British American Tobacco Australia Ltd v Secretary, Department of Health & Ageing [2012] HCATrans 193

[2012] HCATrans 193

[2012] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M117 of 2011

B e t w e e n -

BRITISH AMERICAN TOBACCO AUSTRALIA LTD

Applicant

and

SECRETARY, DEPARTMENT OF HEALTH & AGEING

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 9.32 AM

Copyright in the High Court of Australia

MR M.F. WHEELAHAN, SC:   May it please the Court, I appear with my learned friend, MR C.M. ARCHIBALD, for the applicant.  (instructed by Corrs Chambers Westgarth)

MR P.J. HANKS, QC:   Your Honours, I appear with MS R. GRAYCAR, for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Wheelahan.

MR WHEELAHAN: Your Honours, there are two features of this case which, we submit, invite a grant of special leave. The first feature is to correct the errors of principle concerning waiver of privilege, which appear in the reasons of the Full Court of the Federal Court. The second reason is to consider whether Article 9 of the Bill of Rights as amplified by section 16 of the Parliamentary Privileges Act prevents a court imputing a waiver of privilege on either of two grounds.  Firstly, the fact – that is the historical fact that the Government response was tabled in the Parliament and, thereby, made public.  Or, secondly, the fact that the Commonwealth published the Government response on a Government website thereby placing a summary of a legal advice in the public domain.

GUMMOW J:   Now, what is the continued utility of this litigation?

MR WHEELAHAN: The continued utility is that there is a legal right to access to documents under section 11 of the Freedom of Information Act.  There are no criteria to be satisfied in order to seek the information and there is very limited discretion to refuse it.  One of the purposes of the Freedom of Information Act is to enable access to government documents so that there might be accountability of government and, secondly, access to documents facilitates political discussion.

HAYNE J:   That tells me a lot about the principles that are engaged.  What is the practical utility?

GUMMOW J:   To your client.

MR WHEELAHAN:   To ascertain whether or not the documents might be deployed in a political discussion.  Your Honours, there were three summaries of the Attorney‑General’s advice or the departmental advice that were the subject of the appeal to the Federal Court.  Firstly, the summary in the Government response that is the one I referred to as being tabled in the Senate and also published on the internet.  Secondly, a summary of the advice given to members of the tobacco working group, which summary was also tendered in the AAT and, thirdly, a further summary given to a ministerial tobacco advisory group.  Now, in relation to that third summary there was no direct evidence of the content of the summary, so for the purposes of this special leave application, I will focus on the first two summaries which I have identified.

Your Honours, confidentiality is at the heart of legal professional privilege and the publication of summaries of advice in the Parliament and on a government website and by tendering, in evidence, in the AAT which was a forum which was open, in our submission, is a full and complete giving‑up of the confidentiality in the advice. Now, in relation to the first summary I identified, that is in the government response. In the AAT, there was no consideration as to whether a publication of that summary, gave rise to a waiver of privilege on the merits. The reason for that was that, firstly, the AAT considered that section 16 of the ParliamentaryPrivileges Act prevented that inquiry from being undertaken and, secondly, the AAT did not consider separately the publication by the government on the internet.

The failure to consider the publication on the internet was accepted by the Federal Court as being an error and, in our submission, that was at least one proper question of law before the Full Court of the Federal Court. When the Federal Court came to consider the first summary, the court upheld the AAT’s view about the operation of section 16 of the Parliamentary Privileges Act in relation to the tabling in Parliament but, secondly, held that in relation to the publication on the internet, there was no waiver of privilege.  And it did so, in our submission, by applying erroneous principle.  Could I take the Court to the reasons of the Federal Court, briefly at page 124 of the application book, at paragraph 47?  Now, the Court will see that the Federal Court held that:

it cannot be said that the respondent, or the executive government generally is seeking to deploy a partial disclosure –

and, the second sentence is:

That is, in our opinion, decisive of this appeal.

Now, it is not to be supposed that the Federal Court slipped into some incorrect test because that was reinforced by what we see in paragraphs 57 and 58 on page 126.  The Court said:

On the authorities to which we have referred, it is the deployment of the Government Response to achieve some advantage . . . which gives rise to the possibility of inconsistency.

and, then in 58:

There is no litigation on foot –

Now, in our submission, that is a distortion of the principles found in Mann v Carnell and also in Osland.  The inconsistency is at a higher level.  The inconsistency is conduct which is inconsistent with the maintenance of confidentiality over the legal advice.  Now, in some cases, particularly where there is litigation that deployment of advice or the deployment of issues in litigation, may give rise to a waiver of privilege but it is not the test.

CRENNAN J:   Maybe it was only intended that language as a gloss on the test  that is to say that an unnecessary gloss, in respect of determining whether there is an inconsistency in all the circumstances in maintaining the privilege.  I am only suggesting how does it get away from the test in the way that you suggest?

MR WHEELAHAN:   Because of the second sentence in paragraph 47 where the Court says:

That is, in our opinion, decisive of this appeal.

The Court has directed its mind only to the issue of deployment.  Could I take the Court, to illustrate this to the ‑ ‑ ‑

HAYNE J:   Well, deployment in the sense of deployment for advantage or disadvantage.

MR WHEELAHAN:   Yes.

HAYNE J:   As I understand what you are say, is it that you say there is error by introducing the notion of advantage or disadvantage?  Is that what you are fasting on, or is it different?

MR WHEELAHAN:   The error is directing attention only to the issue of deployment, an advantage or disadvantage where that is no more than a relevant consideration in determining whether or not there is inconsistency.  In this case, where it is not a circumstance involving an adversarial process where what is relied upon is the waiver of confidentiality, to look only at deployment is to direct attention to a false issue.  Could I take the Court, very briefly, to a passage of the Court’s reasons in Osland which is under tab 6 of the book?  I invite the Court to look at page 293, paragraph 35.  Commencing on page 292, their Honours set out an extensive passage from the reasons of Justice Maxwell in the Full Court and, in the last paragraph of the passage which appears in the middle of page 293, his Honour stated:

there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, and wishing to maintain the confidentiality of the advice itself. 

His Honour then says:

This was not a case of a party to litigation ‘deploying’ a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication.  Nor was it ‘the laying open of the confidential communication to necessary scrutiny’.

In our submission, what Justice Maxwell is to be regarded as doing there, is raising points of contra‑distinction.  His Honour was not purporting to articulate a principle of waiver, referrable to the concept of deployment.  Now, the Court should note that in paragraph 50 of the reasons at page 299, their Honours said:

The reasoning of Maxwell P was correct.

But, the reasons of Justice Maxwell, in our submission, are not to be regarded as substituting for the test of inconsistency, a test of deployment because it does not accommodate cases outside the adversarial process where, as we say, exists here there has been a plain waiver of confidentiality over the advice which, in our submission, is inimical to the maintenance of the privilege. 

Your Honours, in the Federal Court, the Secretary submitted that even the internet publication of the government response was covered by section 16 of the Parliamentary Privileges Act and that submission was rejected by the Federal Court on the grounds that there was a distinction to be drawn for the purposes of section 16(2)(c) of the ParliamentaryPrivileges Act between publications authorised by a house and publications that are ordered by a house in the sense of – and this is my word – “directed” by the house.  In our submission, the Federal Court’s reasons, in that regard, were correct and that is a valid distinction and, accordingly, the publication by the Commonwealth, via the internet, of the government response is outside the terms of the Parliamentary Privileges Act.

Could I turn now to the second of the two publications upon which we rely and that is the publication to the members of the tobacco working group which was tendered in evidence in the AAT? In our submission, it is necessary for us to rely only on the tender in the AAT. Under section 35 of the Administrative Appeals Tribunal Act, proceedings in the AAT are in public.  There is no order made by the AAT to preserve confidentiality over the relevant exhibit containing the second summary.  In our submission,

therefore, the Federal Court ought to have applied Mann v Carnell that is the Mann v Carnell inconsistency test and not the deployment test and found that it was a necessary consequence of tendering the summary in the AAT that there was no longer confidentiality over the advice, and that was inconsistent with the maintenance of any privilege in the advice.

GUMMOW J:   Did the Full Court advert to the public nature of the AAT proceedings?  I rather thought not, but I may be wrong.

MR WHEELAHAN:   My recollection is certainly it did by referring to the AAT’s reasons in paragraph 62 on page 127.  It is very brief but, in our submission, that is to be read as picking and endorsing the AAT’s reasons.

GUMMOW J:   But did the AAT advert to that perception which speaks of its public sitting?

MR WHEELAHAN: Yes, it did and the AAT, also, identified that no confidentiality order had been made under section 35(2) of the AAT Act. I am just trying to pick up where the AAT makes that reference. My learned friend refers to 94 of the application book at paragraph 202.

GUMMOW J:   Thank you.

MR WHEELAHAN:   So, for those reasons, it is our submission that the two matters I identified are suitable for special leave.  If the Court pleases.

GUMMOW J:   Thank you.  Yes, Mr Hanks.

MR HANKS:   I will address the two matters that my friend has advanced.  I will deal with the second, first, if I may?  It is clear from paragraph 202 of the Tribunal’s reasons to which we have been taken, that the Tribunal made a finding of fact in relation to the question whether advancing a copy of what we will call the “WTG summary” in the proceedings in the Tribunal, as part of the then respondent’s duty of disclosure to the Tribunal, whether that was inconsistent with maintaining confidentiality in the underlying advice.  Recalling that the summary in question is quite short, the advice of which it is said to be a summary was given in December 1995. 

Nevertheless, the Tribunal made those findings of fact in paragraph 202.  The appeal to the Federal Court was, of course, an appeal under section 44.  It could only be on a question of law and, indeed, we argued, we advanced the point before the Full Court on behalf of the respondent that the challenge to what was effectively, the challenge to the Tribunal’s finding that there was no waiver in the tender of that summary to the Tribunal.  Nothing inconsistent with confidentiality had occurred through that tender.  That was a finding of fact.  Might I add as a footnote there, your Honours, it is notorious that questions of waiver are questions of fact and degree as this Court said in Osland, endorsing Justice Tamblin’s observations in an earlier case.

For that reason, we said to the Full Court, this question which the then appellant sought to agitate was not a question of law and not a proper subject of an appeal under section 44.  Your Honours, will observe that the Full Court accepted that there was force in that submission that did not dispose of the ‑ ‑ ‑

GUMMOW J:   The Full Court did not say that the proceeding before it was incompetent.

MR HANKS:   The proceeding before it was not incompetent, your Honour, because there was a question of law raised by the appeal.  But, that does not allow one to drag into the proceeding, questions which are questions of fact and that was the submission which we put to the Full Court.  We maintain that position.  What our friends seek to do is ask this Court to third guess the Tribunal on a question of fact and that is not appropriate.  There is no doubt that the Tribunal asked itself the right question, “Was the tender of this summary to the Tribunal inconsistent with maintaining confidentiality?”  It answered the question.  It said “No, it is not.” 

Its principal reason or the two reasons that were offered in paragraph 202, one was that the summary was, itself, very constrained, a limited summary and the other was that the summary was tendered, for the purpose of assisting the Tribunal in carrying out its review on the merits of the decision not to disclose the underlying document. That is all we want to say about aspect, your Honours. Turning to the government response, in one sense the present application raises two questions. First, is the making of the government response to the Senate, protected by section 16(3) so that it was not open to the Tribunal or, indeed, to the Full Court or to any other court, to receive submissions and evidence for the purpose of drawing inferences about the making of that response?

The Tribunal and the Full Court concluded that section 16(3) did foreclose that possibility and we say, entirely correctly because the only way a finding could have been made that there was a waiver of privilege in the underlying advice, would have been if the Tribunal, as the finder of fact, concluded that the making of the response, the circumstances in which it was made and its content were inconsistent with maintaining confidentiality in the underlying advice. Necessarily, that involved the drawing of inferences from a tabling of the response and its content.

HAYNE J:   Inferences about what?

MR HANKS:   Inferences that advancing the government response which contained a summary of the advice was, as a matter of fact, inconsistent with maintaining confidentiality in the underlying advice.

HAYNE J:   What is the inference?  What is the process of reasoning that you are describing as inference which, I would understand to be, to proceed from observation (a) to conclusion (b), as the occurrence of a fact, a state of mind, as distinct from attributing a legal consequence to the event that happened?

MR HANKS:   Well, your Honour, I think I will have to start from this premise that the question whether there is waiver is a question of fact.  The question then is whether the conduct on the part of the privilege holder, is inconsistent with maintaining confidentiality.  Whether the disclosure is such and the circumstances in which the disclosure has been made are such, that the privilege‑holder is abandoning confidentiality is, of course, an objective fact.  It does not depend upon intention but one must look at all those circumstances.  Here the circumstances would be what was in the government response as a matter of what was its content?  The next question would be what was the context in which the disclosure in the government response was made? 

One would look at those matters and then one would infer whether, as a matter of fact, as a conclusion what was done was inconsistent with maintaining confidentiality in the underlying legal advice.  Here plainly the circumstances include the creation of the document the government response.  The evidence was, of course, uncontested it was accepted by the Tribunal that the document was created for a particular purpose, the purpose of tabling in the Senate in response to a report from a select committee.

So that was the purpose of its creation.  That was the context in which the document was created and the content of the document was a summary, in brief terms, of some aspects of an advice which the Government had received in 1995 made as, I think is appropriate to say, picking up some of the observations in, for example, Mann v Carnell and Osland, as a mean of informing the recipient that the government was taking the issue seriously and had obtained legal advice, but only that.  When one has regard to those underlying facts about this document that was tabled in the Senate, in our submission, it is clear that what the present applicant sought to do in the Tribunal and in the Full Court, and would seek to do here is to invite the Tribunal and then the court to draw inferences of fact from the tabling of that document and its content and that is prohibited by 16(3), paragraph (c). 

Then, the second aspect of the argument our friends have put to your Honours this morning, is that when the Full Court turned to the internet publication of the government response, the court first concluded that it was outside the protection of the Parliamentary Privileges Act and then, standing in the shoes of the Tribunal as it was entitled to under section 44 of the AAT Act, it made findings of fact to deal with the fact that the Tribunal had failed to deal with this particular publication.  The findings of fact that it made, we say, were entirely consistent with the authorities and did not involve any wrong application of the authorities.

Your Honours can see from the reasons of the Full Court in the application book – if I could ask your Honours to go to page 120?  Your Honours can see commencing at about paragraph 41 on page 120, there are quotations from Mann v Carnell stressing that the question of inconsistency is the critical question, inconsistency between the conduct of the privilege‑holder and maintenance of confidentiality.  On the following page there commences an extended quotation from the reasons for judgment of the President of the Court of Appeal in Osland and that extended extract carries over to the middle of the next page.  Then there is, on the next page and running to page 17, a quotation from this Court’s reasons for judgment, or at least the reasons for judgment of the majority in Osland. 

What runs through all of those, if I could put it as simply as possible, is the stress on whether there is a waiver depends upon the circumstances of the case and whether in those circumstances the requisite inconsistency exists between disclosure and maintenance of confidentiality.  There is a further extract from the majority’s judgment in Osland in this Court, running on page 123 to 124.  Again, the stress here is on the question of inconsistency and on page 124 and my friends have referred to the original, but on 124 at about line 20, the Full Court picks up that passage from Justice Maxwell’s reasons for judgment in Osland about in that case:

there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, and wishing to maintain the confidentiality advice itself.

and, running through to the end of the paragraph -

This was not a case of a party to litigation ‘deploying’ a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication.

What their Honours were looking at as a question of fact was, in our submission, directly parallel to the issue that had been dealt with in Mann v Carnell and in Osland a situation where the government had received legal advice on a particular question, a question of some controversy, and had made a selective disclosure of a part of the advice in a context – in a political context – in order to demonstrate that it had received advice.  Now, that is precisely the situation that we have here. 

We have, here, the Commonwealth Government preparing a formal submission to the Senate in response to the report of the select committee it was looking at generic packaging for cigarettes.  I have to address this to Justice Hayne, I am afraid, having warned those who were instructing me this morning to turn their phones off, your Honour, I omitted to do that and I apologise to the Court.  I will not look accusingly around me at the person who has brought the phone to the Court in the hope of distracting attention.  Now, if I could continue?  First, I am sorry.

GUMMOW J:   Do we know the date of this advice?

MR HANKS:   Yes, we do, your Honour.  I believe it is December 1995 and, I think, provided to the government on 14 December 1995.  The content of the summary which was what I wanted to take your Honours to quickly can be found on page 113 of the appeal book.  Your Honours will see at about line 40:

The reference in the Government Response to the AGD legal advice was in the following terms:

Now that, as your Honours can see, sets out a reference to:

advice from the Attorney‑General’s Department on the legal and constitutional barriers to generic packaging.

and identifies aspects of the advice.  It is on page 112, your Honours, that the date of 14 December 1995 appears on the very last line of the page.  I might go back to the point I had sought to make.  This case has many analogies, direct analogies to Mann v Carnell and Osland.  It is a case in which an aspect of the existence and the content of legal advice is disclosed for a particular purpose.  There are findings of fact that the disclosure itself involves no inconsistency with maintaining confidentiality in the underlying advice.  Presently, that finding is the finding made by the Full Court, standing in the shoes of the AAT under section 44. 

In our submission, it is clear from the analysis by the Full Court that they well understood that what they were looking for was inconsistency.  They picked up on the observation from the President of the Court of Appeal in Osland which was entirely apposite to the type of disclosure with which Osland was concerned and with which this case is concerned.  No deployment for forensic advantage and that is something that the Full Court

saw as of fundamental importance.  That put an end to the allegation of fact that there was inconsistency.  Thank you, your Honours.

GUMMOW J:   Yes, Mr Wheelahan.

MR WHEELAHAN:   Two points in reply, if your Honours please?  Our learned friend took the Court to page 113 of the application book.  What I referred to as the second summary is in paragraph 17 of the Full Court’s reasons.  The first summary is in paragraph 19.

GUMMOW J:   Is the third paragraph set out there in that quotation?  The third paragraph in the quotation in paragraph 17, at page 113, is that the consideration that gives continued life to this dispute:

A‑G’s also advised that further regulation –

et cetera.

MR WHEELAHAN:   Yes, but the second two points I wanted to address is, our learned friend made the submission that a finding of waiver is a finding of fact.  In our submission, this is not a case of express or intentional waiver.  It is a case of imputed waiver.  Waiver is imputed by operation of law.  So, in relation to the parliamentary internet publication, the Court looks at the fact of the publication, the fact of tabling as historic facts and determines whether, by operation of law, there is a waiver.  Secondly, in relation to tendering in the AAT, it is our submission, that tendering a document in a public forum such as a court, or the AAT, necessarily results in a waiver if the confidentiality and legal advice is abandoned.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 10.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.18 AM:

GUMMOW J:   The legal advice, the production of which is sought by this litigation, was provided as long ago as December 1995.  Whether there was a waiver of legal professional privilege in respect of the advice depends on whether there is inconsistency with its maintenance in the relevant circumstances.  The actual order of the Full Court is not attended by sufficient doubt to found a grant of special leave to appeal to this Court.  Special leave is refused with costs.

MR WHEELAHAN:   If the Court pleases.

AT 10.19 AM THE MATTER WAS CONCLUDED