Bentwood Enterprises Pty Ltd and Department of Police

Bentwood Enterprises Pty Ltd and Queensland Police Service
(2001 S0264, 30 April 2002) 

The applicant was proprietor of a property used as a childcare centre and preschool. Logan City Council staff had on a number of occasions attended the property for the purpose of inspecting the centre. On one occasion, QPS officers accompanied Council staff.  The centre operator subsequently lodged a complaint with the CJC as to the conduct of that inspection, which was referred to the QPS for investigation.  In the course of its investigation, the QPS obtained from the Council a copy of a legal opinion received from Council solicitors relating to the conduct of Council staff during a prior inspection.  The applicant sought access to that advice, and to a summary of it contained in a QPS report relating to the investigation of the operator's complaint. The applicant variously submitted that the advice was created for furtherance of an illegal purpose, that privilege in it had been waived by the Council's act of disclosure to the QPS, and that public interest considerations merited its release. 

Assistant Commissioner Shoyer was satisfied from his examination of the legal opinion, and the summary of it, that they attracted legal professional privilege. Neither the common law test for legal professional privilege, nor s.43(1) of the FOI Act, incorporated a public interest balancing test, and therefore the submissions put by the applicant on this point were of no relevance.  He could find no prima facie evidence that the legal opinion was brought into existence in preparation for, or furtherance of, an illegal or improper purpose. He also found that the Council had voluntarily disclosed the legal opinion to the QPS on the implicit mutual understanding that it would remain confidential and only be used for the limited purpose of assisting the QPS investigation, and hence that there had been no intentional, general waiver of the privilege attaching to the legal opinion. 

Applying the principles stated by the High Court of Australia in Mann v Carnell (1999) 74 ALJR 378 and applied in the Office of the Information Commissioenr decision in Noosa Shire Council and Department of Communication and Information, Local Government and Planning (2000) 5 QAR 428, Assistant Commissioner Shoyer found that the conduct of the Council was not inconsistent with the maintenance of confidentiality in the legal opinion, and that there were no considerations of fairness to the applicant that warranted a finding of implied waiver. Consequently, Assistant Commissioner Shoyer upheld the claims for exemption under s.43(1) of the FOI Act.