In Australia, the ultimate question to determine whether privilege applies is the dominant purpose test, which is whether the confidential communication was created for the dominant purpose of giving legal advice to a client, or to provide legal services for actual or anticipated litigation.

Privilege is not available if a client seeks legal advice in order to facilitate the commission of a crime, fraud or civil offense, regardless of whether the adviser knows of the unlawful purpose. Privilege is available where legal advice is sought for a past crime, fraud or civil offense.

Generally, there is no difference in how privilege operates in Australia. Privilege can be claimed in civil or criminal proceedings, during the course of a trial and in non-judicial proceedings. Privilege may also be claimed in relation to production of documents under a subpoena, a police search warrant, a search by taxation authorities, or an inquiry by a statutory body such as ASIC. There is jurisprudence which provides that a section 155 notice issued by the Australian Competition and Consumer Commission (ACCC) does not abrogate legal professional privilege which is recognized as an important common law right that can only be abrogated expressly or by necessary implication.

There are only a few instances when privilege is not a protection for persons to avoid providing information or documents (for example, sections 3ZZGE, 3ZQR and 15HV of the Crimes Act 1914 (Cth), section 9(4) of the Ombudsman Act 1976 (Cth), section 96(5) of the Law Enforcement Integrity Commissioner Act 2006 (Cth), section 18 of the Inspector-General of Intelligence and Security Act 1986 (Cth) or section 202 of the Proceeds of Crime Act 2002 (Cth)). The purpose is to compel individuals to produce evidence or information to government oversight bodies to allow for open government and accountability in decision making. However, the laws that abrogate privilege generally provide that the privileged material disclosed is not admissible in proceedings against that person.

Privilege protects the contents of confidential documents prepared by a client or lawyer for the dominant purpose of the lawyer providing legal advice to the client. Confidential notes, memoranda, minutes, copies and other documents made by the client and lawyer relating to communications, which if disclosed would reveal privileged communications, are also privileged. Such material is protected as the existence of the confidential material is directly attributable to the making of the privileged communication.

Section 118 of the Evidence Act 1995 (Cth) extends privilege to include documents prepared by a client or lawyer in their own right regardless of whether they are client-lawyer communications. Section 118 also extends to documents prepared by another person (i.e., not the client or lawyer). Oral communications from third parties made for the purposes of a lawyer giving advice fall outside the scope of privilege under section 118.

The Australian courts have not yet followed the UK’s approach in The RBS Rights Issue Litigation on determining the “client” for the purpose of privilege. Rather, section 117 of the Evidence Act 1995 (Cth) defines a client to include an employee or agent of a client, and the Australian position remains based on the “dominant purpose” test and therefore the purpose for which the document was created will remain the key consideration.