Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 (24 June 1987)

HIGH COURT OF AUSTRALIA

WATERFORD v. THE COMMONWEALTH OF AUSTRALIA [1987] HCA 25; (1987) 163 CLR 54
F.C. 87/025

Constitutional Law - Practice

High Court of Australia
Mason(1), Wilson(1), Brennan(2), Deane(3) and Dawson(4) JJ.

CATCHWORDS

Constitutional Law - Freedom of information - Exempt documents - Legal professional privilege - Communications between government and salaried legal advisers - Freedom of Information Act 1982 (Cth), s.42(1).

Practice - Discovery - Legal professional privilege - Communications between government and salaried legal advisers.

HEARING

1986 October 30, 1987, June 24; 24:6:1987
APPEAL from the Federal Court of Australia.

DECISION

MASON AND WILSON JJ.: In December 1982, the appellant made a request in writing to the Department of the Treasury ("the Department") for access to certain documents relating to projections made in the 1982-1983 Budget Papers and subsequently in a Ministerial press release regarding the estimated number of persons who would receive unemployment benefits. The request was made in accordance with s.15 of the Freedom of Information Act 1982 (Cth), as amended ("the Act"). Access to those documents was refused and in January 1983 the appellant applied in accordance with Part VI of the Act to the Administrative Appeals Tribunal ("the Tribunal") for a review of that decision. The application was heard and on 29 June 1983 the Tribunal delivered its decision affirming the refusal of access.

2. After the conclusion of the hearing of his application for review, but before the Tribunal delivered its decision, the appellant requested access to those documents in the possession of the Department which related to the processing of his earlier request. By letter dated 31 May 1983 the Secretary to the Department advised the appellant that with the exception of a few documents as described, his request for access was refused. On 2 June 1983 the appellant applied to the Tribunal for a review of the decision refusing access. In due course, 45 documents were identified as the documents to which the application for review related. The Tribunal was provided with an itemized schedule giving a brief description of the nature and content of each document. They are variously described as letters, draft letters, minutes, memoranda and notes. The minutes passed between officers of the Department or between an officer of the Department and the Treasurer. The notes were notes prepared by officers of the Department. The letters passed between the Attorney-General and the Treasurer. The memoranda passed between officers of the Department and officers of the Deputy Crown Solicitor's Office in the Australian Capital Territory (now the Australian Government Solicitor - Judiciary Act 1903 (Cth), as amended, s.55E). The Department claimed that documents numbered 1 to 38 and document numbered 45 were exempt documents under s.36 of the Act, being internal working documents the disclosure of which would be contrary to the public interest, and in this regard a conclusive certificate issued pursuant to s.36(3) of the Act was tendered. In addition to this claim, the Department claimed that all the documents numbered 1 to 45 were exempt documents by reason of s.42(1) of the Act, each document being the subject of legal professional privilege. For the purposes of this narrative, it is sufficient to record that the Tribunal was satisfied that 33 of the documents were the subject of legal professional privilege. The appellant thereupon exercised, with respect to 23 of these documents, the right of appeal, on a question of law, to the Federal Court of Australia conferred upon him by s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), as amended. The Federal Court (Fisher, Gallop and Neaves JJ.) dismissed the appeal.

3. The central question at issue in this appeal is whether it is open to the Commonwealth to claim legal professional privilege in the circumstances of this case, that is to say in respect of documents the subject-matter of which is legal advice obtained from within the Government and concerned with proceedings pending in the Tribunal. Counsel for the appellant introduced his submissions with the broader proposition that legal professional privilege could never be claimed in respect of communications passing between an instrumentality of the Crown and a salaried government lawyer, except perhaps in the case of commercial litigation. However, he frankly acknowledged that, with the possible exception of the ruling of the European Court of Justice in A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB 878, all the authorities were against him. The European Court of Justice acknowledged the protection given by the laws of the European Communities to the confidentiality of written communications between an independent lawyer and his client made for the purposes and in the interests of the client's rights of defence, but this was not a ruling in a common law context. In Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) (1972) 2 QB 102, Lord Denning M.R. stated the view of the Court of Appeal when he said, at p.129:

"The law relating to discovery was developed by the Chancery Courts
in the first half of the 19th century. At that time nearly all
legal advisers were in independent practice on their own account.
Nowadays it is very different. Many barristers and solicitors are
employed as legal advisers, whole time, by a single employer.
Sometimes the employer is a great commercial concern. At other
times it is a government department or a local authority. It may
even be the government itself, like the Treasury Solicitor and his
staff. In every case these legal advisers do legal work for their
employer and for no one else. They are paid, not by fees for each
piece of work, but by a fixed annual salary. They are, no doubt,
servants or agents of the employer.... They are regarded by the
law as in every respect in the same position as those who practise
on their own account. The only difference is that they act for one
client only, and not for several clients. They must uphold the
same standards of honour and of etiquette. They are subject to the
same duties to their client and to the court. They must respect
the same confidences. They and their clients have the same
privileges."
for his employer in another capacity, with the consequence that their communications in that capacity would not be subject to the privilege. He continued, at p.129:

"Being a servant or agent too, he may be under more pressure from
his client. So he must be careful to resist it. He must be as
independent in the doing of right as any other legal adviser....
There is a safeguard against abuse.... If there is any doubt as to
the propriety or validity of a claim for privilege, the master or
the judge should without hesitation inspect the documents himself
so as to see if the claim is well-founded, or not."

This aspect of the decision was not challenged when the case went on appeal to the House of Lords: (1974) A.C. 405. It has been applied in Canada by the Federal Court of Appeal in Re Director of Investigation and Research and Shell Canada Ltd. (1975) 55 DLR (3d) 713, at p 721 and by the Supreme Court of Ireland in Geraghty v. The Minister for Local Government (1975) IR 300, at p 312. The same approach has been taken in the United States: National Labor Relations Board v. Sears, Roebuck & Co. [1975] USSC 81; [1975] USSC 81; (1975) 421 US 132; U.S. Steel Corporation v. United States (1984) 730 F 2d 1465; Keller, "The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government", (1982) 62 Boston University Law Review 1003. Finally, three members of this Court addressed the subject in Attorney-General (N.T.) v. Kearney [1985] HCA 60; (1985) 158 CLR 500. Gibbs C.J., at p 510, said that he did not doubt the correctness of the decision of the Court of Appeal in Crompton Ltd. provided that, in giving the advice, the employees are acting in their capacity as legal advisers. Wilson J., at pp.521-522, cited Crompton Ltd., Geraghty and Shell Canada with tacit approval. Dawson J., at pp.530-531, saw no reason for denying privilege to communications passing between salaried employees and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. His Honour referred to Crompton Ltd. and Geraghty. Mason and Brennan JJ. in a short judgment, at pp.516-517, reserved the question.

4. In our opinion, given the safeguards to which reference is made in the various citations, there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. In Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674, at p 685, Stephen, Mason and Murphy JJ., in a much-cited passage, said:

"The rationale of this head of privilege, according to traditional
doctrine, is that it promotes the public interest because it
assists and enhances the administration of justice by facilitating
the representation of clients by legal advisers, the law being a
complex and complicated discipline. This it does by keeping secret
their communications, thereby inducing the client to retain the
solicitor and seek his advice, and encouraging the client to make a
full and frank disclosure of the relevant circumstances to the
solicitor. 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."

To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.

5. This brings us to the principal submission advanced for the appellant. It proceeds on the basis that legal professional privilege may extend to some communications between government decision makers and their legal advisers. But it draws the line where the subject-matter of the communication relates either to (a) the manner in which a person should exercise a power of an administrative nature conferred upon him by law, or (b) proceedings pending in the Tribunal following upon that exercise of power. As we understand the argument, it has two limbs. The first is that the nature of the administrative process in government does not call for any confidentiality to attach to communications between the decision maker and the legal adviser solely by reason of their professional relationship. Without the privilege an ordinary citizen might be tempted to withhold information for fear that it would be used against him. Candour on his part must therefore be positively encouraged. But a government officer has nothing to hide, so the argument runs. He merely needs to be told how to perform his statutory duty. Furthermore, the review proceedings in the Tribunal ought not be regarded as proceedings in which the Crown finds itself in an adversarial context requiring the protection of common law defences such as the privilege. The second limb of the argument calls in aid the jurisprudential concept of the category of the competing reference. It is said that in the administrative area, any claim to privilege is more likely to flow from the confidentiality of the subject-matter rather than from the relationship of legal adviser to client. The public interest can therefore be fully and appropriately accommodated by resort to the law of Crown privilege or, as it is now more usually and accurately known, public interest immunity. There is therefore no occasion to seek the protection of legal professional privilege as an independent factor. Counsel for the appellant sought support for this limb of the argument in some observations of Dawson J. expressed in a dissenting judgment in Kearney. His Honour said, at p.533:

"It is clear, therefore, that if a document for which legal
professional privilege is claimed has come into existence as part
of the processes of government, the question of Crown privilege may
arise and, if it does, a court may be required to determine that
question by weighing the relevant considerations against each
other.

It seems to me that in that situation there is no room for the
application of legal professional privilege because the
considerations which must be taken into account in deciding whether
Crown privilege applies must include the desirability of preserving
professional confidence between government and its legal advisers,
not as a concluded issue, but as a matter to be weighed in the
balance. If, on the other hand, the situation may be viewed as one
of conflict between Crown privilege and legal professional
privilege, then in my view the conflict must be resolved by the
application of those principles which govern Crown privilege.
Those principles require a court to determine where the public
interest lies in each individual instance, an issue which in the
case of legal professional privilege has been predetermined as a
matter of law."

6. In our opinion, neither limb of the appellant's argument can be supported. The common law, in the view that we have taken, recognizes that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connexion with anticipated or pending litigation. Provided that the sole purpose test enunciated in Grant v. Downs is satisfied, there is no warrant to draw an arbitrary line through the functions of government in order to exclude the privilege from those described as of an administrative nature. All the functions of the executive government may be so described. No distinction can be drawn between a decision to grant a pension and a decision whether to defend a claim in tort or contract. The growing complexity of the legal framework within which government must be carried on renders the rationale of the privilege, as expressed in Grant v. Downs, increasingly compelling when applied to decision makers in the public sector. The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that this makes for a better legal system. Government officers need that encouragement, albeit, perhaps, for reasons different to those which might be expected to motivate the citizen.

7. Then, of course, there is s.42(1) of the Act. That sub-section reads:

"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."

The plain reading of this provision would suggest that Parliament has acknowledged expressly that legal advice tendered in connexion with the process of administrative decision making will attract the privilege. Furthermore, the nature of the proceedings on an application for review cannot affect the matter. The relevant question is whether the document to which access is sought is an exempt document. If the privilege attaches, it will have the character from the beginning, regardless of whether or not the decision to refuse access is reviewed.

8. We believe that the appellant's argument with respect to public interest immunity is misconceived. While the area covered by the immunity doctrine may overlap with that covered by legal professional privilege, the application of each is the subject of an entirely separate exercise. If the conditions giving rise to legal professional privilege are satisfied, and the privilege is not waived, then the document is not disclosed. The fact that the document may or may not have attracted public interest immunity is immaterial. Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognized crime or fraud exception (cf. Reg. v. Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141), the public interest in "the perfect administration of justice" (per Earl of Halsbury L.C. in Bullivant v. Attorney-General (Vict.) (1901) AC 196, at p 200) is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required. It follows that an established claim of legal professional privilege can never be set at nought by a finding, after inquiry, that the document is not one to which a claim to public interest immunity would attach. If that were the case it would have the effect of imposing a further general condition limiting the privilege to apply only to those communications in respect of which any question of public interest immunity was wholly irrelevant. Furthermore, if the question of public interest immunity is to be considered, the balancing exercise that is then required will be carried out by reference to the contents and character of the document rather than by regard to the circumstances of its creation. The fact, if it be the fact, that the document is also the subject of legal professional privilege is immaterial to that inquiry. With all respect, we are unable to endorse the view expressed by Dawson J. in Kearney.

9. The final submission advanced for the appellant is that the Tribunal erred in law in failing to apply the sole purpose test to which we have referred. That test is described in Grant v. Downs, at p 688, as follows:

"All that we have said so far indicates that unless the law
confines legal professional privilege to those documents which are
brought into existence for the sole purpose of submission to legal
advisers for advice or for use in legal proceedings the privilege
will travel beyond the underlying rationale to which it is intended
to give expression and will confer an advantage and immunity on a
corporation which is not enjoyed by the ordinary individual. It is
not right that the privilege can attach to documents which, quite
apart from the purpose of submission to a solicitor, would have
been brought into existence for other purposes in any event, and
then without attracting any attendant privilege.... we consider
that the sole purpose test should now be adopted as the criterion
of legal professional privilege."

This statement was made in the context of a discussion about the operation of the privilege in relation to the advent of the large corporation in which documents necessarily proliferate, many of them being brought into existence to serve a variety of purposes. In support of the argument, counsel for the appellant relied on the following passage from the judgment of the Tribunal:

"20. It was submitted by Mr Waterford that correspondence emanating
from or sent to the Attorney-General was not subject to legal
professional privilege because the Attorney-General had been
approached and was writing, not in his capacity as the legal
representative of the Department of the Treasury, but rather as
the Minister responsible for the administration of the Freedom of
Information Act. Mr Waterford submitted that the advice
proferred (sic) by the Attorney-General was properly
characterised as policy advice rather than legal advice and that
the claim of legal professional privilege was not therefore
appropriate.

21. In our view, this submission cannot be sustained. The
evidence of Mr Rowe (Transcript p.36), which we accept, was that
the Attorney-General's legal opinion had been furnished in
relation to the then pending application by Mr Waterford before
the Tribunal. Whether or not the legal advice also included
advice as to the policy of the FOI Act, we are of the opinion
that all the letters to and from the Attorney-General (including
draft letters) are of such a nature that legal professional
privilege would attach to them."

10. The questions raised under this head of the argument are not without difficulty. The fact that the Attorney-General was also the Minister administering the Act might create difficulty in a particular case in determining the purpose or purposes attaching to a document. Matters of policy and legal advice may be intermingled in the one document as appears to be the case with document numbered 29, which was made available to the appellant prior to the hearing of his appeal to the Federal Court. However, we do not think that the allegation of error of law by the Tribunal can be sustained. The appellant's submission fails to appreciate that the sole purpose test is a test that looks to the reason why the document was brought into existence. If its sole purpose was to seek or to give legal advice in relation to a matter, then the fact that it contains extraneous matter will not deny to it the protection of the privilege. The presence of matter other than legal advice may raise a question as to the purpose for which it was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final. It may also be appropriate in a particular case for the Tribunal to require those parts of the document which do not bear the necessary relation to legal advice to be disclosed. The doctrine of legal professional privilege allows room for questions of fact and degree such as these to fall for decision. Moreover, the Act contemplates that where an exempt document contains material which, standing alone, would not render the document exempt, the agency or Minister should, if it is reasonably practicable to do so, delete the privileged material and grant access to the remainder: s.22.

11. But the point of overriding importance to the appellant's argument focuses on the second category of documents to which the privilege attaches, that is to say, professional communications between a client and his legal adviser in connexion with legal proceedings. It was to this category of documents that much of the appellant's request for access related. If a communication satisfies the description of a document brought into existence for the sole purpose of enabling a confidential professional communication between a client and his legal adviser in connexion with pending or anticipated legal proceedings then in our opinion it follows that it is an exempt document within the meaning of s.42 of the Act. In such a case it is not to the point that the document may contain advice which relates to matters of policy as well as of law. It is the connexion between the document and legal proceedings that establishes its character and thus attracts the privilege. In seeking access to those documents in the possession of the Department which related to the processing of his earlier request, the appellant particularized, inter alia, the following:

"(c) Any documents within the possession of the Treasury, or its
officers, relating to the decision to brief counsel, to any
advisings received, any representations from officers of any other
agencies, including the Freedom of Information branch of the
Attorney-General's Department, either about the Administrative
Appeals Tribunal case and the arguments which were to be advanced,
or about the decision to brief counsel.

...

(e) Any records of any dealings between Treasury, its officers, or
counsel briefed upon its behalf and any other person, including the
Treasurer, Mr Keating, the former Treasurer, Mr Howard, and the
Attorney-General, Senator Evans, relating to the AAT case,
arguments which would be put forward, or the decision to brief
counsel."

It is plain that if there were any such documents in the possession of the Department then some of them would satisfy the description of exempt documents by virtue of s.42(1) of the Act. We have referred to document 29, which has been used as an example of the mingling of legal and policy advice. The evidence concerning that document was given by Mr Rowe, a senior officer in the Department, and was to the effect that it was a letter under the hand of the Attorney-General addressed to the Treasurer setting out the writer's legal opinion in relation to Mr Waterford's case before the Tribunal and making certain recommendations in relation to the case. The Tribunal accepted that evidence and made a finding of fact that the privilege attached to it.

12. Counsel for the appellant suggested that the Tribunal should have inspected the documents. Section 64 of the Act provides in substance that the Tribunal may require a document that is claimed to be an exempt document to be produced for inspection by members of the Tribunal but only if it is not satisfied, by evidence on affidavit or otherwise, that the document is an exempt document. In the present case, so far as the documents to which attention has been directed are concerned, the Tribunal was satisfied and made no error of law in so finding. Consequently the question of inspection did not arise.

13. The Federal Court dismissed the appeal, holding that the appellant had not established any error of law on the part of the Tribunal in dealing with the questions of legal professional privilege. We think their Honours were right to do so and we would dismiss this appeal.

BRENNAN J.: Mr Waterford (the appellant) applied to the Administrative Appeals Tribunal ("the AAT") for review of a decision by the Department of the Treasury refusing him access under the Freedom of Information Act 1982 (Cth) ("the Act") to certain documents relating to the 1982-1983 budget papers. After the appeal to the AAT had been argued and while the AAT's decision was reserved, Mr Waterford made a further request, out of which this appeal arises, for access to documents "relating to the processing of my (earlier) request between the time when it was filed and today, May 5, 1983". That request was met as to some documents but access to the majority of the relevant documents was refused. An appeal to the AAT was commenced. Pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the Secretary to the Treasury gave a statement of his reasons for refusing access to 45 documents which he identified by number in a list appended to his reasons. The ground on which he refused access to the majority of the documents was the ground stated in s.36 of the Act: "the so-called internal working documents exemption", as the AAT described it. The ground on which he refused access to the balance (documents 39 to 44) was the ground stated in s.42(1) of the Act: legal professional privilege. During the hearing before the AAT however, the exemption of legal professional privilege was claimed in respect of all 45 documents. Section 42(1) of the Act provides:

" A document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings
on the ground of legal professional privilege."

Ordinarily a claim to exemption under s.42(1) could be tested on inspection of the documents by the AAT, but in this case the Secretary to the Treasury (as the delegate of the Treasurer) issued a certificate under s.36(3) of the Act in respect of documents 1 to 38 and 45. This certificate had the effect of depriving the AAT in these proceedings of power to require the production of any document in respect of which the certificate was in force: see s.64(3) of the Act. This was pointed out to the parties at the outset of the hearing (see par.33 of the AAT's reasons for decision). Nevertheless the parties requested the AAT to deal with the claim of privilege under s.42. Without access to the documents, the AAT proceeded to hear the appeal. An affidavit was sworn by an officer of the department who also gave oral evidence as to the nature of the documents. The AAT upheld the claim of privilege in respect of the majority of the documents.

2. Mr Waterford appealed to the Full Court of the Federal Court of Australia against the AAT's decision with respect to 26 of the documents. Before the appeal to the Federal Court was heard, the department gave access to documents 29 and 38. Document 29, a draft of that document (no.28) and document 38 were the only documents brought into existence by the Attorney-General or by an officer of the Attorney- General's Department for which exemption was claimed under s.42(1). As Mr Waterford did not press for access to document 28, there was no issue before the Federal Court as to the exemption of these documents under s.42(1). None of the remaining 23 documents had been brought into existence for the purpose of giving legal advice, whether emanating from the Attorney-General or his department or the Crown Solicitor. The Full Court of the Federal Court dismissed the appeal as to the remaining 23 documents. This is an appeal from that judgment.

3. The appellant's argument before this Court challenges the availability of legal professional privilege as a ground for denying access to documents which are brought into existence for the purpose of seeking or giving legal advice when that advice is sought from or given by officers of the Attorney-General's Department, the Crown Solicitor or officers employed in the Crown Solicitor's office, with respect to the exercise of a statutory power to be exercised or a statutory function or duty to be performed by officers of the client department. (Consequent on the enactment of a new s.55E of the Judiciary Act 1903 (Cth), the functions of the Crown Solicitor are now performed by a body corporate known as the Australian Government Solicitor, but nothing turns on that change.) The argument has two aspects. The first raises the question whether legal professional privilege attaches to documents brought into existence for the purpose of seeking legal advice from a legal adviser who is employed by government or for the purpose of such a legal adviser giving legal advice. The second raises the question whether the privilege exists where the subject matter of a document is the manner in which an officer of the department should exercise an administrative power or should perform a statutory function or duty.

Independence of employed legal adviser

4. The purpose of legal professional privilege is to facilitate the seeking and giving of legal advice and thereby to ensure that the law be applied and litigation be properly conducted: Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98, at p 103 [1833] EngR 333; (39 ER 618, at pp 620-621); Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674, at p 685; Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52, at pp 66,74,108,114-115,128. If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent, in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which privilege is granted will be subverted. As to competence, there is much to be said for the view that admission to practise as a barrister or solicitor is the sufficient and necessary condition for attracting the privilege, but the question was not argued and need not be decided. The standard of independence required was raised in argument.

5. It is a question of judicial policy, not yet a question of law, whether the privilege should apply when the legal adviser is an employee of the client: to what extent does a contract of employment by the client impair a legal adviser's independence? As no general legal rule has been declared judicially in this country, judicial policy must determine whatever rule is to be adopted. The rule must be generally applicable; not a rule which depends for its operation on the facts of each case. As the rule will be designed to make the principle of legal professional privilege operate satisfactorily in a professional environment where increasing reliance is placed on "in house" legal advice, it is prudent to refer to the considerations which have weighed with the courts of other legal systems. I find great weight in the view of the European Court of Justice that an independent lawyer is "one who is not bound to his client by a relationship of employment": A.M. & S. Europe v. Commission (1983) QB 878, at p 951. That view faces up to reality; by contrast, the aspirations which Lord Denning M.R. expresses in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No.2) (1972) 2 QB 102 sound, in my ears, pious but unreal. His Lordship said, at p 129, that salaried legal advisers "must uphold the same standards of honour and of etiquette ... (and) are subject to the same duties to their client and to the court" as are legal advisers who are not salaried. The difficulty, which his Lordship appreciated, is that the employment relationship creates a conflict between the independence necessary for a legal adviser and the loyalties, duties and interests of an employee. Lord Denning observed:

" Being a servant or agent too, he may be under more pressure from
his client. So he must be careful to resist it. He must be as
independent in the doing of right as any other legal adviser."

If, by "independent in the doing of right", his Lordship was describing the mental approach expected of a legal adviser, it seems overly optimistic to assume that the admonition to employees to be careful to resist pressure from the employer is sufficient to ensure that independence of mind essential to the purpose of legal professional privilege. Nevertheless, Lord Denning's observation which clothed salaried legal advisers with independence has been followed by some judges in other common law countries (Geraghty v. Minister for Local Government (1975) IR 300; Re Director of Investigation and Research and Shell Canada Ltd. (1975) 55 DLR (3d) 713) as well as by Gibbs C.J., Wilson and Dawson JJ. in Attorney-General (N.T.) v. Kearney [1985] HCA 60; (1985) 158 CLR 500, at pp 510,520-521,530-531. However, in that case, as in this, the legal advisers were the salaried employees of government and their position is, for reasons presently to be mentioned, distinguishable from the position of salaried employees of other clients. Although it is not strictly necessary to express a general view as to legal professional privilege when the legal adviser is a salaried employee of a non-government client, I should state my opinion on that question which other members of the Court have also addressed. Though I am conscious of the weight of contrary opinion, the approach of the European Court of Justice in A.M. & S. Europe v. Commission seems to me to identify the relevant considerations. The Court said, at p 950:

" ... it should be stated that the requirement as to the position
and status as an independent lawyer, which must be fulfilled by
the legal adviser from whom the written communications which may
be protected emanate, is based on a conception of the lawyer's
role as collaborating in the administration of justice by the
courts and as being required to provide, in full independence,
and in the overriding interests of that cause, such legal
assistance as the client needs. The counterpart of that
protection lies in the rules of professional ethics and
discipline which are laid down and enforced in the general
interest by institutions endowed with the requisite powers for
that purpose."

The disincentive of sanctions which professional disciplinary tribunals may impose for breaches of ethical rules is diminished when the breach is committed in the interests of an employer and the security and environment of employment tend to insulate a salaried lawyer from the chief disciplinary influence of the profession - the opinion of one's professional peers. I am therefore unable to accept the notion that salaried lawyers are generally to be assimilated to the position of the independent legal profession for the purpose of determining the availability of legal professional privilege. Although this view may seem to give insufficient acknowledgment to the personal integrity, as well as the competence, of many salaried lawyers, we are concerned with a general legal rule which is framed not with regard to the characteristics of individuals but with regard to the influences that naturally attend the relationship of employer and employee.

6. However, those influences are not so significant when the legal adviser is in the employment of the Crown. Then the adviser's independence is protected in the manner to which Mason J. and I referred in Attorney-General (N.T.) v. Kearney, at p 517:

" The independence of State Crown Solicitors and the Australian
Government Solicitor in the giving of legal advice is - or ought
to be - protected by the respective Attorneys-General as the
first law officers of the Crown, and is buttressed by the laws
relating to the public service and sometimes by specific
legislation."

The Commonwealth, State and Territorial statutes under which officers are employed in the offices of Crown Solicitors, the Australian Government Solicitor and in the Departments of the respective Attorneys-General give them a certain security of tenure and those statutes would be construed, in the absence of contrary express provisions, as leaving these officers completely professionally independent. The protection of the respective Attorneys-General, as the first Law Officers of the Crown, should extend to all of these officers, so that none of them will be affected in the performance of their professional duty by any sense of loyalty or duty to, or hope of reward from, the government of the day. Counsel for the appellant expressly declined to argue that the Department of the Treasury's advisers in this case lacked the independence which the safeguards to which Mason J. and I referred are intended to secure. I would therefore reject the submission that the officers of the Attorney-General's Department or the Commonwealth Crown Solicitor's Office lack the independence which is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them. I note that an attorney's work-product privilege or an attorney-client privilege is accepted as applying in the governmental context by American courts though I am not sure that the scope of the privilege coincides with the scope of legal professional privilege in this country: see National Labor Relations Board v. Sears, Roebuck & Co. [1975] USSC 81; (1975) 421 US 132, at pp 154-155; Jupiter Painting Contracting Co.Inc. v. United States (1980) 87 FRD 593, at p 598 (ED Pa).

The subject of advice

7. It was submitted on behalf of the appellant that when the subject of advice is the manner in which a statutory administrative power should be exercised or a statutory function or duty should be performed by a public officer - in this case, giving access to documents or resisting an application for access made to an administrative tribunal - no public interest can be served in according privilege to the legal advice sought or the legal advice given on the subject. The statute prescribes what may be done or what must be done, and legal advice cannot do more than make explicit the public law on the subject. And, if there be no public interest to be served, so the argument runs, there can be no privilege, for the doctrine of legal professional privilege is founded on the public interest. The submission is supported by reference to what Dawson J. said in Attorney-General (N.T.) v. Kearney, at p 533, with respect to a communication with the legal advisers of government which has come into existence "as part of the processes of government":

" It seems to me that in that situation there is no room for the
application of legal professional privilege because the
considerations which must be taken into account in deciding
whether Crown privilege applies must include the desirability of
preserving professional confidence between government and its
legal advisers, not as a concluded issue, but as a matter to be
weighed in the balance. If, on the other hand, the situation may
be viewed as one of conflict between Crown privilege and legal
professional privilege, then in my view the conflict must be
resolved by the application of those principles which govern
Crown privilege. Those principles require a court to determine
where the public interest lies in each individual instance, an
issue which in the case of legal professional privilege has been
predetermined as a matter of law."

8. That the public interest accounts for both legal professional privilege and public interest immunity is clear: as to the former, see Reg. v. Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141; as to the latter, see Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1. But the public interest served by legal professional privilege lies in its tendency to broaden the operation of the rule of law as well as to enhance the individual's capacity to secure its protection, whereas the public interest served by public interest immunity is the protection of some of the processes of the Executive Government: see Sankey v. Whitlam, at pp 39,58-59, 95-96. The public interest which accounts for legal professional privilege explains the existence of the general legal rule, but it does not fall to be evaluated by the court in every case as must be done when public interest immunity is raised: see per Lord Scarman in Air Canada v. Secretary of State for Trade (1983) 2 AC 394, at p 446. If legal professional privilege applies, the court has no function to perform in deciding whether the privilege otherwise advances or diminishes the public interest. Moreover, a client may always waive legal professional privilege, but the court will exclude evidence for which public interest immunity might be claimed, even in the absence of objection, if the court thinks that it would be contrary to the public interest to admit it: Sankey v. Whitlam, at pp 58-59, 100-101. With great respect, I am unable to agree with the passage cited from the judgment of Dawson J. in Attorney-General (N.T.) v. Kearney.

9. In any event, I should think that the public interest is truly served by according legal professional privilege to communications brought into existence by a government department for the purpose of seeking or giving legal advice as to the nature, extent and the manner in which the powers, functions and duties of government officers are required to be exercised or performed. If the repository of a power does not know the nature or extent of the power or if he does not appreciate the legal restraints on the manner in which he is required to exercise it, there is a significant risk that a purported exercise of the power will miscarry. The same may be said of the performance of functions and duties. The public interest in minimizing that risk by encouraging resort to legal advice is greater, perhaps, than the public interest in minimizing the risk that individuals may act without proper appreciation of their legal rights and obligations. In the case of governments no less than in the case of individuals, legal professional privilege tends to enhance application of the law, and the public has a substantial interest in the maintenance of the rule of law over public administration. Provided the sole purpose for which a document is brought into existence is the seeking or giving of legal advice as to the performance of a statutory power or the performance of a statutory function or duty, there is no reason why it should not be the subject of legal professional privilege.

10. It follows that the documents to which the appellant sought access did not lose their status as exempt documents under s.42(1) of the Act by reason of the source from which the legal advice was to be sought or by which the advice was given nor by reason of the subject matter on which the legal advice was to be sought or given. That leaves another, more particular, ground on which the claim for exemption was attacked.

Sole purpose

11. In Grant v. Downs, at p 688, the majority (Stephen, Mason and Murphy JJ.) adopted the view that legal professional privilege should be confined to documents which are brought into existence "for the sole purpose of submission to legal advisers for advice or for use in legal proceedings". It was submitted on behalf of Mr Waterford that the AAT had not applied the sole purpose test correctly, and that the error appeared in pars.20 and 21 of the reasons for decision:

" 20. It was submitted by Mr Waterford that correspondence
emanating from or sent to the Attorney-General was not subject to
legal professional privilege because the Attorney- General had
been approached and was writing, not in his capacity as the legal
representative of the Department of the Treasury, but rather as
the Minister responsible for the administration of the Freedom of
Information Act. Mr Waterford submitted that the advice
proffered by the Attorney-General was properly characterised as
policy advice rather than legal advice and that the claim of
legal professional privilege was not therefore appropriate.

21. In our view, this submission cannot be sustained. The
evidence of Mr Rowe ... which we accept, was that the
Attorney-General's legal opinion had been furnished in relation
to the then pending application by Mr Waterford before the
Tribunal. Whether or not the legal advice also included advice
as to the policy of the FOI Act, we are of the opinion that all
the letters to and from the Attorney-General (including draft
letters) are of such a nature that legal professional privilege
would attach to them". (Emphasis added.)

12. These paragraphs appear under the heading of and relate to "Correspondence from or to the Attorney-General or the Attorney-General's Department (Documents 28,29,33,35 and 38)". The contest as to access to three of those documents (28,29 and 38) ceased before the Full Court's order was made. The nature of the other two documents was described by the AAT to be as follows:

" 33. Letter (draft) - Treasurer to Attorney-General - undated
- relates to documents received from Attorney-General, namely 28
and 29 and pending hearing of Mr Waterford's application.

...

35. Letter (redraft) - Treasurer to Attorney-General - undated
- content same as document 33."

The nature of these documents thus depends on the nature of documents 28 and 29 to which the AAT did not have access but which the AAT described as:

" 28. Letter (draft) - Attorney-General to Treasurer - 13 April
1983 - sets out writer's legal opinion in relation to Mr
Waterford's application and certain recommendations in
relation to that matter.

29. Letter (signed) - Attorney-General to
Treasurer - 13 April 1983 - content same as
document 28."

The evidence which the AAT accepted relating to documents 28 and 29 described the letter written by the Attorney-General to the Treasurer in these terms:

Question: And setting out the writer's legal opinion in relation
to Mr Waterford's case before the AAT?

Answer: Yes, that is correct.

There is no reference here to "policy" advice as distinct from legal advice. The members of the AAT had clearly appreciated the requirements of the sole purpose test. Paragraph 11 of their reasons reads as follows:

" The privilege attaches to all oral or written confidential
communications between a client and his barrister or his
solicitor made or brought into existence for the sole purpose of
seeking or giving advice or for the sole purpose of use in
existing or anticipated litigation ... The scope of the privilege
is more narrowly defined in Australia than in the United Kingdom,
'where it is enough if the dominant purpose for coming into
existence of the material is legal advice or litigation' (per
Murphy J. in Baker (153 C.L.R., at p.86); cf. Barwick C.J. in
Grant (v. Downs 135 C.L.R.674)). It is subject to exceptions not
presently relevant ...."

13. In the light of that paragraph, it is difficult to see that the AAT had made any material error of law. In par.21 the members of the AAT were not predicating of document 29 that it was a communication of government policy affecting the manner in which a statutory discretion should be exercised. Paragraph 21 of the reasons for decision refer to the "policy of the FOI Act", not the policy of the government. The policy of the Act is as much a question of law upon which legal advice might be given as the meaning of particular words of the Act might be. I would agree that, if a communication were brought into existence for a purpose of seeking or giving advice as to the government's policy in administering the Act, as distinct from the policy of the Act itself, the communication would not be privileged. That is because executive policy relates to the manner in which a statutory discretion should be exercised, whereas the policy of the Act determines, in reference to a discretion created by the Act, whether there are any and what limits confining the scope of the discretion. Executive policy is a matter of fact, statutory policy a matter of law. The evidence before the AAT with respect to document 29 did not support the submission that the document contained advice as to executive policy. We now know, as the AAT did not know, that the evidence was mistaken and that document 29 did contain advice as to executive policy. Can we act on the facts thus disclosed, even though those facts were not known to the AAT or, for that matter, to the Federal Court?

14. A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia "from any decision of the Tribunal in that proceeding" but only "on a question of law". The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. As the purpose for which a document is brought into existence is a question of fact (per Jacobs J. in Grant v. Downs, at p 692), the contents of document 29 are immaterial to the question whether the AAT has made an error of law on the material before it.

15. I am unable to detect in pars.20 and 21 of the reasons for decision, especially when read in conjunction with par.11, any error of law affecting the decision of the AAT. It was submitted that the AAT ought to have inspected the documents for itself and that this Court should do so or remit the matter to the AAT to inspect the documents and to decide the matter afresh. As there is no appeal by way of rehearing from the AAT, there is no occasion for the Federal Court, or for this Court on further appeal, to examine any material which was not before the AAT. Nor could there have been any error of law in the AAT's failure to examine the documents to which the s.36(3) certificate applied.

16. The sole purpose test was said not to have been applied to certain other documents to which access had been refused, but the findings of the AAT as to the nature of these documents was that "they were brought into existence in order to record advice received from or instructions given or to be given to the Deputy Crown Solicitor's Office in relation to the original application". There is nothing in this finding to show an error of law with respect to sole purpose. As no error of law appears in the reasons for decision of the AAT, the Federal Court was bound to dismiss the appeal. It follows that the appeal to this Court must also be dismissed.

DEANE J.: The primary question involved in this appeal is one of general principle. It is whether documents brought into existence within the Executive Government of the Commonwealth for the sole purpose of obtaining, furnishing or recording professional legal advice sought by and given to the Department of Treasury from and by the Department of the Attorney-General in relation to proceedings pending in the Administrative Appeals Tribunal are documents of the "nature" referred to in s.42(1) of the Freedom of Information Act 1982 (Cth) ("the Act"), that is to say, of a "nature" that they "would be privileged from production in legal proceedings on the ground of legal professional privilege." That question was answered in the affirmative in the present case by both the Administrative Appeals Tribunal and a Full Court of the Federal Court. I agree with that answer. Involved in it are two distinct propositions. The first is that legal professional privilege can apply to protect the confidentiality of communications notwithstanding that the persons furnishing the professional legal advice are not in independent practice but are salaried employees. The second is that the Executive Government can claim the benefit of that privilege in respect of professional legal advice furnished by a salaried legal officer or officers in its employ in the Attorney-General's Department.

2. The proposition that legal professional privilege extends to protect the confidentiality of advice given by salaried employees is not without its difficulty. There is plainly force in the views expressed by the European Court of Justice in A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB 878, at p 950:

"... the requirement as to the position and status as an
independent lawyer, which must be fulfilled by the legal adviser
from whom the written communications which may be protected
emanate, is based on a conception of the lawyer's role as
collaborating in the administration of justice by the courts and as
being required to provide, in full independence, and in the
overriding interests of that cause, such legal assistance as the
client needs. The counterpart of that protection lies in the rules
of professional ethics and discipline which are laid down and
enforced in the general interest by institutions endowed with the
requisite powers for that purpose. Such a conception reflects the
legal traditions common to the member states ..."

3. Contrary to the approach of the European Court is that propounded by Lord Denning M.R. (with the concurrence of Karminski and Orr L.J.J.) in Crompton Ltd. v. Customs & Excise Commissioners (1972) 2 QB 102, at p 129, where, speaking of advice given by employed legal advisers who "do legal work for their employer and for no one else" and who "are paid, not by fees for each piece of work, but by a fixed annual salary", his Lordship said:

"They are regarded by the law as in every respect in the same
position as those who practise on their own account. The only
difference is that they act for one client only, and not for
several clients. They must uphold the same standards of honour and
of etiquette. They are subject to the same duties to their client
and to the court. They must respect the same confidences. They
and their clients have the same privileges. I have myself in my
early days settled scores of affidavits of documents for the
employers of such legal advisers. I have always proceeded on the
footing that the communications between the legal advisers and
their employer (who is their client) are the subject of legal
professional privilege: and I have never known it questioned.
There are many cases in the books of actions against railway
companies where privilege has been claimed in this way. The
validity of it has never been doubted."

4. There are several comments which can be made about those remarks of the Master of the Rolls. One is that the reference to the "many" railway cases is somewhat unhelpful since the judgments in those cases seem to have been concerned to consider a claim for privilege on the basis that the relevant material was "procured as materials upon which professional advice should be taken in proceedings pending, or threatened, or anticipated" (per Buckley L.J., Birmingham and Midland Motor Omnibus Company, Limited v. London and North Western Railway (1913) 3 KB 850, at p 856; and see, generally, Seabrook v. British Transport Commission (1959) 1 WLR 509, at pp 513-529; (1959) 2 All ER 15, at pp 19-31; Longthorn v. British Transport Commission (1959) 1 WLR 530, at pp 532-536; (1959) 2 All ER 32, at pp 34-37). It has long been recognized that claims of privilege based upon the fact that the relevant materials were procured for the purposes of anticipated litigation (in which independent counsel would in any event be expected to be briefed) are plainly distinguishable from a claim to privilege based upon the mere fact that a document contains or concerns confidential professional legal advice (see, e.g., Anderson v. Bank of British Columbia (1876) 2 ChD 644, at p 658; Seabrook, at p 518; p 23 of All ER and per Forbes J., at first instance, in Crompton, at pp.109-110). One is left to speculate about whether the claim to privilege in the cases in which Lord Denning settled affidavits in his early days at the Bar was likewise based on the "anticipated proceedings" ground. Another comment is that his Lordship's remark that the validity of the view which he espoused had "never been doubted" does little to advance legal argument in a context where Forbes J., at first instance in the same case (ibid., at p.109), had rejected that view as "an unwarrantable extension of the privileges rules unsupported by any authority". Another, and more significant, criticism is that Lord Denning appears to me to unduly discount the importance, from the point of view of both the need for and the prevention of abuse of the privilege, of the matters mentioned in the above extract from the opinion of the European Court in the A.M. & S. Case, particularly the importance of the "full independence" of the independent lawyer.

5. On the other hand, there is obvious validity in the perception that the considerations of public policy which underlie and enlighten the principle of legal professional privilege are generally applicable to the case where the person providing the legal professional advice is a salaried employee. Moreover, the conclusion that legal professional privilege can extend to protect the advice given within an organization by a salaried legal adviser conforms with the approach which had been accepted in the United States of America (see, e.g., Corpus Juris Secundum, vol.97, "Witnesses" 276, at p 786; United States v. United Shoe Machinery Corporation (1950) 89 Fed. Supp. 357, at p 360) and which has subsequently prevailed generally throughout the common law world (see, e.g., Crompton, House of Lords, (1974) AC 405, at pp 430-431; Re Director of Investigation and Research and Shell Canada Ltd. (1975) 55 DLR (3d) 713, at p 721; Geraghty v. Minister for Local Government (1975) IR 300, at p 312). That conclusion was referred to with approval by a majority of this Court in Attorney-General (N.T.) v. Kearney [1985] HCA 60; (1985) 158 CLR 500 (see per Gibbs C.J., at p 510; per Wilson J., at pp 521-522; per Dawson J., at pp 530-531). Subject to an important reservation, it appears to me that it should be accepted as correct for this country. The reservation is that it is unnecessary to investigate here what, if any, qualification should be placed upon that conclusion to avoid potential abuse (cf. Keller, "The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government", Boston University Law Review, vol.62 (1982), 1003, at p.1024). In particular, it is unnecessary for present purposes to seek to identify the minimum academic or practical qualification which must be held by a "salaried legal adviser" before the confidentiality of his or her professional legal advice will enjoy the protection of the privilege since it has not been suggested that any officer of the Attorney-General's Department whose advice is involved in the present case would fail to satisfy any such minimum academic or practical qualification. It would, however, seem that Lord Denning's statement that salaried legal advisers are regarded by the law "as in every respect in the same position as those who practise on their own account" with the "only difference ... that they act for one client only, and not for several clients" would not be true of this country unless one restricted the category to persons who, in addition to any academic or other practical qualifications, were listed on a roll of current practitioners, held a current practising certificate, or worked under the supervision of such a person. I would add that the conclusion that legal professional privilege extends to protect the confidentiality of advice given by appropriately qualified salaried legal advisers makes it unnecessary to consider whether, in any event, the whole Attorney-General's Department and its officers should, when providing professional legal advice to other branches of the Executive Government, be seen as acting in a role that is more akin to that of the independent professional firm than to that of the ordinary employed salaried lawyer (cf. the remarks of Forbes J. about communications with the Treasury Solicitor in Crompton, at p.109 of Q.B.).

6. The proposition that legal professional privilege may extend to protect communications with or within the Executive Government is likewise not without some difficulty. An important part of the rationale of the principle of legal professional privilege is the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law (cf. Attorney-General (N.T.) v. Maurice [1986] HCA 80; (1986) 61 ALJR 92, at pp 97-98; [1986] HCA 80; 69 ALR 31, at p 41) and it is not self-evident that those particular objectives will be served by the preservation of the confidentiality of legal professional advice furnished to a department of government. Another aspect of the rationale of the principle of legal professional privilege is, however, that the ready availability of confidential legal advice and of skilled and adequate legal representation is in the public interest in that it promotes both the observance of the law generally and the administration of justice in particular. That aspect of the rationale of the principle applies with as much force to a public official as it does to a private individual (cf. Keller, op.cit., at pp.1024-1025). It is in that context that it is not surprising that the weight of authority, both in this country and elsewhere, supports a conclusion that the principle of legal professional privilege applies in relation to the seeking and giving of professional legal advice within and between the various branches or departments of the Executive Government (see, e.g., Attorney-General (N.T.) v. Kearney, at pp 510-511, 521-522; Crompton, at pp 129, 136, 138 of QB; pp 430-431 of AC; Geraghty v. Minister for Local Government, at p 312; Shell Canada, at p 721; Jordan v. U.S. Department of Justice [1978] USCADC 272; (1978) 591 F 2d 753, at pp 774-775, 786-787, 789; Federal Trade Commissioner v. Grolier Inc. (1983) 462 US 19). Subject to the qualification mentioned in the following paragraph, that conclusion should be accepted by this Court.

7. The qualification is that it is unnecessary for present purposes to determine the extent, if at all, to which the principle of legal professional privilege entitles an administrative officer to keep confidential legal advice, which constituted an actual basis of a purported exercise by him of statutory powers in the performance of a public duty, in proceedings involving a challenge to that purported exercise upon the ground that it was vitiated by fundamental misapprehension or collateral purpose. At least in that limited area, I see great force in the observations of Dawson J. in his dissenting judgment in Attorney-General (N.T.) v. Kearney, at pp 532-533 to the effect that, for some purposes, the doctrine of public interest immunity should be recognized as solely governing the right to insist upon the confidentiality of professional legal advice.

8. There remains for consideration the question whether it appears from the material before the Court that the Tribunal fell into error of law in determining that particular documents were, in fact, protected by legal professional privilege. The documents in question are documents which were suggested by the appellant, Mr. Waterford, to give or record directions about general Government policy concerning the administration of the Act as distinct from professional legal advice. It is convenient to refer to them as "the disputed documents".

9. At the outset, it is necessary to draw a broad distinction between two divisions or sections of the Department of the Attorney-General which were involved in the production of the disputed documents or in the formulation of the directions or advice which they recorded. The first is the Crown Solicitor's office. That office was acting, in effect, as the solicitor for the Department of the Treasury in relation to the proceedings before the Tribunal. It was directly involved in the conduct of those proceedings, including the briefing of counsel. The other was a section or group within the central office of the Attorney-General's Department (as it was then structured) which was concerned with the administration of the Act. The officers of that group or section, which was referred to in evidence before the Tribunal as the "freedom of information branch", were apparently not directly concerned with the responsibilities of acting as solicitor for the Department of the Treasury in relation to the proceedings before the Tribunal. A senior officer of the Treasury (Mr. Rowe) who gave evidence before the Tribunal was at pains to point out that he had "attempted at all times to identify" the two sections of the Attorney-General's Department "separately".

10. In that context, the distinction between general policy advice or directions given by the Attorney-General or his Department as the Minister or Department responsible for the administration of the Act on the one hand and legal professional advice given by members of the Crown Solicitor's office as solicitors acting for the Department of the Treasury in the particular proceedings on the other hand was obviously of significance in determining whether a particular document was of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. Prima facie, one would not expect a communication from the Attorney-General or from an officer of the "freedom of information" group or section of the central office of his Department containing policy advice or directions about the approach to be adopted, either generally or in a particular case, in dealing with requests for access under the Act to have any greater claim to enjoy the protection of legal professional privilege than would have been the case if the communication had come from some other Minister or Department which had been entrusted with the administration of that Act. In contrast, one would prima facie expect a communication from the Crown Solicitor's office to its "client", the Department of the Treasury, containing advice about the conduct of the proceedings in relation to which it was acting as the Treasury's legal professional representative to enjoy the protection of legal professional privilege.

11. The oral evidence and other material before the Tribunal about the disputed documents was over-generalized and unsatisfactory. Indeed, one is reminded of the description and advice provided by Hamilton L.J. in the Birmingham and Midland Motor Omnibus Company Case (at p.860):

"... a hybrid, made up by combining a variety of phrases which have
passed muster in decided cases. It is dangerous to rely on these
artificial creations. Claiming privilege in an affidavit of
documents is not like pronouncing a spell, which, once uttered,
makes all the documents taboo. The draftsman should draw each
affidavit with reference to the actual facts of the case and
bearing them in mind."

It did, however, emerge with tolerable clarity from the evidence before the Tribunal that at least some of the disputed documents contained or recorded both legal professional advice given by the Crown Solicitor's office and general policy advice given by the "freedom of information" section of the Attorney-General's Department.

12. The circumstance that advice of different categories was contained in some of the disputed documents did not, of itself, give rise to any insurmountable problem. If privileged material was contained in one distinct part of a document and non-privileged material was contained in another, protection of the confidentiality of the privileged part of the document would not, as the Act itself recognizes (see, e.g., ss.22, 33(3), 33A(3), 34(3), 35(3), 36(4), 58(2), 64(2) and (4)), ordinarily require that that part which was not covered by privilege should also be immune from production (see, e.g., Ainsworth v. Wilding (1900) 2 Ch 315, at p 325; Great Atlantic Insurance Co. v. Home Insurance Co. (1981) 1 WLR 529, at p 534; (1981) 2 All ER 485, at pp 488-489; Brambles Holdings Ltd. v. Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452, at pp 459, 462). If it were not possible to classify the contents of the document into distinct parts, it would be necessary to determine whether the contents as a whole were outside the protection of legal professional privilege for the reason that, notwithstanding the professional legal advice, they did not satisfy what has conveniently, if somewhat loosely, been referred to as "the sole purpose" test (see Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674, at p 688). That test looks to the purpose for which the contents of a document were brought into existence. To adapt the words of Stephen, Mason and Murphy JJ. in Grant v. Downs (ibid.), a document (or a severable part of a document) will not be protected by legal professional privilege if it "would have been brought into existence ... in any event" for purposes other than that which attracts legal professional privilege (and cf., e.g., the Birmingham and Midland Motor Omnibus Company Case, at p.860; Longthorn, at p.534; p.36 of All E.R.; Comment, "Agents' Reports and the Attorney-Client Privilege", University of Chicago Law Review, vol. 21 (1954), 752, at pp.754-755). Applying that test to the circumstances of the present case, a document containing general policy advice from the "freedom of information" section of the Attorney-General's Department would not prima facie enjoy the protection of legal professional privilege if the moving purpose underlying its preparation had been to convey advice about the observance and application of general Government policy proffered by the section of the Department responsible for the general administration of the Act. For the document to be protected, the cause of its existence, in the sense of both causans and sine qua non, must be the seeking or provision of professional legal advice. That is not, of course, to say that every statement in a letter from a professional legal adviser must be scrutinized to see whether it contains other than legal advice. Ordinarily, a letter from a professional legal adviser will be written only in his character as such and only for the purpose of furnishing professional legal advice. The cases where such scrutiny will ordinarily be necessary are cases like the present where a letter is or may be written in one or both of two capacities: e.g., a letter written to the secretary of a company by a person who is both a director of the company and the company's solicitor.

13. The material before the Tribunal indicated that the Department of the Treasury had made no effective attempt, at least in the case of some of the disputed documents, to sever privileged legal professional advice from any non-privileged advice about Government policy in relation to the administration of the Act. It also indicated that the Department had made no attempt to determine whether a particular document satisfied the requirements of the "sole purpose" test. To the contrary, the Department would seem to have simply adopted the approach that it was incapable of distinguishing between privileged legal professional advice and non-privileged advice about Government policy. Thus, having identified a "minute" from himself to the Secretary of his Department which discussed "advice that was received from the Deputy Crown Solicitor's office, briefly" but was "primarily concerned with advice that was received from another source within the Attorney-General's Department", presumably the "freedom of information" section, Mr. Rowe commented that he did not "know how one separates out 'legal advice' from 'policy advice' in determining how the Treasury was to respond" to Mr. Waterford's request for access to the documents. Subsequently, in his evidence, when pressed about the obvious theoretical difference between legal advice and policy advice his answer was:

"Yes, were the world but that simple I think is my main response to
that."

14. As the Tribunal recognized, s.64(1) of the Act cast upon the Department the primary onus of satisfying the Tribunal that the disputed documents were exempt on the grounds of legal professional privilege. Since the material before the Tribunal indicated that some of the disputed documents contained or recorded policy advice not proffered in the capacity of the Treasury's professional legal adviser at all, it was incumbent upon the Department to satisfy the Tribunal that legal professional privilege somehow extended to protect the confidentiality of that part of the contents. The Department might have discharged that onus by satisfying the Tribunal that it was not practicable to sever and disclose what constituted advice or directions about general Government policy without disclosing the content of professional legal advice contained in the document and that the purpose, in the sense discussed above, for which the document had been brought into existence was to be found in the provision of the legal professional advice. It should be apparent from what has been said above that the material placed before the Tribunal by the Department quite failed to discharge that onus. More important, a careful reading of the reasons of the members of the Tribunal leads to a conclusion that, while they expressly referred in their reasons to the sole purpose test, they did not really direct their minds to the question whether the Department had satisfied them on those further questions.

15. The carefully expressed reasons of the Tribunal seem to me to adopt the approach that the whole of a document was protected by legal professional privilege if the document was susceptible of being generally described by reference to one or other of the classes of documents mentioned by Lockhart J. in his helpful judgment in Trade Practices Commission v. Sterling [1979] FCA 33; (1979) 36 FLR 244, at pp 245-246. For present purposes, the relevant classes of documents referred to by Lockhart J. are "(a)ny communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance" (class (a)) and "(n)otes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications" (class (d)). Lockhart J. was not, however, concerned with the case of documents which satisfied one or other of those descriptions by reason of part only of their contents in the sense that they contained privileged and non-privileged material or that they had been brought into existence for both a privileged and non-privileged purpose. In the case of such documents, a general classification by reference to the privileged part or privileged purpose does not determine whether privilege can be claimed in respect of the whole. Thus, in the case of the documents which are here under consideration, the Tribunal's conclusion that they came within one or other of Lockhart J's general descriptions because they contained or recorded legal professional advice did not dispose of the question whether the Department was entitled to refuse access to any general policy advice about the administration of the Act which they might also contain but gave rise to the further questions of severability and "sole purpose" to which I have referred. As I have indicated, the members of the Tribunal appear to have failed to address themselves at all to those further matters. In that failure, they fell into error of law.

16. The explanation of the failure of the members of the Tribunal to address those further matters would seem to lie in the manner in which the proceedings were conducted before them. The appellant appeared in person. There are passages in the transcript which disclose that he did not press upon the Tribunal the need to examine the question whether the contents of a particular document could be separated into what was privileged and what was not or whether the protection of legal professional privilege was not available for the reason that the document would have been brought into existence, in any event, for the purpose of conveying non-privileged policy advice. Such a failure to direct the attention of the members of the Tribunal specifically to those further matters would ordinarily be of particular importance on an appeal from the decision of the Tribunal for the reason, among others, that it leaves open the possibility that further and more specific evidence might have been led to support the contention that the whole of the relevant document was privileged. In the circumstances of the present case, however, I am of the view that the Court should not decline to intervene by reason of any such failure on the part of the appellant. One reason for that view is that any failure to advert to those matters on the hearing before the Tribunal may well have resulted from the overall approach adopted by the Department to the proceedings. As the Tribunal said in the penultimate paragraph of its decision (omitting three sentences referring to a further claim for exemption of the disputed documents based on s.36(1)(a) of the Act and a certificate under s.36(3)):

"We do not think that we should leave the matter without some
comment on the affidavit and schedule of documents. The schedule
annexed to Mr Rowe's affidavit contained no more than a list of the
documents said to be exempt, identifying them by reference to the
author and (where appropriate) the addressee of the document and
its date. In respect of the documents said to be covered by legal
professional privilege, the affidavit provided some evidence as to
the general contents of the documents to justify the claim of
exemption. ... The hearing of the matter would undoubtedly have
been considerably shortened and the issues with respect to both
grounds of exemption would have emerged more clearly if the
schedule annexed to Mr Rowe's affidavit had provided a concise
description of each document and if a copy of the affidavit and
schedule had been furnished to the applicant in time for him to
consider them carefully before the hearing."

Another and more compelling reason why the Court should not decline to intervene lies in the contents of one of the disputed documents which was received by the Court on the hearing of the appeal. That document, which was referred to before the Tribunal as "document 29", is a letter dated 13 April 1983 from the Attorney-General to the Treasurer. The evidence before the Tribunal indicated that it was a document of particular importance in the proceedings for the reason that the claim to privilege in relation to some other documents (e.g. documents 28, 33, 35 and 38) depended, in whole or part, on its contents being protected by legal professional privilege.

17. In the proceedings before the Tribunal, document 29 was claimed by the Department to be privileged on the ground that it "was brought into existence by the Attorney-General and/or the Department of the Attorney-General for the purpose of giving legal advice to the Department (of the Treasury) in relation to the then pending proceedings ... before the Administrative Appeals Tribunal". That description was confirmed by Mr. Rowe in his evidence in chief (under examination by counsel for the Treasury) before the Tribunal:

"Is that a letter under the hand of the Attorney-General?---Yes,
that is correct.

Addressed to the treasurer?---Yes.

And setting out the writer's legal opinion in relation to Mr
Waterford's case before the AAT?---Yes, that is correct."
(Emphasis added)

The Tribunal upheld the Department's claim that the whole of document 29 (and associated documents) was protected by legal professional privilege. In the course of their decision, the members of the Tribunal said:

"It was submitted by Mr Waterford that correspondence
emanating from or sent to the Attorney-General was not subject to
legal professional privilege because the Attorney-General had been
approached and was writing, not in his capacity as the legal
representative of the Department of the Treasury, but rather as the
Minister responsible for the administration of the Freedom of
Information Act. Mr Waterford submitted that the advice proffered
by the Attorney-General was properly characterised as policy advice
rather than legal advice and that the claim of legal professional
privilege was not therefore appropriate.

In our view, this submission cannot be sustained. The
evidence of Mr Rowe (Transcript p36), which we accept, was that the
Attorney-General's legal opinion had been furnished in relation to
the then pending application by Mr Waterford before the Tribunal.
Whether or not the legal advice also included advice as to the
policy of the FOI Act, we are of the opinion that all the letters
to and from the Attorney-General (including draft letters) are of
such a nature that legal professional privilege would attach to
them (see Sterling - class (a) documents)."

The last sentence of the above extract from the decision of the Tribunal reflects the approach that it sufficed to establish legal professional privilege in respect of the whole document that part of its contents brought it within the description of one or other of the classes mentioned in Sterling. The immediate point of the quotation of the extract is, however, that it demonstrates that the basis upon which the Tribunal upheld the claim to privilege was its acceptance of the Treasury's assertions to the effect that the letter contained the Attorney-General's professional legal advice about the proceedings as distinct from policy advice about the proper administration of the Act.

18. Shortly before Mr. Waterford's appeal from the decision of the Tribunal came on for hearing before the Full Court of the Federal Court, a copy of the relevant letter from the Attorney-General to the Treasurer was made available to his legal representatives. The copy so made available was incomplete in that some nine lines of the third paragraph were blacked out. It reads as follows:

"I am writing to you in relation to an application that has
been made to the Administrative Appeals Tribunal by Mr J.
Waterford, a journalist with the Canberra Times, for a review of a
decision made by your Department under the Freedom of Information
Act.

The matter is listed for hearing in the Tribunal on 18 April
1983. I understand that the documents sought by Mr Waterford are
documents relating to the 1982-83 Budget, and the ground relied on
to refuse the request is that the documents are 'prior documents',
i.e. documents which became documents of your Department prior to
the commencement of the Act. I am informed, however, that while
your Department refused to give Mr Waterford access to documents in
accordance with his request, it did make available to him certain
information related to those documents.

While the documents sought by Mr Waterford may be 'prior
documents', it is not appropriate to rely on that ground in the
proceedings before the Tribunal. These are fairly recent documents
and having regard to our policy on disclosure of information, there
is no reason to refuse access to such documents only on that
ground. It may well be, of course, that the documents are such
sensitive documents that they should not be disclosed for other
reasons. If that is the case, there may be other grounds available
under the Act to protect the documents from disclosure. ... (It
is here that nine lines of the letter are blacked out) ... I should
therefore be grateful if your Department would review its decision
in the light of Government policy.

I might add that in recent matters before the Tribunal both
the Public Service Board and the Australian Federal Police settled
matters where access had been refused to 'prior documents'.
Favourable media coverage followed the settlement of the Federal
Police matter.

Officers of my Department are, of course, available to assist
officers of your Department to consider whether any other grounds
are available for protecting the documents from mandatory
disclosure under the Act.

Since the Freedom of Information Act is one which I
administer, arguments to be put on the construction of the Act are,
of course, to be settled with officers of my Department."

19. When the above letter is read in the context of other material in evidence, it is apparent that it was written by the Attorney-General as the Minister responsible for the administration of the Freedom of Information Act to draw attention to Government policy to be followed by the Treasury (in the pending proceedings before the Tribunal) and other departments in relation to the discharge of their obligations and functions under the provisions of that Act. It was not legal advice given by the senior law officer of the Commonwealth in the capacity of professional legal adviser to the Treasury in relation to the proceedings. Upon analysis, the letter contained no real legal advice at all. On one of the two legal questions to which it referred, it assumed that the documents "may be 'prior documents'" as the basis of the apparently unsolicited admonition that, in accordance with general Government policy on disclosure of information, it was "not appropriate to rely on that ground". On the other, it did no more than acknowledge that there "may well be" other grounds upon which production could be refused consistently with Government policy. Indeed, the last two paragraphs of the letter plainly underline the distinction between the policy matters dealt with in the letter by the Attorney-General as Minister administering the Freedom of Information Act and the professional legal advice which would be given by officers of his Department if required. It has not been suggested on behalf of the Commonwealth that the nine lines of the third paragraph of the letter which were blacked out in the copy made available to Mr. Waterford's legal representatives constituted professional legal advice if the rest of the letter did not. The reason for the claim that those lines are exempt from production is that they are said to relate to Cabinet discussions. In these circumstances, it is clear that the claim that the letter enjoyed legal professional privilege was made and mistakenly upheld in the proceedings before the Tribunal on the basis of a misleading description of the contents of the letter. The significance of that is not affected by the fact that the letter was subsequently made available to Mr. Waterford since it would seem that the Treasury even now does not concede either that the letter was not protected by legal professional privilege or that the description of it given to the Tribunal was other than accurate.

20. There is nothing that is more calculated to undermine the principle of legal professional privilege than its abuse. Where it appears that legal professional privilege has been deliberately or inadvertently abused in that it has been invoked to protect from production documents which do not in fact fall within its ambit, there is a special need for vigilance to ensure that the full extent of any such abuse is corrected (cf. Cross on Evidence, 3rd Aust. ed. (1986), par.13.46, pp 640-641; Brambles Holdings Ltd. v. Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452, at p 464; Edward, "Confidentiality and Privilege in the EEC Context", New Law Journal, vol.128 (1978), 1208, at p.1208.) Otherwise, a privilege which exists to serve important public purposes will become a source of unfair and unintended advantage to the careless, the misinformed and the unscrupulous. It should be stressed that, in the present case, it is not suggested that there has been any deliberately improper claim to legal professional privilege made on behalf of the Treasury. However, the misleading description of the contents of document 29 upon the basis of which the Tribunal mistakenly held that that document was wholly protected by legal professional privilege plainly demonstrates the practical need for a reconsideration by the Tribunal, in accordance with proper legal principle, of the claim that other documents which contain policy advice, as distinct from legal professional advice, are wholly or partly protected by legal professional privilege. In all the circumstances, the Court should not decline to intervene on the ground that the manner in which the appellant's case was conducted before the Tribunal was a contributing cause of the Tribunal's failure to address the questions of severability and "sole purpose". The decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal to enable it to undertake that reconsideration in relation to any of the documents whose classification as exempt documents under s.42(1) was challenged on the appeal to the Federal Court.

21. As has been mentioned, exemption of the disputed documents was also claimed under s.36 of the Act and a certificate had been issued pursuant to s.36(3). It may well be that, if the matter be remitted to it, the Tribunal will conclude that it is unable to be satisfied, in the context of the unsatisfactory description of document 29 which had previously been given to it, that some or all of the disputed documents are protected by legal professional privilege without actually inspecting them. If that be so and the certificate under s.36(3) precludes such inspection, at least by the Tribunal as previously constituted, the Department may encounter difficulty in satisfying the Tribunal that all or part of the contents of such documents are exempt under s.42(1) of the Act. If the Department is unable to satisfy the Tribunal, upon reconsideration, that some or all of the contents of any disputed documents are exempt under s.42(1) of the Act, it may, if Mr. Waterford so requests, become necessary for the Tribunal, reconstituted in accordance with s.58B, to determine whether there exist reasonable grounds for the Department's claim that disclosure would be contrary to the public interest. It was not suggested in argument, however, that any of these considerations should either preclude the Court from dealing with the matters raised on the appeal or prevent the Court from intervening to correct any error of law affecting the Tribunal's decision that the disputed documents were wholly protected by legal professional privilege.

22. The appeal should be allowed. The order of the Full Court of the Federal Court should be set aside and, in lieu thereof, it should be ordered: (i) that the appeal to that Court be allowed; (ii) that the formal decision of the Tribunal be varied by deleting documents nos. 7, 9-12, 15-18, 20-23 and 25-44 from the list of documents (set out in para. 1(i) of the formal decision) held to be exempt documents within the meaning of s.42(1) of the Act; and (iii) that the matter be remitted to the Tribunal to reconsider whether all or any of those documents are in whole or in part exempt documents within the meaning of that sub-section.

DAWSON J.: On 2 December 1982 the appellant applied, under the Freedom of Information Act 1982 (Cth) ("the Act"), for access to certain documents in the possession of the Department of the Treasury of the Commonwealth ("the Department") relating to the estimated number of persons receiving unemployment benefits. The Department on 13 January 1983 refused him access to the documents and on 17 January 1983 he applied, pursuant to s.55(1) of the Act, to the Administrative Appeals Tribunal ("the Tribunal") for a review of that decision.

2. In the meantime, and before the Tribunal gave its decision (which it gave on 29 June 1983), the appellant on 5 May 1983 again applied to the Department, this time for access to documents relating to the processing of his original request. As a consequence of the second application the respondent prepared a list of the documents to which it related. There were 61 numbered documents listed. On 31 May 1983 the appellant was granted access to the documents numbered 46 to 61, these being documents which were generally available, while access to the documents numbered 1 to 45 was refused. The appellant on 2 June 1983 once more applied to the Tribunal for a review, this time of the decision constituted by the second refusal. The Tribunal gave its decision upon this application on 14 March 1984.

3. In deciding the second application, the Tribunal determined that 33 of the 45 numbered documents in dispute would be privileged from production in legal proceedings on the ground of legal professional privilege and were for that reason exempt documents under s.42(1) of the Act. There is no right of access to exempt documents: s.11. The appellant then appealed to the Full Court of the Federal Court pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) saying, in an amended notice of appeal, that the Tribunal had erred in law in holding that the documents numbered 7, 9 to 12, 15 to 18, 20 to 23 and 25 to 38 were exempt documents. The reference to document 11 was apparently in error, the appellant having conceded that it was privileged. The appeal to the Federal Court thus concerned 26 only of the 33 documents held by the Tribunal to be exempt. In the course of the hearing of the appeal, the respondent gave the appellant access to the document numbered 29 (with a portion deleted upon the basis that it concerned cabinet deliberations and attracted exemption under s.34(1) of the Act) and the document numbered 38. Since document 28 was merely a draft of document 29, the number of documents which ultimately fell to be considered by the Federal Court was reduced to 23.

4. It should be added that before the Tribunal, exemption was also claimed for the documents numbered 1 to 38 and 45 as internal working documents of the description contained in s.36(1)(a) of the Act for which a certificate had been signed by the Minister under s.36(3). That latter sub-section provides that the Minister may certify that the disclosure of such a document would be contrary to the public interest and that the certificate establishes exclusively that fact, subject to the review procedure laid down in Pt VI of the Act. If a document is an internal working document of the kind described in s.36(1)(a) and its disclosure would be contrary to the public interest, it is an exempt document. The Tribunal was satisfied that the documents numbered 7 to 23, 25 to 38 and 45 were exempt documents under s.36(1) but entertained doubts whether the documents numbered 1 to 6 and 24 were within that sub-section. It reserved the question whether the appellant might invoke the review procedure contained in Pt VI of the Act in respect of the latter documents.

5. On appeal, the Federal Court held that the appellant had not established any error on the part of the Tribunal in concluding that the documents the subject of the appeal were the subject of legal professional privilege and hence exempt documents under s.42(1). It therefore found it unnecessary to consider whether any of the documents also fell within s.36(1)(a). It is against the judgment of the Federal Court that this appeal is brought. The grounds of appeal raise only the question of legal professional privilege.

6. The legal professional privilege relied upon in this case is that which attaches to communications between a legal adviser and his client for the purpose of giving or receiving legal advice and to documents recording those communications or containing information for the purpose of enabling the advice to be given. In order to attract that privilege, the communications must be confidential and the legal adviser must be acting in his professional capacity. See Minet v. Morgan (1873) 8 Ch App 361; Wheeler v. Le Marchant (1881) 17 Ch D 675; Smith v. Daniell (1874) LR 18 Eq. 649; Bullivant v. Attorney-General for Victoria (1901) AC 196; Jones v. Great Central Railway Company (1910) AC 4; O'Rourke v. Darbishire (1920) AC 581.

7. It was submitted on behalf of the appellant that the legal adviser must also be independent of his client and not his employee for communications between them to be privileged. Reliance was placed upon the observation made by the European Court of Justice in A. M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB 878, at p 950:

"... there are to be found in the national laws of the member
states common criteria inasmuch as those laws protect, in similar
circumstances, the confidentiality of written communications
between lawyer and client provided that, on the one hand, such
communications are made for the purposes and in the interests of
the client's rights of defence and, on the other hand, they emanate
from independent lawyers, that is to say, lawyers who are not bound
to the client by a relationship of employment."

Whilst there is something to be said for the distinction drawn in that passage between independent and employed lawyers, it is not a statement of the position at common law and there is authority in this Court and elsewhere for the proposition that legal professional privilege may attach to communications passing between a salaried legal adviser and his employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. For this reason the legal adviser must be qualified to practise law and, it seems, subject to the duty to observe professional standards and the liability to professional discipline. See Attorney-General (N.T.) v. Kearney [1985] HCA 60; (1985) 158 CLR 500, at pp 510, 521-522, 530-531; Wigmore on Evidence, (McNaughton rev., 1961), vol.8, pars 2300, 2300a.

8. In Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No.2) (1972) 2 QB 102 it was held by the Court of Appeal that legal professional privilege extends to legal advice given by employees acting in their capacity as legal advisers. The case went to the House of Lords ((1974) A.C. 405) where the point was accepted without challenge. In the Court of Appeal, Lord Denning M.R. (with whom Karminski and Orr L.JJ. agreed) saw no reason to distinguish for the purposes of legal professional privilege between legal advisers in independent practice on their own account and legal advisers who are salaried employees. Although he did not expressly impose qualifications such as those referred to in Attorney-General (N.T.) v. Kearney, which I have set out above, it is clear enough that in expressing the view which he did, he had in mind legal advisers who, notwithstanding their employment, are engaged in work of the type performed by independent practitioners. At p.129 he said as much:

"I speak, of course, of their communications in the capacity
of legal advisers. It does sometimes happen that such a legal
adviser does work for his employer in another capacity, perhaps of
an executive nature. Their communications in that capacity would
not be the subject of legal professional privilege."

And his earlier reference on that same page to the "many cases in the books of actions against railway companies where privilege has been claimed in this way" indicates that he was referring to employees engaged in legal work of the ordinary kind on behalf of their employer which might otherwise be carried out by a private practitioner. However, an employed legal adviser, particularly a government employee, may have duties which extend beyond those performed in a professional capacity as a lawyer and he may be required to act or advise in relation to matters which form no part of the profession of the law. It is one thing to apply legal professional privilege to communications between a salaried legal adviser and his employer when the adviser is conducting litigation on behalf of government, such as acting in the defence or prosecution of a claim, or giving advice such as might be given by an independent legal adviser to his client about his private rights. It is another thing, in my view, where the advice is intended to form the basis of an administrative decision to be made in the performance of some public duty. Such advice does not form part of the process of the law which serves the administration of justice. It is concerned rather with the executive function of government.

9. Before turning to the special problems which arise in relation to salaried legal advisers employed by government, I should observe that the general proposition that legal professional privilege may attach to communications between legal advisers who are employed and their employers for the purpose of giving and receiving advice has been followed in Ireland in Geraghty v. Minister for Local Government (1975) IR 300. In Canada it has also been accepted that such communications are protected by privilege (see Re Director of Investigation and Research and Shell Canada Ltd. (1975) 55 DLR (3d) 713, at p 721) and the same result has been reached in the United States (see U.S. Steel Corp. v. United States (1984) 730 F 2d 1465, at p 1469; Keller, "Federal attorney-client privilege", (1982) 62 Boston University Law Review, p.1003). Subject to the qualifications expressed in Attorney-General (N.T.) v. Kearney, I do not think, as I remarked in that case, that there is any sufficient reason for denying privilege to communications passing between salaried legal advisers and those who employ them.

10. However, those qualifications point, particularly in the case of government employees, to the special difficulties to which I have already adverted. Notwithstanding that government employees may be required to give legal advice, they may not be consulted in a professional capacity in relation to a professional matter - at all events if what is professional is to be determined, as I think it must, by reference to the private practice of the law. Considerations may arise in the government sphere which do not arise in private practice and which require different treatment. This was recognized by Jacobs J. in Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 where he observed at pp 691-692:

"It is important in the present context, the enunciation of the
limits of legal professional privilege, to keep separate the
possible impact of another public interest, namely, Crown
privilege. We are at the moment considering the limits of legal
professional privilege and a consideration of that subject should
not be clouded by a consciousness of the fact that there may
presently be a public interest in ensuring uninhibited inquiry into
deficiencies in the conduct of the public service and of public
servants. I advert to this separate subject of Crown privilege
without any expression of view on its possible application to the
circumstances of the present case in order to ensure that the
subject is kept overtly distinct."

11. In Attorney-General (N.T.) v. Kearney the problem noted by Jacobs J. arose in a manner which, in my view, required its resolution. In that case it was not argued that the legal advisers in question, who were employed by the Northern Territory Government, were not consulted in a professional capacity in relation to a professional matter. It was assumed that they were. Nevertheless, in my view, special difficulties arose because upon that assumption their communications fell within the ambit of legal professional privilege and yet may also have been within the ambit of Crown privilege or, to use its newer and more accurate name, public interest immunity.

12. The difficulties arose from the fact that when legal professional privilege is properly claimed, the issue of public interest is concluded as a matter of law in favour of confidentiality whereas when public interest immunity is raised the public interest remains to be determined from case to case. With public interest immunity, the public interest is always an open question, the determination of which includes consideration of the very matters, such as the desirability of candour in communications, upon which legal professional privilege has been held to be based. There did not seem to me to be any room or reason for the application at the same time of the principles governing legal professional privilege and of those governing public interest immunity.

13. Of course, it would be possible to apply legal professional privilege even where public interest immunity would determine the issue of public interest in favour of disclosure rather than the preservation of the confidentiality of a communication, but to do so would be to produce a result which might be inconsistent with that required by the latter doctrine.

14. My solution to the problem was to deny the application of legal professional privilege when the right to disclosure of a communication might be determined by the application of the doctrine of public interest immunity. This approach seemed to me to be justified because in the area of government in which the question of public interest immunity arises, there are public aspects to the giving and receiving of advice which are absent in the relationship between an independent legal adviser and his private client. Because of the course which argument took in Attorney-General (N.T.) v. Kearney, I did not add, as the present case suggests that I might have done, that this consideration may also lead to the conclusion that legal professional privilege will seldom, if ever, have application in the area of public interest immunity because advice within that area will not be given in a professional capacity in relation to a professional matter and will not arise from the relationship of lawyer and client.

15. In Attorney-General (N.T.) v. Kearney disclosure was held by the majority to be required by extending the accepted exceptions to the doctrine of legal professional privilege, namely, communications made in furtherance of a crime or fraud, to encompass an abuse of statutory power. To have held otherwise would, in their view, have been "contrary to the public interest which the privilege is designed to secure - the better administration of justice ...": see pp.515, 517, 524. So to extend the recognized exceptions seemed to me to reopen, in effect, the question of public interest from case to case, a question which had hitherto been concluded in favour of confidentiality. To do so, in my view, tended to destroy the certainty required for the effective operation of legal professional privilege. The governmental aspect of the advice in question gave rise, I thought, to a different problem requiring a different solution. However, my view did not prevail and I must accept that the exceptions to legal professional privilege are wider than I previously thought.

16. Nevertheless it was submitted by counsel for the appellant that the approach which I adopted in Attorney-General (N.T.) v. Kearney has relevance in this case. That approach was said to involve the proposition that legal professional privilege and public interest immunity are categories of competing reference, that is to say, legal categories prescribing different rules which overlap in their application to a particular situation and require a choice to be made between them. See Stone, The Province and Function of Law, (1946), pp.176-178. But before there can be categories of competing reference, both categories must be available and the question which must first be determined is whether the Tribunal properly concluded that the relevant documents were protected by legal professional privilege.

17. The legal advice which a government receives in its capacity as a litigant or potential litigant is in no different position from legal advice received by the ordinary citizen. Confidential communications between a government in that capacity and its qualified legal advisers for the purpose of giving or receiving advice will be privileged whether or not the legal advisers are salaried officers, because they will be consulted in a professional capacity in relation to a professional matter and the communications will arise from the relationship of lawyer and client. The occasion will be one for the application of legal professional privilege because the government will be engaging in the legal process in the same way as anyone else and it is that process, essentially based upon the adversary system, which legal professional privilege is designed to aid and protect. As Lord Simon of Glaisdale observed in Waugh v. British Railways Board [1979] UKHL 2; (1980) AC 521, at p 536: "This system of adversary forensic procedure with legal professional advice and representation demands that communications between lawyer and client should be confidential, since the lawyer is for the purpose of litigation merely the client's alter ego."

18. Where, however, a government is engaging, not in the legal process, but in the purely executive function of decision making, there is no reason connected with the administration of justice which could require that any advice which it may be given to assist it in that process should be kept confidential. In Grant v. Downs the majority pointed out at p 685 in relation to legal professional privilege that:

"The rationale of this head of privilege, according to
traditional doctrine, is that it promotes the public interest
because it assists and enhances the administration of justice by
facilitating the representation of clients by legal advisers, the
law being a complex and complicated discipline. This it does by
keeping secret their communications, thereby inducing the client to
retain the solicitor and seek his advice, and encouraging the
client to make a full and frank disclosure of the relevant
circumstances to the solicitor."

19. None of these considerations, save possibly the encouragement of candour, has any application to the relationship between government and its legal advisers whose advice is sought, not within the legal, but within the administrative process. If the promotion of candour in that situation is of concern, then the legal adviser stands in no different position to other advisers of government - economic, political or administrative - who must look to public interest immunity to preserve the confidentiality of their communications where necessary in the public interest. See Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1, per Gibbs A.C.J. at p 40; Mason J. at p 97. Each is giving advice for the same purpose - to assist in the making of an administrative decision - and each stands in the same relationship to government for that purpose. Obviously not all legal advice given by a qualified legal adviser arises from the professional relationship of lawyer and client - for example, research carried out by an associate for a judge - and in my view legal advice given by a salaried employee for the purpose of use in the executive or administrative functions of government does not arise from that relationship. It does not, therefore, attract legal professional privilege. If its disclosure is not in the public interest, which will be for reasons unconnected with the administration of justice, it will be protected, not by legal professional privilege, but by public interest immunity.

20. The relevant documents for which privilege was claimed in this case relate, however, not to the decision to refuse access to the documents to which access was originally sought and refused, but to the proceedings before the Tribunal in which that refusal was contested. The first of those documents, document 7, was given the following description by the respondent: "Note - Deputy Secretary to Chief Finance Officer, Management Services - 14 February 1983 - suggested argument to be adopted in hearing of Mr Waterford's application." The refusal of access to the documents in question took place on 13 January 1983. Thus the communications for which privilege was claimed in this case appear to relate, not to advice given to assist in reaching the decision to refuse access to those documents (a decision which would have been made simply in the administration of the Act), but to the proceedings before the Tribunal in which the decision to refuse access was contested.

21. The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege. For the reasons which I have already given, the fact that advice of that kind was given by salaried employees did not preclude reliance upon the privilege. No question was raised about the qualifications of the legal advisers in this case and it is clear enough that in giving legal advice about the proceedings before the Tribunal they were acting in a professional capacity in relation to a professional matter and enjoyed the relationship of lawyer and client with the respondent.

22. The difficulty lies in the assertion by the appellant that, even though the advice in question related to the proceedings before the Tribunal, it was nevertheless not legal advice but advice of a policy nature. The Tribunal concluded that the appellant had not made good this assertion, but there were aspects of it which must be the cause of some concern.

23. The communications in question fell into two categories. There were, on the one hand, those between the Attorney-General or his Department and the Department of the Treasury and, on the other, those between the Deputy Crown Solicitor's Office and the Department of the Treasury. The Attorney-General was the Minister with general responsibility for the administration of the Act and there was within his department a branch formed for that purpose. However, the Deputy Crown Solicitor's Office, whilst within the same department, was more likely to be giving professional legal advice in relation to the proceedings before the Tribunal than the Attorney-General or the freedom of information branch. The latter two were more likely to be concerned with advice upon matters of policy. Nevertheless, Mr Rowe, a witness on behalf of the respondent, both upon affidavit and in oral evidence, described communications emanating from the latter sources as containing legal advice. For example, document 29 was described in the list of documents in terms of document 28 - its draft - which was in turn described as: "Letter (draft) - Attorney-General to Treasurer - 13 April 1983 - sets out writer's legal opinion in relation to Mr Waterford's application and certain recommendations in relation to that matter." The evidence given upon affidavit by Mr Rowe with respect to these two documents was as follows:

"I refer to documents number 28 and 29 in Annexure 'B'. I have
examined these documents. Each of these documents was brought into
existence by the Attorney-General and/or the Department of the
Attorney-General for the purpose of giving legal advice to the
Department in relation to the then pending proceedings number A83/3
before the Administrative Appeals Tribunal and in respect of each
document legal professional privilege is claimed."

However, it is clear from the oral evidence of the same witness that he drew no distinction between policy advice and legal advice for the purposes of legal professional privilege and regarded advice concerning the administration of the Act to be legal advice "in that any advice relating to the way that the law should be interpreted I think has to be legal advice".

24. The Tribunal's conclusion in relation to correspondence from or to the Attorney-General or the Attorney-General's Department, which included documents 28 and 29, was as follows:

"The evidence of Mr Rowe (Transcript p36), which we accept, was
that the Attorney-General's legal opinion had been furnished in
relation to the then pending application by Mr Waterford before the
Tribunal. Whether or not the legal advice also included advice as
to the policy of the FOI Act, we are of the opinion that all the
letters to and from the Attorney-General (including draft letters)
are of such a nature that legal professional privilege would attach
to them ..."

25. It was submitted that if a document containing or recording legal advice also included policy advice it could not survive the sole purpose test laid down in Grant v. Downs and should have been produced. But Grant v. Downs was a decision in which this Court refused to extend legal professional privilege to material obtained by a corporation from its agents for more than one purpose, only one of which was the purpose of submission to its legal advisers in order to obtain legal advice. Documents of that kind are not privileged because the communications or intended communications which they contain belong in a category which does not attract privilege, albeit they also belong in a category which does. Legal advice given by a qualified legal adviser in his professional capacity to his client falls only within the category of a communication which is privileged. Legal advice serves no other function than legal advice. No doubt if the legal advice is accompanied by advice of another kind which can be separated from it, for example, by blanking out parts in a document, then only the legal advice will be privileged. But if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason. There is only one purpose in legal advice and the privilege which it attracts cannot be lost by the application of the principle which applies when a document containing information of a factual nature is brought into existence for more than one purpose.

26. The Tribunal was of the view that the advice of the Attorney-General or his department may have contained advice other than legal advice but it failed to consider whether the legal advice could be separated from the other advice. In so doing it fell, in my view, into error.

27. Document 29 was not before the Tribunal, but was before the Federal Court and before us. As appears from what I have said, legal professional privilege was claimed in respect of this document and, indeed, this claim appears never to have been formally abandoned despite its disclosure. Notwithstanding its description and the evidence given with respect to it, document 29 in fact contains no advice that can properly be described as legal advice relating to a professional matter arising from the relationship of lawyer and client. Whilst the document does relate to the proceedings before the Tribunal, it does so only in a coincidental way. Its purpose is to communicate a general policy of the Attorney-General's Department that access to documents which are prior documents (i.e. documents coming into existence before the commencement of the Act) should not be refused upon that ground nor should that ground be relied upon before the Tribunal. That is, of course, policy advice concerned with the administration of the Act rather than the conduct of the particular proceedings and for that reason does not, in my view, constitute legal advice which attracts legal professional privilege. The contrast is the more marked in that document 29 clearly offers, but does not provide, legal advice of the latter kind when in its concluding paragraphs it says:

"Officers of my Department are, of course, available to assist
officers of your Department to consider whether any other grounds
are available for protecting the documents from mandatory
disclosure under the Act.

Since the Freedom of Information Act is one which I administer,
arguments to be put on the construction of the Act are, of course,
to be settled with officers of my Department."

28. The contents of document 29 throw a different light upon the claim for privilege made in respect of that document. Moreover, since document 29 is referred to in the respondent's description of documents 31, 32, 33 and 35, questions must arise with respect to the privilege claimed for the latter documents. Document 29, not having been before the Tribunal, ought not to have been placed before the Federal Court. It could not then have formed part of the material before us. I have already expressed the view that the Tribunal was in error and in forming that view I had no need for recourse to document 29. However, it does not seem to me that in the circumstances document 29 can simply be disregarded by this Court and, that being so, it serves to confirm the conclusion which I had already reached. In that respect, the task confronting the Tribunal was more difficult than that confronting us.

29. For these reasons it is my view that this appeal should be allowed to enable the setting aside of that part of the Tribunal's finding that certain specified documents are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege. The matter should be remitted to the Tribunal to enable it to reconsider which, if any, of those documents still in issue are privileged. The onus of satisfying the Tribunal that exemption is properly claimed upon the basis of legal professional privilege is upon those who claim the exemption (see s.61) but, where there is no certificate by the Minister, the Tribunal might if not satisfied require the documents to be produced for inspection under s.64(1). The documents in question are, however, the subject of a certificate under s.36(3) and by reason of s.64(3) the Tribunal is not empowered to require their production. Whether the Tribunal can be satisfied without their production or whether steps ought to be taken to reconstitute the Tribunal to enable it to determine whether there exist reasonable grounds for the claim by the Minister that disclosure of the documents would be contrary to the public interest are not matters which require to be considered here. I agree with the order proposed by Deane J.

30. I would allow the appeal.

ORDER

Appeal dismissed with costs.