[5] On or before 1 March 2024 the Applicant must advise the Tribunal and the Respondent whether he presses for access to those documents in full, and not in redacted form, and if so, provide written submissions in support of his position.

[6] On or before 8 March 2024 the Respondent must give to the Tribunal and the Applicant any written submissions in reply.

1. Ms Watson, for and on behalf of the Respondent in the compensation proceedings, complied with the direction in [4] above on 21 February 2024.[2] The Applicant, in purported compliance with the direction in [5] above, sent the 22 February 2024 email, which was referred to in the request for access, to the Respondent, the Tribunal and various other persons including politicians, but not to Ms Watson or anyone else at HBA Legal.[3] It is apparent from his email that the Applicant was very unhappy to say the least with respect to how his claim was being treated. He said:[4]

This situation has actually gone beyond a joke and some courageous conversations need to be had. Someone needs to act upon these egregious breaches of law and address the failings of Comcare and its legal representative Ms Kate Watson of HBA Legal Canberra.

I refuse to deal with Comcare's legal representative at the AAT and have raised a complaint with the ACT Law Society in relation to her conduct; her response to a summons issued by the AAT on application by me is simply another illustration of why that is the case. I can't tell whether it is wilful misconduct, malicious intent or simple laziness and incompetence that sees Comcare obstructing my access to legal rights and entitlements; however it began, it is now just unconscionable and amounts to a misfeasance in public office (look up the tort, AGS advisory 115).

1. On 12 March 2024, the Tribunal emailed Ms Watson asking for any submissions in reply to the Applicant's written submissions.[5] Ms Watson replied to the Tribunal on 13 March 2024 advising that she had not been served with any submissions from the Applicant and requesting that they be provided so that she could respond.[6]
2. It is in the context of the compensation proceedings in the Tribunal between the Applicant and Comcare and, more particularly, the Applicant's email dated 22 February 2024, that the Applicant wants access to any communications between Comcare and Ms Watson in relation to that email. There is no dispute that those communications would be privileged from production in legal proceedings on the ground of legal professional privilege given they are confidential communications between a lawyer and her client in relation to ongoing litigation in the Tribunal. However, the Applicant claims that the privilege has been waived and that the Respondent has not complied with its obligations under s 22 of the FOI Act.
3. The Respondent claims that two documents described as email correspondence are exempt in full pursuant to s 42 of the FOI Act on the grounds of legal professional privilege and s 22 on the basis that irrelevant matter had been removed.[7] At the hearing before me, the Respondent confirmed that the relevant communication in Document 1 is an email dated 22 March 2024 together with earlier emails as part of an email chain. Further, the Respondent clarified that the legal professional privilege claimed under s 42 relates to the whole of the email chain and that there is no irrelevant matter in Document 1. With respect to Document 2, the Respondent clarified that the two most recent emails in the chain have been deleted as irrelevant matter under s 22 and that the balance of the email chain consists of the email chain in Document 1 starting with the email dated 22 March 2024.
4. The Respondent contends that the claim for exemption under s 42 can be determined by the Tribunal looking at the documents in issue (which have been provided to the Tribunal) in the context of other documents tendered as evidence before the Tribunal. The Respondent has chosen to not put on any affidavit evidence or to call any witnesses to support the privilege claim. That is a matter for the Respondent noting that pursuant to s 61(1)(b) of the FOI Act the Respondent has the onus of establishing that the decision refusing access is justified, or that the Tribunal should give a decision adverse to the Applicant. The Applicant expressed his concern that he was not able to cross examine the relevant lawyer or any of the relevant staff from Comcare. Further, he reiterated his concern that his earlier requests for the Tribunal to issue summons to those persons had been refused. In my view, the Tribunal would not have been assisted by the evidence that could have been given by those persons. Nor was it unfair on the Applicant for the matter to proceed in the absence of those persons. Having had access to the documents in issue, it was apparent that the issues under s 42 and s 22 could be determined by reference to them and the other documents tendered at the hearing.
5. It follows that there was no oral evidence at the hearing. The T documents and the supplementary T documents were tendered as evidence together with some material from the Applicant which consisted mostly of emails from him. I then heard submissions from the parties and reserved my decision on 8 April 2025.

Freedom of Information Act 1982

1. The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General:[8]

...The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.

1. The general objects of the FOI Act are set out in s 3 as follows:

(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. To promote the objects in s 3(1)(b), s 11(1) provides that:

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

1. Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the FOI Act 'subject to this section'.
2. Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
3. The term 'exempt document' is defined in s 4(1) to include: 'a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)'. Section 31B provides that:

A document is exempt for the purposes of this Part if:

(a) it is an exempt document under Division 2; or

(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).

1. The Office of the Australian Information Commissioner has issued Guidelines (FOI Guidelines) under s 93A which requires the Tribunal to have regard to the Guidelines in making its decision. 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 and Case Law on legal professional privilege

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.

1. A document will be exempt from disclosure pursuant to s 42 if it would be privileged from production in legal proceedings on the ground of legal professional privilege. There is no definition of legal professional privilege in the FOI Act and therefore one turns to the common law concepts.
2. The principle of professional privilege to be applied in Australia was first stated by Barwick CJ in Grant v Downs (1976) at 677:[9]

...a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

1. The Applicant does not deny the Respondent's claim based on legal professional privilege but says that the Respondent has waived the right to claim privilege and further that the Respondent has not met its disclosure obligations under s 22(2)(b) of the FOI Act.

1. Documents 1 and 2 are email chains. The claim for privilege applies to all the emails in both chains except in so far as Document 2 contains irrelevant matter. The application of the principles of legal professional privilege in the context of email chains was considered in Commissioner of Taxation v PricewaterhouseCoopers:[10]

[175] The application of the principles of legal professional privilege in the context of email chains was discussed by Thawley J in Kenquist Nominees at [19]. Relevantly for present purposes, I consider that the principles apply to email chains in the following way (referring to the latest email in time as the "latest email"):

(a) If the communication being the latest email was made for the dominant purpose of the giving or receiving of legal advice, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents provided for the dominant purpose of the giving or receiving of legal advice.

(b) For example, if the dominant purpose of the communication being the latest email was the giving of legal advice by a lawyer, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents furnished by the lawyer with the advice being the latest email: see Kenquist Nominees at [19(2)].

(c) By way of further example, if the dominant purpose of the communication being the latest email was the obtaining of legal advice from a lawyer, then the email chain may be privileged because the earlier emails are to be regarded as copies of communications provided to the lawyer for the dominant purpose of obtaining legal advice: see Kenquist Nominees at [19(3)].

(d) The same principles can apply to earlier emails in the chain. For example, it may be that the latest email in the chain is not privileged, but the penultimate email (in time) may be a communication made for the dominant purpose of the giving or receiving of legal advice, and the earlier emails are to be regarded as copy documents which have been provided for the same dominant purpose.

1. Document 1 is an eight-page email chain in reverse chronological order. The most recent emails are between Comcare and Ms Watson dated 22 March 2024 in which advice is sought and is given in relation to the Applicant's compensation claim in Tribunal case number 2023/7232. Included in the email chain are emails of an earlier date relevant to the legal advice being given. Subject to any issue of waiver, the whole of the email chain would be privileged from production in legal proceedings on the ground of legal professional privilege. The reason why the whole of the email chain is protected is because the earlier emails are attached to and form part of the communication on 22 March 2024 between Ms Watson, as the lawyer, and Comcare, as the client. That communication was confidential. The email was marked "Sensitive" and "Legal-Privilege", and it was brought into existence for the purpose of obtaining legal advice and in the conduct of litigation.
2. The findings above in relation to the email chain in Document 1 apply equally to the relevant part of Document 2 which contains the same email chain.
3. The Applicant accepts that, subject to waiver, the documents in issue are privileged. Next, I consider the allegation of waiver.

1. The Applicant relies firstly on the High Court decision of Mann v Carnel where it was held that waiver of legal professional privilege will occur where an earlier disclosure is inconsistent with the confidentiality protected by the privilege.[11] However, Mann v Carnel only has application where there has been an earlier disclosure which is not the case in this matter. The matters raised in paragraphs 90 to 103 of the Applicant's Statement of Facts, Issues and Contentions (SOFIC) lodged on 12 February 2025 do not even amount to an assertion of an earlier disclosure. Ms Watson's email of 13 March 2024 does not disclose any privileged material. In any event, the 13 March 2024 email could not have waived privilege in a communication that had not even been made until 22 March 2024. There is no inconsistency between Ms Watson's conduct and the maintenance of privilege. There is no evidence to suggest that the communications in question have been distributed or the legal advice has been disclosed. Further, the Applicant relies upon the conduct of Ms Watson to find the alleged waiver but it is not her privilege to waive. Rather, if there is a waiver then it must come from the Respondent.
2. The second basis for a waiver claim is "Illegal or improper purpose." The Applicant speculates about the conduct of both Ms Watson and the Respondent at around the time of the 22 February 2024 email and shortly thereafter, but none of the alleged conduct or knowledge supports a finding of illegal conduct. Whilst not clear, it would appear that the Applicant is asserting that the claim for privilege fails because of some alleged improper purpose.
3. In Russell v Jackson[12] Turner V-C said:

... I am very much disposed to think that the existence of the illegal purpose would prevent any privilege attaching to the communication. Where a solicitor is party to a fraud no privilege attaches to the communications with him upon the subject because the contriving of a fraud is no part of his duty as solicitor; and I think it can as little be said that it is part of the duty of a solicitor to advise his client as to the means of evading the law.

1. Doyle CJ in Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co[13] considered the authorities[14] and concluded at 174:

I conclude from this reference to authority that the claim of privilege will fail only if there is material raising an arguable case that the relevant communications were made for the purpose of furthering or assisting a crime or fraud, and that fraud in this context embraces a range of legal wrongs that have deception, deliberate abuse of or misuse of legal powers, or deliberate breach of a legal duty at their heart. It is not enough, I consider, that one could simply say that a transaction constituted sharp practice, or fell below the normal standard of commercial probity. It is not enough, I consider, that one would regard a transaction on which advice was sought as artificial, or as deliberately structured to take advantage of the law on a topic. In light of the authorities, one cannot be more precise than that.

1. The first thing to note from the Southern Equities case is that there needs to be material raising an arguable case, sometimes referred to as evidence which raises a prima facie case. An assertion without an evidentiary foundation or based on speculation would not suffice. The second thing is that focus is required on the purpose of the relevant communications and whether that purpose was to further or assist a crime or fraud. The purpose of the communication will often be apparent from the terms of the communication itself seen in the context of the circumstances surrounding the communication. It is not enough to point to the conduct of the Respondent more generally as a reason for the privilege failing. The relevant conduct of the Respondent is its purpose for making the communication.
2. The Applicant submits that the Tribunal should determine whether the Respondent's conduct failed to meet the requirements of their role to assist the Tribunal or to act as a model litigant.[15] The Respondent rejects any suggestion of such failures, and I consider that there is no evidence to support an allegation that the Respondent has failed to act as a model litigant or has failed to properly assist the Tribunal. In any event, it is the wrong question to ask because it does not direct attention to determining the Respondent's purpose in making the communications. This is not an opportunity for the Applicant to complain about "the Respondent's indiscretions throughout the Applicant's arduous claims assessment and review journey",[16] but this is exactly what the Applicant is doing. Even if the Respondent failed to assist the Tribunal or breached its model litigant obligations as alleged (which is strenuously denied), that would not give rise to a prima facie case of a purpose to further or assist a crime or fraud.
3. The Applicant surmises at [57] of his SOFIC that the Respondent is not disclosing the documents in issue because "those documents directly illustrate that Ms Watson lied about her knowledge on the Applicant's remarks in her email of 13 March 2024". There is no evidence that Ms Watson lied in her email dated 13 March 2024, or more particularly that those instructing Ms Watson had sent her the Applicant's 22 February 2024 email. Her statement that she had not been served with any submissions from the Applicant is entirely consistent with the fact that the Applicant had deliberately not included her or anyone from HBA Legal in his email of 22 February 2024, despite Ms Watson being the solicitor on the record.
4. Having read the documents in issue, I can say that there is no evidence whatsoever of any improper conduct by Ms Watson or Comcare and certainly no evidence of any improper or illegal purpose. As would be evident from the terms of the Applicant's request, the documents in issue relate to the Applicant's email of 22 February 2024 in the context of the Tribunal's directions regarding the summons issued to the Respondent. There is no evidence to suggest any improper purpose, let alone a fraud or illegal purpose, in the communications over which privilege is claimed. To put it simply, Ms Watson did not write her 22 March 2024 email for an illegal or improper purpose or to further or assist a crime or fraud.
5. In conclusion, I find that the claim of legal professional privilege does not fail on the basis of an alleged illegal or improper purpose.

1. The Applicant has made contentions based on s 22 of the FOI Act. In the decision under review, Comcare relied on s 22 to redact the first two emails in Document 2 on the basis that they contain irrelevant matter (often referred to as out of scope material). If I consider that the decision to redact those emails was the correct or preferable decision, then I would affirm that part of the decision under review.
2. The question as to whether the emails contain irrelevant matter must be considered in the context of the request for access made by the Applicant. He requested access to any communication relating to the Applicant's 22 February 2024 email. I have looked at the two redacted emails in Document 2 and it is clear that they do not relate to the Applicant's submissions in his 22 February 2024 email. They are therefore outside of the scope of the request. For that reason, the correct decision is to refuse access to them. Having already found that the Applicant is not entitled to access the balance of Document 2 on the grounds of legal professional privilege under s 42 of the FOI Act, the result is that the Applicant is not entitled to access the whole of Document 2. Despite this result, the Applicant contends that he is entitled to an edited copy of Documents 1 and 2 under s 22(2) of the FOI Act. I reject that contention because in my view s 22 does not apply for the reasons that follow.
3. Section 22(1) says:

(i) to refuse to give access to an exempt document; or

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

(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:

(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and

(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and

(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:

(i) the nature and extent of the modification; and

(ii) the resources available to modify the document; and

(d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.

1. There are four criteria in subsections 22(1)(a), (b), (c) and (d) that must all be satisfied for s 22 to apply. It follows that if any one of the criteria is not satisfied then s 22 will not apply and the Applicant will not be able to rely on s 22(2). I will now consider the criteria.
2. The first criteria is satisfied because I have decided that to give access to Document 2 in its entirety would disclose information that is irrelevant to the Applicant's request for access.
3. With respect to the second criteria, the question is whether it is possible to prepare an edited copy of the documents in accordance with subsection 22(1)(b). This would involve modifying the documents by deletions ensuring that only non-exempt material remains and that the edited copy would not disclose any irrelevant matter. The application of this subsection to the documents in issue would result in the whole of the documents being deleted. A wholly deleted document is not, in my view, an edited copy. The Macquarie Dictionary defines an 'edit' as a revision and correction of a text. It would involve deciding what content to keep, what to remove, and what to modify to ensure accuracy, clarity and suitability for its intended purpose. Deleting the whole of the documents does not result in an edited copy. Therefore, I consider in these circumstances that it is not possible to prepare an edited copy. This subsection is not satisfied.
4. The third criteria is also not satisfied because it is not reasonably practicable to prepare an edited copy given the extent of the modification which would involve deleting the whole of the documents. It is not reasonably practicable to prepare what would amount to blank pages because that would serve no purpose. Guidance for the decision maker is provided in from the FOI Guidelines which say:

[5.165] ... 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).[17]

1. In this case, not even a skeleton would remain, but rather the whole of the body is removed.
2. The fourth criteria would be satisfied because the Applicant has requested access to an edited copy.
3. I conclude that two of the four criteria in s 22(1) are not satisfied and therefore s 22 has no application. Even if I am wrong with respect to my interpretation of subsection 22(1)(b), there is no doubt in my mind that subsection 22(1)(c) is not satisfied and therefore the Applicant's reliance on s 22(2) is misconceived.
4. That should be the end of the matter in relation to s 22 of the FOI Act. However, the Applicant disagrees and seeks to agitate a further issue based upon the conduct of the Respondent who provided the Applicant with a fully redacted copy of documents 1 and 2 which meant that the Applicant received 17 blank pages. The Respondent adopted this course at the insistence of the Applicant, but in my view, there was no obligation to do so because it was not reasonably practicable for Comcare to prepare an edited copy having regard to the extent of the modification which resulted in the whole of the documents being redacted. It follows that s 22(1)(c) was not satisfied and therefore there was no obligation on Comcare to prepare an edited copy of the documents and no obligation to give the Applicant access to them.
5. The issue raised as "Part 1" in the Applicant's SOFIC about the date of the creation/modification of the 17-page document has no relevance to the questions arising under the subsections to s 22(1). The same can be said with respect to "Part 2" in which the Applicant contends that all edited documents that have been produced by the Respondent must be provided pursuant to s 22(2)(b). I reject that contention because s 22 has no application unless all four of the subsections to s 22(1) are satisfied. Because the criteria in subsections 22(1)(b) and (c) are not satisfied, the obligation in s 22(2)(b) does not arise and there is no obligation on the Respondent to provide any edited copy.
6. The Applicant contends that I am required to consider whether the Respondent complied with its obligation under s 22(2)(b) because Comcare provided an edited copy pursuant to that provision. It is true that Comcare provided an edited copy to the Applicant by email dated 21 May 2024 but it noted that the material the subject of the request was fully exempt and that there was no obligation on Comcare to provide an edited copy. However, because the Applicant had requested an edited copy, Comcare decided to provide the Applicant with 17 blank pages.
7. In my view, the conduct of Comcare in providing the 17 blank pages does not impact the role of the Tribunal on review which is to conduct a fresh hearing and determine the correct or preferable decision on the material before the Tribunal. I am required to consider s 42 and s 22 and answer the same question that was put to Comcare as the original decision maker. Because I have found that s 22 has no application, I am not required to consider further any of the obligations under s 22(2) because they do not arise. My task is to give the correct or preferable decision on the review. My view is that the correct decision with respect to s 22 was that the first two emails in Document 2 consist of irrelevant matter to which the Applicant is not entitled access. The decision under review in that regard should be affirmed.
8. I conclude that the Respondent has not breached any of its obligations under s 22 of the FOI Act.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

.................[sgd].......................................................

[7] See schedule of documents at attachment B to the notice of decision dated 13 May 2024: T-Documents, T3, 14

[8] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].

[9] [1976] HCA 63; 135 CLR 674.

[10] [2022] FCA 278.

[11] [1999] HCA 66; (1999) 201 CLR 1.

[12] [1851] EngR 955; (1851) 9 Hare 387 at 392-3; [1851] EngR 955; 68 ER 558 at 560.

[13] (1997) 70 SASR 166, 174 ('Southern Equities').

[14] For a more recent analysis of the authorities, see Hillier v Martin (No 19) [2024] FCA 210 at [154] to [167].

[15] Applicant's Statement of Facts Issues and Contentions provided to the Tribunal on 10 February 2025, [46].

[17] See also FOI Guidelines, [3.98].