Victory for Liberal Party

Seriously.

But the main point of interest in reporting a partial win for the party in the Administrative Appeals Tribunal on a Freedom of Information matter concerns legal professional privilege, and a ruling that the exemption in Section 42 of the Commonwealth Act did not apply to one of two documents in dispute because privilege had been waived by actions of the agency.

In Liberal Party of Australia and Australian Electoral Commission [2009] AATA 551 the applicant sought review of a decision to refuse access to two legal advices held by the Commission concerning an application to register another political party -the Liberal Democratic Party-around the time of the last Federal election. On an advice from in-house lawyers, the Tribunal found [21-27] the document was independent legal advice from solicitor to client, there was no question of waiver, and rejected argument that it was outside the scope of the exemption because it was a document provided to officers of the agency for the purposes of making decisions generally (Section 9(1)).

Advice had also been sought on registration from the Australian Government Solicitor [10-20] in light of a recent amendment to the Commonwealth Electoral Act. In the determination to grant the application to register the name Liberal Democratic Party, the Commission's officer had stated:

"The advice provided to the AEC, from an AGS Senior General Counsel, was that the amended section 129 would not be likely to result in a different outcome were the AAT to again decide the “liberals for forests” matter or a similar matter. The advice also considered the need for the AEC to have evidence that similarity in names would be likely to be confused or mistaken, or lead a reasonable person to think a connection or relationship exists when it doesn’t. the advice suggested that it would be open to but not necessary for the AEC to commission such evidence by surveys or other research, or to rely on objectors to put forward evidence necessary to support their assertions, giving that evidence an appropriate weight."

Senior Member Constance summarised [14] the principles on waiver as set out by the High Court and the Federal Court as:

1. Waiver of legal professional privilege occurs when there is inconsistency between the conduct of the client and the maintenance of confidentiality.
2. It does not matter that the entity entitled to the benefit of the privilege did not intend to waive the benefit.
3. Considerations of fairness are relevant in deciding whether there has been inconsistency such as to amount to a waiver.
4. In determining whether or not there has been inconsistency it is necessary to consider the circumstances of the particular case in the context of the alleged inconsistency.
5. If the substance and effect of the advice is communicated in a context of emphasising and promoting the strength and substance of an argument being advanced by the recipient of the advice there is an implied waiver of privilege.

The Tribunal was satisfied that the Commission’s conduct in referring to the AGS advice in the manner it did in the Statement of Reasons was inconsistent with the maintenance of confidentiality in relation to that advice. Privilege had been waived by stating in the determination the effect of the advice and then relying upon it in relation to at least three of the five considerations taken into account in reaching the conclusion to which the Statement of Reasons related. Given the fact that registration was granted despite objections, including presumably from the Liberal Party among others, it would be unfair to the Party to deny it access to the opinion relied upon.'[20]

Interestingly the Commission argued but finally conceded on the point that the Liberal Party of Australia-an unincorporated association- was a person for the purposes of an application for review under the Administrative Appeals Tribunal Act but not that it was a person within the meaning of the FOI Act [7-8]. I thought issues like the very broad definition of person for FOI purposes had been settled about 27 years ago, but not for some apparently.