Legal professional privilege in Australia
In Australia, legal professional privilege (also referred to as client legal privilege) is a rule of law protecting communications between legal practitioners and their clients from disclosure under compulsion of court or statute. While the rule of legal professional privilege in Australia largely mirrors that of other Commonwealth jurisdictions, there are a number of notable qualifications and modifications to the privilege specific to Australia and its states, and contentious issues about the direction of the privilege.
Legal professional privilege emerged in the 16th century; it was originally a privilege held by a lawyer rather than the lawyer's client.
Legal professional privilege in Australia developed from the English common law privilege.
The rationale for legal professional privilege in an Australian context has been explained in the following ways:
Justice Kirby of the High Court of Australia has described legal professional privilege as an "important human right deserving of special protection for that reason".
The Australian Law Reform Commission (ALRC) has adopted the terminology 'client legal privilege', as opposed to 'legal professional privilege', on the basis that the privilege is held by the client and not the lawyer. 'Client legal privilege' is the terminology used in Commonwealth and state evidence statutes. However, the common law privilege remains almost universally described by courts as being 'legal professional privilege'.
Legal professional privilege in Australia is found in common law and in various statutes. Both sources reflect the two limbs of legal professional privilege: advice privilege and litigation privilege.
Legal professional privilege has been described as an "important common law right" that is enforceable in equity. The Evidence Acts did not expressly alter the common law privilege.
The common law maintains a distinction between two limbs of legal professional privilege. Advice privilege refers to the protection of communications between a client and a lawyer for the purposes of the lawyer providing legal advice to the client. Litigation privilege refers to the protection of communications between a client, lawyer (and any third party) for the dominant purpose of anticipated or existing legal proceedings. The prior test of 'sole purpose,' as per Grant v Downs, limited a lawyer's ability to claim privilege on items that were not for the exclusive purpose of the client's case. The current dominant purpose test, while more complex, significantly broadens the scope of legal professional privilege, as defined in Esso Australia Resources Ltd v Commissioner of Taxation. There is, invariably, much overlap between the two limbs.
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