Submission: Legal Professional Privilege (2007)

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

to the

AUSTRALIAN LAW REFORM COMMISSION (ALRC)

Inquiry into

LEGAL PROFESSIONAL PRIVILEGE

4 June 2007

 

Human Rights and Equal Opportunity Commission
Level 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600

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Table of Contents

• Introduction
• Summary and Recommendations
• Right to a Fair Trial
• Basic Principles on the Role of Lawyers
• When abrogation of LPP may be appropriate
• Conclusion
• Appendix

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A. Introduction

• The Human Rights and Equal Opportunity Commission (HREOC) makes this submission to the Australian Law Reform Commission (‘ALRC’) in its Inquiry into legal professional privilege (‘LPP’).
• The ALRC has requested some specific information from HREOC. This information is provided in Appendix A to our submission.
• This submission also sets out the human rights principles relevant to this inquiry.

B. Summary & Recommendations

• Human rights should be an important consideration in determining whether any abrogation of LPP is appropriate. 
• Recognition of LPP is important for the protection of the following human rights:
• the right to a fair hearing;1 and
• the right to defend oneself through legal assistance of one’s own choosing in the determination of criminal charges.2

6.         In protecting these rights, it is also relevant to refer to the following principles:

• the need to protect confidentiality in all communications between a lawyer and their client;3 and
• the need to ensure effective access to legal services.4
• HREOC recommends that legislative abrogation of LPP should only occur:
• in exceptional circumstances; and
• to the extent necessary.
• Exceptional circumstances may include (without limitation), where abrogation of LPP:
  • • • serves a higher public interest;
      • prevents the commission of a crime or fraud; and
      • is necessary as a matter of public emergency or national security.
• Care must be taken, however, to ensure that any abrogation of LPP does not undermine the right to a fair trial. The right to a fair trial is a non-derogable human right.

C. Right to a Fair Trial

• The right to a fair trial is set out in article 14(1) of the International Covenant on Civil and Political Rights (‘ICCPR’).5 This states:

In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

• HREOC submits that LPP is fundamental to a client’s right to a fair trial. Removing this protection is likely to undermine the confidential nature of the communication between lawyers and their clients and, accordingly, may impact upon the information provided by a client and the quality of advice and/ or representation they receive.
• HREOC also notes article 14(3) of ICCPR, which states:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(d)  …to defend himself in person or through legal assistance of his own choosing;

(g) Not to be compelled to testify against himself or to confess guilt.

• HREOC submits that LPP is fundamental to clients’ right to defend themselves through legal assistance of their own choosing.  In some cases, the removal of LPP may dissuade individuals from seeking legal advice at all, or alternatively, it may lead them to seek advice in a more limited form. In both cases, this may compromise their rights under article 14(3)(d).
• The removal (or limitation) of LPP may also be inconsistent with article 14(3)(g). Of their very nature, lawyer-client communications are often full and frank, and may at times include disclosure of information unfavourable to a client’s case, and/ or confession of their guilt. LPP currently protects this information from being disclosed to a court.

15. It may be appropriate to abrogate LPP in some exceptional circumstances, as discussed further below. However, LPP must not be abrogated in any circumstances where such abrogation may breach the right to a fair trial.

16. The right to a fair trial is not listed as a non-derogable provision in article 4(2) of the ICCPR.6 Despite this, however, the Human Rights Committee (‘HRC’) has stated that there are additional non-derogable elements of the Covenant, not set out in article 4, which may not be abrogated in any circumstances. The right to a fail trial is one such right.7

17. The HRC has stated:

            As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency.8

D.  Basic Principles on the Role of Lawyers

• The Basic Principles on the Role of Lawyers (‘Basic Principles’)9 were formulated to assist Member States to ensure that the proper role of lawyers is taken into account in the context of their national legislation and practice.

• • • The United Nations Human Rights Committee has recognised that similar bodies of principles elaborate the minimum standards which the international community considers acceptable for compliance with the ICCPR.10 Accordingly, the Basic Principles are relevant in interpreting and applying article 14 of the ICCPR and, in particular, to the right to a fair hearing.

(i) Confidentiality in lawyer-client communications

• • • Principle 22 of the Basic Principles provides for confidentiality in communications between lawyers and their clients:

Governments shall recognise and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential. (emphasis added)

• • • Principle 8 also emphasises the need for confidentiality for persons arrested, detained or imprisoned:

All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials. (emphasis added)

• • • HREOC submits that LPP is imperative in ensuring confidentiality of communications between a lawyer and their client. Accordingly, it will only be appropriate to abrogate LPP in exceptional circumstances.

(ii) Effective access to legal services without improper interference

• • • Principle 25 of the Basic Principles also ensures that everyone has effective access to legal services and that lawyers are able, ‘without improper interference, to counsel and assist their clients in accordance with the law and recognised professional standards and ethics’.11
• In HREOC’s view, there are many circumstances in which the abrogation of LPP could have the potential to constitute interference in a client’s right to access legal services. It is also relevant to note here that LPP is internationally recognised as a basic standard and ethic of the legal profession. Therefore, LPP should be interfered with only in exceptional circumstances.

E. When abrogation of LPP may be appropriate

• • • Provided that the right to a fair trial is protected, HREOC outlines three examples of exceptional circumstances where it may be appropriate to abrogate LPP.
  • Where abrogation serves a higher public interest

HREOC acknowledges that there are some circumstances where the public interest in abrogating LPP may be greater than the individual’s interest in maintaining the privilege.

For example, where a publicly listed company (or the director/s of a company) has acted dishonestly or fraudulently, with the result that members of the public suffer significant detriment, there may be an argument for abrogating the LPP belonging to that company (or its director/s) in favour of a higher public interest. In Rees v Kratzmann, for example, the High Court stated:

The honest conduct of the affairs of companies is a matter of great public concern today. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.12

• • Where abrogation prevents the commission of a crime or fraud

As outlined in more detail in Chapter 2 of the Issues Paper in this Inquiry, LPP does not extend to communications made in furtherance of a crime or fraud, or to communications made for an improper purpose.  

• • Where abrogation occurs as the result of a public emergency or national security

Article 4(1) of the ICCPR provides that, derogation from certain provisions may occur in a ‘time of public emergency which threatens the life of the nation’.13 By way of explanation, Nowak has stated:

This danger must not be imagined or simply feared; rather, the life of the nation (and not that of the given dictator) must be actually, directly threatened to an exceptional extent.14 (emphasis added)

Accordingly, it is possible to conceive of a situation where, for reasons of national security or public emergency, it would be appropriate to abrogate LPP.

For example, if a client disclosed to their lawyer that an imminent terrorist attack was about to occur, this would be a valid basis upon which the lawyer could be compelled to provide this information to authorities, contrary to LPP. The HRC has confirmed that a geographically limited emergency can affect the entire population and thus threaten the life of the nation.15

F.  Conclusion

• • • HREOC submits that LPP is fundamental to a client’s right to a fair hearing and to confidential communications with their lawyer.  Accordingly, human rights should be an important consideration in determining whether any legislative abrogation of LPP is appropriate. 

27.       HREOC recommends that the Inquiry should only approve the abrogation of LPP in exceptional circumstances.

Human Rights and Equal Opportunity Commission
4 June 2007

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Appendix

ALRC has requested information from HREOC on a number of issues relating to HREOC’s use of its coercive information gathering powers. HREOC provides this information in Appendix A, attached.

Appendix A

Information requested from HREOC by ALRC

As requested, HREOC provides the following information in relation to the exercise of its coercive information-gathering powers.

• How frequently does HREOC exercise its coercive powers?

HREOC exercises its coercive powers infrequently. For example, in the 2006 calendar year, HREOC exercised its power to obtain information and documents (under s 21 of the HREOC Act) four times.

From time to time, HREOC refers to these powers in its written communications to a party who has delayed in responding to HREOC’s request for documents or information. By referring to its coercive powers in this way, HREOC aims to encourage voluntary compliance with its request, without having to resort to use of these powers.

In other circumstances, HREOC may exercise its coercive powers to compel a person, or body corporate, to provide information or documents, where they would otherwise be restricted from doing so. For example, there may be reasons of privacy or doctor-patient privilege which would prevent a person or body-corporate from providing information to HREOC, unless the production of such information is compelled by HREOC.

• Do any of HREOC's coercive information gathering powers abrogate LPP?

No. None of HREOC’s coercive information gathering powers abrogate LPP.

In making its inquires, HREOC notes that it does not seek to establish why the act/s were done, but instead, what was done. HREOC makes its own assessment of the legality of the particular act/s in question, and accordingly, does not concern itself with the legal advice obtained by a respondent. In our experience, there are no circumstances in which HREOC would seek or compel the production of legal advice.

• Does HREOC notify recipients of notices, issued in connection with the exercise of a compulsory power, of their rights relating to LPP?

No. HREOC does not notify recipients of notices of their rights relating to LPP.

As mentioned in 2. above, HREOC does not compel the production of legal advice. In any event, notifying a recipient of their rights relating to LPP could, in itself, constitute legal advice to the recipient, which advice it would be inappropriate for HREOC to provide.

• What are HREOC’s practices and procedures in relation to managing any claims for privilege made in response to the exercise of a coercive information-gathering power?

Any claims for privilege made in response to the exercise of a coercive information-gathering power are dealt with by the President or his delegate.

• Does HREOC have any policies or manuals that set out its practice in relation to LPP?

No. HREOC does not have any policies or manuals that set out its practice in relation to LPP.

• Are there any instances in which HREOC has challenged a claim for privilege asserted in respect of the exercise of a compulsory power?

No. There have not been any challenges.

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Footnotes