Privilege in Perspective (ALRC Report 107) and ESI
Preliminary
Focused towards issues of privilege in respect of investigations conducted by federal investigatory bodies (e.g. ATO, ASIC, ACCC, AFP, ACC), the ALRC Report 107 marks the first time that an Australian law reform body has made formal recommendations as to the search and seizure of electronically stored information (ESI).
Recommendations
Three (3) recommendations were made in relation to ESI:
Recommendation 8–16
Federal client legal privilege legislation should provide that where information which may be subject to a claim for client legal privilege is stored on the same electronic medium as non-privileged information that falls within the scope of a Commonwealth search warrant:
(a) the executing officer is not precluded from copying or imaging that medium and causing the copy or image to be removed from the premises; and
(b) such copying or imaging does not amount to a waiver of privilege.
Recommendation 8–17
There is a need for guidelines addressing the resolution of client legal privilege claims made in response to search and seizure powers in respect of electronically-stored information (ESI Guidelines).
The Law Council of Australia, the Australian Federal Police, the Commonwealth Director of Public Prosecutions, and relevant accounting professional bodies in consultation with:
(a) federal bodies that possess search and seizure powers; and
(b) computer forensic experts, should devise the ESI guidelines.
The ESI Guidelines should be adaptable for use at searches of premises of lawyers and accountants, other premises and searches of the person, and should be provided to persons at the time a Commonwealth search warrant is executed. The ESI Guidelines should be consistent with the processes for dealing with the resolution of privilege claims in respect of information in paper form.
Recommendation 8–18
Federal bodies with coercive information-gathering powers—the exercise of which raise, or are likely to raise, the issue of the application of client legal privilege—should develop and publish policies and procedures in relation to managing and resolving claims for privilege in respect of electronically-stored information.
The policies and procedures should be consistent with the processes for dealing with the resolution of privilege claims in respect of information in paper form.
Reference Material
ALRC Report 107 - Privilege in Perspective: Client Legal Privilege in Federal Investigations
Chapter 8 - Practice and Procedure – Electronic Material
Submissions
Byrne and Lambert, Discussion Paper (DP) 73 Submission
Byrne, Issues Paper (IP) 33 Submission
Seamus Byrne
in Privilege, Australia
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