Legal professional privilege

Offence title:

Legal professional privilege

Act:

69 Australian Securities and Investments Commission Act

Offence:

(1)   This section applies where:

(a)   under this Part [investigation and evidence gathering], Division 3 of Part 10 [The Takeovers Panel, panel proceedings], or Division 2 of Part 11 [Companies Auditors Disciplinary Board, hearings by Disciplinary Board], a person requires a lawyer:

                                           i.         to give information; or

                                         ii.         to produce a book; and

(b)   giving the information would involve disclosing, or the book contains, as the case may be, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.

(2)   The lawyer is entitled to refuse to comply with the requirement unless:

(a)   if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is being wound up—the liquidator of the body; or

(b)   otherwise—the person to whom, or by or on behalf of whom, the communication was made;

consents to the lawyer complying with the requirement

(3)   If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:

(a)   if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and

(b)   if subparagraph (1)(a)(i) applies and the communication was made in writing—sufficient particulars to identify the document containing the communication; and

(c)    if subparagraph (1)(a)(ii) applies—sufficient particulars to identify the book, or the part of the book, containing the communication

In plain terms:

1.     This process applies where a, because of this framework, a person requires a lawyer to give information or produce a book, and giving that information or providing the book, would disclose a privileged communication with the lawyer, made to the lawyer in their professional capacity.

2.     The lawyer can refuse to comply, unless if the person to whom or on behalf of whom, is a body corporate that is being wound up; or the person to whom or on behalf of whom the communication was made, consents to the lawyer complying (waives privilege).

3.     If the lawyer refuses, they must, as soon as practicable, provide a written notice setting out:

(a)   The name and address of the person who made the statement or on who’s behalf it was made; and

(b)   if subparagraph (1)(a)(i) applies, sufficient particulars to identify the document; and

if subparagraph (1)(a)(ii) applies—sufficient particulars to identify the book, or the part of the book, containing the communication.

Penalty:

3 months imprisonment

Summary/Indictable/mixed:

Mixed

Jurisdiction:

Local, District or Supreme Court

How committed:

A lawyer who fails to comply with this process may do so be refusing to provide books.

Important note:

A lawyer would expose themselves to an allegation of professional misconduct for failing to comply with this process.