A common law right

12.12  Legal professional privilege is an important common law right. It allows a person to ‘resist the giving of information or the production of documents which would reveal communications 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’.^[2] It has been described as ‘fundamental to the due administration of justice’.^[3]

12.13  This chapter discusses the rationales for the privilege, its history and scope, and the protections that are available from statutory encroachment. It also identifies some laws that encroach on the privilege, and discusses the justifications offered for those encroachments. The common law privilege is less relevant to trial procedures, as the statutory privilege has largely taken its place. Accordingly, this chapter will focus on laws that require production of information or documents to government agencies with coercive information-gathering powers.

Rationale

12.14  The rationale most commonly given for the privilege is an instrumental one—that it serves the administration of justice by encouraging full and frank disclosure by clients to their lawyers.^[4] Without a relationship of confidence and trust between a lawyer and a client, a person may choose not to engage a lawyer, or not to reveal all of the facts to their lawyer. The rationale is set out in detail in Baker v Campbell:

It is necessary for the proper conduct of litigation that the litigants should be represented by qualified and experienced lawyers rather than that they should appear for themselves, and it is equally necessary that a lawyer should be placed in full possession of the facts to enable him to give proper advice and representation to his client. The privilege is granted to ensure that the client can consult his lawyer with freedom and candour, it being thought that if the privilege did not exist ‘a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case’.^[5]

12.15  In Carter v Northmore Hale Davey & Leake, Toohey J emphasised the instrumental nature of the privilege:

Important, indeed entrenched, as legal professional privilege is, it exists to serve a purpose, that is to promote the public interest by assisting and enhancing the administration of justice. It is not an end in itself.^[6]

12.16  The ALRC’s 2008 Privilege in Perspective report identified the following potential benefits arising from the privilege:

• encouraging full and frank disclosure;

• encouraging compliance with the law—because a lawyer in possession of all the facts can more effectively provide appropriate advice;

• discouraging litigation and encouraging settlement—because a fully briefed lawyer can better advise the client about their prospects in court; and

• promoting the efficient operation of the adversarial system—because a party should gather their own evidence, not merely subpoena the work done by another.^[7]

12.17  An alternative, rights-based, rationale for the privilege is sometimes offered. The privilege is said to protect individual rights, such as the right to privacy and the right to consult a lawyer.^[8] Justice Kirby has described the privilege as ‘an important human right deserving of special protection’^[9] and, in Esso Australia Resources v Commissioner of Taxation (Esso), he spoke about the fundamental purpose of the privilege:

It arises out of ‘a substantive general principle of the common law and not a mere rule of evidence’. Its objective is ‘of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law’. It defends the right to consult a lawyer and to have a completely candid exchange with him or her. It is in this sense alone that the facility is described as ‘a bulwark against tyranny and oppression’ which is ‘not to be sacrificed even to promote the search for justice or truth in the individual case’.^[10]

12.18  Murphy J in Baker v Campbell emphasised the protection of a client’s privacy from the intrusion of the state:

The client’s legal privilege is essential for the orderly and dignified conduct of individual affairs in a social atmosphere which is being poisoned by official and unofficial eavesdropping and other invasions of privacy. ^[11]

12.19  In the same case, Wilson J commented that the ‘adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society’.^[12]

12.20  As with the privilege against self-incrimination,^[13] legal professional privilege is sometimes said to be a necessary part of an adversarial system of justice.^[14] However, this rationale has not featured expressly in recent judgments of Australian courts.

12.21  Regardless of which rationale is adopted, the courts have been clear that the privilege is not to be weighed against other competing rights and interests, such as the public interest in having all relevant information before the court. In Esso, the court said

… legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required.^[15]

12.22  The rationale that is relied upon for the privilege may have consequences when considering justifications for abrogating it. If the privilege is seen as having an instrumental justification, for example, then evidence that the privilege does not in fact contribute to the administration of justice would be relevant.^[16] If the predominant justification is the protection of individual liberties and human rights, however, then withholding the privilege from companies and state agencies might be easier to justify.^[17]

History and scope

12.23  Legal professional privilege has existed for over 400 years in English law.^[18] Indeed American legal historian, Professor John Wigmore, described the privilege as ‘the oldest of the privileges for confidential communications’.^[19] Despite its age, it has undergone considerable change and development in recent times. The Administrative Review Council noted in 2008 that legal professional privilege continues to be an ‘evolving and often contentious area of the law’.^[20]

12.24  The privilege may have been developed by the courts as a mechanism to underscore the ‘professional obligation of the barrister or attorney to preserve the secrecy of the client’s confidences’.^[21] The privilege is now separate from the lawyer’s duty to maintain confidentiality^[22] and its name has been described as ‘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’.^[23]  The name of the statutory privilege, client legal privilege, reflects the understanding that the privilege is that of the client, and can only be waived by the client. However in this Inquiry, the ALRC has referred to legal professional privilege as this phrase refers specifically to the common law privilege.

12.25  When the principles relating to legal professional privilege were developed, it was confined to legal proceedings, because at that time, there were no powers to compel the giving of information or documents other than those that were available in legal proceedings.^[24] However, the scope of the common law privilege expanded significantly in the 20th century to take account of new government agencies empowered with coercive information-gathering powers.^[25] The courts have indicated that the privilege is not merely a rule of evidence—which would only be available in judicial proceedings—but a rule of substantive law.^[26] It is therefore available to resist a demand for information or documents made by any agency with coercive information-gathering powers.^[27] 

12.26  The privilege was limited in its scope by the High Court in the 1976 case of Grant v Downs, where it was held that the privilege only protected documents brought into existence for the sole purpose of obtaining legal advice or use in legal proceedings.^[28] However, in 1991 the High Court rejected the sole purpose test and expanded the scope of the privilege to documents brought into existence for the dominant purpose of seeking legal advice.^[29] This brought the Australian common law into line with England, New Zealand, Ireland and Canada.^[30]

12.27  The High Court was also influenced by the development of a statutory privilege. In 1985, the ALRC recommended uniform comprehensive laws of evidence, and suggested that a dominant purpose test would strike the correct balance.^[31] Five Australian jurisdictions now have such a statutory privilege, known as client legal privilege. This privilege is relevant only to the admissibility of communications into evidence, and in New South Wales, to pre-trial procedures, but not to non-judicial demands for disclosure.^[32] In other situations, the common law privilege is available.

12.28  The privilege is not available to protect communications between a client and lawyer in the furtherance of wrongdoing.  This limitation is sometimes known as ‘the fraud exception’ and it withdraws protection from communications in furtherance of the commission of a crime or the abuse of a statutory power, or where a claim would frustrate the process of law.^[33] It also excludes communications made for illegal or improper purposes, trickery and shams.^[34] It is ‘sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest’.^[35]