Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information)

In *Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information)*, the applicant sought access to legal advice and related documents provided to the Attorney-General concerning the *Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019* (Cth), commonly known as the "Medevac" legislation. The applicant contended that the Attorney-General had impliedly waived legal professional privilege over these documents by disclosing the substance of the advice in a public media release and subsequent interviews. The matter came before McKerracher J of the Federal Court of Australia.

The central legal issue before the court was whether the Attorney-General's public statements, which disclosed the gist and substance of the legal advice received from the Australian Government Solicitor regarding the Medevac legislation, constituted an implied waiver of legal professional privilege over the full advice and associated documents. Specifically, the court had to determine if the conduct of disclosing the substance of the advice was inconsistent with the continued maintenance of confidentiality, thereby implying a waiver of privilege.

McKerracher J applied the principle that disclosure of the "gist" or conclusion of legal advice does not necessarily amount to an implied waiver of the entire advice. The court adopted the reasoning from *Osland (VSCA)*, which held that whether disclosure constitutes waiver depends on whether, in the specific circumstances, the disclosure is inconsistent with the maintenance of confidentiality. The court found that while the Attorney-General had disclosed the conclusion and substance of the advice, this alone was insufficient to effect a waiver. The inquiry required consideration of the context and purpose of the disclosure, as well as principles of fairness, to assess inconsistency. The court noted that the Attorney-General had explicitly stated he was not waiving privilege and intended to provide only a summary to allow the advice to be tested, which weighed against an implied waiver.