61Offences relating to claims for legal professional privilege

61  Offences relating to claims for legal professional privilege

Offences

 (a) the person has failed to give evidence, or produce a document or thing as required by the Commissioner under section 31; and

 (b) the Commissioner has decided under subsection 60(2) to reject a claim that the evidence, document or thing (or the relevant part of the evidence, document or thing) is subject to legal professional privilege; and

 (c) the person fails to give the evidence, or produce the document or thing as the Commissioner requires, after that decision, under section 31.

 (a) the person has failed to give information or a statement, or produce a document or thing as required by the Commissioner under section 33; and

 (b) the Commissioner has decided under subsection 60(2) to reject a claim that the information or statement, document or thing (or the relevant part of the information, statement, document or thing) is subject to legal professional privilege; and

 (c) the person fails to give the information or statement, or produce the document or thing as the Commissioner requires, after that decision, under section 33.

 (3) A person commits an offence if:

 (a) the person is required under subsection 60(3) to give information or a statement, or produce a document or thing for inspection; and

 (b) the person fails to comply with the notice.

Reasonable excuse

 (4) Subsections (1), (2) and (3) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

 (5) Subject to subsection (6), something is a reasonable excuse for the purposes of subsection (4) for a person to refuse or fail to:

 (a) give information or a statement; or

 (b) produce a document or thing;

if the thing would excuse an act or omission of a similar nature by a person served with a subpoena in connection with a proceeding before a court of law.

Legal professional privilege

 (6) It is not a reasonable excuse for the purposes of subsection (4) for a person to fail to give evidence, information or a statement, or produce a document or thing, that the evidence, information, statement, document or thing is subject to legal professional privilege, unless a court has found the evidence, information, statement, document or thing to be subject to legal professional privilege.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Defence of relevance