British American Tobacco Australia Limited v Secretary, Department of Health and Ageing

Federal Court of Australia (Full Court)|2011-08-23|Before: Mr AJ, Mr P, Keane CJ, Besanko JJ

The appellant's applications to amend the notice of appeal should be allowed.
The appeal should be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 314 of 2011

BETWEEN: BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED

JUDGES: KEANE CJ, DOWNES AND BESANKO JJ DATE: 23 August 2011 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 22 April 2010 British American Tobacco Australia Limited (the appellant) made a request to the Secretary of the Department of Health and Ageing (the respondent) under section 15 of the Freedom of Information Act 1982 (FOI Act) for access to a copy of a memorandum of advice provided by the Attorney-General's Department (AGD) (AGD legal advice) to the Tobacco Policy Section of the then Department of Human Services and Health (DHSH). The advice concerned legal and constitutional issues relating to the generic packaging of cigarettes. 2 The respondent refused the request on the basis that the document was exempt from production under s 42 of the FOI Act because it would be privileged in legal proceedings on the ground of legal professional privilege. 3 The respondent's decision was affirmed by the Administrative Appeals Tribunal constituted by Deputy President Forgie and Senior Member O'Loughlin (the Tribunal) on 30 March 2011: Philip Morris Limited and British American Tobacco Australia Limited and Department of Health and Ageing [2011] AATA 215. Forgie DP delivered the principal reasons of the Tribunal. Senior Member O'Loughlin delivered brief reasons in which he agreed in substance with the reasons of Forgie DP. As will be apparent, Philip Morris Limited was also a party to the proceeding before the Tribunal; it is not a party to the appeal to this Court. 4 In an appeal to this Court against the Tribunal's decision under s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the appellant contends that the legal professional privilege which inhered in the AGD legal advice was waived by disclosure by the respondent. The appellant relies upon five acts of disclosure which, either alone or cumulatively, are said to have effected a waiver of the privilege. The five disclosures set out in order of prominence in the appellant's argument rather than chronology, are: 1. the reference to aspects of the AGD legal advice in September 1997 on page 30 of a Government Response paper titled, "Government Response to the Report of the Senate Community Affairs Committee: The Tobacco Industry and the Costs of Tobacco-Related Illness" (the Government Response) which was tabled in the Senate and incorporated in full into the Senate Hansard; 2. the subsequent publication on a government website of the Government Response; 3. the provision of a summary of the AGD legal advice to the Tobacco Working Group (TWG); 4. the provision of a summary of the AGD legal advice to the Ministerial Tobacco Advisory Group (MTAG); and 5. the provision of the summary of the AGD legal advice, which had been provided to the TWG, to the appellant in the course of the proceedings before the Tribunal. 5 The last of the disclosures was raised by an application to amend the notice of appeal. In the circumstances, the convenient course is to allow the amendment. 6 The appellant's arguments in this court raise issues as to: 1. the proper construction of s 16(3) of the Parliamentary Privileges Act 1987 (Cth) (the PP Act), and in particular, whether it prevents the Tribunal, or this Court, from having regard to either the tabling in the Senate or the subsequent publication on a government website of the Government Response in determining whether legal professional privilege in the AGD legal advice was waived; 2. whether the respondent waived legal professional privilege in the AGD legal advice by either or both the tabling and subsequent publication of the Government Response. In this regard, the appellant seeks leave to amend its notice of appeal to argue that the Tribunal erred in law in failing to consider and give reasons for rejecting the appellant's arguments on this point. Once again the convenient course is to allow the amendment to be made. 3. whether the provision of a summary of the AGD legal advice to members of the TWG or the MTAG waived legal professional privilege; and 4. whether the voluntary disclosure of a copy of the summary of the AGD legal advice provided to the TWG in the course of the proceeding before the Tribunal waived the privilege. 7 The respondent argues that only the first of the issues which the appellant seeks to agitate is an appeal "on a question of law" within the scope of the right of appeal afforded by s 44(1) of the AAT Act. The respondent also contends, as it contended before the Tribunal, that both the tabling of the Government Response and its subsequent publication by the government are "proceedings in Parliament" within s 16(2) of the PP Act; accordingly, they may not be considered for the purpose of determining whether legal privilege in the AGD legal advice has been waived. Thirdly, the respondent contends that none of the acts of disclosure relied upon by the appellant were inconsistent with the respondent continuing to insist upon the privilege. 8 We will summarise the relevant legislative provisions and the factual background of the case first. We will then turn to summarise briefly the decision of the Tribunal. We will then address the arguments agitated before this Court.

the legislation 9 Amendments to s 42 of the FOI Act were made by the Freedom of Information Amendment (Reform) Act 2010 which commenced operation on 1 November 2010. The appellant made its request for access to information prior to this date; accordingly, the Tribunal relied on s 42 of the FOI Act as it stood prior to 1 November 2010. At that time, s 42 provided: 42 Documents subject to legal professional privilege (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 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). 10 Before the amendment in November 2010, there was some controversy as to whether s 42 contemplated the possibility that privilege might have been lost by waiver: Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 6 AAR 80 at 83; Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53 at [26]-[27]. It is not necessary to resolve this controversy: the present case can be resolved independently of this issue. The issue itself has been resolved for the future by the amendment. In that regard, s 42 as amended in November 2010 now reads: 42 Documents subject to legal professional privilege (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 is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim. (3) A document is not an exempt document under subsection (1) by reason only that: (a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and (b) the information is operational information of an agency. Note: For operational information, see section 8A. 11 The appellant contends that s 16(3) of the PP Act does not preclude reference to proceedings in Parliament in order to determine whether legal professional privilege has been waived in this case. Section 16 provides: 16 Parliamentary privilege in court proceedings (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section. (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. (4) A court or tribunal shall not: (a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or (b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence; unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence. (5) In relation to proceedings in a court or tribunal so far as they relate to: (a) a question arising under section 57 of the Constitution; or (b) the interpretation of an Act; neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record. (6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates. (7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act. 12 Article 9 of the United Kingdom Bill of Rights 1688 referred to in s 16 of the PP Act relevantly provides "[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament".

FACTUAL BACKGROUND 13 Some reference to the factual background to the preparation of the AGD legal advice, the subsequent reference to it in the Government Response and the provision of the summary to the TWG and the MTAG, is necessary to an understanding of the issues as to whether the tabling of the Government Response is a "proceeding in Parliament" for the purposes of s 16(3) of the PP Act, and whether legal professional privilege has been waived by any of the acts of disclosure relied upon by the appellant. 14 On 8 June 1994 the Senate Community Affairs Reference Committee (SCAR) was directed by the Senate to review the cost of tobacco related illness, with a particular focus on the "current level of regulation of the manufacture, advertising, promotion and sale of tobacco products". 15 On 26 June 1995 the TWG was established to "provide expertise and advice to the Department of Human Services and Health's Drugs and Dependence Branch". Members of the working group agreed that they were to "ensure that the group's deliberations and other activities in which they are involved, remain confidential until such time as a report or document become publicly available". Although the membership was comprised of both government officials and representatives from non-governmental organisations, each member was advised that he or she was protected by s 81 of the National Health and Medical Research Council Act 1992 and the general indemnity given to persons acting on behalf of the Government. 16 On 6 November 1995 a request for legal advice was made by Elizabeth Cain, director of the Tobacco Policy Section of the DHSH, to the AGD "regarding any constitutional or other legal impediments to the introduction of generic packaging". A copy of the AGD legal advice was provided to the Tobacco Policy Section on 14 December 1995. 17 On the 8 February 1996 a summary of the AGD legal advice was provided by an officer in the Tobacco Policy Section to another officer in the TWG. Relevantly, the summary read: The Department recently sought advice from the Attorney General's Department (A-G's) on the legal issues relevant to generic packaging of tobacco products. A-G's advised the Department on the Constitutional issues relevant to the possibility of introducing legislation for generic packaging. However, that advice, is to an extent, subject to the outcome of the Philip Morris case (Philip Morris v Commonwealth), which is currently before the High Court and has not yet been heard. A-G's also advised that further regulation must be considered in the context of Australia's international obligations such as the Agreements on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Tariffs and Trade (GATT). Finally, as the research on the effect of generic packaging on the uptake and cessation of tobacco consumption is, to date, limited, it may be difficult to establish that adopting generic packaging is a measure that is consistent with international Conventions. 18 On 24 July 1996 the TWG was disbanded and replaced by the MTAG which comprised Commonwealth and State health officials as well as expert representatives of non-governmental organisations. 19 The SCAR committee had published a report in December 1995 entitled "The Tobacco Industry and the Cost of Tobacco-Related Illness" recommending that additional research be undertaken into the efficacy of generic packaging of tobacco products. The Government Response to the SCAR committee report, which is the first disclosure relied on by the appellant, was tabled in the Senate on 3 September 1997. It was subsequently incorporated in the Senate Hansard. The reference in the Government Response to the AGD legal advice was in the following terms: In response to the mounting interest in generic packaging, the Commonwealth obtained advice from the Attorney-General's Department on the legal and constitutional barriers to generic packaging. This advice indicates that the Commonwealth does possess powers under the Constitution to introduce such packaging but that any attempt to use these powers to introduce further tobacco control legislation needs to be considered in the context of the increasingly critical attention being focussed on the necessity, appropriateness, justification and basis for regulation by such bodies as the Office of Regulatory Review, the High Court, and the Senate Standing Committees. In addition, further regulation needs to be considered in the context of Australia's international obligations regarding free trade under the General Agreement on Tariff and Trade (GATT), and our obligations under international covenants such as the Paris Convention for the Protection of Industrial Property, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). To date, generic packaging of tobacco products has not been implemented anywhere in the world. As such, there is no international experience of the effect of generic packaging on consumer behaviour. In addition, there is limited primary research on the potential effect of generic packaging on the factors underlying or relevant to the uptake and cessation of tobacco consumption. 20 The second putative disclosure relied on by the appellant was made by the publication of the Government Response on a government website. This contention was advanced below by the appellant but not adverted to by the Tribunal. It is possible that this point was overlooked by the Tribunal because the evidence adduced on behalf of the appellant on this point was not at all well presented. However that may be, in this Court, the respondent, consistently with the Commonwealth's high reputation as a model litigant, frankly conceded that publication on a government website had occurred. 21 In relation to the communications with the TWG and the MTAG, and the disclosure in the course of the proceedings before the Tribunal, the Tribunal held that none of these three disclosures waived legal professional privilege. In relation to these disclosures, Forgie DP said at [198]-[202]: [198] There are two publications to which I must have regard. The first is its publication in the form of a summary that was made for TWG. The AGD legal advice was not sought and obtained for TWG but at the request of DHSH on 6 November 1995. The Minister for Human Services and Health had established TWG a few months earlier on 26 June 1995. Its members, I have found, comprised both officers of DHSH and persons who held positions in State Departments or in private enterprise. TWG was established as a body to provide expertise and advice to DHSH on possible options and strategies for tobacco health management including the impact of broader health promotion issues on tobacco health management. Despite its multi-representational membership, it was carrying out a function related to the administrative functions of DHSH. On the basis of the terms of the letter inviting them to become members, I am satisfied that each member undertook to ensure that their deliberations and activities as members of TWG remained confidential. I have reached that conclusion despite the fact that I do not have any copies of the signed copies of the letter acknowledging that they agreed to this condition. The fact that they took up their positions is implied acceptance of the condition. The obligation to maintain confidentiality only persisted until a report or other document became publicly available. They were disbanded before that occurred. [199] It was in this context that DHSH gave TWG a summary of the AGD legal advice. It was given to a circumscribed number of persons who were carrying out a function for the Commonwealth and under an obligation not to disclose it. It was a very circumscribed version of the AGD legal advice disclosed to persons working on a related issue as part of the Commonwealth administration. In these circumstances, I do not consider that its publication to TWG in summary form is inconsistent with the claim for privilege now being made by DHA. I do not consider that the privilege has been impliedly waived. [200] The second publication relied upon is the publication of the summary of the AGD legal advice to members of MTAG in response to a request by one of its members. I find that membership of MTAG was not limited to Commonwealth officers but included State health officials and representatives of non-governmental organisations with expertise in tobacco control and health promotion. Its terms of reference were all directed to advising the Minister on a national strategy for tobacco control. Unlike TWG, I find that its members were not asked to undertake to ensure that their deliberations and activities as members of MTAG remained confidential. As a Ministerial advisory group it might be expected that they would keep their deliberations confidential but I have no evidence to that effect and, without it, cannot make that finding. [201] That is only one of the matters relevant in considering whether disclosure of the summary of the AGD legal advice to members of MTAG has waived the privilege now claimed for the AGD legal advice itself. Another is the very limited detail given in the summary. A third is that it was disclosed only to a group of persons engaged to provide advice to a Minister on a related topic. There is no inconsistency between maintaining the privilege when access is requested under the FOI Act and its circumscribed disclosure for purposes connected with public administration in the past. I do not consider that the privilege has been impliedly waived. [202] Finally, I have considered whether disclosure of the summary of the AGD legal advice to PML and BATA in this case amounts to an implied waiver of privilege. Again, I do not think that this is so. It has been disclosed to the parties as a document relevant to the proceedings. Although a confidentiality order has not been sought under s 35 of the AAT Act to protect it from public disclosure, I do not consider that its disclosure is inconsistent with the claim of privilege made for the AGD legal advice. I repeat that it is a circumscribed version of the AGD legal advice disclosed for the purposes of the proceedings in this Tribunal and not otherwise disclosed. I do not consider that its disclosure leads me to conclude that privilege has been impliedly waived and I find that it has not. 22 A difficulty in relation to the Tribunal's apparent finding that the summary of the AGD legal advice was provided to the MTAG is that there is no evidence of the content of that communication. 23 On 22 April 2010 the appellant applied under the FOI Act to obtain access to the AGD legal advice. On 20 May 2010 a decision maker within the DHA refused the appellant's request. This decision was affirmed on internal review within the DHA on 21 June 2010. 24 On 30 June 2010 the appellant made an application to the Tribunal for review of DHA's decision. As noted above, the Tribunal upheld the DHA's decision. 25 The Tobacco Plain Packaging Bill 2011 was introduced into the Parliament on 6 July 2011. The appellant asserts that if access were to be granted, the AGD legal advice document would be available for consideration and debate of the Bill. There is no reason to conclude that the Government proposes to deploy the Government Response in that debate. There does not appear to be any legal proceeding in which the Government Response would be deployed by the respondent.

The decision of the Tribunal 26 The Tribunal concluded that legal professional privilege attached to the AGD legal advice. Forgie DP stated at [77]: I have examined both the AGD legal advice and the letter requesting it and am satisfied that neither has expressly stated that the advice was given or sought on the basis of its being confidential. I am satisfied from the background against which it was sought and given and the fact that it was legal advice, however, that confidentiality was assumed by the parties. It is advice that is capable of being confidential and I am satisfied that, in so far as it was kept on the file in the Legal Services Branch of DHA, it was treated as Legal-in-Confidence. I cannot make the same finding in relation to the copy kept on the file kept by the Drug Strategy Branch but what I do accept on the basis of Ms Delacy's evidence is that there was no record made on the file suggesting that the file had been accessed since some time before 2008. 27 This conclusion is not in dispute in this Court. 28 The Tribunal concluded that the tabling of the Government Response in the Senate could be "described as 'proceedings in Parliament' on the basis of its being incidental to the transacting of business either of the SCAR committee or of the Senate" (at [112]). The Tribunal also concluded that, by reason of s 16(3) of the PP Act, the Tribunal could not have regard to the Government Response as it would involve the drawing of a legal inference or conclusion. Forgie DP set out the matters to which she considered that the Tribunal could have regard at [167]: I may have regard to the proceedings of Parliament in order to ascertain historical facts or events. They include ascertaining what words were spoken and acts done. Regard may be had to those words and acts provided their only relevance is that they were spoken or done. If judgments must be made or conclusions drawn as to why they were said or done or their accuracy or appropriateness questioned, regard may not be had to them for to do so would be to draw inferences or conclusions from them. If judgments must be made or conclusions drawn about the accuracy or appropriateness of what is said or done outside Parliament, the proceedings of Parliament cannot be used as part of the material to make that judgment or conclusion for to do so requires inferences or conclusions to be drawn about those proceedings. 29 Forgie DP found support for her interpretation of s 16(3) of the PP Act in the Explanatory Memorandum to the Bill where it was stated that: (c) drawing inferences or conclusions to support a criminal or civil action This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of a criminal or civil action against them or another person. Thus a member's speech in Parliament cannot be used to support an inference that the member's conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day. These prohibitions express the limitations on the use of Parliamentary proceedings which were held to flow from article 9 in the earlier court judgments. Basically, what they prevent is proceedings in Parliament being "used against" a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person." 30 As we have noted, the Tribunal did not address the effect of the publication of the Government Response on the internet on the respondent's insistence on maintaining privilege. 31 Forgie DP essayed the authorities on the legal issues before the Tribunal at considerable length. The resolution of the issues that fall for determination in this Court does not depend on close attention to nuances in the reasoning of the many cases referred to by the Tribunal: on the question of waiver, the principles have been authoritatively stated in recent decisions of the High Court. This case is not at the margin of the operation of the principles laid down by the High Court. The history of the development of those principles, while no doubt a matter of interest, is not necessary to an understanding of the statements by the High Court. And as this case demonstrates, an undue focus upon the historical development of legal principles can be a distraction from the issues which are tendered by the parties for determination by the Tribunal.

THE ARGUMENTS IN THIS COURT: THE APPELLANT 32 The appellant's primary argument is that s 16(3) of the PP Act does not preclude reference to the Government Response tabled in the Senate; and this document shows that legal professional privilege in the AGD advice was waived by reason of the Government Response being tabled in Parliament or made available to the world online. The appellant contends that it refers to the Government Response only to prove the fact that the words were used in the document which was tabled and not to invite any inference adverse to any person. In this regard, the appellant says that it seeks to raise no question as to the truth of, or motives behind, the Government Response. The appellant argues that, as the reference to the AGD legal advice in the Government Response set out the substance of the advice, legal privilege was waived. 33 The appellant also argues the publication of the Government Response on a government website falls outside of proceedings in Parliament and thus outside of the operation of s 16(3) of the PP Act. This argument is supported by reference to Buchanan v Jennings [2005] 1 AC 115. In that case, it was held that Parliamentary privilege did not attach to a statement made outside of Parliament that reiterated statements previously made in the House of Representatives which were protected by the privilege. 34 As to whether legal professional privilege was waived by the provision of the summary of the advice to the TWG and to the MTAG, the appellant's case rests upon the contention that the members of either group were not under an obligation of confidentiality. In relation to the TWG, the appellant contends that the substance of the AGD advice was disclosed, and that further details were given at a meeting of the TWG in discussions about the summary document. It is said that the terms of engagement of members of the TWG did not impose an obligation of confidentiality, merely an unsigned expectation. It is said that because the substance of the advice was disclosed, it is inconsistent to maintain the claim for privilege in the entirety of the advice. Even if the terms of the TWG's engagement did impose an obligation of confidentiality, the appellant argues that once the Government Response became available this confidentiality abated. As to the summary given to the MTAG, its members were not asked to keep information confidential.

THE ARGUMENTS IN THIS COURT: THE RESPONDENT 35 The respondent argues that the Tribunal was correct to hold that s16(3)(c) of the PP Act precluded regard being had to the Government Response in determining whether there had been a waiver of professional privilege in the AGD advice. The respondent argues that s 16(3)(c) means that the Government Response cannot be used as a foundation for the contention that there has been a waiver of legal professional privilege. This is said to be so because a judgment, formed on the basis of inferences or conclusions regarding the content of the AGD legal advice referred to in the Government Response, is necessary in order to decide whether or not the publication of the Government Response is inconsistent with the maintenance of the legal privilege now asserted by the respondent. 36 In relation to the publication on the internet of the Government Response, the respondent asserts that the mere fact of the republication does not deprive the Government Response of the character of proceedings in Parliament as it was incidental to transacting the business of the Senate. The respondent also relies upon Senate Standing Order 167 and s 16(2)(d) of the PP Act. 37 The respondent submits that, if one may lawfully have regard to the Government Response for the purposes of determining whether waiver of privilege has occurred, there is no relevant inconsistency between the limited reference to the AGD legal advice made in the Government Response and the maintenance of the privilege. Similarly, the summaries of the AGD legal advice given to members of the TWG or MTAG do not to amount to waiver of privilege in the AGD advice. 38 The respondent also argues that the Tribunal's finding that the limited disclosures to the TWG and MTAG were not inconsistent with a claim for privilege is a finding of fact, or at best for the appellant, a finding on a mixed question of law and fact. The appellant's challenge to this finding does not raise a question of law. Accordingly, the appellant's challenge is outside the scope of review by the Court under s 44 of the AAT: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11]-[19]; Comcare v Etheridge (2006) 149 FCR 522 at [13]-[17]. The respondent argues that the Tribunal made no error of law in holding that the extent of the disclosure, and the circumstances in which it was made, were not inconsistent with the confidentiality that attached to the AGD advice.

CONSIDERATION 39 Some general observations are in order before we turn to the resolution of the issues between the parties. 40 Section 42(1) of the FOI Act provided that a document was exempt from production under the FOI Act if it would be privileged from production in legal proceedings on the ground of legal professional privilege. This privilege arises under the common law. To the extent that it may be assumed that waiver is relevant for the purposes of s 42(1), waiver is also a creature of the common law. 41 Waiver may be either express or implied. Here, there was no publication of the entirety of the AGD legal advice; accordingly, the species of waiver relied upon by the appellant is implied waiver. The objective test of implied waiver is that stated by the High Court in Mann v Carnell (1999) 201 CLR 1 at [28]-[29] (Mann) per Gleeson CJ, Gaudron, Gummow and Callinan JJ. Legal professional privilege will be waived, whatever the intention of the person whose conduct is in question, if the conduct of the person seeking to rely upon the privilege is inconsistent with the maintenance of the privilege. Their Honours said at [28]-[29]: …Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received. 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 recognizes 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. 42 This statement of the test is somewhat different from the approach previously stated in Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475 and later in Goldberg v Ng (1995) 185 CLR 83 (Goldberg v Ng). Those decisions focused on the fairness of allowing the privilege to stand. In Goldberg v Ng Deane, Dawson and Gaudron JJ held that in considering whether there is an imputed waiver of legal professional privilege, "the governing consideration is whether fairness requires that the privilege shall cease", irrespective of the intention of the holder of that privilege. The focus is now upon inconsistency of conduct, but in determining whether there has been an inconsistency of conduct, considerations of fairness are still relevant: Mann at [34]. 43 In Osland v Secretary, Department of Justice (2008) 234 CLR 275 (Osland v Secretary, Department of Justice), Ms Osland had been convicted and sentenced to imprisonment for murder. She petitioned the Governor of Victoria for mercy. The Attorney-General for Victoria subsequently issued a press release stating that he had obtained legal advice from three Senior Counsel which recommended that the petition be denied and that the Governor had denied the petition. Ms Osland sought access to the legal advice under the Victorian analogue of the FOI Act. The High Court unanimously held that privilege in the legal advice had not been waived. It was held that the disclosure of the effect of the advice was made for the purpose of satisfying the public that due process had been followed and that the petition had not been refused on political grounds. It is difficult to see how the question of inconsistency which arises in this case could be resolved in favour of the appellant consistently with the decision of the High Court and the statement of principle by Maxwell P in the Court of Appeal of Victoria in Secretary, Department of Justice v Osland (2007) 95 ALD 380 (Secretary, Department of Justice v Osland) which Gleeson CJ, Gummow, Heydon and Kiefel JJ expressly endorsed at [55]. 44 It is now clear that disclosure of the gist of a privileged communication does not necessarily effect a waiver of legal professional privilege. In Secretary, Department of Justice v Osland at [29]-[51], Maxwell P of the Court of Appeal of Victoria reviewed the authorities. At the conclusion of that review Maxwell P said at [49]-[51]: [49] Disclosure of the conclusion (or the gist, substance or effect) of legal advice may, or may not, amount to a waiver of privilege in respect of the advice as a whole. Whether it does in a particular case will depend on whether, in the circumstances of the case, the requisite inconsistency exists, between the disclosure on the one hand and the maintenance of confidentiality on the other. In Bennett, the majority of the Full Federal Court judged that there was inconsistency and hence waiver; in British American Tobacco Australia Services Ltd v Cowell (discussed below), this Court judged that there was not. In each case, there was a disclosure of the gist or substance of advice given. That opposite conclusions were arrived at is simply a reflection of the different circumstances of the respective cases. [50] The content of an advice will often include confidential information about instructions given by the client, or about evidence to be given by a witness, or about forensic investigations being or proposed to be undertaken. These examples are sufficient to demonstrate why it is simply not the case that the disclosure of the conclusions necessarily amounts to, or necessarily entails, the disclosure of the content. There is no necessary inconsistency between disclosure of the one and non-disclosure of the other. [51] As Carnell demonstrates, the inconsistency test readily accommodates the notion that, in appropriate circumstances, the privilege-holder may disclose the content of legal advice to a third party for a particular purpose without being held to have waived privilege in the advice. Likewise, in my opinion, the test of inconsistency is well capable of accommodating the notion that, in appropriate circumstances, the privilege-holder should be able to disclose publicly that it is acting on advice and what the substance of that advice is, without being at risk of having to disclose the confidential content of the advice. (Footnotes omitted) 45 On appeal to the High Court in Osland v Secretary, Department of Justice, the reasoning of Maxwell P was referred to with express approval in the joint judgment of Gleeson CJ, Gummow, Heydon and Keifel JJ. Their Honours said: [44] On the issue of waiver of privilege in document 9, an issue resolved adversely to the appellant by both the Tribunal and the Court of Appeal, both parties accepted that the principles to be applied were those stated in the joint reasons of four members of this Court in Mann v Carnell. The difference between the parties concerned their application to the circumstances of the present case. [45] Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver "imputed by operation of law". It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances. In the case of Benecke, referred to in Mann v Carnell, and discussed by Maxwell P in the present case, an appreciation of the unfairness if Mrs Benecke could give her version of her communications with her lawyer and at the same time prevent the lawyer from giving her own version was one aspect of the inconsistency between her conduct in making certain kinds of allegation against her lawyer and holding her lawyer to obligations of confidentiality. In the present case counsel for the appellant acknowledged that, if the press release had not included the sentence earlier identified as critical, privilege probably would not have been waived. This is undoubtedly correct, even though, upon that hypothesis, the press release would have made some disclosure concerning legal advice taken by the Department. [46] The conduct of the Attorney-General in issuing the press release and including in it certain information about the joint legal advice is to be considered in context, which includes the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure. … [49] Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell, has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law. [50] The reasoning of Maxwell P was correct. (Footnotes omitted). 46 In Osland v Secretary, Department of Justice, Gleeson CJ, Gummow, Heydon and Kiefel JJ referred with evident approval to another passage in the judgment of Maxwell P in the Court of Appeal which makes the point that there is no necessary inconsistency in stating the effect of advice and maintaining a claim of privilege. Their Honours said at [35]: After a discussion of a number of cases argued by the parties to be analogous, Maxwell P expressed his conclusion that the Tribunal's decision on waiver was not only open but was clearly correct. He gave his reasons as follows: Amongst the circumstances relevant to determining inconsistency, it is clear from Carnell and Bennett that the purpose for which the privilege-holder made the disclosure is highly relevant. The question here was whether the use made by the Minister of the disclosed portion of the privileged communication - more particularly, the purpose for which the conclusion was disclosed - was inconsistent with the maintenance of confidentiality in respect of the content of the advice. First it is necessary to restate the purpose of the confidentiality which the privilege preserves. In Grant v Downs, Stephen, Mason and Murphy JJ said: 'The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.' Later, in Baker v Campbell, Mason J noted that the underlying policy of the privilege covering legal advice 'involved the promotion of freedom of consultation generally between lawyer and client.' In the same case, Deane J said that the principle underlying the privilege was that 'a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by the subsequent disclosure of confidential communications.' The evident purpose of the Attorney-General's disclosure was to inform the public that the recommendation he had made to the Governor - that the petition for mercy be denied - was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected. The Attorney-General evidently wished it to be known that, in considering whether or not the prerogative of mercy should be exercised, he had taken independent advice and was making a recommendation which accorded with that advice. In the language of Carnell, this was a disclosure 'for the purpose of explaining or justifying' the Attorney-General's actions. The purpose was similar to that of the disclosure in Carnell itself, where the Chief Minister wished to satisfy the relevant member of Parliament that the ACT Government 'had acted responsibly and in accordance with legal advice'. In my opinion, there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, and wishing to maintain the confidentiality of the advice itself. This was not a case of a party to litigation 'deploying' a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication. Nor was it 'the laying open of the confidential communication to necessary scrutiny'. 47 In the present case it cannot be said that the respondent, or the executive government generally is seeking to deploy a partial disclosure of the AGD legal advice for forensic or any other advantage. That is, in our opinion, decisive of this appeal. But we should address the specific issues which were agitated in this Court.

THE PP ACT AND THE TABLING OF THE GOVERNMENT RESPONSE IN THE SENATE 48 If one looks at this issue in the round, rather than as one question in a sequence of separate questions, one can see that the appellant is confronted by a dilemma. To avoid the threat presented by s 16(3) of the PP Act, the appellant is driven to say that it seeks to refer to the tabling of the Government Response in the Senate only to show that the words were published. However, if one does not go further and invite the inference that the reference reveals an inconsistency in the position of the respondent in now seeking to maintain legal professional privilege, then there can be no basis for the conclusion that the privilege has been waived. If the appellant seeks to show the inconsistency necessary to make good its waiver argument, it must be gored by s 16(3) of the PP Act. 49 In our opinion, it is not possible to avoid the conclusion that the appellant does indeed seek to make use of the tabling of the Government Response to permit the drawing of an inference adverse to the government. Since inconsistency in maintaining the privilege is the point on which waiver turns, for the appellant to succeed it must persuade the Court that the conduct of the respondent in insisting upon the privilege is inconsistent with the publication of the Government Response by tabling it in the Senate. That is precisely the kind of reflection which may not be made upon the conduct of those whose published statements are within the protection of s 16(3) of the PP Act.

THE PP ACT AND THE GOVERNMENT RESPONSE ON THE INTERNET 50 On the other hand, we are unable to accept the respondent's contention that s 16(3) extends to the publication by the executive government (or anyone else) of statements made in the Parliament. 51 The respondent relies upon s 16(2)(c) of the PP Act as indicating that the reach of s 16(3) is extended to catch the subsequent publication by the government. In our opinion, subsequent publication by the executive government cannot be regarded as "incidental" to the transacting of the business of the House or of a committee. No other view is open where there is nothing to show that the subsequent publication was not the decision of officers of the executive government taken independently of the views of the legislature. The respondent's argument fails to acknowledge that s 16(2) of the PP Act is concerned with what is incidental to the activities of the legislative arm of government and that the publication by the executive government was, on the face of things, unrelated to the business of either house of the legislative branch. 52 The respondent also argues that Senate Standing Order 167 means that the republication of the Government Response was itself a "proceeding in Parliament". This is said to be because s 16(2) of the PP Act includes, as one species of "proceedings in Parliament" to which s 16(3) applies: (d) … the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published." 53 Senate Standing Order 167 provides: The publication of each document laid on the table of the Senate is authorised by this Standing Order. 54 It is not clear that Senate Standing Order 167 authorises publication by persons other than the officers of the Parliament or Hansard. But if its purpose is to speak to persons other than the officers of the Parliament or Hansard it hardly meets the description in s 16(2)(d) where the words "by or pursuant to an order of a House" appear to be concerned with reports required by the House to be published. Senate Standing Order 167 seems, on its face, to be intended to do no more than to signal a retreat from the privilege previously asserted by the Parliament at Westminster to restrain the publication of its proceedings: see Prebble v Television New Zealand Ltd (1995) AC 321 at 336-337. Senate Standing Order 167 certainly does not require any person to publish any document tabled in the Senate. 55 The Courts should not be astute to confine the scope of parliamentary privilege, but neither should they give effect to exorbitant claims which are apt to interfere with the rights of subjects without any corresponding benefit in terms of the freedom of debate in Parliament and the protection of Parliamentarians. See Buchanan v Jennings at [6] - [10]. It would, we think, give an unduly expansive operation to the provisions of Senate Standing Order 167 to regard it as clothing with parliamentary privilege any re-publication by any stranger of any document tabled in the Senate. And for present purposes, the officers of the executive government who published the Government Response on its website were strangers to the Senate. 56 We consider that the Tribunal erred in law in failing to address the argument that the publication of the Government Response on the government's website was not a proceeding in parliament. This Court is at liberty to proceed under s 44(4) and (5) of the AAT Act. It is, in our opinion, better that this Court endeavour finally to conclude the matter if it can, rather than remit the matter to the Tribunal for further consideration. In this regard, it is in our opinion, clear that there is no basis for concluding that the publication of the Government Response on the internet effected a waiver of the privilege in the AGD legal advice. 57 On the authorities to which we have referred, it is the deployment of the Government Response to achieve some advantage for itself or to disadvantage another person which gives rise to the possibility of inconsistency. The Government Response is not currently being so deployed and there is no reason to apprehend that this will occur. 58 There is no litigation on foot between the appellant and the respondents in which the AGD legal advice might conceivably be relevant. And even if it were the case that use in Parliamentary debate might provide an appropriate context for the question of inconsistency to arise, there is no basis on which the Tribunal or this Court might conclude that the government has sought, or will seek, to deploy a summary of the AGD legal advice to its advantage, or to the disadvantage of another party.

The TWG AND THe MTAG AND THE DISCLOSURE IN THE PROCEEDINGS BEFORE THE TRIBUNAL 59 There is force in the respondent's argument that the only "questions" arising in relation to the Tribunal's findings in relation to the provision of summaries to the TWG, the MTAG and the disclosure in the course of the proceedings below, are questions of fact or mixed fact and law and accordingly beyond the scope of an appeal to this Court. But even if an assumption favourable to the appellant is made in this regard, we are of the opinion that the Tribunal's decision was correct. 60 The first proposition which is critical to the appellant's argument under this heading is that the information was disclosed by the executive government to outsiders. We are unable to accept that proposition in relation to the members of the TWG and the MTAG. They were, for the purposes which informed the disclosure to them, counsellors to the government. They cannot sensibly be seen as outsiders. 61 Secondly, for the reasons given in relation to the publication of the Government Response on the internet, we consider that the publications which occurred were not inconsistent with the maintenance of the privilege in the AGD legal advice. And, of course, in relation to the disclosure to the MTAG, there is not even the possibility, as a matter of evidence, for a conclusion in favour of the appellant. 62 In any event, we accept that the Tribunal's findings in relation to the circumstances in which summaries of the advice were provided to the TWG and the MTAG, and in the proceedings below, were correct.

CONCLUSIONS 63 For these reasons, we have concluded: 1. The Tribunal did not err in law in concluding that it was precluded by s 16(3) of the PP Act from deciding whether the tabling of the Government Response in the Senate was inconsistent with the maintenance of legal professional privilege in the AGD legal advice. 2. The Tribunal did not err in law in concluding that the disclosures to the TWG, the MTAG or in the proceedings before the Tribunal were not inconsistent with the maintenance of the privilege. 3. The Tribunal erred in law in failing to consider and deal with the appellant's contention that the disclosure of the Government Response on the government's website effected a waiver of the privilege. 4. Pursuant to s 44(4) and (5) of the AAT Act, that the disclosure of the Government Response on the government's website was not inconsistent with the maintenance of the privilege.

ORDERS 64 The appellant's applications to amend the notice of appeal should be allowed. 65 The appeal should be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Keane CJ, Downes and Besanko JJ.

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