A common law privilege

11.1       Client legal privilege is an ‘important common law immunity’[1] and a ‘fundamental and general principle of the common law’.[2] It ‘exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers’.>[3]

11.2       The common law protects confidentiality in a lawyer-client relationship by giving people immunity from laws that might otherwise require them to disclose communications with their lawyer.[4] This is referred to as client legal privilege[5] or lawyer-client privilege.[6]

11.3       This chapter discusses the source and rationale of client legal privilege; how this privilege is protected from statutory encroachment; and when laws that abrogate this privilege may be justified.

11.4       The ALRC calls for submissions on two questions about this privilege.

Question 11–1          What general principles or criteria should be applied to help determine whether a law that abrogates client legal privilege is justified?

Question 11–2          Which Commonwealth laws unjustifiably abrogate client legal privilege, and why are these laws unjustified?

11.5       Protecting the confidentiality of communications between lawyers and clients facilitates a relationship of trust and confidence.[7] A confidential relationship encourages clients to communicate in a frank and honest way with their legal representative. Without that confidence, a person may not use a lawyer at all. The privilege therefore ‘assists and enhances the administration of justice’.[8] In Greenough v Gaskell (1833), Lord Brougham said:

It is out of regard to the interests of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in the matters affecting rights and obligations which form the subject of all judicial proceedings. If a privilege did not exist at all, everyone would be thrown on his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half of his case.[9]

11.6       In order for lawyers to provide rigorous and targeted legal advice they need to be made aware of all the facts of their client’s case—facts which a client may only feel comfortable disclosing under the protection of confidentiality.[10]

[it is] 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, this privilege is granted to ensure that the client can consult his lawyer with freedom and candor; it being thought that if the privilege did not exist a man would not venture to consult any skilled person.[11]

11.7       In Esso Australia Resources v Commissioner of Taxation (1999), Kirby J 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’.[12]

11.8       Client legal privilege quite clearly interacts with other rights and privileges at common law, including the right to a fair trial.[13] It has also been described as a human right,[14] derived from the right to privacy and the right to protection from the state. In Baker v Campbell (1983), Deane J said that it ‘represents some protection of the citizen—particularly the weak, the unintelligent and the ill-informed citizen—against the leviathan of the modern state’.[15]

11.9       American legal historian, Professor John Wigmore, described the privilege as ‘the oldest of the privileges for confidential communications’.[16]

11.10   The privilege dates from Elizabethan times[17] when it was 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’.[18] The privilege developed significantly in the 18th and 19th centuries when it was considered to be an evidentiary rule.[19]