Legal professional privilege and Commonwealth investigatory bodies
- the fact that legal professional privilege is a common law privilege
- the fact that legal professional privilege, like other common law rights, can be modified or abrogated by legislation in cases where the legislature affords a competing public interest consideration a higher relative priority
- the fact that questions of legal professional privilege commonly arise in relation to the exercise of coercive information gathering powers by Commonwealth bodies
- the many different forms of Commonwealth statutory provisions affecting the question of legal professional privilege in that context, and
- the provisions of the Evidence Act 1995 dealing with client legal privilege
refer to the Australian Law Reform Commission (‘the Commission’) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the application of legal professional privilege to the coercive information gathering powers of Commonwealth bodies.
1. In performing its functions in relation to this reference, the Commission will:
- consider the investigatory or associated functions of Commonwealth bodies that have coercive information gathering or associated powers including the Australian Federal Police, Australian Crime Commission, Australian Competition and Consumer Commission, Australian Prudential Regulation Authority, Australian Securities and Investments Commission, Australian Taxation Office, Australian Communications and Media Authority, Centrelink, Medicare Australia, Commonwealth royal commissions, Commonwealth Director of Public Prosecutions, and any other relevant Commonwealth bodies, and
- consider the following questions:
(i) would further modification or abrogation of legal professional privilege in some areas be desirable in order to achieve more effective performance of Commonwealth investigatory functions?
(ii) would it be desirable to clarify existing provisions for the modification or abrogation of legal professional privilege, with a view to harmonising them across the Commonwealth statute book?
(iii) would it be desirable to introduce or clarify other statutory safeguards where legal professional privilege is modified or abrogated, with a view to harmonising them across the Commonwealth statute book? and
(iv) any related matter.
2. The Commission will identify and consult with relevant stakeholders.
3. The Commission is to report no later than 3 December 2007.*
Dated: 29th November 2006
* In a letter dated 6 December 2007, Attorney-General Robert McClelland MP agreed to extend the reporting date for the Inquiry to 24 December 2007.