1. The affidavit of Mr Nicholas Riordan (Riordan Affidavit) sets out the Respondent's claims for legal professional privilege in respect of each of the documents. A supplementary affidavit by Mr Riordan also formed part of the evidence. Mr Riordan gave evidence to the Tribunal in support of his affidavit.
2. The Applicant was unrepresented and not legally qualified and so was unfamiliar with the cross-examination process. She stated that her interactions with the Respondent over many years have had a significant impact on her health. She appeared anxious at the prospect of cross-examining Mr Riordan so was not pushed. His evidence was therefore unchallenged. In oral closing submissions the Applicant did seek to challenge the evidence contained in the Riordan Affidavit. The Applicant had also lodged a response to the Riordan Affidavit along with her Statement of Facts, Issues and Contentions prior to the hearing. Such circumstances required my consideration of rule in Browne v Dunn.[2][3] In the case of an unrepresented applicant allowing for the rule to be invoked against them would seem harsh.[4] In Poidevin and ASIC[5] the Tribunal held that ultimately it is a question of procedural fairness. I consider that the witness was on notice because of the response that was provided to his affidavit. Therefore, I do not consider strict application of the rule to be appropriate in these circumstances.
3. A Joint Tribunal Book (JBT) was tendered in evidence.

1. The issues for the Tribunal to determine are as follows:

(a) whether the documents in issue are exempt or exempt in part under s 42(1) of the FOI Act, because they are subject to legal professional privilege, and > > (b) whether a further five documents fall within the scope of the Applicant's FOI requests and if not, whether they are exempt by reason of being irrelevant under s 22 of the FOI Act.

2. The Respondent submits that the question for the Tribunal is that on the evidence, which was not challenged by cross-examination, in the hearing the privilege claims have been made out and that reference to the documents- while not being necessary-will confirm that is the case.

1. There is a long history of interactions between the Applicant and the Respondent including previous interactions in the Tribunal (Earlier AAT Proceeding).
2. The Applicant was one of the owners of a higher education provider, ParaPharm Pty Ltd, trading as Paramount College of Natural Medicine (PCNM), which had its application for renewal of its registration and accreditation (Renewal Application) refused by the Respondent in 2015.
3. It is the Respondent's decision to refuse the renewal application that resulted in FOI requests being made by the Applicant that are the subject of these proceedings:

(a) The first FOI request was made by the Applicant on 30 January 2022 (2022 FOI Request), and was the subject of the 2022 Internal Review Decision.[6] > > (b) The second FOI request was made by the Applicant on 1 February 2023 (2023 FOI Request), and was the subject of the 2023 Internal Review Decision.[7]

4. Schedules of the documents remaining in issue in these proceedings, as proposed to be revised by the Respondent, are included at Annexures NHRT-1 and NHRT-2 to the Riordan Affidavit (the 2023 Revised Schedule and 2022 Revised Schedule, respectively):

(a) the 2023 Internal Review Decision concerns documents referred to as Documents 007 to 572 in the 2023 Revised Schedule (noting that not all documents in said numbering remain in issue); > > (b) the 2022 Internal Review Decision concerns documents referred to as Documents 1.021 to 9.021 in the 2022 Revised Schedule (again noting that not all documents in said numbering remain in issue).

5. Close to 800 documents remain in issue for the consideration of the Tribunal. The Respondent has grouped these documents into 14 categories based on the character of the document and the basis of the legal professional privilege claim. The Applicant did not object in principle to this categorisation.

(a) Category 1: Legal advice provided by TEQSA's legal team in the course of an earlier FOI request. > > (b) Category 2: Legal advice provided by TEQSA's legal team on Senate Estimates processes. > > (c) Category 3: Legal advice provided by TEQSA's legal team in the course of TEQSA's decision to refuse to renew Parapharm's registration. > > (d) Category 4: Communications with third party experts. > > (e) Category 5: Communications relating to a claim for compensation made by the Applicant and another former owner of PCNM in 2020 for compensation under the Compensation for Detriment caused by Defective Administration (CDDA) scheme. > > (f) Category 6: Advice provided by TEQSA's legal team in the course of drafting correspondence and other documents in connection with the Earlier AAT Proceeding. > > (g) Category 7: Advice provided by TEQSA's legal team on the Tribunal process. > > (h) Category 8: Brief to counsel. Category 8 comprises briefs to counsel engaged in the Earlier AAT Proceeding and communications between TEQSA's in-house and external lawyers about such briefs. > > (i) Category 9: Expert Evidence for Earlier AAT Proceeding. > > (j) Category 10: Preparing documents for TEQSA to file in Earlier AAT Proceeding. > > (k) Category 11: Instructions and advice in the course of the Earlier AAT Proceeding. > > (l) Category 12: Updates provided in the course of the Earlier AAT Proceeding. > > (m) Category 13: Documents provided and investigations undertaken for Earlier AAT Proceeding. > > (n) Category 14: Other documents which record privileged information.

6. The other category of documents that remain in issue are the documents the Respondent submits fall outside the scope of the Applicant's FOI requests and if not, are exempt by reason of being irrelevant under s 22 of the FOI Act. These are documents 7.384; 7.349 in the 2022 Revised Schedule and 86, 489, 363 in the 2023 Revised Schedule at Annexures NHRT-1 and NHRT-2 of the Riordan Affidavit.

"(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:

(a) requiring agencies to publish the information; and

(b) providing for a right of access to documents.

(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the Government's activities

(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost."

1. Section 3A sets out objects for information or documents otherwise accessible:

This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act. > > Publication and access powers not limited > > (2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power: > > (a) in the case of the power to publish the information or document--despite any restriction on the publication of the information or document under this Act; and > > (b) in the case of the power to give access to the information or document--whether or not access to the information or document has been requested under section 15.

2. Section 11(1)(a) of the FOI Act provides that "Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: ... a document of an agency, other than an exempt document".
3. Under the FOI Act, a document may be either an "exempt document" or be "conditionally exempt".
4. Under s 93A of the FOI Act, the Information Commissioner has issued Guidelines (FOI Guidelines) that the Tribunal must have regard to when making its decision.[8] The FOI Guidelines provide:

"[3.97] The obligation to prepare an edited copy of a document so that it does not contain exempt or irrelevant content is subject to the following conditions: > > • it is possible for the agency or minister to prepare an edited copy of the document (s 22(1)(b)) > > • it is reasonably practicable to prepare an edited copy, having regard to the nature and extent of the modification required, and the resources available to modify the document (s 22(1)(c)), and > > • it is not apparent, from an applicant's request or consultation with the applicant, that the applicant would decline access to the edited copy (s 22(1)(d)). > > [3.98] Applying those considerations, an agency or minister should take a common sense approach in considering whether the number of deletions would be so many that the remaining document would be of little or no value to the applicant. Similarly, the purpose of providing access to government information under the FOI Act may not be served if extensive editing is required that leaves only a skeleton of the former document that conveys little of its content or substance."

Section 42 - Exemption for Documents Subject to Legal Professional Privilege

A document is exempt if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.[9]

2. The FOI Guidelines include (with footnotes and citations omitted) the following guidance to assist with determining whether a document attracts legal professional privilege:

5.145 To determine the application of this exemption, the decision maker needs > > to turn to common law concepts of privilege. The statutory test of client legal > > privilege under the Evidence Act 1995 is not applicable and should not be taken into > > account. > > 5.146 It is important that each aspect of the privilege, as discussed below, be > > addressed in the decision maker's statement of reasons. > > Whether a document attracts legal professional privilege > > 5.147 Legal professional privilege applies to some, but not all, communications > > between legal advisers and clients. It may also apply to some, but not all, > > communications between the client and their legal adviser and a third party, to > > enable the client to obtain legal advice or for use in litigation, either actual or within > > the reasonable contemplation of the client. > > 5.148 The underlying policy basis for legal professional privilege is to promote full > > and frank disclosure between a lawyer and client to the benefit of the effective > > administration of justice. It is the purpose of the communication that is > > determinative. Legal professional privilege protects documents which would > > reveal communications between a client and their lawyer made for the dominant > > purpose of giving or obtaining legal advice. The information in a document is > > relevant and may assist in determining the purpose of the communication, but the > > information in itself is not determinative. > > 5.149 At common law, determining whether a communication is privileged > > requires a consideration of: > > • whether there is a legal adviser-client relationship > > • whether the communication was for the dominant purpose of giving or > > receiving legal advice, or for use in connection with actual or anticipated > > litigation > > • whether the advice given is independent > > • whether the advice given is confidential. > > ... > > The scope of a claim of legal professional privilege over a document > > 5.165 In light of AAT authority, agencies and ministers should consider whether > > the entire contents of a document meets the dominant purpose test. If the entire > > contents of the document does not meet the test, agencies and ministers should, if > > reasonably practicable, consider giving the FOI applicant access to material that is > > not of itself privileged (while remaining mindful of the consequence of unintended > > waiver of privilege (see below at [5.168] - [5.176]). In considering whether it is > > reasonably practicable to prepare an edited copy of a privileged document under > > s 22 of the FOI Act so the edited document does not disclose exempt material, the > > decision maker should consider whether editing will leave only a skeleton of the > > former document that would convey little content or substance. In which case, the > > purpose of the FOI Act may not be served by disclosing an edited copy and the > > document should be exempt in full (see Part 3). > > ... > > The 'real harm' test > > 5.177 A 'real harm' criterion is not an element of the common law doctrine of > > legal professional privilege. Likewise, the test is not a feature of the FOI Act. > > Historically, government, through convention, has referenced the test as a relevant > > discretionary factor in determining FOI requests. > > 5.178 An agency's or minister's decision on the 'real harm' criterion is not an > > issue that can be addressed in an IC review for the reason that the Information > > Commissioner cannot decide that access is to be given to a document, so far as it > > contains exempt matter. > > 5.179 In the IC review decision of 'ACV' and Tertiary Education Quality and > > Standards Agency (Freedom of information) [2023] AICmr 3 [89]-[90] ('ACV'), the > > FOI Commissioner observed that agencies are not legally bound to refuse access to documents if they are except under the FOI Act (see 3A). In ACV the contents of the relevant document were said to be 'anodyne' and disclose little more than what was disclosed to the applicant in the final version of correspondence sent to them. In such circumstances, the FOI Commissioner advised the agency to consider providing access to the document.

1. The FOI Guidelines provide that the right to access documents is limited to documents that exist at the time an FOI request is made.[10] It further states that an FOI Application cannot insist that their FOI request cover documents created after the FOI request is received.[11]

Section 22 - Exemption for Irrelevant and Out of Scope Material

1. Section 22(1) of the FOI Act allows an agency to delete from a document, before release, information that would be 'reasonably regarded as irrelevant to that request' (s 22(1)(a)(ii)), so that a copy of the document not containing that material can be disclosed.

1. The Applicant submits that PCNM's dealings with the Respondent were of a 'due process' nature, none of which represented legal procedures or were the subject of actual, or anticipated litigation.
2. Consistent with this, the Applicant does not regard Tribunal proceedings equivalent to 'court litigation' as it is a merits-based review of the decision in question. In this regard, the Applicant also submits that the Respondent is taking an overly litigious approach to Tribunal proceedings.
3. In the hearing, the Applicant pointed to several of the redated documents to submit many of the documents appear:

(a) administrative in nature and authored by non-lawyers > > (b) to be previous iterations of documents that were provided in a complete form, and > > (c) to be copied to third parties or group mailboxes.

4. In the hearing, the Applicant also directed the Tribunal to the 'real harm' test in [5.177]-[5.179] of the FOI Guidelines.
5. The Applicant further submits that its senior officers, including its General Counsel, are required to meet the APS Code of Conduct; the Respondent is required to act as a model litigant when dealing with its providers; and has an obligation to assist the Tribunal. The Applicant has not produced evidence to support these allegations.

1. The Respondent submits that in the context of these proceedings there are a number of specific considerations applicable to legal professional privilege:

(a) a substantial amount of the communications relevant to these proceedings involve in-house lawyers. The Respondent submits that communications with in-house lawyers attract legal professional privilege in the same way as communications with external lawyers do. The Respondent further submits this principle applies to in-house government lawyers just as it does to in-house lawyers in the private sector and it is well established that government legal advice is capable of attracting legal professional privilege provided that the employer consulted the employed solicitor in a 'professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client.'[12] > > (b) once a legal adviser-client relationship has been established, the scope of the privilege is to be understood broadly.[13] The Respondent points to authority to support the proposition that: > > ...legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.[14] > > (c) legal professional privilege applies to confidential communications passing between a legal adviser or client and a third party if made for the dominant purpose of use in, or in relation to, proceedings in this Tribunal, just as it applies to court proceedings.[15] On this point the Respondent notes that a contrary view has been expressed, however, the Tribunal has previously not applied that view.[16] > > (d) legal professional privilege applies in relation to expert reports prepared for litigation. The general principles regarding litigation privilege in relation to expert reports and associated material are summarised in Australian Securities and Investments Commission v Southcorp Ltd.[17]

2. The Respondent submits that the following observations can be made about the documents in issue as a whole:
   1. a large number of the documents in issue record confidential communications passing between the client (internal TEQSA teams) and the TEQSA in-house legal team, or between the client or the TEQSA in-house legal team and their external legal advisers
   2. a substantial amount of the documents in issue also record confidential communications for the dominant, if not the sole, purpose of obtaining advice and/or advising on strategy in connection with the Earlier AAT Proceeding, and
   3. other documents in issue record confidential communications for the dominant, if not the sole, purpose of obtaining advice on an earlier FOI request from a member of the public, the Renewal Application and the CDDA Claim.

Are the documents in issue exempt or exempt in part under s 42(1) of the FOI Act, because they are subject to LPP?

1. The FOI Guidelines say that to determine the application of the LPP exemption the decision maker needs to turn to the common law concept of privilege.[18] The party claiming the privilege bears the onus of proving the facts necessary to establish that the privilege applies.[19]
2. Before considering the documents in issue it is necessary to consider the LPP principles at issue in this case. These are:

(a) the existence of a legal adviser-client relationship in the context of in-house lawyers in government agencies > > (b) whether the communications were created for the dominant purpose of giving or receiving legal advice or in connection with actual or anticipated litigation, including does the litigation privilege apply in the Tribunal, and > > (c) whether the advice given is independent and confidential.

(a) Existence of a legal adviser-client relationship and in-house lawyers in government agencies

1. For LPP to apply the legal advice must be given by the legal adviser in the context of a professional relationship.
2. The FOI Guidelines at [5.156] refer to the decision of Deputy President Tamberlin in Ransley and Commissioner of Taxation [2015] AATA 728 in support of the proposition that:

communications and information between an agency and its qualified legal advisers for the purpose of giving or receiving advice will be privileged whether the legal advisers are salaried officers [or not], provided they are consulted in a professional capacity in relation to a professional matter and the communications arise from the relationship of lawyer-client. There is no requirement that an in-house lawyer hold a practicing certificate provided the employee is acting independently in giving the advice.

3. In Ransley, it was also said that there is no separate requirement of independence where an in-house lawyer was acting in their professional capacity as their employer's lawyer and the communication otherwise meets the requirements of the dominant purpose test.[20]
4. Further, in Andrianakis v Uber Technologies Inc; Taxi Apps Pty Ltd v Uber Technologies Inc[21] it was said that the fact that some in-house lawyers may have a mixed role in their organisation does not preclude their documents/communications from attracting privilege:

... In the end, it all comes down to a consideration of the particular organisation, the individual in-house lawyers, the context, and the specific communications or documents.[22]

1. The position in relation to government lawyers has been examined extensively by the Tribunal and the courts. It is well established that LPP extends to confidential communications between in-house lawyers and their government agency.[23] For it to extend there needs to be a legal adviser-client relationship and the communication with the lawyer is in their capacity as a legal adviser and not in some other capacity, for example policy advice.[24] There must also be the necessary degree of independence in the circumstances in which the advice was given and the document must be created for the purpose of giving legal advice.[25] As stated in [36] there is no separate requirement of independence, however an in-house lawyer can lack the necessary requisite of independence if their advice is at risk of being compromised by virtue of the relationship with their employer e.g. because they hold personal loyalties.[26]
2. The Riordan Affidavit states that TEQSA's legal team is a separate unit within the agency's organisational structure and that lawyers are engaged as professional legal advisers for the purpose of providing legal advice and services to the agency.[27] The Riordan Affidavit also states that legal officers are admitted to practice and supervised by and accountable to him as the General Counsel.[28] The Riordan Affidavit further states that at the time the lawyers prepared the documents in issue they were providing legal advice to TEQSA and not policy or administrative advice.[29]
3. I am satisfied based on the evidence that the relationship between the officers in the legal team and other officers of the Agency is that of lawyer-client with the requisite degree of independence.

(b) whether the documents were created for the dominant purpose of giving or receiving legal advice or in connection with actual or anticipated litigation

1. Legal professional privilege attaches to a confidential communication between lawyer and client made or created for the dominant purpose of the lawyer providing legal advice, or for the dominant purpose of use in existing or anticipated litigation.[30] This dominant purpose test, as opposed to a sole purpose test, was confirmed by the High Court in Esso Australia Resources Ltd v Commissioner for Taxation.[31]
2. The dominant purpose must predominate over other purposes and is not the same as the 'primary' or 'substantive' purpose.[32] In AWB Ltd v Cole, Young J explained with reference to Kenny J in Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd,[33] that where two purposes are of equal weight neither is dominant hence a document is not privileged from production where one purpose for its creation is to obtain legal advice but there is another equally important purpose.[34]
3. The FOI guidelines say that decision-makers should consider whether the entire contents of a document meet the dominant purpose test.[35] It further says that if the entire contents of the document do not meet the test, consideration should be given to access to the material that is not privileged, if reasonably practicable.[36]
4. Whether a document attracts legal professional privilege is a question of fact that must be determined objectively, having regard to the evidence, the nature of the documents and the parties' submissions.[37] However, Moshinsky J explained in Commissioner of Taxation v PricewaterhouseCoopers[38] that subjective factors can also come into play:

Whether a communication is for the dominant purpose of legal advice depends on the particular facts. The character of some documents may be sufficient to establish the purpose for which they were brought into existence. In other instances, particularly in a case where the documents themselves do not disclose the purpose for which they were created, it may be necessary to identify the circumstances in which the communication took place and the topics to which the instructions or advice were directed.

1. In Re Farnaby and Military Rehabilitation and Compensation Commission the Tribunal considered whether litigation privilege applies in the Tribunal.[39] It was held that Tribunal proceedings are sufficiently analogous to court proceedings 'to warrant the recognition of privilege'.[40] Further, it was said that in determining whether LPP applies it is not useful to characterise proceedings as 'either inquisitorial or adversarial'[41] but what is more useful is to look at the proceedings themselves and consider whether they carry features that warrant the recognition of the privilege.[42]

(c) whether the communication was confidential

1. LLP only attaches to confidential communication. Section 42(2) of the FOI Act provides that a document is not exempt under s 42(1) if 'the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim'. This applies to both an expressed or implied waiver of the privilege. The Riordan Affidavit states that TEQSA and its legal advisers have at all times treated the documents in issue in the proceedings as confidential.[43] Mr Riordan further states in his Affidavit that he is not aware of any conduct by TEQSA which would be inconsistent with keeping the documents confidential.[44] However, as stated by Mr Riordan in his supplementary Affidavit unredacted versions of several documents in the schedules have already been released to the Applicant in error.[45]

1. The Tribunal may examine the documents in issue in order to resolve questions of privilege.[46] In considering the documents in issue I have considered the orthodox position that while I have the discretion to examine documents to resolve questions of privilege, it is the responsibility of the party claiming privilege to provide enough evidence to support their claim and the power of inspection is not to be used as a substitute for evidence.[47]
2. At the hearing, Council for the Respondent submitted that the sworn evidence, that was not challenged, is sufficient to make out the privilege claims and it is not necessary to examine the document. It was further submitted that reference to the documents will only reinforce that being the case. Nonetheless when taking me through the evidence he invited me to read, by way of an example, some of the documents in issue unredacted. Likewise, the Applicant took me to several of the documents and I read them unredacted.
3. I consider the documents below as grouped by the Respondent by category depending on the character of the documents that make them subject to LPP:

Category 1: Legal advice provided by TEQSA's legal team in the course of an earlier FOI request.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 1 include confidential communications between TEQSA's in-house legal team and other areas of TEQSA for the purpose of providing legal advice on a FOI request from a member of the public. In addition, it is stated in the Affidavit some of the documents in this category include confidential communication between staff in TEQSA's in-house legal team and staff in other areas of TEQSA for the purpose of providing legal advice on responding to a media query.
2. I have examined a sample of documents 1.21, 1.22, 1.24, 1.38, 1.40, 1.41, 1.44, 1.56, 1.66 and 1.69 of the 2022 Revised Schedule. I separately examined the documents 32, 33, 108, 417 of the 2023 Revised Schedule related to a media query. I examined these documents to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. I am satisfied that the documents in Category 1 are exempt under s 42 because they satisfy the necessary factors to claim the privilege. My examination of the documents reinforced that their content represents confidential communications brought into existence for the dominant purpose of TEQSA's in-house lawyers providing legal advice in the course of an earlier FOI request. I have considered above whether TEQSA's in-house lawyers are sufficiently independent. I do not consider that the advice has been made public or waived in any way.
4. However, what struck me in examining the documents was the anodyne nature of some of their content. It confounds me, like it confounded the previous Information Commissioner in 'ACV' and Tertiary Education Quality Standards Agency (Freedom of Information),[48] why the agency has felt compelled to maintain its denial of access to so many of the documents at issue. Most of the documents I examined seem to disclose little more, and in some cases no more, than what has already been disclosed to the Applicant. Like noted in that decision, it is made clear in s 3A of the FOI Act that the agency is not legally bound to refuse access. In this regard, I consider that TEQSA has not given consideration of the 'real harm' test outlined by the Office of the Australia Information Commissioner. I consider that when assessing whether real harm could occur that both the actual likelihood and consequence are assessed to determine the level of risk. I note in this regard that TEQSA has by mistake provided unredacted documents to the Applicant. TEQSA could use this mistake as a measure for determining the likelihood and consequence of 'real harm' occurring if other information was release voluntarily.

Category 2: Legal advice provided by TEQSA's legal team on Senate Estimates processes.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 2 include confidential communications between TEQSA's in-house legal team and other areas of TEQSA for the purpose of providing legal advice in response to senate estimates questions.
2. I examined all of the documents in this category in Revised Schedule 2022 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. For the same reasons as Category 1, the documents in Category 2 are subject to legal professional privilege. I reiterate my comments in [53] regarding the consideration of 'real harm' given the passage of time and that responses have been provided to the relevant Senate Committee.

Category 3: Legal advice provided by TEQSA's legal team in the course of TEQSA's decision to refuse to renew Parapharm's registration.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 3 represent confidential communications between TEQSA's in-house legal team and other areas of TEQSA for the purpose of providing legal advice on the decision to refuse ParaPharm's registration and accreditation including providing legal advice on the preparing of statements of reasons for the decision.
2. I examined documents 5.31, 5.37, 5.38, 5.39, 5.40, 5,43, 5.44, 5.45, 5.46, 5.47, 5.48, 5.49, 5,50 in Revised Schedule 2022 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. For the same reasons as Category 1, the documents in Category 3 are subject to legal professional privilege.

Category 4: Communications with third party experts.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 4 represent confidential communications between TEQSA's Provider Assessment and Engagement Team, on advice from TESQA's in-house lawyers, with expert witnesses engaged for the purposes of the Earlier AAT Proceeding. Experts engaged by TEQSA for the purposes of the Earlier AAT Proceeding are subject to s 188 of the Tertiary Education Quality and Standards Agency Act 2011 (Cth), which makes it an offence for a person to use or disclose higher education information that they have obtained in their capacity as a person performing a service for TEQSA.
2. In addition, it is stated in the Riordan Affidavit some of the documents in this category include confidential communication between staff in TEQSA's in-house legal team and other agency staff for the purpose of preparing correspondence to a prospective expert in connection with the conduct of the Earlier AAT proceeding.
3. I examined all of the documents in this category in Revised Schedule 2022 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
4. For the same reasons as Category 1, the documents in Category 4 are subject to legal professional privilege. However, I reiterate my comments in [53] regarding the consideration of 'real harm'. In the main, these documents appear particularly anodyne in nature.

Category 5: Communications relating to a claim brought under the CDDA Scheme.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 5 are confidential communications created for the dominant purpose of providing legal advice relating to the CDDA Claim and also updates provided to TEQSA Commission in relation to the CDDA claim. The Riordan Affidavit disposes that TEQSA's in house lawyers were acting in their capacity as professional legal adviser and the communications were for the dominant purpose of the CDDA decision maker seeking and receiving legal advice as to the appropriate steps to take in the context of the CDDA Claim, rather than merely concerning administrative matters.
2. I examined documents 7.03, 7.05, 7.06, 7.07, 7.11, 7.13, 7.15, 7.23, 7.25, 7.26, 7.27, 7.28, 7.29 in Revised Schedule 2022 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. In doing so the content of a particular document caught my attention. This is document 7.25 which are the notes by a senior TEQSA lawyer on the CDDA claim which she emailed to herself. I do not accept that the evidence in the Riordan Affidavit shows this communication is legal advice given by the legal adviser in the context of a professional relationship. I consider that because the communication is between herself the aspect of their being a professional relationship is missing. However, I appreciate that LPP exists to protect the client to enable the client to seek legal advice and that the email contains information that could eventually form part of communications that were for the dominant purpose of seeking and receiving legal advice in the context of CDDA decision-making. As reference to this document has made me suspect the evidence in the Riordan Affidavit rather than reinforce that evidence in relation to this category, I remit all the documents in this category to the decision-maker for reconsideration.

Category 6: Advice provided by TEQSA's legal team in the course of drafting correspondence and other documents in connection with the Earlier AAT Proceeding.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 6 are confidential communications created for the dominant purpose of providing legal advice in the context of the Earlier AAT Proceeding.
2. Given the limited number of documents in this category, I have examined all of the documents in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out. I am satisfied that the other documents in this category are confidential communications prepared for the dominant purpose of obtaining legal advice and also for the purpose of litigation.
3. I note that these documents include drafts of final correspondence that was disclosed. I am also aware that Mr Riordan disposes that he is satisfied that the iterative drafting process which sits behind the document of this nature was created in the context of a professional legal adviser and client relationship for the dominant purpose of providing legal advice.
4. However, my comments above regarding the consideration of 'real harm' are relevant in this regard when considering the level of risk associated with releasing drafts of final documents which are public.

Category 7: Advice provided by TEQSA's legal team on the Tribunal process.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 7 are confidential communications for the dominant purpose of providing legal advice in relation to the Earlier AAT Proceeding.
2. Given the limited number of documents in this category, I have examined all of the documents in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. I am satisfied that the documents in this category are confidential communications prepared for the dominant purpose of obtaining legal advice and also for the purpose of litigation and are subject to legal professional privilege.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 8 concern briefs to counsel engaged in the Earlier AAT Proceeding and communications between TEQSA's in-house and external lawyers about such briefs. Given the limited number of documents in this category, I have examined all of the documents in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
2. Document 91 does not appear to be redacted in the PDF document provided to the Tribunal by the Respondents. If the information has been provided to the Applicant this may also affect the privilege claims in documents 374, 376, 377, 379. I therefore remit these documents to the decision-maker for reconsideration.

Category 9: Expert Evidence for Earlier AAT Proceeding.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 9 concern communications in the context of arrangements for a number of external experts to provide evidence in the Earlier Tribunal Proceedings.
2. I examined documents 40, 112, 157, 192, 212, 217, 226, 236, 259, 420 in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. For the same reasons as Category 1, these documents are subject to legal professional privilege. I am satisfied that the content of these documents in Category 9 are exempt under s 42 because they satisfy the necessary factors to claim both the litigation and advice privilege.

Category 10: Preparing documents for TEQSA to file in Earlier AAT Proceeding.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 10 concern communications which involve the giving or seeking of instruction or advice in respect of draft version of materials required to be filed as part of Tribunal proceedings.
2. I have examined documents 20, 26, 103, 104, 285, 286, 390, 392, 299, 414 and 425 in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. I am satisfied that a professional lawyer-client relationship existed with the external legal adviser and that the documents in this category are confidential communications prepared for the dominant purpose of obtaining legal advice and also for the purpose of litigation.
4. I note that draft documents of this kind are, and remain, subject to legal professional privilege, even if the finalised version of the document is filed.[49] I am also aware that Mr Riordan disposes that the documents address matters such as strategy for the proceedings and attempts to resolve the matter.
5. However, my comments above regarding the consideration of 'real harm' in relation to draft documents in category 6 are also relevant to the documents in this category.
6. Also relevant to documents in this category is that some of the information contained is public information and/or information already known to the Applicant. The FOI guidelines say that in light of Tribunal authority, agencies and ministers should consider whether the entire contents of a document meet the dominant purpose test. If the entire contents of the document does not meet the test, agencies and ministers should, if reasonably practicable, consider giving the FOI applicant access to material that is not of itself privileged while remaining mindful of the consequence of unintended waiver of privilege.[50] Although decision-makers are not bound by the FOI guidelines they are required to have regard to them as doing so can promote consistent and rational decision-making which are important aspects of administrative decision-making.
7. The Riordan Affidavit states[51] that consideration has been given to whether any of the documents could be redacted and released in a way that LPP could be retained. The Riordan Affidavit says this would be a significant undertaking and in 'most, if not all, cases only leave a skeleton of the former document that would convey little or no content or substance at all'. I do not agree with the latter statement given what I have observed about the documents. In relation to the former reason, in terms of the efficient allocation of agency resources, it appears a great deal of agency time and resources (and Tribunal time and resources) have already been expended on protecting information that may not require protection.
8. I therefore remit documents in this category to the decision-maker for reconsideration.

Category 11: Instructions and advice in the course of the Earlier AAT Proceeding.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 11 are similar to documents in Category 10 and represent confidential communications for the dominant purpose of providing or obtaining legal advice and for litigation.
2. I have examined documents 54, 158, 159, 251, 288, 308, 312, 323, 365, 388 and 422 in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. My comments in relation to category 10 regarding whether proper consideration has been given to whether any of the documents could be redacted and released in a way that LPP could be retained are also relevant to some of the documents I inspected in this category. I therefore remit documents in this category to the decision-maker for reconsideration.

Category 12: Updates provided in the course of the Earlier AAT Proceeding.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 12 are communications between TEQSA's in-house legal team and the relevant areas within TEQSA regarding advice sought and obtained by an external legal adviser. It is disposed that the communications were intended to keep TEQSA updated on the timing and progress of the litigation and to inform the instructions required to be provided by the legal team.
2. I have examined documents 12, 82, 174, 305, 328, 440, 458, 472, 480 and 529 in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. I am satisfied that the content of these documents in Category 12 is exempt under s 42 because they satisfy the necessary factors to claim the litigation and advice privilege.

Category 13: Documents provided and investigations undertaken for Earlier AAT Proceeding.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 13 are communications between TEQSA's external and internal lawyers and relevant areas within TEQSA to inform and facilitate counsel and external legal advisors.
2. I have examined documents 87, 235, 261, 262, 263, 264, 275, 370, 381, 382, 383, 384, 404 in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out.
3. I am satisfied that the documents in Category 13 record confidential communications between TEQSA's in-house and external lawyers and TEQSA for the dominant purpose providing legal advice or for litigation and attract legal professional privilege.

Category 14: Other documents which record privileged information.

1. Evidence contained in the Riordan Affidavit is that the documents in Category 14 record confidential communications between TEQSA's in-house and external lawyers and the TEQSA Commission or a summary of communications that were for the dominant purpose of giving and receiving legal advice in the context of the Earlier AAT Proceedings. There are also documents in this category which record TEQSA's legal team providing advice on correspondence outside or after the conclusion of the Earlier AAT Proceedings.
2. Given the limited number of documents in this category, I have examined all of the documents in Revised Schedule 2023 to see whether their content reinforce the evidence contained in the Riordan Affidavit that the privilege claims are made out. Some of these documents are marked as being exempt under s 22 and some do not appear to be redacted which may affect the privilege claims in other documents in the category. I therefore remit these documents to the decision-maker for reconsideration.

Are further documents in issue exempt because they are out of scope or irrelevant to the request?

1. In the present case, the Respondent has identified documents which it considers do not fall within the scope of the Applicant's FOI requests at all, having regard to the words of the request and the context in which it was made. The Respondent has also identified documents which it considers are irrelevant to the request for access.
2. In respect of the 2022 Internal Review Decision, there are two documents considered to be out of scope - document numbers 7.348 and 7.349, each of which is dated 2 February 2022. As to these documents the Respondent submits:

(a) The relevant FOI request was made on 31 January 2022. As these documents postdate the FOI request, they are outside of the scope of the request and are exempt. > > (b) In any event, the two documents concern discussion about the Applicant's FOI request. Such documents are not within the scope of the request.

3. I have examined both these documents.
4. The FOI Guidelines state:

The right of access applies to documents that exist at the time the FOI request was made. An FOI applicant cannot insist that their FOI request cover documents created after the FOI request is received. However, the agency or minister can consider whether to include documents that were created after the FOI request was received. This may be more administratively efficient because the FOI applicant might otherwise submit a new FOI request for the later documents.[52]

5. Given this I consider both documents to be exempt as they are outside the scope of the request because they postdate the date of the FOI request. However, I note the advice regarding administrative efficiency and that it may be more efficient to consider whether to include the documents to avoid the inefficiency created by the Applicant making another FOI request. This would seem particularly appropriate in a case like this where non-disclosure is causing (rightly or wrongly) angst to the Applicant making the likelihood that the Applicant would submit a new FOI request for the document high.
6. In respect of the 2023 Internal Review Decision, the Respondent contends that documents numbered 86, 363 and 489 are irrelevant to the request. The question under s 22(1)(a)(ii) is whether the information might 'reasonably' as opposed to 'irrationally or absurdly' be considered or looked on as irrelevant to the request.[53]
7. The Respondent contends these documents are irrelevant to the requests made by the Applicant as the concern emails within TEQSA's in-house legal team concerning unconnected FOI request and Tribunal proceedings.
8. I have also examined these documents:

(a) I consider document 86 to be irrelevant to the requests, as it does appear to concern a FOI application not related to the Applicant in any way. I also consider document 489 to be irrelevant to the request, as it does appear to concern a Tribunal proceeding not related to the Applicant's Tribunal proceeding in any way. The application of s 22(1)(a)(ii) to the documents in issue would result in the whole of the documents being deleted. > > 1. I consider document 363 could be relevant to the request. There appears to be an error in indexing, I remit this to the decision-maker for reconsideration.

1. In the course of these proceedings the Applicant has made several allegations against the Respondent and Mr Riordan including alleging breaches of the Australian Public Service Code of Conduct.
2. I agree with the Respondent's submission that these allegations are unsubstantiated and unsupported by evidence and are in any event irrelevant to the questions before the Tribunal.[54]
3. The Applicant has also raised concerns about procedural fairness in her dealings with TEQSA and TEQSA's obligations to act as a model litigant and assist the Tribunal.
4. I do not consider this case to be analogous to the situation outlined by Senior Member Manetta in Rex Patrick and Secretary, Department of Climate Change, Energy, the Environment and Water[55] where the Senior Member considered there was a failure to give weight to the statutory regime of the APS Values and Code of Conduct. As indicated above, I do consider that an overly risk adverse approach has been taken to assessing the risks associated with the disclosure of the documents which has resulted in not according sufficient weight to the objectives of the FOI statutory regime.

1. In the main I am satisfied that the sworn evidence contained in the Riordan Affidavit is sufficient to make out the privilege claims and that reference to the documents reinforce that being the case. However, in some cases reference to the documents did not reinforce the privilege claims.
2. Therefore under 105(c)(ii) of the ART Act I have decided it is appropriate to:

(a) set aside the reviewable decisions in relation to the documents in categories 5, 8, 10, 11, 14 and document 363 in respect of the 2023 Internal Review Decision, and > > (b) remit the documents back for reconsideration by the decision-maker.

3. I have considered whether it would be appropriate for the Tribunal to make a decision in substitution for the reviewable decisions in relation to these documents under s 105(c)(i) of the ART Act. However, I consider there are cogent reasons to remit these documents back to the decision-making who is in a better position, for the reasons outlined above, to formulate a decision in substitution for the aspects of the decisions that have been set aside.[56]

I certify that the preceding 113 paragraphs are a true copy of the reasons for the decision herein of General Member Ross.

.....................................................................

Solicitors for the Respondent: Daniel Strazzari

[1] TEQSA stands for the Tertiary Education and Quality and Standards Agency. It is the national quality assurance and regulatory agency for higher education.

[2] (1893) 6 R 676. The rule is that any matter on which it is proposed to contradict the evidence in chief of a witness must normally be put to the witness in order to provide them with the opportunity to respond

[3] L Holcombe, Australian Administrative Law, LexisNexis, Sydney (online at June 2025) at [213.7].

[5] [2019] AATA 6808 at [161].

[6] The terms of the 2022 FOI Request are set out at [20] of the Riordan Affidavit.

[7] The terms of the 2023 FOI Request are set out at [24] of the Riordan Affidavit.

[9] The exemption applies when a document would attract privilege under the common law. The modifications of the common law in the Evidence Act 1995 (Cth) are not relevant for the purposes of

s 42(1): see e.g. Wong and Minister for Immigration, Multicultural and Indigenous Affairs (2006) 90 ALD

[10] Office of the Australian Information Commissioner, FOI Guidelines (Combined November 2023) at [2.43].

[12] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 100 (Waterford).

[13] Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728, [14].

[14] For example, see Sharjade Pty Ltd v RAAF Landings [2008] NSWSC 151, [3(a)].

[15] Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788, [25]-[31], citing Waterford.

[16] Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSLWR 530, [54]-[55] not followed in Farnaby [19], [31].

[17] [2003] FCA 804; (2003) 46 ACSR 438 at [21].

[19] Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728.

[21] [2022] VSC 196 at [138].

[23] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54.

[24] Re Proudfoot and HREOC [1992] AATA 317; (1992) 28 ALD 734.

[26] Seven Network Limited v News Limited [2005] FCA 1551 at [15].

[30] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, [2], [35], [61].

[32] AWB Ltd v Cole (2006) 152 FCR 382 at [105].

[33] [2005] FCA 1247.

[38] (2022) 114 ATR 335 at [146].

[39] Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792.

[41] Ibid at [15] in response to Bergin J conclusion in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) that the AAT stands outside of an adversarial system of justice following a detailed analysis of AAT proceedings being either 'inquisitorial' or 'adversarial'.

[46] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 688-689.

[47] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674. Also see Sea Swift Pty Ltd v Torres Strait Island Regional Council [2023] QSC 160 citing Sifris J in Tabcorp Holdings Limited v State of Victoria [2013] VSC 302.

[48] [2023] AICmr 3.

[49] See Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 2) [2014] FCA 481,

[38]; Kenquist Nomines Pty Ltd v Campbell (No 5) [2018] FCA 853 at [13].

[53] Re Russell Island Development Association and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683 at [691].

[54] Respondent's submissions in reply at [4]-[5].

[56] See discussion of the Guidance and Appeals Panel in Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 153.