find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (1-3 PAE)
Category: Insurance and Superannuation Law | Location: Sydney NSW 2000
· Join a dynamic Firm · Excellent career growth opportunity
View details
In-house lawyer 1-4 PAE
Category: Generalists - In House | Location: Adelaide SA 5000
· Leading Brand · Report to a Dynamic Legal Counsel
View details
ALRC weighs up LPP

ALRC weighs up LPP

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…

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.”

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

ALRC weighs up LPP
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Unite
Aug 22 2017
Professionals unite in support of marriage equality
The presidents of representative bodies for solicitors, barristers and doctors in NSW have come toge...
Aug 21 2017
Is your firm on the right track for gig economy gains?
Promoted by Crowd & Co. The way we do business, where we work, how we engage with workers, ev...
Scales of Justice, Victorian County Court, retiring judges
Aug 21 2017
Replacements named for retired Vic judges
Two new judicial officers have been appointed in the Victorian County Court, following the retire...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...