Leichsenring and Secretary, Department of Defence
[2020] AATA 1157
•4 May 2020
Leichsenring and Secretary, Department of Defence [2020] AATA 1157 (4 May 2020)
Division: FREEDOM OF INFORMATION DIVISION
File Number(s):2019/4860
Re:Michael Leichsenring
APPLICANT
Secretary, Department of DefenceAnd
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries AO
Date:4 May 2020
Place:Canberra
The Tribunal affirms the decision of the Acting Australian Information Commissioner in Michael Leichsenring and Department of Defence [2019] AICmr 51, refusing access to one document in full and one document in part under s 42 of the Freedom of Information Act 1982.
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Deputy President Gary Humphries AOCatchwords
FREEDOM OF INFORMATION – exempt documents – legal professional privilege – whether legal professional privileged waived – decision under review affirmed
Legislation
Freedom of Information Act 1982
Cases
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
College of Law Limited v Australian National University [2013] FCA 492
Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49
Gaynor v Chief of the Defence Force (No 2) [2015] FCA 817 at [54].
Mann v Carnell [1999] HCA 66
Michael Liechsenring and Department of Defence [2019] AICmr 51
Millar v Bornholt (2009) 177 FCR 67
Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356
Osland v Secretary, Department of Justice [2008] HCA 37
Queensland Local Government Superannuation Board v Allen [2016] QCA 325
Rich v Harrington [2007] FCA 1987
Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445
REASONS FOR DECISION
Deputy President Gary Humphries AO
4 May 2020
INTRODUCTION
These proceedings concern a decision of the Acting Australian Information Commissioner (the Commissioner) in Michael Liechsenring and Department of Defence [2019] AICmr 51, which refused access to one document in full and one document in part under s 42 of the Freedom of Information Act 1982 (the Act). Mr Leichsenring has applied to the Tribunal seeking access to these documents which were found by the Commissioner to be exempt under that section of the Act.
BACKGROUND
Mr Leichsenring has been an officer in the Australian Army for many years. In 2007 the Army announced the introduction of the Army Expansion, Rank Retention and Completion Bonus (the AERRCB or the Scheme), a scheme designed to pay a bonus to members in certain ranks to encourage them to serve longer in those or higher ranks.[1] Mr Leichsenring sought to obtain a bonus under the Scheme but was informed that he was ineligible.
[1] The use of italics in this decision generally denotes a direct quotation.
He subsequently submitted a claim for an Act of Grace payment in lieu of the bonus. In the course of that claim being considered the Department of Defence’s (the Department) then Director Entitlements, Mr Peter Redston, expressed the opinion in June 2008 that the Scheme’s criteria had been incorrectly applied in the case of Mr Leichsenring, and that, had it been correctly applied, he would …have been offered the bonus.
Mr Leichsenring also submitted an application for a redress of grievance in relation to the decision that he was ineligible for the Scheme.[2] On 21 November 2011, the Deputy Chief of Army, Major General Sengelman, decided not to uphold the redress of grievance. Gen Sengelman’s determination referred to legal advice which had been obtained by the Secretary of the Department from Sparke Helmore Lawyers, saying, inter alia:
During my review of your ROG it became apparent that sufficient ambiguity existed in the wording of the PACMAN (and the AERRCB Determination) as to warrant an expert legal opinion. My review sought and received this advice from a law firm external to Defence. In essence, the advice supported the position that the intention of the AERRCB bonuses was to maintain an existing personnel asset whose skills were current and encourage them to serve longer in their existing and higher ranks. The legal advice holds that, consistent with the intention of the bonus, the continuous period of qualifying service must have been contemporaneous with, that is immediately prior to, the qualifying date of 01 March 2007. Had the Determination been meant to be interpreted more openly, it would have been drafted in such a way as to recognise a member who had held the relevant rank at any time prior to the qualifying date of 01 March 2007; it did not.
[2] For further information about the nature and function of redress of grevious schemes see Millar v Bornholt (2009) 177 FCR 67.
The application for redress of grievance was then referred to the then Chief of the Defence Force (CDF), General David Hurley. In July 2013, Gen Hurley also determined that the application was not substantiated. In writing to Mr Leichsenring to convey his decision, he referred to the legal advice obtained by the Secretary in these terms:
Your argument for interpretation of policy in your favour relies on your contention that the qualifying provisions of the retention bonus are ambiguous and therefore open to interpretation. Expert legal opinion has been sought and provided regarding any ambiguity in the Determination qualifying provisions. The AERRCB Determination, Deference Determination 2007/07 is a ‘rule based’ Determination. The Determination outlines the preconditions for the entitlement. There are no criteria within it that require a discretionary decision to be made and therefore no decision making powers (authorising provision) are contained within the Determination.
Gen Hurley also said:
Your referral also asked whether subsequent to the recent legal advice DE has provided a different view to that of 03 June 2008. Then DE (Mr Peter Redston) was asked to reconsider his original position. His response indicates that the legal advice of 25 May 2011 has caused him to support the view that the Determination requires an AERRCB eligible major to have three years continuous full-time service immediately prior to the specified date, in your case 01 March 2007.
In June 2017 Mr Leichsenring made a request for access to two documents under the Act, being:
(a)the AERRCB Terms of Reference that the Secretary provided to Sparke Helmore in the course of commissioning legal advice (the Request); and
(b)the AERRCB independent external legal advice that was provided to the Secretary (the Advice).
In the same month the Department decided that these documents were exempt from release pursuant to s 42 of the Act, in that they were documents covered by legal professional privilege. The Department affirmed this decision following a request for internal review, and Mr Leichsenring then applied to the Commissioner in August 2017 for review of that decision. On 1 July 2019, following the lodgement of written submissions by both parties, the Commissioner set aside the Department’s decision, substituting a decision that the documents were exempt except for the material below subheading c in the Advice. The Commissioner reached her decision on the basis that the conclusion of the legal advice referred to in the material below subheading c had been disclosed in Gen Sengelman’s determination of November 2011, and that this disclosure was inconsistent with the maintenance of the confidentiality protected by the [legal professional] privilege in the Advice. As such the privilege had been waived pursuant to s 42(2) of the Act.
In this decision I describe the Request and that part of the Advice to which the Commissioner determined access should not be given as the exempt documents. In an application dated 16 August 2019 Mr Leichsenring sought merits review in the Tribunal of the Commissioner’s decision of 1 July 2019. In that application he seeks access to the exempt documents.
THE LEGISLATION
Section 11 of the Act provides:
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
Section 42 of the Act provides:
(1)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.
(2)A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
ISSUE BEFORE THE TRIBUNAL
Sparke Helmore Lawyers were employed by the Secretary as the Department’s external legal advisor to provide advice about the eligibility criteria for the AERRCB. A professional lawyer-client relationship therefore existed between the Secretary and Sparke Helmore. Legal professional privilege attaches to a confidential communication between lawyer and client made for the dominant purpose of the giving or receiving of legal advice, or for the dominant purpose of use in existing or anticipated litigation, provided privilege has not been waived: Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49.
Having had the advantage of viewing the exempt documents, it is clear to the Tribunal that the Request was created for the dominant purpose of the Secretary seeking legal advice from Sparke Helmore in relation to the eligibility criteria for the AERRCB, and the Advice was clearly provided by Sparke Helmore for the dominant purpose of providing such advice. It is also evident that the Request was made and the Advice given on the understanding that there existed the usual and well-established relationship of confidence between a solicitor and a client governing such communications; see for example Gaynor v Chief of the Defence Force (No 2) [2015] FCA 817 at [54].
The Tribunal understands that it is common ground that the Request and the Advice are documents which attract legal professional privilege pursuant to s 42(1). Although Mr Leichsenring evidently advanced an argument before the Commissioner that at least part of the exempt documents did not attract legal professional privilege, no such argument was put to the Tribunal. The Tribunal considers that the documents in question do attract legal professional privilege. The issue before the Tribunal, therefore, is whether the privilege in those documents has been waived pursuant to s 42(2).
CONDUCT OF THE HEARING
The hearing was conducted on 23 March 2020. Mr Leichsenring was self represented. Under new procedures adopted by the Tribunal subsequent to the outbreak of novel coronavirus, the hearing was conducted by telephone, with the consent of both parties.
In the week before the hearing, Mr Leichsenring submitted that the Secretary should not be permitted to tender the exempt documents because he had not indicated his intention to do so in the pre-hearing checklist he submitted before the hearing. This submission was not pressed at the hearing. However, Mr Leichsenring did press the argument that the Secretary should not be permitted to give confidential submissions to the Tribunal in his absence, arguing that to do so would be to give the appearance that the Respondent is being afforded preferential treatment. The Secretary, in turn, referred to s 63(2)(b) of the Act which provides that:
…the Tribunal may receive evidence, or hear argument, in the absence of the applicant…where it is necessary to do so in order to prevent disclosure to the applicant of [exempt matter contained in a document to which the proceedings relate].
The Secretary contended that a confidential submission was necessary to understand why the exempt matter should not be disclosed.
The Tribunal accepted the Secretary’s argument and heard a confidential submission at the end of the hearing.
THE RELEVANT LAW
As already indicated, the seminal question before the Tribunal is whether the Secretary has waived legal professional privilege in the exempt documents by virtue of the way in which the documents or their contents were deployed.
In Mann v Carnell [1999] HCA 66, the High Court discussed the circumstances in which a person entitled to legal professional privilege might effect a waiver of that privilege (at [28-9]):
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the 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.
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.
[Footnotes omitted.]
Mann v Carnell concerned legal advice provided to a third party in confidence. Legal advices were provided to an Independent Member of the Legislative Assembly (MLA) by the respondent, the Chief Minister of the Territory, in response of a letter written by Dr Mann to the MLA about previous legal proceedings Dr Mann had been involved in. There was evidence that it was established practice in that legislature for ministers, in appropriate cases, to provide members with background information in confidence regarding matters of government administration. The Chief Minister’s office informed the MLA, upon his inquiry, that the legal advices provided to him were the subject of confidentiality. Dr Mann became aware that legal advices had been provided to the MLA and applied for preliminary discovery of the legal advices. The High Court found that the privilege over the legal advices was not lost/waived because the Chief Minister’s act in conveying that legal advice to an MLA who wished to consider the reasonableness of the Territory’s conduct was not an act that was inconsistent with the maintenance of confidentiality.
In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 Gyles J articulated the test of inconsistent use in these terms (at [65] and [68]):
... The 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 test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that 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.
The Federal Court in Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [21] held that, if a communication qualifies for legal professional privilege, the privilege will be absolute and cannot be overridden by some supposedly greater public interest, unless the privilege has been waived by the person/client entitled to it or by statute.
The principles to be considered in determining whether there has been an implied waiver of privilege were itemised by the Federal Court in College of Law Limited v Australian National University [2013] FCA 492 at [24]:
(a) privilege will be waived where the conduct of the person claiming it is inconsistent with the maintenance of the confidentiality in the relevant communication which the privilege is intended to protect;
(b) the test for implied waiver is objective, thus where such inconsistency is found, privilege will be waived regardless of the subjective intention of the party claiming the privilege;
(c) whether there is inconsistency is to be determined in the context and circumstances of the case and in the light of any considerations of fairness arising from that context and those circumstances;
(d) the question of implied waivers raise matters of fact and degree;
(e) disclosure of the gist, conclusion, substance or effect of a privileged communication does not necessarily effect a waiver of legal professional privilege in respect of the advice as a whole. Whether it does or not in a particular case depends on whether, in the circumstances of that case, the requisite inconsistency exists between the disclosure on the one hand and the maintenance of confidentiality on the other;
(f) the context includes such matters as the nature of the matter in respect of which the advice was received, the evident purpose of the person making the disclosure, and the legal and practical consequences of limited, rather than complete, disclosure; and
(g) where the party claiming privilege has disclosed or deployed the relevant information in order to achieve some forensic or other advantage for itself, or to disadvantage another person in a similar way, this may amount to conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Accordingly, the purpose for which the partial disclosure was made is important.
In that case the privilege holder, the ANU, published a document which included the following statement:
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.
Another document published by the university contained a statement to similar effect. The court held that the ANU had not waived its privilege, noting that the documents revealed very little about the actual content of the university’s legal advice, adding that (at [35]):
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.
In Osland v Secretary, Department of Justice [2008] HCA 37 Mrs Osland had been convicted of murdering her husband. She subsequently submitted a petition to the Attorney General of Victoria seeking the grant of a pardon. In due course the Attorney announced that the Governor had denied the petition on his recommendation, which was provided after receiving a joint advice of three senior counsel. In a press release in relation to the joint advice, the Attorney said:
The joint advice recommends on every ground that the petition should be denied.
Mrs Osland sought access to the joint advice, arguing that by making this statement the Attorney had waived the privilege in the advice of the three senior counsel. The President of the Court of Appeal, Maxwell P, rejected this contention, saying (at [37-8]):
The evident purpose of the Attorney-General's disclosure was to inform the public that the recommendation he had made to the Governor - that the petition for mercy be denied - was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected. The Attorney-General evidently wished it to be known that, in considering whether or not the prerogative of mercy should be exercised, he had taken independent advice and was making a recommendation which accorded with that advice. In the language of Carnell, this was a disclosure 'for the purpose of explaining or justifying' the Attorney-General's actions. The purpose was similar to that of the disclosure in Carnell itself, where the Chief Minister wished to satisfy the relevant member of Parliament that the ACT Government 'had acted responsibly and in accordance with legal advice'.
In my opinion, there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, and wishing to maintain the confidentiality of the advice itself. This was not a case of a party to litigation 'deploying' a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication. Nor was it 'the laying open of the confidential communication to necessary scrutiny'.
[Footnotes omitted.]
On appeal to the High Court, the plurality expressly agreed with the reasoning of Maxwell P (at [49]).
As that reasoning makes clear, the purpose for which confidential advice might be deployed is a consideration in determining whether that deployment destroys the confidentiality. The Supreme Court of Queensland in Queensland Local Government Superannuation Board v Allen [2016] QCA 325 made these observations (at [70-1]):
… the court must analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of privilege in the relevant communication. Because the result of any such analysis will turn on the particular context and circumstances of the case at hand, other cases in which implied waiver has been considered provide only limited assistance. Nonetheless, some broad themes have emerged from the case law in relation to particular kinds of conduct. One of those themes concerns what is sometimes referred to as “issue waiver”, that is to say, conduct in connection with the prosecution or defence of a litigated claim by reason whereof an otherwise privileged communication is put in issue. That may be because the privilege holder has advanced a claim, mounted a defence or in some other way placed reliance on the privileged communication to advance its interests in the litigation.
In cases of this kind, it has been held that where “the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication”, the privilege in the communication will be waived.
[Footnotes omitted.]
Sometimes action inconsistent with the maintenance of privilege in a document may lead to a question of partial waiver. As Tamberlin J explained in Bennett (at [13-14]):
Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to ‘the substance’, ‘effect’, or ‘content’ of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation ‘A’ is preferable to interpretation ‘B’ of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, including the factual premises and circumstances leading to that conclusion.
Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived.
This scenario might be contrasted with that considered by the court in Allen 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… [Footnotes ommitted.]
Unhappily, the Tribunal observes that there is not always a coherency in the caselaw on waiver of privilege. For example, in Rich v Harrington [2007] FCA 1987 lawyers for the the privilege holder (PwC) wrote to the applicant’s lawyers asserting that our client has acted at all times with the benefit of external advice. Branston J considered that, by disclosing the gist or conclusion of the legal advice, the use of this phrase waived privilege in that advice; her Honour said (at [32]):
The statement that PwC had "acted at all times with the benefit of external advice" was apparently made for the purpose of fortifying the claim that it had not engaged in victimisation, or in other conduct for which compensation could properly be sought. Implicit in the calling-in-aid of the external legal advice for this purpose was the claim that the external legal advice supported the conduct of PwC.
This finding is difficult to reconcile with the decisions of the Victorian Court of Appeal and the High Court in Osland, where the use by the Victorian Attorney General of the phrase The joint advice recommends on every ground that the petition should be denied was held not to constitute a waiver of privilege. To the extent that the approach taken in cases such as Rich and Bennett differs from that taken in Carnell and Osland, the Tribunal is of course duty bound to follow the latter, being more recent decisions of the High Court.
CONSIDERATION
As Mr Leichsenring is the party alleging that privilege has been waived, he carries the burden of establishing that claim: Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356 at [21].
Two matters may be disposed of in short order.
Did the CDF’s determination of July 2013 waive privilege?
The Commissioner in her decision found that the CDF’s determination of July 2013 did not disclose any conclusions of the legal advice, and did not waive privilege in the Request or the Advice. I respectfully agree with that opinion. The CDF’s determination merely referred to the fact that legal opinion had been sought and obtained and that it dealt with the issue of ambiguity in the AERRCB determination. The words used in the CDF’s determination disclose no use of the documents inconsistent with their confidentiality, and as such privilege was not waived. I did not understand Mr Leichsenring to argue to the contrary.
Did Defence’s actions waive privilege in the Request?
Mr Leichsenring has sought access under the Act to the Request. In the CDF’s determination the only reference to the Request was in the phrase Expert legal opinion has been sought. Gen Sengelman’s determination of November 2011 refers to the Request as follows: My review sought and received this advice [expert legal opinion] from a law firm external to Defence. This is, apparently, the extent of any use made in documents of the Request. The authorities referred to above make it clear that the mere disclosure of the existence of legal advice, or a request for such advice, will not generally amount to waiver.
As I comprehend his argument, Mr Leichsenring does not assert that the Request has been used in a fashion inconsistent with the maintenance of the confidentiality vested in it by the lawyer-client relationship. Rather, he has argued that it is essential to understand the terms in which the Request was framed in order to understand the legal reasoning and conclusion set out in the Advice. He emphasised that the particular premise on which the Request was based would shape and influence the form of the Advice. If access is to be given to the Advice, or even part of the Advice, then access must also be given to the Request because, as he explained, these elements cannot be separated or isolated. Mr Leichsenring placed reliance on the comments of Tamberlin J in Bennett (at [14]) that if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived.
I cannot accept Mr Leichsenring’s argument. It is evident from a fair reading of Bennett that his Honour was referring to the need to consider whether the disclosure of conclusions in legal advice required in addition the disclosure of the reasoning used to reach them in the same advice. The interconnectedness of reasoning and conclusions within a document, such that the former must be revealed in order to comprehend the latter, may be self-evident, but the connection between those conclusions and an antecedent document in the chain leading to those conclusions is much less so.
The relevant test is not whether a document’s disclosure will make another, disclosable document more comprehensible; it is whether a document attracting privilege has been used in a fashion inconsistent with its confidentiality. It does not appear to the Tribunal that Defence has used the Request in this sense at all. It is true that the Advice would not have been created but for the Request, but it is only the former which Defence could be said to have used strategically in the dispute with Mr Leichsenring. The incidental contribution made by the Request to that strategic use does not suffice to render the originating document liable to disclosure. Indeed, I am unaware of any case in which the waiver of privilege in legal advice has led to a requirement to also disclose the document commissioning that advice; certainly, neither party was able to direct me to such a decision.
The Request remains an exempt document pursuant to s 42.
Did Gen Sengelman’s determination of November 2011 waive privilege in the Advice?
In her decision, the Commissioner took the view that the conclusion of the legal advice – that the period of continuous service which qualified a member for the bonus must have occurred immediately prior to the offer of the bonus – was disclosed to Mr Leichsenring in Gen Sengelman’s determination. She held that this disclosure was inconsistent with the maintenance of the confidentiality in the legal advice which privilege would otherwise protect. Accordingly, she found that privilege had been waived in that part of the Advice – found under subheading c in the document – which dealt with the period of continuous service having to be served immediately prior to the offer of the bonus, but not in the other two parts of the Advice.
Having examined the same documents which were before the Commissioner, the Tribunal entertains some doubt as to the correctness of this decision. I accept that the conclusion of that portion of the legal advice was indeed disclosed in the determination, but I am not persuaded that that fact alone is sufficient to constitute an act inconsistent with maintaining the confidentiality of the advice. I consider that the factual circumstances addressed by the High Court in Osland and the Federal Court in College of Law v ANU are sufficiently similar to those in the present proceedings to suggest that a similar outcome – the preservation of privilege over the legal advices – is warranted here.
In both those cases the gist or substance of the legal advices was disclosed by the privilege holders. The respective courts considered the purposes for which the disclosures had been made, and concluded that in neither case was the disclosure effected for forensic or other advantage, a factor weighing in favour of the privilege being preserved. In these proceedings the Tribunal considers that a similar view could be taken of the purpose behind Gen Sengelman’s disclosure, which, it was submitted, was for the purpose of reassuring Mr Leichsenring that his contentions had been fully and independently assessed.
In contrast to Osland and College of Law v ANU, the privilege holder here could be said to have disclosed not only the conclusion of the legal advice but also some of the reasoning underpinning it. It is also to be noted that in the two earlier cases the relevant disclosures of the substance of the legal advices was to the community more broadly, whereas in this case it was to Mr Leichsenring personally. It is not clear to the Tribunal, however, why this distinction should be considered material to the outcome.
Nevertheless, these observations are moot. The Tribunal cannot “de-disclose” what has already been disclosed. Putting aside the question of whether Gen Sengelman’s determination destroyed the privilege in the material under subheading c in the Advice, it is clear to the Tribunal that the determination could not have had that effect on the balance of the material in the Advice. This is because there was no disclosure of that material anywhere in the determination, and without disclosure it cannot be said that the determination itself constituted an act inconsistent with the confidentiality in that material.
Mr Leichsenring cites the principle of interconnectedness articulated by Tamberlin J in Bennett at [14] to argue that the three parts of the Advice cannot be separated or isolated, such that privilege must be deemed to have been waived in the whole of the Advice, not merely in the material under subheading c. He asserts that over 66% of the Advice has been completely redacted, denying the reader of its third part of the context provided by the first two parts. Mr Leichsenring must necessarily advance these arguments, of course, without the benefit of seeing or understanding precisely what context is placed on the third part by the other two parts of the Advice.
A fair reading of the whole of the Advice does not support the assumptions on which this argument is based. Although the content of the three parts of the Advice are clearly interrelated, dealing with overall questions of eligibility under the Scheme, they are not, in the Tribunal’s opinion, so interrelated that they cannot be separated. Each part deals with a discrete issue, one capable of standing intelligibly without reference to the other parts. Put another way, the comprehensibility of the argument in the third part is not dependent on that employed in the other two parts. The factual matrix in these proceedings is thus more akin to that in Allen than that in Bennett.
Although I do not accept, for reasons already given, that access ought to have been given to the third part of the Advice, on the basis that such access has already occurred there appears no reason for access to the other two parts to be granted. Any waiver of privilege said to have infected the third part cannot be said to have infected the other parts.
Did showing Mr Redston the Advice waive privilege in it?
Mr Leichsenring advanced a further argument for the granting of access to the whole of the Advice, an argument which apparently was not before the Commissioner. He submitted that the showing of the Advice to Mr Redston, at some point before July 2013, amounted to an implied waiver of the privilege in the document on the basis that it had been used to obtain forensic or other advantage to the Department, or at least to disadvantage Mr Leichsenring, in respect of a third party.
The CDF indicated in his letter of July 2013 that Mr Redston was asked to reconsider his original position on Mr Leichsenring’s eligibility under the Scheme, and that the legal advice of 25 May 2011 has caused him to do so. Mr Leichsenring explained that he was disadvantaged by this step because it caused Mr Redston to change his mind.
A number of difficulties stand in the way of accepting this argument. First, it is not clear that Mr Redston was in fact a third party to whom disclosure might be seen as a breach of the document’s confidentiality. Mr Redston was, or had recently been, the so-called Director Entitlements within the Department. He was part of the departmental hierarchy, and consultation with him as an employee of the Department could be characterised as being consistent with the intention to keep the document confidential to that departmental hierarchy. By way of analogy, had Gen Sengleman or the CDF shown the Advice to a member of their personal staff, or to a lawyer within the Department, it is doubtful that this could be characterised as disclosure to a third party.
Secondly, even if Mr Redston could be considered a third party, it is difficult to see what forensic or other advantage accrued to the Department by the act of showing him the Advice. It appears that, at the point Mr Redston was shown the Advice, the question of Mr Leichsenring’s entitlements under the Scheme was now before Gen Sengelman and the CDF, Mr Redston’s role having ceased. In other words, his opinion was, strictly speaking, immaterial to their decision by this point.
It was put by the Secretary that Defence’s intention was to provide Mr Leichsenring with the comfort that it had taken appropriate steps to ensure that it had made the correct decision on his grievance application. With respect to showing the Advice to Mr Redston, I infer that the intention was to offer solace or reassurance to Mr Leichsenring that there was no longer any division of opinion within Defence on this question. The Tribunal considers that this is the only reasonable characterisation of the Department’s intention; while it might be said that securing Mr Redston’s change of mind could perhaps have given the Department a psychological or even a moral advantage over Mr Leichsenring, the better view is that such an “advantage” was merely incidental to a process designed to round off a full and diligent consideration of the appeal Mr Leichsenring had raised against his initial refusal.
In the Tribunal’s opinion, the disclosure of the advice to Mr Redston in these circumstances is analogous to the disclosure of legal advice to the Independent MLA in Carnell. In each instance the intention behind the disclosure – what may be labelled diligent administrative practice – is a significant factor in favour of preserving the legal professional privilege.
Other Submissions by Mr Leichsenring
The Tribunal should also address a number of other submissions made by Mr Leichsenring.
Mr Leichsenring submitted that he had suffered a further disadvantage in connection with the role of Mr Redston. Mr Redston gave his original opinion in June 2008 – that Mr Leichsenring was entitled to a bonus under the Scheme – in the course of consideration of the making of an act of grace payment to Mr Leichsenring for having missed out on the bonus. Subsequent to providing his opinion, the process of considering the act of grace payment appears to have stalled. Mr Leichsenring contended that:
I have been disadvantaged in that Defence or Mr Redston did not reengage with the Director of Special Financial Claims regarding the change of view and the potential impact that this might have on his original advice of 3 June 2008 with respect to Michael Leichsenring’s Act of Grace Claim. Defence have abrogated themselves of any responsibility regarding this Act of Grace claim leaving the onus on me to resurrect/resubmit it.
The Tribunal accepts that Mr Leichsenring may have been disadvantaged by a failure by Defence to proceed to consider his claim for an act of grace payment. However, that “disadvantage” does not flow from the act which it was contended caused the privilege in the Advice to be waived, namely the showing of the Advice to Mr Redston. The failure to consider an act of grace payment arose for reasons entirely divorced from this step. In any case, the Tribunal was advised that the act of grace claim may yet be reactivated by Mr Leichsenring and as such any disadvantage may only be temporary.
A further submission focused on the terms of the Commissioner’s decision of July 2019. Mr Leichsenring argued that the decision itself was Inconsistent and Incomplete. He argued that the Commissioner gave consideration throughout her decision to documents at issue (i.e. the exempt documents) but in the final paragraph of the decision made reference to only one document, the Advice.
The Tribunal does not regard the approach taken by the Commissioner to be in any sense inconsistent or incomplete. It is clear from a fair reading of the decision that she considered arguments about use of both documents which might be characterised as being inconsistent with the privilege in them, but came to the conclusion that only one document had been used in that way. The Commissioner’s language is entirely explicable in that context. But even if there had been errors of expression or logic in her decision, that fact alone does not entitle Mr Leichsenring to the reversal of her findings. The Tribunal is conducting here an examination de novo of the question of whether privilege has been waived pursuant to s 42(2) of the Act; any errors the Commissioner may have committed in the course of her consideration of that question are entirely irrelevant to the Tribunal’s fresh consideration.
Mr Leichsenring also contended that, following the Commissioner’s decision, a version of the Advice was sent to Mr Leichsenring which contained redactions inconsistent with the decision. Following his application to the Tribunal, another version was supplied which apparently complied with the decision. Whether the provision of an inaccurately-redacted document by Defence occurred by virtue of malfeasance or inadvertence, the fact of an erroneous redaction of a document by Defence, while unfortunate, has no bearing on the matters presently before the Tribunal.
Mr Leichsenring contended in his written submissions that the Advice had a ‘personal’ dimension to it, and as such the right to access personal information held about a person, referred to in the Australian Privacy Principles, should be considered by the Tribunal. This submission was not pursued in the course of the hearing. As the Tribunal understands it, the Australian Privacy Principles are subject to specific provisions in legislation including, relevantly, s 42 of the Act. The Principles do not operate to override this specific legislative provision protecting certain documents from being accessed by a person to whom they refer.
Finally, Mr Leichsenring argued that it would be in Defence’s interest to be open and transparent about the interpretation of the Scheme’s provisions, and that invoking legal privilege in that context seems excessive. The Tribunal is not entitled to consider the policy considerations behind the decision by Defence to shield the legal advice in issue here from access. Defence is entitled to access the protection afforded by s 42; its reasons for doing so are not the concern of the Tribunal.
CONCLUSION
The reviewable decision in these proceedings – the decision of the Commissioner in Michael Leichsenring and Department of Defence [2019] AICmr 51, refusing access to one document in full and one document in part under s 42 of the Act – is affirmed.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.
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Associate
Dated: 4 May 2020
Date(s) of hearing: 23 March 2020 Date final submissions received: 23 March 2020 Representative for Mr Leichsenring: Self-represented Solicitor-advocate for the Secretary: J Hyland, Australian Government Solicitor
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