Bennett v Chief Executive Officer of the Australian Customs Service

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A7 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

PLACE: SYDNEY (BY VIDEO LINK TO CANBERRA) - HEARD IN CANBERRA

TAMBERLIN J: 1 I agree with the reasons for judgment of Gyles J on both the appeal and cross-appeal and with the orders proposed by his Honour. 2 In my view, privilege had been waived in the relevant parts of the letter of 28 September 2000. The relevant principles as to waiver were considered by the High Court in Mann v Carnell (1999) 201 CLR 1 in the context of a claim for legal professional privilege and the communication of legal advice to a third party. At [29] Gleeson CJ, Gaudron, Gummow and Callinan JJ said: '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. … 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.' 3 At [34] their Honours continued: '… Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. … considerations of fairness may be relevant to a determination of whether there is such inconsistency.' (Emphasis added) 4 This emphasis on fairness when considering a claim of imputed waiver is an application of statements made by the High Court in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 per Gibbs CJ at 481 and Mason and Brennan JJ at 488. In that case, Deane J referred to the assertion of the effect of a communication where he said at 493: 'Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resists scrutiny of the proprietary of the use he has made of the material by reliance upon legal professional privilege. … If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that consideration of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication. … Where, however, he does no more than make use of privileged material (e.g. legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege …' (Emphasis added) 5 In the present case it is evident from the letter of 28 September 1999, which was written by the Australian Government Solicitor to the solicitors for Mr Peter Bennett, that the substance of the advice for the Australian Government Solicitor was conveyed in a context which did not attract an obligation of confidentiality in relation to the letter. It is apparent that the substance and effect of the advice was being communicated in order to emphasise and promote the strength and substance of the case to be made against Mr Bennett. This is evident from the following two extracts: '(2) AGS [Australian Government Solicitor] has now advised Customs that Public Service Regulation 7(13) does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or 'read down' so as not to apply to public comment on matters of administration which are not already on the public record … … (9) AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of COA [Customs Officers' Association]. It is a matter for your client, in the light (perhaps) of legal advice provided by you, whether he adheres to or moderates his position on this question …' (Emphasis added) 6 The above extracts express the substance of the advice that was given by the Australian Government Solicitor in each of the paragraphs. In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case. 7 As Kirby J points out in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34: 'I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents. Rolfe J appears to have acknowledged this distinction by later rulings to which I was taken during the course of argument. But at least in respect of the substance of the legal advice supporting Ampolex's assertion about the correct ratio, which is in contest here, it is strongly arguable that the public reference the supporting legal advice, waived the privilege as to the precise content of the legal advice on that point. I cannot say that the ruling is attended by such doubt as to promise a substantial prospect of a grant of special leave to appeal to this court. (Emphasis added) 8 The reference to Rolfe J is to the observations of his Honour in Ampolex v Perpetual Co (Canberra) Ltd (1996) 40 NSWLR 12. In that case, Rolfe J had to consider whether there had been a waiver of legal professional privilege in legal advice given to Ampolex by counsel. His Honour considered what was meant by 'the substance' and 'the effect' of advice or relevant evidence for the purposes of s 122(2) of the Evidence Act 1995 (Cth). At 19, his Honour said: 'In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process, is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, i.e. what the advice is. Further the ultimate conclusion, whilst it may be a 'result' or 'consequence' of the reasoning is more than that: in its own right it is the essence or vital part of the advice. Some advices may be very short and answer the question whether minimum of reasoning or, in some circumstance without any.' (Emphasis added) 9 The same approach was taken by the Full Federal Court after referring to Ampolex in Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418 at 431. 10 In the present case, the primary judge considered that the existence of waiver was a question of degree as to whether the disclosure amounted to a waiver of the privilege. His Honour at [35] of his judgment said: 'To disclose the legal position or stance that a lawyer has advised a client to take is, in my view, not inconsistent with the maintenance or confidentiality in the communication giving the advice (which may have much detail or lack of such detail) at least where oppression is not being essayed by such disclosure. It has never, in my experience, been contended to the contrary, although it is an everyday occurrence for solicitors to tell their client's opponents … that their clients have been advised to take some specified course or stance. No doubt there are cases, of which this may perhaps be one, where there are questions of degree as to whether the detail of the advice has also been disclosed to such an extent that it lacks congruity to make the disclosure but seek to keep the actual advice confidential.' (Emphasis added) 11 His Honour does not appear to have been referred to the authorities referred to above, with the exception of Mann's case. 12 While it is true that questions of fact and degree may be involved in determining whether the conduct or circumstances are such that waiver can be imputed, nevertheless, there is an underlying principle of law to be resolved as to what in law may or will constitute a waiver. In these circumstances, I do not consider that it can be said to be merely a question of fact and degree so that an appellate court cannot re-examine the matter and come to a different conclusion. In this case, the 'detail' of the advice has not been disclosed, but there is no doubt that the substance of the conduct has been stated. Hence, not only is the 'legal stance' or 'position' disclosed but also the interpretation which has been advised as correct. The question whether this is a waiver necessarily involves the consideration and application of legal principles, as the appellate authorities on waiver demonstrate. 13 Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to 'the substance', 'effect', or 'content' of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation 'A' is preferable to interpretation 'B' of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, including the factual premises and circumstances leading to that conclusion. 14 Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived. 15 In my view, his Honour erred in law in holding that there had been no implied waiver in the present case, and accordingly, the appeal must be allowed on this point. 16 I should add that I do not consider that the position expressed in paragraph 8 of the letter of 28 September 1999 can be said to amount to an imputed waiver in respect of the matters referred to therein. The statements and positions expressed in that paragraph do not in terms purport to express the conclusions or effect of legal advice given by the Australian Government Solicitor. 17 As to the extent of the disclosure, this is a matter for consideration by the primary judge, but it seems to me prima facie that the waiver extends to those matters and reasoning relating to the specific conclusions expressed in paragraphs 2 and 9 which I quoted above.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A7 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE

PLACE: SYDNEY (BY VIDEO LINK TO CANBERRA) - HEARD IN CANBERRA

EMMETT J: 18 The appellant, Mr Peter Bennett, requested access to certain documents of the respondent, the Chief Executive Officer, Australian Customs Service ('Customs'). Customs is an agency within the meaning of the Freedom of Information Act 1982 (Cth) ('the FOI Act') and the request was made under s 15 of the FOI Act. Mr Bennett was given access to large numbers of documents. However, Customs refused to grant access to a number of the documents that were the subject of the request on the ground, inter alios, that they are exempt documents by the operation of s 42 of the FOI Act. Section 42(1) provides that a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. 19 Mr Bennett sought review by the Administrative Appeals Tribunal ('the Tribunal') of the decisions made by Customs to refuse access. On 5 April 2002 the Tribunal set aside the decisions under review and remitted the matters to Customs, with directions that certain of the documents in question are exempt documents under s 42(1) of the Act. Mr Bennett appealed from those orders to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'), which confers a right of appeal on a question of law. On 7 February 2003, a judge of the Court relevantly ordered ('the Access Order') that Mr Bennett be given access to one of the documents in question and certain parts of another two of the documents in question. His Honour ordered that the proceeding be otherwise dismissed. 20 Mr Bennett has now appealed to the Full Court from the orders of the primary judge in so far as his Honour dismissed the appeal from the Tribunal. Customs also appeals to the Full Court from the Access Order. 21 The appeal was first listed for hearing on 6 November 2003. Because of concerns as to the formulation of the questions of law raised in the appeal from the Tribunal under s 44 of the AAT Act, the hearing date was vacated. At that time the following orders were made by the Court: 'The Court orders that:

2. The Court directs the appellant to file and serve an amended notice of appeal no later than Friday 28 November.

3. If the cross appeal is to be pursued, the respondent file and serve an amended notice of cross-appeal no later than Friday 5 December 2003.

4. The associate to Justice Branson be authorised to fix a hearing date in consultation with the parties.

5. The costs of the adjournment be costs of the appeal.

7. The parties comply a fresh with the standard directions.' 22 Order 2 was not intended to constitute a grant of leave to file an amended notice of appeal to the Full Court. Rather, it was intended that Mr Bennett reformulate the questions of law said to arise on the appeal from the Tribunal. One of the concerns was that the Access Order was not within Mr Bennett's notice of appeal from the Tribunal. A similar concern gave rise to Order 3. That is to say, if Customs intended to pursue its cross appeal from the Access Order, Customs was to file and serve an amended notice of cross appeal raising the question of the jurisdiction of the primary judge to make the Access Order. On 28 November 2003, pursuant to Order 2 above, Mr Bennett filed an amended notice of appeal to the Full Court ('the Amended Full Court Notice'). 23 In the amended notice of appeal from the Tribunal filed by Mr Bennett before the hearing in November 2003 ('the AAT Notice of Appeal') the questions of law that are still in issue were formulated as follows:

• whether or not the Tribunal erred in construing and applying s 58 of the FOI Act ('the Section 58 Issue');
• whether the Tribunal erred in construing and applying ss 42(2) and 9(1) of the FOI Act ('the Section 9 Issue');
• whether the Tribunal erred in determining that Customs had not waived its right to assert legal professional privilege in respect of one, some or all of the documents that were the subject of the application before the Tribunal ('the Waiver Issue'). 24 A notice of appeal from a single judge of the Court to the Full Court is not required to set out questions of law: it is required to set out the grounds of appeal. However, in the Amended Full Court Notice, Mr Bennett set out several questions of law. Those questions are, clearly enough, reformulations of the Section 58 Issue, the Section 9 Issue and the Waiver Issue. Senior counsel for Mr Bennett indicated, however, that the intention was that those questions of law be set out in a proposed further amended notice of appeal from the Tribunal to the Federal Court. 25 The s 58 Issue and the Waiver Issue were reformulated in the Amended Full Court Notice as follows: (1) On a proper construction of s 58(1) of the FOI Act, does the Tribunal have power to decide whether a claim for exemption for a document under Part IV of the FOI Act should be considered, prior to considering the merits of such a claim for exemption. (2) Does the letter to Mr Bennett from the Australian Government Solicitor of 28 September 1999 on behalf of Customs amount in law to a waiver of any claim of legal professional privilege in respect of advice received by Customs that was canvassed in that letter, and hence that any document containing such advice is not exempt from disclosure under s 42(1) of the FOI Act.

That reformulation at least lends some greater specificity to the issues of law intended to be raised. 26 The Section 9 Issue was reformulated into six new questions in substance as follows: (1) Do certain statements made by the Tribunal in the course of the hearing amount to a statement of reasons of the Tribunal, within the meaning of s 43(2) of the AAT Act, for rejecting Mr Bennett's arguments that the documents claimed by Customs to be exempt under s 42 were not exempt because of the combined operation of s 42(2) and s 9 of the FOI Act. (2) If the answer to question (1) is 'yes', does s 61 of the FOI Act, in relation to onus of proof, apply to an issue arising in relation to s 9. (3) If the answer to question (2) is 'yes', did the Tribunal err in not applying s 61 and thus not requiring Customs to justify that the documents were not within the scope of s 9 of the FOI Act. (4) If the answer to question (1) is 'yes', does s 9(1) of the FOI Act apply only to documents generally applicable to the enactment or scheme referred to in s 9(1). (5) If the answer to question (4) is 'no', did the Tribunal err in not considering whether the documents subject to Customs' claim for exemption were documents subject to s 9(1). (6) If the answer to question (1) is 'no', has the Tribunal failed to exercise its jurisdiction in respect of the question of the application of s 9(1) to Customs' claim for exemption under s 42 of the FOI Act, or, in the alternative, failed to take into account a relevant consideration in relation to its consideration of the claims of Customs for exemption under s 42 of the FOI Act, namely whether the documents are subject to s 9(1) of the FOI Act. 27 The first four of those questions are dependent upon the admission of additional evidence by the Full Court pursuant to s 27 of the Federal Court of Australia Ac 1976.(Cth) The additional evidence consists of parts of the transcript of the hearing before the Tribunal. Under O 52 r 36 of the Federal Court Rules, where an application is made to rely on additional evidence on the hearing of an appeal, the party wishing to rely on the further evidence is required to file an affidavit as to certain matters at least 21 days before the hearing of the appeal. That rule has been completely ignored by Mr Bennett. The only explanation offered for the failure to file an affidavit attaching the transcript in accordance with the Rules is that it was not adverted to until very recently. That is hardly a justification for permitting Mr Bennett to adduce the additional evidence in question. It is appropriate to deal with the application to rely on additional evidence in the course of dealing with the substantive issues raised concerning the application of s 9(1) in the present case.

MR BENNETT'S APPEAL 28 It is convenient to deal with each of the three issues separately.

THE WAIVER ISSUE 29 Section 42 of the FOI Act provides: '(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of su-section (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).' 30 Mr Bennett contends that, to the extent that the documents in question were privileged from production in legal proceedings on the ground of legal professional privilege, that privilege was waived by the terms of a letter of 28 September 1999 from the Australian Government Solicitor, who was acting for Customs, to Mr Bennett's solicitors. The relevant paragraphs of that letter are as follows: '2. In this regard, I note that in reaching the subject decisions the First Respondent [that is, the present respondent] construed Public Service Regulation 7(13) broadly, in the light of legal advice which had been provided to him. As a consequence of the proceedings instituted by your client, the correctness of this legal advice has been reconsidered. AGS has now advised Customs that Public Service Regulation 7(13) does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or 'read down' so as not to apply to public comment on matters of administration which are already on the public record. Public Service Regulation 7(13) does operate, however, to prohibit the giving/disclosing of official information (i.e. information acquired in the course of duties as an officer) which is not already a matter of public record. … 8. In this regard, I note that it remains the position that any officer should not misrepresent matters relating to the public business of Customs (whether those matters are on the public record or not). Moreover, any giving/disclosing of information about the public business of Customs, or about matters of which an officer has official knowledge, ought conform to the requirements/standards set out in the APS Code of Conduct enshrined in Public Service Regulation 7, a copy of which has been previously provided to your client. For instance, it is clear that Public Service Regulation 7(11) requires an APS employee, at all times, to behave in a way that upholds the integrity and good reputation of the Service. This obligation does not apply only when an APS employee is acting in the course of employment - in this regard, the wording of sub-regulation 7(11) may be contrasted with other provisions of regulation 7. Moreover, the Act defines misconduct to include improper conduct as an officer (56(d) of the Act) and improper conduct otherwise than as an officer (56(e) of the Act). The latter category of misconduct applies where the conduct in question adversely affects the performance of an officer's duties (including the duty imposed by sub-regulation 7(11)) or brings the Service into disrepute. In addition, any public comment by an officer of Customs must pay due regard to section 16 of the Customs Administration Act 1985. 9. AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of the COA. It is a matter for your client, in the light (perhaps) of legal advice provided by you, whether he adheres to or moderates his position on this question. But one thing is clear. Any genuine subjective belief on the part of your client concerning his right to make public comment as President of COA will not forestall the possibility of a finding of misconduct. In this regard, the Full Federal Court has held that an officers' belief in the lawfulness of his conduct does not preclude a finding of misconduct (O'Connell v Palmer (1994) 53 FCR 429). I mention this so that your client is in the best possible position to reflect on the advisability of future public comment, and the terms thereof.' 31 Mr Bennett contended before the primary judge that it is evident, from those paragraphs, that Customs must have had documents consisting of legal advice as to provisions of the Public Service Act 1922 (Cth) and the Public Service Regulations dealing with the following questions: '(a) that reg. 7(13) does not apply to all public comment by public servants but must be read down to exclude comment on matters that are already on the public record (see para 2 of the letter of 28 September 1999); (b) that officers should not misrepresent the official position, various examples being given of how officers should, in their public statements, conform to the Code of Conduct, because of the effect of reg. 7 (see para 8 of the letter of 28 September 1999); (c) that Mr Bennett is not correct in saying that he is not subject to the PS Act and Regulations if he makes public comments in his capacity as President of the Customs Officers Association (see para 9 of the letter of 28 September 1999).' 32 It is clear enough that, in par 2 of the letter, the Australian Government Solicitor was disclosing to Mr Bennett's solicitors the substance of advice given to Customs concerning the effect of Regulation 7(13). Further, it is also clear enough that, in par 9 of the letter, the Australian Government Solicitor was disclosing the substance of advice given to Customs that Mr Bennett was not correct in asserting that he was not subject to the Public Service Act and the Regulations in making public statements about Customs or related matters, when he does so in his capacity as President of the Customs Officers Association. If there are documents that record advice to that effect, the maintenance of the privilege in respect of that advice is inconsistent with the disclosure of its substance in those paragraphs of the letter. 33 On the other hand, it is not quite as clear that par 8 of the letter discloses the substance of legal advice received by Customs. Paragraph 8 follows from an assertion in par 7 of the letter that: '…the question of future public comment by your client on Customs-related matters would fall to be determined under the existing provisions of the Public Service Act 1922 ('the Act'), the Public Service Regulations, and the Customs Administration Act 1985.' In asserting that, ' [i]n this regard, I note that it remains the position that any officer should not misrepresent matters…', par 8 of the letter is clearly stating a legal proposition. However, that, of itself, is not sufficient to constitute conduct inconsistent with maintaining confidentiality in relation to the substance of any advice given to that effect. 34 It is one thing for a client, or someone acting on behalf of a client, to assert that a particular adviser has given advice to a particular effect. It is another thing for a person acting on behalf of the client to make an assertion, albeit an assertion based on advice that has been received, but without disclosing that advice has been received to that effect. 35 There was no dispute as to the appropriate principles to be applied in determining whether or not there was a waiver of legal professional privilege. The relevant principles are stated by the High Court in Mann v Carnell (1999) 201 CLR 1. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is inconsistency between the conduct of the client and maintenance of the confidentiality that effects a waiver of the privilege. What brings about the waiver is the inconsistency that the Court perceives (informed, where necessary, by considerations of fairness) between the conduct of the client and the maintenance of the confidentiality. Disclosure by a client of confidential legal advice received by the client will effect a waiver of privilege if such disclosure is inconsistent with the confidentiality that the privilege serves to protect. It does not matter why the disclosure has occurred: it may be for the purpose of explaining or justifying the client's actions or for some other purpose. However, considerations of fairness will be relevant to a determination on whether there is such inconsistency: see Mann v Carnell (supra) at [28], [29] and [34]. 36 Thus, in determining whether there is inconsistency between disclosure of the substance of confidential legal advice and maintaining confidentiality in respect of the legal advice, considerations of fairness will be relevant. That is a matter of judgment for a court when called upon to rule on the question of whether privilege has effectively been waived. That judgment must be made, in the present context, by the Tribunal. The question is whether there would be unfairness to Mr Bennett for the letter from the Australian Government Solicitor on behalf of Customs, to say what it says about the advice received by Customs and yet maintain confidentiality in respect of any document recording the advice. That question, namely, the fairness or unfairness of maintaining confidentiality in respect of the actual advice, notwithstanding disclosure of the substance of that advice, was a matter of judgment for the Tribunal. There was therefore no error of law involved in the Tribunal's decision in that regard.

THE SECTION 9(1) ISSUE 37 There appear to be at least two issues raised concerning the operation of s 9(1) in the present circumstances. Mr Bennett claimed that he contended before the Tribunal that, notwithstanding that a document giving legal advice may, in its terms, have been limited to the particular case of Mr Bennett, if such a document had come to be used as a precedent in similar cases, it would fall within s 9(1). The Tribunal did not address that question in its reasons. Mr Bennett says that that question was a material issue in the case mounted by him before the Tribunal and the failure to address the question was an error of law. Secondly, Mr Bennett contends that, even if the Tribunal addressed the matter, it failed to apply s 61. Section 61 relevantly provides that, in an application to the Tribunal under the FOI Act, the Agency to which an application for access is made has the onus of establishing that a decision given in respect of the request for access was justified. That would have required Customs to establish that the documents evidencing legal advice did not fall within s 9(1). 38 In the course of the hearing before the Tribunal, according to the transcript sought to be relied on by Mr Bennett, the Tribunal said: '…perhaps a simple way of looking at this is to say… would the Customs provide [the document in question] to all its staff so that when they are dealing with a matter involving an alleged breach of Regulation 7(13), that [document] can guide the staff. Now, unless you can show me that those documents are ones which are then generally circulated amongst the… Customs officials when we are dealing with these issues, I would have difficulty in finding those documents fall within 9(1) and therefore are not subject to section 42, assuming that legal professional privilege attaches to the contents of… those documents specifically.' Thus, to the extent that the Tribunal expressed a view in the course of the hearing, the view appears to be that contended for by Mr Bennett, namely, that, even though the documents relate to a specific case, they could, by reason of the way in which they are treated by Customs, fall within s 9. For that reason, the application to rely on additional evidence should be refused. 39 Under s 42(2) a document of the kind referred to in s 9(1) is not an exempt document by reason only of the inclusion in the document of matter that is used, or to be used, for the purpose of the making of decisions or recommendations referred to in s 9(1). Section 9(1) deals with documents that are provided by an agency for the use of, or are used by, the agency or its officers in making decisions or recommendations under, or for the purposes of, an enactment or scheme administered by the agency with respect to rights, privileges or benefits or to obligations, penalties or other detriments to which persons are or may be entitled or subject, being: (a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents; (b) documents containing particulars of such a scheme; (c) documents containing statements of the manner or intended manner of administration or enforcement of such an enactment or scheme; or (d) documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme. 40 Thus, before the exception in s 42(2) operates, it must be necessary to identify a document of the kind referred to in s 9(1). There are several pre-requisites under s 9(1). First, the document must be one that is provided by Customs for the use of, or is used by, Customs or its officers in making decisions or recommendations. The employment of the phrase 'is provided… for the use of' and the employment of the present tense in the phrase 'are used by' do not suggest documents brought into existence for the purposes of a particular case and not otherwise provided to officers or used by officers in other cases. 41 Secondly, the document must be for use in making decisions or recommendations under, or for the purposes of, an enactment or scheme administered by Customs. If the documents in question were used in making decisions or recommendations, they were decisions or recommendations under, or for the purposes of, the disciplinary proceedings apparently taken against Mr Bennett under the Public Service Act and the Public Service Regulations. Those enactments are not administered by Customs. 42 Thirdly, the documents must be: (a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents; (b) documents containing particulars of such a scheme; (c) documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactment or scheme; (d) documents describing the procedures to be followed in investigating breaches or evasions of such an enactment or of the law relating to such a scheme. 43 The primary judge appears to have accepted Mr Bennett's proposition that, even if the documents in question were brought into existence for Mr Bennett's case specifically, if they are nonetheless provided or used generally by Customs officers, they may fall within s 9(1): see Bennett v Chief Executive Officer of the Australian Customs Service (2003) FCA 53 at [56]. However, his Honour observed that there is no reason to think that the documents in question have been, or are being used, generally by Customs. His Honour observed that it could not be concluded, from the materials before the Tribunal, that the documents about Mr Bennett's case are to be relied on generally by officers of Customs. 44 Those observations lead to the second question raised by Mr Bennett in relation to s 9. Section 61(1) of the Act provides that, in proceedings before the Tribunal, the Agency, namely Customs in this case, has the onus of establishing that a decision given in respect of a request for access was justified. In the present context, that means that Customs had the onus of establishing that the documents in question were exempt. Specifically, Mr Bennett contends that Customs had the onus of establishing that, even if the documents in question are documents relating specifically to Mr Bennett's case, they have not come to be used generally by Customs, such that it could be said that they are documents provided by Customs for the use of, or are used by, Customs or its officers in making decisions or recommendations. The Tribunal simply did not address that question. 45 The grounds set out in the AAT Notice of Appeal, as to whether the Tribunal erred in construing and applying ss 42(2) and 9(1) of the FOI Act, were as follows:

• The documents or parts of the documents that were the subject of the application to the Tribunal were used by Customs and or officers of Customs to make decisions and/or recommendations with respect to the rights, privileges or benefits or to obligations, penalties or other detriments to which persons employed by Customs are or may be entitled or subject.
• The documents or parts of the documents contained interpretations, guidelines, practices or precedents or letters of advice about the manner or intended manner to be used by Customs and its officers and employees to administer or enforce the Public Service Act 1922 and the Regulations made under the Public Service Act.
• The documents or parts of the documents describe the procedures to be followed in investigating breaches or possible breaches of the Public Service Act or the Regulations made there under.
• Customs acted on initial legal advice in relation to the policy and effect of the Public Service Act and the Regulations in making a decision in relation to Mr Bennett.
• Customs later acted on a reconsideration of that advice in relation to the policy and effect of the Public Service Act and the Regulations in making a further decision in relation to Mr Bennett. 46 There is no assertion in those grounds that the Tribunal did not address a material question forming part of Mr Bennett's case. Nor is there any suggestion in those grounds that the Tribunal erred in the application of s 61 of the FOI Act, as requiring Customs to disprove the assertions made in those grounds. No basis has been established for granting leave to amend the AAT Notice of Appeal to raise those issues.

THE SECTION 58 ISSUE 47 The grounds stated in the AAT Notice of Appeal concerning the construction of s 58 were as follows:

• Pursuant to s 58(1) of the FOI Act, the Tribunal has power to review any decision that has been made by an Agency in respect of the request and to decide any matter in relation to the request that, under the FOI Act, could have been or could be decided by the Agency.
• Freedom of Information Memorandum No. 98 ('Memorandum No. 98') published by the Attorney-General's Department provides, relevantly, as follows: '13.1.4 Legal professional privilege is a client's privilege to assert or to waive. By the terms of a Cabinet decision made in March 1986, agencies are not to assert the privilege unless real harm would result from disclosure of the information... The phrase real harm distinguishes between substantial prejudice to the agency's affairs and mere irritation, embarrassment or inconvenience to the agency.'

• The Tribunal failed to review the decision of Mr Bennett in respect of his request in the context of par 13.1.4 of Memorandum No. 98 and to decide the matter of Mr Bennett's request in the context of the provisions of that paragraph.
  • No 'real harm' (within the meaning of that phrase in par 13.1.4 of Memorandum No. 98) would have resulted from the disclosure of all of the information in the documents in question.
  • Accordingly, the Tribunal could and should have directed that Customs should have disclosed to Mr Bennett all of the information in the documents in question. 48 There was no contention advanced on behalf of Mr Bennett that the Tribunal was bound by Memorandum No. 98. Rather, Memorandum No. 98 appears to have been adverted to by way of illustration of a matter in relation to Mr Bennett's request that could have been decided by the Tribunal. 49 The contention referred to at [47] above, appears to be misconceived. The fact that no real harm would result from disclosure of privileged material is a consideration to be taken into account in deciding whether to refuse access on the ground that the document is exempt by the operation of s 42. The Tribunal decided that the documents in question were exempt by the operation of s 42. It necessarily follows that the Tribunal considered that a decision should be made refusing access on the ground referred to in s 42. There was no error of law in failing to consider whether to permit access because no real harm would result from access being given. There has been no suggestion that the Tribunal failed to address a material matter forming part of Mr Bennett's case in that regard. No error of law on the part of the Tribunal has been shown in the way in which it exercised its powers under s 58.

THE APPEAL BY CUSTOMS 50 The AAT Notice of Appeal relevantly claimed an order that Mr Bennett be provided with a copy of certain specified documents within seven days. The primary judge ordered that Mr Bennett be given access to parts of two relevantly identical documents. 51 One of the questions of law raised in the AAT Notice of Appeal was whether the Tribunal erred in construing and applying s 22 of the FOI Act. The grounds of the appeal in that regard were formulated as follows:

• Some of the information (for example, the names of the addressor and addressee, bald reference to previous correspondence, personal information and so on) in all of the documents in question is not legally privileged information.
• It is possible for Customs to make a copy of each such document with such deletions that the copy would: (a) not be an exempt copy; (b) not disclose legally privileged information; (c) It is reasonably practicable for Customs, having regard to the nature and extent of the work involved in deciding on and making of those deletions and the resources available for that work, to make such a copy.
• The Tribunal could and should have directed that Customs make such a copy and grant access to Mr Bennett. However, in the reformulated grounds in the Amended Full Court Notice, no mention is made of s 22. 52 Section 22 relevantly provides that, where an Agency decides not to grant a request for access to a document on the ground that it is an exempt document, and it is possible for the Agency to make a copy of the document with such deletions that the document would not be an exempt document, the Agency must make, and grant access to, such a copy. Those matters involve questions of fact. There was no error of law involved on the part of the Tribunal in so far as it failed to make a determination under s 22 in relation to the documents that were the subject of the Access Order. The AAT Notice of Appeal did not raise a relevant question of law that would have justified the primary judge making the Access Order. 53 In any event, as the primary judge observed, in the course of his reasons, Customs submitted that, if the Court did not accept that privilege attaches to the two documents in question in their entirety, it would be appropriate for the matter to be remitted to the Tribunal for further consideration, including whether the documents in question were exempt under other provisions of the FOI Act, such as s 43, which concerns business affairs. That submission was made to the primary judge in writing by Customs. In its written submissions, Customs acknowledged that, while it was submitted that the documents in question were privileged in their entirety, s 22 permits severance of non-privileged information where it is reasonably practicable to do so. Customs contended that the question of exemption under other grounds was not pursued before the Tribunal because it was accepted by Mr Bennett that, if there was no waiver, the documents in question were privileged. 54 Thus, it may have been appropriate, if there had been some basis for interference with the decision of the Tribunal concerning the exercise of power under s 22, to set aside the Access Order, which was effectively made by the primary judge under s 22, and remit the matter to the Tribunal for consideration of the question of whether further grounds of exemption were available. However, in the light of the conclusion already reached that there was no jurisdiction for his Honour to make the Access Order, there is no need to consider the question of whether the matter should have been remitted to the Tribunal.

CONCLUSION 55 It follows, for the reasons set out above, that Mr Bennett's appeal should be dismissed. It also follows that the appeal by Customs should be upheld and Order 1A made by the primary judge on 7 February 2003 should be set aside. Mr Bennett should pay Customs' costs of the appeal and of the cross appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 7 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE

PLACE: SYDNEY (BY VIDEO LINK TO CANBERRA) - HEARD IN CANBERRA

REASONS FOR JUDGMENT GYLES J: 56 This matter has had a somewhat chequered procedural history, much of which appears in the judgment of Emmett J which I have had the advantage of reading in draft. Much of the difficulty in the case stems from the fact that the proceeding in this Court is an appeal on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). As I endeavoured to explain in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, 37 AAR 309 at [59]-[67], that procedure is not the same as is involved in general judicial review of administrative decisions. Further, this appeal is from the decision of the primary Judge, not from the decision of the Administrative Appeals Tribunal (the Tribunal). It is necessary to demonstrate error by the primary Judge before an appeal can succeed.

appeal 57 The most significant point argued on this appeal concerned waiver of legal professional privilege. The amended question of law which was said to arise is as follows: 'Whether the letter to the Applicant of the Australian Government Solicitor of 28 September 1999 on behalf of the Respondent amounted in law to a waiver of any claim of legal professional privilege in respect of advice received by the Respondent that was canvassed in that letter, and hence that any document containing such advice was not exempt from disclosure under s.42(1) of the Act;' 58 The letter of 28 September 1999 was a letter from the Australian Government Solicitor to the solicitors acting for Peter Bennett (the appellant) concerning proceedings which were then on foot between the appellant as applicant and officers of the Australian Customs Service as respondents in relation to disciplinary action taken against the appellant arising out of public comments which he had made concerning the conduct of Customs matters. He was himself an officer of the Customs Service and President of the Customs Officers' Association. The letter was a proposal for settlement of that litigation. The letter included the following: '2. In this regard, I note that in reaching the subject decisions the First Respondent construed Public Service Regulation 7(13) broadly, in the light of legal advice which had been provided to him. As a consequence of the proceedings instituted by your client, the correctness of this legal advice has been reconsidered. AGS has now advised Customs that Public Service Regulation 7(13) does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or 'read down' so as not to apply to public comment on matters of administration which are already on the public record. Public Service Regulation 7(13) does operate, however, to prohibit the giving/disclosing of official information (ie information acquired in the course of duties as an officer) which is not already a matter of public record. … 8. In this regard, I note that it remains the position that any officer should not misrepresent matters relating to the public business of Customs (whether those matters are on the public record or not). Moreover, any giving/disclosing of information about the public business of Customs, or about matters of which an officer has official knowledge, ought conform to the requirements/standards set out in the APS Code of Conduct enshrined in Public Service Regulation 7, a copy of which has been previously provided to your client. For instance, it is clear that Public Service Regulation 7(11) requires an APS employee, at all times, to behave in a way that upholds the integrity and good reputation of the Service. This obligation does not apply only when an APS employee is acting in the course of employment - in this regard, the wording of sub-regulation 7(11) may be contrasted with other provisions of regulation 7. Moreover, the Act defines misconduct to include improper conduct as an officer (56(d)) of the Act) and improper conduct otherwise than as an officer (56(e) of the Act). The latter category of misconduct applies where the conduct in question adversely affects the performance of an officer's duties (including the duty imposed by sub-regulation 7(11)) or brings the Service into disrepute. In addition, any public comment by an officer of Customs must pay due regard to section 16 of the Customs Administration Act 1985. 9. AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of the COA. It is a matter for your client, in the light (perhaps) of legal advice provided by you, whether he adheres to or moderates his position on this question. But one thing is clear. Any genuine subjective belief on the part of your client concerning his right to make public comment as President of COA will not forestall the possibility of a finding of misconduct. In this regard, the Full Federal Court has held that an officers' [sic] belief in the lawfulness of his conduct does not preclude a finding of misconduct (O'Connell v Palmer (1994) 53 FCR 429). I mention this so that your client is in the best possible position to reflect on the advisability of future public comment, and the terms thereof.' (emphasis added) 59 The proceedings before the Tribunal arose out of requests by the appellant for the provision of documents pursuant to the Freedom of Information Act 1982 (Cth) (the Act). A question arose as to whether certain documents were exempt from production because of the operation of s 42(1) which is as follows: 'A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.' 60 The Tribunal set out a passage from the decision of the High Court in Mann v Carnell (1999) 201 CLR 1 at 28, 29 and 34 as stating the test for waiver. The Tribunal identified paragraphs 2, 8 and 9 of the letter of 28 September 1999 (which was Exhibit R3 in the proceeding) as relevant to waiver. The gist of the decision of the Tribunal on this point appears in the following passage: '28. In documents 20 and 26 there are paragraphs which reproduce almost word for word these paragraphs in Exhibit R3, but both documents 20 and 26 postdate Exhibit R3. In my view, therefore, this cannot amount to a waiver. It may seem odd that legal professional privilege attaches to material which has already been released, in this case material released in Exhibit R3 but reproduced in documents 20 and 26. However there is an analogy between this situation and that of copied documents. [There is then a citation from the judgment of McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 552-553.] 29. As for other documents predating Exhibit R3, only paragraph 2 of the exhibit is relevant. Exhibit R3 concerns an offer to settle and only provides conclusions drawn from material which is researched and presented in much more detail in those earlier advices. 30. In my view, taking the test set out in Mann v Carnell, disclosure in Exhibit R3 of these conclusions is not inconsistent with maintaining the confidentiality to which the privilege attaches in the earlier documents. Put another way, the disclosure in Exhibit R3 is not inconsistent with the confidentiality which the privilege serves to protect. Therefore, in my view, the limited disclosure in paragraph 2 of exhibit R3 does not amount to a waiver (see also Re Spier and ACT Electoral Commissioner (1995) 41 ALR 374).' 61 When the matter came before the primary Judge, an initial point was taken that the operation of s 42(1) is unaffected by conduct which would, in legal proceedings, amount to waiver. His Honour rejected that submission and it is not pursued on appeal. The relevant portion of the primary judgment relating to waiver is as follows (at [33]-[35]): 'In para 2 of that letter, the third and the last sentences clearly enough do no more than state the conclusion from or logical result of the legal advice. The penultimate sentence can possibly be read as disclosing a reason for the conclusion but it seems to me that the better view is that it, too, is merely a part of the statement of such a conclusion. The paragraph does no more than say what is the position on the relevant subject that Customs had been advised to take. Para 8 of the letter offers some free legal advice to Mr Bennett and his solicitor, as does most of para 9. It is to be readily inferred that advice along those lines was also given by AGS to its client. But that does not amount to a disclosure of any part of what was an otherwise protected communication. The first sentence of para 9 clearly does no more than to indicate that a body of solicitors had advised its clients that the position of its erstwhile representative was mistaken. This, again, in substance does no more than to indicate that the solicitors had advised their client to adopt a different position. To disclose the legal position or stance that a lawyer has advised a client to take is, in my view, not inconsistent with the maintenance of confidentiality in the communication giving the advice (which may have much detail or a lack of such detail) at least where oppression is not being essayed by such disclosure. It has never, in my experience, been contended to the contrary, although it is an everyday occurrence for solicitors to tell their client's opponents or potential opponents that their clients have been advised to take some specified course or stance. No doubt there are cases, of which this may perhaps be one, where there are questions of degree as to whether the detail of the advice has also been disclosed to such an extent that it lacks congruity to make the disclosure but seek to keep the actual advice confidential. I understand the notion of inconsistency in this context to be concerned with questions of incongruity. In my view, this case demonstrates no such incongruity.' 62 The primary judge thus drew a distinction between the conclusion expressed in legal advice on the one hand and the reasons for that conclusion on the other and took the view that disclosure of the conclusion does not involve disclosure of the reasons. In my opinion, that is an error on a question of law. It is contrary to established authority to which the primary judge was apparently not referred. 63 The point can be appreciated most clearly by considering the first sentence of paragraph 9 of the letter in question which was as follows: 'AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of the COA.' 64 A very similar question arose in Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770. In a statement of reasons provided by an administrator a particular policy was explained and it was said that the policy was defined in a particular Council rule. It was then said: 'Separate legal advice supporting PHIAC's view of this rule has been received. A copy of that advice is attached.' A copy of the advice was not in fact attached and, when a copy was sought, privilege was claimed. Goldberg J held that the statement made did waive legal privilege. His Honour said (at [18]):

'It seems to me that by stating the respondents' view of the rule, and that legal advice supports that view, the existence of legal advice is being disclosed, the contents of which say that it supports the respondent's view of the rule.' (See also Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28 at 34; 70 ALJR 603 at 607 per Kirby J; Adelaide Steamship Company Ltd v Spalvins (1998) 81 FCR 360 at 366-367; BT Australasia Pty Ltd v State of New South Wales (No 7) (1998) 153 ALR 722 at 743-744; BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 207.) 65 I agree with that reasoning. The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure. 66 It was submitted for the respondent that the authorities to which I have referred preceded Mann v Carnell (1999) 201 CLR 1 and are superseded by that decision. It was submitted, in particular, that the primary judge correctly applied what was said by the majority in Mann v Carnell at [29] and [34] as to waiver only arising if disclosure is inconsistent with the confidentiality that the privilege serves to protect. In my opinion the decision in Mann v Carnell does not implicitly overrule the line of authority to which I have referred. The question in that case was whether a particular kind of limited disclosure waived the privilege. The reasoning in that case casts no doubt as to the principles applicable to a situation where disclosure is made by one party to a dispute to another party to that dispute and in the absence of any special arrangements as to confidence. 67 It remains to determine whether the Tribunal erred on a question of law in dealing as it did with the issue of waiver. In my opinion it did. The process of reasoning of the Tribunal appears to be: (1) The letter from the Australian Government Solicitor did 'release' legal advice. (2) This did not waive privilege in documents recording legal advice which post-date the Australian Government Solicitor's letter. (3) Advices that predated the Australian Government Solicitor's letter researched and presented the advice in much more detail than the conclusions 'released' to the appellant. (4) Disclosure of the conclusions was not inconsistent with maintaining the confidentiality attaching to the advices that were in existence at the time of the disclosure.

Step 2 is not an error. However, steps 3 and 4 fall into the same error on a question of law that I have identified in the reasons of the primary judge.

68 A decision as to whether privilege in a particular document is waived will normally be a question of fact. However, an error on a question of law may be bound up with the question of fact. That has occurred here. Each of the Tribunal and the primary Judge correctly identified the decision in Mann v Carnell as providing appropriate guidance as to the law to be applied. However, in my respectful opinion, the test has been misunderstood at least in part. The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. 69 The next question of law said to arise is as follows: 'Whether on a proper construction of s.58(1) of the Act the Tribunal has power to decide whether a claim for exemption for a document under Part IV of the Act should be considered, prior to considering the merits of such a claim for exemption.' 70 Section 58(1) of the Act is as follows: 'Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.' 71 It is argued that s 58(1) creates two separate heads of power - namely the power: (i) to review any decision that is made by an agency in respect of the request; and (ii) to decide any matter in relation to that request which, under the Act, could have been decided by the agency.

It is submitted that the first power is not confined to a decision 'under the Act' but rather relates to any decision in respect of the request. It is submitted that an intermediate decision along the way to the ultimate decision is a threshold question as to whether to claim exemption for a document. It is thus submitted that the decision to claim the exemption based upon legal professional privilege can be reviewed as such without reviewing the validity of the claim itself. There were further submissions as to how that issue might be approached.

72 It is not at all clear to me that this point was raised before the Tribunal. In any event, in my opinion, it is unsound. The decision of the primary judge on the point discloses no error. Section 58(1) is typical of provisions for review of an administrative decision by a second body, and makes clear that the reviewing body stands in the shoes of the first for the purpose of carrying out the functions committed to it on review. It does not expand those functions. Furthermore, the construction that is advanced is inconsistent with the policy reflected in s 58(2) of the Act. However s 58(1) is construed, proceedings in the Tribunal authorised by it would be proceedings under the Act and caught by s 58(2). Furthermore, it would be unusual for statute to provide for review of an intermediate decision in such an indirect way (cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321). 73 The third purported question of law put forward is as follows: 'Whether the legal advice received by the Respondent in relation to the application of reg.7(13) of the Public Service Regulations to the conduct of the Applicant amounted to matter referred to in s.42(2) of the Act, that being matter used or to be used for the purposes of the making of decisions or recommendations referred to in s.9(1) of the Act, and hence was not exempt from disclosure under s.42(1) of the Act.' 74 Section 9(1) of the Act is as follows: 'This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:

(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;

(b) documents containing particulars of such a scheme, not being particulars contained in an enactment as published apart from this Act;

(c) documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactment or scheme; or

(d) documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;

but not including documents that are available to the public as published otherwise than by an agency or as published by another agency.' 75 Section 42(2) is as follows: 'A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).' It is accepted by the respondent that a document that comes within s 9(1) is not exempt pursuant to s 42. That policy is understandable as use pursuant to s 9 would be a form of disclosure.

76 The transcript of proceedings before the Tribunal shows that the appellant squarely raised the argument that the documents sought were caught by s 9(1) and, for that reason, were not covered by the exemption in s 42. Discussion ensued between the Tribunal member and the appellant as to the substance of that argument. The question was not, however, dealt with in the Tribunal's decision. There is no inherent reason why legal advice sparked by or directed to a particular case could not be used in a way that would fall within s 9(1). Advice in a particular case can lead to or be used for, or as part of, general guidance. A simple example would be circulation of the advice for general guidance with or without the names of the parties involved being omitted. Whether or not any of these documents was in that category is a matter for the Tribunal, not the Court. 77 The issue was raised in the amended notice of appeal from the Tribunal to the Court as follows: 'Whether the Senior Member erred in construing and applying s 42(2) and 9(1) of the Act.' 78 The primary Judge disposed of the point in the following way: 'The relevant statutory condition relied on is that "… documents … are used by" the agency. There is no reason to think that that is so. The quoted phrase employs a form of continuous present tense of the verb "to use", in its passive voice. The clear implication from that form and from the terms of s 9(1) generally is that general use is required, as distinct from use in one case only. All that is known is that the particular documents about Mr Bennett's case were used in his case. If they (or some extract from, paraphrase of, them) are to be relied on generally, they may well, in such a case, be caught by s 9(1). But that cannot, in my opinion, be concluded from the materials in this case. Insofar as s 9(1) does not apply, the agency established its case that the agency's decision not to disclose it, on Mr Bennett's request, was justified.' 79 The problem is that the question of law posed never arose. The Tribunal simply did not deal with the point. The primary Judge was apparently invited to conduct a de novo exercise. That is not the role of the Court pursuant to s 44 of the Administrative Appeals Tribunal Act. The Tribunal did not complete its task in this respect. That cannot be directly cured in this proceeding.

Cross-appeal 80 The primary Judge ordered that access to certain parts of two documents numbered 24 and 25 (which were for relevant purposes identical) was to be given to the appellant cross-respondent. The jurisdiction to make that order is challenged. It is also argued that the substance of the decision ordering that parts of the two documents be produced was wrong on the merits. 81 The part of the amended notice of appeal which relates to this question framed the issue as follows: 'Whether or not the Senior Member erred in construing and applying s 22 of the Act.' 82 Section 22 of the Act is as follows: 'Deletion of exempt matter or irrelevant material

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

(2) Where access is granted to a copy of a document in accordance with subsection (1):

(iii) if any matter deleted is exempt matter because of a provision of this Act - that the matter deleted is exempt matter because of that provision; and

(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in accordance with that section.' 83 The problem with the question posed was that the Tribunal only purported to apply s 22 to two documents, neither of which was document 24 nor 25, in a manner which was not contested. The decision of the Tribunal specified the only exempt matter in those two documents. Documents 24 and 25 to which the primary Judge applied s 22 had been found by the Tribunal to be wholly exempt pursuant to s 42 of the Act and therefore the Tribunal did not have to consider the application of s 22 to those documents. 84 In relation to documents 24 and 25, the Tribunal had found that: · 'these documents were brought into existence for the dominant purpose of obtaining or giving legal advice, or the dominant purpose of use in actual or anticipated litigation

· they represented communications between Customs and its legal advisers or between various legal advisers of Customs, and

· such legal advisers were in an independent professional relationship with Customs.'

Those findings were not challenged in either the notice of appeal to the Court or the amended notice of appeal to the Court. They should not have been disturbed then and should not be disturbed now.

85 The explanation for the matter arising before the primary Judge appears from the judgment as follows (at [36]): 'During the course of the hearing, I examined exempt documents 24 and 25 and following a discussion with counsel, it became apparent that part of the material in those documents concerned a question of the legal costs that AGS would charge Customs. The applicant's counsel raised an objection to privilege attaching to documents in such circumstances and leave was granted to the parties to file further submissions in respect of this issue.' Neither the appellant cross-respondent nor his counsel had access to the documents. 86 The primary Judge recorded submissions and then proceeded to discuss various authorities in the light of his examination of the documents in question and said (at [46]): 'I conclude that, to the extent that the documents disclose legal advice, but only to that extent, the documents are privileged. I will permit access accordingly only to those parts which do not involve any such disclosure.' The orders that were actually made identified the precise parts of those documents to which access was to be given.

87 There was no finding by the primary Judge of any error on a question of law on the part of the Tribunal in finding as it did concerning the existence of legal professional privilege in the documents in question. As I have said, no ground of appeal went to that issue. It is not clear from the judgment below precisely what attitude the respondent cross-appellant took although, naturally enough, the opportunity to make submissions appears to have been taken up by both parties. It appears that the issue of privilege was decided by the primary Judge as it would be at first instance in the Court. That was not an appropriate exercise, even if conducted with the acquiescence (to a greater or lesser extent) of the representatives of the respondent cross-appellant. If the primary Judge were entitled to consider the issue for himself, then it would be necessary for this Court to consider the criticisms which have been made of that decision on the merits, presumably by inspecting the documents for ourselves. It would certainly, in my view, be inappropriate for this Court to become involved in that exercise. The limits of the Court's power pursuant to s 44(4) and s 44(5) are well understood (Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209, 63 FLR 441; Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [33]-[36]; Commissioner of Taxation v Zoffanies Pty Ltd [2003] FCAFC 236, 77 ALD 518 at [68]-[78] and [95]). 88 In any event, the respondent cross-appellant is on strong ground in submitting that the order granting access was in error as it was incumbent upon the Tribunal to consider other potential grounds for exemption before ordering access. It is relevant to note that, in recounting the submissions for the respondent cross-appellant, the following was included (at [37]): 'If the Court does not accept that privilege attaches to documents 24 and 25 in their entirety, then the respondent submits that the privileged material can be severed from the remainder of the documents; and because of the content, it would be appropriate for the matter to be remitted to the AAT for further consideration, including whether the documents are exempt under other provisions of the FOI Act, such as under s 43 which concerns business affairs.'

Conclusion 89 The net result is that the appeal on the issue of waiver should succeed and the cross-appeal should succeed. The matter will be returned to the Tribunal to determine the issues in accordance with these reasons. It will be for the Tribunal to judge which of the documents in question, or parts of the documents in question, were disclosed in the letter of 28 September 1999. I would add that the task is not to find exact equivalence between the words of paragraph 2 and paragraph 9 and the advice. Rather, it is to identify those advices relating to the issues which were in existence and to which the relevant paragraphs thus purported to refer. That will also enable the issue arising in relation to s 9 to be considered, if appropriate. The appellant should have substantially succeeded at the primary hearing and will have the costs of that proceeding. The appellant will also have the costs of the appeal. The respondent cross-appellant will have the costs attributable solely to this cross-appeal. The appellant cross-respondent will have a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to those costs if necessary. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 25 August 2004 Counsel for the Appellant: CM Erskine

Counsel for the Respondent: RS Tracey QC, M Campbell

Solicitor for the Respondent: Australian Government Solicitor