Client Legal Privilege and Federal Investigatory Bodies

The Australian Law Reform Commission (ALRC) has released a  Discussion Paper, Client Legal Privilege  and Federal Investigatory Bodies (DP 73), containing 42 proposals aimed at addressing lengthy and costly disputes over client legal privilege in federal investigations.

The paper adopts the definition of client legal privilege formulated by Dr Sue McNicol:
It provides that, in civil and criminal cases, confidential communications passing between a lawyer and her or his client, which have been made for the dominant purpose of seeking or being furnished with legal advice or for the dominant purpose of preparing for actual or contemplated litigation, need not be disclosed in evidence or otherwise revealed. This rule also extends to communications passing between a lawyer or client and third parties if made for the purpose of actual or contemplated litigation.

The ALRC's research identified 41 federal investigatory bodies—as well as Royal Commissions that are established from time to time—that have coercive information-gathering powers. Many of the laws governing these bodies provide no guidance about whether client legal privilege applies wholly or in part. In those laws that do address privilege, there is no consistency of language or approach.

The ALRC proposes that where privilege applies, there should be a consistent legal framework. Where Parliament determines that privilege should be abrogated, this should be on the basis of clear principles—that is, where there is a significant public interest, and where legal advice is central to the matters being investigated. Where it is abrogated, appropriate safeguards should be put in place about the subsequent use of the information disclosed.

Other key proposals include:

• to allow privilege to apply to advice on taxation law provided by accountants;
• requiring parties claiming privilege to provide details of privileged documents and the basis of the claim; and
• improved education and training for lawyers concerning their ethical responsibilities in relation to making privilege claims.

The ALRC is seeking community feedback before a final report is completed in December 2007. Submissions close on 1 November 2007.