THE FEDERAL privacy commissioner says legal professional privilege has had no impact on its coercive powers, and sees no reason to clarify how the privilege applies to its powers.
In a submission to the Australian Law Reform Commission’s inquiry into LPP the Office of the Privacy Commissioner (OPC) says it has powers to coerce individuals to provide information under ss 44 and 45 of the Privacy Act.
Among the terms of reference for the inquiry — Client Legal Privilege and Federal Investigatory Bodies — the ALRC has been asked whether LPP needs further modification or abrogation to assist Commonwealth investigations, and whether there needs to be further clarification of existing provisions that modify or abrogate LPP to harmonise how it applies to all Commonwealth agencies.
“The OPC does not consider that there is a need to clarify the application of legal professional privilege to the coercive information gathering powers under the Privacy Act,” the OPC says in its submission.
“OPC has not encountered difficulties in relation to the application of legal professional privilege and considers that the existing regime is sufficient.”
Under s 66 of the Privacy Act, the OPC’s coercive powers can be waived if an individual has a “reasonable excuse”.
“The OPC takes the view that, even if it were to be suggested that certain provisions of the Act may impact on legal professional privilege, the ‘reasonable excuse’ exception in s 66(1B) includes a claim for legal professional privilege.”