Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) - [2021] AATA 249

Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2021] AATA 249 (17 February 2021)

Division

FREEDOM OF INFORMATION DIVISION

File Number

2020/3778

Re

Mark Dreyfus

APPLICANT

And

Attorney-General (Commonwealth of Australia)

RESPONDENT

DECISION

Tribunal
Justice McKerracher

Date 17 February 2021

Place Perth
The Tribunal:
(1)Considers that subject to allowing the Respondent an opportunity to be heard, the claim of privilege is maintained over the Documents identified at (3) below and is not maintained over the parts of the Documents identified at (4) below.
(2)Directs that within 10 days from the date of this decision, the Respondent file written submissions (not to exceed five pages) addressing which parts of the Documents should be released to reflect the reasons of this decision and with regard to the Tribunal’s view as expressed at (3) and (4) below.
(3)Considers that Documents 1, 2, 3, 4, 7 and 8 need not be produced as they are subject to legal professional privilege. To this extent only, the respondent’s revised decision of 8 April 2020 is affirmed.
(4)Considers that the following parts of Documents 5 and 6 must be produced as the respondent has waived legal professional privilege by the making of limited disclosures inconsistent with the maintenance of the privilege over those parts:
(a)Paragraphs 7 (including the two headings immediately preceding paragraph 7), 8, 9, 27 (but not the heading immediately preceding paragraph 27), 28, 29, 30, 31, 32, 33 of Document 5;
(b)A version of Document 6 without the redaction of the latter portion of the first paragraph of the email sent Thursday, 21 February 2019 10:16AM (at pages 54-55 of the T Documents);

[sgd]
Justice McKerracher
CATCHWORDS
FREEDOM OF INFORMATION – Legal Professional Privilege – Request for access to legal advice and associated documents provided to the Attorney-General – claim of implied waiver – whether privilege was impliedly waived by conduct inconsistent with the maintenance of legal professional privilege
LEGISLATION
Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2018 (Cth)
Freedom of Information Act 1982 (Cth) ss 32, 42, 42(1), 42(2), 54W(b)
Migration Act 1958 (Cth) ss 189, 196, 198B, 198C (repealed), 198AH, 198AD
CASES
Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 5) [2010] SASC 267
Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28
Attorney General (NT) v Maurice (1986) 161 CLR 475
Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100
Bennett v Chief Executive Officer of Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101
British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123
College of Law Ltd v Australian National University [2013] FCA 492
DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384
Federal Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341
Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275
Queensland Local Government Superannuation Board v Allen [2016 QCA 325
Secretary, Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425
REASONS FOR DECISION

The Applicant is a former Commonwealth Attorney-General and is currently the Shadow Attorney-General. He seeks review of the Respondent’s (the current Attorney-General’s) decision to refuse access under the Freedom of Information Act 1982 (Cth) (FOI Act) to (among other documents) legal advice provided to him about the operation of the “Medivac legislation”. The Respondent refused the request under s 42 of the FOI Act on the grounds that the two advices and six associated documents were subject to legal professional privilege.
As agreed between the parties, the only issue to be determined is whether the Respondent has waived privilege in relation to the legal advices and associated documents.
The Applicant contends that privilege over the legal advices and related documents was waived by the Respondent when he disclosed the substance of the advice in a media release and a series of media interviews. Accordingly, the Applicant contends that its request for access to the documents should be granted.
BACKGROUND
On 13 February 2019, the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth) was passed by the Commonwealth Parliament. The legislation is widely referred to as the “Medevac” or “Medivac” legislation. In short, the Medivac legislation amended the Migration Act 1958 (Cth) to require the relevant Commonwealth Minister to transfer asylum seekers held on Manus Island or Nauru to Australia for the temporary purpose of medical treatment if two doctors agreed that such a transfer was medically necessary. As the Respondent notes, the legislation was passed in both Houses of Parliament by non-Government members and without the support of the Government. Nonetheless, it remained for the Government to administer the Migration Act as amended by the Medivac legislation.
On about 20 February 2019, the Australian Government Solicitor (AGS) provided the Respondent with legal advice about the effect of certain provisions of the Medivac legislation.
On 21 February 2019, the Respondent published a media release titled “Labor’s medivac one-way ticket”. The release criticised the Medivac legislation on the basis of the legal advice received from the AGS. The release stated that “there may be no power [under the legislation] to return people to Manus or Nauru once they have arrived in Australia”. The release quoted the Respondent as stating:
“The Australian Government Solicitor’s Office has advised that Labor's amendment fails to include, or link to, sections of the Migration Act which provide the legal authority to return people brought to Australia under Labor's bill, once they have completed medical assessment or treatment.
This means anyone brought to Australia could remain in indefinite detention on Christmas Island.
…
The focus of the Government is now cleaning up Labor’s mess.”
The release noted that the Respondent was providing a “summary” of the AGS advice and attached a one page document titled “Precis: relevant legislative powers and effect of AGS legal advice” (Summary of AGS advice). The Summary first explained (in eight paragraphs) how the power to return medical transferees operated before the Medivac legislation was passed. It then set out (in a further three paragraphs) the “AGS advice” on the “problems with the return of transferees” under the Medivac legislation.
The Summary explained that the AGS advice was that the provisions introduced by the Medivac legislation, providing for the (mandatory) transfer of a person to Australia if two doctors agreed, were not linked to the existing (discretionary) provisions in the Migration Act that give the Minister the power to return transferees to Manus or Nauru. Thus, there was no power to return transferees that were the subject of a mandatory transfer to Australia.
On the day he published the media release, the Respondent gave several media interviews during which the Applicant contends the Respondent disclosed the substance of the AGS legal advice. Extracts are set out below with the portions on which the Applicant particularly relies for the waiver argument being italicised:
(a)Anna Caldwell, ‘Ticket to transfer could be one-way’, The Daily Telegraph, 21 February 2019:
“We’re now in possession of advice that raises the very serious prospect that the Labor drafting contains no way to remove medical transferees once they are brought here by two medical doctors,” Mr Porter said last night. “This has the undeniable effect of ending offshore processing.”
(b)Christian Porter, Interview with Laura Jayes and Kieran Gilbert: Sky News First Edition: Medivac; AWU raids, transcript, 21 February 2019:
“The new law that Labor brought in did not provide the legislative link to those other powers in the Act that allow for us to return someone. So the legal advice is, and it is quite clear this is a drafting error, a very considerable loophole, that there is no power to return. ... We will provide a very brief and succinct summary of the advice so that people can test this proposition. This is the sort of advice that you'd get and you hope it's not correct. But it appears to us that it is absolutely correct, it will no doubt be tested over the course of today. ... we do not waive privilege over our advice, and the reason why is because if we end up in one of these court cases that we've just discussed, we don't want the other side having all of our advice, which is not an unusual set of circumstances for government.”
(c)Christian Porter, Interview with Fran Kelly: RN Breakfast: Medivac; AWU raids; Helloworld, transcript, 21 February 2019:
“And the advice that we've received is that there is a very significant drafting error in the bill that Labor pushed through the Parliament which doesn't connect its new version of medical transfers, which are controlled obviously by doctors with very minimal discretion on the Minister. It doesn't connect that new version of medical transfers to the existing provisions that underwrite the Government's lawful ability to return people to Manus and Nauru. So the end effect is through a very considerable and serious legal loophole and poor drafting, people would be transferred medically on the request of two doctors from Manus and Nauru; they've come from a place where they're not in detention, where they are in the community; they'd be placed in detention on Christmas Island for medical assessment and we would have no lawful authority it appears to return them to Manus or Nauru.”
(d)Christian Porter, Interview with Alan Jones: 2GB Breakfast, transcript, 21 February 2019:
“So I won't waive privilege over that legal advice because if this comes to an argument, ultimately, we don’t obviously want to telegraph all of the ins and outs of that legal advice. We will be providing a summary of the problem that we say exists so that people can check whether or not that is correct. And look, this is advice I'd rather not receive, frankly. I hope the advice isn't correct but it strikes me that it likely is correct; and what the advice says is that the medical transfers that we've quietly and efficiently conducted for many months now connect themselves back to the powers in the Migration Act to return someone once the medical attention has finished.”
(e)Christian Porter, Interview with Deborah Knight: Channel 9 Today: Medivac, transcript, 21 February 2019:
“But in effect, a normal medical transfer that the Government has been conducting quietly and efficiently for many months connects back into the Act in a way that there is a power for the Government to remove someone back from where they came from - in this case, Manus or Nauru. The new Labor laws that were forced through the Parliament, with no debate and under a gag motion, don't connect back to the rest of the Act in the same way. So our best advice, very sadly at the moment, is that once someone arrives at the request of two doctors, we will not be able to send them back.”
(f)Christian Porter, Interview with Michael Rowland and Madeleine Morris: ABC News Breakfast: Medivac; Helloworld; weapon sales, transcript, 21 February 2019:
“Well, it’s not an advice that we would want to receive but the advice says that the Labor laws that were rushed through Parliament which require transfer of persons from Manus and Nauru to Australia on the say of two doctors, don't have any connection into the Act where the provision exists to remove them and return them back to Manus and Nauru. So in effect, the very bad drafting of these terrible laws means that this is a one-way ticket and that people would be permanently detained in this case on Christmas Island.”
THE FOI REQUEST
On 16 August 2019, the Applicant applied to the Respondent under the FOI Act for access to:
(a)the legal advice from the AGS provided on about 20 February 2019 relating to the Medivac legislation; and
(b) all documents containing instructions to the AGS relating to that advice.
On 16 September 2019, the Respondent identified eight documents as falling within the Applicant's request. He refused access to those documents on the basis of the legal professional privilege exemption in s 42 of the FOI Act.
The respondent attached a schedule to his decision of 16 September 2019 setting out a very brief description of each document which provided as follows:
(a)Document 1 (5 pages) – email exchange seeking and providing legal advice on 20 February 2019;
(b)Document 2 (4 pages) – email exchange seeking and providing legal advice on 20 February 2019;
(c)Document 3 (4 pages) – email exchange seeking and providing legal advice on 20 February 2019;
(d)Document 4 (4 pages) – email exchange seeking and providing legal advice on 20 February 2019;
(e)Document 5 (7 pages) – AGS legal advice of 20 February 2019;
(f)Document 6 (5 pages) – email and attachments of 21 February 2019;
(g)Document 7 (1 page) – email providing legal advice of 21 February 2019; and
(h)Document 8 (7 pages) – AGS Legal advice of 21 February 2019.
On 15 November 2019, the Applicant sought review of the Respondent’s decision by the Information Commissioner.
On 8 April 2020, the Respondent issued a revised decision granting access to part of Document 6. He maintained his refusal in respect of a “small part” of Document 6 and the entirety of the other seven documents (including the legal advices) on the basis of the legal professional privilege exemption in s 42 of the FOI Act.
Save for the redaction of personal identifying information in the email exchange and a part of one of the emails referring to ‘other advice’, Document 6 contains emails that attach draft and final versions of the Summary of AGS advice that was then published together with the media release.
On 28 May 2020 the Information Commissioner (by her delegate) decided not to undertake, or continue with her review under s 54W(b) of the FOI Act on the basis that she was satisfied it was in the interests of the administration of the Act that the decision be considered by the Tribunal.
THE FOI ACT
An agency or Minister must give a person access to a document of the agency or Minister on request, unless the document is an exempt document (FOI Act, s 11A).
Section 42(1) provides that a document is an exempt document if it “would be privileged from production in legal proceedings on the grounds of legal professional privilege”. Section 42(2) confirms that a document is not exempt under s 42(1) if the person entitled to claim privilege “waives that claim”.
LEGAL PRINCIPLES – WAIVER
The relevant principles as to legal professional privilege, when applying s 42 of the FOI Act, are those of the common law, not the Evidence Act 1995 (Cth): British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123 (BATA) (at [40]).
A waiver of legal privilege occurs when the party claiming the privilege acts inconsistently with the maintenance of the privilege. What brings about the waiver is the inconsistency that the court perceives (informed, where necessary, by considerations of context and fairness) between the conduct of the client and the maintenance of the confidentiality: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 per Gleeson CJ, Gaudron, Gummow and Callinan JJ (at [28]-[29]).
Waiver may be express or implied. Where waiver is implied, intent is not determinative but may be relevant.
Disclosure by a client of confidential legal advice will effect a waiver of privilege if such disclosure is inconsistent with the confidentiality that the privilege serves to protect. The relevant confidentiality is that between a client and their qualified legal advisor. As a majority of the High Court (Stephen, Mason, Murphy JJ) observed in Grant v Downs (1976) 135 CLR 674 (at 685):
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.
Whether a limited disclosure of the existence and effect of legal advice in a given context is inconsistent with maintaining the privilege will depend upon the circumstances of the case and matters of fact and degree. It is “well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege”: Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237; (2004) 210 140 FCR 101 per Gyles J (at [68]), Tamberlin J agreeing.
Where a communication merely refers to a person having taken and considered legal advice, that usually will not be sufficient to amount to waiver: Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28 per Kirby J (at 34). However some authorities suggest that “once the conclusion of the advice is stated, together with the effect of it ... there is an imputed waiver of the privilege”: see for example Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83. Gyles J in Bennett held (at [65]) that “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 Applicant adopts this reasoning and contends that it is not necessary that the reasons given in support of the advice be disclosed. As observed by Tamberlin J in Bennett (at [6]), “[t]he whole point of an advice is the final conclusion”.
The Applicant contends that courts have applied these principles on many occasions to hold that legal privilege has been waived where the substance or “gist” of the advice has been disclosed. This is a point of distinction between the parties.
While the focus is upon inconsistency of conduct, considerations of fairness remain relevant to that assessment: see Carnell (at [29] and [34]); Federal Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 (at [44]); Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275(at [45] and [48]); BATA (at [42]); and College of Law Ltd v Australian National University [2013] FCA 492 (ANU) (at [24](c)). In this regard, the High Court’s decision in Carnell represents a shift in the focus of the inquiry from considerations of fairness to an assessment of the inconsistency of the conduct, albeit that fairness is still a relevant factor in the latter: cf Goldberg per Deane, Dawson and Gaudron JJ (at 95-96) and Attorney General (NT) v Maurice(1986) 161 CLR 475; see also the comprehensive discussion of the Australian position in DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384 per Allsop J (as his Honour then was) (at [36]-[113]) and BATA (at [42]).
The assessment of whether waiver has occurred is accordingly one of fact and degree, and must be made by reference to the particular context and circumstances of the case at hand, including the purpose of disclosure, matters of fairness, and the “legal and practical consequences of limited rather than complete disclosure”: Osland (at [45]-[49]); see also the summary of the relevant principles in ANU per Griffiths J (at [24](a)-(g)).

As noted, the main dispute arising between the parties as to the relevant principles is the Applicant’s contention that the disclosure of the “gist or conclusion” of 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 Applicant relies on the Full Court’s decision in Bennett as authority for the proposition.
However, the Respondent says that this overstates the present state of the law. The Full Court has subsequently stated in BATA (at [44]), that “it is now clear that disclosure of the gist of a privileged communication does not necessarily effect a waiver of privilege”. The Full Court in BATA referred to the judgment of Maxwell P (at [49]-[51]) in Osland (when that matter was before the Victorian Court of Appeal: Secretary, Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425 (Osland (VSCA))).
His Honour’s reasoning was then endorsed by the High Court on appeal: Osland (at [34]-[35], [49]-[50]), see also ANU (at [24](e)).
It may now be accepted as a matter of principle that disclosure of the “gist” or conclusion of advice does not necessarily amount to an imputed waiver of the whole advice. At that level, the Respondent is correct that the approach in BATA and Osland is to be preferred to the Applicant’s reading of Bennett. Although Tamberlin J expressed general agreement with Gyles J in Bennett, his Honour went on to observe (at [13]) that disclosure of the “gist” of advice “can amount to waiver of privilege”. This is clearly a narrower position than that stated by Gyles J (at [65]) on which the Applicant relies. So much was recognised by Maxwell P in Osland (VSCA) (at [29] and [46]-[47]) and his Honour went on to succinctly state the principle in terms which I respectfully adopt (at [49]-[51]):
49   Disclosure of the conclusion (or the gist, substance or effect) of legal advice may, or may not, amount to a waiver of privilege in respect of the advice as a whole. Whether it does in a particular case will depend on whether, in the circumstances of the case, the requisite inconsistency exists, between the disclosure on the one hand and the maintenance of confidentiality on the other. In Bennett, the majority of the Full Federal Court judged that there was inconsistency and hence waiver; in British American Tobacco [(2002) 7 VR 524]… this court judged that there was not. In each case, there was a disclosure of the gist or substance of advice given. That opposite conclusions were arrived at is simply a reflection of the different circumstances of the respective cases.
50   The content of an advice will often include confidential information about instructions given by the client, or about evidence to be given by a witness, or about forensic investigations being or proposed to be undertaken. These examples are sufficient to demonstrate why it is simply not the case that the disclosure of the conclusions necessarily amounts to, or necessarily entails, the disclosure of the content. There is no necessary inconsistency between disclosure of the one and non-disclosure of the other.
51   As Carnell demonstrates, the inconsistency test readily accommodates the notion that, in appropriate circumstances, the privilege holder may disclose the content of legal advice to a third party for a particular purpose without being held to have waived privilege in the advice. Likewise, in my opinion, the test of inconsistency is well capable of accommodating the notion that, in appropriate circumstances, the privilege holder should be able to disclose publicly that it is acting on advice and what the substance of that advice is, without being at risk of having to disclose the confidential content of the advice.
(emphasis added, citations omitted.)
In this case the Respondent has made a limited disclosure of a conclusion, and potentially the substance, if not the detailed reasoning of legal advice. While this in itself is insufficient to effect waiver, the inquiry does not end there. Due regard must be had to the context and purpose of the disclosure, as well as considerations of fairness in assessing whether such conduct is inconsistent with maintenance of the privilege.
THE APPLICANT’S CONTENTIONS
The Applicant submits that this is a clear case of waiver. He says the Respondent’s press release disclosed the substance of the legal advice provided by the AGS. It stated the AGS’s legal conclusion (that the Medivac legislation did not provide a mechanism for the return of medical transferees) and explained, the Applicant says, ‘in some detail’, the AGS’s reasoning in support of that conclusion. The substance of the advice he contends, was reiterated by the Respondent in subsequent media interviews.
Further, the Applicant argues that the Respondent deployed the advice to achieve a political objective. The Applicant argues that the use of the advice in this context (analogous to deployment for a forensic or commercial purpose) is inconsistent with the maintenance of the confidentiality that is protected by the privilege.
THE RESPONDENT’S CONTENTIONS
The Respondent notes that the Applicant contends that he has waived legal professional privilege over the eight documents because he “repeatedly disclosed the substance of the AGS legal advice”,
However, the Respondent makes the point that in relation to the interviews on the morning of 21 February 2019, on a fair reading of the passages relied upon (and also the interviews as a whole), the references to the AGS advice were only in relation to two propositions arising from that advice:
(a)that the provisions inserted into the Migration Act by the Medivac legislation (which required the transfer of certain persons into Australia) did not connect or link with the powers already in the Migration Act which permit the relevant Minister to subsequently remove these persons from Australia; and
(b)as a result, there is no power in the Migration Act to return persons brought to Australia pursuant to the Medivac legislation back to Nauru or Manus Island. The Respondent contends that the italicised quotation (at [9](a)) above taken from the newspaper article goes no further and similarly refers to there being “no way to remove medical transferees once they are brought here”.
The Respondent says that his references to there being a “drafting error” and a “loophole” are, fairly read, his own comment upon the Medivac legislation not the repetition of some conclusion from the AGS advice. While the Applicant did not challenge this in reply, I do not think it is an inference that can be properly drawn from the evidence. In the extract of the interview (at [9](c)) above, the Respondent said words to the effect that “... the advice that we’ve received is that there is a very significant drafting error in the bill …”. However, I do not consider these comments to add significantly to either party’s case. The question is not what is in the advice but rather what was said about the advice. It is clear that a disclosure of part of the advice was made, as characterised by the two propositions above. The question remains whether the context and purpose of that disclosure gives rise to any inconsistency.
The Respondent says that the nature and extent of the disclosure in this case is analogous to the limited disclosure in ANU. ANU concerned a trademark infringement action commenced against a university which claimed privilege over a series of internal communications and documents. The applicant claimed that any legal privilege had been waived by limited disclosures in the university’s council agenda papers and a report prepared by its faculty of law (at [14]). As in ANU, the Respondent says his disclosures are high-level statements that reveal very little about the content of the advice beyond the two propositions above. No real detail is said to be disclosed as to the actual subject matter or broader content of the advice. Nor do the two propositions reveal the more detailed reasoning underpinning the advice. The Respondent draws on Griffiths J’s observations (at [35]):
“First, the disclosures reveal very little about the actual content of the legal advices apart from stating that:
(a)the Legal Office had provided detailed advice to the Vice-Chancellor that the existence of the NSW College of Law did not prevent the ANU from using the name “ANU College of Law”; and
(b)advice had been received at the end of October 2005 from the Legal Office that the Faculty could proceed to market using the brand name ANU College of Law.
No detail was provided as to the subject matter or content of either advice other than to describe their overall effect. The disclosures did not reveal any of the reasoning underpinning the subject legal advice.”
The Respondent notes that the Applicant also relies, as an instance of disclosure, upon the Respondent’s media release dated 21 February 2019. In that media release, the Respondent is quoted as stating:
“The Australian Government Solicitor's Office has advised that Labor's amendment fails to include, or link to, sections of the Migration Act which provide the legal authority to return people brought to Australia under Labor's bill, once they have completed medical assessment or treatment.”
The Respondent contends, and I accept, that this effectively states the two propositions noted above and no more. Again, it is said that this statement reveals little about the actual content or scope of the AGS advice and does not disclose any of its underlying reasoning process.
However the media release also had attached to it the Summary of AGS advice. As to this the Respondent notes that the first eight paragraphs of the Summary, under the heading “How did the return of medical transferees work before Medivac”, are, in effect, a dot-point summary of how particular legislative provisions in the Migration Act (ie. ss 189, 196, 198B, 198AH and 198AD) operated prior to the Medivac legislation. The Respondent says those paragraphs do not refer to and do not purport to be drawn from, the AGS advice. Paragraphs 9 to 11, however, are under the heading “AGS advice: problems with the return of transferees”. Paragraph 9 makes the point that the new s 198C, inserted by the Medivac legislation, creates a separate regime to the existing powers in the Migration Act. Paragraph 10 makes the point that the Migration Act already contained provisions for the return of persons who have been brought to Australia. Paragraph 11 then makes the point that the new s 198C does not link to the existing powers in the Migration Act for the removal of persons. The portion of the Summary actually referring to the AGS advice is said to add nothing of substance beyond that already discussed above and does not set out the AGS’s reasoning underpinning its conclusions. I accept the contention that the Summary does not relevantly go beyond the two propositions. The real question for determination is whether in all the circumstances, the making of these statements is inconsistent with the maintenance of the privilege such as to constitute a relevant waiver.
Further, the Respondent points out that in the media release and a number of the radio interviews, he stated that it was not appropriate for him to, and he would not, release the AGS advices, and that he was not intending to waive privilege over them. While subjective intention is not determinative as to whether waiver has occurred (Carnell at [29]), it clearly forms part of the factual circumstances to be assessed. The Respondent argues that his repeated statement that privilege is not intended to be waived is a relevant and important matter to be considered. I accept that it may be relevant but I would not necessarily agree with the adjective “important”.
The Respondent also argues that the circumstances in Osland are instructive in the present matter. In that case, Ms Osland had been convicted of murder and had exhausted her appeal rights. She then sought a pardon from the Governor of Victoria: see Osland (at [7]-[8]). The Attorney-General of Victoria issued a press release referring to Ms Osland’s petition and stating that he had obtained legal advice from three Senior Counsel which “recommends on every ground that the petition should be denied” and that he had subsequently recommended to the Governor that the petition be denied. Notwithstanding that the effect or conclusion of the advice had been disclosed, the High Court (and Victorian Court of Appeal) found no waiver to have occurred, in circumstances where the disclosure was made to demonstrate that the recommendation to the Governor was based on independent advice, that due process had been followed, and that the decision to refuse the petition was not made on political grounds (at [44]-[49]). Similar points were made by Maxwell P in Osland (VSCA) (at [35]) and by the Full Court in BATA (at [47]).
In this case, the Respondent points to the relevant context as giving rise to a situation where the Government was required to administer the Migration Act, including the amendments made by the Medivac legislation which it had not supported when passed by the Parliament. The Medivac amendments imposed a requirement on the relevant Minister to bring asylum seekers to Australia if two doctors deemed it medically necessary. Subsequent to the legislation being passed, the Respondent says the Government identified some concerns with the operation of the amendments which took the form of the two propositions described above (at [36]). The Respondent says these two propositions plainly give rise to a potential difficulty in the proper administration of the Migration Act. In these circumstances, the Respondent says the purpose of the limited disclosures in the press release and media interviews was to bring these concerns into the public domain. He says the reference to the AGS advice demonstrated that the identified difficulties were based on, and supported by, independent and expert legal analysis, rather than simply being the Respondent’s or the Government’s own view. The Respondent contends that limited disclosure for this purpose accords entirely with the findings of Maxwell P in Osland (VSCA) (at [67]) and the majority of the High Court in Osland (at [48]). These contentions will be addressed in further detail below.
Finally, the Respondent contends that regardless of whether the limited disclosures are inconsistent with the maintenance of privilege, privilege over three of the eight documents could not have been waived because they were provided to the Respondent after he made the disclosures. Document 8 is a written AGS advice dated 21 February 2019. Document 7 is the email which provided that advice to the Respondent’s staff. It is apparent, on the face of Document 7, that the email was sent (and hence the advice provided) at 1:13pm on 21 February 2019. There is evidence before the Tribunal that the public statements made by the Respondent in the radio interviews, which are relied upon by the Applicant, took place before this advice was received (that is, before 1:13pm on 21 February 2019). There is also evidence that the media release and the attached Summary were released at 12:26pm on 21 February 2019. In circumstances where the relevant public statements took place prior to receiving Document 8, the Respondent argues he could not, by making those statements, have waived privilege over Document 8.
For the same reason, the Respondent contends that privilege could also not have been waived over Document 7, being the email attaching Document 8. Further, Document 1 is an email “chain” in which the advice, contained in Document 8, was sought. In circumstances where privilege cannot have been waived over Document 8, privilege over Document 1 is also said not to be waived.
THE APPLICANT’S REPLY
The Applicant argues that even if Document 8 was sent to the Respondent at 1:13pm on 21 February 2019, which is a matter that the Tribunal can determine by reviewing the relevant documents (noting that the Respondent has not provided any evidence in support of that assertion), these arguments should be rejected. This is principally because:
(a)the evidence before the Tribunal suggests that the advice, or at least the gist of the advice, in Document 8 had already been communicated to the Respondent prior to 21 February 2019 (and certainly prior to the media release being issued at 12:26pm); and
(b)through his public statements and media release on 21 February 2019, the Respondent had already acted in a manner that was inconsistent with the maintenance of confidentiality over those communications (or that communication) prior to 1:13pm.
As to the construction the Respondent advances in respect of his statements, the Applicant says that whether, as a matter of fact, the Respondent’s statements on 21 February 2019 were in relation to only two propositions arising from the AGS advice, or revealed “very little” about the content of or reasoning underpinning the advice, are not matters that can be tested by the Applicant. But nor are they matters that need to be tested in these proceedings the Applicant says. Whether the Respondent’s actions on 21 February 2019 were inconsistent with the maintenance of legal professional privilege is said not to turn on what the Respondent says about the AGS advice now or on the actual content of that advice. It is said to turn on what the Respondent said about the advice in his media release and in his public statements on 21 February 2019. The Applicant points out that in none of the statements or media interviews relied on by the Applicant did the Respondent say that his comments were limited to two propositions arising out of the AGS advice. Nor did he suggest that his comments related to a small part of the matters canvassed in that advice, or qualify each of his statements in a way that would suggest the AGS advice even had “broader content” or was supported by detailed reasoning (let alone what that broader content or reasoning was).
Instead, in clear and unqualified terms, the Applicant says, the Respondent repeatedly purported to disclose the gist and substance of the AGS advice by making representations about what “the advice” said (e.g. “… the legal advice is … that there is no power to return” and “… the advice that we’ve received is that there is a very significant drafting error in the bill”). It was not the Applicant who described the one-page document attached to the Respondent’s media release dated 21 February 2019 as a summary of the AGS legal advice (i.e. a summary of the whole of the AGS legal advice). That was the way in which the Respondent chose to describe that document. It is a description that appears twice in the media release itself (“[t]he [Respondent] said it would not be appropriate to release the AGS advice. However, he provided the summary below” and “Attachment: Summary of AGS advice”). And, as set out in an attachment to the affidavit filed by the Respondent’s solicitor, even the name of the file containing the media release, which was circulated to journalists by the Respondent’s office, was entitled “20190221 Labor loophole – AGS summary.pdf”.
Secondly the Applicant argues, the Respondent’s contention that he only ever referred to two propositions arising from the AGS advice cannot be reconciled with the Respondent’s separate assertion that his various disclosures on 21 February 2019 “did not reveal any of the reasoning underpinning the advice”. This is because the two propositions “arising from” the AGS advice that the Respondent refers to are:
(a)a conclusion: “there is no power in the Migration Act to return persons brought to Australia pursuant to the Medivac legislation back to Nauru or Manus Island”; and
(b)a reason underpinning that conclusion: “the provisions inserted into the Migration Act by the Medivac legislation (which required the transfer of certain persons into Australia) did not connect or link with the powers already in the Migration Act and which permit the relevant Minister to subsequently remove these persons from Australia”.

That is, the Applicant says, according to the Respondent’s own submission, the Respondent disclosed a conclusion arising from the AGS advice and the reason underpinning the conclusion. It follows that the assertions by the Respondent that he never disclosed the reasoning underpinning the AGS advice should be rejected, the Applicant argues. Again, whether the Respondent now believes that he provided a sufficiently detailed, nuanced, or even accurate account of the conclusion of the AGS advice on 21 February 2019, or the reasoning underpinning that conclusion, is irrelevant. What matters is what the Respondent said on 21 February 2019 and whether those comments were inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. The Applicant maintains that they clearly were.
Further, to the extent the Tribunal is to have regard to the context of the disclosures (or the concept of “unfairness”) the important fact is that the Respondent deployed the AGS advice to lend credibility to a political attack for the purpose of achieving a political objective. It is said to be plainly inconsistent to deploy legal advice to achieve a political objective, on the one hand, and at the same time seek to maintain the confidentiality over the advice that is protected by the privilege.
EXAMINATION OF THE DOCUMENTS
The Respondent has requested that the Tribunal consider the eight documents, to the extent it considers necessary, to determine whether or not privilege has been waived. That is especially in relation to (but not limited to) the contentions that the privilege in Documents 1, 7 and 8 could not be waived due to one of the AGS advices (Document 8) being received after the Respondent’s public statements were made, and also that the public statements made by the Respondent concerned matters that comprised only a small part of the other AGS advice (Document 5).
No objection to the process of examination has been raised by the Applicant. A similar process is often adopted when a claim for privilege is made and a court (often not the presiding judge) is invited to examine the documents over which the claim is raised in order to rule on whether or not privilege may be maintained. In both that situation and the present, revealing the content of the documents to the parties would defeat the very privilege that is being considered and to this extent, the Applicant is limited in his ability to meet claims made by the Respondent as to their contents.
The relevant documents have been examined.
The eight documents have been described above (at [12]). In reality they are all part of a continuous chain seeking certain advice and giving and receiving that legal advice. There are exchanges concerning the terms and effect of the advice and some expansions of the content of the advice.
What is quite clear though is that both the initial advice given on 20 February 2019 (Document 5) and the further advice given on 21 February 2019 (Document 8) go significantly beyond the two propositions disclosed by the Respondent and by which the Applicant says privilege over all content has been waived. In other words, the proposition that there is no power to return persons brought to Australia under the Medivac amendments because those amendments do not “link” to the existing powers to return in the Migration Act, forms a relatively small element of the advices as a whole. Indeed it would not be inaccurate to say that the particular issue which was the subject of public comment constituted a relatively minor part of the advices.
This being said, an examination of the documents also confirms that, to the extent the legal advices consider a purported absence of power to return, the press release and the Respondent’s public comments do disclose the conclusion, as well as the “gist” or substance of that part of the advices. It could not be said that the advices were referred to only to demonstrate their existence. The Respondent’s statements, and in particular the Summary of AGS advice, disclose both the conclusion and parts of the reasoning underpinning that conclusion. More will be said on this below.
As to the timing of receipt of the second advice, an examination of the documents reveals that Document 8 was emailed to the Respondent’s office some 45 minutes after an email containing the press release and Summary of AGS advice was sent to “Attorney-Generals Mailing List (List Server)”. The Applicant is correct in pointing out that the Respondent has not led any evidence to support the contention that Document 8 was received after the disclosures save for asking the Tribunal to examine the documents. Certainly an inference would need to be drawn that the sending of the release to the recipients on the Respondent’s mailing list (the identity of whom is not in evidence) constituted its publication though I note this is not disputed.
In any event, it must be remembered that it is the Respondent’s privilege which the Applicant alleges has been waived. The onus lies on the Applicant to establish that waiver has occurred. The Applicant’s argument that the evidence before the Tribunal suggests that the gist of the advice in Document 8 had already been communicated to the Respondent (at [47](a) above), cannot, with respect be accepted. The only evidence relied upon for this contention is a statement by the Respondent in his written submissions as follows:
“the propositions the subject of the Respondent’s public statements relate, on a fair reading of the AGS advice (Documents Five and Eight), to only a small part of the matters canvassed in those advices”
(emphasis added)
It may be accepted that both advices address, in some form or another, the two propositions disclosed, but this does not suggest in any way that the contents of Document 8 was known to the Respondent before it was received by him. The Applicant has not led any further evidence to make good this suggestion that the ‘gist’ of the advice in Document 8 was known to the Respondent prior to his public comments and distribution of the press release.
There is clearly some overlap between the advices in Documents 5 and 8 however they are separate advices that address distinct issues, albeit both in relation to the Medivac legislation. I do not consider that privilege could have been impliedly waived by conduct of the Respondent that took place before the documents in question had been received by him.
CONSIDERATION
The Respondent’s press release and the Summary of AGS advice are Annexure A to these reasons with some minor redactions of personal identifying information.
There is little dispute between the parties that the Respondent’s conduct amounted to a limited disclosure of legal advice, limited in the sense that a part or element of the advice was disclosed as opposed to the advice in full. The parties dispute the extent of this disclosure. On examining the documents, I accept the Respondent’s argument that the disclosure was limited to the two propositions set out above (at [36]). However, I also accept the Applicant’s contention that the disclosure of these two propositions amounts to the disclosure of a conclusion of legal advice and a reason underpinning that conclusion. The examination has also revealed that the two propositions disclosed constitute a relatively minor part of the advices as a whole. Thus, the circumstances can be succinctly characterised as the disclosure of the “gist” or substance of only a small part of the advices over which privilege is claimed. Other discrete matters were also the subject of the advices.
The focus of the inquiry remains on whether the disclosure of these two propositions by the Respondent is inconsistent with the maintenance of the privilege. As the majority of the High Court said in Osland (at [46]):
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.
As noted above (at [31]), on a proper reading of the authorities, disclosure of the gist or substance of legal advice may or may not effect a waiver of privilege depending on whether or not the requisite inconsistency of conduct is established having regard to the context and purpose of the conduct as well as considerations of fairness. It is also worth reiterating at this point that while the principles to be applied are not in doubt, considerations of implied waiver require a court or tribunal to make judgments of fact and degree. As the Full Court (Kenny, Stone and Edmonds JJ) observed in Rio Tinto (at [45]):
Where, as here, one party alleges that another has impliedly waived legal professional privilege, a court is bound to analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of the privilege. In concluding that the Commissioner had waived the privilege in the eight contested documents, the docket judge in fact applied the “inconsistency” principle of Mann, as he was obliged to do: see Rio Tinto (2) at [20]. Plainly enough, the inquiry that it mandates focuses on the facts of the particular case. It follows that other cases in which implied waiver has been considered provide limited guidance unless they arise out of similar facts.
The analogous facts in Osland are of some assistance however as will be seen, there are also significant differences. In that case, the purpose for which the limited disclosure of advice had been made was a determinative factor. As Maxwell P noted (at [63]) in Osland (VSCA):
Amongst the circumstances relevant to determining inconsistency, it is clear from Carnell and Bennett that the purpose for which the privilege-holder made the disclosure is highly relevant. The question here was whether the use made by the Minister of the disclosed portion of the privileged communication – more particularly, the purpose for which the conclusion was disclosed – was inconsistent with the maintenance of confidentiality in respect of the content of the advice.
(emphasis added.)
In my view, the relevance of the purpose of disclosure in considering inconsistency of conduct was made clear by Maxwell P a few paragraphs earlier (at [51]) of Osland (VSCA). Though I have already extracted that paragraph above, it warrants repeating here:
As Carnell demonstrates, the inconsistency test readily accommodates the notion that, in appropriate circumstances, the privilege holder may disclose the content of legal advice to a third party for a particular purpose without being held to have waived privilege in the advice. Likewise, in my opinion, the test of inconsistency is well capable of accommodating the notion that, in appropriate circumstances, the privilege holder should be able to disclose publicly that it is acting on advice and what the substance of that advice is, without being at risk of having to disclose the confidential content of the advice.
(citations omitted, emphasis added)
In the circumstances of this case, I also consider the purpose of the Respondent’s limited disclosure in discerning any inconsistency of the conduct with the maintenance of privilege to be a “highly relevant” factor. The Applicant contends that the Respondent deployed the advice to lend credibility to a political attack for the purpose of achieving a political objective. The Respondent contends that the release and his public comments brought a number of difficulties and concerns with the administration of the Migration Act into the public domain. He says the limited disclosure of the advice demonstrated that those concerns were well-founded and based on expert legal opinion, not simply his or the Government’s view.
In assessing the purpose of disclosure in this case, it is helpful to consider in some detail, the extent of the disclosures in Osland, BATA and ANU and the Courts’ findings as to the purpose in each case.
In Osland, the relevant disclosure by the Attorney-General in that case was recorded by the majority at [15] of its decision:
The announcement of the denial of the petition was accompanied by a press release which said:
“On July 5, 1999, Mrs Osland submitted a petition for mercy to the then Attorney-General Jan Wade. That petition set out six grounds on which the petition should be granted. Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland’s petition. 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.”
The majority went on to find that the purpose of this limited disclosure was entirely legitimate in that it sought to demonstrate a proper basis for what was clearly a contentious decision (at [48]):
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 the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the 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 the 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 did 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.
(emphasis added)
In BATA, the appellant sought access under the FOI Act to legal advice prepared by the Commonwealth Attorney-General’s Department concerning potential legal and constitutional issues in relation to proposals for the generic packaging of cigarettes. It was claimed that privilege over the advice had been waived by two separate acts of disclosure, the first being the provision of a summary of the advice to a government working group. The Full Court set out the relevant extract at [17] of its reasons:
On the 8 February 1996 a summary of the AGD legal advice was provided by an officer in the Tobacco Policy Section to another officer in the TWG [the working group]. Relevantly, the summary read:
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.
The second disclosure involved reference to the advice in a document tabled in the Senate as the Government’s response to a report of a parliamentary committee. The responsive document was then published on a Government website. It contained the following passage (BATA at [19]):
…
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.
While the Full Court in BATA adopted much of the reasoning of the Tribunal which found no waiver for detailed reasons, after briefly surveying the relevant authorities the Court added only the following observation in conclusion (at [47]):
In the present case it cannot be said that the respondent, or the executive government generally is seeking to deploy a partial disclosure of the AGD legal advice for forensic or any other advantage. That is, in our opinion, decisive of this appeal. But we should address the specific issues which were agitated in this Court.
(emphasis added)
Turning to ANU on which the Respondent relies, the facts of which were briefly traversed above (at [38]), Griffiths J recorded the relevant disclosures by the university (at [19] and [21]). The first disclosure was in the university’s council agenda papers which were subsequently made publicly available:
…
Background
ANU College of Law
ON 10 June 2005, Council approved the proposed operational improvements to the ANU as outlined in paper 206/2005 with the exception of the use of the name “ANU College of Law” and asked the Vice-Chancellor to seek further legal advice in light of the existence of the NSW College of Law.
The Legal Office has provided detailed advice to the Vice-Chancellor that the existence of the NSW College Law does not prevent the ANU from using the name “College of Law”. As a result of discussions with the NSW College of Law, the Legal Office and the Dean of Law are putting in place procedures to ensure that the ANU Legal Workshop does not operate under the new College in a way that would confuse it with the operations of the NSW College of Law (emphasis added [by the court]).
The second disclosure was contained in a report by the university’s faculty of law and was made accessible online for staff and students. The report stated as follows:
…
Advice was received at the end of October from the University Legal Office that the Faculty could proceed to market using the brand name ANU College of Law.

The Respondent draws on [35] of ANU (set out above at [38]) as a comparable finding that the Tribunal should also reach in this case that the extent of the disclosure in truth revealed very little about the substance of the AGS advice. While there may be some force in this comparison, I consider that an assessment of the extent of disclosure, as it pertains to forming a view of the conduct as a whole, is inextricably linked to an assessment of the purpose of that disclosure. An evaluation of the inconsistency (or not) of the conduct requires the question to be asked why the privileged information was disclosed to the extent that it was. Put another way, was the limited disclosure of advice to a certain extent necessary to achieve a legitimate and perhaps desirable purpose? Thus, as Griffiths J continued in the paragraphs immediately following (at [36]-[38]):
36     Secondly, the purpose of the two disclosures was not to secure some advantage to the ANU which had an adverse impact upon the College. Rather, I consider that the purpose of the disclosure made in the Council agenda papers was driven by the ANU’s recognition as a publicly funded institution of the desirability of keeping interested persons informed of matters which were to be the subject of the Council’s deliberations, whilst preserving ANU’s entitlement to receive advice from its Legal Office to which privilege attached. Under s 9 of the Australian National University Act 1991 (Cth), the Council has the entire control and management of the University.
37     I consider that the purpose of making available to staff and ANU students the College Administration paper dated 15 December 2005 was to inform such persons of the administrative implementation of the proposed restructure, including the name change, so as to maximise the prospects of that aspect of the restructure being successfully implemented. The document itself was created around 15 December 2005, which postdates the Council’s meeting of 5 December 2005 when the final decision was taken to adopt the nomenclature. Although the evidence demonstrated that the Council’s composition included members representing ANU staff (both academic and non-academic) as well as students, the evidence indicated that the paper was only made accessible to staff and students online after the Council approved the use of the nomenclature on 9 December 2005. In those circumstances, I cannot accept the College’s submission that the document was deployed to secure the support of staff and ANU students for a “commercial purpose”.
38     Thirdly, although it is evident from the Vice-Chancellor’s report that commercial or financial considerations were taken into account among many other non-commercial considerations in determining to proceed with the restructure (including the restructure involving the ANU College of Law), the critical issue to my mind is not so much ANU’s purpose in implementing the restructure, but rather is the purpose of publishing the Council agenda papers for the 9 December 2005 meeting and making available online to staff and ANU students the December College Administration paper. Of course, the subject matter of the relevant advice is a relevant consideration, but it will not necessarily determine what was the purpose of the disclosures. In the circumstances here, and recognising the importance of the public nature of the University (as is reflected, for example, in the fact that the University is established by Commonwealth legislation, receives public funding and is subject to the Freedom of Information Act 1982 (Cth)), the relevant disclosures here were made for the primary purpose of providing public accountability and transparency in respect of the University’s activities and in providing interested persons, including staff and students, with historical context and logistical information so as to maximise the prospects of the restructure being successfully implemented.
(emphasis added)
In this case the Respondent’s public comments, press release, and attached Summary of AGS advice disclosed more detail as to the conclusion and underpinning reasoning of the advice than that disclosed in Osland and ANU. The disclosures here are comparable to those in BATA however in my view the dispositive consideration in each of these cases was the purpose for which the disclosure was made to the extent that it was in the context of each case. I turn then to an assessment of the evident purpose of the Respondent’s disclosures.
The Respondent contends that the purpose of the limited disclosures in this case was to inform the public of the difficulties in administering the Migration Act as amended by the Medivac legislation. Accordingly, the two propositions which form only a minor part of the advices were disclosed to demonstrate that the identified difficulties were based on, and supported by, independent and expert legal analysis. It is said that the present case is analogous to Osland where a limited disclosure of legal advice was deployed to justify an exercise of executive power and demonstrate that due process and responsible consideration had been given to the petition for mercy. For the reasons that follow, and with respect, I am unable to accept this characterisation of the Respondent’s purpose in this case and I consider there to be significant differences in the circumstances of this case and those in Osland, BATA and ANU.
The press release published by the Respondent on 21 February 2019 is headlined “Labor’s medivac one-way ticket”. It also contained the following statements:
Labor's rushed border security legislation now means that there may be no power to return people to Manus or Nauru once they have arrived in Australia.
“This is what happens when Bill Shorten and Labor play politics with national security and border protection," Attorney-General, Christian Porter, said.
…
"This is the direct consequence of Labor's politicised and rushed legislation which passed through the House last week with the support of the Greens and crossbenchers."
…
"The focus of the Government now is cleaning up Labor's mess," the Attorney-General said.
…
The Summary of AGS advice was then attached to the release and in his media interviews the Respondent invited people to “test this proposition” that “this is a drafting error, a very considerable loophole, that there is no power to return …”.
There is little doubt in my view, that the focus of the release was not simply to bring a perceived “drafting error” in legislation to the attention of the public at large, but to attribute that error to the Government’s political opponents. Thus, not only was the Government seeking to convince the public that an error existed but it was also seeking to convince people that the Government’s political opponents were to blame for this error. The language and context of the release make that much clear. The Medivac legislation had already been passed by both houses of Parliament into law. While it may be legitimate for a government to inform the public of a perceived legislative error supported by legal advice, by directing his criticisms of the Medivac legislation to the Government’s political opponents in circumstances where the law had been duly passed by the Parliament, I consider that the Respondent by the language used, also deployed the AGS advice to achieve a political advantage.
In reaching this conclusion, Osland can be distinguished. In that case the Governor of Victoria was seized by a request for a pardon and was required to consider whether or not to grant that pardon in the exercise of executive power. A decision was required to be made and although it was not necessary to give reasons, the Government announced that the decision reached was based on, and aligned with legal advice received. That legal advice was provided to the Victorian Government by “three eminent lawyers’ appointed in consultation with the State Opposition (at [48]). Thus, the purpose of the limited disclosure of the existence and the most general conclusion of the advice was to demonstrate that due process had been followed and that the decision reached “was not based on political considerations” (at [48]).
It is not the case here that the Respondent or the Government was seized of a decision it was required to make in the same way as the Victorian Government in Osland. Rather, the relevant context in this case is that in administering the Migration Act the Government perceived a “drafting error” or “loophole” caused by the Medivac legislation. It sought legal advice on the operation of the Migration Act as amended by the Medivac legislation (not an uncommon course for governments to take). The Respondent then elected to disclose a limited part of this advice in a press release which, rather than justifying a course of action or seeking to demonstrate due process in reaching a decision, sought instead to convince the public that the Government’s political opponent had caused poorly drafted legislation to be rushed through Parliament without proper consideration being given to it. In this particular context, a limited disclosure of legal advice was made partially for the purpose of gaining a political advantage against a political opponent. Such is the nature of politics.
I consider that the Respondent’s apparent conduct in disclosing a limited part of legal advice for the partial purpose of gaining a political advantage is inconsistent with the maintenance of legal professional privilege. In reaching this conclusion, while ordinary considerations of fairness as understood between parties to a litigation arise in very different circumstances to the present case, I do consider that there would be some unfairness to the Applicant in allowing the maintenance of privilege over advice used to gain a political advantage. As distinct from Osland, the Respondent has levelled criticism against his opponent and then sought to preserve confidentiality over the advice used to lend weight and give legitimacy to that criticism. I emphasise however, that the determinative factor here in finding an inconsistency of conduct is the partial purpose for which the disclosure was apparently made. In reaching this conclusion, I do not consider the Respondent’s statements that he did not intend to waive privilege to be sufficient, in the context of the conduct as a whole, to protect against an implied waiver of the relevant parts of the advice disclosing the two propositions.
As will be recalled, an examination of the eight documents has confirmed the Respondent’s contention that the two propositions he disclosed formed only a small element of the matters addressed in the AGS advices (Documents 5 and 8). For the reasons given above, privilege over Document 8 could not have been waived by the conduct in question.
It is contended by the Respondent that if waiver is found to be effected by his conduct, then only privilege over the specific parts of Document 5 that address the two propositions disclosed could have been waived. It is said that limited disclosure of a relatively minor part of the advices could not effect waiver over the whole of the advices. The Respondent relies on Queensland Local Government Superannuation Board v Allen [2016 QCA 325 per Burns J (at [91]):
For completeness, it is necessary to add that, whatever view was taken on the question of waiver, it was not appropriate to order that the whole advice be disclosed. The uncontested affidavit evidence was to the effect that the advice dealt with four discreet issues, only one of which concerned the “subject matter of the correspondence exchanged in this matter”. Therefore, if privilege was impliedly waived, it could have only been waived with respect to that one issue. This was not a case where the advice in question dealt with a single subject-matter so that reliance on part of the advice would make it unfair to withhold the remainder, and the statements in Attorney-General (NT) v Maurice on this topic need to be considered with that in mind. On the hearing of the application in this Court it was argued on behalf of Ms Allen that, because the complaint log and submission revealed that the Board’s solicitors were asked to advise whether the Board should reconsider the claim, the resulting advice must have been devoted to that question and nothing else. As such, it was argued, the four discreet issues must have each been concerned with the same question. The fundamental problem with that argument is that the affidavit evidence was to the contrary. The time to challenge the deponent about this evidence was at the hearing of the disclosure application in the court below, but no application for leave to cross-examine was made.
(emphasis added)
The Applicant has correctly pointed out that the Respondent has not led any evidence to support his contention that the two propositions disclosed form only a minor or discrete part of the advices. Instead, reliance has been placed on the Tribunal’s examination of the documents which obviously restricts the Applicant’s ability to meet that claim.
There is force in the Applicant’s submission and I consider Allen to be quite distinguishable on its facts from this case. However it is clear that a consideration of the fairness in allowing waiver over part of an advice is relevant to the present inquiry and is affected by the extent to which the advices deal with a single or discrete subject matter(s). As Gibbs CJ said in Maurice (at 481-482):
It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence: Burnell v. British Transport Commission. Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co. v. Home Insurance Co.. In that case Templeman LJ. said:
"... the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased."
The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. …
(citations omitted)
The rule in the Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 has been the subject of some qualification since it was cited by Gibbs CJ in Maurice. As the New South Wales Court of Appeal observed in Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100 per Tobias JA (at [132]), Allsop P and Hodgson JA agreeing:
In my opinion Great Atlantic stands only for the proposition that where the whole of a document is a privileged communication between legal adviser and client, the party entitled to claim that privilege cannot waive the privilege as to part of the communication but claim it with respect to the remainder if to do so would result in unfairness. Either privilege is claimed with respect to the whole or waived as to the whole. The only exception to this would be where the communication dealt with two entirely different subject matters in respect of which privilege was claimed for the one that was relevant to the issues at hand and waived for the other which was not.
(emphasis added)
In Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 5) [2010] SASC 267, Bleby J had regard to Tobias J’s statements at [132] in Bailey and concluded (after a comprehensive survey of the authorities at [16]-[28]) (at [29]):
The statement that either privilege is claimed with respect to the whole or waived as to the whole document cannot be read in isolation. In my opinion it can only apply where there is inconsistency or unfairness in the sense discussed by the High Court in waiving privilege as to only part of the document. It is not merely a matter of ascertaining whether the document concerned deals with separate subject matters.
In this limited sense, it is relevant that the Respondent expressly claimed privilege over the advices. While I have found that the disclosure of two proposition from those advices was inconsistent with the maintenance of privilege, I do not consider that waiver is effected over the whole of the advices nor the associated documents (Documents 1-4, 6-7). Rather, the two propositions disclosed form the basis of the view that there is no power to return people brought to Australia under the Medivac legislation. The balance of the advice in Document 5 addresses separate and discrete issues. Accordingly, I do not consider that fairness requires the disclosure of the whole of the advices. The Applicant will not be misled as to those parts of the advice disclosed publicly by maintenance of confidentiality over the balance. Nor do I consider that the extent of the Respondent’s disclosure and his purpose in doing so are inconsistent to the extent that waiver has occurred over the entirety of the advice. There has been no relevant disclosure of those other parts of the advice.
CONCLUSION
The Respondent has by his conduct, impliedly waived privilege over those parts of Document 5 that address the two propositions disclosed in the press release, attached Summary of AGS advice and his public comments.
In so finding, it is not a criticism of the Respondent that he added certain flourishes to his public comments. That is political life. Of course the added rhetoric was not to be found in the AGS advice as the applicant would have understood. But the fact that the respondent did make the most of the situation in a political sense has the consequence that reliance on a privilege that is reserved specifically for the protection of communications with legal advisers cannot be maintained.
I have reached a preliminary view about which parts of Document 5 need be disclosed and also consider that further parts of Document 6 should be released. However privilege has not be waived over Documents 1, 2, 3, 4, 7 or 8. The Respondent indicated that he wished to be heard on which parts of the documents ought be released. He will have an opportunity to make relevant submissions on that topic. I do not believe I can meaningfully at this stage extend that opportunity to the Applicant as the Applicant has not yet seen any parts of the documents and to do so would defeat the effect of this decision.

I certify that the preceding (93) (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Justice McKerracher
[sgd]
Associate
Dated 17 February 2021

Date of hearing Determined on the papers

Counsel for the Applicant The Applicant represented himself with the assistance of an Advisor

Solicitors for the Respondent Ms M Gangemi of Australian Government Solicitor
ANNEXURE A

Division	FREEDOM OF INFORMATION DIVISION
File Number	2020/3778
Re	Mark Dreyfus
APPLICANT
And	Attorney-General (Commonwealth of Australia)
RESPONDENT

Tribunal	Justice McKerracher
Date	17 February 2021
Place	Perth

Date of hearing	Determined on the papers
Counsel for the Applicant	The Applicant represented himself with the assistance of an Advisor
Solicitors for the Respondent	Ms M Gangemi of Australian Government Solicitor