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  • Resolving claims

    We will work with you where possible to agree on a procedure for resolving legal professional privilege claims. If we reach an agreement, we will give you a written statement of what was verbally agreed and ask you to sign it.

    There are limited circumstances when we may look at a privileged document while exercising our access powers, including:

    • to determine if the document is relevant to our enquiries in order to decide whether to copy it
    • when there is no one present to make a claim
    • when you have made a blanket claim for privilege.

    If we look at your documents in these circumstances, we will not argue that your privilege has been waived.

    Inspection agreements

    We may use an inspection process to resolve multiple claims for legal professional privilege. Under this approach, each party nominates a person to inspect the documents or alternatively an independent expert will be appointed to consider the claims for legal professional privilege.

    An inspection agreement will usually clarify certain matters, including setting a date for completion and deciding a process for resolving disputes if either party disagrees with the decision of the independent expert.

    Considering your claims

    We consider your claims for legal professional privilege against your supporting material and decide whether to:

    • accept the claims
    • ask for more information in support of your claims
    • refuse the claims
    • negotiate any disputed issues with you.

    If we decide more information is needed to support your claims, we will usually:

    • specify what further information is required
    • request completion of a claim form
    • specify a timeframe for you to provide the information and forms.

    Where a claim for legal professional privilege has been made, but is disputed by the ATO, we will first attempt to resolve the dispute with the person. An alternative dispute resolution process may be engaged. However, if the matter cannot be resolved within a reasonable time, then we may notify the person that the documents in question may be accessed within 28 days unless the person commences legal proceedings. The ATO may itself commence legal proceedings.

    Securing documents

    If we decide to secure the documents, we may ask you to seal them in a suitable container – for example, an envelope, box, locked filing cabinet or locked room, depending on the volume of documents.

    We sometimes use this approach before you have made a legal professional privilege claim, especially where a large volume of documents is to be inspected. In this case, we may arrange for:

    • a secure room at your business premises to be available for the duration of the access which can be sealed by our representative at the end of each day
    • the potentially relevant documents to be taken to the secure room where we can inspect the contents to determine their relevance.

    When we secure your documents in a container, we will:

    • not argue implied waiver because of our inspection
    • usually ask you to prepare a schedule of documents held in the container together with a description of each document.

    We may allow you to make photocopies of the documents under our supervision before the container is sealed.

    We may agree to use a container of a third party to hold the documents if privilege has been claimed and is in dispute. If we agree on a third party – for example, a firm of solicitors – we may obtain a written undertaking from the third party in relation to the safe keeping and return of the documents.

      Last modified: 22 Jun 2022QC 56551