Legal professional privilege in Australia

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In Australia, legal professional privilege (also referred to as client legal privilege) is a rule of law protecting communications between legal practitioners and their clients from disclosure under compulsion of court or statute. While the rule of legal professional privilege in Australia largely mirrors that of other Commonwealth jurisdictions, there are a number of notable qualifications and modifications to the privilege specific to Australia and its states, and contentious issues about the direction of the privilege.

History

Legal professional privilege emerged in the 16th century; it was originally a privilege held by a lawyer rather than the lawyer's client.[1]

Legal professional privilege in Australia developed from the English common law privilege.

The rationale for legal professional privilege in an Australian context has been explained in the following ways:[2]

  • encouraging full disclosure of information by a client to a lawyer;
  • promoting compliance with the law by enabling lawyers to give full and considered advice on a client's legal obligations;
  • discouraging litigation and encouraging alternative dispute resolution;
  • protection of a client's privacy;
  • protecting access to justice.

Justice Kirby of the High Court of Australia has described legal professional privilege as an "important human right deserving of special protection for that reason".[3]

The Australian Law Reform Commission (ALRC) has adopted the terminology 'client legal privilege', as opposed to 'legal professional privilege', on the basis that the privilege is held by the client and not the lawyer.[4] 'Client legal privilege' is the terminology used in Commonwealth and state evidence statutes. However, the common law privilege remains almost universally described by courts as being 'legal professional privilege'.

Source of legal professional privilege

Legal professional privilege in Australia is found in common law and in various statutes. Both sources reflect the two limbs of legal professional privilege: advice privilege and litigation privilege.

Common law

Legal professional privilege has been described as an "important common law right" that is enforceable in equity.[5] The Evidence Acts did not expressly alter the common law privilege.[5]

The common law maintains a distinction between two limbs of legal professional privilege. Advice privilege refers to the protection of communications between a client and a lawyer for the purposes of the lawyer providing legal advice to the client. Litigation privilege refers to the protection of communications between a client, lawyer (and any third party) for the dominant purpose of anticipated or existing legal proceedings. Unlike the prior test of 'sole purpose', the dominant purpose test, while more complex, significantly broadens the scope of legal professional privilege, as defined in Esso Australia Resources Ltd v Commissioner of Taxation.[6] There is, invariably, much overlap between the two limbs.[7]

Statute

Sections 118 and 119 of the 'Evidence Act 1995' (Cth) provide that confidential communications created for the dominant purpose[8] of providing legal advice or litigation are protected from disclosure to federal courts. Similar or identical provisions have been adopted in New South Wales[9] and Tasmania.[10] Legal professional privilege in the context of court proceedings is governed by the common law in the remaining Australian states.

Scope and content of the privilege

Two limbs

The privilege protects two kinds of confidential communications between a client and his or her lawyer. The first kind is where the communications are confidential and made for the purposes of seeking or being provided with legal advice. The second kind is where the communications are made for the purpose of existing or reasonably contemplated judicial or quasi-judicial proceedings.[11] These two limbs of the privilege are called the advice privilege and the litigation privilege.[12]

Current issues in Australian law concerning legal professional privilege

Waiver of privilege

Legal professional privilege is not absolute and it does not attach to a communication indefinitely. The privilege may be waived by the client, but not by the lawyer. Accordingly, a client's intentional or inadvertent actions in relation to their use of legal advice may preclude the client from asserting the privilege in future.

The High Court in Mann v Carnell[13] established a test of 'inconsistency' to determine whether a client has waived legal professional privilege over a communication. That is, a client will have waived privilege where their conduct has been inconsistent with the maintenance of that privilege. The most common circumstance in which a client will be found to have waived a privilege include disclosing the full advice, or the conclusions, gist or substance of the advice, to a third party or the public at large. This raises particular problems for public figures seeking to justify a particular course of action by relying on legal advice. However, privilege is not waived if a disclosure of a communication was made under a "compulsion of law".[14]

Privilege and in-house lawyers

One of the most unsettled areas of privilege law in Australia is the extent to which advice provided by in-house counsel is protected. In Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2),[15] Justice Graham of the Federal Court of Australia refused a claim for privilege over advice provided by in-house counsel of Telstra, holding 'an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer'. This created concerns in the legal community as to the extent that in-house legal advice is protected from disclosure to a court.[16] Justice Graham did not set out any measures or criteria for determining when an in-house lawyer is sufficiently independent of his or her employer.

In Vance v Air Marshall McCormack,[17] Justice Crispin of the Supreme Court of the Australian Capital Territory held that privilege only attached to advice provided by lawyers who had a right to practice. This judgment has substantial ramifications for in-house counsel who are not admitted solicitors.

Notwithstanding the above, there is no appellate authority on the extent to which legal professional privilege applies to advice provided by in-house counsel.

Privilege and quasi-judicial proceedings

There is conflicting authority on whether legal professional privilege applies to communications prepared for the purpose of non-judicial legal proceedings, such as in administrative tribunals or commissions of enquiry. These conflicts have generally not reached appellate level.

In Ingot Capital Investments v Macquarie Equity Capital Markets,[18] Justice Bergin of the Supreme Court of New South Wales held that privilege did not apply to proceedings in the Administrative Appeals Tribunal. Justice Bergin's reasoning was that the AAT was not a court and stood outside the adversarial system of justice as an inquisitorial administrative body not bound by the rules of evidence.

The AAT itself departed from and strongly criticised Ingot in a decision handed down by Justice Downes in his capacity as President of the AAT. In Farnaby and Military Rehabilitation and Compensation Commission,[19] Justice Downes held that the litigation limb of the privilege applied to AAT proceedings and took the step of directing all future claims for privilege in the AAT to be handled accordingly.

The ALRC recommends extending legal professional privilege to non-judicial proceedings.[20]

ALRC inquiry

On 29 November 2006, Attorney-General Philip Ruddock asked the ALRC to inquire into legal professional privilege in the context of coercive information-gathering powers held by Commonwealth agencies. A Discussion Paper was released by the ALRC on 26 September 2007, noting the need for a clear and consistent approach to legal professional privilege in Australia and its states and territories.[21]

Extension to tax advisers

In April 2011, Assistant Treasurer Bill Shorten announced a consultation on extending privilege to accountants providing tax advice, like their American counterparts.[22]

See also

Other Privileges

While the main perception of professional legal privilege is the client Lawyer relationship some Australian States a extend this privilege to "communication made by a person in confidence to another person .... in the course of a relationship in which the confidant was acting in a professional capacity".[23] This is often interpreted as being between a health professional and their patient. It may however, extend to confidential advice from social workers, and accountants.

In some jurisdictions in Australia privilege may also extend to Journalists[24](Shield Laws), and priests[25] It may also be invoked in a Public interest,[26] or Matters of State[27] issue. Settlement Negotiations[28] may also be privileged.[29]

Spousal privilege is held to be non existent in Australian Common Law.[30][31] Thought it may exist in statute[32][33]

References

  1. ↑ Desiatnik 1999, p. 9
  2. ↑ ALRC Discussion Paper 73, "Client Legal Privilege and Federal Investigatory Bodies", Chapter 2.
  3. ↑ 'The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission' (2002) 213 CLR 543, per Kirby J at [85]–[86])
  4. ↑ ALRC Discussion Paper 73, "Client Legal Privilege and Federal Investigatory Bodies", Chapter 1, pages 22-23.
  5. ↑ 5.0 5.1 Anderson, Williams & Clegg 2009, p. 540
  6. ↑ (1999) HCA 67 [1] see also, Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 [2]
  7. ↑ ALRC Discussion Paper 73, "Client Legal Privilege and Federal Investigatory Bodies", Chapter 3, pages 65-66.
  8. ↑ Esso Australia Resources Ltd v Commissioner of Taxation M53/1999 [1999] HCATrans 343 (28 September 1999)
  9. ↑ Evidence Act 1995 (NSW) s117.
  10. ↑ Evidence Act 2001 (Tas)
  11. ↑ Desiatnik 1999, pp. 19–20
  12. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  13. ↑ (1999) 201 CLR 1
  14. ↑ Sevic v Roarty [1998] NSWSC 462 (14 August 1998) Austlli
  15. ↑ [2007] FCA 1445
  16. ↑ Allens Arthur Robinson Publication, In-house lawyers and claims for privilege, September 2007
  17. ↑ [2004] ACTSC 78
  18. ↑ [2006] NSWSC 530
  19. ↑ [2007] [3] AATA 1792
  20. ↑ ALRC Discussion Paper 73, "Client Legal Privilege and Federal Investigatory Bodies", Chapter 3, page 72.
  21. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  22. ↑ Accountants, lawyers take potshot at each other over professional privilege, The Australian, April 18, 2011
  23. ↑ NSW Evidence Act 1995 s126A.
  24. ↑ Evidence Act 1995 No 25 s126K.
  25. ↑ NSW Evidence Act 1995 s127.
  26. ↑ Evidence Act 1995 s129.
  27. ↑ NSW Evidence Act 1995.
  28. ↑ NSW Evidence Act 1995 s131.
  29. ↑ NSW Evidence Act 1995 section 126A.
  30. ↑ High Court rules no spousal privilege 30 November 2011 news.com.au (accessdate 1 April 2014).
  31. ↑ Australian Crime Commission v Stoddart (2011) HCA 47 (30 November 2011).
  32. ↑ Evidence Act 2001 (Tas) s18.
  33. ↑ EVIDENCE ACT 1995 (NSW) s18.

Bibliography

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