14.27Crown Law raised with us the uncertain nature of the protection that might be accorded to communications made between it and requesting governments in the context of its role as the Central Authority.
14.28As discussed in Part 1 of this issues paper, in the non-litigation context, such communications will be protected under a number of grounds in the Official Information Act 1982 or the Privacy Act 1993, most notably as information provided in confidence by foreign governments. In the litigation context, it is possible that such communications might be covered by legal professional privilege and hence not available for discovery or disclosure, but this is not certain and depends on whether a foreign country might be considered a client seeking legal advice.
14.29Arguably, much of a request to the Central Authority will involve significant communication back and forth that one would expect of a legal adviser assisting a client through a difficult process.
14.30Similar to the position taken in Part 1 of this issues paper, we are not in favour of deeming communications between a requesting country and the Central Authority to be privileged in the same way as more traditional requests for legal advice. We prefer a separate provision in MACMA that communications between the Central Authority and the requesting country ought not to be disclosed unless in the interests of justice. Such a provision would allow the Central Authority to make a disclosure when required by fairness, and it would allow the requesting country to withdraw the application if it preferred that to making the necessary disclosure. The separate provision has the advantage of clearly preserving the independent role of the Central Authority.
Question
Q48 Should MACMA expressly provide that communications between the Central Authority and the requesting country ought not to be disclosed unless in the interests of justice?
