The Minister representing the federal Attorney-General responded to Senator Joe Ludwig’s probes made earlier this year, clarifying how legal professional privilege is considered.

Justice and Customs Minister, Senator Chris Ellison, focused particularly on law firm Phillips Fox’s part in the Federal Government’s review of the Digital Agenda reforms.

Senator Ludwig asked in May whether all contracts in the Attorney-General’s portfolio for reviews by private law firms contain clauses that deal with legal professional privilege and how the Department should treat this issue.

In response, Senator Ellison said the contracts do not generally contain clauses that deal with legal professional privilege because it is not necessary.

When responding to questions from the Department regarding possible conflicts of interest, Ellison said law firms tendering for departmental work cannot generally refuse to disclose the names of their clients on the grounds of professional privilege.

During tendering processes, law firms may make a business decision not to provide the names of their clients. However, the Department could then consider them unsuitable to undertake the work, Ellison said.

In parliament, Ludwig madefurther enquiries about the firm’s involvement in the copyright Digital Agenda Review.

Ludwig asked whether there were any provisions in relation to legal professional privilege written into the consultancy contract with the firm for the Digital Agenda Review and what these provisions were.

Ellison last week sought to clarify any “misunderstanding” from previous questions and answers relating to legal professional privilege and Phillips Fox.

In its tender, Phillips Fox disclosed the names of clients that it acted for and that it assessed as having an interest in the “proper and efficient operation of Australia’s copyright system” and in making submissions to the review, Ellison said.

These names were supplied to the Attorney-General’s Department in confidence so that the conflict of interest requirement of the tender process could be assessed, Ellison said.

Ellison said Phillips Fox advised the Department that it acted for a number of Commonwealth and state departments and other public sector agencies.

The reason that no more specific details were supplied about these clients was due to the fact that the work that was being done would not give rise to any particular conflict of interest with the work being tendered for. “It was not necessary to provide more specific information,” Ellison said.

Answering Ludwig’s initial question, Ellison said no provisions in relation to legal professional privilege were written into the contract as it was not identified by either party as an issue requiring inclusion. The contract included provisions dealing with conflict of interest requirements and confidentiality, he said.

In an interview with Lawyers Weekly, Senator Ludwig last week said his questions in May were aimed at making such things transparent. As some have put it, he said, “we are throwing light into dark corners”.

“If the Government is intending to provide more outsourcing of legal work and reviews, then we have to ensure there is probity in the process,” Ludwig said. “If you give it to a law firm you have to ask the sixty-four thousand dollar question, and I think we have done this.”

Pressed as to whether there would be further questions on the matter, Ludwig said that he was not sure he was satisfied. However, he acknowledged, “you can’t keep coming up with more questions”. Sometimes there is no clear “something” to continue with, he said, in which case it should be put aside.

However, Ludwig stressed the matter had required some scrutiny and the questions were asked to ensure probity.