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Your speakers:

Michael Stagg, Solicitor VGSO

Greg Elms, Senior Solicitor VGSO

Client Legal Privilege and Public Interest Immunity

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Outline

Client Legal Privilege and Public Interest Privilege

• the new statutory regime;

• developments in case law; and

• the impact for government lawyers.

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Client Legal Privilege

• Creation of the Evidence Act 2008

• What is Client Legal Privilege?

• Retrospectivity

• Developments in Case Law

• Waiver

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Evidence Act 2008

The Evidence Act 2008 came into force on 1 January, 2010

Applies to courts and proceedings in Victoria that are required to apply the rules of evidence.

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What is Client Legal Privilege?

Part 3.10 of the Act creates two distinct types of CLP:

– the ‘Advice Privilege; and– the ‘Litigation Privilege’.

Both are subject to the “Dominant Purpose” test.

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Advice Privilege

Section 118 creates the privilege and states that the following are not to be admitted into evidence:

• ‘confidential communications’; and

• ‘confidential documents’

which were prepared with the dominant purposeof providing legal advice to the client.

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Confidential CommunicationsSection 118(a)

A confidential communication is a communication made in such circumstances that, when it was made:

• the person who made it; or

• the person to whom it was made

was under an express or implied obligation not to disclose its contents, whether or not that obligation arises under law.

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Confidential Communications

The privilege attaches no matter whether the communication involves:

– a client; or– a lawyer; or– a third party.

where the communication is made for the dominant purpose of providing legal advice.

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Confidential Documents

A confidential document is a document prepared in such circumstances that, when it was prepared:

– the person who prepared it; or– the person for whom it was prepared;

was under an express or implied obligation not to disclose its contents, whether or not that obligation arises under law.

Subsection (c) also protects the contents of a confidential document.

Section 118(b)

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Confidential DocumentsSection 118(b) reflects the common law as discussed by the Full Federal Court in Pratt Holdings v Commissioner of Taxation (2004) 207 ALR 217:

In Pratt, it was held that LPP (now CLP) extended to a communication prepared by a third party and provided to the client, so long as the communication was prepared with the dominant purpose of being used by the client to communicate with the client's legal adviser to obtain legal advice.

The communication was an accountant’s report prepared in accordance with instructions from the client.

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Litigation Privilege

Section 119

Privilege again applies to Confidential Communications and Confidential Documents.

The communication and/or document must have been prepared with the dominant purpose of providing the client with professional legal services relating to a proceeding or an anticipated proceeding in which the client is, or may be, or was, or might have been, a party.

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Dominant Purpose

The Advice Privilege and the Litigation Privilege only apply if the dominant purpose of the communication and/or document was to provide legal advice or professional legal services to the client.

The ‘Dominant Purpose’ criterion is more liberal than the previous ‘sole purpose’ test as adopted in the High Court decision of Grant v Downs (1976) 135 CLR 674

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Client-Lawyer RelationshipSection 117(1)(c)

• CLP applies to lawyers who are employees of government departments and bodies.

• There is now no distinction between government and private lawyers for the purposes of CLP.

• The client is allowed to also be the employer of the lawyer, meaning in-house advice is protected.

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Applicable Lawyers

The definition of ‘lawyer’ also includes:– Australian Lawyers (including those without

practising certificates); Commonwealth v Vance (2005) ACTCA 35;

– employees and agents of lawyers; and

– lawyers admitted in foreign jurisdictions.

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Retrospectivity

The Act has had the effect of abolishing the common law in relation to compulsory processes in forums to which the Act applies.

However there is a presumption at common law against the removal of accrued rights.

Will the Act or the common law operate in respect of communications made or created before the commencement of the Act?

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Retrospectivity

Main-Road Property Group Pty Ltd v Pellagra & Sons Pty Ltd (No 4) [2010] VSC 27 by Justice Byrne:

“The first question is whether the claim for privilege should be addressed under the Evidence Act 2008 or under the pre-existing statutory or common law regime. It was first submitted […] that the entitlement to legal professional privilege is a substantial rather than a procedural right and should therefore be governed by the law as it stood in 2003 rather than by the Uniform Act which came into force on 1 January 2010. This submission was not pressed in final address and rightly so”

Decision in accordance with Telstra Corporation v AustralisMedia Holdings (1997) 41 NSWLR 346

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RetrospectivityWhile there is a presumption in statutory interpretation against taking away rights retrospectively, there is no presumption in relation to changing the procedures for the determination of rights.

The Act, not the common law, will apply in respect of communications or documents created before 1 January 2010.

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Developments in Case Law

Betfair Pty Limited v Racing New South Wales

(No 7) [2009] FCA 1140.

Facts:

• NSW planned to make amendments to the Racing Administration Act 1998 (NSW).

• Betfair challenged the conditions imposed on it by Racing NSW and Harness Racing NSW as part of the amended legislation.

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Betfair – Facts and Initial Decision

• Betfair sought a range of documents from Racing NSW and Harness Racing NSW as part of this proceeding.

• The State intervened to stop production of a number of different classes of documents, and raised a number of objections.

• Some of the documents involved instructions from the State to Parliamentary Counsel to draft the amendments to the Racing Administration Act.

• Justice Jagot held that these instructions to Parliamentary Counsel did not attract privilege.

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Betfair - AppealState of NSW v Betfair Pty Ltd [2009] FCAFC 160

“Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. [21]

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Betfair - Appeal

It was held that there was only one purpose of the communication which was to obtain the advice of Parliamentary Counsel.

The draft legislation implicitly contained the advice of Parliamentary Counsel.

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WaiverSection 122 consolidates the previous common law position on waiver.

Privilege in a document is waived if the client or party knowingly and voluntarily discloses the substance of the document to another person; or the substance of the document has been disclosed with the express or implied consent of the client or party.

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Osland v Secretary to the Department of Justice 2008 HCA 37

• Still the leading case on implied waiver

• Emphasises that the privilege is waived where the conduct of the client is inconsistent with the maintenance of the privilege.

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Osland v Secretary to the Department of Justice [2010] HCA 24

• Does not alter the 2008 High Court decision in respect of waiver

• Released the documents pursuant to the ‘public interest exemption’ contained in s50(4) of the Freedom of Information Act.

• Per French CJ, Gummow and Bell JJ:

“The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland’s situation, and alleged inadequacies in the law […] was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents.” [48]

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Public Interest Privilege

Evidence Act 2008 (Vic)

• Part 3.10 – Privileges

• Division 3 – Public interest

– Section 129 – Judicial decisions

– Section 130 – Matters of State

– Section 131 – Settlement negotiations

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codification of the privilege in which -it is well recognised that the classes of immunity are not closed: Australian National Airlines Commission v The Commonwealth(1975) 132 CLR 582 at 591

Matters of State

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Preliminary ProceedingsSection 131A

• Applies Division 1 (client legal privilege)

• & Division 3 (public interest) of Part 3.10 to

pre-trial disclosure.

• any pre-trial disclosure which is objected to on either basis is dealt with as if it were an objection to that information being tendered in evidence eg - subpoena / discovery.

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Preliminary Proceedings

Commonwealth legislation does not yet apply s 131A to Divisions 1& 3.

However -Section 130 of the Evidence Act closely reflects the common law position.

Eastman v The Queen (1997) 76 FCR 9 at 63.

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Case Law

Sankey v Whitlam (1978) 142 CLR 1.

Gibbs ACJ stated (at 38-39) that -The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict…

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Case Law

There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.

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Evidence Act

Section 130(1):If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

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Matters of StateSection 130(4)

‘Matters of State’ include prejudice to:• security and international relations;

• Commonwealth and State relations;

• law enforcement;

• confidential sources of information relating to law

enforcement; and

• proper functioning of government.

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Matters of JusticeSection 130(5)

Matters to be taken into account:

• the importance of the information;

• the nature of the offence or cause of action;

• the likely effect and available means of limiting disclosure;

• whether the information has already been published;

• in criminal proceedings –

the party seeking the information; and

whether the prosecution is to be stayed.

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Claiming PrivilegeSome significant aspects of public interest privilege which differ to other types of privilege:

• The privilege can be asserted by anyone (s130(2)).

• The privilege can apply to documents as a result of -

content; or

a class of document entitled to protection irrespective of its content –

eg, Cabinet documents (Commonwealth v Northern Land Council (1993) 176 CLR 604).

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Claiming Privilege

• The privilege cannot be waived and must be taken up by the court if not claimed by either party

(Zarro v Australian Securities Commission (1992)

36 FCR 40).

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Process

On matters of state -the court may inform itself in any way it thinks fit:

s 130(3).

Claim of privilege over a document -the court may order that the document be produced for inspection: s 133.

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Process

Commonly, a person with appropriate knowledge of the facts, who is preferably at a high level within the organisation will swear an appropriate affidavit claiming public interest immunity.

(Zarro v Australian Securities Commission (1992) 36 FCR 40).

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Sportsbet Pty Ltd v State of New South Wales (No 3) [2009] FCA 1283

Parliamentary documents as a class attracting Public Interest Privilege

The strength or weakness of the public interest protected … does not affect the existence of the immunity. It affects the balancing exercise … (at [28]).

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Sportsbet

Who presents evidence of the public interest in preserving secrecy or confidentiality?

The deponent was the Director-General of the relevant government department.

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Sportsbet

The Director-General:• was not employed by the Department at the time of

the events in question;• had no first hand knowledge of the facts;• had not read all of the discovered documents to

place the claim of privilege in context; and• provided an affidavit which Sportsbet submitted

‘showed a lack of care in its preparation and a propensity for vague assertions.’

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Sportsbet

The court found (at [34]) that the Director-General was the correct person to identify the public interest justifying the claim of privilege.