Regulatory guide - Claims of legal professional privilege

Comcare’s information and document gathering powers

Under the Work Health and Safety Act 2011 (WHS Act), Comcare has the power to require the production of documents or the provision of information.^[1]

Section 269 of the WHS Act provides that a person is not required to produce document(s) or disclose information that would otherwise be required to be produced or provided under the WHS Act if the document or information is the subject of legal professional privilege.

Legal professional privilege explained

Legal professional privilege is a fundamental common law principle that excludes some communications between a client and their lawyer from being subject to disclosure requirements.

Legal professional privilege applies to confidential communications between a lawyer and their client, when the communication was made for the dominant purpose of providing legal advice or legal services in relation to existing or contemplated litigation.^[2]

How to claim legal professional privilege

If you intend to resist the required production or provision of documents or information, you must prove, as the party claiming legal professional privilege, that the claim of privilege is valid.^[3]

You must provide sufficient basis for the claim of legal professional privilege in relation to each communication over which you are claiming legal professional privilege.

To make a claim of legal professional privilege, you must demonstrate:

1. there was a client-lawyer relationship
2. there was a confidential communication, and
3. the communication was made for the dominant purpose of obtaining or giving legal advice, or for use in existing or contemplated litigation.

In making your claim, you must provide to Comcare:

1. Sufficient information to enable Comcare to form a view about whether the communication is covered by legal professional privilege, including:

• a description of the communication
• the type of communication
• the date of the communication
• the person(s) claiming legal professional privilege
• the extent to which legal professional privilege is claimed over the communication.^[4]

2. The basis and reasoning for the claim of legal professional privilege, including:

• the category of legal professional privilege that is being claimed (legal advice or litigation), and
• sufficient detail to establish that the dominant purpose of the communication was for legal advice or litigation.

You do not have to give information that would reveal the content of the communication, but you must provide sufficient evidence to objectively demonstrate that the claim of legal professional privilege is valid.

A claim of legal professional privilege is not established simply by asserting that legal professional privilege applies to a communication, or that the communication is undertaken for the purpose of obtaining or giving ‘legal advice’.^[5] Comcare will not accept blanket claims of legal professional privilege.

Documents which simply cite the law or precedent are not automatically covered by legal professional privilege. The relevant document, whether it is from an in-house legal provider or external legal provider, must be a communication made for the dominant purpose of providing legal advice or in contemplation of litigation.

Communications can be made for more than one purpose. However, you must be able to demonstrate the dominant purpose, being ‘the ruling, prevailing, or most influential purpose’, was for seeking or obtaining legal advice or for litigation purposes.^[6]

Waiver of legal professional privilege

The following information is general in nature and is intended to assist you to determine what information to provide to Comcare in response to the required production or provision of documents or information over which legal professional privilege is claimed.

This information should not be relied on as legal advice. If you are unsure of your obligations, you should seek independent legal advice.

Legal professional privilege is generally not waived by reference to:

• the existence of legal advice,^[7]or
• a decision having been made following the receipt of advice.^[8]

Legal professional privilege may be waived in circumstances where you have acted inconsistently with the maintenance of the communication’s confidentiality. Examples include where you have:

• disclosed to Comcare the substance of legal advice provided to you
• indicated to Comcare you have received legal advice that may support a position you have taken on an issue, or
• where legal advice has been shared with a third party in a way that means the communication is no longer confidential.

If Comcare does not accept a claim of legal professional privilege

Comcare will not accept a claim of legal professional privilege where the claim:

• has not been proven
• is a blanket claim
• is unsubstantiated, or
• is otherwise invalid — for example, where Comcare is of the opinion that legal professional privilege has been waived.

Where Comcare does not accept a claim of legal professional privilege over information or documents that are required to be provided or produced, it may pursue regulatory action for a potential contravention of the WHS Act.^[9]