Generally, a regulator does not have the power to compel the production of privileged documents; however, it depends on the particular statute from which the regulator obtains its powers. For example, as mentioned above, privilege has been abrogated by statute in relation to investigations conducted by the National Anti-Corruption Commission (NACC) under the National Anti-Corruption Commission Act 2022 (Cth). This means that, while individuals must comply with compulsory notices issued by the NACC, even if privileged material is involved, this privileged material is generally inadmissible in criminal proceedings against them, preserving limited protections.

A number of statutes expressly abrogate the entitlement to claim privilege against self-incrimination.

There are additional considerations that parties may have to weigh up when it comes to deciding whether to disclose privileged materials to a regulator. For example, in situations where a party has obtained conditional immunity from prosecution from a regulator, although the regulator may not have the power to compel the production of privileged documents, there is a risk that the party will lose its conditional immunity should a condition of its immunity be a requirement to provide full, frank and truthful disclosure and cooperation with the regulator (including by withholding nothing of relevance).