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Queensland Government Bulletin

13 October 2021

#Government

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Queensland Government Bulletin

Legal professional privilege issues for Queensland government lawyers – tricks and tips

By way of a quick recap, the principle, as stated by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, is as follows:

“Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court”

As such, it protects against the disclosure of confidential communications which were made for the dominant purpose of either:

    • a client obtaining legal advice; or
    • use in existing or anticipated legal proceedings. 

The client is entitled to refuse to disclose documents containing privileged communications to other parties in litigation or to others, such as regulators who may be conducting investigations (unless the privilege is expressly abrogated by legislation or is lost for some other reason, such as a waiver).

Some key points can be made:

  • firstly, the rationale is to allow clients to make full and frank disclosure of information to their lawyers to help ensure they receive fully-informed legal advice so that litigation can be properly fought
  • secondly, given this underlying rationale, confidentiality is considered the most essential element of privilege. As a general rule, a failure to maintain confidentiality in legal advice or privileged material will give rise to loss of the privilege
  • thirdly, another important aspect is that the communication must be between a client and their lawyer, which includes lawyers working in-house within government. The in-house lawyer must have a current practising certificate, and only communications involving the lawyer acting in that capacity are protected, not communications involving the lawyer involved in some other role (such as a commercial role). For example, the Federal Court recently heard an application brought by the Australian Taxation Office (ATO) against accounting giant, PWC, and its client, JBS, seeking to challenge a claim of legal professional privilege regarding confidential communications about its tax advice. The ATO’s argument was that a PWC lawyer was only included in the communications to give a “cloak of privilege” to the work, not to provide legal advice
  • fourthly, the privilege can be “waived”, and therefore lost forever, if the client deals with the privileged communication, by way of some act, express or implied, which is inconsistent with maintaining confidentiality in the communication.

We previously shared some practical tips for maintaining privilege, but they are well worth repeating again:

  • think about the purpose of the communication: Always keep in mind “what is the dominant purpose” of the communication – is it for legal advice, or contemplated or actual litigation? Consider identifying the purpose(s) of the material in an executive summary or equivalent
  • mark the document: Make clear on the face of the document where you consider that the material is “Privileged and Confidential”
  • treat the communication confidentially: Make sure those with whom you communicate know that the material is confidential
  • do not forward advice without permission: Require permission for the circulation of the material so it is not distributed too widely
  • state no intention to waive privilege: If you are sharing material, confirm in writing that there is no intention to waive privilege in the material when you provide it
  • communicate with third parties via lawyers: If you need to engage a third party to assist with the provision of legal advice, communicate via a lawyer or at least copy a lawyer into the communication
  • avoid paraphrasing or summarising advice: Paraphrasing and summarising risks losing the meaning of legal advice and no one will be aware that it is privileged
  • separate out the advice: Clearly indicate within the material which parts or attachments are privileged
  • keep it clean from commentary of non-lawyers: Try to avoid commentary from non-lawyers on the advice or the mixing of legal advice as this risks losing the privilege in the whole of the material
  • avoid using “Reply All” and keep your emails tight: Keep in mind who needs to see legal advice and keep your emails limited to those who actually require access to that advice
  • notes of discussion of legal advice: Be wary of taking handwritten notes in meetings that summarise or comment on legal advice. If you cannot avoid taking notes, mark the relevant sections of your notes as “privileged discussion of legal advice”.

Taking these steps will assist you, and your colleagues, to ensure that legal professional privilege is properly established, identified and maintained in respect to legal communications.

Author: Toby Boys

In the media

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Audit launched into Services Australia’s reliance on contractors
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Victoria launches home quarantine trial using facial recognition tech
The Victorian government has launched a trial of home quarantine for returning residents using facial recognition and geolocation technology, the latest in a number of states to embark on similar pilots (28 September 2021).  More...

Freedom of Information changes go too far
On the International Day for Universal Access to Information, the Law Council of Australia has expressed concern the COAG Legislation Amendment Bill 2021 extends Freedom of Information exemptions too broadly and without adequate justification (28 September 2021).  More...

International Access to Information Day 2021
The Office of the Australian Information Commissioner is calling for an open-by-design approach to managing government-held information as it marks International Access to Information Day on 28 September (27 September 2021).  More...

In practice and courts

Draft legislation for Australian Government Digital Identity System
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27 September 2021 – Australians need to be vigilant about scammers using calls, SMS and emails to take advantage of the COVID-19 vaccination rollout and, more generally, COVID-related restrictions. If in doubt, or for more information, contact the Department of Health’s COVID-19 vaccine helpline on 1800 020 080 or visit health.gov.au. You can make a report and/or find out more about COVID-19 scams at Scamwatch.

Queensland

Supreme Court protocol for judicial review of Parole Board Queensland applications
The protocol, which will come into effect from 5 October, applies to any application made by a prisoner under s22(2) of the Judicial Review Act 1991 for a statutory order of review of a failure by the Parole Board Queensland to decide a prisoner’s parole application within the period fixed by s193(3) of the Corrective Services Act 2006.
The protocol applies to applications filed in the Brisbane Registry only. See the protocol for full details.

Community Support and Services Committee – QPS - Criminal Law (Raising the Age of Responsibility) Amendment Bill 2021 (Bill) Consultation
The objective of the Bill is to ensure children under 14 years of age are not incarcerated or otherwise punished under the criminal legal system, consistent with current medical understanding of child development and contemporary human rights standards. The closing date for submissions is 30 November 2021. An information sheet can be found here.

Published – articles, papers, reports

Vaccinations in the workplace and navigating mental health in the COVID era
Law Society of NSW Employment Law Committee: 27 September 2021
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Cases

Surefoot IP Holdings Pty Ltd v All Footings Solutions Pty Ltd [2021] FCA 1181
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Nine Network Australia Pty Ltd v Civil Aviation Safety Authority [2021] FCA 1160
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Administrative Decisions (Judicial Review) Act 1977 (Cth); Airspace Regulations 2007 (Cth)

'YA' and Australian Taxation Office (Freedom of Information) [2021] AICmr 49
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'XZ' and Veterans' Review Board (Freedom of information) [2021] AICmr 48
Freedom of Information — whether reasonable steps taken to find documents — (CTH) Freedom of Information Act 1982 s 24A. The VRB did not make a decision on the applicant’s request within the statutory timeframe and was therefore deemed to have refused the applicant’s request under s 15AC(3) of the FOI Act.

Legislation

Commonwealth

Autonomous Sanctions (Designated and Declared Persons—Myanmar) Amendment (Continuation of Effect) Instrument 2021 
07/10/2021 - This instrument continues the designations and declarations of 5 persons who the Foreign Minister is satisfied continue to meet the criteria for targeted financial sanctions and travel bans under the Autonomous Sanctions Regulations 2011.

Royal Commissions Amendment (Defence and Veteran Suicide Private Sessions) Regulations 2021 
05/10/2021 - This instrument amends the Royal Commissions Regulations 2019 to prescribe the Royal Commission into Defence and Veteran Suicide as a Royal Commission that is authorised to use private sessions.

Competition and Consumer (Consumer Data Right) Amendment Rules (No. 1) 2021 
05/10/2021 - This instrument amends the Competition and Consumer (Consumer Data Right) Rules 2020 to facilitate greater participation in the Consumer Data Right (CDR) regime by participants and consumers, provide greater control and choice to consumers in sharing their data, promote innovation of CDR offerings including intermediary services, and enable services to be more effectively and efficiently provided to customers.

Do Not Call Register (Access Fees) Amendment Determination 2021 (No.1)
28/09/2021 - This determination amends the Do Not Call Register (Access Fees) Determination 2017 to increase the fees set out in Part 2 of that determination.

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.

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