Its been one of the most common exemption issues that have cropped up in external review of Freedom of Information applications in all Australian jurisdictions.
Once the criteria for privilege has been established, that's the end of the section for any attempt to gain access, as FOI legislation usually requires no other test.
In an interesting development in the UK, The Guardian reports that the constitutional affairs minister has broken ranks with other ministers by questioning why legal advice from the first law officer should not be publicly available:
"It is a contradiction in terms to have an accountable office-holder who is not able to publish to those whom he is accountable the advice he has given. It is not enough for government ministers to say we are advised that it is lawful. Backbenchers, let alone the wider public, want to see for themselves what the arguments are".There has been much controversy in the UK about legal advice the government received about the war in Iraq, and recently about the Attorney General's role in stopping the Serious Fraud Office investigation into alleged slush fund payments by a UK firm to Saudi officials. Minister Harman's comments suggest one option for improving public trust in an office in the UK that has statutory independence, as the Government's principal legal advisor, but also has a seat at the Cabinet table.
We mentioned here some weeks ago that NSW Deputy Ombudsman Chris Wheeler in an article in the Australian Institute of Administrative Law Forum (still not available on line) has questioned why legal advice in government should be treated any differently than other advice when issues about public access arise.
The Australian Law Reform Commission is currently reviewing the whole concept of legal professional privilege as a result of issues arising from the AWB Royal Commission. The terms of reference however don't expressly cover the fundamental issue now raised in the UK.
That UK development however will be grist for the mill here in a number of areas, including in the NSW Administrative Decisions Tribunal, where it is about to look at a couple of cases concerning why documents that attract the privilege exemption in the NSW FOI Act should not be disclosed.
And what will NSW Crown Solicitor Ian Knight make of this shock horror development!