A-G (NT) v Kearney

A-G (NT) v Kearney - [1985] HCA 60 - HCA 1978 case summary — Zoe

[12]

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.

[13]

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.

[40]

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.

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