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Wednesday, November 18, 2009

Statutory legal professional privilege

A Queensland reader (thanks) has pointed out that the question of legal professional privilege for communication with NSW Parliamentary Counsel in the drafting of legislation-one of the issues in the Betfair/Sportsbet discovery litigation- wouldn't arise there because statutory legal professional privilege is conferred by Section 9A of the Legislative Standards Act:

9A Application of legal professional privilege to office

(1) This section applies to communications made in or for the performance of the office’s functions under section 7(a) to (i) or a function incidental to those functions. (Comment-in essence in drafting, and the provision of advice)

(2) Confidential communications between a client of the office, and the Parliamentary Counsel or any member of the office’s staff, are subject to legal professional privilege.

Examples of office’s clients—
1 a Minister to whom the office provides advice on the application of
fundamental legislative principles to proposed subordinate
legislation drafted by the office
2 a member who asks the Parliamentary Counsel to draft a Bill, an
amendment of a Bill or an instrument to be used in the Legislative

(3) Without limiting subsection (2), the communications may not be disclosed by the Parliamentary Counsel or a member of the office’s staff without the client’s consent.

(4) This section has effect despite any other law.

As to other states?

My Queensland correspondent says the only other similar statutory privilege is conferred on communications with Legal Aid lawyers by the Legal Aid Act (Section 75)- I'd be surprised if this is uncommon around the country.

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