Tobacco companies request for government legal advice on packaging sent packing

WikiCommons Media

Along with the war of words and threatened court action by the industry in recent weeks following release of the draft plain packaging for cigarettes bill, came this related Administrative Appeals Tribunal decision by Deputy President Forgie and Senior Member O'Loughlin concerning  a Freedom of Information application by Philip Morris and British Tobacco for advice obtained by the Health department from Attorney General's in 1995 on "the legal and constitutional barriers to generic packaging."

The Tribunal upheld the agency decision to refuse access on legal professional privilege grounds, importantly concluding no waiver of privilege had resulted from the circulation of summaries of the advice in years past to members of two working parties of government and private sector members.

Jared Owens writing about the decision in The Australian said "(t)he tribunal also found the advice was protected by the Parliamentary Privilege (sic) Act, since the 1997 summary formed part of "proceedings in parliament." This seemed to suggest that the PPA provided other grounds for refusal of access.That's not exactly what the Tribunal decided.

The Tribunal found that the Government Response to a Senate committee report, tabled in Parliament and incorporated in Hansard that included a short summary of the advice came within the description of “proceedings in Parliament” in s 16 of the PPA. Section 16(3) prohibits evidence in a court or tribunal concerning proceedings in Parliament in certain circumstances including for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings. The Tribunal ruled this precluded consideration of whether information about the advice in the Government Response to a Senate committee report in 1997 constituted a waiver of legal professional privilege. The reason was that this would require drawing an inference or conclusion that a judgment was made at the time to behave inconsistently with the confidentiality expected when seeking to maintain the privilege.(See DP Forgie at [194-196] and SM O'Loughlin at [214-219]).

Earth moves:Treasury releases legal advice

Hard to tell if this is a welcome sign of new times or an example based on an unknown formula for selective exercise of a discretion to disclose an otherwise exempt document, but in any event the release by Treasury in response to a Freedom of Information application of legal advice from the Australian Government Solicitor is a rare event. Particularly as the advice was that the super profits tax could be found to be unconstitutional if just one State changed a royalty rate. The advice (Constitutional issues) along with other documents released in response to its application is on the West Australian's webpage. Opposition Senator Brandis caught AGS on the hop, apparently unaware of the disclosure, when he asked questions (taken on notice) at this Senate Estimates hearing last Monday, questions based on the reasonable premise that privilege had been waived by release.Legal and Constitutional Affairs  (L&C 110)

Freedom of Information: High Court Osland decision

ABC TV

The High Court in Osland v Secretary to the Department of Justice [2010] HCA 24 decided that the Victorian Court of Appeal had failed to do what the High Court in an earlier decision had ordered, and stepped in to do the job itself. In a unanimous decision ( three separate judgments) the six judges found there was no error of law in the decision of the President of the Victorian Civil and Administrative Tribunal Justice Morris in August 2005 that the differences between the advices from senior counsel to the Victorian Attorney General whether to grant a petition of mercy on behalf of Mrs Osland provided the "powerful reasons" for requiring access to the documents in the public interest. In the circumstances of this case, the Court decided public interest considerations overrode the valid claim of legal professional privilege, and granted access to the 300 pages of advice received by the Attorney General from all sources . The decision is an important precedent on how factors particular to the applicant can be highly relevant to the public interest in disclosure, and on the interpretation and application of the almost unique override discretion conferred on VCAT by s 50(4) of the Victorian Freedom of Information Act. "Almost" because the NSW Administrative Decisions Tribunal has some capacity to override an exemption in dealing with FOI matters, but not in respect of legal privilege, and the GIPA act to commence this week will have the effect of winding back the the discretion in some respects as well.

Since Justice Morris made his decision five years ago this matter has been the subject of a Court of Appeal decision, a High Court decision, a further Court of Appeal decision and finally this decision in favour of Mrs Osland. There is an interesting question about what all this cost the Victorian taxpayer, also stuck with an order to pay her costs in the High Court. She will now get to see, nine years after her Freedom of Information application, that there was more to the advice received by the Attorney General than indicated in this media statement in 2001:

"On July 5, 1999, Mrs Osland submitted a petition for mercy to the then-Attorney General, Jan Wade. That petition set out six grounds on which the petition should be granted.  Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland's petition.This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied.  After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.  The Governor has accepted this advice and denied the petition."

While not mentioned in the release, advice had been received from the Victorian Government Solicitor, and a senior counsel, Robert Redlich QC, among others, in addition to the three counsel referred to in the statement. Differences between advices, the basis of the decision by Justice Morris, turned out to be a crucial point in the case in the High Court.

Crennan QC, now Justice Crennan of the High Court did not sit in proceedings for obvious reasons.

High Court orders release of Osland advice

Here is The  Age report on yesterday's decision in the Osland case, a great win and of wider significance in Victoria at least. I'll have something to say when I get the chance to read the decision itself.

Nine words have powerful effect on Ombudsman

NSW Ombudsman Bruce Barbour has followed up with a special report to Parliament Removing nine words - Legal professional privilege and the NSW Ombudsman , his so far futile attempts and those of a parliamentary committee to have removed unique limitations in legislation that give an agency power to refuse his office access to information on this ground in the course of an investigation. The report includes case studies on problems encountered with the RTA, the Board of Studies and an unnamed local council during the course of an  Ombudsman investigation into the handling of Freedom of Information applications. The attitude in some cases was the agency claimed privilege and refused to provide the Ombudsman with information for the simple reason it could.

That's probably the situation with many FOI refusals on legal privilege grounds as well. Come 1 July and the commencement of the GIPA act, legal privilege will be a conclusive public interest factor against disclosure-no other test is required-although the agency must in each case give consideration to waiving privilege. The claim of privilege will be reviewable but not the refusal to waive. The Information Commissioner will not be as constrained as the Ombudsman in accessing information in the course of an investigation.

Bill of Rights 1688 still handy for the Government; 21st Century charter another story

At a time when the Commonwealth Government is reported to have put the brakes on the charter of rights recommended by the Brennan Committee, and dire and often off - the - map predictions have been made about the repercussions of embracing such a radical idea, it is ironic that the Bill of Rights of 1688 came in handy when the Department of Broadband the Digital Economy and Communications was arguing successfully against production of documents sought in civil proceedings brought by the liquidators of Optel in the NSW Supreme Court.

It was a minor point in a matter that otherwise involved public interest immunity claims on the basis of legal privilege and cabinet documents. The decision also included a reminder [73-85] that in the courts at least such claims are not absolute and must be weighed against disclosure in the public interest for the purpose of the proper administration of justice.  Despite the views of commentators on the outside, government isn't interested in requiring that sort of balancing of interests under the Freedom of Information laws when  documents are claimed exempt on these grounds.

In this decision however when neither legal privilege nor cabinet process arguments were available to support a refusal to disclose one of a number of documents, Justice Austin "not without hesitation," concluded the 1688 Bill, 300 years later, served to protect from production Question Time briefs prepared for the Minister and Prime Minister, on the basis that disclosure would "impeach the proceedings  of Parliament."

SA District Court finds Ombudsman erred on privilege law

One of the issues mentioned in the recent post about Freedom of Information issues in the South Australian Ombudsman's Annual Report has been the subject of a decision by Judge Herriman of the District Court in Legal Practitioners Conduct Board v Wharff [2009] SADC 126, an appeal against findings arising from an investigation by the Acting Ombudsman of a complaint about refusal of access to documents. After years of contention and rejection of the idea, the Conduct Board appears to have accepted [19-20] that it is an agency for the purposes of the SA FOI Act as the issue was not argued in the proceedings. (I notice the status of similar bodies under FOI is a current hot issue in far away Scotland.)

The important issues in the decision concern legal privilege. Judge Herriman was not satisfied [55] the Acting Ombudsman correctly applied the law in reaching his determination and made orders remitting the matter for redetermination in accordance with guidance provided [60] on the proper application of the law concerning privilege. Included in the judgment are these observations :

No severability in common law privilege

"It is not, therefore, appropriate to look at challenged factual material from the standpoints that (a) some part of it is not legal advice or (b) it has been ascertained by the author or by others in circumstances which did not themselves attract privilege or (c) it contains material put there for a separate purpose. If a court is satisfied that the dominant purpose of a communication otherwise meets the required test then, ordinarily, the entire document will enjoy privilege and no question of severability should arise."

The SA FOI Act enshrines a different notion

Judge Herriman [60(2)] was

"not satisfied that the exemption test applicable under clause 10(1) of the FOI Act is equivalent to or co-extensive with (common law privilege.) Had the legislators intended such a result, they might simply have said so. Indeed, the Commonwealth Freedom of Information Act 1993 expressly provides (s 42(1)):

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

But here, clause 10 provides that a document is exempt if ‘it contains matter that would be privileged’ on the ground of legal professional privilege. That phrase appears to me to introduce a concept that common law authorities have not squarely dealt with. They focus upon the question of whether a whole document is privileged, not on whether ‘matter’ contained within it might be....

It appears to me that the legislature has here (in clause 10) embraced a form of exemption that is considerably wider than that which would apply at common law. It looks not at the dominant purpose of the document itself but, rather, whether there is matter contained within it that would be privileged.

Under the FOI Act where part of a document contains privileged matter, the entire document is exempt

"..if a discrete part of a document can be so characterised, then the whole document can be said to ‘contain’ privileged material and a clause 10 exemption ought be available, notwithstanding that the dominant purpose of its creation as a whole document may not otherwise satisfy the common law test."

(Comment:I can't recall this issue arising elsewhere in jurisdictions that use the same formulation in FOI legislation, but would be interested in any comments.)

Judge Herriman found that the Acting Ombudsman had erred in law in addressing issues about whether privilege properly applied to agenda papers prepared for Board consideration in disciplinary proceedings:

"Once he found certain parts of an agenda did contain legal advice, the basis for a clause 10(1) exemption necessarily emerged and he erred in then proceeding to determine the matter by considering the dominant purpose of the whole document. Further, he did not properly direct his mind as to whether such material amounted to ‘evidence gathered for the purpose of litigation’

Judge Herriman added that if the FOI privilege and common law were co-extensive, the Ombudsman had "wrongly failed to consider the appellant’s argument that some factual matters in the agenda were necessarily intertwined with legal advice and should therefore also be part of any privilege claim"; had "misapplied the law and applied too narrow a test in approaching litigation privilege on the footing that ‘the dominant purpose test aside’, it could not be said that the documents in question could be ‘used in or aid the conduct of litigation’;and had "failed to turn his mind to the distinction between documents prepared by solicitors employed by the Board in the exercise of investigatory and legal advisory functions."

There were also errors in the way the Acting Ombudsman had addressed the public interest test in connection with a claim for exemption of internal working documents.

Statutory legal professional privilege

A Queensland reader (thanks) has pointed out that the question of legal professional privilege for communication with NSW Parliamentary Counsel in the drafting of legislation-one of the issues in the Betfair/Sportsbet discovery litigation- wouldn't arise there because statutory legal professional privilege is conferred by Section 9A of the Legislative Standards Act:

9A Application of legal professional privilege to office

(1) This section applies to communications made in or for the performance of the office’s functions under section 7(a) to (i) or a function incidental to those functions. (Comment-in essence in drafting, and the provision of advice)

(2) Confidential communications between a client of the office, and the Parliamentary Counsel or any member of the office’s staff, are subject to legal professional privilege.

Examples of office’s clients—
1 a Minister to whom the office provides advice on the application of
fundamental legislative principles to proposed subordinate
legislation drafted by the office
2 a member who asks the Parliamentary Counsel to draft a Bill, an
amendment of a Bill or an instrument to be used in the Legislative
Assembly

(3) Without limiting subsection (2), the communications may not be disclosed by the Parliamentary Counsel or a member of the office’s staff without the client’s consent.

(4) This section has effect despite any other law.

As to other states?

My Queensland correspondent says the only other similar statutory privilege is conferred on communications with Legal Aid lawyers by the Legal Aid Act (Section 75)- I'd be surprised if this is uncommon around the country.