The ACCC cannot compel the production of documents that would disclose information that is the subject of legal professional privilege (section 155(7B)).
The ACCC has recently published guidance which encourages companies and individuals responding to an ACCC compulsory notice to voluntarily provide information about documents that are withheld from production on the basis of legal professional privilege (LPP). This brings the ACCC in line with ASIC (which has had LPP guidelines in place since 2012) and the ATO (which published LPP guidelines earlier this year).
The guidance is not mandatory, the ACCC does not intend for companies and individuals to waive privilege in complying with the guidance and the ACCC is open to alternative approaches.
However, the ACCC is seeking to put itself in a position to enable it to appropriately consider whether to accept or challenge a privilege claim, and assess the party’s overall compliance with the compulsory notice, and will expect some information to be provided if LPP claims are made.
A quick refresher on legal professional privilege
Legal professional privilege, or client legal privilege as it is referred to under statute, (LPP) protects certain communications from mandatory disclosure. The overarching objective of LPP is to promote the administration of justice by encouraging full and frank disclosure from client to legal adviser.
LPP will apply if:
- there is a confidential communication, whether oral or in writing, passing between:
- which came into existence for the dominant purpose of:
- legal advice – the giving or receiving of legal advice or the provision of legal services;
- litigation – being used in actual litigation, or litigation reasonably contemplated by the client.
See our Litigation 101 series for more information on LPP.
What is the ACCC asking for?
Under the Competition and Consumer Act 2010, the ACCC has compulsory information gathering powers, pursuant to which it can issue various notices to compel companies and individuals to produce information and documents.
The ACCC's guidance for LPP claims states that the cover letter provided by the ACCC when it serves a compulsory notice will generally set out what information the ACCC would like you to voluntarily provide in respect of documents withheld on the basis of LPP.
The information that the ACCC may request from notice recipients is summarised below, and the ACCC has provided a template response on its website.
section 155 and section 133D Notice
Examples of the particulars requested by the ACCC
Document description
- document ID number and reference to any host or attachment document (if any)
- type of document (eg, email, letter)
- document title
- date and time of the document
- whether the document is electronic or hard copy
Information about the parties
- names of all authors
- names of all recipients (including those who were copied or blind copied)
Information about the privilege claim
- the category of LPP applicable and the basis of the claim
- whether privilege is claimed in respect of the whole or part of the document (and if only part, whether a redacted version has been provided)
- if the privilege claim is in relation to a third party, the identity of the privilege holder
section 95ZK Notice
Examples of the particulars requested by the ACCC: Specify whether any documents have been withheld, or redacted on the basis of LPP.
The ACCC does not intend to cause you to waive privilege in responding to its information request, and has advised that it will not argue that disclosure of the requested information amounts to an implied waiver.
However, companies and individuals will still need to take care to ensure that privilege is not inadvertently waived when disclosing the particulars requested by the ACCC. For example, it is possible that waiver could occur through the disclosure of a document title or email subject line, where that description reveals the substance or conclusion of legal advice.