Advice on tobacco plain packaging legally privileged

In a matter separate from the British Tobacco case recently heard in the Federal Court where privilege was also an issue, Phillip Morris Limited failed in a bid to access documents held by the Prime Minister containing legal advice concerning the plain cigarette packaging legislative initiative. In Phillip Morris Limited and Prime Minister [2011] AATA 565 the issue before Administrative Appeals Tribunal Deputy President Forgie was the decision by a delegate of the Prime Minister to refuse access to five emails and attachments that contained legal advice requested by the Department of Health and Ageing and prepared by Australian Government Solicitors' in 2010 that included advice from Department of Foreign Affairs officers on aspects of international and trade law. The matter was decided on the basis of the law as it stood prior to November 2010.

In a whopping 261 paragraphs (357 footnotes) Deputy President Forgie left no word not parsed or relevant precedent unexamined as she analysed and applied the law regarding legal professional privilege (s 42). One interesting aspect was confirmation that the absence of a practicing certificate was not an impediment to a privilege claim-one of those responsible for part of the DFAT advice held an LLB from the University of Sydney but had not been admitted to practise in any capacity as a legal practitioner[86-100].

Deputy President Forgie concluded:

the DFAT advice and AGS advice are subject to legal professional privilege, I am satisfied that their disclosure under the FOI Act would be contrary to the public interest. As the privilege has not been waived, the doctrine of legal professional privilege has already determined that disclosure is contrary to the public interest. The public interest is that in the administration of justice that comes from the encouragement of full and frank disclosure by clients to their lawyers [252].

Counsel for the Prime Minister had argued in the alternative that the documents were exempt as deliberative process documents under s 36. Deputy President Forgie proceeded to examine this claim on the assumption that they were not protected by legal privilege. While finding that the documents contained advice and opinion developed in the course of decision making functions, thus satisfying s 36(1)(a), she was not satisfied that disclosure would be contrary to the public interest. For the second time in a week the Tribunal rejected this type of claim because of the absence of evidence-in this case that disclosure would tend to inhibit confidential communications in future, or inhibit their being recorded:

254. Mr Hanks and Ms Graycar have submitted that there is a public interest in government’s being able to obtain confidential advice from those with appropriate expertise and in the course of, and for the purpose of, developing policy and legislation.....

258. I cannot make findings of the sort underpinning the conclusions arrived at in Kowalski and Wallace in the absence of evidence supporting them. The content of the AGS advice and the DFAT advice do not, by themselves, satisfy me of them. The fact that advice has been sought does not of itself lead to the conclusion that it should not be disclosed under the FOI Act. I have been given no evidence addressing any claim that release of the advices would tend to inhibit communications of that sort in future or to inhibit their being recorded. While I understand that evidence of this sort has been given in other cases, it has not been led on the particular issues as they arise in relation to these documents. Therefore, had it not been for my decision that the AGS advice and DFAT advice are subject to legal professional privilege, I would not have been satisfied on the evidence in this case that their disclosure under the FOI Act would have been contrary to the public interest within the meaning of s 36(1)(b).