Laws that abrogate client legal privilege

13.28   There are some provisions in Commonwealth laws that abrogate client legal privilege.

13.29   Few stakeholders to this Inquiry identified Commonwealth laws that abrogate client legal privilege.^[54] For the most part, stakeholders identified two areas of law that affect client legal privilege: mandatory data retention laws; and statutory access to communications between lawyers and individuals suspected of terrorism-related offences. As explained later in this chapter, these laws do not indicate an express and unambiguous legislative intention to abrogate the privilege, as required by the principle of legality.

13.30   Most of the laws identified in this chapter include statutory protections for witnesses: use or derivative use immunities render evidence or testimony that was the subject of a claim for client legal privilege inadmissible in some future proceedings.

13.31   A use immunity usually limits the use of information that would ordinarily be subject to a claim of client legal privilege in any subsequent criminal or civil penalty proceedings against the person who provided the information, except in proceedings in relation to the falsity of the evidence itself.^[55]

13.32   A derivative use immunity is wider than a use immunity, in that it also renders inadmissible in subsequent proceedings any evidence obtained as a result of the person having disclosed or provided a privileged communication. Therefore, any documents obtained or witnesses identified as a result of the information having been provided are not admissible against the person compelled to answer.^[56]

13.33   Commonwealth laws that abrogate client legal privilege generally arise in the following contexts:

• ad hoc legal investigations;

• laws aimed at open government and transparency; and

• the coercive information-gathering powers of federal investigatory bodies.

Ad hoc investigations

13.34   Some Commonwealth laws abrogate client legal privilege in the context of ad hoc bodies or investigations.

13.35   For instance, in the Royal Commissions Act 1902 (Cth), ss 6AA(1) and 6AB(5) provide that it is not a reasonable excuse for a person to refuse or fail to provide a document, evidence or information to the Commission in relation to ss 3(2B) and (5), subject to exemptions.

13.36   Section 4 of the James Hardie (Investigations and Procedures) Act 2004 (Cth) provides that legal professional privilege may be abrogated in relation to a James Hardie investigation or proceeding, or James Hardie ‘material’, as defined in that Act. Section 6 provides that this does not create a general abrogation of legal professional privilege.

13.37   It may be appropriate for client legal privilege to be abrogated in the context of specific investigations,^[57] given they are designed to investigate specific matters that are in the public interest and are conducted for a fixed or limited period of time. 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.^[58] The Explanatory Memorandum of the James Hardie (Investigations and Procedures) Bill 2004 outlined the policy justification for the abrogation of client legal privilege in that bill:

The community must have confidence in the regulation of corporate conduct, financial markets and services. This confidence would be undermined if ASIC was unduly inhibited in its ability to obtain and use material necessary to conduct investigations … In relation to matters concerning, or arising out of, the James Hardie Special Commission of Inquiry, the Government considers that it is clearly in the public interest that any investigation and subsequent action by ASIC and the DPP be unfettered by claims of legal professional privilege.^[59]

13.38   The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny of Bills Committee) drew attention to s 4 of the Bill, noting that it

would abrogate legal professional privilege in relation to a wide range of records and books connected with the Special Commission of Inquiry conducted in New South Wales into the conduct of the James Hardie Group of companies. In his second reading speech the Treasurer acknowledges that ‘legal professional privilege is … an important common law right’ that ought to be abrogated only in special circumstances, but goes on to assert that such abrogation is justified ‘in order to serve higher public policy interests’ such as the ‘effective enforcement of corporate regulation’.^[60]

13.39   The Law Council of Australia raised concerns about the process by which client legal privilege may be abrogated by the Royal Commissions Act 1902 (Cth) and the process for appeal. The Law Council argued that

While parties retain the right to appeal to the Federal Court against a finding by a Royal Commissioner that a document is not privileged, there remains a concern that the proceedings may be tainted by the knowledge of privileged—and potentially prejudicial matters—notwithstanding the provision that the Commissioner is to disregard matters subject to privilege. Further, while there is an argument that Royal Commissions deal with matters of significant public interest, over-riding the private interest in protection of privilege, the reasonableness of such a claim in respect of all Royal Commissions is belied by the fact that the question of amending the Royal Commissions Act in this way had not previously been raised—presumably because it was not considered necessary. Accordingly, a more targeted approach may have been appropriate in the circumstances.^[61]

13.40   In its Royal Commissions and Official Inquiries report, the ALRC made specific recommendations about the operation of client legal privilege in specific, ad hoc inquiries, including royal commissions.^[62]

Open government and accountability in decision-making

13.41   There are some Commonwealth laws that abrogate client legal privilege by compelling individuals to produce evidence or information to government oversight bodies such as the Commonwealth Ombudsman. The purpose of these laws is to promote transparency in government decision-making. Unless otherwise stated, the following provisions confer immunities. The laws include the following provisions:

• Crimes Act 1914 (Cth) s 3ZZGE(1)(d)(ii), which provides that client legal privilege is not an excuse for not disclosing information to the Commonwealth Ombudsman regarding the inspection of a prescribed Commonwealth agency’s records, although any evidence protected by legal professional privilege cannot later be used to prosecute the individual for specific offences in pt 7 of the Criminal Code (Cth).

• Crimes Act s 15HV, which provides that the Commonwealth Ombudsman should be given access to documents and information relating to controlled operations, despite any claims for client legal privilege.

• Judiciary Act 1903 (Cth) s 55ZH, which provides that where a Legal Services Direction is made by the Attorney-General that requires a person to provide documents or information in relation to the Australian Government Solicitor, a person may not refuse to comply on the basis of client legal privilege. While there is no immunity attached to this provision, privilege will not be waived in respect of the entire communication.

• Ombudsman Act 1976 (Cth) s 9(4)(ab)(ii) which provides that where the Ombudsman has reason to believe that a person is capable of furnishing information or producing documents or other records relevant to an investigation, client legal privilege cannot be used as an excuse to avoid producing those documents. There are similar provisions in ss 7A(1B) and 8(2B). Any evidence disclosed is inadmissible in later criminal proceedings.

Coercive information-gathering powers of regulatory agencies

13.42   Many Commonwealth agencies have statutory coercive information-gathering powers, enabling them to investigate complaints and initiate inquiries into illegal activities such as corruption. The coercive powers of these agencies vary significantly depending on their functions across a broad area of laws including, for example, criminal law, migration law and corporate regulation. As part of those powers, statutory officers are often empowered to compel witnesses to provide documents, information or evidence. Unless otherwise stated, these provisions include use or derivative use immunities. Examples of such provisions include the following:

• Fair Work (Building Industry) Act 2012 (Cth) s 53, which provides that a person is not excused from providing evidence or information under an examination notice to a special, independent assessor appointed under the Act to enforce the Building Code.

• Inspector-General of Taxation Act 2003 (Cth)s 16, which abrogates client legal privilege where the Inspector General requires the production of information or documents from tax officials at the Australian Taxation Office under s 15.

• Law Enforcement Integrity Commissioner Act 2006 (Cth) s 96(5), which provides that where a person is summoned to give evidence at a hearing before the Commissioner, they are not excused from answering a question or producing a document or information on public interest grounds that it would disclose a communication between an officer of a Commonwealth body and another person that is protected by client legal privilege.

• Seafarers Rehabilitation and Compensation Act 1992 (Cth)ss 70 and 85, which provide that client legal privilege does not apply to medical reports supplied in relation to an injury that is the subject of a compensation claim. There are no immunities available in these provisions.

13.43   There appear to be few Commonwealth corporate and commercial laws that abrogate client legal privilege. For instance, the Australian Securities and Investments Commission (ASIC) stated that there are ‘no current Commonwealth laws that abrogate client legal privilege specifically for ASIC’s activities’.^[63]

13.44   The access and information-gathering powers of the Australian Taxation Office (ATO) are subject to client legal privilege, so that privileged documents or communications need not be disclosed or produced to the ATO, whether in response to those powers or to an informal request.^[64]

National security legislation

13.45   There may be an argument that laws that allow or require telecommunications companies or Commonwealth agencies, like the Australian Federal Police (AFP) or the Australian Security and Intelligence Organisation (ASIO), to access or retain data that may reveal an individual’s communications with their lawyer, results in an abrogation of client legal privilege.

13.46   While client legal privilege is understood as a ‘right to resist disclosing information that would otherwise be required to be disclosed’,^[65] access and surveillance laws may create a chilling effect^[66] on the communications between a lawyer and their client.^[67] These provisions include the following:

• Australian Security and Intelligence Organisation Act 1979 (Cth) (the ASIO Act)s 34ZQ(2), which is part of the special powers regime that empowers ASIO to issue questioning and detention warrants in relation to persons suspected of terrorism offences. This provision requires that all contact between a person subject to one of these warrants and their lawyer is able to be monitored by an ASIO official.

• Criminal Code s 105.38(1), which requires any contact between a lawyer and a person being detained under a preventative detention order be capable of being ‘effectively monitored by a police officer’.^[68]

• The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2014 (Cth)requires service providers such as telecommunications companies to retain customer’s metadata for two years. This data may be accessed by prescribed Commonwealth agencies.

Monitoring contact under preventative detention orders

13.47   Section 105.38(1) of the Criminal Code requires that any contact between a lawyer and a person being detained under a preventative detention order be capable of being ‘effectively monitored by a police officer’.

13.48   The Gilbert and Tobin Centre for Public Law argued that this provision

infringes client legal privilege as any communication between the person and a lawyer must be monitored. The infringement of these rights is unjustified on both principled and practical grounds. The [Independent National Security Legislation Monitor] INSLM described the powers as being ‘at odds with our normal approach to even the most reprehensible crimes’. The COAG Review remarked that such powers ‘might be thought to be unacceptable in a liberal democracy’. Both recommended that the power be repealed.^[69]

13.49   Similarly, the Law Council of Australia wrote that ‘such restrictions could create unfairness to the person under suspicion by preventing a full and frank discussion between a client and his or her lawyer and the ability to receive relevant legal advice’.^[70]

Telecommunications data retention

13.50   The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2014 (Cth) amended the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) to introduce a mandatory data retention scheme. The scheme requires service providers to retain types of telephone and web data under the TIA Act for two years.

13.51   The Parliamentary Joint Committee on Human Rights (the Human Rights Committee) expressed some concern about the implications of this regime as potentially abrogating client legal privilege:

There are also currently no exceptions for the retention and accessing of data on persons whose communications are subject to obligations of professional secrecy, such as lawyers. Under the proposed scheme, it would be possible for the data from a legal practitioner to be accessed, which raises questions as to whether this could impact on legal professional privilege. If it were to impact on legal professional privilege this would raise concerns as to whether this is proportionate with the right to privacy. The committee is concerned that the communications data of persons subject to an obligation of professional secrecy may be accessed and that accessing this data could impact on legal professional privilege.^[71]

13.52   The Human Rights Committee requested the advice of the Attorney-General as to whether such data could, in any circumstances, impact on legal professional privilege, and if so, how this is proportionate with the right to privacy. No response is, however, evident in the Committee’s report.^[72]

13.53   There are a number of safeguard measures built into the Act, including the following:

• that mandatory data retention only applies to telecommunications meta data (not content)—the type of information that is to be retained is outlined in sch 1 of the amending Act;^[73]

• mandatory data retention is to be reviewed by the Parliamentary Joint Committee on Intelligence and Security three years after the commencement of the Act; and

• the Commonwealth Ombudsman has oversight of the mandatory data retention scheme and, more broadly, the exercise by law enforcement agencies of powers under chs 3 and 4 of the TIA Act.

13.54   The statement of compatibility with human rights that accompanied the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 acknowledged that the bill engages and limits the right to privacy but not the right to client legal privilege. The statement identifies the object of the legislation as being ‘the protection of national security, public safety, addressing crime, and protecting the rights and freedoms’.^[74]

13.55   Several stakeholders raised concerns about whether the abrogation of client privilege could be implied into the legislation.^[75] The National Association of Community Legal Centres, for example, argued that the bill did not appear to protect communications between client and lawyer and therefore appears to be an unjustifiable encroachment on client legal privilege.^[76] Australian Lawyers for Human Rights proposed that the bill include exemptions for lawyer/client communications.^[77]

13.56   In evidence and submissions to the Parliamentary Joint Committee on Intelligence and Security’s Advisory Report on theTelecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, several stakeholders raised concerns about the potential abrogation of client legal privilege under that bill. For instance, the Law Institute of Victoria provided evidence to the Committee that

telecommunications data is capable of revealing substantial information, and this could include information about communications between a lawyer and their client. For example, information exchanged by email or calls about potential witnesses between the lawyer and associates of the client, experts or other relevant parties, could disclose a defence case. A litigation strategy or case theory could be identified based on witnesses or experts contacted by the lawyer.^[78]

13.57   Similarly, the Law Council of Australia submitted to the Committee that, although telecommunications data alone may not reveal the content or substance of lawyer/client communications, it would, at the very least, be able to provide an indication of whether:

a lawyer has been contacted;

the identity and location of the lawyer;

the identity and location of witnesses;

the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications.^[79]

13.58   In response to such concerns, the Attorney-General’s Department noted that, at common law, legal professional privilege attaches to the ‘content of privileged communications, not to the fact of the existence of a communication between a client and their lawyer’.^[80] The Parliamentary Joint Committee on Intelligence and Security relied on this Departmental response when concluding that there is no need for ‘additional legislative protection in respect of accessing telecommunications data that may relate to a lawyer’.^[81]

13.59   The Government supported all of the Committee’s recommendations, however none of those recommendations addressed concerns relating to the confidentiality of lawyer/client communications.^[82]

13.60   The ALRC observes that without a clear and unambiguous legislative intention to abrogate client legal privilege, it is not clear that the telecommunications data retention law is capable of doing so.

ASIO’s questioning and detention warrant regime

13.61   ASIO may issue a questioning or a detention warrant under pt III div 3 of the ASIO Act. This is referred to as the special powers regime of the ASIO Act. A questioning warrant compels the subject to appear for questioning by ASIO at a prescribed time.^[83] A detention warrant empowers a police officer to take the subject into custody if there are

reasonable grounds for believing that if a person is not immediately taken into custody, the person may alert a person involved in a terrorism offence that the offence is being investigated, may not appear before a law enforcement or security authority, or may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce.^[84]

13.62   Under s 34ZQ(2) of the ASIO Act, contact between the subject of a questioning or detention warrant and their lawyer ‘must be made in a way that can be monitored’.

13.63   The Gilbert and Tobin Centre for Public Law argued that the requirement that all conversations between lawyers and their clients be monitored under ASIO’s special powers regime risks abrogating client legal privilege.^[85]

13.64   The Explanatory Memorandum to the ASIO Legislation Amendment (Terrorism) Bill 2002 that introduced s 34ZQ(2) did not provide specific justifications for the abrogation of client legal privilege, other than a general statement that the bill will ‘assist in the investigation of terrorism offences’.^[86]

13.65   The Explanatory Memorandum stated that the effect of the proposed section is to require that

contact between the detained person and the legal adviser be made in a way that can be monitored by a person exercising authority under the warrant (an ASIO officer or other appropriate officer) (proposed subsection 34U(2)).^[87]

13.66   The policy justification for the introduction of the special powers regime, including the requirement in s 34ZQ(2) that all communication between the subject of a warrant and their lawyer be monitored, was informed by debates about approaches to counter-terrorism in the post 9/11 period. The central issue in this ongoing debate is the balance between national security and individual rights.

13.67   The Law Council of Australia’s submission to the INSLM’s Inquiry into questioning and detention warrants commented on the operation of s 34ZQ(2). It expressed concern that persons detained be entitled to a lawyer without that communication being monitored or otherwise restricted. The Law Council stated that, ‘unless detainees can freely access legal advice and communicate confidentially with their lawyer, there are no practical means to challenge any ill-treatment’.^[88] The Law Council highlighted related legal rights that may be affected if client legal privilege is abrogated, such as a suspect’s ability or willingness to report allegations of misconduct or mistreatment while in custody.

13.68   Ultimately, the ALRC considers that without a clear and unambiguous intention to abrogate client legal privilege, this law arguably does not abrogate legal privilege. The law does not require disclosure of information despite a claim for privilege. Rather, it allows law enforcement to access and monitor communications between a lawyer and their client, with the knowledge of the client and their lawyer.

Other laws

13.69   There are other laws that may be seen to abrogate client legal privilege in criminal proceedings:

• Crimes Act 1914 (Cth) s 3ZQR, which provides that a person cannot rely on client legal privilege to avoid adducing a document, information or other evidence related to a serious terrorism offence. This evidence is inadmissible in future criminal proceedings against the person.

• Criminal Code s 390.3(6)(d), which provides a defence for criminal association offences where the association is for the sole purpose of providing legal advice or representation. A lawyer bears the evidential burden to prove this defence, and the Law Council of Australia argued that this burden may result in the need to disclose information that may otherwise be subject to client legal privilege.^[89] It is not clear whether this provision abrogates client legal privilege.

• Evidence Act 1995 (Cth) s 123, which allows a defendant to adduce evidence of privileged proceedings unless the defendant is an associated defendant.