Hamdan v Minister for Immigration & Multicultural & Indigenous Affairs

CONSIDERATION 15 I should note at the outset that Mr Wells QC sought and was granted leave to intervene on behalf of the Law Society of South Australia. That leave was on condition that the Law Society would bear its own costs in any event. 16 As I foreshadowed, there are two primary contentions raised by the Minister, the one, that the telephone number is merely a collateral fact to which legal professional privilege does not attach; the other, that privilege did not attach in any event as the client's purpose was to frustrate the processes of the law.

1. "A mere collateral fact" 17 It is necessary that I make some reference to the scope and the rationale of legal professional privilege. It is now well accepted that the privilege is a rule of substantive law which, as was observed in the joint judgment in Daniels Corporation at [9]: "… may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings." See also Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217. 18 The rationale of the privilege is equally well accepted. It "exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers": Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at [35]; see also Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 508. The incentive so held out to a client, and the systemic benefit which results from it, have been variously explained in many judgments of the High Court. I merely note by way of example that in Baker v Campbell (1983) 153 CLR 52 at 114 Deane J observed that a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs without the apprehension of being prejudiced by subsequent disclosure of the communication: see also Baker at 130 per Dawson J; Esso Australia Resources Ltd at [35]. And in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 both Brennan J (at 127) and McHugh J (at 161) considered the privilege to be instrumental, to use Brennan J's words, "in facilitating the application of the rule of law". 19 There have been some number of decisions spanning three centuries which have dealt with the circumstances in which a client's name or address could properly be the subject of a claim of legal professional privilege. Though there is a tendency in the cases not to distinguish between a claim in respect of a name and one in respect of an address, and to formulate omnibus propositions that apply to both: cf Commissioner of Taxation v Coombes (1999) 92 FCR 240 at [31]; claims in respect of names raise a distinctive, but not presently relevant, consideration which should be noted. That difficulty was encapsulated by the Full Court in Coombes at [31] in the following propositions: "l As a general rule, the identity of a client will not be privileged, as the privilege belongs to the client, and the retainer between the lawyer and the client must be demonstrated in order to establish the privilege. This requires disclosure of the client's identity. l Disclosure of the client's identity is necessary before the privilege can arise even if the client's name was given in confidence, and it was a condition of the lawyer's retainer that the client's identity be kept confidential. The client cannot by contract extend the area of privilege." See also Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VR 697. 20 The present claim I consider to be analogous to one in respect of a client's address and to attract the same principles that have been applied to address claims. In light of authority binding upon me, there cannot be any doubting what those principles are. In their now accepted form they originated in the judgment of James LJ in Ex parte Campbell; In re Cathcart (1870) LR 5 Ch App 703 at 705: "What a solicitor is privileged from disclosing is that which is communicated to him sub sigillo confessionis - that is to say, some fact which the client communicates to the solicitor for the purpose of obtaining the solicitor's professional advice and assistance … But a solicitor's knowledge of his client's residence, even though he knows it simply in consequence of the professional business in which he has been acting for him, is not on that ground alone a matter of confession, so as to be in the nature of a privileged or confidential communication … The client's place of residence in such a case is a mere collateral fact, which the solicitor knows without anything like professional confidence; and therefore the mere statement, 'The place of residence of my client came to my knowledge in my professional capacity, and only in consequence of my employment as his solicitor,' is not, to my mind, nearly enough to warrant the solicitor in refusing to answer the question as to where his client is residing. If, indeed, the gentleman's residence had been concealed; if he was in hiding for some reason or other, and the solicitor had said, 'I only know my client's residence because he has communicated it to me confidentially, as his solicitor, for the purpose of being advised by me, and he has not communicated it to the rest of the world,' then the client's residence would have been a matter of professional confidence; but the mere statement by the solicitor, that he knows the residence only in consequence of his professional employment, is not sufficient." The distinction so drawn was adopted by the High Court in R v Bell; Ex parte Lees (1980) 146 CLR 141. 21 The matter that does need to be emphasised is that a client's request that his or her address be kept confidential does not as such attract the privilege: Ex parte Lees at 156 per Stephen J; Commissioner of Taxation v Coombes, at [31]. What is required is the communication in confidence of the address for the purpose of obtaining or giving legal advice: Ex parte Lees at 144-145 per Gibbs J. 22 Ms Hamdan's uncontested evidence clearly satisfies this requirement. The telephone number was provided in confidence "in connection with": Esso Australia Resources Ltd at [35]; and for the purpose of obtaining legal advice. Its communication was accepted on that basis. One can infer from the circumstances in which Ms Hamdan's undertaking was sought that the likelihood of disclosure of the client's telephone number "would operate as a real deterrent from his seeking professional advice": Ex parte Lees at 155; and that in consequence confidentiality was explicitly sought so that he could obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of his number: Baker v Campbell at 114. 23 Unless the circumstances here are such that privilege will not be attracted for other reasons, it was properly claimed by Ms Hamdan.

2. "Frustrating the Processes of the Law" 24 The respondent Minister contends that it is proper to infer from the circumstances that the client's purpose in requiring that his number be kept confidential was either to thwart the processes of the Court (in the form of Mansfield J's order to attend the 6 September 2004 hearing) or to avoid his being detained under s 189 of the Migration Act 1958 (Cth). Either purpose, it is said, is "improper" and as such precludes privilege being claimed in respect of the telephone number though not, seemingly in respect of any other communication passing between Ms Hamdan and her client for the purpose of obtaining legal advice. 25 In fairness to Ms Hamdan, I should state at the outset that it is not suggested that she was asked to advise in the effectuation of the client's allegedly "improper purpose", that she was complicit in it, or that she has acted otherwise than conscientiously in the discharge of her professional obligations to her client. 26 Each of the improper purposes alleged raises somewhat different considerations. I will deal with each separately and for convenience will deal with the avoidance of detention allegation first. 27 Before doing so, I would make the following comments. The circumstances in which legal professional privilege will not attach to a communication by reason of a countervailing "higher public interest": Ex parte Lees at 147; have not been definitively settled: cf Commissioner of Australian Federal Police v Propend Pty Ltd at 545; Ex parte Lees at 145-146; Attorney-General of the Northern Territory v Kearney (1985) 158 CLR 500 at 545. Nonetheless, it is well enough accepted that: "The privilege is not available … in respect of communications that are made to facilitate the commission of a crime or fraud or the abuse of an exercise of public power or the frustration of the order of a court." See Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 160. As I understand the Minister's submissions, they do not seek to travel beyond the first and third of these exceptions. They allege in substance that the client's confidential communication of his phone number was in furtherance of an illegal purpose and/or was made to frustrate the processes of this Court.

(a) "Avoiding detention under the Migration Act" 28 Insofar as presently relevant s 189 of the Act requires an "officer" - a term defined in s 5(1) - to detain a person in Australia whom he or she knows or reasonably suspects is an unlawful non-citizen. In consequence of the decision in Al-Kateb v Godwin as I have indicated, Ms Hamdan's client was exposed to detention under this section. 29 Even if it be assumed that his purpose in requiring that his number be kept confidential was to avoid detention, can it properly be said he thereby forfeited his right to have that confidence maintained? 30 It is important to emphasise that the client did not escape from custody. It would have been an offence for him to have done so: see 197A of the Act. He was released from detention pursuant to a court order. Neither was he committing or proposing to commit an offence simply because he was taking steps to avoid being detained. As Gummow J indicated in Al-Kateb at [86] ff, the current Migration Act, unlike its precursors, does not make it an offence for an unlawful non-citizen to enter or to be within Australia in contravention of, or in evasion of, the Act. 31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person's immigration status as "unlawful" serves as no more than a reference to a non-citizen not having a "valid permission to enter and remain in Australia". The use of the term "unlawful" does not as such refer to a breach of a law. 32 In such circumstances it is difficult to discern what "higher public interest" exists which would justify the public interest which sustains legal professional privilege being overridden. 33 As I understand the Minister's submission as it was developed in oral argument, it is alleged that the client's confidential communication was "in furtherance of an illegal purpose": cf Attorney-General for the Northern Territory v Kearney at 514; and that it was this that took it outside the province of legal professional privilege. 34 The difficulty I have with this submission is not with the principle relied upon. It is with its application to the circumstances of this matter. Ms Hamdan's client may have wished to evade the execution against him of s 189 of the Act. But in my view he was not seeking to do so by means of illegal conduct. As I have noted above, he was not committing or proposing to commit an offence under the Migration Act and no other possible offence has been suggested. Distinctly, s 189 prescribes the duty of an officer in respect of detaining unlawful non-citizens. It does not impose by implication any correlative obligation on such a non-citizen to facilitate his or her detention which the client would not discharge. 35 There is here no evidentiary foundation to "give colour to the charge": cf Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 546; either that confidentiality was sought "in furtherance of an illegal purpose": Kearney at 514; or that he was "frustrating the processes of the law": Ex parte Lees at 156; given, as I have indicated, that he had no obligation to facilitate the execution of s 189. No basis has been made out for overriding the privilege. 36 I would add that a contrary conclusion in this matter would, in principle, have potentially large consequences in other areas of the law where a person, having no obligation to surrender himself or herself to the authorities, positively seeks to avoid being apprehended by those whose duty it is to locate and apprehend that person.

(b) "Thwarting the processes of the Court" 37 The Minister alleges that Ms Hamdan's client requested the confidentiality undertaking to put himself out of the reach of having to comply with Mansfield J's orders to attend the 6 September hearing. 38 I note by way of background that it is reasonable to infer from the transcript of the proceedings before His Honour on that date that the client's reason for not attending the hearing was to avoid being detained by Federal Police officers acting under s 189 of the Act. 39 While the Minister is not required to prove the allegation made, "there has to be something 'to give colour to the charge', a 'prima facie case' that the communication is made for an ulterior purpose": Propend Finance Pty Ltd at 514. In my view, that colour is not there. 40 As I have found, Ms Hamdan was contacted for the purpose of the client's obtaining legal advice. The confidentiality of his number was sought in aid of that purpose. There is some foundation in the evidence to suggest that a reason for seeking the confidentiality undertaking was a desire to avert the possibility of the phone number being later disclosed and used to facilitate his detention under s 189. However, there is nothing at all to suggest that, at the time the confidential communication was made, it was informed by the purpose the Minister seeks to ascribe to him. Indeed, I do not understand the suggested relationship of the confidential communication to the client's compliance with Mansfield J's orders. 41 The client's non-compliance was both deliberate and constituted a contempt. But on the materials before me, his action was designed to evade detention by the police. There is nothing to suggest that it was to evade any order made or likely to be made by Mansfield J, i.e. to frustrate any process of the court. Nor could it have. In light of Al-Kateb, the only relevant order that his Honour was likely to make was that which he did make on 6 September 2004. This was to dismiss the client's application for habeas corpus. On the making of that order he again became subject to the provisions of s 189 of the Act. His non-appearance anticipated that consequence. It was that s 189 process he was seeking to evade by his non-compliance, not any process of the court as such. 42 The present matter is far removed from that in Ex parte Lees on which the Minister relies. The circumstances of that case were distinctive. In breach of a custody order made in her husband's favour, a wife disappeared with her child. She later instructed a solicitor in proceedings relating to the matrimonial home. She told the solicitor how he could contact her but asked that he keep this information confidential. At the suit of the husband, the solicitor was ordered to disclose that information, it being held that privilege did not attach to it. The wife had deliberately flouted a court order made securing the welfare of a child. As Stephen J commented (at 151), in instructing the solicitor to preserve the confidentiality of her address, she intended this to assist her in continuing to frustrate the order of the Court. 43 The case was one, in other words, in which a court order was being disobeyed flagrantly at the time confidentiality was sought and it was being sought to further that wrongdoing. In a matter of no little public interest: ibid at 146 - the welfare of her child - the wife was claiming confidentiality "in order to frustrate the processes of law": ibid, at 156. 44 Though the judges who determined Ex parte Lees gave varying particular reasons for denying the privilege, central to all of the judgments was the wife's continuing "defiance of the order of the Court": ibid 162 per Wilson J; see also 146-147 per Gibbs J; 151-152, 156 per Stephen J; 159 per Murphy J; 159 per Aiken J. To allow privilege to attach would facilitate that defiance. Unsurprisingly, the case has been regarded as authority for the view that: "… legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated." See Kearney, at 515 per Gibbs CJ. 45 In the present matter at the time of the confidential communication the client may have been in periodic breach of his reporting obligation under Mansfield J's order (though no complaint was made to the Court of this at the time and it does not provide the basis of the Minister's present allegation). And it has not been suggested that the confidential communication was made to assist the client in not complying with the reporting obligation. By the time of that communication it was the order to attend the 6 September hearing that was of moment and the Minister's submission recognises. As I have indicated, the evidence does not give colour to the suggestion that the confidentiality undertaking was sought to frustrate the processes of the Court on that day. 46 I do not consider that the decision in Ex parte Lees assists the Minister in this matter.

CONCLUSION 47 I will declare that (1) the applicant is not obliged to comply with the notice of the respondent Minister which was served on her on 13 September 2004; and (2) legal professional privilege attaches to the information sought in that notice. 48 I will order the respondent to pay the applicant's costs. 49 I do not consider it necessary to grant the injunctive relief sought in the application. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 1 October 2004 Counsel for the Applicant: Mr P Heywood-Smith QC Solicitor for the Applicant: Hamdan Lawyers

Counsel for the Respondent: Ms S Maharaj Solicitor for the Respondent: Australian Government Solicitor

Intervener for the Law Society of South Australia: Mr J Wells QC (with Mr A L Tokley)

Date of Hearing: 22 September 2004 Date of Judgment: 1 October 2004