Justifications for abrogating client legal privilege

13.70   The common law recognises a need to confine or place limits on client legal privilege.^[90] The High Court has stated that the privilege should be ‘confined within strict limits’.^[91] The High Court has enunciated various balancing tests to weigh competing interests in claims for client legal privilege.

13.71   In Waterford v Commonwealth, the High Court explained that:

Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognized crime or fraud exception, the public interest in the ‘perfect administration of justice’ is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission, in evidence of all relevant documentary evidence.^[92]

13.72   In Esso Australia Resources v Commissioner of Taxation, the High Court noted 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.^[93]

13.73   In Carter v Northmore Hale Davy & Leake, Deane J explained that once client legal privilege attaches, there is ‘no question of balancing … The question itself represents the outcome of such a balancing process’.^[94]

13.74   There is limited guidance in parliamentary committee reports on appropriate justifications for abrogating client legal privilege. In the context of right of entry provisions in workplace laws, the Scrutiny of Bills Committee recommended to legislatures that

Legislation conferring a power of entry and search should specify the powers exercisable by the officials carrying out the action. It should preserve the right of occupiers not to incriminate themselves and, where applicable, their right to the protection of legal professional privilege.^[95]

13.75   The conferral of statutory immunities and the use of information and evidence to assist federal investigations are two justifications for the abrogation of client legal privilege.

Statutory protections

13.76   As noted earlier in this chapter, most provisions which abrogate client legal privilege contain use or derivative use immunities to protect witnesses from future criminal proceedings.^[96] The protection afforded by the conferral of such immunities may counterbalance the abrogation of client legal privilege.

13.77   The Law Council suggested that where client legal privilege is abrogated, use and derivative immunity should ordinarily apply to documents or communications revealing the content of legal advice, in order ‘to minimise harm to the administration of justice and individual rights’.^[97]

13.78   In its 2008 Privileges in Perspective report, the ALRC made a recommendation concerning safeguards for individuals who are required to disclose information or evidence that may be subject to client legal privilege in the course of federal investigations.^[98] Recommendation 7–2 stated that:

Federal client legal privilege legislation should provide that, in the absence of any express statutory statement concerning the use to which otherwise privileged information can be put (for example, provisions conferring use immunity or derivative use immunity or authorising unrestricted use of otherwise privileged information), where federal legislation abrogates the application of client legal privilege to the exercise of a federal coercive information-gathering power the following default provision should apply:

(a)    a federal body that seeks to rely on otherwise privileged information as evidence in any court proceedings must apply to the court for permission to do so;

(b)    there should be a presumption against use of the evidence which is able to be displaced in the court’s discretion, having regard to the following factors:

(i)      the public interest in limiting the effects of the abrogation of an important common law right;

(ii)     whether the otherwise privileged information was obtained pursuant to the exercise of a covert investigatory power; and

(iii)    the probative value of the otherwise privileged evidence, including whether it reveals matters tending to constitute serious misconduct or conduct which has a serious adverse impact on the community in general or on a section of the community; and

(c)     a federal body is precluded from using otherwise privileged information against the holder of client legal privilege in any administrative penalty proceedings.

Assisting investigations

13.79   Abrogation of client legal privilege may sometimes be justified where the law is aimed at assisting regulatory or criminal investigative processes. ASIC wrote that ‘such public interests include that all relevant information should be available to a court and to government agencies conducting investigations’.^[99]

13.80   As outlined earlier in this chapter, there are some Commonwealth agencies that possess coercive information-gathering powers to investigate complaints or instigate inquiries. These agencies are, on occasion, able to compel witnesses to provide evidence, information or documents, and often expressly abrogate client legal privilege. The privilege may be abrogated in circumstances where reliance on the privilege may interfere with the administration of justice caused by delays in investigations or proceedings.^[100]

13.81   The cost of litigating claims of client legal privilege may also frustrate proceedings and the resources of federal agencies.^[101]

13.82   In its Privilege in Perspective report, the ALRC recommended that

in the absence of any clear, express statutory statement to the contrary, client legal privilege should apply to the coercive information-gathering powers of federal bodies. However, where the Australian Parliament believes that exceptional circumstances exist to warrant a departure from the standard position, it can legislate to abrogate client legal privilege in relation to a particular investigation undertaken by a federal investigatory body, or a particular power of a federal investigatory body.^[102]

13.83   This recommendation was qualified by consideration of the following factors:

(a)     the subject of the investigation, including whether the inquiry concerns a matter (or matters) of major public importance that has (or have) a significant impact on the community in general or on a section of the community, or is a covert investigation;

(b)     whether the information sought can be obtained in a timely and complete way by using alternative means that do not require abrogation of client legal privilege; and especially,

(c)     the degree to which a lack of access to the privileged information will hamper or frustrate the operation of the investigation and, in particular, whether the legal advice itself is central to the issues being considered by the investigation.^[103]

13.84   The recommendations in that report serve as a useful guide for legislatures when abrogating client legal privilege. The Administrative Review Council’s 2008 report into the Coercive Information-Gathering Powers of Government Agencies supported the ALRC’s recommendations. The Council wrote that abrogation of the privilege should occur

only rarely, in circumstances that are clearly defined, compelling and limited in scope—for example, for limited purposes associated with the conduct of a royal commission.^[104]

13.85   In the Council’s view, coercive information-gathering agencies should keep written records of the situations where the privilege applies and, in particular, where the privilege is waived. This requirement should be part of agency guidelines on coercive information-gathering powers.^[105]

13.86   There may also be specific types of information that may, justifiably, need to be disclosed in the public or national interest. Legal advice to government is one example where legislatures may be justified in limiting or abrogating the privilege in the public interest of transparency and open government. Abrogating client legal privilege for communications between lawyers and government representatives involved in proceedings relating to public misfeasance, for instance, may be in the interests of open and representative government. Several states in the United States have abolished client legal privilege for state governments.^[106]

13.87   ASIC also pointed to the fact that litigating client legal privilege claims can be a costly and time-intensive task for regulatory agencies.^[107]

Legitimate objectives

13.88   As outlined throughout this chapter, both the common law and international human rights law recognise that client legal privilege can be restricted in order to pursue legitimate objectives—such as national security and public safety. Client legal privilege may be seen as a corollary of other important rights such as the right to privacy and the right to a fair trial.

13.89   In analysing legislation, the Human Rights Committee asks whether a limitation on a privilege—like client legal privilege—is aimed at achieving a ‘legitimate objective of promoting or protecting the rights of others’^[108]—a quite open category of limitation. The Centre for Comparative Constitutional Studies agreed that the ‘concept of a legitimate end should encompass a wide range of laws and that only exceptionally would a law be considered not to pursue a legitimate end’.^[109]

13.90   When considering whether Commonwealth laws that abrogate client legal privilege are appropriately justified, it is useful to consider the limitations and derogations outlined in the ICCPR. Article 14(1) of the ICCPR protects the right to a fair trial and a limited right to privacy in relation to proceedings.^[110] This may suggest some protection for confidential communications between a lawyer and their client.

13.91   The United Nations Human Rights Committee warned against ‘severe restrictions or denial’^[111] of this right for individuals to communicate confidentially with their lawyers:

Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications.^[112]

13.92   The Administrative Review Council’s 2008 report into the Coercive Information-Gathering Powers of Government Agencies included suggestions about the circumstances or justifications for when client legal privilege and the privilege against self-incrimination could be abrogated. The Council considered that

there is a link between any abrogation of client legal privilege and the threshold specified for the exercise of a particular coercive information-gathering power and suggests that consideration will need to be given to the threshold if privilege is to be abrogated.^[113]

13.93   There was some discussion of client legal privilege in the Productivity Commission’s 2014 Access to Justice Report. The Commission noted that legal complaint bodies—such as law societies or practitioners’ boards—whose role is to investigate improper practise by lawyers, may need to override the privilege in the public interest.^[114] The Commission made a recommendation that state and territory legal complaint bodies should be empowered to compel lawyers to produce information or documents, despite a claim for client legal privilege. However, the Commission noted that any information subject to the privilege should only be used for the purposes of investigating a lawyer’s conduct and pursuing disciplinary action.^[115]

Proportionality and client legal privilege

13.94   Unlike other rights, freedoms and privileges discussed in this Inquiry, stakeholders and commentators have not advanced the use of a proportionality test to assess the justification of Commonwealth laws that abrogate client legal privilege.