George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Senator Ludlam, your reference to an article by a Mr Duncan I assume is an intended reference to an article by a Mr Duncan McConnel, the president of the Law Council of Australia, whom I know. The article appeared in The Australian newspaper last week.

If you read Mr McConnel's article with care you will see that Mr McConnel does not purport to state the law of legal professional privilege. Nor does he purport to say that the provisions of this bill are at variance with the principles of legal professional privilege. What he basically says—as does the president of the Law Institute of Victoria, whom you have quoted—is what lawyers would like.

Being a lawyer of some 30 years standing, I want to share with Senator Ludlam what might be a penetrating glimpse of the obvious. Every now and again, lawyers make claims in their own interests. Because we are but human, every now and again lawyers say self-serving things. I know this might come as a shock to you, Senator Ludlam, but it is true! I am sorry, Mr Chairman, it is true. I have known lawyers to say self-serving things—I have! I do not want to attack your innocence, Mr Chairman, at your great age and at this hour of the night, but it is true: I have known lawyers to say self-serving things!

The reason Mr McConnel cannot be taken to be stating the application of the laws and rules governing legal professional privilege or lawyer-client privilege is that if he were doing so he would have referred to the Full Federal Court's decision in Carmody v McKellar. Carmody v McKellar dealt with the issue of whether interception under section 45 of the T(IA) Act violated the principles of legal professional privilege. The court held that those principles could not be construed so that merely the authorisation of an interception was a violation of the principle of legal professional privilege. So, a fortiori, Senator Ludlam, if an interception under the T(IA) Act has been held by the court not to violate the principles of legal professional privilege, then how can access to metadata—merely details of the communication, which specifically prohibits access to the content—be regarded as doing so?

As I pointed out to Senator Leyonhjelm, those principles protect that which passes between the lawyer and the client. That is what they do. And, as I also pointed out to Senator Leyonhjelm, these are exclusionary rules. So even if, in the inconceivable circumstance that access to metadata somehow, by inference, disclosed content, that could not be admissible against the interests of a party seeking to exclude it from evidence, in any event. It could not happen.

So, Senator Ludlam, I could direct you to the relevant chapter of Cross on Evidence, which sets these principles out very clearly. Perhaps you could take a couple of hours to read it for yourself. However, rest assured that the amendment that Senator Leyonhjelm propounds and that you contend for, is entirely unnecessary, because there is no set of circumstances in which the content of a communication between a lawyer and their client could be accessed under this regime.