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Scope and source of legal professional privilege

The Commonwealth of Australia and five of the country's eight states and territories have enacted legislation relating to legal professional privilege, all of which are largely identical and reflect common law protections.

Both common law and statute recognise two types of privilege: legal advice privilege and litigation privilege.

Legal advice privilege protects "confidential communications" between a client and a lawyer where confidential documents prepared by a client, lawyer or a third party are made or prepared for the dominant purpose of providing legal advice.

Litigation privilege protects confidential communications and documents prepared for the dominant purpose of actual or anticipated proceedings.

The litigation protection applies to communications between a client and their lawyer and may also apply to certain categories of communications between a lawyer and a third party.

The Evidence Acts govern whether evidence can be adduced or admitted into evidence in a proceeding where client legal privilege may apply to that evidence. The common law provides the same protection but also protects against a broader range of compulsory actions to produce documents, including in pre-trial processes such as discovery and, in certain circumstances, claims for production by regulators.

https://landers.com.au/legal-insights-news/legal-professional-privilege-under-australian-law