Review of the Use of Legal Professional Privilege in Commonwealth Investigations
The Law Council of Australia provided a response to the Attorney-General’s Department’s and Treasury’s Discussion Paper, ‘Review of the use of Legal Professional Privilege in Commonwealth Investigations’ (Discussion Paper), which forms part of the joint review of the use of legal privilege in Commonwealth investigations (the Review).
As an initial point, when discussing issues relating to legal privilege, the Law Council’s preference is to refer to client legal privilege (CLP), rather than legal professional privilege. A key reason for this approach is to emphasise that privilege belongs to the client, not the legal practitioner. As such, a practitioner may only disclose privileged communications if clearly instructed to do so by their client.1
1 It is acknowledged that, currently at the Commonwealth level, the phrase ‘client legal privilege’ only applies to privilege in a courtroom. Section 131A of the Evidence Act 1995 (Cth) does not operate to allow CLP to be used in pre-trial or non-curial proceedings.
Last Updated on 17/04/2025
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