“Waiving” Privilege Goodbye? – Limited Waiver and Voluntary Disclosure Agreements

May 2024
Region: Asia Pacific

A voluntary disclosure agreement (VDA) was previously understood to enable companies to voluntarily disclose documents that are subject to legal professional privilege to regulators like the Australian Securities and Investment Commission (ASIC) to assist with an investigation without a total waiver of privilege. The primary purpose of a VDA was to create a “limited waiver” given that the disclosed information can only be used by the regulator for the purpose of informing its consideration of (i) the subject matter of the investigation; and (ii) any resulting proceedings in connection with the subject matter.

However, the Federal Court’s recent decision in Australia Securities and Investments Commission (ASIC) v Noumi Ltd [2024] FCA 349 ruled that voluntary disclosure of information to ASIC pursuant to a VDA was inconsistent with the maintenance of any privilege. In some respects, the decision turns on the particular facts and circumstances of the case; however, it still casts doubt on how effective VDAs actually are, particularly in the context of ASIC’s voluntary disclosure regime.