SSPR and Office of the Australian Information Commissioner
[2023] AATA 135
•3 February 2023
SSPR and Office of the Australian Information Commissioner [2023] AATA 135 (3 February 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2022/8103
Re:SSPR
APPLICANT
AndOffice of the Australian Information Commissioner
RESPONDENT
Appeal from: [2022] AICmr 62
Decision
Tribunal:Ms A E Burke AO, Member
Date:3 February 2023
Place:Melbourne
1.The Tribunal ORDERS, pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), that
(a)publication or disclosure of the following documents or parts of documents lodged by the Respondent pursuant to s 37 of the AAT Act on 12 December 2022 (the T Documents) to the Applicant, or to any person other than the persons specified in paragraph (b) is prohibited, until any further order of the Tribunal:
(i)The paragraph on p.3 of T44 (T Documents p. 493) commencing after “See Attachment D – D2020/019582”;
(ii)The paragraph on p.3 of T44 (T Documents p. 493) commencing after “See Attachment E – D2020/019583”;
(iii)T44 Attachment D – “Legal advice of Holding Redlich”
(iv)T44 Attachment E – “Legal advice of the Australian Government Solicitor (AGS)”
(b)the information specified in paragraph (a) must not be disclosed to any person other than:
(i)the Respondent, their representatives, and any other person directly involved with the preparation and conduct of their case; and
(ii)Members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.
2.Parties have Liberty to apply.
........................[sgd]................................................
Ms A E Burke AO, Member
Catchwords
Practice and Procedure – Confidentiality Order – Legal Professional Privilege – Claim of Legal Professional Privilege – Whether Legal Professional Privileged Waived – Whether denial of procedural fairness – Confidentiality Order Granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Alpert and Secretary, Department of Defence [2020] AATA 1632
Alpert v Secretary, Department of Defence [2022] FCA 54
Australian Prudential Regulation Authority v VBN [2005] FCA 1868
AWB v Cole (No. 5) (2006) 155 FCR 30
Bolton and Australian Securities and Investments Commission [2018] AATA 4640
Buttigieg v Comcare [2017] AATA 1002
Glencore International AG v Commission of Taxation [2019] HCA 26
Mann v Carnell [1999] HCA 66Waterfordv Commonwealth [1987] HCA 25
REASONS FOR DECISION
Ms A E Burke AO, Member
3 February 2023
Background
The Respondent is seeking an order pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) restricting the disclosure of documents which it contends formed part of the decision-making process in the decision under review.
The Respondent seeks to restrict the publication and disclosure of the documents to Members and staff of the Tribunal and to the Respondent and its representatives. In effect the order requested will be that the Applicant will not be permitted to view the document.
The Applicant opposed the Respondent’s request for the section 35(4) confidentiality order under section 35(4) of the AAT Act. The Applicant did not dispute the documents attracted legal professional privilege, acknowledging they were confidential communications about legal matters between the Respondent and their lawyers.
The Applicant contended the Respondent had given notice of an intention to deploy the substance of this privileged communication for litigation advantage; and submitted this was inconsistent with the maintenance of the confidentiality of privilege.
The Tribunal noted that both the Respondent and the Applicant accepted the High Court’s rationale behind legal professional privilege as expressed in Glencore International AG v Commission of Taxation [2019] HCA 26: “The rationale for legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client”.
On 12 December 2022 the Respondent lodged a copy of the Tribunal documents under section 37(1)(b) of the AAT Act. When lodging said documents, the Respondent requested an order under section 35(4) of the AAT Act be applied to documents T44, T44(d), T44(e) and T65. Their application stated:
The respondent requests that the Tribunal give directions for a confidentiality order under s 35(4) of the AAT Act prohibiting the disclosure of the confidential documents.
Confidentiality orders are sought on the basis that:
the confidential material comprises communications that are privileged from production in legal proceedings.
An unedited copy of the confidential documents will be separately provided to the Tribunal under s 37(1)(b) of the AAT Act to assist the Tribunal’s review by providing relevant material and on the express basis that it is to remain confidential and not be disclosed to the applicant.
On 13 December 2022 the Applicant notified the Tribunal of its opposition to the confidentiality order being sought by the Respondent.
On 15 December 2022 the Respondent sought an amendment to its confidentiality order request, advising that it no longer sought to include T65.
On 10 January 2023 the Tribunal held an interlocutory Tribunal Directions Hearing.
Legislation
Division 2 of Part IV of the AAT Act deals with the procedures of the Tribunal. Relevantly, Section 33 outlines proceedings before the Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Decision‑maker must assist Tribunal
(1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Parties etc. must assist Tribunal
(1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Section 37(1) of the AAT Act outlines the procedure for lodging of material documents with the Tribunal
Decision‑maker must lodge material documents
(1) Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
Section 35 of the AAT Act provides the Tribunal with the ability to make orders restricting the publication or disclosure of documents.
Section 35(4) of the AAT Act relevant provides:
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
Section 35(5) of the AAT Act relevant provides:
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
Section 39 of the AAT Act provides the parties the right to present their case, ensuring all parties to an application are afforded procedural fairness.
Section 39(1) of the AAT Act relevant provides:
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Contentions
Applicant
To ensure an accurate rendition of the Applicant’s lengthy, considered, and thorough written submissions, the Tribunal has included them in full. The Applicant reiterated his contentions at the hearing.
The Applicant’s submissions prior to the interlocutory hearing, dated 9 January 2023:
As the High Court held in Waterford common law legal privilege is not waived by the AAT Act, although there is some abrogation by s 37(3).
Subject to s 37(3), it is a settled principle that a party in a proceeding in the AAT may resist the production or disclosure of privileged communications.
A privileged communication held by a decision maker that is relevant to the review of the decision by the Tribunal and is held at the time of submitting s 37 documents, however, must be provided to the Tribunal (as opposed to Member hearing) in the first instance.
Where a privileged communication is given to the AAT under s 37(3) by a decision-maker, it is open for the decision maker to apply for a direction under s 35(4) that it may not be disclosed to other parties.
Given the exhortation in s 35(5) of the Act that the Tribunal take as the basis for its consideration the principle that it is desirable that the content of documents lodged with the Tribunal be made available to all the parties, cogent reasons for seeking to withhold the documents would generally need to be presented by a decision-maker for such a s 35(4) order to be granted.
The Respondent's submission to the Tribunal of 12 December 2022 [para 9] states that original unredacted copies of T44, T44(d) and T44(e), which the Respondent claims legal privilege over in full or in part, are "to assist the Tribunal's review by providing relevant material", a purpose seeking to deploy for litigation advantage the material it has claimed privilege on, inconsistent with the maintenance of such privilege. That puts into issue the abrogation of such privilege by having an inconsistent purpose to the maintenance of confidentiality between the client (the Respondent) and the law firms hired in question to produce this legal advice on which privilege is claimed, notwithstanding that the Respondent seeks to bind the Tribunal to treat this material as confidential and not disclose any of it to the Applicant (something difficult to do if it is to be given any weight in proceedings - secret evidence and submissions are an anathema to open justice principles after all.
The Respondent's submission to the Tribunal of 12 December 2022 [para 7] stated that the sole basis of its s 35(4) application is "the confidential material comprises communications that are privileged from production in legal proceedings", and yet it is not the intention of Respondent to resist any use by the Tribunal of these communications - instead the Respondent has openly stated that it wants the Tribunal to use these communications as "relevant material" in its decision [para 9].
That the Respondent was obligated to lodge the communications with the Tribunal in the first instance with the Tribunal is not in question, but privilege is not abrogated or forced to be waived by doing so.
Once provided by a decision maker to the Tribunal a decision maker can maintain privilege by seeking that it remain confidential, including to the hearing member, to preserve the integrity of the confidentiality of the communication (such as requesting the documents to be placed in an envelope or digital folder to be marked not to be open expect by order of the President of the Tribunal).
If a decision maker voluntarily seeks to abrogate privilege by flagging its intention to deploy the otherwise privileged communications for litigation advantage (a purpose inconsistent with the maintenance of privilege), then open justice principles and the exhortation in s 35(5) of the Act require more cogent reasons than referring to a privilege not intended to be maintained as the basis for withholding disclosure to the other parties.
There were only two paths open to the Respondent at the time it provided its s 37 documents, including the T44, T44(d) and T44(e), to the Tribunal (again, distinguishable from deploying before the hearing member for litigation advantage):
* to submit copies to the Tribunal and seek to maintain legal privilege by making them confidential in toto (not to be opened other than by order of the President), which preserves privilege even though required to be handed over; or
* to decide to abrogate privilege by seeking to deploy these previously privileged communications for litigation advantage before the sitting member, in which case the documents have no different status than any other document, given the inconsistent purpose flagged by the Respondent.
Given the intention clearly expressed at paragraph 9 of the Respondent's submission to the Tribunal of 12 December 2022 in regards to these documents, it has opted for the latter and not the former.
The Applicant’s submissions made after the interlocutory hearing, dated 10 January 2023:
In relation to the interlocutory today, it may be of assistance to briefly say that a Tribunal or Court cannot just abrogate privilege or assert it.
…
The Tribunal's limited power to compel production of privileged documents is not intended to enable privileged documents to be put into evidence - it is simply to ensure the Tribunal is aware of all relevant documents and, in the case of any dispute over the existence of privilege, to allow for efficient limited inspection for that purpose. Nothing prevents the Respondent from maintaining privilege, even against the Tribunal (it is only abrogated to the extent that production cannot be resisted), to maintain privilege on these documents and sections.
Deploying the substance, and indeed giving notice of an intention to deploy the substance of privileged communications for litigation advantage, is inconsistent with the maintenance of the confidentiality of privilege however and that is the issue at play here.
As stated in relevant authority, Mann v Carnell [1999] HCA 66, by Gleeson CJ, Gaudron, Gummow and Callinan JJ at [33]:
Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.
Where a party otherwise holding privilege makes a conscious and voluntary decision to deploy the gist or substance of legal advice otherwise subject to privilege for litigation advantage (to put it into proceedings), it waives that privilege because such a purpose is inconsistent with maintaining privilege (the Tribunal, after all, is not a party joined or second respondent - privilege cannot be enlarged to include the Tribunal within the client-advisor confidentiality, like say another law firm of representing solicitors can).
Furthermore, the considerations of fairness in such circumstances also apply in that it would be a contraindication to both deploy and yet keep secret from the replying party something which a party seeks to rely on in proceedings.
The inconsistency here does not extend to examination of the otherwise privileged documents by the Tribunal because it is the circumstances of the intention expressed by the Respondent that is in issue and not the privileged communications itself.
Respondent
The Respondent submitted that:
(a)the lodgement of the confidential material is consistent with the Respondent’s obligations under ss 33(1AA), 37(1)(b) and 37(1AF(b)(i) of the AAT Act;
(b)the Respondent maintains privilege over the documents and has not acted inconsistently with its privilege by lodging the documents with the Tribunal; and
(c)the making of the requested confidentiality order under s 35(4) is within the Tribunal’s power and consistent with the authorities and relied on the following authorities:
(i)Australian Prudential Regulation Authority v VBN [2005] FCA 1868 at [40] (APRA)
(ii)Alpert v Secretary, Department of Defence [2022] FCA 54 (Aplhert)
The Respondent submitted that the order sought was interlocutory and may be revisited at a later stage.
Consideration
Whilst the Tribunal is acutely aware that each case before it must be judged on its respective merits, it does observe the similarities between the Respondent’s request in this matter and that of the Respondent’s in the matter of Alpert. The Tribunal notes the Federal Court upheld the Tribunal’s determination to grant a confidentiality order to the Respondent in Alpert, and it is reminded of Justice Brennan’s wise words that: “Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice”.
At the outset, the Tribunal notes both parties agree the documents in question are legal advice between lawyer and client, which attracts legal professional privilege.
As noted in the Applicant’s second submission to the Tribunal:
A Tribunal or Court may be requested by a party before it, by application, or on its own motion, decide if a document (more specifically communication, as privilege applies to the communication and not documents per se) ever had privilege, which allows the Tribunal or Court to examine an otherwise privileged document, which can result in a finding that no privilege existed - this of itself does not abrogate privilege otherwise. A examination that is a 'necessary evil' so to speak in such circumstances, because such a matter cannot be decided with direct examination.
The above is one of the two fundamental privilege questions that courts and tribunals sometimes deal with, the above being the question of whether claim for privilege has been established. That is not the question the Tribunal is dealing with now as all parties agree that prior to the issue of the cover letter to the s 37 documents, the T44 section, the two attachments to T44 were privileged.
The Tribunal therefore finds that T44, T44(d) and T44(e) are subject to legal professional privilege; and it concurs with and repeats Justice Ryan’s finding in APRA at [40]:
I have already indicated at [8] above my tentative view that s 37(3) of the Act does not "abrogate" privilege, including legal professional privilege. If, as I think, scope remains for the Tribunal to give effect to legal professional privilege attaching to documents required to be lodged by a decision-maker, a decision which denies that effect has a final impact on what the High Court has identified as a substantive common law right or immunity. It is therefore a decision under an enactment notwithstanding that it is procedural in the sense of being made on the way to arriving at the ultimate decision entrusted to the Tribunal.
The Tribunal must next consider whether privileged has been waived by the Respondent in its provision of the documents to the Tribunal. Again, as noted in the Applicant’s second submission to the Tribunal:
The question before the Tribunal now is whether the Respondent has waived privilege by expressing at paragraph 9 of its covering letter to the T-docs that it wanted these otherwise privileged communications to be used "to assist the Tribunal's review", in other words, to be made available as part of the review evidence.
The AAT Act explicitly provides that the decision maker and all parties to a proceeding must use their best endeavours to assist the Tribunal to make its decision. Section 37(1)(b) of the AAT Act also explicitly requires the decision maker to “provide every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal”.
The Tribunal finds the Respondent has not waived any right to claim legal professional privilege over the documents as they have been provided to the Tribunal in accordance with the requirements of the AAT Act as they are documents relevant to the review of the determination.
Further, the Tribunal finds the Respondent did not abrogate any right to claim legal professional privilege over the documents by providing them to the Tribunal at the same time it sought a confidentiality order. The Tribunal needed to view the documents to ascertain whether they formed part of the decision-making process and were therefore required to be lodged in accordance with section 37(1) of the AAT Act. The Tribunal relied upon Justice Collier’s determination in Alpert:
67 Further, and notwithstanding the terms of s 37(3) of the AAT Act, I do not accept that this section abrogates the law in respect of legal professional privilege.
68 Section 37(3) of the AAT Act provides:
Privilege and public interest
...
...
(3) This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.
69 At [57]-[58] of its reasons the Tribunal said:
57. Mr Alpert contended that section 37(3) of the AAT Act abrogated any right to claim legal professional privilege and relied on Buttigieg v Comcare [2017] AATA 1002. In that case Deputy President Forgie considered section 37(3) of the AAT Act and noted that if relevant material was subject to legal professional privilege, there is no obligation to disclose it where the party has applied for an order under section 35(4) of the AAT Act, as the Department has done here, and a document would still be exempt from production on the ground that it was subject to legal professional privilege.
….
70 Plainly, by exercising its power under s 34(5) of the AAT Act, the Tribunal can give effect to a claim for legal professional privilege (as was the case in this proceeding).
71 In my view ground 1 of the notice of appeal is not substantiated.
….
Whether the Tribunal erred in failing to find that any legal professional privilege which attached to document T10.1 had been waived by the first respondent
77 In summary, the applicant submitted that the first respondent had acted inconsistently with the maintenance of privilege in respect of document T10.1:by providing document T10.1 to the OAIC in response to a request for documents and submissions about the issue of whether the preliminary advice was an exempt document for the purposes of s 42 of the FOI Act; and by doing so without submissions to the OAIC in relation to that question, such that document T10.1 must in fact have been the first respondent’s submission about the applicability of s 42 of the FOI Act.
78 In so submitting, the applicant relied on Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 and Queensland Local Government Superannuation Board v Allen [2016] QCA 325 at [52].
79 I do not consider that the Tribunal erred in rejecting this aspect of the applicant’s claim.
80 It is clear that waiver of legal professional privilege may be express or implied, and privilege may in fact be waived notwithstanding that the holder of the privilege did not intend to do so. As the plurality explained in Mann v Carnell at [29]:
... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
81 Nonetheless, as White J recently observed in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511 at [133]
As legal professional privilege is an important substantive common law right, implied waiver is not lightly imposed: Attorney‑General (NT) v Maurice at 487 (Mason and Brennan JJ); Arnold Bloch Leibler (A firm) v Slater & Gordon Limited [2020] FCA 1496 at [66]. Thus, in Expense Reduction, the High Court said that courts will find an imputed waiver of privilege when the action of the privilege holder is “plainly inconsistent” with the maintenance of the confidentiality which the privilege is intended to protect.
(Emphasis added).
82 Turning to the question of whether the act of the first respondent in providing document T10.1 to the OAIC was inconsistent with the maintenance of legal professional privilege, such that the first respondent can be taken to have waived privilege, I accept the submission of the first respondent that it cannot be said that conduct of the first respondent was such that it was plainly inconsistent with the maintenance of the confidentiality in respect of document T10.1.
83 First, to adopt the language of the plurality in Mann v Carnell at [33], it does less than justice to the first respondent’s position to describe what occurred in the present case as disclosure to a third party. In the present case the disclosure was by the first respondent to the OAIC, a statutory office-holder, in the context of its review of a decision of the first respondent. Importantly, s 55DA of the FOI Act specifically provides:
Decision-maker must assist Information Commissioner
In an IC review, the agency or Minister who made the IC reviewable decision must use the agency's or the Minister's best endeavours to assist the Information Commissioner to make his or her decision in relation to the IC review.
(Emphasis added).
84 Plainly it was incumbent on the first respondent to use its best endeavours to assist the OAIC in respect of the review, and it was in this context that document T10.1 was provided by the first respondent to the OAIC.
85 Second, and importantly, document T10.1:
concerned an internal consultation with an in-house legal advisor in relation to the application of s 42 of the FOI Act to the disputed documents;
was disclosed by the first respondent to the OAIC on the express basis that it was to remain confidential and not be disclosed to the applicant; and
was in an email marked “Sensitive: Legal”.
86 The first respondent clearly asserted the maintenance of legal professional privilege in respect of the provision of document T10.1 to the OAIC.
87 Third, although the first respondent did not provide submissions to the OAIC – and indeed the first respondent specifically stated that it did not wish to make submissions to the OAIC in relation to the review – the inference cannot necessarily be drawn that document T10.1 itself was intended to be a submission of the first respondent to the OAIC, as suggested by the applicant. Rather, as the first respondent quite reasonably submitted, the disclosure was consistent with the proposition that the first respondent sought to assist the OAIC by providing all materials that were related to document T10.1 at issue in the review, including the outcome of its own internal consultations as to the status of that document.
88 I also accept the analogy between the requirement that first respondent assist the OAIC, including by the provision of relevant material (in accordance with s 55DA of the FOI Act), and the requirement that the first respondent assist the Tribunal by the provision of relevant material (in accordance with s 37 of the AAT Act). I note further that this analogy was similarly accepted by the Tribunal at [45].
89 While the Tribunal at [43] opined that document T10.1 was provided as ‘“legal comment” which is more akin to a legal submission’, I do not consider that this is a conclusive statement characterising the content of document T10.1.
90 Finally, and critically, it is plain from its reasons that the Tribunal:
correctly set out relevant legal principles in respect of waiver of legal professional privilege (see in particular reasons of the Tribunal at [26]-[33]); and
correctly applied those principles to the facts of this case (see in particular reasons of the Tribunal at [34]-[51]).
91 In my view ground 3 of the supplementary notice of appeal is not substantiated.
Finally, the Tribunal must consider whether the Respondent has sought to deploy the documents to its advantage in these proceedings. The Applicant’s main and repeated contention was his concern over the wording of the Respondent’s confidentiality request submitting:
"to assist the Tribunal's review by providing relevant material", a purpose seeking to deploy for litigation advantage the material it has claimed privilege on, inconsistent with the maintenance of such privilege. That puts into issue the abrogation of such privilege by having an inconsistent purpose to the maintenance of confidentiality between the client (the Respondent) and the law firms hired in question to produce this legal advice on which privilege is claimed…
The Tribunal has not read down the submission to the extent that the Applicant has. It finds nothing suspicious in the wording of the covering email from the Respondent. The Tribunal considers the Respondent was simply attempting to articulate that it was fulfilling its obligations under sections 33 and 37 of the AAT Act.
Section 33 of the AAT Act provides explicitly that the Tribunal is not bound by the rules of evidence and can inform itself in any way possible. The Tribunal, whilst not bound by the rules of evidence, is bound by the rule of law and must ultimately make findings on the basis of material facts. The Tribunal notes the observations of Deputy President S A Forgie in Bolton and Australian Securities and Investments Commission [2018] AATA 4640 at [37]:
The Tribunal’s obligation extends to giving each party a reasonable opportunity to inspect any documents to which it intends to have regard but legal advice obtained by one party or the other is not evidence or other material on which it will make findings on material questions of fact. The legal advice that the parties obtain may frame the way in which they present their cases and make their submissions but it cannot influence the findings the Tribunal makes.
The Tribunal must also ensure that the Applicant is afforded all procedural fairness during the process, to ensure they have every opportunity to present their case. However, as noted by Member Grigg, as the Senior Member was then known, in Alpert and Secretary, Department of Defence [2020] AATA 1632 at [54], the High Court has held that: “Despite the public interest in maintaining procedural fairness, it is also necessary to consider the public interest in upholding legal professional privilege”.
The Tribunal finds that the Respondent has not abrogated its claim to legal professional privilege over the documents by stating it has provided the material to assist the Tribunal. The Tribunal has relied upon both the findings in the original determination and the findings on appeal in Alpert when arriving at this determination.
Member Grigg noted in Alpert and Secretary, Department of Defence (Freedom of information) [2020] AATA 1632 at [30]-[33] and [54]-[56]:
In Bennett (at [68]), Gyles J (Tamberlin J agreeing) held that it was "... well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege”.
In Bennett, the disclosure was from the Australian Government Solicitor to Mr Bennett’s solicitor in circumstances where no confidentiality was maintained.
Mr Hyland, representing the Department, urged the Tribunal to exercise some caution in relation to Bennett. Mr Hyland gave the following reasons:
... it is a NSW Court of Appeal's decision and in particular I would urge some caution around paragraph 71 where the Full Court – the Court of Appeal it quoted from Bennett and in my submission while Bennett is not wrong necessarily, in the sense that Bennett hasn't been directly overruled, Bennett effectively suggested that in any circumstance where the gist of legal advice is disclosed, privilege is waived, and that is not the test.
I agree with Mr Hyland. It was noted in Osland v Secretary, Department of Justice (2008) 234 CLR 275 (“Osland”) (at [34]) that the Court of Appeal in Secretary, Department of Justice v Osland [2007] VSCA 96 noted at that what Gyles J said in Bennett “did not express a rule of general principle”.[12] The Court in Bennett still clearly stated that the appropriate principles to be applied are as set out in Mann. Each case needs to be determined on its own merits and Mann and Osland are the leading High Court authorities on the issue.
…
Despite the public interest in maintaining procedural fairness, it is also necessary to consider the public interest in upholding legal professional privilege. The High Court in Glencore (at [29]), explained that the public interest in upholding legal professional privilege (by encouraging full and frank disclosure by clients to the lawyers) “is paramount to the more general public interest” of the fair conduct of litigation.
Brennan J put it this way in Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 (“Pochi”), at 273:
...an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.
In News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88 the applicant sought access to a schedule of documents which was said to disclose matters claimed to be exempt under the FOI Act. Part of the hearing before the Tribunal was held in the absence of the applicant and his representative. On appeal the majority of the Full Federal Court held that there had been no denial of procedural fairness and that section 39 is expressly subject to section 35.
Justice Collier in Alpert said at [92]-[97]:
Whether the Tribunal erred in finding that there had not been a denial of procedural fairness.
Finally, in respect of the issue of procedural fairness, at [52]-[53] the Tribunal noted the terms of s 35(5) and s 39 of the AAT Act, and the inherent desirability of parties having the opportunity to inspect relevant documents. Materially, s 39 provides:
Submissions--Divisions other than Security Division and Social Services and Child Support Division
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
...
However, plainly s 39 is subject to s 35 of the AAT Act, which specifically empowers the Tribunal to make confidentiality orders. This point was made by the Tribunal at [56], referring in turn to the decision of the Full Court of this Court in News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88 at 97; [1984] FCA 446.
I further note the following observation of the Tribunal in this case:
59. In OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293 Deputy President Boyle noted (at [30]) that it is a common occurrence in FOI matters before the Tribunal that the application will not have a copy of the documents that are the subject of the FOI request, but that this “does not mean that there is a denial of procedural fairness, it is simply an obvious necessity given the nature of the application”.
(Emphasis in original).
For reasons I have already given, I do not accept the submission of the applicant that the only inference to be drawn from the sequence of events concerning the provision by the first respondent of document T10.1 to the OAIC was that the document was in the nature of a submission, which should have been provided to the applicant.
In my view there is no substance to question of law 3 in the supplementary notice of appeal.
Findings of fact
In accordance with these reasons for judgment I also make the following factual findings:
(1) The first respondent has acted consistently with the maintenance of a claim for legal professional privilege over document T10.1.
(2) Document T10.1 is the subject of a valid claim for legal professional privilege, or alternatively any privilege has not been waived.
decision
The Tribunal determines that the following documents or parts thereof maintain legal professional privilege:
(i)The paragraph on p.3 of T44 (T Documents p.493) commencing after “See Attachment D – D2020/019582”
(ii)The paragraph on p.3 of T44 (T Documents p.493) commencing after “See Attachment E – D2020/019583”
(iii)T44 Attachment D – “Legal advice of Holding Redlich”
(iv)T44 Attachment E – “Legal advice of the Australian Government Solicitor (AGS)
The Tribunal, under s 34(5) of the AAT Act, gives continuing effect to this claim for legal professional privilege.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
.....................[sgd]....................................
Associate
Dated: 3 February 2023
Date of hearing:
10 January 2023 Applicant:
Self-Represented Representative for the Respondent:
Ms Elena Arduca Solicitors for the Respondent: Australian Government Solicitor
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