Bad week for big tobacco's quest for legal advice

Coincidentally the Federal Court of Australia this week handed down its decision on British Tobacco's appeal against an AAT decision in April this year, upholding the finding that legal advice received on plain packaging in 1995 was exempt under the Freedom of information Act, and that privilege had not been waived. The published decision in British American Tobacco Australia Limited v Secretary,Department of Health and Ageing [2011] FCAFC 107 includes a summary of the main points in issue and the result. The key findings were confirmation that the tabling of the Government Response to a committee report in the Senate that referred to the advice was protected by parliamentary privilege under s 16(3) of the Parliamentary Privileges Act and could not be relied upon as evidence that went to the question of waiver [48-49]; and while this did not extend to the publication of the Government response on a departmental website, such publication did not constitute waiver because it was not inconsistent with maintaining confidentiality in the advice itself as the  government was not "seeking to deploy a partial disclosure of the AGD legal advice for forensic or any other advantage"[50-58].

In what might best be interpreted as a judicial frown, the Court made these observations about the lengthy decision of Deputy President Forgie in the Tribunal [31]:

Forgie DP essayed the authorities on the legal issues before the Tribunal at considerable length. The resolution of the issues that fall for determination in this Court does not depend on close attention to nuances in the reasoning of the many cases referred to by the Tribunal: on the question of waiver, the principles have been authoritatively stated in recent decisions of the High Court. This case is not at the margin of the operation of the principles laid down by the High Court. The history of the development of those principles, while no doubt a matter of interest, is not necessary to an understanding of the statements by the High Court. And as this case demonstrates, an undue focus upon the historical development of legal principles can be a distraction from the issues which are tendered by the parties for determination by the Tribunal.

My observation at the time was

In her decision Deputy President Forgie as usual leaves no word or phrase in the law or any relevant precedent unexamined. This decision includes a summary of steps since 1994 to examine the policy option of generic packaging [22-39], the law on legal privilege [40-68] and issues arising from the Parliamentary Privileges Act [79-178], matters to be resolved in deciding whether privilege has been waived [179-193] and the limitations on the relevance of material in the Government Response [194-196], before her conclusion that privilege had not been waived through circulation of summaries of the advice in other contexts [197-202]. Senior Member O'Loughlin was the model of brevity in agreeing to all that and giving his own reasons in a sparse 16 paragraphs [204-220.]

If this week's Tribunal decision goes to the court on appeal, judges will have another weighty DP Forgie tome to consider.