Practice Guideline 3

Introductory matters

1. This Practice Guideline sets out the way the Commission will receive and consider claims of legal professional privilege with respect to documents and other communications sought under a summons or a notice to produce.
2. However, nothing in this Practice Guideline should be taken as limiting the Commissioners’ powers, whether at the request to any person^[1] or on the Commissioners’ own initiative, to treat any material or information as confidential and to take any steps in respect of the preservation of such confidentiality.
3. This Practice Guideline may be varied or replaced at any time.

Legal Professional Privilege and the Royal Commission

4. Where a person is required to produce a document under s 2 of the Royal Commissions Act 1902 (Cth) (the Act), the procedure for making a claim of legal professional privilege in respect of any such document is contained in s 6AA(1) of the Act.
5. The effect of s 6AA(1) of the Act is that an assertion that a document is subject to legal professional privilege will not be a “reasonable excuse” for refusing or failing to produce the document for the purposes of ss 3(1B), (2B), (5) or (6B) of the Act, unless:
   1. a court has found the document (or the relevant part of the document) to be subject to legal professional privilege; or
   2. a claim that the document (or the relevant part of the document) is subject to legal professional privilege has been made to the Commissioners within the following timeframes as applicable:
      1. within the time that the Commissioners, in requiring production of the document, allowed for its production; or
      2. within such further time as the Commissioners allow.
6. It is an offence for a person to refuse or fail to produce a document, or a part of a document, which the Commission has required that person to produce and in respect of which the Commission has rejected a claim of legal professional privilege (see s 6AB of the Act).

Procedure for making a claim

7. A person may claim legal professional privilege in relation to the whole of a document or one or more parts of a document. The procedure for claiming the privilege before the Commission will vary depending on whether or not a court has already found the document in question to be privileged.

Where a court has already determined the claim of legal professional privilege

8. The person to whom the notice was issued may make a claim of legal professional privilege by:
   1. informing the Solicitors Assisting the Commission of the claim; and
   2. at the same time, providing the Solicitors Assisting the Commission with a copy of the judgment or order recording the court’s classification of the document as privileged.

Where no previous court determination of legal professional privilege has been made

9. The person to whom the notice has been issued may make a claim of legal professional privilege by:
   1. providing to the Solicitors Assisting the Commission at or before the time set for production of the document, written notice of the claim and a statement of evidence and a submission supporting the claim; and
   2. in relation to documents subject to a partial claim of legal professional privilege, producing, at or before the time set for production of the document, a redacted copy of the document to the Solicitors Assisting the Commission.  
10. Claims will initially be considered by the Solicitors Assisting the Commission, who may determine that the claim is accepted or not contested or that the claim needs to be considered by the Commissioners.
11. For the purposes of considering a claim of legal professional privilege, the Commissioners may invite or require Counsel Assisting or the Solicitors Assisting to make a submission and may provide to Counsel or Solicitors Assisting the material provided pursuant to paragraph 9 above (save, where appropriate, to the extent, if any, that that material is marked as confidential and for review by the Commissioner only).
12. Subject to any requirement pursuant to s 6AA(3) of the Act, any document where a full claim of legal professional privilege is made should not be produced to the Solicitors Assisting the Commission until a decision has been made by the Commissioners in respect of the claim.

Considering and Determining Claims

13. Upon receipt of a submission and claim for legal professional privilege, the Commission may decide whether to accept or reject the claim (see s 6AA(2) of the Act).
14. For the purpose of deciding whether to accept or reject a claim of legal professional privilege, the Commissioner(s) may:
    1. by written notice served on a person, require the person to produce the document the subject of the claim for the sole purpose of deciding whether to accept the claim (see s 6AA(3) of the Act); and
    2. exercise their powers to summon witnesses and take evidence under s 2 of the Act (see s 6AA(6)).
15. Where the Commission accepts a claim of legal professional privilege in relation to an inspected document, either in whole or in part, the document will be returned to the person. Such parts of an inspected document as the Commission accepts to be subject to legal professional privilege will not be taken into account by the Commission, nor will they form the basis of any finding or recommendation by the Commission (see s 6AA(4)(b) of the Act).
16. If the Commission rejects a claim for legal professional privilege in relation to a document which has been produced for inspection, the Commission may retain the document and use it for the purposes of the inquiry (see s 6AA(5) of the Act).