Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: applied
to the applicant's primary submission that privilege in the documents did not arise, the applicant acknowledges what was said by a Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [67] that '... [s] ince the decision of the majority of the High Court in [Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54] , it is plain enough that legal professional privilege may attach to communications brought into existence by government officers seeking or giving legal advice as to the nature and extent of governmental powers, whether statutory or otherwise: see Waterford at 63-64 per Mason and Wilson JJ and 74-75 per Brennan J.' (Emphasis added) but submits that the nature of the Review Board is such that it could not engage in communications of the kind here in issue in a manner such that those communications could be confidential as against the applicant. The Review Board was obliged to disclose the advice to the applicant as a matter of procedural fairness. This submission is developed in the following way. The Attorney-General's response to the applicant's primary submission is relatively simple. The documents that are the subject of the applicant's motion were clearly brought into existence for the dominant purpose of providing legal advice to the Review Board. The fact that the advice was sought in the context of the Review Board's exercise of its statutory powers does not in any way impact upon the dominant purpose for which the documents were created, nor does it preclude a claim of privilege being made in respect of them. Support for this, he submits, can be found in the majority judgments in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54, especially Mason CJ and Wilson J at 63 64 and Brennan J at 74 75. The Attorney-General submits the fact that Waterford was decided at a time when the sole purpose test was the accepted test for determining legal professional privilege claims, does not impact upon the principles expressed on this issue. I was referred to Webb v Commissioner of Taxation (1993) 44 FCR 312 where Cooper J considered the comments of Mason CJ and Wilson J, and Brennan J in Waterford to support the conclusion that 'the fact that advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it' (at 317). Reference was also made to Rio Tinto , in particular [67] from which the quotation in [7] supra was extracted. I am not persuaded that some over-arching consideration of procedural fairness which, it is alleged, gives rise to an obligation of the Review Board to disclose the relevant documents to the applicant, a proposition itself attended with considerable doubt, means that privilege in the documents did not arise. The applicant's submissions were framed on the basis that it would be wrong to extend the principle of privilege to communications brought into existence for the dominant purpose of seeking or providing legal advice by or to a statutory board or tribunal required by its statute to operate autonomously from the rest of the executive government. However, I see this issue not so much as an extension of the principle enunciated in Waterford but an attempt to carve out of the reasoning processes of the members of the High Court in that case, an exception which is not there; in other words, to read what their Honours said as containing some implied exception so that it is not to be read as applying to staff involved with statutory boards or tribunals, such as staff of the OFLC, the statutory agency which provides secretariat support to the Review Board. I am unable to read into Waterford any such exception. It follows, in my view, that the documents are privileged. It further follows, in my view, that the privilege holder is the Commonwealth. As indicated above, the applicant concedes as much but submits that because the client is the Review Board, the privilege is confined or limited to an emanation of the Commonwealth and does not extend for the benefit of any other emanation of the Commonwealth. The applicant seeks to find support for the submission in the provisions of s 55ZH of the Judiciary Act 1903 (Cth) and cl 10 of the Legal Services Directions 2005 made pursuant to s 55ZH of that Act. Those provisions, it submits, would be rendered otiose if the Commonwealth's privilege was not confined or limited to the Review Board but extended to all its emanations. I do not agree. While cl 10 of the Legal Services Directions 2005 is confined to sharing of legal advice within government, subs 55ZH(1) of the Judiciary Act 1903 (Cth) is not confined to cl 10 of the Legal Services Directions 2005 but extends to any requirement of a Legal Services Direction of the kind described whether the person to whom the information is being provided or the document is being produced is within government or not. Moreover, having regard to the definition of 'Commonwealth legal work' in subs 55ZF(3), in particular sub-par (b)(iii), subs 55ZH(2) is clearly not confined to the provision of information or the production of a document to the Attorney-General, or to a person authorised by him, in which Commonwealth privilege already subsists. So understood, a provision such as a subs 55ZH(4) is necessary to prevent waiver of privilege where the privilege holder is not the Commonwealth. Inherent in the passage quoted from the Full Court's judgment in Rio Tinto at [19] supra, is the conclusion that the act of using legal advice in a way that contributes to a statutory decision does not itself constitute a waiver of privilege. This conclusion was also at least implicit in Waterford : there would have been no point in allowing legal privilege in respect of communications to persons exercising statutory powers if consideration of the advice in the course of exercising those powers would effect a waiver of the advice.