Australia’s biggest coal producer, Glencore, has lost a High Court bid to have documents linked to its offshore financial arrangements kept out of reach of the Australian Tax Office (ATO).
The details came to light in the largest data leak in history known as the Paradise Papers, reported by the ABC’s Four Corners, which showed the offshore tax arrangements of thousands of the world’s wealthiest companies and individuals.
The ATO later obtained the documents as it examined potential tax avoidance uncovered by the data leak.
But lawyers for Glencore argued the documents were prepared by lawyers in Bermuda and were therefore subject to legal privilege and out of bounds to the ATO’s investigation.
The High Court was effectively asked to decide whether legal privilege could be used to prevent investigators’ use of documents already in their possession, or whether it could only be used as a reason not to disclose documents to an investigation.
Today it ruled that legal professional privilege was not a legal right after the fact and advised Glencore that it may have been better able to protect the documents through breach of confidence laws.
Earlier this year ATO Commissioner Chris Jordan said he held fears many companies were misusing legal privilege in order to stymie tax avoidance investigations.