Re John Edward O'Brien Waterford v the Department of the Treasury [1985] FCA 29; 7 ALD 93 / 5 FCR 76 (15 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: JOHN EDWARD O'BRIEN WATERFORD
And: THE DEPARTMENT OF THE TREASURY
No. ACT G.10 of 1984
Administrative Law - Evidence
[1985] FCA 29; 7 ALD 93 / 5 FCR 76

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Fisher(1), Gallop(1) and Neaves(1) JJ.

CATCHWORDS

Administrative Law - freedom of information - Access refused to documents relating to consideration of earlier request for access - Proceedings pending before Administrative Appeals Tribunal to review decision to refuse earlier request for access - Second request refused on ground that documents protected by legal professional privilege - Whether legal professional privilege applicable.

Freedom of Information Act 1982, s.42

Evidence - Government department - Freedom of information - Freedom of Information Act 1982 (Cth), s 42. Held: (1) The limits of legal professional privilege have not been finally settled. The process of determining those limits involves a consideration of the extent to which paramountcy should be accorded to a higher public interest over that which supports legal professional privilege.

(2) The limits of the privilege as it applies to a government or a government agency may be different from those which apply in the case of a citizen. Such limits may be found in the nature of the function that gives rise to the documents.

R. v. Kearney; Ex parte Attorney-General (NT) (1984) 3 FCR 534 referred to.

(3) Once having ascertained the true limits of the privilege and that the document in question falls within those limits, the document is protected from disclosure. It is not necessary in the case of a government or a government agency to show, in addition, that disclosure of the document would be contrary to some more general public interest.

(4) The Freedom of Information Act 1982 (Cth) as a whole provides no reason for reading down the ambit of legal professional privilege to which s 42(1) refers.

(5) The relationship between a government department and officers of the Attorney-General's Department is capable of being a relationship which attracts legal professional privilege.

(6) Where legal professional privilege arises in relation to proceedings before a Tribunal, it does not cease with the termination of those proceedings.

HEARING

Canberra, 1984, November 6; 1985, February 15. 15:2:1985
APPEAL

Appeal, on a question of law, to the court from the Administrative Appeals Tribunal, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

The applicant in person.

When legal professional privilege is claimed by a central government agency, the courts will only recognise it when, on balance, disclosure is not in the public interest. R. v. Kearney; Ex parte Attorney-General (NT) (1984) 3 FCR 534; Alfred Crompton Amusement Machines Ltd v. Commissioners of Customs and Excise (No 2) (1974) AC 405; Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1; Reece v. Trye [1846] EngR 475; (1846) 9 Beav 316, 50 ER 365; Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674; Baker v. Campbell [1982] FCA 212; (1983) 66 FLR 29; Attorney-General v. Jonathan Cape (1976) QB 752; Commonwealth v. John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39; R. v. Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 The Freedom of Information Act 1982 confines claims of legal professional privilege within a narrower range than the ordinary tests, and imposes a public interest balancing process. R. v. Braham (1976) VR 547 (He referred to s 9.) By excluding s 9 material from the operation of s 42, Parliament clearly intended to limit the operation of legal professional privilege. Grolier Ink v. Federal Commissioner of Taxation 671 F. 2d at 553; Port of Seattle v. Rio 16 Washington Appeals 718; 559 P. 2d 18. There was no evidence before the Tribunal capable, as a matter of law, of satisfying it that the interests intended to be preserved by upholding a claim of privilege would be so served. The role played in the proceedings by the Attorney-General and by the Freedom of Information Branch (FOI Branch) of his department cannot be categorised as that of "solicitor" to the respondent; nor was the exchange concerned solely with the provision of legal advice. All the material before the court shows that it is in a policy exchange that the Attorney and his FOI Branch became involved in the case. The duty of the FOI Branch was essentially a policy one. It is not established upon the evidence, and the Tribunal, as a matter of law, could not have been satisfied that the relationship between the Deputy Crown Solicitor's Office and the respondent was one of solicitor and client; and nor was there evidence which, as a matter of law, was capable of satisfying the Tribunal that the relationship was concerned solely with the provision of legal advice. United States v. AT & T. Co 86 F. RD 603 (D DC 1979 particularly note 47); Dallison v. Cassery (1965) 1 QB 348; Ziems v. Prothonotary [1957] HCA 46; (1957) 97 CLR 279; Richardson v. The Queen [1974] HCA 19; (1974) 131 CLR 116 The internal Treasury memoranda in this case are not, as a matter of law, capable of being the subject of legal professional privilege. To the extent that the respondent is the holder of any privilege in the documents, the Treasury was obliged to consider whether, in the public interest, it should waive it. Any privilege capable of applying disappeared once the litigation ended. Grolier Ink v. Federal Commissioner of Taxation 671 F. 2d at 553. In relation to s 36, there is no relevant deliberative process involved which would be revealed by the disclosure of the documents and the exemption provided by s 36 covers only policy formation of processes, not the carrying out of duties laid down by statute where there is no relevant policy process. Coastal States Gas Corp v. Department of Energy [1980] USCADC 68; 617 F. 2d 854 at 866; Harris v. Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551; East Suffolk Rivers Catchment Board v. Kent [1940] UKHL 3; (1940) 4 All ER 527; Anns v. Merton London Borough Council [1977] UKHL 4; (1978) AC 728

J. J. Steel, for the respondent.

Section 42 of the Freedom of Information Act 1982 recognises that the public interest lies in preservation of legal professional privilege. The provision in various other sections of the Act are for specific exemption and apply only where the exemption is in the public interest. It is a clear indication that the legal professional privilege maintained by s 42 is to apply despite what may be in some circumstances competing public interests. R. v. Kearney; Ex parte Attorney-General (NT) (supra) is limited to the preparation and formulation of subordinate legislation. Legal professional privilege is to be distinguished from public interest privilege where the courts may lean towards disclosure of the documents in circumstances where the improper exercise of a power is alleged. There is no presumption of a right to access to a document because s 11 only applies to documents which are not exempt documents. Communications from the Attorney-General, being the senior law officer of the Commonwealth, to either a department or to the Deputy Crown Solicitor's Office, even if these communications contain some guidelines as to policy matters, nonetheless contain advice given within the confines of certain policies and to that extent constitute legal advice and attract privilege. Communications be tween officers of the department relating to and brought into existence for the purposes of litigation then in process fit within the category of privileged documents referred to in Trade Practices Commission v. Sterling [1979] FCA 33; (1979) 36 FLR 244; Mayor and Corporation of Bristol v. Cox (1884) 26 Ch D. 678, Communications between departmental officers in order to clarify the most desirable approach to be taken for legislation constitute part of the deliberative processes referred to in Harris v. Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551 at 560 See also Harris v. Australian Broadcasting Corporation [1984] FCA 8; (1984) 1 FCR 150 at 155

Cur adv vult

Solicitor for the respondent: Australian Government Solicitor.
GFV

ORDER

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

Appeal dismissed with costs

DECISION

By virtue of sub-section 44(1) of the Administrative Appeals Tribunal Act 1975 a party to a proceeding before the Administrative Appeals Tribunal ("the Tribunal") may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. Pursuant to that provision John Edward O'Brien Waterford ("the applicant") has appealed to the Court from a decision of the Tribunal given on 14 March 1984. That decision was given upon an application by him to the Tribunal for the review of a decision refusing him access to certain documents under the Freedom of Information Act 1982 ("the Act").

2. The applicant's request for access to the documents was made in writing to the Department of the Treasury of the Commonwealth of Australia ("the respondent") on 5 May 1983. The request described the documents to which access was sought as documents within the possession of the respondent "relating to the processing of my request between the time when it was filed and today, May 5, 1983". The latter request was a request in writing made under the Act for access to certain documents of the respondent relating to projections made in the 1982-83 Budget Papers and subsequently in a Ministerial press release regarding the estimated number of unemployment benefit recipients. That request was made on 2 December 1982. Access to the documents identified as being those to which the request related was denied and the applicant applied to the Tribunal on 17 January 1983 for a review of that decision. At the time of the request for access to the documents the subject of the present appeal, the application for review of the earlier decision had been heard by the Tribunal but a decision thereon had not been given. The Tribunal's decision on that review, a decision which affirmed the refusal of access, was announced on 29 June 1983.

3. The applicant has appealed from so much of the Tribunal's decision given on 14 March 1984 as decided that certain of the documents to which access was sought by the applicant were of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege and so were exempt documents by virtue of the provisions of sub-section 42(1) of the Act and, in addition, were documents falling within paragraph 36(1)(a) of the Act. That paragraph refers to documents the disclosure of which under the Act would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth. "Agency" is defined so as to include a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth. The respondent is such an agency.

4. It should also be mentioned that a certificate under sub-section 36(3) of the Act had been signed by a delegate of the Treasurer certifying that the delegate was satisfied that the disclosure of many of the documents to which access was sought would be contrary to the public interest. The effect of the certificate, assuming that the documents to which it related were documents to which paragraph 36(1)(a) of the Act applied, was to establish conclusively that the disclosure of those documents would be contrary to the public interest. The consequence for the Tribunal was that the documents to which the certificate applied were not placed before it. The material before the Tribunal, however, provided some information concerning the documents. They are described as letters, draft letters, minutes, memoranda and notes. The originator and the addressee are identified by office and, where the document bears a date, the date is also stated. The minutes passed between officers of the respondent or between an officer of the respondent and the Treasurer. The notes were notes prepared by officers of the respondent. The letters passed between the Attorney-General and the Treasurer. The memoranda passed between officers of the respondent and officers of the Deputy Crown Solicitor's Office in the Australian Capital Territory. The Tribunal had before it information as to the general nature of the contents of the documents. Annexed to the Tribunal's reasons for decision is a schedule identifying the documents (which are numbered 1 to 45 inclusive) and giving a short summary of their nature.

5. After the appeal to this Court was instituted the applicant was given access to certain of the documents the subject of the Tribunal's decision.

6. In written submissions to the Court, prepared prior to the appeal being called for hearing, the applicant stated that the documents the subject of the appeal were those identified in the schedule annexed to the Tribunal's reasons for decision as documents 7, 9, 10, 12, 15-18, 20-23 and 25-38.

7. The Tribunal decided that each of those documents was of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege (sub-section 42(1)). It found that each of those documents with the exception of the documents numbered 28, 29, 33, 35 and 38 was brought into existence in order to record advice received from or instructions given to, or to be given to, the respondent's legal representatives in relation to the applicant's request dated 2 December 1982 for access to the documents referred to therein. Documents 28, 29, 33, 35 and 38 were also held to fall within sub-section 42(1) of the Act. The Tribunal found that document 29 was a legal opinion furnished by the Attorney-General to the Treasurer in relation to the applicant's then pending application to the Tribunal, that document 28 was a draft thereof, that documents 33 and 35, being draft letters from the Treasurer to the Attorney-General, were drafts of communications intended to be made in confidence with a view to obtaining legal advice or assistance and that document 38, being in form a letter addressed by the Secretary to the Attorney-General's Department to the Chairman of the Public Service Board but in fact sent to the respondent, contained legal advice tendered to the respondent in relation to the applicant's request for access to documents made on 2 December 1982.

8. When the appeal came on for hearing the applicant informed the Court that earlier on that day the respondent had given the applicant access to document 29 (with the deletion therefrom of a certain paragraph) and document 38. The deletion made from document 29 was said to have been made because the material deleted related to the deliberations of Cabinet (see section 34), that is to say on a ground that was not put forward for the consideration of the Tribunal and upon which no ruling was, therefore, made. The applicant accepted that it was not open to the Court on the hearing of the present appeal to canvass the sufficiency of that ground for refusing access to the deleted material. In consequence of the course taken by the respondent the Court is relieved from further consideration of documents 29 and 38 and, as document 28 is a draft of document 29 and in identical terms and the applicant did not in the circumstances press for access to it, of that document also.

9. The applicant did not question the general statement made by the Tribunal as to the scope of legal professional privilege as it applies to communications between a citizen and his legal advisers. He submitted, however, that the circumstances in which legal professional privilege will protect from disclosure communications between a government or a governmental agency and its legal advisers are much more limited than those in which similar protection will be afforded to communications between a citizen and his legal advisers. It was said that, in the case of a government or a governmental agency, the communication will only be protected where it is established, not only that it is of such a character or class that it would be protected from disclosure if it were made between a citizen and his legal adviser, but also that the disclosure of the particular document would be contrary to the public interest, involving in each case a balancing of the various public interests involved. The communication would only be protected from disclosure, so the argument ran, if a positive conclusion were reached that the public interest requires non disclosure.

10. This submission is, we think, misconceived. The rationale of legal professional privilege is, of course, itself to be found in the public interest in the due administration of justice secured by facilitating the representation of clients by legal advisers. As was said in Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 at p 685:

"The existence of the privilege reflects, to the
extent to which it is accorded, the paramountcy
of this public interest over a more general
public interest, that which requires that in the
interests of a fair trial litigation should be
conducted on the footing that all relevant
documentary evidence is available."

The limits of the privilege have not yet been finally settled and the process of determining those limits involves a consideration of the extent to which paramountcy should be accorded to a higher public interest over that which supports the legal professional privilege, the process being the familiar one of weighing the respective considerations against each other: see The Queen v. Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 and R. v. Kearney; Ex parte Attorney-General for the Northern Territory (Full Court of this Court - 14 September 1984 - unreported). The limits of the privilege as it applies to a government or a governmental agency may be different from those which apply to a citizen. Such limits may be found in the nature of the function which gives rise to the documents being brought into existence as was the case in R v. Kearney; Ex parte the Attorney-General for the Northern Territory (supra), the function there being that of subordinate law-making, a function outside the province of the citizen. But, once having ascertained the true limits of the privilege and that the documents fall within those limits, the law does not require, in the case of a citizen (as the applicant concedes), that a further hurdle be surmounted, namely that each document be subject to scrutiny to see whether its disclosure would be contrary to some more general public interest. Nothing that the applicant put to us in our view supports the submission that such an additional requirement applies when the claim for legal professional privilege is put forward by or on behalf of a government or a governmental agency. We think the true principle is that, once it is established that the document falls squarely within the limits of the privilege properly ascertained, the document is protected from disclosure in the absence of a waiver. It would be contrary to principle to import into this branch of the law in its application to a government or a governmental agency the additional limitation which the applicant suggests.

11. The applicant also submitted that the provisions of the Act operate to narrow the scope of the legal professional privilege to which sub-section 42(1) of the Act refers. In support of this submission he referred to section 3, section 11, sub-section 9(1) read with sub-section 42(2) and section 61. Section 3 enacts that the object of the Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth. Section 11 provides for a legally enforceable right, expressed to be subject to the Act, to obtain access in accordance with the Act to documents other than exempt documents. Sub-section 9(1) deals with the making available for inspection and purchase of documents provided by an agency for the use of, or used by, the agency or its officers in making decisions or recommendations under or for the purposes of an enactment or scheme administered by the agency. Sub-section 42(2) provides -

"(2) A document of the kind referred to in
sub-section 9(1) is not an exempt
document by virtue of sub-section (1) of
this section by reason only of the
inclusion in the document of matter that
is used or to be used for the purpose of
the making of decisions or
recommendations referred to in
sub-section 9(1)."

Section 61 places on the agency to which a request is made the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant. The applicant also referred to the exemption provisions of the Act, other than section 42, which he characterised as giving effect to "essential public interests". He submitted that to limit the operation of sub-section 42(1) in the manner he suggested would not, because of the presence of those other exemption provisions, result in access to documents being given where an essential public interest required non disclosure.

12. This submission must also be rejected. Reading the Act as a whole we can discern no reason for reading down the plain language of sub-section 42(1). That sub-section recognises that there will be circumstances in which the law gives protection from production on grounds of legal professional privilege and it leaves the scope of that protection to be determined by the application of the relevant principles of the general law. We see no reason derived from a consideration of the other provisions of the Act to limit the exemption for which sub-section 42(1) provides.

13. As already mentioned the Tribunal found, on the material before it, that all the documents remaining in dispute, with the exception of documents 33 and 35, were brought into existence in order to record advice received from or instructions given to, or to be given to, the respondent's legal representatives in relation to the applicant's request for access dated 2 December 1982.

14. The applicant submitted that it was not established by the evidence, and the Tribunal, as a matter of law, could not have been satisfied, that the relationship between the respondent and those referred to by the Tribunal as its legal representatives, being officers of the Attorney-General's Department including officers of the Deputy Crown Solicitor's Office, was that of solicitor and client. To ask whether the relationship was one of solicitor and client is not entirely apt in this context. It is more accurate to ask whether the relationship was such that the officers of the Attorney-General's Department were acting as independent legal advisers to the respondent.

15. As to the first aspect of this submission we need say no more than that the question whether the relationship was of the requisite character was one of fact for the Tribunal and we are satisfied that there was material before it upon which it could find that such a relationship existed. The role of the officers concerned was clearly to provide legal advice and assistance and, particularly in the case of the officers of the Deputy Crown Solicitor's Office, to brief and instruct counsel in the conduct on behalf of the respondent of the proceedings before the Tribunal arising from the refusal of the respondent to give access to the documents sought in the applicant's request dated 2 December 1982. There is, in our view, nothing arising from the role of the Tribunal or from the nature of the proceedings before it which would require a conclusion, as a matter of law, that the relationship between a governmental agency and the officers of the Attorney-General's Department could not, in the circumstances mentioned, be that of client and independent legal adviser.

16. It is implicit in what we have said that not all communications between officers of the Attorney-General's Department and a governmental agency will necessarily answer the description of communications giving advice as an independent legal adviser in the sense necessary to attract legal professional privilege. The nature of the relationship and of the documents will need to be examined in each case. Here, however, the Tribunal has reached a decision on the matter adverse to the applicant's submissions and we are not convinced that the Tribunal fell into error in reaching its conclusion.

17. It was also submitted that, at the time the Tribunal heard the application for review of the refusal to give the applicant access to the above documents, the proceedings before the Tribunal in relation to the request dated 2 December 1982 had concluded and the time for appeal to this Court had expired without an appeal being instituted. In those circumstances it was asserted that, even if the documents had previously been the subject of legal professional privilege, that privilege ceased with the termination of the proceedings. It was said that this limitation applied only to a government or a governmental agency and had no application where the claim for privilege was made by a citizen.

18. No authority was cited in support of this submission. We think it is plainly incorrect.

19. Documents 33 and 35 were found by the Tribunal to be draft communications from the Treasurer to the Attorney-General which were intended to be made in confidence with a view to obtaining legal advice or assistance. If the documents properly answer this description they are clearly the subject of legal professional privilege. Whether they answer that description was clearly a question of fact for the Tribunal. The applicant has not established any error of law on the part of the Tribunal in reaching its conclusion that they were properly so described.

20. The applicant also challenges that part of the decision of the Tribunal as determined that the documents referred to were documents falling within paragraph 36(1)(a) of the Act.

21. In the light of the conclusion to which we have come that the applicant has failed to establish any sufficient ground for the Court interfering with the decision of the Tribunal that all of the documents are exempt documents by virtue of the provisions of sub-section 42(1) of the Act, it is unnecessary for the Court to consider whether they are also exempt under paragraph 36(1)(a).

22. The appeal is dismissed with costs.