Saunders and Australian Federal Police
[2001] AATA 1006
•10 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1006
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/76
GENERAL ADMINISTRATIVE DIVISION )
Re BRIAN SAUNDERS
Applicant
And AUSTRALIAN FEDERAL POLICE
RespondentDECISION
Tribunal Associate Professor S D Hotop, Senior Member
Date10 December 2001
PlacePerth
Decision The Tribunal affirms the decision under review.
..………(sgd S D Hotop)..................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – exempt documents – applicant requested access to certain documents including Director of Public Prosecutions Search Warrants Manual – whether Manual subject to legal professional privilege – whether Manual must be made available for inspection and purchase.
Freedom of Information Act 1982 ss 3, 9, 11, 22, 42, 58, 61
Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 12 ALD 251
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Mann v Carnell (1999) 201 CLR 1
Re Sullivan and Department of Industry, Science and Technology (1997) 49 ALD 743
Waterford v Commonwealth (1987) 163 CLR 54
REASONS FOR DECISION
10 December 2001 Associate Professor S.D. Hotop, Senior Member
Introduction
Brian Saunders ("the applicant") has applied to the Tribunal for review of a decision of an officer of the Australian Federal Police ("the respondent") of which he was notified by letter dated 11 February 2000. The decision in question was a decision, made on an internal review, refusing to grant the applicant's request for access to a document entitled "Commonwealth Director of Public Prosecutions Search Warrants Manual" (1999 Revision, 7 April 1999) ("the Manual") in accordance with the Freedom of Information Act 1982 ("FOI Act").
At the hearing the applicant appeared in person without representation and the respondent was represented by Mr A Jenshel of counsel. The Tribunal had before it the statement and documents ("T documents") lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits tendered by the respondent:
Affidavit of Geoffrey Gray sworn on 30 November 2000 (R1); and
Affidavit of Michael Atkins sworn on 30 November 2000 (R2).
Oral evidence was given (by telephone) by Mr Gray and Mr Atkins.
Background
The background to the present application for review, as appears from the T documents, is as follows.
By facsimile dated 30 September 1999 the applicant requested the respondent to provide him with copies of the following classes of documents under the FOI Act:
"All manuals, instructions, guidelines, codes of practice and/or similar in use by AFP personnel from February 1997 and dealing with the issuing of search warrants, the implementation of search warrants, the storage of seized property, the copying of seized property and/or the return of seized property." (T3)
The respondent identified 19 documents (comprising 563 folios) as falling within the ambit of the applicant's abovementioned request for access, including the Manual. (T6)
By letter dated 22 November 1999 an officer of the respondent notified the applicant that he had decided to grant access to 18 of the abovementioned documents but that he had decided to refuse access to the Manual on the ground that it was an exempt document under ss 37(2)(b) and 42(1) of the FOI Act. (T6)
By facsimile dated 27 November 1999 the applicant requested an internal review by the respondent of the abovementioned decision to refuse to grant access to the Manual. (T7)
By letter dated 11 February 2000 another officer of the respondent notified the applicant that he had decided that the Manual was an exempt document under ss 40(1)(d) and 42(1) of the FOI Act and that access to that document would not be granted to the applicant. (T13)
On 12 March 2000 the applicant lodged with the Tribunal an application for review of the abovementioned decision made by the respondent on internal review. (T1, p 3)
The Evidence
Mr GrayAn affidavit of Geoffrey Gray, sworn on 30 November 2000, was tendered in evidence by the respondent (Exhibit R1). The contents of that affidavit are as follows:
"…
1. I am a Senior Assistant Director in the Head Office of the Commonwealth DPP. I am currently in charge of the Criminal Assets and International Branch of DPP Head Office. I am also the current editor of the DPP Search Warrants Manual ('the Manual'). I am a lawyer admitted to practice in the ACT and NSW. I have worked for the Commonwealth DPP since the Office was first set up in 1984. I have held my current position since 1995 and have been editor of the DPP Search Warrants Manual since 1994.
2. The primary role of the DPP is to prosecute offences against Commonwealth law, including Corporations law, and to recover the proceeds of crime. The DPP also has responsibility for the conduct of prosecutions for offences against the laws of Jervis Bay and Australia's external territories, other than Nolfolk Island. In general terms, the DPP's charter with respect to the recovery of the proceeds of crime, is to ensure that Commonwealth offenders who have derived significant financial benefits, and who have accumulated assets, are not only prosecuted but are also stripped of those assets.
3. The DPP is not an investigative agency, however, the DPP often provides legal advice and other assistance during the investigative stage, particularly in large and complex matters. This advice and assistance extends to each stage of the investigative process, including the application for and execution of search warrants and electronic monitoring warrants. The DPP is given a function of providing advice and assistance to Commonwealth investigators under Regulation 3(f) of the DPP Regulations.
4. I understand that on 30 September 1999, the Applicant sought access under the Freedom of Information Act 1982 ('the FOI Act'), to 'All manuals, instructions, guidelines, codes of practice and/or similar in use by AFP personnel from February 1997 and dealing with the issuing of search warrants, the implementation of search warrants, the storage of seized property, the copying of seized property and/or the return of seized property.'
5. The Manual was one of a number of documents identified by the AFP as falling within the ambit of the Applicant's request.
6. On 3 November 1999, the AFP Freedom of Information Team wrote to me and sought the DPP's views on release of the Manual pursuant to the FOI Act and advice on whether the Manual was available to the general public ('the consultation letter').
7. On 9 November 1999, I responded to the consultation letter and advised the AFP as follows:
'...The DPP Search Warrants Manual is not a public document and it should not be produced in response to an FOI request.
The Manual was not produced for public consumption. It contains details of police methodology and it reproduces legal advice provided by the DPP to the AFP and other agencies. The parts of the Manual which are confidential cannot be separated from those parts which are not. Exemption should be claimed for the whole Manual under sections 37 and 42 of the FOI Act…'
…
8. I understand that initially, the applicant was denied access to the document on the basis that the disclosure of the document would or could reasonable (sic) be expected to disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would reasonably be likely to, prejudice the effectiveness of those methods or procedures: s.37(2)(b) and the document contained information which is of such a nature that it would be privileged from production in legal proceedings on the grounds of legal professional privilege: s.42(1).
9. I am aware that the initial decision was affirmed upon internal review with the exception that the claim pursuant to s.37(2)(b) of the FOI Act was abandoned and a claim pursuant to s.40(1)(d) was substituted by the internal reviewer.
10. As stated in my letter to the AFP dated 9 November 1999, the Manual is produced for the purpose of providing advice and assistance to staff of the DPP when giving advice to investigative agencies on the application for and execution of search warrants. The Commonwealth's main investigative agencies are the Australian Federal Police, the National Crime Authority and the Australian Securities Commission. However, many other agencies have an investigative role as part of their administrative function and the DPP receives briefs of evidence from, and provides legal advice to, a wide range of different agencies. All decisions in the prosecution process are made in accordance with the guidelines laid down in the Prosecution Policy of the Commonwealth, which is a publicly available document.
11. Copies of the Manual have been provided to all DPP officers.
12. Copies of the Manual have only been provided to people outside the DPP in the following circumstances:
· copies of the Manual have been given to Commonwealth investigative agencies for the purpose of assisting them to apply for or execute search warrants;
· copies of the Manual have been given to a number of Magistrates, who have the function of issuing search warrants, to assist them to perform that function;
· copies of the Manual have been given to some counsel been (sic) briefed by the DPP or other Commonwealth agency to appear in cases where a Commonwealth search warrant has been challenged;
· copies of the Manual have been given to some foreign agencies, who may be called upon to execute a search warrant in response to a Mutual Assistance request from Australia; and
· extracts from the Manual have sometimes been given to people charged with training Commonwealth investigators.
13. The DPP has an interest in ensuring that any search warrant that is issued under Commonwealth law, or in response to a Mutual Assistance request from Australia, is issued in valid form and is executed in a lawful manner. That maximises the chances of any evidence that is obtained under the warrant being found admissible by a trial judge at the end of the day, and being available to support a prosecution or recovery action being conducted by the DPP. The Manual has only been released to people and agencies who are in position where ill informed action has the potential to affect the availability or admissibility of evidence in a DPP prosecution or criminal assets case.
14. The Manual has not been released to the general public.
15. When the Manual has been given to people and agencies outside the DPP it has been given on the understanding that it will not be further disseminated without consultation with the DPP and on the understanding that the DPP will be consulted if the Manual becomes subject to a subpoena, FOI request or other discovery process.
16. The Manual is a confidential document prepared by myself and other lawyers employed by the DPP for the purpose of giving legal advice to the Director on issues relating to search warrants so that the DPP is properly equipped to provide advice and assistance to Commonwealth investigators on search warrant issues. Alternatively, the Manual is, in essence, an annotated collection of legal advices provided by myself and other DPP officers on issues relating to search warrants. On either basis, it is my opinion that the Manual attracts legal professional privilege and that the privilege has not been waived. The privilege would be waived if a copy of the Manual is released to the applicant.
17. …
17. (sic) The Manual also includes material that addresses the practice and procedure followed by the AFP and some other agencies when executing search warrants. In particular, it includes advice on where the limits lie on police powers. It is possible that if material of that kind became public knowledge it could be misused by people who want to provide advice to others on what to do if they want to frustrate the execution of a search warrant. That has the potential to prejudice the effectiveness of criminal investigations.
18. (sic) It would be possible to edit the Manual to delete material of that kind if there was not also a claim for exemption on grounds of legal professional privilege."
In his oral evidence Mr Gray confirmed that he had sworn the abovementioned affidavit on 30 November 2000 and that its contents are true and correct to the best of his knowledge and belief.
In cross-examination Mr Gray acknowledged that the Manual includes some documents which reproduce the forms of certain classes of search warrants which are prescribed by Commonwealth regulations, and other documents which are not "inherently confidential", such as the guidelines as agreed between the Australian Federal Police and the Law Council of Australia regarding the execution of search warrants on lawyers' premises where a claim of legal professional privilege has been made.
Mr M AtkinsAn affidavit of Michael Atkins, sworn on 30 November 2000, was also tendered in evidence by the respondent (Exhibit R2). The contents of that affidavit are, relevantly, as follows:
"…
1. I am a senior executive employee of the Australian Federal Police (AFP) and am the Special Adviser Law Reform with responsibility for the management of particular, sensitive law reform and policy issues affecting the Australian Federal Police. Prior to this, I was a seconded officer of the Commonwealth Attorney-General's Department and was responsible for the Legal Group of the AFP. I have work (sic) in law enforcement related law reform and policy since joining that Department in 1987.
2. On 30 September 1999, the Applicant sought access under the Freedom of Information Act 1982 ('the FOI Act'), to 'All manuals, instructions, guidelines, codes of practice and/or similar in use by AFP personnel from February 1997 and dealing with the issuing of search warrants, the implementation of search warrants, the storage of seized property, the copying of seized property and/or the return of seized property' (T3).
3. I understand that 19 documents, comprising 563 folios, were identified as falling within the ambit of the Applicant's request (T6). One of these documents was the Commonwealth Director of Public Prosecutions Search Warrant (sic) Manual ('the Manual'). With the exception of the Manual, the remaining 18 documents were released to the Applicant in full.
…
7. I am aware that the Manual is provide (sic) to the AFP by the DPP on the strict understanding that it will not be disseminated outside the AFP. In addition, if the Manual were to become subject to a subpoena, FOI request or other discovery process it is understood by the AFP that they must consult with the DPP prior to releasing any part of that document. The Manual is and always remains a DPP document.
8. The purpose of the Manual is to provide legal advice to the AFP, and other Commonwealth investigative agencies on issues concerning search warrants and to provide advice to DPP lawyers when they are called upon to draft search warrant or to defend evidence obtained under a search warrant in pending and contemplated future prosecutions. I would characterise the Manual as being predominantly made up of a collection of legal advisings provided by DPP lawyers on search warrant issues along with a number of annexures which prescribe the various forms that the different types of search warrant may take.
9. If the Manual were to be released pursuant to the FOI Act, it is conceivable that much time and effort would be spent by persons subject to a search warrant trying to identify technical deficiencies in the warrant and the DPP's interpretation and advice on the same. This has the potential to cause undue delays in the investigative process and may even frustrate the success of a potential prosecution of the criminal law. In my opinion, the detrimental impact that disclosure of the Manual would or could have on the investigation and prosecution of Commonwealth offences, outweighs the public interest in facilitating and promoting, promptly and at the lowest reasonable cost the disclosure of information in the possession of the Commonwealth Government.
…".
In his oral evidence Mr Atkins confirmed that he had sworn the abovementioned affidavit on 30 November 2000 and that its contents are true and correct to the best of his knowledge and belief.
In cross-examination Mr Atkins was asked to clarify the statement in para 7 of his affidavit that the Manual is provided to the AFP by the DPP "on the strict understanding that it will not be disseminated outside the AFP". He said that he meant that the Manual was provided to the AFP on the basis that they would not disclose it to other parties. He was unable to say, however, whether that "understanding" had been documented or was merely "verbal". He added:
"That had always been the understanding." (Transcript, p 15)
In re-examination Mr Atkins was again asked to explain the basis upon which the Manual had been received by the AFP. He responded:
"I understand it to be received by [the AFP] for use by the AFP for its internal purposes." (Transcript, p 17)
The Submissions
Mr Jenshel (for the respondent) indicated at the commencement of the hearing that he would be submitting that the Manual is an exempt document solely on the basis that it is a document subject to legal professional privilege pursuant to s 42(1) of the FOI Act, and he duly elaborated upon that submission. He submitted that the Director of Public Prosecutions ("DPP") (by whose office the Manual was created) and the respondent are in a solicitor/client relationship and that the Manual was created for the dominant purpose of providing legal advice to certain Commonwealth investigative agencies, including the respondent, and, accordingly, it is subject to legal professional privilege and is therefore an exempt document under s 42(1) of the FOI Act. He submitted that the Manual as a whole was properly characterised as a document subject to legal professional privilege and it was therefore inappropriate to grant access to that document, with deletions, pursuant to s 22(1) of the FOI Act. Finally, Mr Jenshel submitted that the Manual does not fall within the classes of documents which, pursuant to s 9 of the FOI Act, must be made available by an agency for inspection and purchase by members of the public.
The applicant submitted in reply that the Manual is not of the nature of a confidential communication between a lawyer and client and that, even if parts of the Manual were created for the dominant purpose of providing legal advice, it could not be said that every folio of the Manual was created for that purpose. He submitted that, on that basis, it would be appropriate, pursuant to s 22(1) of the FOI Act, to grant access to the Manual, with the deletion of any folios that were subject to legal professional privilege. The applicant also submitted that any privilege or confidentiality that might have attached to the Manual had been waived by reason of the fact that the DPP had distributed it to various Commonwealth investigative agencies other than the respondent. The applicant finally submitted that there was a "public interest element" in making the Manual public and that there was a duty under s 9 of the FOI Act to make the Manual available for inspection and purchase by members of the public.
The LegislationThe relevant provisions of the FOI Act are as follows:
"…
3. (1) 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 Government 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; and
(b) creating 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; and
(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
…
9. (1) This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:
(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;
(b) documents containing particulars of such a scheme, not being particulars contained in an enactment as published apart from this Act;
(c) documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactment or scheme; or
(d) documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;
but not including documents that are available to the public as published otherwise than by an agency or as published by another agency.
(2) The principal officer of an agency shall:
(a) cause copies of all documents to which this section applies in respect of the agency that are in use from time to time to be made available for inspection and for purchase by members of the public;
…
(4) This section does not require a document of the kind referred to in subsection (1) containing exempt matter to be made available in accordance with subsection (2), but, if such a document is not so made available, the principal officer of the agency, or an officer of the agency acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the responsible Minister or principal officer of the agency, shall, if practicable, cause to be prepared a corresponding document, altered only to the extent necessary to exclude the exempt matter, and cause the document so prepared to be dealt with in accordance with subsection (2).
…
11. (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
a) any reasons the person gives for seeking access; or
b) the agency's or Minister's belief as to what are his or her reasons for seeking access.
…
22. (1) Where:
(a) an agency or Minister decides:
(i)not to grant a request for access to a document on the gruond that it is an exempt document; or
(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request of as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
…
42. (1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).…
58. (1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) 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.…
61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
…".
Consideration and Findings
The Ambit of s 42(1) of the FOI Act
The category of exempt documents prescribed by s 42(1) of the FOI Act comprises any document "of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege". In determining the ambit of that category of exempt documents, the Tribunal should apply the common law test for determining the applicability of legal professional privilege: Re Sullivan and Department of Industry, Science and Technology (1997) 49 ALD 743 at 754.
That common law test has recently been revised by the High Court of Australia in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. In that case it was held that the test is whether the relevant communication was made, or the relevant document was prepared, for the dominant purpose of a lawyer providing legal advice or assistance, or of use in legal proceedings.
Does the Manual fall within the ambit of s 42(1) of the FOI Act?A description of the Manual appears in an annexure to Mr Gray's affidavit of 30 November 2000 (Exhibit R1). That description, which was composed by Mr Gray (the editor of the Manual) on 27 June 2000, is as follows:
"The DPP Search Warrants Manual was written by DPP Lawyers and is edited by a senior lawyer in DPP Head Office. The Manual is updated and reissued on a regular basis. The current version, dated at 1 June 2000, runs to 575 pages.
The Manual has been distributed to DPP lawyers, Commonwealth investigative agencies (including the AFP and the NCA) and other selected agencies which have a role in this area.
The Manual is available to DPP lawyers on paper or via a DPP Intranet. The Manual is distributed to other agencies on CD to ensure that they have easy access to the precedent material contained in it.
The Manual is designed to provide assistance to Commonwealth officers who draft documents in this area or who are required to respond to legal challenges to search warrants or evidential material obtained under a search warrant.
The Manual does not purport to be a text book on search warrant law. It only deals with warrants under Commonwealth law and it concentrates on the practical issues which face investigators and prosecutors. The Manual was first issued as a reaction to a series of court decisions in which Commonwealth search warrants were struck down, mainly because they failed to comply with the technical requirements of the legislation.
The Manual is made up of two sections.
The first section (Part I) deals with general principles that apply to all Commonwealth search warrant provisions. This section is, in effect, a compendium of legal advice provided by the DPP over the years. When new issues arise, and are answered, the advice is summarised and added to the next edition of the Manual.
The second section (Parts 2 to 21) deals with a number of Commonwealth Acts which contain search warrant provisions. Each part contains a summary of the relevant provisions and standard form documents for applications and warrants. In most cases the standard form documents have been drafted by a DPP lawyer although in a few cases the form for a search warrant has been prescribed under the relevant legislation.
The second section also includes some standard form documents for monitoring warrants.
The Manual does not deal with every search warrant provision in Commonwealth law. The Manual covers the provisions which are used most frequently. Additional Parts are added to the Manual as need arises."
The Tribunal, having examined the Manual, accepts the above description, subject to the following amendments which relate to the 1999 revision of the Manual dated 7 April 1999 (which is the subject of the present proceedings), namely, the 1999 revision of the Manual comprises 549 pages and the "second section" of it consists of Parts 2 to 20.
The Tribunal also accepts Mr Gray's evidence that:
the Manual was produced "for the purpose of providing advice and assistance to staff of the DPP when giving advice to investigative agencies on the application for and execution of search warrants" (para 10 of his affidavit of 30 November 2000);
the Manual is a "confidential document prepared by [him] and other lawyers employed by the DPP for the purpose of giving legal advice to the Director on issues relating to search warrants so that the DPP is properly equipped to provide advice and assistance to Commonwealth investigators on search warrant issues" (para 16 of his affidavit of 30 November 2000); and
copies of the Manual are provided by the DPP to certain Commonwealth investigative agencies, including the respondent.
On the basis of Mr Gray's evidence, the Tribunal finds that the Manual was prepared for the dominant, if not the sole, purpose of lawyers employed by the DPP providing legal advice or assistance to the DPP and to certain Commonwealth investigative agencies to which copies of the Manual are routinely provided, including the respondent.
The fact that the Manual was prepared by Commonwealth salaried legal officers for the dominant purpose of providing legal advice or assistance exclusively to Commonwealth agencies or officers is of no consequence as regards the issue of whether it may be subject to legal professional privilege. Provided that the abovementioned dominant purpose test is satisfied – as it is in this case – such privilege may attach to documents prepared for the necessary purpose of providing legal advice or assistance, whether by government-employed lawyers or by privately-employed, independent lawyers: Waterford v Commonwealth (1987) 163 CLR 54.
It was acknowledged by Mr Gray in his oral evidence that the contents of certain folios in the Manual are not "inherently confidential", including the forms of certain classes of search warrants which are prescribed by Commonwealth regulations, and the guidelines as agreed between the Australian Federal Police and the Law Council of Australia regarding the execution of search warrants on lawyers' premises where a claim of legal professional privilege has been made. Notwithstanding that the contents of those folios (which, the Tribunal notes, comprise only approximately 26 pages of the Manual which in total comprises 549 pages) are publicly available, however, the fact is that those contents have been included in the Manual for the dominant purpose of providing legal advice or assistance and on that basis they, together with the other contents of the Manual, are subject to legal professional privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
As regards the issue of waiver of legal professional privilege, the position at common law is that such privilege may be waived by the person who is entitled to the benefit of it – that is, by the client, not by the lawyer: Mann v Carnell (1999) 201 CLR 1 at 13. Whether waiver of legal professional privilege attaching to a document by a client, however, will necessarily mean that that document is not an exempt document under s 42(1) of the FOI Act is a matter on which different views have been expressed by the Tribunal. In Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 12 ALD 251 the Tribunal (Jenkinson J) said (at 252):
"In my opinion the operation of s 42(1) is unaffected by any conduct which, in legal proceedings, would be regarded as having constituted waiver of legal professional privilege. The sub-section does not require that the document would be privileged from production, but that the document be 'of such a nature that it would be privileged'. The criterion of exemption, 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."
In Re Sullivan (above), however, the Tribunal (Senior Member PJ Bayne) expressed the view that, in determining the application of s 42(1) of the FOI Act, it is relevant to address the issue of waiver of legal professional privilege. The Tribunal continued (at 756):
"It is hard to see any policy which would justify reading s 42 in a contrary way. This exemption is designed to ensure that the Act is not a vehicle for causing the disclosure of matter which is of such a nature that the relevant client might make a successful claim of privilege in some other context. It has been said that '[T]he primary rationale for the privilege is to enhance the functioning of the adversarial system of litigation' (Odgers S, Uniform Evidence Law (2nd ed, 1997) at 201) and see Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 480; 69 ALR 31 per Gibbs CJ. The FOI Act should not be used to undermine the workings of the adversarial system in this respect, but once the client has waived the privilege, s 42 has no purpose to serve."
In the present case it is not necessary for the Tribunal to express a considered view on this matter because it is of the opinion that there has been no waiver of the legal professional privilege attaching to the Manual. On the basis that the respondent is the relevant client, there is certainly no evidence before the Tribunal of any conduct by the respondent which might arguably constitute waiver of the privilege. On the basis that the DPP is the relevant client of its employed lawyers who prepared the Manual, however, the question arises whether the DPP has waived the privilege attaching to the Manual by reason of the fact (as was established in evidence) that it has provided copies of the Manual to certain Commonwealth agencies and officers. The Tribunal accepts Mr Gray's evidence that the DPP has provided copies of the Manual only to certain Commonwealth agencies or officers whose employment duties are directly concerned with the application, the issuing, and the execution of search warrants under Commonwealth legislation, for the purpose of assisting them to perform those duties, and "on the understanding that it will not be further disseminated without consultation with the DPP" (para 15 of his affidavit of 30 November 2000). The Tribunal also accepts the evidence of Mr Atkins that, as regards the provision of copies of the Manual by the DPP to the respondent, the respondent's understanding has always been that such copies of the Manual have been provided to it by the DPP on the strict understanding that it will not disclose them to any other persons. In the Tribunal's opinion, having regard to the very limited disclosure of the Manual by the DPP to other relevant Commonwealth agencies and officers for a specific purpose directly related to the performance of their public duties, it cannot be said that such disclosure is inconsistent with the maintenance of the confidentiality of the contents of the Manual such as to constitute a waiver by the DPP of the legal professional privilege attaching to the Manual: see Mann v Carnell (above) at 13,15.
Is s 22 of the FOI Act applicable in this case?
For the reasons already given, the Tribunal finds that the Manual is wholly exempt under s 42(1) of the FOI Act and, accordingly, the application of s 22 of the FOI Act does not arise in this case.
Is the Manual a document of the kind referred to in s 9(1) of the FOI Act?Section 9(1) of the FOI Act refers generally to documents which are used by an agency or its officers in making decisions or recommendations for the purposes of legislation or schemes administered by that agency. The subsection then, in paras (a)-(d), describes more specifically the kinds of documents to which s 9 applies, being documents which contain various kinds of information relating to the administration by the relevant agency of legislation or schemes for which it is responsible.
In the Tribunal's opinion, the Manual is plainly not a document of the kind referred to in s 9(1) of the FOI Act. It is not a document used by the DPP or the respondent, or their officers, in making decisions or recommendations for the purposes of legislation or schemes administered by each of those agencies. Instead, the Manual was prepared, and is used, for a specific, and quite different, purpose, namely, to provide legal advice and assistance to staff of the DPP in advising Commonwealth investigative agencies in relation to the application for, and execution of, search warrants under various Commonwealth enactments.
The Tribunal notes, furthermore, that even if the Manual were a document of the kind referred to in s 9(1) of the FOI Act it would not, by reason of s 9(4) of that Act, be required to be made available for inspection and for purchase by members of the public since (as found by the Tribunal) it contains exempt matter; nor would it be practicable to prepare "a corresponding document" excluding the exempt matter because (as also found by the Tribunal) the Manual consists entirely of exempt matter.
ConclusionThe Tribunal concludes, therefore, that the Manual is a document "of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege" and is, accordingly, an exempt document under s 42(1) of the FOI Act. The Tribunal finds, furthermore, that the entire contents of the Manual comprise exempt matter, and that the Manual is wholly exempt, pursuant to that subsection.
DecisionFor the above reasons the Tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Signed:
.....................(sgd V Wong).......................
AssociateDate/s of Hearing 2 May 2001
Date of Decision 10 December 2001
Counsel for the Applicant In person
Counsel for the Respondent Mr A Jenshel