THE TREATMENT of legal professional privilege varies widely not only in federal statutes but between the states, according to the Australian Law Reform Commission (ALRC).
Why this inconsistency exists will be a key focus of the Commission’s inquiry, launched this week, into whether it should be abrogated or clarified to aid the investigations of federal agencies.
ALRC president Professor David Weisbrot noted that both the NSW and Victorian royal commission acts already expressly abrogate LPP.
Other acts had “some express provision … affirming professional privilege. But most of them are silent”, he said.
The Commission has noted these discrepancies in previous reports, he said, and urged “something be done” but the Cole Royal Commission inquiry into the Iraq Oil for Food program had made it clear a closer look at LPP was needed.
“So it’s been on our agenda for the last year or two. But really it came to the pointy end towards the end of last year with the Cole Commission,” he said.
“There are concerns — most recently raised by the AWB and HIH Royal Commissions — that claims of privilege can be used cynically to frustrate investigations.”
ALRC commissioner Professor Ros Croucher, who heads the inquiry, said they had so far been consulting with a wide range of people and orgainsations, including Terence Cole from the Oil for Food inquiry, the heads of the HIH Royal Commission, lawyers and corporations.
“What’s interesting is that we find a real juxtaposition of ideas between truth seeking and also the protection of clients in their discussions with their legal advisers,” she said.
In addressing the terms of reference of the inquiry — which includes determining whether LPP should be abrogated, modified or clarified in relation to the investigations of about 40 Commonwealth agencies — she said they are asking broad questions about what is “the underlying rationale for the doctrine”.
“We hope this inquiry will help us engage in those sorts of consultations and discussions those issues, again within the focus of the federal investigatory agencies, to raise things like the competing ideas that are in there — public interests versus private rights, [or] one kind of public interest versus another kind of public interest.”
She said there were several options for abrogating privilege in the various pieces of legislation that affected Commonwealth agencies. It could be that LPP is abrogated for all the investigations of all federal agencies, or their different requirements may mean that each would have to have different stipulations.
“One model would be to abrogate the privilege for all the coercive powers of federal bodies,” an issues paper released by the ALRC states. “Another model would be to assess the appropriate position for abrogating the privilege based on the nature of each piece of legislation and the particular role and functions of the federal body concerned.”
Another alternative would be to maintain the fundamental principles of client legal privilege, but modified to limit its application to a narrower set of circumstances. For instance, the ALRC asks whether the privilege should be available to corporations.
“Other ways in which the privilege could be modified include limiting [its availability] … to certain types of confidential communications, such as advice on representation but not pre-existing documents. Client legal privilege also could be modified to adopt a ‘balancing test’ approach, whereby privilege is not absolute, but can be determined to apply based on a set of public interest criteria.”
As many of those who argue for abrogation of LPP cite the delays and costs it imposes on investigations, Professor Weisbrot said the Commission would also be considering options for non-court procedures to fast track reviews of documents over which privilege is claimed.
However, he pointed out it was more difficult in the federal jurisdiction to use alternative dispute resolution procedures.
“Suggestions have been made that we might be able to have some sort of quicker, cheaper dispute resolution mechanism,” he said.
“In a different world, that would be easier to accomplish. In our particular federal areas, the High Court has made such a strong distinction between administrative, executive action on the one hand, and the exercise of judicial authority on the other it is hard to bring in these other kinds of mechanisms, because the Brandy case and several others have said it either has to be a pure exercise of power or it’s an executive decision.”