Protections from statutory encroachment

Australian Constitution

12.29  The Australian Constitution contains no express provision regarding legal professional privilege. However, the Australian Parliament’s power to make laws of evidence to be applied in Chapter III courts is not unlimited.[36]  The text and structure of Ch III imply that Parliament cannot make a law requiring the court to exercise judicial power in a way that is inconsistent with the nature of that power.[37]  

12.30  The High Court has yet to consider whether legal professional privilege is protected by any implication arising from Ch III of the Constitution.

12.31  The Full Federal Court has considered whether the abrogation of the privilege in the context of a royal commission would interfere with the judicial power of the Commonwealth. The court noted that the High Court has repeatedly confirmed that Parliament may abrogate the privilege, at least in the context of executive inquiries.[38] The Full Federal Court concluded that, while the High Court has not explicitly mentioned the constitutional question, ‘[w]e take the High Court’s silence on this point as an indication that such an argument has no merit’.[39]

Principle of legality

12.32  The principle of legality provides some protection to legal professional privilege.[40] When interpreting a statute, courts will presume that Parliament did not intend to interfere with legal professional privilege, unless this intention was made unambiguously clear.[41] 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.[42]

12.33  Similarly, in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, the majority noted:

Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.[43]

International law

12.34  While legal professional privilege is not a human right in itself, the European Court of Justice has recognised the right to confidential communication with a lawyer as ‘a fundamental, constitutional or human right, accessory or complementary to other such rights’.[44]

12.35  Article 14 of the International Covenant on Civil and Political Rights protects the right to a fair trial, including the right to legal assistance. The United Nations’ Basic Principles on the Role of Lawyers call on governments to respect the confidentiality of ‘all communications and consultations between lawyers and their clients’.[45]  

12.36  International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[46] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[47]

Bills of rights

12.37  In some jurisdictions, bills of rights or human rights statutes provide some protection to certain rights and freedoms relevant to legal professional privilege. 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’[48] and the right to a fair hearing and to communicate with his or her lawyer in criminal proceedings.[49] There is also protection for a fair hearing in Human Rights Act 2004 (ACT).[50]