1. The Labor Party
and Greens Political Party majority of the Legal and Constitutional Affairs
References committee (the committee) have contended that the Attorney-General
has failed to answer a number of questions in their Appendix 1 of the
committee’s interim report.
2. Answers to
questions on notice from the hearing (during which questions were addressed to
the Attorney-General’s Department) on 17 February were provided to the
committee on 24 March 2017 (in an email from Alana Fraser of the
Attorney-General’s Department to the Secretariat).
3. Answers to
questions taken on notice at the hearing on 8 March 2017 (addressed to the Attorney-General)
were provided on 23 March and 29 March 2017.
4. All bar one of
the questions[1]
specifically cited by the committee were answered in the above responses. More
particularly:
| Question
No. |
Response
Provided |
PII
Claim made |
| 1 |
24
March 2017, pp.2-3 |
Yes-
over notes (see from ‘it would not be appropriate to further disclose the
nature of the issues covered’) |
| 2 |
No |
|
| 3 |
24
March 2017, pp.14-5 |
n/a |
| 4 |
24
March 2017, pp.14-5 |
n/a |
| 5 |
23
March 2017 |
Yes-
refer from ‘the public interest in non-disclosure’ onwards. |
5. The sole
unanswered question was asked at the committee’s hearing on 17 February 2017.
Given that all of the questions on notice from that hearing were otherwise
answered in the response tabled on 24 March, the most likely explanation is
that this question was accidentally overlooked, either by officials of the
Attorney-General’s Department or the Attorney-General’s Office. Government
Senators note that this oversight has now been brought to the Attorney
General's attention and would urge the Attorney General to provide an answer to
the committee at his earliest convenience.
6. The majority
report also contends that the Attorney-General should make a public interest
immunity claim on the basis of legal professional privilege, or that documents
were confidential.
7. In fact he
Attorney-General’s response to the committee tabled on 23 March 2017 contained,
under the heading ‘the public interest in non-disclosure’ a comprehensive
explanation of the harm to the public interest that would result from answering
the relevant questions on notice (see Appendix 1 to this Dissenting Report). The
Attorney has complied with the committee's request.
Senator David Fawcett
Government
Senators’ Dissenting Report
Appendix
1
The public interest in non-disclosure
It is not in the public interest to depart from the
established position that has been maintained over many years by successive
governments, from both sides of politics, not to disclose privileged legal
advice. Absent exceptional circumstances, it is essential that privileged
legal advice provided to the Commonwealth remain confidential. Access by
Government to such confidential advice is, in practical terms, critical to the
development of sound Commonwealth policy and robust law-making.
The High Court of Australia has repeatedly affirmed
that there is a public interest in maintaining the confidentiality of legal
advice. In Grant v Downs, Stephen, Mason and Murphy JJ stated:[2]
The rationale of this
head of privilege, according to traditional doctrine, is that it promotes the
public interest because it assists and enhances the administration of justice
by facilitating the representation of clients by legal advisers.
It has further been recognised that the doctrine of
legal professional privilege itself arises from a weighing of the public
interest for and against disclosure. In Waterford v Commonwealth, Mason and
Wilson JJ opined:[3]
Legal professional
privilege is itself the product of a balancing exercise between competing
public interests whereby, subject to the well-recognised crime or fraud
exception, the public interest in “the perfect administration of justice” is
accorded paramountcy over the public interest that requires, in the interests
of a fair trial, the admission in evidence of all relevant documentary
evidence. Given its application, no further balancing exercise is required.
That view was reaffirmed by Gleeson CJ, Gaudron and
Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation.[4] Their
honours succinctly stated the rationale for the privilege: it “exists to serve
the public interest in the administration of justice by encouraging full and
frank disclosure by clients to their lawyers.”
It follows from these observations that the specific
harm that the doctrine seeks to prevent is the harm to the administration of
justice that would result from the disclosure of confidential interactions
between lawyer and client.
It also follows that to invoke the doctrine of legal
professional privilege is to identify the specific harm to the administration
of justice that the doctrine seeks to prevent.
Here, the Committee’s questions go to the heart of
the Commonwealth’s approach to constitutional litigation in the High Court.
Disclosure of advice in this context would mean that in some of the most
sensitive litigation faced by the Commonwealth — constitutional litigation with
a State — the Commonwealth could no longer be assured that its dealings with
its lawyers would remain confidential.
There may be circumstances where there is an
overriding public interest in disclosure, notwithstanding a legitimate legal
professional privilege claim. Indeed, the common law itself has long
recognised that legal professional privilege is not absolute.[5]
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