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1.

Client Legal Privilege


Recognised by English common law as a basic human right, legal privilege seeks to ensure legal
communications remain confidential1. This privilege dates back to the Elizabethan era, and underwent
significant developmental changes during the 18th and 19th centuries, where at the time, it was
considered as an evidentiary rule only.2 Today, client legal privilege is still seen as a contentious area
of the law, as the Administrative Review Council noted in their 2008 investigation. 3
The Law of privilege operates to exclude evidence that is otherwise relevant because it is privileged.
Client Legal Privilege, also known as Professional Legal Privilege is a right that belongs to the client,
not the professional, with the client held responsible to both preserve, and forego the privilege. The
privilege is a fundamentalprinciple of the common law, 4 arising when the dominant purpose for
the communication is to give advice, and it is an absolute privilege.
The client may lose privilege if communications were to stop being confidential, for example a
document made available to the general population.
The common law version of client legal privilege was commented on in Waterford v The
Commonwealth5 by Mason and Wilson JJ, stating that legal professional privilege is a balancing
exercise in competing public interests, whereby the importance of administering of justice overrides
the admission of all documentary evidence needed to ensure a fair trial.6
Client Legal Privilege can be broken in to two limbs:
i.
ii.

Legal Advice Privilege


Litigation Privilege

Two Limbs and Legislation


In Australia, the test for professional privilege falls under common law, protecting written and oral
communications between a lawyer and their client. Sections 18 and 19 of the Commonwealth
Evidence Act7
1 Australian Law Reform Commission, Traditional Rights and Freedoms
Encroachments by Commonwealth Law, Interim Report No 127 (2015).
2 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR
501, 581(Kirby J).

3 Administrative Review Council, The Coercive Information-Gathering Powers of


Government AgenciesReport No 48 (May 2008) 51.

4 Baker v Campbell (1983) 153 CLR 52, 117 (Deane J).


5 [1987] HCA 25, [8];(1987) 163 clr 54, 64-65.
6 Ibid.
1

i.

Legal Advice Privilege

Under section 118, evidence cannot be adduced if, on objection by a client, the court finds that
adducing the evidence would result in disclosure of: confidential communication between lawyer and
client, between two or more lawyers acting on behalf of the client, or the contents of confidential
documents for the dominant purpose of the lawyer/s providing the client with legal advice. 8
ii.

Litigation Privilege

Under section 118, evidence cannot be adduced if, on objection by a client, the court finds that
adducing the evidence would result in disclosure of: confidential communication between the client
and another person or lawyer, or the contents of a confidential document for the dominant purpose
of the client receiving legal advice relating to a preceding in Australia or overseas, where the client
may have been a party.9
Professional privilege provisions that are either identical, or similar, have been adopted in New South
Wales.10

2. Analysis of Encroachments on Client Legal Privilege


Upon reviewing legislation in NSW, Chief Justice Bathurst found there to be a total of 397
encroachments in the areas of the right against self-incrimination, the presumption of innocence, and
client legal privilege. Out of 397 encroachments, Bathurst AC found there to be 162 that arguably
abrogate the right to legal professional privilege 11
Bathurst AC provides startling figures concerning these encroachments. Out of the 162, 70% relate to
the mandatory production of information, subject to a lawful excuse, 36 provisions in relation to the
express obligation to present information, with no option of presenting a lawful excuse, and 13
provisions that prevent legal professional privilege from forming, or remove entirely to begin with. 12

7 Commonwealth Evidence Act 1995 (Cth) s 118-119.


8 Ibid, s118.
9 Ibid, s119.
10 Evidence Act 1995 (NSW) s117.
11Bathurst AC, The Nature of the Profession; The State of the Law (Speech
delivered at the Opening of Law Term, Sydney, 4 February 2016).
12 Ibid, 13 [43].
2

A concerning encroachment is that of informed consent to forensic procedures, in section 75V of the
Crimes (Forensic Procedures) Act,13 which allows police to deny a person/s the right to private
conversations with their lawyer, if there is evidence at risk of being destroyed. Bathurst AC raises
questions as to whether this encroachment is rational, as the impact is not only on the client, but the
lawyer also becomes seen as untrustworthy, somehow aiding in the destruction of information in
private. The encroachment would indeed seem to imply such a thing, questioning the character and
good faith of lawyers.14
If we are to look to section 22 of the Crime Comission Act, I can be seen that the commission has the
power and ability to refuse an individual access to a lawyer, a right every individual should be entitled
to. The commission is able to prevent this, if they believe the lawyer may somehow inhibit the
investigation they are carrying out. Though, this is shadowed with ambiguity is it questioning all
lawyers professional conduct in carrying out interviews in a just manner, or only certain lawyers? The
The main reasons why client legal privilege laws are usually abrogated are to do with laws which are
aimed at government transparency, ad hoc legal investigations, and the coercive information-gathering
tactics of federal investigatory bodies. 15
At present there are a number of commonwealth laws abrogating client legal privilege, forcing
individuals to produce information they would otherwise wish not to. While these laws are in place to
attempt to promote transparency, they are in fact stripping individuals of a human right the right to
keep private communications and documents shared between themselves and their lawyer/s, private.
The Commonwealth Ombudsman, a government body, abrogates client legal privilege. The following
provisions discuss immunities:
i)
Crimes Act 1914 (Cth) s 3ZZGE(1)(d)(ii)
a. This states that client legal privilege will not be accepted as a reason or excuse in
choosing to not disclose information to the Ombudsman. Having said this, any

ii)

information or evidence is unable to be used to later prosecute the individual.16


Crimes Act s 15HV
a. States that the Ombudsman should be given free access to any information, regardless

iii)

of an individuals claims to client legal privilege.17


Judiciary Act 1903 (Cth) s 55ZH
a. An individual will not be able to refuse the requirement to produce information, on

iv)

the basis of client legal privilege.


Ombudsman Act 1976 (Cth) s 9(4)(ab)(ii)

13 2000 (NSW) s 75V.


14 Above n 11, 14.
15 Above n 1, 372.
16 Above n 1, 374.
17 Above n 1, 374.
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a. If an Ombudsman has reason to believe that an individual is in fact able to produce


information in relation to an investigation, they will not be able to be protected by
client legal privilege. Any information that becomes disclosed by the individual, will
not be able to be produced in later proceedings, as it will be inadmissible. 18

The encroachments have the ability to produce large injustices, forcing individuals to carry the burden
of complying with such obligations at law, and being forced to waive their right to conversations in
private with their lawyer. In doing this, the stability of the rule of law can be question, and whether
our justice system is unnecessarily placing strain upon itself in areas that need not be altered.

19

Bathurst AC discusses the core reasons encroachments prevent individuals from accessing both their
human rights and legal rights. The justice system is failing those who require it, by placing
unnecessary burdens on them, and failing to let them access legal advice, by abrogating the ability to
access the client legal privilege.

18 Above n 1, 375.
19 Above n 1.
4

Bibliography
A. JOURNAL ARTICLES, BOOKS, REPORTS
Administrative Review Council, The Coercive Information-Gathering Powers of Government
Agencies Report No 48 (May 2008) 51.
Australian Law Reform Commission, Traditional Rights and Freedoms Encroachments by
Commonwealth Law, InterimReport No 127 (2015).
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 581
(Kirby J).

B. CASES
Baker v Campbell (1983) 153 CLR 52, 117.
Waterford v The Commonwealth [1987] HCA 25, [8];(1987) 163 clr 54, 64-65.

C. LEGISLATION
Evidence Act 1995 (NSW).
Commonwealth Evidence Act 1995 (Cth).
Crimes (Forensic Procedures) Act 2000 (NSW).
Crimes Act 1914 (Cth)
Judiciary Act 1903 (Cth)

D. OTHER
Bathurst AC, The Nature of the Profession; The State of the Law (Speech delivered at the Opening
of Law Term, Sydney, 4 February 2016).

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