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Doney and Department of Finance and Deregulation [2012] AICmr 25 (15 October 2012)

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Decision and reasons for decision of Freedom of Information Commissioner, Dr James Popple 

Summary of case details
Applicant: Richard Doney
Respondent: Department of Finance and Deregulation
Decision date: 15 October 2012
Application number: MR11/00060
Catchwords:

Freedom of information — Legal professional privilege — Whether legal professional privilege waived — (CTH) Freedom of Information Act 1982 42

 

Freedom of information — Agreement between IC review parties — Whether agreement relates to part of an IC review application or all of it — (CTH) Freedom of Information Act 1982s 55F

 Contents

 Summary

  1. I affirm the decision of the Department of Finance and Deregulation (the Department) of 7 February 2011 (modified by agreement on 21 September 2011) to refuse full access to one of the documents requested under the Freedom of Information Act 1982 (the FOI Act).

 Background

  1. On 9 August 1989, Mr Richard Doney was convicted of being knowingly concerned in the importation of a prohibited import contrary to s 233B(1)(d) of the Customs Act 1901. He was sentenced to 16 years imprisonment with a nine year non-parole period dating from 9 August 1989. Mr Doney's non-parole period expired with remissions on 4 April 1995 and his head sentence expired with remissions on 26 August 1999.[1] On 30 November 2001, the New South Wales Court of Criminal Appeal quashed the conviction and entered a verdict of acquittal.[2]
  2. On 25 July 2002, Mr Doney sought an act of grace payment from the Commonwealth as compensation for the time he spent in prison. On 14 April 2009, the then Minister for Superannuation and Corporate Law, Senator the Hon Nick Sherry declined Mr Doney's application for an act of grace payment. On 21 October 2009, in response to a request from Mr Doney, the Minister provided a statement of reasons for that decision in accordance with s 13 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).
  3. On 1 July 2009, Mr Doney requested a reconsideration of that decision. On 19 July 2010, the then Minister for Finance and Deregulation, the Hon Lindsay Tanner revoked Minister Sherry's decision and replaced it with a fresh decision, which also declined Mr Doney's application for an act of grace payment.
  4. On 2 November 2010, Mr Doney applied to the Department under the FOI Act for access to six documents relating to his application for an act of grace payment. On 15 December 2010, the Department granted Mr Doney access to one document, but refused access to the other five on the basis that they were exempt under s 42 of the FOI Act (legal professional privilege).
  5. On 4 January 2011, Mr Doney requested internal review of this decision. On 7 February 2011, the Department gave Mr Doney access to edited copies of two of the documents still in dispute, and refused access to the remaining three.
  6. On 21 February 2011, Mr Doney complained to the Commonwealth Ombudsman, requesting that the Ombudsman review that decision. On 3 March 2011, Mr Doney's complaint was transferred to the Information Commissioner under s 6C of the Ombudsman Act 1976 and treated as an application for IC review under s 54L of the FOI Act.
  7. On 19 September 2011, the Department wrote to Mr Doney to propose an agreement under s 55F of the FOI Act. Under s 55F, the parties to an IC review can reach a written agreement as to the terms of a decision on an IC review. If the Information Commissioner is satisfied that a decision in those terms is appropriate, and would be within the Information Commissioner's powers, the Information Commissioner may:
    • make a decision in those terms without completing the IC review, or
    • if the agreement relates to only part of the matter — give effect to the terms of the agreement without completing the IC review with respect to that part.
  8. The Department's letter to Mr Doney explained that the Department had concluded that legal professional privilege had been waived in relation to some of the three documents in dispute because of Minister Sherry's statement of reasons. The Department proposed that it would give Mr Doney full access to two of those documents, and access to paragraphs 4–7 of the remaining document: a letter (the AGS advice) dated 31 October 2002 from the Australian Government Solicitor (AGS) to the Attorney-General's Department (AGD).
  9. On 21 September 2011, Mr Doney and the Department reached an agreement in accordance with s 55F(1)(a) of the FOI Act. Under that agreement, the Department gave Mr Doney access to all of the three documents in dispute except for paragraphs 1–3 and 8–52 of the AGS advice. The agreement did not specify whether it was intended to extend to part of the IC review application or all of it. Mr Doney later confirmed to the Office of the Australian Information Commissioner that he wished the IC review to continue in relation to those paragraphs of the AGS advice to which he was not given access. Accordingly, I take the agreement to be one made under s 55F(1)(a)(ii): that is, one made in relation to part of the IC review application.
  10. I am satisfied that a decision in the terms of the agreement reached by the parties on 21 September 2011 would be within my powers: s 55F(1)(d). I am also satisfied that it is appropriate for me to give effect to the terms of the agreement without completing the IC review with respect to that part of the review covered by the agreement: s 55F(2)(b).

 Decision under review

  1. The decision under review is the Department's internal review decision of 7 February 2011, as modified by the agreement of 21 September 2011, to refuse Mr Doney access to paragraphs 1–3 and 8–52 of the AGS advice.

 Legal professional privilege exemption (s 42)

  1. Section 42 of the FOI Act relevantly provides:

    42 Documents subject to legal professional privilege

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

    (2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.

  2. The Department contends that the AGS advice is an exempt document under s 42(1), and that privilege was waived only in relation to those paragraphs of the advice that have been provided to Mr Doney. Mr Doney contends that privilege has been waived in relation to the whole AGS advice.[3]

 Does the AGS advice attract privilege?

  1. Legal professional privilege protects confidential communications between a lawyer and client from compulsory production. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that the FOI Act does not define legal profession privilege for the purposes of the exemption in s 42: 'To determine the application of this exemption, the decision maker needs to turn to common law concepts of privilege'.[4]
  2. The Guidelines also explain that, at common law, determining whether a communication is privileged requires a consideration of the following:
    • whether there is a legal adviser–client relationship
    • whether the communication was for the purpose of giving or receiving legal advice or for use or in connection with actual or anticipated litigation
    • whether the advice given is independent
    • whether the advice given is confidential.[5]

Section 42 may exempt communications between agencies and their legal advisers, including government legal advisers.[6]

 Findings

  1. AGS is an independent legal adviser. AGD asked AGS for legal advice and AGS provided it. I have examined the AGS advice. It is a confidential communication created for the purpose[7] of giving AGD legal advice relating to Mr Doney's application for an act of grace payment.
  2. The AGS advice attracts legal professional privilege. Unless that privilege has been waived, the AGS letter is exempt under s 42(1) of the FOI Act.

 Waiver of legal professional privilege

  1. Section 42(2) of the FOI Act provides that a document is not exempt under s 42(1) 'if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim'. As the High Court explained in Mann v Carnell [1999] HCA 66:

    It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. ...

    Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.[8]

  2. In Osland v Secretary to the Department of Justice [2008] HCA 37, the High Court said that a decision about whether the client's conduct is inconsistent with the maintenance of privilege 'is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances':[9]

    Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of the advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd,[10] questions of waiver are matters of fact and degree.[11]

  3. In determining inconsistency, the purpose for which the holder of the privilege made the disclosure is highly relevant.[12] In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237, Gyles J said that 'it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege'.[13]

 Was privilege in the AGS advice waived?

  1. Legal professional privilege is sometimes called 'client legal privilege'[14] to emphasise the fact that the client is entitled to its benefit. The client in this case — the person entitled to claim legal professional privilege in relation to the AGS advice — is AGD. AGD is an 'emanation of the Commonwealth'.[15] Section 42(2) will apply in this case if the Commonwealth has waived the privilege.
  2. In this case, as noted above,[16] the Department provided Mr Doney with paragraphs 4–7 of the AGS advice on the basis that the Commonwealth's privilege in relation to those paragraphs had been waived by Minister Sherry's statement of reasons. The substance of Mr Doney's contention is that the maintenance of privilege in paragraphs 1–3 and 8–52 of the AGS advice is inconsistent with either or both of:
    • Minister Sherry's statement of reasons (specifically, his reference in that statement to the AGS advice), or
    • the Department's release of paragraphs 4–7 of the AGS advice

and that, therefore, the Commonwealth has impliedly waived privilege in the whole AGS advice.

  1. Paragraphs 4 and 5 of the AGS advice read:

    4. In our view, there is no legal liability to pay damages under the law of tort or otherwise.

    5. It is arguable that there may be a possible basis for a claim for an act of grace payment on moral grounds.

Paragraphs 6 and 7 consider whether Mr Doney's claim would fall under article 14(6) of the International Covenant on Civil and Political Rights, which provides for compensation in certain circumstances for a person convicted of a criminal offence whose conviction is overturned. In paragraph 6, AGS notes that that article has not been directly incorporated into Australian law but says that, if the claim did fall under that article, there would be moral grounds upon which to base an act of grace payment. Paragraph 7 describes arguments for and against the application of article 14(6) to Mr Doney's claim.

  1. Minister Sherry's statement of reasons (dated 21 October 2009) refers to the AGS advice as follows:

    On 31 October 2002, AGS advised AGD that there is no legal liability to pay damages under the law of tort or otherwise, however it noted that it is arguable that there may be a possible basis for a claim for an act of grace payment on moral grounds.

  2. The facts in this IC review are comparable to those in Osland. In that case, Mrs Osland had sought access, under the Freedom of Information Act 1982 (Vic), to documents relating to her petition to be granted an executive pardon for a murder conviction. The Victorian Attorney-General had issued a media release announcing that the Governor had denied the petition. The media release also referred to a legal advice provided by three senior counsel, and stated that '[t]he joint advice recommends on every ground that the petition should be denied'. The High Court held that privilege in the joint advice had not been waived. The Court said that the Attorney-General, through his media release, was seeking to explain the process which had been followed; that was not inconsistent with maintaining the confidentiality of the reasons for the decision, and was not unfair to Mrs Osland.[17]
  3. In this IC review, the statement of reasons summarised advice that the minister had taken into account in exercising the discretion not to grant an act of grace payment. Like the media release in Osland, the statement of reasons included only a brief overview of the advice. I am satisfied that the AGS advice was not summarised for forensic or commercial purposes; it was summarised to explain the nature of the advice that the minister had received in coming to his decision. The summary accurately reflected the content of the legal advice as a whole. The partial disclosure caused no unfairness to Mr Doney. The same is true of the Department's release of paragraphs 4–7 of the AGS advice.

 Findings

  1. Neither the reference to the AGS advice in Minister Sherry's statement of reasons, nor the Department's release of paragraphs 4–7 of the advice, were inconsistent with the maintenance of legal professional privilege in the other paragraphs of the AGS advice.
  2. The Commonwealth has not waived privilege in relation to paragraphs 1–3 and 8–52 of the AGS advice. Section 2(2) of the FOI Act does not apply. Those paragraphs of the AGS letter are exempt under s 42(1).

 Giving access to exempt documents

  1. Even though paragraphs 1–3 and 8–52 of the AGS advice are exempt, it is open to the Department to give Mr Doney access to the whole AGS advice. The FOI Act is expressly not intended to limit any power to give access to documents, including exempt documents.[18] And the Guidelines say that agencies should not assert legal professional privilege unless 'real harm' would result from disclosure of the privileged information.[19] However, because of s 55L of the FOI Act, I do not have the power to decide, on an IC review, that access be given to exempt material.[20]

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of 7 February 2011, as modified by the agreement of 21 September 2011.

James Popple
Freedom of Information Commissioner

15 October 2012

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] R v Doney [2001] NSWCCA 463, [5] (Ipp AJA).

[2] R v Doney [2001] NSWCCA 463.

[3] Mr Doney also contends that the exemption in s 42(1) does not apply because of s 42(3). This contention is misconceived. Section 42(3) provides an exception to s 42(1) for otherwise exempt documents that contain 'operational information', which is defined in s 8A. The AGS advice does not contain any operational information.

[4] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [5.115].

[5] Guidelines, [5.117]. See Grant v Downs (1976) 135 CLR 674; Waterford v Commonwealth (1987) 163 CLR 54.

[6] Guidelines, [5.119].

[7] In this case, the sole purpose of the AGS advice was the giving of legal advice. It would have been enough to attract privilege that that was the dominant purpose of the communication: Guidelines, [5.123]; Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49.

[8] [1999] HCA 66, [28]–[29]; (1999) 201 CLR 1, 13 (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

[9] [2008] HCA 37, [45]; (2008) 234 CLR 275, 297 (Gleeson CJ, Gummow, Heydon and Kiefel JJ).

[10] [2005] FCA 356, [26]; (2005) 65 IPR 442, 447.

[11] [2008] HCA 37, [49]; (2008) 234 CLR 275, 298–99 (Gleeson CJ, Gummow, Heydon and Kiefel JJ).

[12] Secretary, Department of Justice v Osland [2007] VSCA 96 at [63] (Maxwell P), cited approvingly by the High Court in Osland [2008] HCA 37, [35], [50]; (2008) 234 CLR 275, 292, 299 (Gleeson CJ, Gummow, Heydon and Kiefel JJ).

[13] [2004] FCAFC 237, [68]; (2004) 140 FCR 101, 120.

[14] See, for example, Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67, [35]; 201 CLR 49, 64 (Gleeson CJ, Gaudron and Gummow JJ). See also Division 1 of Part 3.10 of the Evidence Act 1995, though that statutory test is not applicable to s 42 of the FOI Act: Guidelines, [5.115]; Commonwealth v Dutton [2000] FCA 1466; 102 FCR 168.

[15] See NSW Council for Civil Liberties Inc. v Classification Review Board (No. 1) [2006] FCA 1409, [31] (Edmonds J).

[16] See [9] above.

[17] [2008] HCA 37, [48]; (2008) 234 CLR 275, 298 (Gleeson CJ, Gummow, Heydon and Kiefel JJ).

[18] Section 3A.

[19] Guidelines, [5.130].

[20] See also Bennett and Chief Executive Officer of Customs [2002] AATA 434, [32] in relation to s 58 which similarly restricts the Administrative Appeals Tribunal.