Client legal privilege
16 June 2026
Legal professional privilege—or client legal privilege, as it is more accurately described—has recently attracted public commentary which the Law Council of Australia believes requires a clear and considered response.
The Law Council is concerned that public misapprehension may arise that claims of client legal privilege made in response to government regulator requests are inherently scandalous and against the public interest.
That is wrong.
What the privilege is
Client legal privilege is a rule of substantive law and, as the High Court of Australia has held, “an important common law right, or perhaps more accurately, an important common law immunity”. It is a doctrine central to the proper working of the Australian legal system.
The privilege belongs to the client, not the lawyer. Only the client can waive it; the lawyer cannot.
As the High Court has held, the privilege may be invoked by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer, made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. The privilege can only be overridden by statute where Parliament has expressly said so, or where that intention is established by necessary implication—and broad legislative framing or regulatory inconvenience is not sufficient for that purpose.
This protection serves all Australians, not merely the powerful: the small business owner in a difficult commercial dispute, the parent navigating a family law matter, the individual facing a regulatory investigation. Every person who seeks legal advice is entitled to do so in confidence. That confidentiality is the foundation on which frank, honest legal advice is built. Without it, clients cannot speak openly to their lawyers and may be dissuaded from seeking advice at all.
The limits of the privilege
The privilege has clear and well-established limits. It does not protect communications made in furtherance of fraud, crime, or other improper purposes. Any attempt to misuse or deceive through improper claims of privilege would be outside the bounds of professional conduct and subject to the profession’s existing regulatory processes.
It is important not to assume an improper motive where a claim for privilege has been properly made. The assessment of whether a communication is in fact privileged is a question of law, and one that can sometimes be genuinely difficult. That is precisely why the courts, not public commentary or other external pressure, are the appropriate forum for resolving such questions.
The independence of the legal profession
The role of an independent legal profession—capable of advising clients without fear and acting without political interference—is a structural feature of a democracy governed by law. Legal practitioners are officers of the court, owing a paramount duty to the court and the administration of justice. This must be recognised when considering the professional obligations lawyers carry when responding to requests, whether from regulators or from other institutions of government, that touch on privileged communications.
Conclusion
The Law Council does not comment on the merits of any particular privilege claim, nor on the conduct of any party to the current public controversy. Those are matters for the courts and any relevant disciplinary bodies. What the Law Council does say—clearly and without qualification—is that client legal privilege matters, that it belongs to the client, and that its importance to our legal system and our democracy must not be lost in the noise of any particular dispute.
Contact
Kristen Connell
T. 0400 054 227
E. kristen.connell@lawcouncil.au
Last Updated on 19/06/2026