British American Tobacco Australia Limited v Department of Health and Ageing
[2011] AATA 216
•30 March 2011
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2009/4800
GENERAL ADMINISTRATIVE DIVISION )
Re:PHILIP MORRIS LIMITED
Applicant
And:DEPARTMENT OF HEALTH AND AGEING
Respondent
And:BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED
Party Joined
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/2728
GENERAL ADMINISTRATIVE DIVISION )
Re:BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED
Applicant
And:DEPARTMENT OF HEALTH AND AGEING
Respondent
CORRIGENDUM TO DECISIONS [2011] AATA 215 and [2011] AATA 216
The Tribunal amends its decisions and reasons for decision published on 30 March 2011 as follows:
In the list of those appearing for the parties by deleting the post nominal initials following the names of junior counsel so that the names for appearances read:
1. For application number 2009/4800:
Counsel for the Applicant Mr S Mcleish, SC and Mr C Young
2.And for application numbers 2009/4800 and 2010/2728:
Counsel for the Respondent Mr P Hanks, QC and Ms R Graycar
S A Forgie
Deputy President
CATCHWORDS – FREEDOM OF INFORMATION – legal advice – whether exempt on basis privileged from production in legal proceedings on the ground of legal professional privilege – whether subject to privilege – whether privilege expressly or impliedly waived – decision affirmed.
PRACTICE AND PROCEDURE – whether reference may be made to publication of extract from legal advice in Government Response published in Senate Hansard – whether subject to Parliamentary privilege – purpose for which reference would be made – would be breach of Parliamentary privilege.
Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 863; (2009) 74 NSWLR 612
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15; (1996) 137 ALR 28; 70 ALJR 603
Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31
AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
Bella Bropho v Western Australia [2005] FCA 941
Bella Bropho v State of Western Australia [2007] FCA 519
Bennett v Chief Executive Officer of the Australian Customs Service
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52
Bradlaugh v Gossett [1884] 12 QBD 271
Buchanan v Jennings [2004] UKPC 36; [2005] 1 AC 115
Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; 129 ALR 593
Church of Scientology v Johnson-Smith [1972] 1 QB 522
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1; 78 FLR 449
Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Edmondson v Birch & Co Ltd [1907] 1 KB 371
Egan v Willis [1998] HCA 71; (1998) 195 CLR 424; 158 ALR 527; 73 ALJR 75
Erglis v Buckley [2004] QCA 223; [2004] Qd R 599
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123
Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83; 132 ALR 57; 69 ALJR 919
Grant v Downs (1976) 135 CLR 674; 11 ALR 577
Habib v Commonwealth of Australia [2008] FCA 1494
Hamilton v Al Fayed [1999] 1 WLR 1569; [1999] 3 All ER 317
Hening v Australian Consolidated Press Ltd [1982] 2 NSWLR 374
Hepples v Federal Commissioner of Taxation [1979] VR
Holding v Jennings [1979] VR 289
Laurance v Katter [2000] 1 Qd R 147; (1996) 141 ALR 447
Leigh v Attorney-General in respect of the Ministry of Environment and Gow [2010] NZCA 624
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; 168 ALR 86; (1999) 74 ALJR 378
McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6
Mees v Roads Corporation and Others [2003] FCA 306; (2003) 128 FCR 418
Mundey v Askin [1982] 2 NSWLR 369
O’Chee v Rowley (1997) 142 FLR 1
Office of Government Commerce v Information Commissioner [2008] EWHC 774; [2010] QB 98
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275
Pepper v Hart [1993] AC 593
Prebble v Television New Zealand Pty Ltd [1995] 1 AC 321
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
R (Bradley) v Work and Pensions Secretary [2007] EWHC 242; [2008] EWCA Civ 36; [2009] QB 114
R v Home Secretary; Ex parte Brind [1991] 1 AC 696
R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216
Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450
Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Department of Resources and Energy (1987) 6 AAR 80
Re Hewitt and Queensland Law Society Inc [1998] QICmr 23; (1998) 4 QAR 328
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 209 ALR 271
Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
Rost v Edwards [1990] 2 QB 460
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345
Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2003) 202 ALR 98
Stockdale v Hansard (1839) 9 Ad & El 1 at 115
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244
Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317
Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350; 12 ALD 741
Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416
Acts Interpretation Act 1901 s 15AB
Administrative Appeals Tribunal Act 1975 ss 33(1)(c), 40(1)(a)
Bill of Rights 1688 Article 9
Commonwealth of Australia Constitution Act ss 1, 49
Evidence Act 1995
Freedom of Information Act 1982 ss 42, 58(2), 61(1)
Freedom of Information Amendment (Reform) Act 2010 ss 2(1), items 3 and 6
Judiciary Act 1903 s 55E
Parliamentary Privileges Act 1987 ss 3(1), 16(2), 16(3), (3)(c), (4) and (5)
Senate Standing Orders, Chapter 5, Orders 25, 25(18) and 39(1) and (2)
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Statutory Interpretation in Australia, DC Pearce and RS Geddes, 6th edition, 2006, LexisNexis Butterworths, Australia
DECISIONS AND REASONS FOR DECISIONS [2011] AATA 215 and [2011] AATA 216
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2009/4800
GENERAL ADMINISTRATIVE DIVISION )
Re:PHILIP MORRIS LIMITED
Applicant
And:DEPARTMENT OF HEALTH AND AGEING
Respondent
And:BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED
Party Joined
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/2728
GENERAL ADMINISTRATIVE DIVISION )
Re:BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED
Applicant
And:DEPARTMENT OF HEALTH AND AGEING
Respondent
DECISIONS
Tribunal: Deputy President S A Forgie
Senior Member F D O’Loughlin
Place: Melbourne
Date: 30 March 2011
Decision:The Tribunal decides to affirm:
1.the decision of the respondent dated 30 August 2009 affirming an earlier decision dated 22 July 2009 refusing the request for access dated 17 June 2009 made by the applicant in proceedings No. 2009/4800, Philip Morris Limited; and
2.the decision of the respondent dated 21 June 2010 affirming an earlier decision dated 20 May 2010 refusing the request for access dated 17 June 2009 made by the applicant in proceedings No. 2010/2728, British American Tobacco Australia Limited.
S A Forgie
Deputy President
REASONS FOR DECISIONS
FORGIE DP
Both Philip Morris Limited (PML) and British American Tobacco Australia Limited (BATA) made a request under the Freedom of Information Act 1982 (FOI Act) for access to a copy of an advice referred to on page 30 of a document entitled “Government Response to the Report of the Senate Community Affairs Reference Committee: The Tobacco Industry and the Costs of Tobacco-Related Illness” dated September 1997 (Government Response). The reference reads:
“In response to the mounting interest in generic packaging, the Commonwealth obtained advice from the Attorney General’s Department on the legal and constitutional barriers to generic packaging.”
PML and BATA made their requests to the Department of Health and Ageing (DHA), which initially refused to give access to the advice from the Attorney-General’s Department (AGD) (AGD legal advice) under s 42 of the FOI Act on the basis that it would be privileged from production in legal proceedings on the ground of legal professional privilege (legal professional privilege ground).[1] At the hearing, DHA maintained that ground of exemption but submitted that there was a preliminary question that had to be decided. That question was, in effect, whether I may even proceed to consider the legal professional privilege ground because I am prohibited from doing so by s 16 of the Parliamentary Privileges Act 1987 (PP Act). In essence, DHA has taken the position that the Government Response, which refers to the advice, can be described as “proceedings in Parliament”. The effect of s 16(3)(c) is that it is not lawful for evidence to be tendered or received by the Tribunal or submissions to be made to the Tribunal concerning proceedings in Parliament by way of or for the purpose of drawing, or inviting it to draw, inferences or conclusions. PML and BATA do not accept DHA’s interpretation or application of s 16(3)(c).
[1] Subject to a qualification that is not relevant in this case, s 42(1) of the FOI Act provides that “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.”
If questions of waiver are put to one side, I have decided that the AGD legal advice is subject to legal professional privilege. It is legal advice given to the Department of Human Services and Health (DHSH) by a lawyer in the Office of General Counsel (OGC) in the AGD. The OGC is in a position equivalent to that of an independent legal adviser.
I have also decided that the Government Response comes within the description of “proceedings in Parliament” in s 16 of the PP Act. If I were to have regard to it in deciding whether or not the Commonwealth has waived its legal professional privilege, I have decided that I would do so in order to draw inferences or conclusions from the fact that the Commonwealth chose to include a reference to the legal advice in responding to the report of the Senate Community Affairs References Committee (SCAR Committee). I would not do so in order to find merely that the reference to the AGD legal advice was given.
Without paying any heed to the disclosure in the Government Response, I have decided that the legal professional privilege may be claimed in relation to the AGD legal advice and that privilege has not been waived either expressly or impliedly by disclosure of a summary of the AGD legal advice to the Tobacco Working Group (TWG) or to the Ministerial Tobacco Advisory Group (MTAG).
THE SUBMISSIONS
The parties made careful submissions and I have given but the barest outline of them in this section of my reasons. It is intended to give an indication of their flavour. The focus of all was upon the reference to the AGD legal advice in the Government Response and whether or not it could be relied upon as evidence of public disclosure so that any legal professional privilege attaching to it had been waived.
The essence of the Department’s case is set out in its Statement of Facts and Contentions lodged in 2009/4800 on 25 June 2010 and in its submissions lodged in 2010/2728. It is to the effect that the Government Response comes within the description “proceedings of Parliament” so that:
“it is not lawful for evidence to be tendered to, or received by, the Tribunal, or submissions to be made to the Tribunal concerning the Government Response, by way of, or for the purpose of drawing, or inviting the Tribunal to draw, inferences or conclusions from anything forming part of the Government Response; and
the Applicant cannot rely on anything in the Government Response for the purpose of submitting, and inviting the Tribunal to find, that the Respondent waived legal professional privilege in the AGD legal advice: Parliamentary Privileges Act 1987 (Cth), s 16(3).”
On behalf of PML, it is submitted that s 16(3)(c) should be interpreted in light of its purpose i.e. to preserve the freedom of speech of the Parliament by ensuring that those who participate in debate in the Houses of Parliament can do so confident that what they say or do cannot later be impeached in a court.[2] It does not prohibit the drawing of inferences and conclusions of law; only of fact. It is not asking us to draw inferences or conclusions of fact. Instead, it is asking us to look at the reference to the AGD legal advice in the Government Response for the purposes only of our reaching a conclusion of law. It would be an absurd result if a document which has been presented to Parliament and which has been made public could not be proved to be so.[3]
[2] Laurance v Katter [2000] 1 Qd R 147; (1996) 141 ALR 447 at 204; 452 per Fitzgerald P and R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216 at [70]; 246; Winneke ACJ, Vincent and Eames JJ
[3] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11 at 35-37; 523-525 per Gibbs ACJ and see also Egan v Willis (1998) 195 CLR 424 at 490-491 per Kirby J
BATA adopted those submissions. It went on to submit that there was nothing in s 16(3) to prevent evidence being led of proceedings in Parliament to prove what was said or done as a matter of history.[4] Once what is said in Parliament is proved as an historical fact, s 16(3) does not preclude the legal consequences that follow from that proof.[5] In this context, there is a distinction between facts and inferences.[6] BATA relies on the fact that the Government Response was presented to the Senate and, as a consequence, was made available to the public. It is by operation of law that the waiver is imputed.[7]
[4] Erglis v Buckley [2004] QCA 223; [2004] Qd R 599 at [8]; 605 per McPherson JA and Prebble v Television New Zealand Pty Ltd [1995] 1 AC 321 (PC) at 333
[5] Buchanan v Jennings [2005] 1 AC 131 at [8]; Erglis v Buckley at [7]; 604-605 per McPherson JA and Prebble v Television New Zealand Pty Ltd [1995] 1 AC 321 (PC) at 337
[6] AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 863; (2009) 74 NSWLR 612 at [16] per Rein J
[7] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; 168 ALR 86; (1999) 74 ALJR 378 at [29]; 384 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
MS HARMON’S EVIDENCE
Appearing for BATA, Mr Robertson SC with Mr Hill of counsel objected to a number of paragraphs in the affidavit of Ms Georgina Kim Harman, who is the First Assistant Secretary of the Mental Health and Chronic Disease Division of DHA. They did so on one or other of three bases: that they are irrelevant;[8] they are argument or submission and conclusions without primary facts;[9] and that the document speaks for itself.[10] The objections were not necessarily framed on admissibility but on weight. On behalf of PML, Mr McLeish SC with Mr Young of counsel supported their submissions. Mr Hanks QC with Ms Graycar of counsel did not necessarily oppose their submissions and thought that they went to weight.
[8] Paragraphs [7]-[9]
[9] Paragraphs [15]-[17], [29] (first sentence) and [32]-[36]
[10] Paragraphs [19] and [20] (first sentence of each), [22], [23] (first sentence) and [27] (all but the last sentence).
On reading the paragraphs and passages to which objection is made, I have decided that I do not need to have regard to the paragraphs and passages objected to. The supporting documents were not objected to and I have based my findings of fact on those documents which speak for themselves.
During the hearing, Mr Hanks called Ms Harmon to give evidence. He did so in response to my question whether he needed to tease out his factual basis[11] but, later, over the objections of PML and BATA. The evidence Ms Harmon gave was to the effect that she had been advised by Ms Kim Margaret Delacy that she had found the AGD legal advice on one file held in the Legal Services Branch of DHA. Ms Delacy is the Business Manager in the Mental Health and Chronic Diseases Division and reports to Ms Harmon. Ms Harmon said that Ms Delacy had told her that the file was marked “Legal in Confidence”.[12]
[11] Transcript at 33
[12] Transcript at 39
After the hearing had concluded, the solicitors for DHA lodged an affidavit from Ms Delacy. She stated that she was responsible for the administrative and financial support for the Division. Her duties included Parliamentary coordination, Division finances and budget, human resources, corporate resources and coordination of FOI requests. On 3 March 2010, Ms Harmon had directed her to undertake a search of the relevant DHA files in response to the FOI request made by PML. Between 3 and 22 March 2010, she searched those files and prepared an Index showing the circulation of the AGD legal advice. On 3 March 2010, Ms Delacy noted in the Index that she had searched a particular file held by the Drug Strategy Branch of DHA and also noted that there was no evidence of circulation.
Ms Delacy deposed that she had received a call at about 1.30pm on 29 November 2010 from Mr Cotterell, an officer of DHA. That was the first day of the hearing and after I had asked Mr Hanks whether he wanted to tease out his factual basis but before he called Ms Harmon. Mr Cotterell had asked Ms Delacy to find the files containing the AGD legal advice, tell him how those files are classified and how they had been stored. At about the same time, Ms Delacy received a call from Ms Dolores Schneider who was DHA’s Acting Principal Legal Adviser. As a result, she went to Ms Schneider’s office and looked through several files to find a file containing the AGD legal advice. She found a file and it was a file held by DHA’s Legal Services Branch. After responding to Mr Cotterell’s query about her progress, she talked with an officer of the Legal Services Branch. That officer told her that files are stored securely in the compactus in that Branch for one year after their creation. They are then sent to DHA’s archives. In the case of the file holding the AGD legal advice, Ms Delacy noted that it had been retrieved from the archives on 2 July 2009. Ms Schneider advised her that it had been stored securely within the Legal Services Branch since then.
When Ms Harmon telephoned her at about 2.00pm on 29 November 2010, she told her that there was only one file containing a copy of the AGD legal advice and that it was classified Legal-in-Confidence. Ms Delacy said that she told Ms Harmon that even though she had been looking at the Index shortly before Ms Harmon had called her. The Index contained a note that the AGD legal advice also appeared on a second file held by the Drug Strategy Branch. It was not until late in the morning of 1 December 2010 that she noticed the reference to the AGD legal advice on the Drug Strategy Branch file. She was checking the Index at the time to make sure that there were no other references to the AGD legal advice. Ms Delacy immediately reported her oversight to Ms Schneider and she, in turn, telephoned Mr Chand who is the solicitor from the Australian Government Solicitor acting for DHA.
Ms Delacy has since re-examined the Drug Strategy Branch file and found that it shows that it was created for L Waghorn, an officer with the then Drugs of Dependence Branch. She found nothing on the file to suggest that the file went outside that Branch from the time it was created until 1999 when it was sent to DHA’s archives section. The name of the Drugs of Dependence Branch was changed to the Drug Strategy Branch sometime before 2008 when an officer of the newly named Branch retrieved it from archives. There is no record of the file’s having been taken out of DHA’s archives or that it has since been outside the Drug Strategy Branch.
Whether or not I should pay any regard to Ms Delacy’s affidavit was dealt with through written submissions. The submissions made by PML and BATA were to similar effect although those of PML also objected to specific passages in Ms Delacy’s affidavit. Both PML and BATA submitted that I should not consider it because it goes well beyond Ms Harman’s oral evidence and should have been led at the hearing. BATA added that Ms Delacy had been aware of the existence of the new evidence in March 2010 and DHA had plenty of time to address it at an earlier stage. I do not accept these submissions. Ms Delacy’s affidavit deals directly with Ms Harman’s evidence which was to the effect that the AGD legal advice had been found only on one file rather than two as turned out to be the case. It is also clear from her affidavit that Ms Delacy had forgotten about the other document and of her including it in the Index she had prepared.
PML also submitted that Ms Delacy’s affidavit was intended to address its submission that the evidence did not reveal any system to regulate the availability of the AGD legal advice, to regulate its being copied and to regulate the handling of those copies. I do not accept that submission. Ms Delacy’s affidavit does not address systems in any way. She refers only to the marking on the file and what she can discern about previous access to the file.
PML also objected to specific paragraphs of Ms Delacy’s affidavit. Some were based on irrelevance, some on their being hearsay and others on their being conclusive of issues I must decide. I agree that there is some weight in these objections but they are not such that I should disregard Ms Delacy’s affidavit. In a Tribunal such as this which is not bound by the rules of evidence,[13] I consider that these matters go more to the weight of the evidence than to its admissibility. Senior Member O’Loughlin and I decided to admit Ms Delacy’s affidavit as Exhibit 5.
[13] Administrative Appeals Tribunal Act 1975, s 33(1)(c)
On the premiss that we might take that course, BATA submitted that we should treat the affidavit as further evidence of DHA’s evidence and failures to communicate properly both within itself and with the Tribunal. I am not sure what the earlier failures might be but, apart from that, I do not see the affidavit as showing a failure to communicate in the sense of an ongoing systemic failure. What I see from the timeline of the events to which Ms Delacy deposed is a person who had not been required to think about the Index for some eight months when she was telephoned with an urgent enquiry about the locations of the AGD legal advice. Although Mr Cotterell’s request on the day was directed to any copy of the advice, Ms Delacy’s attention was drawn to just one file – the file held by the Legal Services Branch – when Ms Schneider called her immediately after Mr Cotterell had telephoned her. Certainly Ms Delacy had the Index among the documents she looked at but missed it. Her oversight was unfortunate but given the half hour time line in which she looked for the file and received or made five telephone calls, understandable. Pressured situations often lead to flawed outcomes. Rather than criticising Ms Delacy, she is to be commended for continuing to think about the matter. Clearly, the other copy must have been in the back of her mind for she looked at the Index again on 1 December 2010. She could have left the matter right there in the back of her mind and the chances are that PML, BATA and the Tribunal would have been none the wiser and others in DHA and their legal advisers would not have thought about the matter again to check the Index. Instead, Ms Delacy acted with complete integrity and told other officers who also acted in the same way and brought the matter to the attention of all of us.
BACKGROUND
The events leading to the preparation of the AGD legal advice and subsequent mention of it in the Government Response are not in dispute between the parties. They are set out in documents exhibited to the affidavit of Ms Harman and paragraphs to which no objection has been made. I have relied on those in setting out what I find to have been the events and have also referred to the affidavit of Mr Stephen Marcus Stern, a partner in the firm acting for BATA, and of Ms Belinda Heather Thompson, a partner in the firm acting for PML.
8 June 1994: enquiry by Senate Community Affairs References Committee
On 8 June 1994, the Senate directed the SCAR Committee to enquire into:
“The tobacco industry and the costs of tobacco-related illness, with particular reference to:
(a)a review of the current level of regulation of the manufacture, advertising promotion and sale of tobacco products; and
(b)an exploration of the costs of tobacco-related illness to the Australian community and a review of the existing mechanisms for recouping these costs.”[14]
[14] Affidavit of Ms Harman, Exhibit 4 at [5]
26 June 1995: establishment of Tobacco Working Group
The Tobacco Working Group (TWG) was established on 26 June 1995 by the then Minister for Human Services and Health, the Hon Carmen Lawrence.[15] It was a working group coming under the Health Advancement Standing Committee (HASC) of the National Health and Medical Research Council (NHMRC). TWG’s terms of reference required it to:
[15] Affidavit of Ms Harman, Exhibit 4 at [18]
“1.provide expertise and advice to the Department of Human Services and Health’s Drugs and Dependence Branch (DoDs) on possible options and strategies for the THM component, including the impact of broader health promotion issues on this THM component. Such advice may include:
-options for expansion of the THM component to include alternative or additional health promotion techniques;
-research alternatives especially in the area of community education. Of particular interest would be advice as to effective research mechanisms for monitoring changes in target group attitudes to smoking, the impact of education campaigns and tobacco control measures;
-quantitative and qualitative data collection methods and application of these data to tobacco harm minimisation techniques;
-appropriate and effective methods for communicating information (particularly information about the health effects of tobacco) to a range of key target groups. For example, advice as to effective communication strategies targeting Aborigines, Torres Strait islanders and other key target groups; and
-development of productive interaction between Commonwealth, State/Territory governments and non-government organisations.
2.provide relevant and regular (6 monthly) reports to the broader HASC on the THM component as a practical model for health promotion. This will include advice on the:
-policy approaches adopted under the THM component;
-division of responsibilities between Commonwealth, State and Territory Governments and other relevant groups; and
-transferability of experience to other areas and/or the development of best practice and practical models of health promotion.”[16]
[16] Affidavit of Ms Harman, Exhibit GKH-2
Officials from the Commonwealth and the States and representatives from non governmental organisations with expertise in tobacco control and health promotion made up its membership. Each received a letter of invitation from the Chairman of the HASC enclosing the terms of reference and administrative arrangements. Each was asked to sign and return a duplicate of the letter indicating acceptance of the invitation and of the conditions detailed in the administrative arrangements. Among those conditions was a statement that:
“Members of the NHMRC committees, working parties and panels are expected to ensure that the group’s deliberations and other activities in which they are involved, remain confidential until such time as a report or other document becomes publicly available.”[17]
[17] Affidavit of Ms Harman, Exhibit 4; Exhibit GKH-2 at 4 Sample invitation dated September 1995
The Chairman also advised each member that:
“As a member of an NHMRC committee, you will be covered by the provisions of Section 81 of the National Health and Medical Research Council Act 1992, concerning protection from civil actions, as well as by the general indemnity afforded to persons who act in an official capacity on behalf of the Commonwealth, as detailed in the enclosed Circular from the Department of Finance.”[18]
[18] Affidavit of Ms Harmon, Exhibit 4; Exhibit GKH-3
6 November 1995: Tobacco Policy Section of DHSH asks for and receives legal advice
On 6 November 1995, the Tobacco Policy Section of the then Department of Human Services and Health (DHSH) wrote to the Legal Services Branch of the AGD for advice “… regarding any constitutional or other legal impediments to the introduction of generic packaging.”[19] of tobacco products. On or about that day, the Legal Services Branch referred DHSH’s request to the OGC in the AGD.
[19] Letter from Ms Elizabeth Cain, Director, Tobacco Policy Section, DHSH, to Mr Michael Daube, a member of TWG; Affidavit of Stephen Marcus Stern, Exhibit APJ, Exhibit SMS-5.
11 December 1995: DHSH refers to request for AGD legal advice
In a letter dated 11 December 1995, Ms Elizabeth Cain, the Director of the Tobacco Policy Section of DHSH, wrote to Mr Michael Daube that she had:
“… recently sought legal advice from the Attorney-General’s Department regarding any constitutional or other legal impediments to the introduction of generic packaging. I am expecting their advice in the next few weeks and will forward this to the TWG as soon as it arrives.”[20]
Mr Daube was the Chairman of the Western Australian Task Force on Drug Abuse in the Ministry of the Premier and Cabinet.
[20] Affidavit of Mr Stern, Exhibit APJ, Exhibit SMS-5
14 December 1995: OGC provides AGD legal advice
On or about 14 December 1995, the OGC provided its advice comprising some 13 pages. This is what I have described as the AGD legal advice. The AGD followed it with an invoice in January 1997 for professional fees in respect of the advice.
December 1995: SCAR Committee publishes report
When the SCAR Committee published its report in December 1995 and entitled “The Tobacco Industry and the Costs of Tobacco-Related Illness” (SCAR Committee Report) it made a number of recommendations. Recommendation 18 was:
“That additional research be undertaken into the efficacy of generic packaging of tobacco products as a means of addressing the problem of juvenile smoking.”[21]
It made this recommendation after considering submissions made both for and against generic packaging. Proponents for plain packaging submitted that plain packaging would remove the current system of brand imaging associated with the design and style of packs and so reduce their attractiveness to juveniles. At the same time, it would reduce tobacco consumption and make health warnings more prominent. Submissions were made on behalf of tobacco manufacturers to counter these submissions. Among them was the submission that generic packaging would have the opposite effect by becoming a symbol of rebellion. The SCAR Committee referred to Canadian research which suggested that generic packaging is less attractive to children than the current packaging but which also suggested that, in Australia, generic packaging could have the opposite effect. It concluded that more research should be undertaken on the issue.[22]
[21] SCAR Committee Report at xii; Affidavit of Ms Harmon; Exhibit 4, Exhibit GKH-1
[22] SCAR Committee Report at 68-70; Affidavit of Ms Harmon; Exhibit 4, Exhibit GKH-1
8 February 1996: TWG requests copy of AGD legal advice
On 8 February 1996, an officer in the Tobacco Policy Section in DHSH wrote to another officer in the Department advising her that TWG had asked for a copy of the AGD legal advice. She went on to say that “Recognising that providing such is inappropriate we have prepared for them a summary outlining the major issues. …” and asked for advice about the summary.[23]
[23] Affidavit of Ms Harmon, Exhibit 4, Exhibit GKH-4
With regard to the AGD legal advice, the summary stated:
“The Department recently sought advice from the Attorney General’s Department (A-G’s) on the legal issues relevant to generic packaging of tobacco products.
A-G’s advised the Department on the Constitutional issues relevant to the possibility of introducing legislation for generic packaging. However, that advice, is to an extent, subject to the outcome of the Philip Morris case (Philip Morris v Commonwealth), which is currently before the High Court and has not yet been heard.
A-G’s also advised that further regulation must be considered in the context of Australia’s international obligations such as the Agreements on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Tariffs and Trade (GATT).
Finally, as the research on the effect of generic packaging on the uptake and cessation of tobacco consumption is, to date, limited, it may be difficult to establish that adopting generic packaging is a measure that is consistent with international Conventions.”[24]
[24] Affidavit of Ms Harmon, Exhibit 4, Exhibit GKH-5
15 February 1996: Meeting No. 5 of TWG
At its meeting on 15 February 1996, TWG received a Briefing Paper (No. 5) entitled “Generic Packaging of Tobacco Products”.[25] The minutes reported that:
“Ms Matthews [member of the Secretariat] discussed some of the legislative impediments to the introduction of generic packaging, and reported that of major importance was the necessity to ensure a rigorous and reliable research base. It was agreed that the issue of research required further consideration.”[26]
[25] Affidavit of Mr Stern, Exhibit APJ, Exhibit SMS-8 at 1
[26] Affidavit of Mr Stern, Exhibit APJ, Exhibit SMS-8 at 2
Mr Daube acted as Chair of the meeting. Others in attendance were Associate Professor Rob Donovan of the University of Western Australia, Ms Addy Carroll from Healthway, Mr Maurice Swanson of the Western Australian Department of Health and Ms Dorothy Reading of the Anti Cancer Council of Victoria. Mr Tony Kingdon attended in place of Ms Cain. An officer from TWG’s Secretariat also attended together with an observer from DHSH and an observer from
HASC.[27][27] Affidavit of Mr Stern, Exhibit APJ, Exhibit SMS-8 at 1
24 July 1996: TWG disbanded and Ministerial Tobacco Advisory Group established
On 24 July 1996, the then Minister for Health and Family Services, Dr Michael Wooldridge, disbanded TWG. In its place, he established a Ministerial Tobacco Advisory Group (MTAG) to liaise directly with him on the development of a new national anti-tobacco campaign and strategy. The membership of MTAG was made up of Commonwealth and State health officials together with representatives of non-governmental organisations with expertise in tobacco control and health promotion.[28] MTAG’s task was set out in terms of reference agreed to on 5 September 1996:
“1. To develop a new anti-tobacco campaign in co-ordination with States and Territories to provide a national focus and impetus for tackling both teenage and adult smoking.
2.To facilitate collaboration between government and non-government organisations in resource and program development to achieve greater impact and cost efficiency and to preclude unnecessary duplication.
3.To review best practice smoking cessation models including the role of nicotine replacement therapy and to monitor advances in smoking cessation techniques to facilitate the adoption and promotion in State and Territory programs.
4.To develop a national strategy to reduce illegal sales of tobacco products to minors.
5To advise the Minister on a national strategy for tobacco control.”[29]
[28] Affidavit of Ms Harmon, Exhibit 4 at [24]-[26]
[29] Affidavit of Ms Harmon, Exhibit 4, Exhibit GKH-6
DHSH reimbursed the travel and accommodation costs of MTAG’s members when they attended official meetings of MTAG. The Chairman and three of its members were not employed by the Commonwealth. No consideration had been given to legal protection for those persons when acting as members of MTAG.[30] The Minister for Finance had agreed in principle that any person acting in an official capacity on behalf of the Commonwealth be provided with the same degree of legal protection as provided to Commonwealth officers under Finance Directions 21/18-21/24.
[30] Affidavit of Ms Harmon, Exhibit 4, Exhibit GKH-7
September 1997: Government’s response to the Senate Committee report
On 3 September 1997, the then Parliamentary Secretary to the Minister for Trade and Parliamentary Secretary to the Minister for Primary Industries and Energy, Senator Brownhill, presented the Government Response to the SCAR Committee Report.[31] He sought leave to incorporate the document in Hansard and that leave was granted.[32] It appears in full in the Senate Hansard after the introductory words “The document read as follows—”.[33] Senator Brownhill then moved “That the Senate take note of the document.”[34] The question was resolved in the affirmative after debate.[35]
[31] In her affidavit – Exhibit 3 - Ms Carolyn Louise Driessen explained the events leading to the presentation of the Government Response. She explained how there had been a Federal Election in 1996 and the SCAR Committee had relayed a message to DHSH that its presentation should be delayed until it had been considered by the incoming government.
[32] Senate Hansard, 3 September 1997 at 6334
[33] Senate Hansard, 3 September 1997 at 6334 -6352
[34] Senate Hansard, 3 September 1997 at 6352
[35] Senate Hansard, 3 September 1997 at 6356
Part 3.10 of the Government Response responded to Recommendation
18 in the SCAR Committee Report:
“RESPONSE:
The Commonwealth is addressing the issues of youth smoking through a sustained multi-faceted approach, which includes health warnings on packaging to improve consumer, including youth, knowledge of the health effects of tobacco consumption. The Commonwealth will commission further investigation of the efficacy of generic packaging as a means of enhancing the impact of package warnings.”[36]
[36] Affidavit of Ms Harmon, Exhibit 4, Exhibit GKH-8 at 29
The Government Response then set out the background to its response. As part of that background, it stated:
“In response to the mounting interest in generic packaging, the Commonwealth obtained advice from the Attorney-General’s Department on the legal and constitutional barriers to generic packaging. This advice indicates that the Commonwealth does possess powers under the Constitution to introduce such packaging but that any attempt to use these powers to introduce further tobacco control legislation needs to be considered in the context of the increasingly critical attention being focussed on the necessity, appropriateness, justification and basis for regulation by such bodies as the Office of Regulatory Review, the High Court, and the Senate Standing Committees. In addition, further regulation needs to be considered in the context of Australia’s international obligations regarding free trade under the General Agreement on Tariff and Trade (GATT), and our obligations under international covenants such as the Paris Convention for the Protection of Industrial Property, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
To date, generic packaging of tobacco products has not been implemented anywhere in the world. As such, there is no international experience of the effect of generic packaging on consumer behaviour. In addition, there is limited primary research on the potential effect of generic packaging on the factors underlying or relevant to the uptake and cessation of tobacco consumption.”[37]
[37] Affidavit of Ms Harmon, Exhibit 4, Exhibit GKH-8 at 30
3 December 1997: Summary of AGD legal advice to MTAG
On 3 December 1997, the MTAG Secretariat gave MTAG a brief summary of the AGD legal advice. The MTAG Secretariat comprised officers of the Tobacco and Alcohol Strategies Section of DHSH[38] who gave the summary in response to a request by a member of MTAG.[39]
LEGAL PROFESSIONAL PRIVILEGE
[38] Affidavit of Ms Harmon, Exhibit 4, Exhibit GKH-7; letter dated December 1996
[39] Affidavit of Ms Harmon, Exhibit 4 at [28]
The exemption as drafted before 1 November 2011
Section 42(1) of the FOI Act provides that:
“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.”
The effect of the amendment of the FOI Act
The FOI Act was significantly amended by the Freedom of Information Amendment (Reform) Act 2010[40] (FOI Amendment Act). Among the amendments were those to s 42. They were made by section 3 and Part 2 of Schedule 3 to the FOI Amendment Act and commenced operation on 1 November 2010.[41] They apply, however, only in relation to requests for access made under s 15 of the FOI Act and received at or after that day. That is the effect of section 3 and item 28 of Part 2 of Schedule 3 of the FOI Amendment Act. As both PML and BATA made their requests before that day, I have reviewed the decision made by DHA on the basis of the exemption provisions as they applied before their amendment.
[40] Act No. 51 of 2010
[41] FOI Amendment Act, s 2(1), item 6
Even if I am incorrect in this view, I note that the FOI Amendment Act did not amend s 42(1). What it did was to repeal s 42(2), which excludes from the exemption those documents of a kind referred to in s 9(1) or at least so much of them as is used for the purposes of making decisions or recommendations as referred to in s 9(1). The FOI Amendment Act substituted two new subsections. Section 42(2) now reads:
“(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.”
The term “operational information” will be defined in a new s 8A inserted by the FOI Amendment Act. It is one of the new provisions that will take the place of s 9 when Part II of the FOI Act has been repealed and replaced by item 3 of Schedule 2.[42] Just how the hiatus between the repeal of s 42(2) and its substitution with effect from 1 November 2010 and the repeal and substitution of s 9 and related definitions is to be resolved does not concern me.
[42] FOI Amendment Act, s 2(1), item 3
What does concern me is the relevance of waiver under s 42 before its recent amendment. In Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Department of Resources and Energy,[43] Jenkinson J, sitting as a Presidential Member of the Tribunal, concluded:
“… The subsection does not require that the document be ‘of such a nature that it would be privileged’. The criterion of exemptions, so expressed, is in my opinion framed by reference to acts and events which precede or are contemporaneous with the making of the document: the nature of the document is determined by what occasioned, and by what went into, its making and is unaffected, in my opinion, by subsequent events of the kind which might constitute waiver of legal professional privilege. …”[44]
Madgwick J reached the contrary conclusion in Bennett v Chief Executive Officer of the Australian Customs Service.[45] He said:
“ An alternative approach to the construction of s 42(1) was taken in Re Sullivan and Department of Industry, Science and Technology (1997-98) 49 ALD 743. Senior Member Bayne, at 756, observed that, whilst there was no authority contrary to the approach taken by Jenkinson J, there were passages in the decisions of the High Court and the Full Court which suggested that it was accepted that waiver is relevant in the context of s 42(1) of the FOI Act: see Waterford v The Commonwealth (1987) 163 CLR 54 and Waterford v Department of the Treasury (1985) 5 FCR 76. Senior Member Bayne also noted that there had been acceptance of the relevance of issues of waiver in relation to the Queensland and Victorian FOI legislation: see Re Smith and Administrative Services Department (1993) 1 QAR 22 at 56-7 and Re Clarkson and Attorney-General’s Department (1990) 4 VAR 197 at 198.
Like Mr Bayne, I find it difficult to discern the policy reason which would justify an approach which considers issues of waiver as irrelevant under s 42(1) of the FOI Act. Section 3 makes it very clear that the Act is to be interpreted in favour of freedom of access to information. In the face of such a section, it is really only where the Act’s language intractably requires it, that a consideration favouring release of documents should not be sustained. In my opinion, Colonial Mutual should not be followed.”[46]
His Honour’s conclusion is also consistent with the earlier decision of Re Hewitt and Queensland Law Society Inc,[47] in which the Queensland Information Commissioner set out a detailed analysis of the application of the principles of imputed waiver in considering legal professional privilege in circumstances other than those arising in court proceedings. As far as the enactment of the new s 42(2) is concerned, I think that it does no more than make explicit what was implicit in s 42(1) and enshrines the interpretation of s 42(1) already adopted by the Federal Court and binding upon the Tribunal.
[43] (1987) 6 AAR 80
[44] (1987) 6 AAR 80 at 83
[45] [2003] FCA 5 at [26]-[27] (Reversed on appeal in relation to the application of the principles of waiver but not on this point: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52)
[46] [2003] FCA 5 at [26]-[27]
[47] [1998] QICmr 23; (1998) 4 QAR 328
Legal professional privilege
Whether or not a document would be privileged from production on that ground depends upon the common law. It is not a matter that can be determined by reference to the provisions of Division 1 of Part 3.10 of Chapter 3 of the Evidence Act 1995 dealing with client legal privilege. That is a concept defined by that legislation which regulates the circumstances in which evidence of it may or may not be adduced. Section 42(1) is careful to refer to the circumstances in which a document is privileged from “production”. Production of a document, whether in response to a summons or subpoena, discovery proceedings or a demand for inspection, does not equate with adducing evidence of a document or otherwise. As Gleeson CJ, Gaudron and Gummow JJ said in Esso Australia Resources Ltd v Commissioner of Taxation:[48]
“… Documents may be discoverable, or the subject of a demand for inspection, even though they are not admissible in evidence. They may be significant, for example, because they open up a line of inquiry. Furthermore, in this country, the application of the privilege is not confined to judicial or quasi-judicial proceedings … [Baker v Campbell (1983) 153) CLR 52]. On any view, the ambit of the common law doctrine of legal professional privilege in Australia exceeds that of the relevant provisions of the Evidence Act. …”[49]
[48] [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123
[49] [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [4]; 55; 125
The two limbs of legal professional privilege
At common law, legal professional privilege is a rule of substantive law and so is to be distinguished from rules of evidence. The rule has been stated in various ways but, however stated, it is clear that there are two limbs to it. With one qualification introduced by the majority in Esso Australia Resources Ltd v Commissioner of Taxation, both were described by McHugh J in Commissioner Australian Federal Police v Propend Finance Ltd[50] when he said:
“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.”[51]
The qualification is that the purpose need only be the dominant purpose and not the sole purpose.[52]
[50] (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451
[51] (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 at 553; 584; 491 see also The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 552; 564 [9]
[52] Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67 at 73; 139; [61] per Gleeson CJ, Gaudron and Gummow JJ and at 107; 167; [172]-[173] per Callinan J, Kirby and McHugh JJ dissenting and see also Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561 at 552; 564 per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
It is apparent that there are two separate circumstances in which legal professional privilege may arise. The first occurs when confidential legal advice is sought and obtained. It extends to include a record of that advice and records and material collected and collated for the dominant purpose of obtaining and giving that advice. The second occurs when a communication is made or material recorded for the purpose of confidential use in litigation. Provided it occurs for that purpose, there is no need for the dominant purpose to be that of obtaining or giving legal advice.[53]
Legal professional privilege may be claimed in relation to advice from a lawyer employed by government
[53] See AWB Ltd v Cole [2006] FCA 571; 2006) 232 ALR 743; 91 ALD 741 at 777; 80; [144]-[145] per Young J
As a general proposition, legal professional privilege may be claimed in relation to advice sought from and given by a lawyer employed by the government. It may be claimed provided the professional relationship between the lawyer and the government agency seeking advice has the necessary quality of independence. In Waterford v The Commonwealth of Australia[54] (Waterford), the High Court considered the relationship of client and legal adviser in the context of correspondence passing between the Attorney-General and the Treasurer and between officers of the then Deputy Crown Solicitors’ office and officers of the Treasury. Mason and Wilson JJ held that:
“… there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. … To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.”[55]
[54] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350; 12 ALD 741 Mason, Wilson and Brennan JJ and Deane and Dawson JJ dissenting
[55] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350; 12 ALD 741 at 62; ……………
Brennan J was more circumscribed in his views and accepted only that officers of the Attorney-General’s Department or of the Commonwealth Crown Solicitor’s Office did not lack the independence that is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them. They had given advice to officers of The Treasury. The evidence to which he referred in reaching that conclusion was that:
“The Commonwealth, State and Territorial statutes under which officers are employed in the offices of Crown Solicitors, the Australian Government Solicitor and in the Departments of the respective Attorneys-General give them a certain security of tenure and those statutes would be construed, in the absence of contrary express provisions, as leaving these officers completely professionally independent. The protection of the respective Attorneys-General, as the first Law Officers of the Crown, should extend to all of these officers, so that none of them will be affected in the performance of their professional duty by any sense of loyalty or duty to, or hope of reward from, the government of the day. Counsel for the appellant expressly declined to argue that the Department of the Treasury’s advisers in this case lacked the independence which the safeguards to which Mason J. and I referred are intended to secure. I would therefore reject the submission that the officers of the Attorney-General's Department or the Commonwealth Crown Solicitor’s Office lack the independence which is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them. …”[56]
[56] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350; 12 ALD 741 at 72-73; ………..
The independence or otherwise of legal advice given by the Legal and Advice Branch of the Office of Workplace Services (OWS) arose in the case of Rilstone v BP Australia Pty Ltd[57] (Rilstone). Besanko J found that the OWS was an executive agency within the responsibility of the Minister for Employment and Workplace Relations. The documents over which legal professional privilege was claimed had been created during the course of an investigation carried out by the OWS. They were created in the exercise of statutory investigatory powers under the Workplace Relations Act 1996.
[57] [2007] FCA 1557
Besanko J was not satisfied on the evidence that the documents were created for the dominant purpose of seeking legal advice from OWS’s Legal and Advice Branch but he was satisfied on the evidence that it had the necessary degree of independence. His Honour referred to the evidence that the Legal and Advice Branch was the Workplace Ombudsman’s central legal division providing nationwide legal advice to inspectors and senior management. It was responsible for engaging and instructing external legal providers such as the Australian Government Solicitor and other legal providers engaged by the Workplace Ombudsman. He concluded:
“In this case the applicant might have put forward more detailed evidence as to how the Legal and Advice Branch operated and its role in the OWS organisation. However, in my opinion, this case has similarities with the facts in Waterford and … the necessary degree of independence has been established or, put another way, it has been established that the Legal and Advice Branch was a legal adviser for the purposes of legal professional privilege.”[58]
[58] [2007] FCA 1557 at [26]
In Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2)[59] (Telstra v MCITA), Graham J came to the contrary conclusion in relation to advice given by lawyers who were employees of Telstra. He noted that:
“ No evidence whatsoever has been led by Telstra to establish the role which the various legal practitioners performed within Telstra. In particular, no evidence has been advanced to disclose the measure of independence of the legal practitioners in question and their ability to provide impartial legal advice, given the roles they have had to perform.”[60]
and continued:
“In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied.”[61]
[59] [2007] FCA 1445
[60] [2007] FCA 1445 at [12]
[61] [2007] FCA 1445 at [35]
Later that same year, Branson J considered the same question in Rich
v Harrington[62] in relation to advice given by the OGC located in Price Waterhouse Coopers (PWC). Her Honour found that the person holding the position of General Counsel was a partner of PWC and, as did each of the solicitors in the OGC, held a current practising certificate. That Office operated as a separate unit within PWC and legal advice was provided with the same level of objectivity as would be expected of external lawyers. It is located separately from PWC’s business units, its documents and files are maintained separately and its offices are capable of being locked. The office provided legal advice and legal services to PWC on all issues that touched the firm or required legal advice including regulatory enquiries, litigation, contract reviews and transactions. When necessary and appropriate, it briefed external lawyers and counsel to support it in its role and to provide external legal advice and services.[62] [2007] FCA 1987; (2007) 245 ALR 106
The only comment made by Branson J on this evidence was that:
“… It may be that as in-house lawyers, including corporate counsel, play an increasingly important role in advising and providing other legal services to their employers and firms, the common law has come to accept that the requisite independence can be ensured by measures of the kind adopted by OGC …”[63]
[63] [2007] FCA 1987; (2007) 245 ALR 106 at [56]; 119
Her Honour declined, however, to decide whether the measures were enough in that case because she had to decide that question in the context of the particular advice that was claimed to attract legal professional privilege. The advice was given in respect of allegations and claims given by one of PWC’s partners,
Ms Rich, against others in the firm. Branson J said:
“58 In reaching a decision as to whether the relationship between OGC and the respondents was such as to secure to OGC’s advice concerning
Ms Rich’s allegations and claims an independent character, I am not required to speculate about how General Counsel, or other solicitors in OGC, in fact approached the giving of that advice (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [7]). It may be that General Counsel and each solicitor in OGC was fully conscious of, and capable of avoiding, the insidious influences of factors such as loyalty to individual partners and to the firm, including its leadership, concern for the reputation of the firm and the reputations of individual partners in the firm and other like matters. The critical question is whether the relationship between OGC and the respondents with respect to
Ms Rich’s allegations was one of professional detachment.59 To answer the above question it is necessary to give consideration to the nature of Ms Rich’s allegations and the significance that they might have for General Counsel and the OGC generally. As mentioned above, they were made by one partner against other partners. It seems uncontroversial that they were of a kind capable of tarnishing the reputation of the firm of which the OGC is a part. They cast aspersions of a personal, rather than a purely professional kind, on the General Counsel’s partners including those partners who comprised the leadership of her firm. The General Counsel and the Deputy General Counsel were themselves likely respondents in the litigation in prospect. Because of its likely subject matter, that litigation, should it eventuate, could reasonably be expected to attract a high level of media interest of a relatively sensational kind. For these reasons I conclude that
Ms Rich’s allegations were by reason of their content inherently likely to engage the personal loyalties and the duties and interests of all partners of PwC – and probably many employees of the firm as well.60 I therefore conclude that, having regard to the nature and significance of the allegations raised by Ms Rich in her letter of 2 July 2004, the relationship between OGC and the respondents was not such as to secure the advice of the OGC concerning Ms Rich’s allegations the objectively independent character necessary to support the respondents’ claim of client legal privilege. The OGC was not in a position to give professionally detached advice to the respondents concerning allegations of the character of those made by Ms Rich.”[64]
[64] [2007] FCA 1987; (2007) 245 ALR 106 at [58]-[60]; 119-120
Once the necessary degree of independence has been established and:
“… communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications …. In Kennedy v Wallace,[[65]] Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.
…”[66]
[65] (2004) 208 ALR 424 per Black CJ and Emmett J
[66] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(4)]; 45; 663
Legal advice is obtained by those in the private sector and private citizens in relation to legal proceedings brought against them or that they may contemplate or institute. It is also sought to ensure that they know what they can and cannot do under the law. To that extent, the public sector is no different. Where a difference lies, however, is in the fact that, to varying extents and in varying circumstances, Ministers and agencies in the public sector have responsibility for developing policy. If accepted by Cabinet and ultimately passed into law by Parliament, that policy has the effect of changing the law. In the course of developing that policy, Ministers and agencies may seek advice as to the state of the existing law and as to the impact that certain changes might have upon it. Is legal advice in those circumstances subject to legal professional privilege assuming, of course, that it is given by an independent legal adviser and the dominant purpose test is met?
I will begin with Waterford. Mr Waterford had asked the Department of the Treasury (Treasury) for certain documents relating to projections in the Budget Papers for 1982-83. He then made a second request under the FOI Act for the documents in the possession of Treasury and relating to the processing of his request. Among those documents were memoranda between Treasury and the Attorney-General’s Department, minutes between Treasury officers and the Treasurer and letters between the Attorney-General and the Treasurer. Legal professional privilege was claimed.
Mason and Wilson JJ referred to s 42 saying that:
“… The plain reading of this provision would suggest that Parliament has acknowledged expressly that legal advice tendered in connexion with the process of administrative decision-making will attract the privilege. …”[67]
[67] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673 at [7]; 64; 679
The term “administrative decision-making” covers a wide range of decisions but it is often used to refer to decisions of an administrative character and so made under an enactment as in the case of the Administrative Decisions (Judicial Review) Act 1977. Not all of the activities of the public sector are directed to making decisions under an enactment in that sense. A passage from the judgment of Brennan J in Waterford suggests that legal professional privilege may have a wider application:
“ In any event, I should think that the public interest is truly served by according legal professional privilege to communications brought into existence by a government department for the purpose of seeking or giving legal advice as to the nature, extent and the manner in which the powers, functions and duties of government officers are required to be exercised or performed. If the repository of a power does not know the nature or extent of the power or if he does not appreciate the legal restraints on the manner in which he is required to exercise it, there is a significant risk that a purported exercise of the power will miscarry. The same may be said of the performance of functions and duties. The public interest in minimizing that risk by encouraging resort to legal advice is greater, perhaps, than the public interest in minimizing the risk that individuals may act without proper appreciation of their legal rights and obligations. In the case of governments no less than in the case of individuals, legal professional privilege tends to enhance application of the law, and the public has a substantial interest in the maintenance of the rule of law over public administration. Provided the sole purpose for which a document is brought into existence is the seeking or giving of legal advice as to the performance of a statutory power or the performance of a statutory function or duty, there is no reason why it should not be the subject of legal professional privilege.”[68]
[68] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673 at [9]; 74-75; 687
Although he did not need to go so far in Waterford, his Honour’s reference to “functions and duties” and the need to know the restraints upon them as well as upon powers, suggests that legal professional privilege may extend to legal advice obtained for the purpose of developing policy. His initial statement of the principle in the passage I have quoted in the previous paragraph did not limit the privilege to legal advice obtained for the purposes of functions and duties having a statutory basis.
The rationale for legal professional privilege
The reason for legal professional privilege was explained by Advocate General Sir Gordon Glynn:
“Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if the proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.”[69]
It was explained further by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Ltd v Commissioner of Taxation:[70]
“… The rationale of the privilege has been explained in a number of cases, including Baker v Campbell,[[71]] and Grant v Downs[[72]] itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication.”[73]
[69] AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705 approved in Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; 129 ALR 593 at 127-128; 596 per Brennan J and 145; 610 per Toohey J
[70] (1999) 201 CLR 49; 168 ALR 123
[71] (1983) 153 CLR 52; 49 ALR 385
[72] (1987) 163 CLR 54; 71 ALR 673
[73] (1999) 201 CLR 49; 168 ALR 123 at 64-65; 132-133
The party claiming legal professional privilege must establish it on the balance of probabilities and may do so:
“… by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by reference to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.”[74]
[74] Grant v Downs (1976) 135 CLR 674; 11 ALR 577 per Stephen, Mason and Murphy JJ at 689; 589
As a rule of substantive law, it has application beyond legal proceedings.[75] It is not a rule that permits a court or Tribunal to weigh a person’s interest in resisting the production of the information or documents either against another’s interest in seeing that information or those documents or against a background of the behaviour of the person claiming legal professional privilege. If information or a document is subject to legal professional privilege, a court or Tribunal cannot order its production.
[75] Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 209 ALR 271 at [24]; 278 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ
Waiver of the privilege
The person entitled to claim the privilege may waive it, either intentionally or by implication.[76] As Gibbs CJ said:
“… where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”[77]
I will return to the issue of waiver later in these reasons[78] but, for the moment, note that it is the use that is made of the document by the person who is claiming legal professional privilege and notions of fairness that are relevant in deciding waiver. Except in one limited area, the authorities do not pay any regard to the person’s behaviour with regard to the other party in a proceeding or regard to other matters. That limited exception arises in relation to communications in furtherance of a fraud or crime. Where the communications are of that nature, they do not attract legal professional privilege in the first place. It is not a case of legal professional privilege’s being waived.[79]
[76] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J
[77] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and see also Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478-485 per Hunt CJ at CL
[78] See [179]-[193] below
[79] Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545 at 556; 587 per McHugh J
Onus of proof
I required DHA to produce relevant evidence addressed to the issues for s 61(1) of the FOI Act provides that it “… has the onus of establishing that a decision given in respect of the request was justified …”. That is to say, if it wants me to find that it can rely on the exemption provided for in s 42, it must ensure that I have the evidence or material on which I can make the findings of fact. It matters not whether that is evidence or material it has led itself or whether it is evidence or material led by another by another party.
Section 61(1) does give rise to one oddity in relation to the exemption under s 42. In the usual case, the onus lies as follows:
“Whereas the onus of establishing legal professional privilege is upon the party claiming the privilege, the onus of proof in relation to waiver lies on the person asserting that the privilege has been waived …”[80]
In one sense, s 61(1) would seem to require an agency to make good both the positive assertion that legal professional privilege attached to a communication or document in the first place but also the negative assertion that the privilege had not been waived.
[80] Zentai v O’Connor and Others (No 2) [2010] FCA 252; (2010) 183 FCR 180 at [125]; 209-210 per McKerracher J
In practical terms, I do not think that there is anything to make of the difference between where the onus falls at common law and under the FOI Act. In both cases, I must come to the correct decision at law on the evidence or material before us. If the evidentiary material falls short of satisfying me that the exemption has been made out, the outcome will be that DHA’s claim for exemption must be set aside and a decision substituted that access be given. If the evidentiary material leaves me in the state of mind where I am neither satisfied nor not satisfied that the exemption claim has been made out then I must decide that the claim for exemption must be set aside and a decision made to give access. That is the direct consequence of DHA’s bearing the onus of proof. If s 61(1) had not been included in the FOI Act, the outcome would be that the status quo would be maintained and DHA’s decision to refuse access under s 42 would be affirmed. That is a consequence of the application of the principles which apply in the Tribunal’s proceedings in which neither party bears an onus of proof. The principles are set out in McDonald v Director General of Social Security.[81]
[81] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6 at 258; 10 per Woodward J (Woodward, Northrop and Jenkinson JJ)
Examination of the AGD legal advice
As Stephen, Mason and Murphy JJ said in Grant v Downs:[82]
“ It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.”[83]
[82] [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198; Barwick CJ, Stephen, Mason, Jacobs and Murphy JJ.
[83] [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198 at [28]; 689; ….; ……
Lockhart J adopted the same approach in Trade Practices Commission v Sterling[84] and expanded upon it. After referring to the principle supported by cases such as Grant v Downs, his Honour continued:
“… However, it is as well to bear in mind what was said by Jenkins LJ in Westminster Airways Limited v Kuwait Oil Co Limited … [[1951] 1 KB 134]: “But there is nothing in the rule, or in the authorities, to constrain the court to hold that, in every case where a claim for privilege is made and disputed, the party seeking production is entitled to come to the court and (as it were) demand as of right that the court should go behind the oath of the opposite party and itself inspect the documents. The question whether the court should inspect the documents is one which is a matter for the discretion of the court, and primarily for the judge of first instance. Each case must depend on its own circumstances; but if, looking at the affidavit, the court finds that the claim to privilege is formally correct, and that the documents in respect of which it is made are sufficiently identified and are such that, prima facie, the claim to privilege would appear to be properly made in respect of them, then, in my judgment, the court should, generally speaking, accept the affidavit as sufficiently justifying the claim without going further and inspecting the documents. …[[1951] 1 KB 134 at 146]”[85]
[84] [1979] FCA 33; (1979) 36 FLR 244
[85] [1979] FCA 33; (1979) 36 FLR 244 at 246-247
Unquestionably, his Honour’s approach is the correct approach in the courts and even in a matter in this Tribunal in which production of a document is resisted on the grounds of legal professional privilege. Is it the correct approach when considering a claim for exemption under s 42 of the FOI Act? I think not. As I have already said, the agency claiming the exemption carries the onus of establishing that the decision it made was justified. My task is to exercise the power given to it by
s 25(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act) to “… review any decision in respect of which application is made to it under any enactment.” In Drake v Minister for Immigration and Ethnic Affairs, Bowen CJ and Deane J explained that:
“ The function of the Tribunal is … an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. …
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. …”[86]
[86] (1979) 2 ALD 60; 24 ALR 577 at 68; 589
When considering whether or not a document is exempt from disclosure, my obligation is to make the correct decision alone. I cannot necessarily make what some may in some circumstances think may be the preferable decision for s 58(2)[87] of the FOI Act removes any discretion that the Tribunal might otherwise have to give access to a document containing exempt matter. As it is my duty to make the correct decision, I think that I should examine the documents claimed to be exempt as a matter of course. The course adopted in the courts has been adopted in a context in which decisions are made on the cases put by the parties in their pleadings. Provided I act with procedural fairness and in accordance with s 39 of the AAT Act, I am not confined in that way because I must reach the objectively correct decision on the material available to me.
Putting aside issues of waiver, has the AGD legal advice ever been privileged from production on the ground of legal professional privilege?
[87] “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.”
I have asked myself whether the AGD legal advice has been privileged from production on the ground of legal professional privilege at some earlier time. In answering that question, I have, for the moment, put aside and consideration of whether that privilege might have been waived for I will come back to that issue later in these reasons.
The AGD legal advice, I find, is advice sought and provided on a matter relating to the legislative and regulatory powers of the Commonwealth. It is a matter on which legal advice may properly be sought and, I find, has been sought in this matter. It was legal advice prepared in 1995 by an officer within OGC of the AGD. Mr Robert Orr is the Chief General Counsel of the OGC now located within the Australian Government Solicitor. In 1995, he was also working within OGC. I accept his evidence of the structural relationship of OGC to AGD and find that, at the time, OGC was located within AGD. I also accept that OGC, like AGD provided legal services to Commonwealth departments and agencies. When providing advice, the OGC did not have any dependence upon or attachment to those it advised. They acted as independent lawyers and legal advisers to Commonwealth departments and agencies. Officers in OGC who were lawyers described themselves as counsel in order to distinguish themselves from those in AGD who were litigators, who held positions of lawyers, and others who described themselves as legal officers, senior legal officers or principal legal officers. The designation of “counsel” indicated that the author of the advice was a lawyer working in OGC but not at the level of seniority of a senior executive lawyer.
WAIVER OF LEGAL PROFESSIONAL PRIVILEGE
Applying the principles I have set out above, I must now identify the issues that must be resolved before I can decide whether or not DHA, or its predecessor, DHSH, has waived legal professional privilege. I begin my search for them with the case of Mann v Carnell,[217] in which Gleeson CJ, Gaudron, Gummow and Callinan JJ set out the principles underpinning waiver of legal professional privilege at common law. Their Honours said:
“… Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to be the benefit of such confidentiality, and who may relinquish that entitlement. It is the inconsistency between the conduct of the client and the maintenance of the confidentiality which effects the waiver of the privilege …. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication …, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received ….
Waiver may be express 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. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law …. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank … [(1993) 35 NSWLR 110], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of confidentiality of the communication. 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.”[218]
[217] [1999] HCA 66; (1999) 201 CLR 1; Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ; McHugh J dissenting
[218] [1999] HCA 66; (1999) 201 CLR 1 at [12]-[13]; 13
Considering the earlier case of Goldberg v Ng,[219] their Honours found that “… the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege.”[220] They referred specifically to the dissenting judgment of Gummow J when he approved the passage from a judgment of Jordan CJ when he had said:
“The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client.”[221]
[219] [1995] HCA 39; (1995) 185 CLR 83; 132 ALR 57; 69 ALJR 919; Deane, Dawson and Gaudron JJ and Toohey and Gummow JJ dissenting
[220] [1999] HCA 66; (1999) 201 CLR 1 at [30]; 14
[221] Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 355
In their majority judgment in Mann v Carnell, Gleeson CJ, Gaudron, Gummow and Callinan JJ concluded by returning to the purpose for which the privilege exists and the role that plays in determining when that privilege is waived:
“… 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. …”[222]
[222] [1999] HCA 66; (1999) 201 CLR 1 at [34]; 15
They drew support for this proposition from the dissenting judgment of Gummow J in Goldberg v Ng when he said:
“… [T]he question of “fairness” involves an inquiry as to whether the facts supply a sufficient reason for depriving the client of the form of protection which the law confers upon communications between solicitor and client. In approaching any particular case in this fashion, it is also to be borne in mind that legal professional privilege is not a mere rule of evidence but a substantive and fundamental common law doctrine, a rule of law, the best explanation of which is that it affords a practical guarantee of fundamental rights. Thus, English decisions, … which approach the question of waiver of legal professional privilege on the footing that what is at stake is a rule of evidence, may underestimate the significance of that which, it is contended, has been abrogated by imposition of law.”[223]
[223] [1995] HCA 39; (1995) 185 CLR 83; 132 ALR 57 at 120-121;84, per Gummow J
The principles have been applied in subsequent cases. In Bennett v Chief Executive Officer of the Australian Customs Service,[224] the Full Court of the Federal Court considered whether reference to legal advice in a letter from the Australian Government Solicitor (AGS) to Mr Bennett’s solicitors amounted to a waiver of that privilege. The AGS were the solicitors for the Australian Customs Service (ACS) and the letter was written to Mr Bennett’s solicitors. Mr Bennett was an officer of the ACS and President of the Customs Officers’ Association. The ACS had taken disciplinary proceedings against him in relation to public comments he had made concerning the conduct of customs matters. Mr Bennett had instituted proceedings in the Federal Court as a consequence. AGS wrote to Mr Bennett’s solicitors with a proposal to settle the proceedings. In the course of the letter, they made various references to the advice that they had given ACS regarding the operation of r 7 of the Public Service Regulations generally and regarding r 7(13) in particular. As an example, the AGS wrote that it had now advised ACS that r 7(13) did not prohibit all public comment on matters or public administration and went on to elaborate upon its opinion.
[224] [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52
The court below had drawn a distinction between the conclusions that can be drawn from legal advice or its logical result and the reasoning leading to that conclusion or result. To disclose the former, his Honour had decided, was not inconsistent with the maintenance of confidentiality although, in any given case, there would be questions of fact and degree. There would be cases, he said, where the detail of the advice has been disclosed to such an extent that it lacks congruity to make the disclosure but to seek to keep the actual advice confidential.[225]
[225] [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52
Gyles J, with whom Tamberlin J agreed, said on appeal that:
“… The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure.”[226]
[226] [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52
Tamberlin J observed:
“… In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if had simply been asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case.”[227]
This point was emphasised by Young J in AWB Ltd v Cole (No 5)[228] when he expressed his view that:
“… it is well established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice.”[229]
[228] [2006] FCA 1234; (2006) 155 FCR 30
[229] [2006] FCA 1234; (2006) 155 FCR 30 at [163]; 76
This issue had been touched upon in the earlier case of Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd.[230] Kirby J did so in the context of an application for a stay of the ruling by the trial judge, Rolfe J, that the applicant disclose a legal advice to which it had referred in a Part B statement issued to its shareholders in response to a takeover bid. In the Part B statement, the applicant had said “Ampolex maintains that the correct ratio is 1:1 [shares; convertible notes] and has legal advice supporting this position.” Kirby J was not required to come to any final view on waiver on a stay application but he was required to consider whether the applicant would have substantial prospects of success. He said:
“… I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents. … [A]t least in respect of the substance of the legal advice supporting Ampolex’s assertion about the correct ratio, which is in contest here, it is strongly arguable that the public reference to the supporting legal advice, waived the privilege as to the precise content of the legal advice on that point. …”[231]
[230] [1996] HCA 15; (1996) 137 ALR 28; 70 ALJR 603
[231] [1996] HCA 15; (1996) 137 ALR 28; 70 ALJR 603 at 34; 607
In Mann v Carnell the majority had said that what brings about waiver is inconsistency between the conduct of the client and maintenance of the confidentiality. Where necessary, the courts will also inform themselves about fairness but they will not determine waiver by reference to some overriding principle of fairness operating at large. In those cases in which fairness is relevant, Young J said that “… Fairness presupposes a balancing of interests between parties who are in dispute. In that context, partial disclosures raise a question of fairness because there is the capacity to mislead one party to the dispute to his or her detriment. …”[232]
[232] [2006] FCA 1234; (2006) 155 FCR 30 at [132]; 68
In applying the principles in Mann v Carnell, Young J said that:
“… the starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material …”[233]
[233] [2006] FCA 1234; (2006) 155 FCR 30 at [134]; 68
There are examples of cases both finding that legal professional privilege has been impliedly waived and finding that it has not. Some are given in the judgment of Young J. An example of a case in which legal professional privilege had not been impliedly waived was that of Osland v Secretary, Department of Justice.[234] Ms Osland had been convicted and sentenced to imprisonment for murder. Following unsuccessful appeals, she petitioned the Governor of Victoria for mercy. The Attorney-General for Victoria issued a press release stating, in part:
“ This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied.
After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.
The Governor has accepted this advice and denied the petition.”[235]
[234] [2008] HCA 37; (2008) 234 CLR 275; Gleeson CJ, Gummow, Kirby, Heydon and Kiefel JJ; Hayne J dissenting
[235] [2008] HCA 37; (2008) 234 CLR 275 at [15]; 286 per Gleeson CJ, Gummow, Heydon and Kiefel JJ
When Ms Osland requested access to the joint advice under the Freedom of Information Act 1982 (Vic), the Department of Justice denied her that access on the basis that it was subject to legal professional privilege and so exempt from access. That ground of exemption is set out in s 32. Section 50(4) of the State legislation permits access to be given to documents that would otherwise be exempt under certain provisions, including s 32, where the Victorian Civil and Administrative Tribunal (VCAT) is of opinion that the public interest requires that access to the document should be granted under that legislation. VCAT decided that the joint advice was subject to legal professional privilege and that the privilege had not been waived but that access should be given under s 50(4). The Court of Appeal came to the same view regarding legal professional privilege but held that there was no basis on which the public interest could require that access be given.
On appeal to the High Court, both Ms Osland and the Secretary of the Department of Justice had agreed that the principles in Mann v Carnell should be applied. They began their substantive consideration of the issue with the statement:
“ Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver “imputed by operation of law” …. It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances. …
The conduct of the Attorney-General in issuing the press release and including in it certain information about the joint legal advice is to be considered in context, which includes the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure.”[236]
[236] [2008] HCA 37; (2008) 234 CLR 275 at [45]-[46]; 296-297 per Gleeson CJ, Gummow, Heydon and Kiefel JJ
The majority examined the power to grant a pardon and the general practice that reasons for decisions on petitions for pardons were not made public. A petition for a pardon does not necessarily imply an admission of guilt or an assertion that there has been a wrongful conviction. It is not based on a legal right but amounts to an appeal to executive discretion originating in the royal prerogative. The majority then turned to the press release:
“ The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave their advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant. If she had a legal right to reasons for the decision, then she still has it. If she had no such right, the press release would not deprive her of anything to which she was entitled. What the Attorney-General said did not prevent the appellant from making public her petition, or any part of it, as and when she desired.
Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in terms of the advice will depend upon the circumstances of the advice. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Ltd … [(2005) 65 IPR 442 at 447 [26]], questions of waiver are matters of fact and degree. …”[237]
[237] [2008] HCA 37; (2008) 234 CLR 275 at [48]-[49]; 298-299
IS REFERENCE TO THE GOVERNMENT RESPONSE A BREACH OF PARLIAMENTARY PRIVILEGE?
As I said earlier in these reasons, I may have regard to the proceedings of Parliament in order to ascertain historical facts or events. Those historical facts or events include ascertaining what words were spoken and acts done but only if their only relevance is that they were spoken or done. If judgments must be made or conclusions drawn as to why they were said or done or their accuracy or appropriateness questioned, regard may not be had to them for to do so would be to draw inferences or conclusions from them. If judgments must be made or conclusions drawn about the accuracy or appropriateness of what is said or done outside Parliament, the proceedings of Parliament cannot be used as part of the material to make that judgment or conclusion because to do so requires inferences or conclusions to be drawn about those proceedings.
When considering whether or not legal professional privilege has been waived, I must analyse the acts and omission of the Commonwealth and decide whether they are inconsistent with its being permitted to maintain the confidentiality of the AGD legal advice. That requires me to consider the context in which that advice was given and received and the purpose of the Commonwealth in disclosing both that it was made and some part of its contents.
The record of the Parliamentary proceedings incorporating the Government Response would be part of the evidentiary material that would be relevant in reaching a conclusion. If mere disclosure in a public record were relevant, I would be able to have regard to the Government Response without being in breach of s 16(3)(c) of the PP Act. Mere disclosure is relevant when deciding whether the Commonwealth is entitled to resist disclosure of a document on the basis of public interest immunity. As Gibbs ACJ said in Sankey v Whitlam, once a document has been published, it is impossible to say that the public interest requires that it not be produced or given in evidence. Mere publication and even unrestricted disclosure are not of themselves relevant criteria in determining whether or not legal professional privilege has been waived. The criterion is whether publication and the unrestricted disclosure that must necessarily follow from its incorporation in Hansard is inconsistent with the Commonwealth’s being permitted to maintain the confidentiality of the AGD legal advice. The two are very different issues. The first requires nothing more than a finding that the publication has been made. The second requires me to consider the circumstances in which the reference to the AGD legal advice was made in the Government Response and the circumstances in which the Government Response was itself given. In order to come to a view on that, I would have to draw an inference or conclusion from the Parliamentary proceedings. To do so would be contrary to s 16(3)(c) of the PP Act and I can have no regard to it.
HAS THE COMMONWEALTH WAIVED LEGAL PROFESSIONAL PRIVILEGE?
The question I must decide is whether, having regard to all of the evidence other than that in the Parliamentary proceedings, the conduct of DHSH in relation to the AGD legal advice has been consistent with the maintenance of the confidentiality which the privilege is intended to protect. In so far as notions of fairness are relevant, I may consider whether it is fair for DHA to maintain a claim for confidentiality over the AGD legal advice in view of its conduct, and that of its predecessor Department, in relation to that advice.
There are two publications to which I must have regard. The first is its publication in the form of a summary that was made for TWG. The AGD legal advice was not sought and obtained for TWG but at the request of DHSH on 6 November 1995. The Minister for Human Services and Health had established TWG a few months earlier on 26 June 1995. Its members, I have found, comprised both officers of DHSH and persons who held positions in State Departments or in private enterprise. TWG was established as a body to provide expertise and advice to DHSH on possible options and strategies for tobacco health management including the impact of broader health promotion issues on tobacco health management. Despite its multi-representational membership, it was carrying out a function related to the administrative functions of DHSH. On the basis of the terms of the letter inviting them to become members, I am satisfied that each member undertook to ensure that their deliberations and activities as members of TWG remained confidential. I have reached that conclusion despite the fact that I do not have any copies of the signed copies of the letter acknowledging that they agreed to this condition. The fact that they took up their positions is implied acceptance of the condition. The obligation to maintain confidentiality only persisted until a report or other document became publicly available. They were disbanded before that occurred.
It was in this context that DHSH gave TWG a summary of the AGD legal advice. It was given to a circumscribed number of persons who were carrying out a function for the Commonwealth and under an obligation not to disclose it. It was a very circumscribed version of the AGD legal advice disclosed to persons working on a related issue as part of the Commonwealth administration. In these circumstances, I do not consider that its publication to TWG in summary form is inconsistent with the claim for privilege now being made by DHA. I do not consider that the privilege has been impliedly waived.
The second publication relied upon is the publication of the summary of the AGD legal advice to members of MTAG in response to a request by one of its members. I find that membership of MTAG was not limited to Commonwealth officers but included State health officials and representatives of non-governmental organisations with expertise in tobacco control and health promotion. Its terms of reference were all directed to advising the Minister on a national strategy for tobacco control. Unlike TWG, I find that its members were not asked to undertake to ensure that their deliberations and activities as members of MTAG remained confidential. As a Ministerial advisory group it might be expected that they would keep their deliberations confidential but I have no evidence to that effect and, without it, cannot make that finding.
That is only one of the matters relevant in considering whether disclosure of the summary of the AGD legal advice to members of MTAG has waived the privilege now claimed for the AGD legal advice itself. Another is the very limited detail given in the summary. A third is that it was disclosed only to a group of persons engaged to provide advice to a Minister on a related topic. There is no inconsistency between maintaining the privilege when access is requested under the FOI Act and its circumscribed disclosure for purposes connected with public administration in the past. I do not consider that the privilege has been impliedly waived.
Finally, I have considered whether disclosure of the summary of the AGD legal advice to PML and BATA in this case amounts to an implied waiver of privilege. Again, I do not think that this is so. It has been disclosed to the parties as a document relevant to the proceedings. Although a confidentiality order has not been sought under s 35 of the AAT Act to protect it from public disclosure, I do not consider that its disclosure is inconsistent with the claim of privilege made for the AGD legal advice. I repeat that it is a circumscribed version of the AGD legal advice disclosed for the purposes of the proceedings in this Tribunal and not otherwise disclosed. I do not consider that its disclosure leads me to conclude that privilege has been impliedly waived and I find that it has not.
For the reasons I have given, I would affirm the decision of DHA dated 30 August 2009 affirming an earlier decision dated 22 July 2009 refusing the request for access dated 17 June 2009 made by PML. I would also affirm its decision dated 21 June 2010 affirming an earlier decision dated 20 May 2010 refusing the request for access dated 17 June 2009 made by BATA.
I certify that the two hundred and three paragraphs are a true copy of the reasons for the decisions herein of
Deputy President S A Forgie.
Signed: ....................................................................
Leah Berardi Associate
O’LOUGHLIN SM
204. I have had the advantage of the Deputy President’s reasoning set out in a draft of her reasons for decision.
205. The relevant facts are as set out in the Deputy President’s reasons and the acronyms and abbreviations used by the Deputy President are adopted below.
206. I agree with the conclusions reached by the Deputy President for the disposal of these applications and will state my reasons briefly.
207. The Applicants seek access to the AGD legal advice to the DHSH claiming that it is no longer exempt from production under s.42 of the FOI Act on grounds of legal professional privilege (LPP) because, they say, any privilege that may have inhered in the AGD legal advice has been waived.
The waiver, it is asserted, arose by:
(a)disclosure of aspects of the AGD legal advice in the Government Response; and/or
(b)disclosure of a summary of the AGD legal advice to the TWG; and/or
(c)disclosure of a summary of the AGD legal advice to the MTAG.
To address the Applicants’ assertions it is necessary to consider:
(a)whether the AGD legal advice was capable of being privileged; and
(b)if the AGD legal advice was capable of being privileged, the rules by which a conclusion as to waiver of LPP is reached; and
(c)whether those rules operate to the effect that any privilege in the AGD legal advice has been waived.
210. The authors of the AGD legal advice were lawyers engaged and employed to give legal advice to Government and Departments of Government. The AGD legal advice was produced while the authors were engaged in that activity and capacity. That advice was of an independent character sufficient to bring it within the LPP doctrine.
211. Waiver of LPP in a communication, or a record of one, on the basis of disclosure of the communication or its content can be a consideration of fairness but fairness is not the only consideration. A broader consideration of inconsistency of maintenance of the confidential nature of the communication with the disclosure that has been made is required. Not all disclosures of contents of confidential privileged communications amount to a waiver of LPP. Accordingly the mere fact of disclosure of the content of privileged communications may not be sufficient to operate as a waiver. More can be required. It is necessary to form a judgment as to the conduct of the party entitled to assert LPP and whether that conduct is inconsistent with maintaining the privilege.[238]
[238]Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ.
212. The disclosures of summaries of the AGD Advice to the TWG and the MTAG were disclosures to a small group engaged in particular work aligned with some of the work of the DHSH and which advanced the work of the DHSH in the area that was related to the subject matter of the AGD legal advice. The conclusion can be readily reached that the TWG and the MTAG would have been obliged to observe and maintain the confidential nature of the advice that was disclosed. Accordingly, the conclusion can be reached that maintenance of LPP is not inconsistent with these disclosures.
213. The disclosure in the Government Response requires different considerations to be addressed.
214. It is necessary to consider first whether the Government Response was a proceeding of Parliament and, if it was, second whether s.16(3)(c) of the PP Act operates to prevent the Applicants from relying on the Government Response to maintain that any LPP has been waived.
215. The Government Response was presented to the Senate on 3 September 1997 and was the subject of a request for leave that it be incorporated into Hansard. It was the subject of a motion that it be noted by the Senate which, after debate, was affirmed. The leave to incorporate the response into Hansard was given and the response subsequently appeared in Hansard records of proceedings.
216. These actions fall within the wide range of matters and actions contemplated by s.16(2) of the PP Act.[239]
[239]See as an example Habib v Commonwealth of Australia [2008] FCA 1494 at [6] per Perram J.
217. Section 16(3)(c) of the PP Act prohibits reception of evidence concerning proceedings in Parliament for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings.[240] That section does not prevent reception of evidence concerning parliamentary proceedings merely to establish the fact of occurrence of particular events as part of those proceedings, however where what is sought is a judgement to be made upon what occurred in the proceedings then evidence cannot be led.
[240]See Habib v Commonwealth of Australia [2008] FCA 1494 at [6] per Perram J.
218. The operation of s.16(3)(c) in the context of what is required to determine whether or not a disclosure of the content of a privileged communication operates to waive that privilege means that the Government Response cannot be relied on as an act constituting a waiver of LPP. For there to be a waiver, a judgment is required. It is necessary to judge whether the behaviour of the person entitled to assert LPP is such that it is inconsistent with maintenance of the privilege. That judgment is the very thing that attracts s.16(3)(c).
219. Accordingly the Applicants cannot rely on the Government Response to show that LPP has been waived.
220. The necessary conclusion is that the Applicants fail in their applications.
I certify that the seventeen paragraphs are a true copy of the reasons for the decisions herein of
Senior Member F D O’Loughlin.
Signed: ....................................................................
Leah Berardi Associate
Dates of Hearing 29 and 30 November 2010
Date of Decisions 30 March 2011
2009/4800
Counsel for the Applicant Mr S Mcleish, SC
Mr C Young, JC
Solicitor for the Applicant Mr P O’Donahoo
Allens Arthur Robinson
Counsel for the Respondent Mr P Hanks, QC
Ms R Graycar, JC
Solicitor for the Respondent Mr A Chand
Australian Government Solicitor
Counsel for the Party Joined Mr A Roberston, SC
Solicitor for the Party Joined Mr S Stern
Corrs Chambers Westgarth
2010/2728
Counsel for the Applicant Mr A Roberston, SC
Solicitor for the Applicant Mr S Stern
Corrs Chambers Westgarth
Counsel for the Respondent Mr P Hanks, QC
Ms R Graycar, JC
Solicitor for the Respondent Mr A Chand
Australian Government Solicitor
Tamberlin and Gyles JJ; Emmett J dissenting
at [61]; 118
at [65]; 119; 237; 265; 136
at [6]; 104; 223; 250; 121
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