Exempt information - Legal professional privilege

The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to access documents in the possession or control of Queensland government agencies2. This right of access is subject to some limitations. These limitations include information which is exempt from release under schedule 3 of the RTI Act.3

Schedule 3, section 7 of the RTI Act provides that information which would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP) is exempt from release. Applying this section requires a consideration of the common law requirements for establishing legal professional privilege.

Additional Resources

OIC has a three-part video series available on YouTube: Legal Professional Privilege and key decisions are available in the Annotated Legislation. Legal Professional Privilege – a guide for applicants can be useful to include with decision notices to help applicants understand why access has been refused.

How to apply the LPP exempt information provision

Broadly, for information to be subject to LPP it must be a confidential communication made:

  • in the course of a lawyer/client relationship for the  dominant purpose of seeking or providing legal advice (advice privilege); or
  • for the dominant purpose of use in existing or reasonably anticipated legal proceedings (litigation privilege).

If these elements are satisfied, the agency must still consider if:

  • the privilege has been waived; or
  • the circumstances give rise to the improper purpose exception.

Legal fees

Information which only shows the total legal fees paid by an agency, ie it does not reveal legal advice or representation, will generally not be exempt under this provision, as it does not attract legal professional privilege.4 Given the strong public interest in ensuring effective oversight of the expenditure of public funds it is also unlikely to be contrary to the public interest to release.5 However, where the legal fees were paid by an agency’s insurer’s underwriter instead of the agency, they were found contrary to the public interest to release, although they still did not attract legal professional privilege.6

Elements of LPP - confidential communications

LPP attaches to communications rather than documents,7 however the document which records the substance of privileged communications between a lawyer and client is protected by LPP. The key is whether disclosure of the document would also disclose a privileged communication.8

Not all communications between a lawyer and a client are privileged. To attract LPP, the communication must be confidential.9 Generally, if communications are made in a third party's presence the communication will not have the confidentiality necessary to attract LPP.10 This may be different if the third party is an agent, employee, or contractor of the lawyer or client.

Copies

  • Copies of privileged documents: consistent with the approach that LPP attaches to communications, rather than documents, LPP will attach to copies of privileged documents.
  • Copies of non-privileged documents: these documents can attract LPP if those copies satisfy the dominant purpose test.11 For example, a non-privileged document copied and sent to a lawyer for the purpose of getting legal advice, or for the purpose of inclusion in a brief to counsel,12 will make that copy subject to LPP.13

A document will not be subject to LPP simply because it was copied to a lawyer for their information.14 For example, if a client requests policy advice, copying the request to the lawyer will not make the policy advice or the request subject to LPP.

References to legal advice and other privileged material

LPP extends to any document which directly reveals, or which allows a reader to infer, the content or substance of a privileged communication.15 This principle is particularly relevant when determining whether LPP applies to other confidential legal work carried out by a lawyer while preparing or giving legal advice or during current or anticipated litigation.

LPP can apply to documents which record confidential legal advice or legal work even where those documents are not communicated to the client. Examples include:

  • legal research memos
  • summaries of argument
  • draft pleadings and agreement; and
  • chronologies of facts.16

Advice privilege may also extend, subject to satisfying the dominant purpose test, to notes, drafts, charts, diagrams, spreadsheets and other documents provided by the client in the course of communicating information to the lawyer.17 Whether privilege attaches to these documents will depend on whether disclosure of the information would reveal the privileged communication.18

Similarly, litigation privilege can extend to material which is not communicated to the client but which is obtained by the lawyer for the dominant purpose of use in, or in relation to, existing or reasonably anticipated litigation.19 For example, draft pleadings and draft affidavits may attract LPP even though they are not communicated to the client.

Third party communications

Third party communications can attract litigation privilege, for example where third party communications are created to:

  • obtain legal advice in relation to litigation
  • obtain evidence (such as a witness statement) for use in litigation; or
  • obtain information which could be used to gain evidence for use in litigation.

A non-exhaustive list can be found in Trade Practices Commission v Sterling.20

Third party communications can also attract advice privilege, eg the giving or obtaining of legal advice, even in the absence of existing or reasonably anticipated proceedings.21

Agents versus pure third parties

Communications involving third parties who are agents of the client or lawyer (ie. an authorised representative) may be privileged as though the communications were made by the client or lawyer themselves.

On the other hand, communications made by pure third parties will only attract LPP in limited circumstances. When deciding if a third party communication is privileged it is important to determine the status of the third party.

In Pratt Holdings, a third party loss assessment group was commissioned by Pratt Holdings to prepare a report for the purpose of the company instructing its lawyers with the view to obtaining legal advice.  The loss assessment group were pure third parties, not agents of Pratt Holdings, and at the time the report was commissioned there were no existing or reasonably anticipated proceedings. The majority judgment found that the report was subject to LPP.

Elements of LPP – between a qualified, independent lawyer and their client

LPP only attaches to confidential communications between a lawyer and a client where:

  • the advice is provided by the lawyer in their capacity as a professional lawyer; and
  • the lawyer is appropriately qualified and independent.22

Whether a lawyer is appropriately qualified and independent may be established by proof of the lawyer’s admission to practice as a barrister or solicitor.23 A lawyer employed by a government agency or an 'in-house' lawyer—such as a salaried officer employed as a lawyer for the agency24—may claim privilege if there is ‘a professional relationship which secures to the advice an independent character notwithstanding the employment’.25

Communications between employee lawyers of an agency and their employers as the client (including communications through other employees of the same employer) will be privileged if the relationship is one which establishes that their advice has the necessary independent character despite their employment.

If an in-house lawyer’s advice is affected by their personal loyalties, duties, or interests, they will not have the necessary degree of independence.26 Other factors which may impact the independence of a lawyer include:

  • the role of the legal area within an agency, including whether the legal area provides independent advice and whether legal views depend on policy or administrative objectives;27 and
  • whether the lawyer holds a practicing certificate28 (note, however, that a salaried government legal officer engaged in legal work is not required to hold a practicing certificate under the Legal Profession Act 2007 (Qld)).29

Elements of LPP - dominant purpose test

The purpose for which the confidential communications were brought into existence is vital to determining whether LPP attaches to the communication.30 Confidential communications are only privileged if they are created for the dominant purpose of:

  • giving or obtaining legal advice (advice privilege); or
  • preparing for, or for use in, existing or reasonably anticipated legal proceedings (litigation privilege).31

The dominant purpose is not the primary or substantial purpose32, but rather ‘the ruling, prevailing or most influential purpose’33. If there are two or more purposes of equal importance, it may be that no one purpose can be said to be the dominant purpose.

The intent of the document's author—or the person on whose instructions the document was created—is relevant when determining the dominant purpose but is not determinative.34 While there may be several purposes for a communication's creation, only one of those purposes will be dominant.

The purpose for which the communication is brought into existence is a question of fact which is generally determined by considering:

  • evidence of the intended use
  • the nature of the communication; and
  • submissions from the parties.

Generally, the dominant purpose is determined at the time the communication, or document recording the communication, was created. If the client had paid a legal retainer to the lawyer at the time the documents were brought into existence, it is reasonable to conclude the dominant purpose of their creation was the provision of legal advice.35

Advice privilege

Advice privilege attaches to confidential communications between a lawyer and client (or a client/lawyer and a third party) made for the dominant purpose of obtaining or providing legal advice.36

Advice privilege will also apply if a person directs or authorises a third party (as their agent) to make a communication:

  • on that person’s behalf
  • to a lawyer
  • for the dominant purpose of obtaining legal advice.37

Legal advice has been broadly interpreted to extend to all ‘professional advice as to what a party should prudently or sensibly do in the relevant context’.38 Legal advice does not, however, extend to advice ‘that is purely commercial or of a public relations character’.39

Specific examples of communications made for the dominant purpose of giving or seeking legal advice include:

  • advice given to fulfil the solicitor’s professional engagement;40 and
  • the client’s instructions to the lawyer.

Where the dominant purpose test is met LPP can apply to communications with a third party who is not an agent of the client or lawyer41, for example, with a third party specialist retained to ensure the client obtains accurate advice about their particular circumstances.

Legal advice can go beyond strict formal advice about the law. It can extend to advice as to what would be prudent and sensible to do in the relevant legal framework.42

While privilege does not apply to advice prepared for the dominant purpose of financial, personal, commercial or public relations matters43 or to policy or administrative advice,44 the advice must be characterised as a whole. If it is made up of integrated legal and commercial advice that cannot be disentangled, it can properly be characterised as legal advice.45

Pluta and Queensland Rail46 (Pluta)

In Pluta, the Queensland Rail Board  commissioned a report from their external lawyers. The Right to Information Commissioner found that it was privileged, noting that the Board had expressly resolved to seek legal advice and that the production of the report in response to that resolution involved the:

…application of professional legal skills by way of gathering and marshalling documentary and oral evidence, taking statements, analysing relevant issues and drawing a comprehensible report expressing various conclusions based upon Minters’ analysis of the underlying evidence – work discharged by independent lawyers in a professional legal capacity.  All of this activity was undertaken within the relevant legal context of the governance and probity obligations imposed on QR by various statutory and policy instruments, and the result of that work – the information in issue – can be fairly characterised as ‘advice as to what should be prudently and sensibly done in the relevant legal framework’.[2]

Litigation privilege

Litigation privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of use in, or in relation to, litigation. The litigation must have begun or have been reasonably anticipated at the time the communication was made.

Litigation

For the purposes of litigation privilege, ‘proceedings’ include both judicial and quasi-judicial proceedings.48 Litigation privilege can extend to actual or anticipated litigation in tribunals provided the proceedings are ‘sufficiently analogous to court proceedings to compel a conclusion that the proceedings attract legal professional privilege'.49

Royal Commission hearings are not considered ‘proceedings’ for the purpose of LPP because the Commission does not have the power to make final determinations on a person’s legal rights or obligations.50

Reasonably Anticipated

Litigation will be reasonably anticipated where there is a “real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not”51. Judgement about whether litigation is reasonably anticipated requires an objective view of the circumstances.52

Example

When considering documents on a legal file, litigation privilege may apply to the following types of communications:

  • advice regarding prospects of success in litigation
  • advice regarding a particular stage in the litigation such as an interlocutory application/injunction
  • correspondence with witnesses for the purpose of obtaining evidence to be used in litigation
  • information that may lead to evidence being obtained to use in the litigation.

Litigation privilege also covers third party communications where they are:

  • connected with the lawyer/client relationship; and
  • made for the dominant purpose of use in, or in relation to, existing or reasonably anticipated litigation.53

Example

Communications between a lawyer and a potential witness where the dominant purpose of the communication was for the lawyer to obtain evidence for use in a prosecution.54

Waiver and the improper purpose exception

Even where the tests for LPP are satisfied, documents may not be privileged, either because privilege has been waived or because the improper purpose exception applies.

Waiver of privilege

If privilege is waived, documents are not exempt under schedule 3, section 7 of the RTI Act.55

Privilege can be waived by:

  • intentionally disclosing a privileged communication (express waiver); or
  • engaging in conduct inconsistent with maintaining the confidentiality LPP is intended to protect (implied waiver).

Waiver of legal professional privilege, particularly implied waiver, is a highly contested area of law. Implied waiver can be complex, turnings on the facts of each case, including the objective purpose of the relevant disclosure.56

Express waiver

LPP will be expressly waived when the client or their agent deliberately and intentionally discloses the confidential communications.57 The client’s solicitor may expressly waive the privilege on the client’s behalf, as an agent of the client.58

Compulsory disclosure to regulatory agencies

LPP will not generally be waived if a regulatory body exercises a statutory power to compel the production of privileged material.59 LPP will only be waived if the Act contains an express, unambiguous intention to deny LPP.60

Dishonest or mistaken disclosure

Where confidential communications are disclosed because of dishonesty or fraud, there will be no express waiver.61 Whether mistaken disclosure of privileged documents amounts to express waiver may depend on the consequences of the disclosure.  In certain circumstances, LPP may still be claimed having regard to the absence of significant consequences as well as the delay and measures taken to rectify the disclosure.

For example, LPP was maintained where a solicitor requested the return of the document and identified the mistaken disclosure before the opposing party had benefited from the disclosure.62 However, where cross-examination on the document had already occurred LPP was taken to be expressly waived.63 Further, LPP may be claimed on a document inadvertently disclosed where a ‘reasonable person with the qualities of the actual recipient’ would have realised that the document was mistakenly disclosed.64

Implied waiver

LPP exists to protect confidential communications between a lawyer and client. It will be impliedly waived when the actions of the person entitled to the privilege are inconsistent with maintaining that confidentiality.65 For example, discussing the contents of legal advice in a media interview or in a Facebook post.

Whether someone’s conduct is sufficient to waive privilege will depend on the specific circumstances and the conduct of the person who holds the privilege. Implied waiver may involve:

  • Partial disclosure of a privileged document may not constitute implied waiver of the entire document, if it deals with more than one subject and the disclosed information is severable.66
  • Mere reference to the existence of legal advice is not inconsistent with maintaining privilege. However, if the substance or effect of the advice is disclosed, LPP may be impliedly waived for the entire communication,67 eg ‘legal advice supported [the party’s] position’.68
  • LPP may still be claimed in respect of privileged communications disclosed to a third party for a limited and specific purpose and ‘upon terms that the third party would treat the information as confidential’,69 although not against that third party.70

The improper purpose exception

Where a communication was made as part of an illegal or improper purpose, or a purpose contrary to the public interest, it cannot be privileged.71 It is irrelevant whether the lawyer knew about the improper purpose. This is called the improper purpose exception.72

The improper purpose exception requires the communication to be made for the purpose of achieving an illegal or improper purpose.73 This is not the same as a client seeking legal advice in relation to their past improper conduct, for example where a client has committed fraud and is seeking advice about the possible consequences.

Common issues

Given the complexity of LPP and the sensitive nature of the information to which it may attach, it is important for agencies to be aware of common issues that arise when dealing with information or documents that may be subject to LPP.

  • Documents are not privileged simply because they are on a legal file; the agency must consider each document on the file and determine if it is privileged.
  • In certain cases, it may not be apparent on the face of a document who the author is, to whom it was communicated or the purpose for its communication. This type of evidence is critical in establishing the elements of privilege. If this evidence cannot be ascertained from document itself, an agency must include supporting evidence in the decision or provide it on external review if requested to do so by the Information Commissioner.
  • It is not sufficient that a document simply relates to a matter on which Crown Law advice was obtained.  Each of the elements of privilege must be established in relation to the communication.
  • 1 And the Information Privacy Act 2009 (Qld) (IP Act)
  • 2 References to an agency in this guideline include a Minister.
  • 3 Section 48 of the RTI Act.(footnote text Arial 8)
  • 4 Murphy and Treasury Department (1998) 4 QAR 446 (Murphy) at [20], Ellis and Department of Environment (Unreported, Queensland Information Commissioner, 20 October 1998) (Ellis) at [20]-[32] and VSC and Public Trustee of Queensland (Unreported, Queensland Information Commissioner, 30 June 2008) (VSC) at [49]-[51], considering section 43(1) of the repealed Freedom of Information Act 1992 (Qld) (FOI Act).
  • 5 Kelly and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 March 2002) at [46], Price and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 12 March 2002) at [44]-[46] and VSC at [63]-[66], considering section 45(1) of the repealed FOI Act.
  • 6 Ellis and Moreton Bay Regional Council (Unreported, Queensland Information Commissioner, 27 March 2013).
  • 7 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend) at page 85.
  • 8 Mann v Carnell (1999) 201 CLR 1 (Mann v Carnell).
  • 9 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
  • 10 Subject to third party agents and privileged third party communications.
  • 11 Propend at pages 509, 543–544 and 554.
  • 12 This includes an agency briefing Crown Law, see C79 and Legal Aid Queensland [2020] QICmr 20 (7 April 2020)
  • 13 Propend at page 544
  • 14 Pratt Holdings Pty Ltd and Another v Commissioner of Taxation (2004) 136 FCR 357 (Pratt Holdings) at 366.
  • 15 Propend at page 569; AWB Ltd v Cole (2006) 152 FCR 382 (AWB v Cole No 1) at page 417.
  • 16 AWB v Cole (No 5) (2006) 155 FCR 30 at page 46; AWB Ltd v Cole (2006) 152 FCR 382 at 415; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at page 563; Propend at page553 at page 569.
  • 17 Saunders v Commissioner Australian Federal Police (1998) 160 ALR 469 at pages 471–472.
  • 18 Attorney-General (NT) v Maurice (1986) 161 CLR 475 at page 496.
  • 19 Attorney-General (NT) v Maurice at page 490.
  • 20 Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at page 245-6. Note that a number of these involve agents rather than pure third parties.
  • 21 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt Holdings)
  • 22 Re Proudfoot and Human Rights and Equal Opportunity Commission (1992) 28 ALD 734 (Proudfoot) at page 740; Rich v Harrington (2007) 245 ALR 106 at pages114–117.
  • 23 Waterford at page 70.
  • 24 (Kearney).
  • 25 Waterford at page62
  • 26 Seven Network Ltd v News Ltd (2005) 225 ALR 672 at page 674.
  • 27 Rilstone v BP Australia Pty Ltd [2007] FCA 1557 at paragraphs [20]–[26].
  • 28 Emphasised in Proudfoot at pages 737–738.
  • 29 Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd (2013) QSC 82 at paragraphs [23-24] affirming Vance v McCormack (in his capacity as Chief of Air Force) and Another [2004] ACTSC 85.
  • 30 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 at page 423
  • 31 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 (Esso) at paragraphs [64–73].
  • 32 Grant v Downs (1976) 135 CLR 678.
  • 33 FederalCommissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at page 416 and referred to with approval in Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority (2002) 4 VR 332 (Mitsubishi Electric) at page 336 and AWB Ltd v Cole (2006) 152 FCR 271 (AWB v Cole No 1) at page 411.
  • 34 Sparrow v Apand Pty Ltd (1996) 68 FCR 322 at page 328.
  • 35 Pluta and Queensland Rail [2017] QICmr 4 (16 February 2017); Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2007] FCA 933 at [15]; Brookfield Multiplex Ltd v ILF Partners Pte Ltd (No 2) [2009 FCA 449 at [4]; AWB v Cole (No. 5) 155 FCR 30 (AWB v Cole), Young J stating that where ‘…communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications.’ (At [44].).
  • 36 AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at page 44 (AWB v Cole No 5); Waterford v Commonwealth (1986) 163 CLR 54 (Waterford) at page 95; Pratt Holdings.
  • 37 Pratt Holdings at page359.
  • 38 ABW Ltd v Cole (No 5) (2006) 155 FCR 30 at page 45.
  • 39 ABW Ltd v Cole (No 5) (2006) 155 FCR 30 at page 45.
  • 40 Dalleagles Pty Ltd v Australian Securities Commission and Others (1991) 6 ACSR 498 at page 499.
  • 41 Pratt Holdings at page 386.
  • 42 DSE (Holdings) Pty LTd v InterTAN Inc [2003] FCA 1191, at [31] and [45] (Allsop J).
  • 43 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 4 All ER 948 at page 989; Barnes v Commissioner for Taxation [2007] FCAFC 88.
  • 44 Waterford at pages77 and 85.
  • 45 X and Y v Z [2015] SASC 96 at [31], per Blue J.
  • 46 [2017] QICmr 4 16 February 2017
  • 47 Ibid, at paragraph 18.
  • 48 Attorney-General (NT) v Maurice (1986) 69 ALR 31 at page 41.
  • 49 Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 at paragraph 19.
  • 50 AWB Ltd v Cole (No 5) (2006) 152 FCR 382 at pages 75-76.
  • 51 Mitsubishi Electric at page 341; Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 (Visy) at pages 129–131.
  • 52 Mitsubishi Electric at page 341 and Visy at page130.
  • 53 Trade Practices Commission v Sterling (1979) 36 FLR 244.
  • 54 Carbone v National Crime Authority (1994) 52 FCR 516.
  • 55 Hewitt and Queensland Law Society (1998) 4 QAR 328.
  • 56 Mann v Carnell at page15; Osland at paragraph[45].
  • 57 Goldberg v Ng (1994) 33 NSWLR 639 at page 670.
  • 58 Causton v Mann Egerton (Johnsons) Ltd [1974] 1 All ER 453 at 457.
  • 59 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.
  • 60 ibid
  • 61 ITC Film Distributors v Video Exchange Ltd [1982] 2 All ER 241 at page 246.
  • 62 National Insurance Co Ltd v Whirlybird Holdings Ltd [1994] 2 NZLR 513 at page 517.
  • 63 Re Illawarra County Council (General Conditions of Employment Award) (Unreported, Industrial Relations Commission of NSW, 17 June 1992).
  • 64 Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468.
  • 65 Mann v Carnell at page 13.
  • 66 Churton v Freen (1865) 62 ER 669; Argyle Brewery Pty Ltd v Darling Harbourside (Sydney) Pty Ltd (1993) 48 FCR 1; Carbone v National Crime Authority (1994) 52 FCR 516 at [527] per Hill J.
  • 67 Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at paragraph 34; Federal Commissioner of Taxation v Devereaux Holdings Pty Ltd [2007] FCA 821 at paragraph 8.
  • 68 Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at paragraph 10.
  • 69 Mann v Carnell (1999) 201 CLR 1 at page 14.
  • 70 Mann v Carnell (1999) 201 CLR 1 at page 14.
  • 71 R v Cox and Railton (1884) 14 QBD 153 at [165]; R v Bell; Ex parte Lees (1980) 146 CLR 141 at page 145and Attorney-General (NT) v Kearney (1958) 158 CLR 500.
  • 72 See the discussion in C79 and Legal Aid Queensland [2020] QICmr 20 (7 April 2020) at paragraphs 47 - 51
  • 73 P & V Industries Pty Ltd v Porto (No 3) [2007] VSC 113 at paragraph [27].

Current as at: November 26, 2021