Useful propositions from Z v New South Wales Crime Commission

These propositions from Z v New South Wales Crime Commission [2007] HCA 7 may be useful in relation to matters more generally than for understanding the basis of the Court’s decision:

Gleeson at [4]: ‘”a retainer is not a confidential communication”: United States v Pape 144 F 2d 778 at 782 (1944).’

Hayne and Crennan JJ at [36]: ‘As Lord Esher MR said in Bursill v Tanner (1885) 16 QBD 1 at 4, “The client does not consult the solicitor with a view to obtaining his professional advice as to whether he shall be his solicitor or not.”’

Kirby and Gaurdon JJ said at [15] that one of the reasons why parliament must be taken to have intended to abrogate the privilege which their Honours did think would otherwise protect against compulsion to disclose the client’s identity and contact details was that:

‘the sub-section interposes a requirement on the part of the member presiding at a hearing of the Commission which is addressed to the legal practitioner. By the postulate of the Act of Parliament, the member is a person of high responsibility whose duties necessarily expose him or her to highly confidential and even secret and dangerous information concerning the subjects of the inquiries before the Commission. It must be presumed that the member will only make the requirement in a hearing of the Commission when satisfied that it is necessary to fulfil the objects of the Act – a decision that may be debated at the hearing and reviewed for error of law or jurisdiction, as has occurred in this case. It must also be postulated that the Commission would take proper precautions for the subsequent security of such information and for the observance of restrictions on those having access to such materials.’

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