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Limitation on legal privilege in State lawyer communication

  • August 12th, 2008

  Michael Kirby J, in Osland [2008] HCA 37 (7 August), warns State sector lawyers, and private advisers to the State, of limits on the scope of legal professional privilege  for state communication, saying at [89]

"It would be a mistake to assume that all communications with government lawyers, no matter what their origins, purpose and subject matter, fall within the ambit of the State’s legal professional privilege.  Advice taken from lawyers on issues of law reform and public policy does not necessarily attract the privilege.  Especially in the context of the [OIA], and legal advice to government, courts need to be on their guard [as they evidently had not been in the instant case, concentrating instead on issues of waiver of privilege] against any inclination of lawyers to expand the ambit of legal professional privilege beyond what is necessary and justifiable to fulfil its legal purposes."

This may make less difference in practice than might be thought because much of the kind of advice that could be denied privilege may be covered by OIA exceptions, such as the exception preserving the confidentiality of free and frank advice. Much advice about risks would fall into that category.
Thanks to Stuart Dalzell of Chapman Tripp for noting the passage.



“Free and frank advice” only covers communications with (or between) ministers. Non-privileged legal advice provided to a government CEO, for example, could not be properly withheld under the free and frank ground.

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