30 June 2017

Office of the President

Mr Kazuhiro Nakamoto
President
Japan Federation of Bar Associations
1-3, Kasumigaseki 1-Chome
CHIYODA-KU TOKYO 100-0013
JAPANDear Mr Nakamoto
Comments on reviewing the surcharge system
Thank you for your letter of 2 June 2017 asking for the Law Council’s response to questions
about attorney-client privilege. In the Australian legal system this privilege is known as either
legal professional privilege or more correctly, client legal privilege. In my comments I willrefer to the privilege as Attorney-client privilege (ACP) because this is the term used inJapan.
Does Australia respect ACP and, if so, what are the purposes behind ACP?
Australia does respect ACP. ACP is a very long-standing and respected feature of legal
systems such as Australia’s, which developed from the common law of England. Incountries that did not develop their legal systems from English common law – for example
European countries – a similar form of ACP exists, and is usually referred to professionalsecrecy.
ACP protects communications and legal advice between a client and his lawyer fromcompulsory disclosure to a court (this is known as the litigation privilege) or from compulsory
disclosure before court proceedings (this is known as the advice privilege).
ACP (the litigation privilege) was developed by the courts, which recognised that clientsneed to be able to obtain comprehensive legal advice from their lawyers in order to pursue
their legal rights or defend themselves in litigation – i.e. in judicial or quasi-judicialproceedings. For this to happen, clients must be able to fully and frankly disclose all relevant
information and circumstances to their lawyer, so that the lawyer can provide the clientcomprehensive legal advice and effectively represent the client in any actual or anticipatedproceedings.
The basic problem that ACP (the litigation privilege) addresses is that clients will not bewilling to fully and frankly disclose all relevant information and circumstances to their lawyer
to obtain proper legal advice, or to be fully represented in court if what is disclosed anddiscussed between the client and the lawyer does not remain confidential, but is forced tobe revealed during court proceedings.

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ACP (the litigation privilege) is said to represent a public policy choice – that it is more
important for the administration of justice to allow communications and legal advice betweena client and a lawyer to remain confidential than it is to compel those communications andadvice to be disclosed in court.
The concept of ACP (the litigation privilege) developed by the common law is one elementof the broader law of evidence, which has been codified in various pieces of legislation inAustralia. The federal Evidence Act 1995 for example codifies the law (or rules) of evidence
that apply to proceedings in federal courts, and specifically preserves from disclosure
confidential communications and documents prepared between clients and lawyers where
this is for the dominant purpose of lawyers providing legal advice to clients. The States andTerritories have, to varying degrees adopted the federal legislation to apply to evidence inproceedings before State and Territory courts.
ACP (the advice privilege) is similar to the ACP (the litigation privilege) - to protect fromdisclosure confidential communications between a client and a lawyer made for thedominant purpose of obtaining legal advice. The ACP (the advice privilege) applies outsideof judicial or quasi-judicial proceedings to protect from disclosure confidential informationand legal advice in pre-trial or investigative processes such as applications for discovery,
the giving of testimony or during investigations by administrative agencies.
The rationale underpinning the ACP (the advice privilege) is the same as the rationale
underpinning the ACP (the litigation privilege) – that a greater public interest is served byprotecting confidential communications between a client and solicitor for the purpose ofgiving legal advice than would be served by compelling disclosure as part of investigations
or evidence gathering.
ACP (both the litigation privilege and the advice privilege) is not a blanket protection for allcommunications and legal advice that flows between a client and his lawyer. The privilege
does not apply where, for example, the information provided by the client to the lawyer isdone to further or facilitate a crime or a fraud. Also, the privilege only applies tocommunications, information and documents related to obtaining and giving legal advice it does not apply to other usual business and financial records of the client.
Finally, because ACP (both the litigation privilege and the advice privilege) developed undercommon law, parliaments can, through legislation, abrogate those common law privileges.
However, in Australia the preference has not been to abrogate ACP except in rarecircumstances. For example, while many federal agencies have coercive informationgathering powers (such as the Australian Taxation Office under our taxation laws, and ourfinancial intelligence and law enforcement agencies under our Anti-Money Laundering andCounter-Terrorism Financing laws) those laws do not confer powers to require theproduction of documents subject to ACP. Also, many Australian laws specifically state thatthe law relating client legal privilege is not abrogated or affected. In the very small numberof laws where the disclosure of information or documents subject to ACP is compellable,
there are protections against the admissibility of that information or documents in judicial
proceedings, except in very limited circumstances.

Do you foresee disadvantages to clients if ACP is not recognized?
In Australia, client confidentiality is a corner-stone of the relationship between a lawyer andhis or her client. Confidentiality fosters trust and candour between lawyers and clients. The
disadvantage we see to clients is that if they are denied the right to confidentiality of theircommunications, is that they will not be willing to provide their lawyers with all of the relevant
information their lawyers need to provide them proper legal advice or to properly represent
them in judicial proceedings. As mentioned above, Australia regards the public policy
benefit of confidentiality of communications between lawyers and clients as more important
than the public policy benefit of requiring complete disclosure of information,communications and documents to government agencies, except in very limited
circumstances.
Would the purposes of ACP be achieved if communications are not guaranteed and are
only to be “taken care of”, which means it may be subject to the discretion of the [JFTC]
authority?
No. As mentioned above, while there are a large number of federal government agencies
in Australia that have coercive information-gathering powers, they do not have the power tocompel the production of privileged information. That does not mean that all business andfinancial records of a client are privileged from disclosure, it is only communications,information and documents related to obtaining and giving legal advice that are privileged.
But we find it difficult to reconcile the idea that a government agency can compel disclosureof ACP communications while at the same time being able to ensure that thosecommunications will be “taken care of”, unless that means that any ACP communications
are not admissible as evidence in judicial proceedings. In Australia this situation exists onlyrarely.
Does your jurisdiction permit the attendance of attorneys, recording and/or videotaping
during the deposition (i.e. the investigatory interview) procedure and if so, what is therationale and how is it carried out in practice?
It is a basic right under criminal law in Australia that a person under arrest is entitled, if theyso wish, to have a lawyer of their choice present during any questioning by an investigating
official. Further, it is usually the case that any such interview is either recorded orvideotaped. The rationale for having a lawyer (or another support person) present during a
police interview is the basic premise of our criminal justice system that an accused person
has the right to remain silent and to not be compelled to answer questions at a police
interview. Our criminal justice system protects accused persons by allowing the benefit oflegal advice during police interviews.
For matters that are not criminally-related, government agencies undertaking interviews aspart of their coercive information gathering powers will generally respect the right of theperson being interviewed to have a lawyer of their choice present if they so wish.
We would have serious reservations about a situation where a person was not allowed tohave a lawyer present during the actual questioning. The reason for this is that answers
provided during interviews may be used as evidence in any court proceedings. There is aserious risk that a person without legal knowledge might, without a lawyer actually present
during the deposition process, provide information that the person is not legally obligated toprovide.

I hope the above information is helpful.
Yours sincerely

Fiona McLeod SC
President