Taggart and Civil Aviation Safety Authority (Freedom of information)

[2016] AATA 327

Taggart and Civil Aviation Safety Authority (Freedom of information) [2016] AATA 327 (20 May 2016)

Division:  GENERAL DIVISION

File Number:  2015/4552

Re:  ANTHONY TAGGART

APPLICANT

And:CIVIL AVIATION SAFETY AUTHORITY

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  20 May 2016

Place  Melbourne

The Tribunal:

NOTES that, since the decision by the Australian Information Commissioner dated 27 August 2015, the respondent has granted the applicant access to:

1.the whole of Documents 5, 11 and 28; and

2.parts of Documents 3, 15, 25, 32, 34 and 40;

and that the respondent’s decision is incorporated in the following decision.

DECIDES in relation to the decision of the Information Commissioner dated 27 August 2015, to:

1.affirm that decision in so far as it relates to Document 21(a).

2.set aside that decision and substitute a decision that, having regard to the exemption claimed under s 42 of the Freedom of Information Act 1982:

(1)Documents 5, 11 and 28 are not exempt;

(2)In relation to Documents 2, 3, 9, 12, 14, 15, 21(a), 23, 25, 26, 28, 30, 31, 32, 34, 36, 37, 39, 40, 41 and 41(a):

(a)Except for the words appearing after the word “Subject” in the address line of each email, the address block of each email, be it in an email chain or a stand-alone email, down to and including its classification and salutation is not exempt under s 42 of the FOI Act; and

(b)the words from and including the closing words, if any, on each email to the end of the signature block on each email are not exempt under s 42 of the FOI Act.

3.In relation to those parts of Documents 2, 3, 9, 12, 14, 15, 21(a), 23, 25, 26, 28, 30, 31, 32, 34, 36, 37, 39, 40, 41 and 41(a), which are not the subject of cl 2 of this decision, set aside the decision and substitute a decision that, having regard to the exemption claimed under s 42 of the Freedom of Information Act 1982:

Document 3

(1)The content beginning immediately under the salutation and ending before the closing words in the most recent email is exempt;

(2)The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Documents 9, 12 and 14

(1)       The content other than the subject line is exempt;

(2)The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Document 15

(1)The first paragraph of the second email is exempt;

(2)       The second paragraph of the second email is not exempt;

(3)       The subject line is exempt; and

(4)The remainder of the document is not exempt.

Document 23

(1)The substantive paragraphs of the latest email in the email chain are exempt;

(2)       The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Document 25

(1)Those substantive paragraphs in the two earliest emails in the email chain, being those comprising Document 23, are exempt;

(2)       The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Document 26

(1)The document is not exempt; and

(2)The subject line is not exempt.

Documents 30 and 31

(1)Each of the emails is not exempt;

(2)The subject line is not exempt; and

(3)The Attachment to those emails is exempt.

Document 32

(1)The document is not exempt; and

(2)The subject lines are not exempt.

Document 34

(1)The substantive paragraphs in the most recent email in the email chain are exempt; and

(2)The subject lines are not exempt.

Document 36

(1)The substantive paragraphs in each of the emails is exempt; and

(2)The subject lines are not exempt.

Documents 37 and 39

(1)The substantive paragraphs in each of the emails is exempt; and

(2)The subject line is exempt.

Document 40

(1)The most recent email in the email chain is not exempt;

(2)The substantive paragraphs of each of the remaining emails in the email chain are exempt; and

(3)The subject lines are not exempt.

Documents 41 and 41(a)

(1)The substantive paragraphs of Document 41 and the whole of Document 41(a) are exempt; and

(2)The subject lines in Document 41 are exempt.

………[sgd]………….

Deputy President

CATCHWORDS – FREEDOM OF INFORMATION – exemption – legal professional privilege – in-house agency legal services division – whether appropriately independent of remainder of agency – whether communications between legal services division and another division within the agency – made for the dominant purpose of giving or obtaining legal advice – whether waiver of privilege – decision varied.

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 26(1)(b), 33(1)(c), 33(1AA), 34E, 40(5), 43(2), 43(2A), 43(2B)
Civil Aviation Act 1988 ss 8, 9, 73, 74
Evidence Act 1995 ss 3, 4, 119; Div 1 of Part 3.10
Freedom of Information Act 1982 ss 3(1)(b), 3A(2)(b), 4(1), 8(2)(j), 8A(1), 8A(2), 11, 11A, 11A(5), 11B, 22, 22(1)(b), 22(1)(c), 22(1)(d), 31B, 42, 42(1), 42(2), 42(3), 58(2), 61(1)(b), 93A

Civil Aviation Safety Regulations 1988 rr 6.410, 61.415

CASES

AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31
Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46
Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137
Commissioner of Police (NSW) v Guo [2016] FCAFC 62
Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266; 2005 ATC 4903
Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47; 224 FLR 243
Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319; 100 ALR 609; 65 ALJR 500
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Esso Australia Resources Ltd v Sir Daryl Dawson [1999] FCA 363; (1999) 87 FCR 588; 162 ALR 79
Hartogen Energy (in liq) v Australian Gas Light Co [1992] FCA 322; (1992) 36 FCR 557; 109 ALR 177
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; 168 ALR 86; 74 ALJR 378
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128
R v Joyce [2002] NTSC 70; (2002) 173 FLR 322
Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; 32 FLR 469
Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788; 47 AAR 11
Re Philip Morris Pty Ltd and Prime Minister [2011] AATA 556; (2011) 122 ALD 619
Re Taggart and Civil Aviation Safety Authority [2012] AATA 690
Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
Seven Network Ltd v News Ltd [2005] FCA 142
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347

Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673

OTHER MATERIALS

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

Explanatory Memorandum to Freedom of Information Bill 1981

Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 [5.7], [5.134]

REASONS FOR DECISION

1. As the holder of a private pilot licence, Mr Anthony Taggart was required by the Civil Aviation Safety Regulations 1988 (Regulations) to hold either a current class 1 or class 2 medical certificate or a medical exemption for the exercise of the privileges of the licence, before he was authorised to exercise the privileges of his licence.[1]  Before he could exercise the privileges of his commercial private licence, he had to hold a current class 1 medical certificate or the appropriate exemption.[2]  Both requirements were subject to certain exceptions but they are not relevant.  On 18 June 2012, the Civil Aviation and Safety Authority (CASA) refused to issue a class 1 medical certificate to Mr Taggart under Part 67 of the Regulations.  Although it issued a class 2 medical certificate, it imposed the condition of “with safety pilot”.  A differently constituted Tribunal affirmed CASA’s decision later in the year.[3]  In summary, that Tribunal was satisfied that Mr Taggart suffered from the condition of transient global amnesia.  It found that the condition was a medically significant and safety-relevant as it is likely to reduce his ability to exercise the privileges of his licences and to meet the associated duties.

   [1] Regulations; r 6.410

   [2] Regulations; r 61.415

   [3] Re Taggart and Civil Aviation Safety Authority [2012] AATA 690

1. When CASA made the same decision on 4 July 2014, Mr Taggart lodged another application to the Tribunal for its review.  He did so on 29 July 2014 in proceedings No. 2014/3932.  On 3 December 2104, Mr Taggart withdrew his application on the basis that he had settled the proceedings with CASA to his satisfaction.  The settlement led to CASA’s issuing unconditional medical certificates 1 and 2 to Mr Taggart. 

1. On 9 December 2014, Mr Taggart made a request to CASA under the Freedom of Information Act 1982 (FOI Act). He requested access to all documents between 1 September 2014 and 5 December 2014 relating to its decision to issue an unconditional medical certificate to him. In particular, he requested that he be given access to all Board and Avmed (CASA’s Aviation Medicine Branch) notes and instructions to CASA Legal to issue the unrestricted medical certificates and its analysis in relation to reports of Professor John Watson and Dr John Cameron. The officer authorised to make the decision under the FOI Act identified 235 pages of documents meeting his request and claimed exemption under s 42 of the FOI Act in relation to 23 of them on the basis that they are subject to legal professional privilege. Access was granted to a further two but with irrelevant material deleted. These documents are identified in the Schedule at the end of these reasons.

1. The Acting Australian Information Commissioner (IC) affirmed CASA’s decision on 27 August 2015. By the time of the conclusion of the hearing, CASA had given access to Mr Taggart to a further three documents and to parts of a further six documents. Of the documents and parts of documents remaining, only those in relation to which it claimed exemption, or partial exemption, under s 42 remained in issue between the parties. CASA maintained its claim that the remaining documents are exempt under s 42. I have decided to affirm CASA’s decision in some respects and to set it aside in others. With regard to each of the emails, I have decided that, in each instance, that, except for the words appearing after the word “Subject” in the address line of each email (subject line), the address block, be it in an email chain or a stand-alone email, down to and including its classification and salutation is not exempt under s 42 of the FOI Act. I have also decided that the words from and including the closing words, if any, on each email to the end of the signature block on each email are not exempt under s 42 of the FOI Act. I have come to a separate decision in the case of each subject line. CASA’s decision to grant access to three of the documents in full and the parts of six others is incorporated in the decision.

THE SUBMISSIONS

1. CASA maintained its claim for legal professional privilege over the remaining documents.  Mr Taggart submitted that he did not seek access to any legal advice sought by CASA.  All that he wanted was information regarding the decision-making process regarding the way in which Avmed had reached its decision.  He could not understand why CASA needed to obtain legal advice when the decision whether or not to grant him medical certificates was clearly a medical, and not a legal, decision.  CASA Legal dominates CASA and it is not independent of CASA, Mr Taggart submitted.  The documents to which he has had had access do not explain why Avmed changed its policy.  It is inconceivable, Mr Taggart submitted, that there could be any “real harm” flowing to anyone and he contrasted it with the “Windsor File” documenting matters relating to King Edward VIII.  Furthermore, legal professional privilege cannot attach to medical documents.

LEGISLATIVE FRAMEWORK

The right of access created by the FOI Act

1. One of the objects of the FOI Act is to provide for a right of access to documents.[4] The limits of that right are set out in s 11:

   [4] FOI Act; s 3(1)(b)

   “(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.”

1. The right that is created is “subject to this Act” and that draws in various qualifications.  None of those is relevant in this case.  The issues in this case revolve around whether or not the documents Mr Taggart seeks are exempt documents. 

1. There is no question that the documents requested by Mr Taggart are documents of CASA, which is a prescribed authority, and so an agency, within the meaning of s 4(1) of the FOI Act.[5]  The issue is whether the documents are exempt documents.  The expression “exempt document” is defined in s 4(1). Of relevance in this case, is paragraph (a) of that definition. It provides:

   “a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); …”

Section 31B provides that a document is an exempt document for the purposes of Part IV if it is either an exempt document under Division 2 or is a conditionally exempt document under Division 3 and access to the document would, on balance, be contrary to the public interest for the purposes of s 11A(5).[6]

[5] CASA is established by s 8 of the Civil Aviation Act 1988 as a body corporate. In view of its functions set out in s 9, I find that it has been established for a public purpose. Section 9 provides that its function is to conduct the safety regulation of, among other matters, civil air operations in Australian territory and the operation of Australian aircraft outside Australian territory.

[6] Those public interest factors are read with s 11B

1. The right created by s 11 also imposes the corresponding duty on the Minister or agency of whom the request is made. That duty does not, however, prescribe the limits within which a Minister or agency may choose to release documents to the public or to members of the public. Subject to restrictions or prohibitions placed on them by other laws or other considerations, a Minister or agency is at liberty to grant access to a document that is an exempt document under the FOI Act. This is underlined by s 3A(2)(b) when it provides that:

   “The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:

   (a)       …

   (b)in the case of the power to give access to the information or document – whether or not access to the information or document has been requested under section 15.”

1. In his Guidelines made under s 97 of the FOI Act, the IC expressed the same sentiment at [5.7]:

   “          The exemptions in Division 2 of Part IV are not subject to an overriding public interest test. If a document meets the criteria to establish a particular exemption, it is exempt. There is no additional obligation to weigh competing public interests to determine if the document should be released. However, agencies and ministers can always provide access to a document where the law permits, even if the document is exempt (s 3A). The Information Commissioner encourages agencies and ministers to consider in each case whether an exempt document can be released without causing significant harm and to allow access to documents wherever possible.”

1. Consistent with that sentiment, the IC addressed a document which is exempt under s 42. Such a document is not subject to a public interest test for it is not a conditionally exempt document under Division 3 of Part IV but an exempt document under Division 2. Even so, the IC said at [5.134] of the Guidelines:

   “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 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. However, an agency’s decision on the ‘real harm’ criterion is not an issue that can be addressed in an IC review. Section 55L of the FOI Act provides that the Information Commissioner cannot decide that access should be given to exempt matter in a document….”

I have omitted the footnotes from this passage.  In particular, I have omitted the reference to the Direction given by Mr Pat Brazil, the then Secretary of the Attorney-General’s Department dated 2 March 1986 and advising of a Cabinet decision dated June 1985 acknowledging the relevance of a “real harm” criterion (Brazil Direction).

1. These passages from the Guidelines are clearly, and properly, addressed to Minister and agencies and not to the Tribunal. The Tribunal does not have any discretion to grant access to a document once it has found it to be an exempt document. That follows from s 58(2), which provides:

   “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.”

Therefore, I have no authority to examine the documents to determine whether any “real harm” would follow their disclosure. To the extent that they are exempt under s 42, I must find that they are exempt documents and have no discretion in the matter.

Section 42: Legal professional privilege

1. In this case, the documents have been claimed to be exempt under s 42. As s 42 appears in Division 2 of Part IV, they will be exempt if they come within the terms of that section. There is no separate public interest test because Parliament has, for all practical purposes, prescribed that disclosure of a document under the FOI Act in circumstances prescribed in Division 2 is contrary to the public interest.

1. Section 42(1) provides:

   “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.”

   It is subject to qualifications. The first is found in s 42(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.”

1. The second qualification is found in s 42(3) and relates to an agency’s obligation to publish its operational information. That obligation is imposed by s 8(2)(j). “Operational information” of an agency:

   “… is information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).

   Example:The agency’s rules, guidelines, practices and precedents relating to those decisions and recommendations.”[7]

Section 8A(2) goes on to provide that:

“An agency’s operational information does not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency.”

[7] FOI Act; ss 4(1) and 8A(1)

1. Section 42(3) ensures that the legal professional privilege exemption cannot be claimed in respect of a document containing operational information of an agency. It provides:

   A document is not an exempt document under subsection (1) by reason only that:

   (a)the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and

   (b)the information is the operational information of an agency.”

Section 42(3) does not prevent an agency from claiming exemption for a document containing that operational information on a ground other than s 42.

Onus of proof

1. As Mr Taggart made a request to CASA for access to documents.  CASA, as:

   “… the agency to which … the request … was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.”[8]

   [8] FOI Act; s 61(1)(b)

What to do if only part of a document is exempt

1. A finding that a document is an exempt document, whether under Division 1 or Division 2 of the FOI Act, does not lead automatically to the conclusion that access to the entire document is denied to the person requesting it. It may be that only one part of the document contains exempt matter. While that means that it is an exempt document, access to it cannot be refused until thought has been given to two other matters. One is whether it is possible to prepare an edited copy of the document so that it would no longer contain the information that renders it an exempt document and access would have to be given to that edited copy under s 11A of the FOI Act. The other is whether the person seeking access to the document would want it in an edited form. Thought has to be given to both issues in the context of s 22.

1. “Editing” does not mean rewriting the document. Having regard to s 22(1)(b), it means a copy of the document “modified by deletions”.  Even if it is possible to edit the document in this way, an agency’s obligation to carry out the task only arises if:

   “it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:

   (i)        the nature and extent of the modification; and

   (ii)       the resources available to modify the document …”[9]

Even then, the obligation to prepare and grant access to an edited copy does not arise if it is apparent that the person seeking access would decline access to the edited copy.  Whether it is apparent or not will be gleaned from the request or from consultation with the applicant.[10]

[9] FOI Act; s 22(1)(c)

[10] FOI Act; s 22(1)(d)

PRINCIPLES RELATING TO LEGAL PROFESSIONAL PRIVILEGE

1. The wording of s 42 makes it clear that regard must be had to the circumstances in which a document would be privileged from production in legal proceedings on the ground of legal professional privilege. I have looked to when that would be so according to the common law and then considered whether the common law has been altered or overtaken by statutory law in the form of the Evidence Act 1995 (Evidence Act).

What is legal professional privilege? 

1. 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[11] (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.”[12]

   [11] [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

   [12] [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561 at [9]; 552; 564 per Gleeson CJ, Gaudron, Gummow and Hayne JJ

1. 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[13] 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 …”[14]

   [13] [2005] FCA 1247; (2005) 225 ALR 266; 2005 ATC 4903

   [14] [2005] FCA 1247; (2005) 225 ALR 266; 2005 ATC 4903 at [30]; 279; 4915-4916 per Kenny J. Appeal allowed, but not on this point, in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128; Finn, Merkel and Stone JJ

1. 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):[15]

   “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 …”[16]

   [15] [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651

   [16] [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(7)]; 45; 663 (citations omitted) per Young J

1. 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:[17]

   “          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) 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.[18]

   [17] [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46

   [18] [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [107]; 411; 767-768; 71

1. 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.[19]  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. 

   [19] Hartogen Energy (in liq) v Australian Gas Light Co [1992] FCA 322; (1992) 36 FCR 557; 109 ALR 177 at [39-[40]; 568-569; 187 per Gummow J

The rationale underpinning legal professional privilege and section 42

1. The rationale for the privilege appears in the judgment of Advocate General Sir Gordon Slynn in AM & S Europe Ltd v Commission of the European Communities:[20] 

   “Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer.  It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if the proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.”[21]

   [20] [1983] QB 878; 1 All ER 705

   [21] [1983] QB 878; 1 All ER 705 at 913; 732-733

1. There are, of course, competing public interests that would favour disclosure but the balance has been found to favour non-disclosure as the Full Court of the Federal Court explained in Esso Australia Resources Ltd v Sir Daryl Dawson:[22]

   “          Legal professional privilege has long been the subject of controversy.  It operates to exclude evidence not because of its unreliability but to advance other objectives.  Jeremy Bentham regarded the exclusion of probative evidence as ‘one of the most pernicious and most irrational notions that ever found its way into the human mind’: J S Mill (ed), Rationale of Judicial Evidence (1827), pp 193-194.  But the judgment of the common law has been that while the central objective of the legal system is the search for truth, it is more important that some communications be kept secret.  In the case of legal professional privilege, secrecy is defended on the basis that it will promote the administration of justice.  ‘The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence’: Swidler v United States (1998) 141 L ed (2d) 379 at 389 per O’Connor J (in dissent).”[23]

   [22] [1999] FCA 363; (1999) 87 FCR 588; 162 ALR 79; Black CJ, Sundberg and Finkelstein JJ

   [23] [1999] FCA 363; (1999) 87 FCR 588; 162 ALR 79 at [26]; 596; 87

1. In the context of the exemption prescribed in s 42 of the FOI Act, the Explanatory Memorandum to Freedom of Information Bill 1981 states that the exemption:

   “… will prevent freedom of information legislation’s being used to compel the Commonwealth to disclose its hand in pending or likely litigation or to circumvent the ordinary rules of discovery applied by the Courts.” 

Legal professional privilege and the Evidence Act

1. In Re Philip Morris Pty Ltd and Prime Minister[24] (Philip Morris), I considered whether the Evidence Act 1995 (Evidence Act) sheds any light on the way in which the concept of legal professional privilege should be understood in s 42 of the FOI Act. I concluded that:

   “… It is not a matter that can be determined by reference to the provisions of Division 1 of Part 3.10 of Chapter 3 of the Evidence Act 1995 dealing with client legal privilege. That is a concept defined by that legislation which regulates the circumstances in which evidence of it may or may not be adduced. Section 42(1) is careful to refer to the circumstances in which a document is privileged from ‘production’. Production of a document, whether in response to a summons or subpoena, discovery proceedings or a demand for inspection, does not equate with adducing evidence of a document. As Gleeson CJ, Gaudron and Gummow JJ said in Esso Australia Resources Ltd v Commissioner of Taxation[25] (Esso):

   ‘… Documents may be discoverable, or the subject of a demand for inspection, even though they are not admissible in evidence.  They may be significant, for example, because they open up a line of inquiry.  Furthermore, in this country, the application of the privilege is not confined to judicial or quasi-judicial proceedings … [Baker v Campbell (1983) 153 CLR 52]. On any view, the ambit of the common law doctrine of legal professional privilege in Australia exceeds that of the relevant provisions of the Evidence Act. …’[26]”[27] 

   [24] [2011] AATA 556; (2011) 122 ALD 619

   [25] [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123

   [26] [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [4]; 55; 125

   [27] [2011] AATA 556; (2011) 122 ALD 619 at [30]; 628-629

1. I would add to my comment that production of evidence the production of a document in legal proceedings, with which s 42 of the FOI Act is concerned and adducing evidence in a court with which Division 1 of Part 3.10 of the Evidence Act in general, and s 119 in particular, is concerned, are different concepts. The difference was explained by Angel J in R v Joyce:[28]

   “… To adduce evidence means to call the evidence at trial, to tender it by way of documents …  In contrast, to produce the evidence is something different.  To produce includes production on subpoena, or some other form of pre-trial disclosure. …”[29]

   Identifying the relationship that may give rise to legal professional privilege

   [28] [2002] NTSC 70; (2002) 173 FLR 322

   [29] [2002] NTSC 70; (2002) 173 FLR 322 at [24]; 331

   A.        General principles

2. The authorities establish that legal advice must be given by a legal adviser in the context of a professional relationship which secures the advice an independent character.

   (1)“Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. …”[30]

   [30] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(10)]; 46; 664 per Young J. Justice Young then referred to other authorities querying whether they required that the legal adviser be admitted to practice or must hold a current practising certificate. The issues in that case did not turn on whether the Australian Wheat Board’s legal advisers were admitted to practice or not or on their independence or otherwise and his Honour did not address the matter further. I have analysed each of the cases to which he referred in Re Philip Morris and Prime Minister [2011] AATA 556; (2011) 122 ALD 619 at [83]-[100]; 647-654

   (2)“          The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. Commercial reality requires recognition by the courts of the fact that employed legal advisers not practising on their own account may often be involved to some extent in giving advice of a commercial nature related to the giving of legal advice.  Such involvement does not necessarily disqualify the documents relating to that role from privilege.  The matter is necessarily one of fact and degree and involves a weighing of the relative importance of the identified purposes.

   It is well settled that simply to label a document as being ‘prepared for legal advice’ or as ‘privileged’ or as being ‘without prejudice’ is of itself insufficient to justify the privilege.  The Court will look to the substance of the matter, having regard to the content, context and evidence as well as the form of the document.”[31]

   (3)“          The content of the requirement that a legal adviser be independent is understandably less stringent than the requirement that, for example, a judge be independent.  However, it is informed by the same notions of absence of fear or favour.  The concepts of independence and objective impartiality are closely linked … An independent legal adviser is one who can bring a disinterested mind to bear on the subject-matter of the legal advice.  In the words of Brennan J in Waterhouse [sic], what is required is a legal adviser who is able to be ‘professionally detached’ in giving the advice.”[32]

   (4)Admission to practice and a practising certificate may be relevant in determining whether this is so but neither may be determinative:

   “… It seems to us that, while the possession of a certificate is an important factor that would go to establishing the statutory requirement of a confidential communication for the dominant purpose of providing legal advice, to hold that it is conclusive is incorrect.  A legal adviser in government or commercial practice may hold a practising certificate, and yet in some aspects of his or her employment, that person may act in a manner inconsistent with the assertion of legal professional privilege.  It would not be an answer to the complaint about the conduct of the DLO [Defence Legal Officer] who is said to have handed over the files of their advices to the respondent to the superior officer to say that their conduct met professional standards merely because they held a practising certificate.  Equally, a legal adviser may act in an entirely professional manner, generating a claim to client legal privilege, in the absence of a practising certificate.”[33]

   [31] Seven Network Ltd v News Ltd [2005] FCA 142 at [5]-[6] per Tamberlin J

   [32] Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106 at [40]; 115 (citations omitted) per Branson J

   [33] Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47; 224 FLR 243 at [31]; 54-55; 252

   B.       In-house lawyers in government agencies

1. As a general proposition, legal professional privilege may be claimed in legal proceedings in relation to advice sought from and given by a lawyer employed by the government but only if the professional relationship between the lawyer and the government agency seeking advice has the necessary quality of independence.  In Waterford v The Commonwealth of Australia[34] (Waterford), the High Court considered the relationship of client and legal adviser in the context of correspondence passing between the Attorney-General and the Treasurer and between officers of the then Deputy Crown Solicitors’ office and officers of the Treasury.  Mason and Wilson JJ held that:

   “… there is no reason to place legal officers in government employment outside the bounds of legal professional privilege.  The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. … To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers.  Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact.  It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.”[35]

   [34] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; Mason, Wilson and Brennan JJ and Deane and Dawson JJ dissenting

   [35] (1987) 163 CLR 54; 71 ALR 673 at 62; 677

1. Brennan J was more circumscribed in his views and accepted only that officers of the Attorney-General’s Department or of the Commonwealth Crown Solicitor’s Office did not lack the independence that is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them.  They had given advice to officers of The Treasury.  The evidence to which he referred in reaching that conclusion was that:

   “The Commonwealth, State and Territorial statutes under which officers are employed in the offices of Crown Solicitors, the Australian Government Solicitor and in the Departments of the respective Attorneys-General give them a certain security of tenure and those statutes would be construed, in the absence of contrary express provisions, as leaving these officers completely professionally independent.  The protection of the respective Attorneys-General, as the first Law Officers of the Crown, should extend to all of these officers, so that none of them will be affected in the performance of their professional duty by any sense of loyalty or duty to, or hope of reward from, the government of the day.  Counsel for the appellant expressly declined to argue that the Department of the Treasury’s advisers in this case lacked the independence which the safeguards to which Mason J. and I referred are intended to secure.  I would therefore reject the submission that the officers of the Attorney-General's Department or the Commonwealth Crown Solicitor’s Office lack the independence which is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them. …”[36]

   [36] (1987) 163 CLR 54; 71 ALR 673 at 72-73; 685

1. The independence or otherwise of legal advice given by the Legal and Advice Branch of the Office of Workplace Services (OWS) arose in the case of Rilstone v BP Australia Pty Ltd[37] (Rilstone).  Besanko J found that the OWS was an executive agency within the responsibility of the Minister for Employment and Workplace Relations.  The documents over which legal professional privilege was claimed had been created during the course of an investigation carried out by the OWS.  They were created in the exercise of statutory investigatory powers under the Workplace Relations Act 1996. 

   [37] [2007] FCA 1557

1. Besanko J was not satisfied on the evidence that the documents were created for the dominant purpose of seeking legal advice from OWS’s Legal and Advice Branch but he was satisfied on the evidence that it had the necessary degree of independence.  His Honour referred to the evidence that the Legal and Advice Branch was the Workplace Ombudsman’s central legal division providing nationwide legal advice to inspectors and senior management.  It was responsible for engaging and instructing external legal providers such as the Australian Government Solicitor and other legal providers engaged by the Workplace Ombudsman.  He concluded:

   “In this case the applicant might have put forward more detailed evidence as to how the Legal and Advice Branch operated and its role in the OWS organisation.  However, in my opinion, this case has similarities with the facts in Waterford and … the necessary degree of independence has been established or, put another way, it has been established that the Legal and Advice Branch was a legal adviser for the purposes of legal professional privilege.”[38]

   [38] [2007] FCA 1557 at [26]

1. In Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2)[39] (Telstra v MCITA), Graham J came to the contrary conclusion in relation to advice given by lawyers who were employees of Telstra.  He noted that:

   “          No evidence whatsoever has been led by Telstra to establish the role which the various legal practitioners performed within Telstra.  In particular, no evidence has been advanced to disclose the measure of independence of the legal practitioners in question and their ability to provide impartial legal advice, given the roles they have had to perform.”[40]

   and continued:

   “In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer.  On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied.”[41]

   [39] [2007] FCA 1445

   [40] [2007] FCA 1445 at [12]

   [41] [2007] FCA 1445 at [35]

1. Later that same year, Branson J considered the same question in Rich v Harrington[42] in relation to advice given by the OGC located in Price Waterhouse Coopers (PWC).  Her Honour found that the person holding the position of General Counsel was a partner of PWC and, as did each of the solicitors in the OGC, held a current practising certificate.  That Office operated as a separate unit within PWC and legal advice was provided with the same level of objectivity as would be expected of external lawyers.  It is located separately from PWC’s business units, its documents and files are maintained separately and its offices are capable of being locked.  The office provided legal advice and legal services to PWC on all issues that touched the firm or required legal advice including regulatory enquiries, litigation, contract reviews and transactions.  When necessary and appropriate, it briefed external lawyers and counsel to support it in its role and to provide external legal advice and services.

   [42] [2007] FCA 1987; (2007) 245 ALR 106

1. The only comment made by Branson J on this evidence was that:

   “… It may be that as in-house lawyers, including corporate counsel, play an increasingly important role in advising and providing other legal services to their employers and firms, the common law has come to accept that the requisite independence can be ensured by measures of the kind adopted by OGC …”[43]

   [43] [2007] FCA 1987; (2007) 245 ALR 106 at [56]; 119

2. Her Honour declined, however, to decide whether the measures were enough in that case because she had to decide that question in the context of the particular advice that was claimed to attract legal professional privilege.  The advice was given in respect of allegations and claims given by one of PWC’s partners, Ms Rich, against others in the firm.  Branson J said:

   “58       In reaching a decision as to whether the relationship between OGC and the respondents was such as to secure to OGC’s advice concerning
   Ms Rich’s allegations and claims an independent character, I am not required to speculate about how General Counsel, or other solicitors in OGC, in fact approached the giving of that advice (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [7]). It may be that General Counsel and each solicitor in OGC was fully conscious of, and capable of avoiding, the insidious influences of factors such as loyalty to individual partners and to the firm, including its leadership, concern for the reputation of the firm and the reputations of individual partners in the firm and other like matters. The critical question is whether the relationship between OGC and the respondents with respect to Ms Rich’s allegations was one of professional detachment.

   59       To answer the above question it is necessary to give consideration to the nature of Ms Rich’s allegations and the significance that they might have for General Counsel and the OGC generally.  As mentioned above, they were made by one partner against other partners. It seems uncontroversial that they were of a kind capable of tarnishing the reputation of the firm of which the OGC is a part.  They cast aspersions of a personal, rather than a purely professional kind, on the General Counsel’s partners including those partners who comprised the leadership of her firm.  The General Counsel and the Deputy General Counsel were themselves likely respondents in the litigation in prospect. Because of its likely subject matter, that litigation, should it eventuate, could reasonably be expected to attract a high level of media interest of a relatively sensational kind. For these reasons I conclude that
   Ms Rich’s allegations were by reason of their content inherently likely to engage the personal loyalties and the duties and interests of all partners of PwC – and probably many employees of the firm as well.

   60       I therefore conclude that, having regard to the nature and significance of the allegations raised by Ms Rich in her letter of 2 July 2004, the relationship between OGC and the respondents was not such as to secure the advice of the OGC concerning Ms Rich’s allegations the objectively independent character necessary to support the respondents’ claim of client legal privilege.  The OGC was not in a position to give professionally detached advice to the respondents concerning allegations of the character of those made by Ms Rich.”[44]

   [44] [2007] FCA 1987; (2007) 245 ALR 106 at [58]-[60]; 119-120

1. Once the necessary degree of independence has been established and:

   “… communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications ….  In Kennedy v Wallace,^[[45]] Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.

   …”[46]

   [45] (2004) 208 ALR 424 per Black CJ and Emmett J

   [46] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651at [44(4)]; 45; 663

   Identifying documents that may be subject to legal professional privilege

1. Legal advice is not given in a vacuum but in a context of events or matters passed or contemplated.  Information about those events or matters may need to be gathered by others and that information may include the views of other professionals on them.  Legal professional privilege recognises these contextual realities and:

   “…  extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client’s legal adviser to enable him or her to advise … The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer …”[47]

   [47] [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(9)]; 46; 663-664 citations omitted

1. Three points arise from this statement:

   (1)The actual form of the communication or the recording of the legal advice is irrelevant.[48]

   (a)“… [L]egal professional privilege extends to any document prepared either by the client or the legal adviser from which the nature of the advice sought, or given, might be inferred …”.[49]

   (b)“… [I]t must be kept firmly in mind that the privilege protects confidential communications, and not documents as such.  As Dawson J said in Propend at 515, ‘to say that a document is privileged is merely a shorthand way of saying that the communication constituted by the document is privileged’ …”[50]

   (c)“… The question whether privileged communications will be disclosed by virtue of the disclosure of another document, such as a draft pleading, draft agreement or draft witness statement, raises a question of objective fact that depends on what the other document actually states or conveys, either explicitly or as a matter of reasonable inference. … [T]he question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication.”[51]

   (2)The fact that the privilege extends to notes and other material brought into existence for the purpose of communication to the lawyer means that documents that are copied for that purpose may come within it even though the original documents were not written for that purpose and will not themselves be subject to the privilege.[52] 

   (3)A person may object to producing part of a document on the ground of legal professional privilege provided it is possible to isolate the privileged material from the remainder of the document.[53]

   [48] Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 at 553; 584; 491 per McHugh J

   [49] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [131]; 417; 773; 76 per Young J

   [50] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [102]; 410; 766-767; 69-70 per Young J

   [51] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [132]; 417; 773; 76-77 per Young J

   [52] See Propend [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; 71 ALJR 327 at 509-510; 549-550; 331 per Brennan CJ; citations omitted

   [53] Grofam Pty Ltd v ANZ Banking Group (1993) 43 FCR 408; 116 ALR 535; 26 ATR 174; 93 ATC 4672 at 414-415; 542-543; 180-181; 4,677-4,678

2. Sitting with Deputy President Groom, the Tribunal’s previous President, Downes J, decided in Re Farnaby and Military Rehabilitation and Compensation Commission[54] (Farnaby) that the arm of legal professional privilege that is often described as “litigation privilege”:

   “… does apply in the Administrative Appeals Tribunal, unless there is a clearly expressed abrogation of the privilege in the legislation governing the application. We regret that we do not agree with the conclusion or reasoning of Bergin J [in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530; (2006) 233 ALR 369; 200 FLR 309].  Claims for litigation privilege in the Tribunal should be dealt with in accordance with these reasons.”[55]

   [54] [2007] AATA 1792; (2007) 97 ALD 788; 47 AAR 11

   [55] [2007] AATA 1792; (2007) 97 ALD 788; 47 AAR 11 at [3]; 789; 13

3. The Tribunal analysed both the reasoning of Bergin J and of Young J in AWB Limited v Honourable Terence Rhoderic Hudson Cole, as well as of the High Court in cases such as Waterford and Corporate Affairs Commission (NSW) v Yuill.[56] It noted that it had not been argued that the statutory privilege provided for in s 119 of the Evidence Act 1995 (Evidence Act) applied but expressed the view in any event that it did not because the Tribunal is not bound by the rules of evidence[57] and it is not “a federal court”.[58]  The Tribunal considered the characteristics of proceedings in the Tribunal.  Unlike a commission of inquiry which investigates, determines facts, reports and recommends but does not determine rights or obligations, the Tribunal’s decisions have legally binding consequences.  Other characteristics of the Tribunal on which the Tribunal relied include the parties’ having a right to be represented and there being at least two parties to each proceeding. 

[56] [1991] HCA 28; (1991) 172 CLR 319; 100 ALR 609; 65 ALJR 500

[57] Administrative Appeals Tribunal Act 1975 (AAT Act); s 33(1)(c)

[58] Evidence Act; ss 3 and 4. See [2007] AATA 1792; (2007) 97 ALD 788; 47 AAR 11 at [[7]; 790; 13

1. Those statements remain true in the Tribunal’s General Division and in its Divisions other than the Social Services and Child Support Division (SSCSD) and the Migration Review Division (MRD).  The Divisions other than the SSCSD and the MRD represent the Tribunal in the form in which it was considered in Farnaby.  They do not necessarily represent the situation in the SSCSD or the MRD but other characteristics to which it referred do continue to apply.  They include the requirement that the Tribunal has power to take evidence on oath or affirmation, it must give reasons for its decision which a party may require to be in writing[59] and, although not bound by the rules of evidence, is required to act on evidence which it admits.[60]  Mandatory characteristics of this sort parallel litigation in the courts and are consistent with the view expressed by Brennan J sitting as the Tribunal’s President in Re Becker and Minister for Immigration and Ethnic Affairs[61] that:

   “The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive (see Pt II of the Act).  Its function is to decide appeals, not to advise the Executive.”[62]

   [59] AAT Act; ss 43(2) and (2A)

   [60] AAT Act; ss 34E, 40(5) and 43(2B)

   [61] [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; 32 FLR 469

   [62] [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; 32 FLR 469 at 161; 699; 472

2. Characteristics of that sort remain in the Tribunal in its post 1 July 2015 amalgamated form.  It seems to me that they remain in sufficient degree to reach the same conclusion as was reached by the Tribunal in Farnaby.  That is to say, communications between a legal adviser and his or her client for the purpose of proceedings in the Tribunal are privileged from production.  Although the Full Court in Commissioner of Police (NSW) v Guo[63] was concerned with whether common law public interest immunity applies to or in the Tribunal in respect of oral evidence sought to be adduced, its conclusion that it does so is consistent with the conclusion reached in Farnaby.

   [63] [2016] FCAFC 62; Collier, Robertson and Griffiths JJ

Legal professional privilege may not be claimed if it has been waived

1. The person entitled to claim the privilege may waive it, either intentionally or by implication:[64] 

   [64] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J

   (1)“… [W]here there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”[65]

   [65] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and see also Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478-485 per Hunt CJ at CL

   (2)“… 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.”[66]

   [66] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [29]; 13; 94; 384 per Gleeson CJ, Gaudron, Gummow and Callinan JJ

   (3)“… [I]t is well established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice.”[67]

   [67] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [163]; 76; 693 (citations omitted)

   (4)The mere fact of disclosure to a third person, though, does not of itself amount to waiver[68] but:

   “          Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case.  As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd^[[69]], questions of waiver are matters of fact and degree. …”.[70]

   (5)Mere reference to legal advice in another document such as pleadings in civil litigation does not of itself amount to waiver of the privilege although full disclosure of its contents will.[71]

   (6)“          It would, of course, be a different case if the documents and information that the Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact that documents and information were disclosed under compulsion would be very relevant to the question whether the person claiming privilege had engaged in inconsistent conduct. There is, moreover, authority to the effect that a production of documents or evidence under compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 3 All ER 97; Trans America Computer Co Inc v IBM Corp 573 F (2d) 646 at 651 (1978).”[72]

   (7)“… If it is conceded, as it must be, that a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings (that is the whole reason why it is filed and served), it follows that it is conduct ‘inconsistent with the maintenance of the confidentiality which the privilege is intended to protect’ (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]) and an implied waiver of privilege has occurred. … [T]he filing and service operates as a complete, not simply limited, waiver of legal privilege.

   17       To put the proposition in different terms, if ‘it is in the other side’s power to destroy the privilege entirely,’ … it can no longer be said that the original holder can reasonably expect any continued confidentiality.   In such circumstances, the existence of the privilege cannot be made to turn on whether the other side in fact places the document into evidence or uses it for examination - either legal privilege exists or it does not, and either the client controls it or they do not: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [21] … In other words, once it is found that the original holder of the privilege cannot control further dissemination of the document, the privilege is destroyed as a matter of law without further inquiry into whether the communication was in fact disseminated.

   18       This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document.  So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 96 (stating that the waiver ‘can be limited so that it applies only in relation to particular persons, materials or purposes’); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] for the proposition that disclosure ‘for a limited and specific purpose’ will not lead to loss of the privilege).”[73]          

   [68] Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 355 per Jordan CJ cited with approval in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [30]; 14; 95; 385 per Gleeson CJ, Gaudron, Gummow and Callinan JJ

   [69] [2005] FCA 356; (2005) 65 IPR 442 at [26]; 447

   [70] Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288 at [49]; 298-299; 17; 1302

   [71] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ

   [72] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [138]; 69; 686

   [73] Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137 at [16]-[18]; 142-143

CONSIDERATION

Did CASA’s Legal Services Division and CASA generally have a professional relationship of lawyer and client?

1. In this section of my reasons, I consider whether those lawyers in CASA’s LSD have a professional relationship with officers in other areas of CASA of a sort which secures to their advice an independent character of the sort referred to in cases such as Waterford.  A relationship of that sort is necessary before consideration can be given to whether communications between those lawyers and other officers would be protected by legal professional privilege in an appropriate case notwithstanding that they are employed by the same body.

A.The evidence

1. Mr Joseph Rule is employed by CASA as the Manager of the Legal Branch, which is located within its Legal Services Division (LSD).  He described the staffing and functions of the Legal Branch.  Mr Rule described the functions of the Legal Branch as:

   “(a)     provide legal advice to staff of the Authority in relation to all regulatory, administrative, corporate and other legal issues affecting the day to day operations;

   (b)represent CASA in proceedings before Courts, Tribunals or Commissions in which it is a party or seeks to be a party;

   (c)supervise the conduct of litigation conducted on CASA’s behalf by its insurers;

   (d)oversight CASA’s procurement policies and activities;

   (e)manage compliance with CASA’s obligations under the Freedom of Information and Privacy Acts; and

   (f)draft legislative and non-legislative instruments which CASA is empowered to make under the governing legislation.”[74]

   [74] Exhibit 1 at [7]

2. The Legal Branch has 12 lawyers, two of whom are based in Brisbane and the remainder in Canberra.  Each is admitted to practise in an Australian State or Territory and each is employed by CASA.  Mr Rule was admitted to practice as a solicitor in the Supreme Court of the Australian Capital Territory on 14 December 2001.  Since 16 July 2014, he has held an unrestricted government practising certificate issued by the ACT Law Society.  He reports to the Executive Manager of the LSD and CASA’s General Counsel, Mr Adam Anastasi.  Mr Anastasi was first admitted to practice in the Supreme Court of New South Wales on 16 December 1992.  Between 16 July 2014 and 30 June 2015 and from 1 July 2015 to date, he has held an unrestricted government practising certificate issued by the New South Wales Law Society.

3. Mr Anastasi reports to the Director of Aviation Safety (DAS). The DAS is appointed under s 74 of the Civil Aviation Act 1988 whose duties are, under s 73, to head CASA. He is also responsible for approving all of CASA’s non-regulatory policies. He signed DAS-PN014-2-9 as a CASA Non-Regulatory Policy relating to requests for, and provision of, legal advice and assistance from the LSD (Protocol). In the section headed “Purpose of the Policy” it is said:

   “Consistent with good governance and best practice in the provision of legal services in the public and private sectors alike, LSD is the single and exclusive source from or through which legal advice or assistance for all CASA matters is properly sought and obtained.  The purpose of this policy is to ensure the integrity of that arrangement.”[75]

   The detail of the policy that follows reflects this purpose.

   [75] Exhibit 1; JR4 at 13-14

4. Mr Rule said that the DAS has very little to do with LSD on a day to day basis.  His communication is with the General Counsel and not with individual lawyers in the LSD.  The DAS would not direct the General Counsel, Mr Rule said.  If it were the case that the DAS were not happy with the advice given by the General Counsel, he might ask the General Counsel to seek advice from an external lawyer.

5. In response to Mr Taggart, Mr Rule said that the LSD does not act against CASA as it is not part of its function to do so.  It is not part of its functions to make decisions on behalf of CASA and none of its staff holds delegations to that effect.  Therefore, in the case of decisions such as those relating to medical certificates, the relevant decisions are made by officers in CASA’s Aviation Medicine Branch.  If an application is lodged in the Tribunal for review of those decisions, the Legal Branch becomes involved.  The Legal Branch is not involved in the majority of decisions of which there are thousands each year.  There are more than 30,000 pilots in Australia.  When the Legal Branch does become involved, it may need to see the whole of the relevant CASA file if the decision is being reviewed in the Tribunal.  In other cases, it may need to see only part it. 

1. Access to the files created and maintained by LSD is limited to officers of LSD, Mr Rule said.  Legal advice is generally given in emails.  Files are given a security classification when they are created.  The notation on the file limits access to members of LSD.  When asked whether others would have access, Mr Rule said that the reality would be that, if a senior person wanted to see advice that had been given, a copy would be produced.  The area in which the LSD is located has levels of security.  That area is accessible by other CASA officers during the day but those officers would not be permitted to look at the files on the LSD officers’ desks. 

1. The computers are password protected and would require the password to be entered after a short period, say ten minutes, of idle time.  Officers of LSD are allocated their own computers and use by another officer would be noticed.  CASA has policies and protocols regarding the protection of its IT facilities including prohibitions on sharing passwords and requiring officers to lock their computers if they leave their desks.  Certainly, the presence of senior members of Avmed in LSD is not unusual but the presence of any person without invitation would be unprecedented, Mr Rule said.  After hours, only members of the LSD have access.  Paper files are checked out to the lawyer who has conduct of a particular matter and are stored at the desk of that lawyer.  There are regular checks to ensure that CASA’s clean desk policy is maintained. 

1. Once LSD has given advice to another area of CASA, Mr Rule agreed with Mr Taggart that LSD has no control over that document.  LSD must rely on that area and its officers to comply with CASA’s policy. 

B.Is the relationship between CASA’s LSD and CASA generally a professional relationship securing its advice an independent character?

1. On the basis of the evidence of Mr Rule, I am satisfied that the function of the LSD is to provide legal advice to other areas of CASA and, unless legal advice is sought from an external source, to be the only source of that advice.  Even when it is ultimately sought from an external source, requests are directed to the LSD in the first instance and it is for the appropriate manager in LSD to decide whether or not the assistance of a member of CASA’s external legal panel is necessary.

2. Although CASA’s General Counsel reports to its DAS, I also find that it is the DAS who has set in place the Protocol directed to ensuring that LSD is the sole provider of legal services to the organisation whether through its own resources or by managing the reference to the external panel.  The protocol supports that by a detailed table setting out those who may request legal advice in specified circumstances and those to whom the request should be made.  In some cases, the initial request should be made to the Manager, Legal Branch and, after the matter has been assigned to a lawyer in LSD, to that lawyer.  In some instances, the Executive Manager of LSD is to be copied into the initial request.  In some instances, the initial request is made to the Executive Manager of LSD or the Manager, Legislative Drafting Branch.  In each of those instances, subsequent exchanges are conducted between a CASA officer and the LSD lawyer assigned to the matter.  Only in relation to requests for access to information of various sorts are the requests directed to, and dealt with, an officer other than a LSD lawyer.  In that case, it is the Freedom of Information Coordinator. 

1. No part of the Protocol suggests any interference by the DAS or any other CASA officer in the operations of CASA’s LSD.  That is consistent with Mr Rule’s evidence regarding the way in which LSD’s files are kept and access to them restricted.  It is also consistent with his evidence regarding the limits of access to the LSD’s work area by other CASA officers.  The evidence satisfies me that the LSD operates independently of, and without the direction of, other officers of CASA.  It operates as a legal adviser and its work is directed to various aspects of the provision of legal services in a regulatory authority.  I am satisfied that, despite their being employed by the same agency, there is an arm’s length professional relationship between lawyers working in LSD and officers working in other areas of CASA of such a sort that LSD’s advice has an independent character of the sort that would exist between a private legal firm and its clients.  Therefore, I find that the relationship between LSD lawyers and other officers in CASA is such that it may give rise to legal professional privilege.

   Would the documents be privileged from production in legal proceedings on the ground of legal professional privilege?

2. Mr Rule gave evidence that each of the documents for which exemption has been claimed was created following Mr Taggart’s lodging his application for review in proceedings No. 2014/3932.  He said that, upon receiving notice of the application, he had assigned the matter to one of the Legal Branch’s lawyers, Ms Carol Swain and continued:

   “Each of the relevant documents involved a communication entered into between CASA Lawyers, or between CASA Lawyers and other CASA staff (principally, staff of its Aviation Medicine Branch) or between CASA Lawyers and a third party (a specialist medical practitioner), for the purposes of the provision by the LSD, of legal services to CASA as the respondent to the applicant’s application to the Tribunal in proceedings 2014/3932.  This included the seeking of specialist medical opinions for the purposes of the proceeding, as well as the provision of legal advice to CASA officers concerning the conduct and disposition of the proceedings.”[76]

   [76] Exhibit 1 at [15]

1. I agree that the documents for which exemption has been claimed meet Mr Rule’s description.  That fact does not, in itself, mean that they would be exempt from production in legal proceedings on the ground of legal professional privilege.  The mere fact that there has been a communication between a lawyer and client is not privileged.  The identity of the lawyer and that of the client are not privileged.  As was said in Daniels Corporation, it is the communication between lawyer and client for the relevant dominant purpose that attracts the privilege. Nothing more. Therefore, I have found that the names of the lawyers in CASA’s LSD and those officers with whom they communicated in other parts of CASA are not exempt under s 42. That includes information appearing on each email showing the name and details of the senders and recipients as well as the date and time that the email was sent. That finding applies to each of the documents for which exemption has been claimed. It means that I find, in relation to each, that:

   (1)Except for the words appearing after the word “Subject” in the address line of each email, the address block of each email, be it in an email chain or a stand-alone email, down to and including its classification and salutation[77] is not exempt under s 42 of the FOI Act; and

   (2)The words from and including the closing words,[78] if any, on each email to the end of the signature block on each email is not exempt under s 42 of the FOI Act.

   [77] “… a conventional form of greeting in a letter, such as ‘Dear Sir or Madam’ …”: Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [78] Closing words include those of the following sort: “Thank you”, “Sincerely”, “Yours faithfully”, “Regards”, “Kind Regards” etc.  The precise words may, or may not, have been used in the documents.

1. I will now look at the substantive content of each document and the “Subject” line in each in the context of CASA’s claim for legal professional privilege.  If I find that I am satisfied that those documents contain matter that make them exempt documents, I am satisfied that it is reasonably practicable to prepare an edited copy from which that matter has been deleted leaving the address and signature blocks and any other matter that I do not find to be exempt.  CASA will be required to give access to that edited copy.

1. That may leave some documents with the address section of the email down to and including the subject line, the salutation and the signature block but with nothing in between.  That is not relevant and simply a reflection of the way in which the FOI Act operates.  I am satisfied that it is not apparent that Mr Taggart would decline access to an edited copy leaving only those sections of the emails.  Mr Taggart gave every indication that he is keen to have access to all and any part of the documents to which he is entitled. 

Document 2

1. On the basis of its content, I find that Document 2 is written in the context of the Tribunal’s previous proceedings numbered 2014/3932. I find that it is written by a CASA lawyer to two other CASA lawyers and an officer of Avmed. It is written for a purpose connected with CASA’s representation in those proceedings and only for that purpose. I am satisfied that it would be exempt from production in legal proceedings on the ground of legal professional privilege and is exempt under s 42.

1. The subject matter is a broad description of that content but does not itself reveal the substance of any communication between the CASA lawyer and the other recipients of the email. Therefore, I have concluded that the subject line of the email is not exempt under s 42 but that the content of the email beginning immediately under the salutation and ending before the closing words is exempt.

Document 3

1. Although it is not the role of a decision-maker in the Tribunal’s proceedings to defend its decision, it is its role to use its best endeavours to assist it to make its decision in relation to the proceedings.[79]  The Tribunal’s obligation in making its decision is to make the correct or preferable decision being the decision that is correct in law and on the evidence or, if more than one decision may be correctly made, the preferable decision.  As part of its role, a decision-maker must consider both the relevant law and the evidence.  It must consider whether further evidence or advice is required, whether concessions should be made or a different decision made.  These matters will be considered with its obligation to the Tribunal in mind.  I would expect that an applicant would be mirroring that process of seeking advice, gathering and weighing evidence and considering the likelihood of success of one course or another. 

   [79] AAT Act; s 33(1AA)

1. Document 3, I find, is a chain of emails between CASA lawyers. Exemption is claimed only in relation to the final email in the chain. I am satisfied that the content of the email is written by a CASA lawyer to another CASA lawyer and copied to a third. It is not a communication between a CASA lawyer and a CASA officer outside LSD but a communication purely within LSD. It is, however, a communication that has been made for the purpose of giving Avmed advice in the proceedings in the Tribunal. Therefore, I am satisfied that its content beginning immediately under the salutation and ending before the closing words is exempt under s 42.

1. The description of the subject matter underlines the purpose for which the document was written. I am not satisfied, however, that it is exempt under s 42. It does no more than reveal the broad subject nature of the communication but not the content of the communication. Reference is already made to that subject matter in the earlier emails to which CASA has already given access in the course of the hearing. Therefore, I am not satisfied that the subject line in the email is exempt under s 42.

Document 9

1. Document 9, I find is a chain of emails between a CASA lawyer and an officer in Avmed. The second in the chain is copied to other Avmed officers. I am satisfied that they reveal communications between a CASA lawyer and the Avmed client in relation to the conduct of the proceedings in the Tribunal. I am satisfied that the communications have been made solely for that purpose and are exempt under s 42.

1. The subject line in each again describes the context of the communication. The subject line describes something that came about later the same day. CASA disclosed its coming about when it gave access to Document 11 and its attachment. In view of both those matters, I am not satisfied that the subject line comes within the s 42 exemption. First, I am not satisfied that the subject line discloses the communication that is made in the email. Second, if it does so and were subject to legal professional privilege, I find that CASA waived that privilege when it gave access to Document 11 and the attachment.

Documents 12 and 14

1. Documents 12 and 14 are both chains of emails. For the reasons I have given in relation to Document 9, I am satisfied that their content is exempt under s 42 but that their subject lines are not.

Document 15

1. With one reservation, I reach the same conclusion in relation to the content of the email in the chain of emails in Document 15 to which CASA has not given Mr Taggart access. The reservation relates to the second paragraph of the earlier email. It is not, I find, related to the conduct of the Tribunal proceedings or a communication of the sort that attracts legal professional privilege. That second paragraph is not exempt under s 42. Given that it is a stand-alone paragraph, I am satisfied that it is reasonably practicable to prepare an edited copy from which the remainder of the email, which is exempt, has been deleted. I am also satisfied that Mr Taggart is keen to have access to all and any part of the documents to which he is entitled. It is not apparent that he would decline access to an edited copy. Therefore, I find that Mr Taggart should be granted access to the second paragraph of the email to which he has not been given access in Document 15. The first paragraph of that email is exempt under s 42 and Mr Taggart is not entitled to access to it.

1. I am satisfied that the subject line of the emails in the email chain is exempt as it discloses the nature of a communication made by a CASA legal officer for the dominant purpose of giving legal advice to CASA. It is exempt under s 42.

Document 21(a)

1. Document 21(a) is, as described in the Schedule, a letter to Dr Cameron. It is signed by a lawyer in CASA’s LSD. In light of the material in the documents for which exemption is claimed, I find that the letter has been written in the course of LSD’s duties to advise its client for the purposes of the Tribunal proceedings. It is exempt under s 42 of the FOI Act.

Document 23

1. Exemption is claimed for the top, or latest, email in a chain of emails. It is written by a CASA lawyer to CASA officers in Avmed and copied to other CASA lawyers. I am satisfied that the two substantive paragraphs of the document are exempt under s 42. The communication is, I find, part of the continuing discourse that CASA LSD and Avmed had in relation to the proceedings in the Tribunal regarding Mr Taggart. LSD’s role in that discourse was to provide legal advice to Avmed. Document 23, I find, was written by an LSD in carrying out the duties of its role of providing that legal advice. I am satisfied that it would be privileged from production in legal proceedings on the ground of legal professional privilege. Therefore I find that the two substantive paragraphs of the latest email are exempt under s 42.

1. I am not satisfied that the subject line is exempt.  It does not reveal any communication between lawyer and client. 

Document 25

1. During the course of the hearing, CASA granted access to the first, or latest, in the chain of emails. It continued its claim for exemption for the email in the chain that is the same as the email for which it claimed exemption as part of Document 23. For the same reasons, I find that the two substantive paragraphs of that email are exempt under s 42 but that its subject line is not.

Document 26

1. Exemption is claimed for the last two, or latest two, emails of a chain of emails. I am not satisfied that either of those emails would be exempt from production in legal proceedings on the ground of legal professional privilege. They are about purely administrative matters that do not disclose communications made between lawyer and client for the dominant purpose of giving or obtaining legal advice or provision of legal services. They are not exempt under s 42 and, for the same reasons, nor is the subject line.

Document 30

1. For the reasons that Document 26 is not exempt, Document 30 is not exempt in so far as the emails in the chain of emails, including the subject lines, are concerned.  They relate to purely administrative matters and do not reveal communications of the sort that would attract legal professional privilege.

1. The document attached to those emails is in a different category. it discloses the nature of communications that have passed between CASA lawyers and Avmed. Those communications have been made between them for the dominant purpose of giving or obtaining legal advice or provision of legal services. They are subject to legal professional privilege. Therefore, the attachment is exempt under s 42 of the FOI Act.

Document 31

1. I have reached the same decision in relation to Document 31 as I have in relation to Document 30. The emails are purely administrative emails revealing nothing of the communications between lawyer and client. Their subject lines are in the same category. The document attached to those emails is different for it discloses the nature of communications that have passed between CASA lawyers and Avmed. Those communications have been made between them for the dominant purpose of giving or obtaining legal advice or provision of legal services. It is exempt under s 42.

Document 32

1. Document 32 contains a chain of emails all related to administrative matters. It does not reveal anything of the communications between lawyer and client and nor do their subject lines. I find that it is not exempt under s 42 of the FOI Act.

Document 34

1. Exemption is claimed for the second, or most recent, in a chain of emails between a CASA lawyer and a CASA officer. I am satisfied that the substantive paragraphs of that email are exempt under s 42. They reveal the nature of communications that have passed between CASA lawyers and Avmed. Those communications have been made between them for the dominant purpose of giving or obtaining legal advice or provision of legal services. The subject lines reveal nothing of the nature of the communications and are not exempt.

Document 36

1. I am satisfied that the substantive paragraphs of the two emails forming the chain of emails in Document 36 are exempt. They disclose communications made for the purposes of CASA’s conduct of the proceedings in the Tribunal relating to Mr Taggart’s application. They are subject to legal professional privilege and are exempt under s 42. The subject lines reveal nothing of the nature of the communications and are not exempt.

Documents 37 and 39

1. I am satisfied that the substantive paragraphs of the three emails forming the chain of emails in Document 37 and the three emails in Document 39 are exempt. They disclose communications made for the purposes of CASA’s conduct of the proceedings in the Tribunal relating to Mr Taggart’s application. They are subject to legal professional privilege and are exempt under s 42. I am also satisfied that the subject line discloses communications made for the same purpose and is also exempt.

Document 40

1. Document 40 is a chain of emails to which Mr Taggart has been given access to the last, or most recent, of them. I am satisfied that the remaining emails in the chain disclose communications made for the purposes of CASA’s conduct of the proceedings in the Tribunal relating to Mr Taggart’s application. They are subject to legal professional privilege and are exempt under s 42. The subject lines, though, reveal nothing of the nature of the communications and are not exempt.

Documents 41 and 41(a)

1. Documents 41 and 41(a) should be read together for I find that they are part of the one document. Taken together, they reveal disclose communications made for the purposes of CASA’s conduct of the proceedings in the Tribunal relating to Mr Taggart’s application. They are subject to legal professional privilege and are exempt under s 42. I am also satisfied that the subject lines disclose communications made for the same purpose and is also exempt.

DECISION

1. I note that, since the decision by the IC dated 27 August 2015, CASA has granted the applicant access to:

   (1)the whole of Documents 5, 11 and 28; and

   (2)parts of Documents 3, 15, 25, 32, 34 and 40;

Although, with Mr Taggart’s consent, I could have altered the decision under review in accordance with s 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act), we did not take that course. That means that the IC’s decision remains unaltered. Therefore, I have reflected CASA’s decision to grant access to these documents, or parts of documents, in the formal decision that I have made. CASA’s decision on those particular documents is consistent with my view as to whether or not they are exempt under s 42 of the FOI Act. That is the only ground of exemption claimed by CASA and so the only ground I have considered.

1. For the reasons I have given, I decide in relation to the decision of the IC dated 27 August 2015, to:

   1.affirm that decision in so far as it relates to Document 21(a).

   2.set aside that decision and substitute a decision that, having regard to the exemption claimed under s 42 of the Freedom of Information Act 1982:

   (1)Documents 5, 11 and 28 are not exempt;

   (2)In relation to Documents 2, 3, 9, 12, 14, 15, 21(a), 23, 25, 26, 28, 30, 31, 32, 34, 36, 37, 39, 40, 41 and 41(a):

   (a)Except for the words appearing after the word “Subject” in the address line of each email, the address block of each email, be it in an email chain or a stand-alone email, down to and including its classification and salutation is not exempt under s 42 of the FOI Act; and

   (b)the words from and including the closing words, if any, on each email to the end of the signature block on each email are not exempt under s 42 of the FOI Act.

   3.In relation to those parts of Documents 2, 3, 9, 12, 14, 15, 21(a), 23, 25, 26, 28, 30, 31, 32, 34, 36, 37, 39, 40, 41 and 41(a), which are not the subject of cl 2 of this decision, set aside the decision and substitute a decision that, having regard to the exemption claimed under s 42 of the Freedom of Information Act 1982:

Document 3

(1)The content beginning immediately under the salutation and ending before the closing words in the most recent email is exempt;

(2)The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Documents 9, 12 and 14

(1)       The content other than the subject line is exempt;

(2)The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Document 15

(1)       The first paragraph of the second email is exempt;

(2)       The second paragraph of the second email is not exempt;

(3)       The subject line is exempt; and

(4)The remainder of the document is not exempt.

Document 23

(1)The substantive paragraphs of the latest email in the email chain are exempt;

(2)       The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Document 25

(1)Those substantive paragraphs in the two earliest emails in the email chain, being those comprising Document 23, are exempt;

(2)       The subject line is not exempt; and

(3)The remainder of the document is not exempt.

Document 26

(3)The document is not exempt; and

(4)The subject line is not exempt.

Documents 30 and 31

(1)Each of the emails is not exempt;

(2)The subject line is not exempt; and

(3)The Attachment to those emails is exempt.

Document 32

(1)The document is not exempt; and

(2)       The subject lines are not exempt.

Document 34

(1)The substantive paragraphs in the most recent email in the email chain are exempt; and

(2)       The subject lines are not exempt.

Document 36

(1)The substantive paragraphs in each of the emails is exempt; and

(2)       The subject lines are not exempt.

Documents 37 and 39

(1)       The substantive paragraphs in each of the emails is exempt; and

(2)The subject line is exempt.

Document 40

(1)       The most recent email in the email chain is not exempt;

(2)The substantive paragraphs of each of the remaining emails in the email chain are exempt; and

(3)The subject lines are not exempt.

Documents 41 and 41(a)

(1)The substantive paragraphs of Document 41 and the whole of Document 41(a) are exempt; and

(2)       The subject lines in Document 41 are exempt.

SCHEDULE OF DOCUMENTS CLAIMED TO BE EXEMPT UNDER SECTION 42

No.	Date of document	Description of document	Variation after CASA review 17 February 2016
2	17 September 2014	Email between CASA Legal Officers	Nil variation (exemption claimed to whole of document)
3	8 October 2014	Email in chain between CASA Legal Officers	Access granted to all but last email in chain
5	16 October 2014	Email between CASA officers and CASA Legal Officer	Access granted
9	31 October 2014	Email between CASA officers and CASA Legal Officers including draft letter	Nil variation (exemption claimed to whole of document)
11	31 October 2014	Email from CASA Legal Officer attaching letter to Dr Cameron of same date	Access granted
12	31 October 2014	Email chain between CASA Officers and Legal Officers including emails from Document 9	Nil variation (exemption claimed to whole of document)
14	13 November 2014	Email chain between CASA Officers and Legal Officers (email in addition to Document 12 email chain)	Nil variation (exemption claimed to whole of document)
15	18 November 2014	Email chain between CASA Officers and Legal Officers (email in addition to Document 12 email chain)	Access granted to last email in chain but not earlier emails i.e. Document 12
21(a)	19 November 2014	Letter to Dr J Cameron	Nil variation (exemption claimed to whole of document)
23	21 November 2014	Email chain between CASA Officers , Legal Officer and external party attaching Document 23(a) (Letter from Dr Cameron to CASA)	Nil variation (exemption claimed to part of document)
25	24 November 2014	Email chain between CASA Officers and Legal Officers (including Document 23 above)	Access granted to last email in chain but not earlier emails i.e. Document 23
26	27 November 2014	Email chain between CASA Officers and Legal Officers	Nil variation (exemption claimed to part of document)
28	27 November 2014	Email chain between CASA Officers and Legal Officers	Access granted
30	28 November 2014	Email chain between CASA Officers and Legal Officers	Nil variation (exemption claimed to whole of document)
31	28 November 2014	Email chain between CASA Officers and Legal Officers	Nil variation(exemption claimed to whole of document)
32	28 November 2014	Email chain between CASA Officers and Legal Officers (including Document 31 above)	Access granted to last email in chain but not earlier emails i.e. Document 31
34	1 December 2014	Email chain between CASA Officers and Legal Officer	Access granted to last email in chain but not earlier emails
36	1 December 2014	Email chain between CASA Officers and Legal Officers	Nil variation (exemption claimed to whole of document)
37	2 December 2014	Email between external party and CASA Legal Officers	Nil variation (exemption claimed to part of document)
39	2 December 2014	Email between external party and CASA Legal Officers attaching Document 23(a) (Letter from Dr Cameron to CASA)	Nil variation (exemption claimed to whole of document)
40	1 December 2014 and 2 December 2014	Email between external party, CASA officers and Legal Officers	Access granted to last email in chain but not earlier emails
41	2 December 2014 and 3 December 2014	Email chain between CASA Legal officers including Document 41(a) (Draft letter)	Nil variation (exemption claimed to whole of document)
41(a)	2 December 2014	Draft letter	Nil variation (exemption claimed to whole of document)

I certify that the eighty-nine preceding paragraphs and the Schedule are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………...................[sgd]....................................

Associate

Date of Hearing           10 February and 24 February 2016

Date of Decision  20 May 2016

For the Applicant  Mr Anthony Taggart    

Solicitor for the Respondent  Mr Anthony Carter

Legal Services Division

Civil Aviation Safety Authority