ob体育

Section 1: Legal professional privilege and compulsory powers

ob体育 has a range of compulsory information-gathering powers to enable us to require a person to:

• provide us with documents and information, and
• attend an examination to answer questions and provide reasonable assistance.

We use compulsory information-gathering powers in two broad areas of our regulatory activity:

• surveillances in respect of compliance with the law, and
• investigations of suspected breaches of the law.

In responding to a compulsory notice issued by ob体育, you must provide all responsive information (i.e. the information requested in the notice) to ob体育 except for information that attracts a valid claim of LPP. In respect of LPP information you may:

• waive privilege and provide the information to ob体育 in response to the compulsory notice
• if you are the privilege holder, seek to provide the LPP information to ob体育 on a limited and confidential basis intended to preserve privilege (see Section 5), or
• withhold the information from ob体育.

Further information about ob体育鈥檚 approach to enforcement and the use of compulsory information-gathering powers, is respectively set out in Information Sheet 151 ob体育's approach to enforcement (INFO 151) and Information Sheet 145 ob体育鈥檚 compulsory information-gathering powers (INFO 145).

Categories of LPP

Essentially, there are two distinct categories of LPP:

• advice privilege, which applies to confidential information (communications and documents) brought into existence for the dominant purpose of giving or obtaining legal advice, and
• litigation privilege, which applies to confidential information (communications and documents) brought into existence for the dominant purpose of a client being provided with professional legal services in relation to actual or anticipated legal proceedings involving the client as a party.

Section 2: Who can make a claim of LPP to ob体育

If you are the recipient of a compulsory notice, you may assert an LPP claim over responsive information by providing the detail specified in Section 3 to ob体育 if you:

• are the privilege holder, or
• are not the privilege holder but seek to assert the LPP claim on behalf of the privilege holder (third-party LPP claim).

The privilege holder is generally the person who:

• in respect of advice privilege, is the client for whom the legal advice is being given or obtained, and
• in respect of litigation privilege, is the client who is involved as a party in actual legal proceedings or who is anticipated to be involved as a party in anticipated legal proceedings.

If you are a lawyer and rely on section 69 of the Australian Securities and Investments Commission Act 2001 (ob体育 Act) or section 296 of the National Consumer Credit Protection Act 2009 (National Credit Act) to refuse to comply with a compulsory notice, you must give to ob体育 a written notice setting out the information required by section 69(3) of the ob体育 Act or section 296(3) of the National Credit Act.

Section 3: How to make a claim of LPP to ob体育

For a claim of LPP over information in documents, you should provide the details specified under the heading 鈥楲PP claims over information in documents鈥�. For a claim of LPP over oral information, you should provide the details specified under the heading 鈥楲PP claims over oral information鈥�.

We will not accept a blanket LPP claim. To assert LPP you should adhere to the process set out below. If the LPP claim pertains to documents, you should itemise the documents in the manner specified. If the claim relates to oral information in response to an examination question, you should specify that you are claiming LPP specifically in relation to information responsive to that question.

LPP claims over information in documents

If you (the notice recipient) are responding to a compulsory notice issued by ob体育, you should make any LPP claims over responsive information by providing the details specified in this section:

• prior to or by the date specified in the notice for disclosure of the information to ob体育, or
• by such later date as may be specified by ob体育.

In order to make an LPP claim you should complete a schedule which identifies the documents over which LPP is claimed, by individually itemising each document and providing the following information in respect of each document:

• the names of all authors and recipients of the document together with their positions and employer (if any)
• the date of the document
• the type of document (e.g. email or letter)
• the category of LPP claimed (advice privilege or litigation privilege) and the basis on which the privilege is claimed
• the name of all persons who claim the right to assert the privilege (including any third parties on whose behalf the privilege claim is made)
• whether the form of the document is electronic or hard copy
• the address of the premises where the document is kept, and
• whether privilege is claimed over the whole or part of the document. Please note, where only part of the document is subject to a claim of privilege, an appropriately masked version of the document must be provided to ob体育.

In the case of a third-party LPP claim in respect of a document, you should also provide the following information to ob体育:

• the identity of the privilege holder
• the last known contact details of the privilege holder, and
• an explanation of the circumstances by which the document came to be within your possession or control.

LPP claims over oral information

If, during a compulsory examination conducted by ob体育, you seek to claim LPP over information responsive to an ob体育 question you should provide to ob体育 the details specified below during the examination or at such later date as may be specified by ob体育:

• the names of all parties who communicated the information or to whom the information has been communicated, together with their positions and employer (if any)
• the date of the communication
• the category of LPP claimed (advice privilege or litigation privilege) and the basis on which the privilege is claimed
• the name of all persons who claim the right to assert the privilege (including any third parties on whose behalf the privilege claim is made), and
• whether the information has been recorded in part or in whole in a tangible form (e.g. electronic or hard copy).

In the case of a third-party LPP claim, you should also provide the following details to ob体育 in respect of the information:

• the identity of the privilege holder
• the last known contact details of the privilege holder, and
• an explanation of the circumstances by which the information came to be known by you.

Section 4: Retention of the information over which LPP is claimed

If you are the notice recipient and you are asserting a privilege claim in respect of a document (LPP document) that has not been accepted by ob体育 or been determined in your favour:

• on your own behalf, you may choose to:

• provide the LPP document to ob体育 in a sealed envelope or container as appropriate, clearly marked 鈥楲PP documents鈥� and with a copy of the ob体育 notice attached. At the conclusion of the matter those documents will generally be returned to the party who provided them to ob体育
• withhold the LPP document from ob体育 and, if you do so, you must keep it safe under your custody or control and it must not be destroyed. A failure to retain the LPP document may amount to non-compliance with a notice under the ob体育 Act, or
• seek to provide the LPP document to ob体育 in accordance with the 鈥榁oluntary confidential LPP disclosure agreement鈥� discussed in Section 5.

• as a third-party LPP claim, you may choose to:

• provide the LPP document to ob体育 in a sealed envelope or container, as appropriate, clearly marked 鈥楲PP documents鈥� and with a copy of the ob体育 notice attached. At the conclusion of the matter those documents will generally be returned to the party who provided them to ob体育, or
• withhold the LPP document from ob体育 and, if you do so, keep the LPP document safe for so long as it is under your custody or control. If you are requested to relinquish custody or control of the LPP document, you should give ob体育 reasonable notice of the request prior to relinquishing custody or control of the LPP document. A failure to retain the LPP document may amount to non-compliance with a notice under the ob体育 Act.

Section 5: Voluntary confidential disclosure of LPP information

ob体育 may elect to accept, on a confidential basis, privileged information (or information that is claimed to be privileged) voluntarily provided by a notice recipient or other disclosing party. ob体育鈥檚 standard agreement, the 鈥榁oluntary confidential LPP disclosure agreement鈥�, sets out the terms on which ob体育 may elect to accept such information. The agreement provides that:

• ob体育 and the privilege holder agree the disclosure of the information to ob体育 is not a waiver of any privilege existing at the time of the disclosure. (Note: Although the agreement prevents ob体育 from asserting that the provision of the information amounts to a waiver of privilege, the agreement does not prevent third parties from asserting that privilege has been waived. You should consider seeking legal advice in relation to this issue. In this regard, see ob体育 v Noumi Ltd [2024] FCA 349 which is under appeal as at the time of publication.)
• ob体育 will generally treat the information as confidential, but the privilege holder retains responsibility for otherwise safeguarding any privilege, including asserting any privilege where ob体育 is compelled by law to disclose the information (such as in the case of a court order for discovery or a subpoena)
• ob体育 is permitted to review and use the information for ob体育鈥檚 investigative purposes
• ob体育 agrees it will not seek the admission of the disclosed information as evidence in any proceeding other than:
  • where the privilege holder has consented to its tender as evidence
  • to challenge the validity of the privilege claim
  • where privilege has otherwise been waived or it has been determined that the information is not privileged, or
  • for the purposes of a criminal proceeding in respect of the falsity of a statement made by the privilege holder.

ob体育 believes there can be a public benefit in accepting privileged documents (or documents claimed to be privileged) on this basis, as it may assist in the effective and efficient conclusion of ob体育鈥檚 investigation and determination of consequential steps (which might include no further regulatory action). It may also assist the parties to identify efficiently, and with precision, the critical issues to be addressed in an investigation. It will often be in the public interest for ob体育, in seeking to perform its regulatory functions, to have access to LPP material and it will often not be detrimental to the privilege holder for this to occur.

Section 6: If ob体育 does not accept an LPP claim

ob体育 will not accept a claim of LPP where in ob体育鈥檚 opinion your claim is:

• not substantiated by the information you have provided in support of your claim, or
• otherwise not valid (e.g. because ob体育 believes privilege has been waived or the information was unlikely to have ever been privileged).

If ob体育 does not accept a claim of LPP you have made, you can:

• withdraw your claim of LPP and provide the information to ob体育
• make a request (or ob体育 may invite you) to enter into a voluntary LPP dispute resolution process with ob体育, or
• make an application to the court seeking a declaration that the information is privileged.

If a claim of privilege is made to obstruct or hinder an ob体育 investigation or to intentionally or recklessly avoid compliance with a notice, such conduct may constitute an offence under the ob体育 Act.

In circumstances where ob体育 is required to make an application to the court seeking a declaration that information over which privilege has been claimed is not privileged, and is successful in obtaining that declaration, ob体育 will seek recovery of its costs.

Section 7: Information over which LPP is not claimed

As the notice recipient you must, by or before the date specified in the compulsory notice, provide ob体育 with all responsive information over which you do not claim privilege on your own behalf and in respect of which you are not making a third-party LPP claim. Failure to do so will be considered non-compliance with ob体育鈥檚 notice.

Section 8: Particular situations

Providing non-privileged information

If you make a claim of LPP as the holder of the privilege, or assert LPP on behalf of a third party, you must provide all non-privileged information to ob体育 by the date specified. Failure to do so is likely to be a breach of the ob体育 Act and may be a criminal offence.

When ob体育 may require additional details

ob体育 may require you to provide additional details in support of your LPP claim. For instance further details may be sought where:

• the only indicia of privilege in the privilege claims schedule you provide to ob体育 is that a lawyer was a maker or a recipient of a communication. This is because the inclusion of a lawyer in a communication does not of itself satisfy the dominant purpose test required to establish LPP, or
• a person instructs an internal or external lawyer to conduct a review of facts and circumstances, some or all of which fall within the scope of an ob体育 investigation. ob体育 will not accept a claim that the mere occurrence of the lawyer鈥檚 review gives rise to a valid LPP claim over information relating to those facts and circumstances. ob体育 draws a distinction between documents brought into existence for the purposes of the lawyer鈥檚 review, where a valid claim of LPP may be available, and the documents and information that existed prior to the lawyer鈥檚 review, where a valid claim of LPP is generally less likely to be available.

LPP claimed to be held by a company and one of its officers

If an officer of a company claims to hold LPP jointly with the company over information that appears to be company information, ob体育 may require you to provide additional details in support of your claim that LPP is jointly held.

Waiver of privilege

ob体育 will not accept a claim of LPP where the LPP holder or a joint LPP holder has waived the privilege or where the privilege holder or joint privilege holder has acted in a manner inconsistent with the maintenance of the privilege.

When you claim LPP over information on which you rely

Where you withhold information from ob体育 because of a claim of LPP and at the same time rely on the information withheld to justify or defend your conduct, ob体育 will require an explanation as to why the basis on which you assert LPP has not been waived by that reliance. If you withhold information and rely, or intend later to rely, on the information to justify or defend your conduct, you should also consider:

• voluntary confidential disclosure of LPP information to ob体育 pursuant to ob体育鈥檚 鈥榁oluntary confidential LPP disclosure agreement鈥�. The disclosure of the information may narrow the issues in ob体育鈥檚 investigation or lead to a quicker conclusion to ob体育鈥檚 investigation, and
• the cost of proceedings (civil, criminal or administrative) brought by ob体育 where the withheld information will have to be disclosed in responding to the claims in those proceedings. Delay in disclosing the withheld information to ob体育 may also result in ob体育 seeking its costs in civil proceedings even if you successfully defend the proceedings by reliance on the withheld information.

Companies in external administration

In the case of an external administration of a company in which both a receiver and a liquidator or administrator have been concurrently appointed, it is ob体育鈥檚 position that, subject to the terms of the receiver鈥檚 deed of appointment, the receiver has the right to assert or waive any privilege (to the exclusion of the liquidator or administrator) in respect of any communications concerning an asset forming part of the secured property.

Claims by lawyers

If you are a lawyer and make an LPP claim to ob体育 as the privilege holder, you should follow the procedure set out in Section 3 to make a claim. In these circumstances, ob体育 will not accept an attempt by you to rely on section 69 of the ob体育 Act or section 296 of the National Credit Act.