Protections from statutory encroachment

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]