Wallace and Director of Public Prosecutions [2003] AATA 119 (7 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/1515

GENERAL ADMINISTRATIVE DIVISION	)
	Re	STEPHEN JOHN WALLACE

Applicant

And

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

DECISION

Tribunal

Mrs Joan Dwyer, Senior Member

Date 7 February 2003

Place Melbourne

Decision

1. The Tribunal varies the decision under review to provide: (i) That the documents or parts of documents which are "exempt documents" under the Freedom of Information Act 1982 ("the Act") are those as to which exemptions are shown as upheld in the Decision Schedule below. (ii) Mr Wallace is entitled to have access to the documents or parts of documents as to which no exemption has been upheld.

DECISION SCHEDULE FORMING PART OF DECISION DELIVERED 7 FEBRUARY 2003

No.	DESCRIPTION	DECISION ON CLAIMED EXEMPTIONS
1.	Record of confidential legal advice communicated by telephone by DPP lawyer to AFP (2 pages not 3 as in Schedule)	s 42 upheld
2.	Record of telephone instructions from AFP to DPP solicitor re representation at remand hearing that day	s 42 upheld
3.	Record of telephone communication requesting DPP prosecutor to appear at remand hearing	s 42 upheld
4.	DPP lawyer's record of remand hearing	s 42 upheld
5.	DPP lawyer's letter communicating result of remand hearing to AFP	s 42 upheld
6.	Record of telephone instructions from AFP to DPP regarding preparation for committal mention and seeking advice regarding a related matter	s 42 upheld
7A.	Record of telephone instructions from AFP as to preparation for hearing and record of advice given by DPP lawyer to AFP	s 42 upheld
7B	Record of two telephone communications between AFP and DPP lawyer about pending criminal proceedings and of advice given by DPP lawyer to AFP	s 42 upheld
7C	Copy of 7B	as for 7B
8.	Note of discussion between DPP lawyers re advice to be given to AFP	s 42 upheld
9.	More detailed Email record of communications between DPP lawyers as to advice to be given to AFP	s 36 and s 42 upheld
10.	Letter of advice from DPP lawyer to AFP	s 42 upheld
11A.	Note by DPP solicitor as to advice communicated to AFP	s 42 upheld
11B	Copy of 11A	as for 11A
12A	Record of telephone instructions received from AFP and action taken by DPP lawyer in preparing for prosecution	s 42 upheld
12B.	Copy of 7B& 7C	as for 7B&7C
12C	Copy of 12A	as for 12A
13&14	Released	N/A
15A15B15C.	Note of instructions received in telephone communications from AFP to DPP lawyer and of action to be taken by DPP lawyer regarding criminal proceedings	s 42 upheld
16.	Note of telephone instructions from AFP to DPP lawyer as to preparation for criminal proceedings	s 42 upheld
17A17B 17C.	Notes of telephone instructions from AFP to DPP lawyer and advice given by DPP lawyer as to preparation for hearing (part of document has been released)	s 42 upheld
18.	Letter from AFP to DPP re preparation for pending criminal proceedings	s 42 upheld
19.	Note of telephone instructions from AFP re preparation of hand-up brief and other criminal proceeding (part of document has been released)	s 42 upheld
20.	Note of telephone instructions from AFP to DPP lawyer re preparation of hand-up brief	s 42 upheld
21.	Communication from AFP sending hand-up brief to DPP for consideration and for service on defendant (brief has been released).	no exemption upheld
22.	Letter from AFP sending brief of evidence to DPP and communicating further instructions as to preparation for committal mention and as to 1991 charges	s 42 upheld
23A23B	Note of telephone instructions received by DPP lawyer from AFP and of advice given as to form of hand-up brief	s 42 upheld
24.	Note of telephone instructions received by DPP from AFP as to hand-up brief	s 42 upheld
25.	Letter from AFP sending copy criminal history to DPP for use in litigation. (criminal history has been released)	no exemption upheld
26A26B26C.	Note of telephone communications from AFP reporting on service and filing of hand-up brief (partly released)	no exemption upheld
27.	Letter of advice from DPP lawyer to AFP	s 42 upheld
28.	Records of telephone messages left by AFP and DPP	no exemption upheld
29.	Fax cover sheet forwarding criminal history check (already released) for use in litigation	no exemption upheld
30.	Released	N/A
31.	Record of telephone instructions from AFP and advice from DPP lawyer to AFP regarding preparation for hearing	s 42 upheld
32.	Committal Notice to Diary Officer and Legal Registry	no exemption upheld
33.	DPP lawyer's notes of court appearance	s 42 upheld
34.	DPP lawyer's letter of advice to AFP as to court appearance	s 42 upheld
35A35B	DPP lawyer's note of telephone instructions from AFP as to preparation for hearing on 6 December 2000	s 42 upheld
36.	DPP lawyer's note of telephone instructions from AFP as to criminal proceedings	s 42 upheld
37.	released	N/A
38.	Indictment submission checklist part of preparation by DPP lawyer for hearing	s 36 not upheld s 42 upheld
39.	DPP lawyer's note of telephone message requesting further evidence re criminal proceeding (partly released).	s 42 upheld
40.	DPP lawyer's note of telephone instructions from AFP giving information as to matters relevant to criminal proceeding	s 42 upheld
41.	Fax cover sheet from AFP to DPP forwarding information (5 pages) from records prepared for another purpose for use in preparation for legal proceedings (refer to AFP and Propend Finance)	s 42 upheld
42.	Fax cover sheet from AFP to DPP forwarding copy 9 pages of information from records prepared for another purpose, for use in preparation for legal proceedings (refer to AFP and Propend Finance)	s 42 upheld
43.	DPP lawyer's note of telephone instructions from AFP re matters relevant to criminal proceeding	s 42 upheld
44.	Note of telephone message of advice by one DPP lawyer to another in connection with likely sentence on a plea	s 42 upheld
45.	Note of telephone advice by one DPP lawyer to another in connection with likely sentence on a plea	s 42 upheld
46.	Note of telephone message left by DPP lawyer for AFP	no exemption upheld
47.	Fax from DPP lawyer to AFP relating to preparation for legal proceeding	s 42 upheld
48.	Record of telephone instructions from AFP as to progress with 1991 matters	s 42 upheld
49.	Draft Minute from DPP lawyer to DPP, seeking approval of a step in provision by DPP of legal services to AFP	s 36 and s 42 upheld
50.	Record of telephone instructions from AFP to DPP lawyer regarding preparation for criminal proceeding in respect of 1991 matter	s 42 upheld
51.	Fax cover sheet from AFP to DPP forwarding information for use in preparation for legal proceedings (attached information has been released).	no exemption upheld
52.	Note of telephone message for DPP lawyer from AFP and discussion regarding legal proceeding when call returned	s 42 upheld
53.	Same as 49, but signed by author	s 36 and s 42 upheld
54.	Internal Minute from DPP lawyer to DPP making recommendation and seeking consent to adoption of a certain course in proceeding as to 1991 matters	s 36 upheld as to 1st para on page 1 and last two paras on page 5. s 42 upheld
55.	Internal Minute from another DPP lawyer to DPP giving legal opinion as to issue raised in document 54	s 36 and s 42 upheld
56.	Same as 49 and 53, but with handwritten annotation by DPP and signature of Director and Officer	s 36 and s 42 upheld
57.	Email communication between two DPP lawyers as to progress in legal proceeding about 1991 matter	s 36 and s 42 upheld
58.	Minute from DPP Perth to DPP Melbourne DPP lawyer forwarding files to Melbourne Office - relevant to legal proceeding	s 42 upheld
59.	Internal DPP Emails as to preparation and progress of proceeding re 1991 matters	s 42 upheld
60.	Fax cover sheet forwarding letter from Mr Wallace's solicitor (already released) and also referring to preparation in respect of 1991 matter	s 42 upheld
61.	Internal DPP Emails reporting on sentence and reporting that Mr Wallace wished to plead to old charges.	no exemption upheld
62.	Letter from AFP (WA) to DPP (Perth) as to action to be taken to represent AFP in legal proceedings	s 42 upheld
63.	Letter DPP (Perth) Deputy Director to AFP (WA) containing legal advice	s 42 upheld
64.	Letter AFP (WA) to DPP (Perth) seeking legal advice	s 42 upheld
65.	Sworn affidavit by AFP Federal Agent seeking arrest warrant.	no exemption upheld
66.	Letter from DPP (Perth) advising AFP (WA) who are the DPP lawyers handling the matter	s 42 upheld
67.	Internal DPP request to open new file.	no exemption upheld
68.	Fax from AFP (WA) to DPP (Perth) seeking case officer to advise and represent DPP enclosing copies of docs 62, 63, 64, 65 (refer to AFP and Propend Finance)	s 42 upheld
69.	Copy of 64 with draft information for comment by DPP Deputy Director	s 42 upheld
70.	Fax from DPP (Perth) to AFP (WA) forwarding letter of advice (document 63)	s 42 upheld
71.	Note of telephone instructions from AFP (WA) to DPP (Perth) re preparation of case against applicant	s 42 upheld
72.	Letter AFP (WA) to DPP (Perth) seeking legal advice with handwritten annotation	s 42 upheld
73.	Draft statement of facts with handwritten corrections by DPP lawyer	s 36 and s 42 upheld
74.	DPP (Perth) handwritten note of telephone instructions from AFP	s 42 upheld
75.	Fax cover sheet from AFP (WA) to DPP (Perth) regarding a step in preparation of legal proceeding	s 42 upheld
76.	DPP lawyer's working notes	s 36 not upheld s 42 upheld
77.	AFP facts sheet regarding Holly Dean-Johns prepared or forwarded to obtain legal representation by DPP	s 42 upheld
78.	Internal DPP Minute to Acting DPP regarding D'Anna and Foster appeal against sentence (4 pages only)	s 42 upheld
79.	AFP facts sheet regarding Dianne Foster prepared or forwarded to obtained legal representation by DPP	s 42 upheld
80.	AFP facts sheet regarding Vincenzo D'Anna prepared or forwarded to obtain legal representation by DPP	s 42 upheld
81.	DPP lawyer's record of telephone instructions from AFP as to future course of legal proceedings	s 42 upheld
82.	DPP lawyer's record of telephone instructions from AFP as to future course of legal proceedings	s 42 upheld
83.	DPP lawyer's record of telephone instructions from AFP as to future course of legal proceedings	s 42 upheld
84.	Working notes of DPP lawyer	s 36 and s 42 upheld
85.	DPP lawyer's record of telephone instructions from AFP regarding progress of criminal proceedings	s 42 upheld
86.	Letter from AFP (WA) to DPP (Perth) regarding sentencing submissions in matter of Foster and D'Anna	s 42 upheld
87A and 87B	Message for DPP lawyer to ring AFP (WA) and record of communication when call returned requesting letter of advice	s 42 upheld
88.	Letter of advice from DPP lawyer for Deputy Director to AFP	s 42 upheld
89.	Fax cover sheet from AFP (WA) to DPP (Perth) forwarding draft letter and letter with handwritten corrections and comments by DPP lawyer	s 36 and s 42 upheld
90.	Note of DPP lawyer as to corrections to document 89 - perhaps record of a telephone communication	s 42 upheld
91.	working notes of DPP lawyer	s 36 and s 42 upheld
92.	working notes of DPP lawyer	s 36 and s 42 upheld
93.	Draft Statement of Facts and Submissions on penalty regarding D'Anna and Foster with annotations by DPP lawyer	s 36 partially exempt last 3rd of p3 and whole of p4 under heading "Submissions on Penalty" exempt s 42 upheld
94.	Internal Minute by DPP lawyer to Acting Director seeking approval to appeal against sentences of D'Anna and Foster	s 36 partially exempt paras 4 and 16 incl are exempt. s 42 upheld
95.	Internal Minute by DPP lawyer to Acting Director agreeing with recommendation in document 94 and approval by Acting Director	s 36 partially exempt exempt except for part beginning with the words "D'Anna and Foster" on p1 and ending at heading "Discussion" on p2. s 42 upheld
96.	Draft and annotated outline of DPP submissions on appeal against sentence in D'Anna matter prepared by DPP lawyer	s 36 and s 42 upheld

(Sgd) Joan Dwyer

Senior Member

FREEDOM OF INFORMATION - request for access to documents in relation to criminal proceedings - partial release of documents - claim that remaining documents are exempt documents - decision varied

Freedom of Information Act 1982 - framework of the Act - object of the Act - desirability of giving wide access to documents demonstrated by s 14 and 22 - respondent should only rely on exemptions "necessary for the protection of essential public interests" - Tribunal can not require access to be given to exempt documents s 18(2)

Section 36(1) - two concepts - "deliberative processes involved in the functions of an agency" - "the public interest" - factors to be considered as to public interest

Section 42(1)(c) - legal professional privilege - need for evidence of client/lawyer relationship - whether necessary that communications be "confidential" if relating to legal work carried out by lawyer for benefit of client - whether privilege applies to copies of documents which are themselves not of such a nature as to attract legal professional privilege when they are forwarded by client to lawyer

PRACTICE AND PROCEDURE - identity of respondent - whether Director of Public Prosecutions or Office of the Director of Public Prosecutions

Director of Public Prosecutions Act 1983 ss 3, 5, 6, 9 and 15

Freedom of Information Act 1982 ss 3, 4(1), 11, 14, 15, 18(2), 22, 26, 36, 42, 54, 55, 60, 61(1) and 64

Evidence Act 1995 ss 118 and 119

Re Spier and ACT Electoral Commissioner and Another (1995) 41 ALD 374

Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588

Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551

Re James and Australian National University (1984) 2 AAR 327

Secretary, Department of Workplace Relations & Small Business v The Staff Development & Training Centre Pty Ltd [2001] FCA 1375

Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs

(1996) 23 AAR 142

Trade Practices Commission v Stirling (1979) 36 FLR 244

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

Re Noonan and Commonwealth Director of Public Prosecutions [2000] AATA 492

Dunesky and Another v Elder and Others (1992) 107 ALR 573

Auten v Rayner and Others (No. 2) (1960) 1QB 669

The Queen v Dainer and Others; Ex parte Pullen (1988) 89 FLR 208

R v Cahill; Ex parte McGregor (1985) 16 A Crim R 25, (1985) 61 ACTR 7

Adams v Anthony Bryant & Co Pty Ltd and Others (1986) 67 ALR 616

Re Price & Director of Public Prosecutions (1997) 4 QAR 157

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49

Grant v Downs (1976) 135 CLR 674

Commissioner of Australian Federal Police v Propend Finance Pty Ltd

(1997) 188 CLR 501

REASONS FOR DECISION

7 February 2003

Mrs Joan Dwyer, Senior Member

1. This is an application under the Freedom of Information Act 1982 ("the Act") for review of an internal review decision made on 28 September 2001, (T14 p79). That decision varied an initial decision made 26 July 2001 (T12 p60), which released a number of documents to Mr Wallace and refused access to others. The decision on review released further documents but still refused access to others.

2. Mr Wallace appeared in person. Mr Lane of Counsel appeared for the Director of Public Prosecutions. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits received in evidence. Exhibit R1 was an affidavit of Mr Bruckard, a solicitor who is appointed or employed pursuant to s 27 of the Director of Public Prosecutions Act 1983 ("the DPP Act"). He made the original decision in this matter. Mr Bruckard attached to his affidavit a number of exhibits marked SIB1 to 13. Exhibit SIB13 is a schedule of documents claimed to be exempt as at the date of hearing (the "Schedule"). Mr Bruckard, at the request of the Tribunal, gave evidence on the issue of whether the Australian Federal Police ("AFP") had given consent to waiver of legal professional privilege.

THE DESCRIPTION OF THE RESPONDENT

3. When I started writing the reasons for decision in this matter, I noticed that the Tribunal file described the respondent as Director of Public Prosecutions, but the respondent's documentation referred to the respondent as Office of the Director of Public Prosecutions. The Act, in s 15, provides for requests for access to documents to be made to an agency. It further provides, in s 23, that decisions may be made on behalf of an agency by the responsible Minister or the principal officer of the agency, or by other authorised officers. Section 60 of the Act provides, so far as relevant:

Parties

60. For the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in respect of proceedings under this Part:

(a) a decision given by a person on behalf of an agency shall be deemed to have been given by the agency;

Accordingly, in some circumstances, the proper respondent to an FOI matter is the agency deemed to have given a decision. The Office of the DPP is a "prescribed authority" under paragraph (a) of the definition of "prescribed authority" in s 4(1) of the Act and hence an "agency", as that term is defined in s 4(1) of the Act. However the DPP, subject to s 4(3), could also be a "prescribed authority" under paragraph (c) of the definition of that term in s 4(1) of the Act.

4. Because of the confusion as to the correct description of the respondent, I arranged for the District Registrar to write to the respondent (copy to the applicant) asking why the respondent's documents were headed as if the Office of the Director of Public Prosecutions was the respondent, rather than the Director of Public Prosecutions. Previous FOI decisions involving the DPP have used a variety of headings.

5. Before setting out the respondent's reply, it is helpful to consider the definition of "prescribed authority" in s 4 of the Act. So far as relevant it is as follows:

"prescribed authority" means:

(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council, other than:

. . .

(b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being:

(i) a body established by the Governor-General or by a Minister; or

(ii) an incorporated company or association over which the Commonwealth is in a position to exercise control;

(c) subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment or an Order-in-Council; or

(d) the person holding, or performing the duties of, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Council;

Section 4(3)(b) provides:

(3) A person shall not be taken to be a prescribed authority:

. . .

(b) by virtue of his or her holding, or performing the duties of:

(i) a prescribed office;

(ii) an office the duties of which he or she performs as duties of his employment as an officer of a Department or as an officer of or under a prescribed authority;

(iii) an office of member of a body; or

(iv) an office established by an enactment for the purposes of a prescribed authority.

The term "prescribed office" is not defined in the Act. The regulations made under the FOI Act do not, so far as I can determine, prescribe any office. Thus no office is a "prescribed office", for the purpose of s 4(3)(b)(i).

6. The solicitor handling this matter on behalf of the respondent, by letter dated 26 August 2002, advised that the respondent took the view that while the Office of the Director of Public Prosecutions is a "prescribed authority", the DPP himself is not. The solicitor advised that the DPP took the view that he was the holder of "an office established by an enactment for the purposes of a prescribed authority". The solicitor added:

The Director is part of the Office: indeed the Office consists of the Director and the members of the staff of the Office: DPP Act, s.5(3). The Director controls the Office: DPP Act, s.5(4).

The Respondent's reading of s.4(3) of the FOI Act is that it was intended to avoid duplication of agency functions between a public authority and an individual office-holder within such an authority. The relationships between authorities and individual office-holders are many and varied, and s.4(3) should be read accordingly. One evident purpose of avoiding duplication is to create greater certainty for agencies and applicants alike. Another is to avoid the need for an individual office-holder, in addition to the agency with which they are associated, to fulfil all the requirements imposed by the FOI Act on an agency. A document in the possession of an individual office-holder described in s.4(3)(b) (in his or her official capacity) will always be "a document of the agency" (as defined in s.4(1) of the FOI Act) with which the office-holder is associated. (The converse is not necessarily true.) That is the case with documents held by the Director. If the Director is, by virtue of s.4(3), not to be taken to be a prescribed authority, there are no adverse consequences for applicants, because all the documents of the Director are also documents of the Office. The Director is also the "principal officer" of the agency (the Office), within the meaning of the definition of "principal officer" in s.4(1) of the FOI Act.

Thus, in Mr Wallace's application, all relevant documents held by the Director were also documents of the agency, that is to say, the Office, and have been processed accordingly.

. . .

The appropriate party to the proceedings before the Tribunal is "the person who made the decision": Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), s.30(1)(b). For these purposes, a decision under the FOI Act on behalf of an agency is deemed to be a decision of the agency (FOI Act, s.60). Accordingly, the appropriate respondent is the agency on whose behalf the decision was made. That agency was the Office.

Members of the staff of the Office commonly refer to the organisation as the "Director of Public Prosecutions" or simply "the DPP".. So much may be apparent from some of the documents in this proceeding. That usage has wide currency amongst the legal profession and the wider community. As a formal matter, however, the correct title of the Respondent in this proceeding is that given by s.5(1) of the DPP Act.

7. The applicant did not respond to the correspondence on the issue. The respondent submitted that it was unnecessary to reconvene the Tribunal on the question, given that the Tribunal is directed by s 33 of the AAT Act to conduct proceedings with as little formality and technicality, and with as much expedition, as legislative requirements and a proper consideration of matters before the Tribunal permit.

8. I have some difficulty with the respondent's submission, that the DPP is not a prescribed authority, because he is the holder "of an office established by an enactment for the purposes of a prescribed authority".. The question is whether the DPP is the holder of an office established for the purposes of the Office of the DPP, or whether the Office of the DPP is established for the purpose of providing services, support and staff to the DPP.

9. That question requires reference to the Director of Public Prosecutions Act 1983. The long title supports the submission made on behalf of the DPP. It is as follows:

An Act to establish an Office of Director of Public Prosecutions and for other purposes.

Section 5 establishes the Office of the Director of Public Prosecutions. It provides:

Office of the Director of Public Prosecutions

5. (1) There is established an Office to be known as the Office of the Director of Public Prosecutions.

(2) There shall be a Director of Public Prosecutions and an Associate Director of Public Prosecutions.

(3) The Office shall consist of the Director and the members of the staff of the Office.

(4) The Director shall control the Office.

Sections 6 and 9 then set out in great detail the functions (s 6) and the powers (s 9) of the Director. The Office of the Director of Public Prosecutions does not have any functions and is not granted any powers under the Act. Any proceedings instituted are instituted by the Director, who may, under s 15 of the Act, be represented by a member of the staff of the Office who is a legal practitioner or by counsel or solicitor.

10. With that background it is instructive to turn to Re Spier and ACT Electoral Commissioner and Another (1995) 41 ALD 374, a decision of Professor Curtis, the President of the ACT Administrative Appeals Tribunal. The Tribunal considered a similar issue. Unfortunately there seem to be some typographical errors in the decision. With those corrections indicated, the Tribunal said at paragraphs 11, 12 and 13:

(11) There appears to be no authority on the rather enigmatic words "an office established by an enactment for the purposes of a prescribed authority" in s 4 (3) (d) of the FOI Act. Nor is there any authority on the like provision in the Freedom of Information Act 1986 (Cth). However, considerable guidance as to what is meant by the provision can be gained by considering the structure of the Freedom of Information Act. The holder of a statutory office which has no independent functions of its own and who does no[t] independently hold files separate from the files of another agency could not in practical terms, be the recipient of requests for access to documents under s 14 of the FOI Act. Illustrating this by reference to the Electoral Act, s 6 (1) of the Electoral Act provides that the Electoral Commission shall consist of the chairperson, the Electoral Commissioner and one other member. The "other member" holds an office which is established by the Electoral Act but has no duties or functions other than as a member of the Electoral Commission.. The other member would have no files and no records of any kind separate from the records of the Electoral Commission itself. It is therefore plain that the office of the "other member" is, in the terms of s 4 (3) (d) of the FOI Act, an office established by the Electoral Act for the purposes of the Electoral Commission and it is not therefore a separate prescribed authority under the FOI Act. The same is true of the Chairperson of the Electoral Commission. As with the office of "other member", the office of "chairperson" is an office established for the purposes of the Electoral Commission.

(12) The Electoral Commission[er] stands in quite a different relationship to the Electoral Commission. While the Electoral Commission[er] is a member of the Electoral Commission and is, by virtue of s 23 (1) of the Electoral Act, the Chief Executive Officer of the Electoral Commission, the Electoral Commissioner has many statutory functions conferred on the office by specific provisions of the Electoral Act which are independent of the functions of the Electoral Commission. For example, all of the functions relating to the conduct of elections and the keeping of electoral rolls, as well as the registration of political parties, are vested in the Electoral Commissioner and not in the Electoral Commission. In the course of carrying out these functions, the Electoral Commissioner will generate files and other official records which do not relate to the functions of the Electoral Commission and for which the Electoral Commission has no responsibility. The functions of the Electoral Commission are set out in s 7 (1) of the Electoral Act. They do not involve any of the matters in respect of which the Act confers functions on the Electoral Commissioner in relation to the conduct of elections.

(13) It is therefore, in my view, abundantly plain that the office of Electoral Commissioner is not an office which is in any way subordinate to the Electoral Commission and was not created for the purposes of that commission. The functions of being a member of the Electoral Commission and of being the Chief Executive Officer of the commission are simply two of the many functions which the Electoral Commission has to perform under the Act. There is, therefore, in my view, no substance in the submission that the tribunal has no jurisdiction in this matter.

11. It seems that the conclusion of the ACT Administrative Appeals Tribunal in Re Spier is equally applicable here. It is in my view similarly plain that the office of the Director of Public Prosecutions is not an office which is in any way subordinate to the Office of the Director of Public Prosecutions. In spite of the long title of the DPP Act, and the fact that s 5 establishes the Office before s 6 sets out the functions of the Director (which title is defined in s 3), all the functions and powers bestowed by the Act are conferred on the Director of Public Prosecutions rather than on the Office. Further the Director controls the Office (s 5(4)). Thus I do not see how it could be concluded that the Director of Public Prosecutions holds and performs the duties of an office "established by an enactment for the purposes of" the Office of Director of Public Prosecutions. He performs the duties of his own office as they are conferred by the Act on him, and not on the Office of DPP.

12. That conclusion is reinforced by considering the position if the exemptions were to be claimed by the Office of the Director of Public Prosecutions, rather than by the DPP. As the Act imposes duties and confers powers on the DPP, rather than on the Office of the Director of Public Prosecutions, the relevant thinking processes for the claimed s 36 exemptions must be those of the Director, rather than those of the Office. There would be considerable difficulty in applying the exemptions to the Office of the DPP rather than to the DPP. I have concluded, not without some difficulty, that the appropriate respondent is the DPP, in spite of the submission to the contrary made on his behalf. The title of the proceeding will therefore remain as it was at the time of hearing.

THE DOCUMENTS UNDER CONSIDERATION

13. The Tribunal had before it a folder of the documents claimed to be exempt. The production of those documents had been requested by the Tribunal pursuant to s 64 of the Act. At the commencement of the hearing, Mr Lane informed the Tribunal that the Schedule required updating because the respondent had found that documents 13, 14, 30 and 37 had been released by the AFP and thus they were no longer claimed to be exempt. One of those documents as released by the AFP had a deletion of the name of a person, but there was no objection on behalf of the respondent to that name also being released.

14. It was only on detailed examination after the hearing that the Tribunal noticed some problems with the documents as prepared. First there are a number of duplicate documents. Usually, though not always, the duplicates are given the same number and differentiating capital letters. However, where the two copies are identical in every respect, I do not consider that the Act requires them to be identified as separate documents. If one is signed and another is not, or if one is annotated, or if they were attachments to different documents, each copy must be referred to in any schedule or affidavit. It is then helpful to distinguish them by giving them the same number, but different distinguishing letters. But when two copies are in every respect identical and can only attract the same exemptions, it should be sufficient to refer to one copy only.

15. The second problem which became apparent is that a number of the documents are no more than fax cover sheets, indicating the forwarding by fax of documents to which access has already been given. It is very difficult to see how, consistently with the objects of the Act, access to those bald fax cover sheets has been refused on the ground of legal professional privilege. It is an interesting question, to which I will return later in these reasons, whether those documents can be claimed to be exempt under s 42 of the Act. But even if they can attract the legal professional privilege exemption, I wonder why it was claimed for documents such as, for example numbers 21, 25, 29. The Act in s 3(b) clearly expresses its object as being to create a general right of access, "limited only by exceptions and exemptions necessary for the protection of essential public interests".. I cannot see how the refusal of access to those documents is necessary or even desirable for the protection of any interests at all. Some fax cover sheets, documents 13, 14, 30 and 37 were released at the commencement of the hearing. I can see no reason why documents 21, 25 and 29 were not similarly released bearing in mind that the documents to which they refer have already been released. A similar question arises as to many of the other documents claimed to be exempt under s 42 of the Act. That issue is discussed later in these reasons when the claims under s 42 are considered

BACKGROUND FACTS

16. The relevant facts are set out in Mr Bruckard's affidavit (R1):

4. By letter to the respondent dated 16 June 2001, which was received by the respondent on 20 June 2001, the applicant sought access to certain documents of the respondent, pursuant to the FOI Act. Now produced and shown to me and marked with the letters "SIB-1" is a true copy of that letter.

5. In that letter, the applicant sought access to the following documents:

(a) Documents in relation to an accusation that the applicant was involved in a conspiracy with Vincenzo Michael D'Anna (dob 21 July 1961), Dianne Lorraine Foster (dob 22 April 1965) and Holly Amanda Deane-Johns (dob 4 May 1971) to import narcotic goods, namely heroin, into Australia. The request referred to the conspirators having pleaded guilty and to a subsequent Crown appeal against sentence to the Court of Criminal Appeal of Western Australia. The applicant requested "all transcripts to do with the original sentencing plus the Court of Appeal transcripts".

(b) Documents in relation to the importation of heroin into Australia by the applicant and the possession of a false passport in respect of which he was arrested at Tullamarine Airport on 28 May 2000. The applicant requested "the transcript of the plea hearing and transcripts of sentencing hearing for future reference".

(c) Documents in relation to any investigation, completed or ongoing, in respect of himself, his family or others deemed associated to any crime in Australia or overseas for which he was being or had been investigated since his arrest on 28 May 2000.

(d) Documents in relation to "two unofficial visits" made to him by officers of the Australian Federal Police (AFP), "one being Ian McLean and the other KARA from the Targeted Operations Squad", to whom the applicant had spoken on 3 May and 17 May 2001.

The respondent construed the first two parts of the request as relating to all such documents, not merely the transcripts specifically mentioned. The respondent waived the fees that would otherwise have applied to the request.

Documents held by the respondent

6. At the time of the applicant's request, the respondent held:

(a) no documents that fell within the third category in the applicant's request (apart from documents that fell within the first or second category); and

(b) no documents that fell within the fourth category in the applicant's request.

Nor have any such documents come into the possession of the respondent since the applicant's request.

7. Since receiving the applicant's request, the respondent has identified eight files containing documents that fell within the first two categories in the request. Five of the files were held by the Perth office of the respondent, two by its Melbourne office and one by its head office in Canberra. The files are as follows:

File number DPP office Subject

MC00100799 Melbourne Stephen John Wallace

MC00101929 Melbourne Stephen John Wallace

HA01100228 Head office, Canberra Stephen John Wallace

PC00100312 Perth Stephen John Wallace

PM98100420 Perth Stephen John Wallace

PC911295A Perth Holly Amanda Deane-Johns

PC9111295B Perth Diane Lorraine Foster

PC111295C Perth Vincenzo D'Anna

The first letter of the file number indicates the office in which the file was created (Melbourne, Head Office in Canberra, or Perth). The first two digits in each file number indicate the year in which the file was created.

8. In general terms, the files may be described as follows:

(a) The 1991 Perth office files related to the respondent's prosecution of D'Anna, Foster and Deane-Johns in Perth for offences relating to the importation of heroin in 1991.

(b) the 1998 Perth office file related to a request for, and the provision of, legal advice by the respondent to the AFP in connection with an application for a warrant for the arrest of the applicant in respect of his involvement in the 1991 importation. The warrant was sought and obtained in order to commence the prosecution of the applicant for offences arising from his involvement in that importation.

(c) The Melbourne office file MC00100799 related to the respondent's prosecution of the applicant for offences committed by him in 2000.

(d) The Melbourne office file MC00101929 related to the respondent's proposed prosecution of the applicant for the 1991 offences.

(e) The Perth office file PC00100312 was created following the arrest of the applicant in Melbourne. It arose from a request by the Melbourne office for information relating to the 1991 matter, for the purposes of the proposed prosecution of the applicant.

(f) The 2001 head office file related to consideration by the Director of whether to approve the prosecution of the applicant for the offence of conspiracy in respect of the 1991 importation.

All of the documents held by the respondent on these files were created, or came into its possession, in the course of its conduct of its statutory functions, particularly in relation to the prosecution of D'Anna, Foster and Deane-Johns or the prosecution or proposed prosecution of the applicant.

17. Mr Bruckard in his affidavit set out a history of the DPP's involvement in the prosecution and sentence of D'Anna, Foster and Deane-Johns. He further explained the circumstances leading to Mr Wallace's arrest and conviction, on a plea of guilty, to one count of importation of heroin and one count of having in his possession a passport that had been falsified. Mr Wallace is currently serving a prison sentence and is yet to decide whether to plead guilty to a further indictment relating to two outstanding matters arising out of the importation in respect of which D'Anna, Foster and Deane-Johns were convicted. If he pleads guilty he may be convicted and sentenced in Victoria. If, on the other hand, he decides to contest the charges, there must be a trial by jury in Western Australia, as that is where the offence is alleged to have been committed. Legal practitioners from the Office of the DPP, were involved in matters relating to Mr Wallace's prosecution and conviction. Mr Bruckard stated that it continues to be involved in proceedings concerning the pending indictments. In paragraph 32 of his affidavit he stated:

To date the applicant has not consented to the course proposed by his solicitor on his behalf. In the absence of such consent, the respondent will apply, at the conclusion of the applicant's current sentence, for the applicant to be extradited to Western Australia for trial in respect of the 1991 offences.

FRAMEWORK OF THE ACT

18. The Act provides, in s 15, for a request for access to documents to be made. Under s 26 written notice with written reasons shall be given in respect of any decision to refuse access. The Act provides in s 54 for internal review of decisions including decisions refusing to grant access to a document, or not granting access to all the documents to which a request relates. Review of decisions by the AAT is provided for in s 55. Such an application may only be made, either where an internal review decision has been made, or, where 30 days have elapsed since an agency received an application for internal review, and there has been no notification of the result of the review.

19. The Act applies to documents of an agency and imposes obligations on agencies. The term "agency" is defined in s 4(1) as follows:

"agency" means a Department, a prescribed authority or an eligible case manager;

20. Before looking at the sections relied on as exempting certain documents from release under the Act, it is appropriate to refer to s 3 of the Act. Section 3(1) expressly states that the object of the Act is to make information available to the public and that discretions are to be exercised in such a way as to facilitate and promote the disclosure of information. Section 3 of the Act provides:

3 (1) The object of the Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by :

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

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

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

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

21. There are other relevant general sections of the Act. Section 11 provides:

11 (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.

22. Section 14 provides for the giving of information to the public by Ministers and agencies, even outside the scope of the Act. It reads:

14 Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

However, that discretion cannot be exercised by this Tribunal. Section 18(2) of the Act provides:

18(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.

The Tribunal does not have power to decide that access be given to an exempt document.

23. Section 61(1) of the Act deals with onus of proof. It provides:

61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

24. The desirability of giving wide access to documents is demonstrated by s 22 of the Act, which provides that where exempt information can be deleted, documents are to be released with deletions. It reads:

22(1) Where:

(a) an agency or Minister decides:

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

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

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

(i) would not be an exempt document; and

(ii) would not disclose such information; and

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

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

THE EXEMPTIONS RELIED ON BY THE DPP

25. The exemptions relied on by the DPP are ss 36 and 42. Those sections, so far as relevant, provide as follows:

36.(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b) would be contrary to the public interest.

(5) This section does not apply to a document by reason only of purely factual material contained in the document.

(6) This section does not apply to:

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

(b) reports of a prescribed body or organization established within an agency; or

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

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

26. A s 42 exemption is claimed in respect of each of the documents which is claimed to be exempt. A s 36(1) exemption is claimed only in respect of documents 9, 38, 49, 53, 54, 55, 56, 57, 73, 76, 84, 89, 90-96. Before considering the specific claims made by Mr Bruckard in his affidavit in regard to s 36, it is appropriate to consider the operation of that exemption.

27. Section 36 of the Act is headed "Internal Working documents." It requires consideration of two concepts in particular. The first is the meaning of "deliberative processes involved in the functions of an agency". The second is "the public interest" as referred to in s 36(1)(b).

(i) deliberative processes involved in the functions of an agency - s 36(1)(a)

28. The term "deliberative processes" in s 36(1)(a) has been held to refer to "the thinking processes of the agency". That was the conclusion of the Tribunal in Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 at pp 606-607, where the Tribunal said:

58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s 36 (1) (a) come into play.

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. Section 36 (5) provides that the section does not apply to a document by reason only of purely factual material contained in the document (see, in this regard, the Full Court decision in Harris (1984) 51 ALR 581). See also s 36 (6) relating to reports and the like. Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36 (1) (a) applies.

60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". Out of that broad class of documents, exemption under s 36 only attaches to those documents the disclosure of which is "contrary to the public interest": s 36 (1) (b) of the FOI Act and cf ss 35, 36, 37 (1) (b) and 37 (2) of the Administrative Appeals Tribunal Act 1975.

61 In order to test the application of s 36 (1) (a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. In the present case, Mr Roberts identified the "deliberative processes" involved in the functions of Treasury as the ongoing deliberative processes involved in dealing with Mr Waterford's request for access. This submission was not challenged by Mr Waterford and in the circumstances, given the very limited argument on the point, we think that we should accept it. Accordingly, in the present case, any document which would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that took place, in the course of or for the purposes of those deliberative processes is within the ambit of s 36 (1) (a).

(emphasis added)

29. The decision in Re Waterford did not fully adopt what was said by Beaumont J in Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551. His Honour there stated at p561:

. . .

It may be accepted that the question whether the services of a single officer or employee should be terminated does not, of itself, necessarily involve a policy matter the subject of deliberative process. However, in the present case, the terms of reference extend well beyond that question into fields of policy-making. The reports, although interim and, to some extent, factual in character, are within the terms of reference and accordingly derive their character from that wider context. In my opinion, the reports, viewed in that context, are in the nature of opinion, advice or recommendation prepared for the purposes of the deliberative processes involved in the functions of the Corporation within the meaning of s 36(1)(a).

The Tribunal, in Re Waterford, regarded the suggestion that "deliberative processes" are synonymous with "policy forming processes" as obiter, but suggested that Beaumont J should not be understood as saying that "deliberative processes" are limited to policy matters. It was on that basis that the Tribunal in Re Waterford gave the term the wider meaning of "thinking processes" involved in the functions of an agency.

30. In Re James and Australian National University (1984) 2 AAR 327, the Tribunal held that "deliberative processes" is not confined to policy making, but should be given a wide interpretation. That decision of the Tribunal was consistent with the approach adopted in Re Waterford. The Tribunal, at p335, rejected an argument that the Tribunal in Re Waterford had not followed Beaumont J in Harris. The approach of the Tribunal in Re Waterford and in Re James seems now to have been widely adopted. I accept that the term "deliberative processes" is to be interpreted as meaning the "thinking processes" of the agency.

31. As I have said in paragraph 12 above, I have decided that the DPP is the correct respondent. Thus reference must be made to the thinking processes of the DPP, in carrying out the functions given to him by the DPP Act, when deciding whether a document is exempt under s 36 of the Act.

32. In Secretary, Department of Workplace Relations & Small Business v The Staff Development & Training Centre Pty Ltd [2001] FCA 1375, the Full Court emphasised that s 36(1) covers not only matter "in the nature of", but also matter "relating to" "opinion, advice or recommendation obtained, prepared or recorded , or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency".

(ii) the public interest

33. As to the concept of the "public interest", Beaumont J said in Harris, at p561:

In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other [hand].

34. Recent developments in understanding the concept of the public interest were discussed by Deputy President McDonald in Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142 at 155 to 157. Deputy President McDonald there said:

One of the early attempts to define what is constituted by the public interest, and one often quoted since, is to be found in Re Howard and Treasurer (Cth) (1985) 3 AAR 169 where at 178, the then President of the Tribunal (Justice Davies) listed the considerations as:

"1. The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.

2. Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.

3. Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.

4. Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest.

5. Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process."

The enunciation of the first four principles by Davies J has been criticised by some in subsequent decisions and academic critiques (see the citations at 41 of the decision in Eccelston's [Eccelston and Dept of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60] case and the detailed discussion carried out by the Information Commissioner with respect to the so-called "Howard principles"; also the discussion by the Information Commissioner of Western Australia in Veale and Town of Basendean (unreported, Decision No D00494, 25 March 1994)), but accepted by others. In the context of determining whether those principles are still of paramount consideration, what is often not recognised is the paragraph of the decision immediately following the statement of principles, which is in the following terms:

"The FOI Act has been in operation since 1 December 1982. As was said in Re Murtagh and Commissioner of Taxation (Cth) (1984) 1 AAR 419; Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN257, and Re Lianos and Secretary, Department of Social Security (1985) 2 AAR 503, the Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must often be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act"

As is evident from the above passage, Davies J did not see the principles as being immutable but rather envisaged a flexible approach, governed by time and experience, being taken. A similar conclusion as to the significance of the above quoted paragraph was reached by the Queensland Information Commissioner in Eccleston's case at 38, par 106.

The difficulties associated with giving substance to the otherwise amorphous concept of public interest were highlighted in the Australian Law Reform Commission publication, Report No 70, Administrative Review Council, Report No 40, "Open Government: a review of the federal Freedom of Information Act 1982", at 96, in which the following factors were nominated as being of possible relevance in determining the public interest, namely:

"[Yuml] the general public interest in government information being accessible

[Yuml] whether the document would disclose the reasons for a decision

[Yuml] whether the disclosure would contribute to debate on a matter of public interest

[Yuml] whether disclosure would enhance scrutiny of government decision making processes and thereby improve accountability and participation."

and the following as possibly not being relevant:

"[Yuml] the seniority of the person who is involved in preparing the document or who is the subject of the document

[Yuml] that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information

[Yuml] that disclosure would cause a loss of confidence in the government

[Yuml] that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason."

As will be seen from the above, a number of the principles listed by Davies J in Re Howard stand, as time has passed and experience in administration of the FOI Act has grown, to be considered differently than was the case when they were first pronounced - a fact readily recognised by the learned judge at the time the decision was given.

35. The schedule of exempt documents specified, in respect of each document as to which a s 36 exemption was claimed, how it was claimed that the disclosure of that material would be contrary to the public interest. There were two broad claims which were set out in the schedule as follows:

Notes: Public interest grounds

A. This document records or constitutes communications between DPP lawyers, in connection with internal decision-making in relation to the conduct of litigation and the provision of legal services. The communications were made and recorded in confidence, in the reasonable expectation that their contents would remain confidential. Release of the document would strongly tend to inhibit such communications in future, or to inhibit recording of them. The inability to conduct or to record such communications in confidence would be contrary to the public interest in the efficient and effective conduct of the business of the DPP and could expose the DPP to disadvantage in the conduct of litigation. These public interest considerations outweigh those that favour disclosure.

B. This document was prepared by a DPP lawyer as a draft or working note made in connection with the conduct of litigation and the provision of legal services. The release of the document would tend to be misleading or confusing in view of its provisional nature, as it may be wrongly taken to represent a final position (which it was not intended to do) and may ultimately have been unused or overtaken by subsequent events. Release of the document would also tend to inhibit the making or retention of such notes in future. The inability to do so would be contrary to the public interest in the efficient and effective operation of the office of DPP. These public interest considerations outweigh those that favour disclosure.

These are not intended as a comprehensive statement of the relevant public interest considerations, but merely a brief summary.

In respect of each document either Note A or Note B was claimed to be relevant.

36. Mr Bruckard in his affidavit, as to the s 36(1) claimed exemption, explained the nature of the document and briefly set out facts which appear to be the basis of a claim that the disclosure of the document would be contrary to the public interest. He also deposed in paragraphs 42-45 of his affidavit:

42. In respect of each of those documents, its disclosure under the FOI Act would disclose:

(a) matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or

(b) consultation or deliberation that has taken place -

in the course of, or for the purposes of, the deliberative processes involved in the functions of the respondent and/or the AFP.

43. The release of the documents would also be contrary to the public interest, for two particular reasons. First, there is a strong public interest in the authors of such documents being able to express their opinions, advice or recommendations with frankness and candour. This is necessary to preserve the integrity of the decision-making process. The disclosure of the documents would tend to affect the willingness of DPP lawyers to write frankly and candidly, or to commit their opinions, advice or recommendations to writing. It would also tend to inhibit the conduct of consultation or deliberation within the Office of the DPP. Either result would be detrimental to the operation of the DPP in carrying out its statutory functions

44. Second, a number of the documents are drafts or rough notes and others contains [sic] opinion, advice or recommendation that was overtaken by subsequent events. The documents may appear to have a status that they do not deserve. The release of the documents would therefore tend to be misleading or confusing or otherwise liable to cause mischief. It would also tend to reduce the willingness of officers to commit their provisional views to writing, or to retain working notes or drafts of documents that are later superseded. This would also be detrimental to the effective operation of the agency.

45 In my opinion, these public interest considerations outweigh the countervailing considerations in favour of disclosure.

THE APPLICATION OF THE EXEMPTION CLAIMED UNDER S 36

DOCUMENT 9

37. The DPP claimed exemption under s 36 in respect of document 9. Mr Bruckard described document 9 in paragraph 41(a) of his affidavit. After specifying the names of the writers of the primary and the forwarded email, he stated:

The document concerns the disposition of seized property. It contains provisional legal advice, provided with the intention that that advice be given to the AFP, and frank and confidential opinions on the appropriate course of action.

I have satisfied myself that that is an accurate description of the document and that its disclosure would disclose matter in the nature of opinion, advice or recommendation obtained in the course of the "deliberative processes" involved in the functions of the office of the DPP.

38. The next question is whether its disclosure would be contrary to the public interest for the reasons set out at paragraphs 43-45 of Mr Bruckard's affidavit.

39. In regard to document 9, the public interest considerations referred to in the schedule are those set out in note A to the schedule, as set out in paragraph 35 above.

40. I am satisfied that the public interest considerations, specified in note A do outweigh the considerations in favour of disclosure in respect of document 9. It does contain frank expressions of opinion by people who were, at the relevant time, according to the affidavit of Mr Bruckard (paragraph 34) DPP lawyers admitted to practice as legal practitioners under the relevant laws of the States or Territories. From the nature of the documents, and from Mr Bruckard's affidavit, I find that the communications were made and recorded in the reasonable expectation that their contents would remain confidential, and that the inability to conduct or record such communication in confidence would be contrary to the public interest in the efficient and effective conduct of the business of the DPP. I find that document 9 is an exempt document under s 36 of the Act.

DOCUMENT 38

41. As to this document, Mr Bruckard swore in paragraph 41(b):

Document 38: This is an undated indictment submission checklist, prepared by a lawyer in the Melbourne office following the completion of a committal proceeding, with a view to the formulation of an indictment against the applicant for the 2000 offences. It was prepared with the intention that it be considered by the DPP lawyer who prepared the indictment. It contains the opinion, advice or recommendation of a DPP lawyer as to the appropriate counts to be included in the indictment. The document was superseded by the indictment itself which was subsequently filed against the applicant.

42. Having perused the document I find that there is no indication in the document itself that it was prepared by a lawyer. There is no indication as to who is, or was, the author of the document. Further I find that the document does not contain opinion, advice or recommendation. It contains factual material only. Therefore s 36(1) does not apply to the document. At point 7 on the second page there is reference to an attached summary, but that summary is not part of the document. The answer to point 8 could contain matter in the nature of, or relating to, opinion, advice or recommendation, but in this particular case it does not. The same comment applies to points 9 and 10 on page 2. I find that document 38 is not an exempt document under s 36 of the Act.

DOCUMENT 49

43. As to this document, Mr Bruckard stated in paragraph 41(c) of his affidavit:

Document 49: This is an unsigned draft memorandum dated 7 March 2001 that was prepared by a lawyer in the Head Office of the DPP for submission to the Director. It contains the frank and confidential opinions of the author and of other DPP lawyers concerning proposed charges to be laid against the applicant. A copy was provided to the Melbourne office. The final version of this document is document 56.

44. Having perused that document I find that its disclosure would disclose matter in the nature of recommendation prepared for the purposes of the deliberative processes involved in the functions of the office of the DPP.

45. The claim that the disclosure of that material would be contrary to the public interest is based on note A. I find that it contains advice or recommendation recorded in confidence, in the reasonable expectation that it would remain confidential. I accept that, because of the nature of the advice, release of the document would tend to inhibit such communications in future or to inhibit recording of the them. The inability to record such communications in confidence would be contrary to the public interest in the efficient and effective conduct of the business of the DPP and could expose the DPP to disadvantage in the conduct of litigation. I find that those public interest considerations outweigh those that favour disclosure. I find that document 49 is an exempt document under s 36 of the Act.

DOCUMENT 53

46. This document is identical to 49 save that it is signed by the author. The same considerations apply. I find it is exempt under s 36.

DOCUMENT 54

47. Mr Bruckard in paragraph 41(e) described this document as follows:

Document 54: This is a confidential internal memorandum dated 22 February 2001 from a DPP lawyer in the Melbourne office to the Director, concerning proposed charges against the applicant. It contains handwritten annotations by a lawyer in the Head Office of the respondent.

48. Most of this document consists of purely factual material. As set out at paragraph 19, s 36(5) provides that s 36 does not apply in respect of purely factual material. The factual material is not exempt under s 36. The disclosure of the first paragraph of text at page 1, and the last two paragraphs on page 5, would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, in the course of or for the deliberative processes involved in the functions of the DPP. Because of the nature of that matter, and for the reasons set out in note A, I find that disclosure of those parts of document 54 would be contrary to the public interest. The first paragraph of text at page 1 of document 54 and the last two paragraphs on page 5, are exempt under s 36 of the Act.

DOCUMENT 55

49. As to this document, Mr Bruckard said at paragraph 41(f) of his affidavit:

Document 55: This is a confidential internal memorandum dated 23 February 2001 that I wrote to the Director, concerning proposed charges against the applicant. It contains handwritten annotations by the Deputy Director and by a lawyer in the Head Office of the respondent.

50. The memorandum is clearly covered by s 36(1)(a) in that its disclosure would disclose matter in the nature of opinion, advice or recommendation recorded for the purposes of the deliberative processes involved in the functions of the DPP. The public interest ground claimed is ground A. I find that it would be contrary to the public interest to release that document for the reasons set out in note A to the schedule.

DOCUMENT 56

51. This document is the same document as documents 49 and 53 but it has a signature indicating approval of the recommendation and the signature of the officer who made the recommendation, and a further handwritten note. I find that it is an exempt document under s 36 of the Act for the same reasons as I gave in respect of document 49.

DOCUMENT 57

52. As to document 57, Mr Bruckard stated in paragraph 41(h) of his affidavit:

Document 57: This is an email dated 9 March 2001 from a lawyer in the Head Office of the respondent to a lawyer in the Melbourne office, together with a reply. The document records the annotation made by the Director on document 56.

53. I find that disclosure of that document would disclose matter in the nature of opinion recorded in the course of, or for the purposes of the deliberative processes involved in the functions of the DPP.

54. The ground on which it is claimed that the disclosure of that document would be contrary to the public interest is ground A. I find that that ground is made out and disclosure of document 57 would be contrary to the public interest. I find document 57 is an exempt document under s 36 of the Act.

DOCUMENT 73

55. As to document 73, Mr Bruckard stated in paragraph 41(i) of his affidavit:

Document 73: This is a draft statement of facts prepared by a lawyer in the Perth office of the DPP in 1991 or 1992 for the purpose of the prosecution of Deane-Johns. It contains handwritten corrections. The document has no status. (The whole of the final record of the proceedings against Deane-Johns has been released to the applicant.)

56. Although this document is described by Mr Bruckard as a draft statement of facts, it is a draft which contains a significant number of corrections. It is clearly still in a formative stage. The document also contains an outline of legal submissions as to penalty. The release of the document would disclose matter in the nature of or relating to opinion, advice or recommendation or deliberation that has taken place in the course of, or for the purposes of the deliberative processes involved in the functions of the DPP.

57. The public interest ground claimed is as set out in Note B. That applies where disclosure of a draft or working document would tend to cause confusion or misunderstanding because of the provisional nature of the document and would tend to inhibit the making or retention of such notes in the future. I find that for these reasons disclosure of document 73 would be contrary to the public interest. Document 73 is an exempt document under s 36 of the Act.

DOCUMENT 76

58. As to document 76, Mr Bruckard stated at paragraph 41(j) of his affidavit:

This document consists of rough working notes made by a lawyer in the Perth office of the DPP in 1991 or 1992 for the purpose of the prosecution of Deane-Johns.

The Schedule shows that its release is claimed to be contrary to the public interest for the reasons set out in Note B.

59. Document 76 is rough working notes extracting references to a particular topic from material which has already been released (paragraph 10 of Mr Bruckard's affidavit) and a reference to a statutory definition. Its disclosure would disclose deliberation that has taken place in the course of, or for the deliberative processes, involved in the functions of the DPP. I am not persuaded that its release would be contrary to the public interest for the grounds set out in Note B. I do not consider that the matters disclosed would tend to be misleading or confusing in view of the provisional nature of the document. Nor do I find that such disclosure would inhibit the making or retention of such notes in the future. I do not find that document 76 is an exempt document under s 36 of the Act.

DOCUMENT 84

60. As to document 84, Mr Bruckard stated in paragraph 41(k) of his affidavit:

This document consists of rough working notes made by a lawyer in the Perth office of the DPP in 1991or 1992 for the purpose of the prosecution of Deane-Johns, D'Anna and Foster.

The claim that release would be against the public interest is on the grounds in Note B.

61. The disclosure of document 84 would disclose matter in the nature of, or relating to, deliberation that has taken place in the course of the deliberative processes of the DPP namely the prosecution of Deane-Johns, D'Anna and Foster. Its disclosure would tend to inhibit the making or retention of such notes in the future. This would be contrary to the public interest in the efficient and effective operation of the DPP. I find that document 84 is an exempt document under s 36 of the Act.

DOCUMENT 89

62. As to document 89, Mr Bruckard stated in paragraph 41(l) of his affidavit:

This document is a fax from the AFP to a lawyer in the Perth office of the DPP dated 6 August 1991 in relation to the prosecution of D'Anna. Exemption is claimed under s.36 in respect of handwritten annotations on the fax made by the DPP lawyer. The annotations consist of working notes and corrections to a draft document.

The claim that release would be against the public interest is on the grounds in Note B. I have noted that release is only claimed for the handwritten annotations but to release the document with the annotations deleted could give to a misleading impression.

63. The disclosure of document 89 would disclose matter in the nature of, or relating to opinion, advice or recommendation obtained, prepared or recorded and consultation or deliberation that has taken place in the course of the deliberative processes involved in the functions of the DPP namely the prosecution of Deane-Johns, D'Anna and Foster. Its disclosure with deletions would tend to be misleading or confusing, in that it would give the impression that a letter had been sent in its draft form and that would be incorrect. Further, disclosure of document 89 would tend to inhibit the making or retention of such annotated drafts in the future. This would be contrary to the public interest in the efficient and effective operation of the DPP. I find that document 89 is an exempt document under s 36 of the Act.

DOCUMENTS 91 AND 92

64. As to documents 91 and 92, Mr Bruckard stated in paragraph 41(m) and (n) of his affidavit:

Document 91: This document consists of rough working notes made by a lawyer in the Perth office of the DPP in 1991 or 1992 for the purpose of the prosecution of Deane-Johns, D'Anna and Foster.

Document 92: This document consists of rough working notes made by a lawyer in the Perth office of the DPP in 1991 or 1992 for the purpose of the prosecution of Deane-Johns, D'Anna and Foster.

Both documents are in the same handwriting. The claim in respect of each document is that release would be against the public interest on the grounds in Note B.

65. The disclosure of documents 91 and 92 would disclose matter in the nature of, or relating to, deliberation that has taken place in the course of the deliberative processes involved in the functions of the DPP, namely the prosecution of Deane-Johns, D'Anna and Foster. Their disclosure would tend to inhibit the making or retention of such notes in the future. This would be contrary to the public interest in the efficient and effective operation of the DPP. I find that documents 91 and 92 are exempt documents under s 36 of the Act.

DOCUMENT 93

66. As to document 93, Mr Bruckard stated in paragraph 41(o) of his affidavit:

This is a draft statement of facts prepared by a lawyer in the Perth office of the DPP in 1991 or 1992 for the purpose of the prosecution of D'Anna and Foster. It contains handwritten corrections. The document has no status. (The whole of the final record of the proceedings against D'Anna and Foster has been released to the applicant.)

The claim that release would be against the public interest is on the grounds in Note B.

67. As its description indicates this document is mainly a statement of facts. It has already been explained at paragraphs 19 and 48 of these reasons, that s 36 does not apply in respect of purely factual material. That material is not exempt under s 36. The last third of page 3 and the whole of page 4 are headed "Submissions on Penalty". The disclosure of document 93 would disclose matter in the nature of, or relating to, deliberation that has taken place in the course of or for the purpose of the deliberative functions of the DP. This would be contrary to the public interest in the efficient and effective operation of the DPP. I find that the last third of page 3 and the whole of page 4 of document 93 are exempt under s 36 of the Act.

DOCUMENT 94

68. As to document 94, Mr Bruckard stated in paragraph 41(p) of his affidavit:

This is a confidential internal memorandum dated 29 November 1991 from a lawyer in the Perth office of the DPP to the Acting Director, concerning the sentences imposed on D'Anna and Foster.

The claim that release would be against the public interest is on the grounds in Note A.

69. Paragraphs 1, 2, 3, 5, 6 and 7 of document 94 contain purely factual material. Those parts are not exempt under s 36. The disclosure of paragraphs 4 and 8-16 of document 94 would disclose matter in the nature of, or relating to, opinion, advice or recommendation and deliberation that has taken place in the course of or for the deliberative processes involved in the functions of the DPP, namely deciding whether to appeal the sentences imposed on D'Anna and Foster. Those paragraphs of the document contain communications in the nature of opinion, advice and recommendation by DPP lawyers in connection with internal decision-making in relation to the conduct of litigation. I find from their contents, that the communications were made and recorded in the reasonable expectation that their contents would remain confidential. I find that the inability to give or to record such communications in confidence would be contrary to the public interest in the efficient and effective conduct of the business of the DPP and could expose the DPP to disadvantage in the conduct of litigation. These public interest considerations outweigh those that favour disclosure. I find that paragraphs 4 and 8-16 of document 94 are exempt under s 36 of the Act.

DOCUMENT 95

70. As to document 95, Mr Bruckard stated in paragraph 41(q) of his affidavit:

This is a confidential internal memorandum dated 4 December 1991 from a lawyer in the Head Office of the DPP to the Acting Director, concerning the sentences imposed on D'Anna and Foster. It contains handwritten annotations by the Acting Director and by a lawyer in the Perth office of the DPP.

The claim that release would be against the public interest is on the grounds in Note A.

71. Part of document 95 contains purely factual material and so is not exempt under s 36. That part begins on page 1 with the names "D'Anna and Foster" and continues to the heading "Discussion" on page 2. I find that the disclosure of the rest of document 95 would disclose matter in the nature of, or relating to, opinion, advice or recommendation and deliberation that has taken place in the course of or for the deliberative processes involved in the functions of the DPP, namely deciding whether to appeal the sentences imposed on D'Anna and Foster. The non-factual part of the document contains communications between a DPP lawyer and the Acting DPP in connection with internal decision-making in relation to the conduct of litigation. I find from its contents that the communications were made and recorded in the reasonable expectation that their contents would remain confidential. I find that the inability to conduct or to record such communications in confidence would be contrary to the public interest in the efficient and effective conduct of the business of the DPP and could expose the DPP to disadvantage in the conduct of litigation. These public interest considerations outweigh those that favour disclosure. I find that document 95 is an exempt document under s 36 of the Act except for the purely factual part which begins on page 1 with the names "D'Anna and Foster" and continues to the heading "Discussion" on page 2.

DOCUMENT 96

72. As to document 96, Mr Bruckard stated in paragraph 41(r) of his affidavit:

This is a draft outline of the Crown's submission to the Western Australian Court of Criminal Appeal in R v Foster and D'Anna. (The final version of this document has been released to the applicant.)

The claim that release would be against the public interest is on the grounds in Note B.

73. The disclosure of document 96 would disclose matter in the nature of, or relating to, deliberation that has taken place in the course of the deliberative processes involved in the functions of the DPP, namely the preparation of submissions on an appeal against sentences. Its disclosure would be contrary to the public interest in the efficient and effective operation of the DPP. Bearing in mind that the final version of the document has already been released, there is no public interest in the release of document 96, so there is nothing to balance against the factors showing that release would be contrary to the public interest. I find that document 96 is an exempt document under s 36 of the Act.

LEGAL PROFESSIONAL PRIVILEGE

74. Section 42(1) of the Act provides:

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

75. The rule as to when legal professional privilege exists is shortly stated in Cross on Evidence (6^th Australian edition 2000) para 25210 as follows:

In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal adviser if made either (1) to enable the client to obtain, or the adviser to give, legal advice, or (2) with reference to litigation that is actually taking place or was in the contemplation of the client.

At para 25225, p707, Cross adds, as to the protection afforded to draft documents:

The rule also protects documents which are not communications provided they are brought into existence for the sole purpose of preparing for, or for use in, existing or contemplated judicial or quasi-judicial proceedings. This aspect of the rule has been applied to drafts of pleadings, statements from potential witnesses (unless they were unsolicited) and other materials which have come into existence as materials for the lawyer's brief. Where the document in its final form is delivered or filed or otherwise given effect to, then it loses any characteristic of confidentiality and no privilege remains for it.

At para 25235, Cross refers to Trade Practices Commission v Stirling (1979) 36 FLR 244 at p245-246, as authority for the view that the privilege covers communications between various legal advisers of a client, for example between a solicitor and a partner, or a solicitor and city agent. That, no doubt, would also apply to correspondence between various solicitors within the Office of the DPP, provided the DPP is a legal adviser to the AFP.

76. The rule as to the existence of legal professional privilege was concisely explained by the High Court in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 where Gleeson CJ, Gaudron, Gummow and Hayne JJ, said in the majority judgment at paragraphs 9 and 10:

It is now settled that legal professional privilege is a rule of substantive law [Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490 per Deane J.] which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation [(1999) 201 CLR 49 at 73] in place of the "sole purpose" test which had been applied following the decision in Grant v Downs[(1976) 13 5 CLR 674].

Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection [See, with respect to discovery and inspection, Mann v Carnell (1999) 201 CLR 1.] and the giving of evidence in judicial proceedings [See Baker v Campbell (1983) 153 CLR 52 at 115-116 per Deane J; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 55 [4] per Gleeson CJ, Gaudron and Gummow JJ; Mann v Carnell (1999) 201 CLR 1 at 10-11 [19] per Gleeson CJ, Gaudron, Gummow and Callinan JJ.]. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s 155 of the Act [Trade Practices Act 1974] provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s 10 of the Crimes Act 1914 (Cth) [(1983) 153 CLR 52. See also Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.].

77. This aspect of the matter gives rise to a number of issues. First there is a question whether the DPP was, at the relevant period, acting as a legal adviser to the AFP, rather than simply performing his own functions. Then it must be considered whether legal professional privilege, if it exists, must be claimed by the client or whether, in the absence of waiver, a document "of such a nature" that it could attract legal professional privilege, is to be found to be exempt.

(i) the relationship of client and solicitor or legal adviser

78. For a document to be of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege there must be a relationship of client and lawyer or legal adviser. Mr Bruckard's affidavit does not address that issue. He referred in paragraph 35 of his affidavit to the functions of the DPP as set out in ss 6 and 9 of the DPP Act . He stated at paragraphs 35, 36 & 37:

35. The respondent is established by s.5 of the DPP Act. The major functions and powers of the DPP are set out in ss.6 and 9 of that Act (respectively), and in the Director of Public Prosecutions Regulations 1984 (the DPP Regulations). At all material times, those functions included:

(a) the institution of prosecutions on indictment for indictable offences against the laws of the Commonwealth;

(b) the institution of proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth;

(c) the carrying on of such committal proceedings (whether or not instituted by the DPP);

(d) the doing of things incidental or conducive to the performance of functions of the respondent under s.6(1 ) and s.6(2) of the DPP Act.

The DPP also has power under State law, as applied by the Judiciary Act 1903 (Cth), to institute appeals in various circumstances. In addition, after 17 December 1998 (when the Director of Public Prosecutions Amendment Regulations 1998 (No 1 ) came into effect), the DPP has explicitly had the function of giving, to an authority of the Commonwealth, legal advice on law enforcement or a matter relating to law enforcement, whether or not the advice is for the purposes of a particular investigation.

36. The bulk of the exempt documents consist of:

(a) records made by DPP officers of telephone conversations with officers of the Australian Federal Police (AFP) in connection with the then-current prosecutions of the applicant, Deane-Johns, Foster or D'Anna for federal offences;

(b) records made by DPP officers of telephone conversations with officers of the Australian Federal Police (AFP) in connection with the proposed or contemplated prosecution of the applicant for offences relating to his involvement in the 1991 importations;

(c) letters and faxes between the AFP and the DPP in relation to those matters;

(d) notes of telephone conversations or emails between officers of the DPP in relation to those matters; and

(e) notes made by DPP officers in relation to those matters.

37. A small number of the exempt documents (namely document 49 and each of the documents from the Head Office file) relate to consideration by the Director of whether to approve the laying of a conspiracy charge against the applicant in respect of the 1991 importation. (As I have said (paragraph 30), the Director did ultimately give such consent.) This was an integral part of the decision-making process relating to the proposed commencement of proceedings in Victoria for the 1991 offences.

79. Nothing in those paragraphs establishes that a relationship of client and lawyer or legal adviser existed at the relevant time between the DPP and the AFP, in relation to the matters to which the documents in issue relate. Further, in so far as the DPP, as stated in paragraph 35 of Mr Bruckard's affidavit, placed reliance on the Director of Public Prosecutions Amendment Regulations 1998 (No1), as explicitly giving the DPP "the functions of giving, to an authority of the Commonwealth, legal advice on law enforcement or a matter relating to or enforcement, whether or not the advice is for the purposes of a particular investigation", it must be noted that docs 69-96 all came into existence prior to 17 December 1998, when those regulations came into operation.

80. When I asked Mr Lane to explain how he submitted that the DPP, in performing his statutory functions, was acting as solicitor for the AFP, rather than simply performing his own functions, Mr Lane said he would answer that question by referring me to the authorities.

81. The first authority to which he referred on that point was Re Noonan and Commonwealth Director of Public Prosecutions [2000] AATA 492.. In that matter the Tribunal seems to have simply assumed that the DPP was the solicitor for ASIC. There is no finding to that effect, but the decision discusses the issue of whether or not there has been waiver of legal professional privilege, as if the existence of the privilege was not in issue. In paragraph 22 of its reasons, the Tribunal in Re Noonan referred to s 9 (11) of the DPP Act as deeming the DPP to be acting as solicitor for the authority it represents. Section 9(11) of the DPP Act reads as follows:

(11) Where an authority of the Commonwealth is a party to a proceeding in respect of a matter:

(a) that has arisen out of or is connected with the performance of any of the functions of the Director; or

(b) that may result in the performance by the Director of such a function;

the Director, or a person who is entitled to represent the Director in proceedings referred to in subsection 15 (1), may act as counsel or solicitor for that authority.

82. I must respectfully disagree with the Tribunal in Re Noonan as to the effect of s 9(11) of the DPP Act. I do not consider that s 9(11) operates as a deeming section. It authorises the DPP to act as counsel or solicitor for an authority of the Commonwealth in certain circumstances. The Tribunal in Re Noonan referred to the Federal Court decision of Dunesky and Another v Elder and Others (1992) 107 ALR 573 as authority for its interpretation of s 9(11). In that decision there was evidence that the DPP was acting as solicitor for certain police officers. It is the lack of such evidence which is the problem in this matter.

83. Mr Lane also relied on the decision of Auten v Rayner and Others (No. 2) (1960) 1QB 669 at p 680-1,where Glyn-Jones J said

.. . . the Attorney-General submits that the Director of Public Prosecutions is entitled to claim a professional privilege analogous to the privilege claimed in respect of documents in the possession of a solicitor. There is, perhaps, a little difficulty there, because the right to claim privilege is that of the client rather than the solicitor. The Attorney-General says that for the purpose of such a claim to privilege, the Director is his own client. I am not sure that there is a precise analogy between the position of the Director and the position of a solicitor; but those rules of public policy which have resulted in there being established a right of a client and solicitor to claim privilege as to documents and statements in the possession of the solicitor appear to me to apply with equal, if not greater, force to the position of the Director of Public Prosecutions.

84. It is relevant to point out that, at p 675, Glyn-Jones J said

The Director is not entitled to rely on professional privilege in respect of documents called for in paragraphs 5 and 6. Here, the question is: Who is the solicitor and who is the client? Legal professional privilege cannot exist unless there is in fact the relationship of legal adviser and client existing between two persons. In the case of the Director that is clearly not so.

85. Mr Lane also referred on this issue to The Queen v Dainer and Others; Ex parte Pullen (1988) 89 FLR 208. As Kelly J explained, at pp213-4, the principal question for decision in the matter was whether legal professional privilege attached to documents brought into existence solely for the purpose of a brief to be delivered to police officers and finally to the DPP in respect of a crime. The information had been laid by a police informant before the delivery of the brief to the DPP. In that matter there was evidence as to the establishment of a solicitor client relationship and the Court addressed the issue whether on those facts, bearing in mind the relevant statutory provisions, there was such a relationship. Kelly J in the course of his reasons referred to R v Cahill; Ex parte McGregor (1985) 16 A Crim R 25, (1985) 61 ACTR 7 and said of the reasons of Gallop J in that case:

It will be seen that Gallop J appears to have taken for granted that the Director of Public Prosecutions is and that his predecessor was a legal adviser of a police informant. The same view seems to have been effectively taken by the Full Court of the Federal Court of Australia (Fisher, Sheppard and Burchett JJ) in Austin v Attorney-General's Department (1986) 12 FLR 22. In that case an information was laid against the appellant alleging that he had committed the offence of sending an explosive substance through the mail. He sought access to the file of the Australian Government Solicitor in respect of the court proceedings against him. A number of documents in the file were made available to him but others were withheld. He made an application to the Administrative Appeals Tribunal under the Freedom of Information Act 1982 (Cth). Evidence was placed before the tribunal to show that the Australian Government Solicitor was, by virtue of an arrangement under s 32 of the Act, performing the functions and exercising the powers of the Director of Public Prosecutions in relation to the prosecution of the appellant. At 586-7, their Honours said:

"There does not appear to have been any challenge, in the tribunal, to the proposition that the prosecution was being conducted on instructions from the [Australian Postal] Commission. On this basis, the contention which the tribunal accepted was that, for the purposes of consideration of the claim of legal professional privilege, it could be accepted that the solicitors and counsel employed by the Australian Government Solicitor were in the position of legal advisers acting for the Commission as a client. Given the basic assumption, this conclusion seems clearly to have been open.

It would not in every case be possible to regard some government department or instrumentality as a client of the Director of Public Prosecutions, or of the Australian Government Solicitor acting pursuant to an arrangement with the Director made under s 32 of the Director's Act. However, even if the Director or the Australian Government Solicitor were acting in pursuance of an independent authority to prosecute, in the due discharge of his duties, it would not follow that a claim to privilege would be defeated. One view is that the Director prosecutes as a legal representative of the Crown. But if, alternatively, he should be regarded as prosecuting on his own behalf, he would then be an authority of the government employing salaried legal advisers."

They said (at 25):

"In the result, even if the unchallenged assumption upon which the tribunal proceeded was not justified, its conclusion that the officers of the Australian Government Solicitor were acting in a capacity which attracted the operation of the doctrine of legal professional privilege did not involve error."

The same view as to the general nature of privilege attaching to such documents when the Director of Public Prosecutions is involved seems to be implicit in the views expressed by Wilcox J in Adams v Anthony Bryant & Co Pty Ltd (1986) 67 ALR 616 at 620-1.

While it is possible to classify some, if not all, of the dicta just referred to as obiter, it seems to me, nevertheless, that the weight of authority is in favour of the view that the Director of Public Prosecutions may be taken to be a statutory officer communications to whom, if brought into existence solely for the purpose of obtaining advice or for use in litigation, will be the subject of legal professional privilege. This can be on either, or, more probably, both of two bases. The first is that the Director is the legal adviser of the Australian Federal Police when that police force institutes criminal proceedings which it may expect the Director to carry on in due course in the exercise of his powers and functions under the Act. The second is that the Director is acting in the exercise of his functions as a prosecutor and as a statutory officer of the Crown who is required to be legally qualified and is therefore necessarily the legal adviser of the Crown in connection with proceedings such as that with which I am concerned. (emphasis added)

86. That last quote, to which I have added emphasis, is relevant and helpful but it is distinguishable in that in Adams v Anthony Bryant and Co Pty Ltd and Others (1986) 67 ALR 616 there was an affidavit before the Court setting out the facts as to the delivery of a brief to the DPP. Thus the Court did not have to rely on assumptions as to a crucial matter.

87. During the hearing Mr Lane referred to the decision of the Queensland Information Commissioner in Re Price & Director of Public Prosecutions (1997) 4 QAR 157, as authority for the view that the DPP may stand in a legal professional relationship to the AFP or another government agency. He relied on paragraph 37 which is as follows:

37. It has been accepted by some of Australia's senior appellate courts that a person holding office as Director of Public Prosecutions may -

(a) stand in a professional relationship of legal adviser to client, in respect of clients, such as the Attorney-General or a government agency, who seek legal advice, or provide instructions, in respect of a criminal prosecution matter; or

(b) in the course of discharging the functions and duties of his or her office, stand in the relationship of client to legal adviser, in respect of independent counsel, or legally qualified salaried employees of the Director of Public Prosecutions, who are instructed to provide legal advice or professional legal assistance to, or conduct court proceedings on behalf of, the Director of Public Prosecutions.

88. The problem, as I see it, is not to establish that the DPP may act as legal adviser to the AFP, but to establish that in this matter there was such a relationship in respect of the documents which are claimed to be exempt under s42. As the Queeensland Information Commissioner said in Re Price at paragraph 35, principle (4):

Legal professional privilege attaches to confidential professional communications between salaried legal officers and government agencies. It must be a professional relationship which secures to the advice an independent character. The reason for the privilege is the public interest in those in government who bear the responsibility of making decisions having free and ready confidential access to their legal advisers. Whether or not the relationship exists is a question of fact. (emphasis added)

89. Turning to consider that question of fact, a perusal of the documents in issue, especially documents 1 and 2 does indicate that the necessary relationship existed from 28 May 2000. Document 1 is a typewritten note of a telephone call a solicitor within the Office of the DPP received from the AFP, asking for advice on an issue arising in respect of the remand of Mr Wallace. It sets out legal advice given by the solicitor. Similarly as to the documents which came into existence in 1998, the first of those documents, No. 69, is a letter expressly requesting legal advice as to the appropriate course of action and seeking comment on a draft information which had been prepared to seek an arrest warrant for Mr Wallace. As to the documents prepared in 1991 and 1992, document 72 dated 4 March 1992 is again a letter from the AFP which seeks legal advice from the DPP on a matter related to Mr Wallace. It is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

90. I have considered whether it is appropriate to find facts on the basis of material in those documents, which, although they are before the Tribunal, have not been tendered in evidence. There are some passages in Re Price which bear on that issue. At paragraphs 17 and 18, the Queensland Information Commissioner said:

17. Section 81 of the FOI Act provides that, in a review under Part 5 of the FOI Act, the respondent agency or Minister has the onus of establishing that the decision under review was justified, or that I should give a decision adverse to the applicant. That does not mean that I must require the respondent, in every case, to lodge evidence and written submissions to establish that the decision under review was correct. In some cases, an examination of the matter in issue, in conjunction with the relevant notice of decision (see s.34(2)(f) and s.52(4) of the FOI Act) setting out the agency's reasons for the decision under review (or, as in this case, the respondent's grounds of exemption as stated in a schedule of documents claimed to be exempt), may be sufficient to establish that the decision under review is justified. For example, it may be clear from an examination of its contents that a particular document is a Cabinet submission that qualifies for exemption under s.36(1)(a) of the FOI Act, or an official record of Executive Council that qualifies for exemption under s.37(1)(d) of the FOI Act.

18. Similarly, in some cases, an examination of the contents of a document claimed to be exempt under s.43(1) of the FOI Act may be sufficient to satisfy an authorised decision-maker that the document was created for the sole purpose of a client obtaining legal advice from a professional legal adviser, or for the sole purpose of use in litigation. Certainly, it is not uncommon for judges, asked to rule on whether particular documents are privileged from production in a legal proceeding on the ground of legal professional privilege, to be satisfied on that issue from an examination of the documents themselves. In other instances, of course, the documents in issue may not "speak for themselves" sufficiently to satisfy the relevant test(s) to attract legal professional privilege, and additional evidence and/or submissions may be required to establish that legal professional privilege applies.

I respectfully agree with the views set out in that passage. I have decided to rely on the material in the documents as material capable of satisfying me as to the existence of a solicitor client relationship between the AFP and the DPP. I find that there was a relationship of client and lawyer between the AFP and the DPP when the documents in issue came into being, or when they were forwarded to the DPP.

(ii) should the privilege be claimed?

91. It may be that, because s 42 does not relate to documents to which legal professional privilege does apply, but rather to documents of such a nature that they would be privileged from production on the ground of legal professional privilege, it is not necessary that the privilege be claimed by the client in FOI proceedings. That issue was not raised in the respondent's case. There was no claim of privilege by the AFP, but simply the statement in paragraph 40 of Mr Bruckard's affidavit that, "To the best of my knowledge, legal professional privilege has not been waived".. When I raised the matter with Mr Lane he responded (trans. p19):

Yes, but if the question of fact is, if the documents are prima facie subject to legal professional privilege, then the question is whether the client has done anything to waive them, and there is no evidence that would suggest that it has. If documents appear to be privileged, then you are entitled to act on the basis that they are, unless there is evidence of waiver. There is no evidence of waiver, here, and indeed Mr Bruckard's statement is that to the best of his knowledge, it hasn't been waived.

92. I decided to use the Tribunal's powers under s33(1)(c) of the AAT Act to call evidence from Mr Bruckard on the issue. He gave the following evidence (trans. p21):

Ma'am, what I have done is contacted the Australian Federal Police and was directed to their FoI unit in Canberra, where they manage all their FoI requests. I spoke there to a federal agent who is managing the request in relation to Mr Wallace, the parallel request as it was referred to by counsel, and I raised with that person the issue of privilege. I explained that in our view - or in my view, that privileged legal professional privilege exists in relation to a number of the documents that Mr Wallace has sought from the DPP files, and I sought their instructions in relation to the release of those matters. I was advised that, from the AFPs point of view, they were happy to accept the advice of the DPP as to whether the documents were or were not privileged, and in those circumstances, their position is that unless something exceptional exists, or my office was to recommend that documents be released, that they would normally not release those documents in those circumstances. Now, it hasn't been the case that the individual documents have been passed to the AFP for their perusal, but I worked on the basis of those instructions.

93. I consider that it would be helpful and appropriate in a matter such as this, if there was evidence from the person or body said to be in the position of "client" of the DPP, as to whether it was claimed that documents should not be disclosed as they were privileged under s 42 of the Act. After all, if a client has no interest in resisting disclosure of a document under s 42 of the Act, then consistently with the objects of the Act, as set out in s 3, access should be given to that document. A document should be released to an applicant where that can be done. It should not be claimed to be exempt unless that exemption is "necessary for the protection of essential public interests".. It is important for Ministers and agencies such as the DPP to remember s 3 of the Act and also s 14 which provides:

14 Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

94. Two further and related matters arise from an examination of the documents in issue. First, the disclosure of some of them would not reveal anything of a confidential nature to anybody, for instance document 21, does no more than forward the hand up brief from the AFP to the DPP for the purpose of it being checked by the DPP solicitor and then forwarded to the Court, with a copy to Mr Wallace. As the schedule shows, Mr Wallace already has a copy of the hand up brief. The release of the covering document would not disclose a confidential communication. It communicates only three matters

* The offences with which Mr Wallace was charged.

* His name and date of birth.

* The name of the informant.

All those matters would have already been known to Mr Wallace before 7 July 2000. Thus I find that the disclosure of document 21 and other documents of a similar nature would not "reveal confidential communications". However, they are communications made to be used in criminal proceedings in respect of which the DPP was providing legal services to the AFP. The extract from Cross on Evidence does make it a requirement that the communications be "confidential". That is not so clear from the cases.

95. The majority of the High Court in paragraph 9 of Daniels Corporation did not emphasise that matter. McHugh J, in a concurring judgment, at para 44, did refer to the requirement of confidentiality, but it is not clear whether or not he saw it as a necessary requirement of the privilege, when claimed to protect documents that record legal work. McHugh J said:

Legal professional privilege describes a person's immunity from compulsion to produce documents that evidence confidential communications about legal matters made between a lawyer and client or between a lawyer and a third party for the benefit of a client [Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550]. The immunity also protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of a client, such as research memoranda [Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550]. . . .

96. Sections 118 and 119 of the Evidence Act 1995 both restrict the privilege so that it applies only to a "confidential communication" or "the contents of a confidential document". They provide:

Legal advice

118. Evidence is not to be adduced if, on objection by a client, the court

finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer;

or

(b) a confidential communication made between 2 or more lawyers

acting for the client; or

(c) the contents of a confidential document (whether delivered or not)

prepared by the client or a lawyer;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

Litigation

119. Evidence is not to be adduced if, on objection by a client, the court

finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person,

or between a lawyer acting for the client and another person, that was

made; or

(b) the contents of a confidential document (whether delivered or not)

that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

97. As set out in the passage quoted from the High Court in Daniels Corporation, in paragraph 76 of these reasons, the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 was prepared to modify the test of legal privilege laid down in Grant v Downs (1976) 135 CLR 674 to agree with the "dominant purpose" test in ss 118 and 119. I consider that similarly the Evidence Act can shed light on the question whether a document, which has no confidential content, can be the subject of a claim of legal professional privilege simply because it was prepared for the dominant purpose of a client being provided with legal services. Such a document would not have the necessary character of "a confidential document", so as to be protected from being adduced in a court hearing by s 119 of the Evidence Act. I find a document is not "of such a nature" that it would be privileged from production in legal proceedings, unless it is "a confidential document".

98. A further issue is whether legal professional privilege applies to documents which were not created for the dominant purpose of obtaining legal advice or legal representation in litigation, but for an unrelated purpose, where those documents have subsequently been provided by the AFP to the DPP as relevant to matters on which the DPP acts as lawyer for the AFP. That issue has been addressed by the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. The High Court there held by a majority, Brennan CJ, Gaudron, McHugh, Gummow and Kirby JJ, that legal professional privilege attached to a copy document which was provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings, even where the original document was not privileged.

99. Brennan CJ rejected the idea that, "it would be absurd for the copy to be privileged while the original was not".. His Honour explained that the purpose for which the copy was brought into existence may not be the same as the purpose why the original was brought into existence. Brennan CJ said at pp508-509:

The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial. So, on a strictly logical application of the test, if a copy is made solely for the purpose of providing it to a legal adviser in order to obtain legal advice or for use in connection with apprehended litigation, the copy would be privileged. A test which focuses on the purpose for which a document is brought into existence, rather than on the information given by or contained in the document, creates practical problems in ascertaining the intention of the maker of the document. If there be two copies on a file, has one (and if so, which), or both, or neither been brought into existence for a privileged purpose? Though the test raises problems of that kind, it must be applied unless there is some countervailing principle. Is there any countervailing principle? That calls for a consideration of the reason for according legal professional privilege to protect a copy of an unprivileged original from seizure or inspection.

The reason why privilege is accorded to a document produced for use in litigation or for the obtaining or giving of legal advice is because "it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers" [Grant v Downs (1976) 135 CLR 674 at 685, per Stephen, Mason and Murphy JJ; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487]. Privilege protects the confidentiality of documents produced for the purpose of communication between a potential litigant and the legal adviser and confidentiality facilitates the administration of justice. .. . .

If privilege were denied to a copy of an unprivileged document when the copy is produced solely for the purpose of seeking advice from a solicitor or counsel or for the purpose of use in pending, intended or reasonably apprehended litigation, there would be a risk that the confidentiality of solicitor-client communications would be breached. The way would be open for the execution of search warrants by the emptying out of, and sifting through, solicitors' files and counsel's briefs. That would undermine the adversary system Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 649-650; Hodgkinson v Simms (1988) 55 DLR (4th) 577 at 582-583 ] under which most litigation is conducted See In re L (A Minor) [1997] AC 16 at 25].

.

Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended.

100. Gaudron J agreed with Brennan CJ's conclusion on this point, explaining that "the view that privilege does not attach to a copy document unless the original is also privileged", pays insufficient regard to the consideration that legal professional privilege does not protect documents, as such, but protects communications between lawyer and client. Her Honour explained that the making of a copy of the document for the purpose of providing it to a lawyer, "is, itself, a communication with the lawyer" and a privileged communication.

101. McHugh J added at p553:

If the privilege does not attach to such documents while they are in the custody of the lawyer, disclosure of their contents while in that custody, coupled with the surrounding circumstances, might reveal the nature of the advice that the client was seeking or the client's or the lawyer's view of the pending litigation [FN225] . By compelling disclosure, more than just the documents themselves might be handed over to an adversary.

102. Gummow J explained at p571:

It is not a question of extracting one or other of what may be numerous documents, all of which form part of the privileged communication, and declassifying those particular documents on the footing that the original or other copies exist and there is no bar to compulsory process for the obtaining of them to put in evidence. The communication as a whole is protected to foster the confidential relationship in which legal advice is given and received and thereby to advance the respect for and observance of the law [F N303] . The circumstance that a particular document is a copy of an original which is not protected from compulsory process by the privilege does not mean that there is no bar to compulsory process for the obtaining of the copy. The status of the original, from the viewpoint of privilege, does not determine that of the copy.

103. That point is relevant to documents 41 and 42.

104. I turn now to consider whether each of the documents, as to which a s 42 exemption has been claimed, is an exempt document under s 42 of the Act. They will be privileged if they are confidential communications between the AFP and the DPP or a member of the staff of the Office of the DPP who is a legal practitioner and the purpose of the communication is "(1) to enable the client [AFP] to obtain, or the adviser [DPP] to give, legal advice, or (2) with reference to litigation that is actually taking place or was in the contemplation of the [AFP]". In considering the documents, I accept Mr Bruckard's evidence at para 34 of his affidavit where he set out the names of the authors of a number of the documents and stated they were all, at the relevant time, DPP lawyers and admitted to practice as legal practitioners under the relevant laws of the States or Territories.

105. I do point out that if I find that a document is an exempt document, there is no discretion I can exercise to release that document even if I am of the view that its release would not be contrary to the interests of the AFP or the DPP. There is no discretion under s 42 of the Act, if a document is of the nature described. The Tribunal does not have the power given to a Minister and an agency under s 14 of the Act. Further, as set out in paragraph 22 above, s 18(2) of the Act states that an agency is not required to give access to an exempt document.

106. I find that documents which are no more than covering fax sheets or covering letters from the AFP to the DPP are not confidential if the enclosures have already been exchanged or released. As to other documents while I cannot make a finding that they are not confidential, I can see no reason why the AFP or the DPP would suffer harm if they were released. Some examples are brief instructions from the AFP telling DPP lawyers the time and place of the remand hearing. I consider the DPP could better comply with the objects of the Act if in future such documents were released. That would also save time and effort on the part of the Tribunal. Some examples of the sort of documents to which I refer are documents 2, 3, 16, and 60.

107. Instead of referring in detail to the foregoing discussion with respect to each document, I have incorporated my reasons as part of the description of the document. I consider those descriptions to be sufficient to show why a document is or is not exempt under s 42 of the Act. If the document is a confidential communication between the AFP and a DPP lawyer to enable the AFP to obtain, or the DPP to give legal advice, or if it is a communication about representation in legal proceedings that are taking place or contemplated, it is of such a nature that it would be privileged from production on the ground of legal professional privilege in legal proceedings. That means that the document is an exempt document under s 42 of the Act.

No.	DATE	DESCRIPTION AND REASONS	EXEMPT
1.	28.5.00	Record of confidential legal advice communicated by telephone by DPP lawyer to AFP (2 pages not 3 as in Schedule)	yes
2.	29.5.00	Record of telephone instructions from AFP to DPP solicitor re representation at remand hearing that day	yes
3.	29.5.00	Record of telephone communication requesting DPP prosecutor to appear at remand hearing	yes
4.	29.5.00	DPP lawyer's record of remand hearing	yes
5.	29.5.00	DPP lawyer's letter communicating result of remand hearing to AFP	yes
6.	29.5.00	Record of telephone instructions from AFP to DPP regarding preparation for committal mention and seeking advice regarding a related matter	yes
7A.	31.5.00	Record of telephone instructions from AFP as to preparation for hearing and record of advice given by DPP lawyer to AFP	yes
7B	1.6.00 & 5.6.00	Record of two telephone communications between AFP and DPP lawyer about pending criminal proceedings and of advice given by DPP lawyer to AFP	yes
7C	as above	Copy of 7B	as for 7B
8.	6.6.00	Note of discussion between DPP lawyers re advice to be given to AFP	yes
9.	6.6.00	More detailed Email record of communications between DPP lawyers as to advice to be given to AFP	yes
10.	7.6.00	Letter of advice from DPP lawyer to AFP	yes
11A.	8. 6. 00	Note by DPP solicitor as to advice communicated to AFP	yes
11B	as above	Copy of 11A	as for 11A
12A	14.6.00 &19.6.00	Record of telephone instructions received from AFP and action taken by DPP lawyer in preparing for prosecution	yes
12B.	As for 7B &7C	Copy of 7B& 7C	as for 7B&7C
12C	As for 12A	Copy of 12A	as for 12A
13&14		Released	N/A
15A15B15C.	27.6.00 3 copies	Note of instructions received in telephone communications from AFP to DPP lawyer and of action to be taken by DPP lawyer regarding criminal proceedings	yes
16.	3.7.00	Note of telephone instructions from AFP to DPP lawyer as to preparation for criminal proceedings	yes
17A17B 17C.	3.7.00 3 copies	Notes of telephone instructions from AFP to DPP lawyer and advice given by DPP lawyer as to preparation for hearing (part of document has been released)	yes
18.	5.7.00	Letter from AFP to DPP re preparation for pending criminal proceedings	yes
19.	5.7.00	Note of telephone instructions from AFP re preparation of hand-up brief and other criminal proceeding (part of document has been released)	yes
20.	7.7.00	Note of telephone instructions from AFP to DPP lawyer re preparation of hand-up brief	yes
21.	6.7.00	Communication from AFP sending hand-up brief to DPP for consideration and for service on defendant (brief has been released). No confidential character	no
22.	6.7.00	Letter from AFP sending brief of evidence to DPP and communicating further instructions as to preparation for committal mention and as to 1991 charges	yes
23A23B	7.7.00 2 copies	Note of telephone instructions received by DPP lawyer from AFP and of advice given as to form of hand-up brief	yes
24.	10.7.00	Note of telephone instructions received by DPP from AFP as to hand-up brief	yes
25.	13.7.00	Letter from AFP sending copy criminal history to DPP for use in litigation. (criminal history has been released) document is not confidential	no
26A26B26C.	26.7.00 27.7.00 04.8.00 3 copies	Note of telephone communications from AFP reporting on service and filing of hand-up brief (partly released) Not a confidential document as no confidential character merely reporting compliance with directions of court at remand hearing on 29.5.00	no
27.	8. 8.00	Letter of advice from DPP lawyer to AFP	yes
28.	8.8.00 & 10.8.00	Records of telephone messages left by AFP and DPP No communication made between client and DPP lawyer	no
29.	17.8. 00	Fax cover sheet forwarding criminal history check (already released) for use in litigation (document is not confidential)	no
30.		Released	N/A
31.	1.9.00	Record of telephone instructions from AFP and advice from DPP lawyer to AFP regarding preparation for hearing	yes
32.	4.9.00	Committal Notice to Diary Officer and Legal Registry Internal DPP communication of an administrative nature only	no
33.	4.9.00	DPP lawyer's notes of court appearance	yes
34.	5.9.00	DPP lawyer's letter of advice to AFP as to court appearance	yes
35A35B	4.9.00 2 copies	DPP lawyer's note of telephone instructions from AFP as to preparation for hearing on 6 December 2000	yes
36.	5.9.00	DPP lawyer's note of telephone instructions from AFP as to criminal proceedings	yes
37.		released	N/A
38.	undated	Indictment submission checklist part of preparation by DPP solicitor for hearing	yes
39.	4.12.00	DPP lawyer's note of telephone message requesting further evidence re criminal proceeding (partly released).	yes
40.	5.12.00	DPP lawyer's note of telephone instructions from AFP giving information as to matters relevant to criminal proceeding	yes
41.	5.12.00	Fax cover sheet from AFP to DPP forwarding information (5 pages) from records prepared for another purpose for use in preparation for legal proceedings (refer to AFP and Propend Finance)	yes
42.	5.12.00	Fax cover sheet from AFP to DPP forwarding copy 9 pages of information from records prepared for another purpose, for use in preparation for legal proceedings (refer to AFP and Propend Finance)	yes
43.	5.12.00	DPP lawyer's note of telephone instructions from AFP re matters relevant to criminal proceeding	yes
44.	14.12.00	Note of telephone message of advice by one DPP lawyer to another in connection with likely sentence on a plea	yes
45.	14.12.00	Note of telephone advice by one DPP lawyer to another in connection with likely sentence on a plea	yes
46.	18.12.00	Note of telephone message left by DPP lawyer for AFP No relevant communication	no
47.	19.12.00	Fax from DPP lawyer to AFP relating to preparation for legal proceeding	yes
48.	2.12.00	Record of telephone instructions from AFP as to progress with 1991 matters	yes
49.	7.3.01	Draft Minute from DPP lawyer to DPP, seeking approval of a step in provision by DPP of legal services to AFP	yes
50.	13.3.01	Record of telephone instructions from AFP to DPP lawyer regarding preparation for criminal proceeding in respect of 1991 matter	yes
51.	14.3.01	Fax cover sheet from AFP to DPP forwarding information for use in preparation for legal proceedings (attached information has been released). Document is not confidential	no
52.	17.5.01	Note of telephone message for DPP lawyer from AFP and discussion regarding legal proceeding when call returned	yes
53.	7.3.01	Same as 49, but signed by author	yes
54.	22.2.01	Internal Minute from DPP lawyer to DPP making recommendation and seeking consent to adoption of a certain course in proceeding as to 1991 matters	yes
55.	23.2.01	Internal Minute from another DPP lawyer to DPP giving legal opinion as to issue raised in document 54	yes
56.	07.03.01	Same as 49 and 53, but with handwritten annotation by DPP and signature of Director and Officer	yes
57.	09.03.01	Email communication between two DPP lawyers as to progress in legal proceeding about 1991 matter	yes
58.	20.12.00	Minute from DPP Perth to DPP Melbourne DPP lawyer forwarding files relevant to pending legal proceeding to Melbourne Office.	yes
59.	14.12.00	Internal DPP Emails as to preparation and progress of proceeding re 1991 matters	yes
60.	19.12.00	Fax cover sheet forwarding letter from Mr Wallace's solicitor (already released) and also referring to preparation in respect of 1991 matter	yes
61.	14.12.00	Internal DPP Emails reporting on sentence and reporting that Mr Wallace wished to plead to old charges. Not a confidential communication	no
62.	03.07.00	Letter from AFP (WA) to DPP (Perth) as to action to be taken to represent AFP in legal proceedings	yes
63.	06.07.98	Letter DPP (Perth) Deputy Director to AFP (WA) containing legal advice	yes
64.	26.06.98	Letter AFP (WA) to DPP (Perth) seeking legal advice	yes
65.	12.08.90	Sworn affidavit by AFP Federal Agent seeking arrest warrant. Not a communication between lawyer and client.	no
66.	07.07.00	Letter from DPP (Perth) advising AFP (WA) who are the DPP lawyers handling the matter	yes
67.	05.07.00	Internal DPP request to open new file. Administrative record only	no
68.	05.07.00	Fax from AFP (WA) to DPP (Perth) seeking case officer to advise and represent DPP enclosing copies of docs 62, 63, 64, 65 (refer to AFP and Propend Finance)	yes
69.	26.06.98	Copy of 64 with draft information for comment by DPP Deputy Director	yes
70.	06.07.98	Fax from DPP (Perth) to AFP (WA) forwarding letter of advice (document 63)	yes
71.	20.07.98	Note of telephone instructions from AFP (WA) to DPP (Perth) re preparation of case against applicant	yes
72.	04.03.92	Letter AFP (WA) to DPP (Perth) seeking legal advice with handwritten annotation	yes
73.	unknown	Draft statement of facts with handwritten corrections by DPP lawyer	yes
74.	11.03.92	DPP (Perth) handwritten note of telephone instructions from AFP	yes
75.	24.03.92	Fax cover sheet from AFP (WA) to DPP (Perth) regarding a step in preparation of legal proceeding	yes
76.	unknown	DPP lawyer's working notes	yes
77.	20.05.91	AFP facts sheet regarding Holly Dean-Johns prepared or forwarded to obtain legal representation by DPP	yes
78.	29.11.91	Internal DPP Minute to Acting DPP regarding D'Anna and Foster appeal against sentence (4 pages only)	yes
79.	20.05.91	AFP facts sheet regarding Dianne Foster prepared or forwarded to obtained legal representation by DPP	yes
80.	20.05.91	AFP facts sheet regarding Vincenzo D'Anna prepared or forwarded to obtain legal representation by DPP	yes
81.	27.05.91	DPP lawyer's record of telephone instructions from AFP as to future course of legal proceedings	yes
82.	04.07.91	DPP lawyer's record of telephone instructions from AFP as to future course of legal proceedings	yes
83.	01.07.91	DPP lawyer's record of telephone instructions from AFP as to future course of legal proceedings	yes
84.	unknown	Working notes of DPP lawyer	yes
85.	unknown	DPP lawyer's record of telephone instructions from AFP regarding progress of criminal proceedings	yes
86.	25.07.91	Letter from AFP (WA) to DPP (Perth) regarding sentencing submissions in matter of Foster and D'Anna	yes
87A and 87B	05.08.91 2 copies	Message for DPP lawyer to ring AFP (WA) and record of communication when call returned requesting letter of advice	yes
88.	06.08.91	Letter of advice from DPP lawyer for Deputy Director to AFP	yes
89.	06.08.91	Fax cover sheet from AFP (WA) to DPP (Perth) forwarding draft letter and letter with handwritten corrections and comments by DPP lawyer	yes
90.	07.08.91	Note of DPP lawyer as to corrections to document 89 - perhaps record of a telephone communication	yes
91.	unknown	working notes of DPP lawyer	yes
92.	unknown	working notes of DPP lawyer	yes
93.	unknown	Draft Statement of Facts and Submissions on penalty regarding D'Anna and Foster with annotations by DPP lawyer	yes
94.	29.11.91	Internal Minute by DPP lawyer to Acting Director seeking approval to appeal against sentences of D'Anna and Foster (Same as 78 but all 5 pages)	yes
95.	29.11.91	Internal Minute by DPP lawyer to Acting Director agreeing with recommendation in document 94 and approval by Acting Director	yes
96.	unknown	Draft and annotated outline of DPP submissions on appeal against sentence in D'Anna matter prepared by DPP lawyer	yes

108. The decision under review will be varied to provide:

(i) That the documents or parts of documents which are "exempt documents" under the Freedom of Information Act 1982 ("the Act") are those as to which exemptions are shown as upheld in the Decision Schedule summarising the Tribunal's findings as to the application of ss 36(1) and 42 of the Act.

(ii) Mr Wallace is entitled to have access to the documents or parts of documents as to which no exemption has been upheld.

I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: Grace Carney

Personal Assistant

Date/s of Hearing 18 June 2002

Date of Decision 7 February 2003

Solicitor for the Applicant Self Represented

Counsel for the Respondent Mr Lane

Solicitor for the Respondent Mr Bruckard