LIBERAL PARTY OF AUSTRALIA and AUSTRALIAN ELECTORAL COMMISSION
[2009] AATA 551
•23 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 551
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1311
GENERAL ADMINISTRATIVE DIVISION ) Re LIBERAL PARTY OF AUSTRALIA Applicant
And
AUSTRALIAN ELECTORAL COMMISSION
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date23 July 2009
PlaceCanberra
Decision The Tribunal decides that:
1. The reviewable decision of the Australian Electoral Commission made 20 March 2009 is varied to the extent necessary to provide that the Liberal Party of Australia is granted access to the document dated 3 August 2007 being a letter of advice from the Australian Government Solicitor to Mr Paul Pirani Chief Legal Officer Australian Electoral Commission under reference “Registration of parties – s 129(1)(d) and (da) of the Commonwealth Electoral Act 1918”.
2. In all other respects the decision under review is affirmed.
.................[sgd]........................
J.W. Constance, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – standing – standing of unincorporated association to apply to Tribunal – Applicant has standing
FREEDOM OF INFORMATION – legal professional privilege – waiver of privilege – implied waiver of privilege – inconsistency between conduct of client and maintenance of confidentiality – advice communicated in context of promoting the recipient’s argument resulting in implied waiver of privilege – independent advice from solicitor to client – legal advice not provided by the Respondent for the use of its officers in making decisions is not exempt from legal professional privilege – charge imposed for access to documents – consideration of public interest in gaining access to documents – charge not reduced by Tribunal
Freedom of Information Act 1982 (Cth) – Sections 9, 29, 42
Administrative Appeals Tribunal Act 1975 (Cth) – Section 27
Re Island Voice and Great Barrier Reef Marine Park Authority and Magnetic Keys Limited [1990] AATA 41
Mann v Carnell (1999) 201 CLR 1
Osland v Secretary, Department of Justice (2008) 234 CLR 275
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Woollard and Australian Electoral Commission and Liberal Party of Australia (WA Division) Inc [2001] AATA 166
Re McKinnon and Department of Foreign Affairs and Trade (2004) 40 AAR 255; 86 ALD 780
Herald and Weekly Times and Department of Finance and Administration [2000] AATA 506
REASONS FOR DECISION
23 July 2009 J.W. Constance, Senior Member INTRODUCTION
1. The Liberal Party of Australia is seeking a review of a decision of the Australian Electoral Commission to refuse to grant it access to two documents following an application by the Liberal Party under the Freedom of information Act 1982 (Cth). The documents in question are two advices on legal issues relating to the registration of political parties. The first advice, dated 17 May 2007, was provided by the Legal Services section of the Commission to the Director Funding and Disclosure of the Commission. The second, dated 3 August 2007, was provided to the Commission by the Australian Government Solicitor.
2. The Commission argues that the advices would be privileged from production in legal proceedings on the ground of legal professional privilege and therefore are exempt documents under section 42 of the Act. In response the Liberal Party says that the documents would not be privileged from production in legal proceedings, but in any event in regard to the AGS advice the Commission has waived its privilege. The Liberal Party argues that even if it is subject to privilege, the Legal Services advice is not an exempt document by reason of the application of subsection 42(2).
3. For the reasons which follow I have decided that access should be given to the AGS advice, but not to the Legal Services advice.
THE ISSUES
4. The following are the issues for determination.
1)Does the Liberal Party of Australia have standing to make this application to the Tribunal?
2)If so, are the documents, or either of them, exempt documents under section 42 of the Act?
3)Should the fee imposed for access to the documents be reduced to nil?
FACTS
5. In February 2007 a group of individuals applied to the Commission to register ‘Liberal Democratic Party’ as a political party. In May 2007 the Commission obtained from its own Legal Services section a written legal advice as to whether it should register the Liberal Democratic Party in view of the possible similarity of the proposed name to that of recognised political parties. In August 2007 the Commission received written advice on related issues from the Australian Government Solicitor.
6. By reason of an impending Federal election to be held in November 2007, the applicants did not proceed with the application for registration of the ‘Liberal Democratic Party’ and were granted registration of the ‘Liberty and Democracy Party’. However, in January 2008 an application was made to register a change of name of the Liberty and Democracy Party to the ‘Liberal Democratic Party’. Both legal advices were considered in relation to this application.
REASONING
Standing of the Liberal Party of Australia
7. Although this issue was raised at the hearing, the Commission conceded that the Liberal Party (which is an unincorporated association) does have standing to apply to the Tribunal under section 27 of the Administrative Appeals Tribunal Act 1975 (Cth). Although subsection 27(1) provides that “an application ... may be made by or on behalf of any person or persons”, subsection 27(2) makes it clear that it was the intention of Parliament that an unincorporated association be included. This is in accordance with the decision of this Tribunal in Re Island Voice and Great Barrier Reef Marine Park Authority and Magnetic Keys Limited [1990] AATA 41.
8. It should be noted that the Commission did not concede that the Liberal Party was a person within the meaning of the Freedom of Information Act 1982.
Is either document an “exempt document” under section 42 of the Act?
9. Subsection 42(1) provides:
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.
The AGS advice
10. Counsel for the Liberal Party argued that the AGS advice is a document which does not attract legal professional privilege. However, I do not need to address this question as I have concluded that any privilege which may have existed has been waived. The question of waiver was the main issue argued at the hearing.
11. The starting point for consideration of whether there has been a waiver of privilege is the decision of the High Court of Australia in Mann v Carnell (1999) 201 CLR 1. In that matter the High Court said:
It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege… 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… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.[1]
[1] At p. 13.
12. The principle set out in Mann v Carnell was applied by the High Court in Osland v Secretary, Department of Justice (2008) 234 CLR 275. The Court considered whether a press release issued by the Attorney-General for the State of Victoria referring to a legal advice given to him in relation to an application for a pardon amounted to a waiver of the legal professional privilege which otherwise attached to the advice. The Court said:
Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd …[(2005) 65 IPR 442 at 447 [26]]…, questions of waiver are matters of fact and degree.[2]
Applying these principles the Court decided that:
The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations… The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant.[3]
[2] At pp. 298-299.
[3] At p. 298.
13. In Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 the Full Court of the Federal Court determined that there had been a waiver of legal professional privilege in relation to legal advice provided to the Customs Service. In his reasons for his decision Tamberlin J said:
In the present case it is evident from the letter of 28 September 1999, which was written by the Australian Government Solicitor to the solicitors for Mr Peter Bennett, that the substance of the advice for the Australian Government Solicitor was conveyed in a context which did not attract an obligation of confidentiality in relation to the letter. It is apparent that the substance and effect of the advice was being communicated in order to emphasise and promote the strength and substance of the case to be made against Mr Bennett.[4]
[4] At p. 103.
14. In my view the following principles set out by the High Court and the Federal Court are applicable in this matter.
1)Waiver of legal professional privilege occurs when there is inconsistency between the conduct of the client and the maintenance of confidentiality.
2)It does not matter that the entity entitled to the benefit of the privilege did not intend to waive the benefit.
3)Considerations of fairness are relevant in deciding whether there has been inconsistency such as to amount to a waiver.
4)In determining whether or not there has been inconsistency it is necessary to consider the circumstances of the particular case in the context of the alleged inconsistency.
5)If the substance and effect of the advice is communicated in a context of emphasising and promoting the strength and substance of an argument being advanced by the recipient of the advice there is an implied waiver of privilege.
15. Applying these principles to the facts before me I am satisfied that the Commission’s conduct in referring to the AGS advice in the manner it did in the Statement of Reasons was inconsistent with the maintenance of confidentiality in relation to that advice.
16. In considering the context of the disclosure it is relevant that it was made as part of a document setting out the reasons for a determination by a delegate of the Commission to accept an application by a political party to change its name to one to which there were a number of objections. These objections were made on the ground of possible confusion with the name of another political party.
17. The determination by the delegate involved the interpretation of provisions of the CommonwealthElectoral Act 1918 (Cth). The delegate also relied on guidance provided by this Tribunal in Woollard and Australian Electoral Commission and Liberal Party of Australia (WA Division) Inc [2001] AATA 166. However, as the relevant section of the Act was amended after the Tribunal’s decision, the Commission sought the advice from the Australian Government Solicitor as to the effect of the amendment. The delegate disclosed the effect of this advice and relied upon it to support his view that a decision by the Tribunal in a similar matter would be the same as its earlier decision notwithstanding the amendment of the section. The only fair inference from this is that when the delegate referred to a “similar matter” he was referring to the application the subject of his Statement of Reasons and that he was relying on the advice to support the conclusion he had reached.
18. The delegate set out five considerations he took into account in deciding that the name under consideration was not prohibited. Of these, three are relevant to the determination in this matter:
· the guidance given in the AAT decision in 2001 on the registration of “liberals for forests”;
· the 2007 legal advice by counsel provided to the Commission on the effect of the 2004 amendments to section 129 of the CommonwealthElectoral Act 1918;
· the matters raised in objections to this application including the lack of objective evidence offered. (Emphasis added.)[5]
[5] Ex. T1 p. 72.
19. Each of these considerations was dealt with in the AGS advice and was referred to in some detail by the delegate as follows:
The AEC acknowledges the guidance given on section 129 in 2001 by the AAT in its decision in the “liberals for forests” matter (Woollard and the AEC and the Liberal Party [2001]). This decision is of particular significance in that the AAT for the hearing comprised three serving judges of the Federal Court. The AEC also acknowledges that s.129 was amended in 2004 following the decision in “liberals for forests”. In late 2007, the AEC sought external legal advice on the effect of section 129 as amended, on similar matters as decided by the AAT in “liberals for forests”.
The advice provided to the AEC, from an AGS Senior General Counsel, was that the amended section 129 would not be likely to result in a different outcome were the AAT to again decide the “liberals for forests” matter or a similar matter. The advice also considered the need for the AEC to have evidence that similarity in names would be likely to be confused or mistaken, or lead a reasonable person to think a connection or relationship exists when it doesn’t. the advice suggested that it would be open to but not necessary for the AEC to commission such evidence by surveys or other research, or to rely on objectors to put forward evidence necessary to support their assertions, giving that evidence an appropriate weight.[6]
[6] Ex. T1 pp. 71-72.
20. In my view the Commission waived its legal privilege in relation to the AGS advice by stating its effect and then relying upon it in relation to at least three of the five considerations taken into account in reaching the conclusion to which the Statement of Reasons related. To this extent it would be unfair to the Liberal Party to deny it access to the opinion relied upon.
The Legal Services Advice
21. I am satisfied that this advice is such that it would be privileged from production in legal proceedings on the ground of legal professional privilege. It is an independent advice from solicitor to client and it does not matter that the solicitor is employed by the client: Re McKinnon and Department of Foreign Affairs and Trade (2004)86 ALD 780.
22. There is no suggestion that privilege in relation to the Legal Services advice has been waived in the manner of the AGS advice. Counsel for the Liberal Party argued that the Legal Services advice was not an exempt document as it would come within subsection 42(1) “by reason only of the inclusion in the document of matter that is used or to be used for the purpose of making of decisions … referred to in subsection 9(1).”[7]
[7] Subsection 42(2) of the Freedom of Information Act 1982.
23. Subsection 42(2) provides:
A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).
24. Subsection 9(1) relevantly provides:
(1)This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:
(a)manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;
…
but not including documents that are available to the public as published otherwise than by an agency or as published by another agency.
25. The relevant requirements of subsection 9(1) in relation to this matter are:
·the document is one that is provided by the Commission for the use of its officers in making decisions;
·for the purposes of an enactment or scheme administered by the Commission;
·with respect to rights, privileges or benefits to which persons are or may be entitled;
·being a document containing interpretations, rules, guidelines, practices or precedents.
26. In relation to the first of these requirements Tamberlin J said in Bennett v Chief Executive Officer of the Australian Customs Service (supra):
The employment of the phrase “is provided … for the use of” and the employment of the present tense in the phrase “are used by” do not suggest documents brought into existence for the purposes of a particular case and not otherwise provided to officers or used by officers in other cases.[8]
[8] At p. 112.
27. Although the advice was used in relation to two applications, these applications were by the same group and each sought the registration of a political party with the same alternative name. The material before me suggests that the Legal Services advice was brought into existence for one particular case and has not been used otherwise. In these circumstances I am of the view that the advice does not meet the description of one that is provided by the Commission for the use of its officers for making decisions and therefore the document does not come within the class of documents referred to in subsection 9(1).
Should the charge imposed for access to the AGS advice be reduced to nil?
28. Subsection 29(5)(b) of the Act provides that in deciding whether a fee charged for access to a document should be reduced it is necessary to take into account “whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public.” Counsel for the Liberal Party has argued that it is in the public interest that the public be alerted to the existence of the advices.
29. I am satisfied that this is not an appropriate case in which to decide that there should not be a fee imposed as I am not satisfied that the AGS advice, once access is granted to it, will become widely known. I am not satisfied that the giving of access to the document is in the general public interest or of a substantial section of the public.
30. I find support in this conclusion in what was said by the President of this Tribunal in Herald and Weekly Times and Department of Finance and Administration [2000] AATA 506:
In exercising this discretion it is, in my view, important for the Tribunal to be satisfied that the documents, if released, would come to the attention of the public or a significant section of the public, and also to come to a conclusion as to whether the disclosure would add to that which is already publicly known… Section 29 establishes the prima facie position that charges should be imposed so that applicants contribute to the cost of processing all their requests and section 24 reflects parliamentary concern that it is not in the public interest for any department to be required to process requests which would substantially and unreasonably divert its resources from its other operations.[9]
[9] At paras 47-48.
DECISION
31. The reviewable decision of the Australian Electoral Commission made 20 March 2009 is varied to the extent necessary to provide that the Liberal Party of Australia is granted access to the document dated 3 August 2007 being a letter of advice from the Australian Government Solicitor to Mr Paul Pirani Chief Legal Officer Australian Electoral Commission under reference “Registration of parties – s 129(1)(d) and (da) of the Commonwealth Electoral Act 1918”.
32. In all other respects the decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: ..................[sgd]..............................................................
T. Aviram, AssociateDate of Hearing 11 June 2009
Date of Decision 23 July 2009
Counsel for the Applicant Mr R. Lucas
Counsel for the Respondent Mr P. Pirani
Solicitor for the Respondent Ms S. Gasser, Australian Electoral Commission
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