Privilege in Perspective: Client Legal Privilege in Federal Investigations
(Final Report of the Australian Law Reform Commission)
An introductory guide to the report for solicitors served with a statutory notice to produce client documents
In February 2008 the Australian Law Reform Commission (ALRC) completed an enquiry into the application of legal professional privilege (also known as client legal privilege) to the coercive information-gathering powers of a host of Commonwealth bodies and issued its final report Privilege in Perspective: Client Legal Privilege in Federal Investigations(ALRC 107, 2007).
This is a very lengthy document, 561 pages. Fortunately, it contains:
- an Executive Summary (at pages 25 to 34)
- an Overview (at pages 44 to 46) summarising the contents of each chapter.
If you or one of your clients receives a notice from one of these federal bodies purporting to exercise its statutory powers, and the position as regards privilege is unclear, it may be worthwhile searching the ALRC report for details of that body and the relevant legislation. The report does have an index and is searchable.
In particular the following may be of relevance.
The Executive Summary of the report states that there are 41 federal bodies with coercive investigatory powers (listed in Appendix 1, at pp 531-536) and under the heading Problems states:
‘”There are many more than 41 pieces of legislation that address the powers of the federal bodies identified in this Inquiry, and some bodies are covered in multiple pieces of legislation. Unfortunately, there are few instances in which this legislation specifically addresses the application of privilege within the investigatory context; and, where privilege is addressed, there is inconsistency in terminology and scope.
Several recent developments have highlighted the need for clarification of the application of privilege in the context of federal investigations. In The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (Daniels) (2002) 213 CLR 543 a case concerning the ACCC’s coercive power under s 155 of the Trade Practices Act 1974 (Cth), the High Court of Australia held that client legal privilege only could be abrogated expressly or by necessary implication. While this decision clarified the principles that apply when considering whether privilege has been abrogated, it also created considerable uncertainty in relation to the powers of many federal investigatory bodies under their own particular legislation—uncertainty that presently only can be resolved through litigation. In this Inquiry, the ALRC heard from stakeholders that policies and practices vary considerably amongst federal bodies…”
Chapter 3 of the report Overview of Client Legal Privilegedescribes the historical origins of the doctrine of legal professional privilege and provides an overview of the current doctrine under the common law and the Evidence Act 1995 (Cth) - when it can be claimed; when it cannot; and when it may be waived or abrogated. The chapter also considers the operation of the common law fraud and crime exception to the privilege and the application of the privilege to corporations.
Chapter 4 Overview of Federal Bodies with Coercive Information-Gathering Powersprovides an overview of the investigatory and associated functions of many federal bodies that have coercive information-gathering or related powers, and the nature of those powers. Where the information is available, the chapter addresses the frequency with which federal bodies use coercive powers and their policies in this regard.
Chapter 5 Client Legal Privilege in Federal Investigationsconsiders the law on legal professional privilege in the specific context of federal investigations. Legislative provisions that abrogate, modify or preserve the privilege, and significant cases dealing with the application of the privilege in federal investigations, are discussed.
According to the report (paragraph 5.5) very few of the statutes expressly abrogate privilege.
The most difficult question is that of ‘necessary implication’. The ALRC wrote to the relevant federal bodies to ask whether they took the view that any of their powers abrogate privilege by necessary implication. Many responded that they do not. Details of the responses are given in Chapter 5 at paragraphs 5.62 to 5.66.
(Queensland Law Society – April 2010)