Austin v Deputy Secretary, Attorney-General's Department

[1986] FCA 343

Re: BRADLEY WAYNE AUSTIN
And: DEPUTY SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT
No. 59 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Sheppard J.
Burchett J.

CATCHWORDS

Administrative Law - Freedom of Information - Request for access to documents contained in Australian Government Solicitor's file relating to criminal proceedings against the applicant - whether documents were exempted by ss.41 and 42 - whether relationship of Australian Government Solicitor and Australian Postal Commission is that of solicitor/client - legal professional privilege - whether exemption of documents should be affected by pendency of criminal proceedings.

Freedom of Information Act 1982 - ss.32, 41, 42 and 58.

HEARING

ADELAIDE

#DATE 15:8:1986

ORDER

1. The appeal be dismissed.

2. The applicant pay the respondent's costs of this appeal, the same to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal in an application brought by the applicant under the Freedom of Information Act 1982 ("the Act"). The applicant, against whom an information had been laid alleging the commission of an offence of sending an explosive substance through the mail, contrary to s.100 of the Postal Services Act 1975, sought access to the file of the Australian Government Solicitor in respect of the court proceedings against him. A number of documents in that file were made available to him, but other documents were withheld. In the course of the proceedings in the Administrative Appeals Tribunal, certain further documents were made available to the applicant, but the Tribunal ruled that a number of documents were exempt documents pursuant to s.42 of the Act, and in the case of two of them also pursuant to s.41. Before us, the applicant has pursued his appeal in respect only of nine documents, which are referred to in the proceedings as documents numbers 7,8,9,11,16,17,18,19 and 21. All of these documents were made available to the Tribunal, which drew inferences from what appeared upon the face of them.

1. Since the grounds of appeal alleged in broad terms errors of law in the Tribunal's finding that the documents are exempt documents, it seemed desirable to us that we also should see the documents in order better to understand the basis of the Tribunal's rulings, and whether upon all the material before the Tribunal, including the documents themselves, it was open to the Tribunal as a matter of law to reach the conclusions to which it came. Provided there was material to support a relevant conclusion, the question whether that conclusion should have been reached was of course entirely a matter for the Tribunal. Documents the subject of a claim of legal professional privilege were inspected by the Court of Appeal in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) (1974) AC 405, as appears from the speech of Lord Cross of Chelsea at p 426.

2. Evidence was placed before the Tribunal by the affidavit and the oral testimony of Mr. Mesiti, a solicitor who was at the time the acting Director of Legal Services, South Australia, in the Attorney-General's Department. In his affidavit, he stated that the Australian Government Solicitor was, by virtue of an arrangement under s.32 of the Director of Public Prosecutions Act 1983, performing the functions and exercising the powers of the Director of Public Prosecutions in relation to the prosecution of the applicant. At the time of the Tribunal hearing, the prosecution had reached the stage of a committal for trial, but the trial itself was still pending. Mr Mesiti deposed that the prosecution was being conducted on instructions from the Australian Postal Commission. It seems that the information had been laid by an officer of that Commission.

3. There does not appear to have been any challenge, in the Tribunal, to the proposition that the prosecution was being conducted on instructions from the Commission. On this basis, the contention which the Tribunal accepted was that, for the purposes of consideration of the claim of legal professional privilege, it could be accepted that the solicitors and counsel employed by the Australian Government Solicitor were in the position of legal advisers acting for the Commission as a client. Given the basic assumption, this conclusion seems clearly to have been open.

4. It would not in every case be possible to regard some government department or instrumentality as a client of the Director of Public Prosecutions, or of the Australian Government Solicitor acting pursuant to an arrangement with the Director made under s.32 of the Director's Act. However, even if the Director or the Australian Government Solicitor were acting in pursuance of an independent authority to prosecute, in the due discharge of his duties, it would not follow that a claim to privilege would be defeated. One view is that the Director prosecutes as a legal representative of the Crown. But if, alternatively, he should be regarded as prosecuting on his own behalf, he would then be an authority of the government employing salaried legal advisers.

5. In Alfred Crompton Amusement Machines Ltd. -v- Customs an Excise Commissioners (No. 2) (supra), a question arose as to whether certain documents, prepared under the supervision of what was described by Lord Cross of Chelsea, at p.427, as "the legal department" of the Customs and Excise Commissioners, were subject to legal professional privilege. Lord Cross, with whose speech Lord Reid, Lord Morris of Borth-y-Gest and Lord Kilbrandon all expressed agreement, said at pp.430-1:
   
   

"The Court of Appeal hold that Forbes J. was wrong in holding that there was any distinction for the purpose of a claim to legal professional privilege between solicitors in private practice and salaried legal advisers and the appellants did not challenge that view in their appeal to this House."

He rejected the claim to privilege on a different ground, namely that the documents were brought into existence, not for purposes which attracted the privilege, but for the ascertainment of a value for tax in the manner prescribed by the relevant Act. Viscount Dilhorne, who took a different view of the purpose of the documents, considered they were protected by legal professional privilege.

1. Alfred Crompton Ltd.'s Case was referred to in the High Court in Attorney-General for the Northern Territory -v- Kearney (1985) 61 A.L.R. 55. Gibbs C.J. at p.60 said:
   
   

"Further, it was not argued that legal professional privilege does not extend to communications with legal advisers who are salaried employees. I do not doubt the correctness of the decision of the Court of Appeal in Crompton Ltd. v. Customs and Excise Commissioners (No. 2) (1972) 2 QB 102 that the privilege extends to legal advice given by such employees provided that, in giving the advice, they are acting in their capacity as legal advisers. The decision of the Court of Appeal on that point was not challenged when the case went to the House of Lords

((1974) AC 405) and has been followed by the Supreme Court of Ireland in Geraghty v. Minister for Local Government (1975) IR 300. In the United States, also, it appears that legal professional privilege attaches to communications between a government agency and the lawyers on its staff for the purpose of giving or receving legal advice."

The Chief Justice referred to United States authority and then continued:

"The European Court of Justice has limited the privilege to communications exchanged between an independent lawyer (ie one not bound to his client by a relationship of employment) and his client (A M & S Europe v Commission

(1983) QB 878 at 951) but that, of course, is not a decision on the common law. The advice will not be privileged if the legal adviser gives it in some other capacity (eg as an officer of a non-legal department) and will be privileged only if the lawyer who gives it has been admitted to practice and (I incline to think) remains subject to the duty to observe professional standards and the liability to professional discipline."

Mason and Brennan JJ. at p.65 refrained from expressing an opinion on this point, but did make the comment:

"The independence of State Crown Solicitors and the Australian Government Solicitor in the giving of legal advice is - or ought to be - protected by the respective Attorneys General as the first law officers of the Crown, and is buttressed by the laws relating to the public service and sometimes by specific legislation."

Wilson J. at p.69 referred to an argument that legal professional privilege did not operate in the context of subordinate law making, that is in respect of communications between the government and its professional legal advisers in the course of the preparation and formulation of subordinate legislation. He commented:

"In substance, it is an argument for denying the application of legal professional privilege in any guise to the relationship of government to its professional legal advisers, leaving the entire field to be determined by reference to the more limited field of public interest immunity. But it has been held that the rationale underlying legal professional privilege is relevant and applicable to a government's relationship with its employed legal advisers."

He then referred to the Alfred Crompton Ltd. Case, and other cases, and added that it was unnecessary to express a concluded view. Dawson J., who dissented, referred at p.75 to the fact that "the legal advisers in respect of whose advice privilege is claimed, are salaried employees in the Northern Territory Law Department." He proceeded:

"This is, however, no reason for denying privilege to communications passing between them and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client."

1. In the result, even if the unchallenged assumption upon which the Tribunal proceeded was not justified, its conclusion that the officers of the Australian Government Solicitor were acting in a capacity which attracted the operation of the doctrine of legal professional privilege did not involve error.

2. The question, therefore, is whether, on the material before the Tribunal, it was open to it to find that each of the documents in dispute in this appeal "is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege" (s.42(1)). As to some of the documents, there is also a question of the application of s.41(1) which exempts a document "if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)".

3. If the documents were rightly held to be wholly exempt documents under either of those sections, that is an end of the matter, since the Tribunal has no discretion to grant access to wholly exempt documents: s.58(2). For this reason, the applicant's reliance on the pendency of criminal proceedings was misplaced. He argued there is a special principle, applicable to the situation where legal professional privilege is raised in an attempt to withhold from the accused, at a criminal trial, documents which would help to further his defence. (See R v. Barton (1972) 2 All ER 1192 at 1194.) But s.58 is not concerned with the rules covering the conduct of a criminal trial, nor is it appropriate in this case to enter upon a detailed discussion of the principles designed to ensure the fairness of the whole proceeding of which a trial is the culmination. They form a different chapter of the law.

4. Sections 41, 42 and 58 are concerned with exemptions from a broad "right of the Australian community to access to information in the possession of the Government of the Commonwealth" (s.3), a right exercisable by "every person" (s.11). There is no room for a graft on to this tree of a branch of special rules of the criminal law. This Court said of s.42(1) in Waterford v. Department of the Treasury (1985) 5 FCR 76 at 81:
   
   

"Reading the Act as a whole we can discern no reason for reading down the plain language of s.42(1). That section recognises that there will be circumstances in which the law gives protection from production on grounds of legal professional privilege and it leaves the scope of that protection to be determined by the application of the relevant principles of the general law. We see no reason derived from a consideration of the other provisions of the Act to limit the exemption for which s.42(1) provides."

Similarly, there is no reason for reading down the language of s.41(1). The unqualified application each exemption is intended to have is confirmed by s.32 which excludes any restrictive implication from the terms of any other exemption.

1. Each exemption is to be given the meaning its own terms fairly convey. A sensible reading of those terms must take into account that the exemptions are part of a coherent scheme of access to documents covering the vast range of material dealt with in Part III of the Act. Reading the sections in this way, it is important to note of s.41(1) that it takes as its sole criterion a particular effect of disclosure; and of s.42, that its criterion is the nature of the document. Neither of those criteria can be controlled by reference to the peculiar exigencies of criminal proceedings.

2. Having looked at the documents, the Court is quite unable to hold that it was not open to the Tribunal to find them to be exempt within the meaning of the Act. Two things should however be pointed out. First, in the case of the documents numbered 16 and 17 the Tribunal relied on both s.41 and s.42; in the Court's view only s.41 was applicable, as these documents were not related to the exercise of any privileged function of a legal adviser of the Commonwealth or any agency of the Commonwealth. Secondly, as regards the two documents numbered 19, their dates raise a question, which does not appear to have been addressed, whether they could possibly have satisfied "the sole purpose test" which the majority of the High Court adopted in Grant v. Downs (1976) 135 CLR 674 at 688 as "the criterion of legal professional privilege". In the Court's view, it was not open to the Tribunal, as the evidence stood, to find that these documents were not, in part, prepared simply for the purpose of inquiries into a serious allegation. Had evidence been led dealing with the appropriate issues, the position may have been different.

3. But this Court is empowered in this appeal, by s.44(4) of the Administrative Appeals Tribunal Act 1975, to "make such order as it thinks appropriate by reason of its decision". The information contained in the two documents numbered 19 plainly falls within s.41(1); a decision to the contrary is not open on the material. Notwithstanding that no submission appears to have been put to the Tribunal, in respect of these documents, under s.41, the Tribunal was clothed by s.58(1) with the powers of the agency whose decision it was reviewing, and was expressly empowered by that provision to decide any matter in relation to the request that, under the Act, could have been decided by the agency. In those circumstances, the appropriate order for this Court to make is simply to dismiss the appeal. The applicant must pay the respondent's costs.