NSW Police May be Bugging the Phones of Criminal Defence Lawyers

The New South Wales Police Commissioner has avoided answering questions raised in Parliament about whether the New South Wales police force is using spyware to infiltrate the mobile phones and computers of criminal defence lawyers, regardless of laws which protect the privacy of communications between lawyers and their clients.

During a recent budget estimates session, questions were put to Police Commissioner Mick Fuller about whether his officers deployed spyware to obtain information that is protected under laws relating to client legal privilege.

Avoiding the question

The police chief initially asked if he could take the questions on notice, citing operational concerns, but later provided a written response to Parliament saying it was “unclear” what “spyware refers to” – raising the inference that police are feigning ignorance and avoiding the question to avoid admitting police are violating laws relating to client legal privilege.

Finfisher spyware

It has been reported that the New South Wales Police Force has a licence for Finfisher, a powerful spyware tool that can be deployed on mobiles and laptops and other electronic devices.

Once the subject device is ‘infected’ with the spyware, the person who deploys it can access a vast arrange of information, and even secretly switch on cameras and microphones, which can operate even when the device’s power is down or off.

Finfisher is widely used by repressive governments in countries such as Egypt and Ethiopia, to target, monitor and arrest pro-democracy activist.

Undermining client legal privilege

The NSW Police Commissioner’s response, or lack thereof, has led many to the conclusion that the force is indeed monitoring the mobile devices of defence lawyers, in contravention of one of the most fundamental principles of the criminal justice system – that clients should be able to openly communicate with their lawyers without being monitored, and without that information being used against them.

Police are a law unto themselves

Time and again, reports emerge of police misconduct in illegally obtaining information, and then using it inappropriately.

This is despite the fact police and law enforcement agencies have already been given extensive powers to access our personal data – facilitated by meta data laws introduced in 2015, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and a suite of other laws passed under the guise of protecting against terrorism.

Last year, the Australian government also rushed through contentious laws designed to compel technology companies to grant police and security agencies access to encrypted messages.

The problem is that these laws are overwhelmingly being used for purposes other than protecting against terrorism or organised crime, including hunting down those who expose crime and corruption in government, targeting journalists who publish material that is critical of the government and pursuing doctors and even charitable organisation who call for action against the human rights abuses in offshore detention centres.

The laws have even been used for purposes some may consider as absurd, including monitoring the sexual conduct of cadets and catching alleged rubbish dumpers.

No protection for human rights or privacy.

Earlier this year, the Australian Federal Police admitted accessing the metadata of Australians around 20,000 times in just 12 months, raising concerns about whether we are living in a democracy or a police-run state.

If there is any hope for sensible change on the horizon then it is the parliamentary joint committee on intelligence and security’s review of the mandatory data retention laws, which is currently underway.

The review is examining a range of laws including anti-encryption legislation, and it is also investigating the recent AFP raids on the media with a view to ensuring the right balance between enabling government agencies to have access to the tools they need, with appropriate authority and oversight to protect our national security, and ensuring that our right to privacy is protected, and that the fundamental ideals of democracy are not being eroded.

Client legal privilege in New South Wales

Lawyer/client privileges generally seek to prevent the unauthorised disclosure by lawyers of instructions or legal advice to their client.

As the privilege is held by the client, not the lawyer, it is called ‘client legal privilege’ in NSW.

The rationale for the privilege is to enable clients to provide full instructions without fear of that information being disclosed to others, and in turn to facilitate the provision of complete and accurate legal advice and effective representation.

General proposition

In Australia, the general proposition is that:

1. As to privilege relating to advice:

“In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client’s consent, may not be given in evidence or otherwise disclosed by the legal advisor if made either:

(1) to enable the client to obtain, or the advisor to give legal advice, or assistance, or

(2) with reference to litigation that is actually taking place or was in the contemplation or anticipation of the client.”

2. As to privilege relating to documents:

“Documents prepared by or communications passing between the legal adviser or client and third parties need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal adviser if they come within (2) above”. J D Heydon, Cross on Evidence.

The elements

Client legal privilege is therefore said to arise where:

1. A professional relationship between a lawyer and client involving,
2. Confidential communications,
3. Created for the dominant purpose of legal advice.

Professional Relationship

This element can be established through evidence of an agreement (such as a cost agreement), of a formal conference (such as an office meeting or telephone conference) or even through circumstances where it can be inferred that the party asserting privilege (the client) could reasonably expect that a professional relationship had arisen.

Confidentiality

Section 117(1) of the Evidence Acts 1995 (NSW) defines ‘confidential communication’ as one where the person who made it, or the person to whom it was made, was under an express or implied obligation when it was made not to disclose its contents.

The section similarly defines a ‘confidential document’ as one which was prepared in circumstances that, when it was prepared, the person who prepared it, or the person for whom it was prepared was under an express or implied obligation not to disclose its contents.

In the context of the admissibility of legal advice in the courtroom, section 118 of the Evidence Act provides that:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

1. A confidential communication made between the client and a lawyer; or
2. A confidential communication made between 2 or more lawyers acting for the client; or
3. The contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

Section 119 substantially reproduces the above as it relates to confidential documents prepared for actual or anticipated legal proceedings in Australia or anywhere else in the world.

Dominant purpose test

Sections 118 and 119 signalled a key shift from the ‘sole purpose’ test to test ‘dominant purpose’ test.

Until the enactment of the Evidence Act in 1995, communications were only protected if made for the sole purpose of contemplated or pending litigation, or for obtaining or giving legal advice.

The High Court of Australia formally confirmed the dominant purpose test in the 1999 case of Esso Australia Resources Ltd v Commissioner of Taxation.

However, it is important to bear in mind that not every communications between a lawyer and his or her client attracts client legal privilege; only those which mainly relate legal affairs.

Loss of privilege during court proceedings

Sections 121 to 126 of the Evidence Act outline situations client legal privilege does not apply to the admissibility of evidence in court proceedings. These include:

121 – Where the client has died or where disclosure is necessary to enforce a court order,

122 – Where the client waives privilege, or consents to the lawyer disclosing information or producing materials, or where the client acts in a manner inconsistent with maintaining the privilege (eg discloses to others),

123 – Where a defendant is giving evidence in criminal proceedings, unless it is a a confidential communication or document between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person.

124 – Where two or more clients have jointly retained a lawyer in civil proceeding and one or more of them wishes to disclose a confidential communication or contents of a confidential document,

125 – Where a communication is made or document prepared in furtherance of a fraud, an offence or an act which would render a party liable for a civil penalty, and

126 – Certain information necessary to understand material to which privilege does not apply as a result of the preceding sections.

Fundamental threat

Any infiltration by police of the devices of criminal defence lawyers to obtain information covered by client legal privilege laws would represent a significant threat to not only the integrity of our criminal justice system, but to our democracy generally.