FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309

ORDERS

THE COURT ORDERS THAT:

1.    Leave to the applicant to uplift and inspect the six documents that are the subject of the claim for privilege is refused.

2.    Costs reserved.

3.    The Secretary and the Minister file and serve submissions as to costs by 4.00 pm on 13 March 2019.

4.    The applicant file and serve submissions in response by 4.00 pm on 20 March 2019.

5.    The Secretary and the Minister file and serve submissions in reply by 4.00 pm on 22 March 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant has brought a proceeding against the Registered Organisations Commissioner (Commissioner) as one of two respondents seeking declarations, orders in the nature of certiorari and prohibition, and injunctions directed to a decision of the Commissioner to conduct an investigation into whether, in relation to alleged donations made by the applicant in the financial years ending 30 June 2006 and 30 June 2008, certain provisions of the Workplace Relations Act 1996 (Cth) had been contravened. The proceeding is currently part-heard before Bromberg J.

2    These reasons relate to my ruling upon objections to the inspection of documents that have been produced by the Secretary of the Department of Jobs and Small Business (Department) pursuant to a subpoena to produce documents issued at the request of the applicant. The objections have been taken by the Secretary, the Department, and by the current Minister for Jobs and Small Business, the Hon Kelly O’Dwyer, who is the Minister administering the Fair Work Act 2009 (Cth), and the Fair Work (Registered Organisations) Act 2009 (Cth). At the hearing of the objections Mr Borenstein QC and Ms van Proctor appeared for the applicant, and Dr McNicol and Mr Chaile appeared for the current Minister, and for the Department. Towards the conclusion of the hearing, Dr McNicol announced that she appeared for the Secretary of the Department. Mr Horan QC had appeared for Senator the Hon Michaelia Cash who was a subpoenaed witness at the hearing before Bromberg J. By leave, Mr Horan addressed some factual matters that arose in relation to the course of the hearing before Bromberg J.

Background

3    The applicant advances a number of grounds of review in the proceeding. Amongst those grounds, is an allegation that the Commissioner’s decision to conduct an investigation under s 331(2) of the Fair Work (Registered Organisations) Act 2009 into certain donations alleged to have been made by the applicant was affected by jurisdictional error, because the decision was made for an improper political purpose. The political purpose is alleged to have been that of Senator Cash or members of her office. The applicant seeks to establish the political purpose by inference from a number of facts, including two letters dated 15 August 2017 and 17 August 2017 sent by Senator Cash to the Commissioner, both of which were titled, “Referral of matters relating to the Australian Workers Union”. The applicant alleges that the Commissioner was aware of the political purpose, that he took steps in furtherance of the Minister’s referrals, and commenced the investigation for the improper purpose of aiding in, assisting, or promoting the political purpose. The Commissioner denies the allegation of improper purpose.

Documents produced on subpoena

4    In response to the subpoena issued at the request of the applicant, the Department identified 13 documents as falling within its scope. Of those documents, the Department objected to the parties inspecting or otherwise having access to six documents on the ground that they are privileged at common law: see, Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) (2011) 283 ALR 299 at [6]-[9] (Perram J).

5    Under r 24.20(3) of the Federal Court Rules 2011 (Cth) a person may inspect a document produced on subpoena only if the Court has granted leave and the inspection is in accordance with the leave. Rule 24.20 provides for a procedure by which objection to inspection may be made by an addressee to a subpoena, and for the hearing and determination of that objection. The terms of r 24.20 are consistent with the three stages described in National Employers’ Mutual General Insurance Association Limited v Waind [1978] 1 NSWLR 372 at 381, namely –

(a)    compliance with the subpoena by production of documents to the court;

(b)    the determination of any objections to any party inspecting the documents, and leave to inspect the documents; and

(c)    the use of the documents in court, including by tendering the documents in evidence.

6    At this point, I am concerned with the second stage, namely the determination of objections to inspection of the six identified documents on the grounds that they are subject to a claim of common law legal professional privilege. The basis of the claim for privilege, broadly speaking, is that the six documents constitute communications relating to requests for legal advice, and legal advice. The applicant does not dispute that the documents were once privileged, but submits that any privilege in the six documents has been waived.

7    The claim for privilege in relation to five of the six documents was supported by an affidavit sworn by Mr Jeremy O’Sullivan on 22 February 2019, and counsel for the applicant accepted that the sixth document should be treated in a like manner. The six documents are as follows –

(a)    an email sent at 6.08pm on Tuesday 15 August 2017 from Ben Davies (who was at that time the chief of staff to the then Minister for Employment, Senator the Hon Michaelia Cash) to Rachel Volzke, (senior executive lawyer (acting), WRLG, Department of Employment);

(b)    an email sent at 6.21pm on Tuesday 15 August 2017 from Rachel Volzke to Ben Davies;

(c)    an email sent at 6.25pm on Tuesday 15 August 2017 from Ben Davies to Rachel Volzke;

(d)    an email sent at 2.30pm on Thursday 17 August 2017 from Ben Davies to Jeremy O’Sullivan, who was at the relevant time chief counsel of the Workplace Relations Legal Group of the Department;

(e)    an email sent at 3.09pm on 17 August 2017 from Mr O’Sullivan to Ben Davies; and

(f)    an email set at 3.40pm on Thursday 17 August 2017 from Rachel Volzke to Mr O’Sullivan that records legal advice.

8    The above descriptions of the six documents are based upon those in Mr O’Sullivan’s affidavit and a schedule of documents provided to the Court by counsel for the current Minister and the Secretary of the Department. I have not inspected the documents, and no party requested that I do so: cf, Grant v Downs (1976) 135 CLR 674 at 677, 688-689, 692; Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49 at [52].

9    Mr O’Sullivan’s affidavit was admitted without objection. Mr O’Sullivan deposed to the fact that, at the relevant times, he was Chief Counsel of the Workplace Relations Legal Group (WRLG) of the Department. He stated that over a period of years he provided advice to a number of ministers responsible for the workplace relations portfolio. He described the WRLG as comprising lawyers employed as government lawyers in the Legal Officer stream within the Australian Public Service, who reported to him. Mr O’Sullivan stated that in turn he reported to the Deputy Secretary for Workplace Relations and Economic Strategy, although he had final responsibility for the provision of legal services and advice. Mr O’Sullivan described the function of the WRLG as being to provide independent legal advice to the responsible minister, as well as officials in the Department and the Australian Public Service more generally. Mr O’Sullivan referred to five of the documents produced by the Department, and deposed to facts supporting the claim for privilege which I need not summarise further, as this aspect of the evidence was not the subject of dispute.

10    I infer that the six documents are communications for the purpose of legal advice relating to the two letters of 15 and 17 August 2017 from Senator Cash to the Commissioner that are relied upon by the applicant to support its claims in this proceeding. It was not disputed by the applicant that the communications were privileged at the time they came into existence. The question in issue was whether the privilege has been lost. The applicant submitted that privilege in the documents had been waived as a result of evidence given by Senator Cash and her former Chief of Staff, Mr Davies, during the course of the hearing before Bromberg J. Senator Cash and Mr Davies were subpoenaed by the applicant to attend Court and to give evidence, and both gave evidence before Bromberg J.

11    For the purposes of this application I received without objection a bundle of documents prepared on behalf of the applicant that included extracts of transcript of the hearing before Bromberg J on 14, 15 and 18 February 2019, and copy letters from Senator Cash to the Commissioner dated 15, 17 August and 26 October 2017. I was also provided with an electronic copy of the complete transcript for the days in question. In addition, I received the following documents –

(a)    a document titled “Morrison Ministry” and dated 25 January 2019 which listed the Hon Kelly O’Dwyer MP as Minister for Jobs and Industrial Relations, and Senator the Hon Michaelia Cash as Minister for Small and Family Business, Skills and Vocational Education; and

(b)    a document titled “Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters”.

Consideration of the issues

12    There are two issues that arise for consideration –

(a)    who was the holder of the legal professional privilege in the six documents that are the subject of the objection to inspection; and

(b)    did Senator Cash, or her former Chief of Staff Mr Davies, or counsel appearing for Senator Cash before Bromberg J, effect a waiver of that privilege?

Issue 1 - who was the holder of the privilege?

13    The question as to who was the holder of the privilege over the six documents arose because counsel for the applicant initially submitted that any privilege that had existed over the six documents had been held by the Minister who had sought and obtained the advice from the lawyers within the Department, namely Senator Cash. The relevance of that submission was that the applicant claimed that Senator Cash had, by her evidence before Bromberg J, waived her privilege in the advice.

14    Dr McNicol sought to meet that claim by submitting that the holder of the privilege was the current Minister, Ms O’Dwyer for whom she appeared, and that Senator Cash did not have the authority to waive the privilege, as she was no longer the holder of the privilege. Initially, Dr McNicol did not claim that the Commonwealth was the holder of any privilege in the six documents, and was initially very clear that no claim was made by the Commonwealth as holder of the privilege. No claim for privilege was made on behalf of Senator Cash.

15    In support of her submission that the current Minister was the holder of the privilege, Dr McNicol relied on a statement from McHugh J in his dissenting judgment in Mann v Carnell (1999) 201 CLR 1 at [63] that it was necessary to determine who owned the privilege, and that this question was determined by the identity of the client in the relevant lawyer-client relationship. In Mann v Carnell McHugh J held at [67] that, at a broad level, the Australian Capital Territory was the client, and at [93] that it was the Executive of the Australian Capital Territory government that controlled access to the documents. In an article, Paulsen, Who “Owns” the Government’s Attorney-Client Privilege? 83 Minnesota Law Review 473 at 486 the author framed the enquiry in similar terms –

Part of the answer to these questions lies in answering the question of just who is the “client” of a governmental attorney in the first place.

16    In Mann v Carnell Gleeson CJ, Gaudron, Gummow and Callinan JJ stated at [16] that the privilege in that case was that of the Australian Capital Territory, but that the arguments had proceeded on the assumption that the respondent (the Chief Minister) was acting within her authority in disclosing the privileged communication, and that the body politic was bound by whatever might have been the consequences of that disclosure.

17    Dr McNicol submitted that in this case the client was “the office of the Minister having portfolio responsibility for the Department’s industrial relations functions (rather than the personal identity of the Minister at the time at which advice was sought and received)”. Dr McNicol submitted that it was the office, and not the individual occupying that office that was the client, and that because the privilege attached to the office, it attached to the current holder of that office.

18    In support of those submissions, Dr McNicol cited a number of cases: Baker v Evans (1987) 77 ALR 565 at 567; R v Bunting (2002) 84 SASR 378 at [44]-[45]; R v Petroulias (No 22) (2007) 213 FLR 293 at [56]; Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333 at 345-347; Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 64-65; and Pasini v Vanstone [1999] FCA 1271 at [44] to [54]. Dr McNicol accepted that none of those cases provides direct support for the submissions that were advanced.

19    I did not find R v Bunting (2002) 84 SASR 378, R v Petroulias (No 22) (2007) 213 FLR 293, Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333, or Pasini v Vanstone [1999] FCA 1271 of assistance in evaluating the submissions that were put. In particular, I did not consider that they supported the submission for which they were cited which was that, “the cases on whether a statutory or governmental office can be the ‘client’ for the purposes of legal professional privilege are consistent with the view that, without more, the human occupant of that statutory or governmental office does not own privilege in documents evidencing legal advice sought in the course of discharging the functions of that office.” R v Bunting concerned whether communications with legal practitioners employed in the Office of the South Australian Director of Public Prosecutions were privileged. One alternative view that was relied upon by Martin J in upholding the privilege was that when the Director was exercising prosecutorial powers, the Crown was the client, and the Director acted as legal adviser. R v Petroulias (No 22) and Bailey v Director-General, Department of Land and Water Conservation concerned the identification of a “client” for the purposes of s 117 and s 118 of the Evidence Act 1995 (Cth). Pasini v Vanstone concerned the special circumstance of a deemed relationship of solicitor and client under s 50 of the Extradition Act 1988 (Cth), and I do not consider that the paragraphs to which I was referred in the reasons of Finn J to be relevant to the issues in the present case.

20    The other cases cited concerned the transmission of privilege to a successor in title, or to a statutory successor of a corporation. In Baker v Evans (1987) 77 ALR 565 Pincus J held that in the case of the dissolved company in issue before him, the former directors were unable to claim privilege over advices furnished to the company. In the course of his reasons Pincus J cited Minet v Morgan (1873) LR 8 Ch App 361, where the plaintiff, who was seeking to establish certain property rights in land, was held to be entitled to claim privilege over correspondence between his predecessors in title and their solicitors. In Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 at 562 Goff J cited Minet v Morgan, and held that it was clearly established that legal professional privilege of a predecessor in title enures for the benefit of the successor. In Surface Technology plc v Young [2002] FSR 25 at [19] Pumphrey J stated that Crescent Farm was authority for the following proposition –

the successor in title to identified property is entitled to assert the privilege of the vendor at least in respect of documents prepared for the purpose of obtaining legal advice in relation to the property transferred and in relation to the advice given.

21    However, it would appear that the principle referred to in Crescent Farm may not apply to vest in a trustee in bankruptcy the privilege of a bankrupt in relation to legal advice concerning assets that are vested in the trustee: R v Dunwoody (2004) 212 ALR 103 at [24]-[25] and the cases cited therein; Shlosberg v Avonwick Holdings Ltd [2017] Ch 210 at [62]-[64]; In re Lemos [2018] Ch 81 at [233], [242].

22    In Bullivant v Attorney-General for the State of Victoria [1901] AC 196 the House of Lords held that legal professional privilege was not destroyed upon the death of a testator-client, but remained. Lord Lindley stated at p 206 –

The privilege is founded upon the views which are taken in this country of public policy, and that privilege has to be weighed, and unless the people concerned in the case of an ordinary controversy like this waive it, the privilege is not gone - it remains.

23    In Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 64, Tamberlin J referred to the principle that a client’s privilege will generally enure for the benefit of his or her successors in title, who are usually the client’s personal representatives in the case of the death of an individual, citing Bullivant v Attorney-General for the State of Victoria. Tamberlin J held that in the case of privilege once held by the dissolved company that was the subject of the case before him, the privilege passed upon the dissolution of the company to the Australian Securities Commission.

24    Dr McNicol sought to invoke the cases relating to succession of title and personal representatives to support a submission that the privilege in the six documents enured for the benefit of the current Minister, and that Senator Cash no longer holds the privilege. Dr McNicol submitted that upon the current Minister being assigned responsibility for the Fair Work Act and the Fair Work (Registered Organisations) Act, the privilege in the six documents passed to her.

25    The difficulty, as I see it, is that while the authorities speak in general terms of privilege being claimed by a successor in title, it is necessary to analyse why that is so. Furthermore, while the authorities state clearly enough that a successor in title may claim privilege, they do not go so far as to hold that the predecessor in title has lost privilege, and there is little analysis of who, in those circumstances, is entitled to waive privilege: In re Lemos [2018] Ch 81 at [203]-[205], [244]. The entitlement of a successor in title to property to claim privilege in associated legal advice rests on the transfer of an interest in property to which the advice relates. The cases of a personal representative may be capable of explanation on the same basis, however the entitlement of a personal representative to claim or waive privilege may not necessarily be related to a property interest to which the privileged communication relates, as R v Molloy [1997] 2 Cr App R 283 (R v Hickey [1997] EWCA Crim 743) illustrates.

26    I do not consider that the cases concerning privileged advices associated with interests in property, and cases concerning personal representatives permit, whether by a process of inductive reasoning or otherwise, the identification of any unified principle that can be invoked in the present case to sustain the submission that the privilege in the six documents passed to the current Minister to the exclusion of the former Minister.

27    In The New Wigmore, A Treatise on Evidence (Aspen Law and Business, New York, 2002), Chapter 6A at §6.5.1, there is some support for the idea that the holder of the privilege is the agency, or the office, or the current agency head –

If the attorney-client privilege applies to government entities, the next question that arises is the identity of the holder. The holder is not any individual government employee. Is the holder the government as a whole or the particular entity that employs the attorney? The prevailing view is that “the government attorney’s client is the specific agency” the attorney represents, not the government as a whole. Given the hierarchical organization of most governments, it can sometimes be difficult to isolate the agency that is the holder. However, if the entity in question has its own legal staff and is authorized to take action such as issuing administrative regulations in its own name, the court is likely to treat the entity as a distinct holder. The current agency head personifies the holder for the purpose of deciding whether to assert the privilege on behalf of the agency. Most civil cases recognize this proposition.

(footnotes omitted)

28    However, having examined the cases cited in the footnotes to the above passage, I have doubts as to whether the statements in §6.5.1 of the text are supported. Furthermore, I am hesitant to adopt the statements of principle in The New Wigmore due to the reasonable likelihood of differences in common law principles and constitutional foundations (see, Baker v Campbell (1983) 153 CLR 52 at 85-86). Much of the debate in the United States concerning the question of the identity of the holder of privilege in a government context has occurred against the background of the investigation of elements of the executive government by independent agencies: In re Grand Jury Subpoena Duces Tecum 112 F 3d 910 (1997) (US Court of Appeals, Eighth Circuit).

29    I raised with Dr McNicol two related questions: (1) whether the Department for whom she announced her appearance was a legal person; and (2) whether the Commonwealth was the holder of the privilege in the six documents. I drew attention to a passage from the report of Waterford v The Commonwealth (1987) 163 CLR 54 at 55, which concerned a claim for privilege over memoranda passing between government lawyers and officers of the Treasury. The underlying issue was whether such advices attracted privilege for the purposes of the exemption in s 42 of the Freedom of Information Act 1982 (Cth). That Act is expressed in terms which require that an “agency” or Minister give access to documents in accordance with the Act. The word “agency” is defined by the Freedom of Information Act as including “Department”, meaning a department of the Australian Public Service. In the Full Court of the Federal Court the Department of Treasury was named as respondent: Waterford v Department of Treasury (1985) 5 FCR 76. The report of the appeal in the Commonwealth Law Reports at page 55 records Mason J as stating –

The Court considers that the Commonwealth is the appropriate party and that it should be substituted for the Department of the Treasury as the respondent.

30    In New South Wales Council for Civil Liberties Inc v Classification Review Board (No 1) (2006) 236 ALR 313, the applicant sought production of two communications of advice from counsel at the Australian Government Solicitor to the Office of Film and Literature Classification. A claim for privilege was made by the Attorney-General. The applicant submitted that although the legal person who would be entitled to claim privilege was the Commonwealth, the client for the purposes of the privilege was the Review Board, and not the Commonwealth, and that privilege should not be extended to the Review Board, which had obligations to accord natural justice which required the disclosure of the communications. Edmunds J rejected these submissions and held that the holder of the privilege was the Commonwealth which was entitled to maintain it.

31    During the course of reply submissions, Dr McNicol stated that she appeared for the Secretary to the Department and that, if the Court held that the Commonwealth was the holder of the privilege in the documents, then the Secretary and the current Minister sought to maintain that privilege on behalf of the Commonwealth.

32    Mr Borenstein QC, senior counsel for the applicant, initially submitted that the holder of the privilege was Senator Cash. However, during oral argument Mr Borenstein stated that he accepted that the Commonwealth was the holder of the privilege, and accepted that Senator Cash was exercising executive power of the Commonwealth in writing the two letters to which the six documents related.

33    I do not accept the submissions put on behalf of the current Minister that the holder of the privilege was the “office” of the Minister. The identification of the holder of the privilege requires that a natural person, or an entity with a legal personality such as the Crown, be identified: Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 509. Neither the “Department” nor the “office” of the Minister satisfies that criterion. Nor do I accept in the terms that were put that Senator Cash was the holder of the privilege in the six documents, and that the privilege was transferred to Ms O’Dwyer. The authorities that were cited in support of that submission do not sustain it. In particular, the authorities relating to successors in title to property that were relied upon have little to say about whether a successor in title can waive privilege to the exclusion of the rights of a predecessor in title. It was an essential element of Dr McNicol’s submission that upon the transfer of the privilege to Ms O’Dwyer, Senator Cash lost any ability to waive privilege in the documents.

34    A more satisfactory analysis is to regard the Crown as the holder of the privilege on the ground that, at the time the letters were prepared and sent, Senator Cash was exercising a function of one of the Queen’s Ministers of State for the Commonwealth: Constitution, s 61, s 64. As I have mentioned, the applicant accepted this to be the case. Dr McNicol accepted that Senator Cash was exercising executive power when sending the letters, but not when she sought legal advice about the terms of the letters. This submission was not developed, and I do not accept it. I consider it artificial to separate the functions of drafting and sending the letters to support a suggestion that sending the letters was part of the Minister’s executive function, but drafting them was not.

35    Attention must then be directed to what I consider to be the real issue, which is what servants or agents of the Commonwealth had authority to waive privilege in the six documents. That issue is to be resolved by reference to legal principles concerning the character of the Crown, and by an evaluation of the evidence.

Issue 2 - Did Senator Cash, or her former Chief of Staff Mr Davies, or counsel appearing for Senator Cash, effect a waiver of privilege?

36    The applicant bears the onus of showing that privilege in the six documents has been waived: New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 at [54]. The inquiry that is mandated by the relevant authorities requires that there be a focus on the circumstances of this particular case: Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [45]; Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [49]. Before considering the question of waiver, I shall set out the relevant factual background, as disclosed by the material before me, which includes the documents referred to in paragraph [11] above, and the transcript of evidence of Mr Davies and Senator Cash given at the hearing before Bromberg J.

37    The parties to the proceeding are the Australian Workers Union as applicant, and the Registered Organisations Commissioner, and the Commissioner of the Australian Federal Police as respondents.

38    Both Senator Cash and Mr Davies were subpoenaed by the applicant to give evidence in the proceeding.

39    Mr Davies was called by Mr Borenstein QC on behalf of the applicant on the morning of Thursday 14 February 2019. Mr Davies stated that his occupation was a policy consultant, working for Orbit Pty Ltd. Mr Davies gave evidence-in-chief from 9.37am to 11.05am (T217-241) with one short interruption. There was then no further evidence given by Mr Davies that day in consequence of time taken by legal submissions that were made to Bromberg J by counsel appearing for Mr Davies, and by counsel appearing for another witness, Mr Lee. Mr Davies was then recalled on Monday 18 February 2019 (T402) and continued to give evidence-in-chief. During the course of that morning the applicant applied for, and was given leave under s 38 of the Evidence Act to cross-examine Mr Davies. Mr Davies was then cross-examined briefly by Mr Parry QC for the Commissioner (T435-441) and he was then excused and the subpoena directed to him discharged.

40    Senator Cash was called by Ms van Proctor on behalf of the applicant on 15 February 2019 at 9.38am (T300). At the commencement of her evidence Senator Cash stated that she had not read any media reports about any evidence given in the case, and that outside of any Parliamentary proceeding, nobody had told her about any of the evidence that had been given by anybody in the case (T301). Senator Cash gave evidence-in-chief with some interruptions until 2.54pm (T375). The applicant then applied for and obtained leave under s 38 of the Evidence Act to cross-examine Senator Cash. Senator Cash was recalled at 3.25pm and cross-examined by Ms van Proctor until 3.53pm (T393), and then briefly by Mr Parry QC for the Commissioner (T393-394). Senator Cash was then excused and the subpoena to her discharged.

41    At the hearing before Bromberg J, Mr Horan QC appeared with Mr Jellis for Senator Cash. Mr Horan informed this court, and Mr Borenstein QC, senior counsel for the applicant accepted, that neither Mr Horan nor any other legal representative of Senator Cash was present in court after Senator Cash was excused. Before Bromberg J, Mr Horan QC foreshadowed objections to evidence relating to discussions between Senator Cash and her staff prior to a Senate Estimates Committee hearing on the grounds of Parliamentary privilege (T61). Those submissions were made by junior counsel for Senator Cash, Mr Jellis (T174-T186). Mr Jellis also made some brief submissions about extending an interim suppression order, which application was not ultimately made (T261-263, 292). Mr Horan also addressed a request to Senator Cash to produce some documents (T300) and referred again to objections on the grounds of Parliamentary privilege (T338-340, 343-347, 351, 362-367). Mr Horan made a short submission that a question put to Senator Cash was inaccurate (T369-370).

42    The applicant relied on a number of passages from Mr Davies’ evidence to support the claim that privilege in the six documents had been waived. In relation to advice sought about the contents of the 15 August 2017 letter, Mr Borenstein relied on the following passages from the evidence of Mr Davies given on 14 February 2019 (T230-231) –

Okay. Now, can you tell the court who else was involved in the preparation of the letter?---Departmental officials.

…

Can you identify just for the record, which department you’re referring to?--- The Department of Employment.

And are you able to tell the court how it was that they came to prepare this letter for the Minister?---Advice was sought on the content of the letter.

Who sought that advice?---The Minister’s office.

…

How do you know that it wasn’t [sic] sought? What’s the source of your knowledge?---The Minister requested such advice.

…

Can you tell the court how you know that the Minister requested the advice?--- There was a process of drafting the letter through which departmental advice was sought. I do not recall the particular individual to whom the Minister first made the request, though I was aware of it.

Did the drafting of the letter commence in the Minister’s office?---It did.

Okay. So just to understand, the draft commences in the Minister’s office, advice is sought from it – sought about it, from the Department. Is that the process?---Correct.

And, then, once the advice is sought from the Department, what happens to the draft of the letter?---It is settled in the office, and signed by the Minister.

Okay. And who settled it in – who settled this letter in the office?---Myself and the Minister.

Okay. And in terms of the advice that was sought from the Department, what was the advice that was sought?---In relation to the Minister’s lack of power to direct the Registered Organisations Commission.

And what was the advice on that topic?---The Minister has no power under the legislation to direct the Commission in relation to particular matters.

43    The applicant submitted that the evidence given in response to the last two questions set out above disclosed the substance of the advice.

44    The applicant also relied on evidence given by Mr Davies on Monday 18 February 2019 that the request for advice in relation to the draft of the 15 August 2017 letter was made to the Chief Counsel of the Department of Employment (T430-431) –

… Now, in relation to the preparation of the draft, and the seeking of advice from the department, can you tell the court whether a draft of the letter was sent to the department with the request for advice?---Yes, it was.

Okay. And can you tell court who sent it, or at whose direction it was sent?---Either I sent it, or it would have been sent at my direction

…

… Now, what was the mechanism by which the draft was sent to the department? Was it sent as a letter? Was it sent as an email or a text? How was it sent?---The typical process is to send a copy of the letter by email in draft form.

…

… And would that have been sent to any particular person in the department who was a liaison or someone with responsibility for these sorts of things?---Yes.

And who would that be?---If I recall correctly, it was the chief counsel of the department.

...

And do you recall the name?---Mr O’Sullivan.

…

And in relation to the draft, were there any amendments made to the draft in the department?---There were amendments made. I don’t believe they were made within the department. They were made in response to the oral advice provided.

45    The applicant relied on the following evidence of Mr Davies in relation to the letter of 17 August 2017 (T432) –

[D]id this letter – was this letter also the subject of a request for advice from the department?---Yes.

And did the process for seeking that advice follow the same course as with the earlier letter?---Largely.

Well, in what way did it differ?---The first letter, if I recall correctly, involved oral advice which was provided by way of a telephone discussion involving myself, the chief counsel and Minister Cash. On this occasion Minister Cash asked that I have the letter “legaled” – in inverted commas – by the department and I had a discussion with the chief counsel that on this occasion did not involve Minister Cash.

46    In relation to Mr Davies’ evidence, the applicant relied on a submission that at no time did Senator Cash object to the giving of that evidence to support its argument that there had been a waiver of privilege in the six documents.

47    As to Senator Cash’s evidence, the applicant relied on the following evidence in relation to the letter of 15 August 2017 (T317) –

I believe I instructed the staff – I understood that I could not give the registered organisations a direction - - -

...

… I asked the staff to get a form of words from the Department of Employment to bring it to the attention of the Registered Organisations Commission.

48    The applicant also relied on the following evidence of Senator Cash which it submitted was to the effect that she relied upon that advice when approving and signing the 15 August 2017 letter (T320-321) –

When did you first see it [the 15 August 2017 letter], Senator?---See what?

That letter?---When did I first see the letter?

Yes?---When it was presented to me for signature.

Who presented it to you for signature?---It would either have been the relevant advisor or the Chief of Staff. I can’t recall.

Do you know who wrote it?---I don’t know who wrote it, no.

But do you know who approved it?---Well, I approved it.

Did you recall whether there were any drafts?---No. I was only presented with this particular version.

Did you make any inquiries about it?---Other than it had been approved by the Department of Employment as - - -

Do you know who it had been approved by?---Well, the Department of Employment.

And approved as what?---Being a letter that could be appropriately written given that I could not give a direction.

Did you have a discussion with anyone about your not being able to give a direction at that time?---I would have had a discussion with the senior advisor, and possibly the Chief of Staff, in seeking the instructions from the Department of Employment.

…

Did you discuss the contents of that letter, once it was presented to you, with anyone?--- When you – I mean, my senior advisor would have come in and said, “Minister, this is the letter that has been approved by the Department of Employment.” And I probably would have gone through it with her, had a look at it and said, “Yes, that addresses the issues that I have.” And then I may have taken time to actually consider it. But ultimately, I would have then – I have signed the letter.

49    The applicant also relied on a letter from Senator Cash to the Commissioner dated 26 October 2017 in which she stated that as Minister she did not have power to direct the Commissioner in relation to steps that might be taken by the Commissioner to establish the facts in relation to the inappropriate divulging to the media of information about AFP raids. Senator Cash was asked about this letter, and why she thought it was necessary to draw to the Commissioner’s attention that Senator Cash as Minister did not have power to direct, but had not done so in the earlier letters of 15 and 17 August 2017 (T390). The only reference to legal advice in that evidence was in the following exchange which was relied on by the applicant (T390) –

Okay. Well, could you tell the court the truth, please?---I am telling the court the truth, and, your Honour, I wrote the letter myself. There was no input sought from the Department of Employment, unlike the other two letters which I did not write myself, and, in this circumstance, those are the words that I used.

50    The principles concerning waiver of privilege at common law were summarised in Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at [30] –

According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege) (Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 326; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 658). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law (Goldberg v Ng (1995) 185 CLR 83 at 95-96) with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect (Mann v Carnell (1999) 201 CLR 1 at 13 [29]).

51    In relation to implied waiver at common law, such as that arising by the giving of evidence, in Mann v Carnell (1999) 201 CLR 1 at [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ stated –

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank (1993) 35 NSWLR 110, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

52    The applicant submitted that the evidence of Mr Davies and Senator Cash about the nature of the advice, what was submitted by the applicant to be the substance of the advice, and Senator Cash’s alleged reliance on the advice, gave rise to an inconsistency, informed partly by forensic unfairness. The applicant submitted that Senator Cash gave evidence to the effect that she relied upon the advice for an appropriate form of words for the letters, and thereby put that advice in issue. The applicant further claimed that Senator Cash made assertions about her state of mind in sending the two letters in circumstances where there were communications with legal advisers that affected her state of mind.

53    The applicant submitted that the substance of the advice was disclosed by Mr Davies’ evidence. To the extent that the applicant’s submissions relied on the evidence of Mr Davies, the applicant submitted that Senator Cash’s evidence was to be understood in the context of Mr Davies’ evidence, and relied on the failure of Senator Cash to contradict the evidence of Mr Davies. Further, the applicant submitted that the legal representatives of Senator Cash were present when Mr Davies gave evidence, and relied on the fact that the legal representatives for Senator Cash did not on the ground of legal professional privilege make any objection to Mr Davies’ evidence.

54    Many cases relating to waiver of privilege concern the question whether the conduct of parties to litigation in advancing claims, or relying on material that opens privileged communications to scrutiny, or in making partial disclosure of privileged communications, gives rise to the necessary inconsistency: e.g., Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; Benecke v National Australia Bank (1993) 35 NSWLR 110. In those circumstances, unfairness, which may inform the inquiry as to inconsistency, is evaluated in the context of a forensic environment. The present case is not one where the alleged inconsistency involves a party to litigation who has made a claim, or given evidence, such that the conduct is alleged to give rise to any unfair forensic advantage as between parties to the litigation. The Commonwealth is not a party to the proceeding, and nor are Ms O’Dwyer, Senator Cash, or Mr Davies. Senator Cash and Mr Davies attended court and gave evidence as a result of the coercive process of a subpoena. The absence of any forensic advantage in the context of litigation was a point of distinction drawn by Maxwell P in Secretary, Department of Justice v Osland (2007) 95 ALD 380 at [67] –

This was not a case of a party to litigation “deploying” a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication. Nor was it “the laying open of the confidential communication to necessary scrutiny” (DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58]and [61]).

55    The reasons of Maxwell P in Osland for rejecting the claim of waiver of privilege were specifically endorsed as being correct in the subsequent appeal to the High Court: Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [50].

The evidence of Mr Davies

56    As I have indicated, I consider that the Commonwealth is and was at the relevant times the holder of the privilege in the six documents, and this was accepted by the applicant. I do not accept that the evidence of Mr Davies, either alone or in combination with other circumstances, gave rise to an implied waiver of privilege in the six documents. At the time Mr Davies gave evidence, he was not an employee of the Commonwealth, or Senator Cash, or Ms O’Dwyer. No evidence of Mr Davies could, by itself, have been inconsistent with the maintenance of privilege by the Commonwealth.

57    The applicant’s reliance on Senator Cash’s failure to contradict the evidence of Mr Davies cannot be accepted. On Monday 11 February 2019, Bromberg J made an order for witnesses to be out of court (T7). Senator Cash gave evidence on Friday 15 February, after Mr Davies had given some evidence on Thursday 14 February, and before he completed his evidence on Monday 18 February. As I have noted at [40] above, Senator Cash gave evidence that she had not read any media reports about any evidence given in the case, and that outside of any Parliamentary proceeding, nobody had told her about any of the evidence that had been given by anybody in the case (T301).

58    I do not accept that the failure of counsel for Senator Cash to object to Mr Davies’ evidence supports a waiver of privilege. Whilst there may have been an opportunity for counsel for Senator Cash to object while they were present in Court, in the same way that they sought to raise objections to other evidence on the grounds of Parliamentary privilege, it is accepted by the applicant that Senator Cash’s legal representatives were in Court only up until the time that Senator Cash was excused, which was the afternoon of Friday 25 February 2019. The only evidence of Mr Davies up to that point on which the applicant relies is that set out in paragraph [42] above, which included the last answer set out therein upon which the applicant relies as disclosing legal advice. There is no evidence before me to support a finding that the legal representatives for Senator Cash were representing the Commonwealth, or otherwise had any authority of the Commonwealth such that the failure to raise objections might amount to a waiver of privilege by the Commonwealth. Therefore, the failure by counsel for Senator Cash to take objection to the relevant question does not support a finding that there was any act or omission by or on behalf of the Commonwealth which was inconsistent with the maintenance of the privilege. The position may have been different had Senator Cash been the holder of the privilege at the time of the hearing: see, Divall v Mifsud [2005] NSWCA 447 at [10]. However had that been the case, any failure by counsel for Senator Cash to object to the questions to Mr Davies would fall to be evaluated against all the circumstances in order to determine whether such failure amounted to a waiver of privilege.

The evidence of Senator Cash

59    In relation to Senator Cash’s evidence, the applicant submitted that, as Senator Cash was a Minister of the Crown, she had authority to waive privilege on behalf of the Commonwealth, and that her evidence had effected such a waiver. The question whether Senator Cash had authority to waive privilege in the documents on behalf of the Commonwealth involves issues of fact and law. To the extent that issues of law are raised, they involve the questions of what acts, and of whom, are capable of binding the Commonwealth. In Hogg, Monahan & Wright, Liability of the Crown (4th edition, Carswell) the authors suggest at p 16-17 that it is helpful to think of the Crown as a corporation, and they refer to legal writing proposing that the organisation of a state is essentially the same as that of a corporation. In The Truculent [1952] P 1, Willmer J made a similar comparison between the Board of Admiralty, which was presided over by the First Sea Lord, and the board of directors of a company. Willmer J stated –

… just as in the case of some companies an individual member of the board may be authorized to act in the name of the board, so that his act is in law the act of the company, so also in the case of the Admiralty an individual member of the board may act in the name of the board as a whole.

60    In The Truculent, the Crown (the Admiralty) sought to limit its liability for damages in relation to a collision involving a submarine and a ship. This required the Admiralty to demonstrate no “actual fault or privity” for the purposes of the limitation of liability provisions of the Merchant Shipping Act 1894. Willmer J held that there was fault in relation to the lights exhibited by the submarine, and that the responsibility for the lights fell to the Third Sea Lord, who was the directing mind of the Admiralty for that purpose.

61    As to evidence in this application, apart from the table titled “Morrison Ministry” referred to in paragraph [11(a)] above, there was no direct evidence before me concerning administrative arrangements, or concerning the question of authority over Commonwealth information and documents. While section 19 of the Acts Interpretation Act 1901 (Cth) makes provision for the identification of a relevant Minister for the purpose of references to a “Minister” in Acts of Parliament, it is of no direct application to the issue at hand here. On the evidence such as it is, I would infer that the current Minister is entitled to exercise control over the privileged content of the six documents as an incident of her authority as Minister responsible for administering the Fair Work Act, and the Fair Work (Registered Organisations) Act. It follows that with that authority, she might waive or authorise the waiver of privilege in the documents. There may be others within the Commonwealth who have authority to waive the privilege. However, on the state of the evidence I am not satisfied that Senator Cash, who no longer holds a portfolio with responsibility for the relevant legislation, had authority in fact to waive privilege in the six documents. Senator Cash did not give evidence on behalf of the Commonwealth: she gave evidence as to events to which she was a witness, and as to her own state of mind. In that respect, she was not in the same position as a party witness. The mere fact that Senator Cash is a Minister of the Crown does not permit me to draw a reasonable and definite inference that Senator Cash had any authority to waive privilege in the six documents. Accordingly, a necessary element of the applicant’s case that the privilege has been waived has not been established.

62    Further, even if Senator Cash had authority to waive privilege over the six documents, I am not satisfied that, by her evidence, she waived privilege. The context here is significant. Senator Cash was a witness, and not a party. Many of the applicant’s submissions might have been apt if it were arguable that Senator Cash had put her state of mind in issue in a proceeding that she was pursuing, or defending, where her state of mind was in issue. But that was not the position here. Senator Cash attended court pursuant to an obligation to do so, and gave evidence in response to questions that were put to her: she did not put her state of mind in issue. Further, fairly read, I do not consider that the evidence of Senator Cash relied on by the applicant and which I have set out in paragraphs [47] and [48] above, went beyond identifying the fact that advice was obtained from the Department as to the form of words for the 15 August 2017 letter. Nor do I consider that the evidence given by Senator Cash in the passage set out under paragraph [49] above disclosed any legal advice, or its substance. The applicant’s submissions depended in part on reading Senator Cash’s evidence and Mr Davies’ evidence cumulatively. I have explained why Mr Davies’ evidence cannot be relied upon to support a waiver of privilege, including the fact that there is no evidence that Senator Cash was aware of the content of Mr Davies’ evidence. There is therefore no inconsistency between the evidence that Senator Cash gave, and the maintenance of privilege in the six documents.

Conclusion

63    For the foregoing reasons, leave to the applicant to uplift and inspect the six documents that are the subject of the claim for privilege is refused.

Associate:

Dated:    7 March 2019