- Date:
- 5 Apr 2022
Introduction to legal privilege
Legal privilege enables some parties to resist the requirement to disclose information or documents in accordance with a compulsory court process or other statutory power. Privilege may apply in the course of a hearing, during pre-trial proceedings such as discovery and inspection of documents, as well as in inquiries, investigations and disciplinary proceedings.
It is worth noting that the rules relating to legal privilege and public interest immunity are applied differently in criminal and civil proceedings. This Bulletin explores legal privilege in the context of civil proceedings and does not cover privilege against self-incrimination, marital privilege, priest and penitent privilege and physician and patient privilege.
At common law, LPP - also known as client legal privilege - protects from disclosure the contents of all communications passing between a lawyer and their client which refer to the lawyer-client relationship and which are confidential in character. The purpose of LPP is to promote full and frank communication between lawyer and client.
LPP is also protected under the uniform Evidence Acts in Victoria and other Australian jurisdictions (in the context of court proceedings and preliminary court processes).1 LPP applies to two types of communications:
- confidential communications produced for the purposes of litigation, or anticipated or pending litigation (litigation privilege); and
- confidential communications produced for the purpose of providing legal advice to the client (advice privilege).
Dominant purpose
The communication must be produced for the dominant purpose of either litigation or providing legal advice.2 The privilege extends to peripheral non-legal advice provided in the course of giving formal legal advice,3 but does not apply where the lawyer is retained to provide non-legal services such as policy or administrative advice.4
- The client in the relevant lawyer-client relationship is the holder of the LPP.5
- The holder of LPP must be a natural person, or an entity with legal personality, such as the Crown.6
- A government department or an 'office' of the Minister are not natural persons, so cannot hold privilege.7
- Where the client is a government department or agency, or a Minister or other person acting on behalf of the government, LPP is held by 'the Crown' in right of the relevant State or the Commonwealth.8
- Representatives of various government departments and agencies of a State or the Commonwealth will generally all constitute one client for the purpose of LPP.9
How?
LPP is waived when a person who would otherwise be entitled to the benefit of the privilege acts inconsistently with the maintenance of the confidentiality which the privilege is intended to protect.10 A person will be taken to have acted inconsistently with the preservation of confidentiality if they knowingly and voluntarily disclose the substance of the evidence to another person, or the substance of the evidence has been disclosed with their express or implied consent.11 However, LPP can also be waived voluntarily or inadvertently12, and may be waived generally or only in relation to particular matters.
Waiver in the government context
LPP is not waived by sharing of legal advice between different government departments,13 or between a statutory authority or office-holder and the responsible Minister.14 LPP in advice provided to a previous Minister can also only be waived by the Minister currently holding the office.15 In some cases, a Minister explaining a decision by reference to legal advice received will not waive privilege.16
Who?
The general rule is that LPP can only be waived by the client as the holder of LPP. However, in some circumstances a lawyer can waive privilege on behalf of their client, particularly where the lawyer has their client's authority or consent.
- 'Common interest privilege' applies to separate parties who have a shared or similar interest in the subject of communications between one or more of them and a legal advisor.17 Disclosure to a person or entity within the lawyer-client relationship and who is not a 'third party' will not waive privilege.
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The statutory basis for this exception is found in section 122(5)(c) of the Evidence Act 2008 (Vic).
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The sharing of legal advice from one government entity to another typically does not involve disclosure to a 'third party', so does not waive privilege.18
- PII is a rule of law that can prevent the production of otherwise relevant and admissible evidence where its disclosure would be contrary to the public interest in the proper functioning of government.
- PII claims are characterised as either 'class claims', where disclosure of a class of documents regardless of the contents would be injurious to the public interest, or 'content claims' where the risk of injury arises from the contents of the documents.19
- When and who can assert? PII can be asserted at any stage of court proceedings or in administrative investigations. It may be asserted by a party, the State, or by the court itself, and it cannot be waived at will.
- Statutory formulation? Whilst a statutory formulation of PII exists in section 130 of both the Evidence Act 1995 (Cth) and the Evidence Act 2008 (Vic), courts have supported the proposition there is no discernible difference in the test for PII to be applied under the common law and statutory regimes.20
- The test for PII is a balancing exercise between two public interests: the public interest in the confidentiality of 'matters of State', and the public interest in admitting the document into evidence.21
- The balance will be different depending on matters such as the nature of the proceeding, the relevance of the document to the proceeding, the availability of alternative sources of evidence, etc.
- What is considered a 'matter of State' includes where the production of evidence may prejudice the prevention, investigation or prosecution of offences, disclose the identity of a confidential source of information, prejudice national security or defence or international relations, or otherwise prejudice the proper functioning of government.
- This privilege applies to communications expressed to be 'without prejudice' or settlement negotiations. In this context, 'without prejudice' means 'without prejudice to the position of the writer of the letter if the terms s/he proposes are not accepted'.22 Generally, these communications and negotiations may not be disclosed to the court except by consent of the parties.23
- The purpose of the privilege is to promote the settlement of disputes by enabling litigants who are engaged in an attempt to settle to speak freely and without concern that any admissions made in the attempt to settle will be used against them later.
- At common law, without prejudice privilege is a privilege held jointly and it cannot be unilaterally waived by a single party. As with other privileges, waiver may be implied on the basis of the conduct of the parties.
- The statutory basis for the privilege is found in section 131 the Evidence Act 1995 (Cth) and Evidence Act 2008 (Vic), which provide that evidence of settlement negotiations is not to be adduced.
- Numerous exceptions are set out in section 131(1), which include where the parties consent to the evidence being adduced. Where an offer to settle is made 'without prejudice save as to costs' or similar — known as a Calderbank offer — the court can consider the communications on the issue of costs.
LPP can also be held jointly, which is known as 'joint interest privilege'. This arises when two or more people join in communicating with a legal advisor for the dominant purpose of obtaining legal advice.
Examples include people who:
- are in a partnership
- are in a joint venture
- jointly retain the same lawyer, or the relationship between a company and its shareholders or insured and insurer.
Parliamentary privilege is a privilege of the Houses of the Commonwealth Parliament and State and Territory Parliaments, and protects members from having proceedings in Parliament being used against them by another member.
One important reason for the privilege is that a member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences.24
Who can waive?
As the privilege belongs to the Parliament, it cannot be waived by any single member.
Parliamentary privilege has its roots in Art 9 of the English Bill of Rights 1688, which provides that 'the freedom of speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.' The privilege in Art 9 is conferred upon the Federal Parliament by virtue of section 49 of the Australian Constitution, and is similarly conferred upon the Victorian Parliament by section 19 of the Constitution Act 1975 (Vic).1 In Victoria, see Evidence Act 2008, ss 118, 119 and 131A.
2 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 73; Evidence Act 2008 ss 118, 119.
3 Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976, 982-3.
4 Work Cover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502, [88], [91].
5 Mann v Carnell (1999) 201 CLR 1 (Mann), [63].
6 Australian Workers' Union v Registered Organisations Commissioner (2019) 164 ALD 214 (Australian Workers’ Union), [33]-[34]; A-G (NT) v Kearney (1985) CLR 500.
7 Australian Workers’ Union, [33].
8 Mann, [16], [33], [149]-[154].
9 See, eg, Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44, [14]; Robinson v Transport for NSW [2017] NSWCATAD 353, [159]; NSW Council for Civil Liberties Inc (2006) 236 ALR 313, [23], [31] (NSW Council for Civil Liberties).
10 Mann, [28]-[29].
11 Evidence Act 2008 (Vic) s 122(3); see eg Loielo v Giles [2020] VSC 619.
12 Ibid ss 122(1), 122(3).
13 Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44, [12].
14 Evidence Act 2008 (Vic), s 122(5)(iv); Mann, [16], [26] (Gleeson CJ, Gaudron, Gummow and Callinan JJ); NSW Council for Civil Liberties, [31].
15 Australian Workers’ Union, [33]-[34], [61].
16 Osland v Secretary, Department of Justice (2008) 234 CLR 275.
17 Evidence Act 2008 (Vic), s 122(5)(c); Marshall v Prescott [2013] NSWCA 152, [57].
18 Mann, [33]; NSW Council for Civil Liberties, [32].
19 Commonwealth v Northern Land Council (1993) 176 CLR 604, 616.
20 Dupont v Chief Commissioner of Police (2015) 295 FLR 283, [49]; Ryan v Victoria, [2015] VSCA 353, [58] (Ryan); see also New South Wales v Public Transport Ticketing Corp [2011] NSWCA 60.
21 Ryan, [26].
22 Walker v Wilsher (1889) 23 QBD 335, 337.
23 Simaan General Contracting Co v Pilkington Glass Ltd [1987] 1 All ER 345, 347.
24 Sankey v Whitlam (1978) 21 ALR 505, 523.
Sara Dennis
Assistant Victorian Government Solicitor, Litigation and Dispute Resolution
Phone: 0408 902 128
Email: sara.dennis@vgso.vic.gov.auAlison O'Brien
Assistant Victorian Government Solicitor, Public Law and Planning
Phone: 0409 385 343
Email: alison.obrien@vgso.vic.gov.auYulia Freidgeim
Principal Solicitor
Phone: 0498 660 762
Email: yulia.freidgeim@vgso.vic.gov.auThis information has been prepared by Yulia Freidgeim, Nell Gordon, Debby Xu, Belinda Trevean and Alison O'Brien.
The information is of a general nature only and does not convey or contain legal advice. If you would like to obtain legal advice in relation to any matter discussed on this page, please contact us.