I have received a statutory notice requiring me to produce client information or documents. What should I do?
The QLS has developed a checklist for solicitors in this position. The checklist is intended to be read with this FAQ and the other related FAQs in this section Search Warrants and Statutory Notices to Produce.
Such notices can originate from a range of sources such as the CCC, the ATO, the ACCC, ASIC, trustees in bankruptcy or liquidators of current or former clients.
Unlike the position with search warrants, certain of these statutory powers will not require you to provide confidential details. You will need to consider the terms of the relevant legislation in each case as to both confidentiality and legal professional privilege (‘privilege’). Normally the notice will identify the relevant legislation, but if not, details should be sought from the body which has served you with the notice.
You will need to consider whether the statutory power relied on in the notice abrogates privilege. The High Court in the landmark Daniels case (2002) 213 CLR 543 stated that privilege is “an important common law immunity” and that it can only be abrogated expressly or by “necessary implication”. You will need to look carefully at the particular statutory provisions relied on in the notice and consider any relevant case law on those provisions, especially as to “necessary implication” which may not be obvious.
The body that has served you with the notice will no doubt have a view on these questions and may be able to refer you to the relevant case law. It may be worth asking. If it is their view, for instance, that privilege has not been abrogated then you will not need to spend time considering that question. If they have the opposite view, or if the position is otherwise in doubt, you will need to give this further consideration and you may need to obtain expert legal advice.
You should also be aware that in some limited instances, the legislation makes it an offence for you to contact your client about the notice. For instance there is such a provision in s.84 of the Crime and Corruption Act 2001 (Qld). It is hoped that the notice will make this abundantly clear but you might consider checking the position with the body serving the notice.
The New South Wales Law Society has nicely summarised the ethical guidance given by its Ethics section in relation to statutory notices in an article by Virginia Shirvington (NSW Law Journal, May 2005, p.40):
"A statutory notice to which a penalty attaches for non-compliance usually overrides a solicitor’s duty of confidentiality to a client. The solicitor will be required to provide such information identified in the notice as may be characterised as ‘merely’ confidential, as opposed to information protected by legal professional privilege…
A statutory notice does not normally override client privilege, and the relevant legislation may specify that a request for the information may be resisted where there is ‘reasonable excuse’, which generally would include a claim of privilege. In some cases the legislation will prescribe the procedure for claiming privilege; in certain cases the relevant legislation may specifically override privilege.
In ethical terms, it is appropriate for a solicitor to ask the issuing authority about the form and scope of a notice and the position regarding client privilege, and for the solicitor to contact the client to obtain instructions. If the client objects to providing the information, the solicitor should claim privilege if such a claim is available."
If the notice has been served by a federal body you can refer to these documents:
For the ATO, ASIC, APRA, and the ACCC, read “The privilege against self-incrimination, the penalty privilege and legal professional privilege under the laws governing ASIC, APRA, the ACCC and the ATO – suggested reforms” by Dr Thomas Middleton (2008) 30 Australian Bar Review 282 (available from the Supreme Court library - Send a Document Delivery Request)
For ASIC, see:
Similar considerations will apply to any other privileges that may apply, such as the privilege against self-incrimination. For details of the privilege against self-incrimination, see: