Division 1 Client legal privilege
(1) In this Division:client includes the following:
(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),(b) an employee or agent of a client,(c) an employer of a lawyer if the employer is:(i) the Commonwealth or a State or Territory, or(ii) a body established by a law of the Commonwealth or a State or Territory,(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting,(e) if a client has died—a personal representative of the client,(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it, or(b) the person to whom it was made,was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it, or(b) the person for whom it was prepared,was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.lawyer means:
(a) an Australian lawyer, and(b) an Australian-registered foreign lawyer, and(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).party includes the following:
(a) an employee or agent of a party,(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party—a manager, committee or person so acting,(c) if a party has died—a personal representative of the party,(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.(2) A reference in this Division to the commission of an act includes a reference to a failure to act.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication made between the client and a lawyer, or(b) a confidential communication made between 2 or more lawyers acting for the client, or(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or(b) the contents of a confidential document (whether delivered or not) that was prepared,for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication between the party and another person, or(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party,for the dominant purpose of preparing for or conducting the proceeding.(2) (Repealed)
121 Loss of client legal privilege: generally
(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.
122 Loss of client legal privilege: consent and related matters
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.(3) Without limiting subsection (2), a client or party is taken to have so acted if:(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:(a) the substance of the evidence has been disclosed:(i) in the course of making a confidential communication or preparing a confidential document, or(ii) as a result of duress or deception, or(iii) under compulsion of law, or(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
123 Loss of client legal privilege: defendants
In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of:(a) a confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person, or(b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person.Note. Associated defendant is defined in the Dictionary.
124 Loss of client legal privilege: joint clients
(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter.(2) This Division does not prevent one of those parties from adducing evidence of:(a) a communication made by any one of them to the lawyer, or(b) the contents of a confidential document prepared by or at the direction or request of any one of them,in connection with that matter.
125 Loss of client legal privilege: misconduct
(1) This Division does not prevent the adducing of evidence of:(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:(a) the fraud, offence or act, or the abuse of power, was committed, and(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,the court may find that the communication was so made or the document so prepared.(3) In this section:power means a power conferred by or under an Australian law.
126 Loss of client legal privilege: related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.Note. Example:A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability “as set out in my previous letter to you dated 11 August 1994”. In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.