SSPR and Office of the Australian Information Commissioner

This matter concerned an application for a confidentiality order brought by the Respondent before the Administrative Appeals Tribunal. The Applicant sought to access documents that the Respondent claimed were subject to legal professional privilege. The core of the dispute revolved around whether the Respondent had waived this privilege by providing the documents to the Tribunal for the purpose of assisting its review.

The Tribunal was required to determine two primary legal issues. Firstly, whether the documents in question were indeed subject to legal professional privilege. Secondly, and crucially, whether the Respondent's actions in providing these documents to the Tribunal, with the stated intention of assisting the review, constituted a waiver of that privilege.

The Tribunal found that the documents in question, specifically T44, T44(d), and T44(e), were subject to legal professional privilege, a fact agreed upon by both parties. The Tribunal then considered the question of waiver, noting that the Respondent had stated in its cover letter that it wanted the communications to be used "to assist the Tribunal's review". The Tribunal drew a parallel to a previous case, *Alpert*, where the Federal Court upheld the Tribunal's decision to grant a confidentiality order. Applying the principle that inconsistency in decision-making can bring the process into disrepute, the Tribunal concluded that the Respondent had not waived its privilege by providing the documents for the purpose of assisting the review, as this was a necessary step to allow the Tribunal to examine the documents to confirm the privilege claim.

The Tribunal granted the confidentiality order sought by the Respondent.