IN THE aftershock of the release of the Cole Inquiry report last week, the Shadow Attorney-General has branded reform to legal professional privilege (LPP) overdue, arguing that it should extend to more than federal agencies.
The timing of the Government inquiry into LPP is an effort to deflect pressure over its own departments’ performance during the scandal, according to Roxon.
“I think that [the Government has] done two of the things that are the easiest to do,” she said, citing the announcement of an inquiry by the Australian Law Reform Commission (ALRC) as the first of these. The second is to rush into parliament the Royal Commission Amendment (Records) Bill.
“They clearly want to look like they are doing something quickly, to respond to the scandal,” Roxon said.
“But after having been so slow off the mark, and neglecting this issue for a long time, we still need to make sure that any changes that we make are good ones, not just a knee-jerk reaction to this particular situation,” she said.
The inquiry, announced by Attorney-General Philip Ruddock last week, limited the ALRC’s evaluation to the activities of Commonwealth investigatory agencies. “The ALRC will look at legal professional privilege and its impact on all Commonwealth bodies, including royal commissions, that have coercive information gathering or associated power,” Ruddock said.
But Roxon believes that a review of LPP should be on much broader terms than merely its application to matters before Commonwealth agencies. “I think there is a bigger question about whether it is being used to avoid appropriate scrutiny of other transactions,” Roxon said.
“It would be better for us to look at a more comprehensive way of rethinking LPP — to keep the public interest at the front, work out what legitimate protections are needed for individual clients, and what other obligations there are of lawyers to not misuse it, even if their clients ask them to do so,” she said.
ALRC President Professor David Weisbrot said the ALRC has known for some time that legal professional privilege can cause significant problems for federal regulatory agencies, and that it can often mean the difference between whether a case proceeds criminally or civilly.
Two earlier ALRC reports — Principled Regulation in 2002 and Uniform Evidence released earlier this year — highlighted the need for what Weisbrot called a “root and branch” review of legal professional privilege in the context of federal regulatory bodies.
Weisbrot said that any changes to LPP could mean that clients have to be more careful about the information they disclose as it may be discoverable later.
“The basis of this principle has always been that there is a strong interest in clients being full and frank with their lawyers, and that even if that meant they disclosed criminal or embarrassing behaviour, they should be able to do that, as that’s the way the administration of justice is best served,” Weisbrot said.
“But we don’t want a situation where clients have to shield documents from their own lawyers.”
Instead, the ALRC will seek to make recommendations that will help prevent the privilege being used as a cynical delay or cost tactic.
Weisbrot said that any recommendations made will seek to respect the principle on which the privilege is based.
“The High Court in this area has said the privilege is a right, not just a procedural safeguard. So it’s not something we will be mucking around with in a cavalier fashion,” he said.
Yet Roxon differed with Weisbrot on this point. She believes the important issue is “that if lawyers want to maintain a privilege, which it is - a privilege not a right - then we need to make sure it’s being used properly, and there needs to be some better mechanism for making sure that’s the case”.
In contrast to those in support of the need for review of LPP, June McPhie, President of the NSW Law Society, said the “decision by [Ruddock] to ask the [ALRC] to report on legal professional privilege reform in relation to all federal investigative agencies is merely an overreaction to the findings of the Cole inquiry”.
“The Law Society supports the view that legal professional privilege should never be abused but there are sufficient checks and balances to ensure that this does not occur,” she said.