FEDERAL COURT OF AUSTRALIA
British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCAFC 107
SUMMARY
KEANE CJ, DOWNES AND BESANKO JJ
23 AUGUST 2011
MELBOURNE
SUMMARY
1 In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at http://www.fedcourt.gov.au/ together with this summary.
2 The case concerned a request by British American Tobacco to the Secretary of the Department of Health and Ageing (the respondent) under s 15 of the Freedom of Information Act 1982 (FOI Act) for access to a copy of a memorandum of advice provided by the Attorney-General's Department to the Tobacco Policy Section of the then Department of Health Services and Health (DHSH). The advice concerned legal and constitutional issues relating to the generic packaging of cigarettes.
3 The respondent refused the request on the basis that the document was exempt from production under s 42 of the FOI Act because it would be privileged in legal proceedings on the ground of legal professional privilege.
4 The respondent’s decision was affirmed by the Administrative Appeals Tribunal. The appellant appealed the Tribunal's decision under s 44(1) of the Administrative Appeal Tribunal Act 1975.
5 The appellant contended before the Full Federal Court that the legal professional privilege which inhered in the AGD legal advice was waived by disclosure by the respondent. The appellant relied upon five acts of disclosure which, either alone or cumulatively, were said to have effected a waiver of privilege. These acts were:
a reference to aspects of the AGD legal advice in a Government Response paper which was tabled in the Senate;
subsequent publication of the Government Response paper on a government website;
a provision of a summary of the AGD legal advice to the Tobacco Working Group, a group of advisors to government;
a provision of a summary of the AGD legal advice to the Ministerial Tobacco Advisory Group, the group of advisors to government who replaced the TWG; and
the provision of a summary of the AGD legal advice, which had been provided to the TWG, to the appellant in the course of the proceedings before the Tribunal.
6 The respondent submitted that both the tabling of the Government Response paper and subsequent publication were "proceedings in parliament" pursuant to s 16(2) of the Parliamentary Privileges Act 1987 (the PP Act) and consequently could not be considered by the Court for the purpose of determining whether legal privilege in the AGD legal advice has been waived. Additionally, the respondent contended that none of the acts of disclosure relied upon by the appellant were inconsistent with the respondent continuing to insist upon the privilege.
7 It was held by the Full Court constituted by Keane CJ, Downes and Besanko, that legal professional privilege in the AGD legal advice had not been waived.
8 The Court accepted the respondent’s argument that the tabling of the Government Response in the Senate was protected by parliamentary privilege under s 16(3) of the PP Act.
9 The Court did not accept the respondent’s contention that s 16(3) extended to the publication of the Government response on a departmental website. In this regard, the Court affirmed the test for implied waiver stated in Mann v Carnell (1999) 201 CLR 1 at [28]-[29] and affirmed in Osland v Secretary, Department of Justice (2008) 234 CLR 275 that waiver of legal professional privilege will occur if the conduct of the person seeking to rely upon the privilege is inconsistent with the maintenance of the privilege.
10 The disclosure of the gist of a privileged communication does not necessarily effect waiver of the privilege. In this case, it could not be said that the respondent (or the executive government) was seeking to deploy a partial disclosure of the AGD legal advice for any forensic or other advantage.
11 In relation to the provision of summaries to the TWG, the MTAG the Court held that the disclosures were not inconsistent with the maintenance of the privilege and, additionally that the TWG and the MTAG were not “outsiders” in relation to the government.
