Shord and Commissioner of Taxation (Freedom of information) - [2022] AATA 1536

Shord and Commissioner of Taxation (Freedom of information) [2022] AATA 1536 (9 June 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2020/3574
Re:Michael Shord
APPLICANT

AndCommissioner of Taxation
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:9 June 2022
Place:Perth

The Reviewable Decision is affirmed.
...............[Sgd].........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
FREEDOM OF INFORMATION – Australian Information Commissioner decided not to review under s 54W(b) of the Freedom of Information Act 1982 (Cth) (FOI Act) – whether documents subject to legal professional privilege under s 42 of the FOI Act – Applicant seeking access to correspondence concerning prior tribunal and court proceedings with the Commissioner that were settled – Applicant seeking access to email communications –email communications between in-house government lawyers – whether internal communications between officers and lawyers of the Australian Tax Office (ATO) attracted legal professional privilege – whether privilege was waived by email communications being copied into a number of persons at the ATO – whether email communications with legal research carried out by a graduate under the supervision of an ATO lawyer are subject to privilege – Tribunal finds that the disputed documents are subject to legal professional privilege and are therefore exempt – Reviewable Decision affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 4, 11, 11A(4), 42, 42(1), 42(2), 54W(b), 57A(1)(b), 58(2), 93A(1), 93A(3)
CASES
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82
Bradford and Australian Federal Police [2021] AATA 3984
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561
Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67
Grant v Downs (1976) 11 ALR 577
Haneef and Australian Federal Police and Anor [2010] AATA 514
Mann v Carnell [1999] HCA 66
Osland v Secretary to the Department of Justice [2008] HCA 37
Proudfoot and Human Rights and Equal Opportunity Commission [1992] AATA 317; (1992) 16 AAR 411; (1992) 28 ALD 734
Ransley and Commissioner of Taxation [2015] AATA 728
Taggart and Civil Aviation Safety Authority [2016] AATA 327
Trade Practices Commission v Sterling (1979) 36 FLR 244
Waterford v Commonwealth (1987) 71 ALR 673
SECONDARY MATERIALS
Office of the Information Commissioner, FOI Guidelines (combined February 2022)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
9 June 2022
THE APPLICATION

Mr Shord previously had a dispute with the Commissioner of Taxation (Commissioner) about his income tax liability for the income years ending 30 June 2006 to 30 June 2011. That dispute has now been resolved. However, Mr Shord is seeking access to documents arising from that dispute under the Freedom of Information Act 1982 (Cth) (FOI Act).
There were 23 documents in dispute at the time of the hearing of this application. These comprised email communications between in-house lawyers and other staff of the Australian Tax Office (ATO), as well as email correspondence between those persons and external lawyers and legal counsel.
Mr Shord first made a request to access documents related to his dispute with the ATO on 19 December 2017. The documents were for the periods: 20 May 2015 to 20 July 2015, being the period after an Administrative Appeals Tribunal (Tribunal) decision; and 28 June 2016 to 28 August 2016, being the period following a Federal Court decision dated 29 June 2016 concerning the dispute (T4/15).
In a decision dated 5 March 2018, the Commissioner claimed that numerous documents falling within Mr Shord’s request were exempt from production under s 42 of the Act (Original Decision) (T5).
On 29 March 2018, Mr Shord sought an internal review of the Original Decision. However, on 8 May 2018, the Commissioner affirmed the Original Decision except for 15 documents from which further information was released to Mr Shord (Reviewable Decision) (T7/29).
On 18 May 2018, Mr Shord applied to the Australian Information Commissioner (Information Commissioner) to review the Reviewable Decision (T8). In this application the Mr Shord cited concerns about whether internal communications between officers and lawyers of the ATO attracted legal professional privilege (T8/40).
This application was with the Information Commissioner for some time, and it was not until 28 May 2020 that a delegate decided to exercise her discretion not to review the Reviewable Decision under s 54W(b) of the FOI Act. The basis for the decision not to review was that the delegate was satisfied that it was in the interests of the administration of the FOI Act that the Reviewable Decision be considered by this Tribunal (T13).
Pursuant to s 57A(1)(b) of the FOI Act, the Tribunal has jurisdiction to hear applications for review of decisions of the Information Commissioner made under s 54W(b) of the FOI Act. On 4 June 2020, Mr Shord filed an application for review in this Tribunal, seeking review of the Reviewable Decision (T1). Subsequently, several of the documents in contention were released, leaving the 23 documents that are currently in dispute.
ISSUE
The issue before me is whether the 23 disputed documents are exempt from release under s 42 of the FOI Act.
THE DISPUTED DOCUMENTS
The 23 disputed documents are listed in a schedule of disputed documents in Annexure JMT-2 of an affidavit of Mr Todd (R2), an Assistant Commissioner of Taxation employed in the Review and Dispute Resolution (RDR) business line within the Law and Practice group of the ATO. Mr Todd is also the Assistant Commissioner for the General Litigation Team in RDR.
In his affidavit, Mr Todd, who also gave evidence at the hearing, gave evidence about the authors and content of the disputed documents to give context to why the Commissioner says they are exempt. Mr Shord was concerned that some of the information about the legal qualifications of persons in the communications and whether they held practising certificates was based on hearsay because Mr Todd had attested that another ATO lawyer had made inquiries about their qualifications for the purpose of these Tribunal proceedings. I am, however, reasonably satisfied that this information was likely to be based on ATO human resources records which were likely to be accurate. This information was corroborated by the email signatures of these persons which state, for example, that they hold the position of “lawyer”. Legislation in all Australian jurisdictions effectively provides that a person is unable to represent they are a lawyer if they do not hold recognised legal qualifications and practising certificates from their relevant legal practice boards.
In his affidavit, Mr Todd grouped the disputed documents into categories. For example, email chains between the same persons about the same subject have been dealt with together. I propose to use similar categories because it is logical to do so.
To be clear, although Mr Todd has stated his view about the exempt nature of the documents, I have inspected each of the documents to consider whether they are exempt and have formed my own independent view about each of them.
Before detailing my examination and findings about the 23 disputed documents, I will provide a brief overview of the parties’ submissions and the relevant law.
SUBMISSIONS
The Commissioner claims the disputed documents (which comprise email correspondence) are exempt from release on the ground of legal professional privilege under s 42 of the FOI Act. This is because they concern the legal dispute and Federal Court proceedings between the Commissioner and Mr Shord.
I acknowledge that Mr Shord would like a person who is independent to review the documents to determine whether they are exempt. This is unsurprising given his previous dispute with the Commissioner which resulted in Federal Court proceedings. He would like someone other than the Commissioner to review the documents, which is why he appealed to the Information Commissioner, and now to the Tribunal.
My Shord was represented by his tax practitioner, Mr Wytkin, at the hearing. On behalf of Mr Shord, Mr Wytkin expressed concerns that some of the disputed documents may not fall within the scope of the legal professional privilege exemption. He queried whether the relevant persons involved in the communications had legal qualifications; whether those persons were acting in a legal role when sending or being copied into the correspondence; and the extent of the distribution of the documents within the ATO office given that numerous ATO officers were copied into some of the correspondence. Below, I have outlined the relevant law regarding the FOI Act and legal professional privilege, including any case law and commentary which addresses the specific topics of concern raised by Mr Shord.
Mr Wytkin also submitted that the documents should be released under the “real harm” test which is outlined at para [5.150] of the Office of the Information Commissioner, FOI Guidelines (combined February 2022) (Guidelines). I will address this test and whether it is applicable to this review below.
RELEVANT LAW
Right of access
Section 11 of the FOI Act provides for an enforceable right of access to certain government documents:
(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.
Exempt documents
However, not all documents held by government are required to be released. Subsection 11A(4) of the FOI Act provides for access not to be given if a document is exempt:
The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
An “exempt document” is defined in s 4 of the FOI Act to include, “(a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B) …”
The “real harm” test
The Guidelines, at para [5.150], contain the following commentary on the “real harm” test:
Agencies are advised not to claim exemption for a document under s 42 unless it is considered that ‘real harm’ would result from releasing the document. A ‘real harm’ criterion is not an element of the common law doctrine of LPP [legal professional privilege], but has been acknowledged within government as a relevant discretionary test to apply in FOI administration. The phrase ‘real harm’ distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency.
(Footnotes omitted throughout.)
Mr Wytkin submitted that because the disputed documents over which the Commissioner has claimed privilege relate to a previous tax dispute that has now been settled, no real harm would result from the release of the documents.
However, s 58(2) of the FOI Act provides that if a document is exempt, the Tribunal does not have the power to grant access to it:
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.
Consequently, whilst it may have been open to the Commissioner to apply the “real harm” test at the agency decision-making levels, in accordance with s 58(2) of the FOI Act, it is not open to me to apply the “real harm” test to release an exempt document.
Legal professional privilege
Section 42(1), which is in Part IV of the FOI Act, provides that a document is exempt if it is subject to legal professional privilege:
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.
There is no definition of legal professional privilege in the FOI Act. It has, however, been defined by the courts. In Taggart and Civil Aviation Safety Authority [2016] AATA 327 at [21], Deputy President Forgie defined the concept by citing Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561:
Legal professional privilege is a concept known to the common law and its essence was explained in the following passage from Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (Daniels Corporation):
“It is now well settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.”
Further guidance about legal professional privilege in the context of the FOI Act can be found in the Guidelines. They were made pursuant to s 93A(1) of the FOI Act which provides: “The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act”. Subsection 93A(3) clarifies that: “Guidelines are not legislative instruments”. With respect to legal professional privilege, the Guidelines are a summary of the relevant legislative provisions and case law. I will refer to the relevant parts of these Guidelines below.
Rationale
The Guidelines succinctly describe the policy basis for legal professional privilege, at [5.128]:
… The underlying policy basis for LPP is to promote the full and frank disclosure between a lawyer and client to the benefit of the effective administration of justice. …
In Grant v Downs (1976) 11 ALR 577 (Grant) at 586, Stephen, Mason and Murphy JJ gave the following detailed explanation of the rationale behind legal professional privilege:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.
This passage has been cited with approval in subsequent decisions, including Waterford v Commonwealth (1987) 71 ALR 673 (Waterford), per Mason and Wilson JJ at 677.
Test to be applied
The Guidelines state that in the absence of a statutory definition, common law concepts of legal professional privilege are applicable (para [5.127]).
In Ransley and Commissioner of Taxation [2015] AATA 728 at [10], Deputy President Tamberlin QC relevantly explained:
The test to be applied under section 42 of the Act is that which applies under the common law which involves:
(a)         examination as to whether there is a lawyer client relationship;
(b)whether the document in question was created for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation;
(c)         whether the advice is independent; and
(d)         whether the advice is confidential.
I agree with the learned Deputy President’s summary of the test, but would, with respect, replace the reference to “lawyer client relationship” with “professional legal adviser-client relationship” because the latter terminology is more consistent with the case law (see, for example, Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 (Esso); Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 (Dye)).
In Esso at [61], Gleeson CJ, Gaudron and Gummow JJ confirmed that the dominant purpose test was preferred over the sole purpose test which was the test stated in earlier cases such as Grant and Waterford.
In my view, the test, as it applies to in-house government lawyers, was concisely summarised by Mason and Wilson JJ in Waterford at 678, however I have replaced the word “sole” with “dominant” * because that is now the applicable test. Their Honours stated:
The common law … recognises that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the [dominant*] purpose of seeking or giving legal advice or in connection with anticipated or pending litigation.
Whether there is a legal adviser-client relationship
It is more straight-forward to ascertain whether there is a legal adviser-client relationship where the advice is provided by external lawyers. The Guidelines provide the following summary, at [5.130]:
A legal adviser-client relationship exists where a client retains the services of a lawyer for the purposes of obtaining professional advice. The existence of the relationship is usually straightforward to establish where advice is received from an independent external legal adviser. A typical example in a government context is advice received by an agency from a law firm that is on an authorised list of panel firms (including the Australian Government Solicitor).
However, the distinction can be less clear where the lawyers are retained “in house”. The Guidelines explain, at [5.131]:
A legal adviser-client relationship can exist but may not be as readily established when advice is received from a lawyer who works within the agency, whether as an ongoing staff member of the agency or as a lawyer contracted to work within the agency to provide advice. Whether a true adviser-client relationship exists will be a question of fact to be determined on the circumstances applying to the particular advice that was given. That is, there may be a privileged relationship applying to some but not all advice. …
Similarly, the Guidelines further explain, at [5.131]:
The following factors are relevant to establishing whether a legal adviser-client
relationship exists:
·the legal adviser must be acting in his/her capacity as a professional legal adviser
·the giving of the advice must be attended by the necessary degree of independence
·the dominant purpose test must be satisfied
·the advice must be confidential
·the fact that the advice arose out of a statutory duty does not preclude the privilege from applying
·whether the lawyer is subject to professional standards can be relevant.
These factors appear to be from Proudfoot and Human Rights and Equal Opportunity Commission [1992] AATA 317; (1992) 16 AAR 411; (1992) 28 ALD 734 (Proudfoot), at [14], which sets them out in more detail. In Proudfoot, the Tribunal stated:
The following propositions regarding legal advice can be drawn from Waterford's case and the other cases mentioned above:
·     legal advice given by a qualified lawyer employed by the government can be privileged, at least where the giver of the advice holds a current practising certificate (Waterford per Mason, Wilson, Deane and Dawson JJ.);
·     for privilege to attach, the legal adviser must be acting in her or his capacity as a professional legal adviser. This means that the advice must be given pursuant to a relationship of lawyer and client. Such a relationship must exist, and the advice must be given in the course of that relationship;
·     a corollary of this is that the circumstances in which the advice is given must be attended by the necessary degree of independence. Thus, if for instance an advice prepared subject to direction as to its contents or conclusions by a person who was not a lawyer would not be privileged;
·     the document must be created for the sole purpose of giving legal advice;
·     the advice must be confidential;
·     the fact that the advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude privilege attaching to it (Waterford per Mason, Wilson and Brennan JJ).

The principles regarding in-house lawyers were summarised by Boddice J in Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 (Aquila) at [8]-[9]:
Where the legal advisers are employees of the party to the litigation, legal professional privilege may still attach, provided the claim relates to a qualified lawyer acting in the capacity of an independent professional legal adviser. Independence is crucial, as an important feature of inhouse lawyers is that at some point the chain of authority will result in a person who is not a lawyer holding authority, directly or indirectly, over the inhouse lawyer. The relevant question for consideration is whether the advice given is, in truth, independent.
In the case of inhouse lawyers, there is no presumption of a lack of independence. The burden of proof was explained by Gillard J in Australian Hospital Care (Pindari) Pty Ltd v Duggan (No 2):
“[67] … once the client swears the affidavit of documents claiming legal professional privilege in a way which leads the Court to the conclusion that the claim is properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time.
[68] It follows that if any party to the litigation disputes the claim for legal professional privilege then it has the evidentiary burden of establishing facts which prima facie rebut the presumption.
…
[70] If the party opposing the claim for privilege does establish facts which rebut the prima facie presumption then in the end result the party claiming privilege must establish the propriety and validity of the claim.
[71] The Court may, after considering the issues, reach the conclusion that the lawyer was acting independently and accordingly the privilege is upheld, or that the lawyer was not acting independently and accordingly there is no privilege, or the Court may reach a position where it is in doubt. If the latter stage is reached then the Court should inspect the documents to determine the propriety and validity of the claim.
[81] … the mere fact that the legal adviser is an employee of the client or that his duties may involve performing non-legal work do not establish that at the relevant time he was not acting independently. It is recognised that employees will perform non-legal work and it is an essential element of the establishment of the privilege that at the relevant time the employee was performing legal work.
[82] The fact of employment is relevant but the weight to be attached to that fact in considering independence will depend on all the circumstances.”
(Footnotes omitted throughout.)
Additionally, in Aquila, Boddice J made the following observation about whether the person providing the advice required a practising certificate, at [23]:
… the lack of a current practising certificate, whilst a very relevant factor in determining whether legal professional privilege exists in respect of advice given by inhouse legal representatives, is not determinative of the existence of privilege.
Further, in Ransley, Deputy President Tamberlin QC observed at [13] that communications involving in-house government lawyers may be subject to privilege, and that a practising certificate is not essential:
It is not disputed that communications and information between an agency and its qualified legal advisers for the purpose of giving or receiving advice will be privileged whether the legal advisers are salaried officers, provided that they are consulted in a professional capacity in relation to a professional matter and the communications arise from the relationship of lawyer client. There is no requirement that an in-house lawyer hold a practicing certificate provided that the employee is acting independently in giving the advice.
Often, a client will receive legal advice from a team of legal advisers. Communications between those advisers for the purpose of advising the client may therefore attract privilege. In Dye, at [8], Katzmann J, cited examples from Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 of the classes of documents that could attract legal professional privilege including: “Communications between the various legal advisers of the client, such as between the solicitor and the solicitor’s partner or agent, with a view to the client obtaining legal advice or assistance”.
Not every communication involving an in-house government lawyer will be privileged. It does not apply to communications of an administrative nature. The Guidelines explain, at [5.135]:
For the purpose of the privilege, ‘advice’ extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context. However, it does not apply to internal communication that is a routine part of an agency’s administrative functions. The communication must relate to activities generally regarded as falling within a lawyer’s professional functions.
Dominant purpose
In Taggart, Deputy President Forgie summarised some of the relevant authorities about what is meant by “dominant purpose”, as well as the concept of “legal advice”:
22. Reference is made to the “dominant purpose” of the client and the lawyer and Kenny J emphasised in Commissioner of Taxation v Pratt Holdings Pty Ltd that:
“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 ...”
23.The dominant purpose is that of giving “legal advice” or of giving or obtaining legal services. As Young J said in Australian Wheat Board v Cole (No 5):
“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 ...”
24.How that dominant purpose is to be ascertained was considered by Young J in the earlier case of AWB Limited v Honourable Terence Rhoderic Hudson Cole:
“The authorities accept that an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [35] per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author’s legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication.
25.The dominant purpose will ordinarily be that of the author of the document but it may not be. When, for example, a solicitor commissions an expert report, it will be the solicitor’s purpose in commissioning the report that is the relevant purpose and not the expert’s in writing it. If a solicitor directs that a document be copied, it will be his or her purpose in so directing that is relevant in determining whether it was for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. The purpose for which the document originally came into existence is not relevant and it may be that the original document is not subject to legal professional privilege but the copy is.
The Guidelines, at [5.136], also explain that documents could have been brought into existence for more than one purpose, but will still be privileged if the document was created for the “dominant purpose” of giving or receiving legal advice:
Whether LPP attaches to a document depends on the purpose for which the communication in the document was created. The High Court has confirmed that the common law requires a dominant purpose test rather than a sole purpose test. The communication may have been brought into existence for more than one purpose but will be privileged if the main purpose of its creation was for giving or receiving legal advice or for use in actual or anticipated litigation.
Regarding whether the dominant purpose is an objective or subjective one, in Esso, at [172], Callinan J observed:
Whether a purpose is a dominant purpose, is, in my view, a matter to be objectively determined but the subjective purpose will always be relevant and often decisive.
Advice needs to be independent
In Waterford at 677, Mason and Wilson JJ explained that legal professional privilege can apply to legal advisers in government but that:
It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.
In Aquila, Boddice J emphasised that the legal adviser must be acting independently, regardless of their in-house employment, and whether they are acting independently is a question of fact. His Honour stated, at [10]-[11]:
An independent legal adviser brings a disinterested mind to bear on the subject matter of the legal advice. If the personal loyalties, duties or interests of the inhouse lawyer do not influence the professional legal advice given, the requirement for independence will be satisfied.
Whether, in any particular case, the relationship is such as to give rise to the privilege is a question of fact. Its determination requires a consideration of whether the professional relationship secures to the advice an independent character, notwithstanding the employment of the legal adviser.
Advice needs to be confidential
Paragraph [5.142] of the Guidelines explains that: “LPP does not apply to a communication that is not confidential — that is, known only to the client or to a select class of persons with a common interest in the matter”.
Waiver
Subsection 42(2) of the FOI Act provides that a document is not exempt if the person entitled to claim privilege waives it:
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
In Mann v Carnell [1999] HCA 66 (Mann), at [28], the majority explained that a person entitled to claim privilege can waive it by acting in a manner that is inconsistent with that privilege:
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege ...
The majority in Mann, at [29], continued to explain that waiver can be express or implied and that a party may waive privilege through conduct that is inconsistent with that privilege, regardless of their subjective intention not to do so:
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege ...
In a government context, communications may be widely distributed within an agency, for example, by being copied to many people. The Guidelines, at [5.148] explain:
Not all disclosures to a wider group necessarily imply a waiver. If the document has been disclosed to a limited audience with a mutual interest in the contents of the document, it may not be inconsistent to continue to claim that the document is confidential and privileged. Modern organisations often work in teams and several people may need to know about privileged communications, both in the requesting client organisation and in the firm of legal advisers. Similarly, a limited disclosure of the existence and the effect of legal advice could be consistent with maintaining confidentiality in the actual terms of the advice. Whether the disclosure is inconsistent with maintaining confidentiality will depend on the circumstances of the case ...
The process of giving or receiving legal advice in a government agency can be bureaucratic. Input may be sought from different lawyers of varying degrees of seniority and with different areas of responsibility. Deputy President McCabe (then Senior Member McCabe) discussed the need for “a reasonably flexible approach when dealing with the reality of how agencies function” in Haneef and Australian Federal Police and Anor [2010] AATA 514 (Haneef) at [74]. The Deputy President continued:
As a practical matter, the process of seeking advice is not necessarily a linear one that proceeds from a single officer of the client to a single officer of the law firm. The process of advice seeking might require the input of many people on the client’s side. Many copies and drafts and other internal communications might be generated in the course of what could be a lengthy, almost bureaucratic process. Once the request for advice is received by the lawyer, the process of giving advice might involve input from a great number of lawyers – from the hapless articled clerk who is commissioned to undertake a narrowly defined research task without any sense of the larger issues, to the senior lawyer who has contact with the client and an overview of the file but who mostly orchestrates the work of others. Documents stored on databases might be accessed and copied many, many times in the course of this process. Questions of privilege must be decided with this reality in mind.
In Osland v Secretary to the Department of Justice [2008] HCA 37, at [45], the majority explained that whether privilege has been waived by conduct is a matter of judgment and must be assessed against the circumstances of the individual case:
Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver “imputed by operation of law”. It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.
CONSIDERATION
Applicants in FOI matters such as Mr Shord are in a difficult position because both the Respondent (in this case the Commissioner) and the Tribunal have the benefit of reviewing the documents in their entirety, whereas Mr Shord and his representative, Mr Wytkin, only have access to documents with significant redactions. As Deputy President Boyle observed in Bradford and Australian Federal Police [2021] AATA 3984 at [216], the submissions of an applicant are therefore likely to be “to a degree, based on assumptions”. Thus, when examining each of the disputed documents, I have endeavoured to more particularly describe their content and context to provide further explanation to Mr Shord as to why the claims of privilege are satisfied.
I will now turn to the documents in question. I will refer to the authors and recipients by their initials and titles.
Before doing so, and to avoid repetition, I find, based on my examination of the disputed documents that:
(a)The requirement for there to be a legal adviser- client relationship is satisfied. The communications are, as I have detailed below, between internal and/or external lawyers and/or counsel as part of their involvement in advising and representing the Commissioner in the legal proceedings with Mr Shord. In circumstances where other ATO officers were involved, those persons were providing instructions and/or advice concerning the legal dispute and litigation with Mr Shord.
(b)The advice is also independent. This is evident from the communications between the ATO lawyers and external lawyers and legal counsel. It is also the case with the email communications that were internal to the ATO. The advice, opinions and discussions contained in the disputed documents is presented objectively, and in a professionally detached manner. This finding is also supported by the evidence of Mr Todd in his affidavit who referred to lawyers in the RDR section providing independent legal advice to the Commissioner (R2/[15]). I find that the advice given in the disputed documents is independent in nature.
(c)The advice is also confidential. I accept Mr Todd’s evidence in his affidavit that the work of lawyers in the RDR section is confidential (R2/[15]), as are the communications of officers in the TCN (Tax Counsel Network) and LINCS (Law Interpretation, Instalments, New measures & Priority Issues, Case Leadership, Strategy & engagement) team, with information only being disseminated to ATO staff who need to know that information to provide instructions (R2/[26]). Also, the emails in the disputed documents are marked “sensitive: legal”. Such a notation indicates the author’s subjective intention, which is of some relevance, but is not determinative. However, I find that when the documents and their content are viewed objectively, and in the context of Mr Todd’s evidence regarding confidentiality, they are of a confidential nature.
(d)There has been no waiver of privilege by the Commissioner over any of the disputed documents. In some of the email communications, several lawyers and ATO staff have been copied in. However, I do not think this constitutes a waiver of privilege. Indeed, in his affidavit, Mr Todd states that he is “responsible for a team of approximately 60 legal practitioners who run taxation litigation disputes under Part IVC of the Taxation Administration Act 1953 (TAA) in the Administrative Appeals Tribunal (AAT) and Federal Courts, debt collection proceedings, and insolvency and bankruptcy proceedings” (R2/[2]). This situation is like that described above by Deputy President McCabe in Haneef, where the Deputy President referred to how the process of seeking legal advice may involve input from a great number of lawyers. In my analysis below of each of the disputed documents, I have attempted to clarify this in the context of the ATO by identifying the positions of the persons involved in the specific email communications.
I have expanded on some of these findings below where to do so would provide further clarity with respect to specific disputed documents.
The focus of the analysis below is whether the disputed documents satisfy the dominant purpose test. For the reasons set out below, I have found, after examining the disputed documents, that their redacted content was created for the dominant purpose of giving or receiving legal advice in connection with the Commissioner’s legal dispute and the litigation with Mr Shord.
Documents 19 and 20
These documents are both emails from HWL, whose title is a “Tax Technical Graduate” to GB, a Lawyer in the RDR section, sent on 25 June 2015.
The title of the email which is document 19 refers to the parties to the litigation and a section of the legislation discussed in the emails: “Shord v Commissioner of Taxation – s 23AG (6A)”. The title of the email which is document 20 is: “Shord v Commissioner of Taxation”.

Mr Todd’s evidence in his affidavit was that HWL was a graduate on rotation to the RDR section. Mr Todd also attested that graduates placed in RDR would carry out legal work under the supervision of a lawyer in connection with an RDR dispute (R2/[17]).
Mr Todd attested in his affidavit that he “believed that GB held a practising certificate” at that time. Although, as I have outlined above, having a practising certificate is not essential (Aquila, Ransley), I note from the email signature block of GB on document 21 (considered below), which was sent on the same day, that GB’s title is “Lawyer” in the RDR section of the ATO, and that one cannot call oneself a lawyer in any Australian jurisdiction without the appropriate qualifications and a practising certificate. I also accept Mr Todd’s evidence in his affidavit that GB’s role was as a lawyer in the RDR section of the ATO and that GB “had carriage of the tax litigation relating to the Applicant’s taxation dispute with the Commissioner” (R2/[16]).
There is no evidence about HWL’s qualifications or whether he had a practising certificate. However, as I have already mentioned, a practising certificate is not determinative. The reality of how agencies operate (Haneef) is that junior lawyers or graduates with tax qualifications (in the case of the ATO), will routinely carry our legal research tasks under the supervision of lawyers. That is what is occurring in these two emails. As I noted above, communications between legal advisers with the view to the client (in this case the Commissioner) obtaining advice or assistance, can be privileged (Dye).
In both documents, HWL outlines legal research that he or she undertook for the purpose of the taxation appeal concerning Mr Shord. There is an analysis of relevant provisions of the Income Tax Assessment Act 1936 (Cth), and an opinion is given as to how the law applies to Mr Shord’s circumstances. Although the dominant purpose test is the relevant one, these emails can, in my view, be categorised as having the sole purpose of providing legal advice for use in the legal dispute with Mr Shord.
I therefore find that documents 19 and 20 are subject to legal professional privilege and are exempt.
Documents 21, 22, 25, 26, 28, 29, 30, 31, 32, 33 and 34
These documents are email chains dated 25 June 2015 and 26 June 2015.
The email chain commences with document 21 which is an email from GB (the lawyer with the carriage of Mr Shord’s litigation who was the recipient of documents 19 and 20 discussed above) sent at 8.34pm. It was sent to AO, an Assistant Commissioner, and copied to AG and KC, who according to Mr Todd’s affidavit, were Principal Lawyers in the RDR section. I accept Mr Todd’s evidence that as an Assistant Commissioner AO “had responsibility for litigation risks, issues and matters, including briefing the relevant Deputy Commissioner and Second Commissioner about significant matters as necessary” (R2/[18]). The redacted content concerns the conduct of the litigation with Mr Shord and a discussion and opinions about contentions relevant to that litigation.
The redacted part of document 22 contains the email in document 21, as does the second redacted part of document 25 (pages 9-11), the second and third page of document 26 (pages 13-14), the redactions starting from the second page of document 28 (pages 17-19), the second redacted part of document 29 (page 20-22), and the third redacted part of document 30 (pages 23-25).
The first redacted part of document 25, which is an email sent at 8.53am, concerns the conduct of the litigation. So do the redactions on the first page of document 26, being emails sent at 9.23am and 9.24am, where GT, an Assistant Commissioner in RDR (also a lawyer), commences being copied in.
Document 28 (on page 16) contains instructions in emails from AO and GT to the lawyers copied in about the conduct of the litigation. In document 29 (on page 20) AO provides instructions about the conduct of the litigation and raises a legal issue with the recipients (the lawyers AG and KC and with GT). Document 30 contains a confirmation of instructions (on page 23) to the lawyers from GT and reproduces in the email chain AO’s email from document 29. Document 31 reproduces the email instructions in document 30 followed by an email from GB sent at 1.04pm confirming the instructions and making a further suggestion regarding the conduct of the litigation. Document 32 is an email sent at 1.05pm which confirms the instructions from GT and reproduces the email from GB in document 31.
In document 33, which is an email sent at 1.18pm, AO discusses the conduct of the litigation, a legal issue and confirms previous instructions (on page 34). The second part of this email that is redacted is a copy of GB’s email in documents 31 and 32.
The email from AO is reproduced in the second redacted part of document 34. The first redacted part of document 34, which was an email sent at 2.01pm, confirms instructions and contains a discussion about the conduct of the litigation.
I am satisfied that the dominant (and indeed it could also be said sole) purpose of these email communications was for the giving and receiving legal advice in connection with the litigation with Mr Shord.
I find that documents 21, 22, 25, 26, 28, 29, 30, 31, 32, 33 and 34 are subject to legal professional privilege and are exempt.
Documents 48 and 62
Mr Todd separately dealt with these documents in his affidavit but they concern the same advice and so it is appropriate for them to be dealt with together.
Documents 48 and 62 contain email trails from July 2015 between KC, GB, AG and GT. The emails discuss the legal advice received from external counsel regarding the litigation with Mr Shord. I am therefore satisfied that these communications were created for the dominant purpose of being used in Mr Shord’s litigation and therefore are subject to legal professional privilege.
I find that documents 48 and 62 are exempt.
Document 86
The first redacted part of document 86 is an email dated 13 July 2015 from AG, an “administration officer” in the RDR – Litigation Stream, to GB, sent at 6.33pm. I can appreciate that AG’s title of “Administration Officer” has the potential to create the impression that its contents may not meet the test for privilege. However, the redacted content contains a summary of AG’s legal research on a point of law arising from the litigation with Mr Shord. For the same reasons as documents 19 and 20, I am satisfied that this document meets the test for privilege and is exempt.
The second redacted part of this document is an email between GB and the external legal counsel engaged for Mr Shord’s litigation sent at 1.36pm. This email is not in dispute because Mr Shord accepts that it would be subject to legal professional privilege.
Document 135
It is only part of document 135 that remains in dispute between the parties, being an email dated 1 August 2016 at 12:52pm.
The email was sent by FC, whose title was Acting Principal Lawyer, RDR, to BO, an Assistant Commissioner in the TCN section of the ATO and MA. According to Mr Todd, MA was a Technical Advisor from the LINCS team. Mr Todd stated that “the RDR lawyers sought the assistance and advice of TCN in relation to legal issues arising from the Applicant’s tax dispute proceeding”. Mr Todd also stated in his affidavit that LINCS “may need to provide instructions, for example about the facts and practicalities … or to make decisions about the conduct of the litigation” (R2/[26]).
I find that document 135 meets the test for legal privilege. The description of the roles of MA and BO includes providing instructions and assistance in tax disputes, and the content of the email concerns an upcoming meeting with external legal advisers to discuss an issue regarding the conduct of the litigation with Mr Shord. I am therefore satisfied this communication was created for the dominant purpose of giving or receiving legal advice concerning that litigation.
I find that document 135 is subject to legal professional privilege and is exempt.
Documents 150 and 152
Document 150 contains two emails dated 17 August 2016. The first in time, sent at 7.24am, is from FA, whose email signature indicates he is Special Counsel at an external law firm to FC. UT, a Senior Legal Consultant at the external law firm, is copied into the email. The subject line of the email refers to “IMPORTANT: WAD332/2016 – Michael Shord v Commissioner of Taxation”.
The second email in document 150 is an email from FC to MA and BO sent at 9.53am. The same subject line is used.
Document 152 also contains two emails dated 17 August 2016. Again, the first in time, sent at 11.39am, is from the Special Counsel, FA, to FC, and UT has been copied in. The same title as for the emails in document 150 is used. Like document 150, the second email, sent at 1.13pm, is from FA to MA and BO.
The context of the emails also supports Mr Todd’s evidence, which I described above, about the roles of MA and BO in terms of their providing instructions or making decisions about the conduct of the litigation. The context indicates that they are not simply being copied in for their information, but that they had some role in the conduct of the Federal Court litigation concerning Mr Shord.
Each of the emails I have described concern legal procedural matters relating to the conduct of a Federal Court appeal concerning Mr Shord. I am also satisfied that they were created for the dominant purpose of giving or receiving legal advice concerning that litigation.
Documents 156, 157, 158 and 162
Again, these documents are a series of email chains, dated 23 August 2016.
The email that is first in time, sent at 10.03am, in document 156 is from the Commissioner’s external legal adviser, UT. It is sent to FC, FA and the Commissioner’s external legal counsel. It is copied to CB. I have no information as to the role of CB, but I infer from the context of the email that she is an employee of the external law firm. The email is titled, “References to s14ZZK in the respondent's submissions”. It contains legal advice and an opinion of the Commissioner’s external legal advisers.
The next email in time, sent at 4.08pm, in document 156 is from FC to BO and is copied to MA. The same title is used. It discusses the external legal advice and seeks instructions on that advice. This seeking of instructions is further confirmation of BO and MA’s role in providing instructions and making decisions about the conduct of the litigation.
Document 157 reproduces the email chain in document 156, with the addition of a further email sent at 5.01pm. In this email, from BO to FC, which is copied to MA, BO confirms his instructions.
Document 158 reproduces the email chains contained in documents 156 and 157, with the addition of a further email sent at 6.29pm. This email is from FC to BO, which is copied to MA, confirming instructions regarding the conduct of the Federal Court proceedings with Mr Shord.
Document 162 is also an email chain dated 22 August 2016 and 23 August 2016. An email in this document sent at 4.38pm on 22 August 2016 is from UT, to FC, FA, and the Commissioner’s external legal counsel. It is titled, “FW: Michael Shord v Commissioner of Taxation (WAD 332/2016)”. In another email, sent at 11.01am on 23 August 2016, FC seeks instructions from BO in an email that is also copied to MA. In a further email sent at 10.12am, which is copied to MA, BO provides instructions to FC, regarding the conduct of the litigation with Mr Shord. In another email from FC to BO sent at 11.47am, which is copied to MA, FC confirms those instructions.
The redacted correspondence in documents 156, 157, 158 and 162 contains confidential legal advice from the Commissioner’s external legal advisers and instructions on behalf of the Commissioner to those advisers regarding the litigation with Mr Shord.
I therefore find that documents 156, 157, 158 and 162 are subject to legal professional privilege and are exempt.
CONCLUSION
For the reasons given above, I have found that the documents over which the Commissioner has claimed privilege are exempt under s 42 of the FOI Act because they are subject to legal professional privilege.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D M Evans-Bonner

...........[Sgd]............................................................
Associate
Dated: 9 June 2022

Date of hearing:

3 February 2022

Representative for the Applicant: Mr R Wytkin, C Pope & Associates

Representative for the Respondent: Ms L Butler, The Australian Government Solicitor

Date of hearing:	3 February 2022
Representative for the Applicant:	Mr R Wytkin, C Pope & Associates
Representative for the Respondent:	Ms L Butler, The Australian Government Solicitor