The agency that knew too much? Use of privileged, confidential and inadmissible information by regulators and law enforcement agencies with civil, administrative and criminal powers

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Abstract

Australia has a number of agencies that seek to regulate and enforce the law. Many of these agencies have powers of civil, administrative and criminal enforcement. When agencies bring matters to court there is inevitably a balancing act between the objective of having all relevant evidence available and protecting other rights such as fairness to the accused, equitable confidences, legal professional and penalty privilege and the privilege against self incrimination. The law also seeks to discourage sharp or at least unlawful practice in the obtaining of evidence. Where confidences or other privileges are enforceable, issues arise in relation to the ability of agencies or lawyers to utilise confidential or privileged information directly or indirectly. There may be a slightly stricter approach to lawyers (certainly when in private practice but also arguably when working in-house for agencies as well) than for other investigative staff but there are also questions about whether the latter too might be enjoined from utilising confidential information. Chinese walls provide a possible structural solution to some of these problems though courts remain somewhat sceptical about their use in law firms and they appear to be still uncommon in agencies.
Original languageEnglish
Pages (from-to)215 - 228
Number of pages14
JournalAustralian Journal of Administrative Law
Volume18
Issue number4
Publication statusPublished - 2011

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