The High Court has not weakened the underlying principles of legal professional privilege in any way, but some unresolved issues mean you should seek independent advice on its availability and claiming it when dealing with the regulators.
Legal professional privilege won’t stop documents taken as part of the Paradise Papers hack being used by the Australian Taxation Office in assessing tax liability, in a decision that both affirms traditional views of legal professional privilege, and leaves three key issues undecided:
- what, if any, legal remedy exists for someone whose privileged documents are hacked and then used against them by a government decision-maker;
- the admissibility of hacked documents in subsequent court cases; and
- limited use disclosure of privileged documents to government regulators.
(Glencore International AG v Commissioner of Taxation  HCA 26).
Legal professional privilege a shield, not a sword
The High Court did not need to consider the particular statutory framework of the tax legislation, in