08.12.2014
Australian Constitution
11.11 The Australian Constitution does not expressly protect client legal privilege, nor has it been found to protect the privilege by implication.
Principle of legality
11.12 The principle of legality provides some protection to client legal privilege.[20] When interpreting a statute, courts will presume that Parliament did not intend to interfere with client legal privilege, unless this intention was made unambiguously clear.[21] In Baker v Campbell (1983), 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.[22]
International law
11.13 Article 14 of the ICCPR protects the right to a fair and public trial but also a limited right to privacy in relation to proceedings.[23] This suggests communications between client and lawyer should be treated as confidential.
11.14 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[24] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[25]
Bills of rights
11.15 In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. 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’[26] and the right to a fair hearing and to communicate with his or her lawyer in criminal proceedings.[27] The ACT’s Human Rights Act provides protection for a fair hearing.[28]