Grunbiotics Pty Ltd and Secretary, Department of Health and Aged Care (Freedom of information)
[2025] ARTA 167
•27 February 2025
Grunbiotics Pty Ltd and Secretary, Department of Health and Aged Care (Freedom of information) [2025] ARTA 167 (27 February 2025)
Applicant/s: Grunbiotics Pty Ltd
Respondent: Secretary, Department of Health and Aged Care
Tribunal Number: 2023/9728
Tribunal:R Cameron, General Member
Place:Melbourne
Date:27 February 2025
Decision:The Tribunal affirms the decision under review as varied by the Tribunal on 7 and 11 February 2025.
..................................[SGD]......................................
R Cameron, General Member
Catchwords
FREEDOM OF INFORMATION – exemption – legal professional privilege under s 42 of the FOI ACT – legal advice given by government in-house legal branch – applicant challenged the contention that communications made by the respondent were not for the dominant purpose of giving or obtaining legal advice - whether communications sent by in -house lawyer waives their legal professional privilege if sent in an operational capacity – decision affirmed.
Legislation
Freedom of Information Act 1982 (Cth)
Therapeutic Goods Act 1989 (Cth)
Food Standards Australia and New Zealand Act 1991 (Cth)Therapeutic Goods (Declared Goods) 2019 (Cth) ord
Cases
R v Cox and Railton (1884) 14 QBD 153
Attorney-General (NT) v Kearney (1985) 158 CLR 500
Martin v Norton Rose Fulbright (No 2) [2019] FCA 96
AWB Ltd v Cole (2006) 234 ALR 651
Mann v Carnell (1999) 201 CLR 1
Waterford v Commonwealth of Australia (1987) 71 ALR 673
Seven Network Limited v News Limited [2005] FCA 142Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131
Secondary Materials
JD Heydon ‘Chapter 13 Privilege’ Cross on Evidence, Lexis Nexis (July 2024)
Statement of Reasons
INTRODUCTION
The applicant seeks review of a decision made by a First Assistant Secretary, Regulatory Practice and Support Division of the respondent on 31 March 2022 under s 55G(1) of the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) (‘the reviewable decision’).
The reviewable decision set aside an earlier decision made on 9 November 2020 which adjudicated upon a request made by the applicant on 11 June 2020 for access to certain documents under the provisions of the FOI Act. The earlier decision refused access to documents on various grounds.
The reviewable decision upheld certain exemptions in part claimed by the respondent under s 42, documents subject to legal professional privilege and s 47B, Commonwealth-State relations of the FOI Act.
THE EVIDENCE BEFORE THE TRIBUNAL
The application proceeded by way of documentary evidence adduced only.
The following witnesses gave evidence by affidavit:
Dr Gilmour-Walsh, a Principal Legal and Policy Advisor of the Regulatory Legal Services Division of the respondent Department;[1] and
Mr Henderson, a First Assistant Secretary, of the Medicines Regulation Division of the respondent Department.[2]
[1] Dr Gilmour-Walsh affirmed an affidavit or 17 April 2024 located in the JTB at page 220.
[2] Mr Henderson swore an affidavit 12 April 2024 located in the JTB at page 200.
Neither Dr Gilmour-Walsh nor Mr Henderson were required by the applicant for cross examination. Their affidavits were received in evidence. Their evidence was unchallenged.
Helpfully, the parties prepared a Joint Tribunal Book (‘JTB’) of documents comprising some 421 pages, which was tendered in evidence.
The respondent produced to the Tribunal a copy of the documents for which an exemption had been claimed. Such documents were provided in accordance with the provisions of s 64(1A) of the FOI Act. Those documents have been inspected by the Tribunal.
The respondent also provided an ‘Aide Memoire-Documents identifying lawyers in exempt documents’, that was of much assistance to the Tribunal when examining the exempt documents.
SOME PRELIMINARY MATTERS
Prior to the hearing of the application the parties by consent requested an alteration of the reviewable decision which was approved by the Tribunal.[3] The effect of the alteration to the reviewable decision was to release to the applicant the document identified in that decision as document 46.1, redacted only to withhold the name, phone number and email address of an individual from the then Victorian Department of Health and Human Services.
[3] An order giving effect to the request for alteration of the reviewable decision was made by the Tribunal on 7 February 2025.
On the first day of the hearing of the application, the parties reached an agreement to further vary the reviewable decision permitting the release of further of the documents for which an exemption had been claimed. An order giving effect to the terms of the agreement entered into between the parties was approved by the Tribunal.[4]
[4] The documents released by reason of the further order made on 11 February 2025 were numbered: 53, 54, 21, 34, 36, 76, 77, 78 and 79.
The effect of the two variations to the reviewable decision agreed to by the parties was that the claim by the respondent for an exemption under s 47B, Commonwealth-State relations of the FOI Act was no longer pursued, nor for that matter relevant.
ISSUE FOR DETERMINATION BY THE TRIBUNAL
It is apparent that the issue requiring determination by the Tribunal in this matter is whether the documents for which exemptions from disclosure are claimed are so exempt under ss 42 of the FOI Act.
Section 42(1) of the FOI Act provides that a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. In considering this section of the FOI Act it is necessary for the Tribunal, as decision-maker, to decide whether the relevant documents:
(a)are subject to legal professional privilege? And if so,
whether such privilege has been waived.
BACKGROUND
It is appropriate to recount briefly some background facts and matters concerning the interactions between the applicant and the respondent.
The Therapeutic Goods Administration (‘TGA’) is a unit or division of the respondent Department. The TGA’s functions include administering the provisions of the Therapeutic Goods Act 1989 (Cth) (‘the TG Act’).
Section 4 of the TG Act contains its objects which include, amongst other things for the establishment and maintenance of a national system of controls relating to the quality, safety, efficacy and timely availability of ‘therapeutic goods’.[5]
[5] (emphasis added).
The term ‘therapeutic goods’ is defined in s 3 of the TG Act. It is a lengthy definition which provides, amongst other things, that the term means goods that are represented in any way to be, or that are, whether because of the way in which the goods are presented or for any other reason, likely to be taken to be for ‘therapeutic use.’ Reference should be made to the definition in its entirety. It is not necessary to reproduce such definition in full for the purposes of these reasons.[6]
[6] See also, Mr Henderson's affidavit which contains a more detailed reproduction of the term ‘therapeutic goods'. JTB, 201, [9].
‘Therapeutic use’ is also defined in s 3 of the TG Act. Such definition includes, amongst other things use in or in connection with, preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons. Similarly, reference should be made to the entire definition of the term ‘therapeutic use’ for its full force and effect.
Pursuant to s 9A of the TG Act (‘Australian Register of Therapeutic Goods’), the Secretary is required to cause to be maintained a register, known as the ‘Australian Register of Therapeutic Goods’, (‘the register’) for the purpose of compiling information in relation to, and providing for evaluation of, therapeutic goods for use in humans. Usually, for goods classified as ‘therapeutic goods’ to be imported into, exported from or manufactured or supplied in Australia such goods are required to be recorded by an entry in that register. As Mr Henderson deposes to in his affidavit the processes adopted for recording an entry in the Australian Register of Therapeutic Goods depends on a variety of matters to be considered, including the kind of product, for instance medicine, medical device, biological or other therapeutic good and relevant claims that may be made with respect to the product and its qualities or characteristics.[7]
[7] Ibid 202, [10].
Where a product is produced for oral consumption by humans that are not otherwise categorised as ‘therapeutic goods’, they may be subject to food standards regulation. Foods are not subject to regulation by the TGA. A different regulatory regime applies. It was described by Mr Henderson in his affidavit as ‘a cooperative regulatory framework’.[8]
[8] Ibid [11].
Concerning the regulation of food, the appropriate Act is the Food Standards Australia and New Zealand Act 1991 (Cth) (‘the FSA’). Amongst other things, that act establishes a joint body known as ‘Food Standards Australia and New Zealand’. That body has objectives to achieve several goals including the following:
(a)a high degree of consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia and New Zealand;
(b)an effective, transparent and accountable regulatory framework within which the food industry can work efficiently;
(c)the provision of adequate information relating to food to enable consumers to make informed choices;
(d)the establishment of common rules for both countries and the promotion of consistency between domestic and international food regulatory measures without reducing the safeguards applying to public health and consumer protection.
The other parts of the cooperative regulatory framework include state and territory governments which exercise powers conferred upon them under applicable food legislation in those states or territories. Finally, there is the Commonwealth Department of Agriculture, Fisheries and Forestry (‘DAFF’) which regulates the importation of food into Australia.
As part of the regulatory regime established by the FSA a ‘Food Standards Code’ has been implemented. The Food Standards Code is regulated by the State and Territory governments as part of the cooperative regulatory framework referred to above.
As is apparent from the foregoing, differing regulatory regimes apply to a product depending on whether it falls within the definition of a ‘therapeutic good’ or a ‘food’. Accordingly, different regulatory authorities will administer the compliance regime for either therapeutic goods or food.
Mr Henderson in his affidavit explained what he described as the ‘Food-therapeutic good interface product assessments’.[9] These assessments are conducted in accordance with agreed procedures that have been formulated between the TGA, FSANZ, DAFF together with each of the state and territory food regulatory bodies. These assessments are undertaken to determine whether a product is to be categorised or classified as ‘food’ or a ‘therapeutic good’.
[9] Ibid [13].
The process of conducting such assessments involves several steps. TGA officers within the Complimentary and Over-the-counter Medicines Branch (‘COMB’), which is part of Medicines Regulation Division (‘MRD’), conducts a ‘Food-therapeutic good interface product assessment’ (‘FMI assessment’). When undertaking an FMI assessment these staff members attached to COMB, address several questions which are formulated to assist determining whether the product concerned is likely to be classified as either a therapeutic good or a food.[10]
[10] See, Exhibit ‘NDH-1’ to Mr Henderson's affidavit which includes a ‘Food-Medicine Interface Guidance Tool diagram’. The Guidance Tool consists of a series of logical questions which depending on the answers provide guidance to the TGA officers conducting the FMI assessment. JTB, 212.
Upon completion of the FMI assessment as aforesaid, the results are usually circulated to all the food regulatory bodies previously referred to. This includes the applicable state and territory departments or agencies responsible for food regulation. Once the results of the FMI assessment are circulated to them, they provide commentary or further information by way of submissions to the TGA in response. These responses are then taken into consideration by the TGA in reaching a final view as to the classification of the goods concerned, namely whether they are therapeutic goods within the meaning of the TG Act, or otherwise food within the meaning of the FSA.
Where the TGA concludes that a product should be categorised or classified as a therapeutic good (and not a food) the COMB may refer the matter to the Regulatory Compliance Branch of the TGA for further action. That branch Mr Henderson explained is primarily responsible for the enforcement provisions of the TG Act concerning therapeutic goods not entered in the Register.
Amongst other things, upon such a referral, the Registered Certification Body (‘the RCB’) may correspond with the supplier of the product. In such correspondence, the supplier may be advised that the product concerned cannot be supplied in Australia unless it is first entered into the register, or also unless otherwise subject to an exemption, approval or authority under the relevant provisions of the TG Act. The supplier is also advised in such correspondence that continued supply of such a product without entering it in the register, and presumably in the alternative obtaining an exemption, approval or authority under the TG Act, will amount to a contravention of the TG Act.
Mr Henderson explained in his affidavit if a dispute arises between the supplier of a product and the TGA as to whether the product is a food or medicine, usually the TGA may take several steps in an endeavour to resolve such a dispute. Those steps are:
(a)corresponding with the supplier of the product to discuss the issue and seek to resolve the dispute by consent;
(b)working with state and territory food regulators to ensure there is a consensus concerning whether the product is a food or a medicine;
(c)if there continues to be a dispute after engaging with the supplier of product and the relevant food regulatory bodies:
taking formal compliance or a enforcement action (such as the issue of infringement notices) against the supplier of the product concerning any ongoing importation, exportation, manufacture, or supply of that product; or
making a legislative instrument under the TG Act to clarify the regulatory status of the product, such as an instrument under s 7 of the TG Act declaring the product to be a therapeutic good.[11]
[11] Ibid 204, [20].
A BRIEF OVERVIEW OF THE APPLICANT’S INTERACTIONS WITH THE RESPONDENT
The applicant conducts a business which, amongst other things, develops and manufactures what it describes as ‘food for special medical purposes’ (‘FSMP’).
One of the products that the applicant produces is known as ‘Neurofolin’. The applicant states that Neurofolin is a product used for the dietary management of Folate Metabolism Disorders in patients diagnosed with Major Depressive Disorder (‘MDD’).[12] It was explained by Mr Henderson in his affidavit that Neurofolin is a water-soluble powder containing the active ingredient ‘L-methylfolate calcium’. He further deposed that the applicant’s sales promotional material for Neurofolin claimed that L-methylfolate calcium is known to be deficient in individuals with depressive disorders. It was also stated in such material that Neurofolin could assist in mood regulation and normal psychological function including when used together with anti-depressant therapies.[13]
[12] JTB, 14, [10].
[13] JTB, 206, [24].
The applicant contends that as Neurofolin is a FSMP it is a product governed by the provisions of the Australia New Zealand Foods Standards Code - Standard 2.9.5 - Food for special medical purposes (‘Standard 2.9.5’). This code provides a ‘standard’ within the meaning of s 4(1) of the FSA. Given this position adopted by the applicant that it was a food rather than a therapeutic good, it did not seek to enter Neurofolin in the register prior to placing the product on the Australian market.
In June 2018, COMB staff members of the TGA in the performance of their duties conducted an FMI assessment of Neurofolin. That FMI assessment reached a conclusion that Neurofolin should be classified as a therapeutic good not a food. Upon reaching this conclusion the TGA advised the applicant of this fact by an email on 7 June 2018.[14] It further advised the applicant that because Neurofolin was a therapeutic good it could not lawfully be sold by the applicant unless it was entered in the Australian Register of Therapeutic Goods.
[14] See, Exhibit ‘NDH-2’ to the Henderson affidavit. JTB, 214.
In response to the TGA concluding that Neurofolin was a therapeutic good, the applicant made detailed submissions during the months of June and July 2018, with supporting evidence to contend that it was a FSMP and not a therapeutic good within the meaning of s 3(1) of the TG Act.
Following the lodgement of the detailed submissions by the applicant with the respondent in the months of June and July 2018, the differences between the parties remained unresolved. Correspondence passed between the parties concerning the disagreement between them. Included in this correspondence was a letter of 25 October 2018 from the applicant’s then lawyers Clayton Utz to the respondent.[15] The disagreement or dispute between the applicant and the respondent continued throughout the remainder of 2018 and into 2019. Amongst the correspondence sent by the applicant and/or its then lawyers to the respondent was a Joint Opinion from Mr Lloyd SC and Ms Ellicott dated 21 December 2018 on whether it was reasonably arguable that Neurofolin is a FSMP. There were also detailed public and confidential submissions made by the applicant to the TGA on 18 September 2019.[16]
[15] JTB, 101.
[16] Ibid 116; 123.
The applicant also retained to prepare expert reports to organisations known as ‘Engel Hellyer & Partners’ and ‘FoodLegal’.[17] The reports subsequently prepared by each of these organisations concluded that Neurofolin was a FSMP within the meaning of standard 2.9.5 of the Food Standards Code. Each of these reports was submitted by the applicant to the TGA. Notwithstanding the receipt of these reports, the TGA maintained its position that Neurofolin is a therapeutic good.
[17] See, eg, a Compliance Review of Neurofolin prepared by Engel Hellyer & Partners for the applicant dated 12 September 2018. JTB, 81.See also, a letter from FoodLegal to the applicant on 30 August 2018. JTB, 89.
At some time in the year 2019, TGA staff proposed making a declaration by legislative instrument, that certain goods containing folate as an active ingredient, which included the applicant’s product Neurofolin, are therapeutic goods under the provisions of s 7 of the TG Act. Pursuant to the powers contained in s 7 of the TG Act, subsequently on 31 October 2019 the First Assistant Secretary, Medicines Regulation Division, made the Therapeutic Goods Amendment (Declared Goods) Order 2019 (Cth) (‘the Order’). The effect of the Order was, amongst other things, to declare the applicant’s product Neurofolin therapeutic goods.
For the purposes of these reasons the dispute between the applicant and the respondent about whether Neurofolin is a therapeutic good or a FSMP together with the respondent’s decision to make the Order, collectively shall be defined as ‘the Dispute’.
PROCEDURAL HISTORY
Unfortunately, this matter has a lengthy procedural history.
The applicant made a request under the FOI Act on 11 June 2020 seeking access to certain classes or categories of documents (‘the FOI request’).[18] The scope of the FOI request was as follows:
‘All documents held by the Therapeutic Goods Administration relating to the product Neurofolin, including (but not limited to):
· Reports
· Emails
· Correspondence
· Minutes or records of meetings
· Memoranda; and
· Diary entries.
[18]JTB, 378.
An initial decision and an internal review decision concerning the FOI request were made on 9 July 2020 and 9 November 2020. Details of those decisions need not be referred to for the purposes of these reasons.
Following these decisions, the applicant sought a review from the Office of the Australian Information Commissioner of the internal review decision made on 9 November 2020.
Whilst the review was being undertaken by the Office of the Australian Information Commissioner the parties, rather sensibly, negotiated concerning the scope of the FOI request. Eventually, on 24 December 2021, an agreement was struck between them revising the scope of the FOI request.
A further agreement was struck between the parties following more negotiation between them on 28 March 2022. The result of that agreement was in certain categories of the relevant internal information held by the respondent Department were deemed to be outside the scope of the FOI request.
It is useful to briefly touch on some aspects of the reviewable decision.
In making the reviewable decision the delegate set aside the internal review decision of 9 November 2020. In substitution she made a decision under subsection 55G(1) of the FOI Act and granted access to certain categories or classes of documents that had been identified in the revised scope of the applicant’s FOI request.
Helpfully, attached to the reviewable decision was a ‘Revised Schedule’ comprising 39 pages. Whilst the contents of the Revised Schedule speak for itself, amongst other things, it includes the ‘Author’ of the document, the ‘Parties’, ‘Date’, ‘Description of document’ and ‘Description of claims’.[19]
[19] Ibid 339.
The Delegate in making the reviewable decision determined the applicant’s FOI request as follows:
(a)to release 79 documents in full (with the relevant information redacted from all but one of the documents);
(b)to release 26 of the documents in the Revised Schedule in part (with the relevant information redacted), with information that is exempt under section 42 of the FOI Act on the basis that it is legal professional privilege information redacted;
(c)to release one of the documents in the Revised Schedule in part (with the irrelevant information redacted), with information that is exempt under section 47B of the FOI Act on the basis that it is Commonwealth-State relations information redacted;[20]
(d)not to release 4 documents on the basis that all information in those documents is irrelevant information in those documents are therefore outside the Final Scope of your request; and
(e)not to release 27 of the documents in the Revised Schedule on the basis that information in those documents is exempt under section 42 (legal professional privilege) of the FOI Act (and is otherwise information that is excluded from your Final Scope and/or is information already subject of release).
[20] Ibid 325.
THE FOI ACT
In undertaking an analysis of the application of the FOI Act a useful starting point is to consider its objects which are enumerated in section 3 of that Act. Amongst others, its objects are:
(1) To give the Australian community access to information held by the Government of the Commonwealth by, providing for a right of access to documents;
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(i) increasing public participation in Government processes, with a view to promoting better informed decision making; increasing scrutiny, discussion, comment and review of the Government’s activities; and
(3) The Parliament also intends that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Under section 11 of the FOI Act every person has a legally enforceable right to obtain access in accordance with the Act.
Section 11A(1) of the FOI Act ‘Scope’ provides for a request to be made by a person for access to documents.
Under Section 11A(3) of the FOI Act ‘Mandatory access-general rule’ an agency or Minister must give a person who has made a request access to the documents sought in accordance with the Act subject to that section.
Section 11A(4) of the FOI Act ‘Exemptions and conditional exemptions’ provides that the agency or Minister is not required by the Act to give the person access to the document at a particular time if, at that time, the document is an ‘exempt document’.
The expression ‘exempt document’ is defined in section 4(1) ‘Interpretation’ of the Act. Insofar as relevant to this application, and the exemptions claimed by the respondent, the definition in section 4(1)(a) provides that a document is exempt for the purposes of Part 1V. Part IV of the FOI Act ‘Exempt documents’, includes section 42 ‘Documents subject to legal professional privilege’.
Another section of the of the FOI Act that is relevant to the conduct of this application should also be referred to. Section 61(1)(b) ‘Onus’, provides that in proceedings under that Part for review of a decision in relation to a request, if the applicant in relation to the request, applied for the review, the agency to which, or the Minister to whom, the request, was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.
On its true and proper construction, the effect of section 61(1)(b) of the FOI Act is that when a review is conducted in this Tribunal, the respondent Department bears the onus of establishing facts necessary to support a conclusion that the relevant exemption that it relies upon, namely section 42 applies.
THE APPLICANT’S SUBMISSIONS
The applicant, concerning the claim for an exemption on the grounds of legal professional privilege under s 42 of the FOI Act, advanced several contentions in support of its view that the respondent’s claims for such exemption could not be established. In other words, the Tribunal infers that the applicant contends that the respondent has not discharged the onus cast upon it under section 61(1)(b) of the FOI Act as outlined above.
In developing these contentions, the applicant stated that it disagreed with the respondent’s claim for a s 42 exemption. Further, it contended that it does not have confidence that the respondent undertook an ‘unbiased application’ of the claim for legal professional privilege with respect to the relevant documents.[21]
[21] Ibid 13.
Another limb of attack on the claims for legal professional privilege under s 42 of the FOI Act relied upon by the applicant was that several of the documents did not arise from an independent lawyer client relationship. It submitted that legal professional privilege does not apply to commercial advice, even if given by a lawyer. In developing this contention, the applicant pointed to the fact that several of the documents concerned were sent to or authorised by an officer of the respondent Ms Francis. It points to the fact that Ms Francis occupied a position of ‘Principal Legal and Policy Advisor’[22] at the respondent the TGA. Therefore, she was in effect ‘wearing two hats’ or performing two roles. The applicant categorised those roles as ‘legal’ on the one hand and ‘operational’ on the other.[23]
[22] Ibid 18.
[23] Ibid.
In this setting the applicant contends that Ms Francis was discharging an operational role with respect to the respondent’s dealings with the applicant rather than sending or receiving communications, as an ‘in-house’ lawyer or as it is sometimes categorised ‘qua lawyer’. Examples of Ms Francis discharging what was described as an ‘operational role’ were identified by the applicant in support of its contentions concerning the role or function that she discharged when the relevant documents were created. One example identified by the applicant included a meeting that took place on 9 January 2019 between the respondent TGA and the Victorian Department of Health. It also identified a meeting between the applicant and the respondent TGA in Canberra on 28 May 2019. In these examples, the applicant described Ms Francis as ‘leading the meeting’. The inference being, the applicant contended, that Ms Francis in ‘leading the meeting’ was discharging an operational or executive function rather than that of an independent lawyer confidentially receiving instructions and giving legal advice, as a salaried legal officer of the TGA, which confidential communications would be subject to legal professional privilege.
The applicant in an email to the respondent’s lawyers of 6 February 2025 developed further arguments in support of its contention that the claim for an exemption under s 42 of the FOI Act by the respondent could not be established. Notwithstanding that the allegations contained in the applicant’s email of 6 February 2025 were extremely serious, against public servants and legal practitioners, and made very late in the proceedings the Tribunal permitted it to advance the contentions contained in the email. It is appropriate to briefly summarise the substance of those submissions.
In the email of 6 February, the applicant challenged the contention that the dominant purpose of each of the documents for which a s 42 claim for exemption was made was genuinely for the purposes of providing legal advice, or whether such documents were created to serve some other function.
Another contention advanced by the applicant in the email of 6 February was that there had been a ‘material waiver of privilege’ concerning document 36 and therefore, having released large portions of that document to the applicant but withholding other parts of it was an act inconsistent with the maintenance of the legal professional privilege claimed.
The applicant also contended in the email of 6 February that generally with respect to the claims for exemptions under s 42 for legal professional privilege that such claims had been used improperly. The claims were not in effect for communications created for the purposes of seeking or the giving of legal advice but rather for an ‘improper purpose’. It was also submitted in the email that there was ‘evidence of impropriety’ in the decision-making process leading to the making of the Order. In this setting it was said that 'Legal advice sought and received by the respondent may have been used improperly- not just to provide guidance, but to enable, conceal, or justify misconduct’. Therefore, it was contended that given evidence of impropriety in the decision-making of the Order, the Tribunal should review the documents for which an exemption under s 42 of the FOI Act had been claimed to determine whether legal professional privilege should be set aside for some of the documents under what was described as ‘the improper purpose exception.’ In oral submissions to the Tribunal during the hearing the applicant expanded on this contention by stating that the respondent had ‘acted unlawfully and failed to follow process’ and amongst other things, had ‘unreasonably failed to institute administrative procedures and in making the declaration engaged in unlawful and defective administration.’
The Tribunal took this submission to be based upon what is sometimes known as the ‘crime and fraud exception’ derived from the English decision of R v Cox and Railton (‘Cox v Railton’).[24] However, it was held in that case that fraud in that connection is not limited to the tort of deceit and includes all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances.[25] The exception has even been held to extend to circumstances where a client seeks advice to frustrate or disobey a court order or to otherwise frustrate the course of justice.[26] It even applies to a deliberate abuse of a statutory power conferred upon a party.[27]
[24] (1884) 14 QBD 153.
[25] The application of the doctrine was very helpfully summarised by Wilson J in Attorney-General (NT) v Kearney (1985) 158 CLR 500.
[26] Martin v Norton Rose Fulbright (No 2) [2019] FCA 96 ('Martin’), [89] (Charlesworth J).
[27] A comprehensive analysis of the exception, its application and the requirements of establishing that the principle applies is contained in the decision of Young J in AWB Ltd v Cole (2006) 234 ALR 651 at paragraphs [210] to [219].
LEGAL PROFESSIONAL PRIVILEGE
The rule of legal professional privilege attaches to confidential communications, oral or in writing, passing between a client and a legal advisor if such communication was made either:
(a)to enable the client to obtain or the advisor to give legal advice or assistance (often referred to as ‘advice privilege’); or
(b)with reference to litigation that is actually taking place or was in the contemplation of the client (often referred to as ‘litigation privilege’).[28]
[28] See JD Heydon ‘Chapter 13 Privilege’ Cross on Evidence, Lexis Nexis (July 2024), [25210] for an accurate summary of ‘The Rule’.
As it assumes considerable importance in this application reference should be made to the question of waiver of legal professional privilege. The topic has been subject of much judicial consideration. A person who is otherwise entitled to the benefit of legal professional privilege in a communication may of course waive such privilege. A waiver occurs where a person entitled to the benefit of the legal professional privilege performs an act which is inconsistent with the confidence preserved by it.[29] Waiver of legal professional privilege may be either express or implied. Insofar as it is an implied waiver which arises from conduct that is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect, such waiver is said to be ‘imputed by operation of law’.[30]
[29] Mann v Carnell (1999) 201 CLR 1, [28].
[30] Ibid [29].
Waiver, is as the High Court of Australia observed in Mann v Carnell a vague term, often used in many senses which frequently require further definition according to context.[31] It can be deliberate or inadvertent. The critical factor is inconsistency between conduct of the client and maintenance of the confidentiality. Examples have been given which include disclosure by a client of the client’s version of a communication with the lawyer, which entitles a lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received.[32]
[31] Ibid [28].
[32] Ibid [28]-[29].
A party alleging or asserting that there has been a waiver of legal professional privilege bears the onus of establishing that there has been a waiver of that privilege in each case.[33]
[33] Martin (n 26) [85].
The application of the rule of legal professional privilege to communications with what are sometimes described as ‘in-house’ or a government department’s ‘salaried legal officers’, which is quite a common occurrence these days, has been the subject of judicial consideration in several Australian courts.
The High Court of Australia has held that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connection with anticipated or pending litigation. Provided the sole purpose test is satisfied, it is submitted that it is inappropriate to draw an arbitrary line through the functions of government in order to exclude the privilege from those described of an administrative nature.[34]
[34] Waterford v Commonwealth of Australia (1987) 71 ALR 673, [6]
Accordingly, where there is a salaried legal officer employed by the respondent it is necessary to consider precisely in what capacity such legal advisor deals with the communication or document concerned. It is only a communication which is sent or received by a lawyer as a lawyer, that is entitled to protection under the rule. However, as has been observed in the Federal Court of Australia, ‘there is no bright line separating the role of an employed legal counsel as a lawyer advising in-house and his participation in commercial decisions’.[35] The two are often intertwined and privilege should not be denied simply on the basis of some commercial involvement.[36]
[35] Seven Network Limited v News Limited [2005] FCA 142, [38] (Tamberlin J).
[36] Ibid.
It has also been held that the mere fact a legal advisor is an employee or salaried legal officer, and his duties may involve performing nonlegal work, does not establish that at the relevant time he was not acting independently. An essential element necessary to lay the foundation of the claim for legal professional privilege is that at the relevant time the salaried legal officer was in fact performing or discharging legal functions.[37]
[37] Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131, [81].
THE APPROACH OF THE RESPONDENT
Given, as noted above that the respondent bears the onus under the provisions of s 61(1) (b) of the FOI Act it is appropriate first to consider the approach of the respondent.
Dr Gilmour-Walsh is a highly experienced legal practitioner of many years standing. Presently, she is the Principal Legal and Policy Advisor of the Regulatory Legal Services Division (‘RLSD’) of the Commonwealth Department of Health and Aged Care (‘the Department’). She has occupied this position since approximately December 2022. The RLSD discharges the function of providing legal services to the Healthcare Products Regulation Group (‘HPRG’) of the Department, including the TGA. Her affidavit addresses the respondent’s claim for an exemption under s 42 of the FOI Act for legal professional privilege.
Further, in her affidavit, Dr Gilmour-Walsh provided an explanation of the structure and functions of the RLSD. It is not necessary to examine in detail such structure and functions as she deposed to. However, some brief reference to it should be made for the purposes of context and an explanation of the processes adopted by the respondent. She explained that the RLSD during the time in which the documents at the subject of the applicant’s FOI request, consisted of a single branch, being the Regulatory Legal Services Branch (‘RLSB’).
The RLSB comprised two practice groups. Those practice groups were:
(a)the Legal Advising and Legislation Practice Group, which amongst other things, was responsible for the provision of legal advice on a range of subjects, other than commercial law, the drafting of legislative and administrative instruments together with liaising with the Office of Parliamentary Counsel concerning the drafting of primary legislation and regulations; and
(b)the Commercial and Dispute Resolution Practice Group which is responsible for:
(i) providing advice on commercial law issues;
(ii) acting for the Minister or the Secretary (as relevant) in applications made to the Administrative Appeals Tribunal for a review of decisions made by HPRG staff; and
(iii) engaging and working with external legal services providers in relation to litigation brought by or against the Secretary or the Minister in other courts or tribunals; and
(iv) providing advice in matters which may result in litigation, including advice concerning contentious administrative decisions and the issue of infringement notices.
It was also explained by Dr Gilmour-Walsh that the RLSD retains external legal advisers to provided legal advice or other legal services to the HPRG. Such providers include the Australian Government Solicitor, legal services providers on the ‘Whole of Australian Government Legal Services Panel’ and of course barristers.[38] The arrangements or protocols for the retainer of external legal advice or as she described it, ‘[o]utsourcing of legal work’ was deposed to in some detail. It need not be reproduced for the purposes of these reasons.
[38] JTB, 222.
Several matters should be referred to concerning lawyers retained or employed in the RLSD. Naturally, they are all admitted to practice as Australian legal practitioners. They are expected to and do hold a current practising certificate issued by the legal regulator in each state or territory in which they practice. Additionally, such lawyers employed in the RLSD are required to adhere to all rules of professional conduct that apply to the jurisdiction in which they practice. It was emphasised by Dr Gilmour-Walsh in her affidavit that lawyers employed in the RLSD, as one would expect, are obliged to comply with their ethical obligations and rules of conduct. They are also expected to provide legal services in a competent, diligent and professional manner consistent with the independence expected of an Australian legal practitioner. This is hardly controversial.
As for the PLPA (‘Principal Legal and Policy Adviser’) role, which prior to Dr Gilmour-Walsh serving in that position, was occupied by Ms Francis. Dr Gilmour-Walsh explained that her role involves the provision of legal advice, oversight over the delivery of legal services furnished by the RLSD more generally, and a policy advisory role. She deposed that there was, and is, a strict delineation, or perhaps one might say a line drawn, between her ‘legal’ and ‘policy’ functions. It was her belief that Ms Francis when occupying that role adopted or followed the same practice.
Critically, for the purposes of this application to the extent that the documents she identified as comprising communications and referred to in paragraphs 26 to 35 and 38(b) of her affidavit, she formed the belief or opinion that based upon a review of those documents Ms Francis was acting in a legal, rather than a policy capacity in sending and receiving each of the communications comprised in those documents.
Dr Gilmour-Walsh in her affidavit deposes that she reviewed the FOI documents for which exemptions had been claimed under s 42 of the FOI Act (legal professional privilege). Candidly, she stated that in reviewing such documents she identified several which had appeared to her both from her enquiries and an examination of the content of the documents, that at least some of them, or parts of them, for which an exemption had been claimed under s 42 were not clearly confidential communications for the purposes of a lawyer furnishing legal advice to a client, which of course is a necessary condition to be satisfied for such document or communication to attract legal professional privilege.
Exhibited to Dr Gilmour-Walsh’s affidavit and marked with the letters ‘BNG-1’ are copies of FOI documents numbered 7, 31, 57 and 72. These mostly unredacted documents include material which had been previously redacted from the copies of documents released to the applicant by reason of the reviewable decision. The respondent has, following the review by her decided not to press, or otherwise abandoned, the claim in respect of legal professional privilege with respect to those documents.
Further, annexed to Dr Gilmour-Walsh’s affidavit and marked with the exhibit number ‘BNG-2’ were copies of documents 14, 34, 36, 61, 94 and 101. Dr Gilmour-Walsh has deposed in her affidavit that the copies of those FOI documents comprising exhibit number ‘BNG-2’ to her affidavit have been redacted to remove a more limited amount of material than for which an exemption was claimed in the reviewable decision.[39] She has further deposed that the documents comprising exhibit number ‘BNG-2’ to her affidavit have now been redacted only to conceal:
(a)material which she is informed the applicant had agreed to remove from the scope of its FOI request, such as the names of TGA officers below the SES level; and
(b)parts of those documents which are email correspondence between RSLD lawyers and TGA staff, or between RLSD lawyers, and attachments to such correspondence, which are or otherwise disclose communications for the purpose of a lawyer providing legal advice to a client or in relation to the Dispute or the Order.
[39] Ibid 227, [38].
Turning to the remaining documents that are subject to a claim for exemption under s 42 of the FOI Act, Dr Gilmour-Walsh deposes to several further matters that warrant mention.
It is apparent that as the exchange of communications between the applicant and the Respondent TGA evolved, as briefly touched on above, there was a clear disagreement between them concerning the Respondent’s classification of Neurofolin as a ‘therapeutic good’ rather than as a FSMP within the meaning of standard 2.9.5 of the Food Standards Code. This is the gravamen of the dispute between the parties.
Dr Gilmour-Walsh deposed that prior to and after the making of the Order, the RSLD provided legal advice to the Respondent TGA and its officers concerning various matters with respect to such order. This appears perfectly understandable and hardly controversial.
In her affidavit addressing claims for legal professional privilege under s 42 of the FOI Act, Dr Gilmour-Walsh has helpfully divided the documents in issue into three discrete groups or categories as follows:
(a)‘Email correspondence concerning the Dispute or the Order’;
(b)‘External legal advice in relation to the Dispute’; and
(c)‘Other documents’.
In the category ‘Email correspondence concerning the Dispute or the Order’, Dr Gilmour-Walsh identifies the relevant documents by number referred to in the Schedule of FOI documents.[40] She deposes that they comprise email correspondence between RLSD lawyers and TGA staff, or alternatively between RLSD lawyers, and attachments to such correspondence.
[40] For the avoidance of any doubt the FOI documents referred to by Dr Gilmour-Walsh are 2-4, 9, 15, 16.3, 18, 20-24, 26, 27, 29, 38-43, 49, 53-56, 85, 90, 91, 91.1, 93, 98, 99, 119, 120, 122, 135 and 136. Paragraph 27 of her affidavit is referred to being JTB, 225.
With respect to the exemption claimed for legal professional privilege under s 42 of the FOI Act, Dr Gilmour Walsh deposed that the relevant documents were redacted because those parts of them are or would disclose confidential communications created for the purpose of seeking or providing legal advice in relation to the dispute or the order. This advice sought or given included, amongst other things, advice concerning legal issues relating to the dispute or the order and also, the options available to the TGA to manage such issues.
The documents identified in the reviewable decision in the category of, ‘Email correspondence concerning the Dispute or the Order’ which were determined to be exempt in full under s 42 of the FOI Act, it was deposed to by Dr Gilmour Walsh, contained material that comprises, or would disclose the content of, communications made for the purpose of requesting or providing legal advice in relation to the Dispute or the Order. These communications included the seeking and provision of advice concerning legal issues relating to the Dispute or the Border and the options available to the TGA to manage such issues.
One other matter was deposed to by Dr Gilmour-Walsh concerning this class or category of documents within the scope of the applicant’s FOI request that should be mentioned. Document 16.3 of the FOI documents was redacted claiming an exemption for legal professional privilege under s 42 of the FOI Act. Following her review of an unredacted copy of that document she identified that the redacted information was the name and position of a TGA officer below the Senior Executive Service (‘SES’) level, rather than information that is subject to a claim for legal professional privilege within the meaning of that section of the FOI Act.
Dr Gilmour-Walsh in her affidavit deposed to the matters relied upon by the respondent in claiming an exemption for legal professional privilege under s 42 of the FOI Act for documents falling within the category or class described as, ‘External legal advice in relation to the Dispute’.[41]
[41] JTB, 226, [31] - [36].
Document 25 was said by Dr Gilmour-Walsh to be a document provided to an external legal services provider for the purpose of engaging them to provide legal advice concerning legal issues relating to the Dispute.
Document 48 comprises email correspondence between RLSD lawyers concerning the procurement of the external legal services provider to provide that advice, including the terms of the advice as requested. This is no doubt a document that gives rise to a lawyer client retainer. The attachments to Document 48 are described as FOI documents 48.1 to 48.4. They are said by Dr Gilmour Walsh to be documents prepared for the purposes of obtaining the relevant advice from the external services provider. This would clearly constitute a document giving rise to a lawyer client retainer.
Document 27 is, according to Dr Gilmour-Walsh an email chain containing internal correspondence between RLSD lawyers concerning the advice provided by the external legal services provider. Additionally, such email chain included correspondence between the RLSD and the external legal services provider. Attached to that document are Word and PDF copies of the external legal advice.
Document 28 is a file note which summarises a discussion between RLSD lawyers concerning external legal advice that had been received for the purposes of providing such legal advice to the TGA following receipt of such external legal advice.
Document 35 is a response to a Ministerial Information Request (‘MIR’). Dr Gilmour Walsh deposed that an MIR is a request from the Minister to the Department for information about a particular subject. The subject in this matter of course is the issue relating to Neurofolin. She deposes that the portion of the MIR document that has been redacted refers to the request for advice from the external legal services provider, including the subject matter of the advice requested.
CONSIDERATION
Introduction
Each of the grounds of challenge to the claims for legal professional privilege which have been summarised in the section above entitled ‘Applicant’s Submissions’ will now be addressed.
At the outset of this consideration the Tribunal, as already noted above, and was expressed during the hearing of the application by it, considers that the allegations contained in the applicant’s email of 6 February 2025 are extremely serious allegations to make against public servants and salaried lawyers engaged by the respondent. As was also noted during the hearing, as is evident from the evidence of Dr Gilmour-Walsh, all of the salaried lawyers referred to in the documents for which an exemption has been claimed, apart from holding senior positions, and obviously being of many years’ experience, are by virtue of their admission to practice as an Australian lawyer obliged to discharge their duties in accordance with their ethical obligations and professional conduct rules applicable in each jurisdiction. It should not be lost sight of that each of those lawyers at the time of their admission gave an oath or affirmation to properly demean themselves in the office of an ‘Australian legal practitioner’, or as in past years ‘barristers’ and/or ‘solicitors’, depending on the jurisdiction.
Did the respondent improperly claim legal professional privilege under s 42 of the FOI Act, or otherwise address the applicant’s FOI claim in some biased way?
The applicant in submissions suggested that the respondent acted in some kind of ‘biased’ way in making the claims for legal professional privilege under s 42 of the FOI Act. Unfortunately, there was no evidence before the Tribunal either in documentary form or in the affidavits lodged which substantiated these allegations. Mr Hughes a director of the applicant, in his submissions contended that from his engagement with the respondent and the observation of others, (quite who it was not identified, however giving the applicant the benefit of the doubt it assumes these others to be legal advisers and experts retained by the respondent from time to time who have been referred to earlier in these reasons), that it was the most extreme example of defective administration. He further went on to describe the respondent TGA’s actions as ‘shambolic’. He further stated he had serious concerns about the respondent’s willingness to act impartially.
The submissions as put by the applicant on this question at times conflated the issue of a claim for legal professional privilege under s 42 of the FOI Act with the dispute which had emerged between it and the respondent concerning the question of whether Neurofolin is a therapeutic good or food, the circumstances surrounding the making of the Order and its subsequent claim for compensation against the TGA under the ‘Scheme for Compensation for Detriment Caused by Defective Administration’.[42] The question is simply whether the respondent discharged its onus to establish that it has made a proper claim for an exemption on the grounds of legal professional privilege under s 42.
[42] See documents concerning this claim which are to be found at tab number 2.22 of the JTB.
Insofar as the Tribunal comprehends this ground of opposition to the respondent’s claim for an exemption for legal professional privilege under s 42 of the FOI Act it cannot accept it. There are several reasons for this.
Primarily, there is the evidence of Dr Gilmour-Walsh concerning several relevant matters. In considerable detail she explained how the respondent sought and received legal advice from both salaried legal officers employed by it and external legal services providers. Additionally, she explained in considerable detail the background to the claims for legal professional privilege and the several documents in issue concerning such claims. She also deposed to the fact that she had reviewed and redacted copies of the documents claimed by the respondent to be exempt under s 42 of the FOI Act.
The Tribunal accepts Dr Gilmour-Walsh’s evidence in its entirety. It does so for several reasons. Firstly, she is an Australian legal practitioner of more than 30 years standing. She occupies a very senior public position as the PLPA of the RLSD in the Department.
Dr Gilmour-Walsh, when she became involved in this FOI application undertook her own separate review of the documents concerned. It is apparent that she brought an independent and considered mind to the task. It is evidenced by the fact that as a result of her review, documents for which previously there had been a claim for legal professional privilege were released to the applicant, as she considered that some of those communications were clearly not confidential for the purpose of a lawyer providing legal advice to a client. Apart from bringing a considered an independent mind to the task of such review, it strikes the Tribunal that Dr Gilmour-Walsh also acted in a responsible way, particularly that expected of a model litigant such as the respondent TGA. It is hardly indicative of a biased approach, whatever that may mean.
Finally, on this question of bias it should also be recalled that Dr Gilmour-Walsh was not required by the applicant for cross examination. Her evidence was unchallenged. The Tribunal sees no reason not to accept what she deposes to in her affidavit. Had Dr Gilmour- Walsh been required to attend for cross examination the applicant could have put the allegations to her and invited her explanation. That this did not occur only fortifies the Tribunal in accepting her evidence in its entirety. It seems to the Tribunal that Dr Gilmour-Walsh, as already noted, is a vastly experienced lawyer and public servant who would have absolutely no reason to give her evidence other than in a proper and candid manner.
Finally, on the question of bias as contended for by the applicant, as observed earlier, the Tribunal has had the opportunity to inspect carefully the exempt documents which were submitted to it in accordance with the provisions of s 64(1A) of the FOI Act. From this examination by the Tribunal as aforesaid, there was nothing observed which would indicate that the remaining documents were the subject of anything other than a legitimate claim for legal professional privilege. They were clearly confidential communications to and from salaried legal advisers, and external legal services providers, created for the purposes of giving and receiving legal advice concerning the dispute between the applicant and the respondent concerning the question of whether Neurofolin is a therapeutic good or a food and also the circumstances surrounding the making of the Order.
Was Ms Francis performing an operational role rather than a legal role when the relevant documents were created?
As noted above, where a salaried legal officer is employed by a department or agency it is necessary to consider precisely in what capacity such legal advisor creates, receives or otherwise deals with the communication or document concerned. The Tribunal is mindful that, as also observed, there is no bright line separating the role of an employed legal counsel as a lawyer advising in-house and his participation in commercial decisions. The warning that privilege should not be denied simply on the basis of some commercial involvement assumes significant relevance to this matter.
The Tribunal is not satisfied that there has been an improper claim of an exemption for legal professional privilege under s 42 of the FOI Act concerning documents of which Ms Francis was the author or received in the course of her duties. The fact that she may have led a meeting on several occasions does not mean that documents created by her or received by her for the purposes of giving and receiving advice both with respect to the making of the Order and with respect to the dispute with the applicant cannot be subject to an appropriate claim for legal professional privilege.
Once again, the Tribunal was persuaded by the matters deposed to on this topic by Dr Gilmour-Walsh in her affidavit. Upon which she was not cross-examined and such evidence is unchallenged. It will be recalled that she deposed to the fact that to the extent that any of the communications involve Ms Francis she had formed the belief based upon her review of each of the communications that, Ms Francis was acting in her legal rather than policy capacity in sending and receiving those communications. This evidence is accepted by the Tribunal.
On this matter it should be viewed with a degree of realism. By the time Ms Francis created the relevant documents or received them the dispute had gone on for some time and canvassed a variety of opinions and other material relied upon by each of the parties in reaching the conclusions they did about whether Neurofolin was a therapeutic good or a food. There was also the question of the making of the Order. It was logical for the respondent TGA to seek legal advice not only from Ms Francis who at that time held the position of PLPA but also the several salaried lawyers employed by it concerning these two questions.
Once again, the Tribunal has had the opportunity to examine the documents concerned that were either created by Ms Francis or received by her and it considers that a proper claim for an exemption on the grounds of legal professional privilege under s 42 of the FOI Act has been established.
Was there a waiver of privilege for Document 36?
As observed earlier where it is alleged that privilege previously existing in a communication has been waived, the onus rests upon the party asserting such waiver. What is critical in this consideration of course is identifying an inconsistency between the conduct of the party seeking or receiving the legal advice and the maintenance of the confidentiality with respect to such communications. Such waiver may be express or implied.
As the foundation of the applicant’s submissions concerning document 36 rely upon those portions of the document that have been released it is necessary to examine the document in its entirety to reach a conclusion on this question.
As is common these days document 36 consists of what is frequently described as an ‘email chain’ passing between various individuals. The document comprises 11 pages. Several things emerge from an examination of the document that it is appropriate to observe. The portions of the document that have been released do not contain any request for legal advice, nor the provision of any legal advice. It is not an act that is inconsistent with the maintenance of the claim for privilege. The portions of the document for which a claim of legal professional privilege has been made reveal that they are emails circulated to the majority of the salaried or ‘in-house’ lawyers employed by the TGA and identified in the aid memoire furnished by the respondent. Those emails seek legal advice and provide legal advice. Whilst those emails, understandably are expressed in a manner that would differ from conventional correspondence to and from an externally retained legal firm it does not deprive them of either the indicia of confidentiality or their qualities of being created for the purposes of seeking and giving legal advice in the relevant sense. The Tribunal is unable to conclude that the release of certain portions of document 36 constitute either an express or implied waiver of any legal professional privilege otherwise contained in the document.
The improper purpose allegations
Details of the applicant’s submissions concerning this limb of challenge to the claim for an exemption for legal professional privilege under s 42 of the FOI Act have already been canvassed in some detail. It is contended by the applicant that the legal advice that the respondent sought and received had been used for an improper purpose to enable, conceal or justify misconduct. In particular, the applicant contends that such misconduct or improper purpose was engaged in by the respondent in making the Order, which it will be recalled was a direction under s 7 of the TG Act that Neurofolin is a therapeutic good.
The applicant developed an argument relying upon the contents of an email from Ms Francis to several parties, which included salaried lawyers employed by the TGA, on 15 October 2019 prior to the Order being made. It further contended that from an examination of that email it is apparent that Dr Cook was only ‘assigned’ to make the proposed Order on about the date of the email. It was contended further by the applicant, only by evidence from the bar table, that there were no submissions or other material supporting the proposed Order, that another officer of the respondent had previously been allocated the task of making the proposed Order. By reason of these facts, it gave rise to what was described as ‘apprehended or actual bias’. The submission was also made that Ms Francis asked Dr Cook to make the proposed Order and she agreed to do so. Collectively, it was contended that these facts (if they indeed be established) establish that the Order was made for an improper purpose.
For the crime and fraud or Cox v Railton principle to apply there must be more than mere assertion or allegation of fraud or impropriety. Helpfully, in AWB Ltd v Cole (No 5) Young J considered several authorities that address what test needs to be satisfied when seeking to apply the principle.[43] It has been expressed in several different ways including, reasonable grounds for believing that the relevant communication was for an improper purpose, one of a prima facie case, something to give colour to the charge, some prima facie evidence that the allegation has some foundation in fact.
[43] (2006) 234 ALR 651, [217] - [218].
The Tribunal considers that the applicant has not laid an appropriate evidentiary foundation to enable the principle to be applied to any of the documents of the respondent for which an exemption for legal professional privilege under s 42 of the FOI Act has been claimed.
Most of the allegations made by the applicant consisted of nothing more than evidence from the bar table. As for the email from Ms Francis of 15 October 2019, there is nothing arising from it or the circumstances surrounding its creation that enables one to conclude that the respondent, it’s salaried legal officers and any other officers employed by it engaged in anything that amounted to an improper purpose as contended.
On a true and proper construction of the email of 15 October 2019 it reveals that Dr Cook was aware of the proposed instruments of declaration to enable her to make the Order and had agreed to do so. There is absolutely nothing in that document that provides any ground for asserting that there was an improper exercise of the power, which she clearly had the right to exercise, as she subsequently did.
Also, there is an issue of procedural fairness that arises here. No witness of the respondent was cross examined and had these very serious allegations put to them. In particular Dr Gilmore-Walsh or even Ms Francis. Dr Gilmour-Walsh’s evidence was unchallenged. It should be reiterated that the applicant’s allegations concerning the so-called improper purpose touch on the conduct of several legal practitioners and senior public servants. To make a finding that they have acted for an improper purpose will not be made lightly. At best following the observations of Young J in AWB v Cole (No 5) there has been nothing more than a mere assertion or allegation of impropriety of acting for an improper purpose.[44] No prima facie case or reasonable grounds for believing that the communications concerned were created for an improper purpose has been established.
[44] Ibid [217].
CONCLUSION
The Tribunal has concluded by reason of the foregoing matters that the respondent has discharged the onus cast upon it by s 61(1)(b) of the FOI Act. Accordingly, the reviewable decision as varied on 7 and 11 February 2025 will be affirmed.
I certify that the preceding 126 (one-hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, General Member
......................[SGD]...........................
AssociateDated: 27 February 2025
Date(s) of hearing: 11 and 12 February 2025 Solicitors for the Applicant: Self-represented Solicitors for the Respondent: Australian Government Solicitor Advocate for the Respondent: Ms Edwina Smith
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