Laws that abrogate legal professional privilege

12.54  Commonwealth laws that abrogate legal professional privilege are rare. For example, this Inquiry has identified five that could be broadly described as concerning open government and two concerning crime and the proceeds of crime. Despite the large number of Commonwealth agencies with coercive information-gathering powers, none has the power to require the production of privileged material. The one exception in Commonwealth law, and it is of historic relevance only, was the power of ASIC to require the production of privileged material in the James Hardie asbestos investigation and prosecution.

12.55  Stakeholders also raised concerns about laws that affect the right to confidential legal advice: mandatory data retention laws; and statutory access to communications between lawyers and individuals suspected of terrorism-related offences. It is not clear that these laws encroach upon legal professional privilege, but they do represent an infringement on the right to confidential legal advice.

Open government and accountability in decision-making

12.56  Documents over which legal professional privilege could be claimed do not have to be produced under the Freedom of Information Act 1982 (Cth).[71] Howeverthere are some Commonwealth laws that abrogate legal professional privilege by compelling individuals to produce evidence or information to government oversight bodies such as the Commonwealth Ombudsman. The purpose of these laws is to strengthen oversight and promote transparency in government decision-making. The following laws abrogate legal professional privilege, but provide that the privileged material is not admissible against the person:

  • Ombudsman Act 1976 (Cth) s 9(4)(ab)(ii)—the Ombudsman may require a person to furnish information or produce documents, and legal professional privilege cannot be used as an excuse to avoid producing those documents. The information or document is not admissible in evidence against the person who produced it, and the statute does not affect any claim of privilege that anyone may make: ss 7A(1B), (1E), 8(2B), (2E), 9(5A).

  • Crimes Act 1914 (Cth) s 3ZZGE(1)(d)(ii)—legal  professional privilege is not an excuse for not disclosing information to the Commonwealth Ombudsman regarding the inspection of a prescribed Commonwealth agency’s records. Information, answers or documents given are not admissible except for prosecutions for unauthorised disclosures under s 3ZZHA or pt 7 of the Criminal Code (Cth).

  • Crimes Act s 15HV—legal  professional privilege is not an excuse for not giving information, answering a question or giving access to a document to the Commonwealth Ombudsman regarding controlled operations. Privileged material is not admissible except for prosecutions for unauthorised disclosures, and the statute does not affect claims for legal professional privilege that anyone may make:  s 15HV(2), (5).

  • Law Enforcement Integrity Commissioner Act 2006 (Cth) s 96(5)—where a person is summoned to give evidence at a hearing before the Commissioner, they are not excused from answering a question or producing a document or information on public interest grounds that it would disclose a communication between an officer of a Commonwealth body and another person that is protected by legal professional privilege. The privilege may still be claimed in other proceedings.

  • Inspector-General of Intelligence and Security Act 1986 (Cth) s 18—a person is not excused from giving information, producing a document or answering a question on the basis that it would disclose legal advice given to a Minister or a Commonwealth agency, but the material is not admissible in evidence against the person (with some exceptions).

Crime and the proceeds of crime

12.57  Section 3ZQR of the Crimes Act 1914 (Cth) provides that a person cannot rely on legal professional privilege to avoid producing a document, information or other evidence related to a serious terrorism offence. This evidence is inadmissible in future proceedings against the person. The Explanatory Memorandum did not explain why the privilege was abrogated.[72]

12.58  Section 206 of the Proceeds of Crime Act 2002 (Cth) provides that a person cannot rely on legal professional privilege to avoid producing a document. The document is not admissible in evidence in a criminal proceeding against the person, except in proceedings regarding providing false or misleading information. The Explanatory Memorandum did not explain why the privilege was abrogated, or why the statutory protection only extends to criminal proceedings, and not civil proceedings.[73]

Coercive information-gathering powers of government agencies

12.59  Commonwealth agencies, including the Australian Crime Commission, the Australian Competition and Consumer Commission, the ASIC and the Australian Taxation Office (ATO), have statutory coercive information-gathering powers, enabling them to investigate complaints and initiate inquiries into illegal activities such as corruption. Statutory officers are often empowered to compel witnesses to provide documents, information or evidence. None of these statutes include explicit abrogation of legal professional privilege, and therefore the privilege is preserved.[74]

12.60  There has been some doubt about whether the Australian Securities and Investments Commission Act 2001 (Cth) abrogates legal professional privilege.[75] In Corporate Affairs Commission (NSW) v Yuill, the High Court held that the compulsory examination powers of the Corporate Affairs Commission of NSW (a precursor to ASIC) abrogated legal professional privilege.[76] The High Court in Daniels cast doubt on Yuill but did not overturn it.[77] Associate Professor Tom Middleton has argued that the issue remains unresolved.[78] Since 3 December 2007, ASIC has notified persons subject to compulsory powers that they are not required to provide documents or information that are subject to privilege[79] and its Information Sheet 165 indicates that a person may withhold information that attracts a valid claim of legal professional privilege.[80] If a person makes a statement at an examination that discloses information that might attract a claim of privilege, and the person objects to the admission of that evidence, then it is not admissible against them.[81]

12.61  The James Hardie (Investigations and Proceedings) Act 2004 (Cth) provided that legal professional privilege may be abrogated in relation to a James Hardie investigation or proceeding, or James Hardie ‘material’. This allowed ASIC and the Commonwealth DPP to obtain and use records produced to the James Hardie Special Commission of Inquiry and produced under ASIC’s information-gathering powers.

12.62  This Act was passed after the report by DF Jackson QC included observations about ‘claims for legal professional privilege that [the witness] knew could not honestly be made’.[82] The Explanatory Memorandum for the James Hardie (Investigations and Proceedings) Bill 2004 outlined the policy justification for the abrogation of legal professional privilege in that Bill:

Any uncertainty over the power to obtain and use privileged material has the potential to severely inhibit ASIC’s ability to exercise efficiently its information-gathering and investigative powers in relation to the conduct that gave rise to the James Hardie Special Commission of Inquiry.

The community must have confidence in the regulation of corporate conduct, financial markets and services. This confidence would be undermined if ASIC was unduly inhibited in its ability to obtain and use material necessary to conduct investigations … In relation to matters concerning, or arising out of, the James Hardie Special Commission of Inquiry, the Government considers that it is clearly in the public interest that any investigation and subsequent action by ASIC and the DPP be unfettered by claims of legal professional privilege.[83]

12.63  Section 6 provides that this does not create a general abrogation of legal professional privilege.

12.64  The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny of Bills Committee) drew attention to s 4 of the Bill, noting that it

would abrogate legal professional privilege in relation to a wide range of records and books connected with the Special Commission of Inquiry conducted in New South Wales into the conduct of the James Hardie Group of companies. In his second reading speech the Treasurer acknowledges that ‘legal professional privilege is … an important common law right’ that ought to be abrogated only in special circumstances, but goes on to assert that such abrogation is justified ‘in order to serve higher public policy interests’ such as the ‘effective enforcement of corporate regulation’.[84]

12.65  The use of compulsory examination powers by regulatory agencies may result in the inadvertent disclosure of privileged communications, and the subsequent loss of privilege.[85] AWB Ltd raised this concern when its employees were subject to compulsory examination during the Oil for Food investigation. Subsequent litigation resulted in a settlement in which ASIC agreed to allow AWB access to transcripts of interviews in order to ensure the protection of privileged information.[86]

12.66  The access and information-gathering powers of the ATO are subject to legal professional privilege, so that privileged documents or communications need not be disclosed or produced to the ATO, whether in response to those powers or to an informal request.[87] The ATO must, in the exercise of its powers, ensure that a reasonable opportunity to claim the privilege is provided.[88]

Monitoring and surveillance

12.67  Stakeholders have raised concerns that laws that allow monitoring of contact between a person and their lawyer, or require the retention of telecommunications metadata to be retained and accessed, encroach upon legal professional privilege.[89] It is not clear that the common law privilege protects confidential communications from monitoring and surveillance. The privilege is usually described as a right to resist demands for documents or information made by judicial or administrative bodies,[90] although it is sometimes conceived more broadly as a protection of the confidentiality of communications between clients and lawyers.[91]

12.68  The Full Federal Court appeared to take the latter approach in Carmody v Mackellar. It was asked to consider whether the Telecommunications (Interception) Act 1979 (Cth) empowers a person to issue warrants authorising the interception of communications between lawyer and client. The court assumed that the privilege would protect such communications from interception and held the statute must be construed so as to abrogate the privilege, because it would be unworkable otherwise.[92]

12.69  Monitoring and surveillance of communications between a person and their lawyer might also be seen as an encroachment on the right to legal representation, as an essential element of legal assistance is that it is confidential. The right to legal representation is an important fair trial right, and is discussed further in Chapter 8.

12.70  The United Nations Human Rights Committee warned against ‘severe restrictions or denial’[93] of this right for individuals to communicate confidentially with their lawyers:

Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications.[94]

12.71  Some Commonwealth laws require the monitoring of communications between a lawyer and a client.

Monitoring contact under preventative detention orders

12.72  Section 105.38(1) of the Criminal Code requires that any contact between a lawyer and a person being detained under a preventative detention order must be capable of being ‘effectively monitored by a police officer’. Communications that are for the purposes listed in s 105.37(1), which include obtaining legal advice about limited matters, are not admissible against the detained person.[95]    

12.73  The Law Council submitted that ‘such restrictions could create unfairness to the person under suspicion by preventing a full and frank discussion between a client and his or her lawyer and the ability to receive relevant legal advice’.[96]

Monitoring contact under questioning or detention warrant

12.74  Section 34ZQ(2) of the Australian Security Intelligence Organisation Act 1979 (Cth) requires that contact between a lawyer and a person who is the subject of a questioning or detention warrant ‘must be made in a way that can be monitored’. The provision is said not to affect the law relating to legal professional privilege.[97]

12.75  The Explanatory Memorandum to the ASIO Legislation Amendment (Terrorism) Bill 2002 that introduced s 34ZQ(2) did not provide specific justification for the monitoring requirement, other than a general statement that the Bill will ‘assist in the investigation of terrorism offences’.[98]

12.76  The Law Council’s submission to the Independent National Security Legislation Monitor’s Inquiry into questioning and detention warrants commented on the operation of s 34ZQ(2). It expressed concern that persons detained be entitled to a lawyer without that communication being monitored or otherwise restricted. The Law Council stated that, ‘unless detainees can freely access legal advice and communicate confidentially with their lawyer, there are no practical means to challenge any ill-treatment’.[99]

Listening devices and telephone intercepts

12.77  The Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act) and the Surveillance Devices Act 2004 (Cth) do not explicitly refer to the privilege. As noted above, the court has held that these statutes abrogate the privilege, ‘at least to the extent necessary to permit interception’.[100] Section 79 of the TIA provides that evidence that is otherwise inadmissible is not rendered admissible, thus preserving the privilege in its application to judicial proceedings.

Telecommunications data retention

12.78  The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2014 (Cth) amended the TIA Act to introduce a mandatory data retention scheme. The scheme requires service providers to retain some telephone and web data for two years.

12.79  The statement of compatibility with human rights that accompanied the amending Bill acknowledged that the Bill engages and limits the right to privacy. The statement identifies the object of the legislation as being ‘the protection of national security, public safety, [and] addressing crime’.[101]

12.80  Several stakeholders raised concerns about whether the legislation abrogated legal professional privilege.[102] The National Association of Community Legal Centres (NACLC), for example, argued that the Bill did not appear to protect communications between client and lawyer and therefore appears to be an unjustifiable encroachment on legal professional privilege.[103] Australian Lawyers for Human Rights proposed that the Bill include exemptions for lawyer/client communications,[104] and NACLC proposed that consideration be given to requiring agencies to obtain a warrant to access a lawyer’s metadata.[105]

12.81  In evidence and submissions to the Parliamentary Joint Committee on Intelligence and Security’s Advisory Report on theTelecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, several stakeholders raised concerns about the potential abrogation of legal professional privilege under that Bill. For instance, the Law Institute of Victoria provided evidence to the Committee that

telecommunications data is capable of revealing substantial information, and this could include information about communications between a lawyer and their client. For example, information exchanged by email or calls about potential witnesses between the lawyer and associates of the client, experts or other relevant parties, could disclose a defence case. A litigation strategy or case theory could be identified based on witnesses or experts contacted by the lawyer.[106]

12.82  Similarly, the Law Council submitted to the Committee that, although telecommunications data alone may not reveal the content or substance of lawyer/client communications, it would, at the very least, be able to provide an indication of whether:

  • a lawyer has been contacted;

  • the identity and location of the lawyer;

  • the identity and location of witnesses; [and]

  • the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications.[107]

12.83  In response to such concerns, the Attorney-General’s Department noted that, at common law, legal professional privilege attaches to the ‘content of privileged communications, not to the fact of the existence of a communication between a client and their lawyer’.[108] The Parliamentary Joint Committee on Intelligence and Security relied on the Department’s response when concluding that there was no need for ‘additional legislative protection in respect of accessing telecommunications data that may relate to a lawyer’.[109]

12.84  In a submission to this ALRC inquiry, ASIC suggested that the privilege would not attach to the type of data retained under the data retention laws, citing Commissioner of Taxation v Coombes where it was held that the privilege did not attach to a list of names and addresses of clients who had entered into a certain type of transaction.[110]

Other laws

12.85  The Judiciary Act 1903 (Cth) s 55ZH provides that where a Legal Services Direction is made by the Attorney-General that requires a person to provide documents or information in relation to the Australian Government Solicitor, a person may not refuse to comply on the basis of legal professional privilege. The privilege will continue to be available in respect of the communication.[111]

12.86  The Criminal Code s 390.3(6)(d) provides a defence for criminal association offences where the association is for the sole purpose of providing legal advice or representation. A lawyer bears the evidential burden to prove this defence, and the Law Council argued that this burden may result in the need to disclose information that may otherwise be subject to legal professional privilege.[112]

12.87  Uniform evidence legislation, including the Evidence Act 1995 (Cth) and its equivalents in some states and territories, provides a statutory form of privilege that applies to evidence adduced in court. The statutory privilege is similar in its scope to the common law privilege, with the limitations on the privilege in Uniform Evidence Act ss 121–126 largely reflecting the limits at common law. McNicol has identified some instances in which the scope of the statutory privilege is narrower than that of the common law privilege,[113] and these could be regarded as encroachments on the common law privilege.