The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (the Act) doesn’t take away a person’s right to refuse to give information that’s protected by LPP.

LPP protects certain communications (written and verbal) between lawyers and their clients. It’s a common law immunity which allows a person to refuse to disclose information which would reveal certain communications made between a lawyer and client. 

LPP doesn’t apply to everything legal professionals have a duty to keep confidential. LPP protects only those confidential communications that fall within the definition of LPP as recognised under the common law. Information subject to LPP is generally narrower than information that is subject to a legal practitioner’s general duty of confidentiality. Unlike LPP, the duty of confidentiality has exceptions which allow lawyers to disclose confidential client information, including where disclosure of information is compelled by law.

Legal professional privilege and the Act

As a regulator and Financial Intelligence Unit, we require access to relevant information to carry out our functions. Lawyers who provide designated services must report certain transactions and suspicious matters to us and give information in response to our notices.

Obligations under the Act to provide information to us doesn’t extend to an obligation to provide us with information subject to LPP.   

If a reporting obligation or notice from us involves privileged information, your obligation to provide information to us will be affected. If all the information making up the grounds of suspicion in a suspicious matter report (SMR) is subject to LPP, you don’t need to submit an SMR or an LPP form. Otherwise, you’re required to fulfil your reporting or information disclosure obligations to the extent possible without disclosing the privileged information. You’ll also be required to submit an LPP form (this form is currently being developed).

Definition of legal professional privilege 

Section 5 of the Act defines LPP to include (but doesn’t limit it to) privilege under division 1 of part 3.10 of the Evidence Act 1995.

The Act doesn’t create a new definition or category of LPP or deviate from the common law definition (see introduction). Importantly, LPP isn’t extended to information created for a purpose that’s contrary to the public interest. This means where the communication is made with intention of illegal or improper purpose.

Assessing whether privilege applies

If you’re asserting LPP over information that you’re withholding from us, you must make sure that the information in question attracts the privilege in accordance with the relevant law. 

If you’re in any doubt as to whether LPP applies, you should seek independent legal advice as part of your decision-making process. 

Waiver of privileged information

In some cases, the reporting entity may elect to waive privilege and disclose otherwise privileged information if they’re the privilege holder. 

If you aren’t the holder of the privilege, you may elect to waive privilege and disclose the information where the privilege holder consents, or if an exception to privilege exists. 

For example, waiving privilege by the reporting entity may benefit you where:

• privileged information may strengthen an application for registration as a virtual asset service provider (VASP)
• the customer is a victim of a serious crime such as fraud.

Claiming legal professional privilege in relation to AML/CTF obligations

The Act doesn’t affect the right of a person to refuse to give information where that information would be privileged from being given or produced on the grounds of LPP. 

While you must provide information which is not subject to LPP, we understand this is a question of law where sometimes reasonable minds can differ. 

As such, if after careful consideration of the common law principles, you reasonably believe privilege exists, you may withhold that information from production. If you are not a lawyer, AUSTRAC recommends you seek legal advice before withholding any information on the basis of LPP.

If only part of the information you were required to produce is subject to LPP, you must complete and submit an LPP form to us within the required timeframe. The LPP form would be submitted to us in lieu of withheld information. 

If part of the information subject to disclosure is privileged and you are under an obligation under the Act to submit an LPP form, you must complete and submit the form to us within the required timeframe. The LPP form would be submitted to us in lieu of withheld information. 

An LPP form is a written notice in a form approved by our CEO that specifies the basis on which any relevant information is privileged from being given or produced on the grounds of LPP. In some cases, we may ask for further information to determine whether to review or challenge an LPP claim.

Importantly, the Act states that providing a description of information that is privileged from being given or produced on the ground of legal professional privilege does not, of itself, amount to a waiver of privilege.

We expect that a reporting entity completes the form to the extent possible, however there may be circumstances where not all of the particulars can be provided because they are privileged. There is no requirement for privileged information to be provided to us in the LPP form or otherwise.

Failure to submit an LPP form in accordance with the provisions in the Act may attract civil penalties. 

When you must submit a legal professional privilege form

Certain obligations under the Act require you to give information to us. 

This includes:

• obligations to provide suspicious matter reports (SMRs) and threshold transaction reports (TTRs) (reporting obligations)
• obligations to comply with certain notices or requests for information.

If information you’re required to give to comply with AML/CTF obligations is subject to LPP, and you withhold information on this basis, you’ll be required to submit an LPP form. An LPP form doesn’t need to be submitted if all of the information making up the grounds of suspicion in an SMR is subject to LPP.  

Suspicious matter reporting obligations

If you’re claiming LPP in relation to an SMR, you can only do so if the privilege belongs to someone else such as your client. For example, you become suspicious of your clients’ source of funds. However, the information comes from privileged communication between your client and their lawyer.

If you’re asserting LPP over some information reportable in an SMR, you must submit an LPP form in the following time period:

• if your suspicion relates to the financing of terrorism – at the same time you submit the SMR, within 24 hours after the time you form the suspicion
• in all other cases – at the same time that you submit your SMR, within 5 business days after the day you form your suspicion.

The timeframe for submitting an SMR where the suspicion doesn’t relate to terrorism financing extends to 5 business days in cases where some of the information is subject to LPP. 

This allows additional time, as compared to the ordinary reporting timeframe of 3 business days where a suspicion doesn’t relate to terrorism financing, for reporting entities to consider whether LPP attaches to the relevant information and to submit an LPP form to us where required. 

You may refuse to give an SMR if all of the information on which you hold the relevant suspicion is subject to LPP. You aren’t required to give our CEO an LPP form in this case. 

If some of the information in an SMR is subject to LPP and you wish to withhold this information, you must submit both an: 

• LPP form on the information being withheld under LPP
• SMR containing the information that is not subject to LPP. 

Learn more about SMRs.

Threshold transaction reporting obligations

If information you ordinarily must include in a TTR is subject to LPP, you must submit an LPP form at the same time that you submit the TTR. This must be done within 10 days.

Learn more about TTRs. 

Notices and requests for information

If you’re asserting privilege over information that’s subject to one of the following notices or requests to produce information, you must submit an LPP form within the time period specified in the notice or request:

• a request under section 26Q to produce AML/CTF program documentation
• a notice under section 49 to provide further information in relation to reporting obligations under sections 41, 43, 46 or 46A
• a notice under section 49B to produce information for the purposes of assisting our CEO to perform their functions
• a request under section 75N to produce information for the purposes of making a decision in relation to the Remittance Sector Register
• a request under section 76Q to produce information for the purposes of making a decision in relation to the VASP Register
• a notice under section 167 to produce information that’s relevant to the compliance or enforcement of the Act or regulations, or related offences in the Crimes Act or the Criminal Code
• a notice under section 202 to produce information in relation to determining whether designated services are being provided. 

Ministerial guidelines for legal professional privilege

The Minister for Home Affairs will issue LPP guidelines setting out processes for handling of LPP claims. We recommend that you read these guidelines once they are released to help you understand how we consider LPP claims. 

These guidelines will cover:

• the process for our review of privilege claims, including the approach we take in deciding to review or challenge an LPP claim
• circumstances where we may ask for further information on receipt of an LPP form
• steps for handling privileged information during searches or investigations
• dispute resolution processes to review or challenge claims of privilege.

Related pages

• Reporting
• Suspicious matter reports
• Threshold transaction reports