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Australian Law Reform Commission to review legal professional privilege.



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ATTORNEY-GENERAL THE HON PHILIP RUDDOCK MP

NEWS RELEASE

Parliament House, Canberra ACT 2600  Telephone (02) 6277 7300  Fax (02) 6273 4102 www.ag.gov.au

30 November 2006 222/2006

AUSTRALIAN LAW REFORM COMMISSION TO REVIEW LEGAL PROFESSIONAL PRIVILEGE

Attorney-General Philip Ruddock today announced an inquiry by the Australian Law Reform Commission into legal professional privilege as it relates to the activities of Commonwealth investigatory agencies.

“The Cole Inquiry into the UN Oil-for-Food Program raised important questions in relation to legal professional privilege and its impact on Commonwealth investigations,’’ said Mr Ruddock.

AWB argued in the Federal Court that a large number of documents were subject to the privilege and not available to the Inquiry.

While AWB’s challenge was unsuccessful, Commissioner Cole has recommended that consideration be given to providing that legal professional privilege not apply to royal commission proceedings.

There are also concerns legal professional privilege is used to frustrate enforcement of Australian laws by investigatory agencies such as the Australian Securities and Investments Commission.

“The ALRC will look at legal professional privilege and its impact on all Commonwealth bodies, including royal commissions, that have coercive information gathering or associated power,” said Mr Ruddock.

“Legal professional privilege is a significant common law right. Its application needs to be considered properly by an independent public inquiry, not knee-jerk responses.

“This ALRC inquiry will give the community and key stakeholders a chance to have their say on this important issue.”

The ALRC inquiry is to be completed by 3 December 2007.

The terms of reference for the inquiry are attached.

Media Contact: Michael Pelly 02 6277 7300

Attorney General News Release 2

Terms of reference - legal professional privilege and Commonwealth investigatory bodies

I, Philip Ruddock, Attorney-General of Australia, having regard to:

• the fact that legal professional privilege is a common law privilege

• the fact that legal professional privilege, like other common law rights, can be

modified or abrogated by legislation in cases where the legislature affords a competing public interest consideration a higher relative priority

• the fact that questions of legal professional privilege commonly arise in

relation to the exercise of coercive information gathering powers by Commonwealth bodies

• the many different forms of Commonwealth statutory provisions affecting the

question of legal professional privilege in that context, and

• the provisions of the Evidence Act 1995 dealing with client legal privilege

refer to the Australian Law Reform Commission (‘the Commission') for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the application of legal professional privilege to the coercive information gathering powers of Commonwealth bodies.

1. In performing its functions in relation to this reference, the Commission will:

(a) consider the investigatory or associated functions of Commonwealth bodies that have coercive information gathering or associated powers including the Australian Federal Police, Australian Crime Commission, Australian Competition and Consumer Commission, Australian Prudential Regulation Authority, Australian Securities and Investments Commission, Australian Taxation Office, Australian Communications and Media Authority, Centrelink, Medicare Australia, Commonwealth royal commissions, Commonwealth Director of Public Prosecutions, and any other relevant Commonwealth bodies, and

(b) consider the following questions:

(i) would further modification or abrogation of legal professional privilege in some areas be desirable in order to achieve more effective performance of Commonwealth investigatory functions?

(ii) would it be desirable to clarify existing provisions for the modification or abrogation of legal professional privilege, with a view to harmonising them across the Commonwealth statute book?

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(iii) would it be desirable to introduce or clarify other statutory safeguards where legal professional privilege is modified or abrogated, with a view to harmonising them across the Commonwealth statute book? and

(iv) any related matter.

2. The Commission will identify and consult with relevant stakeholders.

3. The Commission is to report no later than 3 December 2007.