Plaintiff v Defendant

1 During Tuesday's directions hearing, I heard submissions about the defendant's claim to legal privilege over documents containing legal advice exhibited to, or referred to, in her affidavit and which the plaintiff seeks to inspect. The defendant, Associate Professor M Giles, made the Stay at Home (Restricted Areas) Directions (No 15) ('the Directions') on 13 September 2020_._ The Directions contain the 9 pm to 5 am curfew, which binds people who reside in the 'greater Melbourne' area.

2 The dispute is about a paragraph in the plaintiff's notice to produce seeking production of:

18. Exhibit MG-5 - all documents therein, unredacted.

3 Exhibit MG-5 is an exhibit to Associate Professor Giles' affidavit, which is described in paragraph 37.3 of her affidavit, which I set out below, although only one of the 11 assessments by the Legal Services Branch of the Stay at Home Directions' compatibility with the _Charter of Human Rights and Responsibilities Act 200_6 ('the Charter') is included in it.

4 The only objection raised by the defendant to the production of Exhibit MG-5 was that is subject to legal privilege.

5 The plaintiff's challenge to the Directions is in essence a challenge to the curfew. It seeks judicial review orders and orders relying on the Charter. She contends that the Direction violates her rights: to freedom of movement under s 12; to liberty and security under s 21(1); not to be subject to arbitrary detention under s 21(2); and, not to be deprived of her liberty under s 21(3).

6 Paragraphs 6 and 7 of the originating motion state:

1. Section 38 of the Charter provides that it is unlawful for a public authority, which includes the defendant, to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
2. The defendant has contravened section 38 of the Charter for the reasons herein described.

7 The expedited trial of the plaintiff's challenge to the Directions is scheduled to commence next Monday.

8 Paragraph 37 of Associate Professor Gile's affidavit states in relevant parts:

37. In deciding to make the Directions, I considered:

37.3. a bundle of documents, which were in substantially similar form to those described in paragraph 37.2 comprising:

(a) the covering brief from the Department titled "Re-issue of amended public health directions to limit the spread of Novel Coronavirus 2019 (2019-nCov);

(b) a copy of an instrument of authorisation from the Chief Health Officer;

(c) 11 draft public health directions;

(d) 11 individual assessments by the Legal Services Branch that each of the directions are likely to be compatible with the Charter;

(emphasis added)

(e) a policy paper (labelled Attachment D) prepared by the Department;

...

37.5 legal advice provided by members of the Department's legal team about the requirements of the Charter;

1. Exhibit MG-5 is a copy of the documents described in paragraph 37.3 above, with those attachments, except that the only document described in 37.3(d) above that is included is the assessment by the Legal Services Branch of the Stay At Home Direction, which is partly redacted. I am informed that the other 10 documents described in paragraph 37.3(d) above have not been included, and that the one included document has been redacted, because of legal privilege.
2. I have been informed that the advice given to me by DHHS's legal team is confidential and covered by legal privilege. Further, the Secretary to DHHS has authorised me to waive privilege in the unredacted information exhibited in Exhibit MG-5, and directed me to maintain privilege in the redacted parts.
3. Privilege is otherwise maintained in all legal advice given to me in the course of deciding to make the Directions. Nothing in this affidavit should be understood to waive privilege in that legal advice, which I am not authorised to do.

10 Dr Giles' affidavit exhibits 'Attachment C4 - Memorandum of legal advice' from Sean Morrison, the Director, Legal Services and Acting General Counsel. Its subject is described as: 'Summary of human rights considerations relevant to the directions requiring persons in the Restricted Area in Victoria to stay at home, restricting travel beyond the Restricted Area and restricting the circumstances in which those persons may gather'. The document stated:

1. In this memorandum, we set out a summary of the Department of Health and Human Services' assessment of the potential human rights issues arising from your decision to reissue the Stay at Home Direction (Restricted Area) (No 15) (the Directions), which is the latest version of the directions that have been made to require persons who reside in certain high risk areas (the Restricted Area) to limit their movement and interactions with others by:

1. restricting the circumstances in which people may leave the premises where they ordinarily reside; 2. restricting the circumstances in which people may leave the Restricted Area; and

1. restricting the circumstances in which people may gather in public and in private,

so as to limit the spread of Novel Coronavirus 2019 (2019-nCoV). The Directions are at Attachment B4.

1. This memorandum is written to advise you of your obligations under s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), prior to issuing the Directions.
2. As a public authority within the meaning of the Charter, you must give proper consideration to any relevant human rights in deciding to issue the Directions. You must also act in a way that is compatible with human rights.[1]

11 The document then contained a summary of the timeline and application of directions, the interaction of the Direction under consideration with other directions, the content of the Direction and changes to the directions.

12 Then followed a section headed 'Justification for issuing the Directions' much of which has been redacted save for the following sentence:

Under s 7(2) of the Charter, human rights may be subject, under law, to reasonable limits that can be justified by reference to various factors.

13 The document referred to the number of confirmed cases of 2019-nCoV. It also contained a section headed 'Purpose and Proportionality Assessment of the Limits' which included:

1. There continues to be a serious, and potentially catastrophic, risk to public health arising from 2019-nCoV in Victoria. The virus is highly infectious - often remaining undetected for a period of many days and being transmitted to others by asymptomatic carriers - and, if unconstrained will spread at alarming rates amongst people in the community. Although the entire Victorian population is potentially susceptible to infection, 2019-nCoV poses particular risks to the elderly and persons with compromised immune systems or pre-existing conditions such as type 2 diabetes, hypertension, obesity, cardiovascular disease and respiratory problems. These conditions have been associated with increased risk of severe illness and higher rates of mortality in Victoria and in other jurisdictions. There is currently no vaccine available for 2019-nCoV.
2. Government data confirms that the various measures that have been implemented (including the previous directions) contributed to slowing the spread of the virus within the community. However, as noted above, recent trends indicate that the previous Stage 3 restrictions were not sufficient to stem transmission. Because of the recent increase in community transmission, some of the measures previously lifted have had to be re-imposed in metropolitan Melbourne, and some measures have had to be strengthened.
3. Infection rates in Victoria are currently much higher than in other parts of Australia. However, even though restrictions have eased further in other parts of the country, some restrictions are still in place. On 25 May 2020, the Commonwealth Deputy Chief Medical Officer Dr Nick Coatsworth explained the rationale of the Australian Health Protection Principal Committee's advice with respect to the continued need for some restrictions (notwithstanding the easing of certain restrictions at that time). Dr Coatsworth indicated that Australia still has a long way to go with 2019-nCoV, because we are still not immune and a safe and effective vaccine is still some way off. He noted that while Australia could relax some restrictions, we must not relax our behaviour, and that hand washing and keeping our distance must become 'the new normal'. He noted that the asymptomatic carrier remains a concern. Dr Coatsworth indicated the importance of being able to detect new cases and that tracing is critical so that we can shut clusters down as soon as they occur. He explained that because the virus incubates for 14 days, it takes two or three weeks to see what the effect of lifting any particular restriction has been and that is why we have to take our time in easing restrictions.

1. We will refer to the above considerations in this assessment as the Purpose and Proportionality Assessment of the Limits.

Relevant human rights in respect of the decision to issue the Directions

1. [Redacted] the following relevant human rights, which are discussed below:

a. right to liberty (s 21);

b. humane treatment when deprived of liberty (s 22);

c. freedom of movement (s 12);

d. freedom of religion (s 14) and cultural rights (s 19);

1. freedom of peaceful assembly and association (s 16) and freedom of expression (s 15);

f. right to equality (s 8);

g. rights to privacy, family and home (s 13); and

h. protection of families and children (s 17).

1. The proper consideration you must give to these rights [redacted]:

a. [redacted];

b. [redacted];

c. [redacted];

d. [redacted].

1. The Charter provides that a human right may only be subject to 'reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom' (s 7(2)). In considering whether a limit is reasonable and demonstrably justified, all relevant factors must be taken into account, including, but not limited to, five factors listed in s 7(2) of the Charter:

a. the nature of the right;

b. the importance of the purpose of the limitation;

c. the nature and extent of the limitation;

d. the relationship between the limitation and the purpose; and

1. any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

14 The document then referred to a number of Charter rights including the rights to liberty, freedom of movement, freedom of religion and cultural rights, freedom of peaceful assembly and association and freedom of expression, the right to equality, the right to privacy, family and home, and protection of families and children.

15 The Evidence Act 2008 provides:

122 Loss of client legal privilege - consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if -

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because -

(a) the substance of the evidence has been disclosed -

(i) in the course of making a confidential communication or preparing a confidential document; or

(ii) as a result of duress or deception; or

(iii) under compulsion of law; or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

16 The parties referred to a number of legal authorities on legal privilege and when it will be waived. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd,[2] the High Court stated:

In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that "'[w]aiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating'". In Mann v Carnell, it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though "not some overriding principle of fairness operating at large".

Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery. That question is whether the client or party concerned "has acted in a way that is inconsistent with the client or party objecting to" the production of a document.[3]

17 The defendant referred to the decision in Castles v Secretary to the Department of Justice,[4] a Charter case, where although relevant parts of the briefing notes to the Secretary, were 'unfortunately redacted', to use Emerton J's words, her Honour was still satisfied that the Secretary gave proper consideration to the plaintiff's human rights:

[f]rom the detailed manner in which the competing interests of Ms Castles' human rights and what could be described as public interests are weighed up in the briefings that were sent to her, along with the Secretary's own statement that she considered Ms Castles' human rights and weighed them against the rights and obligations imposed by the Corrections Act in making her decision.[5]

18 A central issue in the case is the extent to which Associate Professor Giles had regard to Charter rights and the requirements of s 38 of the Charter. The legal advices relied on by her may be directly relevant to deciding that issue. She states that she considered the 11 individual assessments by the Legal Services Branch that each of the directions are likely to be compatible with the Charter. In my opinion, that statement discloses the substance of the legal advices within the meaning of s 122(3) of the Evidence Act 2008.[6] In stating that she considered assessments of the Legal Services Branch and stating the substance of the assessments, she has acted in a way that is inconsistent with objecting to the adducing of the evidence of those legal assessments or advices within the meaning of s 122(2) of the Evidence Act 2008.

19 In any event, Associate Professor Giles' affidavit puts in issue her assessment of the relevant Charter rights and their impact on the making of the Directions. The manner in which she took into account Charter rights and the effect of the curfew on those rights is directly in issue. The legal advices that Associate Professor Giles considered appear to have influenced her 'state of mind' about the making of the Directions, as that term is used in waiver of privilege cases.[7]

20 The Court of Appeal decision in Minister for Families and Children v Certain Children[8] assists in demonstrating the importance when deciding whether the requirements of s 38 of the Charter have been observed, of identifying the legal, or other advices, the decision maker took into account. The Court stated:

There was, as the State pointed out in its submissions, no statement from the Minister of her reasons for decision. She was not, of course, obliged to provide such a statement. It remains the case at common law that a decision-maker is not obliged to give a statement of reasons. Nor is there a statutory right in Victoria to seek a statement of reasons, unless the decision is one to which the rules of natural justice apply.

We do not accept, however, that the absence of a statement of reasons can operate to the advantage of the decision-maker, as the State's submission seemed to suggest. It simply has the consequence that the reviewing court is left to proceed on the basis of such other material as is in evidence. In a case such as the present, where the ground of judicial review is that relevant considerations were not taken into account, the court can reasonably assume that the respondent decision-maker, doubtless wishing to uphold the validity of the decision, will seek to put into evidence all such materials as will demonstrate that the relevant considerations were taken into account.[9]

21 In contrast, Associate Professor Giles' affidavit may be taken, for present purposes, as her statement of reasons. Those parts that mention her consideration of Charter rights suggest that she was, at least in part, influenced by the legal assessments that she was provided. Her affidavit puts the contents of those legal assessments or advices in issue.

22 Finally, I note that the plaintiff also relied on s 125 of the Evidence Act 2008 to argue that the defendant had lost legal privilege, but I do not consider that her legal claims fall within the terms of that section.[10]

23 I consider that the plaintiff is entitled to inspect an unredacted copy of exhibit MG-5.

24 No reason was advanced as to why the ruling on MG-5 should not apply to all the 11 individual assessments by the Legal Services Branch mentioned above.

[2] [2013] HCA 46; (2013) 250 CLR 303.

[3] Ibid [31]-[32] (French CJ, Kiefel, Bell, Gageler and Keane JJ) (citations omitted).

[4] [2010] VSC 310.

[6] Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12 (Rolfe J). See also Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770 (Goldberg J).

[7] Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995)(1995) 37 NSWLR 405 at 411 (Giles J_)_ citing Thomason v Council of the Municipality of Campbelltown [1939] NSWStRp 10; (1939) 39 SR NSW 347, 358-9 (Jordan CJ).

[8] (2016) 51 VR 597.

[10] Bare v Small [2011] VSC 639.