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 (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
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
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
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 & ...