Consultation on Legal Professional Privilege
Lawyers will become subject to suspicious matter reporting obligations from 1 July.
One of the most common questions I hear from law firm owners is how these obligations interact with client confidentiality and legal professional privilege.
To help address this, the Department of Home Affairs has released a draft guideline on legal professional privilege. The guidance provides useful clarification on what information may, and may not, be protected.
A key point is that confidentiality and legal professional privilege are not the same thing. Not all confidential communications attract legal professional privilege, and confidentiality alone does not override the disclosure requirements of the AML/CTF Act.
The guidance also makes clear that not everything a lawyer does is protected by legal professional privilege. Examples of information that will generally not be privileged include:
Facts observed by a legal practitioner while acting for a client.
Original documents that constitute or evidence transactions.
Internal reports and memoranda (such as board minutes and presentations) that do not convey or record privileged communications or legal advice.
Advice that is purely commercial or public relations in nature.
Communications made before the client contemplated obtaining legal advice on the matter.
File notes and minutes of meetings with third parties in a non-confidential setting.
A lawyer's bill of costs, except to the extent that it reveals the substance of legal advice sought by the client.
The consultation on the draft guideline is open until 24 June 2026. You can share your views here: https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/draft-legal-professional-privilege-guidelines-2026
What’s next?
Get in touch if you have any questions on the draft guidance.
