31.07.2015
Australian Constitution
13.23 While the Australian Constitution contains no express provision in respect of client legal privilege, the High Court has yet to consider whether it is protected with respect to the exercise of judicial power by any implication arising from Ch III of the Constitution.
Principle of legality
13.24 The principle of legality provides some protection to client legal privilege.[45] When interpreting a statute, courts will presume that Parliament did not intend to interfere with client legal privilege, unless this intention was made unambiguously clear.[46] In Baker v Campbell, Deane J said:
It is to be presumed that if the Parliament intended to authorize the impairment or destruction of that confidentiality by administrative action it would frame the relevant statutory mandate in express and unambiguous terms.[47]
International law
13.25 Article 14 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to a fair and public trial but also a limited right to privacy in relation to proceedings.[48] This suggests communications between clients and lawyers should be treated as confidential.
13.26 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[49] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[50]
Bills of rights
13.27 In some jurisdictions, bills of rights or human rights statutes provide some protection to certain rights and freedoms. The Victorian Charter of Human Rights and Responsibilities provides that a person has the ‘right not to have his or her privacy or correspondence unlawfully or arbitrarily interfered with’[51] and the right to a fair hearing and to communicate with his or her lawyer in criminal proceedings.[52] The ACT’s Human Rights Act provides protection for a fair hearing.[53]
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[45]
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 1.
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[46]
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, [106] (Kirby J); Valantine v Technical and Further Education Commission (2007) 97 ALD 447, [37] (Gzell J; Beazley J and Tobias JJA agreeing). Legislative intention to displace the privilege may be clearer where the privilege against self-incrimination is also abrogated: Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319.
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[47]
Baker v Campbell (1983) 153 CLR 52, 117 (Deane J).
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[48]
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.
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[49]
Minister for Immigration v B (2004) 219 CLR 365, 425 [171] (Kirby J).
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[50]
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed more generally in Ch 1.
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[51]
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13a.
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[52]
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24–25.
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[53]
Human Rights Act 2004 (ACT) s 21.