Mullett and Attorney-General's Department
[2012] AATA 103
•21 February 2012
CATCHWORDS – FREEDOM OF INFORMATION - request to Attorney-General’s Department for access to documents regarding the investigation of a complaint of misuse of information obtained under telecommunications interception warrant – Department responsible for administering the Telecommunications (Interception and Access) Act 1979 under which a telecommunications warrant may be issued – whether Preliminary Advice regarding legal issues prepared within the Department subject to legal professional privilege and so exempt under s 42 – consideration of responsibilities inherent in administration of legislation – consideration of role of legal adviser and role of administrator – not exempt under s 42.
FREEDOM OF INFORMATION – Preliminary Advice a document disclosing matter in the nature of an opinion etc prepared for the purposes of the deliberative functions of the Department – access not contrary to the public interest – not exempt under s 36.
FREEDOM OF INFORMATION – instructions to independent counsel and counsel’s opinion – instructions given and opinion subject to legal professional privilege – exempt under s 42.
PRACTICE AND PROCEDURE – DISQUALIFICATION - application for Tribunal to disqualify itself – apprehended bias - a fair-minded lay observer who has some informed understanding of the proceedings would not reasonably apprehend that an impartial mind would not be brought to the proceeding – differentiation between power exercised in issuing warrants and in reviewing decisions on their merits – issues raised by an application for a warrant have no bearing on issues to be decided in this proceeding under the FOI Act - whether actual or apprehended bias –– no disqualification.
PRACTICE AND PROCEDURE – prohibition on dealing with interception warrant information imposed on a Judge or nominated AAT member by s 63 of the Telecommunications (Interception and Access) Act 1979 – consequences of prohibition.
Administrative Appeals Tribunal Act 1975, ss 43(2), 43(2A), 43AAA, 44
Administrative Decisions (Judicial Review) Act 1977, ss 3(1)(d), cl (d) of Sch 1, 9(1)(a), 9(2)
Australian Federal Police Act 1979, ss 4(1), 8(1)(b)(i)
Australian Security and Intelligence Organisation Act 1979
Commonwealth of Australia Constitution Act, ss 61, 62, 63, 64, 67, 75(v)
Competition and Consumer Act 2010, ss 6A, 133, 154B, 154D, 163(4), Div 4 of Part XI, Part IXD
Criminal Code (Qld), s 679
Freedom of Information Act 1982, ss 3, 4(1), 9(1), 11, 15, 22, 36, 38, 41, 42, 54
Freedom of Information Amendment (Reform) Act 2010, s3 and item 28 of Part 2 Sch 3, Part 2
Judiciary Act 1903, ss 39B, 55E(1)
Migration Act 1958
Police Integrity Act 2008 (Vic), s 17(1)(b)
Public Service Act 1999, ss 7, 9, 10, 11, 13, 20(1), 22, 56(1), 58, 65, 72
Surveillance Devices Act 2004
Taxation Administration Act 1953, ss 14ZZE, 14ZZJ
Telecommunications (Interception and Access) Act 1979, ss 3(1)(d), 5(1), 5D, 6DA, 6DB, 6EA(2), 6R, 7, 39, 40, 41, 42, 43, 44, 46, 46(1)(c), 46A, 48, 49, 50(2), 59A, 61(4), 63(1), 63(2), 67(1), 80, 81, 81A, 81B, 81C, 81D, 84, 85, 86, 87, 93, 94(2), 94A, 94B, 95, 100, 101, 102, 104, 105(1), 159
Part 2.2, Part 2.3, Part 2.5, Part 2.7, Part 2.8
Public Service Commissioner’s Directions, cll 2.6, 2.7
Administrative Arrangements Order, Part 2
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd
AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54; 52 ALJR 254
Attorney-General (NT) v Kearney (1985) 158 CLR 500
Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31
AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284; (2005) 59 ATR 615
Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; 129 ALR 593
Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451
Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Commonwealth v Vance [2005] ACTCA 35; (2005) 224 FLR 243
Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; 75 ALJR 277
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123
Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404; 141 ALR 92; (1996) 34 ATR 183; 71 ALJR 81
Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149; 134 ALR 495; 50 ALD 385
Frugtniet v Board of Examiners [2002] VSC 140
George v Rockett [1990] HCA 26; (1990) 170 CLR 104; 93 ALR 483; 64 ALJR 384
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198
Gray v Associated Book Publishers Pty Limited [2002] FCA 1045
Grofam Pty Ltd v ANZ Banking Group (1993) 43 FCR 408; 116 ALR 535; 26 ATR 174; 93 ATC 4672
Grollo v Palmer, Commissioner of the Australian Federal Police [1995] HCA 26; (1995) 184 CLR 348; 131 ALR 225
Hilton v Wells (1985) 157 CLR 57
Islam v Minister for Immigration and Citizenship [2009] FCA 1526; (2009) 51 AAR 147
Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380
Kennedy v Wallace (2004) 208 ALR 424
Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553
Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542; 124 ALR 224
Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378
Minister for Immigration and Citizenship v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288
Ousley v The Queen (1997) 192 CLR 69
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128
R v Robinson [1998] 1 VR 570
Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 6 AAR 80
Re Howard and Treasurer of the Commonwealth of the Commonwealth of Australia (1985) 7 ALD 626
Re Kowalski and ACT Government Solicitor [2006] ACTAAT 14
Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780
Re Philip Morris Limited and Prime Minister [2011] AATA 556; (2011) 122 ALD 619
Re Terrill and the Department of Transport and Regional Services [2003] AATA 52
Re Wallace and Director of Public Prosecutions [2003] AATA 119
Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited [2010] FCA 1442; (2010) 191 FCR 573; 276 ALR 712; 120 ALD 439
Seven Network Ltd v News Ltd [2005] FCA 142
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445
The State of New South Wales v The Commonwealth [1915] HCA 17; (1915) 20 CLR 54
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244
Waterford v Commonwealth (1987) 163 CLR 54
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
DECISION AND REASONS FOR DECISION [2012] AATA 103
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/0355
GENERAL ADMINISTRATIVE DIVISION )
Re PAUL MULLETT
Applicant
AndATTORNEY-GENERAL’S DEPARTMENT
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 21 February 2012
Place: Melbourne
Decision:In relation to the decision of the respondent dated 20 January 2011, the Tribunal:
1.sets aside that part of the decision refusing access to a document entitled “Preliminary Advice” and substitutes a decision that the document is not exempt under the Freedom of Information Act 1982; and
2.otherwise affirms the decision.
S A Forgie
Deputy President
REASONS FOR DECISION
Mr Paul Mullett was, until quite recently, a Senior Sergeant with Victoria Police (VicPol) and the Secretary of VicPol’s registered trade union, the Police Association. A conversation he had with another person was intercepted under a warrant issued under the Telecommunications (Interception and Access) Act 1979 (TIA Act). Mr Mullett alleges that information in that conversation was communicated to others in breach of the TIA Act. He wrote to the Attorney-General’s Department (AGD) asking it to investigate his allegations. The AGD deals with matters arising under the TIA Act which is administered by the Attorney-General. The AGD declined to investigate it on the basis that it does not have investigative powers but also decided that it would not refer the allegations to the Australian Federal Police (AFP), which does. Mr Mullett requested access under the Freedom of Information Act 1982 (FOI Act) to “all documentation on National Security, Law and Policy Division file no 09/23199 relating to the investigation” of his complaints regarding misuse of information obtained under the TIA Act. He also asked for the legal opinion that was provided as part of the investigation conducted by the AGD. I have decided that a legal opinion obtained from Mr Peter Hastings QC and the letter of instructions in its draft form and then in its final form seeking that advice are exempt under s 42 as they are subject to legal professional privilege. I have decided that a document, described as Preliminary Advice, is not subject to legal professional privilege and that, while it is a document of the sort that comes within s 36(1)(a), I am not satisfied that its disclosure under the FOI Act is contrary to the public interest within the meaning of s 36(1)(b). Therefore, I have decided that the Preliminary Advice is not exempt under the FOI Act and have set aside AGD’s decision in regard to it.
Before the hearing commenced, Mr Mullett suggested that I might like to disqualify myself from hearing his application because, he said, I had issued one or more warrants under the TIA Act authorising the interception of his telephone. He would not, he said, like to see me or the Tribunal embroiled in controversy as a result of his instituting proceedings to challenge the issue of the warrants. I decided not to disqualify myself and told the parties of my decision and a broad outline of my reasons. I told them that I would give my reasons when deciding the substantive issues. Those reasons are at Attachment A.
BACKGROUND
The findings that I set out under this heading have been made on the basis of the material in the T documents, the correspondence admitted in evidence and Ms Catherine Smith’s affidavit. I have referred to the particular evidence either in the text or the footnotes.
Mr Mullett’s allegations made on 23 March 2010
Mr Mullett was charged with certain criminal offences following an investigation by the Victorian Office of Police Integrity (OPI) and presided over by the Hon Murray Wilcox AO QC.[1] On 23 March 2010,[2] Mr Mullet wrote to the Attorney-General’s Department (AGD) alleging that the OPI’s investigation revealed that certain information,[3] which he had told Mr Peter Lalor in a telephone call on 14 August 2007, had been obtained under a warrant issued under the TIA Act and had been communicated by Superintendent Rodney Wilson to the then Chief Commissioner of Victoria Police, Mr Simon Overland. Superintendent Wilson was the OPI officer in charge of an investigation known as Operation Briars into certain gangland murders. Mr Lalor was under investigation as part of that operation. Communication of the information from his telephone conversation with Mr Lalor, Mr Mullett alleges, was in breach of s 67(1) of that legislation as it was communication of “designated warrant information” (or what is now described as “interception warrant information”)[4] for a purpose that was not a permitted purpose under Part VII of the TI Act. Mr Mullett further alleges that Mr Overland was in breach of s 67(1) when he communicated the same information to Mr Stephen Linnell, the then Director of the Media and Corporation Communications Division of VicPol. Communications in breach of s 63(1) are offences under s 105(1) of the TIA Act, Mr Mullett told the Department, and he asked it to conduct a criminal investigation into the offences he alleged had been committed.
[1] On 19 May 2009, a Magistrate discharged all but two charges on the basis that, on the evidence presented, no properly instructed jury acting reasonably could find him guilty. On 25 June 2009, the Director of Public Prosecutions discontinued the remaining two by entering a Nolle Prosequi.
[2] Exhibit D
[3] The information was to the effect that Chief Commissioner Overland would spend six weeks at Fontainebleau in Paris on an intensive six week business course in September 2007 at a cost of €30,000 and that Mr Mullett would leak that information to the public by means of the 3AW Rumour File. The Chief Commissioner has sworn an affidavit stating that this information was not correct.
[4] Mr Mullet set out s 67(1) of the TIA Act in the following terms:
In a further letter dated 4 June 2010,[5] Mr Mullett drew the AGD’s attention to his allegations relating to Mr Overland’s communication with Mr Linnell and asked it to include the further information in his investigation.
[5] Exhibit E
Responsibility within AGD for investigation of Mr Mullett’s allegations
Within AGD, responsibility for matters arising under the TIA Act lies with the Telecommunications and Surveillance Law Branch (TSL Branch), which is one of the Branches comprising the National Security Law and Policy Division (NSLP Division). As stated on the AGD’s website, the TSL Branch “… provides legal and policy advice in relation to … [the TIA Act], as well as the carriage of any amendments …” to it.[6] In addition, the TSL Branch:
“… provides advice to key stakeholders, including law enforcement and national security agencies, members of the industry and privacy groups, concerning the operation of … investigative tools [including the TIA Act].
The Branch also provides legal and policy guidance to the Communications Access Co-ordinator as well as assistance in carrying out his or her statutory duties and liaison functions.”[7]
[6] Exhibit C
[7] Exhibit C
The NSLP Division’s functions are also set out on the AGD’s website and sets out in part:
“The National Security Law and Policy provides national leadership and coordination on national security legal and policy issues to contribute to the security of the Australian community. This involves ensuring there is a national security legislative framework which contains appropriate safeguards to protect the community from security threats; a surveillance and telecommunications and access capability to promote security and discourage illegal activity; and policies and projects that contribute to public confidence in the national security framework. The Division also works with ASIO to ensure the organisation is best able to efficiently protect the Australian community.
The Division also undertakes background checking and vetting for sensitive positions to protect the community and its Government. …”[8]
[8] Exhibit B
Mr Geoff McDonald PSM is the First Assistant Secretary of the NSLP Division and Ms Catherine Smith is the Assistant Secretary of the TSL Branch and has been since October 2006.
AGD’s actions in response to Mr Mullett’s allegations
On 11 June 2010 after it had received Mr Mullett’s second letter, Ms Smith wrote a minute to Mr Wilkins regarding Mr Mullett’s complaint.[9] On the basis of Ms Smith’s oral evidence, I find that work had not begun at an earlier stage as the officer to whom it had been referred had been absent through illness.
[9] Exhibit I
The letter began with a summary of Mr Mullett’s complaint and the information that he had provided. It referred also to an Affidavit that Mr Overland had sworn on 1 November 2007 and that was available on the website of The Australian. Ms Smith attached a copy and summarised what she understood to be Mr Overland’s recollection of his conversations with Mr Linnell and Superintendent Wilson. She also attached a copy of Mr Mullett’s letter of 23 March 2010, a diagram representing the process for obtaining a telecommunications interception warrant and a diagram setting out her understanding of Mr Mullett’s allegations regarding the content and timing of the communications about which he complained. There then followed a heading:
“Operation of the TIA Act
Who can interrupt communications”
The information below that heading has been deleted on the basis that is exempt under s 42 of the FOI Act.
In her affidavit, Ms Smith described the minute as a “written legal advice to assist with briefing of the Secretary of the Department on the matters raised by Mr Mullett (‘the Preliminary Advice’).”[10] She had begun to draft it in early June 2010 and, a few days later, attended a meeting with the Secretary of AGD, Mr Miles Jordana, who was Deputy Secretary of the National Security and Criminal Justice Group, and Mr McDonald. Ms Smith showed the document, which she describes as the “Preliminary Advice” to Mr Wilkins. She took no further action regarding the Preliminary Advice.
[10] Exhibit 1 at [5]
A few days later on 10 June 2010, Mr McDonald told Ms Smith that Mr Wilkins had decided to seek an opinion from Mr Hastings regarding Mr Mullett’s complaint. Mr Hastings is engaged as an independent legal consultant to the AGD from time to time. Mr McDonald wrote a letter to Mr Hastings on the same day asking for his advice.
Mr Hastings gave his written opinion and advice on the matters raised in Mr McDonald’s letter. He did so in correspondence dated 23 June 2010. Exemption is claimed by AGD for both that letter and Mr McDonald’s letter under s 42 of the FOI Act.
Mr Mullett’s further correspondence querying progress of the investigation
In a letter dated 19 July 2010,[11] Mr Mullett wrote to the AGD querying the progress that was being made with the investigation. He queried whether the investigation had begun and, if so, its scope. If it had not, he asked for reasons for the decision not to do so. An officer of the AGD telephoned and Mr Mullett expressed his appreciation for it in his next letter of 6 August 2010. He also asked for an indication of when his complaint and his subsequent questions would be answered.[12] In his letter of 30 August 2010, Mr Mullett referred the AGD to further material that he considered relevant to his allegations and sought its response.[13]
[11] Exhibit F
[12] Exhibit G
[13] Exhibit H
The AGD’s advice to the Australian Federal Police
In a letter dated 25 July 2010, the Secretary of AGD, Mr Roger Wilkins AO, advised Commissioner Negus APM of the AFP of Mr Mullett’s allegations. Mr Wilkins attached copies of Mr Mullett’s letters together with a copy of Mr Hastings’ advice. He told Commissioner Negus that advice had been sought in order to decide whether there was enough information to warrant a formal referral to the AFP. Mr Wilkins then summarised the advice and AGD’s position on Mr Mullett’s allegations:
“Mr Hastings is of the opinion that based on the information available to the Department, no further investigation is warranted. Accordingly, I am satisfied that there is no basis for me to refer the matter to you for further consideration. I am, however, forwarding this material to you for your information.”[14]
[14] Exhibit J
The AGD’s response to Mr Mullett’s allegations
On 15 September 2010, Mr McDonald wrote to Mr Mullett:
“I refer to your previous correspondence. You have advised that you wish to lodge a complaint in relation to the use of information collected under the Telecommunications (Interception and Access) Act 1979 (the TIA Act).
The Department has thoroughly considered the information you have provided and taken advice from Senior Counsel. That advice provides [sic] that there was no breach of the TIA Act.
Accordingly, it has been determined there are no grounds for further action.”[15]
[15] Exhibit K
Mr Mullett’s request under the FOI Act
On 7 October 2010, Mr Mullett made a request to the AGD for access under the FOI Act to:
“All documentation on National Security, Law and Policy Division file no 09/23199 relating to the investigation of the complaints made by Paul Mullett regarding the misuse of the Telecommunications (Access and Interception) Act 1979. The documentation requested is inclusive of a legal opinion that was provided as part of the investigation conducted by the National Security, Law and Policy Division.”
The AGD’s decision on the request
Having been authorised by the Secretary of the Department to do so, Mr Malcolm Bennett decided to grant Mr Mullett access, in whole or in part, to all but two documents coming within the terms of the request. Mr Bennett claimed exemption for two documents in their entirety on the basis that they would be privileged from production in legal proceedings on the ground of legal professional privilege as provided in s 42(1) of the FOI Act. One was a letter from Mr McDonald to Mr Hastings requesting his advice and the other was from Mr Hastings with that advice.
Mr Bennett also found that the documents contained draft legal advice prepared for the Secretary by an officer of the AGD. Reading his findings at T4.1 and his reference to s 42 on the following page, it becomes clear that he claimed that documents containing that legal advice were exempt under s 42 to the extent that contained that advice. His reference to the two pieces of communication between the Department and Mr Hastings was a reference to the letter sent by Mr McDonald on behalf of the Department to Mr Hastings and Mr Hastings’ opinion in response. At that time, no reference was made to the draft letter of instructions that was prepared but later altered.
With regard to the remaining documents to which he granted partial access, Mr Bennett deleted some information relying on the exemption in s 41(1). The information he deleted referred to the names of names of certain junior Departmental officers on the basis that their disclosure under the FOI Act would be an unreasonable disclosure of personal information.[16]
[16] Documents lodged by AGD under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at T4
Mr Mullett’s request for review within AGD
On receiving the documents from AGD in response to his request, Mr Mullett sought internal review of the decision under s 54 of the FOI Act. He raised three issues:
(1)had the AGD located all of the documents that came within the scope of his request and referred specifically to his seeking “all documentation contained in National Security, Law and Policy Division file no 09/23199”;[17]
(2)had it properly claimed exemption under s 42 in relation to a letter dated 11 June 2010 and addressed to Mr Wilkins. That letter had been heavily edited. Mr Mullett referred particularly to the passage appearing under the heading “Operation to the TIA Act” and questioned whether it could be the original legal advice supplied to the NSLP Division; and
(3)a document addressed to Ms Catherine Smith, Assistant Secretary of the TSL Branch, referred to a number of attachments, none of which was attached.[18]
[17] T documents at T5.1
[18] T documents T5
AGD’s decision on review
Mr Matt Hall of the AGD conducted the review and he first addressed the matters raised by Mr Mullett:
(1)File No 09/23199 is a file that is general in nature and contains documents unconnected with Mr Mullett’s matter. Mr Mullett had limited his request to documents on that file that related to the investigation of complaints he had made regarding the misuse of the TIA Act;
(2)Mr Hall explained that the letter dated 11 June 2010 to Mr Wilkins had been written by Ms Smith. It did not contain the legal advice provided by Mr Hastings later on 23 June 2010; and
(3)the third document to which Mr Mullett had referred was not in fact addressed to Ms Smith but was the last page of the letter to Mr Wilkins.
With the exception of the Attachments to Ms Smith’s letter, Mr Hall affirmed Mr Bennett’s decision and did so on the same grounds.[19]
[19] T documents at T6
The documents
At the hearing, four documents were in issue. One was Ms Smith’s Preliminary Advice dated 11 June 2011 and another Mr Hastings’ advice dated 23 June 2010. The other two were copies of letters written to Mr Hastings by Mr McDonald. One was dated 10 June 2010 and the other 22 June 2010. The earlier letter bore the word “DRAFT” as a water mark placed diagonally across its first page. Apart from the omission of that word and the change of date, there is only one variation between the two letters. It is a variation that adds half a line of text to the later version. On the basis of email correspondence between Ms Smith and Mr Wilkins’ office dated 15 June 2010 regarding the letter to Mr Hastings, I am satisfied that it is the version dated 22 June 2010 that was sent to Mr Hastings rather than the earlier version.
THE EVIDENCE
The TSL Branch and the TIA Act
When asked by Mr Mullett in cross-examination whether her role at the AGD is that of a lawyer, Ms Smith replied that it was not. She is an Assistant Secretary and heads a team comprising both lawyers and non-lawyers administering the TIA Act and the Surveillance Devices Act 2004. If needed, she gives legal advice and may do that under the Judiciary Act 1903 (Judiciary Act).
The TSL Branch, Ms Smith said, does not deal with complaints about the TIA Act as such. Rather, it just receives letters from people telling it that their telephones are bugged. The TSL Branch has no policy as to the way in which it should handle complaints. It does not have a policy as to how it should investigate complaints for it is not an investigative agency. Each is handled on its merits and examined from a legal position, Ms Smith said. The AGD could refer a matter to the AFP, it could ask for more information or it could give the person complaining some useful guidance as to how to proceed. She could not recall having previously received a complaint of the seriousness of that made by Mr Mullett. It is not her practice to draft legal advice in relation to every complaint but Mr Mullett’s was a very serious complaint and so she drafted a legal advice. In the case of his complaints, the AGD had an obligation to see if there was a legal basis for them.
In her oral evidence, Ms Smith said that quite a lot is involved in administering the TIA Act and the SD Act. The TSL Branch receives calls from law enforcement agencies as well as from members of the telecommunications industry carrying the calls intercepted under the TIA Act. It gives policy advice, advice regarding the application of the legislation and advice on the law. The TSL Branch has a team of people working on requests to amend the legislation and proposing amendments to it. It will advise the Ombudsman and the Communications Access Co-ordinator appointed under the TIA Act. The current Communications Access Co-ordinator has been appointed by the Attorney-General and is the First Assistant Secretary of the NSLP Division.[20] The TSL Branch will advise them when it thinks that there could be breaches of the TIA Act.
[20] TIA Act, ss 5(1) and 6R and Ms Smith’s oral evidence
When asked how she reconciled her role as an independent legal adviser with that of a policy and administrative adviser on the TIA Act, Ms Smith said that she kept Chinese walls between the roles. She manages her time so that she can adopt one role or another.
Ms Smith’s Preliminary Advice
Ms Smith said that AGD’s Registry, which receives all correspondence, would have referred Mr Mullett’s letter to her directly. It is Registry’s practice to send it directly to the work area concerned. The letter came to her without instruction.
Ms Smith said that she had prepared the Preliminary Advice herself as she wanted to move on the matter very quickly. No-one had made her do it. As a very senior legal adviser, she decided to do it. She could have had it “second counselled” by another officer in her Branch or by Mr McDonald. From memory, the Preliminary Advice did not contain any administrative advice and was “purely a legal analysis”. She had found Mr Overland’s affidavit on the website of The Australian but did not attempt to obtain any documentation from OPI.
Part of the Preliminary Advice was in evidence. It is not marked “Confidential”. Ms Smith agreed with Mr Mullett that it does not state that it is subject to legal professional privilege but said that it was implicit in the text for which exemption is claimed that it was subject to that privilege.
Ms Smith said that she had not received any guidance in preparing the advice. She knew, though, that she had to attend a meeting with the Secretary and had wanted to be prepared.
The meeting with the Secretary
At [5] of her affidavit, Ms Smith said that she showed Mr Wilkins her Preliminary Advice at the meeting and had briefly discussed its contents with him. In her oral evidence, Ms Smith said that the purpose of the meeting had been to brief the Secretary on the legal position regarding Mr Mullett’s complaint. The dominant purpose of preparing the Preliminary Advice was to provide legal advice to senior officers of AGD but they did not look at it and she was not asked to give them copies of it. She had shown her Preliminary Advice to him in a physical sense in that she had put it in front of him. He did not open it but told her to tell him what she was saying. Mr Wilkins neither opened nor read the Preliminary Advice and then pushed it back to her. They discussed its contents. She had not shown it to the others at the meeting.
The discussion at the meeting centred on the legal issues and it was a discussion between herself and Mr Wilkins. Ms Smith was not aware of any notes or minutes being kept of the meeting. Mr Wilkins spoke about legal issues but the others present did not speak.
At the end of the meeting, Ms Smith did not return to her desk to complete the Preliminary Advice. She had been told that the Secretary would get back to us. Later, through Mr McDonald, she was told that they were obtaining advice from Mr Hastings.
The request for advice written to Mr Hastings
In cross-examination, Ms Smith said that she was unable to tell Mr Mullett what types of advice Mr Hastings had previously provided to the AGD. She had no idea whether he had previously given any advice to the NSLP Division or on the TIA Act. He had not previously provided advice to the TSL Branch and had not done so on this occasion as he had provided the advice to Mr McDonald.
Ms Smith said that she put together a brief for Mr Hastings and telephoned him to check whether he had received an email from either her or Mr McDonald. Mr McDonald signed the briefing papers. It was unlikely that the brief had been marked as confidential as it was being sent to a member of the independent bar.
The usual process that was followed when legal advice was obtained, Ms Smith said, was that counsel would first send a draft. As she had been absent at the relevant times, the advice would have been discussed by Mr McDonald with one of the officers in the TSL Branch. It would have been checked for factual accuracy. If accurate, arrangements would have been made to pay Mr Hastings when he submitted his invoice, which he did on 28 June 2010.
Communications with the AFP
Ms Smith said that AGD liaises with the AFP on certain subject matters. As it has responsibility for the administration of the TIA Act, it also liaises with VicPol.
Ms Smith said that a copy of Mr Hastings’ advice had been sent to the AFP but not her Preliminary Advice. She had not made that decision and, as she recalled, was not involved in making that decision. She thought that Mr McDonald had made the decision.
With regard to the final paragraph of Mr Wilkins’ letter to Commissioner Negus,[21] Ms Smith said that she did not agree that it disclosed the legal advice given by Mr Hastings or legal advice at all. The letter expresses a conclusion but not a conclusion regarding legal advice. That was so because she did not think that the conclusion reached in Mr Hastings’ advice was that in Mr Wilkins’ letter. The conclusion that no further investigation was warranted was not legal advice to Commissioner Negus.
[21] See [15] above
An AFP Case Note dated 9 July 2010 reads, in part:
“The AGD state in their covering letter that AGD has commenced investigation into these breaches however the AGD concluded that based on the information provide – there is no need for further investigation. Therefore the matter was referred to the AFP for information only (not investigation).”[22]
[22] Exhibit M
A further Case Note prepared by the AFP and dated 6 August 2010 reads in part:
“In response to Mullett’s allegations a report was prepared by Mr Peter Hastings QC (for the AGD) (attached) which concluded that no offences were disclosed. Mr Hastings further states that no further investigation (and referral to AFP) is warranted in relation to the allegations against Superintendent Wilson and Chief Commissioner Overland.”[23]
[23] Exhibit L
Apart from recognising that the reference to Mr Hastings’ “report” was an inaccurate reference to his advice or opinion, Ms Smith said that she had no comment on this Case Note or the earlier Case Note. She did note that the reference to AGD’s having commenced an “investigation” was inaccurate as the AGD does not investigate.
In reply to Mr Mullett’s question whether she was aware of the Attorney-General’s policy regarding the matters that should be referred to the police for investigation, Ms Smith replied that she was not. He also asked her why the letter to him was written on 15 September 2010 when the AFP was advised of the position on his complaint in a letter dated 25 July 2010. Ms Smith replied that the AFP had to have a chance to consider the matter and AGD also had other letters from Mr Mullett. His later letters had not been sent to Mr Hastings.
Purpose for which the Preliminary Advice given, request to Mr Hastings made and Mr Hastings’ advice obtained
In her affidavit, Ms Smith said:
“The Preliminary Advice, the Advice Request and the Advice were created for the dominant purpose and, indeed, the sole purpose of seeking, obtaining and providing legal advice.”[24]
She also stated that the AGD has not, at any time and either expressly or impliedly, waived or abandoned its claim for legal professional privilege.[25]
[24] Exhibit 1 at [8]
[25] Exhibit 1 at [11]
Classification and storage of the Preliminary Advice, request for advice and Mr Hastings’ advice
Ms Smith addressed these matters in her affidavit:
“9. At all times the Preliminary Advice, the Advice Request and the Advice were confidential communications either internally within the Department or between the Department and Mr Hastings. The Department file which included these documents was classified ‘In-Confidence’. Departmental requirements attaching to an ‘In-Confidence’ classification include:
9.1Identification of information the compromise if [sic] which could cause limited damage to the Commonwealth, the Government, commercial entities or members of the public;
9.2The file cover is coloured green and clearly marked on the exterior ‘In-Confidence’ and copying of the information is to be kept to a minimum in keeping with the operational requirements;
9.3Physical removal or transmission of information from the file must only be by hand between people who have the ‘need to know’ or SCEC (Security Construction & Equipment Committee) endorsed overnight courier or by a public carrier such as Australia Post;
9.4Physical storage of the file must be in a lockable commercial grade cabinet and electronic storage of information must only be on the Department’s secure network with ‘Protected’ status, which means that only authorised Departmental officers may view the information;
9.5Paper waste relating to the file must only be shredded or otherwise disposed of by means of secure facilities with the Department for that purpose;
9.6Electronic transmission external to the Department may only be to accredited agencies connected to FEDLINK (an encryption tool) with and [sic] ‘In-Confidence’ rating or higher.
10.To the best of my knowledge and belief, all Departmental confidence and security requirements have at all times been met concerning the Preliminary Advice, the Advice Request and the Advice.”[26]
[26] Exhibit 1
In her oral evidence, Ms Smith said that a file is classified consistently with the classification of the highest classified document within it. Documents are classified by the person who creates them.
Ms Smith also said that legal advices are collected and stored within AGD but, as a draft, she did not make her Preliminary Advice available for that purpose. Access to the legal advices that are collected is strictly limited to the Australian Government Solicitor and certain persons within AGD.
CONSIDERATION
Amendment of the FOI Act
With effect from 1 November 2010,[27] the FOI Act was significantly amended by the Freedom of Information Amendment (Reform) Act 2010[28] (FOI Amendment Act). Among the provisions amended was s 42.[29] The amendments apply, however, only in relation to requests for access made under s 15 of the FOI Act and received on or after that day. That is the effect of s 3 and item 28 of Part 2 of Schedule 3 of the FOI Amendment Act. As Mr Mullett made his request to the Prime Minister before that day, I have reviewed the decision as s 42 was drafted at the time.
[27] FOI Amendment Act, s 2(1), item 6
[28] Act No. 51 of 2010
[29] FOI Amendment Act, s 3 and Schedule 3, Part 2
Section 42: legal professional privilege
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.”
The exemption is qualified by s 42(2). That qualification relates to a document of a kind referred to in s 9(1). In general terms, documents referred to in
s 9(1) are:
“… documents that are provided by an 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 or other detriments, to which persons are or may be entitle or subject …”
The effect of the qualification in s 42(2) is that, where a document is a document of this kind and contains matter which would otherwise be exempt under s 42(1), the exemption under s 42(1) cannot be claimed. It may be that the document is exempt under another provision of Part IV of the FOI Act but it is not exempt under s 42(1).
A. Legal professional privilege: general principles
In Re Philip Morris Limited and Prime Minister[30] (Philip Morris), I summarised the law relating to s 42 at [30] to [135]. I adopt my reasons in those paragraphs and incorporate them in these in an attempt to reduce the length of these reasons. I will set out only some of the main points that I made and that are relevant to this case:
[30] [2011] AATA 556; (2011) 122 ALD 619 at [30] to [135]; 628-666
(1)Whether or not a document is of such a nature that it would be privileged from production on the ground of legal professional privilege within the meaning of s 42 is determined by the principles developed under the common or general law.[31]
[31] Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 6 AAR 80 at 83 per Jenkinson J
(2)Legal professional privilege has two limbs:
“The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the … [dominant] purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.”[32]
[32] Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 at 553; 584; 491 as modified by Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at 73; 139; [61] per Gleeson CJ, Gaudron and Gummow JJ and at 107; 167; [172]-[173] per Callinan J, Kirby and McHugh JJ dissenting and see also Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561 at 552; 564 per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
(3)A “dominant purpose” is a purpose “… which was the ruling, prevailing, or most influential purpose.”[33] Furthermore:
[33] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404; 141 ALR 92; (1996) 34 ATR 183; 71 ALJR 81 at 416 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ (McHugh J not deciding the issue)
(a)“The dominant purpose is not the same as the ‘primary’ or the ‘substantial’ purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The ‘dominant’ purpose may be described as the ruling, prevailing, paramount or most influential purpose …. The ‘dominant purpose’ brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time …”[34]
[34] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 at [30(7)]; 279 per Kenny J. Appeal allowed, but not on this point, in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128; Finn, Merkel and Stone JJ
(b)Provided a communication is made or material recorded for the purpose of confidential use in litigation (the first limb), there is no need for the dominant purpose to be that of obtaining or giving legal advice.[35]
[35] See AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741 at 777; 80; [144]-[145] per Young J
(c)Whether a purpose is the dominant purpose must be decided on an objective basis:
(i)“… the subjective purpose will always be relevant and often decisive’.[36] The subjective purpose in issue is that of the person making the communication or from whom the documents or request originated;[37] and
[36] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [172]; 197; 167 per Callinan J
[37] Seven Network Ltd v News Ltd [2005] FCA 142 at [3]per Tamberlin J
(ii) Also relevant will be “… the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.”[38]
[38] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198 at [28]; 689; 588-589; 204 per Stephen, Mason and Murphy JJ. See also Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246-247 per Lockhart J
(iii)When “… communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications …. In Kennedy v Wallace,[[39]] Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.
[39] (2004) 208 ALR 424 per Black CJ and Emmett J
…”[40]
[40] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(4)]; 45; 663
(4)“The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context: but it does not extend to advice that is purely commercial or of a public relations character …”[41]
[41] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(7)]; 45; 663 (citations omitted) per Young J
(5)Legal advice must be given by a legal adviser in the context of a professional relationship which secures the advice an independent character.
(a)“Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. …”[42]
[42] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(10)]; 46; 664 per Young J. Justice Young then referred to other authorities querying whether they required that the legal adviser be admitted to practice or must hold a current practising certificate. The issues in Cole did not turn on whether the Australian Wheat Board’s legal advisers were admitted to practice or not or on their independence or otherwise and his Honour did not address the matter further. I have analysed each of the cases to which he referred in Re Philip Morris and Prime Minister [2004] AATA 556; (2011) 122 ALD 619 at [83]-[100]; 647-654
(b)“ The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. Commercial reality requires recognition by the courts of the fact that employed legal advisers not practising on their own account may often be involved to some extent in giving advice of a commercial nature related to the giving of legal advice. Such involvement does not necessarily disqualify the documents relating to that role from privilege. The matter is necessarily one of fact and degree and involves a weighing of the relative importance of the identified purposes.
It is well settled that simply to label a document as being ‘prepared for legal advice’ or as ‘privileged’ or as being ‘without prejudice’ is of itself insufficient to justify the privilege. The Court will look to the substance of the matter, having regard to the content, context and evidence as well as the form of the document.”[43]
[43] Seven Network Ltd v News Ltd [2005] FCA 142 at [4]-[6] per Tamberlin J
(c)“ The content of the requirement that a legal adviser be independent is understandably less stringent than the requirement that, for example, a judge be independent. However, it is informed by the same notions of absence of fear or favour. The concepts of independence and objective impartiality are closely linked … An independent legal adviser is one who can bring a disinterested mind to bear on the subject-matter of the legal advice. In the words of Brennan J in Waterhouse [sic], what is required is a legal adviser who is able to be ‘professionally detached’ in giving the advice.”[44]
[44] Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106 at [40]; 115 (citations omitted) per Branson J
(d)Admission to practice and a practising certificate may be relevant in determining whether this is so but neither may be determinative:
“… It seems to us that, while the possession of a practising certificate is an important factor that would go to establishing the statutory requirement of a confidential communication for the dominant purpose of providing legal advice, to hold that it is conclusive is incorrect. A legal adviser in government or commercial practice may hold a practising certificate, and yet in some aspects of his or her employment, that person may act in a manner inconsistent with the assertion of legal professional privilege. It would not be an answer to the complaint about the conduct of the DLO [Defence Legal Officer] who is said to have handed over the files of their advices to the respondent to the superior officer to say that their conduct met professional standards merely because they held a practising certificate. Equally, a legal adviser may act in an entirely professional manner, generating a claim to client legal privilege, in the absence of a practising certificate.”[45]
[45] Commonwealth v Vance [2005] ACTCA 35; (2005) 224 FLR 243 at [31]; 252
(6)A person may object to producing part of a document on the ground of legal professional privilege provided it is possible to isolate the privileged material from the remainder of the document.[46]
[46] Grofam Pty Ltd v ANZ Banking Group (1993) 43 FCR 408; 116 ALR 535; 26 ATR 174; 93 ATC 4672 at 414-415; 542-543; 180-181; 4,677-4,678
(7)Legal professional privilege may be waived either explicitly or by implication.[47]
[47] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J
(a)“… where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”[48]
[48] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and see also Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478-485 per Hunt CJ at CL
(b)“… 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.”[49]
[49] Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [29]; 13; 94; 384 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
(c)Mere reference to legal advice in another document such as pleadings in civil litigation does not of itself amount to waiver of the privilege although full disclosure of its contents will: Attorney-General (NT) v Maurice.[50]
[50] (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ
(i)“ 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 on the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd[[51]], questions of waiver are matters of fact and degree. …”[52]
[51] [2005] FCA 356; (2005) 65 IPR 442 at [26]; 447
[52] Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288 at [49]; 298-299; 17; 1302
(ii)“ It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence … Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege be waived as to the whole memorandum …
The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. …
… [T]he question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.”[53]
B.Implications of complying with obligation to delete exempt matter under s 22 for waiver
[53] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 482-483; 34-35 per Gibbs CJ
Section 22(1) of the FOI Act provides, in part, that:
“Where:
(a)an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is an exempt document; …
(ii)…
(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)would not be an exempt document; …
(ii)…; and
(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.”
In deciding whether it is “possible … to make a copy of the document with such deletions that the copy … would not be an exempt document”, regard will need to be given to the possibility that giving access to part of a document and not to another part for which legal professional privilege is claimed will lead to waiver of that legal professional privilege. If access to part of a document would amount to waiver the privilege in relation to the remainder that is privileged, the whole document would be subject to legal professional privilege. If access to part would not amount to waiver of the privilege in the remainder but it is not possible to separate the two, legal professional privilege could be claimed for the whole under the common law and s 22 would not require the agency or Minister to give access to a redacted version of the document under s 22.
Care must be taken, though, to approach the question of possibility with an open mind rather than to see s 22 as the last straw available to protect a document from disclosure.
C.Can legal advice by an Attorney-General’s lawyer be subject to legal professional privilege?
It is clear from the judgment of Young J relying on the High Court’s judgment in Waterford v Commonwealth that legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer and so within an agency or Department including AGD. It is capable of doing so, however, only if the communications would attract that privilege if the employer/employee relationship did not exist. That is to say, a decision whether legal professional privilege is attracted must be decided according to the general principles but, in doing so, particular attention must be had to the following matters:
(1)the employee who is providing the legal advice must be consulted in a professional capacity as a lawyer;
(2)the consultation must be in relation to a professional matter;
(3)the communication must be made in confidence; and
(4)the communication must arise from the relationship of lawyer and client which:
(a)assumes that the employee must be able to act with independence in the sense that he or she can bring a disinterested mind to bear on the subject matter of the advice i.e. he or she is professionally detached from the subject matter of the advice:
(i)this requires a consideration of the employment relationship on an employee’s personal loyalties, duties and interests and measures taken to ensure that the employee can provide legal advice;[54]
(ii)an employee’s interaction with other groups within the employer’s employ and with external agencies, public and private, may be relevant;[55] and
(iii)an employee must be an admitted legal practitioner.[56]
[54] See Network Ltd v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 at [15]; 674 per Graham J and Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445 at [12] and [35] per Graham J
[55] Rilstone v BP Australia Pty Ltd [2007] FCA 1557 at [26] per Besanko J. His Honour had regard to the way in which the Legal Services Branch of the Office of Workplace Services operated within that Office and its relationships with agencies, both public and private.
[56] As I noted in Philip Morris [2011] AATA 556; (2011) 122 ALD 619 at [120]; 661, “Apart from McKinnon and DFAT [Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780] and Cole [Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651], all of the authorities to which I have been referred have considered advice given by persons who are admitted to practise as a legal practitioner to use a generic description. Some had clearly been admitted in McKinnon and DFAT and all may have been but it is not clear from the Tribunal’s reasons in that case. The same may have been true in Cole but it is not clear. As the case turned on other issues, there was no need for the Court to make a finding about it.” Referring to the duties of legal practitioners set out by the New South Wales Court of Appeal in Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 (Spigelman CJ, Allsop P and MacFarlan JA) at [52]; 562-563 and by Pagone J in Frugtniet v Board of Examiners [2002] VSC 140 at [10], I concluded that admission as a legal practitioner is an important element in considering independence for:
These issues are decided bearing in mind that legal professional privilege:
(a)is not determined by reference to whether the person does, or does not, have a practising certificate;[57]
(b)is not available if the employee is acting in a capacity other than as a legal adviser;[58]
(c)is determined by reference to the substance of all relevant matters including the content of the advice, the context in which it was given as well as its form;[59] and
(d)is determined in light of the purpose for which legal professional privilege is recognised, that is:
(i)“… The purpose of legal professional privilege is to facilitate the seeking and giving of legal advice and thereby to ensure that the law be applied and litigation be properly conducted …”;[60] and
(ii)“…It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if the proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.”[61]
[57] See authorities in my reasons for decision in Philip Morris [2011] AATA 556; (2011) 122 ALD 619 at [86]-[100]; 648-654
[58] Attorney-General (NT) v Kearney (1985) 158 CLR 500; Gibbs CJ, Mason, Wilson and Brennan JJ; Dawson J dissenting at 510 per Gibbs CJ
[59] Seven Network Ltd v News Ltd [2005] FCA 142 at [4]-[6]per Tamberlin J
[60] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350 at 70; 683; 355 (citations omitted)
[61] AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705 per Advocate General, Sir Gordon Glyn, approved in Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; 129 ALR 593 at 127-128; 596 per Brennan J and 145; 610 per Toohey J
D. Is the Preliminary Advice subject to legal professional privilege?
The answer to this question depends on the factors, to which I have referred under the previous sub-heading. On the basis of her evidence, I find that Ms Smith has been admitted as a legal practitioner in the Supreme Court of New South Wales and is an employee of the AGD under the PS Act. Therefore, for the purposes of the Judiciary Act, she is an Attorney-General’s lawyer.[62] Having read the Preliminary Advice, I am satisfied that the passages for which exemption is claimed are in the nature of legal advice. On the basis of Ms Smith’s evidence, I am also satisfied that access to the Preliminary Advice has been restricted to those in the TSL Branch and to Mr McDonald, and Mr Jordana. It has not been circulated generally throughout AGD or included in their database of legal opinions.
[62] Judiciary Act, s 55E(1)
The more difficult question centres on the capacity in which Ms Smith gave her Preliminary Advice. Did she do so in her capacity as an independent legal adviser or in some other capacity? Had she been advising an agency outside the AGD, it might have been clear that she was doing so as an independent legal adviser. As it is, she was not advising an external agency but the Secretary of the Department, Mr Wilkins, as to whether the facts indicated that there had been a breach of the TIA Act. I accept that advising Mr Wilkins was her dominant purpose in preparing the document. As events turned out, he did not read it but that does not change the purpose for which she wrote it.
For the purposes of claiming legal professional privilege, Mr Wilkins is said to be her client.[63] However Mr Wilkins is described, I am not satisfied that there was, on this occasion, a relationship of lawyer and client between him and Ms Smith in which she could be said to bring a mind professionally detached from, or disinterested in, the subject matter of the advice. In her role as the Head of the TSL Branch, she had responsibilities for matters arsing in the administration of the TIA Act. I described the three areas of responsibility at [6] above. I am not concerned in this case with the advice she gave to key stakeholders or to the Communications Access Co-ordinator . I am concerned with the legal and policy advice she gave in relation to the TIA Act for it seems to me that it is within this group of her functions that her Preliminary Advice falls.
[63] AGD’s submissions at [32]
As the Secretary of the Department, Mr Wilkins also had responsibility for those matters but the nature of his responsibility differed from that of Ms Smith’s. As the Secretary, he necessarily had responsibility for the same matters in relation to the TIA Act but generally did so in a more supervisory capacity. That changed when a complaint of the seriousness of Mr Mullett’s was received. I find that it was a matter on which his direction was required and the purpose of the meeting was to obtain it. Mr Wilkins did not give any specific direction at the time but I find that he did later when he directed that Mr Hastings be asked for his advice.
On the basis of her evidence and having regard to the documents to which I have referred, I find that Ms Smith prepared the Preliminary Advice as a consequence of receiving Mr Mullett’s letter dated 23 March 2010 and his subsequent letter dated 4 June 2010 and the information they contained. Mr Mullett wanted his allegations to be investigated. I accept that Ms Smith felt that she could change from her role playing a part in the administration of that legislation to a role providing disinterested advice but I do not accept that she could do so in fact.
In reaching that conclusion, I have spent some time considering what is involved in the administration of legislation and so what is involved in a Department’s assisting the Minister for State in administering that legislation. I have set out my consideration of that issue in Attachment B to these reasons. Having regard to that analysis and the course of events in AGD’s dealing with Mr Mullett’s complaint, I have concluded that the Preliminary Advice was prepared by Ms Smith and her subsequent communication of that advice to Mr Wilkins undertaken in the course of her carrying out her duties associated with the administration of the TIA Act. The manner in which Mr Mullett’s complaint would be handled was a matter arising under that administration. She cannot then be seen as stepping into a separate role as a legal adviser giving legal advice on a matter for which she has day to day responsibility and Mr Wilkins had supervised and, on this particular occasion, directed the course to be taken. She cannot be said to be a legal adviser who can advise Mr Wilkins from a position of independence.
That does not mean that Ms Smith’s advice was necessarily any different from that which would have been given by a member of the private Bar or a lawyer from the Australian Government’s Solicitor’s Office or from a legal advice section in the Department who had no responsibilities for the administration of the TIA Act. It does not mean that her advice was flawed or wanting in any way. It does not mean that I question her professionalism or suggest that she was influenced inappropriately in any way. Ms Smith is not the issue and nor is her work. What is the issue revolves around the nature of her duties and responsibilities in administering the TIA Act.
For the reasons I have given, I have decided that the part of the Preliminary Advice for which exemption is claimed under s 42 is not of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. It is not exempt under s 42 of the FOI Act.
D. Mr McDonald’s letter to Mr Hastings’ and Mr Hastings’ advice
I am satisfied that Mr McDonald’s letter to Mr Hastings was written for the dominant purpose of obtaining Mr Hastings’ confidential legal advice. As I have previously found, there are two versions of the letter. The earlier is a draft of the letter that was sent later. I am satisfied that both were written for the same dominant purpose.
Mr Hastings’ opinion was, in turn, written for the dominant purpose of providing that legal advice. As a member of the Bar, I am satisfied that he is independent from AGD and a legal adviser who could bring a disinterested mind to bear on the subject-matter of the legal advice.I am satisfied that both are documents of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege. Unless the privilege has been waived, they are exempt under s 42 of the FOI Act.
E.Has the privilege been waived?
Principles that are relevant in determining whether privilege has been waived include:
(1)Privilege may be waived either intentionally or by implication.[64]
[64] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J
(a)“… where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”[65]
[65] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and see also Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478-485 per Hunt CJ at CL
(b)intentional acts may be regarded as inconsistent with the maintenance of the confidentiality of the communication regardless of the motivation for those acts:
“… 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.”[66]
[66] Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [29]; 13; 94; 384 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
(2)The mere fact of disclosure to a third person, though, does not of itself amount to waiver:[67]
[67] Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 355 per Jordan CJ cited with approval in Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [30]; 14; 95; 385 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
(a)“ 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 on the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd[[68]], questions of waiver are matters of fact and degree. …”[69]
[68] [2005] FCA 356; (2005) 65 IPR 442 at [26]; 447
[69] Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288 at [49]; 298-299; 17; 1302
(b)Mere reference to legal advice in another document such as pleadings in civil litigation does not of itself amount to waiver of the privilege although full disclosure of its contents will: Attorney-General (NT) v Maurice.[70]
[70] (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ
(3)“… [T]he starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material: see Rio Tinto[[71]] at [45]. The disclosures in question here were made variously to the IIC, to the Australian Government, to the Commission and in some instances via the procedures of the Commission to the public at large. In my opinion, there is no reason why these disclosures cannot support a finding that AWB has waived legal professional privilege over associated material.”[72]
[71] Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; Kenny, Stone and Edmonds JJ where it was also said “… Plainly enough, the inquiry that it [Mann v Carnell] mandates focuses on the facts of the particular case. It follows that other cases in which implied waiver has been considered provide limited guidance unless they arise out of similar facts.”
[72] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [133]-[134]; 68; 685
(4)Objection to production of part of a document can be made on the ground of legal professional privilege provided it is possible to isolate the material for which privilege is claimed from the remainder.[73]
(a)The authority to which reference is made to support this proposition is the judgment of Heerey J in Grofam when he adopted the reasoning of McPherson J, with whom Andrews CJ and Demack J agreed, in Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd.[74]
(b)In considering the question of disclosure of part of a document, care must be taken to ensure that disclosure of part of the document does not amount to waiver of the privilege in relation to that part which is not disclosed and for which privilege is claimed. In Attorney-General v Maurice, Gibbs CJ observed:
“ It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence … Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege be waived as to the whole memorandum …
The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. …
… [T]he question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.”[75]
[73] See Grofam Pty Ltd v ANZ Banking Group (1993) 43 FCR 408 at 414-415 per Heerey J adopting the reasoning of McPherson J, with whom Andrews CJ and Demack J agreed, in Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335. This approach has also been followed in other cases such as Gray v Associated Book Publishers Pty Limited [2002] FCA 1045 at [32] per Branson J and CandacalPty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284; (2005) 59 ATR 615 at [53]; 295 per Lee J
[74] [1987] 2 Qd R 335
[75] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 482-483; 34-35 per Gibbs CJ. An example is found in Zentai v O’Connor [2010] FCA 252; (2010) 183 FCR 180 (Zentai). The AGD had prepared a brief for the Minister for Home Affairs relating to the conditions that preceded any surrender of Mr Zentai to a country seeking his extradition and grounds on which surrender might be refused. Much of the document comprised legal advice in response to submissions made by Mr Zentai regarding his possible extradition. McKerracher J found that much of the document’s 54 pages had been revealed to Mr Zentai but, on two key issues, it had not. After canvassing the authorities, his Honour concluded that:
In this case, there is no inherent unfairness to Mr Mullett in refusing him access to Mr Hastings’ opinion or to the letter seeking that advice. Certainly, he has been given access to Mr Wilkins’ letter dated 25 July 2010 in which Mr Wilkins disclosed that to Commissioner Negus that, in Mr Hastings’ opinion, no further investigation is warranted. In doing so, he disclosed only Mr Hastings’ conclusion and not his reasons for doing so. No other material has been released that hints at his reasons. There is, therefore, no internal inconsistency between releasing the conclusion and refusing the reasons. In that regard, it is quite unlike the case of Zentai v O’Connor, in which legal advice on some issues was revealed but was refused on other issues in circumstances in which all issues were relevant to whether Mr Zentai was to be extradited from Australia. It is a case more on a par with Osland v Secretary, Department of Justice. The disclosure of Mr Hastings’ opinion was made to a limited audience being Commissioner Negus. Given the AGD’s role in administering the TIA Act and the AFP’s role in law enforcement, it can be seen that it was disclosed for the limited purpose of keeping each informed of a matter that concerned them both. There is no inherent unfairness to Mr Mullett in claiming that Mr Hastings’ opinion is subject to legal professional privilege and so exempt under s 42 of the FOI Act.
Section 36: internal working documents
Section 36(1) of the FOI Act provides:
“Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the function of an agency or Minister or of the Government of the Commonwealth; and
(b)would be contrary to public interest.”
The section is qualified in two ways. First, it does not apply to a document by reason only of purely factual material contained in the document: s 36(5). Second, it does not apply to matter used for the purpose of making decisions or recommendations referred to in s 9(1)(a): s 36(2). Where a decision is made to deny access to a document on the basis that the exemption in s 36 applies, the reasons given under s 26 must state the ground of public interest on which the decision is based.[76]
[76] FOI Act, s 36(7)
A.General principles
In Philip Morris, I summarised the law relating to s 36 at [205] to [250]. I adopt my reasons in those paragraphs and incorporate them in these again in an attempt to reduce the length of these reasons.
B. Section 36(1)(a): the first criterion
Mr Mullett has submitted that the Preliminary Advice was prepared for a purpose unconnected with any of the Attorney-General’s statutory duties. As Ms Smith had stated, the Attorney-General could not investigate his allegations; that was a matter for the AFP and not for the AGD. For the reasons I have given at [139-147] in Attachment B, I agree with Ms Smith that the AGD could not investigate whether an offence had occurred. I do not agree that this means that AGD had no function in relation to his allegations. As part of its duties in administering the TIA Act, it had to decide what to do with Mr Mullett’s allegations. The fact that allegations are made does not, of itself, require a Department or agency with investigative powers to investigate them. Equally, the fact that they are made does not, of itself, require a Department or agency without investigative powers to refer them to the AFP or other appropriate investigative body. A decision must be made and it was part of AGD’s duties or functions to make that decision.
The Preliminary Advice, I find, is a document prepared for the purposes of deliberating about Mr Mullett’s complaint and coming to a decision about what to do with it. It contains matter in the nature of opinion, advice or recommendation and clearly comes within the first criterion set out in s 36(1)(a) of the FOI Act.
C. Section 36(1)(b): the second criterion
Mr Mullett submitted that it is in the public interest that he be given access to the Preliminary Advice. In deciding whether it comes within s 36(1)(b), the test is, rather, would disclosure of the Preliminary Advice be contrary to the public interest. Mr Bennett submitted that:
“105. … even if the Tribunal considers that it has not fulfilled all the technical requirements that will afford it the protection of legal professional privilege, it is still nonetheless confidential legal advice and, as such, is different from, for instance, many other purely policy documents. There is, the Respondent would submit, strong public interest in legal advice remaining confidential to enable free and candid communication within a deliberative process.
…
110. … Ms Smith has testified that once the advice was completed it was regarded as a confidential document and handled and treated accordingly. It is submitted that its release could have the effect of inhibiting such candid communications in the future and affect adversely the ability of government lawyers to properly perform such duties.
111. … Ms Smith’s advice … satisfies section 36(1)(b) as it would be contrary to the public interest to release such a document. …”
Mr Bennett referred to three cases to which I had referred in Philip Morris: Re Howard Re Howard and Treasurer of the Commonwealth of Australia[77] (Howard); Re Wallace and Director of Public Prosecutions[78] (Wallace) and Re Kowalski and ACT Government Solicitor[79] (Kowalski). He submitted:
“107. … In those cases convincing arguments were made that the release of advice of in-house lawyers would be contrary to the public interest.
108. In Kowalski, the Tribunal stated that ‘if [the in-house lawyers] thinking processes are not protected from public exposure, they are likely to be constrained in performing their duties or the advice and assistance they offer may not be as well considered as it would otherwise be’.
109. Similarly, in Wallace, the Tribunal noted that the documents ‘contained advice or recommendations recorded in confidence, in the reasonable expectation that it would remain confidential. I accept that, because of the nature of the advice, release of the document would tend to inhibit such communications in the future to inhibit recording them. The inability to record such communications in confidence would be contrary to the public interest in the efficient and effective conduct of the business of the DPP and could expose the DPP to disadvantage in the conduct of litigation.’ A similar argument was also upheld in Re Terrill and the Department of Transport[[80]] and Regional Services, in which documents containing pre-decision policy advice were exempt on the grounds that their disclosure would potentially limit the provision of future advice containing opinion or subjective analysis.
110. The Respondent submits that a similar situation applies here. Ms Smith has testified that once the advice was completed it was regarded as a confidential document and handled and treated accordingly. It is submitted that its release could have the effect of inhibiting such candid communications in the future and affect adversely the ability of government lawyers to properly perform such duties.”
[77] (1985) 7 ALD 626; Davies J
[78] [2003] AATA 119; Senior Member Dwyer
[79] [2006] ACTAAT 14; Senior Member O’Neil
[80] [2003] AATA 52; Senior Member Dwyer
I have already accepted Ms Smith’s evidence that the Preliminary Advice was treated as a confidential document and that it contained legal analysis. I am also satisfied that it contains opinion and advice. That evidence does not satisfy me that its disclosure under the FOI Act would be contrary to the public interest. I have looked to her evidence for evidence relating to the consequences of disclosure but I have not found it. I have looked also at the content of the Preliminary Advice but it does not satisfy me that its disclosure would be likely to inhibit frankness or candour in the future or, at least, to inhibit AGD officers from committing such information to paper in the future. That may be the case but I do not have evidence to consider. All that I have is the duty of APS employees, including AGD officers, to uphold the APS Values prescribed by s 10 of the Public Service Act 1999 (PS Act).[81] I note particularly the fifth and sixth APS Values which are that:
“(e) the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public;
(f) the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs”.
[81] PS Act, s 13(1)(11)
As required by s 11(1) of the PS Act, the Public Service Commissioner (PS Commissioner) has issued Directions in relation to each APS Value (Public Service Commissioner’s Directions 1999) (PSC Directions). Direction 2.6 relates to the APS Value set out in s 10(1)(e). Among its requirements is a requirement that:
“… an APS employee must, taking into account the employee’s duties and responsibilities in the Agency, take all reasonable steps to ensure that he or she:
(a)…
(b)…
(c)is able, within the accountability framework, to demonstrate clearly and appropriately to Ministers, to the Parliament and to other stakeholders that he or she has efficiently, effectively and ethically used the resources allocated to him or her.”[82]
[82] PS Directions at 2.6 at 9
Indicators have been set out by the PS Commissioner to demonstrate that the APS Values are being met. Among them are those relating to Direction 2.6:
“…The agency’s reporting arrangements provide a clear account of the agency’s performance and the effective, efficient and ethical use of resources for the achievement of outputs and outcomes in the reporting period.
The agency is able to demonstrate that due process has been followed in its actions and decisions, including the existence and maintenance of good recordkeeping systems.”[83]
[83] Values in the Australian Public Service, 2nd edition, 2002, AusInfo, Canberra at 10
Indicators that the APS Value set out in s 10(1)(f) of the PS Act is being met are:
“Agency advice to government is balanced, comprehensive, impartial, timely, adequately documented and provides government with a clear and sufficient analysis of all relevant issues and options.
The agency has a culture that supports the provision of frank and fearless advice.
The agency has systems which enable it periodically to assess and review the effectiveness of its advice to government, taking appropriate account of the views of stakeholders.
The agency has reporting arrangements that enable it to demonstrate that it is responsive to the government through its effectiveness in implementing government policies and programs.”[84]
[84] Values in the Australian Public Service regarding Direction 2.7 at 12
Evidence underpinned the findings of fact made in the decisions to which I was referred and so the decisions reached by the tribunals in those cases. In Howard, Davies J observed that, among others, “Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.”[85] His statement assumes that there is evidence of inhibition of frankness and candour. I note that evidence of that sort was given in each of Wallace,[86] Kowalski[87] and Re Terrill and the Department of Transport (Terrill).[88]
[85] (1985) 7 ALD 626 at 634
[86] In Wallace, exemption under s 36(1) was claimed on either one of two bases:[87] In Kowalski, Senior Member O’Neil said that affidavit evidence had been given reading in part:[88] In Terrill, the Assistant Secretary of the Executive Service Group, Department of Transport and Regional Services gave the following evidence before Senior Member Dwyer:
For these reasons, I am not satisfied that disclosure of the Preliminary Advice under the FOI Act would be contrary to the public interest. As the criterion in s 36(1)(b) has not been satisfied, the Preliminary Advice is not exempt under s 36.
Additional documents
In his written submission, Mr Mullett has referred to five documents, to which he says that he has not been given access. I will consider each in turn.
The first is an undated document headed “Claims by Paul Mullett Background (obtained from media)”. Mr Mullett was initially given access to a version of the document from which material had been removed on the basis that it was exempt under s 42. The claim for exemption has since been reconsidered and access was given to the document in its entirety during the course of the proceedings. It is Exhibit R.
The second is the letter referred to in email communications between Ms Susan Mihalic, a Principal Legal Adviser in the TSL Branch, and Ms Tamerra MacKell in the Office of the Commissioner Executive. An attachment to an email is a document of an agency as much as the email itself and should be dealt with as such. A reference to a letter in an email, however, does not make it an attachment and so a document to which consideration must be given in that context. What it does is to act as a signpost to other documents that may exist. In this instance, it is a signpost to a letter to be sent to Mr Mullett. The email communication is dated 27 July 2010 and the only response written to Mr Mullett was dated 15 September 2010. There is material on the file that leads me to find that the timing of the despatch of the letter was determined on or after 27 July 2010. There is nothing in the documents to suggest that there was another letter in the form of a draft that was sent to the AFP in the meantime or that the letter referred to in the email communications between Ms Mihalic and Ms MacKell is anything other than the letter ultimately sent to Mr Mullett.
The third document is referred to in email communications between Mr Craig Riviere in the office of the Secretary to AGD and Ms Mihalic on 30 June 2010. Ms Mihalic told Mr Riviere that she had attached Mr Hastings’ draft advice and that they were waiting for the final. I accept Ms Smith’s evidence that the practice has been for counsel to provide a copy of his or her advice in order for it to be checked for factual accuracy and to follow with the final after payment. On the basis of the material, I am satisfied that, in this case, the draft and the final were one and the same. Both are subject to legal professional privilege and exempt under s 42 of the FOI Act.
The fourth document is the earlier draft of the letter to Mr Hastings. Reference is made to it in email communications on 15 June 2010 between Ms Smith and Mr Riviere. I have already found that there are two versions of the letter. For the reasons I have given, both are exempt under s 42 of the FOI Act. A draft of a letter written for the purpose of seeking legal advice from independent counsel is no less subject to legal professional privilege than the final version.
The fifth document is a document attached to an email sent by Ms Smith to Mr Hastings. Together with Mr McDonald’s letter to Mr Hastings, Ms Smith attached “Scanned Correspondence – Paul Mullet to TSLB – 4 June 2010” and “Scanned Correspondence – Paul Mullet to TSLB – 23 March 2010”. I have not been given copies of these documents but, in their context and given their description, I accept that they are Mr Mullet’s correspondence to the TSLB on those dates. I note that Mr Mullet has presumed that to be so in his submissions.
The final document that is attached but which has not been provided is described as “Brief to Mr Hastings QC (2) doc”. It would seem that the AGD’s position is that the document is not within the scope of Mr Mullet’s request because he had requested only documents held “on file no 09/23199”. The brief to Mr Hastings was not “on” the file. If the copy of the Brief to Mr Hastings QC was not physically on the file, I agree that it was not “on” the file but I am not so sure that a reference in a request to documents that are “on” a particular file should be read so narrowly. Email correspondence is stored electronically and not in paper form. The paper record of it that is kept on the file directs attention to material that is stored electronically. I have no evidence as to the manner in which electronic files are stored in AGD but it would not assist. It seems to me that a paper copy of an email kept on the relevant file and showing that it was sent with attachments is a record that those attachments were part of the email that was sent. Traditional record-keeping practices would suggest that a copy of the attachments should be kept on the file as well as the covering email. When they are not, it seems to me that the email is to be read as a record of itself and as a signpost to the attachments that are stored in a different medium i.e. electronically. The fact that they are stored in a different medium makes them no less a part of a file than if they were printed out and stored on the file as paper copies.
In this case, I have not required AGD to produce the Brief to Mr Hastings QC because, from its description and the timing of its being sent to Mr Hastings, I am satisfied that it would be subject to legal professional privilege. Legal professional privilege attaches to communications rather than to documents. Therefore, the privilege may attach to documents which were not written for the dominant purpose of obtaining legal advice but which were copied for that purpose. [89] A brief to counsel may well contain documents that appear elsewhere on the file. Those other copies may not be subject to legal professional privilege but that does not detract from the fact that a copy of the document made for the dominant purpose of obtaining legal advice is subject to it.
[89] Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; 71 ALJR 327 at 509-510; 549-551; 331-333 per Brennan CJ; citations omitted
Given the context of Mr McDonald’s letter to Mr Hastings and its request for legal advice, I am satisfied that all of the documents attached to it have been prepared for the purposes of seeking his legal advice. The letters from Mr Mullet are subject to it even though the copy or copies of those letters held elsewhere on the file would not be subject to it. They have been made for the dominant purpose of obtaining legal advice no less than the Brief to Mr Hastings QC. All are exempt under s 42 of the FOI Act.
ATTACHMENT A
APPLICATION TO DISQUALIFY OR RECUSE MYSELF
As I mentioned at [2], Mr Mullett suggested that I might disqualify myself from hearing his application because I had issued one or more warrants under the TIA Act authorising the interception of telecommunications services. I cannot be more specific and, if the matters were within my memory, I could not confirm that I had issued such warrants for to do so might be regarded as communicating interception warrant information contrary to s 63 of the TIA Act. I have written these reasons on the assumption that I have, at some time, issued a warrant or warrants of the sort described by Mr Mullet but do not confirm that I have done so.
General principles
I will begin with the general statement made by the majority in Ebner v Official Trustee in Bankruptcy[90] (Ebner):
“ The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all the cases of the absence of independence.”[91]
[90] [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; 75 ALJR 277; Gleeson CJ, McHugh, Gummow and Hayne JJ; Gaudron J delivering a separate judgment; Kirby J dissenting
[91] [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; 75 ALJR 277 at [22]-[23]; 348; 650; 281
As can other administrative decisions, the presumption that a warrant has been properly issued can be set aside where the decision to issue it has been induced by fraud or misrepresentation.[157] Misrepresentation may occur where there has been a half-truth which is misleading.[158] As with other administrative decisions, a decision to issue a warrant may also be invalidated where its initiating and abiding purpose is a foreign or ulterior, and so improper, purpose. [159]
[157] Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542; 124 ALR 224; Beaumont, Hill and Whitlam at [25]; 555; 238 per Beaumont and Whitlam JJ
[158] [1994] FCA 1286; (1994) 52 FCR 542; 124 ALR 224 at [25]; 555; 238
[159] Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149; 134 ALR 495; 40 ALD 385
An example of a case in which these matters were considered in relation to warrants issued under the TIA Act by nominated AAT members is Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria.[160] Justice J Forrest said:
“75 At the heart of the matter is whether it was open to the Magistrate to infer that it was reasonably possible that misleading information was placed before the AAT member (or members). In my view, at best, the facts relied upon by the Magistrate in the context of the requirements of s 42 and s 46A entitled him to infer that the details of the s 46 warrants and the information obtained from their use had been placed before the AAT member – but not to go the next step namely to conclude that there was a reasonable possibility that the AAT member or members had been misled. There was nothing in the historical matters, the issuing of the s 46A warrants or in the construction of the legislation which permitted his Honour to draw this inference.
76 In the result I am satisfied that there was no evidence available to the Magistrate to conclude that it was on the cards, or a reasonable possibility, that the warrants were obtained as a result of an application made in bad faith or upon misleading material. Therefore, both error of law on the face of the record and jurisdictional error is made out.
77 I am also of the view that there was no probative evidence to support the logic utilised by the Magistrate in reaching his conclusion that there was a reasonable possibility of the information provided by the AFP as being misleading or in bad faith. ….”
[160] [2011] VSC 3; J Forrest J
Should I disqualify myself?
I have set out the structure of the TIA Act and of matters associated with applications for warrants I consider as a nominated AAT member. The issues that I must consider in relation to an application for a telecommunications service warrant of the sort referred to by Mr Mullet are set out in s 46 of the TIA Act. They are matters quite unrelated to those that I must consider in deciding the issues raised by my review of the decision in this case. The matters raised by the issues in this case relate to legal professional privilege and its waiver, to the public interest and considerations of public administration generally. They have nothing to do with any matters of the sort of which I must be satisfied under s 46(1) or to which I must have regard under s 46(2) of the TIA Act when considering an application for a warrant.
Turning to Mr Mullett in particular, if there were any adverse information relating to him or any information about his activities in any application for a warrant it would be irrelevant to my consideration of the issues in this case. Had I formed an adverse opinion of him, it would equally be irrelevant to my consideration of the issues of legal professional privilege and the public interest. They are issues that do not hinge on my having a good or an adverse opinion of anyone or on my having any opinion at all.
I have concluded that a hypothetical fair-minded lay observer, who has some informed appreciation of the nature of the proceedings, would be of the view that I have not, in connection with any application under the TIA Act, considered or received information that would be relevant in deciding the issues in this case. He or she would not reasonably apprehend that I would not bring an impartial mind to the issues in this case. Therefore, I did not disqualify myself from hearing the application in this matter.
ATTACHMENT B
Administrative responsibility for the TIA Act
General principles
Under s 61 of the Constitution, the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as her representative. It “… extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”[161] The Governor-General is advised in the government of the Commonwealth of Australia by a Federal Executive Council[162] and acts with the advice of that Council.[163] Under s 64 of the Constitution, the Governor-General “… may appoint officers to administer such departments of State of the Commonwealth as the Governor-General …” acting with the advice of the Federal Executive Council may establish. Those persons are members of the Commonwealth Parliament and Ministers of State.
[161] Constitution, s 61
[162] Constitution, s 62
[163] Constitution, s 63
The Governor-General exercises her power under s 64 by making an Administrative Arrangements Order (AAO) from time to time. At the relevant time, and it is no different now, the AAO ordered that:
“1. The matters dealt with by a Department of State include:
(a)the matters referred to in the Part of the Schedule relating to that Department; and
(b)matters arising under the legislation administered by a Minister of State administering the Department.
2.The legislation administered by a Minister of State administering a Department is:
(a)the legislation referred to in the Part of the Schedule relating to that Department; and
(b)legislation passed before or after the date of this Order, that relates to a matter dealt with by the Department, not being legislation referred to in another Part of the Schedule.”
In relation to the TIA Act, the AAO ordered that the Attorney-General administer it together with other legislation specified in Part 2 of the AAO. The matters dealt with by the Department of State that is the Attorney-General’s Department are, in part, “Law and justice including - … Criminal law and law enforcement …”[164] together with matters arising under legislation administered by the Attorney-General including the TIA Act.
[164] AAO, Part 2
Under s 67 of the Constitution, the Governor-General also had the power of appointment and removal of all other officers of the Executive Government but only until Parliament otherwise provided. Parliament has otherwise provided on a number of occasions. One such example is found in the Public Service Act 1999 (PS Act). Its provisions link back to the Constitution.
Section 9 of that legislation provides that the Australian Public Service (APS) consists of Agency Heads and APS employees. An “Agency Head” includes the Secretary of a Department[165] and a “Department means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency.”[166] The office of Secretary of a Department is established on the establishment of the Department of State. That occurs under s 56(1) of the PS Act. The appointment of a person to hold that office is dealt with separately under s 58.
[165] PS Act, s 7
[166] PS Act, s 7
An “APS employee” is a person engaged under s 22 or, in the case of administrative re-arrangements as a result of machinery of government changes, s 72. Under s 22(1), the Secretary of a Department may, on behalf of the Commonwealth, engage persons as employees for the purpose of the Department.
The drafting of the PS Act recognises that a Department, which is by definition a Department of State, is a creation of the Constitution and not of the PS Act or any other Act of the Parliament. Therefore, the PS Act does not provide that a Department of State consists of its Secretary together with any employees assisting the Secretary. It is to be contrasted with an Executive Agency which may be established by the Governor-General under s 65 of the PS Act. Section 65(2) provides that, for the purposes of the PS Act, an Executive Agency consists of the Head of Agency together with any employees assisting the Head.
At the same time, a section such as s 20(1) of the PS Act provides that an Agency Head, which includes a Secretary of a Department, has all the rights, duties and powers of an employer in respect of “APS employees in the Agency” (emphasis added). That suggests that the APS employees form part of the Agency and is to be contrasted with the reference in s 22(1) to the engagement of persons “as employees for the purposes of the Agency” (emphasis added).
Reading the power given to the Governor-General by s 64 to establish Departments of State and by s 67 of the Constitution to appoint “civil servants” together with the structure of the PS Act, it seems to me that each Department of State established by the Governor-General is mirrored by a Department comprising a Secretary and APS employees appointed under the PS Act. The mirroring Department comprises the “other officers of the Executive Government of the Commonwealth” or “civil servants” contemplated by s 67 of the Constitution. Its duties and responsibilities mirror those of the corresponding Department of State established by the Governor-General.
This interpretation is consistent with the meaning that Parliament gave to the word “Department” in s 4(1) of the FOI Act: “Department means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth …”. It is also consistent with the system of responsible government described by Murphy J in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth:[167]
“… The system of responsible government which is reflected in ss. 61 and 64 of the Constitution contemplates (if it does not require) that executive powers and discretions of those in the departments of the executive government be exercised in accordance with the directions and policy of the Minister. Unless the language of legislation (including delegated legislation) is unambiguously to the contrary, it should be interpreted consistently with the concept of responsible government. It would be inconsistent with that concept for the secretary or any officer of a department to exercise such a power or discretion contrary to the Minister's directions or policy (provided of course these are lawful). It is not for the officer to distinguish between ‘government policy’ and the Minister's policy. The duty of those in a department is to carry out the lawful directions and policy of their Minister. It is the Minister who is responsible to the government and the parliament for the directions and policy.”[168]
Administrative responsibility for the TIA Act: the role of the Attorney-General, the Attorney-General’s Department and the AGD
[167] [1977] HCA 71; (1977) 139 CLR 54; 52 ALJR 254
[168] [1977] HCA 71; (1977) 139 CLR 54; 52 ALJR 254 at 87; 267
The Department which is an agency for the purposes of the FOI Act is, therefore, the AGD comprising the Secretary and APS employees. It is not the Department of State that is the Attorney-General’s Department. Its duties and responsibilities mirror those of the Attorney-General’s Department and it is responsible to the Attorney-General for, among others, matters arising under the TIA Act administered by the Attorney-General.
In order to understand its duties and responsibilities, it is necessary to understand what is encompassed in administering legislation. In the case of the AGD, it must deal with the matters arising under legislation “administered by the Minister of State administering the Department” as well as those referred to in Part 2 of the Schedule to the AAO. That takes me back to the broader executive power referred to in s 61 of the Constitution for it sets the background against which the Governor-General may appoint Ministers of State under s 64. Section 61 states that the “… executive power of the Commonwealth … extends to the execution and maintenance of … the laws of the Commonwealth.” On its face, it is not an exhaustive statement of the executive power but its wider compass is not relevant in this case.
To execute and maintain laws is to enforce and uphold the laws of which the Executive Government is the guardian.[169] Justice Isaacs explained that the words:
“… denote the purpose and nature of the power to be conferred, and mark their limit. Courts do not execute or maintain laws relating to trade and commerce [in issue in that case]. These words imply a duty to actively watch the observance of those laws, to insist on obedience to their mandates, and to take steps to vindicate them if need be. But a Court has no such active duty: its essential feature as an impartial tribunal would be gone, and the manifest aim and object of the constitutional separation of powers would be frustrated. …”[170]
[169] The State of New South Wales v The Commonwealth [1915] HCA 17; (1915) 20 CLR 54 at 72 per Barton J
[170] [1915] HCA 17; (1915) 20 CLR 54 at 93 per Isaacs J
Section 64 of the Constitution does not provide for the appointment of Ministers of State to execute and maintain the Department of States. The AAO does not order that the legislation executed and maintained by a Minister of State is set out in the relevant Part in the Schedule. Instead, s 64 provides for the appointment of a Minister of State to administer a Department of State and for him or her to administer legislation. The ordinary meanings of the word “administer” relevant in this context include:
“… 1 to manage, govern or direct (one’s affairs, an organisation, etc) …”[171]
“… 1. To manage (affairs, a government, etc.); have charge of the execution of: to administer laws …”[172]
[171] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[172] Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd
Although these meanings suggest that the word “administer” covers some of the same field as “execute”, it must be remembered that the words are used in different contexts. In so far as the word “administer” encompasses execution of legislation, it can only do so within the bounds permitted by the legislation administered.[173] That legislation may confer investigative and other powers that can be used to investigate offences. If it does not, that does not mean that a Minister can do nothing if he or she becomes aware that an offence has been committed. Managing, governing and directing, and so administering legislation, may require referral of a matter to another part of Executive Government, which has the appropriate powers.
[173] Administration of legislation does not mean that a Minister may assume power to make decisions under it. Those who may do so are determined by the terms of the legislation concerned. The FOI Act provides examples but I will refer to only one. Under the AAO, the Attorney-General is responsible for its administration but the Attorney-General cannot make decisions under it except in relation to an agency of which she is the responsible Minister. Power to make decisions is not given to the Minister administering the FOI Act but to the responsible Minister or the principal officer of the agency. Either may delegate their power to others under arrangements they make for that purpose: FOI Act, s 23(1).
The TIA Act and the Competition and Consumer Act 2010 (CC Act) are examples of differing powers being given to those who administer them or assist those who do. The Australian Competition and Consumer Commission (ACCC) established under s 6A of the CC Act clearly has investigative and enforcement powers. Section 133, for example, states that the Chairperson of the ACCC may appoint a member of the staff assisting the Commission as an inspector in relation to the application of the Australian Consumer Law. Division 4 of Part XI sets out an inspector’s powers to enter premises and to require the production of information in that context. Part IXD of the CC Act provides another example. It sets out the enforcement regime for the purposes of finding out whether there has been a contravention of, among others, the Act. It also provides for the appointment of inspectors to assist the Commission[174] and provides that those inspectors have, for example, powers of entry when the ACCC or its Chairperson or a Deputy Chairperson has reasonable grounds for suspecting that there may be evidential material on those premises.[175] The third example is found in s 163(4), which recognises that that the ACCC among those authorised to institute proceedings for offences committed against the CC Act.
[174] CC Act, s 154B
[175] CC Act, s 154D
The TIA Act is quite different. Provision is made for the collection and reporting of information but not for the investigation of offences. Under Part 2.7, for example, the TIA Act provides for the Secretary of AGD to keep certain information regarding warrants and to submit that information to the Minister regularly.[176] Part 2.8 of the TIA Act sets out the Minister’s obligation to prepare an Annual Report regarding the applications made for, and the warrants issued, under the legislation. Under Part 3.6, the Chief Officer of an enforcement agency must provide the Minister with certain information about warrants for access to stored communications under the TIA Act.[177]
[176] TIA Act, ss 81B and 81D
[177] TIA Act, s 159. An “enforcement agency” is defined in s 5(1) and includes agencies such as the Australian Federal Police, the Police Force of a State, the Crime Commission and OPI. Others include: “Any body whose functions include: (i) administering a law imposing a pecuniary penalty; or (ii) administering a law relating to the protection of the public revenue.”
Nowhere in the TIA Act are to be found investigative powers or powers to institute proceedings. The fact that the AGD does not have investigative powers under the TIA Act does not mean that no provision is made for the investigation of offences. Within the Executive Government is found the AFP. Section 8(1)(b)(i) of the Australian Federal Police Act 1979 (AFP Act) provides that “The functions of the Australian Federal Police are … (b) the provision of police services in relation to (i) laws of the Commonwealth …”. The expression “police services” is defined in s 4(1) of the AFP Act. It “…includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise” but is not otherwise defined. Given the ordinary meanings of the words “police” and “services”, the expression “police services” would include the work directed to keeping order, enforcing the law and preventing crime.[178] Enforcement of the law necessarily involves investigation of whether there has been a breach of the law before steps can be taken to compel compliance with that law and so enforce it. It would include the investigation of whether an offence has been committed under the TIA Act.
[178] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The fact that the AFP has the power to investigate offences under the TIA Act, does not lead to the conclusion that the AGD must refer to the AFP every allegation it receives that an offence has been committed. Responsibility for administration carries with it responsibility for knowing when to refer a matter for an investigation, when to defer a decision whether to refer or not and when not to refer. It means that, when an allegation is received, the AGD must decide whether to refer, or not refer, it to the AFP for investigation. That is a decision that is made as a matter arising under the TIA Act administered by the Attorney-General.
I certify that the preceding one hundred and fifty one paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi Associate
Dates of Hearing 4 & 14 July 2011 and 19 September 2011
Date of Decision 21 February 2012
ApplicantMr P Mullett
Solicitor for the Respondent Mr M Bennett
Attorney- General’s Department
“An officer of staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a recording of the following:
(a)lawfully obtained information other than foreign intelligence information;
(b) designated warrant information.”
As I understand it, this was the form of the provision before its amendment by the Telecommunications (Interception) Amendment Act 2006, Act No. 40 of 2006, s 3 and Schedule 1, Part 2.6, items 108 and 109. Section 67(1) now reads, and read at the relevant times in 2007:
“An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a recording of the following:
(a)lawfully intercepted information other than foreign intelligence information;
(b)interception warrant information.”
For the purposes of this case, it is enough to note that s 6E(1) provides that:
“(1) Subject to subsection (2), a reference in this Act to lawfully intercepted information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.” (see also s 5(1))
The expression “interception warrant information” means:
“(a) information about any of the following:
(i)an application for an interception warrant;
(ii)the issue of an interception warrant;
(iii)the existence or non‑existence of an interception warrant;
(iv)the expiry of an interception warrant; or
(b)any other information that is likely to enable the identification of:
(i)the telecommunications service to which an interception warrant relates; or
(ii)a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.” (TI Act, ss 5(1) and 6EA)
The expression “permitted purpose” is defined extensively in s 5(1) of the TI Act.
“ Once admitted, a Supreme Court has a supervisory or disciplinary role for it may strike from the roll of admitted legal practitioners those who do not meet the professional standards required of them. A person who is not admitted is not subject to its discipline and does not assume the duties to the court, fellow practitioners and clients. Knowing that they assume duties that include a duty to act with candour and frankness irrespective of self-interest or embarrassment underlines a legal practitioner’s awareness of the need to do so when acting in his or her profession. It underlines the need to do so regardless of duties, pressures and influences to act to the contrary and brought to bear from other sources and relationships including the relationship of employment.” [2011] AATA 556; (2011) 122 ALD 619 at [124]; 662-663
“… there was an unfair inconsistency in releasing the entirety of the Brief and the conclusions reached on the topics which were at the heart of the submissions by Mr Zentai while at the same time refusing to disclose why the AFP had not sought to prosecute Mr Zentai within Australia or refusing to disclose the reasons at law why OIL consider there was no basis for a conclusion other than that Mr Zentai would be afforded a fair trial through the Military Panel in the Republic of Hungary.
Once the inconsistency is identified, in this particular case, remaining fairness considerations are in Mr Zentai’s favour. … [F]airness in the Osland and Mann sense dictates that he should know why the Minister was advised and may have taken the view that there was no basis for doubt that Mr Zentai would be afforded a fair trial in the Military Panel and that prosecution within and by Australian authorities was not to be pursued.” [2010] FCA 252; (2010) 183 FCR 180 at [141]-[142]; 213
“A. This document records or constitutes communications between DPP lawyers, in connection with internal decision-making in relation to the conduct of litigation and the provision of legal services. The communications were made and recorded in confidence, in the reasonable expectation that their contents would remain confidential. Release of the document would strongly tend to inhibit such communications in future, or to inhibit recording of them. The inability to conduct or to record such communications in confidence would be contrary to the public interest in the efficient and effective conduct of the business of the DPP and could expose the DPP to disadvantage in the conduct of litigation. These public interest considerations outweigh those that favour disclosure.
B. This document was prepared by a DPP lawyer as a draft or working note made in connection with the conduct of litigation and the provision of legal services. The release of the document would tend to be misleading or confusing in view of its provisional nature, as it may be wrongly taken to represent a final position (which it was not intended to do) and may ultimately have been unused or overtaken by subsequent events. Release of the document would also tend to inhibit the making or retention of such notes in future. The inability to do so would be contrary to the public interest in the efficient and effective operation of the office of DPP. These public interest considerations outweigh those that favour disclosure.” ([2003] AATA 119 at [35])
On behalf the Director of Public Prosecutions, MrBruckard gave affidavit evidence explaining the nature of the document and briefly set out facts which appear to be the basis of a claim that the disclosure of the document would be contrary to the public interest. ([2003] AATA 119 at [36])
“28. Solicitors employed by the respondent act as counsel assisting not only for the board but also for various other boards of inquiry in the Territory. The respondent acts as counsel assisting, particularly to health profession boards of inquiry, on a regular basis. If the documents for which exemption is claimed are disclosed then in my view each board of inquiry in the Territory for which counsel assisting may be appointed will be required to consider altering its practices in relation to obtaining legal advice. It is critical to the effective provision of legal advice and to discharging the role of counsel assisting that counsels be able to freely communicate amongst each other and to keep confidential internal notes and memoranda.” [2006] ACTAAT 14 at [28]
“I formed an opinion that a public interest resides in the capacity of the Minister to receive advice from within his department which advice may include opinion or subjective assessment or analysis without concern that such advice will be liable to release into the public domain. I considered that a public interest exists in maintaining the capacity for the Minister to receive advice of such nature and that a release of the document would potentially limit the provision of future advice containing opinion or subjective analysis.” [2003] AATA 52 at [48]
Senior Member Dwyer examined each document in light of its content and that evidence. Some, she decided came within s 36(1)(b) and others did not.
“… The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first … and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third … and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.” [1994] HCA 30; (1994) 181 CLR 41 at [12]; 74 per Deane J (citations omitted)
Section 63(2) of the TIA Act provides that “… a person must not …: (a) communicate interception warrant information to another person; or (b) make use of interception warrant information; or (c) make a record of interception warrant information; or (d) give interception warrant information in evidence in a proceeding.” The expression “interception warrant information” is defined in s 6EA reproduced at FN 4 above. The definition has two parts. The first refers to information about an application for, the issue of, the existence or non-existence of and the expiry of an interception warrant. The second refers to “any other information” that is likely to enable the identification of the telecommunications service to which an interception warrant relates or a person specified in an interception warrant as a person using or likely to use the telecommunications service to which that warrant relates.
When the definition is read with the prohibition in s 63(2), it is seen that the prohibition is broad. Arguably, it would prohibit a nominated AAT member from advising the President, who has responsibility for constituting the Tribunal under the AAT Act, of the reasons for his or her disqualifying him or herself from hearing a matter as a member of the Tribunal. It is difficult to see how a communication of that sort could be made without conveying interception warrant information. The fact that the member has heard an application under the TIA Act would necessarily be linked with information relating to the application the member has been constituted to hear. Disclosure would arguably be in breach of s 63(2). The same would be true if the same communication were to be made to other members or staff of the Tribunal.
If an AAT nominated member were to keep a record as a “memory jogger” so that he or she did not face the problems faced by the Senior Member in Islam, it could be argued that he or she were making a record of and use of interception warrant information in that, in order to be a memory jogger it would reveal at least an application for an interception warrant and would have to enable the identification of a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates. That would also be contrary to ss 63(2)(b) and (c). Section 63AA could not be relied upon to permit the record. Among other uses, it permits communication of interception warrant information or it to be used or recorded for the purposes of Part 2.2, 2.5. 2.7 and 2.8. Part 2.2 is concerned with warrants authorising ASIO to intercept telecommunications, Part 2.5 with warrants of the sort that concern Mr Mullet, Part 2.7 with the keeping and inspection of records and Part 2.8 with reports about interceptions under Parts 2.3 (emergency requests) and 2.5. There is nothing in those Parts that authorises the Tribunal to use interception warrant information.
These are examples of the problems that arise under the TIA Act but they are compounded when regard is had to the provisions of the FOI Act. The role of an AAT nominated member is, like that of a Judge, carried out under the TIA Act quite separately from his or her role as a member of the Tribunal. Were he or she to keep a record of interception warrant information as a “memory jogger” or otherwise and regardless of whether to do so is in breach of the TIA Act, the first question to consider would be whether it is a document of an agency which, in this instance, would be the Tribunal. A right of access is given under the FOI Act to a “document of an agency”. The definition of a “document of an agency” is quite broad and means “… a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency”: FOI Act, s 3(1). Are documents created by an AAT nominated member in the possession of the Tribunal, which is an agency for the purposes of the FOI Act? Unlike the definition of an “official document of a Minister”, all that is required is “possession”. In the case of an “official document of a Minister”, possession is the first criterion but a second is that it is in the Minister’s possession “in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State …”: FOI Act, s 3(1). The right of access does not extend to exempt documents (FOI Act, s 11). Under the FOI Act, whether before or after 1 November 2010, ss 38(1)(a) and (b)(i) provide that a document was an exempt document if its disclosure or disclosure of the information it contains is prohibited under a provision of an enactment and that provision is specified in Schedule 3 to the FOI Act. Section 63 is such a section. Consideration might need to be given to whether information as to the existence or non-existence of a document at all would be contrary to s 63. If it would, the procedure in s 25 of the FOI Act might be relevant to follow. As to the reasons for such a decision under s 26, see Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited [2010] FCA 1442; (2010) 191 FCR 573; 276 ALR 712; 120 ALD 439
Emmett J.
See, for example, s 14ZZJ of the Taxation Administration Act 1953 (TA Act) requiring the Tribunal to take reasonable steps to ensure that the taxpayer cannot be identified in its reasons when that taxpayer has asked that the hearing be held in private under s 14ZZE of the TA Act.
Section 43AAA requires only that the Tribunal make and record its “findings” in relation to a security assessment made under the Australian Security and Intelligence Organisation Act 1979 and limits those to whom it may give those “findings”. The word “findings” would seem to relate to “findings on material questions of fact” referred to in s 43(2B) together with a “reference to the evidence or other material on which those findings were based.” It would not seem to extend to its reasons for reaching a certain view of the law which, in turn, determines the matters on which it makes findings.
at 203; 544; 430 per Beaumont, Ryan and Lindgren JJ
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