13.95 There are some provisions in Commonwealth laws that abrogate client legal privilege.
13.96 The ALRC’s 2008 Privilege in Perspective reportidentified provisions in the empowering statutes of some Commonwealth coercive information-gathering bodies that abrogate client legal privilege. That report made recommendations—many of which have not yet been adopted—concerning the circumstances in which client legal privilege may be abrogated. Some of the laws identified in that report and in this chapter may warrant further review by an appropriate body, to ensure they do not unjustifiably abrogate client legal privilege. These provisions arise in many different areas of law.
13.97 There is some guidance—from departmental and other material such as the Guide to Framing Commonwealth Offences—on the circumstances when client legal privilege may be abrogated. The Administrative Review Council offers one such guide. In its 2008 report into the Coercive Information-Gathering Powers of Government Agencies, the Council stated:
Client legal privilege and the privilege against self-incrimination—including the privilege against self-exposure to penalty—are fundamental principles that should be upheld through legislation … Legislation should clearly state whether or not the privileges are abrogated and when, how and from whom the privileges (including a use immunity) may be claimed.
13.98 Many of the provisions identified in this chapter include statutory protections by way of use and derivative use immunities to protect witnesses and individuals who are compelled to disclose information that may be subject to claims of client legal privilege. As discussed, the conferral of statutory protections may—in some circumstances—justify the abrogation of client legal privilege.
13.99 Stakeholders to this Inquiry raised surveillance and access provisions in telecommunications data retention laws and in some criminal laws, arguing that such laws may be characterised as abrogating client legal privilege. However, in the absence of a clear and unambiguous legislative intention to abrogate client legal privilege, these laws arguably do not abrogate the privilege.