The High Court has told the ACCC that it cannot compel a business to produce documents that are covered by legal privilege. In a decision last week hailed by lawyers as a victory for the concept of legal professional privilege, the High Court said the Trade Practices Act does not expressly allow ACCC to obtain privileged documents and information.

The decision overturns a June 2001 Full Federal Court ruling that the TPA permits ACCC to ignore claims of legal privilege. But the High Court said legal privilege is “an important common law immunity”.

Lawyers Clayton Utz said the decision has “significant implications” for business and regulators alike, and may impact on other regulators. The powers of the Commissioner of Taxation and state environment protection authorities, for example, have been previously thought to confer the right to demand production of privileged material.

The scope of any notices already issued which demand privileged material, or seizures of privileged material, may [now] be open to challenge by the ‘owners’ of the material,” a Clayton Utz spokesman said.