A cautionary tale about sharing legal advice between agencies

Has your agency ever shared legal advice with another agency? If so then the decision of Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353, will be of great interest.  

The documents in question, subject of a Government Information (Public Access) Act 2009 (NSW) (GIPA Act) application, comprised information held by Transport for NSW and Roads and Maritime Services on the Exposure Draft Coastal Management Bill. RMS made claims of legal professional privilege over certain documents. 

Waiver by inadvertent disclosure

In responding to the GIPA application, RMS had inadvertently disclosed documents which described the contents of various legal advice sought and obtained from the Crown Solicitor’s Office by the Office of Environment & Heritage (OEH), certain of which was forwarded by email from OEH to RMS.

The Applicant argued that legal professional privilege had been waived, however, the Member was satisfied that a reasonable person would have realised that the disclosure of the email attachments was inadvertent and in error, by reason of the presentation of the attachments and the supplementary decision which stated that access was denied. Accordingly, neither the CSO nor RMS acted inconsistently with objecting to the adducing of the evidence.

Waiver by sharing among agencies

At the hearing and in written submissions, the Applicant had contended that OEH was the client, but had regard to RMS’ conduct, as if RMS was the client. After the Member had reserved, it became apparent that there was an issue around the disclosure of the advice to RMS and whether that conduct was inconsistent with maintaining privilege. Further submissions on this issue were sought.

The Applicant submitted that:

  • the failure of the OEH to object to the production of the advice by RMS amounted to an abandonment of privilege
  • the advice had been emailed and this was inconsistent with the maintenance of confidentiality.

The Member disagreed with the first proposition on the basis that it was the agency holding the information that was able to raise the objection. The failure to object by a stranger to the proceedings would rarely amount to waiver.

On the second submission, the Member found that the authority relied on by the Applicant was not authority for the proposition that emailing a document would always be inconsistent with maintaining privilege.

However, the Member took issue with RMS’ position that there was no evidence that the documents had been knowingly and voluntarily shared, other than with employees of the State of New South Wales, which was the relevant client for the purposes of the Evidence Act 1995 (NSW).   

The Member noted that RMS, as a statutory corporation, was a separate legal entity. As such, the issue became one of whether the state sharing advice with a statutory corporation attracts the operation of s 122(3) of the Evidence Act. The Member referred to Court of Appeal authority (State of New South v Public Transport Ticketing Corporation [2011] NSWCA 60) that the State and a statutory corporation representing the Crown are to be treated as separate persons for the purposes of another section of the Evidence Act and concluded that this also held for s 122(3).

The circumstances permitted the Member to examine the issue another way.

All but one of the disclosures had occurred in the context of an interagency working group, which could also be considered to be the client. In this regard it was noted that reference was made within certain of the documents to the interagency working group having sought the advice. RMS formed part of the interagency working group. 

However, this analysis could not be applied to the CSO advice which had been emailed to RMS and had been sought before the interagency working group had been established. That disclosure was held to be a knowing and voluntary disclosure of the information to another person.

Implications

Where there is real utility in sharing legal advice between agencies, formal structures for interagency relations must be in place to establish who the client is before requesting legal advice. A statutory corporation as a legal person may in fact waive legal professional privilege by sharing advice with another agency, to the extent they are separate legal persons and not the same client. 

Editorial: Rachael Jordan

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In the media

Marriage Equality for Australia
The Parliament of Australia today passed legislation providing marriage equality in Australia. These historic reforms commenced on Saturday 9 December 2017. Under the new laws, ministers of religion and religious marriage celebrants will be able to act in accordance with their religious beliefs about marriage (07 December 2017). More...

Tough new measures to combat corporate crime
Companies will be forced to actively guard against foreign bribery, and will be held responsible for bribery committed by their employees and contractors, under new laws introduced by the Coalition Government today. The Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 will also provide incentives for companies to come forward and work with government agencies (06 December 2017).  More...

Greater relief for distressed families navigating the family law
The Attorney-General has introduced two Bills to ease the pressure on separating families, better protect vulnerable women and children and ensure family law matters can be dealt with swiftly and affordably, with children’s best interests prioritised (06 December 2017).  More...

Compensation conundrum for abuse victims who go on to offend
Under the Federal Government's national redress scheme, victims of child sexual abuse who go onto commit sexual offences will not be eligible for compensation (07 December 2017).  More...

Domestic violence rates fall for the first time in nine years
For the first time in nine years, recorded incidents of domestic violence related assault have fallen in NSW. The NSW Government has introduced a raft of measures including Australia’s first dedicated police teams to target high-risk offenders, Plain English Apprehended Violence Orders and body-worn cameras so police can record victim statements that can be used as evidence in court (07 December 2017).  More...

Community safety comes first under changes to strengthen the management of high-risk offenders
The High Risk Offenders Scheme enables the government to apply to the NSW Supreme Court to keep serious sex or violent offenders in prison, or under rigorous supervision by Community Corrections, at the end of their sentence of imprisonment. From today, a greater number of offenders can be considered under the scheme due to changes in eligibility (06 December 2017).  More...

Government set to silence charities from participating in election debates
Charities in Australia will be silenced from speaking publicly on issues in an election, under law reforms announced by the Australian Government (05 December 2017).  More...

Court project to help people with a cognitive impairment in NSW
The NSW Government has launched a pilot diversion program to help defendants with a cognitive impairment charged with low-level offences access services that address the underlying causes of their offending behaviour. “The pilot program will identify defendants with a cognitive impairment early to help prevent their further contact with the criminal justice system (04 December 2017).  More...

New guilty plea reforms fail to win over NSW's top lawyers
The benefits expected from an overhaul of the criminal justice system in New South Wales are a "mirage", according to a key section of the state's legal profession (03 December 2017).  More...

National supervision for high risk offenders
The NSW and South Australian Governments will lead a national effort to design a scheme to ensure the nation’s most dangerous sex, violence and terrorism offenders remain subject to High Risk Offender orders imposed on them no matter where they are in Australia, NSW Attorney General Mark Speakman has announced (01 December 2017).  More...

Interim Parliamentary Report on the Status of the Human Right to Freedom of Religion or Belief
The Joint Standing Committee of Foreign Affairs, Defence and Trade has released the Interim Report into the Legal Foundations of Religious Freedom in Australia. The Interim Report is the first report to be released in the inquiry into the status of the human right to freedom of religion or belief, after a number of public consultations throughout the year (01 December 2017).  More...

Appointment of Royal Commissioner
The Turnbull Government will, having consulted His Excellency, recommend the Governor General appoint former High Court Judge the Honourable Kenneth Madison Hayne AC as Royal Commissioner into Misconduct in the Banking, Superannuation and Financial Services Industry (01 December 2017).  More...

Appointment of President of the Australian Law Reform Commission
Today I announce the appointment of Professor Sarah Derrington as the new President of the Australian Law Reform Commission (ALRC), for a five-year term. She replaces Professor Rosalind Croucher, who was recently appointed as the President of the Australian Human Rights Commission (30 November 2017).  More...

Appointments to the Administrative Appeals Tribunal
The Attorney-General, Senator the Hon George Brandis QC, has announced 19 appointments and 14 re-appointments to the AAT. Each appointment is for seven years commencing from 1 December 2017 unless otherwise indicated (30 November 2017).  More...

Appointment to the Federal Court of Australia
The Attorney-General announces the appointment of Mr Simon Steward QC as a judge of the Federal Court of Australia.  Mr Steward will commence in the Melbourne Registry on 1 February 2018 (30 November 2017).  More...

Improving the native title system for all Australians
The Turnbull Government is today releasing an options paper considering how the native title system could be improved to better support all stakeholders involved with native title.  The options paper considers reforms to the Native Title Act 1993 (Cth) to make the native title system operate more effectively for all Australians (29 November 2017).  More...

Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191: Inconsistency with Federal Law
On 27 November 2017, the Full Court of the Federal Court handed down judgement in an interlocutory application by the respondents in the case of Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191. The interlocutory application deals with the issue of inconsistency between state and federal legislation pertaining to juries (29 November 2017).  More...

In practice and courts

Recommended National Standards for Working with Interpreters in Courts and Tribunals 2017
COAT is a member of the Judicial Council on Cultural Diversity. The council has developed guidelines for working with interpreters in Courts and Tribunals:  Recommended National Standards for Working with Interpreters in Courts and Tribunals 2017 (05 December 2017).  More...

High Court of Australia
High Court of Australia Bulletin [2017] HCAB 09 (27 November 2017).  More...

AAT Publication of Decisions Policy
The Administrative Appeals Tribunal (AAT) has revised its Publication of Decisions Policy. The revised interim policy replaces the previous practices that largely reflected those that were in place in the AAT, Migration Review Tribunal and Refugee Review Tribunal, and Social Security Appeals Tribunal prior to amalgamation. Under the revised policy, the Tribunal will generally publish all written decisions in certain types of cases and a randomly selected proportion of decisions in most of the higher volume areas of our jurisdiction. Full implementation of the policy will be undertaken in stages, starting from 27 November 2017.  Tribunal’s website

Judicial Commission of NSW: Annual Report 2016–2017
The annual report is designed for judicial officers, our partners, staff, and the community to provide easy-to-read information about how the Commission performed during the financial year (29 November 2017).  More...

NSW IPC: Release of inaugural dashboard and metrics on the public's use of FOI laws
Australian Information Access Commissioners and Ombudsmen have released the inaugural dashboard of metrics on public use of freedom of information (FOI) access rights. The metrics are the first of their kind and will enable the community to examine the performance of their local FOI laws and to advocate accordingly, as well as improving community understanding of how FOI laws work and how to access them (28 November 2017).  More...

Reminder: Supreme Court of NSW: Updated forms for costs assessment
Updated costs assessment forms have recently been published on the Supreme Court website. From 1 January 2018 the registry will only accept these costs assessment forms for processing.  

Law Society of NSW Submissions
Shaping a Better Child Protection System - December 2017.

ICAC: Prosecution briefs with the DPP and outcomes
Tables of prosecution briefs with the DPP and outcomes. Last updated 07 December 2017.  More...

NCAT: Changes to matters affected by federal diversity jurisdiction
Legislative changes on 1 December to the Civil and Administrative Tribunal Act 2013 inserts a new part in the Act. This will allow interstate parties to commence proceedings in the Local or District Court after NCAT has declined to hear the case because of federal diversity jurisdiction (04 December 2017).  More...

Law Society of NSW: NCAT legislative amendments
Amendments to Part 3A of the Civil and Administrative Tribunal Act 2013, Schedule 1 of the Civil Procedure Act 2005, s 44(1)(d2) of the District Court Act 1973 and s 30(1)(b2) of the Local Court Act 2007, which were passed by the Parliament in September 2017 to address the impact of the Court of Appeal’s decision in Burns v Corbett, commenced on 1 December 2017.  More...

NCAT Annual Report 2016-2017
The Report details the Tribunal's performance against the eight areas of Tribunal excellence set out in the Australia and New Zealand Excellence Framework (June 2017) published by the Council of Australasian Tribunals (30 November 2017).  More...

Reminder:  Review of community legal centre (CLC) services
The aim of the review is to ensure that legal assistance is directed to people most in need, improve CLC service provision and assist the NSW Government in settling an approach to funding allocation. Download the full Terms of Reference for the review. A report on the review will be delivered to the Attorney General by mid-December 2017.

Published – articles, papers, reports

Combatting corruption in mining approvals: assessing the risks in 18 resource-rich countries
Lisa Caripis; Transparency International: 05 December 2017
Transparent and accountable mining can contribute to sustainable development. This begins with corruption-free approvals – the very first link in the mining value chain when decisions are made about whether, where, and under what circumstances to permit mining, including who is awarded licences.  More...

Overweight and obesity in Australia: a birth cohort analysis
Australian Institute of Health and Welfare: 24 November 2017
Overweight and obesity is a major public health issue, second only to tobacco smoking as a risk factor contributing to the burden of disease in Australia. More...

Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide
Deirdre McKeown; Parliamentary Library (Australia): 24 November 2017
This Quick Guide provides a chronological list of bills relating to marriage equality introduced into the federal parliament, including bills restored to the Notice Paper or reintroduced in a later parliament.  More...

Cases

Commissioner of Police, NSW Police Force v Monastirski [2017] NSWCATAP 225
ADMINISTRATIVE LAW – appeal from exercise of discretion to make a long term banning order – whether a person’s private interests are a mandatory consideration rendering the decision invalid if they are not taken into account, or whether a person’s private interests are a permissive consideration – whether the Tribunal treated the matters in s 3(2) of the Liquor Act 2007 (NSW) as mandatory considerations – whether the Tribunal treated the fact that the conduct giving rise to the application for the long-term banning order occurred or did not occur at a high risk venue as a mandatory consideration.

Braiding v TAFE NSW [2017] NSWCATAD 363
HUMAN RIGHTS – where complaint of disability discrimination in education declined by Anti-Discrimination Board – where applicant applied for leave to proceed – where TAFE refused applicant’s application for enrolment – whether fair and just for compliant to proceed.

Nicholls v Transport for NSW [2017] NSWCATAD 361
GIPA Act - Government Information - Access -Confidential information - Cabinet material – Position Minister was taking – Weight of evidence – Reasonable grounds – Whether reasonable grounds established.

Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force; Abughazaleh v Commissioner of Police, NSW Police Force [2017] NSWCATOD 176
ADMINISTRATIVE LAW – Security Industry – Where applicants provided training to New South Wales residents to obtain Queensland licences with a view to obtaining New South Wales licences under mutual recognition legislation – Where respondent revoked individual’s security licence and corporation’s master licence –Whether individual had breached licence conditions – Whether individual a fit and proper person to hold a licence.  
CONSTITUTIONAL LAW – Where corporate applicant was a registered training organisation under federal legislation – Where applicants claimed that security training was provided under federal Act - Whether Security Industry Act 1997 (NSW) inconsistent with National Vocational Education and Training Regulator Act 2011 (Cth).

O’Grady v Department of Finance, Services and Innovation [2017] NSWCATAD 360
ADMINISTRATIVE REVIEW - Government Information – discharge of onus - legal professional privilege – allegations of delay.

Amos v Western NSW Local Health District; Arnold v Western NSW Local Health District [2017] NSWCATAD 359
ADMINISTRATIVE LAW – Government information – whether disclosure could reasonably be expected to prejudice the supply of confidential information that facilitates effective exercise of agency functions – workplace investigation – human resources and patient safety functions – whether disclosure could reasonably be expected to prejudice effective exercise of agency functions – whether disclosure could reasonably be expected to disclose information provided in confidence – balancing of public interests. Personal information – whether disclosure would reveal an individual’s personal information or contravene an Information Privacy Principle – whether information already revealed – balancing of public interests.

Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353
GOVERNMENT INFORMATION – Review of implicit decision that agency does not hold information – Inadvertent disclosure of information to which access had been refused by agency – Relevance of inadvertent disclosure to conduct of review by Tribunal – Whether inadvertent disclosure constituted decision to grant access to information - Cabinet information claim – Whether reasonable grounds for claim – Whether certain documents prepared for the purpose of submission to Cabinet – Whether certain documents would reveal or tend to reveal information concerning any of Cabinet deliberations or decisions – Whether certain documents reveal or tend to reveal the position of a particular Minister on a matter in Cabinet - Whether Tribunal may decide to provide access to part of a document containing Cabinet information but not to the remainder of the document – Legal professional privilege – Whether confidential communications prepared for dominant purpose of lawyer providing legal advice to a client – Whether privilege waived by inadvertent disclosure to applicant – Applicable principles – Whether privilege waived by the provision of advice by a Department to a statutory corporation – Whether RMS is client of in-house solicitor providing advice - Where legal staff in RMS are employed by the Government of NSW - Meaning of “client” in the Evidence Act.

Turner v Commissioner of Police, NSW Police Force (No 2) [2017] NSWCATAD 356
ADMINISTRATIVE REVIEW – Government Information – Reasonableness of searches.

Industrial Relations Secretary v Wattie [2017] NSWSC 1662
ADMINISTRATIVE LAW – jurisdictional error – whether refusal of leave by Full Bench of Industrial Relations Commission against decision of Commissioner affected by jurisdictional error itself involved jurisdictional error   ADMINISTRATIVE LAW – inference drawn from reasons of Commissioner that regulatory context not taken into account, notwithstanding that it was, as a matter of necessary implication, a mandatory relevant consideration – jurisdictional error established   INDUSTRIAL LAW – what was required to determine whether dismissal was harsh – whether regulatory context was required to be considered in the context of a correctional services officer who assaulted three separate inmates on three occasions – HELD –seriousness of misconduct was required to be assessed to determine whether dismissal was harsh – assessment of seriousness required consideration of regulatory and policy context   PUBLIC LAW – correctional services officers agents of the State when dealing with inmates in custody in gaols – importance of prohibition of use of force by correctional services officers in the context of the State’s responsibilities towards those it deprives of liberty.

CPJ v The University of Newcastle [2017] NSWCATAD 350
PROCEDURE – summons to produce documents – where applicant in proceedings under the Privacy Information Protection Act 1998 issued a summons to a third party to produce documents – whether summons has legitimate forensic purpose – taking into account common law principles and the guiding principle, whether summons should be set aside.

Mookhey v Infrastructure NSW [2017] NSWCATAD 345
ADMINISTRATIVE LAW – Government information – Cabinet information claim – Whether documents prepared for dominant purpose of submission to Cabinet – Whether documents tend to reveal position taken by Minister – Whether documents tend to reveal Cabinet decisions or deliberations.

Shoebridge v Department of Education [2017] NSWCATAD 343
ADMINISTRATIVE LAW – access to information – reviewable decisions – public interest considerations – personal information – legitimate business interests.

Legislation

Commonwealth

Copyright Amendment (Service Providers) Bill 2017
The Copyright Amendment (Service Providers) Bill 2017 (the Bill) extends the operation of the safe harbour scheme and will limit remedies available against carriage service providers in Division 2AA of Part V of the Copyright Act 1968 (the Act) to a broader range of service providers in the  disability, educational and cultural sectors. Progress: Senate Introduced and read a first time 06/12/2017.  Second reading debate 06/12/2017.

Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017
The Bill will establish a legislative framework that can be used to apply gambling promotions restrictions to ‘online content services’ providers and provide the ACMA with the  power to (if directed by the Minister ) determine program  standards about gambling promotional content. Progress: Senate Introduced and read a first time 06/12/2017; Second reading debate 06/12/2017.

Marriage Amendment (Definition and Religious Freedoms) Bill 2017
Amends the: Marriage Act 1961 to: redefine marriage as ‘a union of two people’; introduce non-gendered language so that the requirements of the Act apply equally to all marriages; enable same-sex marriages that have been, or will be, solemnised under the law of a foreign country to be recognised in Australia; amend the definition of ‘authorised celebrant’ to include new categories of religious marriage celebrants and certain Australian Defence Force officers; enable ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds; and make amendments contingent on the commencement of the proposed Civil Law and Justice Legislation Amendment Act 2017; and Sex Discrimination Act 1984 to provide that a refusal by a minister of religion, religious marriage celebrant or chaplain to solemnise marriage in prescribed circumstances does not constitute unlawful discrimination. Progress: House of Representatives Second reading agreed to 07/12/2017. Consideration in detail debate 07/12/2017. 

Marriage Amendment (Definition and Religious Freedoms) Act 2017
Act No. 129 of 2017 – Date of assent: 08/12/2017 - An Act to amend the law relating to the definition of marriage and protect religious freedoms.  

Regulations

Privacy Amendment (Permitted Disclosures—Energy and Water Utilities) Regulations 2017
04/12/2017 – This regulation amends the Privacy Regulation 2013 to permit the disclosure of credit information by energy and water utilities in the Australian Capital Territory until 1 January 2019.

NSW

Regulations and other miscellaneous instruments

Privacy Code of Practice (General) Amendment (Document Validation Services) 2017 (2017-696) — published Gazette No 132 of 8 December 2017, page 7519.
Supreme Court (Amendment No 431) Rule 2017 (2017-690) — published LW 8 December 2017.
Election Funding, Expenditure and Disclosures (Adjustable Amounts) Further Amendment Notice 2017 (2017-671) — published LW 1 December 2017.
Law Enforcement (Powers and Responsibilities) Amendment (Police Reorganisation) Regulation 2017 (2017-675) — published LW 1 December 2017.

Proclamations commencing Acts

Crimes (High Risk Offenders) Amendment Act 2017 No 54 (2017-678) — published LW 1 December 2017.
Justice Legislation Amendment Act (No 2) 2017 No 44 (2017-667) — published LW 1 December 2017.

Bills assented to

Electoral Act 2017 No 66 — Assented to 30 November 2017
Terrorism (High Risk Offenders) Act 2017 No 68 — Assented to 30 November 2017
Building Products (Safety) Act 2017 No 69 — Assented to 30 November 2017

 

Editor:

Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477  
E: christine.jones@holdingredlich.com


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Cameron Sheather, Partner 
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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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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