A-G (NT) v Kearney

It is in this situation that the Land Council has asserted that the original regulations were, and the present regulations are, invalid on the ground that they were not made for the purpose of advancing the policy and objects of the planning legislation but for the ulterior purpose of defeating the two land claims by placing the subject lands beyond their reach. The question whether it was open to the Land Council to raise such an issue in relation to the Kenbi (Cox Peninsula) Land Claim was determined in its favour in earlier proceedings in this Court: Reg. v. Toohey; Ex parte Northern Land Council [41] .

Following on this decision the Commissioner, on 2 April 1982, ordered the Northern Territory government and the Administrator of the Territory to disclose on affidavit the documents which were or had been in its or his possession, custody or power relating to and incidental to the making and bringing into force of the regulations and to allow the Land Council to inspect and copy such of the documents as to which there was no objection to their production. I pause here to mention that neither of the parties raises any question touching the precise identity of the Northern Territory government in this context. The government itself has no legal existence but it would seem to have been adopted as a convenient form of reference to the body politic which is established in the name of the "Northern Territory" by the Northern Territory (Self-Government) Act 1978 Cth and which is properly represented in litigation by the Attorney-General. It is convenient in tracing the history of these proceedings to use the expression "the government" to identify both the body politic and the Administrator. The case as it has been presented and argued does not require any distinction to be drawn between them.

In due course the government identified a number of documents in its possession which it claimed to be the subject of legal professional privilege. The list of such documents has been refined from time to time by subsequent affidavits during the course of the litigation and there remains some contention between the parties as to whether some of the documents that still remain on the list would qualify for the privilege even if it were found to be theoretically available in the circumstances of this case. But we are concerned only with the latter question.

On 24 January 1983 the Land Council applied to the Commissioner for an order overruling the privilege claim and following argument on 6 May 1983 the Commissioner reserved his decision. He delivered that decision on 3 February 1984, holding in favour of the Land Council. Although the Commissioner was inclined to the view that the law relating to legal professional privilege did not apply to legal advice to a government from its lawyers on the scope and drafting of subordinate legislation, he nevertheless proceeded on the basis that the law did apply in such circumstances. Having inspected the documents in question, the Commissioner concluded prima facie that they had come into existence in furtherance of a scheme to defeat the land claims and so to evade the operation of the Land Rights Act through an abuse of the power to make regulations conferred by the Northern Territory's planning legislation. He held that a prima facie showing of such an abuse of power fell within the recognized exception that the privilege did not extend to communications in preparation for or in furtherance of crime or fraud. He therefore ordered their disclosure to the Land Council.

The government proceeded to challenge the decision in the Federal Court. It first secured the issue of orders nisi for writs of prohibition and certiorari and later moved to avoid suspected jurisdictional problems by applying for review of the decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 Cth, as amended. It is unnecessary to explore any further the practical implications of these procedures.

The Full Court of the Federal Court (Woodward, Fisher and Neaves JJ.) unanimously discharged the orders nisi and refused the applications for review [42] . However, the reasons of their Honours differed. Fisher J. [43] held that the Commissioner "correctly classified the abuse of power upon which the Northern Land Council relied as coming within what is labelled as the "crime or fraud" exclusion from privilege protection", saying that the expression "crime or fraud is used conveniently to cover improper conduct which goes beyond the exercise of civil rights and which is contrary to law, whether civil or criminal". In this case it includes alleged improper conduct on the part of government.

1. (1984) 3 F.C.R. 534. 2. (1984) 3 F.C.R., at p. 546.

On the other hand, Woodward and Neaves JJ. [44] , in a joint judgment, concluded that the Commissioner fell into error in accepting that the alleged abuse of power fell within the "crime or fraud" exception, observing that to find a prima facie case of such abuse means no more than that there has been prima facie an ostensible but not a real exercise of the power, involving no finding even of dishonesty. Their Honours continued:

The course which the Court should follow is charted for it by a consideration of what was said by the High Court in Grant v. Downs [45] and the approach which that Court took in Reg. v. Bell; Ex parte Lees [46] although those cases were concerned with sets of circumstances very different from those which give rise to the matters now before this Court. As was said in those cases the existence and extent of the privilege reflects the extent to which the law accords to the public interest in the due administration of justice, secured by facilitating the representation of clients by legal advisers, paramountcy over the more general public interest that requires that all relevant documentary material be made available. The privilege is to be confined within the strict limits which the principles which underly it require. So that, where paramountcy is to be accorded to a higher public interest than that which supports the privilege, the privilege is displaced. Which public interest is to be paramount is for the Court to resolve "by the familiar process of weighing the respective considerations against each other": Reg. v. Bell; Ex parte Lees [47] , per Stephen J. A clear appreciation of, and adherence to, the principles which underly the privilege will thus point the way to the solution to the question whether in any given case the privilege affords protection against disclosure. Their Honours then proceeded to refine the principle in its application to the relationship existing between a government and its employed legal advisers and with particular reference to the subordinate law-making activities of government, saying [48] : The public interest in the effective conduct of the activities of the modern state requires that the privilege extend to protect the confidential communications between the government and its professional legal advisers where those communications relate solely to the litigation, existing or anticipated, in which the state is or may be engaged or to the obtaining or giving of legal advice. The parliament has recognised as much: see the Freedom of Information Act 1982, s. 42. But those considerations do not apply with the same force, if at all, to communications made in the course of the preparation and formulation of subordinate legislation. Even if the giving of advice can properly be said to be involved in that process, where a case is made that the statutory power to promulgate such legislation has been exercised for an ulterior purpose, the public interest, in our opinion, requires that the privilege which might otherwise attach be displaced. The community's respect for and observance of the law will not be enhanced by the law itself casting a shroud of secrecy around the subordinate lawmaking process, and to do so would be to subvert the principles upon which the privilege is founded. 1. (1984) 3 F.C.R., at p. 544. 2. (1976) 135 C.L.R. 674. 3. (1980) 146 C.L.R. 141. 4. (1980) 146 C.L.R., at p. 155. 5. (1984) 3 F.C.R., at p. 544.

Undoubtedly, if it be right to adopt the test of balancing in each case the competing public interests, there may be special considerations attaching to confidential communications for the purpose of obtaining legal advice relative to the promulgation of subordinate legislation. The Land Council takes the matter further and argues that legal professional privilege can have no operation at all in the context of subordinate law-making. If secrecy is justified in particular circumstances by reference to the public interest then privilege from disclosure should be claimed by way of Crown privilege or public interest immunity as it is now commonly described. As at present advised, I am unable to accept the submission. In substance, it is an argument for denying the application of legal professional privilege in any guise to the relationship of government to its professional legal advisers, leaving the entire field to be determined by reference to the more limited field of public interest immunity. But it has been held that the rationale underlying legal professional privilege is relevant and applicable to a government's relationship with its employed legal advisers: Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [No. 2] [1] (accepted without challenge in the House of Lords [2] ) and followed by Jackett C.J. in In re Shell Canada Ltd. [3] ; cf. also Geraghty v. Minister for Local Government [4] . Woodward and Neaves JJ., in the passage which I have quoted, explain why this should be so. I do not appreciate why legal advice touching the subordinate lawmaking process should fall in a different category. If a local government authority were to seek professional legal advice as to the ambit of its statutory powers with respect to proposed by-laws there would appear to be no difficulty in principle in placing such communications within the privilege. However, having regard to the conclusion to which I have come on the one ground of appeal urged for the appellant, I find it unnecessary to express a concluded view on the question.

1. [1972] 2 Q.B. 102. 2. [1974] A.C. 405. 3. [1975] F.C. 184, at p. 192. 4. [1975] I.R. 300.

The submission advanced for the appellant is that communications between a government and its legal advisers which are found prima facie to have been in furtherance of the making of delegated legislation for a purpose outside the enabling Act are nevertheless protected by legal professional privilege. It is immaterial whether the purpose is deliberately pursued with knowledge that it is beyond power. The principal thrust of the submission is to focus on the so-called exceptions to the privilege in the case of communications in furtherance of crime or fraud in an endeavour to show that the purported exercise of a statutory power for an ulterior purpose is neither a crime nor a fraud within the technical meaning of those words strictly construed and that consequently there was nothing to obstruct the application of the privilege to such a case.

Such an approach is open to question. It takes from the circumstances of decided cases instances where the privilege has been held not to be available and attempts to elevate those instances into rules of law which exhaustively determine when the privilege will not apply. It fails to recognize the importance of flexibility in the operation of a rule which is grounded in public policy. There is support for the view that the first requirement when dealing with a problem such as is raised in the present case is to keep steadily in mind the important purpose which the rule is intended to serve; the second requirement is then to take the circumstances which it is claimed give rise to the privilege and measure those circumstances against the purpose of the rule in order to determine whether or not the operation of the privilege in the circumstances serves that purpose. As I had occasion to say in Reg. v. Bell [5] :

But it would be odd if the privilege extended to protect communications which were directed against the public interest. See also the reasons for judgment of Stephen J. in the same case [6] . However, it should be remembered that the context of those remarks was a case where the strict confidentiality with which the client sought to surround the communication of her address to her solicitor was intended to facilitate her continued defiance of an order of the Court. 1. (1980) 146 C.L.R., at p. 161. 2. (1980) 146 C.L.R., at pp. 152-156.

The learned editor of Wigmore on Evidence [Wigmore, Evidence (McNaughton rev., 1961), vol. 8], par. 2298, p. 577 notes that there is an inclination in the decided cases to limit the exception to crime and civil fraud and continues:

Yet it is difficult to see how any moral line can properly be drawn at that crude boundary, or how the law can protect a deliberate plan to defy the law and oust another person of his rights, whatever the precise nature of those rights may be. On the other hand, it has been asserted that there may be great danger to the public interest that the privilege is designed to serve if the exception were construed too widely. In Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd. [7] , Goff J. (as he then was) said: The principle of the exception is that the communication in such circumstances is not in truth within the scope of professional privilege at all, and the plaintiffs submit that it is no part of a solicitor's duty innocently or otherwise to further any breach of duty or wrongful act. In my judgment that is far too wide. Apart possibly from Williams v. Quebrada Railway, Land and Copper Co. [8] the exception has always been stated as confined to cases of crime or fraud: see for example O'Rourke v. Darbishire [9] and Reg. v. Cox and Railton [10] particularly at p. 170 where Stephen J. quoted from Cockburn C.J. in Tichborne v. Lushington [11] .

I do not consider the principle requires any extension. On the contrary, I think the wide submission of the plaintiffs would endanger the whole basis of legal professional privilege. It is clear that parties must be at liberty to take advice as to the ambit of their contractual obligations and liabilities in tort and what liability they will incur whether in contract or tort by a proposed course of action without thereby in every case losing professional privilege. I agree that fraud in this connection is not limited to the tort of deceit and includes all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances, but I cannot feel that the tort of inducing a breach of contract or the narrow form of conspiracy pleaded in this case come within that ambit.

1. [1972] Ch. 553 at pp. 564-565. 2. [1895] 2 Ch. 751. 3. [1920] A.C. 581. 4. (1884) 14 Q.B.D. 153. 5. (1872) Notes of Proceedings, p. 5212.

In my opinion, the approach outlined by Goff J. and the views expressed in Reg. v. Bell [12] are capable of reconciliation. The principle may be expressed by saying that, generally speaking, the public interest in the protection of alleged confidential professional communications will not be outweighed by the public interest in ensuring that all relevant evidence is admissible save when the professional relation is abused in a manner involving dishonesty that goes to the heart of the relationship. The presence of such dishonesty is enough to cause the privilege to "take flight", to use the words of Cardozo J. in Clark v. United States [13] , because it precludes a true professional relationship from arising: see the remarks of Stephen J. in Cox and Railton [14] . A passage from the judgment of Isaacs J. in Varawa v. Howard Smith & Co. Ltd. [15] is in point. His Honour said:

The words "for the perfect administration of justice" are all important, because, as was pointed out by Turner V.-C. in Russell v. Jackson [16] , the privilege which protects any confidential disclosure between solicitor and client is not intended simply to protect that confidence, but it rests upon the necessity of carrying it out. Otherwise justice could not be administered, as the Courts would not have the proper opportunity and means of administering the law between the litigants. That being the foundation of the rule, says the learned Vice-Chancellor, the Court must, of course, have regard to the foundation on which it rests, and not extend it to cases which do not fall within the mischief which it is designed to protect. 1. (1980) 146 C.L.R. 141. 2. (1933) 289 U.S. 1, at p. 15 [77 Law. Ed. 993, at p. 1000]. 3. (1884) 14 Q.B.D., at p. 168. 4. (1910) 10 C.L.R., at p. 389. 5. (1851) 9 Ha. 387 [68 E.R. 558].

I turn now to consider whether the conclusion I have expressed with respect to the privilege of the citizen is entirely apposite in the case of a claim of privilege by a government in respect of legal advice sought in connexion with the making of regulations. Woodward and Neaves JJ., in the passage I have cited, express the view that any exercise of the regulation-making power for an ulterior purpose would displace the privilege. With all respect, I think that is too wide. Where legal advice is sought with reference to the making of regulations for a purpose which is believed to be consistent with the scope and objects of the enabling legislation, in my opinion the privilege should attach to those communications notwithstanding that it is alleged that the regulations are beyond power and notwithstanding that some secondary motive unrelated to the statutory power is also present. The purpose which the privilege is designed to serve is in no way denied when legal advice is taken in those circumstances. In my view, the implications for the privilege would be serious if an allegation of ultra vires, based on a genuine but mistaken view of the scope of the power, were sufficient to expose a government to discovery of confidential professional communications. It must be remembered that whatever rule is found to apply to government law-making will find a close parallel in the case of the exercise of a local government's power to make by-laws. Conversely, if the advice is sought in the deliberate pursuit of a purpose which is known to be beyond power, then in those circumstances the public interest cannot concede to a government any right to withhold relevant material from scrutiny in the courts. The distinction between a deliberate and a mistaken misuse of power is to my mind of crucial significance.

Counsel for the appellant argues against the drawing of such a distinction on the ground that there is single category by reference to which regulations will be held invalid because made for an ulterior purpose. The test is an objective one. That may be so when testing regulations for validity but the question is a different one when the issue is whether legal professional privilege may be claimed in respect of certain communications. The test goes to the professional quality of the relationship. That quality depends on the good faith, the integrity that the client brings to the consultation, not upon the correctness or otherwise of the advice that may be given.

Applying these principles to the present case, I think the appeals must be dismissed. The appellant does not challenge the Commissioner's prima facie finding that "there is a bona fide and reasonably tenable charge that the law was being evaded by the making of regulations not contemplated by the Act". He spoke of the communications coming into being "as part of a scheme to defeat the land claim". With some hesitation, I conclude that the prima facie finding is that the communications were undertaken with the knowledge that the planning legislation was being resorted to otherwise than for a bona fide planning purpose. That this is so is borne out by the fact that counsel's argument was directed strongly to the point that the only recognized exception to the privilege is in respect of communications in furtherance of crime or fraud and that that exception has no application to an abuse of statutory power even if that abuse be deliberate. For the reasons I have given, the submission fails, with the consequence that the appeals must fail also. I think it wholly inconsistent with the reason for the privilege that it should protect a government's deliberate abuse of its statutory powers. In this regard, the exception for fraud should be understood in the broad manner described by Goff J. in Crescent Farm [17] . It includes all forms of dishonesty, including "trickery and sham contrivances".

Of course the validity of the regulations is not determined by the result of these appeals. It will remain for the Commissioner to consider, on the hearing of the claim, whether in fact the regulations were made for a bona fide town planning purpose based on the future urban needs of the towns in question and if so the consequences that flow from such a conclusion.

These appeals arise from two applications made by the Northern Land Council to the Aboriginal Land Commissioner under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth. The applications, which are made on behalf of Aboriginals asserting traditional land claims, have become known as the Jawoyn (Katherine Area) Land Claim and the Kenbi (Cox Peninsula) Land Claim. Under s. 50(1)(a) the area of land to which a traditional land claim relates must be "unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". The terms "alienated Crown land" and "unalienated Crown land" are defined in s. 3(1) of the Act so as not to include land in a town. The word "town" is defined in the same sub-section as having the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and as including any area that, by virtue of regulations in force under that law, is to be treated as a town.

The relevant regulations are the Town Planning Regulations, which were made on 22 December 1978 under the Town Planning Ordinance 1964 N.T., and the current Planning Regulations, which came into operation on 3 August 1979 under the Planning Act 1979 N.T. when that Act repealed the Town Planning Ordinance. They specify substantial areas of land near Katherine and Darwin which are to be treated as a town and, if the regulations were validly made, those areas may not be the subject of an application under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act.

In the course of the Aboriginal Land Commissioner's inquiry into the Kenbi (Cox Peninsula) Land Claim, the Northern Land Council contended that the regulations were invalid because they were made for an ulterior purpose, namely, to frustrate the land claims over the land in question. The Aboriginal Land Commissioner (Toohey J.) held that the motives of the Administrator, whom he regarded as having made the relevant regulations as the representative of the Crown, could not be called in question and refused to make an order for the production of documents relevant to that issue. The Northern Land Council sought to test the Aboriginal Land Commissioner's ruling and in Reg. v. Toohey; Ex parte Northern Land Council [18] this Court held that it was open to it to challenge the relevant regulations on the ground that they were made for a purpose which was not a planning, or a town planning, purpose. Accordingly, in both land claims the Aboriginal Land Commissioner ordered that the government of the Northern Territory and the Administrator of the Northern Territory discover documents relating to the making of the relevant regulations. Objection to the production of certain documents was made "on behalf of the Northern Territory" by the Director-General of the Chief Minister's Department of the Northern Territory on the ground that they were the subject of privilege. The privilege claimed was legal professional privilege, as it is somewhat inaccurately known, the privilege belonging to the client rather than the profession. No claim was made for Crown privilege, as a related branch of the law is, also inaccurately, known: see Reg. v. Lewes Justices; Ex parte Home Secretary [19] . The Northern Land Council applied to the Aboriginal Land Commissioner (by then Kearney J.) for an order that the documents for which privilege was claimed be produced for inspection.

Kearney J. took the view that the documents for which privilege was claimed were of the type to which legal professional privilege might attach but that the privilege had no application because it was prima facie established upon the material before him that the relevant communications came into being as part of a scheme to defeat the land claims. The communications were thus made, in his view, in preparation for or in furtherance of an evasion of the law. After referring to Varawa v. Howard Smith & Co. Ltd. [20] , Kearney J. ordered that the contested documents be produced for inspection by the Northern Land Council.

The Attorney-General for the Northern Territory then sought and obtained in the Federal Court orders nisi for writs of prohibition and certiorari directed to Kearney J. An application was also made for relief under the Administrative Decisions (Judicial Review) Act 1977 Cth to overcome anticipated jurisdictional problems. The Full Court of the Federal Court dismissed the application under the Act and discharged the orders nisi for prerogative relief. It is against those decisions that these appeals are brought.

Speaking for myself, I have some difficulty in seeing how the prima facie finding of the Aboriginal Land Commissioner extends to some of the documents which seem to be comprehended by his order. For example, those documents would appear to include documents comprising "preparation of the Northern Territory government's case before the Aboriginal Land Commissioner in the land claim on matters arising out of the Regulations in question". In making his finding the Aboriginal Land Commissioner clearly had in mind the exception from legal professional privilege of communications which amount to participation in a crime or fraud. But however broadly one construes that exception, particularly with regard to what constitutes fraud, it is concerned with the furtherance of a crime or fraud and has never extended to communications for the legitimate purpose of being defended against a claim, even a claim of a crime or fraud: see Reg. v. Cox and Railton [21] ; O'Rourke v. Darbishire [22] . However, any attack upon the prima facie finding of the Commissioner was expressly disclaimed before us and we must, therefore, proceed upon the basis that it properly extends to all the documents to which the order relates. The question is then whether the evasion of the law which the Commissioner describes is sufficient to defeat the claim for privilege for those documents.

1. (1884) 14 Q.B.D. 153, at p. 175. 2. [1920] A.C. 581, at p. 632.

The majority in the Full Court of the Federal Court below (Woodward and Neaves JJ.) thought that the exercise of a statutory power to make regulations with an ulterior purpose in mind does not involve fraudulent or illegal conduct within the meaning of the exception to legal professional privilege. That view finds support, I think, in the cases.

It is true that different expressions are to be found in the cases to explain what is meant by crime or fraud in the present context: "any unlawful or wicked act" (Annesley v. Anglesea [23] ); "a criminal or unlawful proceeding" "fraudulent contrivance, or any illegal proceeding", "an improper or an illegal act", "illegality or fraud or trickery" (Bullivant v. Attorney-General (Vict.) [24] ); "crime or civil fraud", "wrong-doing", "illegal object" (Varawa v. Howard Smith & Co. Ltd. [25] ); "any illegal or improper purpose", "to frustrate the processes of law", "taint of illegality" (Reg. v. Bell; Ex parte Lees [26] ); "crime or fraud or civil offence" (Baker v. Campbell [27] ). Despite their apparent breadth, these expressions have, I think, been used more to explain the nature of the exception rather than to restrict the scope of the privilege.

1. (1743) 17 St. Tr. 1139, at p. 1229. 2. [1901] A.C. 196, at pp. 201, 203, 205, 206. 3. (1910) 10 C.L.R., at pp. 386, 387, 390. 4. (1980) 146 C.L.R., at pp. 145, 156, 162. 5. (1983) 153 C.L.R. 52, at p. 86.

In Reg. v. Cox and Railton [28] , Stephen J. emphasized that "every precaution should be taken against compelling unnecessary disclosures" and in Varawa v. Howard Smith & Co. Ltd. [29] , Griffith C.J. doubted whether the exception had ever been extended beyond crime or fraud. More recently in Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd. [30] , Goff J. also expressed the view that the exception had always been confined to cases of crime or fraud. He did not consider it required any extension, saying:

I think the wide submission of the plaintiffs would endanger the whole basis of legal professional privilege. It is clear that parties must be at liberty to take advice as to the ambit of their contractual obligations and liabilities in tort and what liability they will incur whether in contract or tort by a proposed course of action without thereby in every case losing professional privilege. 1. (1884) 14 Q.B.D., at p. 176. 2. (1910) 10 C.L.R., at p. 385. 3. [1972] Ch. 553, at pp. 564-565.

In Reg. v. Bell; Ex parte Lees [31] privilege was claimed for an address which had confidentially been communicated by a wife to her solicitor when seeking advice to protect her interest in the matrimonial home. The wife was, however, concealing her whereabouts and those of a child in defiance of a custody order made in favour of her husband. This Court held that privilege did not attach to the wife's address, but it does not appear from my reading of the judgments in that case that the decision represents any extension of the crime or fraud exception. There was clear authority for the proposition that a solicitor is obliged to give to a court any information, including his client's address, which will enable the court to discover the whereabouts of a ward of court whose residence is being concealed from the court and that such information may not be the subject of a claim for professional privilege: Burton v. Earl of Darnley [32] ; Ramsbotham v. Senior [33] . Gibbs J. decided the case upon this principle saying [34] that as an exception to legal professional privilege he was inclined to think that it was not an extension of the rule in the case of crime or fraud, but rested upon an independent foundation. Wilson J., with whom Aickin J. agreed, also found support in Burton v. Earl of Darnley and Ramsbotham v. Senior, but nevertheless expressed the view that the confidential communication by the wife of her address was tainted with illegality. Stephen J. pointed to the fact that an address is ordinarily something which is not part of any professional confidence (Ex parte Campbell; In re Cathcart [35] ) and declined to accept that in the circumstances of the case the communication of the address in confidence was sufficient to attract privilege. Murphy J. also appears to have thought for his part that privilege had no application because the child's welfare was paramount over the privilege. In this respect he also relied upon Burton v. Earl of Darnley and Ramsbotham v. Senior. It does not seem to me that any real support is to be found in Reg. v. Bell; Ex parte Lees for the extension of the exception to legal professional privilege to encompass evasions or infractions of the law other than crime or fraud.

1. (1980) 146 C.L.R. 141. 2. (1869) L.R. 8 Eq. 576n. 3. (1869) L.R. 8 Eq. 575. 4. (1980) 146 C.L.R., at p. 145. 5. (1870) L.R. 5 Ch. App. 703, at p. 705.

For these reasons I think that the majority in the Court below were correct in concluding that the allegation of an ulterior purpose in the making of the relevant regulations amounts to no more than a claim that there was an ostensible but not a real exercise of the power to make the regulations which does not of itself involve even dishonesty. But that is not an end of the matter as the considerations to which I shall turn in a moment will show. Having regard to those considerations, it is unnecessary to do more than to flag the difficulties which may, in any event, be encountered in any attempt to establish dishonesty in the form of criminal or fraudulent conduct or a criminal or fraudulent purpose on the part of the client which in this case must ultimately be the Crown in right of the Northern Territory since the Northern Territory is, under s. 5 of the Northern Territory (Self-Government) Act 1978 Cth, "a body politic under the Crown". Whilst it may be possible, as Reg. v. Toohey; Ex parte Northern Land Council [36] shows, to impute mala fides to individuals exercising executive functions in the name of the Crown, the imputation of mala fides, let alone dishonesty, to the Crown itself involves more fundamental considerations which require deeper analysis than is either necessary or desirable in this case.

Nevertheless, the identity of the client for which privilege is claimed needs to be noticed for two reasons. The first, which may be dealt with briefly, is that the legal advisers in respect of whose advice privilege is claimed, are salaried employees in the Northern Territory Law Department. This is, however, no reason for denying privilege to communications passing between them and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: see Crompton Ltd. v. Customs and Excise Commissioners [No. 2] [37] ; Geraghty v. Minister for Local Government [38] ; cf. A.M. & S. Europe v. Commission (E.C.J.) [39] .

1. [1972] 2 Q.B., at pp. 129, 136, 138; on appeal [1974] A.C. 405. 2. [1975] I.R. 300, at p. 312. 3. [1983] Q.B. 878, at p. 950.

However, there is another reason why the identity of the client is significant in this case. It is because the Northern Territory acts and was acting in this case in a governmental capacity, thus providing a basis for the operation of another aspect of the law of privilege, namely, that relating to the exclusion of evidence which is prejudicial to the public interest. Privilege of this kind which, despite the inaccuracy, continues to be called Crown privilege, is based upon the general rule that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. A document may be privileged upon this ground either because of its particular contents or because it belongs to a class of documents which should, whatever their individual contents, be immune from disclosure. The nature of Crown privilege has recently been examined by this Court in Sankey v. Whitlam [40] , but there are two aspects of it to which I would draw attention in this case. The first is that it is for the court to decide whether a document should be disclosed and in doing so it weighs the public interest in withholding disclosure against the public interest in the availability of all relevant evidence in order to facilitate the administration of justice.

The second aspect of Crown privilege to which I would draw attention is that although Crown privilege may not be claimed it must nevertheless be applied by a court where it is necessary to do so. Whether a claim for Crown privilege has or has not been made is not in any way conclusive. As Stephen J. put it in Sankey v. Whitlam [41] , " the function of the court, once it becomes aware of the existence of material to which Crown privilege may apply, is always to determine what shall be done in the light of how best the public interest may be served, how least it will be injured".

With this may be contrasted legal professional privilege. It must be claimed and it is not for the court to claim it in the absence of any claim by a party: cf.Great Atlantic Insurance Co. v. Home Insurance Co. [42] . More importantly, once it is claimed it is conclusive, provided that the relevant communication does not fall within the recognized exceptions. It is not for the court to enter upon a balancing exercise as in the case of Crown privilege in order to determine where the publi interest lies in the individual case. It is established that as a matter of principle the public interest lies in preserving the confidentiality of those communications falling within the ambit of the doctrine. As McMullin J. pointed out in Reg. v. Uljee [43] :

It is not now a question of weighing the public interest in each case to see whether the rule should be applied. Whether the principle operates as a bar to the emergence of the truth and to the overall public detriment is not now a relevant legal consideration. The rule is too well established - even if, as Wigmore says, its benefits are "indirect and speculative", its obstruction is "plain and concrete". Notwithstanding this aspect of legal professional privilege, the majority in the Court below thought that "where paramountcy is to be accorded to a higher public interest than that which supports the privilege, the privilege is displaced". They thought that a conclusion might be reached in this and, presumably, other cases, by weighing the respective considerations against each other and, in this respect, relied upon the observations of Stephen J. in Reg. v. Bell; Ex parte Lees [44] . 1. [1981] 1 W.L.R. 529; [1981] 2 All E.R. 485. 2. [1982] 1 N.Z.L.R. 561, at pp. 576-577. 3. (1980) 146 C.L.R., at p. 155.

I am unable to accept this approach. The whole purpose of legal professional privilege is to ensure that professional communications may take place in confidence which will not be violated by compulsory disclosure of them. The policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system. If inroads could be made upon the privilege in individual cases by involving a "higher public interest", its application would become uncertain and the policy behind it would be effectively undermined. Indeed, it may be questioned whether there can be a higher public interest than "the perfect administration of justice": see Bullivant v. Attorney-General (Vict.) [45] .

However, legal professional privilege is only one type of privilege and if a communication for which it is claimed is not only in the nature of a professional confidence but also contains information such that its disclosure may prejudice the proper functioning of government, a court may be called upon to determine whether the public interest is better served by its disclosure or non-disclosure. A determination of that kind does require a balancing of the interest which the proper administration of justice has in the availability of relevant evidence and the interest which the executive government has in the secrecy of some matters of state. It is clear, therefore, that if a document for which legal professional privilege is claimed has come into existence as part of the processes of government, the question of Crown privilege may arise and, if it does, a court may be required to determine that question by weighing the relevant considerations against each other.

It seems to me that in that situation there is no room for the application of legal professional privilege because the considerations which must be taken into account in deciding whether Crown privilege applies must include the desirability of preserving professional confidence between government and its legal advisers, not as a concluded issue, but as a matter to be weighed in the balance. If, on the other hand, the situation may be viewed as one of conflict between Crown privilege and legal professional privilege, then in my view the conflict must be resolved by the application of those principles which govern Crown privilege. Those principles require a court to determine where the public interest lies in each individual instance, an issue which in the case of legal professional privilege has been predetermined as a matter of law.

The number of cases in which the circumstances may call for consideration of Crown privilege will be limited in comparison with the number of cases in which, although governmental functions may be involved, the only question of privilege will be that of legal professional privilege. Crown privilege did not, for example, arise in a case such as Grant v. Downs [46] where a suit was brought against a nominal defendant under the Claims Against the Government and Crown Suits Act 1912 N.S.W. although questions of legal professional privilege did: see also, e.g., The Commonwealth v. Frost [47] ; Geraghty v. Minister for Local Government [48] ; Waugh v. British Railways Board [49] . But the mere fact that the parties have not raised Crown privilege, as in this case, cannot relieve a court from the obligation of considering its application should the circumstances warrant it. There should, therefore, be no occasions when the disclosure of a communication is refused under the doctrine of legal professional privilege in circumstances where its disclosure would have been required as the result of a consideration of competing interests under the doctrine of Crown privilege. Moreover, if the individual consideration of a particular case under the doctrine of Crown privilege requires disclosure which would be withheld if legal professional privilege were applied, the result may be justified by the fact that professional confidences are less likely to be inhibited by the possibility of disclosure where the client is of a governmental character and the fact that there is, in any event, protection against disclosure under Crown privilege where it is required by some overriding public interest.

1. (1976) 135 C.L.R. 674. 2. (1982) 61 F.L.R. 378; 41 A.L.R. 626. 3. [1975] I.R. 300. 4. [1980] A.C. 521.

In this case, where privilege is claimed in relation to documents forming part of the law-making process, it is plain to my mind that, notwithstanding the absence of any claim by the parties, the Aboriginal Land Commissioner ought to have turned his attention to a consideration of the possible application of Crown privilege. If in so doing he found himself required to adjudicate the question whether public interest required the disclosure or continued secrecy of a particular document, then he should have determined the matter, thereby leaving no room for the application of legal professional privilege. If, however, legal professional privilege is the only applicable doctrine, the matters prima facie found by him do not bring the crime or fraud exception into play and the privilege ought to be upheld.

No point was raised concerning the availability of relief under the Administrative Decisions (Judicial Review) Act and the convenient course would be to allow the appeal and order under s. 16(1)(b) of that Act that the matter be referred back to the Aboriginal Land Commissioner for further consideration.