Application of Section 43 FOI Act

Relevant considerations

1. What is a legal proceeding for the purpose of the provision?

The relevant matter must comprise matter that would be privileged from production in a legal proceeding on the ground of LPP. A legal proceeding in this context means a hypothetical, rather than actual or specific legal proceeding.1

2. Would the matter be privileged from production on the ground of LPP?

LPP protects confidential communications between a lawyer and their client, where the communications are made for the dominant purpose of:2

  • giving or receiving legal advice (advice privilege); or
  • use in actual or anticipated legal proceedings (litigation privilege).

The common law elements of LPP must be established for the provision to apply. See Application of Schedule 3, section 7 of the RTI Act for further information.

3. Has LPP been negated?

The privilege may be lost, such as by way of an express or implied waiver. Additionally, LPP will not apply to communications created for an illegal or improper purpose.

See Loss of LPP for further information.

If LPP is negated, the exemption in section 43 will not apply to the relevant matter.

1Hewitt and Queensland Law Society Inc. (1998) 4 QAR 328 at paragraph 30.  
2Esso Australia Resources Ltd v Commissioner of Taxation of the Cth (1999) 201 CLR 49.

Last updated: March 5, 2012