You may be aware that a major scandal has erupted in Victorian legal circles involving the use of...

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You may be aware that a major scandal has erupted in Victorian legal circles involving the use of evidence obtained from a lawyer who was acting as a police informant. It is said that the lawyer provided information given to her by clients, and which would normally attract attorney-client privilege, to prosecution authorities. As a result, some of her clients were convicted of serious offences, and are in jail. The prosecutions relied at least partly on information the lawyer secretly provided to the prosecution, without her clients' knowledge or consent. If you need some background information on this, read the High Court's decision involving this matter inAB v CD; EF v CD [2018] HCA 58, particularly at [10]. The High Court referred to 'fundamental and appalling breaches of (the lawyer's) obligations as counsel to her clients and (her) duties to the court'. It said the prosecution of each convicted person was corrupted in a way that debased fundamental aspects of our system of criminal justice. A Royal Commission has been announced to investigate these matters further.

There is talk that those who have been convicted could appeal their convictions, and have them overturned. Assume that the parliamentary draftsperson in Victoria has been asked to draft appropriate legislation. The draft of the legislation, entitled theConfirmation of Convictions Bill 2019(Vic), contains the following two provisions:

Clause 12: a court must not overturn the conviction of a person merely because some of the evidence led in their original trial was derived from a breach of attorney-client confidentiality, in other words the lawyer of the defendant breached client confidentiality by disclosing information provided to them by their client to the prosecution authorities without the client's knowledge or approval.

Clause 13: a court must not award compensation to a person for wrongful or false imprisonment merely because they were convicted at a trial where information of the kind mentioned in Clause 12 was used.

The Victorian Government has approached you for advice. You are to advise them whether the proposed legislation, and in particular Clause 12 and 13, could be successfully challenged as being contrary to Chapter III of theConstitution. Your answer is to be in the form of an advice. Advise the government whether, in your opinion, the legislation would be constitutionally valid. Provide good arguments either way, by using relevant cases and arguments, once you have explained the Chapter III context.

Suggested Starting Point: You should be becoming aware of the Chapter III issue through your course readings, including the Gray textbook, lectures, class recordings etc. I suggest you read relevant Chapter III cases. Relevant cases includeNicholas v The Queen XXXXXXXXXXCLR 173 andChu Kheng Lim XXXXXXXXXXCLR 1, and others.

The due date of your assignment is 17 April 2019. The maximum word count depends on your status. If you are an ONL student, this assignment is worth 50% of your total grade in the course. Because 700 words is worth 10% weighting, your maximum word count is 3500 words. If you are an ONC student, this assignment is worth 40% of your total grade. Your maximum word count is 2800 words. You should use footnotes rather than endnotes. These don't count in your word count. You can include a bibliography if you wish. I will post a criteria sheet. You will submit your answers on the course study desk. Please include a turnitin report. If you have told me you wish to do the moot, you don't need to do anything as yet. The moot will be going ahead. I will email you separately about it.

This will be a challenging, but hopefully interesting, paper for you to write on a topical issue. If you have any questions, please let me know.

Dipayan · Accepted Answer

Business Law
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Table of Contents
INTRODUCTION	2
DISCUSSION	4
FACTS OF THE MATTER-IN-ISSUE:	4
THE CONFIRMATION OF CONVICTIONS BILL, 2019:	5
Legal professional privilege in Australia	5
The statute relating to Legal professional privilege	6
Kinds of Legal professional privilege:	6
CONSTITUTIONAL PROVISIONS:	6
CASE REFERENCES RELATING TO THE MATTER-IN-ISSUE	8
Summary of the case	12
ARGUMENTS –IN-FAVOUR OF THE LEGISLATION	12
ARGUMENT-AGAINST THE LEGISLATION	13
MY ADVICE/ OPINION	14
Waiver of privilege	15
CONCLUSION	17
REFERENCES	18
INTRODUCTION
The Commonwealth Of Australia Constitution Act, 1900 is the law for the Australian land. In every country, the constitution of that country is regarded as the law of the land. Any legislation which is violating to the Sections of the Constitution is regarded as ultra vires. The Commonwealth of Australia Constitution Act, 1900 provides for the power separation between the executive, legislature and the judiciary. The Power separation contained in different chapters like Chapters- I, II, and III of the Commonwealth of Australia Constitution Act, 1900[endnoteRef:1]. In these chapters the executive, legislative and judicial powers of the Commonwealth associated with three different that are known to be established by the Constitution, i.e., 1. The Parliament (Chapter I), 2.The Executive (Chapter II), and 3.The Judicature (Chapter III).The legislature holds the authority to establish laws, the executive government has the authority to take part in law administration and take on the functioning of the governmental bodies departments of the government, other authorities, and the defense forces. Judicial has again the authority to determine and come to a conclusion of any legal disputes which are commonly in practice by courts in cases of criminal trials and other litigations. [1:   "The Australian Constitution – Parliament Of Australia", Aph.Gov.Au (Webpage, 2019) https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution.aspx
] 
In spite of the provisions that are provided in the constitution, there is slight edge between the lawmaking and executive power of the Commonwealth of Australia. It is known that the parliament itself can make laws, but in cases of these laws it is often discussed on the level of governmental executives who holds the power to make and change regulations, by-laws rules, and rules that are in relation to matters relevant to the particular law.[endnoteRef:2] [2:   Joseph, Philip, "Constitutional And Administrative Law In New Zealand", Joseph, Philip Austin. (Webpage, 2019) 
] 
In terms of giving an example, it is known that the parliament may play a role in the Immigration laws that any person entered into the Commonwealth of Australia without any valid permit or visa may be deported after being given an opportunity in a hearing and then may transfer it to the authority of executives in order to have a specific clarification in the regulations of the immigration for a “valid permit”. This entrustment of power of legislation is so serious and strict like its appearance. Mainly both the houses of the parliament holds the authority and power to reject in specific time on any regulation that have been established by the executive government.
The distinction between the legislature and the executive government is further characterized by the fact that the Prime Minister and the other government ministers, who are apart from executive, must be members of the parliament. This describes the principle of responsible government under which Government Ministers must be a member of the parliament and accountable to it. 
The separation of powers of judiciary on one side and the legislature and executive government on another occasion are voracious. The power is known to be only with the court who can exercise the power in case of judicial of the commonwealth, in case, the question arises if a person has broken any parliamentary law can be conclusively determined in the court. 
DISCUSSION
FACTS OF THE MATTER-IN-ISSUE:
A major scandal has erupted in Victorian legal circles involving the use of evidence obtained from a lawyer who was acting as a police informant. It is said that the lawyer provided information given to her by her clients, and which would normally attract attorney-client privilege, to prosecution authorities. As a result, some of her clients were convicted of serious offenses, and are in jail. The prosecutions relied at least partly on information the lawyer secretly provided to the prosecution, without her clients' knowledge or consent. 
The High Court referred to appalling breaches and fundamental of (the lawyer's) responsibilities in relation to her clients and (her) duties that she is meant to obey in court. It said that the trial of every condemned person was involved in corruption in a way that degraded fundamental aspects of the system of criminal justice. A Royal Commission has been appointed to investigate these matters further.
There is a discourse that those who have been convicted could appeal their convictions, and they have them overturned. 
THE CONFIRMATION OF CONVICTIONS BILL, 2019:
The parliamentary draftsperson in Victoria has been asked to draft appropriate legislation regarding this matter and they came out with The Confirmation of Convictions Bill 2019(Vic). 
The draft of the legislation, entitled the Confirmation of Convictions Bill 2019(Vic), contains the following two provisions:
Clause 12: A court must not overturn the conviction of a person merely because some of the evidence led in their original trial was derived from a breach of attorney-client confidentiality, in other words the lawyer of the defendant breached client confidentiality by disclosing information provided to them by their client to the prosecution authorities without the client's knowledge or approval.
Clause 13: A court must not award compensation to a person for wrongful or false imprisonment merely because they were convicted at a trial where information of the kind mentioned in Clause 12 was used.
Legal professional privilege in Australia
In Australia the legal professional privilege is the subject matter of the issue.  In Commonwealth of Australia, the privilege related to legal aspects, which is sometimes referred as the privilege of legal clients is a rule that has been introduced for the protection of the communication between the lawyer and clients from disclosing the same under the pressure of the statute or court.[endnoteRef:3] In this case the rule that is related to legal professional privilege largely reflects that other jurisdictions of the commonwealth[endnoteRef:4]. There are also a number of prominent credentials to the privilege specific that has been identified to be similar to Australia and it states, and aggressive issues that are also related t the privilege direction.  [3:  "Client Legal Privilege", Lawcouncil.Asn.Au (Webpage, 2019) 
]  [4:  Clark, David, "Law, Capitalism And Power In Asia. The Rule Of Law And Legal Institutions.", (Webpage, 2019) 
] 
The statute relating to Legal professional privilege
Sections 118 and 119 of the “Evidence Act 1955”[endnoteRef:5] showcases the communication in terms of confidentiality between the lawyer and their clients that has been created in order to dominate the purpose of providing litigation or legal advice that are protected from federal courts. Similarly, there are some provisions that have been adopted by Tasmania and New South Wales. The governance of the common law doctrine for the remaining states of Australia, the legal professional privileges Legal Professional privilege takes place in the court proceedings.  [5:

You may be aware that a major scandal has erupted in Victorian legal circles involving the use of evidence obtained from a lawyer who was acting as a police informant. It is said that the lawyer...

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