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. There is also no law which stipulates that no person in which authority is not given (anyone other the law enforcement or owners of an establishment) may restrict persons entering and leaving a premises.
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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]
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'.
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.
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. There is, invariably, much overlap between the two limbs.[6]
Sections 118 and 119 of the 'Evidence Act 1995' (Cth) provide that confidential communications created for the dominant purpose of providing legal advice or litigation are protected from disclosure to federal courts. Similar or identical provisions have been adopted in New South Wales[7] and Tasmania.[8] Legal professional privilege in the context of court proceedings is governed by the common law in the remaining Australian states.
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.[9] These two limbs of the privilege are called the advice privilege and the litigation privilege.[10]
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[11] 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.
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),[12] 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.[13] 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,[14] 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.
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,[15] 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,[16] 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.[17]
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.[18]
In April 2011, Assistant Treasurer Bill Shorten announced a consultation on extending privilege to accountants providing tax advice, like their American counterparts.[19]