Confidential advice under scrutiny: privilege in royal commissions and inquiries

Whether conducted by way of a royal commission, a statutory inquiry, a regulator or a coroner, inquiries are increasingly supported by procedural guidance regarding matters such as document production, confidentiality and legal professional privilege. 

While these jurisdictions differ in their purpose and procedure, they raise many of the same legal issues. A question that often arises is how entities should approach legal professional privilege when responding to compulsory requests for information.

Modern public inquiries routinely publish procedural guidance dealing with legal professional privilege, document production and information protection – including the current  Royal Commission into Antisemitism and Social Cohesion, the Royal Commission into Defence and Veteran Suicide and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

Such guidance reflects an acceptance that privilege claims are an ordinary feature of compulsory investigations. Whether the Royal Commissions Act 1902 (Cth) (Commonwealth Act) abrogates privilege given the compulsory language used throughout may depend on the terms of reference and the statutory provisions engaged.

Given public inquiries are intended to uncover facts, test institutional decision-making and promote public confidence, privilege may not sit comfortably alongside compulsory investigative powers. Legal professional privilege protects confidential communications between lawyer and client and, like the inquiries themselves, it serves important public interests. The challenge for responding entities is to ensure they do not undermine one while responding to the other.

Privilege remains an important protection

There can be an impression that privilege should only be claimed sparingly, due to the public nature of an inquiry, expectations of transparency and public pressure to cooperate without question.

Legal professional privilege is not an obstacle to cooperation or a mechanism to avoid scrutiny. Rather, it is a substantive legal right that should be asserted where it properly applies and reconsidered where it does not.

In a royal commission context, and particularly those investigating misconduct, legal professional privilege does not extend to communications made in furtherance of a criminal or fraudulent purpose.

Internal investigations often present the most difficult questions

The most challenging privilege issues often arise in the immediate aftermath of an incident, well before any inquiry is commenced, which can be years later.

It is common for external lawyers to be engaged following allegations of misconduct, workplace issues, regulatory failures or critical incidents, fatalities and injuries. Of note:

• a lawyer's role may include advising on legal risk, assisting with interviews, reviewing documents and preparing reports for decision-makers.
• whether the resulting work attracts legal professional privilege depends on established legal principles rather than the identity of the person performing the work.
• the involvement of lawyers does not necessarily mean those documents are privileged, particularly in a royal commission context.
• the purpose of the retainer should be clearly defined from the outset, with identification of the legal questions to be addressed and maintaining appropriate separation between legal advice and other operational work where possible. Those decisions may seem procedural at the time. They often become central years later when an inquiry seeks production of the investigation file.

Privilege and public interest immunity are not the same

Often legal professional privilege is considered alongside claims of public interest immunity. While the concepts are sometimes raised together, it is important to remember they perform different functions.

Legal professional privilege protects confidential lawyer-client communications made for recognised legal purposes. The relevant question is whether the communication was made for the "dominant purpose" of obtaining legal advice or for use in litigation.  

Public interest immunity concerns whether disclosure of particular information would damage a recognised public interest, such as Cabinet confidentiality, national security, law enforcement activities or the effective functioning of government. A party or government cannot waive public interest immunity.

The distinction is more than academic because:

• the legal principles differ, as does the evidence needed to support each claim. The manner in which an inquiry considers the claims may also differ.
• maintaining a distinction between these two doctrines generally leads to a clearer analysis and more productive discussions with the inquiry.

Process matters

Inquiry bodies are experienced in managing privilege claims. Organisations that approach the process well tend to:

• establish internal processes to facilitate the approval to produce voluminous material including the approval processes for the claiming or releasing of certain privileged information, where appropriate.
• identify potential privilege claims early in the document review, before production deadlines create pressure to take shortcuts.
• apply a consistent methodology across a document set, so that similar documents are treated similarly and the basis for any claim can be articulated with precision.
• avoid broad assertions. A claim that an entire investigation file is privileged, without differentiation between legal advice, factual material and operational communications may not be accepted and risks damaging credibility with the inquiry.
• engage with the inquiry's legal team constructively, providing sufficient information to enable the claim to be assessed without disclosing the substance of the privileged material. Depending on the jurisdiction, it may be appropriate to release certain information on an inspection or confidential basis only.

State legislation and privilege

Some states have legislated regarding abrogation of privilege in contrast to the uncertainty in the Commonwealth Act.

Section 32 of the Inquiries Act 2014 (Vic) provides that it is not a reasonable excuse for a person to refuse or fail to comply with a requirement to give information or produce a document to a royal commission that the information or document is the subject of legal professional privilege. The provision is unambiguous - privilege cannot be claimed to resist compulsory production.

Critically, s 32(2) provides that information or a document "does not cease to be the subject of legal professional privilege only because it is given or produced to a Royal Commission in accordance with a requirement to do so under this Act." This addresses both the investigatory need for full access and the legitimate concern that compelled disclosure should not amount to a waiver of the privilege for all other purposes.

The Victorian scheme also differentiates boards of inquiry where legal professional privilege is expressly preserved as a reasonable excuse for non-compliance under s 65(2)(c).

Organisations facing concurrent commonwealth and state inquiries need to understand that whether privilege can be claimed may differ depending on which Act governs the compulsory process.

Beyond the inquiry

While privilege requires consideration once a notice to produce has been received, in reality most privilege questions arise much earlier: when lawyers are first engaged, when the purpose and scope of an investigation is defined, when confidential advice is incorporated into governance or operational documents, when reports are distributed outside those who need to receive them and when legal advice becomes part of the explanation for an operational decision.

Public inquiries bring those earlier decisions into focus.

The objectives of full cooperation with a public inquiry and the preservation of legitimate legal professional privilege are not mutually exclusive. They require careful management, clear legal analysis, and an understanding that the foundations of any privilege claim are in place long before the inquiry issues its first notice.