Thursday, February 14, 2008
Privilege in perspective:
Australian Law Reform Commission Report
13 February 2008
ALRC: overhaul client legal privilege in federal investigations
The Australian Law Reform Commission (ALRC) has recommended 45 changes to the handling of claims of client legal privilege over material sought by federal investigatory bodies and royal commissions of inquiry. The ALRC report Privilege in Perspective: Client Legal Privilege in Federal Investigations , tabled in Parliament today, is the culmination of a year-long public inquiry into this controversial area highlighted in the report of the AWB Royal Commission.
‘Our inquiry found general support for maintaining privilege as a fundamental right of clients, which only should be abrogated or modified in exceptional circumstances,’ said ALRC President, Prof David Weisbrot.
‘When properly exercised, privilege encourages compliance with the law, by creating an environment in which clients can make full and frank disclosure and receive accurate legal advice.
‘However, privilege must be balanced with the other public interest in ensuring efficient, effective investigations. Unfortunately, there are cases in which it appears claims of privilege have been used primarily to delay or frustrate investigations—with some disputes taking years to resolve. Many of our recommendations focus on streamlining the process for handling claims of privilege, and deterring or punishing abuses.’
Professor Rosalind Croucher, Commissioner in charge of the Inquiry, said that the central idea behind the ALRC’s recommendations is the need for a single federal statute addressing the application of privilege in all federal investigations.
‘Our research identified over 40 federal investigatory bodies with coercive information-gathering powers, as well as Royal Commissions. These include: law enforcement agencies, such as the Australian Federal Police; bodies concerned with the collection or administration of public funds—such as the ATO, Medicare and Centrelink; the major corporate regulators, such as ASIC and the ACCC; and a number of smaller, specialised regulators focusing on specific industries, such as the Fisheries Management Authority.
‘There are many dozens of federal laws that address the powers of these bodies. However, most of this legislation is silent on the application of client legal privilege, and where it is addressed, there is no consistent approach—creating confusion and cost for clients, lawyers and investigators.
‘A single federal statute would make clear that privilege applies unless expressly modified or abrogated by another statute, as well as establishing a system in which regulators and clients would have to operate in a much more open and transparent manner, according to published policies.’
Other key proposals include:
extending privilege to advice on tax law provided by accountants, where that advice is sought by the Australian Taxation Office (ATO)—in effect, formalising the ATO ‘accountants concession’.
introducing a model fast-track procedure for resolving disputes about privilege; improving lawyers’ understanding of their legal and ethical obligations in this complex area, through targeted legal education; and clarifying and strengthening the professional disciplinary procedures to apply in cases where the assertion or maintenance of privilege claims may amount to unethical conduct.
The report Privilege in Perspective: Client Legal Privilege in Federal Investigations is available electronically from the ALRC website, www.alrc.gov.au .
I have no problem with "Client Attorney Privilege," indeed it is one of the bedrocks of freedom from self incrimination. There should be no doubt that in a free society with a fair justice system that an accused should be able to speak "privately" with his attorney and only in extreme situations (examples of which I cannot even imagine off the top of my head) should this right be infringed upon. But it is clear that illegally taped conversations between an accused and his attorney should not be allowed as evidence in a fair trial. The prohibitions against self incrimination also tended to discourage torture in a saner time not that long ago as an added value.
The "Cabinet Privilege" sometimes referred to as "Executive Privilege" that this government is relying on to obstruct this trial and the discovery process is an entirely different animal. This is where the government claims that what they do, supposedly in our name and in our interest, is none of our business. It becomes hard to imagine anything exempt from this questionable form of privilege.
I beg to differ about this and feel that all neo-con governments from Victoria to Ottawa to Washington D.C. are using this so called "privilege" as nothing more than a "get out of jail free" card.
They are doing OUR BUSINESS on OUR DIME and thus it is all OUR BUSINESS and the only privilege involved is our privilege/right to know what is being done in our name. It should be clear that if they were doing things that we would feel served us well, they would be bending over backwards to tell us all about it. All the obfuscation and hiding behind so called privilege tells me they are hiding things they don't want us to know about.
When you get right down to it, discussing your latest theft with your attorney doesn't absolve you from accountability for the thievery. BC Rail didn't belong to Gordon Campbell and documents, including e-mails generated in the course of conducting the business of the public are property of the public. We didn't compose those e-mails, but we were paying the people who did and if it wasn't OUR business they shouldn't have been doing it on our time and dime.
It isn't like there is a lack of "probable cause" like the withdrawal of bidders from what they felt was a rigged process for starters.
The right of a defendent to answer-in-defence to a charge is absolute; government authority is only relative, in reference to exercise of that right. Otherwise, governments would be permitted to convict the innocent. They do it anyway, but not without acting out an ersatz interest in the rule of law.
Did anyone notice how Canwest buried the much delayed decision in the case of R v Sgt Hannibal (RCMP, Coquitlam? Hannibal has been acquitted of excessive force in a much delayed taser use case in which Taser International participated in early stages. He received over $500,000 in unearned wages while the case floated. Last week, Canwest front-paged a report on a judge's acquittal of a grow-operator, after declaring evidence gathering techniques to be unlawful. Canwest omitted to make reference to case law that bound the judge. Outrage is extremely selective at Canwest.
Has anyone here ever had a positive interaction with responding cops? Personally, judged only on the law enforcement/crime prevention conduct that I have seen, cops get a big F from me.
Greetings, Anon 6:11, thanks again for your insights.
You're indeed correct, books could be written about what CanWest leaves out of its published news reports. I often wonder why there isn't a law which sets out the criteria to be met before a newspaper or news broadcaster is actually fulfilling its obligation to serve the public interest.
Maybe someday ...
But here's a more immediate question. I've heard it said that the federal minister of justice is empowered to override a provincial attorney-general. Do you agree?
And if so, how is the federal minister activated in, say, the current situation where Basi-Virk is held up over cabinet privilege (secrecy) or solicitor-client privilege (secrecy)?
Maybe I got it wrong, but it looks to me as if an accused person has a right to all evidence which might help prove his innocence. I simply don't understand how an honourable government refuse that?
If such a basic rule of justice is being ignored, isn't this the moment for the federal minister of justice to step in? And order the Campbell government to disclose those 100 E.Mails, whether embarrassing or not? And to disclose the wiretaps and whatever else the defence needs?
Would be very interested hear your opinion on this.
And thanks again for the time and care you give to providing us with helpful information. It's much appreciated.