Hutchinson and Comcare (Freedom of information)

This matter concerned an appeal from a decision of the Australian Information Commissioner regarding a request for access to a document under the *Freedom of Information Act 1982* (Cth). The applicant sought access to a document which Comcare claimed was subject to legal professional privilege. The Administrative Appeals Tribunal was required to determine whether the disputed document was indeed subject to such privilege and therefore exempt from disclosure.

The Tribunal considered the requirements for establishing legal professional privilege, including the existence of a legal adviser-client relationship, the independent nature of the advice, and its confidentiality. Crucially, the Tribunal also examined whether Comcare had waived its privilege over the document, either expressly or impliedly. The legal principle applied was that privilege exists to protect the confidentiality of communications between lawyer and client, and it is the client who is entitled to the benefit of this confidentiality and who may relinquish it through conduct inconsistent with maintaining that confidentiality.

In its reasoning, the Tribunal found that the disputed document, a letter of advice from an external law firm to Comcare, satisfied the criteria for legal professional privilege. It was established that a legal adviser-client relationship existed, the advice was independent and confidential, and the dominant purpose of the document was the provision of legal advice. Furthermore, the Tribunal accepted evidence that Comcare had a clear internal practice for waiving privilege, which had not been followed, and there was no evidence of any conduct inconsistent with the maintenance of privilege, such as wide distribution or other actions that would indicate an implied waiver.

Consequently, the Tribunal concluded that the disputed document was subject to legal professional privilege and was therefore exempt from disclosure under section 42 of the *Freedom of Information Act 1982* (Cth). The Reviewable Decision of the Australian Information Commissioner was affirmed.