Bennett and Chief Executive Officer of Customs

[2002] AATA 434

DECISION AND REASONS FOR DECISION [2002] AATA 434

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/435

GENERAL ADMINISTRATIVE DIVISION        )          No A2002/102

Re      PETER BENNETT
  Applicant
           And    CHIEF EXECUTIVE OFFICER OF CUSTOMS
  Respondent

DECISION

Tribunal       Mr G A Mowbray    

Date5 April 2002

PlaceCanberra

DecisionThe Tribunal sets aside the decisions under review and remits the matters to the Respondent with the following directions:

1.   Document 1 in the schedule "Documents the subject of dispute in matters A2001/435 and A2002/102" is not an exempt document under the Freedom of Information Act 1982 (the Act).

2. Documents 2 – 27 and 30 – 35 in the schedule are exempt documents under section 42(1) of the Act.

3.   The Applicant shall be provided with a copy of Document 22 in the schedule with paragraphs 5 – 10 and the last sentence of paragraph 11 deleted in accordance with section 22 of the Act.

4.   The Applicant shall be provided with a copy of Document 23 in the schedule with paragraphs 7 – 9 deleted in accordance with section 22 of the Act.

The Tribunal certifies that these proceedings have terminated in a manner favourable to the Applicant.

..............................................
  Member
CATCHWORDS
FREEDOM OF INFORMATION - Exempt documents - legal professional privilege - whether privilege waived - whether defeated by abuse of power

Freedom of Information Act 1982 ss 14, 42(1), 58(2), 61

Grant v Downs (1976) 135 CLR 674
Esso Australian Resources Limited v Commissioner of Taxation (1999) 201 CLR 49
Trade Practices Commission v Sterling (1979) 36 FLR 244
Waterford v the Commonwealth (1987) 163 CLR 54
Attorney-General (N.T.) v Kearney (1985) 158 CLR 500
Mann v Carnell (1999) 201 CLR 1
Commissioner AFP v Propend Finance Pty Ltd (1997) 188 CLR 501
Re Spier and ACT Electoral Commissioner (1995) 41 ALD 374.

REASONS FOR DECISION

16 May 2002           Mr G A Mowbray                

1. In these two matters the Tribunal was asked to review decisions refusing Mr Bennett, the Applicant, documents under the Freedom of Information Act 1982 (the Act). The documents were claimed by the Respondent, the Chief Executive Officer of Customs (Customs), to be exempt under section 42 of the Act.

2. The hearing for both these matters was held on 4 April 2002.  Mr Bennett represented himself and Customs was represented by Mr R Northcote instructed by Ms V Guthrie, Australian Government Solicitor.  On 5 April 2002 oral reasons for decision were given, setting aside the decisions under review and remitting the matters to the Respondent for reconsideration with certain directions.  On 8 April 2002 the Tribunal received a request for written reasons from the Respondent's solicitor pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.

Background

Matter A2001/435

1. By letter dated 6 April 2001, Mr Bennett requested all documents or records created or otherwise dealt with since 1 January 1998, which related to or were about him, held by or under the control of Customs. The request was made pursuant to the Act. By letter dated 29 May 2001 an authorised decision-maker released a large number of documents to Mr Bennett. The decision-maker also advised Mr Bennett that she considered 51 of the documents falling within the request to be subject to legal professional privilege and therefore exempt under section 42(1) of the Act.

2. By letter dated 18 June 2001, Mr Bennett requested an internal review of the decision of 29 May and by a letter dated 13 July 2001 an authorised decision-maker advised that he had decided to release 18 documents which the original decision-maker had considered to be either exempt under section 42(1) or outside the ambit of the request from Mr Bennett. The authorised decision-maker also advised that he affirmed the decision that 43 documents were the subject of legal professional privilege and were therefore exempt.

3. On 11 October 2001, Mr Bennett sought review by the Tribunal of the internal review decision. On 25 February 2002, the Tribunal consented to the decision under review being altered in accordance with section 26 of the Administrative Appeals Tribunal Act 1975. On 28 February 2002, an authorised decision-maker decided to alter the decision under review by releasing to Mr Bennett in full an additional 15 documents to which he had been previously denied access. The authorised decision-maker also decided to release a copy of one further document with exempt material in the document deleted in accordance with section 22 of the Act.

   Matter No 2002/102

4. In a letter dated 12 September 2001, Mr Bennett requested any and all documents or records held, created or otherwise dealt with by the Australian Customs Service since January 1999 which related to or were about him, but which were not listed in the schedules of documents provided to him by Customs on 29 May 2001 and 1 June 2001 (a revised version of the schedule of 29 May 2001).  Mr Bennett also requested access to certain documents listed in the schedule attached to his request.  Mr Bennett's request was made pursuant to the Act and Customs interpreted the request to include documents to which Mr Bennett had been previously refused access on grounds that they were exempt as subject to legal professional privilege.

5. By a letter dated 15 November 2001, an authorised decision-maker released a large number of documents to Mr Bennett.  The authorised decision-maker also advised Mr Bennett that she considered 67 folios falling within the request to be subject to legal professional privilege.

6. By letter dated 13 December 2001, Mr Bennett requested an internal review of that decision and on 25 January 2002, the authorised decision-maker advised Mr Bennett that he had decided to release two documents to which Mr Bennett had previously been denied access.  That decision-maker also advised that he affirmed the decision that 13 documents were the subject of legal professional privilege and were exempt under subsection 42(1) of the Act.  On 5 May 2002, Mr Bennett sought review by the Tribunal of the internal review decision.

7. The 13 documents the subject of review in this matter included two copies of a letter dated 14 January 1999 from the Australian Government Solicitor to the Australian Customs Service.  A copy of this letter dated 14 January l999 was released to Mr Bennett on 28 February 2002.

   Documents still in dispute

8. Shortly before the hearing Customs provided the Tribunal with a schedule entitled "Documents the subject of dispute in matters A2001/435 and A2002/102", listing the 35 documents to which Mr Bennett had not yet been granted access.  At the commencement of the hearing on 4 April 2002 two further documents were released to Mr Bennett.  Number 28 in the list of documents was released in full and number 29 with two minor deletions.  As a consequence, 33 documents (numbered 1-27 and 30-35) remain in dispute.
   Legislation

9. The relevant sections of the Act are as follows

   "3 Object

   (1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

   (a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
   (b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
   (c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

   (2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information."

   "4 Interpretation
   (1) In this Act, unless the contrary intention appears:
   …
   "exempt document" means:

   (a) a document which, by virtue of a provision of Part IV, is an exempt document;
   (b) a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
   (c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.

   "exempt matter" means matter the inclusion of which in a document causes the document to be an exempt document.
    …"

   "11 Right of access
   (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

   (a) a document of an agency, other than an exempt document; or
   (b) an official document of a Minister, other than an exempt document.

   (2) Subject to this Act, a person's right of access is not affected by:

   (a) any reasons the person gives for seeking access; or
   (b) the agency's or Minister's belief as to what are his or her reasons for seeking access."

   "14 Access to documents apart from Act
   Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so."

   "22 Deletion of exempt matter or irrelevant material
   (1) Where:

   (a) an agency or Minister decides:

   (i) not to grant a request for access to a document on the ground that it is an exempt document; or
   (ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

   (b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

   (i) would not be an exempt document; and
   (ii) would not disclose such information; and

   (c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

   the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
   …"

   "42 Documents subject to legal professional privilege

   (1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

   …"

   "58 Powers of Tribunal
   (1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
   (2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
   …"

   "61 Onus
   (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
   …"

Evidence

1. The Tribunal took into evidence two sets of documents filed under section 37 of the Administrative Appeals Tribunal Act 1975, set one (filed in A2001/435) T1 to T11, set two (A2002/102) T1 to T9. Also taken into evidence were confidential exhibits 1 to 35, being the documents in question, and exhibits R1 to R3 and A1 to A3 from Customs and Mr Bennett respectively. Oral evidence was received from Ms Christine Marsden-Smedley, an officer of Customs.
   Onus of Proof

2. Section 61 of the Act makes clear that the onus of establishing whether a decision on a document was justified, or that the Tribunal should give a decision adverse to an applicant, rests on the agency, in this case Customs.
   Test for Legal Professional Privilege under the Act.

3. Section 42 of the Act provides in subsection (1) that a document is an exempt document if it is of such nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.  I accept Customs' submissions that the exemption should be determined under the common law rules relating to legal professional privilege, not the rules for client legal privilege as set out under the Evidence Act 1995.

4. The rationale for legal professional privilege was stated by Justices Stephen, Mason and Murphy of the High Court in Grant v Downs (1976) 135 CLR 674 at 685

   "The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline.  This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor."

5. In Esso Australian Resources Limited v Commissioner of Taxation (1999) 201 CLR 49, the High Court overruled the "sole purpose" test in Grant v Downs and substituted the "dominant purpose" test.  Now, legal professional privilege attaches to documents brought into existence for the dominant purpose of obtaining or giving legal advice, or for the dominant purpose of use in actual or anticipated litigation.

6. Furthermore, legal professional privilege attaches to various other classes of documents, such as

   "Notes, memoranda, minutes or other documents made by the clients or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client, or to conduct litigation on his behalf." (Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246 per Lockhart J)

7. It is also clear that legal professional privilege can apply to communications between Commonwealth officials and qualified legal advisers employed by the Commonwealth, provided that a solicitor/client relationship exists.  This was set out in Waterford v the Commonwealth (1987) 163 CLR 54, where the legal advisers concerned were officers of the Commonwealth Crown Solicitor's Office and it was found that they had the independence essential for such a relationship.
   Consideration of Issues and Findings

   Did legal professional privilege attach to these documents at the time of their creation?

8. Taking into account all the evidence before me, I am satisfied, in relation to the documents 2 to 7, 9 to 14, 19 to 21, 24 to 27, 30, that part of 31 which records advice provided by L. Edwards, and 32 to 35 as follows

• these documents were brought into existence for the dominant purpose of obtaining or giving legal advice, or the dominant purpose of use in actual or anticipated litigation

• they represented communications between Customs and its legal advisers or between various legal advisers of Customs, and

• such legal advisers were in an independent professional relationship with Customs.

1. Furthermore, I am satisfied that documents 8, 15 to 18, 22, 23 and the remainder of 31 are file notes, memoranda, briefs and such like made by Customs or its legal advisers. I am also satisfied that they record communications which are themselves privileged or contain a record of those communications, or relate to information sought by Customs' legal adviser to enable him or her to advise Customs or to conduct litigation on Customs' behalf (see TPC v Sterling).

2. Document 1 was, in my opinion, brought into existence for multiple purposes, firstly to request a draft response be prepared to correspondence from Mr Bennett, and secondly to seek legal advice in the course of preparation of that response. Although it is unclear, I am not satisfied on the evidence before me that the dominant purpose for which this document was produced was to request legal advice, nor that it was in relation to anticipated litigation or current litigation. I find that Customs has not met the onus cast on it by section 61 in relation to this document.

3. I am therefore satisfied that documents 2 to 27 and 30 to 35 were initially the subject of legal professional privilege.  I am not satisfied that document 1 was subject to legal professional privilege at the time of its creation. 

   Has that legal professional privilege been defeated by an abuse of power by Customs?

4. Mr Bennett referred the Tribunal to the decision of the High Court in Attorney-General (N.T.) v Kearney (1985) 158 CLR 500. I quote from the headnote in the Commonwealth Law Reports which records the gist of the decision

   "It would be contrary to the public interest in the better administration of justice to allow legal professional privilege to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under law."

5. Mr Bennett alleged that certain documents were produced as part of "a deliberate plan or scheme by persons in the Australian Customs Service to defy the law and oust another person of his rights." He said that it involved "an intentional abuse of authority for ulterior purposes."

6. However, the evidence before me did not point to a deliberate abuse of statutory power, a crime or fraud, or abuse of authority for ulterior purposes.  Rather, it suggested an honest mistake, which once recognised as such was sought to be put right.  Mr Bennett's honest belief expressed from the bar table, and I accept that he is sincere in this belief, is not sufficient to bring this exception into play.

   Has legal professional privilege been waived for any document?

7. The test for waiver was set out by the High Court in Mann v Carnell (1999) 201 CLR 1

   "[28] At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege… Legal professional privilege exists to protect the confidentiality of communications between lawyer and client.  It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement.  It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege…
   [29] Waiver may be expressed or implied.  Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect… What brings about the waiver is the inconsistency which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
   …
   [34] … Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect.  Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency." (per Gleeson CJ, Gaudron, Gummow and Callinan JJ)

1. It is not the case of either of the parties here that there was an express waiver.  However, Mr Bennett relies on a letter dated 28 September 1999 from the Australian Government Solicitor on behalf of Customs to Mr Bennett's legal advisers (Exhibit R3) to assert that legal professional privilege has been waived in certain matters before the Tribunal.  In this letter there are, in particular, three paragraphs of relevance, paragraphs 2, 8 and 9.

2. In documents 20 and 26 there are paragraphs which reproduce almost word for word these paragraphs in Exhibit R3, but both documents 20 and 26 postdate Exhibit R3.  In my view, therefore, this cannot amount to a waiver.  It may seem odd that legal professional privilege attaches to material which has already been released, in this case material released in Exhibit R3 but reproduced in documents 20 and 26.  However there is an analogy between this situation and that of copied documents.  In Commissioner AFP v Propend Finance Pty Ltd (1997) 188 CLR 501 Justice McHugh said (at 552-3)

   "No doubt it seems contrary to commonsense that the law should give privilege to the copy of a document when it does not give it to the original.  But in this area of the law, as in other areas of law and life, commonsense turns out to be a misleading guide.  This is because legal professional privilege turns on purpose, and no argument is needed to show that the purpose of a client or lawyer in making a copy document may be very different from the purposes of the person who created the original.
   To concentrate on the similarity between the original and the copy or on how the copy came to be made is to miss the whole point of legal professional privilege.  The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice.  The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client's affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice.  As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant."

3. As for other documents predating Exhibit R3, only paragraph 2 of the exhibit is relevant.  Exhibit R3 concerns an offer to settle and only provides conclusions drawn from material which is researched and presented in much more detail in those earlier advices.

4. In my view, taking the test set out in Mann v Carnell, disclosure in Exhibit R3 of these conclusions is not inconsistent with maintaining the confidentiality to which the privilege attaches in the earlier documents.  Put another way, the disclosure in Exhibit R3 is not inconsistent with the confidentiality which the privilege serves to protect.  Therefore, in my view, the limited disclosure in paragraph 2 of exhibit R3 does not amount to a waiver (see also Re Spier and ACT Electoral Commissioner (1995) 41 ALD 374).

   Can any of the documents be amended, pursuant to section 22, and be released in a form not disclosing exempt material?

5. Customs has accepted that documents 22 and 23 can be released with deletions without adversely affecting the material within them that is subject to legal professional privilege.  I agree.  I refer to this further in my decision below.

   Is there any power in the Tribunal to release material otherwise exempt under the Act?

6. Section 14 of the Act allows agencies to effect such a release in certain circumstances. Mr Bennett referred to part of a FOI memorandum (Exhibit A1) which exhorted agencies to release material, even if that material was subject to the exemptions under the Act, if there would be no harm occasioned by the release. However, as I pointed out during the hearing, the Tribunal has no such power to release documents. This is explicitly laid down in section 58(2) of the Act

   "(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted."

   Conclusions

7. In summary my conclusions are as follows

1. Document 1 is not exempt under the Act

(ii)  All other documents in dispute, subject to what I say in conclusion (iii), are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege, and are exempt from release under section 42 of the Act

(iii) It is possible to make copies of documents 22 and 23 with such deletions that those copies

(a)would not be exempt documents, and

(b)would not disclose such information

and it is reasonably practical to make those deletions.

Costs

1. During the hearing, and again at the end of my oral reasons for decision, the question of Mr Bennett's costs was raised.  As Mr Bennett was self-represented his only costs were the fees paid to the Tribunal to lodge his applications.  Mr Northcote alerted the Tribunal to regulation 19(7) of the Administrative Appeals Tribunal Regulations 1976, which states

   "A person who has paid an application fee is entitled to a refund of the fee if:

   (a) the fee was not payable; or
   (b) the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant."

2. While most of the documents still in dispute will not be disclosed to Mr Bennett as a result of this decision, he has gained access to a number of other documents as a result of bringing these two applications to the Tribunal (see paragraphs 5, 9, 10 and 33 above).  In those circumstances I am prepared to certify that the proceedings have terminated in a manner favourable to him.
   Decision

3. I set aside the reviewable decisions and remit the matters to the Respondent for reconsideration with directions along the following lines

• document 1 is not an exempt document for the purposes of the Act

• the only exempt matter in document 22 is paragraphs 5 to 10 and the last sentence in paragraph 11

• the only exempt matter in document 23 is paragraphs 7 to 9

• the remaining documents (2 to 21, 24 to 27 and 30 to 35) are exempt documents pursuant to section 42 of the Act.

1. I certify that these proceedings have terminated in a manner favourable to the Applicant.

   I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  4 April 2002
   Date of Decision  5 April 2002
   Date of Written Reasons         16 May 2002
   Counsel for the Applicant        Self-represented
   Counsel for the Respondent    Mr R Northcote
   Solicitor for the Respondent    Ms V Guthrie, Australian Government Solicitor