Discussion Point: The question of Legal Privilege and Independence

Posted on June 5, 2014. Filed under: Uncategorized |

Recently Victims of CSIRO has received a number of communications from participants in the CSIRO investigation process who have expressed considerable frustration that they are being denied access to material relating to their particular investigations (including access to individual investigation reports) as a result of the CSIRO claiming Legal Privilege in respect to these particular documents.

Legal Privilege protects a client’s legal discussions and legal advice from their legal representative from being disclosed publicly. In theory, this is similar to the Professional Privilege maintained by Doctors in relation to their patient’s medical information which cannot be disclosed to any other party without the consent of the patient, however, in the legal context, a legal practitioner has an overriding duty in assisting the court to reach an appropriate and just determination.

This raises the most serious question of whether a legal practitioner, who has the solemn duty to protect their client’s interests and not to disclose their client’s privileged information is capable of claiming independent status, in for example, an “independent” investigation into workplace bullying allegations.

In invoking Legal Privilege, as has occurred in the case of the CSIRO, the overtly partisan client-provider relationship between the CSIRO and HWL Ebsworth has been firmly established and therefore any claim to independence swiftly evaporates.

Victims of CSIRO would welcome further discussion, opinions or clarifications in relation to this topic.

It is reprehensible that Professor Dennis Pearce continues to claim independence when the very law firm who has engaged him (HWL Ebsworth) has a professional obligation in protecting the interests of the very organisation he has been tasked to investigate.

Professor Pearce and/or the CSIRO should either attempt to substantiate the claimed independence of the investigation process by opening it up to proper public scrutiny in permitting reasonable access to all investigation materials or should come clean in declaring the process to be a partisan undertaking intended to “manage” the CSIRO’s public reputation and its legal interests, in particular the organisation’s potential legal liability.

The lack of transparency in this investigation is obvious to even a casual observer. In fact both the investigator and CSIRO have resisted, and even gone so far as to attack any efforts to ensure reasonable scrutiny of the investigative process.

It is noteworthy that the Parliamentary Inquiry into Workplace Bullying (PIWB) which preceded the CSIRO investigation by some months perceived no real impediment in publishing redacted versions of the submissions made to the inquiry and subsequently did so. This level of transparency is decidedly lacking in the CSIRO Investigation.