THE FEDERAL Government should enact legislation making it clear that client legal privilege applies to the investigative powers of federal agencies, and can only be overriden through direct reference to coercive powers, according to proposals by the Australian Law Reform Commission (ALRC).
The ALRC has suggested strengthening the legal underpinnings of client professional privilege as one way to avoid what it sees as the primary concern — the lengthy delays caused by legal privilege claims.
Professor Rosalind Croucher, the commissioner in charge of the ALRC review, said one of the problems with the present common law approach to client legal privilege (CLP) was the need to resort to the courts to determine whether it had been waived or not.
By clearing up the uncertainty over when privilege applies first, it would then avoid much of the court action to determine this point, she said. “It’s to try and avoid expensive and time consuming litigation to sort out points of common law.”
“One of the difficult aspects of the common law doctrine is the issue of when privilege has been abrogated by necessary implication,” she said. “We’ve actually raised the bar on this by saying the default position is that client legal privilege applies, and if parliament seeks to abrogate privilege, it must do so expressly.”
Telstra group general counsel, Will Irving, welcomed the ALRC’s recognition of the importance of CLP to the legal system, but he was critical of the original reference from the Government and the implications this has for the findings of the inquiry.
“Because the reference from the Attorney-General focussed on the efficiency of Commonwealth investigations, I fear that the report takes too much for granted that it is systemically acceptable to have privilege overridden in the interests of that efficiency,” he said.
“The problem is that once clients and their advisers know that a government can, whether for political purposes or otherwise, override confidentiality at some future time by having something treated as a major investigation or by calling a Royal Commission then they can have no certainty at the time they are seeking or giving advice that the advice will remain confidential.”
He felt the present safeguards were sufficient, including the fact privilege is overridden if it is claimed over advice that aids or counsels illegal conduct, the need to establish the material claimed was for the dominant purpose of giving legal advice, and that lawyers “risk their livelihoods if they make bogus claims for privilege”.
“General wholesale abrogation is overkill given the existing anti-abuse mechanisms in my view,” he added.
But the ALRC discussion paper released this week says parliament should only abrogate privilege under certain circumstances. These include whether it is a matter of “major public importance”, or if it concerns a covert investigation.
It also said the parliament should consider whether the information sought can be obtained another way without abrogating privilege.
To reduce the mistrust and “shadow boxing” that often prevails between investigative bodies and those that claim privilege, Croucher said there should also be clear directions given by the investigators and more detailed information provided by privilege claimants.
These include federal investigating bodies publishing policies and procedures on how they will notify whether privilege applies, and the provision of a “mechanism” to make privilege claims requiring claimants to adequately identify the documents covered by the claim and detail the grounds for the claim, and meet set deadlines.
The commission also proposes that the government allow for parties to agree on an initial non-court alternative when a federal body wishes to dispute a claim for privilege, and impose a 14-day time limit to reject the use of an “independent review mechanism” and go to court.
In addition, the law reform commission suggests client legal privilege (CLP) should be extended to accountants where they are providing legal advice on tax matters. Croucher said this would strengthen existing guidelines applied by the tax office which already extended a form of privilege for tax advice documents.
The Law Council has raised specific concerns about this proposal. President Tim Bugg said there is no clear need to do so, and pointed out that accountants were not subject to the same level of regulation as lawyers.