No privilege here

Legal professional privilege, a long held common law right that quite often may not apply or maybe open to scrutiny.

What is it? Generally, it allows lawyers to resist calls for the release of documents and information between a client and their lawyer, where those materials were created for the primary purpose for giving or obtaining legal advice.

Despite the often-cited words "legal professional privilege or client legal privilege applies", many situations arise where it may not apply or maybe open to scrutiny.

One situation is where statutory authority plays a part. Clients and their lawyers must be wary of situations where the matter they are dealing with involves statutory authority. There are many statutes in Australia that contain provisions that have information gathering powers.

These statutes generally consider principles of legality. That the power clearly expresses parliaments intention, is one that is proportionate and limited to the purpose of meeting the object of the statute and is necessary. For example, the Ombudsman's Act 1978 (Tas) and that of the Commonwealth, contains a provision that allows the Ombudsman to gather documents for the purpose of making an assessment as to whether it should undertake preliminary enquiries or an investigation.

Such a circumstance may arise where a government agency or public authority denies a person a right to information or freedom of information request on the grounds that the information is the subject of legal professional privilege. Quite often right to information or freedom of information statutes contain a provision that exempts the agency or authority from providing information that is privileged.

The Ombudsman, having received a complaint from a person requesting the disclosure of information, may require the agency or the authority to produce the privileged information. This is so the Ombudsman can undertake an assessment as to whether the information should have been released to the person requesting it.

That however is as far as the Ombudsman's authority extends. It cannot use the privileged material for any other purpose other than that to which the statute allows. It cannot for example require the agency or authority to release the information if it was in fact privileged.

Other statutes however go further and may encroach on the privilege to the extent that the privilege is abrogated completely. These statutes obviously affect principles of justice and fairness, yet are usually enacted under the veil of public interest or national security. Generally limited to Commonwealth statutes, these are ones for discussion at another time.

Key takeaways - consider who your client is, their particular circumstances, other authorities or agencies involved and the law that does or may apply to all.