Guidance note on client legal privilege (CLP) and federal regulators
10 December 2025
The Law Council has released a new Guidance Note on CLP and federal regulators to assist legal practitioners in dealing with federal regulators on CLP matters when responding to information requests, including from the ATO, ASIC and ACCC.
CLP, or legal professional privilege as it also referred to, is an important aspect of Australia’s system of administration of justice and facilitates the rule of law in the public interest. The strong protections afforded by CLP reflect the public interest in ensuring that clients can communicate openly with their lawyers, and that lawyers can provide full and frank advice without fear of disclosure.
The Guidance Note reaffirms that while regulators hold significant statutory powers, these operate alongside the common law doctrine of CLP, which protects confidential lawyer-client communications. Legal practitioners, whether advising clients or responding to enquiries directed to them personally, must carefully balance disclosure obligations with their professional duty to maintain confidentiality.
The application of CLP has raised concern in different federal contexts, and contemporary public statements from federal regulators have intensified scrutiny of the legal profession’s use of CLP. In August 2023, allegations of improper claims of privilege in this context led to the announcement of a joint review by government on the use of CLP in Commonwealth investigations (Joint Review) led by the AGD and Treasury. Recent high-profile cases, including Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, highlighted legal and reputational risks arising from allegations of improper assertions of CLP. A further development by several federal regulators that impacts on the way the legal profession is expected to respond to information requests is the introduction of agency level protocols and guidelines prescribing how to articulate claims of privilege.
The Guidance Note promotes a proportionate, practical approach to issues regarding CLP when engaging with federal regulators. The Guidance Note is particularly relevant as the Law Council continues to engage with the ongoing Joint Review, which is expected to continue into 2026. The development of the Guidance Note is also aligned with the Law Council’s call for commitment in its 2025 Call to Parties to:
- promote awareness and understanding across Government and Parliament of the vital public interest purpose that CLP serves; and
- ensure that CLP is respected and preserved in practice as well as in form.
The Law Council acknowledges the contributions of its constituent bodies, and its Client Legal Privilege Working Group, in the development of this Guidance Note, which is now available on the Law Council’s website.
Last Updated on 09/12/2025
Share
Tags
Most recent items
Law Council
2025 Law Council Gala Dinner
Law Council