Nick Xenophon (SA, Independent) Share this | Hansard source

I can tell the Attorney-General that my copy of Cross on Evidence is 36 years old, so I presume there have been other editions since that time. I think I did evidence in 1980 at the Adelaide Law School. I would like to make an observation—and it is by no means a criticism of Senator Leyonhjelm, because he has done some terrific work in relation to this, and I am grateful to him and Senator Ludlam for the work they have done. In the Law Council's submission to this bill, under the heading 'Client legal privilege and confidentiality', there are paragraphs 97 to 106, and it makes two recommendations. The submission talks about the importance of client legal privilege. It says:

Client legal privilege is a right for a client of a lawyer not to have their communications associated with legal advice or impending litigation disclosed without their consent.

That is the axiomatic principle. It notes at paragraph 98:

The Law Council’s Client Legal Privilege Committee has noted that although telecommunications data alone may not reveal the content or substance of lawyer/client communications, it would, at the very least, be able to provide an indication of whether:

• a lawyer has been contacted;

• the identity and location of the lawyer;

• the identity and location of witnesses;

• the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications.

The Law Council of Australia also makes the point—this is important, so that Senator Leyonhjelm's amendment is not in anyway misrepresented—at paragraph 99 of its submission:

… client legal privilege does not attach to legal advice which furthers the commission of a crime.

I do not want there to be any suggestion out there, or people thinking, that this is, in some way, encouraging nefarious activity.

I am not sure whether I am still a member of the Law Council of Australia but I am sure they will contact me if I have misunderstood their submission. It does not seem that what they are saying is suggesting that metadata retention would facilitate a breach of legal professional privilege. They are indicating some 'nervousness'—for want of a better word—about whether it is appropriate to have that information about whether a lawyer has been contacted, the identity and location of a lawyer, or the identity and location of witnesses. It is not actually about the content of the communication, which cannot be disclosed; it is about related matters. I assume that that is what Senator Leyonhjelm's concerns are about. It is not about the content of the communications. I just want to put that in context, because it seems that the Law Council is not saying that this will breach legal professional privilege, but it is saying that it will lead to the identification of whether legal advice has been sought and the identity of witnesses. I am expressing my nuanced concerns on this. What protection will there be of the identification and location of witnesses and the lawyer, and the number of communications between the lawyer and the client or witnesses and the duration of these communications—in what circumstances would that be used in the context of this data retention bill?