12.1 Legal professional privilege is a common law immunity. It allows a person to resist demands to disclose information or produce documents which would reveal communications between a client and their lawyer, where those communications were made for the dominant purpose of giving or obtaining legal advice or services.
12.2 It ‘exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers’. It has also been said to protect the right to privacy, the dignity of the individual, access to justice and equality before the law.
12.3 A statutory form of the privilege is known as ‘client legal privilege’, and is found in the Uniform Evidence Acts. Client legal privilege is only available to resist disclosure of information in a court. The common law privilege can be claimed in both judicial and non-judicial proceedings.
12.4 Many Commonwealth agencies have coercive information-gathering powers, but almost all of those powers are subject to legal professional privilege. This chapter will focus on the infrequent exceptions to that rule.
12.5 Some statutes concerned with open government and preventing corruption, such as the Ombudsman Act 1976 (Cth) and the Law Enforcement Integrity Commissioner Act 2006 (Cth), empower agencies to require persons to reveal privileged communications, but the material is not admissible in proceedings against the person. Two statutes concerned with terrorism and the proceeds of crime abrogate the privilege, but the material is not admissible in proceedings against the person. The Royal Commissions Act 1902 (Cth)allows a Commission to require a person to provide documents or information over which privilege is claimed, but only for the purpose of determining whether the material is in fact privileged. If it is, it must be returned and no use may be made of it.
12.6 Only one Commonwealth statute has been identified that abrogates the privilege completely. The James Hardie (Investigations and Proceedings) Act 2004 (Cth) allowed the Australian Securities and Investments Commission (ASIC) and the Commonwealth Director of Public Prosecutions to obtain and use privileged information for both investigation and prosecution. This appears to have been in response to concerns about unwarranted claims of privilege during a special commission of inquiry into the James Hardie companies’ handling of asbestos claims. ASIC’s proceedings against the James Hardie companies concluded in 2012.
12.7 Concerns were expressed to this Inquiry about statutes that require communications between a person and their legal adviser to be monitored: Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZQ(2) and Criminal Code s 105.38(1). Both statutes provide that communications that are subject to privilege are not admissible against the person. Legal professional privilege allows a person to resist the compulsory disclosure of communications. It is not clear that it extends to prevent monitoring of communications.
12.8 Similarly, while concerns were expressed to this Inquiry regarding the mandatory data retention scheme in the Telecommunications (Interception and Access) Act 1979 (Cth), it is not clear that legal professional privilege extends to prevent the surveillance of communications. It also does not extend to prevent the disclosure of the fact that a communication occurred, but only to the content of the communication.
12.9 While laws requiring monitoring of communications between lawyer and client may not limit legal professional privilege, they are not consistent with the underlying rationale for the privilege, that communications between client and lawyer should be confidential. They also interfere with the right to legal assistance and representation, an important fair trial right. They should be further reviewed to consider whether they are proportionate and justified.
12.10 In its 2008 report, Privilege in Perspective, the ALRC envisaged that abrogation of legal professional privilege would occur only in exceptional circumstances. This is indeed currently the case in Commonwealth laws. The ALRC recommended that, if the privilege is abrogated, the default position should be that the material should not be admissible against the client.
12.11 This has also been the case in Commonwealth laws, with the single exception of the James Hardie legislation.