Justifications for encroachments

11.16   The High Court has spoken of the ‘obvious tension’ between the policy behind client legal privilege and ‘the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case’.

Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations.[29]

11.17   Jeremy Bentham was critical of the privilege, arguing that removing it would result ‘in a guilty person not being able to derive quite so much assistance from his law advisor’, assuming that it is mainly the guilty who need protection from the law.[30] A corollary of Bentham’s argument is that client legal privilege may be used to shield vexatious or frivolous claims.

11.18   Claims to privilege may delay investigations. One example is a claim for privilege attached to communications which were the subject of a warrant executed by ASIC in an investigation in November 2003.[31] The privilege claim was the subject of a federal court hearing which was dismissed at first instance and on appeal. As a consequence, the documents were only made accessible to ASIC in December 2004, a year after the original warrant was executed.

11.19   Similarly, claims for privilege may frustrate proceedings where a party seeks ‘blanket’ privilege on all communications with their lawyer, irrespective of whether they are relevant or useful to a particular matter. In one case, an unsuccessful claim for a blanket privilege may have partly caused a six year delay in a police investigation.[32]

11.20   The capacity of some federal investigative bodies such as ASIC, the ACCC and the ATO to conduct investigations may be limited by the application of client legal privilege.[33]

11.21   It may also be appropriate for the privilege to be limited or even abrogated in the context of specific investigations.[34] This may be particularly important in the case of ad-hoc investigative bodies like Royal Commissions or special investigations where time and resources are finite.[35]

11.22   Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.[36]

11.23   Some laws that abrogate client legal privilege may be justified. The ALRC invites submissions identifying those Commonwealth laws that are not justified, and explaining why they are not justified.