Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: considered
In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' See also Brennan J in Carter at 127; Baker at 94-95, 118 and 130; Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 (' Waterford' ) at 64; Maurice at 487; and Three Rivers at 677 [C] per Lord Carswell. 160 AWB also relied upon the statement by Dawson J in Waterford at 101 that: 'The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege.' 161 In my opinion, it is one thing to extend litigation privilege to adversarial proceedings before the Administrative Appeals Tribunal. The Administrative Appeals Tribunal is vested with statutory authority to determine issues with legally binding consequences. A Royal Commission is not in that position. A Commissioner simply carries out investigations, determines the facts and prepares a report and recommendations. A Commission does not finally determine any rights or obligations. 162 It must also be recognised that legal advice privilege applies in its full extent to legal work undertaken in connection with the Inquiry. Provided the dominant purpose test is satisfied, legal advice provided in connection with the preparation of evidence for possible use at the Inquiry will attract privilege. In the context of the provision of legal advice and the preparation of evidence for a commission of inquiry, the question must be asked whether any communications, falling within the margin between legal advice privilege which is available, and litigation privilege which historically has not been available, justifies the extension of litigation privilege beyond adversarial court proceedings so as to include a commission of inquiry. The location and retention of witnesses, expert or otherwise, is really an adjunct of adversarial litigation and, in my view, does not warrant such an extension.