Recent publications by law reform bodies worldwide

AuthorCliodhna Geraghty - Thomas Hickey
PositionB.A., LL.B. (NUI), LL.M. (Edinburgh). Adjunct Lecturer, Faculty of Law, NUI, Galway - B.C.L. (NUI), LL.M. (Cambridge), Ph.D. Candidate (NUI, Galway)
Judicial Studies Institute Journal [2007:1
A. Australia
Review of Legal Professional Privilege and Commonwealth
Investigatory Bodies
On 29 November 2006, the Australian Law Reform
Commission (ALRC) received instructions from the Attorney
General of Australia to inquire into the application of legal
professional privilege to the coercive information gathering
powers of Commonwealth bodies, including powers to compel
the production of documents, the answering of questions and the
entering of premises to inspect and copy documents or to search
and seize records under warrant. Further, the ALRC is directed to
consider whether it is desirable to:
modify or abrogate the privilege in order to achieve a
more effective performance of Commonwealth
investigatory functions;
clarify all existing federal provisions that modify or
remove the privilege, with a view to harmonising them
across the Commonwealth statute book; and
introduce or clarify other statutory safeguards where the
privilege has been modified or abrogated, with a view to
harmonising them across the Commonwealth statute book.
* B.A., LL.B. (NUI), LL.M. (Edinburgh). Adjunct Lecturer, Faculty of Law,
NUI, Galway.
B.C.L. (NUI), LL.M. (Cambridge), Ph.D. Candidate (NUI, Galway).
2007] Recent Publications 179
by Law Reform Bodies Worldwide
In Principled Regulation: Federal Civil and Administrative
Penalties in Australia (ALRC 95), the ALRC noted the
significant inconsistencies in the availability of the privilege
across regulatory statutes and recommended that a review be
undertaken of federal investigative powers compelling disclosure
of information and the operation of the privilege with a view to
providing greater certainty and consistency. The ALRC also
considered legal professional privilege, now more accurately
referred to as client legal privilege, in its recent report, Uniform
Evidence Law (ALRC 102).
As with other common law rights, client legal privilege can
be modified or abrogated by statute where the legislature accords
a competing public interest a higher priority. The ALRC’s Inquiry
will consider the circumstances, if any, in which it may be
appropriate to give priority to other public interests over the
public and private interests in maintaining the privilege.
Questions of privilege commonly arise in relation to the
exercise of coercive information gathering powers by
Commonwealth bodies. The Inquiry raises issues of considerable
importance to the effective operation of Commonwealth agencies
with investigative and associated powers. It also raises significant
issues for individuals and organisations who may be subject to
Commonwealth investigatory powers, in particular the targets of
those inquiries, but also potential witnesses and the custodians of
relevant information. One key issue for the ALRC will be to
determine the use to which privileged information subsequently
can be put, in the event that privilege is abrogated.
The ALRC will consult widely with stakeholders and
encourages those with an interest in the Inquiry, including
members of the judiciary, the legal profession, Commonwealth
bodies, individuals and organisations who have been involved in
Commonwealth investigations, and the victims of unlawful
conduct the subject of Commonwealth investigation, to register
an interest.
The ALRC intends to release an Issues Paper in April 2007.
A more detailed Discussion Paper, which will contain preliminary
proposals for reform, is planned for release in late August or early
September 2007. The final report to the Attorney General,
containing recommendations for reform, is due on 3rd December

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