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This Report reflects the law, and the policies of federal bodies, as at 1 December 2007.
© Commonwealth of Australia 2008
This work is copyright. You may download, display, print, communicate electronically and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non-commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed by letter to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or electronically via www.ag.gov.au/cca.
ISBN: 978-0-9804153-1-5
Commission Reference: ALRC 107 (Final Report)
The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 25, 135 King
Street, Sydney, NSW, 2000, Australia.
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The Hon Robert McClelland MP
Attorney-General of Australia
Parliament House
Canberra ACT 2600
21 December 2007
Dear Attorney-General
A Review of Legal Professional Privilege and Federal Investigatory Bodies On 29 November 2007, the then Attorney-General, the Hon Philip Ruddock MP, issued terms of reference for the Commission to undertake a review of legal professional privilege and Commonwealth investigatory bodies. Those terms of reference were amended by your letter dated 6 December 2007, to extend the reporting date to 24 December 2007, in order to facilitate further community consultation. On behalf of the Members of the Commission involved in this Inquiry, including Justice Robert French, Justice Susan Kenny, Justice Susan Kiefel (until September
2007) and Justice Berna Collier (from October 2007), and in accordance with the
Australian Law Reform Commission Act 1996, we are pleased to present you with the final report in this reference, Privilege in Perspective: Client Legal Privilege in
Federal Investigations (ALRC 107, 2007).
Yours sincerely
Professor David Weisbrot AM
President
Professor Rosalind Croucher Professor Les McCrimmon
Commissioner in Charge Commissioner
Contents
Contents
Terms of Reference 5
List of Participants 7
List of Recommendations 9
Executive Summary 25
1. Introduction to the Inquiry 35
Background to the Inquiry 35
Scope of the Inquiry 37
Law reform processes 40
Overview of this Report 44
2. Rationale of Client Legal Privilege 47
The need to identify rationale 47
A range of rationales 48
Submissions and consultations 62
ALRC's views 76
3. Overview of Client Legal Privilege 77
Introduction 77
The development of client legal privilege 80
Client legal privilege today 84
The comparative dimension 110
4. Overview of Federal Bodies with Coercive Information-Gathering Powers 117
Introduction 118
Criminal law enforcement 120
Prosecutions 128
Competition laws and consumer protection 129
Financial markets 132
Revenue 139
Intelligence and security 142
Public administration 148
Building and construction 150
Social security 152
Health and aged care 153
Human rights 160
2 Privilege in Perspective
Privacy 162
Border control and immigration 164
Communications 170
Environment 172
Defence 174
Energy 174
Transport 175
Other 179
Royal Commissions of inquiry 185
5. Client Legal Privilege in Federal Investigations 189
Introduction 189
Legislative provisions 190
Need for clarification 196
Achieving clarity 212
A uniform approach? 224
Achieving harmonisation 232
6. Modification or Abrogation of Privilege? 235
Introduction 235
Should client legal privilege be abrogated? 236
Other possible models of modification 279
Extension to other professionals 285
7. Safeguards 309
Introduction 309
Representation of a client in an investigation 310 Restrictions on the use of privileged information 317 Availability of privilege against third parties 350
Practice and procedure 360
8. Practice and Procedure 367
Introduction 368
Notification of application of privilege 368
Making a privilege claim 381
Unrepresented persons 417
Third parties 423
Resolving privilege disputes 429
Electronic material 459
Search warrant guidelines 471
Other policies and procedures 480
Contents 3
9. Ensuring Professional Integrity-Education and Accountability 489
Introduction 489
The question of abuse 490
Responding to abuse 497
Legal education 516
Appendix 1. Table of Legislation 531
Appendix 2. List of Submissions 537
Appendix 3. List of Consultations 543
Appendix 4. List of Abbreviations 547
Appendix 5. Index 555
Terms of Reference
Legal professional privilege and Commonwealth
investigatory bodies I, Philip Ruddock, Attorney-General of Australia, having regard to: the fact that legal professional privilege is a common law privilege the fact that legal professional privilege, like other common law rights, can be modified or abrogated by legislation in cases where the legislature affords a competing public interest consideration a higher relative priority the fact that questions of legal professional privilege commonly arise in relation to the exercise of coercive information gathering powers by Commonwealth bodies the many different forms of Commonwealth statutory provisions affecting the question of legal professional privilege in that context, and the provisions of the dealing with client legal privilege refer to the Australian Law Reform Commission ('the Commission') for inquiry and report, pursuant to subsection 20(1) of the , matters relating to the application of legal professional privilege to the coercive information gathering powers of Commonwealth bodies.
1. In performing its functions in relation to this reference, the Commission will:
(a) consider the investigatory or associated functions of Commonwealth bodies that have coercive information gathering or associated powers including the Australian Federal Police, Australian Crime Commission, Australian Competition and Consumer Commission, Australian Prudential Regulation Authority, Australian Securities and Investments Commission, Australian Taxation Office, Australian Communications and Media Authority, Centrelink, Medicare Australia, Commonwealth royal commissions, Commonwealth Director of Public Prosecutions, and any other relevant
Commonwealth bodies, and
6 (b) consider the following questions: (i) would further modification or abrogation of legal professional privilege in some areas be desirable in order to achieve more effective performance of
Commonwealth investigatory functions?
(ii)would it be desirable to clarify existing provisions for the modification or abrogation of legal professional privilege, with a view to harmonising them across the Commonwealth statute book? (iii)would it be desirable to introduce or clarify other statutory safeguards where legal professional privilege is modified or abrogated, with a view to harmonising them across the Commonwealth statute book? and (iv)any related matter.
2. The Commission will identify and consult with relevant stakeholders.
3. The Commission is to report no later than 3 December 2007.*
Dated: 29th November 2006
Philip Ruddock
Attorney-General
* In a letter dated 6 December 2007, Attorney-General Robert McClelland MP agreed to extend the reporting date for the Inquiry to 24 December 2007.
List of Participants
Australian Law Reform Commission
Division
The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this Inquiry comprises the following:
Professor David Weisbrot (President)
Professor Rosalind Croucher (Commissioner in Charge)
Professor Les McCrimmon (Commissioner)
Justice Berna Collier (from October 2007)
Justice Robert French (part-time Commissioner)
Justice Susan Kenny (part-time Commissioner)
Justice Susan Kiefel (part-time Commissioner until September 2007)
Senior Legal Officers
Kate Connors
Isabella Cosenza
Research Manager
Lani Blackman
Librarian
Carolyn Kearney
Project Assistant
Alayne Harland
Legal Interns
Elizabeth Favaloro
Anna Garsia
Caitlin Goss
Michael Hung
Lisa Le Provost
Miranda Lello
8 Privilege in Perspective
Advisory Committee Members
Professor Bob Baxt AO, Freehills
Mr David Bennett AO QC, Solicitor-General of Australia Mr Damian Bugg AM QC, Commonwealth Director of Public
Prosecutions (until October 2007)
Mr James Carter, Office of the Commonwealth Director of Public Prosecutions Mr Brian Cassidy, Australian Competition and Consumer Commission
Mr Peter Brereton, Banco Chambers
Mr Simon Daley, Australian Government Solicitor
Mr Will Day, Australian Taxation Office
Mr Tony D'Aloisio, Australian Securities and Investments Commission Mr James Faulkner PSM, Legal Services and Native Title Division,
Attorney-General's Department
Mr Will Irving, Telstra Corporation Limited
Dr Sue McNicol, Joan Rosanove Chambers
Dr Christine Parker, University of Melbourne
Mr Bret Walker SC, St James' Hall
List of Recommendations
5. Client Legal Privilege in Federal Investigations
Recommendation 5-1 The Australian Parliament should enact legislation of general application to cover various aspects of the law and procedure governing client legal privilege claims in federal investigations (hereafter referred to as federal client legal privilege legislation) in accordance with the recommendations in this Report. Recommendation 5-2 Federal client legal privilege legislation should provide that, in the absence of any clear, express statutory statement to the contrary, client legal privilege applies to the coercive information-gathering powers of federal bodies. Recommendation 5-3 The Australian Government should ensure that any legislative scheme which seeks to abrogate or modify client legal privilege does so by express reference to the particular sections or divisions within that scheme that confer coercive information-gathering powers which abrogate or modify the privilege. Recommendation 5-4 To promote national harmonisation, the Attorney-General of Australia should lead a process through the Standing Committee of Attorneys-General to encourage the states and territories to adopt the Commonwealth model proposed in
Recommendations 5-1 to 5-3 above.
6. Modification or Abrogation of Privilege?
Recommendation 6-1 In accordance with Recommendation 5-2, 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. Any such legislative provision should take into account the following factors in determining whether client legal privilege may be abrogated: (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;
10 Privilege in Perspective
(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. Recommendation 6-2 In accordance with Recommendation 5-2, 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, the Australian Parliament should amend the Royal Commissions Act 1902 (Cth) to allow that, in exceptional circumstances, the Governor-General may, as part of the Letters Patent establishing the Royal Commission, state that it is not a reasonable excuse for the purposes of subsection 3(2B) or (5) of the Act for a person to refuse or fail to produce a document on the basis that the document is subject to client legal privilege. The following factors should be taken into account in deciding whether client legal privilege may be abrogated: (a) the subject of the Royal Commission of inquiry, 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; (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 Royal Commission and, in particular, whether the legal advice itself is central to the issues being considered by the Commission. Recommendation 6-3 The Australian Parliament should amend the Inspector- General of Intelligence and Security Act 1986 (Cth), the Ombudsman Act 1976 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to state that where client legal privilege cannot be claimed over legal advice given to a Minister, an agency or an authority of the Commonwealth, this abrogation applies to litigation privilege as well as advice privilege. Recommendation 6-4 Federal client legal privilege legislation should provide that, five years after it comes into force, a review is to be conducted of the effectiveness of its provisions relating to the procedures for making and resolving privilege claims in federal investigations.
List of Recommendations 11
Recommendation 6-5 The Royal Commissions Act 1902 (Cth) should provide that, where client legal privilege has been abrogated or modified in a Royal Commission, the Commissioner must include within the report consideration of the degree to which the abrogation or modification has facilitated the effectiveness of the Royal
Commission.
Recommendation 6-6 Federal client legal privilege legislation should provide that a person who is required to disclose information under a coercive information- gathering power of the Commissioner of Taxation is not required to disclose a document that is a tax advice document prepared for that person. A 'tax advice document' should be defined as a confidential document created by an independent professional accounting adviser for the dominant purpose of providing that person with advice about the operation and effect of tax laws. A 'tax advice document' does not include 'source documents', such as documents which record transactions or arrangements entered into by a person (for example, formal books of account or ledgers). Source documents, even where given to a tax agent for the purpose of obtaining tax advice, will not be protected by the privilege. An independent professional accounting adviser must be a registered 'tax agent' for the purpose of s 251A of the Income Tax Assessment Act 1936 (Cth) or a nominee or employee of a registered tax agent, who is a qualified tax accountant. No privilege should apply to 'tax contextual information' given for the purpose of providing tax advice. 'Tax contextual information' is information about: (a) a fact or assumption that has occurred or is postulated by the person creating the tax advice document; (b) a description of a step involved in the performance of a transaction that has occurred or is postulated by the person creating the tax advice document; (c) advice that does not concern the operation and effect of tax laws. No privilege should apply where a tax advice document is created in relation to the commission of a fraud or offence or the commission of an act that renders a person liable to a civil penalty; or where the person or the accounting adviser knew or ought reasonably to have known that the document was prepared in furtherance of a deliberate abuse of power. Claims that a document is a tax advice document must be made in accordance with the procedures set out in Recommendations 8-3 to 8-5. Resolution of claims should be in accordance with the procedures set out in Recommendations 8-6, 8-7, 8-11 and 8-14.
12 Privilege in Perspective
Claims that a document is a tax advice document may be required to be certified by a lawyer in accordance with the procedures set out in Recommendation 8-3.
7. Safeguards
Recommendation 7-1 Federal client legal privilege legislation should provide that, if another federal statute expressly abrogates or modifies client legal privilege, such abrogation or modification does not extend to legal advice that relates to the investigation itself, or to the representation of the client in the investigation. Recommendation 7-2 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. Recommendation 7-3 Federal client legal privilege legislation should provide that where client legal privilege has been abrogated or modified in respect of any federal coercive information-gathering power, federal bodies should be required to notify persons the subject of such powers, as well as those who produce information on a voluntary basis, about whether any safeguards apply to the use of otherwise privileged information in subsequent proceedings.
List of Recommendations 13
Recommendation 7-4 If Recommendation 6-2 is adopted, the Royal Commissions Act 1902 (Cth) should be amended to provide that a relevant factor to be considered by a Royal Commissioner in making an order that evidence be disclosed in camera or be subject to a non-publication order is that the evidence may or will disclose communications subject to client legal privilege. Recommendation 7-5 Federal client legal privilege legislation should provide that, in the absence of an express statutory statement to the contrary, where federal legislation abrogates or modifies client legal privilege in federal investigations that abrogation or modification does not affect the holder of the privilege from maintaining privilege against a third party. Recommendation 7-6 The Commonwealth Director of Public Prosecutions (CDPP) should amend its Statement on Prosecution Disclosure to make it clear that the exception of disclosing unused privileged information to the defence applies irrespective of whether the privilege holder is the federal investigatory body that refers the matter to the CDPP, or a party that produced information to that federal investigatory body in the course of its investigation. Recommendation 7-7 If client legal privilege is abrogated or modified in respect of any federal body with coercive information-gathering powers, that federal body should: (a) implement appropriate document management systems to ensure that documents the subject of a client legal privilege claim are: (i) clearly identified or recorded as such; (ii) stored and managed appropriately, including restricting access to persons in the federal body involved in the relevant investigation; and (iii) returned, as soon as practicable, to the person who produced them; and (b) publish its policies and procedures in this regard.
8. Practice and Procedure
Recommendation 8-1 Federal client legal privilege legislation should require federal bodies with coercive information-gathering powers - the exercise of which raise, or are likely to raise, the issue of the application of the privilege - to notify persons the subject of those powers, as well as those who provide information on a voluntary basis, whether or not client legal privilege applies to: (a) the exercise of a particular power; and
14 Privilege in Perspective
(b) the voluntary production of information. Recommendation 8-2 Federal bodies with coercive information-gathering powers - the exercise of which raise, or are likely to raise, the issue of the application of client legal privilege - should develop and publish policies and procedures in relation to the manner of notifying persons the subject of those powers whether the privilege applies to the exercise of such information-gathering powers and to the voluntary production of information Recommendation 8-3 Federal client legal privilege legislation should provide a mechanism for the making of privilege claims in federal investigations. Those provisions should include a requirement that persons be given a reasonable opportunity to claim privilege, and if a federal body requests particulars of privileged communications not produced pursuant to a coercive information-gathering power, that: (a) the person specify: (1) the grounds on which client legal privilege is claimed; and (2) the facts relied upon as giving rise to the claim; (b) where claims are made in respect of communications contained in documents: (1) the person making the claim describes the documents or in the case of a bundle of documents of the same or similar nature, describe each bundle, sufficiently to enable the document or bundle to be identified including details of the following: (i) date of the document; (ii) the nature of the document and the type of communication (for example tax advice documents, defined in Recommendation 6-6, prepared by a professional accounting adviser should be indicated); and (iii) the names and positions of the authors and recipients of the communications (for example, X - partner in Y Law Firm; B - in- house counsel for C Limited); (2) if a federal body so requests: (i) the particulars of the privileged documents and the basis for the claims are to be verified on oath or affirmation by the person making the claim; and/or
List of Recommendations 15
(ii) where the person is legally represented in the federal investigation or has otherwise received legal advice in relation to making a claim for privilege, the person's lawyer is to certify that having reviewed the documents the subject of a privilege claim, that in his or her opinion, based on the client's instructions, there are reasonable grounds for the making of the claim. A federal bodyquotesdbs_dbs21.pdfusesText_27
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