Amend data retention laws to protect client/lawyer confidentiality

The Law Council notes the Government’s intention to amend the Telecommunications (Interception and Access) Act 1979 (Cth) to require law enforcement and intelligence agencies to obtain a warrant to access a journalist’s telecommunications data. Law Council of Australia President, Mr Duncan McConnel, said this is a welcome development that the Law Council believes should also be extended to protect client/lawyer communications.


“There is no apparent public policy basis for recognising the need to safeguard confidential journalists’ sources, while not also protecting confidential and privileged information between lawyers and their clients.


“People who engage a lawyer need to know their communications are confidential and that legal professional privilege is not lost under the proposed Data Retention Bill.


“The confidentiality of client/lawyer communication is a long-held common law right and we need to be vigilant to protect it,” Mr McConnel said.


Currently, the Bill does not provide any assurance that the confidential relationship between a client and a lawyer will not be compromised.


“It is not difficult to envisage situations where client/ lawyer telecommunications data would reveal a range of information that could compromise confidentiality and even legal professional privilege.


“For example, what would happen if a whistle-blower seeks legal advice prior to, or during communication with a journalist? Under the proposed amendments, the journalist’s communication may be confidential, but what of the communications between a journalist or the journalist’s source and the lawyer?


“Data could allow inferences to be drawn from whether a lawyer has been contacted; the identity and location of the client, lawyer and witnesses; the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications,” Mr McConnel said.


The potential for client legal privilege to attach to the disclosure of a client’s identity and contact details means that heightened protections for client/lawyer telecommunications data should be built into the legislation.


“The introduction of a warrant process to access client/ lawyer telecommunications data is a simple but effective safeguard.


“As a minimum, a Parliamentary Inquiry should be conducted into access to telecommunications data of lawyers to ensure there are sufficient safeguards to protect privileged and confidential information,” Mr McConnel said.


As the peak body of the Australian legal profession, the Law Council plays a leading role in ensuring proper protections exist against undue interference with the confidentiality of client/lawyer communications.


“The Law Council’s position is simple – lawyer communications deserve the same level of protection to that afforded to journalists,” Mr McConnel concluded.


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