University of New South Wales v McGuirk (No 2)
[2008] NSWADTAP 8
•29 February 2008
Appeal Panel - Internal
CITATION: University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 PARTIES: APPELLANT
RESPONDENT
University of New South Wales
(Gerard) Michael McGuirkFILE NUMBER: 079044 HEARING DATES: 16 November 2007 SUBMISSIONS CLOSED: 16 November 2007
DATE OF DECISION:
29 February 2008BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: leave to extend to the merits MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: McGuirk v University of New South Wales [2005] NSWADT 289 FILE NUMBER UNDER APPEAL: 053100 DATE OF DECISION UNDER APPEAL: 08/22/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 CASES CITED: Baker v Campbell (1983) 153 CLR 52
Carter v Northmore Hale Davey & Leake (1995) 183 CLR 121
Coco v R (1994) 179 CLR 427D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Department of Premier and Cabinet v Hulls [1999] VSCA 117
Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93
McGuirk v University of New South Wales [2007] NSWSC 806
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25
Neary v The Treasurer, New South Wales [2002] NSWADT 261
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
The Commonwealth v Northern Land Council (1994) 176 CLR 604
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
University of New South Wales v McGuirk [2006] NSW ADTAP 38
Waterford v Commonwealth (1987) 163 CLR 5
Workcover Authority (NSW), General Manager v Law Society of New South Wales [2006] NSWCA 84REPRESENTATION: APPELLANT
RESPONDENT
P Singleton, barrister
In personORDERS: 1. Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision on the question of whether access should be given to the Joint Memorandum of Advice dated 2 July 2002 (the “Walker/Bell” advice) even though it is an exempt document under the Freedom of Information Act 1989
2. The decision of the University of New South Wales decision not to give access to the Walker/Bell advice under the Freedom of Information Act 1989 is set aside
3. In substitution for that decision, the decision is made to give Mr McGuirk access to the Walker/Bell advice.
REASONS FOR DECISION
Background to the appeal
1 This matter has been remitted by the Supreme Court to the Appeal Panel for determination according to law. It concerns an application Mr McGuirk made under the Freedom of Information Act 1989 (FOI Act) for access to a legal advice written by Bret Walker SC and Andrew Bell to the Council of the University of New South Wales (the Walker/Bell advice). The University refused to give Mr McGuirk access to the advice because they said it was protected by legal professional privilege and was consequently an “exempt document”: FOI Act, Schedule 1, Clause 10. While Mr McGuirk agreed that it was initially protected by that privilege, he submitted that the University had waived the privilege. The Tribunal at first instance agreed that the privilege had been waived: University of New South Wales v McGuirk [2005] NSW ADT 289. The University appealed to the Appeal Panel. The Appeal Panel found that the privilege had not been waived: University of New South Wales v McGuirk [2006] NSW ADTAP 38.
2 Mr McGuirk appealed to the Supreme Court on two grounds. The first was that the Appeal Panel erred in failing to find that the Chancellor of the University had the capacity to waive the privilege of the University. The second ground of appeal was that the Appeal Panel had failed to consider what the correct and preferable decision is in accordance with section 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In relation to the first ground, the Supreme Court found that the Appeal Panel’s decision was correct and there was no express or implied waiver of legal professional privilege over the Walker/Bell advice. In relation to the second ground, the Supreme Court said, at [33] to [35] that:
Legislative framework
33 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Nicholas J stated that in his opinion s 63 of the ADT Act provides the Tribunal with a discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. Prior to this decision, there was a divergence of views in the Tribunal on the interpretation of section 63. His Honour overruled the decision of the ADT expressed in Neary v the Treasurer NSW [2002] NSWADT 261 and preferred the position adopted by the Tribunal in Mangoplah v Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [102]- [103]. Hence the Appeal Panel has a discretion to order access to be given to documents, which are exempt documents under the FOI Act.
34 While Mr McGuirk did not address the overriding discretion issue, the Tribunal did not do so either. I accept that the obligations of the Appeal Panel under section 63 were not clear when Mr McGuirk appeared before it. This obligation under section 63 was clarified in the subsequent decision of Nicholas J in McGuirk. The Appeal Panel did not address the overriding discretion issue and Mr McGuirk should have been given the opportunity to do so.
35 The appeal is upheld. The decision of the Appeal Panel dated 22 August 2006 is set aside. The matter is remitted to the Appeal Panel for determination according to law. (McGuirk v University of New South Wales [2007] NSWSC 806.)
3 Under section 16(1) of the FOI Act “[a] person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” Following an application for access to documents, an agency must determine whether access to the document is to be given or refused, and any charge payable for dealing with the application: FOI Act, section 24. An agency may refuse access to a document if it is an exempt document: FOI Act, section 25(1)(a). An exempt document includes a document referred to in any one or more of the provisions of Schedule 1: FOI Act, section 6. Clause 10 of Schedule 1 relates to documents subject to legal professional privilege:
4 It is the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the Evidence Act 1995, that are applicable in this case: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26, at [9] to [12].
10 Documents subject to legal professional privilege
(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.
5 Section 63 of the ADT Act sets out the Tribunal’s powers when reviewing a decision of an agency under the FOI Act:
Issues
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
6 The issues that arise for determination are:
Scope of Appeal Panel’s role
a) the scope of the Appeal Panel’s powers in these proceedings;
b) the nature and extent of the Tribunal’s powers to give access to exempt documents in general;
c) the nature and extent of the Tribunal’s powers to give access to documents protected by legal professional privilege; and
d) whether the Appeal Panel should give Mr McGuirk access to the Walker/Bell advice.
7 Mr McGuirk submitted that, with one qualification, it was the Appeal Panel’s role to determine afresh the merits of his application for the Walker/Bell advice. That qualification was that the Appeal Panel was estopped from determining the issue of whether the Chancellor of the University had waived privilege in that document on behalf of the Council. He said that because that issue had been determined by the Supreme Court, it was not an issue that the Appeal Panel could determine again. Apart from that, Mr McGuirk said the Appeal Panel could determine whether waiver of legal professional privilege had been effected in some other way. Furthermore, he said that the Appeal Panel should re-examine all the evidence that was before the Tribunal and make findings of fact on the basis of that evidence.
8 The Supreme Court held at [27] that, “There was no express or implied waiver of the legal professional privilege over the Walker/Bell advice.” Mr McGuirk is not entitled to re-agitate that issue before the Appeal Panel. The only live issue is whether the agency made the correct and preferable decision in not exercising the discretion under section 25(1)(a) of the FOI Act to give access to the Walker/Bell advice even though it is an exempt document. Rather than remit that question to the Tribunal, we have decided to extend the appeal to the merits of the Tribunal’s decision and determine that issue ourselves: Administrative Decisions Tribunal Act 1997 (ADT Act), section 113(2)(b). Before examining the particular circumstances of this case and identifying any relevant evidence, two legal issues need to be clarified. The first is the nature and extent of the Tribunal’s power to give access to exempt documents in general and the second is the extent of the Tribunal’s power to give access to documents that are subject to legal professional privilege.
Nature and extent of Tribunal’s power to give access to exempt documents
9 The role of the Tribunal when reviewing the decision of an agency not to exercise its discretion to give access to an exempt document is to “. . . decide what the correct and preferable decision is having regard to the material then before it”: ADT Act, section 63(1). The agency has a discretion to give access to an exempt document by virtue of section 25(1)(a) FOI Act, which states that:
10 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Nicholas J decided at [102] that:
(1) An agency may refuse access to a document:
(a) if it is an exempt document
11 Nicholas J went on to say, at [103] that he agreed with the following position put forward in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93:
In my opinion section 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents, which are exempt documents under the FOI Act if it decides, that to do so is the correct and preferable decision with regard to the material then before it.
12 Mr McGuirk submitted that the Tribunal’s so-called “discretion” to give access to an exempt document, is not a discretion at all, but rather a power or a judgement that the Tribunal must exercise. He says that the agency, not the Tribunal, has a discretion to give access to exempt documents because of the use of the word “may” in section 25(1)(a) of the FOI Act . He contrasts that provision with section 63 of the ADT Act which says that the Tribunal “is to make” the correct and preferable decision. In his view, that means that the Tribunal does not have a discretion, rather it must exercise its judgment and make a determination.
85. Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of section 63 of the ADT Act - indeed the duty - when reviewing a determination under sub-section 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under section 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.
13 Mr McGuirk is correct in the sense that the Tribunal does not exercise the discretion under section 25(1)(a). Rather, the Tribunal reviews the agency’s decision not to exercise the discretion. However, nothing turns on the distinction between the agency’s role and the Tribunal’s role in the circumstances of this case.
14 The use of the word “may” in section 25(1)(a) and the absence of a list of considerations that the agency must take into account, mean that an agency has an unconfined discretion to give or not to give access to exempt documents. However discretions must always be exercised in accordance with the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25 at 39 per Mason J. The objects of the FOI Act are set out in section 5:
15 Section section 5(3)(b) is particularly relevant because it applies to the exercise of discretions. A similar formulation appears in the Freedom of Information Act 1982 (Cth), section 3(2). In Workcover Authority (NSW), General Manager v Law Society of New South Wales [2006] NSWCA 84 the Court of Appeal (McColl JA, Handley JA and Hodgson JA agreeing) referred to several decisions interpreting section 3(2) of the Commonwealth FOI Act in the context of determining whether the exemption for internal working documents ( FOI Act , Schedule 1, Clause 9) applied.
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(2) The means by which it is intended that these objects are to be achieved are:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(3) It is the intention of Parliament:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
16 The Court of Appeal in the Workcover case was addressing the question of whether certain exemptions applied and the effect of the objects of the FOI Act on their deliberations. It did not need to consider whether the Tribunal had erred in deciding that it was not appropriate, as a matter of discretion, to release the disputed documents because the Law Society did not appeal against that aspect of the Tribunal’s decision. However, the Court endorsed the comment that the rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Nevertheless, Nicholas J in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 has confirmed that the agency and the Tribunal have power to grant access to exempt documents. In what circumstances should exempt documents be disclosed?
[149] In News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 66, Bowen CJ and Fisher J said, when considering rights of access pursuant to the Freedom of Information Act 1982 (Cth), that they did not favour adopting the approach of leaning towards “… a wide interpretation of the provisions of the Act but when considering exemptions … lean[ing] towards a narrow interpretation”, saying “… [t]he rights of access and the exemptions are designed to give a correct balance of the competing public interests involved … [and] [e]ach is to be interpreted according to the words used, bearing in mind the stated object of the Act”. News Corporation Ltd was followed by the Full Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 115.
[150] This Court should follow, as a matter of judicial comity, the approach taken by the Full Federal Court; Australian Securities Commission v Malborough Gold Mines Ltd (1993) 177 CLR 485 at 492. It accords with Mahoney JA's observation in Commissioner of Police v District Court (NSW) (at 639–640) that in s 16 (which provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act) the legislature had “adopted the principle that a citizen should have access to documents held by Government agencies”, but added that “that principle must be subject to exceptions and qualifications” and that “[t]he precise terms of the [exception] clause should govern the extent of the remedy available”.
[151] The Full Federal Court's approach, in my view, accords with the section 5(3) obligation to interpret and apply the Freedom of Information Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: section 5(2)(a) and section 5(2)(b). Determining whether documents should be disclosed involves balancing those two matters. Thus, as Beaumont J said, testing whether disclosure of documents would be contrary to the public interest requires the decision-maker “… to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other”: Harris v Australian Broadcasting Corporation (at 246).
17 In Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 (30 September 1999) which was handed down prior to Neary v The Treasurer, New South Wales [2002] NSWADT 261. In that case at [90] – [91] the Tribunal elaborated on the nature and extent of the discretion:
18 While the Supreme Court in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 did not refer to these passages, they provide useful guidance as to the nature and extent of the Tribunal’s powers. As with most discretionary powers, the decision maker must identify and weigh relevant considerations before making a decision. The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act , and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were “reasonably necessary for the proper administration of the Government”. In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55.
In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations, which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances, which, bearing in mind the objects of the FOI Act and the rationale for any exemption, which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (section 5(2)(b)).
Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption. I would not see the question as necessarily suggesting that such a release would be rare, unusual or exceptional. In some areas of government, there may be many documents which fall within an exemption but, for example, whose public interest in release is overwhelming, or whose potential for relevant damage is so obviously remote as to leave disclosure totally innocuous.
Application of discretion to communications protected by legal professional privilege
19 The doctrine of legal professional privilege, so far as it is relevant to the circumstances of this case, is that confidential communications between a lawyer and his or her client are protected from disclosure if they are made for the dominant purpose of obtaining legal advice: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. The privilege belongs to the client: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 570. In The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) described legal professional privilege in the following way at 553:
20 In the context of government departments or agencies, Brennan J expressed the rationale for legal professional privilege in the following way in Waterford v Commonwealth (1987) 163 CLR 54 at 74-75:
[11] Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity.
21 In Baker v Campbell (1983) 153 CLR 52 at 95 Wilson J said:
. . .[T]he public interest is truly served by according legal professional privilege to communications brought into existence by a government department for the purpose of seeking or giving legal advice as to the nature, extent and the manner in which the powers, functions and duties of government officers are required to be exercised or performed. If the repository of a power does not know the nature or extent of the power or if he does not appreciate the legal restraints on the manner in which he is required to exercise it, there is a significant risk that a purported exercise of the power will miscarry. The same may be said of the performance of functions and duties. The public interest in minimizing that risk by encouraging resort to legal advice is greater, perhaps, than the public interest in minimizing the risk that individuals may act without proper appreciation of their legal rights and obligations. In the case of governments no less than in the case of individuals, legal professional privilege tends to enhance application of the law, and the public has a substantial interest in the maintenance of the rule of law over public administration.
22 Mr Singleton accepted that the Tribunal has the power to review a decision of the University not to exercise its discretion to give access to a document that is subject to legal professional privilege. The contrary argument is that section 25(1)(a) does not evince a sufficiently clear intention to abrogate the privilege: Coco v The Queen (1994) 179 CLR 427 at 437; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553. However, as that argument was not raised, there is no need for us to determine that issue.
It is not only a matter of protection of the client. The freedom to consult one's legal adviser in the knowledge that confidential communications will be safeguarded will often make its own contribution to the general level of respect for and observance of the law within the community. . .
23 Mr Singleton’s submission was that although the Tribunal has power to give access to a document that is subject to legal professional privilege, that power should rarely, if ever, be exercised. That is because the privilege is a fundamental common law right, not merely a rule of evidence: Baker v Campbell (1983) 153 CLR 52 at 132; Carter v Northmore Hale Davey & Leake (1995) 183 CLR 121; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11]. According to Mr Singleton, at common law, legal professional privilege can never be overridden. He compared that situation with the situation for public interest immunity. In respect of police informers there is an exception to the doctrine of public interest immunity where disclosure of the identity of a police informer could help to show that the defendant is innocent of the offence: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218. In relation to Cabinet deliberations, only exceptional considerations would be sufficient to overcome the public interest in their immunity from disclosure: The Commonwealth v Northern Land Council (1994) 176 CLR 604 at 617-618.
24 Just as Parliament will not be construed as having overridden a fundamental common law right or privilege in legislation unless such an intention is “unmistakable and unambiguous” (Coco v The Queen (1994) 179 CLR 427 at 437) Mr Singleton said the Tribunal should not exercise its power to override a fundamental common law right or privilege except in the most exceptional circumstances. He also said that the competing public interests have already been struck in favour of keeping legal advice confidential and no further balancing exercise is required: Waterford v Commonwealth (1987) 163 CLR 5 per Mason and Wilson JJ at 50.
25 By exempting documents subject to legal professional privilege, parliament has decided that, in general, the interests in maintaining legal professional privilege should prevail over the competing interest of open and accountable government. Although the public interest in maintaining legal professional privilege is very strong, documents the subject of legal professional privilege may be disclosed where the particular circumstances of the case justify disclosure. However, the reason for disclosing exempt documents needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government.
Should the Appeal Panel set aside the University’s decision not to give access to the Walker/Bell advice?
26 The Appeal Panel found that the Walker/Bell advice is subject to legal professional privilege and that the University has not waived that privilege. The Supreme Court upheld that decision. The remaining question is whether despite the fact that it is an exempt document, the Appeal Panel should set aside the University’s decision not to give access to the Walker/Bell advice.
27 Apart from the advice itself and Exhibit A in the proceedings, there was no relevant evidence before the Tribunal on this question. We have confidential access to, and have read, the Walker/Bell advice. Exhibit A, tendered by Mr McGuirk to the Tribunal, was a document, which contained an extract of the Walker/Bell advice. The Tribunal said when referring to that exhibit, at [27] that:
28 We draw the inference from the fact that Mr McGuirk produced part of the content of the Walker/Bell advice that he had obtained an extract from the advice from an unknown source. Mr McGuirk did not contend that anyone from the University gave him the information contained in Exhibit A.
It is apparent from reference to the copy of the Walker-Bell advice that has been provided to the Tribunal that Mr McGuirk has indeed accurately cited from parts of that document. The University has conceded as much.
29 There is also one item of fresh evidence, which we admitted, namely a letter from the University’s solicitors to Mr McGuirk dated 25 October 2006. That letter refers to the proceedings that were then pending in the Supreme Court and makes a “without prejudice” offer to give Mr McGuirk a copy of the Walker/Bell advice on condition that the proceedings be dismissed and each party pay their own costs. Mr McGuirk did not accept that offer. The University tendered the letter to the Supreme Court in relation to the question of costs and Mr Singleton, on behalf of the University, did not object to it being admitted in these proceedings. We did not regard other “fresh” evidence that Mr McGuirk sought to tender as relevant to the issue we have to decide.
30 As well as the public interest rationales, clients will often have a private interest in keeping legal advice confidential. If the privilege is abrogated, then both public and private interests are affected. Mr Singleton conceded that, from the University’s point of view, the Walker/Bell advice is not particularly sensitive or important and the University itself does not have a strong private interest in maintaining its confidentiality. That is apparent from the fact that the University was prepared, on a “without prejudice” basis, to provide Mr McGuirk with a copy of the advice on condition that the Supreme Court proceedings be dismissed and each party pay their own costs. Mr McGuirk did not accept that offer. According to Mr Singleton, if legal professional privilege is abrogated in this case, the primary detriment will not be to the University, it will be to future deliberations within government and to future litigation involving government. He says that if the Tribunal overrides privilege, government agencies will have to make decisions about seeking legal advice in the knowledge that that advice may be released by order of the Tribunal. Mr Singleton submitted that that would have a tendency to discourage the obtaining and recording legal advice.
31 Mr McGuirk said that it makes common sense that he be given access to the Walker/Bell advice because it is an advice on an important topic. The University was willing to give him the document as part of its “without prejudice” offer to settle the proceedings in the Supreme Court. He says that it is now more than five years since the advice was given and it is not a sensitive or current document. Mr McGuirk also says that he has part of the content of the advice.
32 Mr Singleton’s response to these submissions was that the offer of settlement did not waive privilege, it was merely an offer to waive privilege. In this case the Council of the University was the client and Messrs Walker and Bell were the lawyers. The client may waive the privilege by giving Mr McGuirk access to the document. It has not done so in this case. He also says that the age of the Walker/Bell advice is irrelevant because legal professional privilege never expires even on the death of the client. Nevertheless, Mr Singleton conceded that an advice, which relates to a current issue or dispute, would attract a greater degree of protection than one, which had no currency. He says that although the Walker-Bell advice was not requested at a time when litigation was contemplated, the subject matter of the advice is of continuing relevance and importance. Mr Singleton says that if fine judgements are being made and Mr McGuirk has parts of the advice, those parts should not be afforded the same protection as the parts he does not have.
33 As a matter of general principle, parliament has decided that the protection afforded by legal professional privilege is reasonably necessary for the proper administration of Government. However section 5(3)(b) of the FOI Act directs agencies to exercise the discretions conferred by that Act, including the discretion in section 25(1)(a) to release an exempt document, “. . . as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.” That means that if, in the particular circumstances of the case, it is not reasonably necessary for the proper administration of Government for the exemption to be relied upon, the preferable decision is that the document be released. The proper administration of justice requires that government agencies be encouraged to comply with the law. If a client, such as the University, is confident that its communications with a lawyer will be kept confidential, it is more likely to disclose all relevant information thus enabling the lawyer to provide comprehensive and accurate legal advice. That advice assists the client to comply with its legal obligations.
34 The particular circumstances of this case are that the Walker/Bell advice is now over five years old and does not relate to a current issue or dispute. Mr McGuirk has obtained extracts from the advice from an unknown source. The University was prepared to waive its privilege in the advice as part of a settlement offer and will suffer no particular detriment if the advice is disclosed. In our view, it is not necessary for the proper administration of justice to keep the advice confidential. Agencies are unlikely to be discouraged from speaking frankly and candidly with their legal advisors if they are aware that it will only be in rare circumstances, where the potential for harm is minimal or non-existent, that those communications will be disclosed. Similarly, other rationales for legal professional privilege are unlikely to be undermined by giving access to documents only in cases where the circumstances of the case justify disclosure. Agencies can be assured that access will not be given to documents where, in the particular circumstances of the case, confidentiality is reasonably necessary for the proper administration of government.
Order
1. Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision on the question of whether access should be given to the Joint Memorandum of Advice dated 2 July 2002 (the “Walker/Bell” advice) even though it is an exempt document under the Freedom of Information Act 1989
2. The decision of the University of New South Wales decision not to give access to the Walker/Bell advice under the Freedom of Information Act 1989 is set aside
3. In substitution for that decision, the decision is made to give Mr McGuirk access to the Walker/Bell advice.
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