Legal professional privilege

Legal professional privilege (also known as client legal privilege) refers to the protection of certain communications between a lawyer and their client from disclosure to any third party. According to the ALRC, the purpose of legal professional privilege in Australia is:

  • Encouraging full and frank disclosure of information by a client to a lawyer;
  • Promoting compliance with the law by enabling lawyers to give full and considered advice on a client’s legal obligations;
  • Discouraging litigation and encouraging alternative dispute resolution or settlement;
  • Promoting the efficient operation of the adversarial system;
  • Protection of a client’s privacy; and
  • Protecting access to justice.

It has also been described as a human right by many commentators and scholars, including the famous High Court judge Michael Kirby.

The right to legal professional privilege is derived from common law and is now also protected in the statute. The common-law immunity is explored in the cases of Esso Australia Resources Ltd v Commissioner of Taxation and Mitsubishi Electric v Victorian Workcover Authority.

The statutory protection of legal professional privilege (referred to as client legal privilege) can be found in the Evidence Act (NSW) 1995.

The test for whether the information is protected by legal professional privilege is as follows:

  1. A professional relationship must exist between a lawyer and a client
  2. The communications (oral or documents) must be ‘confidential’ (s 117)
  3. The communications must be created for the dominant purpose of legal advice (s 118) or in anticipation of litigation (s 119).

In some scenarios outlined in the Evidence Act 1995 (NSW), the legal professional privilege may be lost. These include:

  • Where the privilege prevents the enforcement of a court order
  • Where there has been a waiver of the privilege
  • Where there are joint civil defendants
  • Where communication was made to further the commission of a fraud or offence, or in furtherance of deliberate abuse of power
  • Where communication is reasonably necessary to enable understanding of another communication that has lost privilege under one of the above laws