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NSW Government Bulletin

13 May 2020

#Government

Published by:

Rebecca Weakley

NSW Government Bulletin

What constitutes a waiver of privilege under the GIPA Act?

In Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121, an individual (Applicant) applied to Blue Mountains City Council (Council) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to reports relating to independent investigations into asbestos management and risk issues involving the Council.

The Council refused access to two reports (IR1 and IR2) that fell within the scope of the access application on the basis that there was a conclusive presumption against disclosure of the information as it was privileged from production in legal proceedings on the ground of legal professional privilege.

The applicant applied for an external review of the Council’s decision by the Information Commissioner, who concluded that the decision was not justified and recommended that the Council make a new decision. The Council again refused. The individual then commenced an action in the NSW Civil and Administrative Tribunal (Tribunal) seeking a review of the Council’s decision.

Background

The Council retained a law firm (advising firm) as one of its external solicitors. In November 2017, the Council instructed the advising firm to engage suitably qualified investigators (investigating firm) to carry out an investigation relating to the Council’s management of asbestos. In response, the advising firm engaged the services of the investigating firm, who wrote the two reports in question. In preparing these reports, the investigating firm consulted with a number of stakeholders and sections of the report were disclosed.

The applicant contended that:

  • in retaining the investigating firm, the advising firm was acting merely as an agent on behalf of the Council
  • the dominant purpose for which the reports were written was for public relations purposes, rather than for the provision of legal advice or services
  • even if the privilege claimed by the Council did exist, it had been waived as the reports were given to other parties in a manner inconsistent with the maintenance of the privilege.

Legislative provisions

Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

Clause 5 of Schedule 1 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

Section 97 of the GIPA Act places the onus of establishing the claim for legal professional privilege on the agency, which is the Council.

The relevant tests for determining privilege and waiver of that privilege are contained in the Evidence Act 1995.

In refusing access to the two reports on the basis that the documents were subject to legal professional privilege, two issues arise for consideration:

  • Did privilege attach to the documents when they were created?
  • If so, has the privilege been waived?

Did the privilege attach to the documents when they were created?

Under sections 118 and 119 of the Evidence Act 1995, the essential elements for determining privilege are:

  • the existence of a client and lawyer relationship
  • the confidential nature of the communication or document
  • that the communication or document was brought into existence for the dominant purpose of either:
      • enabling the client to obtain, or the lawyer to give legal advice or provide legal services; or
      • for use in existing or anticipated litigation.

The Tribunal did not agree with the applicant’s contention that the investigating firm was retained by the Council and that the advising firm was merely acting as the Council’s agent when it engaged the investigating firm.

The Tribunal was satisfied that a client-lawyer relationship existed between the Council and the advising firm when the investigating firm was engaged, and that the investigating firm was retained for the dominant purpose of providing legal advice to the Council.

The Tribunal was further satisfied that the investigating firm had an obligation of confidentiality to the advising firm, which arose from the client-lawyer relationship. The Tribunal found that the investigating firm was subject to an obligation to keep the reports confidential and not provide them to anyone except for the advising firm.

The reports were created in the context of that relationship, in that the reports were commissioned by the advising firm for the purpose of providing the Council with legal advice and/or legal services in respect of anticipated litigation. The Tribunal found that the reports were brought into existence for the dominant purpose of assisting the advising firm to provide legal advice or services to the Council.

The Tribunal, therefore, found that the reports were subject to legal professional privilege when they were created.

Has privilege been waived?

The more pressing issue at hand is whether this privilege was waived, which would, under clause 5 of Schedule 1, eliminate the conclusive presumption of an overriding public interest against disclosure of the information. Where a client or their agent deliberately and intentionally discloses confidential information, legal professional privilege will be waived.

In Attorney General (NT) v Maurice and Others (1986) 161 CLR 475, which was considered by the Tribunal, the High Court outlined a test which stated that implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege. However, in Mann v Carnell (1999) 201 CLR 1, which the Tribunal also turned its attention to, the High Court considered circumstances in which legal professional privilege will be impliedly waived, and noted that where particular conduct is inconsistent with the maintenance of the confidentiality which legal professional privilege seeks to protect, the law recognises the inconsistency and determines its consequences, and that inconsistency, rather than fairness, is the appropriate test.

The Tribunal did not agree with the applicant’s contention that provision of the reports to stakeholders during consultation brought about a waiver of the privilege, as the reports were made available on the understanding that they were privileged and confidential and the provision of the reports in these circumstances did not amount to acts inconsistent with the maintenance of the privilege. The Tribunal was not satisfied that privilege had been waived, and therefore, clause 5 of Schedule 1 of the GIPA Act applied. The Tribunal held that it was conclusively presumed that there was an overriding public interest against disclosure of the information, and no further assessment or weighting of considerations in favour of release occurred.

The Council’s decision to refuse to provide access to the information was held to be the correct and preferable decision and was affirmed by the Tribunal.

Authors: Michael Selinger & Rebecca Weakley

In the media

OAIC confronts PS pandemic privacy
The OAIC has revealed that Government Agencies and other organisations are struggling with their obligations under the Privacy Act 1988 while combating the spread of COVID-19 (07 May 2020).  More...

The OAIC’s full statement, with links, can be accessed at this PS News link.

COVID-19: The duty to document does not cease in a crisis, it becomes more essential
Australian and New Zealand Information Access Commissioners join with their international counterparts in their clear call for documentation, preservation and access to information during COVID-19 (06 May 2020).  More...

COVID-19: $9m stimulus a win for justice and jobs in regional NSW
A fast-tracked program of courts and corrections facility upgrades is about to pump $9 million through regional economies hit hard by COVID-19 restrictions (06 May 2020).  More...

New privacy survey highlights the need to improve awareness of privacy rights in NSW
The NSW Privacy Commissioner, Samantha Gavel published today the results of the latest two-yearly survey of NSW community attitudes towards privacy (06 May 2020).  More...

Civil society groups call on NSW Parliament to resume
Six civil society groups are today calling on the NSW State Parliament to immediately reconvene regular sittings, in a way that is safe, so it can debate and address important matters of public concern (05 May 2020).  More...

Practice and courts

COVID-19: The duty to document does not cease in a crisis, it becomes more essential
The following statement has been released by International Conference of Information Commissioners and aligned organisations to recognise and promote sound information management practices as part of Information Awareness Month (06 May 2020).

Federal Circuit Court of Australia remodelled website homepage
The Federal Circuit Court of Australia launched a remodelled website homepage on 30 April 2020. The content of the website has not changed, but court users and practitioners will notice a new layout, including direct links to the Court’s three main areas of filing: family law, migration law and general federal law.

Courts Practice Directions

Joint Practice Direction 3 of 2020 - The COVID-19 List
Federal Circuit Court of Australia, 3 of 2020
This Joint Practice Direction establishes a fast-tracked, national list in each Court (“the COVID-19 List”) to allow the Courts to swiftly deal with urgent COVID-19 applications on a national basis

Joint Practice Direction 3 of 2020 - The COVID-19 List
Family Court of Australia, 3 of 2020

Australia update
The Family Court of Australia and the Federal Circuit Court of Australia have announced they are establishing a court list dedicated to deal exclusively with urgent parenting-related disputes that have arisen due to the COVID-19 pandemic. The list will commence on 29 April 2020.

Alternative Dispute Resolution
The Courts have issued an electronic Alternative Dispute Resolution. This guide is for ADR events conducted in the Family Court of Australia and the Federal Circuit Court of Australia (28 April 2020).  More...

COVID-19: Information for attending Court
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has today again been updated in terms of recent developments (07 May 2020)

Electronic Transactions Amendment Regulation 2020
The new Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 is now in effect and allows for the witnessing of legal documents to be conducted electronically during the COVID-19 pandemic (04 May 2020).  More...

NSW IPC
NSW Privacy Commissioner Statement on use of Commonwealth mobile tracing app data for managing the COVID-19 pandemic (27 April 2020)

Consultations
The NSW Department of Communities and Justice is conducting a review of the Crimes (Serious Crime Prevention Orders) Act 2016 to determine whether the policy objectives remain.  More...

Published – articles, papers, reports

Australian Bureau of Statistics
06/05/2020 Public Consultation - How do you use Census data, 2020
Tell us about how your use of Census data has resulted in better outcomes for individuals, families and communities here.
01/05/2020 Household Impacts of COVID-19 Survey, 14-17 Apr 2020

Cases

Nicholson v Office of Local Government [2020] NSWCATAD 126
ADMINISTRATIVE LAW – procedure – time limits – appeal lodged out of time – no application for extension of time - principles to be applied – whether reasonable excuse for the delay in making the application.

Medlyn v Commissioner of Police [2020] NSWCATAD 125
ADMINISTRATIVE REVIEW – access to government information – access application – whether the discretion to refuse to deal with application under s 60(1)(d) of the Government (Public Access) Act 2009 should be exercised – whether public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure

Aboukalam v Commissioner for Fair Trading [2020] NSWCATOD 46
ADMINISTRATIVE REVIEW – occupational licensing – renewal of contractor licence refused - interim order – power to grant temporary licence – whether temporary licence should be granted

McCrystal v Commissioner of Police [2020] NSWCATAD 122
ADMINISTRATIVE LAW – Freedom of Information - Government Information (Public Access) Act -– GIPA – weight of evidence – public interest considerations against disclosure – balance of personal factors of applicant in favour of release 

Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121
ADMINISTRATIVE LAW – Government Information (Public Access) Act -– legal professional privilege – whether privilege waived 

DYD v Commissioner of Police [2020] NSWCATAD 119
GOVERNMENT INFORMATION (PUBLIC ACCESS) – audit of an IT system (COPS) and whether making of a new record - children’s privacy - considering personal factors of Applicant - balancing of public interest considerations for and against disclosure - persuasiveness of prior Tribunal decisions

DTN v Commissioner of Police [2020] NSWCATAP 73
ADMINISTRATIVE REVIEW – privacy – health information – damages for contravention of Health Privacy Principle – causation – review of discretionary judgment – parameters of “ancillary orders” under s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW)
APPEAL – practice and procedure – error of law – review of discretionary orders
WORDS AND PHRASES — meaning of words “ancillary orders” under s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW)

Barrett v Commissioner for Fair Trading [2020] NSWCATOD 45
ADMINISTRATIVE LAW- refusal to renew contractor licence under Home Building Act 1989 (NSW) – whether applicant is fit and proper person to hold contractor licence

James v State of NSW (Department of Justice (Corrective Services NSW)) [2020] NSWCATAD 117
HUMAN RIGHTS — discrimination — whether power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW) should be exercised

Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42
PROCEDURE – separate determination of question – question of law – right to appeal against rejection of development application – no right to appeal – appeal dismissed STATUTORY INTERPRETATION – ss 8.2, 8.6, 8.7 Environmental Planning and Assessment Act 1979 – whether “decision” and “determination” of consent authority are distinct terms – decision is distinct from determination – rejection of development application is a decision – approval and refusal are determinations – decision to reject is not a decision subject to ppeal that the Division so provides – s 8.7 right to appeal limited to determinations

Storey v Legal Aid New South Wales [2020] NSWCATAD 113
ADMINISTRATIVE LAW – government information – overriding public interest against disclosure – legal professional privilege

Little v Department of Communities and Justice [2020] NSWCATAD 112
ADMINISTRATIVE LAW – government information – access application – reasonable searches – conclusive presumption – personal information – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure

Legislation

NSW

Regulations and other miscellaneous instruments
Public Holidays Amendment (COVID-19 Revocations) Order 2020 (2020-187) — published LW 30 April 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Rebecca Weakley

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