Minister for Immigration & Multicultural & Indigenous Affairs v Hamdan

Federal Court of Australia (Full Court)|2005-06-09|Before: Mansfield J, Jacobson JJ

introduction 1 This appeal calls for consideration of the circumstances in which legal professional privilege will attach to the communication to a legal practitioner by a client of an objective fact. The particular communication with which this appeal is concerned is a communication by which a client of the respondent ('the Client') disclosed to the respondent ('the Solicitor') his mobile telephone number. The appellant ('the Minister') is interested to know the mobile telephone number of the Client because she believes that the number may help establish the whereabouts of the Client, who is an unlawful non‑citizen and for that reason liable to be detained under s 189 of the Migration Act 1958 (Cth) ('the Act'). 2 The Law Society of South Australia was granted conditional leave, which it exercised, to intervene in the appeal (see O 52 r 14AA of the Federal Court Rules). 3 For the reasons set out below, we have concluded that the appeal should be dismissed.

background facts 4 The Client applied unsuccessfully for a protection visa under the Act. For some time he was held in immigration detention as an unlawful non‑citizen. He eventually brought an application in the Federal Court seeking a declaration that he was being unlawfully detained and an order for his release from detention. The Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54 had held that the power to detain under the Act did not authorise the continuing detention of a person in respect of whom there was no real prospect of removal from Australia in the reasonably foreseeable future. 5 On 3 October 2003 Mansfield J concluded that there was a serious question to be tried that there was no real prospect of the Client being removed from Australia in the reasonably foreseeable future. On the same day his Honour made certain interlocutory orders including an order that the Minister cause the Client to be released from detention forthwith (SHMB v Goodwin (No 2) [2003] FCA 1171). The other orders made by his Honour on 3 October 2003 included an order requiring the Client to keep his solicitor and a solicitor employed at the office of the Australian Government Solicitor in Adelaide informed of his address and contact details and an order that the Client attend in person any hearing in the Federal Court of Australia of which he was given reasonable notice in writing by the Australian Government Solicitor. The order last referred to is hereafter referred to as the Court Attendance Order. 6 The Client's application to the Federal Court had not been heard and determined on a final basis when on 6 August 2004 the High Court published its judgment in Al-Kateb v Godwin (2004) 208 ALR 124. The publication of this judgment meant that the Client's application to the Federal Court was bound to fail. That application was listed for hearing by Mansfield J on 6 September 2004. It is accepted that the Australian Government Solicitor gave the Client reasonable notice in writing of this hearing. Consequently the Court Attendance Order required the Client to attend the hearing of his application. 7 On or about 2 September 2004 the Solicitor made a number of attempts to contact the Client using a mobile telephone number that she understood to be his. The number was not operational. On 3 September 2004 the Client contacted the Solicitor, whose first language is Arabic, and spoke to her in Arabic. He said words to the following effect: 'I will provide you with my phone number … to enable you to provide me with legal advice, however, before I do so I want you to give me an undertaking that you will not disclose this number to anyone else.'

The respondent gave the undertaking sought by the Client and subsequently provided the Client with legal advice by telephoning the mobile telephone number given to her by him.

8 The Client did not attend at the Federal Court on 6 September 2004. It is not in dispute that Mansfield J was advised by counsel for the Client that the Client knew that the Federal Police would detain him if he attended the hearing and that for that reason he had not attended the hearing. 9 It appears that legal representatives of the appellant learnt that the Solicitor had been able to contact the Client on 6 September 2004 by calling him on the telephone. On 13 September 2004 the Solicitor was served with a notice under s 18 of the Act dated 10 September 2004. The notice required her to provide the telephone number that she used to speak to the Client on 6 September 2004 by a signed facsimile letter addressed to a named individual in the Adelaide office of the Australian Government Solicitor. 10 On 16 September 2004 the Solicitor filed an application in the Court seeking injunctive and declaratory relief. The primary judge (Finn J) gave the Law Society of South Australia leave to intervene on the hearing of the application. On 1 October 2004 Finn J made orders declaring that the Solicitor was not obliged to comply with the notice served on her on 13 September 2004 and declaring that legal professional privilege attaches to the information sought by that notice. The Minister was ordered to pay the respondent's costs. 11 The present appeal is brought from the orders made by Finn J on 1 October 2004.

Migration Act 1958 12 Section 18(1) of the Act relevantly provides: 'If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is … relevant to ascertaining the identity or whereabouts of another person whom the Minister has reason to believe is an unlawful non-citizen, the Minister may, by notice in writing served on the first person, require the first person: (a) to give to the Minister, within the period and in the manner specified in the notice, any such information; ….' 13 Section 21 of the Act relevantly provides: '(1) A person must not refuse or fail to comply with a notice under subsection 18(1). (1A) Subsection (1) does not apply: (a) to the extent that the person is not capable of complying with the notice; or (b) if the person has a reasonable excuse.' 14 The Minister accepted for the purpose of the hearing before the primary judge that s 21 of the Act does not abrogate legal professional privilege. 15 Section 189(1) of the Act provides: 'If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.'

reasons of the primary judge 16 The primary judge found that the Client's mobile telephone number had been communicated to the Solicitor in confidence for the purpose of obtaining legal advice. His Honour concluded that the Solicitor's claim of legal professional privilege in respect of the communication was therefore properly made unless circumstances were such as to prevent legal professional privilege being attracted to the communication. 17 His Honour rejected the contention of the Minister that legal professional privilege did not attach to the communication because of the purpose of the Client in seeking to keep his mobile telephone number confidential. That purpose was contended by the Minister to be the furtherance of an illegal purpose or the frustration of the processes of the Court. His Honour concluded that it was not illegal for the Client to seek by lawful means to evade detention; he was under no legal obligation to facilitate his detention. His Honour further concluded that while the Client's failure to comply with the order made by Mansfield J requiring him to attend the hearing in the Federal Court constituted a contempt, the evidence did not establish that the client sought to frustrate the processes of the Court. 18 As mentioned above, the primary judge granted the Solicitor the declaratory relief sought by her.

contentions of the minister on appeal 19 The Minister contended on appeal that, because the primary judge found that the Client's purpose in seeking confidentiality was to avoid detention under s 189 of the Act, his Honour ought to have concluded that the purpose of the Client in requiring the Solicitor to keep his telephone number confidential was to frustrate the processes of the law or, more specifically, to frustrate the Court Attendance Order. The logic behind the Minister's contention was expressed in the Minister's outline of submissions as follows: 'As the client's purpose in seeking confidentiality was to avert detention, the very purpose the court order intended to facilitate by requiring the client's attendance, the processes of the law were frustrated. The reason why the purpose of avoiding detention involved the purpose of frustrating the court's order is that attendance pursuant to the court's order would inevitably have led to detention (as the client knew). It follows that the purpose of avoiding detention necessarily included the purpose of frustrating the court's order; otherwise the former purpose could not be achieved.' 20 The Minister abandoned reliance on the ground of appeal which alleged that the primary judge erred in failing to find that the telephone number in respect of which confidentiality was sought was a mere collateral fact in respect of which legal professional privilege could not be claimed.

the authorities 21 The Minister placed considerable reliance on The Queen v Bell; Ex parte Lees (1980) 146 CLR 141 ('Ex parte Lees'). It is therefore convenient to begin the consideration of the authorities with this decision of the High Court. 22 The factual background to Ex parte Lees was that after the Family Court made an order giving her husband interim custody of a child of their marriage, the wife failed to deliver the child to her husband and subsequently disappeared. The child could not be found. Thereafter the wife instructed a solicitor to take steps to protect her interest in the matrimonial home. She told him how to get in contact with her but requested that this method should remain confidential. The solicitor refused to disclose the wife's whereabouts to the husband's solicitor. A judge of the Family Court, on an application made by the husband, ordered the solicitor to disclose to the husband's solicitor the address of the wife as at the date of his last communication with her. The solicitor applied to the High Court for a writ of prohibition addressed to the judge. The High Court refused the application. 23 It was accepted, either expressly or implicitly, by each member of the High Court in Ex parte Lees that legal professional privilege will ordinarily exist in respect of a confidential communication of a client's address where the confidential communication of the address was made for the purpose of obtaining legal assistance (see particularly per Gibbs J at 144‑145, Stephen J at 155, Murphy J at 158‑159 and Wilson J, with whom Aiken J agreed, at 161). 24 Gibbs J considered that privilege was excluded in the circumstances of Ex parte Lees by analogy with the long‑standing rule that a solicitor is obliged to give the court any information (including his or her client's address) which will enable the court to discover the whereabouts of a ward of court whose residence is being concealed from the court. His Honour was unable to see any relevant distinction between the position of a child who has been made a ward of court and that of a child in relation to whom an order for custody has been made under the Family Law Act 1975 (Cth). Murphy J adopted a similar approach. 25 Stephen J expressed the governing principle in Ex parte Lees more generally than Gibbs J. His Honour referred to R v Cox & Railton (1884) 14 QBD 153, in which it had been said that for legal professional privilege to arise '[t]here must be both professional confidence and professional employment' and that no professional confidence is reposed where an illegal object is not disclosed so that the solicitor's advice is obtained by fraud. Noting that the wife concealed from the solicitor the fact that she was in defiance of an order of the Family Court while using him as an unconscious instrument in her continued frustration of that order, Stephen J at 154 observed: 'She was, in effect, seeking to use the processes of the law to protect her interest in the matrimonial home while at the same time acting in defiant disregard of its processes in relation to the custody of [the child]. To confer upon her communication of her address the protection of legal professional privilege would be to allow that privilege to be used for a purpose alien to its whole purpose and history.'

His Honour concluded at 156 that confidentiality in an address cannot be claimed when its confidentiality was sought in order to frustrate the processes of the law.

26 Wilson J at 161 also expressed the governing principle broadly. His Honour noted that legal professional privilege is grounded in public policy and that it would be odd if the privilege extended to protect communications that were 'directed against the public interest'. His Honour characterised communications which are themselves part of a criminal or unlawful proceeding and advice concerning proposed infractions of the law as examples of communications directed against the public interest. At 162 Wilson J observed: 'The privilege is the client's privilege, and it is the knowledge and purpose of the client which determines whether or not the privilege will attach to the communication. … No reason appears to suggest that the subject matter of her instructions to the solicitor, namely, a settlement of the matrimonial property, called for any secrecy to attach to her whereabouts. … Confidentiality was imperative in order to enable her to avoid discovery of herself and the child, and so continue her defiance of the order of the Court. To extend privilege to such a communication does nothing in the circumstances to facilitate "the perfect administration of justice". On the contrary, it enables the continuance of a contempt of court, and bears on its face the taint of illegality.' 27 In Attorney‑General (NT) v Kearney (1985) 158 CLR 500 ('Kearney') the High Court again found that the public interest required that certain communications not attract legal professional privilege. The communications in question in Kearney were confidential communications between officers of the Northern Territory Government and that government's legal officers. Those communications had been found to have been made in furtherance of a scheme to evade the operation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Kearney was not a unanimous decision. The members of the court that constituted the majority held that communications made to further a deliberate abuse of statutory power with the intent to prevent others from exercising their rights under the law fell within the rule that denies privilege to communications made to further an illegal purpose. Gibbs CJ, with whom Mason and Brennan JJ agreed in this respect, at 515‑516 said: 'The law strikes a balance between securing proper representation by encouraging full disclosure on the one hand, and requiring the production of all relevant evidence on the other, but the balance more readily inclines in favour of disclosure where privilege from disclosure might conceal an abuse of delegated powers to enact legislation, and thus obstruct a proper challenge to the validity of part of the law itself. The basis of the privilege is not endangered if it is held that it does not protect communications made by a public authority for the purpose of obtaining advice or assistance to exceed its statutory powers.' 28 Wilson J at 524, after referring to authorities, including Ex parte Lees, expressed the relevant principle more broadly, observing that: 'The principle may be expressed by saying that, generally speaking, the public interest in the protection of alleged confidential professional communications will not be outweighed by the public interest in ensuring that all relevant evidence is admissible save when the professional relation is abused in a manner involving dishonesty that goes to the heart of the relationship. The presence of such dishonesty is enough to cause the privilege to "take flight" ….' 29 In Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 ('Propend') a claim of legal professional privilege was upheld notwithstanding an allegation that the relevant communication was made for some illegal or improper purpose. The relevance of Propend for present purposes is the consideration contained in the judgments of the question of proof of an alleged illegal or improper purpose. Brennan CJ at 514 said: 'In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication … for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. I state the criterion as "reasonable grounds for believing" because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose …. When a party in curial proceedings is seeking to rebut a claim of privilege by asserting that the communication with the legal adviser was made for an ulterior purpose, the evidence of ulterior purpose must be admissible in those proceedings.' (Citation omitted) 30 In Propend Toohey J, with whom Dawson J agreed, agreed with Brennan CJ that a party resisting a claim of legal professional privilege must place before the court evidence sufficient 'to give colour to the charge'. This expression seems to have been used first by Viscount Finlay in O'Rourke v Darbishire [1920] AC 581 at 604, where his Lordship said: 'If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge.' 31 At 534 Toohey J stated: 'There is no reason why hearsay material should be excluded. Indeed, the very nature of the exercise involved will often necessitate some hearsay evidence. If there is nothing more than hearsay the Court is unlikely to be persuaded to the required standard. But that is not to say that hearsay material must be disregarded.' 32 Gaudron J at 546‑547 said: 'If illegality were a true exception to legal professional privilege, it would be arguable that the person challenging the existence of the privilege should establish that the communication in question was made in furtherance of some illegal purpose. However, it is not a true exception and, thus, it is not necessary that illegality be established positively. On the other hand, a mere allegation of illegal purpose is not, itself, sufficient. There must be "not merely an allegation … of a fraud, but … something to give colour to the charge", "some prima facie evidence that it has some foundation in fact". The reason for this is obvious. Persons are presumed innocent, not guilty. And, thus, there must be evidence to raise a sufficient doubt as to a claim of privilege to cast a further evidentiary onus on the person making the claim to show that, in truth, the privilege attaches. … If a person wishes to resist a claim of privilege and to lead evidence of an illegal or other purpose inconsistent with its existence, that evidence must be in admissible form. Ordinarily, that will exclude hearsay.' (Citations omitted) 33 McHugh J at 556‑557 expressed views substantially identical with those expressed by Gaudron J in the above passage from her Honour's judgment, except that his Honour did not qualify his observation that hearsay evidence was inadmissible to displace a claim of legal professional privilege. 34 Gummow J, as we understand his Honour's judgment, adopted a stricter approach to the nature and extent of the evidence required to answer a claim of legal professional privilege where, as we interpolate is the present case, the existence of the privilege is one of the issues being tried on the hearing of the action. At 576 his Honour observed: 'In the present case, the question for decision by the trial judge was whether the appellants had made out a good answer to what otherwise would be a claim of privilege. … The issue did not arise upon judicial review of the decision of the Justice of the Peace [who had issued a warrant]. It arose at trial, … Attempts to put glosses upon the ordinary civil standard of proof which applied at the trial are to be discouraged.' 35 Kirby J at 593 expressed the position with regard to the admissibility of hearsay evidence as follows: 'Hearsay evidence may be relied upon to displace legal professional privilege where that privilege is claimed for materials alleged to have come into existence in furtherance of crime or fraud. But hearsay evidence alone, which amounts to no more than the assertion of what is suspected and sought to be proved, will not be sufficient to displace the privilege. Something more will be required to warrant the serious step of overriding the legal professional privilege and thus of depriving the client of the protections of such privilege. Something more was required in the facts of this case.' 36 We note that the judgment of the Federal Court that gave rise to the appeal to the High Court in Propend was delivered before the commencement of the Evidence Act 1995 (Cth) ('the Evidence Act').

consideration 37 The proceeding before the primary judge was a civil proceeding in which the Solicitor sought declaratory and other relief. The admissibility of the evidence sought to be adduced by each party in the proceeding was governed by the Evidence Act. The hearsay rule contained in s 59 of the Evidence Act, and the statutory exceptions to that rule, were relevant to issues of admissibility. Section 140 of the Evidence Act, which provides that in a civil proceeding the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, also had application. 38 It was conceded by the Minister that s 21 of the Act did not abrogate legal professional privilege. For this reason the only issue that the primary judge was required to determine was whether the communication by which the Solicitor learnt the mobile telephone number of the Client had attracted legal professional privilege. It was not disputed before his Honour that the relevant communication was between a client and his lawyer for the dominant purpose of obtaining legal advice or the provision of legal services (see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9]). The authorities establish that on that basis, presumably for the reason identified by Gaudron J in Propend (see [32] above), to challenge the claim of legal professional privilege the Minister was required to place evidence before the Court sufficient to demonstrate a prima facie case or, as it is sometimes put, 'to give colour to the charge', that the relevant communication was made by the Client for a purpose incompatible with the communication attracting legal professional privilege. If the Minister satisfied that evidentiary onus, the Solicitor could establish her entitlement to relief only by showing that, on the balance of probabilities, the alleged circumstances of disentitlement did not exist (s 140 of the Evidence Act). 39 It does not reflect well on the parties' respective legal representatives at the time of the hearing before Finn J that the parties have not been able to reach agreement on what evidence was before Finn J. His Honour's reasons for judgment record that the transcript of the hearing before Mansfield J on 6 September 2004 was provided to him. The appeal papers include only four pages of that transcript. The appeal papers contain the usual certification of correctness. 40 The Minister argued the appeal on the assumptions that the whole of the transcript of the hearing before Mansfield J on 6 September 2004 was before the primary judge, that the transcript is accurate and that the representations recorded by the transcript as having been made in the proceeding before Mansfield J were accepted by the parties before the primary judge to be true. The Solicitor has challenged the accuracy of those assumptions. Fortunately, on the approach that we have taken it is not necessary for this dispute between the parties to be resolved. 41 We record, however, that were the position otherwise we would not have considered it appropriate to accede to an informal application made by the Minister in written submissions filed with leave after the hearing of the appeal. That application was for the transcript of the hearing before Mansfield J on 6 September 2004 to be received as evidence on this appeal and for the procedural requirements for such tender in O 52 r 36 of the Federal Court Rules to be dispensed with. No submission was advanced as to the basis upon which the unverified transcript would be admissible in evidence. 42 The case for the Minister on appeal was argued on the basis that, if a prima facie case were established that the Client's motive in seeking confidentiality for his mobile telephone number was to avoid detention, a prima facie case was necessarily also established that his purpose in seeking confidentiality for his mobile telephone number was to frustrate the Court Attendance Order. This argument, in our view, involves an elision; it assumes rather than demonstrates the necessary connection between the Client's wish to avoid detention and frustration of the Court Attendance Order. 43 The primary judge's conclusion that the Client's non‑compliance on 6 September 2004 with the Court Attendance Order was deliberate and constituted a contempt has understandably not been challenged. Nor is it in dispute that the Client stayed away from the Court on 6 September 2004 because he feared that he would be detained if he attended the hearing scheduled for that day. However, we agree with the primary judge that no prima facie case was established that the communication by which the Client requested the Solicitor to undertake not to disclose his mobile telephone number was made in furtherance of a purpose of frustrating the Court Attendance Order. It is difficult to see how such a prima facie case could have been established. The only operation that the Court Attendance Order had on or after 3 September 2004 was to require the Client to attend the hearing before Mansfield J on 6 September 2004. Maintenance of the confidentiality of the Client's mobile telephone number had no logical connection with his attendance or non‑attendance at the hearing before Mansfield J on 6 September 2004. There is no reason to conclude that even the widest possible public disclosure of the Client's mobile telephone number would have resulted in the Client attending the hearing before Mansfield J on 6 September 2004. 44 We reject the contention of the Minister that it would have been appropriate for his Honour to look, not to the actual terms of the Court Attendance Order, but rather to 'the very purpose the court order intended to facilitate' (see [19] above). The meaning of the Court Attendance Order is clear. It is not in the circumstances open to be construed by reference to the history of the proceeding before Mansfield J or other extrinsic material (Repatriation Commission v Nation (1995) 57 FCR 25 per Beaumont J, with whom Black CJ and Jenkinson J agreed, at 33‑34). It is to be assumed that the purpose that the Court Attendance Order was intended to effect was compliance with its terms. There is no legitimate scope for speculation as to what motivated Mansfield J to make the Court Attendance Order. 45 We note incidentally that a logical connection might theoretically have been able to be established between the request to keep the Client's mobile telephone number confidential and the frustration of another order made by Mansfield J on 3 October 2003, namely the order by which his Honour required the Client, in effect, to keep the Australian Government Solicitor informed of his address and contact details. However, presumably for good reason, the Minister placed no reliance on this latter order before the primary judge. 46 It was not established before the primary judge that at the time that the Client requested the Solicitor not to disclose his mobile telephone number he was acting in defiance of any order of the Court. This case is for that reason alone clearly distinguishable from the circumstances considered in Ex parte Lees. 47 Nor was it established before the primary judge that the professional relationship between the Client and the Solicitor was abused in a manner involving dishonesty in the sense discussed by Wilson J in Kearney (see [28] above). The Solicitor gave evidence that the Client gave her his mobile telephone number to enable her to give him legal advice and that she used the number for that purpose. As Finn J noted, it was not suggested that the Solicitor was asked to advise the Client in respect of any improper purpose. The case is thus clearly distinguishable from the circumstances considered in Kearney. 48 In truth, as it seems to us, the case for the Minister depended upon acceptance of one or other of the following two propositions. The first and more ambitious of the two propositions is that legal professional privilege will not attach to a confidential communication between a client and a legal practitioner where the client's purpose in seeking to maintain the confidentiality of the communication is to render it more difficult for another person to take a lawful step adverse to the interests of the client. Secondly, and more modestly, that legal professional privilege will not attach to a confidential communication between a client and a legal practitioner where the following circumstances prevail: (a) a court order has been made which requires the client to take a particular step; (b) another party (party B) has an interest in the client's compliance with the court order because if the client complies with the court order this will assist party B to achieve a lawful objective, not itself the subject of any court order, in respect of the client; (c) although the time for compliance with the court order has not yet arisen, the client does not intend to comply with the court order (or possibly simply entertains the possibility of not complying with the court order); and (d) the client's purpose in seeking to maintain the confidentiality of the communication is to render it more difficult for party B to achieve his or her lawful objective in respect of the client. We do not consider that the authorities provide support for either of the above propositions. 49 To resist the claim of legal professional privilege advanced by the Solicitor the Minister was required to place evidence before the primary judge sufficient to meet an evidentiary onus with respect to disentitlement. That is, the Minister bore the onus of raising for determination the question of whether the purpose of the Client in seeking to maintain the confidentiality of the communication was a purpose incompatible with the existence of legal professional privilege. In our view, the Minister did not satisfy that evidentiary onus. Nothing before the primary judge gave 'colour to the charge' that the relevant communication was made by the client for the purpose either of frustrating the processes of the law generally or of frustrating the Court Attendance Order. The primary judge rightly determined that the Solicitor was entitled to the relief claimed in her application to the Court.

conclusion 50 The appeal will be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Nicholson and Jacobson.

Associate: Dated: 8 June 2005 Counsel for the Appellant: D M Bennett QC and S Maharaj

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: P A Heywood‑Smith QC and R Salis

Migration Act 1958(Cth)s 18(1), s

Evidence Act 1995(Cth)s 59, s

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)