Application of Schedule 3, section 7 RTI Act

To determine whether information would be ‘privileged from production in a legal proceeding on the ground of legal professional privilege’ requires analysis of the requirements for establishing legal professional privilege at common law.

Background

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.1 

Legal professional privilege (LPP) exists to balance the competing public interests in:

  • the administration of justice being best served by full and frank disclosure by clients to their lawyers2
  • the protection of the confidences of the client; and
  • parties to litigation having access to all relevant information.3 

Broadly, for information to be subject to LPP, it must be a confidential communication:

  1. that was and remains confidential (see LPP element 1: confidential communication)
  2. made in the course of a lawyer-client relationship (see LPP element 2: professional relationship and independence); and
  3. which is:

a) between the client and the lawyer for the dominant purpose of seeking or providing legal advice, or from a third party at the client’s request for the dominant purpose of assisting the lawyer to provide legal advice (advice privilege); or

b) from the lawyer or the client (or a third party at the request of the lawyer or the client) for the dominant purpose of use in existing or reasonably anticipated legal proceedings (litigation privilege).

(see LPP element 3: dominant purpose)

In some circumstances, LPP can be lost or will not apply to communications that would otherwise attract LPP because of an illegal/improper purpose (see Loss of LPP).

For examples of how LPP applies in different circumstances (eg. expert reports), see Application of LPP in particular circumstances.

1 Daniels Corporation International Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at page 552.
2 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1991) 201 CLR 49 at paragraph 35.
3 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.

Last updated: October 16, 2013