Recent publications by law reform bodies worldwide

• Author: Cliodhna Geraghty - Thomas Hickey
• Position: 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)
• Pages: 178-208

Judicial Studies Institute Journal [2007:1

178

RECENT PUBLICATIONS BY LAW REFORM

BODIES WORLDWIDE

COMPILED BY

CLIODHNA GERAGHTY* & THOMAS HICKEY†

A. Australia

Review of Legal Professional Privilege and Commonwealth

Investigatory Bodies

Inquiry

http://www.alrc.gov.au/inquiries/current/privilege/about.html

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