Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53 (7 February 2003)

Last Updated: 7 April 2003

FEDERAL COURT OF AUSTRALIA

Bennett v Chief Executive Officer of the Australian Customs Service

[2003] FCA 53

ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal - Applicant requested documents pursuant to Freedom of Information Act 1982 (Cth) - respondent refused access to documents on the basis of legal professional privilege - respondent's legal advisors had written to applicant's legal advisors on issues relating to the legal proceedings between the parties - whether respondent waived legal professional privilege over documents - whether there were other grounds on which privilege was waived

Administrative Appeals Tribunal Act 1975 (Cth)

Freedom of Information Act 1982 (Cth)

Public Service Act - Code of Conduct

Public Service Act 1922 (Cth)

Commissioner of AFP v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, referred to

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, referred to

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 168 ALR 123, followed

Commonwealth of Australia v Dutton [2000] FCA 1466; (2000) 102 FCR 168, followed

Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 12 ALD 251, not followed

Re Sullivan and Department of Industry, Science and Technology (1996) 49 ALD 743, considered

Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, referred to

Waterford v Department of the Treasury (1985) 5 FCR 76, referred to

Re Smith and Administrative Services Department (1993) 1 QAR 22, cited

Re Clarkson and Attorney-General's Department (1990) 4 VAR 197 at 198, cited

Mann v Carnell [1999] HCA 66; [1999] 201 CLR 1, followed

Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, referred to

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, referred to

SVI Systems Pty Ltd v Best & Less Pty Ltd [2000] FCA 1507, cited

Allatech v Construction Management Group [2002] NSWSC 723, cited

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, followed

Ainsworth v Wilding [1900] 2 Ch 315, referred to

"Daily Express" (1908) (Limited) v Mountain (1916) 32 TLR 592 (CA), referred to

Geraghty & Ors v Woodforth [1957] QWN 42, referred to

R v Manchester Crown Court; Ex parte Rogers [1999] 1 WLR 832, referred to

Packer v Deputy Commissioner of Taxation (Qld) [1985] 1 Qd R 275, cited

Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58, cited

Cook v Pasminco Pty Ltd (No. 2) [2000] FCA 1819; (2000) 107 FCR 44, cited

Re Drake and the Minister for Immigration and Ethnic Affairs No. 2 (1979) 2 ALD 634, referred to

Ligertwood "Australian Evidence" (3^rd ed) Butterworths, Sydney, 1998

PETER PHILLIP BENNETT v CHIEF EXECUTIVE OFFICER OF AUSTRALIAN CUSTOMS SERVICE

A 20 OF 2002

MADGWICK J

7 FEBRUARY 2003

SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 20 OF 2002

BETWEEN:	PETER PHILLIP BENNETT APPLICANT
AND:	CHIEF EXECUTIVE OFFICER OF AUSTRALIAN CUSTOMS SERVICE RESPONDENT
JUDGE:	MADGWICK
DATE OF ORDER:	7 FEBRUARY 2003
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1. Access is to be given to the applicant to:

A The following parts of Documents 24 and 25 (which are, so far as they are not privileged, identical);

Paras 1 and 2

Para 3: first sentence

Para 4: first two sentences down to and including "to the following effect:"

Paras 10 and 11

Para 17: first sentence down to and including "QC"

Para 18: first sentence

Paras 19, 20 and 21

B Document 29

2. Otherwise the application is dismissed.

3. The parties are to file and serve short written submissions as to the issue of costs within 21 days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 20 OF 2002

BETWEEN:	PETER PHILLIP BENNETT APPLICANT
AND:	CHIEF EXECUTIVE OFFICER OF AUSTRALIAN CUSTOMS SERVICE RESPONDENT

JUDGE:	MADGWICK
DATE:	7 FEBRUARY 2003
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

HIS HONOUR:

Introduction

1 This is an application by way of appeal on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The appeal is from a decision of the Administrative Appeals Tribunal ("the AAT") dated 5 April 2002, which concerned the applicant's partially unsuccessful application for review of a decision by the respondent to refuse him access to certain documents requested under the Freedom of Information Act 1982 (Cth) ("the FOI Act") on the basis of legal professional privilege.

2 The current appeal arises out of earlier litigation between Mr Bennett and the respondent, Australian Customs Service ("Customs"). In 1999, Mr Bennett was charged with breaching the Public Service Act - Code of Conduct (the "Code of Conduct") following public comments made by Mr Bennett, in his capacity as the Federal President of the Customs Officers Association of Australia, a trade union, which Customs considered were adverse to its interests.

3 As a result of the laying of these disciplinary charges, Mr Bennett commenced proceedings in the High Court challenging the validity of the relevant regulations on the basis that they breached the implied guarantee of freedom of political communication under the Commonwealth Constitution and that the regulations were ultra vires as being disproportionate with the objects of the Public Service Act 1922 (Cth) ("the PS Act"). The proceedings were remitted to this Court but, prior to the hearing, negotiations and discussions between the parties led to the withdrawal of the disciplinary charges against Mr Bennett.

4 The Appendix to these reasons sets out the relevant provisions of the FOI Act.

Requests for documents under the FOI Act

5 On 6 April 2001, Mr Bennett wrote to Customs requesting "all documents or records created or otherwise dealt with since 01 January 1998, which relate to, or are about me, held by or under the control of [Customs]" (original emphasis) under the FOI Act. On 29 May 2001, an authorised decision-maker advised that certain documents would be released but that 51 documents were subject to legal professional privilege and were exempt from release pursuant to s 42(1) of the FOI Act. Mr Bennett requested an internal review of the decision and, by letter of 13 July 2001, was later advised that 18 documents would be released but that 43 documents remained exempt under the FOI Act for reasons of legal professional privilege.

6 Mr Bennett then sought review by the AAT of the internal review decision and on 25 February 2002, the AAT consented to the decision under review being altered, in accordance with s 26 of the AAT Act. On 28 February 2002, an authorised decision-maker altered the decision by advising Mr Bennett that an additional 15 documents would be released and a further document, with exempt material deleted, would also be released.

7 On 12 September 2001 Mr Bennett, by his solicitors, made a second request for:

"all documents or records held, created or otherwise dealt with by the Australian Customs Service;

a) which relate to, or are about me, but

b) which were not listed in the aforementioned schedules and

c) were held, created or otherwise dealt with by the ACS since January 1999"

By letter of 15 November 2001 an authorised decision-maker advised that a number of documents would be released to Mr Bennett but 67 folios would not be released as they remained exempt documents because of legal professional privilege. Mr Bennett sought internal review of that decision and on 25 January 2002, a further two documents were released to Mr Bennett whilst 13 documents remained exempt. Mr Bennett sought review of this decision by the AAT on 5 May 2002.

Proceedings before the AAT

8 At the commencement of the proceedings before the AAT on 4 April 2002, there were 35 documents that had not been released to Mr Bennett. Two documents were subsequently released at the hearing, leaving the release of 33 documents in dispute (documents 1-27 and 30-35, as numbered in the schedule prepared by Customs). The disputed documents were confidential exhibits before the AAT.

9 Having considered the relevant legislation and test for legal professional privilege (agreed by the parties to concern the dominant purpose of their creator), the AAT went on to identify the issues for determination as follows:

* Whether legal professional privilege attached to the documents at the time of their creation?

* Had any such privilege been defeated by an abuse of power by Customs?

* Had legal professional privilege been waived for any document?

* Could any of the documents be amended, pursuant to s 22, and be released in a form not disclosing exempt material?

* Was there any power in the Tribunal to release material otherwise exempted?

10 The AAT, subject to document 1 which was released, was satisfied that the documents in dispute were the subject of legal professional privilege at the time of their creation, having been brought into existence for the dominant purpose of use in actual or anticipated litigation.

11 It had been alleged by Mr Bennett that there had been "a deliberate plan or scheme by persons in [Customs] to defy the law and oust another person of his rights". The AAT was not satisfied that there was any evidence to support an allegation of a deliberate abuse of a statutory power, a crime or fraud, or abuse of authority for ulterior purposes. In the AAT's

view, whilst Mr Bennett might be sincere in this belief, there was no evidence to suggest anything other than an honest mistake which was sought to be corrected once recognised.

12 The next finding, and one which is relevant to the appeal in this Court, is the AAT's finding in relation to the question of waiver. Mr Bennett submitted that privilege had been waived because of information disclosed in a letter from the Australian Government Solicitor ("the AGS"), Customs' legal advisor, to Mr Bennett's legal advisor dated 28 September 1999. The letter concerned Customs' decision to revoke the disciplinary charges against Mr Bennett. The relevant paragraphs of the letter in respect of the issue of waiver are set out later in these reasons for judgment [see 22]. It is sufficient at this stage to note that the AAT, having compared these paragraphs with the contents of the exempt documents, found that whilst there were paragraphs in the exempt documents numbered 20 and 26 which were "almost word for word" with those paragraphs, both documents 20 and 26 postdated the letter of 28 September 1999 and therefore privilege in them could not have been "prospectively waived". The Member considered that there was an analogy between the facts of this situation and those in a situation involving copied documents. He referred to McHugh J's remarks in Commissioner of AFP v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at 552-53:

"No doubt it seems contrary to commonsense that the law should give privilege to the copy of a document when it does not give it to the original. But in this area of law, as in other areas of law and life, commonsense turns out to be a misleading guide. This is because legal professional privilege turns on purpose, and no argument is needed to show that the purpose of a client or lawyer in making a copy document may be very different from the purposes of the person who created the original.

To concentrate on the similarity between the original and the copy or on how the copy of a document came to be made is to miss the whole point of legal professional privilege. The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client's affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant."

13 In relation to the other exempt documents which predated the letter, only para 2 (set out below at [22]) was relevant and, in the view of the AAT Member, the letter of 28 September 1999 had only provided conclusions drawn from material which had been researched and presented in much more detail in the earlier advices. Any such disclosure of those conclusions was not inconsistent with maintaining the confidentiality that attached to the earlier documents and the limited disclosure had not resulted in a waiver of the privilege.

14 The AAT Member then went on to consider whether any of the documents could be amended into a form that could be released without disclosing the privileged material: s 22 of the FOI Act. Customs accepted that there could be partial release of exempt documents 22 and 23 and this concession by Customs was reflected in the final orders.

15 The AAT then addressed Mr Bennett's submission concerning s 14 of the FOI Act which provides that agencies may allow release of exempt documents in certain circumstances. Mr Bennett had submitted to the AAT that Customs had failed to give proper consideration to FOI Memorandum No. 98, issued by the Attorney-General to government departments, which recommended that agencies should release material (even if that material was the subject of an exemption) if no real harm would result from such release. The AAT Member found that he had no power to order the release of documents pursuant to s 14, referring to s 58(2) of the FOI Act, which the Member understood to mean that, once it was established that a document was exempt, "the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted."

16 The final orders of the AAT were to set aside the decision of the respondent and remit the matter to Customs for reconsideration with the following directions:

* Document 1 is not an exempt document for the purposes of the Act

* The only exempt matter in document 22 is paras 5 to 10 and the last sentence in para 11

* The only exempt matter in document 23 is paras 7 to 9

* The remaining documents (2 to 21, 24 to 27 and 30 to 35) are exempt documents pursuant to s 42 of the FOI Act.

Proceedings in this Court

17 In his amended notice of appeal Mr Bennett framed the questions of law for the Court to determine as follows:

"(a) whether or not the Senior Member erred in construing and applying

section 58 of the Freedom of Information Act 1982 ("the Act"); and

(b) whether or not the Senior Member erred in construing and applying section 22 of the Act; and

(c) whether the Senior Member erred in construing and applying sections 42(2) and 9(1) of the Act; and

(d) whether the Senior Member erred in determining that the respondent had not waived his right to assert legal professional privilege in respect of one, some or all of the documents that were the subject of the application before the Senior Member."

The FOI Act and legal professional privilege

18 Section 42 of the FOI Act provides that:

"(1) 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.

(2) A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (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 subsection 9(1)."

Subject to an issue raised at the hearing before me regarding exempt documents 24 and 25, which I shall address separately, the applicant did not seek to challenge the AAT's finding that, subject to questions of waiver, legal professional privilege applies to the documents because they were brought into existence for the dominant purpose of requesting or giving legal advice from an independent legal advisor for the purpose of litigation or anticipated litigation. Nor was it contended that the AAT had failed to apply the correct legal test. The real questions at issue were whether, for other reasons, the AAT had erred in finding the documents were exempt from release.

19 The purpose of legal professional privilege is often said to be to promote the public interest in the administration of justice by encouraging full and frank disclosure of information by the client to his or her legal advisor: see e.g. Grant v Downs [1976] HCA 63; (1976) 135 CLR 674. The test for the privilege is whether the communications between a client and his or her legal adviser came into existence for the dominant purpose of giving or receiving legal advice or for use in existing or anticipated litigation: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 168 ALR 123. Documents that are subject to legal professional privilege are exempt from release under the FOI Act: see s 18(2) and Part IV of the FOI Act.

20 During the course of the hearing, counsel agreed that, in respect of the principles relating to legal professional privilege referred to in s 42 (2) of the FOI Act, it was relevant to have recourse to the common law and not Division 1 of Part 3.10 (ss 117 to 126) of the Evidence Act 1995 (Cth) ("the Evidence Act"). Counsel referred to the decision of the Full Court in Commonwealth of Australia v Dutton [2000] FCA 1466; (2000) 102 FCR 168 in which the Full Court observed obiter that the common law was applicable and that this was clear from the approach taken in Esso Australia where the High Court had found that the Evidence Act was relevant to adducing evidence in Court, but in all other respects the common law applied. I agree.

Waiver of legal professional privilege

21 Counsel for the applicant relied on two items of correspondence from Customs' legal advisors, the AGS, to Mr Bennett's legal advisors to allege that any privilege over the exempt documents has been waived. The correspondence includes a letter of 28 September 1999 and a letter of 5 January 2000, which concern the negotiations for settlement of the proceedings arising out of the disciplinary charges against Mr Bennett.

22 Counsel for the applicant submits that the key document is the letter of 28 September 1999. The relevant paragraphs are as follows:

"2. In this regard, I note that in reaching the subject decisions the First Respondent [that is, the present respondent] construed Public Service Regulation 7(13) broadly, in the light of legal advice which had been provided to him. As a consequence of the proceedings instituted by your client, the correctness of this legal advice has been reconsidered. AGS has now advised Customs that Public Service Regulation 7(13) does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or `read down' so as not to apply to public comment on matters of administration which are already on the public record. Public Service Regulation 7(13) does operate, however, to prohibit the giving/disclosing of official information (i.e. information acquired in the course of duties as an officer) which is not already a matter of public record.

8. In this regard, I note that it remains the position that any officer should not misrepresent matters relating to the public business of Customs (whether those matters are on the public record or not). Moreover, any giving/disclosing of information about the public business of Customs, or about matters of which an officer has official knowledge, ought conform to the requirements/standards set out in the APS Code of Conduct enshrined in Public Service Regulation 7, a copy of which has been previously provided to your client. For instance, it is clear that Public Service Regulation 7(11) requires an APS employee, at all times, to behave in a way that upholds the integrity and good reputation of the Service. This obligation does not apply only when an APS employee is acting in the course of employment - in this regard, the wording of sub-regulation 7(11) may be contrasted with other provisions of regulation 7. Moreover, the Act defines misconduct to include improper conduct as an officer (56(d) of the Act) and improper conduct as an officer (56(e) of the Act). The latter category of misconduct applies where the conduct in question adversely affects the performance of an officer's duties (including the duty imposed by sub-regulation 7(11)) or brings the Service into disrepute. In addition, any public comment by an officer of Customs must pay due regard to section 16 of the Customs Administration Act 1985.

9. AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of the COA. It is a matter for your client, in the light (perhaps) of legal advice provided by you, whether he adheres to or moderates his position on this question. But one thing is clear. Any genuine subjective belief on the part of your client concerning his right to make public comment as President of COA will not forestall the possibility of a finding of misconduct (O'Connell v Palmer (1994) 53 FCR 429). I mention this so that your client is in the best possible position to reflect on the advisability of future public comment, and the terms thereof."

23 Without the benefit of having seen the exempt documents, counsel for the applicant submits that it is evident that those documents include details of the matters advised in the letter of 28 September 1999 and as such there has been substantial disclosure of the legal advice given about the relevant provisions of the PS Act and regulations, including the following:

(a) that reg. 7(13) does not apply to all public comment by public servants but must be read down to exclude comment on matters that are already on the public record (see para 2 of the letter of 28 September 1999);

(b) that officers should not misrepresent the official position, various examples being given of how officers should, in their public statements, conform to the Code of Conduct, because of the effect of reg. 7 (see para 8 of the letter of 28 September 1999);

(c) that Mr Bennett is not correct in saying that he is not subject to the PS Act and Regulations if he makes public comments in his capacity as President of the Customs Officers Association (see para 9 of the letter of 28 September 1999).

24 The respondent denies that it has waived its right to privilege over the exempt documents. Counsel for the respondent submits that each of the exempt documents "records confidential communications which passed either between the respondent and his legal advisers, the AGS and the Solicitor-General, or another Commonwealth agency and its legal advisers, the Solicitor-General and the AGS, for the dominant purpose of obtaining legal advice". Further, the Solicitor-General and the AGS are separate legal entities and are separate legal advisors to Customs: it is submitted that there has been no disclosure of the advice provided by the Solicitor-General.

25 The respondent submits that the operation of s 42(1) of the FOI Act is unaffected by conduct which would in legal proceedings amount to waiver: see Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 12 ALD 251 ("Colonial Mutual") where Jenkinson J, in his role as a Presidential Member of the AAT, ruled that the question of waiver did not arise under s 42 of the FOI Act (at 252):

"In my opinion the operation of s 42(1) is unaffected by any conduct which, in legal proceedings, would be regarded as having constituted waiver of legal professional privilege. The sub-section does not require that the document would be privileged from production, but that the document be `of such a nature that it would be privileged'. The criterion of the exemption, so expressed, is in my opinion framed by reference to acts and events which precede or are contemporaneous with the making of the document: the nature of the document is determined by what occasioned, and by what went into, its making and is unaffected, in my opinion, by subsequent events of the kind which might constitute waiver of legal professional privilege."

However, Jenkinson J then went on to consider whether privilege had been waived if s 42(1) could be affected by waiver. On this alternative approach, Jenkinson J found that there had been no waiver of the advice of the Solicitor-General. His Honour said (at 253):

"The disclosures in the eight documents state merely a few general conclusions which are to be found in the written opinion, but not any of the reasons stated for those conclusions. Nothing appears to suggest that the person who made the decision to grant access to the documents might have supposed it possible that, thereby, the privilege in respect of the written opinion would be waived. No consideration of fairness to the applicant, or to any other person, moves to a conclusion that the privilege has been waived."

26 An alternative approach to the construction of s 42(1) was taken in Re Sullivan and Department of Industry, Science and Technology (1997-98) 49 ALD 743. Senior Member Bayne, at 756, observed that, whilst there was no authority contrary to the approach taken by Jenkinson J, there were passages in the decisions of the High Court and the Full Court which suggested that it was accepted that waiver is relevant in the context of s 42(1) of the FOI Act: see Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 and Waterford v Department of the Treasury (1985) 5 FCR 76. Senior Member Bayne also noted that there had been acceptance of the relevance of issues of waiver in relation to the Queensland and Victorian FOI legislation: see Re Smith and Administrative Services Department (1993) 1 QAR 22 at 56-7 and Re Clarkson and Attorney-General's Department (1990) 4 VAR 197 at 198.

27 Like Mr Bayne, I find it difficult to discern the policy reason which would justify an approach which considers issues of waiver as irrelevant under s 42(1) of the FOI Act. Section 3 makes it very clear that the Act is to be interpreted in favour of freedom of access to information. In the face of such a section, it is really only where the Act's language intractably requires it, that a consideration favouring release of documents should not be sustained. In my opinion, Colonial Mutual should not be followed.

28 Alternatively, the respondent submits that, if legal professional privilege can be waived under the FOI Act, then the relevant test is whether the client does, or authorises the doing of, something that is inconsistent with the confidentiality with which the privilege is intended to protect. The respondent submits that there has been no inconsistency in its actions and as such, the documents should remain privileged. In Mann v Carnell [1999] HCA 66; [1999] 201 CLR 1, a case involving the disclosure of a privileged document to a third party on a confidential basis, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28]-[29]:

"Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.

...

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is `imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is 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." (empasis added)

At [34], their Honours observed:

"Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect."

29 The respondent submits that under the common law the question of waiver involves a test that does not entirely depend on whether the substance of the legal advice has been disclosed (c.f. the Evidence Act, s 122); the test also looks at whether it is inconsistent for the client to disclose part of the communication and still maintain confidentiality in the balance of the communication. The respondent submits that it has gained no unfair advantage from asserting legal professional privilege over the balance of the material. If close examination of the privileged documents is undertaken, counsel for the respondent submits that it is clear that there has been no selective quoting of the advice. The respondent says that Mr Bennett was informed of the conclusions reached in respect of the legal issues arising from the disciplinary charges and of Customs' willingness to revoke these charges. A broad indication of how Customs proposed to act in the future was also given. On this basis, counsel for the respondent submits that any further disclosure of the legal reasoning is not necessary to enable Mr Bennett to obtain an understanding of those matters. Further, there is advice on other topics including advice from the Solicitor-General contained in the exempt documents which has not been disclosed and accordingly, the privilege attached to that advice has not been waived.

30 In Mann v Carnell, the ACT Chief Minister conveyed the terms of legal advice, on a confidential basis, to another Member of the Legislative Assembly, so that he could consider the reasonableness of the government's conduct in certain litigation. A majority in the High Court held that such actions did not amount to a waiver of the privilege. The majority observed that, if the advice had been given to the Member on the basis that he was at liberty to show it to Dr Mann, then this would have been a waiver of the privilege. As indicated by the majority, considerations of fairness may be relevant but they are apparently not necessarily decisive (compare the approach in Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95-96; 132 and also Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 487-8).

31 Counsel for the applicant replies that it will be a question of degree as to whether the disclosure has amounted to a waiver of the privilege. In circumstances, for example, where a solicitor merely indicates to the other side that "counsel advises the matter should be defended", this would be unlikely to amount to waiver as the legal reasoning and advice on the prospects of success have not been disclosed - the degree of disclosure is so small that it would raise no question of inconsistency. In contrast, the applicant submits that, if there were a narrow issue in dispute and the legal advisor's reasoning and the factual assumptions to which the reasoning was applied were disclosed to the other side, then this may well amount to waiver of privilege in relation to counsel's advice. In this case, counsel submits, there was discussion of the facts in relation to Mr Bennett's case and the legal reasoning put forward in the letter of 28 September 1999. This was such as to indicate inconsistency with maintenance of confidentiality in the advice.

32 The parties agreed that I should examine the exempt documents against the letter of 28 September 1999 to determine if there has been a waiver of privilege.

33 In my opinion, it should not be held that there has been such a waiver. It is necessary to understand what the Deputy Counsel for the AGS said in his letter of 28 September 1999. In para 2 of that letter, the third and the last sentences clearly enough do no more than state the conclusion from or logical result of the legal advice. The penultimate sentence can possibly be read as disclosing a reason for the conclusion but it seems to me that the better view is that it, too, is merely a part of the statement of such a conclusion. The paragraph does no more than say what is the position on the relevant subject that Customs had been advised to take.

34 Para 8 of the letter offers some free legal advice to Mr Bennett and his solicitor, as does most of para 9. It is to be readily inferred that advice along those lines was also given by AGS to its client. But that does not amount to a disclosure of any part of what was an otherwise protected communication. The first sentence of para 9 clearly does no more than to indicate that a body of solicitors had advised its clients that the position of its erstwhile representative was mistaken. This, again, in substance does no more than to indicate that the solicitors had advised their client to adopt a different position.

35 To disclose the legal position or stance that a lawyer has advised a client to take is, in my view, not inconsistent with the maintenance of confidentiality in the communication giving the advice (which may have much detail or a lack of such detail) at least where oppression is not being essayed by such disclosure. It has never, in my experience, been contended to the contrary, although it is an everyday occurrence for solicitors to tell their client's opponents or potential opponents that their clients have been advised to take some specified course or stance. No doubt there are cases, of which this may perhaps be one, where there are questions of degree as to whether the detail of the advice has also been disclosed to such an extent that it lacks congruity to make the disclosure but seek to keep the actual advice confidential. I understand the notion of inconsistency in this context to be concerned with questions of incongruity. In my view, this case demonstrates no such incongruity.

Further submissions on exempt documents 24 and 25

36 During the course of the hearing, I examined exempt documents 24 and 25 and following a discussion with counsel, it became apparent that part of the material in those documents concerned a question of the legal costs that AGS would charge Customs. The applicant's counsel raised an objection to privilege attaching to documents in such

circumstances and leave was granted to the parties to file further submissions in respect of this issue.

37 In her further written submissions, counsel for the respondent maintains that documents 24 and 25 contain confidential communications between Customs and its legal advisors which were privileged and had not been waived by the letter of 28 September 1999. Privilege is claimed in respect of advice provided by the AGS and the Solicitor-General (separate legal advisors to Customs). There is nothing in the letter of 28 September 1999 concerning the advice of the Solicitor-General. Counsel submits that the documents were created "to discuss payment of legal costs. They record legal advice given and the basis for that advice. There is some administrative material in the letters." The respondent submits that the fact that extraneous material was included does not deny this advice the protection of the privilege; the test is concerned with the reason for the document's creation: Waterford v Commonwealth at 64 per Mason J. Reference is also made to the record of advice on page two of the letter. It is submitted that it relates to advice given by the AGS on a matter which is mentioned in para 2 of the 28 September 1999 letter. However, it is submitted that the sentence does not disclose any of the substance of the legal advice given but merely notes that the decision was taken in light of the legal advice given, and as such there has not been even a partial waiver: Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 488; SVI Systems Pty Ltd v Best & Less Pty Ltd [2000] FCA 1507; Allatech v Construction Management Group [2002] NSWSC 723. If the Court does not accept that privilege attaches to documents 24 and 25 in their entirety, then the respondent submits that the privileged material can be severed from the remainder of the documents; and because of the content, it would be appropriate for the matter to be remitted to the AAT for further consideration, including whether the documents are exempt under other provisions of the FOI Act, such as under s 43 which concerns business affairs.

38 In reply, counsel for the applicant submits that because the documents were confidential exhibits before the AAT he was not in a position to comment on the AAT's finding that legal professional privilege attached to documents 24 and 25. The applicant says however that the respondent's submissions indicate that the documents were created for the purpose of discussing the issue of legal fees and that this purpose cannot attract privilege. The fact that these documents may contain extracts of earlier advice is not sufficient for the privilege to be claimed. Further, the applicant objects to the matter being remitted to the AAT for further consideration, submitting that Customs is not entitled to raise new claims in relation to the documents when it could have raised these issues earlier.

39 With regard to documents 24 and 25, but for the course of authority, I should have thought that the question might be resolved on a relatively simple basis. The justification for the notion of legal professional privilege is that it aids the rule of law by facilitating and encouraging citizens to understand what the law requires or says, or what curial processes demand or may produce. Candour is necessary to effectuate the purposes of the privilege's justification and maintenance of intended confidentiality is vital to encourage candour from both client and legal advisor. In his book "Australian Evidence" (3^rd ed), Mr Ligertwood summarised the matter in this way:

"In a series of modern High Court decisions the rationale behind legal professional privilege is put forward in the following terms: citizens (natural and artificial) are accorded rights and obligations by the law which it is their prerogative to understand fully and, ultimately, to enforce and protect through the courts; these rights and obligations are capable of being effectively understood and enforced only through expert legal advice and assistance; and to encourage citizens to seek that advice and assistance through frank and open discussion, communications made with lawyers seeking professional legal advice and assistance are protected from disclosure. This rationale protects communications whether or not they seek advice related to litigation.

Legal professional privilege should apply in all Western democracies, for its rationale does not lie in litigation and the more extreme details of the common law adversary trial but in the right of citizens to obtain legal advice. Most recently the High Court has put the justification in the strongest of terms. The `basic justification for allowing the privilege is the public interest in facilitating the rule of law', the privilege is a `practical guarantee of fundamental, constitutional or human rights', and as such it is especially important to protect `the weak, the frightened, the unpopular and the disadvantaged'. Put in these terms the privilege applies not merely as a rule of evidence to prevent compulsory disclosure in the course of court proceedings but takes on the character of a substantive right which applies to prevent any compulsory access to client-lawyer communications."

40 More recently, in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, Kirby J said:

"The privilege as an important right: In so far as this Court has dealt with the topic of legal professional privilege ... it has consistently emphasised the importance of the privilege as a basic doctrine of the law and a "practical guarantee of fundamental rights", not simply a rule of evidence law applicable to judicial or quasi-judicial proceedings. It has been increasingly accepted that legal professional privilege is an important civil right to be safeguarded by the law. Of course, derogations appropriate to the needs of a democratic society may be contemplated. However, vigilance is required against accidental and unintended erosions of the right.

Legal professional privilege is also an important human right deserving of special protection for that reason. I am conscious of the fact that Daniels is a corporation. As such, it may not be entitled to all of the rights described as fundamental human rights. Nevertheless, in the expositions of the rationale for legal professional privilege, it has not so far been suggested (nor was it argued in this case) that such privilege is somehow inapplicable to a corporation or is of a kind that would not attract the presumption of parliamentary respect for its continuance in such a case.

In [an] explanation before the European Court of Justice of the reasons for legal professional privilege, Advocate-General Slynn explained the principle in terms applicable to both natural and legal persons:

`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 [sic] in a civilised society to be able to turn to his lawyer for advice and help, and if 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.' "

41 The justification for the privilege assumes the existence of a free and independent legal profession. The most common existing and historical mode of organisation of that profession is and has been private practice involving the payment of fees by clients to their lawyers for services such as the giving of legal advice and the conduct of legal proceedings. An ordinary incident of obtaining legal advice and being legally represented is the payment of and communications involving negotiations as to lawyers' costs and fees between lawyer and client. Usually such communications are confidential and the success of the negotiations will generally be assisted by the negotiators being able to rely on such confidentiality. Further, it is by no means uncommon for reference to be made in such communications to confidential material canvassed or to be canvassed in actual advices sought.

42 Thus, derivatively from the essential rationale of the privilege but not distantly so, I should have thought there is a strong public interest in the extension of the privilege to communications made in the course of such negotiations. Older authority on like subjects seems to support such a view.

43 In Ainsworth v Wilding [1900] 2 Ch 315 at 322, Stirling J said

`As a general rule a bill of costs relating to litigation actual or contemplated is privileged: Chant v Brown (1852) 9 Hare 790 and Turton v Barber (1874) LR 17 Eq 329.'

"Daily Express" (1908) (Limited) v Mountain (1916) 32 TLR 592 (CA) concerned an action by a newspaper proprietor in respect of an insurance policy which insured the plaintiffs against damages, costs and expenses incurred in the defence or compromise of proceedings in respect of matters printed in the paper. A photographer from the paper had, contrary to an agreement with the promoter, taken photographs at a boxing contest. It was held in that case that the ordinary rule as to discovery applied and that documents, including the bill of costs, were privileged but that, because the plaintiffs were suing to recover items contained in the bill of costs they ought to give particulars of the items as it was relevant to know how the total bill was arrived at. At 593 Swinfen Eady LJ said:

"A bill of costs was a document which came within the rule as to privilege. It contained the history of the transactions to which it related and was valuable because it recorded events in a chronological order."

44 More recently, however a narrower view of the scope of the privilege has more often been taken. In Geraghty & Ors v Woodforth [1957] QWN 42, production of a Bill of Costs (relating to the preparation of documents settling property) was sought in respect of an action between beneficiaries for rectification of a settlement. An objection was made on the basis of professional privilege. Stanley J held that the document, which was said to contain an admission, should be produced. In R v Manchester Crown Court; Ex parte Rogers [1999] 1 WLR 832, an application was made for production of solicitors' records. The police suspected that the applicant had been responsible for a crime and were seeking to establish if he had attended a solicitor's firm at a particular date and time and the applicant had refused to answer questions at a police interview. It was held that the privilege only applied to communications made for the purpose of seeking and receiving legal advice so as to enable a client to make full disclosure to his legal advisor for that purpose without apprehension of subsequent disclosure against his will; the record of time on an attendance note, time sheet or fee record was in no sense a communication: it recorded nothing passing between solicitor and client and was not connected with the obtaining of legal advice. A record of appointment, although involving a communication between the client and the solicitor's office could not, without more, be regarded as being in connection with legal advice. It was ordered that documents be produced but that any legal advice on those records deleted.

45 In Australia, the view has been taken that, unless they actually disclose the subject matter of intended advice, a trust account client ledger (Packer v Deputy Commissioner of Taxation (Qld) [1985] 1 Qd R 275), memoranda of fees (Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 68) and a costs agreement between solicitor and client (Cook v Pasminco Pty Ltd (No. 2) [2000] FCA 1819; (2000) 107 FCR 44 at 53) have all been held not to attract legal professional privilege. However a firm line has been taken that privilege is attracted by such documents where they would disclose legal advice.

46 I conclude that, to the extent that the documents disclose legal advice, but only to that extent, the documents are privileged. I will permit access accordingly only to those parts which do not involve any such disclosure. On a similar basis, I will permit access to Document 29 which is the cost agreement between Customs and its legal advisor.

Should legal professional privilege have been claimed?

47 Counsel for the applicant submits that, prior to the AAT's consideration of the question of legal professional privilege, the AAT failed to review the preliminary decision of the respondent to claim privilege in the first place. Reference was made to a Cabinet decision (made in March 1986) and a document entitled "FOI Memorandum No. 98" from the Commonwealth Attorney-General's Department which advised government departments that privilege should not be claimed unless real harm would result from the release of that material. Whilst accepting that the FOI Memorandum and the Cabinet decision have no formal status under the FOI Act, counsel for the applicant makes the following submissions about their relevance to this proceeding. Firstly, he submits that the AAT has the power to consider such preliminary matters under s 58(1) of the FOI Act. The applicant submits that s 58(1) creates two separate heads of power, namely the power to:

(i) review any decision that has been made by an agency in respect of the request; and

(ii) to decide any matter in relation to that request that, under the FOI Act, could have been decided by the agency.

48 The applicant submits that the power described in (i) is not limited to decisions made under the FOI Act but would include the review of any decisions, including a preliminary decision of an agency as to whether legal professional privilege should be claimed. It is only (ii) which is confined to a decision made under the FOI Act. The applicant submits that the AAT erred in failing to review the preliminary decision of Customs to claim privilege. Mr Bennett's reference to the FOI Memorandum No. 98 was dismissed at the AAT hearing as irrelevant to the issues before the AAT (this occurred following an objection made by Customs when Mr Bennett raised this issue during cross-examination of one of Customs' employees). Counsel for the applicant submits that, whilst s 58(2) of the FOI Act prevents the AAT from releasing documents that have been found to be exempt, s 58(2) only becomes relevant after the threshold question of whether privilege ought to have been claimed has been considered.

49 Secondly, the applicant submits that, in respect of the Cabinet decision, the respondent failed to discharge its onus under s 61 of the FOI Act, as it failed to justify its decision to refuse access by reference to any consideration of the Cabinet decision. The applicant submits that Customs, whilst admitting that it had made a decision about the directive, failed to discharge the onus or burden cast upon it under s 61(1) of the FOI Act because it failed to justify its reasons in respect of the cabinet directive.

50 The third argument of the applicant is that the Cabinet decision was a statement of government policy and as such, it was a relevant matter for the agency to take into account. On review, the AAT should have considered the relevant government policy, especially a policy endorsed by Cabinet: see Re Drake and the Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634. The AAT's failure to do so meant it fell into legal error.

51 The respondent's argument is that there is only one decision that was the subject of review before the AAT. The terms of the FOI Memorandum and the Cabinet decision were just one of the factors to be taken into account by the decision-maker in deciding whether the exemption should have been claimed. In any case, the respondent submits that the AAT does not have the power under the FOI Act to review an exercise of an agency's discretion. The AAT's power to review decisions is set out in s 55(1) of the FOI Act and, once an agency has determined not to give access when the document is an exempt document (s 18), the AAT has no power to the determine that access should be granted.

52 My approach is as follows. The applicant's argument depends upon a theory that the FOI Act vested in the AAT power to review decisions other than those refusing to grant access to documents in accordance with a request duly made for such access. That does not appear to be contemplated by s 55 which, relevantly, limits the decisions as to which application may be made to the AAT for review to decisions refusing access. However, s 58(1) clearly envisages AAT review of some ancillary decisions relating to such requests. Nevertheless, s 58(1) is expressly made subject to the rest of s 58 and s 58(2) makes it clear that if the agency establishes that a document is exempt, as for example because of legal professional privilege, then the AAT does not have power to override a discretionary decision not to grant access to it. The agency did so establish, and s 58(2) therefore forecloses the matter. Further, what the applicant asks would involve the AAT in a contravention of s 63(c). In these circumstances considerations of the general propriety of having regard to government policy (c.f. Drake) cannot override the Act's prohibitions. The claim must fail.

Were the documents exempt under s 9 of the FOI Act?

53 Counsel for the applicant submits that at least some of the exempt documents fall within the scope of s 9(1) because they were used by Customs for the purpose of making decisions or recommendations, in this case in relation to the proposed disciplinary action against Mr Bennett, and were under or for the purposes of an enactment or scheme administered by Customs with respect to obligations, penalties or other detriments. It is conceded by the applicant that the documents which request advice do not fall within s 9(1) of the FOI Act but the applicant says that documents which give advice, or record advice given, do fall within the relevant categories.

54 Counsel for the respondent submits that the advice contained in the exempt documents does not contain material of general application but is legal advice given in a specific case on the application of the law in a particular instance. It is submitted that the apparent intention of Parliament was to allow access to documents that were of a generic nature. Alternatively, the respondent says that the relationship between Mr Bennett and Customs is that of employee and employer, and s 9(1) was intended to apply to documents of an agency "affecting a person as a member of the public" rather than as an employee of an agency. Reliance was placed on the Commonwealth Attorney-General's Department FOI Memorandum No. 24, para 17.

55 As presently advised I see no justification for concluding that agency employees as such are unable to take advantage of s 9(1) if they would otherwise be entitled to do so, and there are good reasons for concluding otherwise. However the case may be decided on a different basis.

56 The relevant statutory condition relied on is that "... documents ... are used by" the agency. There is no reason to think that that is so. The quoted phrase employs a form of continuous present tense of the verb "to use", in its passive voice. The clear implication from that form and from the terms of s 9(1) generally is that general use is required, as distinct from use in one case only. All that is known is that the particular documents about Mr Bennett's case were used in his case. If they (or some extract from, paraphrase of, them) are to be relied on generally, they may well, in such a case, be caught by s 9(1). But that cannot, in my opinion, be concluded from the materials in this case. Insofar as s 9(1) does not apply, the agency established its case that the agency's decision not to disclose it, on Mr Bennett's request, was justified.

Should the AAT have allowed partial release of the exempt documents?

57 The final argument of the applicant is that the AAT failed to give consideration to permitting access to parts of the documents that were not exempt. In view of my other conclusions, this matter does not fall for decision.

58 For these reasons, the application must in substance be dismissed. The formal orders I will make are:

1. Access is to be given to the applicant to:

A The following parts of Documents 24 and 25 (which are, so far as they are not privileged, identical);

Paras 1 and 2

Para 3: first sentence

Para 4: first two sentences down to and including "to the following effect:"

Paras 10 and 11

Para 17: first sentence down to and including "QC"

Para 18: first sentence

Paras 19, 20 and 21

B Document 29

2. Otherwise the application is dismissed.

59 However, having regard to the manifest policy of the government and, as far as I can presently see, to the lack of any active harm to Custom's interests had the balance of that letter been disclosed, a question arises as to the appropriate order as to costs. The parties are to let me have short written submissions within 21 days.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 7 February 2003

Counsel for the Applicant:	Mr C Erskine
Solicitor for the Applicant:	John Wilson Legal
Counsel for the Respondent:	Ms M Campbell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 September 2002
Date of Judgment:	7 February 2003

APPENDIX

Relevant provisions (and marginal notes) of FOI Act

Title: Freedom of Information Act 1982

Long Title: An Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies.

Section 3 - Object

(1) The object of this 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 by:

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

Section 9 - Certain documents to be available for inspection and purchase

(1) This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are 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, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:

(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;

(b) documents containing particulars of such a scheme, not being particulars contained in an enactment as published apart from this Act;

(c) documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactment or scheme; or

(d) documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;

but not including documents that are available to the public as published otherwise than by an agency or as published by another agency.

(2) The principal officer of an agency shall:

(a) cause copies of all documents to which this section applies in respect of the agency that are in use from time to time to be made available for inspection and for purchase by members of the public;

(b) cause to be prepared by a day not later than the relevant day in relation to the agency, and as soon as practicable after preparation to be made available, for inspection and for purchase by members of the public, at each Information Access Office, a statement (which may take the form of an index) specifying the documents of which copies are, at the time of preparation of the statement, available in accordance with paragraph (a) and the place or places where copies may be inspected and may be purchased; and

(c) cause to be prepared within 3 months, if practicable, and in any case not later than 12 months, after the preparation of the last preceding statement prepared in accordance with paragraph (b) or this paragraph, and as soon as practicable after preparation to be made available, for inspection and for purchase by members of the public, at each Information Access Office, a statement bringing up to date the information contained in that last preceding statement.

(2A) For the purposes of subsection (2):

(a) the relevant day in relation to an agency is:

(i) in the case of an agency that was in existence before the commencement of the Freedom of Information Laws Amendment Act 1986 --the first day after the commencement of that Act by which the agency, if the amendments made by that Act to subsection (2) of this section had not been made, would have been required under that subsection to publish a statement in the Gazette ; and

(ii) in the case of an agency that comes into existence on or after the commencement of the Freedom of Information Laws Amendment Act 1986 --the day that occurs 12 months after the day on which the agency comes into existence; and

(b) Information Access Office means a place that is an Information Access Office for the purposes of section 28.

...

(4) This section does not require a document of the kind referred to in subsection (1) containing exempt matter to be made available in accordance with subsection (2), but, if such a document is not so made available, the principal officer of the agency, or an officer of the agency acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the responsible Minister or principal officer of the agency, shall, if practicable, cause to be prepared a corresponding document, altered only to the extent necessary to exclude the exempt matter, and cause the document so prepared to be dealt with in accordance with subsection (2).

Part III--Access to documents

...

Section 11 - Right of access

(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.

Section 12 - Part not to apply to certain documents

(1) A person is not entitled to obtain access under this Part to:

(a) a document, or a copy of a document, which is, under the Archives Act 1983 , within the open access period within the meaning of that Act unless the document contains personal information (including personal information about a deceased person); or

(b) a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge; or

(ba) a document that is open to public access, as part of a land title register, in accordance with a law of a State or Territory where that access is subject to a fee or other charge; or

(c) a document that is available for purchase by the public in accordance with arrangements made by an agency.

...

Section 15 - Requests for access

(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.

(2) The request must:

(a) be in writing; and

(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and

...

Section 18 - Access to documents to be given on request

(1) Subject to this Act, where:

(a) a request is made in accordance with the requirements of subsection 15(2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and

(b) any charge that, under the regulations, is required to be paid before access is granted has been paid;

the person shall be given access to the document in accordance with this Act.

(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.

Section 22 - Deletion of exempt matter or irrelevant material

(1) Where:

(a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; and

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

...

Section 26 - Reasons and other particulars of decisions to be given

(1) Where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision of access to a document, the decision-maker shall cause the applicant to be given notice in writing of the decision, and the notice shall:

(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision;

(b) where the decision relates to a document of an agency, state the name and designation of the person giving the decision; and

(c) give to the applicant appropriate information concerning:

(i) his or her rights with respect to review of the decision;

(ii) his or her rights to make a complaint to the Ombudsman in relation to the decision; and

(iii) the procedure for the exercise of the rights referred to in subparagraphs (i) and (ii);

including (where applicable) particulars of the manner in which an application for review under section 54 may be made.

...

(2) A notice under this section is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document.

Part IV--Exempt documents

Section 42 - Documents subject to legal professional privilege

(1) 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.

(2) A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (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 subsection 9(1).

Part VI--Review of decisions

Section 55 - Applications to Administrative Appeals Tribunal

(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a request; or

...

Section 57 - Complaints to Ombudsman

(1) Subject to this Act, a person may complain to the Ombudsman concerning action taken by an agency to which this section applies in the exercise of powers or the performance of functions under this Act.

(2) In spite of anything contained in this Act, but subject to subsection 6(2) of the Ombudsman Act, the exercise of the powers of the Ombudsman under the Ombudsman Act in respect of matters arising under this Act is not precluded or restricted because of the rights conferred on persons by this Act to make applications to the Tribunal.

...

Section 58 - Powers of Tribunal

(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

(2) 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.

...

Section 61 - Onus

(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has 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.

...

Section 63 - Tribunal to ensure non-disclosure of certain matters

(1) In proceedings under this Part, the Tribunal shall make such order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 [which permits derogations from the concept of public hearing where confidential material is involved] as it thinks necessary having regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of:

(a) exempt matter contained in a document to which the proceedings relate; or

...