The world’s biggest miner has sought to block the Australian tax office from using documents it claims were obtained in the Paradise Papers leak, arguing they are protected communications with its lawyers.
Glencore has fired the first salvo in its challenge against the tax commissioner, with submissions asking the high court to recognise that legal professional privilege is not merely a shield to prevent handing over protected communications but a sword to prevent their use.
In 2017 the Paradise Papers revealed that the Australian arm of Swiss-based multinational Glencore has been involved in cross-currency swaps of up to $25bn of a type under investigation by the ATO.
According to court documents, Glencore has engaged premier offshore law firm Appleby since 1995, including through local firm King & Wood Mallesons since October 2014 to provide legal advice on its restructure codenamed Project Everest.
Since the release of the Paradise Papers in November 2017, Glencore has demanded the tax commissioner return the Project Everest documents and give an undertaking not to use them.
The tax commissioner refused, prompting Glencore to seek an injunction in the high court on the basis that lawyer-client professional privilege, provided it is not waived, should be sufficient basis for a court order to restrain the use of the documents by a third party.
In its submissions, Glencore complained that courts have described legal professional privilege as “a fundamental common law right” paramount to a fair trial but have “yet to recognise a complete set of remedies to protect that right”.
Privilege should be allowed “not only as a shield to resist disclosure of privileged material, but … ‘if not exactly as a sword, at least as a device to disarm one’s opponent by preventing him from using evidence in his possession’,” it said, quoting professor Colin Tapper.
Otherwise, parties will be unable to protect their documents that fall into a third party’s hands “through no fault of their own”.
“For the common law to deny relief in such circumstances would indicate that legal professional privilege is not a fundamental right at all.”
Glencore said the protection of privileged communications is even more important “given the ease with which such communications, particularly when stored electronically, might be compromised and publicly exposed”.
Quoting Justice William Gummow, Glencore argued that privilege “protects the strong as well as the vulnerable, the shabby and discredited as well as the upright and virtuous, those whose cause is in public disfavour as much as those whose cause is held in popular esteem”.
Glencore argued the purpose of privilege is to “facilitate effective communication with legal advisers”. The miner said that public interest would be harmed “as much” by rendering “clients powerless when legal advice is leaked or published without their authority” as it is by demanding privileged communications be disclosed by compulsory processes.
The ATO will lodge its submissions in February. In October an ATO spokesman said: “The ATO believes it is not only able but compelled to use information it obtains such as the Paradise Papers and Panama Papers, as would naturally be the expectation of ordinary Australians.”
“Earlier this year we put on record that it had become clear that our understanding of what advice is subject to legal professional privilege significantly differs from the position taken by some taxpayers and their advisers, and that we expected these different views would be tested shortly.”
