6.2.6 Legal Professional Privilege

Context

When DHS officers seek information, an employer, parent or third party may claim that legal professional privilege applies to the document or information.

Act references

CSA Act section 161

CSRC Act section 120

Description

Legal professional privilege is:

The right of a person to have withheld from evidence communications between that person and his/her legal adviser (or between the legal adviser and a third party), made in the course of obtaining legal advice or with reference to litigation.

(The CCH Macquarie Concise Dictionary of Modern Law)

or:

A common-law principle which provides that confidential communications between legal practitioner and client for the … purpose of the client obtaining, or the legal practitioner giving, legal advice or for use in existing or contemplated litigation need not be given in evidence nor disclosed by the client or by the legal practitioner, without the consent of the client.

(Butterworths Legal Words Dictionary)

The Registrar's statutory powers to obtain information provided in section 120 and 161 do not override legal professional privilege ('Daniels Corp International v ACCC [2002] HCA 29').

Wherever possible, the Registrar will avoid disputes over legal professional privilege. Accordingly, DHS officers will:

  • seek information and documents from the parent concerned rather than their legal adviser, and
  • avoid using information-gathering powers in a way that may lead to claims of privilege if there is an alternative means of obtaining the information.

Legal professional privilege & access to employer records

Wage records are not communications made in the course of obtaining legal advice or with reference to litigation. The Registrar will resist any claim of legal professional privilege in relation to wage records.

Legal professional privilege & requirements to provide information or attend & answer questions

Claims of legal professional privilege are unlikely to be encountered when exercising these powers. Information disclosed to a legal adviser does not become privileged, merely because it has been disclosed to a legal adviser.

Example: M is seeking advice in relation to a property settlement and provides a list of assets to a legal adviser in the course of obtaining legal advice. M cannot refuse to provide details of the assets or refuse to answer questions about the assets on the basis of legal professional privilege, which applies to M's communication to the legal adviser, not M's knowledge of the assets.

Legal professional privilege & requirements to produce documents

Claims of legal professional privilege are more likely to be encountered when the Registrar requires documents to be produced. The Registrar will not normally be interested in the communication of information to a legal adviser or the advice received from a legal adviser.

Example: M is seeking advice in relation to a property settlement and draws up a list of assets. M provides the list of assets and copies of bank statements to a legal adviser when obtaining legal advice. M can claim privilege in relation to the list provided to the legal adviser. M would not be able to claim privilege in relation to the bank statements. The list is a communication, the bank statements are not. While the list may attract privilege, the Registrar can still seek details of the assets from M under the power to provide information or attend and answer questions.

Last reviewed: 1 July 2016