Communications between clients and lawyers must be protected under the imminent data retention regime, according to peak legal body Law Institute of Victoria.
LIV President Katie Miller said people thinking of hiring a lawyer need to understand that the proposed Bill does not stop data about their communications with lawyers being retained and accessed.
“In many cases it is very important to keep confidential and protect even the fact that a lawyer is in contact with particular people,” she said.
“Any mass retention of communications data between lawyers and their clients could threaten the necessary trust between lawyers and their clients, allow an issue of sensitivity to be inferred or revealed, and undermine the ability of lawyers to advocate on behalf of their clients”.
Information exchanged by email or calls between the lawyer and associates of the client, experts or potential witnesses, could disclose a defence case, for example. A litigation strategy or case theory could be identified based on witnesses or experts contacted by the lawyer.
Ms Miller said it was fundamentally important, and recognised under common law, that clients should be confident that their communications with lawyers were private and would not be disclosed to any person.
Ms Miller said the announcement that the Government would move to require a warrant for access to journalists’ data which identifies a source was a welcome development. However, on its own, it did not resolve the many legal and practical issues with the Bill, including the protection of lawyers’ communications.
“The Bill must be amended so that a warrant is required to access lawyers’ telecommunications data,’ she said.
The LIV has written to the Chair of the Parliamentary Joint Committee on Intelligence and Security and Federal Attorney-General George Brandis seeking a warrant regime for access to lawyer client communication data.