’ view

14.145 Section 122 as it is presently drafted is concerned with the intention of the holder of the privilege. At common law, the intention of the holder of the privilege may or may not be relevant; rather, it is the behaviour of the holder of the privilege that is of concern.[164]

14.146 The Commissions continue to favour the inclusion of additional criteria for waiver of ‘an act inconsistent with the maintenance of the privilege’.[165] This view is supported by a majority of submissions. In the Commissions’ view, the test of inconsistency under Mann v Carnell sits well with the underlying rationale the ALRC expressed for s 122—that the privilege should not extend beyond what is necessary, and that voluntary publication by the client should bring the privilege to an end.[166] The addition of that criterion for waiver gives the court greater flexibility to consider all the circumstances of the case.

14.147 The Commissions therefore recommend that the uniform Evidence Acts be amended to align s 122 (which sets out when client legal privilege under the uniform Evidence Acts is lost because of consent, or voluntary disclosure) more closely with the common law as set out in Mann v Carnell.[167] A draft provision is set out in Appendix 1.

Recommendation 6–5 Section 122(2) of the uniform Evidence Acts should be amended to provide that evidence may be adduced where a client or party has acted in a manner inconsistent with the maintenance of the privilege. The existing provisions should remain in a form appropriate to give guidance as to what acts are or are not acts inconsistent with the maintenance of the privilege.

Section 123: Loss of client legal privilege

14.148 Section 123 of the uniform Evidence Acts states that:

In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of:

(a) confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person; or

(b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person.

14.149 The result of s 123 is that the right of a party to claim client legal privilege is lost where the evidence is sought to be adduced by an accused in a criminal proceeding, unless the accused is seeking the evidence from a co-accused.[168] In most cases, the party claiming the privilege will be the prosecution.

14.150 In ALRC 26, the ALRC said that the privilege should be lost when it would result in the withholding of evidence relevant to the defence of an accused.[169] This position was based on the 1972 case of R v Barton,[170] which established an exception to legal professional privilege in criminal matters, where an otherwise privileged document might establish the innocence of the accused.[171]

14.151 In ALRC 38, following submissions which argued that the original statement was too broad, the recommendation was narrowed from the position in Barton to evidence adduced by a defendant in a criminal proceeding. The ALRC’s proposed provision also did not operate in respect of communications made between associated defendants and their lawyers. In ALRC 38, the ALRC stated: ‘it is proposed that the privilege should not apply to communications to the prosecution unless a client/legal adviser relationship is shown to exist between those involved in the communications’.[172]

14.152 In Carter v The Managing Partner Northmore Hale Davy and Leake (a common law case), the High Court disapproved of Barton, holding that a person who is in possession of documents, which are subject to legal professional privilege, cannot be compelled to produce them on a subpoena issued on behalf of an accused person in criminal proceedings, even though they may establish the innocence of the accused or materially assist his or her defence.[173]

14.153 In R v Pearson,[174] the New South Wales Court of Criminal Appeal considered s 123. Gleeson CJ observed that counsel had agreed that the practical effect of s 123 (when read together with s 118) was that client legal privilege does not stand in the way of obtaining access to subpoenaed documents ‘in circumstances where a legitimate forensic purpose of the accused at a criminal trial is served by being given access to such documents for the purpose of potential use at the trial’.

14.154 In its submission following IP 28, the NSW DPP noted that the current position is not entirely clear because the ALRC Reports did not canvass this particular issue and, despite the comments in Pearson, s 123 has not been the subject of any further judicial consideration.[175]

14.155 In Director of Public Prosecutions (Cth) v Kane,[176] the CDPP made a claim for legal professional privilege regarding an advice prepared by one of its solicitors. Section 123 was not considered in depth because it was conceded that an application for a stay was not a ‘criminal proceeding’ under the Evidence Act 1995 (NSW). However, Hunt CJ at CL stated that, under s 123, the ability to uphold the privilege against a defendant (which was available under the common law) was now lost. His Honour further noted that in order to override client legal privilege the communication must be relevant to the defendant’s criminal proceedings.[177] The communication sought was not deemed to be relevant to the committal proceedings.

14.156 As it presently stands, s 123 overrides client legal privilege in relation to evidence that is adduced by a defendant in criminal proceedings, and not, for example, the pre-trial production of documents on subpoena. As noted above, there is some confusion on this point arising from the decision in Pearson. Legal professional privilege under the common law might still provide a basis for resisting production of documents to an accused in criminal proceedings on the basis of the decision in Carter.

14.157 In DP 69, the Commissions noted that if the client legal privilege sections of the uniform Evidence Acts are extended to pre-trial matters, s 123 will remove the current common law right to claim legal professional privilege over documents prepared for the purpose of providing legal advice to the Director of Public Prosecutions. The NSW DPP submits that privilege arises most commonly in the context of pre-trial subpoenas, rather than in the context of the adducing of evidence by the defence at trial.[178]

14.158 The DPP could lose the common law right to claim legal professional privilege in relation to confidential documents containing advice from Crown Prosecutors, the private bar and the DPP’s solicitors. If the DPP did lose the right to claim privilege, the NSW DPP anticipates that ‘the defence will routinely subpoena such documents on the basis that it is “on the cards” that the advices will serve some legitimate forensic purpose in relation to the proceedings’.[179]

A fertile area for pre-trial applications will be created when our expectation is that very rarely, if ever, will the legal advice to the Director contain any relevant material which has not already been disclosed to the defence (in other documents, such as the statements of witnesses) pursuant to the prosecutor’s duty of disclosure.[180]

14.159 The NSW DPP submits that, if the uniform Evidence Acts are extended to pre-trial proceedings, s 123 should be amended to preserve the existing common law legal professional privilege of the prosecutor in pre-trial proceedings.

14.160 Section 123 overrides the client legal privilege created by s 118 or s 119. Client legal privilege only applies to communications between staff of a prosecutor or Crown prosecutors where a client and legal advisor relationship is shown to exist. It was noted in ALRC 26 that where s 123 renders client legal privilege unavailable, it does not mean that communications cannot be otherwise protected in appropriate cases, possibly by the operation of public interest immunity or a confidential communications privilege.[181]

14.161 ALRC 26 did not directly canvass the issue of whether s 123 allows the defendant to obtain legal advice provided to a prosecutor. However, it may be inferred from the above comment regarding public interest immunity that it was not envisaged that the defence would be able to adduce any such communication.

14.162 The extension of s 123 to pre-trial contexts may also have an impact beyond the difficulties for prosecutors described above. It would effectively overturn the decision in Carter and remove the basis on which any person could claim the privilege in response to a subpoena to produce documents from an accused. This would go against the narrowing of the proposal in ALRC 38, which expressly sought to limit the section to evidence adduced by a defendant in a criminal proceeding.

14.163 On that basis, two alternate proposals were put forward for consideration in DP 69. The first proposal addressed the issue of the availability of the privilege to a prosecutor. That is, if Proposal 13–1 in DP 69 is adopted, s 123 should be amended to preserve the availability of client legal privilege to any legal advice provided to a prosecutor. In the alternative, the Commissions asked whether, if Proposal 13–1 is adopted, s 123 could be exempted from the general extension of the client legal privilege sections to pre-trial matters and continue to apply only to evidence adduced at trial.[182]

Submissions and consultations

14.164 The Australian Government Attorney-General’s Department supports the view that client legal privilege should be available to advice provided to the prosecuting authorities in the same way, and to the same general extent, that it applies to any other legal advice.[183] The Australian Federal Police also supports the general intent of both proposals.[184]

14.165 The CDPP, whilst noting that it does not support extension of the Evidence Act to pre-trial matters, favours the first proposal rather than the alternative. In its view, there should be a clear statement that the privilege does not apply to confidential communications between prosecutors and the Director, rather than limiting the application of s 123.[185] The NSW DPP echoes this position.[186]

14.166 The Law Society of New South Wales supports the alternative proposal. It is of the view that defendants should be able to access any evidence that is exculpatory. The Society also notes that communications between staff of a prosecutor or Crown prosecutors that do not attract client legal privilege as a result of the operation of s 123 would, in appropriate cases, be protected by other means such as public interest immunity.[187]

14.167 The NSW PDO does not support the proposal on the basis that an accused should be able to access information in relation to charges. It believes the amendment is unnecessary as an accused seeking to use such material will face considerable hurdles. The accused will have to satisfy the judge that there is a legitimate forensic purpose in obtaining access to the material, and if there is sensitive material in the advice, a claim for public interest immunity could be made. The NSW PDO also argues that, in most cases, it would be very difficult for the accused to establish the relevance of material in the advice. If the material sought to be protected contains no relevant material, access to and use of the material will not be permitted. If the material sought to be protected is relevant to the case, then under the prosecution’s duty of disclosure it should have been disclosed to the accused in any event.[188]

The Commissions’ view

14.168 The Commissions agree that it would be undesirable if the extension of the privilege sections of the uniform Evidence Acts to pre-trial proceedings had the effect of abrogating client legal privilege in relation to any legal advice given to the DPP. The policy foundation of client legal privilege—frank and complete communication between lawyer and client—applies equally to the DPP. Given the obligation on the prosecution to reveal all material evidence, significant court time could be spent in applications by the defence to gain access to advice that will have little bearing on the substantive issues in the case. Counsel or solicitors may also feel constrained in the provision of their advice for the DPP if such information could be made available later.

14.169 The extension of s 123 to pre-trial contexts may also have an impact beyond the difficulties for prosecutors described above. It would effectively overturn the decision in Carter and remove the basis on which any person could claim the privilege in response to a subpoena to produce documents from an accused. This would go against the narrowing of the proposal in ALRC 38, which, as mentioned above, expressly sought to limit the section to evidence adduced by a defendant in a criminal proceeding. Whilst the first proposal would address the concerns raised by prosecutors, it leaves open the issue of the otherwise privileged material of other parties being open to access by the accused. The Commissions are concerned that there has not been adequate time to explore the full impact of such a change, and recommend keeping the original limitation on s 123 intended by the previous Evidence inquiry. Therefore if Recommendation 14–1 is adopted, s 123 should remain only applicable to the adducing of evidence at trial by an accused in a criminal proceeding.

Recommendation 6–6 If Recommendation 14–1 is adopted, s 123 of the uniform Evidence Acts should remain applicable only to the adducing of evidence at trial by an accused in a criminal proceeding.

Client legal privilege and government agencies

14.170 In response to IP 28, the New South Wales Ombudsman submits that serious thought should be given to whether client legal privilege should continue to be a basis for denying a ‘watchdog body’ access to documents.[189] The submission states that

it is open to question whether in fact client professional privilege is either necessary or effective in achieving its objective of ensuring frank and candid communication where public sector agencies and public officials are concerned. Further, the experience of the NSW Ombudsman has shown that the privilege can be abused and often serves little or no good purpose in practice.[190]

14.171 To address these issues, the New South Wales Ombudsman proposes two options for amending the uniform Evidence Acts:

  • incorporation of provisions of the uniform Evidence Acts that clearly abrogate the privilege in relation to investigations being conducted by watchdog bodies set up by Commonwealth, state or territory governments; or

  • amendments to the uniform Evidence Acts to provide that information and documents relating to accountability of government may not be withheld from disclosure to a statutory watchdog—for example, information and documents relating to the affairs of an agency or the conduct of public officials which: (i) contain or disclose information likely to contribute to positive and informed debate about issues of serious public interest; and (ii) contain or disclose information likely to assist the investigation of alleged misconduct or illegality by public sector agencies or officials.[191]

14.172 In DP 69, the Commissions accepted the New South Wales Ombudsman’s argument that the rationale for client legal privilege must be balanced against the clear public interest in open and accountable government. This balancing act has been discussed in many of the major cases where legal professional privilege has been claimed by government agencies, for example, in Waterford v Commonwealth.[192]

14.173 The uniform Evidence Acts are Acts of general application. An analogy can be drawn between the investigatory concerns of the Ombudsman and the arguments raised by regulatory agencies such as ASIC and the ACCC in relation to their investigations. As noted above, ALRC 95 acknowledged that there may be times when the public interest in the conduct of investigations overrides the public interest in client legal privilege. In those circumstances, the ALRC recommended that the privilege be expressly abrogated.[193] It expressed a preference for the view that such action be taken in the legislation of the agencies concerned, not the uniform Evidence Acts.

14.174 In DP 69, the Commissions asked whether the uniform Evidence Acts should abrogate client legal privilege in relation to investigations being conducted by watchdog agencies, such as the Commonwealth Ombudsman and state and territory ombudsmen. Alternatively, should the client legal privilege sections of the Acts be amended to create an exception for information and documents relating to the accountability of government?[194]

Submissions and consultations

14.175 There is general agreement in submissions and consultations that the abrogation of client legal privilege in relation to investigations by watchdog agencies is a matter for the particular statutes establishing those agencies.[195]

14.176 The AGS endorses the view of the Commissions in DP 69 and states that there is no reason to amend the uniform Evidence Acts. The AGS advises that at the Commonwealth level, s 9(4) of the Ombudsman Act 1976 (Cth) abrogates client legal privilege (and legal professional privilege) with respect to the Ombudsman’s power to obtain information or documents that would disclose legal advice given to a Commonwealth Minister, Commonwealth Department or prescribed authority.[196]

14.177 The Police Integrity Commission (PIC) also supports this view. It submits that, in relation to its own investigatory powers, the abrogation of client legal privilege is set out in detail within the legislation that sets out the Commission’s functions and powers. It also notes that under this approach, the privilege is not uniformly abrogated against all of the PIC’s powers, but more commonly in those powers that relate to hearings held for the purpose of an investigation. It considers that this permits the limitation or abrogation of privileges to be accomplished with some particularity and then only to the extent necessary with reference to the particular nature and functions of the relevant body.[197]

14.178 However, the NSW PDO submits that client legal privilege should be abrogated in relation to investigations conducted by watchdog agencies, such as the Ombudsman, but only in so far as it applies to legal professional privilege claimed on behalf of a government agency.[198] This view is shared by Victoria Police.[199]

The Commissions’ view

14.179 The Commissions remain of the view expressed in DP 69, that any abrogation of client legal privilege in relation to the particular investigatory difficulties of an agency should be expressly provided for in the legislation of that agency. It is noted in one submission that the extent of the abrogation must be limited to the extent necessary for each agency to carry out its own statutory purpose.[200] A provision placed in an Act of general application could result in unnecessary abrogation of the privilege in some instances.

14.180 On that basis, it is recommended that no change be made to the uniform Evidence Acts in this regard.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[33]Baker v Campbell (1983) 153 CLR 52.

[34] Ibid, 91. See also Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [877].

[35]Baker v Campbell (1983) 153 CLR 52, 116–117.

[36] See Attorney-General (NT) v Kearney (1985) 158 CLR 500; Evidence Act 1995 (Cth) s 125.

[37] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [877].

[38]Baker v Campbell (1983) 153 CLR 52, 128; See also ibid, [878].

[39]Baker v Campbell (1983) 153 CLR 52. See S McNicol, ‘Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted’ (1999) 18 Australian Bar Review 189, 189–190.

[40]Grant v Downs (1976) 135 CLR 674.

[41]Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.

[42] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [881].

[43]Baker v Campbell (1983) 153 CLR 52, 85. See also Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [438].

[44] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [877].

[45] S McNicol, Law of Privilege (1992), 52.

[46]Baker v Campbell (1983) 153 CLR 52, 132 (Dawson J).

[47] S McNicol, ‘Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted’ (1999) 18 Australian Bar Review 189, 189–190.

[48] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), 416.

[49] S McNicol, Law of Privilege (1992), 52.

[50] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–1.

[51] C Ying, Submission E 88, 16 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Justice R French, Consultation, Perth, 5 October 2005; Justice C Branson, Consultation, Sydney, 25 July 2005; Judicial Officers of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005. Submissions to IP 28 were also supportive of the proposal: ibid, [13.35]–[13.38].

[52] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[53] Criminal Bar Association of Victoria, Submission E 114, 22 September 2005.

[54] Australian Securities & Investments Commission, Submission E 97, 20 September 2005.

[55] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[56] Australian Federal Police, Submission E 92, 20 September 2005.

[57]Baker v Campbell (1983) 153 CLR 52.

[58] One particular concern regarding s 123 in the pre-trial context, raised in DP 69, is addressed below.

[59] The Australian Federal Police have general guidelines between themselves and the Law Council of Australia for the execution of search warrants on lawyer’s premises where a claim of legal professional privilege is made.

[60] Particularly, if the recommendations for amendment in this Report are adopted.

[61] This provision gives the ACCC wide powers to require the production of documents, written information and/or evidence to be given by any person who has documents or information that relate to a suspected contravention of the Trade Practices Act.

[62]The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, [11].

[63] Australian Law Reform Commission, Principled Regulation: Federal and Civil Administrative Penalties in Australia, ALRC 95 (2002), Ch 19.

[64] Ibid, [19.48].

[65] Ibid, Rec 19–4.

[66] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.50]. See S McNicol, ‘Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted’ (1999) 18 Australian Bar Review 189; J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), 417.

[67] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposals 13–2 and 13–3.

[68] S McNicol, Consultation, Melbourne, 17 March 2005.

[69] Ibid.

[70]Waterford v Commonwealth (1987) 163 CLR 54.

[71] Ibid, 360 cited in S McNicol, Law of Privilege (1992), 78.

[72]Waterford v Commonwealth (1987) 163 CLR 54, 356 cited in S McNicol, Law of Privilege (1992), 78.

[73]Australian Securities and Investments Commission v Rich [2004] NSWSC 1089, [41].

[74]Southern Equities Corporation Ltd (in Liq) v Arthur Andersen & Co (No 6) [2001] SASC 398, [11].

[75] The issue of independence and competence is discussed further below.

[76] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–2.

[77] Justice R French, Submission E 119, 6 October 2005; Australian Securities & Investments Commission, Submission E 97, 20 September 2005; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[78] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[79] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[80] Uniform Evidence Acts s 3.

[81] See, eg, S McNicol, Consultation, Melbourne, 17 March 2005.

[82]Vance v McCormack (2004) 154 ACTR 12. This case concerned advice given by legal and military officers employed by the Department of Defence.

[83] Crispin J determined that this case concerned an application for an order to produce documents for inspection pre-trial, so the common law of legal professional privilege applied rather than the uniform Evidence Acts.

[84]Vance v McCormack (2004) 154 ACTR 12, [38]–[40].

[85]Ibid [28], citing, eg, Legal Practitioners Act 1970 (ACT) s 22; Legal Profession Act 1987 (NSW) s 25; Legal Practice Act 1996 (Vic) s 314.

[86]Commonwealth v Vance [2005] ACTCA 35. The ACT Court of Appeal found that Supreme Court Rules 1937 (ACT) O 34, r 3 applied the Evidence Act 1995 (Cth) pre-trial.

[87] Ibid, [20].

[88] Ibid, [21].

[89] Ibid, [28].

[90] Ibid, [30].

[91]Australian Hospital Care v Duggan (No 2) [1999] VSC 131.

[92] Ibid, [35]­–[59]. See, eg, Attorney-General (NT) v Kearney (1985) 158 CLR 500 and Waterford v Commonwealth (1987) 163 CLR 54.

[93]Australian Hospital Care v Duggan (No 2) [1999] VSC 131, [54]. This view was also espoused in Australian Securities and Investments Commission v Rich [2004] NSWSC 1089. See also Brennan J in Waterford v Commonwealth (1987) 163 CLR 54, 71: ‘If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. ... Independent, in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which privilege is granted will be subverted’.

[94]Australian Hospital Care v Duggan (No 2) [1999] VSC 131, [99]­.

[95]Kennedy v Wallace (2004) 142 FCR 185.

[96] This case concerned the common law as it was in relation to a pre-trial application.

[97]Kennedy v Wallace (2004) 142 FCR 185, 220.

[98] Ibid, 220.

[99] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–3.

[100] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Australian Government Solicitor, Submission E 28, 18 February 2005.

[101] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[102] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[103] NSW Law Society Litigation Law and Practice Committee, Consultation, Sydney, 26 August 2005; Justice R French, Consultation, Perth, 5 October 2005; Judicial Officers of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005.

[104] Australian Securities & Investments Commission, Submission E 97, 20 September 2005; Attorney-General’s Department, Submission E 117, 5 October 2005.

[105] See Legal Profession Act 2004 (Qld), Legal Profession Act 2004 (Vic) and Legal Profession Act 2004 (NSW). Other states and territories are expected to follow.

[106] See, for example, Legal Profession Act 2004 (NSW) s 5.

[107] Ibid s 6.

[108] Victoria Police, Submission E 111, 30 September 2005.

[109] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.10340].

[110] As provided for under the uniform Evidence Acts s 118.

[111] As provided for under the uniform Evidence Acts s 119.

[112]Kennedy v Wallace (2004) 142 FCR 185, 192.

[113] Ibid, 142.

[114] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.91].

[115]Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217.

[116]Pratt Holdings Pty Ltd v Commissioner of Taxation (2003) 195 ALR 717, [39]. See V Morfuni, ‘Legal Professional Privilege and the Government’s Right to Access Information and Documents’ (2004) 33 Australian Taxation Review 89, 107.

[117]Pratt Holdings Pty Ltd v Commissioner of Taxation (2003) 195 ALR 717, [54]. See also J O’Neill, ‘Loosening the Shackles on Advice Privilege’ (2004) 42(8) Law Society Journal 60, 60 from which the quotation is taken.

[118] J O’Neill, ‘Loosening the Shackles on Advice Privilege’ (2004) 42(8) Law Society Journal 60, 60.

[119]Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217, [42].

[120] Ibid, [106].

[121] Ibid, [42], [104]; see V Morfuni, ‘Legal Professional Privilege and the Government’s Right to Access Information and Documents’ (2004) 33 Australian Taxation Review 89, 108.

[122]Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217, [87] (Stone J).

[123] Ibid, [107].

[124] J O’Neill, ‘Loosening the Shackles on Advice Privilege’ (2004) 42(8) Law Society Journal 60, 60.

[125] S McNicol, Consultation, Melbourne, 17 March 2005.

[126]The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 564.

[127]Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217, [86].

[128] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–4.

[129] Australian Government Solicitor, Submission E 94, 16 September 2005.

[130] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[131] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[132] Justice R French, Consultation, Perth, 5 October 2005.

[133] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[134] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [882].

[135]Pratt Holdings Pty Ltd v Commissioner of Taxation (2003) 195 ALR 717, [72].

[136] T Wilson, ‘The House of Lords Clarifies Purpose and Scope of Advice Privilege’ (2005) 32(3) Brief 21, 22.

[137] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [885].

[138]Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation (1997) 42 NSWLR 351, 389.

[139]Director of Public Prosecutions (Cth) v Kane (1997) 140 FLR 468, 481.

[140]Ampolex v Perpetual Trustee Co Limited (1996) 40 NSWLR 12, 18–19.

[141] A Ligertwood, Australian Evidence (4th ed, 2004), 296.

[142]Attorney-General (NT) v Maurice (1986) 161 CLR 475, 488.

[143]Mann v Carnell (1999) 201 CLR 1, 13, citing Goldberg v Ng (1995) 185 CLR 83, 95.

[144]Goldberg v Ng (1995) 185 CLR 83, 96.

[145]Mann v Carnell (1999) 201 CLR 1, 13. See also A Ligertwood, Australian Evidence (4th ed, 2004), 296.

[146]DSE (Holdings) Pty Ltd v Interan Inc (2003) 127 FCR 499, [14].

[147]SQMB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 392. See also M Edelstein, ‘Legal Professional Privilege’ (2004) 78(11) Law Institute Journal 54, 57.

[148]SQMB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 392, [17].

[149]Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346, 351.

[150]Perpetual Trustees (WA) v Equuscorp Pty Limited [1999] FCA 925.

[151]Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360.

[152]Telstra Corporation v BT Australasia (1998) 85 FCR 152.

[153] Ibid, 168.

[154] Australian Government Solicitor, Submission E 28, 18 February 2005. Although in DSE (Holdings) Pty Ltd v Interan Inc (2003) 127 FCR 499, [5], [95] Allsop J was of the view that the majority test in Telstra was based on the traditional common law considerations of fairness, and therefore narrowed by Mann v Carnell.

[155]Carnell v Mann (1998) 89 FCR 247, 257.

[156] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.132].

[157] S McNicol, ‘Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted’ (1999) 18 Australian Bar Review 189, 202.

[158] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.11040].

[159]Mann v Carnell (1999) 201 CLR 1, 40.

[160] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–5.

[161] Justice R French, Submission E 119, 6 October 2005; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Australian Government Solicitor, Submission E 28, 18 February 2005. The NSW PDO states that it does not oppose the proposal: New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[162] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[163] Ibid.

[164] S McNicol, Consultation, Melbourne, 17 March 2005. For example, SQMB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 392 which held that waiver can take place even where there is no subjective intention on the part of the client to waive the privilege.

[165] This approach received some support in consultations: A Palmer, Consultation, Melbourne, 16 March 2005.

[166] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [885].

[167]Mann v Carnell (1999) 201 CLR 1.

[168]R v Pearson (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996).

[169] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [885].

[170]R v Barton [1972] 2 All ER 1192.

[171] S McNicol, Law of Privilege (1992), 101.

[172] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [195].

[173] Carter v The Managing Partner Northmore Hale Davy and Leake (1995) 183 CLR 121.

[174] R v Pearson (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996).

[175] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[176] Director of Public Prosecutions (Cth) v Kane (1997) 140 FLR 468.

[177] Ibid, 478.

[178] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[179] Ibid.

[180] Ibid.

[181] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [886].

[182] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–6 and Alternative Proposal 13–6.

[183] Attorney-General’s Department, Submission E 117, 5 October 2005.

[184] Australian Federal Police, Submission E 92, 20 September 2005.

[185] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[186] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[187] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[188] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[189] NSW Ombudsman, Submission E 13, 27 January 2005.

[190] Ibid.

[191] Ibid. A number of other examples were given in the submission.

[192]Waterford v Commonwealth (1987) 163 CLR 54.

[193] Australian Law Reform Commission, Principled Regulation: Federal and Civil Administrative Penalties in Australia, ALRC 95 (2002), [19.48].

[194] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Q 13–1.

[195] Justice R French, Submission E 119, 6 October 2005; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Justice C Branson, Consultation, Sydney, 25 July 2005; Judicial Officer of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005.

[196] Australian Government Solicitor, Submission E 28, 18 February 2005.

[197] Police Integrity Commission, Submission E 99, 16 September 2005.

[198] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[199] Victoria Police, Submission E 111, 30 September 2005.

[200] Justice R French, Submission E 119, 6 October 2005.