Data Availability and Transparency Act 2022

A person is not excused from complying with a notice under section 104 on the ground that giving the information or producing the document would disclose a communication protected against disclosure by legal professional privilege, if the communication is:

legal advice given to a Minister or a Commonwealth body; or

a communication between a designated individual for a Commonwealth body, if the communication is within the actual or apparent scope of the individual’s designation, and another person or body.

However:

the information given or document produced; and

the giving of the information or production of the document;

The fact that a person is not excused from complying with the notice on the ground mentioned in subsection (1) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information or document.

If a person claims, by written notice given to the Commissioner, that, but for subsection (1), information or a document specified in a notice given to the person under section 104 would be protected against disclosure by legal professional privilege, the Commissioner:

must withdraw the notice unless satisfied that it is reasonably necessary and proportionate to the investigation to require the person to give the information or produce the document; and

must ensure that the information and documents are held securely and destroyed when the investigation ends; and

may disclose the information or documents to a person if:

the person is a member of the staff mentioned in section 47, or engaged as a contractor or consultant as mentioned in section 48 or 49, or otherwise providing services to the Commissioner; and

the Commissioner is satisfied that the disclosure is reasonably necessary for the purposes of the investigation; and

must not disclose the information or documents except in accordance with paragraph (c).

Subsection (4) does not apply if there are no reasonable grounds for the person’s claim.