12.88  Commonwealth laws that abrogate legal professional privilege are rare. Some Commonwealth laws allow agencies to require a person to produce privileged documents or information. However, the material produced is not admissible in proceedings against the person. The ALRC does not consider further review of these laws is necessary.

12.89  Some Commonwealth laws allow or require the monitoring of communications between a person and their lawyer. While it is arguable that these laws do not limit legal professional privilege, they do interfere with its underlying rationale, that communications between lawyer and client should be confidential. They may also be characterised as interfering with the right to legal assistance and representation, an important element of the right to a fair trial. The following laws could be further reviewed:

  • Criminal Code s 105.38(1) which requires contact between a lawyer and a detained person to be capable of being monitored; and

  • ASIO Act s 34ZQ(2) which requires contact between a lawyer  and a person the subject of a questioning or detention warrant to be capable of being monitored.