02 September 2025
4 min read
#Australian Government, #Data & Privacy
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Legal professional privilege (LPP) protects confidential communications and documents between a lawyer and their client made for the dominant purpose of the lawyer providing legal advice. But what happens when this protection meets the statutory right to access documents under the Freedom of Information (FOI) legislation?
In this article, we examine the recent Administrative Review Tribunal (Tribunal) decision in Burford and Tertiary Education Quality and Standards Agency (Freedom of information) [2025] ARTA 992 (Burford) and explain how courts and tribunals apply the dominant purpose test to determine whether LPP applies in relation to LPP claims by government lawyers in relation to FOI requests.
Section 42(1) of the Freedom of Information Act 1982 (Cth) (FOI Act) provides that a document is exempt from disclosure if it would be privileged from production in legal proceedings on the ground of legal professional privilege.
The FOI Guidelines issued by the Office of the Australian Information Commissioner (OAIC) state that, in applying this exemption, “the decision maker needs to turn to common law concepts of privilege. The statutory test of client legal privilege under the Evidence Act 1995 is not applicable and should not be taken into account.” We further highlight key FOI obligations of Commonwealth agencies and departments here.
Agencies and decision makers should therefore rely on caselaw when making the relevant assessment and understand the dominant purpose test when considering whether a FOI request can be lawfully refused under section 42 of the FOI Act.
The dominant purpose test considers whether the ‘ruling, prevailing or most influential purpose’ for a document was to obtain or provide legal advice, or for use in litigation. While there may be more than one purpose, the document must be ‘brought into existence for the purpose of a client being provided with professional legal services’.
The dominant purpose test was the subject of examination in Burford, where the Tribunal considered whether documents were exempt in full or in part under section 42 of the FOI Act on the basis of LPP. Ms Burford was an owner of a college of natural medicine which was refused renewal of its registration. The FOI related to a request for documents in relation to that process.
The Tribunal first assessed whether a legal adviser-client relationship existed in the context of in-house lawyers in government agencies. The Tribunal accepted that LPP extends to confidential communications between in-house lawyers and their government agency. In this case, the Tribunal found that the necessary degree of independence was established as the legal team was a separate unit within the organisational structure of the agency, the lawyers were admitted to practice and supervised by the General Counsel, and the lawyers were engaged as professional advisers to provide legal advice and services.
The Tribunal then considered whether the documents were created for the dominant purpose of giving or receiving legal advice or in connection with the actual or anticipated litigation. The dominant purpose test was applied to a wide range of documents, noting the purpose should predominate all other purposes.
The Commissioner concluded that the claim of privilege was well founded for many of the documents. However, certain documents were remitted for reconsideration by the decision maker due to several issues, including lack of clarity regarding whether redactions had been applied and uncertainty about whether some materials could have been released with redactions.
In Burford, the Tribunal accepted that a legal adviser-client relationship can exist between in-house
government lawyers and their agency. Documents were found to be exempt from release based on LPP where the dominant purpose test had been met.
To validly claim LPP in response to an FOI request, government lawyers should consider the following:
If you have any questions regarding the FOI response process or this article, please contact us here.
Disclaimer
The information in this article 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 article is accurate at the date it is received or that it will continue to be accurate.
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