Glencore Case Has Important Implications for Legal Professional Privilege
SYDNEY (8 April 2019) — The Association of Corporate Counsel (ACC), a global legal association representing 45,000 in-house lawyers in 85 countries, and its Australian chapter, ACC Australia, which represents more than 4,000 in-house lawyers, have requested to file an amicus curiae brief in Glencore International AG vs Commissioner of Taxation of the Commonwealth of Australia, a case before the High Court of Australia regarding documents obtained in the 2017 Paradise Papers leak.
In late March, ACC sought leave to appear as an amicus curiae to support plaintiff Glencore International’s claims of privilege, as well as to address the broader international implications of the Court’s eventual decision.
Glencore International has asked the High Court to compel the Commissioner of Taxation of the Commonwealth of Australia to return documents that Glencore asserts were obtained illegally and should have been protected by legal professional privilege.
ACC asserts that the privilege holder has a right to restrain third parties’ use of privileged documents, and that this right is not waived by Australian tax law (s 166 of the Income Tax Assessment Act 1936).
The written submissions further point out that the Court’s decision has key implications for law worldwide; the privilege in question stems from communications with a Bermudan law firm. Furthermore, the decision could put Australia on the map as “a desirable place for hackers to leak stolen privileged documents” in the event that the Court does not restrain third parties’ access to privileged materials.
“Given the increasing number of cyberattacks on law firms, it is essential that the Court recognise that legal professional privilege still applies in this case,” said Tanya Khan, ACC Vice President and Managing Director, Australia and Asia Pacific. “Allowing the government or any other third party to retain and use privileged documents in this manner undermines client candour and entirely thwarts the purpose of legal professional privilege.”
To read the ACC and ACC Australia affidavit and written submissions, please visit https://www2.acc.com/advocacy/upload/2019-03-22-Filed-Affidavit-of-J-Priestley.pdf.
About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other organisations through information, education, networking, and advocacy. With more than 45,000 members in 85 countries employed by over 10,000 organisations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.