CALLS TO BETTER PROTECT CLIENT-LAWYER CONFIDENTIALITY
Written on the 20 March 2015
THE Law Council of Australia is calling on the federal government to further amend the Telecommunications (Interception and Access) Act 1979 to require law enforcement and intelligence agencies to obtain a warrant to access client-lawyer communications.
"The Law Council's position is simple - lawyer communications deserve the same level of protection to that afforded to journalists," says Law Council of Australia President, Duncan McConnel.
He adds that people who engage a lawyer need to know their communications are confidential and that legal professional privilege is not lost under the proposed data retention bill.
"The confidentiality of client-lawyer communication is a long-held common law right and we need to be vigilant to protect it," he says.
Currently, the bill does not provide any assurance that the confidential relationship between a client and a lawyer will not be compromised.
"It is not difficult to envisage situations where client-lawyer telecommunications data would reveal a range of information that could compromise confidentiality and even legal professional privilege," says McConnel.
"For example, what would happen if a whistle-blower seeks legal advice prior to, or during communication with a journalist? Under the proposed amendments, the journalist's communication may be confidential, but what of the communications between a journalist or the journalist's source and the lawyer?
"Data could allow inferences to be drawn from whether a lawyer has been contacted; the identity and location of the client, lawyer and witnesses; the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications."
The Law Council of Australia says the potential for client legal privilege to attach to the disclosure of a client's identity and contact details means that heightened protections for client-lawyer telecommunications data should be built into the legislation.
"The introduction of a warrant process to access client-lawyer telecommunications data is a simple but effective safeguard," says McConnel.
"As a minimum, a parliamentary inquiry should be conducted into access to telecommunications data of lawyers to ensure there are sufficient safeguards to protect privileged and confidential information."