Submission - Client Legal Privilege and Federal Investigatory Bodies (2007)

Submission of the
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (HREOC)
to the

AUSTRALIAN LAW REFORM COMMISSION (ALRC)
Inquiry into
CLIENT LEGAL PROFESSIONAL PRIVILEGE & FEDERAL INVESTIGATORY BODIES

5 November 2007

Recommendation

1. The Human Rights and Equal Opportunity Commission (HREOC) recommends that Proposal 6-2 of the Australian Law Reform Commission (ALRC) Discussion Paper on Client Legal Privilege and Federal Investigatory Bodies (the Discussion Paper) should apply to s 24(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act). 

Explanation

2. Proposal 6-2 of the Discussion Paper is to amend s 18(6)(b) of the Inspector-General of Intelligence and Security Act 1986 (Cth)and s 9(4)(ab) of the Ombudsman Act 1976 (Cth)to state that where client legal privilege (CLP) cannot be claimed over legal advice given to a Minister, an agency or an authority of the Commonwealth, this abrogation applies to litigation privilege as well as advice privilege.1
3. Section 24(3) of the HREOC Act provides that a person is not excused from giving information, or producing a document sought under the HREOC Act on the ground that it would disclose legal advice given to a Minister, an agency or an authority of the Commonwealth.2  Like the equivalent provisions of the Inspector-General of Intelligence and Security Act 1986 (Cth) and the Ombudsman Act 1976 (Cth), s 24(3) of the HREOC Act only applies to advice privilege, not litigation privilege.
4. HREOC recommends that Proposal 6-2 should include s 24(3) of the HREOC Act.  This recommendation is in line with the ALRC’s view that there needs to be a clearer and more consistent approach to the operation of CLP in the federal investigatory context.3
5. HREOC also notes that the rationale for abrogating CLP for independent statutory bodies which seek information from government entities is to promote government accountability.4  In this context, HREOC considers that there is no reason why a distinction should be drawn between litigation and advice privilege for the purpose of s 24(3) of the HREOC Act.

Clarification

6. HREOC notes that the ALRC appears to exclude the HREOC Act from Proposal 6-2 on the basis that HREOC previously advised the ALRC (in its submission of June 2007) that:
   •  HREOC did not consider that CLP is abrogated under the HREOC Act;
   • HREOC did not seek or compel the production of legal advice pursuant to its statutory information gathering powers.5
7. HREOC would like to clarify that:
   
   1. As a matter of practice, HREOC uses its coercive information gathering powers infrequently and in a context which does not raise the application or abrogation of client legal privilege.
   2. As a matter of law, HREOC recognises that s 24(3) of the HREOC Act does permit the abrogation of client legal privilege in limited circumstances.
8. HREOC would also like to clarify that it is conceivable that circumstances may arise in which:
   
   1. HREOC may wish to seek the production of legal advice in respect of which CLP is abrogated under s 24(3) of the HREOC Act. For example, such legal advice may be sought in the context of a national inquiry into a human rights issue.
   2. HREOC may exercise its coercive information gathering powers in circumstances that raise the application of CLP. For example, information sought from a person or corporate body in the context of a national inquiry into a human rights issue may raise the application of CLP.

Further questions

9. HREOC invites the ALRC to contact HREOC if the ALRC has any further questions about the operation of HREOC’s information gathering powers or the possible application of the ALRC’s proposals to HREOC.

Human Rights and Equal Opportunity Commission

5 November 2007

Footnotes