Victorian Consolidated Legislation

Major Crime (Investigative Powers) Act 2004 - SECT 42

Application to Magistrates' Court to determine legal professional privilege

42. Application to Magistrates' Court to determine legal professional
privilege



(1) Within 7 days after the Chief Examiner gives a sealed document or other
thing to a registrar of the Magistrates' Court in accordance with section 41,
the Chief Examiner may apply to the Magistrates' Court to determine whether or
not the document or thing is the subject of legal professional privilege.

(2) If no application is made under subsection (1) within the period of 7
days, the registrar having safe custody of the sealed document or other thing
must return the document or thing to the claimant for legal professional
privilege.

(3) The Chief Examiner must give notice in the prescribed form of the
application to the claimant for legal professional privilege a reasonable time
before the hearing of the application.

(4) The claimant is entitled to appear and be heard on the hearing of the
application.

(5) The Magistrates' Court must determine whether or not the sealed document
or other thing is the subject of legal professional privilege and for that
purpose the magistrate and any other person authorised by the Court may open
and inspect the sealed document or other thing.

(6) If the Magistrates' Court determines that the sealed document or other
thing is the subject of legal professional privilege, the Court must order
that the document or other thing be returned to the claimant and the registrar
of the Court who has safe custody of the document or thing must return it to
the claimant.

(7) If the Magistrates' Court determines that the sealed document or other
thing is not the subject of legal professional privilege, the Court must order
that the document or thing be given to the Chief Examiner and the registrar
having safe custody of the document or thing must release it accordingly.

(8) Subject to subsection (5), a person must not open a sealed document or
other thing or otherwise have access to the document or thing before-

   (a)  the Magistrates' Court determines the claim of legal professional
        privilege; or

   (b)  the document or thing is returned to the claimant.

Penalty: 120 penalty units or imprisonment for 12 months or both.