Defence and Veterans’ Service Commissioner Act 2026

It is not a reasonable excuse for the purposes of subsection 57(4) for a person to fail to give information or a statement, or produce a document or thing, that the information, statement, document or thing is subject to legal professional privilege, unless:

a court has found the information, statement, document or thing (or the relevant part of it) to be subject to legal professional privilege; or

a claim that the information, statement, document or thing (or the relevant part of it) is subject to legal professional privilege has been made to the Commissioner:

within the time that the Commissioner, in requiring the information or statement to be given, or the document or thing to be produced, allowed for the giving of the information or statement, or the production of the document or thing; or

within such further time as the Commissioner allows for the giving of the information or statement, or the production of the document or thing.

If such a claim is made, the Commissioner may decide whether to accept or reject the claim.

The Commissioner may, by written notice served on a person, require the person to produce the information, statement, document or thing for inspection for the purpose of deciding whether to accept or reject the claim.

If the information, statement, document or thing has been produced for inspection and the Commissioner decides to accept the claim, the Commissioner must:

return the information, statement, document or thing to the person; and

disregard, for the purposes of any report, recommendation or finding that the Commissioner makes:

if the claim is accepted in relation to the whole of the information, statement, document or thing—the whole of the information, statement, document or thing; or

if the claim is accepted in relation to a part of the information, statement, document or thing—that part of the information, statement, document or thing.

If the information, statement, document or thing has been produced for inspection and the Commissioner decides to reject the claim, the Commissioner may use the information, statement, document or thing for the purposes of performing or exercising the Commissioner’s functions or powers in relation to a special inquiry.

The Commissioner must give the person written notice of a decision under subsection (2).

A notice of a decision to reject the claim must include:

a statement of reasons for the decision; and

a statement that, subject to the Administrative Review Tribunal Act 2024, an application may be made to the Administrative Review Tribunal for review of the Commissioner’s decision.

Section 94 provides that an application may be made to the Administrative Review Tribunal for review of a decision of the Commissioner to reject a claim for legal professional privilege.