What is client legal privilege?
Client legal privilege is a right that can be exercised by legal practitioners resisting the disclosure of certain information concerning a client that would otherwise be required to be disclosed. It is both a right under the common law (the law developed by the decisions of judges, courts and tribunals) and under the uniform evidence law in Australia.
This right can be exercised wherever disclosure of information may be compelled, including during examinations conducted by administrative bodies such as the Australian Criminal Intelligence Commission (ACIC). Notably, only the common law right of client legal privilege can be exercised during examinations before the ACIC, as the uniform evidence law has no application (under section 4 of the Evidence Act 1995 (Cth).
How does client legal privilege operate in the ACIC?
The Australian Criminal Intelligence Commission (ACIC)’s coercive powers facilitate the gathering of intelligence where traditional law enforcement methods are likely to be unsuccessful. These powers can only be described as draconian; the Australian Crime Commission Act 2002 (Cth) erodes many fundamental rights and privileges that are normally enjoyed by those under criminal investigation.
For example, a witness summoned to appear before the ACIC can be compelled, on pain of punishment, to give evidence that on themselves and others that would tend to incriminate them or those other individuals.
However there is one privilege that remains relatively sacred under the Australian Crime Commission Act: client legal privilege.
When can it be raised?
As client legal privilege is a right exercised by legal practitioners, it can only be raised if:
- The examinee is a legal practitioner;
- The examiner asks questions of the examinee or requires the examinee to produce documents that would disclose a privileged communication made by or to the examinee in his or her capacity as a legal practitioner;
- That communication falls under one of the two common law limbs of client legal privilege, namely, advice or litigation privilege.
Advice privilege protects confidential communications made between a lawyer and a client from production in proceedings where such communications were made for the dominant purpose of the lawyer providing (or the client receiving) legal advice.
Litigation privilege protects confidential communications made between:
- A lawyer and a client, for the dominant purpose of use in, or in relation to, existing or anticipated legal proceedings;
- A lawyer, client and a third party, for the dominant purpose of use in, or in relation to, existing or anticipated legal proceedings.
The right can be raised in two different circumstances, and the examples below illustrate how the right might be raised.
X, a legal practitioner, is summoned to appear to give evidence and produce documents at the ACIC pursuant to section 28(1) of the Australian Crime Commission Act (ACC Act). X is represented by Nyman Gibson Miralis. The ACIC are investigating one of X’s old clients, Z.
During X’s examination, the examiner asks questions that would disclose a privileged communication between X and Z. X’s Criminal Defence Lawyer raises an objection pursuant to section 30(3) of the ACC Act, advancing the argument that the answer to the examiner’s question would disclose a privileged communication made by or to X in his capacity as a legal practitioner.
Later, X is asked to produce email correspondence (in documentary form) between X and Z that touches upon anticipated legal proceedings. X’s Criminal Defence Lawyer raises an objection pursuant to section 30(3) of the ACC Act, advancing the argument that the document would disclose a privileged communication made by or to X in his capacity as a legal practitioner.
X, a legal practitioner, is issued with a notice to produce a document before a member of staff of the ACIC pursuant to section 21A of the ACC Act. The document contains a privileged communication made by X in his capacity as a legal practitioner to a former client, Z.
X’s Criminal Defence Lawyer from Nyman Gibson Miralis corresponds with the examiner, advancing the argument that X is not required to produce the document pursuant to section 21D of the ACC Act.
Importantly, the common law does not allow for client legal privilege to be raised in respect of a communication made for a purpose that is contrary to the public interest. That is, where the communication is made in furtherance of a purpose that is illegal or improper, whether or not the legal practitioner knew of that purpose. The ACIC would likely be aware of any illegal or improper purpose through investigation.
Who determines whether communications are subject to client legal privilege?
Even though an examinee may raise client legal privilege during an examination before the ACIC, the issue of whether or not the communications are privileged will still have to be determined.
The ACC Act does not nominate a person or body to make this determination, and there is no precedent in case law. Pursuant to section 25A(1) of the Act, an examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.
However, it is doubtful whether this provision gives the examiner the power to determine whether communications between a lawyer and a client are privileged or not, as sections 21D and 30 of the ACC Act provide mechanisms whereby a legal practitioner may refuse to produce a document or thing, or answer questions, if the document, thing or answer reveals a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner.
It is therefore more than likely that the appropriate person to determine a dispute about privilege is a Federal Court Justice sitting in the Federal Court or in the Federal Circuit Court.
Can client legal privilege be waived?
At common law, client legal privilege can be waived in two ways:
- Expressly, by intentionally disclosing a privileged communication;
- Impliedly, by engaging in conduct that is inconsistent with the maintenance of the confidentiality that the privilege protects.