Privilege has been an issue in many recent investigations being carried out by regulators, particularly those investigations being conducted by the Australian Taxation Office and the ACCC. Two examples of this are Commissioner of Taxation v. PricewaterhouseCoopers & ors [2022] FCA 278 and Commonwealth Director of Public Prosecutions v. Citigroup Global Markets Australia Pty Ltd [2021] FCA 511. In both cases, the regulator contested claims of privilege over documents to which the regulator was seeking access as part of their investigation, and the court, in both cases, found that privilege could not be upheld for all documents over which it was claimed.

The regulators have also made clear that they will particularly scrutinize claims for privilege from multidisciplinary firms such as the large accountancy firms where particularly documents relating to tax advice can raise issues as to whether they are covered by legal privilege.