find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Law reform commission calls for privilege revamp

Law reform commission calls for privilege revamp

CLIENT LEGAL privilege is still viewed as a right of paramount importance, but a plethora of unclear legislation has led to confusion over its application, and in some instances its abuse, in…

CLIENT LEGAL privilege is still viewed as a right of paramount importance, but a plethora of unclear legislation has led to confusion over its application, and in some instances its abuse, in federal investigations.

Following a direction from the former Attorney General in late 2006, the Australian Law Reform Commission commenced an inquiry into the application of client legal privilege to the activities of federal government bodies with coercive information gathering powers.

The findings of the year long inquiry, which include 45 recommended changes to the current regime, were tabled in parliament last week in a report entitled Privilege in Perspective: Client Legal Privilege in Federal Investigations.

The inquiry identified over forty federal government bodies with coercive information gathering powers, along with Royal Commissions which can be established when required; all governed by a multitude of different legislation.

According to report, most of this legislation doesn’t specifically deal with the application of client legal privilege, and the ones that do are often inconsistent. This has lead to uncertainty over the powers of these bodies which is now requiring time consuming and costly litigation to clarify.

The Commission’s president, Professor David Weisbrot, said that while there are competing interests that need to be balanced, there is still a general consensus that privilege is a right of central importance that should prevail, other than in extenuating circumstances.

The inquiry found however, that the lack of clear, consistent legislation has resulted in the right being abused in some instances.

“Unfortunately there are cases in which it appears claims of privilege have been used primarily to delay or frustrate investigations — with some disputes taking years to resolve. Many of our recommendations focus on streamlining the process for handling claims of privilege, and deterring or punishing abuses,” he said.

Accordingly, the report’s primary recommendation is the development of a single piece of legislation covering all aspects of the application of client legal privilege in federal investigations.

“A single federal statute would make it clear that privilege applies unless expressly modified or abrogated by another statute, as well as establishing a system in which regulators and clients would have to operate in a much more open and transparent manner, according to published policies,” said Professor Rosalind Croucher, the commissioner in charge of the inquiry.

The report also recommended extending privilege to tax law advice provided by accountants where that advice is sought by the Australian Taxation Office and introducing a streamlined procedure for resolving privilege disputes. It also proposes a targeted education program to improve lawyer’s understanding of their legal and ethical obligations surrounding privilege, and clarifying and strengthening the disciplinary procedures which would apply in cases where asserting privilege might amount to unethical conduct.

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

Law reform commission calls for privilege revamp
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Scales of Justice
Oct 19 2017
‘Ego status’ compelled ex-lawyer to defraud $2.97m, court told
Debarred lawyer John Gordon Bradfield told an NSW District Court that he was driven by “ego status...
Australian Lawyers Alliance (ALA), Queensland’s new industrial manslaughter legislation,
Oct 19 2017
ALA welcomes ‘tough’ Qld manslaughter laws
The Australian Lawyers Alliance (ALA) has welcomed Queensland’s new industrial manslaughter legisl...
Legal podcasts, tune in, microphone
Oct 19 2017
Legal podcasts you have to tune in to right now
The rise of the internet has hailed in a new dawn for storytelling. Here’s our top pick of podcast...
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 & ...