Alexandria Holdings Pty Ltd and Department of Local Government, Planning Sport and Recreation
(2006 F0164, 22 August 2006)
Section 43(1) – Legal professional privilege - Waiver
The applicant in this matter is the owner of land which was the subject of an application for a significant development in the centre of Brisbane. In 2004, The Minister for the Environment, Local Government, Planning and Women (the Minister) made the decision to call in and subsequently refuse the development application under the relevant provisions in the Integrated Planning Act 1997 (IPA). The documents in issue in this case were two advices provided to the Department by Crown Law, which related to the exercise of the Minister’s power to call in and decide the development application under IPA.
Assistant Commissioner Corby decided that although the documents in issue related to the exercise of an administrative decision making power, the nature of the advice was legal. She was satisfied that the documents in issue were confidential communications made for the dominant purpose of giving legal advice about the proper exercise of the Minister’s statutory powers and therefore satisfied the basic requirements for legal professional privilege.
AC Corby also considered whether the privilege attaching to the documents in issue had been impliedly waived as a result of the Minister listing the advices as documents to which she had reference in her statements of reasons for calling in and deciding the development application. AC Corby decided that the reference to the legal advices as having been considered in the context of a comprehensive statement of reasons was not sufficient to show that an implied waiver of the privilege in the documents in issue had occurred. The documents were exempt under section 43(1) of the FOI Act.