4.1 There are arguments for restricting to particular people the distribution of certain categories of legal advice provided to government. For instance, advice which is particularly sensitive might be circulated within government, or among Senior Executive Service officials, but not circulated to the general public. This chapter examines some of the existing restrictions on the circulation of legal advice and whether or not there are grounds to restrict circulation further.
ACCESS TO GOVERNMENT INFORMATION
4.2 Two important Acts give enforceable rights to access a great deal of government information: the Freedom of Information Act 1989 (NSW) provides that persons may have access to documents created by or in the possession of government departments and agencies, subject to certain important exceptions; and the Administrative Decisions Tribunal Act 1997 (NSW),1 requires administrators who take decisions to which the Act applies to give reasons for those decisions on request.
4.3 Two public officials, the Ombudsman and the Auditor-General, have access to most government documents, except cabinet documents, for the purposes of carrying out their functions.2 The Ombudsman investigates the way in which government power is exercised while the Auditor-General oversees government finance and spending. There are, however, restrictions on access by the Ombudsman and the Auditor-General to information held by government agencies that is subject to legal professional privilege. The Ombudsman Act 1974 (NSW)3 and the Public Finance and Audit Act 1983 (NSW)4 restrict the entitlement of the Ombudsman and the Auditor-General, respectively, to require access to documents that are subject to legal professional privilege, unless that privilege has been waived.
4.4 Some information in government documents need not be disclosed, even in court proceedings. Two important grounds on which government departments or agencies may refuse to provide information, namely public interest immunity and legal professional privilege, are discussed at paragraphs 4.7-4.21. While it may be said generally that citizens now have certain rights of access to government information, government legal advice will often fall into classes of information which remain confidential and to which the public are denied access.
4.5 Apart from the public right of access to government information, there is also the issue of government access to information held by other government agencies. In practice, different sections of the government often do not have access to information held by other government departments or agencies. While there are arguments in theory that the government is a single entity, in practice it may not be easy, efficient or even desirable for one part of government to have access to the legal advice given to others.
LIMITS ON CIRCULATION OF ADVICE
Privilege
4.6 When the law refers to “privilege” it refers to a situation where a person may be excused or prevented from doing something which others are required to do. A court can require a person to surrender relevant documents to the court unless the documents are subject to privilege. This section discusses two types of privilege that are particularly relevant to this Report.
Public interest immunity
4.7 Public interest immunity is the subject of s 130 of the Evidence Act 1995 (NSW) which codifies and clarifies the common law as laid down in Sankey v Whitlam.5 In that case the High Court decided that if the government claims that certain documents or information are privileged from being given in evidence on the grounds of a countervailing public interest (“public interest privilege”), the court itself may examine the material to see whether there are reasonable grounds for claiming that privilege. 6
4.8 Since that case, both State and Federal governments have enacted Freedom of Information laws. The general public policy now expressly embodied in those Acts is openness of government. In particular, the Acts create, and provide means of enforcing, citizens’ rights of access to government information. However, the law generally recognises that, at times, the courts must balance the public interest in access to government information with a competing public interest in confidentiality of that information to ensure the efficient and effective working of government. The advice given by Crown Law Officers may be included in this privileged government information.
4.9 The courts have also recognised that there may be cases in which documents or other information created for the purpose of policy-making, government administration, or other government operations, should be protected from public scrutiny. It has been suggested that this type of privilege is of recent origin and should be confined to material created in the course of government business which is conducted in the public interest and may not extend to all functions of the modern welfare state.7
Legal professional privilege
4.10 When a document is created by a person for the purpose of giving or obtaining legal advice that document is privileged from production in court.8 When a private individual seeks the advice of a lawyer, especially in relation to actual or potential litigation, the law has always maintained that communication between the client and the lawyer is such that the communication should not be required to be part of the evidence that a court subsequently uses to make its decision. In Grant v Downs the reason for this was given:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.9
4.11 It may be argued that, because the Crown represents the whole of the people, when the Crown is a litigant, any documents or information belonging to or in the possession of the Crown are common property and ought not to be kept secret. While this view has some merit, and the public interest in having access to such information has been recognised by Parliament in the Freedom of Information Act 1989 (NSW), there is also a public interest, when the government is a litigant, that it should not be at any disadvantage in the conduct of its litigation, and that it should be entitled to the same professional privilege as its opponents. The argument against privilege ought therefore to be directed at “public interest” privilege rather than at professional privilege.
4.12 To the extent that a legal adviser to government gives information to, or receives information from, a client (the Crown) for the purpose of preparing legal advice, or for the purpose of litigation, the Evidence Act 1995 (NSW)10 precludes that document from being required to be given in evidence in court. It is clear that the courts give a very wide meaning to the expression “legal advice”.11 The advice need not be directed at actual or impending litigation.
Salaried legal practitioners
4.13 In Waterford v Commonwealth of Australia12 it was suggested (on the basis of comments made in Attorney General (Northern Territory) v Kearney13 ) that legally qualified people employed on a salary, for example lawyers employed in a government department and “in-house” lawyers, were not legal practitioners for the purpose of the rules relating to legal professional privilege. It was argued that such lawyers’ employee relationship compromises their ability to act as independent legal advisers. The majority of the court had no difficulty in holding that “salaried” lawyers employed in government departments, especially the Crown Solicitor’s Office, were in the same position as solicitors or barristers in private practice, and as such their communications were subject to privilege if they contained legal advice. Justice Brennan (dissenting on this point) took the view that, generally speaking, salaried lawyers were not lawyers for the purpose of these rules, with the exception of lawyers employed on the staff of the Attorney General of the Commonwealth or the State.
Distinguishing legal advice from policy advice
4.14 There is an obvious argument that documents prepared in the course of advising the government and its agencies on the conduct of specific litigation, either current or pending, should be protected on the same grounds that a private person enjoys privilege of confidential communication with his or her legal adviser. The policy underlying this rule of legal professional privilege is that fair operation of the legal process requires candour of communication between clients and their legal advisers. The government is in no different position to other litigants.
4.15 The government, when represented before the courts, is (or ought to be) in the same position as any client who employs the services of a lawyer. Some documents prepared by legal advisers to government may relate specifically to questions which are being litigated or which may potentially be the subject of specific litigation. At other times, the advice may be of general application, for example, relating to the scope or interpretation of legislation or a rule of common law without any immediate prospect of specific litigation. All this advice could be considered legal advice and may attract legal professional privilege. Crown Law Officers may also be called on to advise on ways of giving effect to various policy options. The distinction between legal advice and policy advice was considered in Waterford’s case. The Court found that it was difficult to distinguish documents produced for the purpose of litigation from those which gave general legal advice. The majority concluded that legal professional privilege, so far as it applied to government legal advice, was not restricted to documents relating to actual or possible legal proceedings. The majority view on this point might be put in the words of Justice Brennan:
In any event, I should think that the public interest is truly served by according legal professional privilege to communications brought into existence by a government department for the purpose of seeking or giving legal advice as to the nature, extent and the manner in which the powers, functions and duties of government officers are required to be exercised or performed. If the repository of a power does not know the nature or extent of the power or if he does not appreciate the legal restraints on the manner in which he is required to exercise it, there is a significant risk that a purported exercise of the power will miscarry. The same may be said of the performance of functions and duties. The public interest in minimizing that risk by encouraging resort to legal advice is greater, perhaps, than the public interest in minimizing the risk that individuals may act without proper appreciation of their legal rights and obligations. In the case of governments no less than in the case of individuals, legal professional privilege tends to enhance application of law, and the public has a substantial interest in the maintenance of the rule of law over public administration. Provided the sole purpose for which a document is brought into existence is the seeking or giving of legal advice as to the performance of a statutory power or the performance of a statutory function or duty, there is no reason why it should not be the subject of legal professional privilege.14
4.16 On the issue of policy advice, the majority of the Court determined that legal professional privilege could still apply to a document containing policy or administrative advice, provided the “sole purpose” (according to the test laid down in Grant v Downs15 ) of bringing the document into existence was the provision of legal advice. Justices Mason and Wilson stated that:
[m]atters of policy and legal advice may be intermingled in the one document ... The appellant’s submission fails to appreciate that the sole purpose test is a test that looks to the reason why the document was brought into existence. If its sole purpose was to seek or to give legal advice in relation to a matter, then the fact that it contains extraneous matter will not deny to it the protection of the privilege.16
Even though the Commonwealth and NSW Evidence Acts have replaced the “sole purpose” test laid down in Grant v Downs17 with a “dominant purpose” test, the majority decision in Waterford’s case concerning the purpose for which the advice was created would still apply. Legal professional privilege covers documents which are brought into existence for the dominant purpose of giving and receiving legal advice. Such advice, in the case of private clients, is not confined to litigation.
4.17 Nevertheless, a wide range of legal advice is provided to the various branches and departments of government on matters such as the scope of powers and discretions and as to the way in which those powers and discretions might best be exercised. At times the exercise of those powers and discretions may result in litigation, but in other cases it will not. Indeed, the function of such advice may specifically be to avoid the possibility of litigation. It could be asserted that the public has an interest in the way laws are interpreted and implemented by the executive branch of government, as those laws are made by Parliament on behalf of the public, and the legal advice ought to be in the public domain as much as the texts of the laws. Therefore, it could be argued that legal advice on such matters is qualitatively different from legal advice to private clients which the Australian courts find subject to legal professional privilege. This was the argument favoured by Justice Dawson in Waterford’s case,18 but rejected by the majority of the Court. Justice Dawson19 developed an idea which he had advanced in Kearney’s case, namely, that there was a distinction between documents produced by government in the normal course of its operation and policy-making, on the one hand, and those produced for litigation. He said:
Where, however, a government is engaging, not in the legal process, but in the purely executive function of decision-making, there is no reason connected with the administration of justice which could require that any advice which it may be given to assist it in that process should be kept confidential.20
His Honour divided the documents in question in that case into two categories:21 first, communications relating to general matters of policy; and secondly, documents created in relation to specific, actual or apprehended litigation. While considering that documents in the second category clearly fell within the area of privilege, Justice Dawson suggested that the documents in the first category did not, and that for any particular documents it would be possible to separate the legal advice from more general policy advice.22
4.18 However, Justices Mason and Wilson specifically disagreed with Justice Dawson. They said:
[T]here is no warrant to draw an arbitrary line through the functions of government in order to exclude the [legal professional] privilege from those described as of an administrative nature. All the functions of the executive government may be so described. No distinction can be drawn between a decision to grant a pension and a decision whether to defend a claim in tort or contract. The growing complexity of the legal framework within which government must be carried on renders the rationale of the privilege, as expressed in Grant v Downs, increasingly compelling when applied to decision makers in the public sector. The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that this makes for a better legal system. Government officers need that encouragement, albeit, perhaps, for reasons different to those which might be expected to motivate the citizen.23
The remarks of Justice Brennan set out at paragraph 4.15 above also relate directly to this question.
4.19 Because of the broad scope of legal professional privilege in Australia, on the basis of the majority judgements in Waterford’s case, courts are unlikely, without statutory modification of the law, to distinguish between “legal advice” to government relating to actual or possible litigation (which is analogous to the legal advice generally given to private clients) and the more general advice which Justice Dawson calls “policy advice”. Therefore, it is likely that any advice produced for the dominant purpose of providing legal advice to government could be subject to legal professional privilege.
4.20 Justice Dawson also pointed out that documents relating to general policy might separately be subject to executive or public interest privilege and that when considering the scope of client legal privilege or legal professional privilege that possibility should be borne in mind. It could be argued that privileged advice should have only limited circulation. For example, advice which is subject to “public interest immunity” might be circulated to other parts of government but no further; and advice which is subject to “legal professional privilege” might not be circulated any further than the immediate client. This view was also specifically rejected by the majority, though it found some support from Justice Deane.
4.21 The Commission considers that, for the reasons advanced by the majority of the High Court in Waterford’s case, it is not tenable in practice to distinguish between legal advice to government which refers to specific litigation and other legal advice which might be more general. It is preferable to leave the government to decide whether or not to waive any privilege and to release the advice to an audience wider than the original recipient, whether or not confined to the institutions of government.
Arguments for wider circulation
4.22 The wider availability of legal advice to different government departments and agencies may avoid cost, duplication of effort, clashes of policy or embarrassment to other sections of government, such as arose in the Smiles case. It would also assist in upholding “the rule of law” on the assumption that departments and agencies of government will not knowingly contravene clearly advised legal restraints. Wider availability of some legal advice within government might also assist in ensuring consistency in the behaviour of various government departments and agencies, and, therefore, greater public confidence in the machinery of government.
4.23 The decision in Western Australia v Watson24 means that for purposes of civil liability, the knowledge of any Minister will be attributed to government as a whole. That case is also authority for the proposition that Ministers certainly, and probably senior government officials as well, are under a duty to communicate relevant information to each other. It is therefore important, in the interest of protecting government from liability, that legal advice which may be relevant to more than one agency or department be communicated within government.
Circulation to government contractors
4.24 With increasing “corporatisation”, “privatisation” and “outsourcing” of activities traditionally regarded as governmental, many private businesses and individuals are now performing functions which are based in legislation. On the one hand, it may be expected that they can, and should, pay for legal advice which they require in the course of their operations. However, it may be as important for these businesses and individuals to have access to the same type of authoritative advice on such matters as the scope of particular legislation, as it is for officials within government departments and agencies performing similar functions. When similar services are performed for government by a number of different contractors it is essential that they operate consistently, for example, by applying legislation in the same way. Given that legal advice may be essential to the proper functioning of private contractors or state-owned enterprises operating outside the traditional scope of government, these operators should have access to that legal advice if the ethos of competition is to be fully fostered.
4.25 If legal advice is circulated to say, contractors performing functions for government, it is not clear whether in law or in practice it can be confined only to those contractors. It is difficult to envisage policy reasons why any advice which government might wish to circulate to contractors should not be made available to the wider public, as many matters of policy may not constitute commercially sensitive information.
Wider circulation to the public
4.26 It can be argued that if such advice is readily available to the public, the public will have a greater understanding of why powers and discretion of governments are exercised in a particular way. Publication will also afford the public an opportunity to make representations to government to exercise those powers and functions differently. Publication might also ensure that different branches of the government take a similar approach to the exercise of their powers and functions. The Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth) embody the principle that government information is presumed to be publicly available. While some legal advice ought clearly to be kept confidential, in principle legal advice should not be treated differently from other government documents unless a special case is established.
Arguments against wider circulation
Wider circulation within government
4.27 In its submission to ICAC’s inquiry into the Smiles case, the Attorney General’s Department referred to problems in circulating legal advice when there are conflicts between different departments or trading entities of the government arising out of their commercial activities. Situations were also referred to where there may be policy reasons for keeping legal advice to government confidential. The practical difficulties of disseminating advice throughout the various departments, agencies and statutory corporations of government were also raised.25
Wider circulation to the public
4.28 The effect of making the legal advice received by government available to the public may inhibit initiatives by departments or agencies of government to explore the limits of their powers and functions. Legal advice tends to be conservative. It may not be in the best interests of the public that, where Parliament has conferred particular powers or functions on a government institution, these powers or functions should be interpreted in a restrictive way. Failure to seek legal advice, for example on the interpretation of legislation, may lead officials to be overly cautious in their approach, thus frustrating the intention of government. It can also be argued that, if departments and agencies know that legal advice may become available, either within government or more widely, they will be inhibited from seeking legal advice at all, especially when relevant officials suspect that the advice may impede, albeit lawful, the course of action they wish to follow. It is a fundamental principle of our system of government that Ministers, and those accountable through them to the people, will observe and maintain the rule of law. No requirement for the wider circulation of advice should have the effect of preventing or inhibiting them from so doing.
4.29 The Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth) recognise that documents used internally are not normally publicly available. Candour of communication within government requires that all opinions be canvassed and, provided that the final policy documents are available to the public, documents used in preparing them, including legal advice, should remain confidential.
Cost and volume
4.30 Most legal advice sought and received by government departments, agencies and officials relates to specific fact situations. In most cases the advice concerns the application of the law to those specific facts and would therefore be neither relevant nor useful to any part of government other than the one which sought the advice.26 In some situations, circulating advice without information about the context which gave rise to it could result in that advice being misapplied and misinterpreted. A requirement to disclose all legal advice generally to a wider group would involve cost in actually making the advice available, either electronically or in hard copy. More significantly, officials in a large number of departments and agencies would have to spend time reading material which in almost every case would have no relevance to their work.
FOOTNOTES
1. Administrative Decisions Tribunal Act 1997 (NSW) s 49. This Act received Royal Assent on 10 July 1997, but has not yet come into operation.
2. Audit Office of New South Wales, Submission (17 June 1997) at 1-2.
3. Ombudsman Act 1974 (NSW) s 21(3)(b). The Ombudsman may, however, require production of documents held by a public authority that are subject to legal professional privilege, if the Ombudsman’s request is made in relation to a determination by that public authority under the Freedom of Information Act 1989 (NSW), and the documents are claimed to be exempt under that Act on the ground of legal professional privilege: Ombudsman Act 1974 (NSW) s 21B.
4. Public Finance and Audit Act 1983 (NSW) s 36(5)(b). See also New South Wales Parliament, Report of the Auditor-General of 1994, Volume 2 (28 November 1994) at 407 and 409.
5. (1978) 142 CLR 1.
6. See T M Gault, “Public Interest Privileges and Immunities” in P D Finn (ed), Essays in Law and Government: the Citizen and the State in the Courts (2nd ed, Law Book Co, Sydney 1996) Vol 2 at 243.
7. T G Cooper, Crown Privilege (Canada Law Book Inc, Ontario, 1990) at 8-14.
8. This is the effect of the Evidence Act 1995 (NSW) s 118-119 which codifies and somewhat modifies the common law.
9. (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ.
10. Sections 118-119.
11. For example, Baker v Campbell (1983) 153 CLR 52 at 95 per Wilson J; at 114 per Deane J.
12. (1987) 163 CLR 54. See also Austin v Attorney-General’s Department (1986) 12 FLR 22.
13. (1985) 158 CLR 500.
14. Waterford v Commonwealth of Australia at 74-75.
15. (1976) 135 CLR 674.
16. Waterford v Commonwealth of Australia at 65.
17. (1976) 135 CLR 674.
18. Waterford at 101 per Dawson J.
19. Waterford at 100 - 103.
20. Waterford at 100.
21. Waterford at 102.
22. Waterford at 102-103.
23. Waterford at 64.
24. [1990] WAR 248.
25. New South Wales, Independent Commission Against Corruption Report on Investigation into Circumstances Surrounding the Payment of a Parliamentary Pension to Mr P M Smiles: Second Report (April 1996) at 21.
26. NSW Health Department, Submission (2 September 1997).
