Legal privilege should not stand in Ombudsman's way

NSW Ombudsman Bruce Barbour

Sean Nichols cracked the front page with "Labor shuts off access to secrets" in the Sydney Morning Herald on Friday and the paper follows today with an editorial "The watchdog barks back" about an issue the NSW Ombudsman has raised with the government for years without success: the limitation in the Ombudsman's general powers of investigation on access to an agency's documents that are claimed subject to legal privilege. The Ombudsman and the Parliamentary Committee that oversights the office have got nowhere on this with the Ombudsman citing a series of unhelpful fob offs from the Department of Premier and Cabinet, over the last two and a half years. 

The Ombudsman has a point about what is a unique NSW limitation on ombudsman powers (section 21 of the Ombudsman Act)  and the lack of consistency in NSW where such a limitation does not apply to other investigatory bodies such as the Police Integrity Commission and the Independent Commission Against Corruption. However NSW is not the only jurisdiction with a consistency problem.This was a key element in an Australian Law Reform Commission 2008 Report on privilege and investigations. The report, which lends support to the NSW Ombudsman's argument, is yet to be acted upon by the Federal Government.

The ALRC report found confusion and uncertainty was widespread and called for clarification and consistency, supporting the principle of "maintaining privilege as a fundamental right of clients, which only should be abrogated or modified in exceptional circumstances." Exceptional circumstances would include "major investigations which fit specified criteria; some Royal Commissions; and the oversight of public sector agencies". On the latter [6.165]:

The ALRC agrees with the current policy of abrogation of client legal privilege for bodies which focus on the public accountability of government. As noted above, submissions to this Inquiry argued that adequate accountability of government entities is vital to ensure the proper functioning of democratic institutions. The rationales for the privilege of protecting the citizen against the incursions of the state and promoting compliance are not justifications for protecting advice received by a government body from investigation by an agency charged with ensuring its accountability.

The report recommends [6.3] the law in relation to the Ombudsman be clarified to ensure abrogation applies to litigation privilege as well as advice privilege.

In what will sound familiar to many who have an interest in the issue in all jurisdictions the Report identified problems concerning the making of privilege claims by government agencies, including:

• a lack of consistency in the manner in which claims are made;
• a lack of transparency in claims;
• the need to address blanket claims of privilege;
• over-claiming of privilege;
• over-use of masking of documents;
• ‘warehousing’—placing prejudicial documents in the hands of third parties and beyond the power of a party to litigation;
• ‘privileging’—placing prejudicial documents in the hands of lawyers under cover of spurious requests for legal advice so as to permit a claim for privilege;
• concerns about inadvertent waiver of privilege in the process of making a claim.

While the NSW Ombudsman has encountered problems with section 21 when conducting general investigations into an agency's management of Freedom of Information responsibilities, section 21B of the Act removes the limitation when the Ombudsman is investigating a complaint about a particular FOI matter. Access cannot be refused  to the Ombudsman where access has been refused to the complainant on legal privilege grounds. 

Once the Government Information (Public Access) Act commences on 1 July, Division 4 of the Government Information (Information Commissioner) Act  gives the Commissioner broad powers to access agency information in the exercise of functions of oversight, investigation or dealing with a complaint, subject only to a limitation (Section 27)  where a claim of privilege is  by an agency on behalf of another party.


The Information Commissioner also-like the Ombudsman-will not be able to insist on access to information that the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet certifies is "information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information". Such a certificate is conclusive. (Section 30)