105Legal professional privilege

105 Legal professional privilege

(1) A person is not excused from complying with a notice under section 104 on the ground that giving the information or producing the document would disclose a communication protected against disclosure by legal professional privilege, if the communication is: (a) legal advice given to a Minister or a Commonwealth body; or (b) a communication between a designated individual for a Commonwealth body, if the communication is within the actual or apparent scope of the individual’s designation, and another person or body. (2) However: (a) the information given or document produced; and (b) the giving of the information or production of the document; are not admissible in evidence against a person in any civil or criminal proceedings. (3) The fact that a person is not excused from complying with the notice on the ground mentioned in subsection (1) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information or document. (4) If a person claims, by written notice given to the Commissioner, that, but for subsection (1), information or a document specified in a notice given to the person under section 104 would be protected against disclosure by legal professional privilege, the Commissioner: (a) must withdraw the notice unless satisfied that it is reasonably necessary and proportionate to the investigation to require the person to give the information or produce the document; and (b) must ensure that the information and documents are held securely and destroyed when the investigation ends; and (c) may disclose the information or documents to a person if: (i) the person is a member of the staff mentioned in section 47, or engaged as a contractor or consultant as mentioned in section 48 or 49, or otherwise providing services to the Commissioner; and (ii) the Commissioner is satisfied that the disclosure is reasonably necessary for the purposes of the investigation; and (d) must not disclose the information or documents except in accordance with paragraph (c). (5) Subsection (4) does not apply if there are no reasonable grounds for the person’s claim.