Re Philip Morris Limited and Prime Minister - [2011] AATA 556

CATCHWORDS – FREEDOM OF INFORMATION – legal professional privilege – legal advice given by Attorney-General’s Department, Australian Government Solicitor and Department of Foreign Affairs and Trade – nature of professional relationship between legal adviser and client – criteria determining independence – relevance of advice being given by officer having a law degree and/or admission as a legal practitioner – relevance of allocation of Commonwealth’s legal work under Legal Services Direction – relevance of reasonable belief of client in nature of relationship – third party communications falling within scope of legal advice subject to privilege – no waiver of privilege – decision affirmed on legal professional privilege exemption.

FREEDOM OF INFORMATION – internal working documents – no evidentiary basis for finding that disclosure would be contrary to the public interest.

AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
Applicant VEAL 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512; 80 ALJR 228
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Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
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201 CLR 49; 168 ALR 123
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Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; 106 ALR 611
Health Insurance Commission v Freeman [1998] FCA 1340; (1998) 88 FCR 544; 158 ALR 267
In re Thompson (1964) Tas SR 129
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Kennedy v Wallace (2004) 208 ALR 424
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McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; 220 ALR 587
McKinnon v Secretary, Department of the Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
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New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311
New South Wales Council for Civil Liberties Inc v Classification Review Board [2006] FCA 1409; (2006) 236 ALR 313
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Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 6 AAR 80
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DECISION AND REASONS FOR DECISION [2011] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2010/4993

GENERAL ADMINISTRATIVE DIVISION )

Re:PHILIP MORRIS LIMITED

Applicant

And:PRIME MINISTER

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 15 August 2011

Decision:The Tribunal affirms the decision of the respondent dated 26 November 2010.

S A Forgie
Deputy President

REASONS FOR DECISION

On 24 June 2010, Philip Morris Limited (PML) asked the Prime Minister for access to a number of documents, which it described and all of which relate to some aspect or other of issues relating to the plain packaging of tobacco products. In essence, the concept of plain packaging refers to the prohibition of manufacturers’ identifying logos, trademarks, colours, brands, imagery or text on tobacco products and the standardisation of the way in which brand and product names are reproduced on the packaging of those products. Thirty two documents were identified in the Office of the Prime Minister and a decision made on 26 November 2010 by a Senior Adviser to grant access to ten documents in their entirety and to 22 in part. Access was refused to some parts of the documents on the basis that they were irrelevant to the request. The decision to refuse on that basis was made under s 22 of the Freedom of Information Act 1982 (FOI Act). Access was refused to parts of other documents on the basis that the material in those parts would be privileged from production in legal proceedings on the ground of legal professional privilege (LPP). That decision was made on the basis of the exemption set out in s 42 of the FOI Act.

Having sought review of the decision deemed to have been made initially under s 56(1)[1] and at the conclusion of various procedural steps and discussions between the parties, PML decided that it would challenge only those parts of the decision claiming exemption on the grounds of LPP under s 42. That means that only five documents, or parts of them, remain in dispute between the parties. I have decided to affirm the decision made by a delegate of the Prime Minister on
26 November 2010.

[1]

THE DOCUMENTS

Without disclosing the contents of those parts that are claimed to be exempt and relying on the description of the documents in Schedule C to the letter of the Senior Adviser dated 26 November 2010 and noting that access has been granted in full to the emails that are part of Documents 6 and 9, the documents that remain in dispute, either wholly or in part, are set out below. The passages claimed to be exempt are shown in the footnotes:
Document 25
Document 25 is an email[2] dated 29 April 2010 and written by one staff member in the Prime Minister’s Office to another referring to and attaching:
[2] Exemption claimed for the email in respect of “The second sentence and the 13^th and 22^nd words of the 3^rd sentence in the 1^st paragraph of the email sent at 8.58am …”: Schedule of documents in issue.
(1)a 78 page document dated 22 April 2010 which is described as “Legal Advice” and which was prepared by the Department of Foreign Affairs and Trade (DFAT) for the Department of Health and Ageing (DHA) (DFAT advice);[3] and
[3] Exemption is claimed for the attachment in its entirety: Schedule of documents in issue.
(2)a 69 page document dated 27 April 2010 which is described as “Advice” and which was prepared by the Australian Government Solicitor (AGS) for DHA (AGS advice).[4]
[4] Exemption is claimed for the attachment in its entirety: Schedule of documents in issue.

Document 1

Document 1 is an email dated 29 April 2010 written by one staff member in the Prime Minister’s Office in response to the email that is Document 25 and reproducing that email.[5]
[5] Exemption claimed for that part of the email reproducing the earlier email sent at 8.58am in respect of “The second sentence and the 13^th and 22^nd words of the 3^rd sentence in the 1^st paragraph of the email sent at 8.58am …”: Schedule of documents in issue.

Document 6
Document 6 is an email dated 27 April 2010 from an officer in DHA to a member of staff in the Prime Minister’s Office with three attachments of which only two are in dispute and which are described in the subject line of the email as:[6]
[6] Access was given to the covering email and a decision made that Attachment 3 was irrelevant under s 22 of the FOI Act.
(1)“Plain packaging QandAs.doc” (Attachment 1);[7] and
[7] Exemption is claimed for “All information in the first bullet point under the 3^rd heading on the 1^st page …”: Schedule of documents in issue.
(2)“Tobacco brief.doc” (Attachment 2).[8]
[8] Exemption is claimed for “The 2^nd heading and all information in the bullet point following on the 7^th page …”: Schedule of documents in issue.

Document 9
Document 9 is an email dated 28 April 2010 from an officer in DHA to a staff member in the Prime Minister’s Office and officers in DHA and The Treasury with six attachments of which only two are in dispute and which are described in the subject line of the email as:[9]
[9] Access was given to the covering email and to Attachment 1 in full and a decision made that Attachments 2 and 3 were in their entirety and parts of Attachments 5 and 6 were irrelevant under s 22 of the FOI Act. Claims for exemption under s 42 were made only in relation to parts of Attachments 4 and 6.
(1)“Evidence paper from DHA” (Attachment 4);[10] and
(2)“Images of plain packaging from the Cancer Council” (Attachment 6).[11]

Document 17

Document 17 is an email dated 28 April 2010 from an officer in DHA to a staff member in the Prime Minister’s Office headed “Logos etc”.[12]

[10] Exemption is claimed for “· All information in the first bullet point under the 3^rd heading on the 1^st page … · All information in the 2^nd bullet point under the 2^nd heading on the 4^th page …”: Schedule of documents in issue.

[11] Exemption is claimed for “The 2^nd heading on the 7^th page and the 1^st bullet point underneath …”: Schedule of documents in issue.

[12] Exemption is claimed for “

DISTRIBUTION OF DOCUMENTS

On the basis of the evidence referred to in the footnotes, I find that copies of the documents have been distributed to various Ministers and agencies. In more recent times, copies of the documents have been given to AGS for the purpose of these proceedings.[13] Putting aside distribution for that purpose, the documents, or parts of them, were distributed as follows:
[13] Exhibit 6 at [21]-[23] (Affidavit of Dr Susan Reye, Senior General Counsel, Office of General Counsel, AGS)
Document 25
Apart from DHA and those who prepared them (DFAT and AGS), copies of the DFAT advice and AGS advice have been provided for the following purposes to the following Ministers and agencies:
(1)provision of advice and support to the Prime Minister:
(a)Department of Prime Minister and Cabinet (PM&C);[14]
[14] Exhibit 7 at [8] (DFAT and AGS advices) (Affidavit of Mr Alexander John Cairns, Assistant Secretary, Legal Policy Branch, PM&C)
(2)development of policy relating to plain packaging of tobacco products:
(a)IP Australia;[15]
[15] Exhibit 2 at [15] and Exhibit 5 at [5] (DFAT and AGS advices) (Exhibit 2: Affidavit of Ms Georgina Kim Harman, First Assistant Secretary, Chronic Diseases Division, DHA) (Exhibit 5: Affidavit of Ms Fatima Beattie, National Compliance Manager for Agricultural and Veterinary Chemicals). IP Australia incorporates the Patent, Designs, Trade Marks and Offices and the Registrar of Plant Breeder’s Rights with responsibility for the registration of patents, trademarks and designs.
(b)Prime Minister;[16] and
[16] Exhibit 8 at [7] and [13] (DFAT and AGS advices) (Affidavit of Mr Alexander John Cairns, Assistant Secretary, Legal Policy Branch, PM&C)
(c)Office of the Minister for Health and Ageing;[17] and
[17] Exhibit 9 at [6] (DFAT and AGS advices) (Affidavit of Ms Deborah Margaret Morrison, Assistant Secretary, Ministerial and Parliamentary Support Branch, DHA)
(3)provision of advices to Attorney-General’s Department (AGD) as required by Appendix A of the Legal Services Direction:
(a)AGD.[18]
[18] Exhibit 3 at [5] (DFAT advice) and [6] (AGS advice) (Affidavit of Mr Richard Braddock, Principal Legal Officer, Office of International Law, AGD)

Documents 1, 6, 9 and 17

Documents 1, 6, 9 and 17 are in the possession for the following purposes to the following Ministers and agencies:
(1)development of policy relating to plain packaging of tobacco products:
(a)Prime Minister’s Office (documents 1, 6, 9 and 17);[19]
(b)DHA (documents 1, 6 and 9);[20]
(c)Office of the Minister for Health and Ageing (documents 6, 9 and 17);[21] and
(d)Office of the Treasurer (document 9).[22]

[19] Exhibit 7 at [8] and Exhibit 8 at [7]

[20] Exhibit 2 at [23]-[24]

[21] Exhibit 9 at [7]

[22] Exhibit 8 at [11]

BACKGROUND

In this section of my reasons, I have set out the relevant legislative provisions regulating Commonwealth legal work and those engaged in it. I have also set out the findings of fact I have made about the structures of the various bodies involved in the seeking and giving of advice and the procedures that are followed when legal advice of the type in issue in this case is sought. The evidence on which I have relied is identified in the footnotes.

DHA asks AGS for legal advice

On 9 March 2010, the Legal Services Branch of DHA made a preliminary approach to the AGS in relation to its wish to obtain legal advice regarding the plain packaging of tobacco products. It asked for an estimate of the costs of preparing an advice and the time within which it could be completed.[23] After receiving the estimated costs and time, DHA wrote again to AGS on 16 March 2010 confirming that it wanted AGS to commence work on the advice.[24]
[23] Exhibit 2 at [4] (Affidavit of Ms Kim Harman, First Assistant Secretary, Mental Health and Chronic Diseases Division, DHA) and Exhibit 6 at [4] (Affidavit of Dr Susan Reye, Senior General Counsel, OGC, AGD)
[24] Exhibit 2 at [5]

DHA asks DFAT to discuss the advice with AGS

On 6 April 2010, the Assistant Secretary of the Drug Strategy Branch of DHA wrote to the Director of the International Intellectual Property Section (IIPS) in DFAT to suggest that it, DFAT, should discuss the advice with AGS.[25] Discussions then followed among DHA, AGS, Office of International Law (OIL) in AGD and DFAT. It was agreed that the request for advice included a number of questions relating to areas for which DFAT has responsibility. It was further agreed that, on those questions, the relevant areas of DFAT would provide legal advice and would do so in consultation with AGS and OIL in AGD. AGS would give advice on all other questions arising from DHA’s request for advice.[26]

[25] Exhibit 2 at [6] and Exhibit 4 at [4] (Affidavit of Mr James Victor Baxter affirmed on 18 April 2011)

[26] Exhibit 2 at [7]; Exhibit 6 at [9] and Exhibit 6 at [9]

Responsibility for the preparation of legal advice in DFAT

Within DFAT, there are certain branches which provide legal advice to other Departments and agencies as well as to other areas within DFAT itself. DFAT does not charge fees for that advice.[27] Among those branches are the WTO[28] Trade Law Branch and the Trade Commitments Branch. Both branches come within the Office of Trade Negotiations (OTN), which is a Division within DFAT.[29]
[27] Exhibit 4 at [8]
[28] World Trade Organization
[29] Exhibit 4 at [7]-[8] and [10]

The WTO Trade Law Branch has responsibility for managing and advising on WTO disputes and trade law matters. It has four sections: WTO Disputes – Special Adviser’s Section, the Subsidies and Trade Remedies Section, the WTO Disputes Section and the WTO Quarantine Disputes Section. The WTO Trade Law Branch and its various sections give legal advice to other sections and branches within DFAT as well as to other departments or agencies of the Commonwealth.

At the relevant time, Mr James Baxter was the Assistant Secretary of the WTO Trade Law Branch.[30] Mr Baxter, who has held his current position since April 2009, holds an LLB from the University of Sydney but is not admitted to practise in any capacity as a legal practitioner. Previously, between 1992 and 1995, he held various positions, including Desk Officer and Executive Officer in other branches in DFAT with responsibility for providing legal advice. His responsibilities in those positions in those years included advising on aspects of international trade and economic law, international criminal law, law of the sea, the law of international organisations and the law of treaties.[31] As the Assistant Secretary of the WTO Trade Law Branch, Mr Baxter is responsible for all major advices prepared within the branch and so for all major advices provided to the Commonwealth on WTO-related legal issues.[32]
[30] Exhibit 10 at [2.1] (Affidavit of Mr James Victor Baxter affirmed on 10 June 2011) and see also Exhibit 4 at [10]
[31] Exhibit 4 at [2]
[32] Exhibit 4 at [10]

The Trade Commitments Branch is responsible for advising on Free Trade Agreements (FTA). It is made up of three sections: the WTO Regional and Free Trade Agreements Section; the FTA Commitments and Implementation Section and the Trade and Environment Section. The FTA Commitments and Implementation Section provides legal advice within DFAT and to other Departments and agencies regarding Australia’s rights and obligations under FTAs.[33]
[33] Exhibit 4 at [13]

In April 2010, the Assistant Secretary of the Trade Commitments Branch was Ms Catherine Raper.[34] Ms Raper is currently posted as Minister-Counsellor (Trade) in the Australian Embassy in Washington DC. She holds an LLB from the University of Sydney and is admitted as a legal practitioner of the Supreme Court of the Australian Capital Territory and on the roll of barristers and solicitors kept under the Rules of Court of the High Court.[35]
[34] Exhibit 4 at [12]
[35] Exhibit 11 at [1]-[3] (Affidavit of Ms Catherine Raper affirmed on 10 June 2011)

On the basis of Mr Baxter’s oral evidence, I find that the other three branches in OTN are the Agriculture and Food Branch, the Trade Policy and Issues and Industrial Branch and the Services and Intellectual Policy Branch. Each of these Branches is concerned with policy dealing with trade issues.

Preparation of the DFAT advice

Mr Baxter first became aware of DHA’s request for advice on 7 April 2010. He assigned Ms Margaret Durnan of his WTO Trade Law Branch to prepare a draft as she routinely prepares advice on intellectual property issues arising under the WTO Agreement. He also referred aspects of the request for advice to the Trade Commitments Branch as they involved matters for which that Branch had responsibility. Ms Melissa Hutchings, who is the Executive Officer of that Branch and who both holds a law degree and is admitted to practice, prepared a draft advice on those aspects.[36]
[36] Exhibit 4 at [15] and Ms Hutchings oral evidence

In the course of the preparation of the drafts, officers of DFAT consulted with lawyers in AGS and with Mr Stephen Bouwhuis, Assistant Secretary of OIL in the AGD. Those officers also sought clearance from OIL regarding the content of the DFAT advice.[37] In so far as advice was sought from AGS, I find that it was sought from Dr Susan Reye, who is the Senior General Counsel in the Office of General Counsel (OGC) in AGS.[38]
[37] Exhibit 4 at [19]
[38] Exhibit 6 at [10]

Paragraphs [3.6] to [3.55] of the DFAT advice were prepared in the WTO Trade Law Branch under Mr Baxter’s supervision. He accepts responsibility for the content of those paragraphs. Paragraphs [3.56] to [3.76] were prepared by the Trade Commitments Branch under the supervision of Ms Raper. She accepts responsibility for them.[39]
[39] Exhibit 10 at [2.1]-[2.2] (Affidavit of Mr James Victor Baxter affirmed on 10 June 2011) and see also Exhibit 4 at [10]

Paragraphs [1] to [3.5] and [3.77] to [3.115] were jointly prepared by the WTO Trade Law Branch and the Trade Commitments Branch under the supervision of their respective Branch Heads. Mr Baxter and Ms Raper accept joint responsibility for those paragraphs.[40]
[40] Exhibit 10 at [2.3]

Mr Richard Braddock, a Principal Legal Officer in OIL in the AGD, reviewed the DFAT advice. He is a legal practitioner providing legal advice principally on matters concerning international law.[41]
[41] Exhibit 3 at [1]-[4] (Affidavit of Mr Richard Braddock affirmed on 18 April 2011)

Dissemination and storage of the DFAT advice

The DFAT advice, which is dated 22 April 2010[42] and which has been marked “Legal in Confidence” on each page,[43] was addressed to the Assistant Secretary of the Drug Strategy Branch, which had originally suggested that DFAT should discuss the advice with AGS.
[42] Exhibit 4 at [27] and confirmed by examination of the document.
[43] Exhibit 4 at [23] and confirmed by examination of the document.

Copies of the DFAT advice were also given to:
(1)Ms Janet de Ruyter and Ms Penny Marshall, officers of the Tobacco Control Section in DHA;
(2)       Mr Richard Braddock, Principal Legal Officer, OIL in the AGD;
(3)       Senior General Counsel in OGC of AGS;
(4)Mr Jeremy Green, former Director of the WTO Disputes Section in DFAT;
(5)       Mr Nicholas Rodgers, former Director of IIPS in DFAT;[44]
(6)Mr James Faulkner, Assistant Secretary, Constitutional Policy Unit of the AGD;[45] and
(7)an Adviser in the Office of the Attorney-General.[46]
[44] Exhibit 4 at [27] Copies in (1) to (5) were sent to these persons by DFAT.
[45] Exhibit 3 at [6] Copy in (6) sent to Mr Faulkner by Ms Reye, SGC in the OGC of the AGD when she sent him a copy of the AGS advice: Exhibit 6 at [18]
[46]

Consistent with its practice regarding its advices, the WTO Trade Law Branch made the DFAT advice available on the Department’s legal advice database known as the Knowledge and Matter Management System (KMMS). Access to that database is restricted to members of the OTN, the Domestic Legal Branch, the International Legal branch and the Legal Counsel Branch.[47]
[47] Exhibit 4 at [21]

Further electronic copies[48] are held in:
[48] In this section and following, I have included only those copies maintained otherwise than in relation to PML’s FOI request that is the subject of these proceedings.
(1)OTN in DFAT
(a)a hard drive accessible only by officers in the WTO Trade Law Branch;[49] and
[49] Exhibit 4 at [25]
(b)a hard drive accessible only by officers in the Trade Commitments Branch;[50]
[50] Exhibit 4 at [25]
(2)AGD
(a)the AGD’s secure electronic document management system, known as “TRIM”, where it is stored consistently with its being regarded as a legal advice;[51]
(3)AGS
(a)the AGS’s electronic document management system, known as “Objective”, which is accessible only by AGS IT administrators and Repository Management staff and lawyers and support staff within OGC;[52] and
(b)the folder in AGS’s electronic database system in Dr Reye’s name and accessible only by her and other AGS employees in OGC with a user ID and password;[53] and
(c)Dr Reye’s AGS email account accessible only with a password by her or her personal assistant.[54]
[51] Exhibit 3 at [5] and [7]
[52] Exhibit 6 at [13]-[14] and [20]
[53] Exhibit 6 at [15] and [20]
[54] Exhibit 6 at [15] and [20]

Paper copies of the DFAT advice are held in:
(1)OTN in DFAT
(a)WTO Trade Law Branch on file No 09/15536 entitled “Trade: Advice: Plain Packaging of Tobacco: Intellectual Property: WTO Aspects” stored in a combination lock cabinet accessible only by staff of the WTO Disputes Section;
(b)Trade Commitments Branch on file No 10/4296-2 entitled “Trade: Agreements: Free Trade Agreements: Advice: Tobacco Plain Packaging” stored in a combination lock cabinet accessible only by staff in the FTA Commitments and Implementation Section; and
(c)Services and Intellectual Property Branch on file No 09/147978 entitled “Trade Monitoring: Intellectual Property: Plain Packaging of Tobacco Products” stored in a combination lock cabinet accessible only by staff in the International Intellectual Property Section;[55]
(2)AGD
(a)a file accessible by the OIL in the AGD offices;[56] and
(3) AGS
(a)a paper file maintained in Dr Reye’s office in the AGS offices.[57]
[55] Exhibit 4 at [24]
[56] Exhibit 3 at [5]
[57] Exhibit 6 at [18]

Preparation of the AGS advice

Dr Susan Reye has been the Senior General Counsel in the OGC in AGS since 2003. In that position, she advises on aspects of international law, statutory interpretation and administrative and constitutional law. She was admitted to practise as a solicitor of the Supreme Court of New South Wales in 1977.

On 9 March 2010, Dr Reye received DHA’s request for advice and estimates of the costs and time involved in its preparation. Having provided the estimates, DHA confirmed its request and Dr Reye sent a 69 page draft legal opinion to it on 27 April 2010. This is the document that is known as the AGS advice in these proceedings. On 11 May 2010, AGS invoiced DHA for professional fees incurred in the provision of the legal advice.[58]
[58] Exhibit 6 at [4]-[7]

Dissemination and storage of the AGS advice

Just as it did with its copy of the DFAT advice, the AGS advice was treated by AGS as confidential in nature. On the evidence of Dr Reye, I find that access to the AGS advice is limited to IT administrators, Repository Management Staff, lawyers and support staff within OGC. Access is by means of a User ID and password. Dr Reye also has a copy in her email account on the AGS network. Only she and her personal assistant may gain access to that email account. A further copy of the AGS advice is stored on a paper file in the AGS filing system. That copy has been annotated by a Deputy General Counsel in OGC and was made for the purpose of consulting him.[59] On 29 April 2010, Dr Reyne sent a copy of the revised version to Ms Janet de Ruyter and Ms Penny Marshall, officers of the Tobacco Control Section in DHA.[60]

CONSIDERATION OF EXEMPTION UNDER SECTION 42

[59] Exhibit 6 at [12]-[15]

[60] Exhibit 6 at [17] I note that this cannot be the AGS advice disclosed by the Prime Minister’s Office for that is dated 27 April 2010. Dr Reye does not suggest that she sent it to the Prime Minister’s Office and there is nothing in any of the other evidence to suggest that was the case or that it has come into the possession of that office through some other means.

Section 42

With effect from 1 November 2010,[61] the FOI Act was significantly amended by the Freedom of Information Amendment (Reform) Act 2010[62] (FOI Amendment Act). Among the provisions amended was s 42.[63] 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 both PML made its request to the Prime Minister before that day, I have reviewed the decision as s 42 was drafted at the time.
[61] FOI Amendment Act, s 2(1), item 6
[62] Act No. 51 of 2010
[63] FOI Amendment Act, s 3 and Schedule 3, Part 2

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).

The scope of section 42

Whether or not a document is of such a nature that it would be privileged from production on the ground of legal professional privilege depends upon the common law. It is not a matter that can be determined by reference to the provisions of Division 1 of Part 3.10 of Chapter 3 of the Evidence Act 1995 dealing with client legal privilege. That is a concept defined by that legislation which regulates the circumstances in which evidence of it may or may not be adduced. Section 42(1) is careful to refer to the circumstances in which a document is privileged from “production”. Production of a document, whether in response to a summons or subpoena, discovery proceedings or a demand for inspection, does not equate with adducing evidence of a document. As Gleeson CJ, Gaudron and Gummow JJ said in Esso Australia Resources Ltd v Commissioner of Taxation[64] (Esso):
“… Documents may be discoverable, or the subject of a demand for inspection, even though they are not admissible in evidence. They may be significant, for example, because they open up a line of inquiry. Furthermore, in this country, the application of the privilege is not confined to judicial or quasi-judicial proceedings … [Baker v Campbell (1983) 153) CLR 52]. On any view, the ambit of the common law doctrine of legal professional privilege in Australia exceeds that of the relevant provisions of the Evidence Act. …”[65]
[64] [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123
[65] [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [4]; 55; 125

Under the common law legal professional privilege may be waived either explicitly or implicitly.[66] There is a question whether waiver is relevant in considering whether or not a document is of such a nature that it would be privileged from production on the ground of legal professional privilege.
[66] See [125]-[130] below

In Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy[67] (Colonial Mutual), Jenkinson J, sitting as a Presidential Member of the Tribunal, concluded:
“… The subsection does not require that the document be ‘of such a nature that it would be privileged’. The criterion of exemptions, so expressed, is in my opinion framed by reference to acts and events which precede or are contemporaneous with the making of the document: the nature of the document is determined by what occasioned, and by what went into, its making and is unaffected, in my opinion, by subsequent events of the kind which might constitute waiver of legal professional privilege. …”[68]
[67] (1987) 6 AAR 80
[68] (1987) 6 AAR 80 at 83

Madgwick J reached the contrary conclusion in Bennett v Chief Executive Officer of the Australian Customs Service[69] (Bennett). He said:
“ An alternative approach to the construction of s 42(1) was taken in
Re Sullivan and Department of Industry, Science and Technology (1997-98) 49 ALD 743. Senior Member Bayne, at 756, observed that, whilst there was no authority contrary to the approach taken by Jenkinson J, there were passages in the decisions of the High Court and the Full Court which suggested that it was accepted that waiver is relevant in the context of s 42(1) of the FOI Act: see Waterford v The Commonwealth (1987) 163 CLR 54 and Waterford v Department of the Treasury (1985) 5 FCR 76. Senior Member Bayne also noted that there had been acceptance of the relevance of issues of waiver in relation to the Queensland and Victorian FOI legislation: see Re Smith and Administrative Services Department (1993) 1 QAR 22 at 56-7 and Re Clarkson and Attorney-General’s Department (1990) 4 VAR 197 at 198.
Like Mr Bayne, I find it difficult to discern the policy reason which would justify an approach which considers issues of waiver as irrelevant under s 42(1) of the FOI Act. Section 3 makes it very clear that the Act is to be interpreted in favour of freedom of access to information. In the face of such a section, it is really only where the Act’s language intractably requires it, that a consideration favouring release of documents should not be sustained. In my opinion, Colonial Mutual should not be followed.”[70]
[69] [2003] FCA 5 at [26]-[27] (Reversed on appeal in relation to the application of the principles of waiver but not on this point: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52)
[70] [2003] FCA 5 at [26]-[27]

I am obviously bound by the interpretation adopted by Madgwick J as, unlike Jenkinson J in Colonial Mutual, he reached it while sitting as a Judge of the Federal Court rather than as a Presidential Member of the Tribunal. In any event, I respectfully agree with it and note that it is consistent with the earlier decision of Re Hewitt and Queensland Law Society Inc[71] (Hewitt). In Hewitt, the Queensland Information Commissioner set out a detailed analysis of the application of the principles of imputed waiver in considering legal professional privilege in circumstances other than those arising in court proceedings.

Legal professional privilege
[71] [1998] QICmr 23; (1998) 4 QAR 328

A.The rationale and application of legal professional privilege

The reason for legal professional privilege was explained by Advocate General Sir Gordon Glynn:
“Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. 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.”[72]

It was explained further by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Ltd v Commissioner of Taxation:[73]

“… The rationale of the privilege has been explained in a number of cases, including Baker v Campbell,^[[74]] and Grant v Downs^[[75]] itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker

v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication.”[76]

[72] AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705 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

[73] (1999) 201 CLR 49; 168 ALR 123

[74] (1983) 153 CLR 52; 49 ALR 385

[75] (1987) 163 CLR 54; 71 ALR 673

[76] (1999) 201 CLR 49; 168 ALR 123 at 64-65; 132-133

As a rule of substantive law, it has application beyond legal proceedings.[77] The rationale for that proposition lies in the incongruity of reaching the alternative conclusion. Deane J explained in Baker v Campbell:[78]
“… [T]he doctrine of legal professional privilege would represent an aberration of the common law if it withheld from the courts information or documents which were material in the search for truth in circumstances where the disclosure thereof could be compelled as a matter of course by any administrative officer with a relevant and general statutory mandate to require the provision of information or the production of documents. Moreover, if the privilege were confined to disclosure in judicial (or quasi-judicial) proceedings, it is difficult to explain why, logically, the lawyer who fails voluntarily to disclose the wrongdoing of his client to the appropriate administrative officer does not, in the absence of some particular justification, stand guilty of the offence of misprision of felony …”.[79]
[77] Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 209 ALR 271 at [24]; 278 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ
[78] [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 57 ALJR 749; 14 ATR 713; Murphy, Wilson, Deane and Dawson JJ; Gibbs CJ, Mason and Brennan JJ dissenting
[79] [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 57 ALJR 749; 14 ATR 713 at 116; 433; 756

Legal professional privilege is not a rule that permits a court or Tribunal to weigh a person’s interest in resisting the production of the information or documents either against another’s interest in seeing that information or those documents or against a background of the behaviour of the person claiming legal professional privilege. If a communication is subject to legal professional privilege, a court or Tribunal cannot order its production. Unlike public interest immunity, the doctrine of legal professional privilege has already determined where the public interest lies. If it applies and unless it is waived by the client, it has already been decided that the public interest is served by the tendency of legal professional privilege “… to broaden the operation of the rule of law as well as to enhance the individual’s capacity to secure its protection …”.[80]

B.The two limbs of legal professional privilege

[80] Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350; Mason, Wilson and Brennan JJ and Deane and Dawson JJ dissenting; at 74; 686; 357 per Brennan J. In contrast, Brennan J said in Waterford at 74; 686; 357,“[T]he public interest served by public interest immunity is the protection of some of the processes of the Executive Government: see Sankey v Whitlam …”.

B.1 The two limbs

At common law, legal professional privilege is a rule of substantive law and so is to be distinguished from rules of evidence. The rule has been stated in various ways but, however stated, it is clear that, in the past, it has been recognised as having two limbs to it.[81] With one qualification introduced by the majority in Esso Australia Resources Ltd v Commissioner of Taxation, both were described by McHugh J in Commissioner Australian Federal Police v Propend Finance Ltd[82] when he said:
“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 sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.”[83]
[81] Given that there is but a single rationale for legal professional privilege, a question has been raised as to whether there are in fact two limbs or but a single limb. This was a question raised before the Full Court in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 but it had no need to answer it; see [9]-[10]; 361 per Finn J; [85]; 381 per Stone J and [52]; 370 per Merkel J, who agreed with both.
[82] (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451
[83] (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 at 553; 584; 491 see also The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 552; 564 [9]

The qualification, to which I referred, is that the purpose need only be the dominant purpose and not the sole purpose.[84] A dominant purpose is a purpose “… which was the ruling, prevailing, or most influential purpose.”[85] It was said by Kenny J in Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd:[86]
“(7) 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 …”[87]
[84] Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67 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.
[85] 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)
[86] [2005] FCA 1247; (2005) 225 ALR 266
[87] [2005] FCA 1247; (2005) 225 ALR 266 at [30]; 279 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

The second limb of legal professional privilege comes into effect when a communication is made or material recorded for the purpose of confidential use in litigation. Provided it occurs for that purpose, there is no need for the dominant purpose to be that of obtaining or giving legal advice.[88]
[88] See AWB Ltd v Cole [2006] FCA 571; 2006) 232 ALR 743; 91 ALD 741 at 777; 80; [144]-[145] per Young J

B.2 What is legal advice?

In Australian Wheat Board v Cole (No 5)[89] (Cole), Young J touched on what is encompassed within the expression “legal advice”:
“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 …”[90]

[89] [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651

[90] [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(7)]; 45; 663 (citations omitted)

B.3 The privilege may encompass communications with third parties

Legal professional privilege protects communications made by both parties to those communications. Therefore, as well as protecting communications made to the client by the legal adviser, it will also protect communications made by the client for the dominant purpose of seeking legal advice:
“… [L]egal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client’s legal adviser to enable him or her to advise … The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer …”[91]
[91] [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(9)]; 46; 663-664 citations omitted

When Hodgson J decided Standard Chartered Bank of Australia Ltd v Antico,[92] the relevant test was one of sole purpose and not of dominant purpose as it now is. Despite this, his further comment regarding the compass of legal professional privilege remains relevant:
“… It seems to me that the sole purpose is to be applied to the original communication, and then the privilege will normally extend to notes or memoranda of that advice without the necessity of again applying the sole purpose test: however, the purpose of the notes, memoranda or minutes will be relevant in deciding whether they can fairly be described as being records of the legal advice rather than of something else.”[93]
[92] (1993) 36 NSWLR 87
[93] (1993) 36 NSWLR 87 at 91

The fact that legal professional privilege attaches to communications rather than to documents means that 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:
“… [P]rima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. But the prima facie rule is subject to a qualification next to be mentioned.
… Thus, in proceedings in which discovery is available, the contents of an unprivileged original document can be proved as against a party who has had the original in his possession or power, even if a copy of the original is protected from inspection by legal professional privilege. When an unprivileged original can be produced or secondary evidence of its contents can be tendered in evidence, the according of legal professional privilege to a copy does not impair, although it does not hasten …, the administration of justice.
…
[94] 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
… I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost.”[94]

Notes, memoranda or documents need not be made only by officers of employees of the client in order to come within the protection of legal professional privilege. In Pratt Holdings Pty Ltd v Commissioner of Taxation[95] (Pratt), Pratt Holdings Pty Ltd (Pratt Holdings) had obtained a report from its accountant valuing its losses. It did so after receiving advice from its legal advisers in relation to a balance sheet reconstruction and sent the accountant’s report to them. When the Commissioner of Taxation wanted a copy of the report, Pratt Holdings resisted his request arguing that it had been obtained for the dominant purpose of obtaining legal advice and was protected by legal professional privilege.
[95] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128; Finn, Merkel and Stone JJ

The parties accepted that, when Pratt Holdings sent the report to its legal advisers, that copy was subject to legal professional privilege. The dominant purpose of making the copy sent to the legal advisers was that of seeking legal advice. Whether the protection extended to the copy of the report held in the accountants’ office was the point in issue in the case. Justice Finn, with whom Merkel J agreed,

noted that he had already commented upon what he considered:

“… to be the patent artificiality flowing from the denial of privilege in such circumstances. If Pratt Holdings had its own and appropriately qualified accounting staff which prepared a like report, that report would have been privileged. Equally, if it had directed PricewaterhouseCoopers to send the report directly to ABL [Arnold Bloch Liebler, the legal advisers], it would likewise be privileged as Pratt Holdings would have thus constituted PricewaterhouseCoopers its agent to make the, or else a part of the: see Propend at 571-572; communication by Pratt Holdings to ABL for the purpose of obtaining legal advice.”[96]

[96] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [39]; 367; 226; 136 per Finn J

His Honour did not consider that the accountants could be regarded as an agent of Pratt Holdings for the purpose of gathering and collating information in the report. It did not assume a representative capacity on behalf of Pratt Holdings. Instead, the accountants undertook work for Pratt Holdings, which it delivered to that company. He returned to the rationale for the existence of legal professional privilege and found that it justified the extension of legal professional privilege to communications of the sort represented by the accountants’ report. The following passage explains the thinking of Finn J on this matter:
“ To deny that a third party is an agent in such circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view is not the nature of the third party’s legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege.
There are, in my view, clear reasons of policy that support extending the privilege to such third party authored documentary communications. Whether a natural person be a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communications to its legal adviser as is necessary to obtain the advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilise the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relatively to another who is able adequately to make the desired communication to a legal adviser by relying upon his or her own knowledge, resources, etc.”[97]
[97] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [41]-[42]; 367-368; 226-227; 136-137

Justice Finn emphasised that care must be taken in evaluating the purpose for which a third party performs a professional function for a principal. Care must be taken in characterising the relationship for a relationship between the principal and the third party such as client/accountant or client/assessor will not attract legal professional privilege in the course of their communications. Merely seeking advice from other professionals while also seeking advice from a legal adviser will not render those other advices subject to legal professional privilege merely by the fact that they have been sought or even by the fact that they will all become the basis of an informed decision by the person seeking the advice. If the person should send a copy of those other advices to the legal advisers for legal advice, those copies will be privileged. That will not alter the character of the copies held by the other professional advisers. If originally outside the protection of the privilege, they will remain so. As Finn J explained:
“… Those other advices will not later acquire the character of privileged documents in the respective adviser’s hands: cf Propend; merely because the principal subsequently makes the advices available to his or her lawyer when obtaining legal advice. Importantly, as Deane J observed in Baker v Campbell at 112, privilege does not ‘extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production’. – Neither does it extend to third party advices to the principal simply because they are then ‘routed’ to the legal adviser.”[98]
[98] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [46]; 369; 227-228; 137

Again emphasising the need to identify the principal’s purpose in seeking written documentation from a third party, Finn J turned to the relevance of the principal’s conduct in relation to that documentation. That must be considered in addition to the principal’s stated intention:
“… [T]he principal may have so conducted himself or herself in the matter as to indicate that the intended use of the document authored by the third party was not its communication to the legal adviser as the principal’s communication, but rather it was to advise and inform the principal concerning its subject matter, with the principal then determining (a) in what manner, if at all, the whole or part of the document would be used by the principal in making its own communication or (b) the purpose(s) for which the document could or should be used. The less the principal performs the function of a conduit of the documentary information to the legal adviser, the more he or she filters, adapts or exercises independent judgment in relation to what of the third party’s document is to be communicated to the legal adviser, the less likely it is that that document will be found to be privileged in the third party’s hands. This will be because the intended use of the document is more likely to be found to be to advise and inform the principal in making the principal’s communication to the lawyer (whether or not that communication embodied wholly or substantially the content of the document) and not to record the communication to be made.”[99]
[99] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [47]; 369; 228; 137-138

Stone J, with whom Merkel J also agreed, surveyed the authorities and distilled the following principles:
“ The history of legal professional privilege shows that the courts have been willing and able to adapt the doctrine to ensure that the policy supporting the doctrine is not sabotaged by rigid adherence to form that does not reflect the practical realities surrounding the application of privilege. …
… A company that wishes to obtain legal advice as to its obligations under such legislation may well need to rely on experts to assist it in instructing its legal advisers. This is not only true of commercial arrangements but may also extend to scientific and technological complexities. To take a purely hypothetical example, suppose the manufacturer of lip salve requests its lawyer to advise as to the health and manufacturing standards with which it must comply. The lawyer is aware that among the legal requirements that may be relevant are regulations applicable to skin care products. In such a case scientific advice may be required as to whether lips are skin. These are issues that did not arise in simpler times.
The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent or alter ego of the client and where it is provided by a third party. Nor, in my view, should the availability of privilege depend on whether the expert opinion is delivered to the lawyer directly by the expert or by the client. Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client. This approach is consistent with the High Court’s ruling in Daniels (see [84]) that legal professional privilege protects communications and therefore prevents the disclosure of information or documents that would reveal communications protected by the doctrine.
I do not accept that this approach would lead to uncontrollable extension of the privilege. The difficulties in proving the relevant purpose should not be underestimated. …”[100]
[100] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [103]-[106]; 386; 244-245; 153-154

The approach taken by the Full Court in Pratt was taken by a differently constituted Full Court of the Federal Court in New South Wales v Betfair Pty Ltd[101] (Betfair):
“… Provided a communication is made with the dominant purpose of the client seeking or obtaining legal advice, we see no reason why privilege should not protect communications between the client and third parties whose knowledge is desirable or necessary for the client to obtain the legal advice the client desires …”[102]
[101] [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311; Kenny, Stone and Middleton JJ
[102] [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311 at [40]; 553; 321

The Court was concerned with a claim for legal professional privilege made, in part, in relation to documents that had come into existence as part of a consultative process intended to lead to the formulation and finalisation of drafting instructions to Parliamentary Counsel. Responsibility for preparation of the drafting instructions lay with the Office of Liquor, Gaming and Racing (OLGR), which is an instrumentality of the State of New South Wales. OLGR formed a working group with members of racing bodies in that State to assist it in the development of drafting instructions to Parliamentary Counsel. The members of the working group acknowledged that their meetings were to be “confidential in accordance with protocol that applies to developing legislation generally”. The OLGR provided a number of documents to the working group including drafts of drafting instructions to the Parliamentary Counsel.

The Full Court applied the reasoning in Pratt to conclude:
“ The consultative process adopted by the State on this occasion was very different from the situation in which the State publishes an exposure draft of proposed legislation, and invites public comment. In the process at issue in this case, OLGR and members of the Working Group were essentially working together consensually, under a regime of confidentiality, to formulate and finalise the drafting instructions that OLGR was to provide to Parliamentary Counsel in order for it to obtain appropriate regulations.
Examination of the documents the subject of appeal confirms that these documentary communications, whether from OLGR to members of the Working Group or from members of the Working Group to OLGR, were made in order consensually to formulate drafting instructions that OLGR would provide to Parliamentary Counsel. Having regard to the documents and the evidence to which we have been referred, we conclude that the communications were made for the dominant purpose of the State, as represented by OLGR, seeking and obtaining legal advice from Parliamentary Counsel. We therefore reject Betfair’s submission that the dominant purpose test was not satisfied.
As noted above, Betfair also sought to distinguish Pratt Holdings from the present case on the basis that Pratt Holdings concerned only communications prepared by third parties that were provided to the client for what was said to be the dominant purpose of seeking and obtaining legal advice. Thus, said Betfair, the ruling in Pratt Holdings did not apply to the situation here where communications were being made by the client to members of the Working Group. The communications went the wrong way.
The distinction that Betfair urged us to make is an entirely artificial one. In our view, the case for privilege attaching to the communications at issue is at least as strong as, perhaps stronger than, in Pratt Holdings. Supposing OLGR and the Working Group were seated at a table in the same room for the purpose of working out together the drafting instructions that OLGR was to provide to Parliamentary Counsel. The entire record of that meeting would be privileged. It could not sensibly be suggested that the communications from members of the Working Group were protected, but the communications from OLGR were not. In the present case, emailed communications created a virtual meeting room in which OLGR and the Working Group were present. For the purposes of legal professional privilege, there can be no sensible distinction between emailed communications emanating from OLGR and sent to the members of the Working Group and emailed communications from Working Group members to OLGR. The rationale for legal professional privilege as outlined in Pratt Holdings would not support such an artificial distinction. …”[103]
[103] [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311 at [37]-[40]; 553; 320-321

C. Proving the essential elements

The principles I have set out assume that the legal advice is being given by an independent legal adviser. I will return to that below but,[104] assuming that is the case and that:
“… 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,^[[105]] 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.
…”[106]
[104] See [101]-[124] below
[105] (2004) 208 ALR 424 per Black CJ and Emmett J
[106] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(4)]; 45; 663

Where these matters are in dispute, the party claiming legal professional privilege must establish it on the balance of probabilities. That is no different in the context of a claim for exemption under s 42 of the FOI Act for s 61(1) provides that the agency or Minister has the onus or burden of establishing that the decision was justified.

Where a difference might arise is in relation to an assertion that any legal professional privilege that would otherwise exist has been waived.[107] At common law, the onus for establishing that assertion lies on the person making it i.e. not the person claiming the privilege.[108] Looking at the matter in purely practical terms, it makes sense that the onus falls upon the person making the assertion. It is for that person to lead evidence or point to that already led to show conduct inconsistent with the maintenance of the privilege. If it were otherwise, the party claiming privilege would be left with having to prove a negative i.e. the party did not engage in conduct of that sort.
[107] Waiver is considered further at [125]-[130] below.
[108] [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311 at [54]; 556; 324 Kenny, Stone and Middleton JJ

How does s 61(1) of the FOI Act sit with that? I think it leaves the onus on both fronts with the decision-maker claiming the privilege under s 42. As a matter of practicality, however, the decision-maker has a duty in a proceeding for review in this Tribunal to “… use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.”[109] That means that the decision-maker must produce all documentary material and disclose all information that is relevant to deciding whether an exemption can be properly claimed under s 42. It might be thought that this puts the decision-maker in the position of proving a negative proposition regarding the issue of waiver. Even if it does, the decision-maker can do no more than put forward all relevant material and information and he or she is obliged to do that in any event. From a practical point of view, the person seeking access to the document and testing the claim for exemption under s 42 will want to lead any relevant evidence that it has in its possession.
[109] Administrative Appeals Tribunal Act 1975, s 33(1AA)

In general terms, the decision-maker will seek to establish legal

professional privilege:

“… by pointing to 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 reference 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.”[110]

[110] Grant v Downs (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198 per Stephen, Mason and Murphy JJ at 689; 589; 204 per Stephen, Mason and Murphy JJ

The issue of dominant purpose must be decided on an objective basis but, as Callinan J said in Esso, “… the subjective purpose will always be relevant and often decisive’.[111] That is the subjective purpose of the person making the communication. On this point, Tamberlin J said in Seven Network Ltd v News Ltd:[112]
“ Where a contested claim for legal professional privilege depends upon the purposes for which a document or particular parts of a document were prepared, it is generally appropriate that the evidence supporting that claim be given by the person or persons from whom the documents or the request for them originated so that any assertions as to purpose may be tested by cross-examination: cf Telstra Corp Ltd v Australis Media Holdings (unreported, Supreme Ct of New South Wales, Equity Division, McLelland CJ, 18 March 1997) at [1].”[113]
[111] [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [172]; 197; 167
[112] [2005] FCA 142
[113] [2005] FCA 142 at [3]

As Stephen, Mason and Murphy JJ said in Grant v Downs:[114]
“ It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to 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.”[115]
[114] [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198; Barwick CJ, Stephen, Mason, Jacobs and Murphy JJ.
[115] [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198 at [28]; 689; 588-589; 204

Lockhart J adopted the same approach in Trade Practices Commission v Sterling[116] and expanded upon it. After referring to the principle supported by cases such as Grant v Downs, his Honour continued:
“… However, it is as well to bear in mind what was said by Jenkins LJ in Westminster Airways Limited v Kuwait Oil Co Limited … [[1951] 1 KB 134]: “But there is nothing in the rule, or in the authorities, to constrain the court to hold that, in every case where a claim for privilege is made and disputed, the party seeking production is entitled to come to the court and (as it were) demand as of right that the court should go behind the oath of the opposite party and itself inspect the documents. The question whether the court should inspect the documents is one which is a matter for the discretion of the court, and primarily for the judge of first instance. Each case must depend on its own circumstances; but if, looking at the affidavit, the court finds that the claim to privilege is formally correct, and that the documents in respect of which it is made are sufficiently identified and are such that, prima facie, the claim to privilege would appear to be properly made in respect of them, then, in my judgment, the court should, generally speaking, accept the affidavit as sufficiently justifying the claim without going further and inspecting the documents. …[[1951] 1 KB 134 at 146]”[117]
[116] [1979] FCA 33; (1979) 36 FLR 244
[117] [1979] FCA 33; (1979) 36 FLR 244 at 246-247

Unquestionably, his Honour’s approach is the correct approach in the courts and even in a matter in this Tribunal in which production of a document is resisted on the grounds of legal professional privilege. Is it the correct approach when considering a claim for exemption under s 42 of the FOI Act? I think not. As I have already said, the agency claiming the exemption carries the onus of establishing that the decision it made was justified. My task is to exercise the power given to it by

s 25(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act) to “… review any decision in respect of which application is made to it under any enactment.” In Drake v Minister for Immigration and Ethnic Affairs, Bowen CJ and Deane J explained that:
“ The function of the Tribunal is … an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. …
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. …”[118]
[118] (1979) 2 ALD 60; 24 ALR 577 at 68; 589

When considering whether or not a document is exempt from disclosure, my obligation is to make the correct decision alone. I cannot necessarily make what some may in some circumstances think may be the preferable decision for s 58(2)[119] of the FOI Act removes any discretion that the Tribunal might otherwise have to give access to a document containing exempt matter. As it is my duty to make the correct decision, I think that I should examine the documents claimed to be exempt as a matter of course. The course adopted in the courts has been adopted in a context in which decisions are made on the cases put by the parties in their pleadings. Provided I act with procedural fairness and in accordance with s 39 of the AAT Act, I am not confined in that way because I must reach the objectively correct decision on the material available to me.

D.Legal professional privilege claimed where client mistakenly, but reasonably, believes seeking advice from a legal practitioner
[119] “Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.”

Communications may be protected by legal professional privilege even though not made with a person who is a legal practitioner. Whether the protection arises depends upon whether the client reasonably regarded the other party to the communication as a lawyer or a legal practitioner. It does not depend upon a characterisation of the advice that the person sought. As Lord Romilly MR said in Calley v Richards[120] of letters written to a client by a solicitor, who had been practising but who had ceased to practise at the time they had been written:
“I am of opinion that these letters are privileged. It is objected, in the first place, that Mr Mullings was not a solicitor at the time they were written, and that they do not therefore come within the rule. The question is, whether these communications are privileged, or whether the Plaintiff is bound to disclose them. Now, free communication between a client and his solicitors is allowed … and protected; and the Plaintiff in this case swears that he was not aware that Mr Mullings was not a solicitor at the time, and though Mr Mullings had ceased to practise, still his name remained in the firm. Is the privilege then of the Plaintiff to communicate with his solicitor in the fullest manner destroyed under these circumstances? I am of opinion that the fact of Mr. Mullings not being a solicitor at the time does not destroy the privilege. If it did, the consequences would be very serious, and the privilege would in every case be liable to be destroyed, for though a solicitor, at the time of his employment by a client, might be duly qualified, and communications between him and his client, therefore, within the rule, yet if the solicitor forgot during the progress of the cause or matter to take out his certificate, the privilege would be gone, and he would have to disclose everything that took place between him and the client in the meantime, though the client knew nothing of the disqualification. In my opinion, the result would be to defeat the operation of the rule, the object of which is, to allow the fullest and most unreserved communication between the client and his solicitor. If indeed a client knows that the person with whom he communicates is not and cannot act as solicitor, of course the communications do not fall within the reason of the rule and are not privileged. …”[121]
[120] (1854) 19 Beav 401; 52 ER 406
[121] (1854) 19 Beav 401; 52 ER 406 at 403-404; 406-407

This principle was applied by the Full Court of the Federal Court in Grofam Pty Ltd v ANZ Banking Group[122] (Grofam). The Australian Taxation Office (ATO) had sought advice from the Director of Public Prosecutions (DPP) but, in the particular circumstances of the case, the Full Court doubted whether the DPP had power to give legal advice to the ATO under the Director of Public Prosecutions Act 1983 (DPP Act). It inferred from the established practice between the ATO and DPP that the ATO thought that the DPP had the power to give the legal advice it sought.[123] Their Honours looked to the purpose for which legal professional privilege exists:
“ In the present case the competing policy considerations were the desirability on the one hand of protecting a communication where it is assumed that the communication is privileged and whether on the other hand, the Court should protect advice given by a legal practitioner impliedly precluded by statute from giving the advice. Before the question of whether the privilege will attach having regard to these considerations, is determined, it is necessary again to refer to the facts. The evidence revealed that the ATO and the AFP [Australian Federal Police] approached the DPP, apparently in the course of an established practice of so doing. There was no evidence whether any relevant person had a belief as to the right of the DPP to give advice in the circumstances in which he did, or indeed whether anyone had given consideration to that question. However, in our opinion, it cannot reasonably be suggested that the ATO, the AFP and the DPP would engage in such conduct in deliberate contravention of the DPP Act. In those circumstances, it is reasonable to infer that the relevant agencies had the belief that the DPP was entitled to do what it did.
When it is borne in mind that legal professional privilege is essentially concerned with the protection of the client, we consider that as a matter of judicial policy, communications between the client and a lawyer, which would normally be privileged, ought to be protected where the client involved genuinely believed that there was an entitlement to give the legal advice in question.”[124]

The same conclusion was reached on a very similar factual basis by a differently constituted Full Court of the Federal Court in Health Insurance Commission v Freeman.[125]

Their Honours’ reference to the fact that “judgment” is required in determining where the public interest lies and to that judgment’s being made in a particular context found expression in a later passage in their judgment:
“… This is a concept that assumes prominence in a different context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, for example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of documents …. The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a ‘general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]’ (s 3(1)(b)). That is the context in which a minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to ‘balancing’ create a danger of losing sight of that context. …”[324]
[324] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 433; 193; 522 [19]

Gleeson CJ and Kirby J were in the minority on the final result but their views are not incompatible with those of Hayne J, who was a member of the majority. Hayne J made the following observations on the meaning of “public interest”:
“ It may readily be accepted that most questions about what is in ‘the public interest’ will require a consideration of a number of competing arguments about, or features or ‘facets’ of, the public interest. As was pointed out in O’Sullivan v Farrer …^[[325]^]:
‘[T]he expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view” …^[[326]^].
That is why a question about ‘the public interest’ will seldom be properly seen as having only one dimension.”[327]
[325] (1989) 168 CLR 210 at 216
[326] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J
[327] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [55]; 443-444; 202; 531

In contrast to these expressions of the public interest, Callinan and Heydon JJ made the following observations regarding the public interest:
“ Nor are we by any means certain that it is apt to describe the public interest as multifaceted. Neither the fact that different people will see it through different prisms, nor the fact that an all-encompassing definition of it for all occasions is not possible, means that the public interest is multifaceted. … Judges have usually not found it necessary to direct juries at length as to the meaning of the expression, except to warn them that it is not enough that the matter might be of some personal or prurient interest, or merely something about which they may be curious.”[328]
[328] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 221-222; 550-551 [130]

The conclusion to be drawn is that the public interest is not multifaceted but a concept which shapes itself to the factual circumstances under consideration and any statutory provisions applicable to those circumstances for its very dimensions and boundaries are drawn by those circumstances and provisions. That is illustrated by the judgment of Gleeson CJ and Kirby J who note that the FOI Act itself begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests.

In trying to ascertain the public interest, a distinction must be drawn between the public interest and a matter of interest to the public. In Director of Public Prosecutions v Smith,[329] the Victorian Supreme Court considered a decision made by the former Administrative Appeals Tribunal of Victoria (AATV) to release documents relating to a decision by the Victorian Director of Public Prosecutions not to prosecute a solicitor on the basis that their release was in the public interest. It had been alleged that the solicitor had been a party to a fraud upon a businessman who was a client of the practice in which the solicitor was then employed. Section 50(4)
[329] [1991] 1 VR 63; (1991) 100 FLR 6; Kaye, Fullagar and Ormiston JJ
[330] Excluded from the power given by s 50(4) of FOIVIC were the exemptions relating to Cabinet documents (s 28), documents affecting national security (s 29A) Bureau of Criminal Investigation documents (s 31(3)) and documents relating to personal privacy (s 33).
of theFreedom of Information Act 1992 (Vic) (FOIVIC) empowered the AATV to override most exemptions[330] where it was of the opinion that the public interest required that access to the document should be granted under that Act. The documents to which the Tribunal granted access contained detailed references to business transactions of the former client, who had begun legal proceedings against the solicitor’s firm, complained to the Victorian Law Institute and reported the matter to the police.

The beginning of the following passage from the judgment of the Full Court of the Supreme Court of Victoria appears in the extract of the judgment of Tamberlin J in McKinnon v Secretary, Department of Treasury. I have set that passage out above.[331] Omitting citations, I will repeat the beginning in order to set the context in which the Full Court drew a distinction between matters of public interest and matters of interest to the public:
“… The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of Government and Government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: ... There are … several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest. The interest created by Mr Legge bringing his business transactions into the public arena and by the respondent’s public statements concerning the prosecution of Mr McArdle were no doubt of the nature of the interest to some members of the public, but those matters were not ‘the public interest’ to which s 50(4) is directed.”[332]
[331] See [195] above
[332] [1991] 1 VR 63; (1991) 100 FLR 6 at 75; 18-19

There were, however, two other matters that the AATV, constituted by Judge Higgins, had considered to be relevant in considering public interest. They were the interest of the public that the prosecution of Mr McArdle had been effected impartially and according to law and the public interest inherent in the doctrine of legal professional privilege. The Full Court upheld the AATV’s decision to release the documents saying:
“… His Honour commenced by accepting without elaboration the high order of importance of the privilege against which he compared the public interest factor of the appearance of justice having been done in exceptional circumstances which had been created to surround the McArdle case. Then he recounted matters and considerations pertinent to the public interest in the appearance of justice having been done. His opinion that the public interest required the disclosure to the public of the exempt documents was reached after comparing the benefit to the criminal justice system by disclosure against the harm to the doctrine of legal professional privilege. To the lawyer steeped in the tradition of the common law, the result may seem unacceptable. Nevertheless the legislature, by not excluding from the operation of s. 50(4) a document referred to in s. 32 indicated the intention that in appropriate circumstances other factors of the public interest might be attributed greater value than the factor of legal professional privilege. Be that as it may, the reasons for his decision were given by the learned judge in conformity with the requirement of s. 49(1) to (3) of the Administrative Appeals Tribunal Act.”[333]
[333] [1991] 1 VR 63; (1991) 100 FLR 6 at 77; 20-21

This approach is consistent with that of Hayne J in McKinnon to the effect that what is in the public interest and so, in a case such as this, what is contrary to the public interest, requires a consideration of a number of matters. That is not to say that the public interest is multifaceted. The matters that are taken into account are confined only in so far as the subject matter and the scope and purpose of the relevant enactment require.

Among those matters must be the right of access to information conferred by the FOI Act. The rights to access to information in documentary form under Parts II and III are not limited to “citizens” if, by that word, I am meant to understand “Australian citizens”. The right given by s 11, as opposed to the object stated in s 3(1), is expressed more broadly in terms of every person’s having a legally enforceable right and it has been interpreted more widely without reference to Australian residence or citizenship.[334]
[334] Re Lordsdale Finance Limited and Department of the Treasury [1985] AATA 174 per Deputy President Todd. Australian citizenship was originally required of an applicant for amendment or annotation of personal records but that requirement was removed when s 48 was repealed and replaced by the Freedom of Information Amendment Act 1991 No. 137 of 1991: s 33.

A purpose of the FOI Act is to inform persons about the processes of government but it is not the only purpose. It could be said that it does this under Part II and that Part II is the implementation of the object expressed in s 3(1)(a):
“The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth by:
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; …
(b)-(c)…”

Consistently with this object, s 8 requires agencies to publish certain information about their functions, the categories of documents they maintain and the opportunities that exist for persons or bodies outside the Commonwealth administration to participate in the formulation of policy. Unlike requests for access under Part III, which are limited to requests for information in documentary form, s 8 requires agencies to create documents setting out the relevant information if they do not already exist. Section 9 requires them to make available for inspection and purchase documents that they use in their decision-making processes. All of this informs about the processes of government.

The rights given under Part III are not necessarily so limited. When read with the exemptions in Part IV, they appear to be the implementation of the object stated in s 3(1)(b) to create:
“… a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.”

The right that is given by s 11 is:
“Subject to this Act, … a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.”

As s 11(2) goes on to say, subject to the FOI Act itself, a person’s right of access is not affected by any reasons given by the person seeking access or any belief held by an agency or Minister as to the person’s reasons for seeking access.

It is clear from the way in which s 3(1)(b) expresses its object to create a general right of access that the government holds a wide range of information in documentary form. No doubt all of that information is in some way relevant to a function, a power or a duty of an agency but not all of it may in itself disclose the processes of government. A wish to know about the processes of government may or may not be at the heart of a request for access.[335] Given the object of the FOI Act and the nature of the right of access it confers, it seems to me that the public interest is in maintaining that right of access limited as it is only by exemptions necessary to protect private and business affairs of persons in respect of whom information is collected by departments and public authorities and by what is necessary for the protection of essential public interests. Those essential public interests are circumscribed by the exemption provisions of Part IV and, to some extent, by the workload considerations set out in s 24 of Part III that justify refusal of a request. This public interest could also be described in the words adopted by Tamberlin J in McKinnon v Secretary, Department of Treasury as “transparency in public administration”[336] if that expression were understood to encompass transparency of information held in documentary form as well as transparency of processes. That would seem a more appropriate expression of this consideration in determining what is contrary to the public interest under s 36(1)(b) than that of citizens’ being informed of the processes of government.
[335] Take, for example, commercial information submitted to government for the purposes of obtaining approval of a pharmaceutical substance: Re Smith, Kline and French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services [1991] FCA 150 per Sheppard, Wilcox and Pincus JJ
[336] (2005) 145 FCR 70; 220 ALR 587 at 76; 591

Section 36(1)(b) does not purport to limit the matters taken into account by reference only to the essential public interests that it has protected in Part IV. That is clear from the paragraph itself and underlined by s 32(a) which provides that:
“A provision of this Part by virtue of which documents referred to in the provision are exempt documents:
(a)shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents;…
(b)…”[337]
[337] Section 36 cannot, of course, be used to justify a decision to give access to a document which is exempt under another provision of Part IV even if its disclosure would not be contrary to the public interest within the meaning of s 36(1)(b).

As submitted on behalf of ASIC, there is a public interest in the proper working of government but what does that mean? I have turned to the judgment of Callinan and Heydon JJ for assistance. Their Honours went on to consider the various grounds of public interest that had been claimed by the respondent in that case and said:
“ … The reference to ‘ongoing sensitivity’ in the first is not entirely clear. We would be inclined ourselves to think that the fact that documents have continuing sensitivity, are controversial and affect a minister’s portfolio would not alone provide a reasonable ground for continuing confidentiality. The use of the word ‘ongoing’ strongly suggests currency, and the use of the word ‘controversial’ might well at least imply public interest.
The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed, and it seems to us that this is a matter upon which a minister’s opinion and experience are likely to be as well informed and valuable as those of anyone else, including senior officials.
The third ground raises an issue of tentativeness, that is to say, that the documents were concerned with matters that were not settled and recommendations that were not adopted. This too, on its face, is a cogent ground. It is difficult to see how it would not be reasonable for a minister to take the view that the release of material of that kind would not make a valuable contribution to public debate.
The fourth ground has so much in common with the third that nothing further need be said about it.^[[338]]
The fifth ground is far less persuasive. It claims that the difficulty of putting financial data into context provides reason for the non-disclosure of otherwise relevant documents. It is, we think, unrealistic for any minister to believe that he or she can control, or dictate the context in which matters of public interest are debated. All that a minister can do is seek to explain the data and to provide as accurate a context for it as possible.
The sixth ground takes the point that such documents as are prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government, that is to say, responsible government to which we have earlier referred. This cannot be said to be an unreasonable view. The minister is the one who is responsible for an answer given in Parliament, within the practical modern limits to which we have referred. It is his or her answer itself which is a, or the, matter of public interest, and not the various documents which may have canvassed that answer, or other possible answers. It will be in respect of the answer that the minister actually gives that any political price will have to be paid, just as there may well be a political price to be paid for any claim of conclusiveness, whether it is well-based or not.
The seventh ground is at least arguably not reasonable, in effect, that the public may not be trusted to understand the technicalities of, and the jargon used in otherwise revealable documents. It is not as if the public is unaided by experts and others who can, including, for example, an informed journalist ….
The grounds taken did not clearly articulate something that the oral evidence suggested, namely that the respondent was concerned that what might be disclosed could well be misrepresented, abbreviated or distorted, or at least not presented in a balanced way. Indeed, cross-examination of the appellant’s witnesses certainly did go some way towards demonstrating lack of balance, indeed, lack of balance even in the reporting of the particular issue with which the Tribunal was concerned. That would not however be a ground that we would regard as reasonable, for the same reasons as we would reject a ground based upon an asserted lack of technical expertise, or inability to understand jargon on the part of each and every member of the public.”[339]
[338] “The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts.” [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [80]; 450; 208; 537 per Callinan and Heydon JJ
[339] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [120]-[128]; 466-467; 220-221; 549-550

The discussion by Callinan and Heydon JJ of the seventh ground needs to be read with their observations regarding their third ground. It would seem to be consistent with other observations they made earlier in their judgment regarding the opinion evidence given by Mr Alan Rose, who had formerly been Secretary of the AGD and President of the Australian Law Reform Commission, and Professor Peter Dixon, who was an applied economist. Mr Rose had expressed an opinion that disclosure of documents that were provisional in nature or that were superseded would make a very useful contribution to the public debate. Callinan and Heydon JJ said:
“… Contrary to Mr Rose’s opinion that the exposure of these would make ‘a very useful contribution to the public debate’, in our opinion documents of that kind are more likely to mislead or confuse, or to make no contribution to any useful, or currently relevant debate.
Some of Professor Dixon’s evidence made the point, incontestable we think, that the topics were of public interest, as to the way in which, for example, ‘bracket creep’ adversely affected many taxpayers. But a distinction that he too did not make in his evidence was the distinction between provisional or superseded documents, and current ones. The former could do little to advance the analyses which Professor Dixon and other economists would wish to do, of ‘the Treasury’s apparent concern with the number of people who move from one tax bracket to another in any given year’.”[340]
[340] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [116]-[117]; 465; 219; 548

Hayne J also appears to support the proposition that there could, on the evidence in that case, be a public interest in refusing disclosure of documents in circumstances where they would be likely to mislead. He said:
“… In the case of those particular documents, the relevant grounds for the claim were grounds asserting that release of the material shown in the documents had ‘the potential to lead to confusion and to mislead the public’. The appellant did not assert that this could not constitute a reasonable ground for the claim that had been made.”[341]
[341] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [70]; 448; 206; 535

Do the AGS advice and DFAT advice come within section 36(1)(a)?

Having regard to both their content and to the circumstances in which they came into being, I am satisfied that both the AGS advice and the DFAT advice comes within the category of documents described in s 36(1)(a). Each is an opinion or advice. Neither contains purely factual material and, in view of the steps taken within the various agencies to protect them from disclosure to those within the Commonwealth who have no need to know, I am satisfied that they are not used for the purpose of making decisions or recommendations of a sort referred to in s 9(1). Therefore, they come within s 36(1)(a).

Would disclosure of the AGS advice and DFAT advice be contrary to the public interest?

As I have found that the DFAT advice and AGS advice are subject to legal professional privilege, I am satisfied that their disclosure under the FOI Act would be contrary to the public interest. As the privilege has not been waived, the doctrine of legal professional privilege has already determined that disclosure is contrary to the public interest. The public interest is that in the administration of justice that comes from the encouragement of full and frank disclosure by clients to their lawyers.

Would disclosure of the AGS advice and DFAT advice be contrary to the public interest if they are not subject to legal professional privilege?

Lest I am incorrect regarding my conclusion that the AGS advice and DFAT advice would be privileged from production in legal proceedings on the basis of legal professional privilege, I have considered the Prime Minister’s claim for exemption under s 36 on the assumption that they are not protected by the privilege. If that were the case, my findings regarding s 36(1)(a) remain the same. The two advices come within that paragraph.

The point of difference lies in the application of s 36(1)(b). Mr Hanks and Ms Graycar have submitted that there is a public interest in government’s being able to obtain confidential advice from those with appropriate expertise and in the course of, and for the purpose of, developing policy and legislation. They referred to a passage from the judgment of Mason and Wilson JJ in Waterford when they said, in part:
“… To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. …”.[342]
[342] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350 at 62; 677; 352

They referred also to a decision of Senior Member O’Neill in Re

Kowalski and ACT Government Solicitor[343] (Kowalski) where she had concluded:

“There is a public interest in ensuring that the inquiries of the Medical Board of the ACT are conducted with the benefit of advice and assistance arrived at after a process of careful consideration by those charged with that responsibility. If their 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.”[344]

[343] [2006] ACTAAT 14

[344] [2006] ACTAAT 14 at [35]

Senior Member O’Neill had referred to a decision of Senior Member Dwyer in Re Wallace and Director of Public Prosecutions[345] (Wallace) when she said:
“45. The claim that the disclosure of that material would be contrary to the public interest is based on note A. I find that it contains advice or recommendation 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 future or to inhibit recording of 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. I find that those public interest considerations outweigh those that favour disclosure. I find that document 49 is an exempt document under s 36 of the Act.”[346]
[345] [2003] FCA 119
[346] [2003] FCA 119 at [45]

Senior Member Dwyer had earlier described document 49 as:
“… an unsigned draft memorandum dated 7 March 2001 that was prepared by a lawyer in the Head Office of the DPP for submission to the Director. It contains the frank and confidential opinions of the author and of other DPP lawyers concerning proposed charges to be laid against the applicant. A copy was provided to the Melbourne office. The final version of this document is document 56.
44. Having perused that document I find that its disclosure would disclose matter in the nature of recommendation prepared for the purposes of the deliberative processes involved in the functions of the office of the DPP.”[347]
[347] [2003] AATA 119 at [43]-[44]

I cannot make findings of the sort underpinning the conclusions arrived at in Kowalski and Wallace in the absence of evidence supporting them. The content of the AGS advice and the DFAT advice do not, by themselves, satisfy me of them. The fact that advice has been sought does not of itself lead to the conclusion that it should not be disclosed under the FOI Act. I have been given no evidence addressing any claim that release of the advices would tend to inhibit communications of that sort in future or to inhibit their being recorded. While I understand that evidence of this sort has been given in other cases, it has not been led on the particular issues as they arise in relation to these documents. Therefore, had it not been for my decision that the AGS advice and DFAT advice are subject to legal professional privilege, I would not have been satisfied on the evidence in this case that their disclosure under the FOI Act would have been contrary to the public interest within the meaning of s 36(1)(b).

Conclusion

As the AGS advice and DFAT advice satisfy both ss 36(1)(a) and (b), I find that they are exempt under s 36.

DOCUMENTS 1, 6, 9 AND 17

I have set out a description of these documents at [3] above. Only small passages are claimed to be exempt under s 42. I have read each of them and am satisfied that each would reveal one aspect or another of the material in either the AGS advice or the DFAT advice.

DECISION

For the reasons I have given, I affirm the decision of the respondent dated 26 November 2010.

I certify that the two hundred and sixty one preceding 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  15 & 16 June 2011
Date of Decision  15 August 2011
Counsel for the Applicant             Mr C Young
Solicitor for the Applicant            Ms M Carroll
Allens Arthur Robinson

Counsel for the Respondent Mr P Hanks QC with Ms R Graycar
Solicitor for the Respondent Ms K Windeyer
Australian Government Solicitor

For the purposes of enabling an application to be made to the Tribunal under s 55 of the FOI Act,
s 56(1) deems a decision refusing access to have been made when the period of time prescribed in
s 15(5)(b) or extended under s 15(6) has expired and notice of a decision has not been received by the person requesting access. If, after an application is made to the Tribunal for review of the deemed decision a decision is made, the Tribunal may treat the proceedings as extending to a review of that decision provided it is a decision other than a decision to grant access, without deferment, in accordance with the request: FOI Act, s 56(5)(a).For the purposes of enabling an application to be made to the Tribunal under s 55 of the FOI Act, s 56(1) deems a decision refusing access to have been made by when the period of time prescribed in s 15(5)(b) or extended under s 15(6) has expired and notice of a decision has not been received by the person requesting access. If, after an application is made to the Tribunal for review of the deemed decision, a decision is made the Tribunal may treat the proceedings as extending to a review of that decision provided it is a decision other than a decision to grant access, without deferment, in accordance with the request: FOI Act, s 15(5)(a).

All information in the last paragraph of the email sent at 7.29pm on
28 April 2010 …”: Schedule of documents.

Exhibit 3 at [5]. Mr Braddock, a Principal Legal Officer in OIL in the AGD has been advised by
Mr Matt Little, the Departmental Liaison Officer in the Attorney-General’s Department, that the email forwarding the DFAT advice and the advice itself were printed, read and then securely destroyed: Exhibit 3 at [5]

Judiciary Act ss 55D(5) and (6). Although not relevant in this case, I note that there is a distinction between s 55D and ss 55E and 55Q. The qualification made in ss 55D(5) and (6) does not appear in
ss 55E and 55Q leaving Attorney-General’s lawyers and AGS lawyers entitled to practise in any State or Territory with regard only to State or Territory laws that impose rights, duties or obligations in relation to their clients or the courts and provide for disciplinary proceedings in relation to misconduct: ss 55E(3) and 55Q(2).

“(4) Subsection (1) also does not apply to—

(a)an employee providing legal services to his or her employer or a related entity if the employee—

(i) acts in the ordinary course of his or her employment; and

(ii)receives no fee, gain or reward for acting other than his or her ordinary remuneration as an employee; …

…”

(5)Subsection (1) has effect subject to any territory law or law of the Commonwealth that authorises a person to engage in conduct that is engaging in legal practice.”

Section 25D of the Acts Interpretation Act 1901 imposes the same obligation on all administrative decision-makers by providing: “Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”
When s 63 of the FOI Act is read with s 43(2B) and s 25(6) of the AAT Act, there is a question as to how they are intended to sit together. Section 25(6)(a) provides that an enactment, such as the FOI Act, may include provisions adding to, excluding or modifying the operation of, among others, ss 43(1) and (2). No mention is made of s 43(2B). I do not need to resolve that issue in this case.