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law andTimorese SENATOR THE HON GEORGE BRANDIS QC
ATTORNEY-GENERAL
MINISTERIAL STATEMENT
Execution of ASIO Search Warrants
4 December 2013
Yesterday, search warrants were executed at premises in Canberra by officers of the
Australian Security Intelligence Organisation (ASIO) and, in the course of the execution of
those warrants, documents and electronic data was taken into possession. The premises were
those of Mr Bernard Collaery and a former ASIS officer. The names of ASIS officers –
whether serving or past – may not be disclosed.
The warrants were issued by me, at the request of ASIO, on the grounds that the documents
and electronic data in question contained intelligence relating to security matters.
By section 39 of the Intelligence Services Act 2001, it is a criminal offence for a current or
former officer of ASIS to communicate “any information or matter that was prepared by or
on behalf of ASIS in connection with its functions or relates to the performance by ASIS of
its functions”, where the information has come into his possession by reason of his being or
having been an officer of ASIS.
As Honourable Senators are aware, it has been the practice of successive Australian
Governments not to comment on security matters. I intend to observe that convention.
However, in view of the publicity which has surrounded the matter since yesterday, I
consider that it would be appropriate for me to make a short statement about the matter which
does not trespass beyond the convention, and which will also provide an opportunity to
correct some misleading statements that have been made in the Chamber this morning, and
by others.
I listened to the debate in the Senate earlier in the day on Senator Milne’s procedural motion.
I listened, in particular, with great respect to Senator Faulkner’s contribution. I agree with
what Senator Faulkner had to say and – if I may say so – consider it to be an accurate and
judicious statement of the applicable principles. While a national security Minister should
never be compelled by the Parliament to make a statement concerning intelligence matters, it
may, as Senator Faulkner rightly said, be appropriate on particular occasions for him to
prevail upon the courtesy of the Parliament to do so.
Warrants of the kind executed yesterday are issued under section 25 of the Australian
Security Intelligence Organisation Act 1979 (the Act). They are only issued by the Attorney-
General at the request of the Director-General of ASIO, and only if the Attorney-General is
satisfied as to certain matters. It is important to make that point, since it was asserted by
Senator Ludlam, in apparent ignorance of the Act, that I had “set ASIO onto” these
individuals. The Attorney-General never initiates a search warrant; the request must come
from ASIO itself.
1When the Director-General makes such a request, a search warrant may only be issued by the
Attorney-General if the conditions set out in section 25(2) are fulfilled. That provision
requires that the Attorney be satisfied that there are reasonable grounds for believing that
access by ASIO to records or other things on the subject premises will substantially assist the
collection of intelligence in accordance with the Act in respect to a matter that is important in
relation to security. Security is defined by section 4 to mean the protection of the
Commonwealth and its people from espionage, sabotage, politically motivated violence,
attacks on Australia’s defence system, or acts of foreign interference; and the protection of
Australia’s territorial and border integrity from serious threats.
On the basis of the intelligence put before me by ASIO, I was satisfied that the documents
and electronic media identified did satisfy the statutory tests, and therefore I issued the
warrants. Of course, honourable Senators would not expect me to disclose the specific nature
of the security matter concerned.
I am, of course, aware that Australia is currently in dispute with Timor Leste over matters
relating to the Timor Sea. That dispute is the subject of arbitration proceedings in The Hague,
which are due to commence tomorrow. The case is being heard by an Arbitral Tribunal
established under Article 23 of the Timor Sea Treaty. In those proceedings, Timor Leste
makes certain allegations against Australia. The Australian Government is defending the
proceedings and contesting the jurisdiction of the Tribunal. I am aware that Mr Collaery is
one of Timor Leste’s counsel in the proceedings.
Australia, of course, respects the proceedings and respects the Arbitral Tribunal. We will be
represented by the Solicitor-General, Mr Gleeson SC, and by Professor James Crawford AC
SC, who is the Whewell Professor of Public International Law at the University of
Cambridge.
Last night, rather wild and injudicious claims were made by Mr Collaery and,
disappointingly, Father Frank Brennan, that the purpose for which the search warrants were
issued was to somehow impede or subvert the arbitration. Those claims are wrong. The
search warrants were issued, on the advice and at the request of ASIO, to protect Australia’s
national security.
I do not know what particular material was identified from the documents and electronic
media taken into possession in the execution of the warrants. That will be a matter for ASIO
to analyse in coming days. However, given Mr Collaery’s role in the arbitration, and in order
to protect Australia from groundless allegations of the kind to which I have referred, I have
given an instruction to ASIO that the material taken into possession in execution of the
warrants is not under any circumstances to be communicated to those conducting the
proceedings on behalf of Australia.
Might I finally make the observation that, merely because Mr Collaery is a lawyer, that fact
alone does not excuse him from the ordinary law of the land. In particular, no lawyer can
invoke the principles of lawyer-client privilege to excuse participation, whether as principal
or accessory, in offences against the Commonwealth.
I understand that the Opposition was briefed by ASIO on this matter earlier today.
___________
2p le R
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nAttorney-General's Guidelines in relation to the performance by the
Australian Security Intelligence Organisation of its function of
obtaining, correlating, evaluating and communicating intelligence
relevant to security (including politically motivated violence)
1 Authority for Guidelines
1.1 These guidelines are given by the Attorney-General to the Director-
General of Security (the Director-General) under subsections 8A(1) and 8A(2)
of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act)
and are to be observed by ASIO in the performance of its functions relating
to:
(a) the obtaining, correlating, evaluating and communicating of intelligence
relevant to security; and
(b) politically motivated violence.
2 ASIO's functions
2.1 ASIO's functions are specified in the ASIO Act (section 17). These are:
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security and not otherwise, to communicate any
such intelligence to such persons, and in such manner, as are appropriate to
those purposes;
(c) to advise Ministers and authorities of the Commonwealth in respect of
matters relating to security, in so far as those matters are relevant to their
functions and responsibilities;
(ca) to furnish security assessments to a State or an authority of a State in
accordance with paragraph 40(1)(b);
(d) to advise Ministers, authorities of the Commonwealth and such other
persons as the Minister, by notice in writing given to the Director-General,
determines on matters relating to protective security; and
(e) to obtain within Australia foreign intelligence pursuant to section 27A or
27B of the ASIO Act or section 11A, 11B or 11C of the Telecommunications
(Interception and Access) Act 1979, and to communicate any such
intelligence in accordance with the ASIO Act or the Telecommunications
(Interception and Access) Act 1979.
2.2 "Security" is defined as:(a) The protection of, and of the people of, the Commonwealth and the
several States and Territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence;
(iv) promotion of communal violence;
(v) attacks on Australia's defence system; or
(vi) acts of foreign interference; whether directed from, or committed within,
Australia or not; and
(b) the carrying out of Australia's responsibilities to any foreign country in
relation to a matter mentioned in any of the subparagraphs of paragraph (a).
2.3 Other important statutory provisions include section 17A and section 20 of
the ASIO Act:
Section 17A:
This Act shall not limit the right of persons to engage in lawful advocacy,
protest or dissent, and the exercise of that right shall not by itself, be
regarded as prejudicial to security, and the functions of the Organisation shall
be construed accordingly.
Section 20:
The Director-General shall take all reasonable steps to ensure that:
(a) the work of the Organisation is limited to what is necessary for the
purposes of the discharge of its functions; and
(b) the Organisation is kept free from any influences or considerations not
relevant to its functions and nothing is done that might lend colour to any
suggestion that it is concerned to further or protect the interests of any
particular section of the community, or with any matters other than the
discharge of its functions.
3 Governing Principles
3.1 ASIO works to provide timely advice on threats to the security of
Australia, the Australian people, and Australian interests, whether in or
outside Australia.3.2 ASIO's security functions are concerned with protection and are
anticipatory in nature. ASIO therefore investigates known threats to security,
and endeavours to identify persons, groups or entities that may present a risk
to security that previously have not been identified.
3.3 ASIO implements measures or arrangements, as far as is reasonably
possible, to ensure that the information it relies upon is reliable and accurate.
4 Interpretation
4.1 In these guidelines:
(a) "activities relevant to security" means not only physical acts of the sort
specified in the definition of security, but also includes the acts of conspiring,
planning, organising, counselling, advising, financing, or otherwise advocating
or encouraging the doing of those things;
(b) "activities prejudicial to security" means activities that are relevant to
security and which can reasonably be considered capable of causing damage
or harm to Australia, the Australian people, or Australian interests, or to
foreign countries to which Australia has responsibilities;
(c) "subject" means a person, group or other entity;
(d) "inquiry" means action taken to obtain information:
(i) for the purpose of identifying a subject and/or determining whether the
activities of a subject could be relevant to security; or
(ii) as part of an investigation; and
(e) "investigation" means a concerted series of inquiries in relation to a
subject where it has been determined that the activities of the subject could
be relevant to security.
5 Security Assessments
5.1 The furnishing by ASIO of security assessments to Commonwealth
agencies is governed by Part IV of the ASIO Act. Where it is necessary to
conduct an investigation to obtain new information relevant to a security
assessment, such an investigation shall be conducted in accordance with
these guidelines.
6 Obtaining Intelligence Relevant to Security
6.1 ASIO's functions require it:(a) to undertake inquiries to determine whether a particular subject or activity
is relevant to security;
(b) to investigate subjects and activities relevant to security;
(c) to develop and maintain a broad understanding of the security
environment; and
(d) to analyse and assess information obtained, and to provide intelligence
and advice to relevant authorities.
6.2 In performing its functions ASIO may:
(a) collect, maintain, analyse and assess information related to inquiries and
investigations;
(b) collect and maintain a comprehensive body of reference material to
contextualise intelligence derived from inquiries and investigations; and
(c) maintain a broad database, based on the above, against which
information obtained in relation to a specific inquiry or investigation can be
checked and assessed.
6.3 The Director-General is responsible for deciding ASIO's intelligence
collection, analysis and assessment priorities (subject to section 8 of the ASIO
Act).
7 Investigations
7.1 The Director-General is responsible for determining ASIO's subjects for
investigation (subject to section 8 of the ASIO Act).
7.2 ASIO is not required to investigate every instance of activities relevant to
security. Decisions to initiate investigations shall be based on a consideration
of the extent to which the activities of a subject will, or are likely to, cause
harm or damage, ASIO's overall priorities, and the availability of appropriate
resources.
8 Authorisation of Inquiries and Investigations
8.1 Subject to paragraph 10.4(c), the initiation and continuation of
investigations shall be authorised only by the Director-General, or an officer at
or above Executive Level 2 authorised by the Director-General for that
purpose.
8.2 The Director-General will establish processes to ensure that all requests
for information from external agencies are authorised at an appropriate level.9 Bases for Investigations
9.1 In deciding whether to conduct an investigation, and the investigative
methods to be used, ASIO shall consider:
(a) what is already known about the subject's activities, associations and
beliefs, and the extent to which those activities, associations and beliefs are,
or are likely to be, relevant or prejudicial to security;
(b) the immediacy and severity of the threat to security;
(c) the reliability of the sources of the relevant information; and
(d) subject to paragraph 10.4, the investigative techniques that are likely to
be most effective.
10 Conduct of Inquiries and Investigations
10.1 Information obtained by ASIO is "relevant to security" where it may
assist in determining whether:
(a) there is a connection or possible connection between a subject and
activities relevant to security, irrespective of when such activities have
occurred or may occur;
(b) the activities of a subject are not relevant to security; or
(c) a person, group or entity other than the subject has a connection or
possible connection to activities relevant to security.
10.2 The purpose of an ASIO inquiry or investigation should generally be to
obtain information concerning the nature of any activities of a person or
group which may be relevant to security, including their intentions and
capabilities.
10.3 Information collected may include:
(a) the identity and relevant activities of individuals and groups of interest,
including persons associated with the group of interest and of other persons
likely to be knowingly concerned in furtherance of its plans or activities; and
(b) the finances, the geographic dimensions, and the past, present and
prospective activities of the individuals or groups.
10.4 Information is to be obtained by ASIO in a lawful, timely and efficient
way, and in accordance with the following:(a) any means used for obtaining information must be proportionate to the
gravity of the threat posed and the probability of its occurrence;
(b) inquiries and investigations into individuals and groups should be
undertaken:
(i) using as little intrusion into individual privacy as is possible, consistent with
the performance of ASIO's functions; and
(ii) with due regard for the cultural values, mores and sensitivities of
individuals of particular cultural or racial backgrounds, consistent with the
national interest;
(c) the more intrusive the investigative technique, the higher the level of
officer that should be required to approve its use;
(d) wherever possible, the least intrusive techniques of information collection
should be used before more intrusive techniques; and
(e) where a threat is assessed as likely to develop quickly, a greater degree of
intrusion may be justified.
11 Review of Investigations
11.1 Investigations are to be reviewed no less than annually.
11.2 Where an inquiry or investigation concludes that a subject's activities are
not, or are no longer, relevant to security, the records of that inquiry or
investigation shall be destroyed under disposal schedules agreed to between
ASIO and the National Archives of Australia.
12 Advice to the Attorney-General
12.1 The Director-General shall keep the Attorney-General advised, in general
terms, of ASIO's investigations and priorities through:
(a) regular briefings to the Attorney-General on ASIO's investigations,
significant developments in relation to important subjects, and the emergence
of new subjects; and
(b) other means as necessary.
Note 1: Under the ASIO Act, and the Telecommunications (Interception and
Access) Act 1979 (the T(I&A) Act), all ASIO warrants (other than questioning
warrants issued under Part III, Division 3 of the ASIO Act) are issued by the
Attorney-General, and ASIO is required to report to the Attorney-General on
the extent to which the action taken under every warrant has assisted theOrganisation in carrying out its functions (section 34 of the ASIO Act and
section 17 of the T(I&A) Act).
Note 2: Section 21 of the ASIO Act requires the Director-General to consult
regularly with the Leader of the Opposition in the House of Representatives
for the purpose of keeping him or her informed on matters relating to
security.
13 Treatment of Personal Information
13.1 ASIO shall only collect, use, handle or disclose personal information for
purposes connected with its statutory functions.
13.2 The Director-General shall take all reasonable steps to ensure that
personal information shall not be collected, used, handled or disclosed by
ASIO unless that collection, use, handling or disclosure is reasonably
necessary for the performance of its statutory functions (or as otherwise
authorised, or required, by law).
13.3 The Director-General shall ensure that all reasonable steps are taken to
ensure that personal information held, used or disclosed by ASIO is accurate
and not misleading.
13.4 Appropriate records shall be kept of all requests made by ASIO for
access to personal information and all personal information received in
response to such requests. Such records shall be open to inspection by the
Inspector-General of Intelligence and Security.
13.5 Appropriate records shall be kept of all communication by ASIO of
personal information for purposes relevant to security or as otherwise
authorised. Such records shall be open to inspection by the Inspector-General
of Intelligence and Security.
13.6 The Director-General shall ensure that all personal information collected
or held by ASIO is protected by reasonable security measures against loss
and unauthorised access, use or modification.
14 Politically Motivated Violence (PMV) - legislative definitions
14.1 Key legislative provisions relating to PMV are:
(a) the definition of "politically motivated violence" in section 4 of the ASIO
Act; and
(b) section 17A which provides that the ASIO Act is not concerned with lawful
advocacy, protest, or issent (paragraph 2.3 above).
14.2 "Politically motivated violence" means:(a) acts or threats of violence or unlawful harm that are intended or likely to
achieve a political objective, whether in Australia or elsewhere, including acts
or threats carried on for the purpose of influencing the policy or acts of a
government, whether in Australia or elsewhere; or
(b) acts that:
(i) involve violence or are intended or are likely to involve or lead to violence
(whether by the persons who carry on those acts or by other persons); and
(ii) are directed to overthrowing or destroying, or assisting in the overthrow
or destruction of, the government or the constitutional system of government
of the Commonwealth or of a State or Territory; or
(ba) acts that are terrorism offences; or
(c) acts that are offences punishable under the Crimes (Foreign Incursions
and Recruitment) Act 1978, the Crimes (Hostages) Act 1989 or Division 1 of
Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under
Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or
(d) acts that:
(i) are offences punishable under the Crimes (Internationally Protected
Persons) Act 1976; or
(ii) threaten or endanger any person or class of persons specified by the
Minister for the purposes of this subparagraph by notice in writing given to
the Director-General.
15 Interpreting PMV
Sub-paragraph (a) of the definition of PMV
15.1 The activity comprehended by sub-paragraph (a) of the definition of
PMV includes terrorism, and violent protest that has a political objective. In
performing its functions in relation to sub-paragraph (a) of the definition of
PMV, ASIO should give priority to persons or groups likely to be involved in:
(a) acts or threats of serious violence or unlawful harm designed to create
fear or to incite or provoke violent reaction; or
(b) the use of tactics that can reasonably be assessed as likely to result in
violence;
in order to achieve a political objective.15.2 The above considerations apply whether the object of the violence or
threat is the government of the Commonwealth, a State or Territory, or the
government of a foreign country with which Australia has responsibilities in
relation to security matters, or the people of Australia or Australian interests
within Australia and overseas. Where acts or threats occur within a State or
Territory and appear wholly designed to influence the policy or acts of the
State or Territory government, ASIO is to inform the Attorney-General of any
decision taken to investigate such acts or threats.
Sub-paragraph (b) of the definition of PMV
15.3 In performing its functions in relation to sub-paragraph (b) of the
definition of PMV, ASIO is to investigate whether a person or a group actively
holds to, advocates or encourages a doctrine, or pursues political objectives in
which advocacy of the use of violence is accepted for the purpose of
overthrowing, destroying or assisting in the overthrow or destruction of a
government or the constitutional system of government of the
Commonwealth, or a State or Territory.
15.4 Whether it is probable that the activity will succeed in its purpose, and
whether the intent is for imminent or future activity are matters which ASIO
should take into account in setting its priorities. However, these
considerations of probability of success or imminence of violence are not
factors which of themselves determine whether the act is PMV.
15.5 A person or group need not intend to initiate violence in the process of
overthrowing constitutional government for their activities to be assessed as
PMV under sub-paragraph (b). It is sufficient if the activities could lead to
violence. All that is required is there is a reasonable likelihood that the activity
will produce violence from others.
15.6 Advocacy of violence may come within sub-paragraph (b) of the
definition of PMV even though it is not itself unlawful, or the advocacy is not
public. Of their very nature, preparations directed at the overthrow of
government are likely to be clandestine and their early manifestations are
deceptive.
15.7 If apparently non-violent activities directed at destabilising or
undermining constitutional government are associated with what purports to
be no more than contemplation of the prospect of the violent overthrow of
government, ASIO may investigate those activities to the extent necessary to
establish (with some confidence) whether the activities involve a real risk or
danger that violence will flow from those activities.
Sub-paragraphs (ba) and (c) of the definition of PMV15.8 These sub-paragraphs refer to activities that are criminal offences. Any
activity which constitutes a criminal offence under the legislation specified is
an act of PMV.
Sub-paragraph (d) of the definition of PMV
15.9 Sub-paragraph (d) of the definition of PMV refers to attacks on the
persons, official premises and private accommodation of certain defined
persons and provides for the Attorney-General to add to those defined
persons by notice in writing to the Director-General.
15.10 The categories of persons defined by sub-paragraph (d) of the
definition of PMV include internationally protected persons as defined by the
Crimes (Internationally Protected Persons) Act 1976. Any activity which
constitutes a criminal offence under this legislation is an act of PMV.
15.11 Sub-paragraph (d) also provides for the Attorney-General to add other
defined persons by notice in writing to the Director-General. That latter
category will vary from time to time, but could include:
(a) Ministers of the Commonwealth Government;
(b) the Leader of the Opposition in the Commonwealth Parliament;
(c) Members of the Commonwealth Parliament when travelling as a
Parliamentary
delegation; and
(d) the Premiers or Chief Ministers of the States and Territories.
15.12 Investigations into activities that might threaten persons in the
categories identified in sub-paragraph (d) of the definition of PMV may
require a higher degree of intrusion into the privacy of persons suspected of
involvement than would normally be appropriate when based only on
information of low reliability. The period of such intrusion should be limited so
far as practicable to the period of possible threat.
16 Investigations into Demonstrations and other forms of Protest
16.1 Further to clause 7 above, the following guidance relates specifically to
ASIO's investigation of demonstrations and other forms of protest.
16.2 ASIO is not to undertake investigations where the only basis for the
investigation is the exercise of a person's right of lawful advocacy, protest or
dissent (section 17A of the ASIO Act).16.3 ASIO is not to investigate demonstrations or other protest activity
unless:
(a) there is a risk of pre-meditated use of violence against persons or
property for the purposes of achieving a political objective, or pre-mediated
use of tactics that can be reasonably assessed as likely to result in violence;
or
(b) it suspects there is a link between the demonstration or other protest
activity and conduct coming otherwise within the definition of security.
16.4 An exception to the above is demonstrations or other protest activity
against internationally protected persons or other persons specified by the
Attorney-General under sub-paragraph (d) of the definition of PMV.
16.5 Minor acts of violence, such as jostling or defacing or damaging
property, are properly matters for investigation by a police force, as are
incidental acts of violence or property damage which occur in the course of a
demonstration. Where, however, such acts are or are intended to be part of a
pattern, and where there is reason to believe that the acts are intended to
influence the policy or acts of a government, ASIO may investigate to
determine whether there is a potential for the violence to escalate or become
more strongly directed at a person or group associated with the policy or acts
at issue.
17 Assessment of PMV
17.1 ASIO's threat assessment function is an integral part of national
arrangements for the protection of high office holders, internationally
protected persons, sites of national significance and critical infrastructure.
ASIO may prepare threat assessments in relation to any demonstration or
protest activity on the basis of information it already has or which is passed to
it by other agencies, for the purpose of advising authorities responsible for
law enforcement and the protection of designated persons.
17.2 ASIO is not required to provide an assessment for every event, place,
person or instance, that is actually or potentially at threat from PMV. The
Director-General shall consider the potential seriousness of any matter or
information, the Organisation's priorities, and the availability of appropriate
resources. EXTRACTS FROM MUNICIPAL LEGISLATION ESTABLISHING INTELLIGENCE ORGANISATIONS
The following table sets out the provisions establishing intelligence organisations under the municipal laws of the following States: Australia, the Kingdom of
Belgium, the Federative Republic of Brazil, the People’s Republic of China, the Kingdom of Denmark, the French Republic, the Federal Republic of
Germany, the Republic of India, the Republic of Indonesia, the Italian Republic, the United Mexican States, the Kingdom of Morocco, New Zealand, the
Russian Federation, the Slovak Republic, the Swiss Confederation, the Democratic Republic of Timor-Leste, the Republic of Uganda, the United Kingdom
of Great Britain and Northern Ireland, and the United States of America.
The following extracts have in some cases been translated from the original language in which the law was promulgated. In all such cases, a citation to the
official version of the law (in the original language) is provided by way of footnote.
State Relevant Legislative Provisions
1. Australia Australian Security Intelligence Organisation Act 1979 1
Section 6: The Australian Security Intelligence Organisation, being the Organisation that was continued in existence by the
Acts repealed by this Act, is continued in existence.
Intelligence Services Act 2001 2
Section 16: The organisation known as the Australian Secret Intelligence Service is continued in existence in accordance
with this Act.
3
2. Kingdom of Belgium Organic Law on Intelligence and Security, 30 November 1998
Article 2[§ 1] This Act applies to State Security, Civil Service Intelligence and Security Service and the General Intelligence
and Security Service, Military Intelligence Service and Security, which are the two intelligence and security services of the
Kingdom. In the exercise of their duties, these services ensure compliance with and contribute to the protection of individual
rights and freedoms, as well as the democratic development of society.
Article 7: The State Security’s responsibilities are:
1. to research, analyze and process the intelligence relating to any activity that threatens or could threaten the internal
security of the state and the sustainability of democratic and constitutional order, the external security of the State and its
1Available at: http://www.comlaw.gov.au/Details/C2013C00437.
2Available at: http://www.comlaw.gov.au/Details/C2013C00283.
3
Available at: http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&….
Page 1 of 21 State Relevant Legislative Provisions
foreign relations, the scientific or economic potential defined by the Ministerial Committee, or any other fundamental
national interest defined by the King on the advice of the Ministerial Committee;
2. perform security investigations entrusted to it in accordance with directives of the Ministerial Committee;
3. to perform the tasks entrusted to it by the Minister of the Interior to protect people;
4. to perform all other tasks entrusted to it by or under the law.
Article 11
§1. The General Intelligence and Security Service’s responsibilities are:
1. to research, analyze and process the intelligence relating to any activity that threatens or could threaten the integrity of the
national territory, plans for military defense, scientific and economic potential in relation to the actors, both natural persons
and legal persons, who are active in the economic and industrial sectors related to defense and appear on a list approved by
the Ministerial Committee of Intelligence and Security, as directed by the Minister of Justice and Minister of Defence the
fulfillment of armed forces missions or the security of Belgian nationals abroad or any other fundamental national interest
defined by the King on the advice of the Ministerial Committee, and to immediately inform the competent ministers as well
as advise the Government, if requested by the latter, on the shaping of its external defense policy;
2. to ensure to maintain the military security of the staff of the Minister of National Defence, and of military installations,
weapons, ammunition, equipment, plans, writings, documents, information and communications systems and other military
assets and with regard to cyber-attacks on military information and communication systems or those managed by the
Minister of National Defence, to neutralize the attack and identify the perpetrators, without prejudice to react immediately
with its own cyber-attack in compliance with the law of armed conflict;
3. to protect secrecy which, by virtue of Belgium’s international commitments or in order to ensure the integrity of the
national territory and the tasks of the Armed Forces, relates to military installations, weapons, ammunition, equipment,
plans, papers, documents or other military assets, military intelligence and communications, as well as military information
and communication systems or those managed by the Minister of National Defence;
4. to perform security investigations entrusted to it in accordance with directives of the Ministerial Committee…
3. Federative Republic of Act that establishes the Brazilian System of Intelligence and creates the Brazilian Agency of Intelligence – ABIN,
Brazil Law No. 9.883 of 7 December 1999) 4
Article 3: Establishment of the Brazilian Intelligence Agency - ABIN, an agency of the Presidency of the Republic that, as a
4Available at: http://www.planalto.gov.br/ccivil_03/Leis/L9883.htm.
Page 2 of 21 State Relevant Legislative Provisions
central agency of the Brazilian Intelligence System, has the responsibility for planning, executing, coordinating, overseeing
and controlling the intelligence activities of the country, respecting the policies and directives referred to in this law
(Amendments were made to the Article by Provisional Measure no 2.216-37 of 2001)
Sole paragraph. Within the scope of [ABIN’s] role and its use of secret techniques and means, intelligence activities will be
undertaken with strict observance of individual rights and guarantees, and with fidelity to the institutions and the ethical
principles that govern the interests and security of the State.
Article 4: ABIN’s responsibilities, beyond those which are prescribed in the previous article, are:
I - To plan and execute actions, including secret ones, related to the gathering and analysis of data for the production of
knowledge destined for the provision of advice to the President of the Republic;
II - To plan and execute the protection of sensitive knowledge, related to the interests and the security of the State and of
society;
III - To assess threats, internal and external, to the constitutional order;
IV - To promote the development of human resources and the doctrine of intelligence and to carry out studies and research
for the practice and improvement of intelligence activities.
Sole paragraph: On terms and conditions to be approved through presidential act, and with the aim of integration, the
component agencies of the Brazilian Intelligence System shall provide to ABIN data and specific knowledge related to the
defence of institutions and of national interests.
5
4. People’s Republic of Criminal Procedure Law of the People’s Republic of China
China Article 4: State security organs shall, in accordance with law, handle cases of crimes that endanger State security,
performing the same functions and powers as the public security organs.
5. Kingdom of Denmark The functions and mandate of the Danish Security and Intelligence Service (Politiets Efterretningstjeneste) were set out in an
instruction issued by the Ministry of Justice on 24 January 1952. The Service does not appear to have a statutory basis. 6
The Danish Defence Intelligence Service (Forsvarets Efterretningstjeneste) does not appear to have been established
pursuant to legislation. According to its official website, it appears to have been separated from the general military
5
6Available at: http://www.gov.cn/flfg/2012-03/17/content_2094354.htm.
Available at: http://jm.schultzboghandel.dk/upload/microsites/jm/ebooks/pet/pet_bind1….
Page 3 of 21 State Relevant Legislative Provisions
intelligence/defence forces on 1 October 1967 when the Intelligence Section of the General Staff of the Military was, by
decree of the Ministry of Defence, made an independent agency reporting directly to the Ministry under the name Forsvarets
7
Efterretningstjeneste.
6. French Republic Decree 2008-609 of 27 June 2008 relating to the role and organisation of the Central Directorate of Homeland
Intelligence 8
Article 1
The Central Directorate of Homeland Intelligence has jurisdiction to fight, on the territory of the Republic, against all
activities susceptible of constituting an infringement on the fundamental interests of the nation.
In this regard:
a) It is responsible for having advance knowledge of activities inspired, committed or supported by foreign powers or
organisations that threaten the security of the country, and for contributing to their suppression;
b) It participates in the prevention and suppression of terrorist acts or acts aimed at infringing the authority of the State,
national defence secrets or the economy of the country;
c) It contributes to the monitoring of electronic and radio-electric communications that may infringe the security of the State
and fight, in this area, against crime linked to information technology and communications;
d) It also participates in surveillance of individuals, groups, organisations and the analysis of social phenomena susceptible,
by their radical nature, their inspiration or their modes of action, to infringe national security.
9
Defence Code,
Article D3126-1: The Directorate-General for External Security is under the authority of a general manager reporting
directly to the defence minister and appointed by decree of the Council of Ministers
Article D3126-2: The Directorate-General for External Security is responsible in close collaboration with other relevant
organizations, to find and use information relevant to the safety of France, as well as to detect and prevent on national
territory, espionage activities against French interests and prevent their consequences.
7See: http://fe-ddis.dk/om-os/Historie/Pages/Historie.aspx.
8Available at: http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=4013BE9633CDA29…
rticle=&dateTexte=20140109
9Available at: http://www.legifrance.gouv.fr/affichCode.do;jsessionid=29995C27D35448C5…
0911&cidTexte=LEGITEXT000006071307&dateTexte=20140109.
Page 4 of 21 State Relevant Legislative Provisions
7. Federal Republic of Act Regulating the Cooperation between the Federation and the Federal States in Matters Relating to the Protection
Germany of the Constitution and on the Federal Office for the Protection of the Constitution (Bundesverfassungsschutzgesetz,
10
BVerfSchG)
Section 2: The offices for the protection of the constitution
1. For the cooperation of the Federation with the Federal States, the Federation maintains the Federal office for the
protection of the constitution as a higher Federal authority (Bundesoberbehoerde). It is subordinated to the Federal Minister
of the Interior. The Federal office cannot be incorporated into an office of police.
2. For the cooperation of the Federal States with the Federation and of the Federal States among themselves, each Federal
State maintains an office for the handling of matters of the protection of the constitution.
Section 3: Functions of the offices for the protection of the constitution
1. The Federal office and the offices of the Federal States for the protection of the constitution shall collect and evaluate
information, namely substantive and personal information, messages and documents, concerning
1. Attempts, that are directed against the free democratic basic order, the existence or the security of the Federation
or of a Federal state or that aim at an unlawful disturbance of the administration of the constitutional institutions
of the Federation or the Federal States or of one of their members
2. Acts committed, within in the territorial scope of this act, for a foreign power that endanger security or that are
intelligence services
3. Attempts, within the territorial scope of this act, by using violence or preparing to do so, to endanger the
international matters of the Federal Republic of Germany
4. Actions, within the territorial scope of this act, that are directed against the idea of international understanding,
especially against the peaceful relations between nations (Art. 26(1) German basic law).
2. The offices for the protection of the constitution of the Federation and the Federal states contribute to
1. the security check of persons who, in the public interest, are given or have access to or can get access to facts,
objects or information that need to be kept secret.
2. the security check of persons who work in security-sensitive positions for institutions that are important for life
or defence matters or who will work there in the future.
3. technical security measures for the protection of facts, objects or information that need to be kept secret in the
10Available at: http://www.gesetze-im-internet.de/bverfschg/index.html.
Page 5 of 21 State Relevant Legislative Provisions
public interest from being discovered by unauthorised persons.
4. the security check of persons in other legally determined cases.
The powers of the Federal office for the protection of the constitution in the cases of Nr. 1, 2 and 4 are governed by
the security check act (Sicherheitsüberpruefungsgesetz, BGBl. I S. 867).
3. The offices for the protection of the constitution are bound to the general rule of law (Art. 20 German basic law).
8. Republic of India The intelligence agencies in India (the Intelligence Bureau and the Research and Analysis Wing) operate without a specific
11
legislative basis.
9. Republic of Indonesia Republic of Indonesia Law No. 17 of 2011 12
Article 1: Within this Act, the following definitions apply:
1. Intelligence is knowledge, organisations and activities related to policy formulation, national planning and decision-
making based on the analysis of information and facts gathered through working methods for detection and early warning
for the purpose of preventing, deterring and responding to any threat to national security.
2. The State Intelligence Agency is the administrator of Intelligence, which is an integral part of the state security system,
and which has the authority to carry out the functions and activities of the State Intelligence.
3. State Intelligence Personnel are citizens of Indonesia, who have special Intelligence powers and dedicate themselves to
the service of State Intelligence…
Part One – Role
Article 4: The role of State Intelligence is to conduct early detection and warning efforts, tasks, and activities in order to
prevent and deter any threat that may arise and threaten the safety of the nation and national interests.
Part Two – Purpose
Article 5 - The purpose of State Intelligence is to detect, identify, assess, analyse, interpret, and present intelligence in order
to anticipate and give early warning of all possible forms and kinds of threats, both potential and real, to the safety and
existence of the nation and the state, as well as risks to national interests and security.
Part Four – Scope
11
12See: http://mha.nic.in/attached.
Available at: http://www.bin.go.id/asset/upload/UU_2011_17.pdf.
Page 6 of 21 State Relevant Legislative Provisions
Article 7 - The scope of State Intelligence includes:
a. domestic and foreign intelligence;
b. defence and/or military intelligence;
c. police intelligence;
d. law enforcement intelligence, and
e. ministerial/non-ministerial government intelligence agencies.
Article 9 – National Intelligence Agencies
The administration of State intelligence consists of:
a. State Intelligence Agency;
b. Indonesian Armed Forces (TNI) Intelligence;
c. Indonesian National Police (POLRI) Intelligence;
d. Indonesian Attorney-General’s Office Intelligence function;
e. Intelligence function of ministerial/non-ministerial government agencies.
Article 10
(1) The State Intelligence Agency as referred to in 9a is a state body that undertakes domestic and foreign Intelligence
functions.
(2) The Intelligence function as referred to in paragraph (1) shall be carried out in accordance with the provisions of
legislation.
Paragraph 2 - Indonesian National Armed Forces Intelligence - Article 11
(1) Indonesian Armed Forces Intelligence as referred to in 9b undertakes defence and/or military Intelligence functions.
(2) The function of Intelligence as referred to in paragraph (1) shall be carried out in accordance with the provisions of
legislation.
10. Italian Republic Law No. 124, Intelligence System for the Security of the Republic and new provisions governing secrecy, of 8 March
13
2007
Section 6: The External Security and Intelligence Agency
13Available at: http://www.sicurezzanazionale.gov.it/sisr.nsf/english/law-no-124-2007.h….
Page 7 of 21State Relevant Legislative Provisions
1. The External Security and Intelligence Agency (AISE) is hereby established. Its functions shall be to gather and process
all intelligence falling within its areas of competence that serves to defend the independence, integrity and security of the
Republic (including in implementation of international agreements) against threats originating abroad.
2. The AISE shall also be responsible for counter-proliferation activities concerning strategic materials as well as the
security intelligence activities that are performed outside the national territory in order to protect Italy’s political, military,
economic, scientific and industrial interests.
3. The AISE shall also be responsible for identifying and countering outside national territory those espionage activities that
are directed against Italy and those activities that are aimed at damaging national interests.
4. The AISE may carry out operations within the national territory only in collaboration with the AISI, where such
operations are closely linked to activities that the AISE itself carries out abroad. To such end, the Director General of the
DIS shall make provision to ensure the necessary forms of co-ordination and informational linkage, partly so as to avoid
functional and territorial overlapping.
5. The AISE shall be directly answerable to the President of the Council of Ministers.
6. The AISE shall keep the Minister of Defence, the Minister of Foreign Affairs and the Minister of the Interior promptly
and constantly informed regarding the profiles of their respective competences.
7. The President of the Council of Ministers shall, by way of decree after prior consultation with the CISR, appoint and
dismiss the Director of the AISE, who shall be a top-echelon official or equivalent. The office of Director of the AISE shall
be for a maximum term of four years and may be renewed only once.
8. The Director of the AISE shall report constantly on his agency’s activities to the President of the Council of Ministers (or
to the Delegated Authority, where appointed) through the Director General of the DIS. He shall report directly to the
President of the Council of Ministers in cases of urgency or when other particular circumstances so require, informing the
Director General of the DIS of such fact without delay. He shall submit an annual report on the Agency’s operation and
organization to the CISR, through the Director General of the DIS.
9. The President of the Council of Ministers shall appoint and dismiss one or more Deputy Directors, after consulting the
Director of the AISE. The Director of the AISE shall make the other appointments within the Agency.
10. The organization and operation of the AISE shall be governed by a specific Regulation
Section 7: The Internal Security and Intelligence Agency
1. The Internal Security and Intelligence Agency (AISI) is hereby established. Its functions shall be to gather and process all
Page 8 of 21 State Relevant Legislative Provisions
information falling within the areas of its competence that serves to defend the internal security of the Republic and its
underlying democratic institutions as established by the Constitution (including in implementation of international
agreements) from every threat, subversive activity and form of criminal or terrorist attack.
2. The AISI shall be responsible for the security intelligence activities that are carried out within the national territory in
order to protect Italy’s political, military, economic, scientific and industrial interests.
3. The AISI shall also be responsible for identifying and countering within the national territory those espionage activities
that are directed against Italy and those activities that are aimed at damaging national interests.
4. The AISI may carry out operations abroad only in collaboration with the AISE, where such operations are closely linked
to activities that the AISI is itself conducting within the national territory. To such end, the Director General of the DIS shall
make provision to ensure the necessary forms of co-ordination and informational linkage, including for the purposes of
avoiding functional and territorial overlapping.
5. The AISI shall be directly answerable to the President of the Council of Ministers.
6. The AISI shall keep the Minister of Defence, the Minister of Foreign Affairs and the Minister of the Interior promptly and
constantly informed regarding the profiles of their respective competence.
7. The President of the Council of Ministers shall, after prior consultation with the CISR and by way of decree, appoint and
dismiss the Director of the AISI, who shall be a top-echelon official or equivalent. The office of Director of the AISI shall be
for a maximum term of four years and may be renewed only once.
8. The Director of the AISI shall report constantly on his agency’s activities to the President of the Council of Ministers (or
to the Delegated Authority, where appointed) through the Director General of the DIS. He shall report directly to the
President of the Council of Ministers in cases of urgency or when other particular circumstances so require, informing the
Director General of the DIS of such fact without delay. He shall submit an annual report on the Agency’s organization and
operation to the CISR, through the Director General of DIS.
9. The President of the Council of Ministers shall appoint and dismiss one or more Deputy Directors, after consulting the
Director of the AISI. The Director of the AISI shall make the other appointments within the Agency.
10. The organization and operation of the AISI shall be governed by a specific Regulation
14
11. United Mexican States National Security Act, 31 January 2005
Article 18: The National Security and Research Centre is an administrative body, independent from the Ministry of the
Interior, with technical, operational and financial autonomy ascribed directly from the head of the aforementioned Secretary.
14Available at: http://www.diputados.gob.mx/LeyesBiblio/pdf/LSegNac.pdf.
Page 9 of 21 State Relevant Legislative Provisions
Article 19: Functions of the Centre
I. Undertake intelligence work as part of the national security system that contributes to the preservation of the integrity,
stability and permanency of the State of Mexico, and to give support to governance and strengthening of the rule of law;
II. Process the information generated through operations, to determine its relevance, value, meaning or specific interpretation
and to formulate conclusions derived from corresponding evaluations, with the aim of safeguarding the security of the
nation;
III. Prepare political, economic, social and other studies that relate to its functions, as well as those that are necessary to raise
awareness of the risks and threats to national security;
IV. Devise general guidelines of the strategic plan and the National Agenda of Risks;
V. Propose methods of prevention, deterrence, containment and neutralising risks and threats that seek to undermine the
territory, sovereignty, national institutions, democratic governance or rule of law;
VI. Establish inter-institutional cooperation with the various authorities of the federal public administration, federal
authorities, federal entities and municipalities or districts, in relation to their respective competencies with a view to
contribute to the preservation of integrity, stability and permanency of the State of Mexico;
VII. Propose to the Council the establishment of international cooperation systems, with the aim of identifying possible risks
and threats to sovereignty and national security;
VIII. Acquire, administer and develop relevant technology for the investigation and safe dispersion of Federal Government
national security related communication, as well as for the protection of this communication and the information it contains;
IX. Operate relevant communication technology, in achieving the functions it has been entrusted or in support of
government agencies as requested by the Council;
X. Provide technical assistance to any government agency represented in the Council, in accordance with relevant
agreements, and
XI. Other powers conferred by other applicable laws that the Council or Executive Secretary deem is in the ambit of its
competency.
15
12. Kingdom of Morocco Dahir Sharif Issued in Rabat in 8 Zil Hejja 1393 (2 January 1974), Signed by Prime Minister Ahmad Ossman
Article 1: The Directorate-General for the Surveillance of the National Territory, renewed by Dahir Sharif number 1.73.10
15Available at: http://adala.justice.gov.ma/production/html/Ar/liens/..%5C65850.htm.
Page 10 of 21 State Relevant Legislative Provisions
mentioned above and dated 7 Zil Hejja 1392 (12 January 1973) is hereby changed into a Directorate for the Surveillance of
the National Territory and is attached to the Directorate-General of National Security.
Article 2: Assigned to the Directorate for the Surveillance of the National Territory is the task of ensuring the maintenance
and protection of the security of the state and its organisations.
Article 3: The Directorate for the Surveillance of the National Territory is placed under the authority of a director appointed
by a Dahir Sharif. The director is responsible for organising the affairs of the employees of the Directorate for the
Surveillance of the National Territory and he is the delegate in payments of expenditures from appropriations assigned to
this directorate. He is also vested with establishing the internal administrative orders for the central departments and local
teams and the regulations of operations and specialisations.
Article 4: This dahir sharif is published in the Official Gazette and replaces Dahir Sharif number 1.73.10 mentioned above
and dated 7 Zil Hejja 1392 (12 January 1973).
13. New Zealand New Zealand Security Intelligence Service Act 1996 16
Section 3: New Zealand Security Intelligence Service
(1) Subject to the provisions of this Act, there shall continue to be a New Zealand Security Intelligence Service.
(2) The New Zealand Security Intelligence Service to which this Act applies is hereby declared to be the same Service
as the Service known as the New Zealand Security Service which was established on 28 November 1956.
Section 4: Functions of New Zealand Security Intelligence Service
(1) Subject to the control of the Minister, the functions of the New Zealand Security Intelligence Service shall be—
(a) to obtain, correlate, and evaluate intelligence relevant to security, and to communicate any such intelligence
to such persons, and in such manner, as the Director considers to be in the interests of security:
(b) to advise Ministers of the Crown, where the Director is satisfied that it is necessary or desirable to do so, in
respect of matters relevant to security, so far as those matters relate to departments or branches of the State
services of which they are in charge:
(ba) to advise any of the following persons on protective measures that are directly or indirectly relevant to
16Available at: http://www.legislation.govt.nz/act/public/1969/0024/latest/whole.html.
Page 11 of 21 State Relevant Legislative Provisions
security:
(i) Ministers of the Crown or government departments:
(ii) public authorities:
(iii) any person who, in the opinion of the Director, should receive the advice:
(bb) to conduct inquiries into whether particular individuals should be granted security clearances, and to make
appropriate recommendations based on those inquiries:
(bc) to make recommendations in respect of matters to be decided under the Citizenship Act 1977 or the
Immigration Act 2009, to the extent that those matters are relevant to security:
(c) to co-operate as far as practicable and necessary with such State services and other public authorities in
New Zealand and abroad as are capable of assisting the Security Intelligence Service in the performance of its
functions:
(d) to inform the Officials Committee for Domestic and External Security Coordination of any new area of
potential relevance to security in respect of which the Director has considered it necessary to institute
surveillance.
(2) It is not a function of the Security Intelligence Service to enforce measures for security.
14. Russian Federation Federal Law No. 40-FZ on Organs of the Federal Security Service in the Russian Federation (adopted on 22
17
February 1995)
Article 1: The Federal Security Service and its mission (as per Federal Law No. 86-FZ of 30.06.2003)
The Federal Security Service is the unified central system of federal security service organs resolving tasks of safeguarding
the security of the Russian Federation within the limits of its competence. (as per Federal Law No. 15-FZ of 07.03.2005)
The activity of federal security service organs shall be directed by the President of the Russian
Federation.
The Federal Security Service shall be administered by the head of the federal executive authority for security through the
aforementioned federal executive authority and its territorial organs. The head of the federal executive authority for security
shall be appointed and dismissed by the President of the Russian Federation.
Article 2: Federal security service organs (as per Federal Law No. 86-FZ of 30.06.2003)
The organs of the Federal Security Service shall include:
17Available at: http://www.fsb.ru/fsb/npd/[email protected].
Page 12 of 21State Relevant Legislative Provisions
- the federal executive authority for security;
- the directorates/departments of the federal executive authority for security covering the individual regions and
constituent entities of the Russian Federation (territorial security organs);
- the directorates/departments of the federal executive authority for security in the Armed Forces of the Russian
Federation and other troop and military units and also their organs of administration (military security organs);
- the directorates/departments/detachments of the federal executive authority for security for border service (border
organs); (as per Federal Law No. 15-FZ of 07.03.2005)
- other directorates/departments of the federal executive authority for security exercising individual powers of that
authority or carrying out federal security service authority activity (other security organs); (as per Federal Law No.
15-FZ of 07.03.2005)
- aviation sub-divisions, special training centres, special-purpose sub-divisions, enterprises, education establishments,
scientific research, expert, forensic, military medicine and military engineering sub-divisions and other
establishments and sub-divisions assigned to carry out federal security service activity.
- Territorial security organs, military security organs, border organs and other security organs are territorial organs of
the federal executive authority for security and directly subordinate to it. The federal executive authority for
security, territorial security organs, military security organs and border organs may contain sub-divisions directly
implementing main areas of activity of federal security service organs and administrative and support functions.
- The creation of federal security service organs not provided for in the present federal law shall not be permitted. (as
per Federal Law No. 15-FZ of 07.03.2005)
Within federal security service organs the creation of structural sub-divisions of political parties and activity of political
parties or public movements pursuing political aims and also the conducting of political agitation and pre-election
campaigning shall be prohibited. (as per Federal Law No. 15-FZ of 07.03.2005)
Article 3: Federal executive authority for security (as per Federal Law No. 86-FZ of 30.06.2003)
The federal executive authority for security shall create its own territorial organs, organise the activity of those organs, issue
regulatory acts within the limits of its competence and directly implement the main areas of activity of federal security
service organs. (as per Federal Law No. 15-FZ of 07.03.2005)
A Russian Federation Academy of Cryptography shall operate under the auspices of the federal executive authority for
Page 13 of 21 State Relevant Legislative Provisions
security. The statute of the Russian Federation Academy of Cryptography shall be ratified by the President of the Russian
Federation.
Article 4: Legal basis for the activity of the Federal Security Service (as per Federal Law No. 86-FZ of 30.06.2003)
The legal basis for the activity of the Federal Security Service shall comprise the Constitution of the Russian Federation, the
present Federal law, other federal laws and other legal and regulatory acts of the Russian Federation. The activity of the
Federal Security Service shall also be carried out in accordance with the international treaties of the Russian Federation.
Federal Law No. 5-FZ on Foreign Intelligence, 10 January 1996 18
Chapter 2, Article 11
Intelligence activities within the authority of each service comprise: 1) The Foreign Intelligence Service of the
Russian Federation – in political, economic, military-strategic, scientific-technical and environmental spheres, in
sphere of encrypted, classified and other types of special communication, using radio-electronic means and methods
outside the Russian Federation, and also in the sphere of maintaining the security of the institutions of the Russian
Federation, outside the territory of the Russian Federation, and those Russian citizens outside the territory of the
Russian Federation having in their professional capacity access to information comprising state secrets.
15. Slovak Republic Act of the National Council of the Slovak Republic dated 21 January 1993 on the Slovak Information Service 19
§ 1 Preamble
(1) The Slovak Information Service (hereafter “The Information Service”) is hereby established.
(2) The Information Service is a state body of the Slovak Republic which shall fulfil tasks in the protection of the
constitutional establishment, public order, security of the State and interests of the State concerning the foreign policy and
economy to the extent circumscribed by this act. It shall conduct its activities in accordance with the Constitution,
Constitutional Laws, regular laws, and other universally binding legal regulations.
(3) In the fulfilment of its duties the Information Service is authorized to cooperate with bodies of other countries having
similar competencies and scope of action, as well as international organizations.
(4) The rights and freedoms of citizens may be limited by the measures of the Information Service only to the extent and
18
19Available at: http://svr.gov.ru/svr_today/doc02.htm.
Available at: http://www.sis.gov.sk/files/zakony/act_46_1993.pdf.
Page 14 of 21State Relevant Legislative Provisions
manner established by this act.
(5) The Information Service is a non-profit organization financed from the State Budget.
(6) In the fulfilment of its duties the Information Service is authorized to use technical means and means of transport usually
undercover.
§ 2
(1) Within the scope of its functions the Information Service shall collect, accumulate and analyse information on
a) activities threatening the constitutional establishment, territorial integrity and sovereignty of the Slovak Republic,
b) activities directed against the security of the Slovak Republic,
c) activities of foreign intelligence services,
d) organized criminal activity and terrorism,
e) matters potentially capable of seriously threatening and/or inflicting damage upon the economic interests of the
Slovak Republic,
f) threat and/or disclosure of information and matters protected according to special regulations1 or international
agreements or international protocols.
(2) The Information Service shall collect, accumulate and analyse information on activities arising abroad which are directed
against the constitutional establishment and security of the Slovak Republic and information necessary for the
implementation of its interests concerning the foreign policy.
(3) Should it be necessary for prevention of activities and threats according to Paragraphs 1 and 2 and implementation of the
interests of the Slovak Republic concerning the foreign policy, the Information Service carries out adequate security
measures.
(4) Within the scope of its functions the Information Service shall fulfil other duties in accordance with specific laws and
tasks resulting from international agreements and accords to which the Slovak Republic is bound and tasks from agreements
on cooperation with bodies and international organizations according to Article 1 Paragraph 3.
(5) The Information Service shall provide the National Council of the Slovak Republic, the president of the Slovak Republic
and the Government of the Slovak Republic and its members with information significant for their functioning and decision-
making.
Page 15 of 21 State Relevant Legislative Provisions
(6) The Information Service provides information on criminal activities to units of the Police Corps and the Office of
prosecution, especially on organized criminal activities. Essential information is also provided to other state bodies, if it is
required to put a stop to unconstitutional or illegal activity.
(7) Collected information shall be provided only in fulfilment of the purpose stated in Paragraphs 4 to 6 and Article 1
Paragraph 3. Information according to Paragraph 6 shall be provided only under the condition that by its provision there will
be no threat to fulfilment of a concrete task of the Information Service according to this Act or disclosure of sources and
means of the Information Service or disclosure of identity of its members or persons acting to the benefit of the Information
Service; this does not apply should the consequence of not providing the information be obviously more significant than the
consequence resulting from its provision.
20
16. Swiss Confederation Federal law on civil intelligence, 3 October 2008
Article 1: Civil intelligence missions
The Federal Council designates the federal agencies responsible for civil intelligence missions. These services:
a. seek and evaluate important overseas political and security intelligence for departments and the Federal Council;
b. conduct intelligence missions, as set out in art. 2, 5-13 and 14-17 of the Federal Act of 21 March 1997
establishing measures aimed at maintaining internal security.
Article 2: Organisation of the Civil Intelligence
The Federal Council regulates the organisation of civil intelligence. It places the services that carry out civil intelligence
missions under the same department.
Article 3: Collaboration and information sharing between the intelligence services
1. Civil intelligence services carry out joint and comprehensive threat analyses, and provide each other with all intelligence
concerning their respective areas defined by law.
2. They provide the military intelligence service with all intelligence of a nature that would interest the military.
3. The military intelligence service is obliged to provide intelligence to the civil intelligence services, and immediately
communicate intelligence when it detects specific threats to internal or external security.
4. The Federal Council regulates, in accordance with legal provisions:
20Available at: http://www.admin.ch/opc/fr/classified-compilation/20080697/index.html.
Page 16 of 21 State Relevant Legislative Provisions
a. collaboration and information exchange between civil intelligence services, in particular concerning joint and
comprehensive threat analyses;
b. collaboration and information exchange between civil intelligence services and the military intelligence service;
c. collaboration between civil intelligence services and foreign intelligence services; The Federal Council sets out in
particular principles governing the use of information received from foreign services for civil intelligence missions.
Federal law instituting measures aimed at maintaining the internal security, 21 March 1997 21
Article 2: Mandates
1. The Confederation will take preventive measures within the meaning of this Act for the early detection and combat of
dangers linked terrorism, prohibited intelligence services, violent extremism and violence during sporting events.
Intelligence obtained should allow competent authorities of the Confederation and the Cantons to intervene in time
according to the law.
2. Preventive measures also include preparatory acts relating to illegal trade in arms and radioactive substances and the
illegal transfer of technology.
3. The Confederation supports competent police and law enforcement authorities by providing them with intelligence on
organized crime, particularly where such intelligence is received through collaboration with foreign security authorities .
4. Preventive measures means:
a. Periodic evaluations of threat statuses by political authorities and of the mandates given to the agencies entrusted
with internal security (security agencies);
b. Processing of information relating to internal and external security;
c. Security controls relating to persons;
d. Measures aimed at protecting federal authorities, persons enjoying special protection under international law, as
well as permanent diplomatic missions, consular posts and international organisations;
e. Seizure, isolation and confiscation of propaganda material inciting violence;
f. the measures provided for in article 24a and 24c, which are aimed at preventing violence at sporting events.
Article 4: Principle
1. Each canton is primarily responsible for internal security on its territory.
21Available at: http://www.admin.ch/opc/fr/classified-compilation/19970117/index.html.
Page 17 of 21 State Relevant Legislative Provisions
2. Insofar as under the Constitution and the law, the Confederation is responsible for internal security, the Cantons assist in
terms of administration and enforcement.
Article 5: Tasks performed by the Confederation
1. To assume leadership on internal security, the Federal Council :
a periodically evaluates threats, establishes rights and obligations on intelligence and adapts mandates;
b. Establishes an action plan of measures aimed at protecting federal authorities, persons enjoying protection under
international public law, as well as beneficiaries of privileges, immunities and facilities covered in Article 2 of the
Act of 22 June 2007 on the host State.
c. Orders specific measures in case of particular threats.
2. It regulates the distribution of tasks between the Intelligence Service of the Confederation and the Federal Office of Police
as well as between these two units and agencies of the military security during general or active service. SRC and Fedpol
perform federal duties under this Act, insofar as they are not assigned to another body.
17. Democratic Republic of Decree Law No. 03/2009 (National Intelligence Service) 22
Timor-Leste Article 1 - Establishment: The Organic of the National Intelligence Service, hereinafter referred to as SNI, is hereby
established.
Article 2 – Nature:
1. The National Intelligence Service (SNI) is a personalised service of the State falling under the direct responsibility of the
Prime Minister and enjoys administrative and financial autonomy.
2. SNI is exclusively at the service of the State and exercises its functions in compliance with the Constitution of the
Democratic Republic of Timor-Leste and the laws, and in accordance with the provisions of the present law.
Article 3 – Functions: SNI is the sole organism entrusted with the responsibility to produce intelligence that contributes
towards the safeguarding of national independence, national interests and external security, including the guarantee of
internal security in preventing sabotage, terrorism, espionage, organised crime and actions that, by their nature, may alter or
destroy the constitutionally established State based on the rule of law.
22
Available at: http://www.jornal.gov.tl/lawsTL/RDTL-Law/index-e.htm.
Page 18 of 21 State Relevant Legislative Provisions
Article 13 - Central Services:
1. The following shall be central services of SNI:
a) The Department of Internal Intelligence;
b) The Department of External Intelligence;
c) The Administrative Service.
2. The internal organisation of each service or department shall be determined by instruction of the Prime Minister following
a proposal by the Director-General.
18. Republic of Uganda Security Organisations Act 1987 23
2. Establishment of security organisations.
(1) There are established security organisations to be known as the Internal Security Organisation and the External Security
Organisation.
(2) The organisations shall be Government departments.
3. Functions of the organisations.
The functions of the organisations shall be—
(a) to collect, receive and process internal and external intelligence data on the security of Uganda;
(b) to advise and recommend to the President or any other authority as the President may direct on what action should be
taken in connection with that intelligence data.
24
19. United Kingdom of Security Services Act 1989
Great Britain and Section 1:
Northern Ireland (1) There shall continue to be a Security Service…under the authority of the Secretary of State.
(2) The function of the Service shall be the protection of national security…
25
Intelligence Services Act 1994
Section 1: (l) There shall continue to be a Secret Intelligence Service (in this The Secret Act referred to as "the Intelligence
Service") under the authority of the Intelligence Secretary of State; and, subject to subsection (2) below, its functions shall
be-
23
24Available at: http://www.opm.go.ug/resource-center/legislation.html.
25Available at: http://www.legislation.gov.uk/ukpga/1989/5/contents.
Available at: http://www.legislation.gov.uk/ukpga/1994/13/contents.
Page 19 of 21 State Relevant Legislative Provisions
(a) to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and
(b) to perform other tasks relating to the actions or intentions of such persons.
(2) The functions of the Intelligence Service shall be exercisable only—
(a) in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty's
Government in the United Kingdom; or (b) in the interests of the economic well-being of the United
Kingdom; or
(c) in support of the prevention or detection of serious crime.
26
20. United States of 28 USC (Judiciary and Judicial Procedure), Chapter 33 (Federal Bureau of Investigation)
America Section 531: The Federal Bureau of Investigation is in the Department of Justice.
Executive Order 12333 United States Intelligence Activities 27
Part 1.7(g): Intelligence Elements of the Federal Bureau of Investigation. Under the supervision of the Attorney General and
pursuant to such regulations as the Attorney General may establish, the intelligence elements of the Federal Bureau of
Investigation shall:
(1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and
counterintelligence to support national and departmental missions, in accordance with procedural guidelines approved by the
Attorney General, after consultation with the Director;
(2) Conduct counterintelligence activities; and
(3) Conduct foreign intelligence and counterintelligence liaison relationships with intelligence, security, and law
enforcement services of foreign governments or international organizations in accordance with sections 1.3(b)(4) and
1.7(a)(6) of this order.
28
National Security Act of 1947 (P.L. 80-235, 61 Stat 496)
26Available at: http://www.gpo.gov/fdsys/granule/USCODE-2011-title28/USCODE-2011-title2….
27Available at: https://www.cia.gov/about-cia/eo12333.html.
28
Available at: http://www.intelligence.senate.gov/nsaact1947.pdf.
Page 20 of 21State Relevant Legislative Provisions
Section 102(b): Principal Responsibility - Subject to the authority, direction, and control of the President, the Director of
National Intelligence shall—
(1) serve as head of the intelligence community;
(2) act as the principal adviser to the President, to the National Security Council, and the Homeland Security Council for
intelligence matters related to the national security; and
(3) consistent with section 1018 of the National Security Intelligence Reform Act of 2004, oversee and direct the
implementation of the National Intelligence Program.
Page 21 of 21188 CLR 501] OF AUSTRALIA 501
COMMISSIONER OF AUSTRALIAN
FEDERAL POLICE AND ANOTHER . ApPELLANTS;
RESPONDENTS,
AND
PROPEND FINANCE PTY LIMITED AND
OTHERS , . RESPONDENTS.
ApPLICANTS,
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
Privilege - Legal professional - Search warrant - Documents - Original HCOFA
documents not privileged - Copies of original documents made for sole 1996-1997
purpose of obtaining or giving legal advice or for use in legal March 12
proceedings - Denial of privilege - lllegal or improper purpose 1996
How established - Crimes Act 1914 (Cth), s 10.
During the execution of a search warrant issued pursuant to s 10 of theFeb 7
1997
Crimes Act 1914 (Cth), officers of the Australian Federal Police seized
documents from the office of a solicitor. The solicitor claimed legal BrennanCJ,
professional privilege in respect of the documents on behalf of his Dawson.
Toohey.
clients. The documents seized included copiesf documents the originals Gaudron,
of which were not privileged. The police officers opposed the claim to McHugh,
privilege and also contended that privilege did not attach to the copy Gummowand
Kirby JJ
documents because the information sworn in support of the warrants
contained material which pointed to certain original documents having
been brought into existence for, or in the furtherance of, illegal purposes.
Held, by Brennan CJ, Gaudron, McHugh, Gummow and Kirby JJ,
Dawson and Toohey JJ dissenting, (I) that legal professional privilege
attached to a copy document which was provided to a lawyer if the copy
was made solely for the purpose of obtaining legal advice or solely for
use in legal proceedings, even where the original document was not
privileged.
Grant v Downs (1976) 135 CLR 674, applied.
Nickmar Pry Ltd v Preservatrice Skandia Insurance Ltd (1985)
3 NSWLR 44, disapproved.
Buttes Gas & Oil Co v Hammer [No 3J [1981] QB 223 at 244, not
followed.
Baker v Campbell (1983) 153 CLR 52, referred to.
(2) That the claim to privilege was not displaced by an allegation that
the communications the subject of the copy documents were made in
furtheranceof illegal or improper purposes; by Brennan CJ, McHugh and
Gummow JJ on the ground that there was no admissible evidence before
the trial judge to support the allegation; by Gaudron J on the ground that
the opponent to the claim for privilege had failed to raise a prima facie
case of illegality or improper purpose because fairness required that502 HIGH COURT [1996-1997
1996-1997 hearsay evidence of such purpose could not be relied upon without the
party claiming privilege being given an opportunity to test it by cross
examination; and by Kirby J on the ground that hearsay evidence of an
COMMIS illegal or improper purpose was not sufficient to displace the claim to
AUSTRALIAN legal professionalprivilege.
FEDERAL
POLICE Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 516 and
V O'Rourke v Darbishire [1920] AC 581 at 604, applied.
PROPEND Per Brennan CJ. The prima facie rule that copies of non-privileged
FINANCE documents are privileged if the copies are brought into existence solely
PTyLm for the purpose of obtaining or giving legal advice or solely for use in
litigation that is pending, intended or reasonably apprehended is subject
to the qualification that, if an original unprivileged document is not in
existence or its location is not disclosed or is not accessible to the person
seeking to execute the warrant and if no unprivileged copy or other
admissible evidence is made available to prove the contents of the
original, the privilegedcopy loses the privilege.
Decision of the Federal Court of Australia (Full Court): Propend
Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224, varied.
ApPEALfrom the Federal Court of Australia.
A justice of the peace issued search warrants pursuant to s 10 of the
Crimes Act 1914 (Cth) authorising named police officers to search
certain residential and office premises. One warrant authorised the
search of office premises occupied by Mr Michael Dunkel, a solicitor
retained by the other eight respondents in relation to certain taxation
matters. The information upon which the warrants were issued stated
that is was suspected that some or all of the respondents, including
Mr Dunkel, were implicated in offences against the Crimes Act and the
Crimes (Taxation Offences) Act 1980 (Cth). Members of the
Australian Federal Police seized documents from various premises
occupied by the respondents, including an office of Mr Dunkel. The
warrant authorising the search of his premises required the police
officers to proceed in accordance with guidelines agreed between the
Commissioner of the Australian Federal Police and the Law Council of
Australia. The guidelines set down procedures for the execution of
search warrants on the premises of lawyers and were designed to
preserve legal professional privilege and to provide for the return of
seized documents if and when it was established. Mr Dunkel claimed
legal professional privilege on behalf of his clients and, in accordance
with the guidelines, the documents seized from his office were placed
in a sealed envelope pending a decision on the claim.
The solicitor and his clients commenced proceedings in the Federal
Court against the Commissioner of the Australian Federal Police,
Detective Sergeant Taciak, and the justice of the peace who issued the
warrants, seeking orders for review under the Administrative Decisions
(Judicial Review) Act 1977 (Cth) and also under s 39B of the Judiciary188 CLR 501] OF AUSTRALIA 503
Act 1903 (Cth). The application sought the review of various decisions HCOFA
and of the conduct of the police officers involved in the execution of 1996-1997
the warrants. Upon the hearing of the application for review by COMMIS-
Davies J, it emerged that the documents seized from the solicitor SIONER OF
AUSTRALIAN
included copies of documents the originals of which it was conceded FEDERAL
were not privileged. The applicants claimed that legal professional POLICE
V
privilege attached to those copy documents as they were made solely PROPEND
for the purpose of obtaining legal advice or solely for use in legal FINANCE
PrvLTD
proceedings. The police officers opposed the claim to privilege and
also submitted that the information sworn in support of the warrants
contained material which pointed to certain original documents having
been brought into existence for, or used in the furtherance of, the
illegal activities alleged in that information and that, consequently,
copies of those documents were to be treated as infected with that
illegality. Davies J made an order declaring that copies of documents
made for the purpose of obtaining legal advice, the originals of which
were not subject to legal professional privilege, were themselves not
privileged. He held further that the information constituted sufficient
prima facie evidence to overcome the claim of legal professional
privilege and made a declaration accordingly (1). The applicants
appealed to the Full Court of the Federal Court (Beaumont, Hill and
Lindgren 11) which set aside the declaration that, by reason of the
allegations of offences under the Crimes Act, privilege did not attach
to the documents specified in the orders made by Davies 1. The appeal
was allowed in part and a fresh hearing was ordered on the claims of
privilege (2). The police officers then appealed to the High Court by
special leave granted by Brennan CJ, Dawson and Toohey 11. The
solicitor and his clients cross-appealed to argue that the copy of a
document is privileged, even if the original is not, if the copy was
brought into existence for the sole purpose of obtaining legal advice
and, further, that the Full Court should have finally determined the
question of illegality and not ordered a further hearing.
M Rozenes QC (with him P Roberts and 0 P Holdenson), for the
appellants. As a general principle, the making of a copy of a non
privileged document for legal purposes cannot confer privilege. The
purpose for which the document is made is irrelevant as privilege is
determined by the purpose for which the original was brought into
existence. This principle is not applicable where the document is not a
mere copy of the original but a fresh document which, eg, bears
(I) Propend Finance Pty Ltd v Commissioner. Australian Federal Police [No 2J
(1994) 35 ALD 25.
(2) Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FeR 224.504 HIGH COURT [1996-1997
HCOFA notations, markings or is the result of an editing process (3). In this
1996-1997
case, there has been no suggestion that the documents were anything
but precise reproductions of the non-privileged originals. A strong line
COMMIS
SIONEROF of authority denies privilege to copy documents when the original is
AUSTRALIAN not privileged (4). Australian academic opinion supports the denial of
FEDERAL
POLICE privilege to copy documents when the original is not privileged (5).
v What is required to displace legal professional privilege where fraud or
PROPEND criminality is alleged has been stated in different ways. The mere
FINANCE
PTyLTD assertion of fraud wiII not suffice. However, nowhere is there a firm
statement of principle that there has to be admissible evidence. It is
only necessary to demonstrate that the allegation has sufficient
probability of truth to make it right to disallow privilege (6). In a
proceeding involving search warrants, the court is ideally placed to see
what evidence exists because it has available to it, should it seek to
examine it, the information laid before the justice who granted the
warrant. The person seeking to displace the privilege may also be able
to produce other material, whether in the form of an affidavit or of
other documents handed to the court, to which the court may refer in
determining whether privilege is displaced. [He also referred to R v
Cox and Railton (7) and Bullivant v Attorney-General (Viet) (8).]
D H Bloom QC (with him N J Williams), for the respondents. The
test in relation to legal professional privilege in Australian courts is a
sole purpose test (9). The copy documents were all brought into
existence for the sole purpose of obtaining legal advice and thus legal
professional privilege attached to them. Authorities which deny the
existence of legal professional privilege to such copy documents are
based on the pragmatic view that, by denying the privilege, one then
gets accelerated production of the original document (10). Those cases
were decided in the context of a dispute over discovery and paid no
regard to the situation of a search warrant in the extra curial process.
Copying a document may involve no communication, but if the
document is copied for the purpose of being sent or delivered to a
legal advisor, it is all part of the act of obtaining or giving legal
(3) Lyell v Kennedy [No 3J (1884) 27 Ch D I.
(4) Chadwick v Bowman (1886) 16 QBD 561; Shaw v David Syme & Co [1912] VLR
336; Lambert v Home [19141 3 KB 86; Buttes Oil & Gas Co v Hammer [No 3J
[I981] QB 223 at 244; Vardas v South British Insurance Co Ltd [19841 2 NSWLR
652; J N Taylor Holdings Ltd v Bond (1991) 57 SASR 21; Roux v Australian
Broadcasting Commission [I99212 VR 577.
(5) Cross on Evidence, 5th Aust ed (1996), p 710; McNicol, Law of Pri(1992),
pp 94-97.
(6) O'Rourke v Darbishire [I920] AC 581 at 605.
(7) (1884) 14 QBD 153.
(8) [1901] AC 196.
(9) Grant v Downs (1976) 135 CLR 674.
(10) Chadwick v Bowman (1886) 16 QBD 561 at 562; Buttes Gas & Oil Co v Hammer
[No 3J [19811 QB 223 at 244.188 CLR 501] OF AUSTRALIA 505
advice. The principle of legal professional privilege seeks to foster the HCOFA
1996-1997
act of communication with a legal advisor, not to protect the content of
a particular document (11). [He also referred to R v Board of Inland COM'-US
SIONER OF
Revenue; Ex parte Goldberg (12); Dubai Bank Ltd v Galadari (13); AUS1RALiAN
and McCaskill v Mirror Newspapers Ltd (14).] To deny legal
professional privilege to a communication or document which prima FEDERAL
POLICE
facie attracts it, a prima facie case must be made that the V
communication or document was made in preparation for or in PRoPEND
FINANCE
furtherance of the illegal or improper purpose (15). It must be Prv LTD
established, at least prima facie, that particular documents were
brought into existence in furtherance of the illegal or improper BrennanCJ
purpose. The court need not conduct a trial of the issue, but the
prosecution must make a specific allegation of a crime and lead prima
facie evidence that the documents were brought into existence in
furtherance of it. More than hearsay is required. If this Court
determines that hearsay evidence is admissible on the question, the
proceeding should be remitted to the Full Court for determination of
whether there was sufficient evidence to support the appellants' claim.
[He also referred to Clark v United States (16).]
P Roberts, in reply.
Curadv vult
7 February 1997
The following written judgments were delivered:-
BRENNAN CJ. Gaudron J has stated the facts out of which this
appeal arises and the course of the litigation in the Courts below. Her
Honour has also cited the authorities which establish that the doctrine
of this Court is that legal professional privilege "is not merely a rule
of evidence applicable in judicial and quasi-judicial proceedings, but is
a basic doctrine of the common law" (17). Although this was not my
preferred view (18), I am bound now to accept it. As I pointed out in
Baker v Campbell (19), the view that legal professional privilege
qualified the power of search and seizure conferred by a warrant
(II) Carter v Northmore Hale Davy and Leake (1995) 183 CLR 121 at 131, 133-138,
139, 140-141.
(12) [1989] QB 267.
(13) [1990] Ch 98.
(14) [1984]1 NSWLR 66.
(15) O'Rourke v Darbishire [1920] AC 581 at 604; Butler v Board o.fTrade [1971] Ch
680 at 689;AI/orney-General (NT) v Kearney (1985) 158 CLR 500 at 516.
(16) (1933) 289 US I.
(17) See Goldberg v Ng (1995) 185 CLR 83 at 93-94.
(18) See Baker v Campbell (1983) 153 CLR 52 at 105-107.
(19) (1983) 153 CLR 52 at 105.506 HIGH COURT [1996-1997
HCOF A issued pursuant to s 10(1) of the Crimes Act 1914 (Cth) as it stood at
1996-1997 the time - and as it stood with some immaterial variations when the
COMMIS- warrants in the present case were issued (20) - necessitated the
SIONEROF devising of some procedure for determining a claim of privilege if it
AUSTRALIAN should be raised during the execution of a warrant. Such a procedure
FEDERAL
POLICE was not devised by the courts, but the Law Council of Australia and
v the Australian Federal Police agreed upon "General Guidelines". The
I'ROPEND Guidelines set out the procedure to be followed if, in the execution of
FINANCE
PTYLm search warrants on lawyers' premises or the premises of Law Societies
and like institutions, a claim of legal professional privilege should be
BrennanCJ made. The authority given by the warrants in the present case was to
search and seize "in accordance with the procedure set out" in the
General Guidelines.
The respondents made an application before Davies J in the Federal
Court for judicial review of the applications for search warrants, of the
decisions to issue the search warrants and of the conduct of the Federal
Police in executing them. However, the principal relief claimed
(though it was said to be "in the alternative") was for a declaration
that certain documents for which legal professional privilege had been
claimed and which, in accordance with the General Guidelines, had
been seized but not inspected were "subject to legal professional
privilege". One of the grounds on which the present appellants
resisted this claim was that some of the documents for which legal
professional privilege had been claimed were created for or in
furtherance of the commission of the suspected offences set out in the
search warrants.
Among the orders made by Davies J were declarations that "by
reason of the allegation of offences ... and of the proof given in
support thereof," certain documents listed in the order "are not
subject to legal professional privilege" (21) and "that copies of
documents made for the purpose of obtaining legal advice, the
originals of which are not subject to legal professional privilege are
(20) Section 10(1) then read as follows: "If a Magistrate or Justice of the Peace is
satisfied by information on oath that there is reasonable ground for suspecting that
there is in or upon any premises, aircraft, vehicle, vessel or place: (a) anything
with respect to which any offence against any law of the Commonwealth or of a
Territory has been, or is suspected on reasonable grounds to have been,
commined; (b) anything aso which there are reasonable grounds for believing
that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there is reasonable ground for believing that it is intended
to be used for the pUIllose of committing any such offence; or that any such thing
may, within the next following 72 hours, be brought into or upon the premises,
aircraft, vehicle, vessel or place, the Magistrate or Justice of the Peace may grant a
search warrant authorising any constable named in the warrant, with such
assistance, and by such force, as is necessary and reasonable, to enter at any time
the premises, aircraft, vehicle, vessel or place named or described in the warrant,
and to seize any such thing which he or she might find there."
(21) Order No 5.188 CLR Sal] OF AUSTRALIA 507
not privileged." (22) In the Full Court, differing views were expressed HCOFA
1996-1997
on these questions. In the result, the declarations were set aside. The
present appeal is brought to restore the order of Davies J. COMMIS
SIONER OF
Privilege attaching to copies of non-privileged documents AUSTRALIAN
FEDERAL
The respondents claim that the documents in question were POLICE
produced solely for the purpose of obtaining professional legal advice V
PRoPEND
in relation to litigation that was reasonably apprehended. In Baker v FINANCE
Campbell, though I would have construed s 10 of the Crimes Act as PrYLm
authorising, in general, the issue of a warrant to search for and seize
documents to which legal professional privilege attaches, I would not BrennanCJ
have construed s 10 as authorising the seizure of documents (23) -
"(a) which are merely expressions of legal opinion; or (b) to which
legal professional privilege attaches by reason of their having been
brought into existence solely for use in litigation that is pending,
intended or reasonably apprehended."
The problem that now arises relates to copies of unprivileged
documents when the copies were brought into existence solely for use
in obtaining legal advice or for use in apprehended litigation. When
photocopying and multiple production by word processing have
become commonplace, it may be difficult to distinguish between an
original and a copy and it may seem artificial to do so. In J N Taylor
Holdings Ltd v Bond (24) Debelle J said that, in general, "it would be
absurd for the copy to be privileged while the original was not". And,
in Lubrizol Corporation v Esso Petroleum Ltd (25), Aldous J said that
he found it .'incredible, in these days of the photocopier, the computer
and the fax, that any distinction concerning privilege can be drawn
between a copy and the original". Yet the purpose of bringing an
original document into existence may not be the purpose of bringing
the copy into existence and, since Grant v Downs (26), the protection
of legal professional privilege has been confined to documents that
have been brought into existence for the sole purpose of submission to
legal advisers for advice or for use in legal proceedings (27). In that
case, Jacobs J said (28):
"I think that the question which the court should pose to itself is
this - does the purpose of supplying the material to the legal
adviser account for the existence of the material? I use the word
(22) Order No 6.
(23) Baker v Campbell (1983) 153 CLR 52 at IW.
(24) (1991) 57 SASR 21 at 34; affd (1992) 57 SASR 38.
(25) [1992] I WLR 957 at 961; (1993) 20 FSR 64 at 68.
(26) (1976) 135 CLR 674.
(27) Grant v Downs (1976) 135 CLR 674 at 688; National Employers' Mutual General
Insurance AssociationLtd v Waind (1979) 141 CLR 648 at 654; Baker v
Campbell (1983) 153 CLR 52 at 86, 122.
(28) Grant v Downs (1976) 135 CLR 674 at 692.508 HIGH COURT [1996-1997
HCOFA purpose here .in the sense of intention - the intended use. The
1996-1997
question is one of fact. In some cases a mere general description of
COMMIS documents in an affidavit of discovery may indicate an affirmative
SIONER OF answer without any need further to examine the documents or the
AUSTIlALIAN
FEDERAL circumstances in which they came into existence (29). In other cases
POliCE both an examination of the documents and of the surrounding
V circumstances may be necessary."
PRoPEND
FINANCE The test is anchored to the purpose for which the document was
PrvLm brought into existence; the use to which a document is put after it is
BrennanCJ brought into existence is immaterial. So, on a strictly logical
application of the test, if a copy is made solely for the purpose of
providing it to a legal adviser in order to obtain legal advice or for use
in connection with apprehended litigation, the copy would be
privileged. A test which focuses on the purpose for which a document
is brought into existence, rather than on the information given by or
contained in the document, creates practical problems in ascertaining
the intentionof the maker of the document. If there be two copies on a
file, has one (and if so, which), or both, or neither been brought into
existence for a privileged purpose? Though the test raises problems of
that kind, it must be applied unless there is some countervailing
principle. Is there any countervailing principle? That calls for a
consideration of the reason for according legal professional privilege
to protect a copy of an unprivileged original from seizure or
inspection.
The reason why privilege is accorded to a document produced for
use in litigation or for the obtaining or giving of legal advice is
because "it assists and enhances the administration of justice by
facilitating the representation of clients by legal advisers" (30).
Privilege protects the confidentiality of documents produced for the
purpose of communication between a potential litigant and the legal
adviser and confidentiality facilitates the administration of justice. In
Grant v Downs, Stephen, Mason and Murphy 11said (31):
"This it does by keeping secret their communications, thereby
inducing the client to retain the solicitor and seek his advice, and
encouraging the client to make a full and frank disclosure ... to the
solicitor.',
Communications may be documentary, as Mason J pointed out in
O'Reilly v State Bank of Victoria Commissioners (32):
"But if communications in written form are to be privileged they
(29) Westminster Airways Ltd v Kuwait Oil Co Ltd [I951j 1 KB 134.
(30) Grant v Downs (1976) 135 CLR 674 at 685, per Stephen, Mason and Murphy JJ;
Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487.
(31) Grant v Downs (1976) 135 CLR 674 at 685; and see Cross on Evidence, 5th Aust
ed (1996), p 693.
(32) (1983) 153 CLR 1 at 22-23. 188 CLR 501]
OF AUSTRALIA 509
must still be confidential communications between solicitor and HCOFA
client made for the purpose of advice or for the purpose of use in 1996-1997
existing or anticipated litigation. The documents must come into COMMIS
existence for, and be prepared for, that purpose. So in Grant a SIONEROF
majority of this Court held that legal professional privilege is AUSTRALIAN
FEDERAL
confined to documents which are brought into existence for that sole POLICE
purpose." v
PROPEND
If privilege were denied to a copy of an unprivileged document when FINANCE
the copy is produced solely for the purpose of seeking advice from a PrYLID
solicitor or counselor for the purpose of use in pending, intended or BrennanCJ
reasonably apprehended litigation, there would be a risk that the
confidentiality of solicitor-client communications would be breached.
The way would be open for the execution of search warrants by the
emptying out of, and sifting through, solicitors' files and counsel's
briefs. That would undermine the adversary system (33) under which
most litigation is conducted (34).
Authority and principle thus combine to establish that, prima facie,
copies of non-privileged documents are privileged if the copies are
brought into existence solely for the purpose of obtaining or giving
legal advice or solely for use in litigation that is pending, intended or
reasonably apprehended. But the prima facie rule is subject to a
qualification next to be mentioned.
In judicial and quasi-judicial proceedings, the contents of a private
document are proved by producing the original document if it is in
existence and can be produced. The original is the best evidence of its
contents. Secondary evidence by way of production of a copy is not
generally admissible at common law unless the original is not
available to the party seeking to tender the document (35). And, if a
party in litigation discloses iri an affidavit of documents a material
document that is no longer in the party's possession or power, the
procedures of discovery enable the other party to trace the location of
the document (36), to require the first party to state the contents of the
document (37) if the contents be known (38) or, perhaps, to be
(33) Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 649-650; Hodgkinson
v Simms (1988) 55 DLR (4th) 577 at 582-583.
(34) See In re L (A Minor) [1997) AC 16 at 25.
(35) Doe d Gilbert v Ross (1840) 7 MW 102 [151 ER 696]; Dwyer v Col/ins (1852)
7 Ex 639 [155 ER 1104]; Commissioner for Railways (NSW) v Young (1962) 106
CLR 535 at 556-557; Butera v Director of Public Prosecutions (Viet) (1987) 164
CLR 180 at 194, per DawsoJ;but cf s 51 of the Evidence Act 1995 (Cth, NSW).
Section 48 of those Acts and s 45c of the Evidence Act 1929 (SA) provide for a
number of other ways of proving the contents of a document.
(36) Lethbridge v Cronk (1875) 23 WR 703; Lacharme v Quartz Rock Mining Co
(1862) I H & C 134 [158 ER 832); Theodore v Australian Postal Commission
[1988) VR 272.
(37) Wolverhampton Waterworks Co v Hawksford (1859) 5 CB (NS) 703 [141
ER 283]; Ramsey v Ramsey [1956) 1 WLR 542; [1956)2 All ER 165.
(38) Dalrymple v Leslie (1881) 8 QBD 5; Dunbar v Perc [1956) VLR 583 at 590.510 HIGH COURT [1996-1997
HCOFA provided with a copy if the first party can obtain access to the
1996-1997
original (39). In .'The Palermo" (40), discovery of copies of
COMMIS unprivileged documents was refused by Butt J (the refusal being
SIONER OF upheld by the Court of Appeal) on the ground that the copies were
AUSTRALIAN
FEDERAL obtained "to form part of the brief". But in Land Corporation of
POLICE Canada v Puleston (41) his Lordship said that he was "not inclined to
V
PROPEND extend [The Palermo] at all". In that case, when an original document
FINANCE which had been in the possession of the party's agent was not
PTYLTD discovered, his Lordship ordered production of the original, "or
affidavit sufficiently accounting for its destruction or loss. In latter
BrennanCJ case, order for production of extracts, properly verified by affi
davit." (42) Thus, in proceedings in which discovery is available, the
contents of an unprivileged original document can be proved as against
a party who has had the original in his possession or power, even if a
copy of the original is protected from inspection by legal professional
privilege. When an unprivileged original can be produced or secondary
evidence of its contents can be tendered in evidence, the according of
legal professional privilege to a copy does not impair, although it does
not hasten (43), the administration of justice.
But the procedures of discovery are not available in aid of the
execution of a search warrant and, if legal professional privilege were
accorded without qualification to a copy of an unprivileged document
where the copy is brought into existence for a privileged purpose, the
privilege might well frustrate the power to search and seize and
thereby undermine the administration of justice (44). An offender
whose premises were to be searched for incriminating documents
could secure immunity from seizure of a key document in his
possession by destroying or disposing of the original, after having a
copy made for the sole purpose of the apprehended litigation. The
offender would then be free to produce the copy at trial if, but only if,
it advanced his case (45). This was the argument advanced by counsel
in Chadwick v Bowman (46) but it was not necessary to deal with it in
that case because the copies which were obtained by the solicitor in
that case were found not to be privileged. However, Mathew J
commented:
(39) Taylor v Rundell (1841) Cr & Ph 104 [41 ER 429]; but cf Theodore v Australian
Postal Commission [1988] VR 272 at 280.
(40) (1883)9P6.
(41) [1884] WN I.
(42) Land Corporation of Canada v Puleston [1884] WN I at2.
(43) Buttes Gas & Oil Co v Hammer [No 3J [1981] QB 223 at 244.
(44) See Ventouris v Mountain [1991] I WLR 607 at621; [1991] 3 All ER 472 at 484,
per Bingham LJ.
(45) Of course, destruction of the document might well redound to the offender's
disadvantage: see Allen v Tobias (1958) 98 CLR 367 at 375; Gray v Haig (1855)
20 Beav 219 [52 ER 587].
(46) (1886) 16 QBD 561 at 562. 188 CLR 501] OF AUSTRALIA 511
"I think that danger would follow if the privilege against inspection H COF A
were made to cover such a case as this." 1996-1997
The problems that arise when legal professional privilege is given COMMIS
an operation outside judicial and quasi-judicial proceedings may SIONER OF
AUSTRALIAN
require some modification either of the privilege generally or of its FEDERAL
operation in particular situations in order to ensure that the POLICE
administration of justice - criminal as well as civil - is not V
PROPEND
impaired (47). No modification would be permitted if the privilege J>ryLTD
were claimed in response to an application for discovery or inspection
in judicial or quasi-judicial proceedings. In such proceedings, the
BrennanCJ
privilege, once it attaches, is not lost (48) unless it be waived by the
holder of the privilege (49). No balancing of interests is called for, as
the balancing has been done in according recognition to the
privilege (50). But when the privilege is invoked in response to the
exercise of a statutory authority to search and seize, some modification
is required to avoid the frustration of the statute.
A problem of the same kind evoked the doctrine of imputed waiver
of privilege. In Attorney-General (NT) v Maurice (51), Mason and
Brennan JJ said (52) that an "implied waiver occurs when, by reason
of some conduct on the privilege holder's part, it becomes unfair to
maintain the privilege". Deane J said (53) that waiver of privilege -
"occurs in circumstances where a person has used privileged
material in such a way that it would be unfair for him to assert that
legal professional privilege rendered him immune from procedures
pursuant to which he would otherwise be compellable to produce or
allow access to the material which he has elected to use to his own
advantage. Thus, ordinary notions of fairness require that an
assertion of the effect of privileged material or disclosure of part of
its contents in the course of proceedings before a court or quasi
judicial tribunal be treated as a waiver of any right to resist scrutiny
of the propriety of the use he has made of the material by reliance
upon legal professional privilege."
Unfairness in the context of the execution of a search warrant might be
found in maintaining the confidentiality of a privileged copy of an
unprivileged original when neither the original nor its whereabouts is
disclosed or any secondary evidence of its contents is made available.
(47) Manes and Silver, Solicitor-Client Privilege in Canadian Law (pp9172-173.
(48) Hobbs v Hobbs and Cousens [1960] P 112; Giannarelli v Wraith [No 2J (1991)
171 CLR 592 at 60I.
(49) Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481, 487-488, 492-493,
497-498; Goldberg v Ng (1995) 185 CLR 83 at 96-98.
(50) Wateiford v The Commonwealth (1987) 163 CLR 54 at 64-65, 74; Carter v
Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, 134, 163.
(51) (1986) 161 CLR 475.
(52) Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487-488.
(53) Maurice (1986) 161 CLR 475 at 492-493.512 HIGH COURT [1996-1997
HCOFA
19%-1997 In such a situation, privilege becomes a cloak thrown over evidence
which the execution of the search warrant is intended to reveal.
COMMIS The purpose of s 10(1) of the Crimes Act would not be frustrated or
SIONER OF
AUSTRALIAN impaired by according legal professional privilege to copy documents
FEDERAL if original unprivileged documents that are connected with the
POLICE commission of an offence in any of the ways specified in that section
v
PROPEND are in existence and are susceptible of seizure under a warrant or if
FINANCE unprivileged copies of the original are available and can be tendered to
PTyLTD prove the contents of the originals. But where privileged copies of
BrennanCJ original documents are seized under a search warrant, some
qualification of the privilege is required to ensure that the person
executing the warrant should have access to the contents of an
unprivileged original to the same extent at least as a party to litigation
can obtain access to the contents of an unprivileged original against a
party who has or has had the unprivileged original in his or her
possession or power. I would state the qualification in this way: if an
original unprivileged document is not in existence or its location is not
disclosed or is not accessible to the person seeking to execute the
warrant and if no unprivileged copy or other admissible evidence is
made available to prove the contents of the original, the privileged
copy loses the privilege. The loss of privilege can be avoided by the
production of a copy of the original (which might be produced by
copying the privileged copy) the accuracy of which is verified by a
person having knowledge of the contents of the original. So long as a
copy of the unprivileged original (with verification if necessary) or
other secondary evidence of its contents is available to be tendered to
prove the contents of the original, the privilege attaching to any copy
of the original can and should be maintained. Otherwise, I would hold
the privilege of the privileged copy to be lost.
No objection to the production of an unprivileged copy or other
evidence of the contents of the original can be entertained on the
ground that it might expose the party to a penalty or forfeiture. That
ground affords an excuse for refusing discovery or inspection in civil
litigation but, once legal professional privilege is treated as a rule of
general application affecting, inter alia, extra-judicial processes for the
enforcement of the criminal law (54), that ground cannot operate to
frustrate those processes. For that reason, I have used the words "at
least" in stating the extent of the access to the contents of an
unprivileged original which a person executing a search warrant
should be able to obtain.
To qualify legal professional privilege in the way I have proposed is
to deprive a person who has only a privileged copy in his or her
possession or power of any tactical advantage that the privilege and
the absence of an unprivileged original would otherwise have
(54) See, eg,S 1O(I)(b) under which a search warrant may be issued with the very
object of obtaining incriminating evidence.188 CLR Sal) OF AUSTRALIA 513
HCOFA
conferred. But the privilege is not afforded in order to confer tactical 1996-1997
advantages; it is afforded in order to facilitate the administration of
justice. COMMIS
SIONER OF
Judicial review and declaratory relief AUSTRALIAN
FEDERAl.
The application of these principles to the instant case presents some POLICE
difficulty. The difficulty arises because the claim for declaratory relief V
PROPEND
seems to have been regarded as an incident of, or a step towards, the FINANCE
granting of relief by way of judicial review of the application for I'rYLTD
search warrants, the issuing of the search warrant and the conduct of
the police in executing the search warrants. In truth, the determination BrennanCJ
of the claim for declaratory relief was not, and could not have been,
determinative of the claims for judicial review. The fact that there
were privileged documents (or documents that were prima facie
privileged) in the premises in respect of which search warrants were
sought says nothing as to the validity of the applications for warrants
to search those premises, assuming that such applications were
"decisions" or "conduct" amenable to review under the Administrat
ive Decisions (Judicial Review) Act 1977 (Cth) or were reviewable
pursuant to s 39Bof the Judiciary Act. There was nothing to show that
the applications were made in bad faith to obtain warrants authorising
a search for and seizure of privileged documents. Nor was the decision
to issue the warrants invalid. The issuing justice restricted the
execution of the warrants so as to ensure observance of the guidelines
for dealing with documents in the event that a claim of privilege was
made. The conduct of the police in executing the warrants complied
with the guidelines. In accordance with those guidelines, the
documents for which privilege was claimed were not seized under the
warrant but were sealed up and delivered to a third party. The
guidelines provide, in effect, that when the documents are sealed up
and delivered to a third party, the execution of the warrant be
suspended pending the decision in proceedings to establish the
privilege. If no such proceedings are taken or such proceedings fail,
the documents are released into the possession of a police officer to be
dealt with under the warrant. In this way, an accommodation is
reached between the legislative intention expressed by s 10(1) and the
decision in Baker v Campbell.
When a claim of privilege attaching to a document seized under a
warrant comes to be determined judicially, the court must ascertain for
itself whether the document was brought into existence solely for a
privileged purpose and, if it be found or assumed that the document is
a copy of an unprivileged original but was brought into existence
solely for a privileged purpose, whether the privilege has been lost. In
determining the claim of privilege, the court is not reviewing judicially
an executive action but is determining a distinct controversy between
the person who seeks to inspect the seized document and the person
who seeks to maintain its immunity from inspection on the ground of
legal professional privilege. To determine that controversy, the court514 HIGH COURT [1996-1997
H COF A must act upon admissible evidence, not upon hearsay. In the present
1996-1997
case, Davies J had regard to the sworn information laid before the
COMMIS issuing justice. That material was admissible to establish the basis on
SIONER OF which the search warrant was issued and thus to support the validity of
AUSTRALIAN the issue of the warrant, but it was not admissible to show that the
FEDERAL copy documents found in the custody of solicitors were not privileged.
POLICE
V
PROPEND Ulterior purpose in communications with legal adviser
FINANCE In determining whether a claim of legal professional privilege can
PTYLTD
be upheld, it is open to the party resisting the claim to show reasonable
BrennanCJ grounds for believing that the communication effected by the
document for which legal professional privilege is claimed was made
for some illegal or improper purpose, that is, some purpose that is
contrary to the public interest (55). I state the criterion as "reasonable
grounds for believing" because (a) the test is objective and (b) it is not
necessary to prove the ulterior purpose but there has to be something
"to give colour to the charge" (56), a "prima facie case" that the
communication is made for an ulterior purpose (57). The purposes that
deny the protection of privilege for a communication (58) (whether
documentary or oral) between a client and the client's solicitor or
counsel include (59) the furthering of the commission of an
offence (60).
When a party in curial proceedings is seeking to rebut a claim of
privilege by asserting that the communication with the legal adviser
was made for an ulterior purpose, the evidence of ulterior purpose
must be admissible in those proceedings. It is not sufficient to rely on
the information laid before the justice who issued the warrant. The
informant is not necessarily a witness and, if he or she is a witness, the
admissible evidence is what is then deposed to, not a statement made
to or before the issuing justice. In the present case no admissible
evidence was tendered, although Davies J at first instance recorded
that counsel for the parties were content that he "should have regard
to" the sworn information laid before the issuing justice.
Two issues that were relevant to the claim of privilege in respect of
the copy documents seized under the warrant appear to await
determination. The first is whether the privilege attached at all. That
question may need to be re-litigated now that it has been held that a
(55) Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 514-515; R v Bell; Ex
parte Lees (1980) 146 CLR 141 at 147, 156, 159, 161.
(56) O'Rourke v Darbishire [19201 AC 581 at 604, 633; Attorney-General(NT) v
Kearney (1985) 158 CLR 500 at 516, 517, 525, 527.
(57) Butler v Boar4 Trade [19711 Ch 680 at 689.
(58) Attorney-General(NT) v Kearney (1985) 158 CLR 500 at 515; Carter v
Northmore Hale Davy & Leake (1995) 183 CLR 121 at 163.
(59) Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 516, 528-529.
(60) R v Cox and Railton (1884) 14 QBD 153 at 175; O'Rourke v Darbishire [19201
AC 581 at 613,632; Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382
at 385, 386, 389-390; Butler v Board of Trade [19711 Ch 680 at 689.188 CLR 501] OF AUSTRALIA 515
concurrence of counsel in the judge's "having regard to" the sworn HCOF A
information was an inappropriate means of proving the facts relevant 1996-1997
to that issue. The second is (in my opinion) whether, if privilege COMMIS
attached, it was lost by reason of the unavailability of the original SIONER OF
unprivileged documents or of any secondary evidence of their AUSTRALIAN
FEDERAL
contents. POLICE
Although these reasons differ from those of their Honours in the v
Ful1 Court, the orders made by that Court suffice to al10w effect to be PROPEND
FINANCE
given to these reasons. I would therefore dismiss the appeal and cross PrvLTD
appeal.
Dawson J
DAWSON J. I have had the advantage of reading the reasons for
judgment of Toohey J and agree with them and with the orders which
he proposes. I wish only to add the fol1owing comments.
Legal professional privilege and copy documents
The first question which arises is whether a copy of a document
may attract legal professional privilege where the original does not. As
Toohey J points out, it is confusing to regard legal professional
privilege as attaching to documents rather than the information they
communicate. Whilst it is not uncommon in judgments for the
distinction to be ignored, to say that a document is privileged is merely
a shorthand way of saying that the communication constituted by the
document is privileged (61). As I said in Baker v Campbell (62):
"Legal professional privilege attaches only to communications
made for the purpose of giving or receiving advice or for use in
existing or anticipated litigation. Moreover, if the communication in
question is in the form of a document submitted by a client to his
solicitor for use in existing or anticipated litigation, privilege will
attach to it only if it comes into existence solely for that purpose.
The privilege cannot operate to put beyond the reach of the law
documentary or other material which has an existence apart from the
process of giving or receiving advice or the conduct of litigation."
The last sentence of that passage would better convey its true meaning
if, instead of the words "documentary or other material", I had
continued to refer to "communications" because it is the communi
cation of information that is protected by legal professional privilege
against disclosure. That is so even where a document is brought into
existence for use in existing or anticipated litigation, although in that
case the information communicated may be of a somewhat different
kind. Privilege does not protect a document from disclosure as a mere
(61) See 0 'Reilly v Stale Bank of Victoria Commissioners (1983) 153 CLR 1 at 22-23,
per Mason J.
(62) (1983) 153 CLR 52 at 122.516 HIGH COURT [1996-1997
HCOFA physical object any more than it protects from disclosure any other
1996-1997 physical object (63).
COMMIS That is why a document which has been brought into existence
SIONER OF otherwise than as a communication between client and legal adviser
AUSTRALIAN
FEDERAL seeking or giving advice or for use in existing or anticipated litigation
POLICE does not attract the privilege: it is not a communication which has its
V origin in that confidential relationship between client and legal adviser
I'ROPEND
FINANCE that itis the purpose of the privilege to protect. It is why a document
PrYLm which merely evidences a transaction - a contract, for example
which is not a communication seeking or giving legal advice or for use
DawsonJ
in the conduct of litigation (in the sense that it pre-exists any actual or
anticipated litigation) does not attract legal professional privilege, even
if it is subsequently given to the legal adviser for the purpose of
seeking advice or for use in litigation. And it is one of the reasons why
the preferred view is (64) that a communication constituted by a
document will only be protected by privilege if the document is
brought into existence for the sole purpose of seeking or giving legal
advice or for use in legal proceedings. The view that it is sufficient if
that is the dominant purpose of the communication constituted by the
document disregards the implication that the communication then has
an existence apart from the confidential relationship between client
and legal adviser and constitutes a communication which ought not be
protected against disclosure (65).
Brett MR had some of these considerations in mind in Pearce v
Foster (66) when he said of the documents in question in that case:
"It seems to me, therefore, that they fall within the class of
documents with regard to which there is a professional privilege, on
the ground that they are brought into existence for the purposes or in
the course of professional communications between solicitor and
client. I do not think that, where documents are already in existence
aliunde, the mere fact of their being handed to a solicitor for the
purposes of the conduct of the action can create a privilege; but,
where documents are brought into existence by a solicitor or
through a solicitor for the purposes of consultation with such
solicitor, with a view to his giving professional advice or to the
conduct of an action, these are in the nature of professional
communications, and are as such privileged."
The same considerations lie behind the question which Jacobs J in
Grant v Downs (67) thought was appropriate to determine whether
legal professional privilege existed or not, namely, "does the purpose
(63) cf National Mutual Life Association of Australasia Ltd v Godrich (1910) 10
CLR 1 at 10. per Griffith CJ.
(64) See Grant v Downs (1976)35 CLR 674.
(65) cf Waugh v British Railways Board [1980] AC 521.
(66) (1885) 15 QBD 114 at 118-119.
(67) (1976) 135 CLR 674 at 692.188 CLR 501] OF AUSTRALIA 517
of supplying the material to the legal adviser account for the existence HCOFA
1996-1997
of the material?"
The words of Brett MR in Pearce v Foster (68) adopt an argument COMMIS
put by counsel. That argument concluded. "So a mere copy of such SIONER OF
AUSTRALIAN
document made for the purposes of the action is not necessarily FEDERAL
privileged (69)." Brett MR did not go so far in his judgment and it POLICE
was unnecessary for him to do so for the purposes of the case before v
PROPEND
him, but it is, I think, the logical consequence of the argument which FINANCE
he accepted. That is illustrated by the Victorian case of Shaw v David PTYLTD
Syme & Co (70). Dawson J
In that case the transcript of shorthand notes of court proceedings
which were held in public was held not to attract legal professional
privilege, even though the transcript was brought into existence for the
purpose of enabling solicitors to advise in respect of a libel action and
to conduct the action. The transcript was treated as a copy of the
shorthand notes, that is to say, it was not considered significant that
the original was in shorthand and the copy was not. What is important
is that it was held that the original was not a communication seeking
or giving legal advice nor, being merely a record of proceedings which
took place publicly and independently of anticipated litigation, was it
brought into existence for the purposes of the anticipated litigation. Of
the copy, that is to say, the transcript, Madden CJ, in delivering the
judgment of the court, said (71):
"It would, in our opinion, be wrong to say that, where a solicitor
has said, 'Get me a copy of that document, the original of which if
in my possession will be liable to be discovered,' and such a copy is
obtained for him, that copy document has come into existence for
the purpose of being put before the solicitor. The document in
question is in effect merely a translation of a document which of
itself and untranslated would be useless. Being in shorthand, it has
to be brought into such a condition that ordinary persons can read it.
Therefore it is, as I have said, merely a translation. We think this
transcript was not brought into existence for the purposes of the
litigation within the true meaning of the rule which gives the
privilege here claimed, and it seems to be definitely established by
Chadwick v Bowman (72) and Lyell v Kennedy (73) that if an
original is not privileged a copy can be in no better position."
Thus it was accepted that if an original document does not attract legal
professional privilege, a mere copy cannot do so. The reason for this is
apparent from the emphasis placed by Madden CJ upon the fact that
(68) (1885) 15 QBD 114 at 117.
(69) Lyell v Kennedy (1884) 27 Ch D \.
(70) [1912] VLR 336.
(71) Shaw vDavid Syme & Co [1912] VLR 336 at34O-34\.
(72) (1886) 16 QBD 56\.
(73) (1884) 27 Ch D \.518 HIGH COURT [1996-1997
HCOF A the copy was a mere translation. The communication constituted by
1996-1997 the copy - the translation - was the same as it was in the case of the
COMMIS original. The information conveyed by the one was no more or less
SIONER OF than the information conveyed by the other, so that the copy could be
AUSTRALIAN in no better position than the original so far as privilege is concerned.
FEDERAL
POLICE That is to say, if the communication constituted by the original did not
V (as it did not) seek or provide legal advice and was not (as it was not)
PROPEND made for the purpose of litigation, then the communication constituted
FINANCE
f>ryLm by the copy could not be regarded differently.
The point is also illustrated by Lambert v Home (74), a case similar
DawsonJ to Shaw v David Syme & Co. There it was held that a transcript of the
shorthand notes of proceedings in open court was not privileged even
though the transcript was made for use in future litigation. The
transcriber had, in the words of Buckley LJ, "done nothing more than
reproduce in a physical form that which came into existence in its
relevant form when the witness spoke in the box. The writer is
comparable to a gramophone or a photographic camera. The document
as distinguished from its contents is not relevant" (75). The same
reasoning applies here. It is the contents of the document - the
information which it communicates - that is the important thing. The
copy distinguished from its contents is not important, for legal
professional privilege attaches to the contents of a document rather
than the document itself.
In Vardas v South British Insurance Co Ltd (76), Clarke J said of
Lambert v Home that it "rejected in categoric terms the notion that a
copy of a document made for use in litigation was privileged although
the original was not". Clarke J disagreed with a decision of Hunt J
earlier in the same year (77) where he concluded that "[i]f the sole
purpose of submission to the party's legal advisers for advice accounts
for the existence of the copy, it should be privileged". Hunt J cited
Grant v Downs (78) and National Employers' Mutual General
Insurance Association Ltd v Waind (79) in support of that conclusion,
relying in particular on the well-known principle stated by Mason J in
Waind (80) that legal professional privilege is concerned with the
purpose for which the particular document was brought into existence
rather than the purpose for which the information which it records was
obtained. Expressing the distinction in that way may, perhaps, be
misleading. The law is concerned with the purpose for which the
information contained in the document was communicated, rather than
the purpose for which the information itself was originally obtained.
(74) [1914] 3 KB 86.
(75) Lambert v Home [1914] 3 KB 86 at 91-92.
(76) [1984]2 NSWLR 652 at 659.
(77) See McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66 at 68.
(78) (1976) 135 CLR 674.
(79) (1979) 141 CLR 648.
(80) (1979) 141 CLR 648 at 654. 188 CLR 501] OF AUSTRALIA 519
The former purpose remains unchanged upon the making of copies of HCOF A
the document. Clarke J had that in mind when he said (81) that Grant 1996-1997
v Downs and Waind "were not concerned with, and do not deal with,
COMMIS
the purpose of the mechanical reproduction or copying of a document. SIONER OF
I regard the distinction between the collating and recording of AUSTRALIAN
information in a document and the mere reproduction of that document FEDERAL
POLICE
as one of substance" . v
No doubt if the communication constituted by the copy in Shaw v FINANCE
David Syme & Co and Lambert v Home had been accompanied by PTYLTD
some further communication which constituted the giving or seeking
of legal advice or additional documentation for use in legal DawsonJ
proceedings, the further communication would have been privileged.
No doubt also a copy may be made of an unprivileged document or
unprivileged documents in such a selective way as to render the copy
or copies a communication of information which is different from or
additional to the information conveyed by the original or originals. In
that event, the copy or copies would be privileged.
In Lyell v Kennedy (82), documents which were copies of
unprivileged originals were held to attract privilege because the
selection involved in the making of the copies by a solicitor "might
shew what his view was as to the case of his client as regards the
claim made against him" (83). That is to say, the selected copies or
the portions selected might by their very existence reveal the basis
upon which the solicitor was proceeding and thus the nature of his
advice to his client. It is implicit in the decision in Lyell v Kennedy
that a mere copy of an unprivileged original document which does not
reveal such additional information attracts privilege no more than the
original. However, as was pointed out by Byrne J in Raux v Australian
Broadcasting Commission (84):
"In the modem context where indiscriminate photocopying is the
norm, it may be more difficult than in earlier days of manuscript
copying to establish that there has been the interposition of
professional skill and judgment in the selection of the materials to
be copied so that their production discloses implicitly some
confidential privileged information."
Lyell v Kennedy, and the earlier decision in Chadwick v
Bowman (85), appear to have been misunderstood in England for a
time, perhaps because those cases did not spell out the true reason why
a copy document does not attract privilege if the original does not do
so. But the cases which seem to have applied a different principle were
(81) See Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652 at 660.
(82) (1884) 27 Ch D 1.
(83) Lyell v Kennedy (1884) 27 Ch D 1 at 26. per Cation LJ.
(84) [1992] 2 VR 577 at 599.
(85) (1886) 16 QBD 561.520 HIGH COURT [1996-1997
HCOF A called into question by Lord Denning MR in Buttes Gas & Oil Co v
1996-1997 Hammer [No 3J (86) where he said:
COMMIS
SIONER OF "If the original document is privileged ... so also is any copy made
AUSTRALIAN by the solicitor. But, if the original is not privileged, a copy of it
FEDERAL also is not privileged - even though it was made by a solicitor for
POLICE
v the purpose of the litigation (87). There are some cases which
l'RoPEND appear to give a privilege to copies on their own account, even
FINANCE when the originals are not privileged. They range from The
PrYLTD
Palermo (88) down to Watson v Cammell Laird & Co (Shipbuilders
DawsoJ & Engineers) Ltd (89). But those cases are suspect. They were
adversely commented on in the Sixteenth Report of the Law Reform
Committee on Privilege in Civil Proceedings (1967) (90). Since
Waugh's case (91) it is open to us to reconsider them. In my
opinion, if the original is not privileged, neither is a copy made by
the solicitor privileged. For this simple reason, that the original (not
being privileged) can be brought into court under a subpoena duces
tecum and put in evidence at the trial. By making the copy
discoverable, we only give accelerated production to the document
itself. That was pointed out by Winn LJ's committee in the Report
of the Committee on Personal Injuries Litigation in July 1968 (92)."
The reason why a copy document attracts no greater privilege than
the original is, as I have endeavoured to explain, more fundamental
than that given by Lord Denning MR. It is true that to make the copy
discoverable may only be to give accelerated production to the
document itself, but that is an argument which has its foundation in
policy rather than logic. There are exceptions to the general rule that is
in the interests of justice that relevant documents be produced, and in
this country that is so whether the production be for the purposes of
litigation or the purposes of search and seizure preceding litigation.
One of the exceptions exists where there is legal professional privilege
and it exists in order to preserve the confidential relationship between
client and legal adviser, a relationship which is to be fostered and
preserved for the better working of the legal system. However, that
relationship is not impaired and the interests of justice are best served
if the client or his legal adviser on his behalf is compelled to disclose a
copy of a document when production of the original might be
compelled without any ground for objection. That may, I think, be said
to be so as a matter of policy.
Notwithstanding the limited basis upon which Lord Denning MR
(86) [19811 QB 223 at 244.
(87) See Chadwick v Bowman (1886) 16 QBD 56\.
(88) (1883) 9 P 6.
(89) [1959] I WLR 702; [1959] 2 All ER 757.
(90) Cmnd 3472.
(91) [1980]AC52\.
(92) Cmnd 3691, par 304. 188 CLR 501] OF AUSTRALIA 521
justified his conclusion in Buttes Gas & Oil Co v Hammer [No 3J, that HCOFA
1996-1997
conclusion appears now to be accepted in England, although again
upon grounds of policy rather than principle (93). In Australia there COMMIS
has been a division of judicial opinion, but the correct view is, for the SIONER OF
AUSTRALIAN
reasons of policy and principle which I have identified, that a copy of FEDERAL
a document which does not attract legal professional privilege is in no POLICE
different position from the original. That view is supported by v
PROPEND
Australian authority (94). FINANCE
PryLm
Admissibility of hearsay to exclude legal professional privilege
The other question which arises is whether hearsay evidence was DawsonJ
admissible to establish that certain of the documents in question failed
to attract legal professional privilege because there was a sufficient
indication that they were brought into existence in furtherance of a
crime or fraud. That limit upon the ambit of legal professional
privilege was first recognised in R v Cox and Railton (95). It is only
those communications passing between a legal adviser and his or her
client in professional confidence which are privileged and a
communication made by the client for assistance in the commission of
a crime or fraud lies outside any legitimate professional relationship.
The issue in the present case is the nature of the evidence required to
establish that the privilege is excluded on this ground.
The cases make it plain that those seeking to exclude legal
professional privilege do not have to prove that the communication in
question was in furtherance of a crime or fraud. In Bullivant v
Attorney-General (Viet) (96), which was a case of fraud, the Earl of
Halsbury LC said: "you must have some definite charge either by way
of allegation or affidavit or what not." In O'Rourke v Darbishire (97)
Viscount Finlay said: "there must be, in order to get rid of privilege,
not merely an allegation ... of a fraud, but there must be something to
give colour to the charge." That test was accepted in Attorney-General
(NT) v Kearney (98) by Gibbs CJ, with whom Mason and
(93) See Ventouris v Mountain [1991] I WLR 607; [1991] 3 All ER 472; Dubai Bank
Ltd v Galadari [1990] Ch 98; Dubai Bank Ltd v Galadari [No 7J [1992] I WLR
106; [1992] I All ER 658; Lubrizol Corporation v Esso Petroleu[1992]td
I WLR 957; Barclays Bank Pic v Eustice [1995] I WLR 1238; [1995] 4 All ER
511.
(94) See Shaw v David Syme& Co [1912] VLR 336; Vardas v South British Insurance
Co Ltd [1984] 2 NSWLR 652; Nickmar Pry Ltd v Preservatrice Skandia
Insurance Ltd (1985) 3 NSWLR 44; J N Taylor Holdings Ltd v Bond (1991) 57
SASR 21; Roux v Australian Broadcasting Commission [1992] VR 577;
Langworth Pry Ltd v Metway Bank Ltd (1994) 53 FCR 556; Bayliss v Cassidy
[1995]2 Qd R 464.
(95) (1884) 14QBD 153.
(96) [1901] AC 196at201.
(97) [1920] AC 581 at 604.
(98) (1985) 158CLR 500 at 516.522 HIGH COURT [1996-1997
HCOF A Brennan 11 agreed. Gibbs CJ added (99) the further words of
1996-1997
Viscount Finlay (100):
COMMIS "The statement [ie the allegation of fraud] must be made in clear
SIONER OF
AUSTRALIAN and definite terms, and there must further be some prima facie
FEDERAL evidence that it has some foundation in fact ... The Court will
POLICE exercise its discretion, not merely as to the terms in which the
V
PRoPEND allegation is made, but also as to the surrounding circumstances, for
FINANCE the purpose of seeing whether the charge is made honestly and with
PTYLm
sufficient probability of its truth to make it right to disallow the
Dawson J privilege of professional communications."
In requiring less than proof of an allegation of crime or fraud to
displace legal professional privilege, the law has made a compromise
in the public interest between the competing principles which require,
on the one hand, the availability of all relevant evidence and, on the
other, the protection of professional confidence. It has done so in
favour of the availability of all relevant evidence by placing the
threshold for the displacement of the privilege a considerable distance
short of proof of the allegation of crime or fraud. No doubt that is so
because it is in the public interest that the law should not countenance
even the possibility of legal professional privilege being raised as a
cloak to hide criminal or fraudulent activities. Proof - that is to say,
admissible evidence of the existence of the crime or fraud - is not
required. It is enough that circumstances are made to appear which
sufficiently point to the bona fides and credibility of the allegation. It
is apparent that for this purpose hearsay evidence cannot be excluded.
Thus in O'Rourke v Darbishire (101) Lord Sumner said:
"The stage in the action is only an interlocutory one, and the
materials must be weighed, such as they are, without the apparatus
of a formal trial of an issue. On such materials the Court must judge
whether the claim of privilege is displaced or not."
In the same case Lord Parmoor said (102):
"Whether the circumstances brought to the notice of the Court in a
particular case are sufficiently explicit to establish a prima facie
case of definite fraud, either by allegation, affidavit, or in some
other way, will depend on the special facts in each case (103). But
something more is required than mere pleading, or than mere
surmise and conjecture."
Lord Wrenbury said (104):
(99) Attorney-General (NT) v Kearney (1985) 158 CLR 50at 516.
(100) O'Rourke v Darbishire [1920] AC 58at604.
(101) [1920] AC581 at614.
(102) O'Rourke v Darbishire [1920] AC 58at623.
(103) R v Cox (1884) 14 QBD 153.
(104) O'Rourke v Darbishire [1920] AC 58at633.188 CLR 501] OF AUSTRALIA 523
"the plaintiff must show to the satisfaction of the Court good H COFA
1996-1997
ground for saying that prima facie a state of things exists which, if
not displaced at the trial, will support a chargeof fraud. This may COMMIS
be done in various ways - admissions on the pleadings of facts SIONER OF
which go to show fraud - affidavits in some interlocutory AUSTRALIAN
FEOERAL
proceedings which go to show fraud - possibly even without POLICE
admission or affidavit allegations of facts which, if not disputed or v
met by other facts, would lead a reasonable person to see, at any FINANCE
rate, a strong probability that there was fraud, may be taken by the PTYLm
Court to be sufficient." DawsonJ
Of course, in interlocutory proceedings hearsay is ordinarily
admissible in the form of affidavit evidence upon the basis of
information and belief, but it is apparent that in determining whether
the privilege is displaced not even affidavit evidence is necessarily
required.
The proceedings in the present case in which Davies J determined
that there was sufficient substance to the allegation of crime or fraud
to displace the privilege in relation to certain documents may not
perhaps be accurately described as interlocutory proceedings for they
resulted in a declaration which was not part of any proceedings
otherwise on foot. The true nature of those proceedings can only be
seen by reference to the "General Guidelines between the Australian
Federal Police and the Law Council of Australia as to the execution of
search warrants on lawyers' premises, Law Societies and like
institutions in circumstances where a claim of legal professional
privilege is made" (lOS). Under those guidelines, documents in
relation to which legal professional privilege is disputed are placed by
the legal adviser, under the supervision of the police officer seeking to
execute the warrant, in a sealed container. The container is then jointly
delivered into the custody of some independent person. That is to
enable the question of legal professional privilege to be determined
and that is how the proceedings before Davies J arose.
The real question before Davies J, despite the form of relief he
ultimately gave, was whether the police officer was entitled to seize
the documents which he wished to seize and to which the search
warrant could not validly have extended if they were documents which
attracted legal professional privilege. Thats to say, the question which
Davies J was required to decide was whether the police officer was
entitled to implement the decision (the implementation being cut short
by the invocation of the guidelines) which he reached, namely, the
administrative decision to seize the documents in question notwith
standing the assertion of legal professional privilege. He was entitled
to do so if it was sufficiently apparent that the documents came into
(105) The guidelines appear as an appendix to the judgment of Beaumont J in the Full
Federal Court: see Propend Finance (1995) 58 FCR 224 at 245-248.524 HIGH COURT [1996-1997
HCOF A existence in furtherance of a crime or fraud. Clearly in reaching his
199....,., conclusion upon that question the police officer could act on the
materials available to him and was not confined to admissible
COMMIS
SIONER OF evidence. Thus if the proceedings before Davies J be considered as, in
AFEDERALAN effect, a review of the police officer's decision, then clearly his
POLICE Honour was entitled to have regard to the same materials as were
v
PROPEND available to the police officer. On the other hand, if they were
FINANCE independent proceedings to determine whether legal professional
PIT LTD privilege was displaced, then they were in substance, if not in form,
TooheJ interlocutory proceedings or at least the kind of proceedings in which
it is established that hearsay evidence is not excluded. As Toohey J
points out, much of the evidence before Davies J was not hearsay, but
in any event, in my view, his Honour was entitled to have regard to
hearsay evidence in concluding that the documents in question did not
attract the privilege.
TOOHEYJ. The circumstances giving rise to this appeal are detailed
in other judgments. It is necessary to make only brief mention of them
in these reasons. I come immediately to the two questions raised for
decision by the appeal. In doing so, it is not possible to divorce these
questions entirely from the form of the proceedings taken by the
respondents in the Federal Court, that is, under the Administrative
Decisions (Judicial Review) Act 1977 (Cth) and pursuant to s 398 of
the Judiciary Act 1903 (Cth).
The first question is whether, and in what circumstances, legal
professional privilege attaches to a communication in a copy document
when no privilege attaches to the original. The second question is, in
effect, whether hearsay material may be used to displace legal
professional privilege where the claim of privilege relates to a
document which is said to have come into existence in furtherance of
an illegal or improper purpose.
The views of the primary judge and the Full Court
In allowing in part an appeal by the respondents (106), all members
of the Full Court of the Federal Court (Beaumont, Hill and
Lindgren JJ) rejected the view of the primary judge, Davies J, that a
copy document could not be the subject of legal professional privilege
if the original document was itself not privileged, even though the
copy was made for the sole purpose of obtaining legal advice, unless
particular legal expertise was used in the selection of the docu
ments (107). However their Honours were not in entire agreement as
to the test to be used to determine when the privilege might operate in
respect of a copy of a non-privileged document.
(106) Propend Finance Ply Ltd v Commissioner of Australian Federal Police (1995) 58
FeR 224.
(107) Propendv Commissioner. Australian Federal Police (1994) 35 ALD 25 at 40-41.188 CLR 501] OF AUSTRALIA 525
Beaumont J saw the relevant inquiry in these terms: "in the HCOF A
particular circumstances in which the copy document came into 1996-1997
existence, should it be treated as, in truth, part of the substantive COMMIS
process of the seeking or the obtaining of legal advice or of preparing SIONER OF
for litigation" (108). Hill J approached the matter on the footing that AUSTRALIAN
FEDERAL
the privilege attaches to communications, whether they be recorded in POLICE
documents or are oral. It follows, said his Honour, "that copies of V
PROPEND
documents otherwise not the subject of legal professional privilege are FINANCE
themselves the subject of such privilege only where the copies are PTyLm
made for the sole purpose of obtaining advice upon matters contained
TooheJ
in or concerning the original and in circumstances where to compel
production of the copy would or could operate to reveal the subject
matter upon which advice was sought" (109). Lindgren J thought that
"the public policy which supports the existence of legal professional
privilege is satisfied if copy documents stand in the same position in
relation to privilege as the original" (110). His Honour accepted that
in some cases this formulation of the law might seem inadequate. He
instanced the situation where inspection may reveal a line of thinking,
whether of lawyer or client, which led to the selection of the copies or
to the form in which the material had been assembled. Again, a copy
document may bear highlighting, underlining or even annotations. Yet
again, copied documentation may be so integrated and mixed up with
privileged original material that the former cannot be inspected
without the latter being seen or its nature revealed. Lindgren J did not
see these as exceptions to any principle but rather as falling within the
general principle he had enunciated. The examples given applied
equally to original documents (111). Thus, in terms of general
principle, Lindgren 1's approach was close to that of Davies J.
Legal professional privilege
I accept that privilege may attach to a communication in the form of
a copy of a non-privileged document, but only in the limited
circumstances to which Lindgren J referred. Reference to copy
documents tends to obscure the fact that privilege does not attach to a
piece of paper. It attaches to a communication, written or oral, and it is
the communication that is at issue. While it is natural to speak of legal
professional privilege in terms of documents, it is the nature of the
communication within the document that determines whether or not
the privilege attaches (112). It is as a consequence of this distinction
that a legal adviser may be "required to give evidence of observed
fact, notwithstanding that he observed that fact while acting in the
(108) Propend Finance (1995) 58 FCR 224 at 238.
(109) Propend Finance (1995) 58 FCR 224 at 259.
(110) Propend Finance (1995) 58 FCR 224 at 265.
(Ill)See Propend Finance (1995) 58 FCR 224 at 266-267.
(112) Grant v Downs (1976) 135 CLR 674 at 690, per Jacobs J.526 HIGH COURT [1996-1997
HCOF A course of a retainer and would not have observed the fact had he not
1996-1997
been so retained" (113).
COMMIS As always, it is helpful to see what the author of the monumental
SIONER OF treatise on evidence has to say. Wigmore identifies the general
AUSTRALIAN
FEDERAL principle of privileged communications in the following way (114):
POLICE
V "[F]our fundamental conditions are recognized as necessary to the
PROPEND establishment of a privilege against the disclosure of communi
FiNANCE
PTYLTD cations:
(1) The communications must originate in a confidence that they
TooheyJ will not be disclosed.
(2) This element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the
community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of
the communications must be greater than the benefit thereby
gained for the correct disposal of litigation."
Although this formulation employs the language of "confidence" and
"confidentiality", the author makes it clear in what follows that
confidentiality of itself does not create the privilege. Legal pro
fessional privilege relates to production, not admissibility (115).
Wigmore's formulation is important because of the emphasis it places
on the communication rather than the form the communication takes.
This distinction is not always maintained in the authorities. As Hill J
noted (116), there are passages in judgments of this Court that speak
of the privilege in relation to "documents" (117). But, when such
passages are taken in context, it is apparent that it is the information in
the document with which the Court is concerned. For that reason, the
question whether privilege attaches to a communication in a copy
document is not answered simply by asking whether the original
document is itself privileged.
Before considering further the legal principles involved in this
aspect of the appeal, it is as well to recall some of the circumstances
which gave rise to the appeal. Documents in the possession of the
respondents had been seized by the Australian Federal Police in
execution of several search warrants. The validity of the warrants was
upheld by the primary judge and by the Full Court. That matter has not
been pursued in this Court. The relief which was sought by the
respondents, and against the granting of which by the Full Court this
(113) National Crime Authoriry v S (1991) 29 FCR 203 at 218, per Heerey J.
(114) Wixmore on Evidence, McNaughton rev (1961), vol 8, par 2,285.
(I 15) R v Tompkins (1977) 67 Cr App R 181 at 184; R v Governor of Penton ville
Prison; Ex parte Osman [1989] 3 All ER 70 I at 730.
(116) Propend Finance (1995) 58 FCR 224 at 253.
(117) eg, Grant v Downs (1976) 135 CLR 674 at 688; National Employers' Mutual
General Insurance Association Ltd v Waind (1979) 141 CLR 648 at 657.188 CLR 501] OF AUSTRALIA 527
appeal is brought, was a declaration that certain of the documents 1996-1997
seized "are subject to legal professional privilege" and an order for
their return. Some of these documents had been seized at the offices of
COMMIS
a solicitor who was a director of the first respondent, Propend Finance SIONER OF
Pty Ltd (Propend). Included in the material for which privilege was AUSTRALIAN
FEDERAL
claimed on behalf of Propend was a quantity of documents in the POLICE
solicitor's office which were copies of documents which themselves V
PROPEND
were not privileged. Davies J held (118): FINANCE
PTvLm
"There are many bundles of documents in the schedule in respect
of which, in my opinion, privilege fails for the reason that the Toohey J
original documents themselves are not shown to be the subject of
legal professional privilege. At the present time, the evidence does
not show that there was any particular legal expertise used in the
selection of the documents."
The present respondents successfully challenged that approach before
the Full Court.
The importance of legal professional privilege has been emphasised
in many decisions of this Court and of other courts. A recent instance
is Carter v Northmore Hale Davy & Leake (119). At the same time a
number of cases have sounded a warning against widening the
privilege lest the need for the courts to have access to all relevant
documents should be unduly undermined (120). Wigmore has said of
legal professional privilege (121):
"It is worth preserving for the sake of a general policy, but it is
nonetheless an obstacle to the investigation of the truth. It ought to
be strictly confined within the narrowest possible limits consistent
with the logic of its principle."
This view was endorsed by Mason J in O'Reilly v State Bank of
Victoria Commissioners (122). I do not understand his Honour to have
retreated from that view in Baker v Campbell (123). The importance of
the disclosure and production of all relevant documents in the
possession, custody or power of parties to litigation has been stressed
again and again. Legal professional privilege is an exception to that
principle and can only be justified as serving the public interest which
gives rise to the exception (124). Not only that but, as Aldous J
(118) Propend v Commissioner. Australian Federal Police (1994) 35 ALD 25 at 41.
(119) (1995) 183 CLR 121. See also R v Derby Magistrates' Court; Ex parte B [1996]
I AC 487 and the note in Law Quarterly Review, vol 112 (1996) 535.
(120) Carter v Northmore Hale Davy& Leake (1995) 183 CLR 121 at 147, 150-154.
See also Zuckennan, "Legal Professional Privilege and the Ascertainmeof
Truth", Modern Law Review, vol 53 (1990) 381.
(121) Wigmore on Evidence, McNaughton rev (1961), vol 8, par 2,291.
(122) (1983) 153 CLR I at 25; Carter v Northmore Hale Dav& Leake (1995) 183
CLR 121 at 147.
(123) (1983) 153LR 52.
(124) VentourisMountain [1991]1 WLR 607 at 611-612; [1991] 3 All ER 472 at 476.528 HIGH COURT [1996-1997
HCOFA observed in Lubrizol Corpn v Esso Petroleum Ltd (125), a judge must
1996-1997 be able to explain why the particular exception sought to be
COMMIS maintained is in the public interest. The difficulties of explanation are
SIONER OF accentuated when there is a departure from the basic proposition that if
AUSTRALIAN
FEDERAL an original document is not privileged, nor is a copy of that
POLICE document (126).
V
PRoPEND Legal professional privilege: copy documents
FINANCE
PryLTD In Buttes Gas & Oil Co v Hammer [No 3] (127) Lord Denning MR
said:
TooheyJ
"If the original document is privileged ... so also is any copy made
by the solicitor. But, if the original is not privileged, a copy of it
also is not privileged - even though it was made by a solicitor for
the purpose of the litigation."
His Lordship thought that the reason why this was so was because the
original, not being privileged, "can be brought into court under a
subpoena duces tecum and put in evidence at the trial". But, with
respect, that cannot afford a sufficient reason because it is the
communication that is sought to be privileged, not the document. It
may be that inspection of the copy document would disclose some
confidential privileged communication. Nevertheless Lord Denning's
basic proposition holds good (128).
An early case in which the privilege attaching to copy documents
was at issue is Lyell v Kennedy (129). The documents were in the
possession of the defendant's solicitor but they were copies of public
records or other documents which were described as publici juris. The
Court of Appeal held that the copies and extracts from the originals
were privileged if made or obtained by the professional advisers of a
party for his defence to the action and were the result of the
(125) [1992] I WLR 957 at 960.
(126) In appendices to his judgment Lindgren J lists cases in which it has been accepted
that legal professional privilege attaches to copies simply because the purpose of
making the copy was a privileged purpose satisfying the relevant test and also
cases in which that view has been rejected, though in some of the latter cases
reference is made to additional factors which might make the copy privileged.
(127) [1981] QB 223 at 244.
(128) The view that a copy of a non-privileged document is itself not privileged is
sharedby a number of Australian decisions including Shaw v David &yCo
[1912] VLR 336; Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652
at 659-660; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985)
3 NSWLR 44 at 59-62; Bayliss v Cassidy [1995] 2 Qd R 464. It also represents
the preponderance of English authority. In addition to Buttes Gas & Oil Co v
Hammer INo 3], see Chadwick v Bowman (1886) 16 QBD 561; Lambert v Home
[1914] 3 KB 86; Dubai Bank Ltd v Galadari [1990] Ch 98; Ventouris v Mounlain
[1991] I WLR 607; [1991] 3 All ER 472; Lubrizol Corpn v Esso Petroleum Ltd
[1992] I WLR 957.
(129) (1884) 27 Ch DI.188 CLR 501] OF AUSTRALIA 529
professional knowledge, research and skill of those advisers. HCOF A
1996-1997
Bowen LJ said (130):
COMMIS
"A collection of records may be the result of professional SIONER OF
knowledge, research, and skill, just as a collection of curiosities is AUSTRALIAN
the result of the skill and knowledge of the antiquarian or virtuoso, FEDERAL
POLICE
and even if the solicitor has employed others to obtain them, it is his V
knowledge and judgment which have probably indicated the source PROPEND
from which they could be obtained." FINANCE
PTYLTD
As to Lyell v Kennedy, I agree with the view expressed by Byrne J
in Roux v Australian Broadcasting Commission (131) that: TooheJ
"the decision in that case to uphold the privilege was in fact based
on the premise that to permit inspection of the solicitors' copies,
would show to the plaintiff what was the view of the defendant or
its lawyers as to the issues in the plaintiff's case."
Legal professional privilege is concerned with protecting the
confidence of communications between lawyer and client. If therefore
an original document is not privileged, a copy of that document is not
privileged merely because the lawyer receives it from his or her client,
even if it is to assist in the conduct of litigation. Where privilege is
claimed for the contents of a document, it is necessary to look at the
purpose for which the document recording the information came into
existence, not the purpose for which the information was
obtained (132). If the document was not brought into existence for the
purpose of litigation, its contents are not privileged even if the
information which it contains was obtained for that purpose.
''Therefore, if a solicitor gets from a third person for use in
conducting the client's case a document that was not created in
circumstances that attract privilege, on discovery the client must
produce the document to the other side." (133) There must be
something in the circumstances in which a copy of a non-privileged
document came into existence in order to attach privilege to the copy.
An illustration is where a lawyer makes annotations on a copy
document, for the purposes of the conduct of litigation. On the other
hand, it might be said that once annotated the copy document is
different from the original. In that event only the annotation may be
privileged. Selective copying is unlikely to attract the privilege,
particularly at the present time "where indiscriminate photocopying is
the norm" (134). If the position of the copy in a collection of
(130) Lyell v Kennedy (1884) 27 Ch D I at 31.
(131) [1992] 2 VR 577 at 597, endorsed by Lindgren J in Propend Finance Pry Ltd v
Commissioner of Australian Federal Police (1995) 58 FCR 224 at 267.
(132) Waind (1979) 141 CLR 648 at 654.
(133) Williams,"'Four Questions of Privilegethe Litigationaspectof Legal
Professional Privilege", Civil Justice Quarterly, vol 9 (1990) 139, at pp 154-155.
(134) Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 599.530 HIGH COURT [1996-1997
HCOF A documents or something else about the copy tends to indicate the
1996-1997
manner in which the litigation is to be conducted, privilege may attach.
COMMIS That is a limited situation indeed and, in the ordinary course, there is
SIONER OF no reason why the document in question should not be removed from
AUSTRALIAN
FEDERAL the collection so that it may be inspected (135). It must be accepted
POLICE that the exercise of professional skill in the assembly of material does
V
PROPEND not offer a very certain test but it is, I think, a necessary qualification
FINANCE to the general proposition that a copy document does not attract
PTyLTD privilege if the original is not privileged.
It is argued that to refuse privilege to a copy document because the
Toohey J original is not privileged will encourage resort by investigators to the
documents in a solicitor's office rather than carrying out ordinary
investigative procedures. This is an argument based on inconvenience
rather than on principle. This is not to underestimate the inconvenience
that may sometimes be involved though, in the case of warrants
executed on the premises of lawyers, the problems have to some extent
been alleviated by the General Guidelines between the Australian
Federal Police and the Law Council of Australia, dated 7 June
1990 (136). And the argument tends to overlook the fact that in civil
proceedings an affidavit of documents must disclose the existence of
all documents that are or have been in the possession or power of the
deponent, including documents for which privilege is claimed.
If a third party shows to the solicitor for a party to litigation a non
privileged document and the solicitor takes the document into his or
her custody for the sole purpose of claiming the privilege, it is clear
that the document is not protected by privilege (137). As Byrne J
observed in Raux (138):
"It seems to me to be absurd in these circumstances to say that
where the solicitor does not retain the original, but makes a
verbatim transcript or a photocopy of the document for the relevant
sole purpose, that copy document acquires immunity which the
original does not have."
To take as a basic proposition that a copy of a non-privileged
document does not attract privilege does not in any way undermine the
importance of the privilege. Rather it sets logical bounds to the
privilege (139).
Although, on the question of legal professional privilege and copy
documents, the Full Court allowed the appeal from Davies J, it should
not be thought that all members of the Full Court took an entirely
(135) Grofam Pty Ltd v ANZ Banking Group Ltd (1993) 43 FCR 408.
(136) The guidelines are set out in the judgment of Beaumont J: Propend Finance
(1995) 58 FCR 224 at 245-248.
(137) Rv King [1983] 1 WLR 411 at 414; [1983] I All ER 929 at931; Roux v
Australian Broadcasting Commission [1992] 2 VR 577 at 598.
(138) [1992] 2 VR 577 at 598-599.
(139) See generally McNicol,w of Privilege (1992), pp 94-97. 188 CLR 501] OF AUSTRALIA 531
different view of the matter from the primary judge. All their Honours HCOFA
were of the view that the submission to a legal adviser of a copy of a 1996-1997
non-privileged document does not of itself attract legal professional COMMIS
privilege. There has to be something more. The difference between the SIONER OF
primary judge and the members of the Full Court, as I read their AUSTRALIAN
FEDERAL
judgments, is this. Davies J confined what I have referred to as the POLICE
"something more" to situations in which the legal practitioner brings v
to bear his or her particular legal expertise in the selection of the copy PROPEND
FINANCE
documents for which privilege is claimed. Beaumont J asked whether, pry LTD
in the particular circumstances in which the copy document came into
existence, it should be treated as part of the substantive process of the TooheyJ
seeking or the obtaining of legal advice or preparing for litigation.
Hill 1's reasons led him to the conclusion that copies of documents not
otherwise the subject of privilege are themselves the subject of such
privilege only where the copies are made for the sole purpose of
obtaining advice upon matters contained in or concerning the original
and in circumstances where to compel production of the copy would or
could reveal the subject matter upon which advice was sought.
Lindgren J put the matter in terms not all that dissimilar to the
approach of Davies J, by asking whether the original is privileged. If
the original is non-privileged, so is a copy of it even though the copy
was made for a privileged purpose. The qualifications accepted by
Lindgren J are somewhat wider than those recognised by Davies J. I
agree with the approach taken by Lindgren J (140).
I also agree with Lindgren J that par 6 of the orders made by
Davies J declaring that "copies of documents made for the purpose of
obtaining legal advice, the originals of which are not subject to legal
professional privilege are not privileged" needs modification to
account for these qualifications (141). Lindgren J would have allowed
the appeal to the Full Court in respect of par 6, by substituting a
declaration that "copies of documents made solely for the purpose of
obtaining legal advice, the originals of which are not subject to legal
professional privilege, are not, by that reason alone, privileged". I
agree with that course. Because the orders made by the Full Court
simply set aside a number of orders made by Davies J including par 6,
I would allow the appeal to the extent envisaged by Lindgren J. It
follows that I would refuse the cross-appeal in so far as the
respondents rely upon the "sole purpose" test for the privilege.
Illegal or improper purpose
This aspect of the appeal has a somewhat artificial character. The
review sought by the respondents was with respect to the issue of the
search warrants. The warrants did not authorise the seizure of
(140) Lindgren 1's approach was adopted by Moore J in Alphapharm Pry Ltd v Eli Lilly
Australia Pry Ltd (1996) 69 FCR 149.
(141) See Propend Finance (1995) 58 FCR 224 at 269-270.532 HIGH COURT [1996-1997
HCOF A documents to which legal professional privilege attached. Davies J did
1996-1997
not detennine that privilege attached to particular documents. In par 4
COMMIS of his order, his Honour directed that, subject to declaration 5, issues
SIONER OF as to privilege should be detennined after the documents had been
AUSTRALIAN
FEDERAL examined. Paragraph 5 declares that, "by reason of the allegation of
POLICE offences under s 86(1)(e) and s 86A of the Crimes Act 1914 (Cth) and
V of the proof given in support thereof, the following documents are not
PROPEND subject to legal professional privilege". The documents are then
FINANCE
PTyLTD identified. Paragraph 6 of the order declares that "copies of documents
made for the purpose of obtaining legal advice, the originals of which
Toohey J are not subject to legal professional privilege are not privileged".
Paragraph 6 then gives examples of such documents. His Honour
ordered that documents to which privilege did not attach "be released
to the Australian Federal Police" (142).
The Full Court held that the privilege is not displaced by making a
mere charge of crime or fraud; there must be some prima facie
evidence that the charge has some foundation in fact. The allegation
that offences had been committed was made in a sworn infonnation
containing more than forty pages and with annexures presented to this
Court in three lever arch files. The infonnant was the second
respondent, Detective Sergeant Taciak who, in the infonnation, spoke
of his belief as to various matters "on the basis of the facts stated
below". The infonnation was exhibited to an affidavit sworn by
Assistant Commissioner Baer who did not depose to the truth of any
of the contents of the infonnation. Because the affidavit of Assistant
Commissioner Baer merely exhibited the infonnation and did not
speak to its contents, the Full Court held that the infonnation was
hearsay as to anything it contained. In the view of the Full Court, once
the material in the infonnation was rejected, as it should have been, all
that remained was a bare assertion of improper or illegal purpose. It
ordered that "there be a fresh hearing on the [respondents'] claims for
privilege" .
I have great difficulty in understanding why it was said that the
infonnation was hearsay as to anything it contained. It is no doubt true
that Detective Sergeant Taciak had no personal knowledge of much of
what appears in the infonnation. But some of the material was a matter
of public record, and if admissibility is the relevant test (as to which
see below) some was admissible as to the existence of the material, if
not as to the truth of the contents.
The respondents also complained that Detective Sergeant Taciak
was not available for cross-examination. Before this Court, counsel for
the appellants said that, if the respondents had wished to cross
examine the police officer, they had only to ask and "we would have
(142) The orders which in the end were made by Davies J differ from those proposed, as
to which see Propend v Commissioner. Australian Federal Police (1994) 35 ALD
25 at 46.188 CLR 501] OF AUSTRALIA 533
brought him forward". In all the circumstances I would not attach any H COFA
1996-1997
importance to this aspect.
Again it is necessary to bear in mind the nature of the proceedings COMMIS
before Davies J. His Honour was entertaining applications for SIONER OF
declaratory relief. His declaration that,"by reason of the allegation of AUSTRALIAN
FEDERAL
offences" and "of the proof given in support thereof", some of the POLICE
documents seized were not subject to the privilege was not based on v
the information document alone. Indeed he said expressly (143): PROPEND
FINANCE
"It is clear from Baker v Campbell that the mere fact that a Justice PIT LTD
of the Peace has accepted a sworn information and has issued a TooheyJ
warrant under s 10 of the Crimes Act will not, of itself, be sufficient
to overcome legal professional privilege. The proof must be
sufficient to justify the courtin holding that the privilege does not
apply."
And his Honour had earlier said (144):
"I have read the sworn information of Detective Sergeant Taciak
but cannot see in it sufficient material to overcome the privilege."
On this footing his Honour rejected a submission that a substantial
number of documents were "exempt from privilege by reason of the
allegation of offences under the Crimes (Taxation Offences) Act". But
his Honour also held that a substantial number of documents "should
... be exempt from the privilege". He reached this conclusion on the
footing that there was "sufficient prima facie evidence in the material
before the Justice of the Peace to overcome, in the public interest, the
claim of legal professional privilege". This conclusion followed a
review of the material before him. With respect, I do not think that the
judgments of the Full Court had sufficient regard to all the material
Davies J took into account in reaching his conclusion that certain
documents were exempt from legal professional privilege.
There is perhaps an ambiguity in the sentence (145):
"But it seems to me that there is sufficient prima facie evidence in
the material before the Justice of the Peace to overcome, in the
public interest, the claim of legal professional privilege."
Was Davies J then reviewing a "decision" of the Justice or simply
alluding to the material before her? It must have been the latter
because the Justice made no decision as to exemption from privilege.
She did accept, by issuing the warrant, that there were "reasonable
grounds for believing" that the material "will afford evidence of the
following offences". She then referred to ss 86(1)(e) and 86A of the
Crimes Act 1914 (Cth) and ss 5 and 13 of the Crimes (Taxation
(143) Propend v Commissioner. Australian Federal Police (ALD4)25 at 46,
(144) Propend v Commissioner. Australian Federal Police (ALD4)25 a145,
(145) Propend v Commissioner, Australian Federal Police (ALD4)25 a144,534 HIGH COURT [1996-1997
HCOF A Offences) Act 1980 (Cth) (146). I do not think this matters in the end
1996-1997
because it is clear that Davies J reached his own finding of "sufficient
COMMIS prima facie evidence". The view of the Full Court that there was no
SIONER OF admissible evidence before Davies J is therefore not warranted.
AUSTRALIAN
FEDERAL The respondents take their stand on the judgment of Gibbs CJ in
POLICE Attorney-General (NT) v Kearney (147) (a judgment with which
V
PROPEND Mason and Brennan 11 agreed), in which his Honour said: "[Legal
FINANCE professional] privilege is of course not displaced by making a mere
PTYLTD charge of crime or fraud." Gibbs CJ then adopted the language of
Viscount Finlay in O'Rourke v Darbishire (148) that "there must be
TooheyJ something to give colour to the charge ... there must further be some
prima facie evidence that it has some foundation in fact". Goff J put
the test somewhat higher when, in Butler v Board of Trade (149), he
said:
"If one rejects the bare relevance test, as I have done, then what has
to be shown prima facie is not merely that there is a bona fide and
reasonably tenable charge of crime or fraud but a prima facie case
that the communications in question were made in preparation for or
in furtherance or as part of it."
I am not persuaded that the material before Davies J could not
establish to the reasonable satisfaction of his Honour prima facie
evidence of illegal or improper purpose (150). There is no reason why
hearsay material should be excluded. Indeed, the very nature of the
exercise involved will often necessitate some hearsay evidence. If
there is nothing more than hearsay the Court is unlikely to be
persuaded to the required standard. But that is not to say that hearsay
material must be disregarded.
The relevant English authorities are canvassed by Vinelott J in
Derby & Co Ltd v Weldon [No 7} (151). It is unnecessary to refer to
those authorities but his Lordship's conclusion may be noted that
"it is, I think, too restrictive to say that the plaintiff's case must
always be founded on an admission or supported by affidavit
evidence or that the court must carry out the preliminary exercise of
deciding on the material before it whether the plaintiff's case will
probably succeed, a task which may well present insurmountable
difficulties in a case where fraud is alleged and the court has no
more than affidavit evidence" (152).
(146) See George v Rockett (1990) 170 CLR 104.
(147) (1985) 158 CLR 500 at 516.
(148) [1920] AC 581 at 604.
(149) [1971]1 Ch 680 at 689.
(150) See Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
(151) [1990]1 WLR 1156; [1990]3 All ER 161.
(152) Derby & Co Ltd v Weldon [No 7J [1990] I WLR 1156 at 1173; [1990] 3 All ER
161 at 177.188 CLR 501] OF AUSTRALIA 535
A decision directly in point is that of Dohm J in Re Milner (153) HCOF A
where a claim of solicitor-client privilege was met by an allegation of 1996-1997
fraud. Dohm J asked whether there was a prima facie case of fraud on
COMMIS
the material before the Court and held that there was, by reason of an SIONER OF
affidavit sworn by a taxation officer setting out particulars which AUSTRALIAN
FEDERAL
indicated fraudulent preferences. His Lordship concluded (154): POLICE
V
"These sworn facts and the inferences go beyond mere conjecture PROPENO
and give credence to the sworn allegation of fraudulent miscon FINANCE
PTyLID
duct.' ,
GaudronJ
Orders proposed
Because of the view I have taken of the question of legal
professional privilege and copy documents I would allow the appeal to
the extent that the order made by the Full Court directs that' 'there be
a fresh hearing on the appellants' claims for privilege". I would
confine the claims of privilege for copy documents in the manner
suggested by Lindgren J. I would dismiss the respondents' cross
appeal.
GAUDRON J. The questions which fall for decision in this appeal
arise out of the execution of search warrants issued pursuant to s 10 of
the Crimes Act 1914 (Cth) (155). The warrants were issued by
Ms Wendy Elder JP, on an information sworn by the second appellant,
Detective Sergeant Alan Taciak, a member of the Australian Federal
Police. The warrants authorised named police officers to search
various residential and office premises occupied by the respondents.
One warrant authorised the search of office premises occupied by
Mr Michael Dunkel, the ninth respondent. Mr Dunkel is a solicitor. He
was retained by the other eight respondents with respect to certain
taxation matters relating to their membership of or association with a
partnership which carried on business under the name Best & Less (the
Best & Less Partnership).
The information sworn by Detective Sergeant Taciak revealed that it
was suspected that some or all of the respondents, including
(153) (1968) 70 DLR (2d) 429.
(154) Re Milner (1968) 70 DLR (2d) 429 at 432.
(155) At the time the warrants were issued s 10(1) relevantly provided that:a
Magistrate or Justice of the Peace is satisfied by information on oath that there is
reasonable ground for suspecting that there is in or upon any premises :..
(b) anything as to which there are reasonable grounds for believing that it will
afford evidence as to the commission of [an] ... offence [against any law of the
Commonwealth or of a Territory]; ... the Magistrate or Justice of the Peace may
grant a search warrant authorising any constable named in the warrant, with such
assistance, and by such force, as is necessary and reasonable, to enter at any time
the premises ... named or described in the warrant, and to seize any such thing
which he or she might find there."536 HIGH COURT [1996-1997
HCOFA Mr Dunkel, were implicated in offences against ss 86(1)(e) and 86A of
1996-1997 the Crimes Act (156) and, also, in offences against the Crimes
COMMIS (Taxation Offences) Act 1980 (Cth). So far as concerns offences
SIONER OF against the Crimes Act, it was revealed in the information that it was
AUSTRALIAN suspected that companies in the Best & Less Partnership had claimed
FEDERAL
POLICE deductions for garment testing carried out overseas but that the testing
V was carried out for much less than the remitted amount, the difference
PROPEND finding its way to various intermediary companies and, ultimately,
FINANCE
PrvLm being lent back to the companies in the Best & Less Partnership. It
was also revealed that it was suspected that Mr Dunkel was associated
GaudroJ with the intermediary companies and that some of the money came
back pursuant to a loan agreement executed by him.
So far as concerns offences against the Crimes (Taxation Offences)
Act, the information revealed that various persons had entered into an
arrangement to sell the business of the Best & Less Partnership in
circumstances resulting in the payment of all secured and unsecured
creditors except the Commissioner of Taxation. It was suspected that
this had been done contrary to ss 5(1) and 13 of that Act (157).
Members of the Australian Federal Police seized documents from
various premises occupied by the respondents, including office
premises occupied by Mr Dunkel. The warrant authorising the search
of his premises required the persons to whom the warrant was issued
to proceed in accordance with guidelines agreed between the
Commissioner of the Australian Federal Police and the Law Council of
Australia fol1owing the decision of this Court in Baker v Camp
bell (158) that s 10 of the Crimes Act does not authorise the seizure of
documents to which legal professional privilege attaches (the
guidelines). The guidelines set down procedures for the execution of
search warrants on the premises of lawyers and are designed to
preserve legal professional privilege and to provide for the return of
seized documents if and when the privilege is established (159).
(156) Both provisions related to conspiracies to defraud the Commonwealth or a public
authority under the Commonwealth.
(157) Section 5(1) provides that: "Whea person enters into an arrangement or
transaction for the purpose, or for purposes which include the purpose, of
securing, either generally or for a limited period, that a company or trustee
(whether or not a party the arrangement or transaction) will be unable, or will
be likely to be unable, having regard to other debts of the company or trustee, to
pay sales tax payable by the company or trustee, the person is guilty of an
offence."In effect, s 13 allows various provisions of the Crimes (Taxation
Offences) Act, including s 5(1), to have application as if references, in those
provisions, to sales tax and terms related to sales tax were references to income
tax and related terms.
(158) (1983) 153 CLR 52.
(159) In summary, the guidelines ensure that, where the lawyer agrees to assist the
police in their search, no documents identified as potentially within the warrant
will be inspected before an opportunity is given to the lawyer to make a claim of
legal professional privilege. If a claim of privilege is maintained, the documents
subject to the claim may not be inspected by the police until such time as the188 CLR 501] OF AUSTRALIA 537
Mr Dunkel claimed legal professional privilege on behalf of his clients HCOFA
1996-1997
and, in accordance with the guidelines, the documents seized from him
were placed in a sealed envelope pending a decision on the claim. COMMIS
Shortly after the execution of the warrants, the respondents SIONER OF
AUSTRALIAN
commenced proceedings in the Federal Court of Australia against the FEDERAL
Commissioner of the Australian Federal Police, the second appellant, POLICE
V
Detective Sergeant Taciak, and the issuing justice, Ms Wendy PROPEND
Elder JP, seeking orders for review under the Administrative Decisions FINANCE
(Judicial Review) Act 1977 (Cth) and, also, under s 39B of the PTYLTD
Judiciary Act 1903 (Cth) (160). The application sought review of
various decisions and of the conduct of the police officers involved in GaudronJ
the execution of the warrants. So far as concerns the conduct of those
police officers, review was sought on the ground, amongst others, that
"[d]ocuments were seized to which legal professional privilege
attaches" (161). The only issue in this appeal is whether that ground
has been established.
As already indicated, s 10 of the Crimes Act does not authorise the
seizure of documents to which legal professional privilege at
taches (162). However, the guidelines proceed on the basis that, as
with the warrant authorising search of Mr Dunkel's premises, warrants
will issue in terms which encompass privileged documents. That that
was so in the case of the warrant with respect to Mr Dunkel's premises
clearly appears from its requirement that it be executed in accordance
with the guidelines. Accordingly, it may be that it would have been
more appropriate for the respondents to seek review of the decision to
issue that warrant on the ground that it purported to authorise the
seizure of privileged documents (163). However, no point has been
taken as to the nature of the review sought. And no point has been
taken that, contrary to their objective, the guidelines do not preserve
legal professional privilege (164). Rather, the proceedings have been
(159) cont
claim is abandoned, waived or dismissed by a court. For the text of the guidelines,
see Australian Law News, vol 12 (1986), pp 21-24. See also Propend Finance Pty
Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 245-248.
(160) Sub-section (I) of that section provides that: "The original jurisdiction of the
Federal Court of Australia includes jurisdiction with respect to any matter in
which a writ of mandamus or prohibition or an injunction is sought against an
officer or officers of the Commonwealth."
(161) Propend Finance Ply Ltd v Commissioner, Australian Federal Police [N2J
(1994) 35 ALD 25 at 27.
(162) Baker v Campbell (1983) 153 CLR 52.
(163) More accurately, on the ground that, to that extent, it was not authorised by law:
s 5(1)(d) of the Administrative Decisions Judicial Review Act 1977 (Cth).
(164) As to the loss of privilege when documents pass into the possession of another,
see Baker v Campbell (1983) 153 CLR 52 at 67-68, per Gibbs CJ; at 80, per
Mason J; at 109-110, per Brennan J; at 112, per Deane J; at 129, per Dawson J
and the cases there cited. And see, as to the circumstances in which equity will
require third parties to observe confidentiality, Johns v Australian Securities
Commission (1993) 178 CLR 408 at 459-463, per Gaudron J.538 HIGH COURT [1996-1997
HCOFA conducted on the footing that, if legal professional privilege attached
1996-1997 to the documents which were in Mr Dunkel's possession until seized
COMMIS pursuant to the search warrant, the respondents are entitled to succeed
SIONEROF in their application and to have the documents returned.
AUSTRALIAN The respondents' application for review was heard by Davies J. It
FEDERAL
POLICE emerged at the hearing that the documents seized from Mr Dunkel
V included copies of documents, the originals of which, it is conceded,
PROPEND are not privileged. There was evidence that certain of the documents in
FINANCE
PrvLm question were copied and given to Mr Dunkel by one or more of the
other respondents, either solely for the purpose of obtaining legal
GaudronJ
advice in connection with their liability to pay tax or solely for use in
anticipated litigation relating to that matter. Others were copy
documents included in one or more briefs to counsel to advise, the
copies apparently having been made by Mr Dunkel or members of his
firm solely for the purpose of obtaining counsel's advice. There was
nothing to suggest that any of the copy documents bear markings or
writing which distinguish them in any way from the originals.
In the hearing before Davies J, the respondents claimed that legal
professional privilege attaches to copy documents in the possession of
a solicitor if the copies are made solely for the purpose of obtaining
legal advice or solely for use in legal proceedings. On the other hand,
the appellants claimed that the privilege does not attach to copy
documents the originals of which are not, themselves, privileged. The
appellants also claimed that the information sworn in support of the
warrants contained material which pointed to certain original
documents having been brought into existence for or used in the
furtherance of the illegal activities alleged in that information. They
argued that copies of those documents were or were to be treated as
infected with that illegality and, thus, that, quite apart from their status
as copies, no privilege attaches to them.
On the question whether privilege attaches to copy documents,
Davies·J expressed his agreement with the view adopted by Wood J in
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (165). It was
held in that case that privilege does not attach to a copy document
unless "it involves a selective copying or results from research, or the
exercise of skill and knowledge on the part of [the] solicitor" (166).
On the question of illegality, Davies J held that, so far as it concerned
offences under the Crimes (Taxation Offences) Act, the information
did not reveal material sufficient to displace the claim of privilege but
that, so far as it concerned offences under the Crimes Act, it did
(165) (1985) 3 NSWLR 44.
(166) Nickmar Pry Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
at 61-62, referring to Lyell v Kennedy (1884) 27 Ch D I. 188 CLR 501] OF AUSTRALIA 539
constitute "sufficient prima facie evidence ... to overcome, in the H COF A
public interest, the claim of legal professional privilege" (167). 1996-1997
The orders made by Davies J included orders declaring that, by COMMIS
reason of the allegation of offences under the Crimes Act, certain SIONER OF
specified documents were not privileged (Order 5) and directing that AUSTRALIAN
FEDERAL
the question whether privilege attached to the other documents should POLICE
be determined after the documents were examined (Order 4). There V
PROPEND
was also an order declaring that "copies of documents [examples of FINANCE
which were specified] made for the purpose of obtaining legal advice, PTYLTD
the originals of which are not subject to legal professional privilege are
GaudroJ
not privileged" (Order 6). There were further orders directing that the
documents to which legal professional privilege did not attach be
released to the Australian Federal Police (Order 8) and granting a stay
of that order in the event of an appeal being lodged and prosecuted
expeditiously (Order 9). It is not clear that the declaration in Order 6 is
entirely consistent with the direction in Order 4 that questions of
privilege be determined after examination of the documents.
On appeal, the Full Court of the Federal Court (Beaumont, Hill and
Lindgren 11) set aside the declaration that, by reason of the allegations
of offences under the Crimes Act, privilege did not attach to the
documents specified in Order 5 of the orders made by Davies J. On
that issue, the Full Court held that, as Detective Sergeant Taciak had
not been called as a witness, the matters alleged in the information
were hearsay and, thus, there was no basis for any finding of illegality.
It was ordered that there should be a fresh hearing of the issue.
The members of the Full Court differed in their views with respect
to the question whether privilege attaches to a copy of a document
which, itself, is not privileged. Beaumont J was of the view that a copy
of what is otherwise an unprivileged document is privileged if "in the
particular circumstances in which the copy document came into
existence, [it] should ... be treated as, in truth, part of the substantive
process of the seeking or the obtaining of legal advice or of preparing
for litigation" (168). Hill J considered that privilege attaches if but
only if "the copies are made for the sole purpose of obtaining advice
upon matters contained in or concerning the original and in
circumstances where to compel production of the copy would or could
operate to reveal the subject matter upon which advice was
sought" (169). Finally, Lindgren J adopted an approach similar to that
taken by Davies J at first instance and held that privilege does not
attach unless "inspection would reveal more than merely the content
(167) Propend Finance Pty Ltd v Commissioner, Australian Federal Police [21
(1994) 35 ALD 25 at 44.
(168) Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 238.
(169) Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 259.540 HIGH COURT [1996-1997
HCOFA of the copy document" (170). His Honour instanced cases in which a
1996-1997
copy document would reveal a line of thinking, or is marked in a way
COMMIS that would reveal a line of thinking or is inextricably mixed with
SIONER OF privileged original material. However, his Honour would have varied
AUSTRALIAN the declaration in Order 6 of the orders made by Davies J to make it
FEOERAL
POLICE clear that privilege does not attach to copy documents simply because
V they have been brought into existence for the sole purpose of obtaining
PROPEND legal advice.
FINANCE
PTYLTD In this Court, the appellants seek restoration of the orders made at
first instance by Davies J. They argue, as they have at all stages of the
GaudronJ
proceedings, that legal professional privilege does not attach to a copy
document if the original is not, itself, privileged. Alternatively, they
argue that the tests propounded by Beaumont and Hill 11 in the Full
Court are wrong. As well, they argue that the information sworn by
Detective Sergeant Taciak provides a proper basis for holding that
legal professional privilege does not attach to the documents specified
in Order 5 of the orders made by Davies J. On the other hand, the
respondents, who also cross-appeal, argue that the copy of a document
is privileged, even if the original is not, provided that it was brought
into existence for the sole purpose of obtaining legal advice. They also
argue that the Full Court should, itself, have finally determined the
question of illegality and should not have ordered a further hearing on
that issue.
The decision in Baker v Campbell (171) which, as already
mentioned, holds that s 10 of the Crimes Act does not authorise the
seizure from a solicitor of documents which are the subject of legal
professional privilege rests on the proposition that legal professional
privilege is not merely a rule of evidence applicable in judicial and
quasi-judicial proceedings, but is a basic doctrine of the common
law (172). And, being a basic doctrine of the common law, it is not
abrogated by statute unless there is a clear indication that that was
intended (173). The privilege has been described as "a substantive
general principle" and as "a practical guarantee of fundamental
rights" (174). And in Goldberg v Ng, Gummow J cautioned against
(170) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 266.
(171) (1983) 153 CLR 52.
(172) Baker v Campbell (1983) 153 CLR 52 at 88-89, per Murphy J; at 94, per
Wilson J; at 116-117, per Deane J; at 127-128, per Dawson J.
(173) Baker v Campbell (1983) 153 CLR 52 at 123, per Dawson J and the cases there
referred to.
(174) Goldberg v Ng (1995) 185 CLR 83 at 93, per Deane, Dawson and Gaudron JJ, and
at 121, per Gummow J, respectively. For similar descriptions, see also: Attorney
General (NT) v Maurice (1986) 161 CLR 475 at 480, per Gibbs CJ (a
"fundamental or essential" rule); at 491, per DJ(a fundamental principle of
our judicial system"); Carter v Northmore HaLe Davy & Leake (1995) 183 CLR
121 at 132, per DeanJ (a substantive and fundamental common law principle");
at 145, per TooheyJ(as being of "fundamental importance to the protection and 188 CLR 501] OF AUSTRALIA 541
reliance on certain English decisions which appear to treat the HCOFA
1996-1997
privilege as no more than a rule of evidence (175).
The decisions with respect to the status of copy documents are not COMMIS
uniform in their approach, perhaps because they consist mainly of first SIONEOF
instance rulings on evidence or first instance decisions on applications AUSTRALIAN
FEDERAL
for discovery. The clearest judicial statement in support of the primary POLICE
proposition advanced by the appellants is to be found in Buttes Gas & v
Oil Co v Hammer [No 3 J(176). In that case Lord Denning MR PROPEND
FINANCE
expressed the view, obiter, that "if the original is not privileged, PTYLTD
neither is a copy made by the solicitor privileged". His Lordship
GaudronJ
explained that that was for the "simple reason, that the original (not
being privileged) can be brought into court under a subpoena duces
tecum and put in evidence at the trial", adding that "[b]y making the
copy discoverable, we only give accelerated production to the
document itself" (177).
There are earlier decisions with statements to the same effect or
statements which have been treated as being to the same effect as that
of Lord Denning MR in Buttes Gas & Oil Co. Thus, for example, in
Chadwick v Bowman (178) Denman J said of the copy documents in
issue in that case that "[t]he originals ... would have been admissible
in evidence against the defendant, and it seems to me that there is
nothing in the circumstances under which the copies came into
existence to render them privileged against inspection". Similarly, it
was said by Madden CJ in Shaw v David Syme & Co (179) that "it
seems to be definitely established by Chadwick v Bowman and Lyell v
Kennedy that if an original is not privileged a copy can be in no better
position". Lyell v Kennedy (180) was concerned with copies made by
a solicitor and it seems reasonably clear, as Madden CJ observed in
Shaw v David Syme & Co, that discovery would have been granted
"had that been all there was to be said about the matter, that they were
copies" (181). In fact, the copies had been made selectively and it was
held that they were privileged.
The approach of Lord Denning MR in Buttes Gas & Oil Co has
(174) cont
preservationf the rights, dignity and equality of the ordinary citizen under the
law"); at 161, per McHugh J ("a substantive rule of law ... [best explained as] 'a
practical guarantee of fundamental, constitutional or human rights" ').
(175) Go/dberg v Ng (1995) 185 CLR 83 at 121.
(176) [1981] QB 223.
(177) Buttes Gas & Oil CO [1981J QB 223 at 244, referring to the Report of the
Committee on Persona/Injuries Litigation (1968) [369IJ, par 304.
(178) (1886) 16 QBD 561 at 562. Note, however, that, as Mathew J pointed out
(at 562), the documents did not come"into existence for the purposes of the
action". .
(179) [1912J VLR 336 at 341.
(180) (1884)27 Ch D I.
(181) Shaw v David Syme & CO[1912J VLR 336 at 341.542 HIGH COURT [1996-1997
HCOF A been applied in subsequent cases in England (182) and in this
1996-1997 country (183), but not unifonnly (184). The approach has been treated
COMMIS as one dictated by logic and common sense (185). Thus, it was said by
SIONEROF Debelle J in J N Taylor Holdings Ltd v Bond (186) that "[g]enerally
AUSTRALIAN
FEDERAL speaking, it would be absurd for the copy to be privileged while the
POLICE original was not". The qualification in that statement stems from
V Debelle 1's acknowledgment of an exception along the lines
PROPEND
FINANCE recognised in Lyell v Kennedy (187), though the exception is
PTyLTD circumscribed more narrowly by his Honour than was done in Nickmar
Pty Ltd (188). The acknowledgment of exceptions has resulted in a
GaudronJ
tendency, in more recent cases, to state the position with respect to
copy documents in tenns which indicate that privilege does not attach
simply because the copies were made solely for the purpose of
obtaining legal advice or solely for use in litigation.
There are several problems with the approach of Lord Denning MR
in Buttes Gas & Oil Co. First, his Lordship's remarks clearly treat
legal professional privilege as a rule of evidence and not as a
substantive legal principle which protects against compulsory disclos
ure. In this regard, it should be noted that it was not until the decision
of Baker v Campbell, in 1983, that it was recognised by this Court that
legal professional privilege is a substantive legal principle. More
recently, the House of Lords has also recognised that the privilege is
"much more than an ordinary rule of evidence, limited in its
application to the facts of a particular case" (189). Decisions and
judicial statements with respect to copy documents made when the
privilege was seen as merely a rule of evidence, as, for example, in
Shaw v David Syme & Co, are not, in my view, a sure guide to the
(182) See, eg, Dubai Bank Ltd v Galadari [1990] Ch 98; Ventouris v Mountain [1991]
I WLR 607; [1991] 3 All ER 472; Lubrizol Corporation v Esso Petroleum Co Ltd
[1992] I WLR 957.
(183) See, eg, Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652; Nickmar
Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44; Roux v
Australian Broadcastinl: Commission [1992] 2 VR 577; Bayliss v Cassidy [1995]
2 Qd R 464.
(184) See, eg, McCaskill v Mirror Newspapers Ltd [1984] I NSWLR 66; R v Board of
Inland Revenue; Ex parte GoldberR [1989] QB 267; Davis v Lambert-Bain Pty
Ltd [1989] Tas R 274.
(185) See, eg, McNicol, Law of PrivileRe (1992), pp 94-97; LigeI1wood, Australian
Evidence, 2nd ed (1993), p 218; Cross on Evidence, 5th Aust ed (1996), p 710.
(186) (1991) 57 SASR 21 at 34. (Upheld on appeal: Bond v J N Taylor Holdings Ltd
(1992) 57 SASR 38.) See also Vardas v South British Insurance Co Ltd [1984]
2 NSWLR 652 at 660; Water Authority (WA) v AIL Holdings Pty Ltd (1991)
7 WAR 135 at 138; Roux v Australian BroadcastinR Commission [1992] 2 VR
577 at 598-599.
(187) (1884) 27 Ch D I at 26, per Collon LJ; at 31, per Bowen LJ.
(188) (1985) 3 NSWLR 44 at 61-62. See also Vardas v South British Insurance Co Ltd
[1984] 2 NSWLR 652 at 660; Water Authority (WA) v AIL Holdings Pty Ltd
(1991) 7 WAR 135 at 139.
(189) R v Derby MaRistrates' Court; Ex parte B [1996] I AC 487 at 507.188 CLR SOl] OF AUSTRALIA 543
approach properly to be adopted once the privilege is recognised as a HCOF A
1996-1997
substantive legal principle.
Another difficulty with the view that privilege does not attach to a COMMIS
SIONER OF
copy document unless the original is also privileged is that it cuts AUSTRALIAN
across the purpose which the privilege serves. That purpose was FEDERAL
described by Gibbs CJ in Baker v Campbell in these terms (190): POLICE
V
"It is necessary for the proper conduct of litigation that the litigants PROPEND
should be represented by qualified and experienced lawyers rather PTyLTDE
than that they should appear for themselves, and it is equally
necessary that a lawyer should be placed in full possession of the GaudronJ
facts to enable him to give proper advice and representation to his
client. The privilege is granted to ensure that the client can consult
his lawyer with freedom and candour, it being thought that if the
privilege did not exist 'a man would not venture to consult any
skilful person, or would only dare to tell his counsellor half his
case'."
It cannot be doubted that the prospect of search warrants being
executed in solicitors' offices with a view to obtaining copies of a
client's documents is a substantial disincentive to persons who might
otherwise wish to put all the facts before a lawyer and, thus, also as an
impediment to the provision of proper advice and effective represen
tation.
There is a third and greater difficulty with the view that privilege
does not attach to a copy document unless the original is also
privileged, namely, that it pays insufficient regard to the consideration
that legal professional privilege does not protect documents, as such,
but protects communications between lawyer and client (191). In
Carter v Northmore Hale Davy & Leake (192), Deane J spoke in terms
of a "privileged communication or document". However, a document
which is brought into existence solely for the purpose of obtaining
legal advice or solely for use in litigation and which is then provided
to a lawyer for that purpose is, itself, a communication with the lawyer
and, in accordance with the decision of this Court in Grant v
Downs (193), a privileged communication. Equally, a copy of a
document made solely for the purpose of obtaining legal advice or
solely for use in legal proceedings is, when provided to a lawyer for
that purpose, a communication to the lawyer. Save that it is likely to
(190) Baker v Campbell (1983) 153 CLR 52 at 66, quoting Greenough v Gaskell (1833)
I My & K 98 at 103 [39 ER 618 at 621]. See also Grant v Downs (1976) 135
CLR 674 at 685; R v Bell; Ex parte Lees (1980) 146 CLR 141 at 152, 161; Baker
v Campbell (1983) 153 CLR 52 at 74, 89, 93, 105-106, 114, 128; Attorney
General (NT) v Maurice (1986) 161 CLR 475 at 480, 487, 490; Carter v
Northmore Hale Davy & Leake (1995) 183 CLR 121 at 126-128, 132, 144-147.
(19I)See Grant v Downs (1976) 135 CLR 674 at 690, per Jacobs J.
(192) (1995) 183 CLR 121 at 139; see also at 131, 133-138, 140-141.
(193) (1976) 135 CLR 674 at 688, 690.544 HIGH COURT [1996-1997
HCOFA be more accurate, the provision of a copy document in those
1996-1997
circumstances is no different from the oral communication, in the
COMMIS same circumstances, of the material contained in the original
SiONER OF document. And the latter is unequivocally a privileged communication.
AUSTRALIAN The consideration that the provision to a lawyer of a copy document
FEDERAL
POLICE is, itself, a communication different only in form from the oral
V communication of the contents of the original document leads me to
PROP£ND conclude that privilege attaches to a copy document which is provided
Pry LTD
to a lawyer if the copy was made solely for the purpose of obtaining
legal advice or solely for use in legal proceedings.
GaudrunJ It does not seem to me absurd or contrary to common sense for
privilege to attachto copy documents provided to a lawyer and made
solely for the purpose of obtaining legal advice or solely for use in
legal proceedings. If the original is not privileged, it is susceptible to
whatever compulsory processes are available to secure its production;
and the fact that it may be easierto obtain a copy from a solicitor than
it is to obtain the original by compulsory process is no reason to cut
down or abrogate legal principle, especially one of such fundamental
importance to the administration of justice as legal professional
privilege. Indeed, if it were held that privilege does not attach to a
copy document made solely for the purpose of obtaining legal advice
or solely for use in legal proceedings and provided to a lawyer for that
purpose, it might well encourage less than thorough investigative
methods on the part of law enforcement agencies, with the obvious
risks that that entails for the administration of justice.
Although no separate argument was addressed to them, it is
necessary to say something of the copy documents included in
counsel's brief to advise. There is no basis for treating documents
provided by a solicitor to counsel for advice or for inclusion in his or
her brief on hearing any differently from documents provided by a
country solicitor to his or her town agent. The latter have long been
accepted as being within the scope of legal professional privi
lege (194). Both are properly to be viewed as communications on
behalfof the client (195).
Once it is accepted that communications by a solicitor with his or
her agent and with counsel are communications on behalf of the client,
it follows that communications with those persons by means of copy
documents are in no different position from communications by a
client with his or her lawyer by the same means. And, of course, the
same is true of communications by means of copy documents by a
lawyer with his or her clients. It follows that a copy document which
has been brought into existence by a lawyer solely for the purpose of
obtaining counsel's advice, solely for inclusion in his or her brief on
(\94) See Hughes v Biddulph (\827) 4 Russ 190 [38 ER 777].
(195) See also Hobbs v Hobbs and Cousens [19601 P 112. 545
188 CLR 501] OF AUSTRALIA
hearing or solely for the purpose of advising his or her client is the H COFA
subject of legal professional privilege. 1996-1997
It remains to consider whether, by reason of illegality, privilege has COMMIS
been "displaced" in relation to the documents specified in Order 5 of SIONER OF
the orders made by Davies J. In this regard, it is to be noted that the AUSTRALIAN
FEDERAL
material and the argument in this Court clearly indicate that that POLICE
question is raised with respect to copy documents, not originals. Thus, V
it was said in reply by counsel for the appellants that his argument was PROPEND
FINANCE
that "the copies do not have any greater privilege than the originals PrYLm
and if we are right that they were transactional type documents made
in furtherance of [the] conspiracy ... they are not privileged". Gaudron 1
It is to be noted that it was not put that the copy documents in
question were provided by the other respondents to Mr Dunkel or by
Mr Dunkel to counsel in furtherance of the fraud alleged in the
information. If either were the case, no privilege would attach (196).
Nor was it put that they were provided to or by Mr Dunkel "for the
purpose of frustrating the processes of the law itself", a situation
which Gibbs CJ said was outside legal professional privilege in
Attorney-General (NT) v Kearney (197) "even though no crime or
fraud is contemplated". Rather, as already indicated, all that was put
was that the originals were the means by which a fraud was effected
and that the copies were infected with that same illegality.
Communications made in furtherance of future wrongdoing fall
outside legal professional privilege, although there is no particularly
precise statement as to the nature of the wrongdoing that produces that
result (198). However, legal professional privilege clearly extends to
the situation in which a person seeks advice with respect to past
misdeeds. And, once that is accepted, it follows that copy documents
which relate to those misdeeds are in no different position from other
copy documents provided to a lawyer for the purpose of obtaining
legal advice or for use in legal proceedings. Thus, they are privileged
if they were made solely for one or other of those purposes.
As there is evidence that the copy documents referred to in Order 5
of the orders made by Davies J were made solely for the purpose of
obtaining legal advice or solely for use in legal proceedings and no
suggestion has been made that they were provided to or by Mr Dunkel
for any other purpose, they are to be treated in precisely the same way
as the copy documents to which Order 4 relates. And that being so,
there is no necessity for that issue to be remitted for further hearing.
It is not strictly necessary to say anything of the argument with
(196) See, generally, Attorney-General (NT) v Kearney (1985) 158 CLR 5()().
(197) (1985) 158 CLR 500 at SIS. See also R v Bell; Ex parte Lees (1980) 146 CLR
141.
(198) As to the differentformulations of the nature of the wrongdoing which
"displaces" legal professional privilege, see Attorney-General (NT) v Kearney
(1985) 158 CLR 500 at 528-529, per Dawson J, and the cases there cited.546 HIGH COURT [1996-1997
HCOFA respect to the nature of the evidence required to "displace" legal
1996-1997
professional privilege. However, the matter was fully argued and it is
COMMIS appropriate to make some short observations on the subject. Because
SIONEROF legal professional privilege attaches to communications contained in
AUSTRALIAN
FEDERAL documents (including copy documents) brought into existence and
POLICE provided to a lawyer solely for the purpose of obtaining legal advice or
V
PRoPEND solely for use in legal proceedings, the privilege does not attach to
FINANCE documents which are brought into existence or which are provided to a
1'TLTD lawyer for the purpose of furthering some illegal object. Thus, as
McHugh J pointed out in Carter v Northmore Hale Davy & Leake, the
GaudronJ so-called "exceptions" to legal professional privilege, namely,
communications to further illegal purposes, communications made for
the purpose of frustrating the processes of the law and communications
made to further an abuse of public power "are in truth not exceptions
at all" (199). Rather, legal professional privilege never attaches to
them. This has some significance in relation to the nature of the
evidence necessary to raise a question of illegality.
If illegality were a true exception to legal professional privilege, it
would be arguable that the person challenging the existence of the
privilege should establish that the communication in question was
made in furtherance of some illegal purpose (200). However, it is not a
true exception and, thus, it is not necessary that illegality be
established positively. On the other hand, a mere allegation of illegal
purpose is not, itself, sufficient. There must be "not merely an
allegation ... of a fraud, but ... something to give colour to the
charge" (201), "some prima facie evidence that it has some
foundation in fact" (202). The reason for this is obvious. Persons are
presumed innocent, not guilty. And, thus, there must be evidence to
raise a sufficient doubt as to a claim of privilege to cast a further
evidentiary onus on the person making the claim to show that, in truth,
the privilege attaches.
Inevitably, what will be sufficient to cast a further evidentiary
burden on a person claiming legal professional privilege will vary
according to the facts of each case. However, the presumption of
innocence is not lightly displaced. Thus, for example, it was said by
Lord Wrenbury in O'Rourke v Darbishire, a case involving an
allegation of fraud, that there must be material which shows "good
ground for saying that prima facie a state of things exists which, if not
displaced at the trial, will support a charge of fraud" (203). Similarly,
(199) Carter (1995) 183 CLR 121 at 163.
(200)As to the onus of proving matters which except a situation from the general rule,
see, generally, ChuvPacific Dunlop Ltd (1990) 170 CLR 249.
(201) O'Rourkev Darbishire [19201 AC 581 at 604, per Viscount Finlay, cited with
approval in Attorney-General (Nv)Kearney (1985) 158 CLR 500 at 516, per
Gibbs CJ.
(202) O'Rourke v Darbishire [19201 AC 581 at 604.
(203) O'RourkevDarbishire [1920] AC 581 at 633.188 CLR 501] OF AUSTRALIA 547
in Buttes Gas & Oil Co, Lord Denning MR said that it was necessary HCOFA
for there to be "strong evidence" (204). 1996-1997
Bearing in mind the purpose served by legal professional privilege '-'"'
COMMIS
and the importance of the presumption of innocence, a further SiONER OF
evidentiary burden is, in my view, cast upon a person claiming legal AUSTRALIAN
professional privilege only if there is evidence which, if accepted, FEDERAL
POLICE
raises a prima facie case of illegal or other purpose falling outside the v
privilege. Evidence of that nature need not be led by the person FINANCE
resisting the claim of privilege. It might emerge, for example, from PTYLTD
documents for which the claim is made.
If a person wishes to resist a claim of privilege and to lead evidence McHughJ
of an illegal or other purpose inconsistent with its existence, that
evidence must be in admissible form. Ordinarily, that will exclude
hearsay. But if, as here, hearsay evidence is properly admitted on some
other issue, ordinary considerations of fairness require that the person
claiming privilege be given an opportunity to test that evidence by
cross-examination. Thus, in the present case, if the allegation of
illegality founded on the information sworn by Detective Sergeant
Taciak had any bearing on the question whether privilege attached to
the copy documents seized from Mr Dunkel, ordinary considerations
of fairness would require that, notwithstanding that the information
was in evidence for other purposes, it should not be relied upon in
opposition to the claim of privilege without Detective Sergeant
Taciak's being available for cross-examination.
The appeal should be dismissed and the cross-appeal allowed.
Order 3 of the orders made by the Full Court should be varied by
deleting the words "and that ... for privilege". In lieu of those words
it should (a) be declared that legal professional privilege attaches to
copy documents in the possession of a lawyer if the copies were made
solely for the purpose of obtaining or giving legal advice or solely for
use in legal proceedings and (b) be ordered that the matter be remitted
to a single judge for determination of the application in accordance
with that declaration and for determination of the question of costs
reserved by Davies 1. The respondents should have their costs in this
Court.
McHUGH J. This appeal from a decision of the Full Court of the
Federal Court of Australia raises two questions of law: (l) whether
legal professional privilege can apply to a copy document where no
privilege attaches to the original; and (2) whether hearsay material
may be relied upon to displace legal professional privilege where the
privilege is claimed for a document alleged to have been made in
furtherance of an illegal or improper purpose.
I would answer the first question: yes, and the second question: no.
(204) Buttes Gas & Oil Co [1981] QB 223 at 246.548 HIGH COURT [1996-1997
HCOFA Nine search warrants were issued
1996-1997
Suspecting that the respondents were guilty of tax evasion, the
COMMIS Australian Federal Police (the AFP) applied to a justice of the peace
SIONER OF for the issue of warrants to search residential and office premises
AUSTRALIAN
FEDERAL connected with the respondents. Among those premises was the office
POLICE of the ninth respondent, a solicitor. Pursuant to s 10 of the Crimes Act
v 1914 (Cth) (205), the justice issued nine warrants. They were identical
PROPEND
FINANCE in terms, apart from the warrant that authorised the search of the
PTYLTD solicitor's office. The justice directed that that warrant be executed in
McHughJ accordance with the "General Guidelines between the Australian
Federal Police and the Law Council of Australia as to the execution of
search warrants on lawyers' premises", a copy of which was attached
to the warrant (206).
In issuing the warrants, the justice acted on an information sworn by
a member of the AFP. In the information, the officer alleged that there
were reasonable grounds for suspecting that upon the various premises
were documents that would provide evidence of offences against the
Crimes Act and the Crimes (Taxation Offences) Act 1980 (Cth). He
swore that companies in a partnership known as the Best & Less group
had claimed inflated income tax deductions for the expense of garment
testing; the testing had been performed for the group by an overseas
organisation for fees substantially less than the deductions claimed.
The officer alleged that only part of the moneys "paid" to this
organisation for garment testing went to the organisation. The rest of
the money remitted went to other corporations which lent the money to
Australian entities which included Propend Finance Pty Ltd (Propend),
the first respondent. In addition, the informant alleged that the ninth
respondent, Mr Dunkel, a solicitor, was suspected of being involved in
this scheme.
When Mr Dunkel's premises were searched, he claimed legal
professional privilege for some documents seized by the AFP. As a
(205) At the time s ID(I) of the Crimes Act relevantly provided: "If a Magistrate or
Justice of the Peace is satisfied by information on oath that there is reasonable
ground for suspecting that there is in or upon any premises, aircraft, vehicle.
vessel or place: (a) anything with respect to which any offence against any law of
the Commonwealth or of a Territory has been, or is suspected on reasonable
grounds to have been, committed; (b) anything to which there are reasonable
grounds for believing that it will afford evidence as to the commission of any such
offence; or (c) anything as to which there is reasonable ground for believing that it
is intended to be used for the purposeommitting any such offence; or that any
such thing may, within the next following 72 hours, be brought into or upon the
premises, aircraft, vehicle, vessel or place, the Magistrate or Justiceace
may grant a search warrant authorising any constable named in the warrant, with
such assistance, and by such force, as is necessary and reasonable, to enter at any
time the premises, aircraft, vehicle, vessel or place named or described in the
warrant, and to seize any such thing which he or she might find there."
(206) The Guidelineareset out in the judgment of Beaumont J in Propend Finance Pry
Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 245-248.188 CLR 501] OF AUSTRALIA 549
result, the AFP officers who executed the warrants lodged those 1996-1997
documents with the issuing justice and, upon commencement of
proceedings in the Federal Court, with the Registry of that Court. The COMMIS
SIONER OF
AFP officers also gave undertakings not to inspect the seized AUSTRALIAN
documents until the courts resolved the privilege claim. In lodging the FEDERAL
documents and giving the undertakings, the AFP officers were POLICE
v
complying with the practice set out in the Guidelines. PROPEND
After the warrants were executed, the respondents instituted FINANCE
proceedings in the Federal Court challenging the validity of the PlY LTD
warrants and the manner of their execution. In addition, they sought McHughJ
the return of the documents the subject of the privilege claim.
The proceedings before the Federal Court of Australia
In the Federal Court, the respondents applied for declaratory relief
under the Administrative Decisions (Judicial Review) Act 1977 (Cth)
and s 398 of the Judiciary Act 1903 (Cth) on the basis that the search
warrants were invalid. Alternatively, they sought a declaration that
some of the seized documents were protected from disclosure by legal
professional privilege.
Exhibited to one of Mr Dunkel's affidavits in support of the
proceedings was a compendious schedule entitled "Schedule of
Privileged Documents". In the affidavit, he swore that each document
for which privilege was claimed, or a copy thereof, had been brought
into existence for the sole purpose of providing legal advice or for use
in legal proceedings.
At first instance, Davies J held that, in the absence of any particular
legal expertise used in the selection of the documents to be copied,
legal professional privilege did not apply to them. His Honour also
held that the evidence before the justice of the peace constituted prima
facie evidence of fraud and prevented legal professional privilege
applying to the documents. As a result, his Honour rejected the claim
of legal professional privilege in respect of various documents (207).
The respondents then appealed to the Full Court of the Federal
Court of Australia. That Court allowed the appeal in part and ordered
that there be a fresh hearing on the respondents' claim of legal
professional privilege in respect of the documents.
On appeal to this Court, the appellants seek an order that the appeal
to the Full Court from the orders of Davies J be dismissed. In their
cross-appeal, the respondents seek to set aside the order of the Full
Court for a general hearing on the issue of privilege. They contend that
the only issue on the rehearing is, which copy documents are the
subject of legal professional privilege.
(207) Propend Finance Pry Ltd v Commissioner. Australian Federal Police [No 2/
(1994) 35 ALD 25.550 HIGH COURT [1996-1997
HCOFA Whether copies of non-privileged documents may be privileged
1996-1997
Legal professional privilege is the shorthand description for the
COMMIS doctrine that prevents the disclosure of confidential communications
SIONER OF
AUSTRALIAN between a lawyer and client, confidential communications between a
FEDERAL lawyer and third parties when they are made for the benefit of a client,
POLICE and confidential material that records the work of a lawyer carried out
V
PRoPEND for the benefit of a client unless the client has consented to the
FINANCE disclosure (208). To be protected by the privilege, a communication
Pry LTD
must be made solely for the purpose of contemplated or pending
litigation or for obtaining or giving legal advice (209). The privilege
McHughJ
does not extend to communications that are made to facilitate the
commission of crime or fraud (210), to abuse the exercise of public
power (211) or to frustrate the order of a court (212).
To many, it has seemed an illogical - even absurd - proposition
that the copy of a document can be privileged from disclosure when
the original document is not privileged (213). For this and other
reasons, many judges who have considered the question have held that
legal professional privilege cannot apply to a copy of a document
unless the original was privileged. For example, the Divisional Court
has held that, where letters have been lost or destroyed, no privilege
attaches to copies of them taken by a solicitor for use in pending
litigation (214). But other English courts have held that a copy
document may be privileged although the original was not privi
leged (215). In Australia, a similar division of judicial opinion on the
(208) Grant v Downs (1976) 135 CLR 674; Attorney-General (NT) v Kearney (1985)
158 CLR 500; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Waterford
v The Commonwealth (1987) 163 CLR 54; Carter v Northmore Hale Davy &
Leake (1995) 183 CLR 121.
(209) Grant (1976) 135 CLR 674; O'Reilly v State Bank (!f Victoria Commissioners
(1983) 153 CLR I; Carter (1995) 183 CLR 121 at 160-161.
(210) R v Cox and Railton (1884) 14 QBD 153 at 165; Bullivant v Attorney-General
(Viet) [19011 AC 196 at 201; Varawa v Howard Smith & Co Ltd (1910) 10 CLR
382 at 385, 386, 390; Carter (1995) 183 CLR 121 at IS I, 160.
(211) Attorney-General (NT) v Kearney (1985) 158 CLR 500.
(212) R v Bell; Ex parte Lees (1980) 146 CLR 141.
(213) Nickmar Ply Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
at 62; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 598;
J N Taylor Holdings Ltd v Bond (1991) 57 SASR 21 at 34; Lubrizol Corporation
v Esso Petroleum Ltd [19921 I WLR 957 at 961.
(214) Chadwick v Bowman (1886) 16 QBD 561, per Denman and Mathew 11. In recent
years the preponderance of English authority is against the existence of the
privilege in these circumstances. See, eg, R v King [1983] I WLR 411; [1983]
I All ER 929; Lambert v Home [1914] 3 KB 86; Buttes Gas & Oil Co v Hammer
[No 3] [1981] I QB 223 at 244; Dubai Bank Ltd v Galadari [1990] Ch 98;
Ventouris v Mountain [19911 I WLR 607 at 616; [1991] 3 All ER 472 at 480;
Lubrizol Corporation [1992] I WLR 957.
(215) The Palermo (1883) 9 P 6; Watson v Cammell Laird [1959] I WLR 702; [1959]
2 All ER 757; R v Board of Inland Revenue; Ex parte Goldberg [1989] QB 267;
R v Derby Magistrates' Court; Ex parte B [199AC I487.188 CLR 501] OF AUSTRALIA 551
HCOF A
question has emerged (216). However, the balance of authority in this 1996-1997
country favours the view that, if the original is not privileged, neither
is a copy, even if it was made for the sole purpose of advice or use in
COMMIS
litigation. Because the precedents and their reasoning are so SIONER OF
inconsistent, this Court can only decide the present case by reference AUSTRALIAN
FEDERAL
to the fundamental principles and the rationale behind the doctrine of POLICE
legal professional privilege. V
I'ROPEND
The rationale for legal professional privilege FINANCE
PTyLm
This Court has stated the rationale for legal professional privi
McHugh J
lege (217) in the following terms (218):
"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 represen
tation of clients by legal advisers, the law being a complex and
complicated discipline. This it does by keeping secret their
communications, thereby inducing the client to retain the solicitor
and seek his advice, and encouraging the client to make a full and
frank disclosure of the relevant circumstances to the solicitor. The
existence of the privilege reflects, to the extent to which it is
accorded, the paramountcy of this public interest over a more
general public interest, that which requires that in the interests of a
fair trial litigation should be conducted on the footing that all
relevant documentary evidence is available. As a head of privilege
(216) For cases rejecting the proposition that such copies can be privileged see, Shaw v
David Syme & Co [1912) VLR 336; Vardas v South British Insurance Co Ltd
[1984) 2 NSWLR 652; Nickmar (1985) 3 NSWLR 44; Bond v J N Taylor
Holdings Ltd (1992) 57 SASR 38; Roux [1992) 2 VR 577; Langworth Pty Ltd v
Metway Bank Ltd (1994) 53 FCR 556; Water Authority (WA) v AIL Holdings Pty
Ltd (1991) 7 WAR 135; Director of Public Prosecutions (Cth) v Blake [1992)
ACL Rep 250 NSW 5; Bayliss v Cassidy [1995) 2 Qd R 464. Cases in which it
has been accepted that legal professional privilege may attachy documents
include: Wade v Jackson's Transport Services Pty Ltd [1979) Tas R 215; Kaye v
Hulthen [19811 Qd R 289; McCaskill v Mirror Newspapers Ltd [1984) I NSWLR
66; Davis v Lambert-Bain Pty Ltd [1989) Tas R 274.
(217) For the historical development of the privilege, see Wigmore on Evidence (1961),
3rd ed rev, par 2290; Cross on Evidence, 5th Aust ed (1996), par 25215; McNicol,
The Law of Privilege (1992), pp 46-51; ALRC Report No 26, Evidence (1985),
vol I, pp 494-495; Law Reform Commission of Western Australia, Project No 90
(1993), Report on Professional Privilege for Confidential Communications, pp 29
30; Lai, "History and Judicial Theories of Legal Professional Privilege",
Singapore Journal of Legal Studies (1995), p 558; Williams, "Discovery of Civil
Litigation Trial Preparation in Canada", Canadian Bar Review, vol 58 (1980)
I, at pp 45-46; R v Derby Magistrates' Court; Ex parte B [1996) AC 487 at 503
508, per Lord Taylorf Gosforth CJ.
(218) Grant (1976) 135 CLR 674 at 685. More recently see, Baker v Campbell (1983)
153 CLR 52 at 79, 93-94; Maurice (1986) 161 CLR 475 at 487, per Mason and
Brennan JJ; Carter (1995) 183 CLR 121 at 126-128, 132-133, 144-147, 160-161.552 [1996-1997
HIGH COURT
HCOFA legal professional priyilege is so finnly entrenched in the law that it
1996-1997 is not to be exorcised by judicial decision."
COMMIS Three important points emerge from this statement. First, the
SIONER OF
AUSlRALiAN statement properly identifies the inherent tension in the doctrine of
FEDERAL legal professional privilege: on the one hand, there is the need to
POLICE protect the confidences of the client and, on the other, there is the
v
PROPEND public interest in parties to litigation having access to an relevant
FINANCE evidence (219).
PrYLTD Second, the statement correctly identifies the subject matter of the
McHugh J privilege - communications. This point, however trite it may seem, is
fundamental to the detennination of the present appeal. Much of the
confusion present in the case law arises from a failure to apply it.
Legal professional privilege is concerned with communications, either
oral, written or recorded, and not with documents per se.
Third, the statement emphasises the paramountcy of the principle of
legal professional privilege in our legal system. In this country, legal
professional privilege is more than a mere rule of evidence; it "is a
substantive general principle which plays an important role in the
effective and efficient administration of justice by the courts" (220),
the best explanation of which is that it is a "practical guarantee of
fundamental, constitutional or human rights" (221). In Carter (222), I
pointed out that:
"By protecting the confidentiality of communications between
lawyer and client, the doctrine protects the rights and privacy of
persons including corporations by ensuring unreserved freedom of
communication with professional lawyers who can advise them of
their rights under the law and, where necessary, take action on their
behalf to defend or enforce those rights. The doctrine is a natural, if
not necessary, corol1ary of the rule of law and a potent force for
ensuring that the equal protection of the law is a reality."
No doubt it seems contrary to commonsense that the law should
give privilege to the copy of a document when it does not give it to the
original. But in this area of the law, as in other areas of law and life,
commonsense turns out to be a misleading guide. This is because legal
professional privilege turns on purpose, and no argument is needed to
show that the purpose of a client or lawyer in making a copy
(219) See dicta to this effect in Wateiford (1987) 163 CLR 54 at 64-65.
(220) Goldberg v Ng (1995) 185 CLR 83 at 93-94. See also Carter (1995) 183 CLR 121
at 161; R v Derby Magistrates' Court; Ex parte B [1995) 3 WLR 681 at 695;
[1995)4 All ER 526 at 540-541, per Lord Taylor CJ.
(221) Carter (1995) 183 CLR 121 at 161.
(222) (1995) 183 CLR 121 at 161. See also Maurice (1986) 161 CLR 475 at 490, per
Deane J, where his Honour described the privilege as "a bulwark against tyranny
and oppression".A similar sentiment was expressed by McEachern CJ in the
leading Canadian authority on point, Hodgkinson v Simms (1988) 55 DLR (4th)
577 at 581.188 CLR 501] OF AUSTRALIA 553
document may be very different from the purpose of the person who H COFA
created the original. 1996-1997
To concentrate on the similarity between the original and the copy COMMIS
or on how the copy came to be made is to miss the whole point of SIONER OF
legal professional privilege. The privilege attaches whenever the AUSTRALIAN
FEDERAL
communication or material is made or recorded for the purpose of POLICE
confidential use in litigation or the obtaining of confidential legal V
advice. The protected communication or material may be a telephone PROPEND
FINANCE
conversation between a solicitor and client, a research memo of the PTYLTD
legal adviser on an issue pertinent to the client's affairs or, as in the
McHughJ
present case, the collection and collation of material and documents
for the purpose of litigation or obtaining legal advice. As long as the
communication was made or the material recorded for the sole purpose
of legal advice or pending litigation and was intended to be
confidential, the actual form of the communication or recording is
irrelevant.
Part of a protected communication may even be a document that
was created for a non-privileged purpose but which has been given to,
and is in the custody of, a lawyer for the purpose of obtaining legal
advice or for confidential use in litigation. As Mason J, with whose
judgment Barwick CJ, Stephen, Jacobs and Aickin 11 agreed, pointed
out in National Employers' Mutual General Insurance Association Ltd
v Waind (223), "[d]ocuments submitted by the client to his solicitors
for advice or for use in anticipated litigation attract the privilege".
Thus, in The Palermo (224), the Court of Appeal upheld the judgment
of Butt J who had refused to order discovery of depositions made by
the master and crew of a ship in proceedings before the Board of
Trade which the plaintiffs had "obtained for the purposes of this
action, and as the phrase is, 'to form part of the brief'''. If the
privilege does not attach to such documents while they are in the
custody of the lawyer, disclosure of their contents while in that
custody, coupled with the surrounding circumstances, might reveal the
nature of the advice that the client was seeking or the client's or the
lawyer's view of the pending litigation (225). By compelling disclos
ure, more than just the documents themselves might be handed over to
an adversary.
When original documents leave the lawyer's custody, however, they
cannot by themselves identify the contents of the communication
between the lawyer and his or her client. Thereafter, their privileged
status depends on the purpose of their original creation. No doubt if
the client is required to produce an original document which has been
the subject of a communication between a lawyer and the client, an
inference can sometimes be drawn as to why the document was in the
(223) (1979) 141 CLR 648 at 654.
(224) (1883) 9 P 6 at 8.
(225) McCaskill [1984) I NSWLR 66 at 68.554 HIGH COURT [1996-1997
HCOF A lawyer's custody. But since the original document was not created
1996·1997 solely for the purpose of obtaining legal advice or assistance, it would
COMMIS be stretching legal professional privilege too far to cloak the document
SIONER OF with privilege merely because at some stage it was the subject of legal
AUSTRALIAN
FEDERAL advice or assistance.
POLICE Where a claim for privilege is made in respect of the copy of a
V document given to a lawyer for the purpose of obtaining legal advice
PROPEND
FiNANCE or assistance, it is likely that the copy was prepared solely for that
PTyLTD purpose. Because this is so, the copy will usually have a stronger
McHughJ claim for privilege than the original document. It will usually have a
stronger claim because the relevant communication is not the original
document; it is the client's conduct in giving the copy to the lawyer.
Handing the copy to the lawyer is as much a part of the
communication between lawyer and client as an oral summary of the
original document would be part of a communication between lawyer
and client. If handing the copy to the lawyer satisfies the test in Grant
v Downs (226), as it usually does, it is privileged.
It follows that, if a solicitor makes a copy of a document that was
not privileged, the copy will be privileged if it was created for the sole
purpose of obtaining or giving confidential legal advice or for the
confidential use of legal advisers in pending litigation. Similarly, if the
client makes a copy of a document solely for that purpose or use, the
copy will be privileged. If this were not so, inspection of the copied
material could expressly or inferentially reveal information that would
destroy the confidentiality of the communication between the legal
representative and the client. Either in their assembly or their selection,
disclosure of the documents could reveal a line of reasoning as to the
relevant issues in the case or their relative merit. Moreover, once the
privilege attaches, it remains until the client waives it. The copy
document constitutes and records part of the communication between
the lawyer and the client and was created solely for the purpose of
obtaining legal advice. In these circumstances, the copy is always
privileged. Even if it is sought for use in subsequent and unrelated
proceedings, it is privileged from production (227).
It also follows that, whether the claim for privilege concerns a
communication or the work product of a lawyer, purpose and not skill
is the criterion for determining the claim. It is true that statements can
be found in the cases to the effect that a copy will be privileged if it
involves the application of legal skill on the part of a lawyer (228).
Thus in Lyell v Kennedy, Bowen LJ seems to have upheld a claim of
legal professional privilege in respect of copies of public documents
on the basis that their collection was "the result of professional
(226) (1976) 135 CLR 674.
(227) McCaskill [1984] 1 NSWLR 66 at 68.
(228) Nickmar (1985) 3 NSWLR 44 at 61-62; Roux [1992] 2 VR 577 at 597-599. 188 CLR 501] OF AUSTRALIA 555
knowledge, research, and skill" (229). If the application of legal H COF A
1996-1997
expertise was the test for detennining whether privilege attached to a
copy document, however, an unmarked photocopy of a solicitor's
COMMIS
notes for use by counsel would arguably have no privilege. SIONER OF
Two arguments have been used against giving legal professional AUSTRALIAN
FEDERAL
privilege to copy documents. In Roux v Australian Broadcasting POLICE
Commission, Byrne J said that such a rule would result in "trial by v
ambush" which in the "modern era" was "no longer accept PROPEND
FINANCE
able" (230). But the question of privilege for a copy document has no Pry LTD
bearing on litigation where the original non-privileged document is in
McHugh}
the hands of the party required to make discovery. That party must
produce the original, whether or not any copy of it is privileged.
Moreover, if a party copied a non-privileged document with the
intention of destroying the original, the copy would not be privileged
even if it was also made for the sole purpose of obtaining legal advice
or for confidential use in litigation. In that situation, the conclusion is
inevitable that one of the purposes of making the copy was to ensure
that the maker could safely destroy the original yet at the same time
retain a record of the underlying transaction. Similarly, if a party
copied a document and placed the non-privileged original in the
custody of a lawyer, there would probably be no privilege for either
document.
A second argument commonly put against giving privilege to a copy
of a non-privileged document is that the public interest is not served
by denying parties access to information relevant to litigation if
obtaining the infonnation in its original fonn would cause delay or
expense. This argument has much force. But if a copy were not
privileged unless the original was privileged, a lawyer could still make
a summary of the original and that summary would be privileged. If
copies had only a derivative privilege, lawyers would be forced to
summarise the contents of original documents to protect their clients'
confidences. Such a practice would add to the expense of liti
gation (231). Overall, that expense would almost certainly be greater
than the additional expense incurred from time to time in obtaining
original documents when copies are in the possession of the person
claiming privilege.
The first question in this appeal must therefore be answered, "yes".
In the present case, many of the documents listed by Mr Dunkel in
(229) Lyell v Kennedy (1884) 27 Ch D I at 31. Cotton LJ, however, upheld the claim on
the basis that to disclose the copies "might shew what [the solicitor's] view was
as to the case of his client as regards the claim made against him" (LJ 26). Fry
agreed with both judgments (at 31). In so far as the headnote to the case suggests
that the use of professional knowledge, research or skill is the test for detennining
whether a copy is privileged, it is misleading.
(230) Roux [1992]2 VR 577 at 599.
(23 I) Williams,Four Questions of Privilege:the Litigation aspect of Legal
Professional Privilege", Civil Justice Quarterly, vol9 (1990) 139, at p 160.556 HIGH COURT [1996-1997
HCOFA the "Schedule of Privileged Documents" attached to his affidavit
1996-1997 were described as being created solely for a privileged purpose. If this
-
COMMIS is so, then, subject to the issue of fraudulent purpose, those documents
SIONER OF are protected by legal professional privilege. It follows that the Full
AUSTRALIAN Court of the Federal Court was correct in setting aside the orders made
FEDERAL
POLICE by Davies J in respect of this part of the decision.
V
PROPEND Whether the allegations of criminal offences prevent legal professional
FINANCE privilege applying to the communications
PTYLTD
In one of his orders, Davies J declared that, "by reason of the
McHugh J allegation of offences under s 86(1)(e) and s 86A of the Crimes Act
1914 (Cth) and of the proof given in support thereof, the following
documents [which he identified] are not subject to legal professional
privilege." (232) I agree with Gummow J for the reasons he gives that
the FulI Court did not err in setting aside this declaration. However, by
their cross-appeal, the respondents claim that this issue should have
been decided in their favour. To this issue, I now turn.
Communications in furtherance of a fraud or crime are not protected
by legal professional privilege because the privilege never attaches to
them in the first place (233). While such communications are often
described as "exceptions" to legal professional privilege, they are not
exceptions at all. Their illegal object prevents them becoming the
subject of the privilege (234).
A mere allegation of illegal purpose or fraud is not, of itself,
sufficient to displace a claim of legal professional privilege. A person
who alleges that legal professional privilege does not apply to a
communication tenders an issue for decision and has the onus of
proving it. Subject to any statutory provisions to the contrary, any
evidence tendered in a court of justice to prove an issue must comply
with the ordinary rules of evidence. Legal professional privilege is a
legal right. Its prima facie application to a communication can only be
displaced by admissible evidence. That evidence does not have to
prove that the communication was made in furtherance of a crime or
the commission of a fraud, but it must establish a prima facie case that
the communication was so made. In O'Rourke v Darbishire (235),
Viscount Finlay said that what is required is "something to give
colour to the charge. The statement must be made in clear and definite
terms, and there must further be some prima facie evidence that it has
some foundation in fact".
(232) Propend Finance Pty Ltdv Commissioner. Australian Federal Police [No 2]
(1994) 35 ALD 25 al 46.
(233) Rv Cox and Railum (1884) 14 QBD 153; Varawa (1910) 10 CLR 382; Kearney
(1985) 158 CLR 500; Sutv Nominal Defendant [1968] 2 NSWR 78; L T & K T
Conlon vLensworth Interstate (Vic) Pty Ltd [1970] VR 293.
(234) Carter (1995) 183 CLR 121 at 163.
(235) [1920] AC 581 at 604 cited with approval in Kearney (1985) 158 CLR 500 at516,
per Gibbs CJ.188 CLR 501] OF AUSTRALIA 557
To displace the privilege in the present case, the appellants relied on HCOF A
1996-1997
an affidavit of Assistant Commissioner Baer to which was exhibited a
copy of the information put before the justice of the peace. The COMMIS
information was sworn by Detective Sergeant Taciak, the second SIONER OF
AUSTRALIAN
appellant in this appeal, who did not give evidence before Davies J. FEDERAL
Davies J held that the affidavit of Assistant Commissioner Baer and its POLICE
exhibit was sufficient to discharge the evidentiary onus upon the v
PROPEND
appellants and to displace any attached privilege (236). FINANCE
However for the purpose of the proceedings before Davies J, the PTyLTD
statements in the informations were hearsay. The out of court McHughJ
statements of Detective Sergeant Taciak recorded in the information
were not evidence in the proceedings before his Honour. They got
before the Full Federal Court only through the affidavit of Assistant
Commissioner Baer. In so far as he can be taken to have deposed to
the facts in the information, his evidence was hearsay and inadmis
sible. There is nothing in s 10 of the Crimes Act, any other part of that
Act or any other legislation which declares that the rules of evidence
do not apply in determining whether a communication is privileged.
That being so, the claim of the appellants that the respondents could
not rely on legal professional privilege failed because there was no
admissible evidence before Davies J to support the claim.
The appellants relied on Baker v Evans (237) for the proposition
that the contents of the information used to obtain a search warrant can
be used to prove that evidence exists to support a claim of fraudulent
purpose. In Baker, a case where the prosecution appears to have relied
only on the "facts" in the information to displace legal professional
privilege, Pincus J held that the claim of privilege could not
prevail (238). However, while there is no legal rule that prevents the
facts alleged in an information being used to determine whether legal
professional privilege has been displaced, such facts can only be relied
on when somebody with first-hand knowledge of them has sworn to
their accuracy in the judicial proceedings which has to decide the issue
of privilege. Whether or not that was the case in Baker (239), it is not
the case here.
The cross-appeal must therefore be allowed because there was no
admissible evidence before Davies J upon which he could find that
legal professional privilege did not attach to the documents because of
the respondents' illegal object or purpose.
(236) Propend Finance Pty Ltd v Commissioner. Australian Federal Police [No 2]
(1994) 35 ALD 25 at 42.
(237) (1987) 77 ALR 565. This case concerned a search pursuant to a warrant issued
under s to of the Crimes Act of a solicitor's office for documents relating to an
allegedly fraudulent tax scheme.
(238) Baker (1987) 77 ALR 565 at 574.
(239) (1987) 77 ALR 565.558 HIGH COURT [1996-1997
HCOFA Orders
1996-1997
I agree with the orders proposed by Gaudron J.
COMMIS
SIONER OF
AUSTRALIAN GUMMOWJ. In Australia what now generally is identified as modern
FEDERAL
administrative law has its own federal statutory regime (240). In the
POLICE past, significant questions of public law frequently were determined
V
PROPEND not by the prerogative writ procedures but as issues in actions for
FINANCE damages at law or in equity suits. In such litigation the plaintiff
PTYLTD claimed redress for tortious injury to private or individual rights.
GummowJ Ashby v White (241) established "the right to vote", but was the
trial of an action on the case. In Musgrove v Chun Teeong Toy (242),
the Privy Council, on appeal from Victoria (243), held there was no
absolute and unqualified right of an alien to admission to a British
colony. This result was reached in an action for damages against the
official who had refused to allow the alien to land. In another action
Bradlaugh sought to test the efficacy of his exclusion from the House
of Commons by claiming an injunction to restrain the Serjeant-at
Arms from using force to exclude him (244). Of more direct relevance
to this appeal are eighteenth century decisions of the Court of
Common Pleas expounding, in actions for trespass, the common law
principles with respect to general warrants (245).
This appeal shows that such issues may still arise for determination
in this fashion. It also demonstrates the need to avoid a narrow
classification of what is involved in "administrative law" litigation.
The nature of the case
This appeal is brought from a Full Court of the Federal Court of
Australia (Beaumont, Hill and Lindgren 11) (246) and concerns two
aspects of the law of legal professional privilege. Orders of review of
decisions under s 10 of the Crimes Act 1914 (Cth) were sought under
the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the
AD(JR) Act). In addition, the respondents sought injunctive (and
ancillary declaratory) relief against the appellants under s 39B of the
Judiciary Act 1903 (Cth). There was no cross-application by the
appellants for declaratory relief to the contrary effect of that sought
against them.
(240) Administrative Appeals Tribunal Act 1975 (Cth), Ombudsman Act 1976 (Cth),
Administrative Decisions (Judicial Review) Act 1977 (Cth).
(241) (1703) 2 Ld Raym 938 [92 ER 126].
(242) [1891] AC 272. See also Robtelmes v Brenan (1906) 4 CLR 395 at 417.
(243) Toy v Musgrove (1888) 14 VLR 349.
(244) Bradlaugh v Gossett (1884) 12 QBD 271.
(245) Wilkes v Wood (1763) Loff! I [98 ER 489]; Entick v Carrington (1765) 2 Wils
KB 275 [95 ER 807]. See also George v Rockett (1990) 170 CLR 104 at 110.
(246) Propend Finance Ply Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224; on appeal from Propend v Commissioner, Australian Federal Police
{No 2J (1994) 35 ALD 25 (DavieJ).188 CLR 501] OF AUSTRALIA 559
Analysis of these and other distinctions was somewhat obscured at HCOF A
1996-1997
earlier stages in the litigation. As will become apparent, this is a
circumstance of some significance for resolution of the issues of legal COMMIS
professional privilege now before this Court. Upon examination, the SIONER OF
AUSTRALIAN
issues on the appeal do not turn upon considerations going directly to FEDERAL
judicial review of administrative decisions. Rather, they arise from the POLICE
reliance of the respondents upon their private rights to enjoin what V
I'ROPEND
otherwise would be wrongful interference with ownership or pos FINANCE
session of documents. Interference with those rights is beyond the PIT LTD
scope of what is allowed upon execution of warrants issued under s 10
GummowJ
of the Crimes Act. That is because s 10 does not affect the operation of
the doctrine of legal professional privilege. It will be necessary to refer
to these matters further when considering the decision in Baker v
Campbell (247).
The first appellant is the Commissioner, Australian Federal Police
(the AFP), and the second appellant is a member of that force. It is
established by the Australian Federal Police Act 1979 (Cth) (the AFP
Act). On 2 September 1993, on application of the second appellant, a
Justice of the Peace issued nine warrants in exercise of the power
conferred by s IO(1) of the Crimes Act (248).
At the time of the issue of the warrants, s 1O(1) stated:
"If a Magistrate or Justice of the Peace is satisfied by information
on oath that there is reasonable ground for suspecting that there is in
or upon any premises, aircraft, vehicle, vessel or place:
(a) anything with respect to which any offence against any law
of the Commonwealth or of a Territory has been, or is
suspected on reasonable grounds to have been, committed;
(b) anything as to which there are reasonable grounds for
believing that it will afford evidence as to the commission of
any such offence; or
(c) anything as to which there is reasonable ground for
believing that it is intended to be used for the purpose of
committing any such offence;
or that any such thing may, within the next following 72 hours, be
brought into or upon the premises, aircraft, vehicle, vessel or place,
the Magistrate or Justice of the Peace may grant a search warrant
authorising any constable named in the warrant, with such
assistance, and by such force, as is necessary and reasonable, to
enter at any time the premises, aircraft, vehicle, vessel or place
named or described in the warrant, and to seize any such thing
which he or she might find there."
(247) (1983) 153 CLR 52.
(248)Section 10 was later repealed by s 5 of the Crimes (Search Warrants and Powers
of Arrest) Amendment Act 1994 (Cth) and s 4 thereof inserted in the Crimes Act a
new PI IAA (ss 3c-3zy), headed "SEARCH WARRANTSAND POWERSOF ARREST".
Nothing for this appeal turns upon the repeal of s 10.560 HIGH COURT [1996-1997
HCOFA The warrants authorised sixty members of the AFP to search nine
1996-1997 business and residential premises associated with the respondents. The
ninth respondent is a solicitor. In all but one respect, the warrants were
COMMIS
SIONER OF relevantly in identical terms. The text of one of the warrants is set out
AFEDERALAN as an annexure to the judgment of Beaumont J (249). The warrant
POLICE specifies three conditions, the third of which is the existence of
V
PROPEND reasonable belief that the documents and records to be seized would
FINANCE afford evidence as to the commission of certain offences. It continues:
PTYLTD
"You AREHEREBYAUTHORISED with such assistance and by such
GummowJ force as is necessary and reasonable, to enter at any time the said
place, and to seize any such things as satisfy ALL of the THREE
above conditions and as may be found in the said place and in
accordance with the procedure set out in the GENERALGUIDELINES
BETWEEN THE AUSTRALIANFEDERAL POLICE AND THE LAW
COUNCILOFAUSTRALIA (dated 7 June 1990) as to the execution of
search warrants on lawyer's premises, the Law Society and like
institutions in circumstances [where] a claim of legal professional
privilege is made, and for so doing this shall be your SUFFICIENT
WARRANT."
Annexed to the warrant to search the offices of the firm of the ninth
respondent was a copy of those General Guidelines (the Guidelines).
This document also was attached to the judgment of
Beaumont J (250).
The warrants recite the satisfaction of the Justice of the Peace, by
information on oath placed before her, that there were reasonable
grounds for suspecting the presence on the designated premises of
materials affording evidence as to the commission of offences against
ss 86(1)(e) and 86A of the Crimes Act and against ss 5 and 13 of the
Crimes (Taxation Offences) Act 1980 (Cth). Section 86(1) creates
various offences of conspiracy. Paragraph (e) thereof was concerned
with conspiracies "to defraud the Commonwealth or a public authority
under the Commonwealth". It was repealed by s 3 of the Statute Law
(Miscellaneous Provisions) Act (No 2) 1984 (Cth) (the 1984 Act) with
effect from 25 October 1984. Section 3 of the 1984 Act also inserted,
to commence on 25 October 1984, s 86A of the Crimes Act. This
provision also is concerned with conspiracy to defraud the Common
wealth or a public authority under the Commonwealth. The
conspiracies contrary to s 86A which are specified in the warrants are
stated to have commenced on 25 October 1984. Those in respect of
s 86(1)(e) are stated as having taken place between 30 June and
24 October 1984.
The search warrants were executed by officers of the AFP on the
day of issue and documents were seized. During the search of the
(249) Propend Finance (1995FCR8224 at 239-244.
(250) Propend Finance (1995FCR8224 at 245-248. 188 CLR 501] OF AUSTRALIA 561
premises of the ninth respondent, claims were made that legal 19%-1997
professional privilege attached to some of the documents the AFP
sought to seize. With respect to those documents, the AFP complied
SIONER OF
with the practice set out in the Guidelines. On the commencement of AUSTRALIAN
the proceeding in the Federal Court on 10 September 1993, the FEDERAL
documents were lodged with the Registry of that Court. Undertakings POLICE
V
were given by the AFP not to inspect the seized documents which PROPEND
were the subject of the claim for privilege until the resolution of that FINANCE
claim. PTYLTD
Three points should be made here. The first (to which it will be GummowJ
necessary to return) was made in the Full Court by Lindgren J. His
Honour said (251):
"Although it is convenient to speak of 'privileged documents',
this involves an ellipsis which is apt to mislead. What are privileged
from disclosure are communications, whether between lawyer and
client or between one of them and a third party, and information
which happens to be in documentary form."
The second point was made by Hill J (252). It is that the unchallenged
evidence was that the seized documents the subject of the claim of
privilege were copies which had been made for the sole purpose of
obtaining or giving legal advice. Some of the documents were copies
made by the client and sent to the client's solicitor for advice. Others
were copies included in briefs to advise which had been sent by the
solicitor to counsel. As Gaudron J explains in her reasons for
judgment, the privilege extended to both categories of copy document.
The third point also will require elaboration. It follows from the first
two and is that the communications, of which the making and
transmission of the copies formed part, were not themselves alleged to
have been made in furtherance of an improper purpose constituted by
the alleged conspiracies. Rather, the appellants approached the matter
on the footing that any taint attaching to the original documents
necessarily infected copies thereof.
There were no pleadings in the Federal Court proceeding. In the
application an order for review was sought under the AD(JR) Act and
the jurisdiction conferred by s 39B of the Judiciary Act was invoked
for prohibitory and mandatory injunctive relief and supporting
declarations. However, the application was drawn so as not clearly to
distinguish between the various foundations of jurisdiction. On the one
hand, the applicants (the present respondents) sought review of the
decisions of the second appellant to apply for issue of the warrants and
the decisions of the Justice of the Peace to issue them. The applicants
contended that the warrants were "too wide and uncertain", and that
the decisions were improper exercises of the power said to be
(251) Propend Finance (1995) 58 FCR 224 at 264.
(252) Propend Finance (1995) 58 FCR 224 at 250.562 HIGH COURT [1996-1997
HCOFA conferred by s 10 of the Crimes Act and were so unreasonable that no
1996-1997
reasonable person could have so exercised that power. None of these
COMMIS issues arise on the present appeal.
SIONER OF Complaint also was made of the' 'conduct" of members of the AFP
AUSTRALIAN
FEDERAL in the execution of the warrants, in particular in seizing documents to
POLICE which legal professional privilege was said to attach. This "conduct"
v was posterior rather than anterior to the decisions in respect of which
PROPEND review was sought. Section 6 of the AD(JR) Act is concerned with
FINANCE
Pry LID review of past, present or proposed conduct "for the purpose of
making a decision to which this Act applies". In the course of
Gummow J submissions to this Court, counsel for the respondents, recognising
this, emphasised s 39B of the Judiciary Act as the jurisdictional basis
in respect of the complaint as to seizure of documents. Among the
relief sought was an order restraining the first and second appellants
from inspecting or copying the documents seized, a declaration that
the documents deposited with the New South Wales District Registry
of the Federal Court were subject to legal professional privilege, and
an order that those documents be delivered forthwith to the persons
from whom they had been seized.
The trial judge made an order, styled a "direction", and made two
declarations which are presently significant. The Court directed that,
subject to the first declaration, issues as to whether legal professional
privilege attached to the documents seized were to be determined after
the documents in question had been examined. The first relevant
declaration was that "by reason of the allegation of offences under
s 86(l)(e) and s 86A of the Crimes Act 1914 (Cth) and of the proof
given in support thereof, the following documents are not subject to
legal professional privilege ... ". The second relevant declaration was
that "copies of documents made for the purpose of obtaining legal
advice, the originals of which are not subject to legal professional
privilege are not privileged". These declarations were adverse to the
interests of the respondents, the moving parties at the trial, and
favoured the appellants. This was so despite there being before the
Court no cross-application by the appellants, seeking negative
declarations.
On appeal (taken by leave), the Full Court set aside that direction
and those declarations. In place thereof, the Full Court ordered that
there be a fresh hearing on the respondents' claims for privilege.
In this Court, the appellants seek an order that the appeal to the Full
Court be dismissed, thereby reinstating the relief granted by the trial
judge. By their cross-appeal the respondents contend that the Full
Court should not have ordered any fresh hearing in respect of the issue
whether the original documents were not subject to legal professional
privilege for the reasons expressed in the first declaration made by the
trial judge. The respondents say that the Full Court should have
remitted only the questions of identification of those copy documents
to which the privilege attached.188 CLR 501] OF AUSTRALIA 563
Special leave H COFA
1996-1997
This Court granted special leave to appeal in respect to the two
COMMIS
questions dealt with in the declarations made by the trial judge. One is SIONER OF
the contention of the appellants that legal professional privilege does AUSTRALIAN
not extend to a copy of a document if the original is not a subject of FEDERAL
POLICE
the privilege. The other is that the privilege had been displaced v
because there had been before the Justice of the Peace sufficient
PROPEND
"prima facie evidence" that the communications the subject of the FINANCE
documents sought by the warrants were made in furtherance of PTyLTD
improper purposes, in particular the alleged offences.
Gummow J
It is convenient to undertake consideration of these matters bearing
in mind that any incursion into the area occupied by the privilege
should be, in the phrase of Lord Nicholls of Birkenhead, "principled
and clear" (253), and after reference to some basic propositions.
Basic propositions
The first proposition is that it is settled in Australia (254) (and
perhaps now in England (255» that the doctrine of legal professional
privilege itself represents a balance struck between competing public
interests. Given its application, no further "balancing exercise", such
as that involved with a claim of public interest immunity, is
appropriate.
The second is that in various jurisdictions regard is had to the
"dominant purpose" in the preparation of documents claimed to be
protected from inspection (256). This is on the ground that to hold, in
accordance with Grant v Downs (257), that the purpose must be the
sole purpose would, apart from difficulties of proof, confine the
privilege too narrowly. These differing views of the scope of the
privilege are to be understood when considering the many decisions
from other common law jurisdictions to which we were referred.
Thirdly, the privilege does not attach to a communication made as
part of a criminal or unlawful proceeding or in furtherance of an illegal
object. The privilege would not attach where the plaintiff sought legal
assistance as a step in, or preparatory to, the commission of a crime or
(253) R v Derby Magistrates' Court; Ex parte B [1996] I AC 487 at 512.
(254) Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65, 74, 98.
(255) R v Derby Magistrates' Court; Ex parte B [1996] I AC 487 at 508, 509, 511; but
cf In re L (A Minor) [1997] AC 16 at 27, 30, 33.
(256) Waugh v British Railways Board [1980] AC 521; Guardian Royal Assurance v
Stuart [1985] I NZLR 596. The Canadian decisions are divided: Sopinka,
Lederman and Bryant, The Law of Evidence in Canada (1992), pp 656-657.
Section 119 of the Evidence Act 1995 (Cth) states the privilege in terms of "the
dominant purpose" of the preparation of a "confidentidocument", a term
defined in s 117(1). The scope of s 119 is unsettled: Sparnon v Apand (1996) 68
FCR 322 at 325. The new law applies to litigation in the Federal Court but (s 4)
not to proceedings the hearing of which (as with this case) began before 18 April
1995.
(257) (1976) 135 CLR 674.564 HIGH COURT [1996-1997
HCoFA fraud, even though the solicitor was unaware of the purpose of the
1996-1997
communication at the time it was made (258). The communication
COMMIS would still be "designed to facilitate future wrongdoing" (259). In
SIONER OF addition, the privilege does not protect communications made to
AUSTRALIAN
FEDERAL further a deliberate abuse of statutory power and by that abuse to
POLICE prevent others from exercising their rights under the law (260). It
V
PROPEND follows that the operation of the privilege is not decided, as a general
FINANCE proposition, merely by a determination in the instant proceeding of
PTyLTD whether facts amounting to a crime have been proved. The nature of
the alleged impropriety and thus the issue of existence of the privilege
GummowJ will vary from case to case.
Fourthly, it is established in Australia by Baker v Campbell (261)
that the right that protects privileged communications from disclosure
without consent of the lay client is more than an aspect of civil and
criminal procedure and more than a rule of evidence applicable in the
course of litigation. Some English decisions to which we were
referred, including Ventouris v Mountain (262) and Lubrizol Corpor
ation v Esso Petroleum Ltd (263) may proceed upon a different
footing. This corresponds to the doctrine which previously prevailed in
this Court under the majority decision in O'Reilly v State Bank of
Victoria Commissioners (264). It had been held that the privilege was
not available outside the realm of judicial and quasi-judicial
proceedings where, in general, the rules of evidence are applied,
because the privilege was a rule of evidence and the underlying policy
it serves did not demand an extension beyond that realm. However, the
law in England has been clarified. The House of Lords recently
affirmed that the privilege is "much more than an ordinary rule of
evidence, limited in its application to the facts of a particular case"
and that it "is a fundamental condition on which the administration of
justice as a whole rests" (265).
Finally, legal professional privilege being more than an aspect of
procedural law, it is then a question of identifying its true character.
Views differ as to whether the privilege is to be characterised as "a
practical guarantee ... of fundamental constitutional or human
rights" (266), "a substantive rule of law" (267), or one of those
traditional common law rights which is not to be abolished or cut
(258) R v Bell; Ex parte Lees (1980) 146 CLR 141 at 145.
(259) Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 163.
(260) Attorney-General (NTvKearney (1985) 158 CLR 500.
(261) (1983) 153 CLR 52.
(262) [199111 WLR 607 at 611-612; [199113 All ER 472 at 475-476.
(263) [1992] I WLR 957 at 960.
(264) (1983) 153 CLR I.
(265) R v Derby Magistrates' Court; Ex parte B [19961 I AC 487 at 507; but cf In re L
(A Minor) [1997] AC 16.
(266) Attorney-General(NT) v Maurice (1986) 161 CLR 475 at 490; cf Carter v
Northmore Hale Davy & Leake (1995) 183 CLR 121 at 129.
(267) Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 161.188 CLR 501] OF AUSTRALIA 565
HCOF A
down otherwise than by clear statutory provision (268). Certainly the 1996-1997
privilege alike protects the strong as wen as the vulnerable, the shabby
and discredited as well as the upright and virtuous, those whose cause
COMMIS
is in public disfavour as much as those whose cause is held in popular SIONER OF
esteem. AUSTRALIAN
FEDERAL
At common law, and in the absence of any statutory indemnity or POLICE
other protection against liability, an officer who executed a search V
PROPEND
warrant in excess of the authority conferred by it, incurred a liability FiNANCE
for damages in tort for trespass to land or goods (269), false PTYLTD
imprisonment (270) or for other misfeasance (271). However, the
GummuwJ
privilege itself is not to be characterised as a rule of law conferring
individual rights, breach of which gives rise to an action on the case
for damages, or an apprehended or continued breach of which may be
restrained by injunction.
It is true that if the use of privileged documents by the defendant is,
or is a consequence of, a breach of confidence owed the plaintiff, then
there may be an equity to protect that confidence (272). In Lord
Ashburton v Pape (273), it was decided that the client whose
privileged documents, being letters written to his solicitor, had fallen
into the hands of a third party by a trick, might obtain injunctive relief
requiring the return of the documents and restraining the third party
from making use of them. On the other hand, in Calcrajt v
Guest (274), the defendant was permitted to adduce as secondary
evidence copies of proofs of witnesses, with notes of the evidence, in a
previous action brought in 1787 by the plaintiff's predecessor in title
and concerning the true boundary of the plaintiff's fishery. The
original documents remained privileged but the defendant, having
obtained copies of the privileged documents, was not precluded by that
privilege from tendering them as secondary evidence. It was held that
(268) AI/orney-General (NT) v Maurice (1986) 161 CLR 475 at491; Bropho v Western
Australia (1990) 171 CLR I at 17-18; Coco v The Queen (1994) 179 CLR 427
at 437-438, 446.
(269) Parton v Williams (1820) 3 B & Aid 330 [106 ER 684]; Crozier v Cundey (1827)
6 B & C 232; [lOg ER 439]; Dillon v O'Brien (1887) 16 Cox CC 245. See also
Field v Sullivan [1923] VLR 70.
(270) Hoye v Bush (1840) I Man & G 775 [133 ER 545]. See also Lil/le v The
Commonwealth (1947) 75 CLR 94.
(271) Section 64a of the AFP Act renders the Commonwealth liable as a joint tortfeasor
in respect of a tort committed by a member of the AFP "in the performance or
purported performance of his duties as such a member".
(272) Ritz Hotel v Charles of the Ritz22](1988) 14 NSWLR 132 at 134; Goddard
v Nationwide [1987] QB 670; Webster v James Chapman & Co [1989] 3 All ER
939; Hartogen Energy Ltd v AGL Co (1992) 36 FCR 557 at 566-568; Andrews,
"The Influence of Equity upon the Doctrine of Legal Professional Privilege",
Law Quarterly Review, vol 105 (1989) 608; Newbold, "Inadvertent Disclosure in
Civil Proceedings", Law Quarterly Review, vol 107 (1991) 99.
(273) [1913]2 Ch 469.
(274) [1898] I QB 759.566 HIGH COURT [1996-1997
HCOFA the question of provenance of the documents tendered was a collateral
1996-1997
issue.
COMMIS The distinction between these authorities may be seen to lie in the
SIONER OF character of the privilege as a bar to compulsory process for the
AUSTRALIAN
FEDERAL obtaining of evidence rather than as a rule of inadmissibility. The
POLICE effect of the authorities has been identified as follows (275):
v
PROPEND "All that Calcraft v Guest decided was that when a privileged
FINANCE
PTyLTD document was no longer in the hands of those entitled to claim
immunity from production, there was nothing to prevent its use in
evidence. Of course, a person who has a right to confidence in a
GummowJ
document can enforce his right by injunction, and this is what lay
behind Ashburton v Pape."
Baker v Campbell
Although conceptually separate, the three elements of privilege,
confidence, and excess of authority were all involved in Baker v
Campbell (276). As in the present case, a search warrant had been
issued pursuant to s 10 of the Crimes Act and it authorised the seizure
of certain documents on premises occupied by solicitors. The
defendant, acting pursuant to the warrant, attempted to seize certain
documents to which it was alleged legal professional privilege
attached. The plaintiff commenced an action in this Court to restrain
the defendant from seizing the documents (277). The action thus
appears to have been one to enjoin apprehended misfeasance by
conduct in excess of the authority conferred by law on the defendant.
The matter came before the Full Court on a case stated. By majority,
the Court held that the Crimes Act did not evince any intention to oust
the privilege and that the privilege applied to documents within the
scope of the search warrant issued pursuant to s 10.
Gibbs CJ (278) took Lord Ashburton v Pape as authority for the
proposition that the owner of a document which has been improperly
obtained may secure an injunction prohibiting its use in evidence,
provided this is done in a separate proceeding before the document has
been put in evidence. Brennan J (279) said that the court's power to
restrain by injunction the use of documents obtained in breach of
confidence could not be exercised to restrain the use in evidence of
documents which had been seized under a warrant if, upon its true
(275) Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth",
Modern Law Review, vol 53 (1990) 381, at p 383. The distinction to be drawn
between privilege and confidence was further emphasised by Scott J in Webster v
James Chapman & Co [1989] 3 All ER 939 at 943-944.
(276) (1983) 153 CLR 52.
(277) cf Smorgon v Australia & New Zealand Banking Group Ltd (1976) 134 CLR 475
at 478-479.
(278) Baker v Campbell (1983) 153 CLR 52 at 68.
(279) Baker v Campbell (1983) 153 CLR 52 at 110.188 CLR 501] OF AUSTRALIA 567
construction, s 10 authorised their seizure. Later, in Johns v Australian HCOFA
Securities Commission (280), Brennan J emphasised that the subject 1996-1997
matter of the equitable obligation is information and the requirement
COMMIS
of confidence in respect of it; and, in a passage with which I SIONER OF
respectfully agree, Gaudron J (281) pointed out that in some AUSTRALIAN
circumstances third parties may be bound by the obligation. Equitable FEDERAL
POLICE
relief thus may extend to use of copy documents. PROPEND
The primary significance of Baker v Campbell for the present case FINANCE
rests in the construction given s 10 of the Crimes Act. That Pry Lm
construction illustrates the proposition that, even in respect of
legislation not directed to the conduct of litigation, the privilege is not GummowJ
to be taken as abolished or qualified other than by clear statutory
provision. In that regard, reference was made to the apparent tendency
in legislation to compel a disclosure of evidence as an adjunct to
modern administrative procedure, and to the risk thereby created of
undermining the policy supporting the privilege (282).
The propositions for which Baker v Campbell is authority are
encapsulated in the following statement by Dawson J (283):
"[T]he doctrine of legal professional privilege is, in the absence of
some legislative provision restricting its application, applicable to
all forms of compulsory disclosure of evidence. Section 10 of the
Crimes Act does not expressly or by necessary implication restrict
the application of the doctrine and the section should, therefore, be
construed as being not intended to affect it."
Baker v Campbell did not decide that the warrant in question was, to
any degree, invalid. Rather, the Court answered in the negative the
question whether the documents the subject of the privilege might
properly be made the subject of a search warrant issued under s 10. It
follows that the objective of the respondents in initiating the present
litigation, namely to protect privileged communications, was not to be
attained by seeking judicial review of decisions leading up to the issue
of the warrants. The power conferred upon the authorities designated
in s 10 to grant search warrants is to be so construed, in accordance
with s 46(1)(b) of the Acts Interpretation Act 1901 (Cth), that any
warrant granted thereunder is to be read so as not to exceed that
power (284). The power did not extend to restrict the application of
the doctrine of legal professional privilege.
Of course, in the execution of warrants, issues arise as to the
application of the privilege and thus the operation of the warrant. The
Guidelines were designed to provide a means of preserving the status
(280) (1993) 178 CLR 408 at 426-428.
(281) Johns (1993) 178 CLR 408 at 459-460.
(282) Baker v Campbell (1983) 153 CLR 52 at 132.
(283) Baker v Campbell (1983) 153 CLR 52 at 132.
(284) cf Harrington v Lowe (1996) 70 ALJR 495 at 503; 136 ALR 42 at 52.568 HIGH COURT [1996-1997
HCOFA
1996-1997 quo pending curial resolution of a dispute as to the existence of the
privilege. In the present case, the means for curial resolution were
COMMIS provided by the application for injunctive and ancillary relief, founded
SIONER OF
AUSTRALIAN upon s 398 of the Judiciary Act. It was for the respondents, as the
FEDERAL parties seeking injunctive relief, to establish that the privilege applied
POLICE in respect of those documents otherwise falling within the terms of the
v
PROPEND warrants.
FINANCE By way of answer to the case presented by the respondents (285), it
PTYLm was open to the appellants to demonstrate that the documents in
GummowJ question were not protected, not because of any exception to the
general rule but because there was a sufficient element of impropriety
or illegality in the otherwise privileged communications of which they
were part to take them outside the area covered by the privilege (286).
This is the second issue arising on the grant of special leave. I turn to
consider the first issue.
Copy documents and communications
Whilst issues as to the privilege frequently arise upon discovery or
tender (or, as in this case, upon seizure) of documents, the subject
matter of the privilege is communications made solely for a particular
purpose. In Grant v Downs (287), Jacobs J identified the rule that:
"communications with one's legal adviser are privileged from
disclosure and that the privilege extends not only to communications
actually made but to material prepared for the purpose of
communication thereof to the legal adviser."
These communications may be oral, written or a combination thereof.
Moreover, many communications made to obtain or to give legal
advice will not concern contemplated or pending litigation and,
further, in any event may involve third persons. Hence the particular
significance of the second sentence in the following passage from the
judgment of McHugh J in Carter v Northmore Hale Davy &
Leake (288):
"Communications between legal advisers and their clients
concerning contemplated or pending litigation cannot be disclosed
without the consent of the client (289). Similarly, communications
made to obtain or to give legal advice cannot be disclosed without
(285) See Bullivant v Allomey-General (Viet) (1901) AC 196 at 206.
(286) Follell v Jefferyes (1850) I Sim (NS) 3[61 ER I at 6); R v Bell; Ex parte
Lees (1980) 146 CLR 141 at 152.
(287) (1976) 135 CLR 674 at 690.
(288) (1995) 183 CLR 121 at 159.
(289) Grant v Downs (1976) 135 CLR 674; Allorney-General (NT) v Kearney (1985)
158 CLR 500; Allorney-General (NT) v Maurice (1986) 161 CLR 475; Waterford
v The Commonwealth (1987) 163 CLR 54. 569
188 CLR 501] OF AUSTRALIA
the consent of the client (290). 'Legal professional privilege' is the HCOFA
shorthand description of the right that protects these communi 1996-1997
cations from being disclosed without the consent of the lay client." COMMIS
SIONER OF
It also is significant, as Beaumont J emphasised in the present AUSTRALIAN
case (291) that the privilege extends to any document prepared by a FEDERAL
lawyer or client from which there might be inferred the nature of the POLICE
V
advice sought or given. Examples include communications between PROPEND
the various legal advisers of the client, draft pleadings, draft FINANCE
correspondence with the client or the other party, and bills of i>ryLTD
costs (292). GummowJ
This identification of the privilege with communications, rather than
merely with documents, is important for the first issue on the grant of
special leave.
Upon that issue this Court was referred, as had been the Full Court,
to a large number of authorities from Australia and other common law
jurisdictions (293). In a number of the authorities, the reasoning
proceeds from the false premise that what is involved is privilege for
particular documents rather than for communications. The differing
views to be gathered from the decisions were collected by Hill J (294).
His Honour pointed out that the strongest statement that privilege will
never attach to copies appears to be that of Lord Denning MR in
Buttes Gas & Oil Co v Hammer [No 3 J (295). His Lordship said:
"In my opinion, if the original is not privileged, neither is a copy
made by the solicitor privileged. For this simple reason, that the
original (not being privileged) can be brought into court under a
subpoena duces tecum and put in evidence at the trial. By making
the copy discoverable, we only give accelerated production to the
document itself."
Some decisions support the proposition that the privilege will attach to
copies of documents brought into existence for the purposes of
obtaining legal advice or for litigation. Others adopt what Hill ]
identified as intermediate positions that (a) copy documents will not
generally be privileged, but the privilege will exist where disclosure
would reveal the "line of reasoning" of the legal adviser, and
(b) privilege attaches to a copy only if there has been "selective
copying" or "the exercise of skill and knowledge by the solicitor".
The mere circumstance that the production of an original document,
(290) Minet v Morgan (1873) 8 Ch App 361; Bullivant v Attorney-General (Viet) [1901]
AC 196.
(291) Propend Finance (1995) 58 FCR 224 at 237.
(292) See Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246;
Waterford v The Commonwealth (1987) 163 CLR 54 at 87.
(293) Many of them are collected and summarised in the appendices to the judgment of
Lindgren J in Propend Finance (1995) 58 FCR 224 at 270-273.
(294) Propend Finance (1995) 58 FCR 224 at 254-255.
(295) [1981] QB 223 at 244.570 HIGH COURT [1996-1997
H COF A which is not privileged, may be required by subpoena and that it then
1996-1997 may be put in evidence does not meet the points of principle which are
COMMIS involved. One of these, as mentioned earlier in these reasons when
SIONER OF discussing Lord Ashburton v Pape (296) and Calcraft v Guest (297), is
AUSTRALIAN
FEDERAL that the privilege is to be characterised as a bar to compulsory process
POLICE for the obtaining of evidence rather than a rule of inadmissibility.
V
PROPEND Further, the Master of the Rolls was not addressing that important
aspect of privilege which is concerned not with current or contem
FINANCE
PTYLTD plated litigation but with the provision of advice to assist in the
conduct of the client's affairs in conformity with relevant legal rights
Gummow J
and obligations.
Nor does the privilege exist to protect the labour of the legal adviser
by exercising skill and knowledge in selective copying or production
of summaries (298). The privilege is that of, and protects the interests
of, the client, and is not limited to what in the United States has been
called "the attorney's work-product" (299). Nor is the privilege
concerned merely to protect disclosure of litigation strategy or the line
of reasoning of the legal adviser (300).
In the course of argument, it was said that there would be an
anomaly if a photocopy of a publicly registered document, made solely
for a privileged communication, were protected whereas a certified
copy of the original might readily be obtained and put into evidence.
Other curiosities or apprehensions were suggested. One was the fear
that copy documents might be brought into existence to enable
destruction of the original whilst the copy was employed in obtaining
legal advice and thus became part of a privileged communication. Yet,
given the gross impropriety that this would involve, it surely would be
difficult to sustain an argument for the subsistence of privilege. To
uphold the privilege in such a case would be to allow the "privilege to
be used for a purpose alien to its whole purpose and history" (301).
Further, as McHugh J points out in his reasons for judgment, on these
(296) [1913] 2 Ch 469.
(297) [1898] I QB 759.
(298) cf Lyell v Kennedy (1884) 27 Ch D I at 26, 31; Roux v Australian Broadcasting
Commission [1992] 2 VR 577 at 597-598; R v Inland Revenue; Ex parte Goldberg
[1989] QB 267 at 276; Langworth Pty LtvMetway Bank Ltd (1994) 53 FCR 556
at 566-567; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985)
3 NSWLR 44 at 61-62.
(299) Meaning the work which is reflected "in interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and countless other
tangible and intangible ways": Hickmav Taylor (1947) 329 US 495 at 511; see
also National Labor Relations Board v Sears, Roebuck & Co (1975) 421 US 132
at 154-155. The substantial nature of this "work-producmay be significant
where protection in equity is sought in respect thereof to prevent breach of
confidence: see Johns v Australian Securities Commission (1993) 178 CLR 408
at 461.
(300) cf J N Taylor Holdings Ltd v Bond (1991) 57 SASR 21 at 37.
(301) R v Bell; Ex parte Lees (1980) 146 CLR 141 at 154.188 CLR 501] OF AUSTRALIA 571
assumed facts the copy documents would not have been made for the H COF A
sole purpose of obtaining legal advice. 1996-1997
On the other hand, it may be that a broad test of privilege in respect
COMMIS
of copy documents where the original is not privileged rests upon the SIONER OF
practical consideration that protection of the copy is essential to the AUSTRALIAN
proper functioning of the adversary system of adjudication. The denial FEDERAL
POVICE
of privilege in respect of copies of non-privileged non-party PROPEND
documents, made for litigation, would impair the proper preparation of FiNANCE
cases for trial. It would encourage parties to use discovery, rather than PTYLTD
their own investigations, to seek out documents in the hands of third
parties. The point has particular force where prosecuting authorities Gummow J
thereby are tempted to obtain copies from the legal advisers of those
who are suspected or accused of offences. A summary of the
document prepared by the solicitor would attract the privilege. Yet
reproduction of a document is the soundest way of obtaining a record
of its contents for supply by a solicitor to obtain the advice of counsel.
To deny privilege in this case is to encourage slow and more
expensive procedures (302).
In the end, the matter turns upon the application of the basic
principles outlined earlier in these reasons, in particular those (a) that
communications with one's legal adviser which satisfy the criterion of
sole purpose are privileged from disclosure and (b) that this privilege
extends to the various components of a communication, including
material prepared for submission to the legal adviser.
It is not a question of extracting one or other of what may be
numerous documents, all of which form part of the privileged
communication, and declassifying those particular documents on the
footing that the original or other copies exist and there is no bar to
compulsory process for the obtaining of them to put in evidence. The
communication as a whole is protected to foster the confidential
relationship in which legal advice is given and received and thereby to
advance the respect for and observance of the law (303). The
circumstance that a particular document is a copy of an original which
is not protected from compulsory process by the privilege does not
mean that there is no bar to compulsory process for the obtaining of
the copy. The status of the original, from the viewpoint of privilege,
does not determine that of the copy. Of course, if there is an equity of
the kind revealed in Lord Ashburton v Pape, then distinct consider
ations may apply alike to original and copy documents. But that is not
this case.
Rather, the question here is whether, having regard to the
circumstances in which the copy document was brought into existence,
it is to be treated as a communication, or, with other oral or written
(302) See Williams, "FourQuestions of Privilege: the Litigation aspect of Legal
Professional Privilege", Civil Justice Quarterly, vol 9 (1990) 139, at p 160.
(303) Baker v Campbell (1983) 153 CLR 52 at 95, 120, 130.572 HIGH COURT [1996-1997
HCOFA material, an element in a communication, concerning contemplated or
1996-1997 pending litigation or made to obtain or give legal advice. In that
COMMIS setting, it would not be sufficient that the original document was made
SIONER OF in furtherance of an improper purpose such as those asserted in the
AUSTRALIAN nine warrants issued on 2 September 1993. In a particular case it may
FEDERAL
POLICE be established that the communication for which the copy was made is
V part of a criminal or unlawful proceeding or was made in furtherance
PROPEND
FINANCE of an illegal object such as the commission of a crime or fraud (304).
PTYLm But this litigation has not been so conducted as to raise any issue that
the legal advice which was sought was of that character.
GummowJ
It follows that the result reached by the Full Court in setting aside
the second declaration made by the trial judge was correct.
Illegal or improper purpose
As outlined above, the first relevant declaration made by the trial
judge was that "by reason of the allegation of offences" under
ss 86(1)(e) and 86A of the Crimes Act "and of the proof given in
support thereof", certain documents were not subject to the privilege.
The declaration was so framed as to assume the privilege operated in
respect of documents rather than communications. Moreover, the true
issue would have been whether sufficient evidence had been offered in
respect of the proposition that the communications for which the
copies were made were part of a criminal or unlawful proceeding or in
furtherance of an illegal object. If the appellants had made good the
allegation that the offences under the Crimes Act tainted the
preparation and contents of the original documents, the question of
sufficiency of proof still would have remained as to whether the
privileged communications were in furtherance of the conspiracies so
alleged or were part themselves of some other criminal or unlawful
proceedings.
Consideration of the subject of sufficiency of proof thus was
conducted upon a false footing. For that reason alone, the first
declaration was properly set aside. However, it is convenient to
consider whether, had the true issue been addressed, it would have
been incumbent upon the appellants to adduce some admissible
evidence from which there might appear in relation to the communi
cations an illegal or improper purpose or the furtherance of an illegal
object.
The respondents rely upon the statement by Gibbs CJ in Attorney
General (NT) v Kearney (305) (with whom Mason and Brennan 11
agreed (306» that the privilege is not displaced by the making of "a
mere charge of crime or fraud". Before the trial judge, the appellants
tendered an affidavit of Assistant Commissioner P W Baer to which
(304) Rv Bell; Ex parte Lees (1980) 146 CLR at145.
(305) (1985) 158 CLR 500at516.
(306) Kearney (1985) 158 CLR 50at516-517.188 CLR 501] OF AUSTRALIA 573
there was exhibited a copy of the infonnation on which the Justice of H COFA
1996-1997
the Peace had acted in issuing the warrants. The infonnation was
sworn by the second appellant. He gave no evidence at the trial. COMMIS
The appellants submit that search warrants are an "investigative SIONER OF
AUSTRALIAN
tool" and that they are obtained usually at a stage when there is FEDERAL
insufficient evidence to lay criminal charges and, indeed, often are POLICE
obtained in order to ascertain if a suspected criminal offence has V
PROPEND
occurred. They contend that it would appear absurd to require proof of FINANCE
illegality in order to displace legal professional privilege when the PTYLTD
alleged illegality is the very subject matter of the inquiry. Indeed, the
trial judge dealt with this aspect of the case by saying that the GummowJ
infonnation put before the Justice of the Peace "provided evidence
that there were reasonable grounds for suspecting" that the specified
offences had occurred (307).
However, the issue here is not whether the warrants were issued
upon a sworn infonnation which was sufficient then to displace the
privilege. Before the Federal Court, the task of the appellants, in
resisting the privilege propounded by the respondents in their
application under s 39B of the Judiciary Act, was to satisfy the Federal
Court that there was more than an allegation of crime or impropriety,
and that the privilege was displaced. In the Full Court, Hill J explained
the position as follows (308):
"The learned trial judge relied upon the infonnation which had
been admitted into evidence subject to the [respondents'] objection
to it. Without the infonnation there would have been no more than a
bare assertion. The infonnation was exhibited to an affidavit ...
That affidavit no doubt served to identify the infonnation but did
not enable the infonnation to be treated as evidence of the matters
contained in it. Not only was the infonnation itself hearsay,
emanating in part from undisclosed sources but the infonnant was
not available for cross-examination. The infonnation should not
have been admitted into evidence.
As no other evidence of illegal or improper purpose was before
the Court, his Honour should have held that the material for which
privilege was claimed should, in the absence of agreement between
the parties, have been examined to detennine whether the privilege
was properly claimed."
In a number of the authorities dealing with this aspect of the
doctrine of legal professional privilege, the issue has arisen upon the
response to obligations to provide discovery of documents (309) or to
(307) Propend (1994) 35 ALD 25 at 42.
(308) Propend Finance (1995) 58 FCR 224 at 260.
(309) O'Rourke v Darbishire [19201 AC 581; Buttes Gas & Oil Co v Hammer [No 3J
[1981l QB 223; Attorney-General (NT) v Kearney (1985) 158 CLR 500.574 HIGH COURT [1996-1997
HCOFA answer interrogatories (310). In others, for example, Bullivant v
1996-1997
Attorney-General (Viet) (311), the issue arose upon an order to attend
COMMIS and produce documents.
SIONER OF The plaintiff in Butler v Board of Trade (312) instituted a suit
AUSTRALIAN
FEDERAL claiming an injunction against the Board of Trade u'singthe contents of
POLICE a letter written to him by a solicitor. Goff J (313) pointed out that, on
V
PROPEND some occasions, the question whether the privilege does not apply has
FINANCE "to be determined on a prima facie basis, often without seeing the
J>ryLTD documents or knowing what was orally communicated" and that in
such circumstances "the proper prima facie inference will be that the
Gummow J communication was made in preparation for or in furtherance or as
part of the criminal or fraudulent purpose".
In Bullivant, the Attorney-General, by an information filed in the
Supreme Court of Victoria, claimed that certain conveyances had been
executed "with intent to evade the payment of duty" under the
Administration and Probate Act 1890 (Vict). The Attorney
unsuccessfully sought to answer the claim of privilege in respect of
communications with the solicitor who had prepared the conveyances
by reliance solely upon the terms of the information. This attempt was
unsuccessful because, as Lord Lindley pointed out, "evade" was an
ambiguous expression and could identify no more than the doing of
something which would not bring a party within the scope of the
statute (314).
The assertion and determination of claims of privilege may be
attended by special evidentiary considerations. The procedures for
discovery under the Judicature system have been said not to allow for
any right of cross-examination of the deponent of an affidavit of
documents (315) and, subject to the qualifications explained by
Menzies J in Mulley v Manifold (316), the affidavit is conclusive. It
was the view of Bowen CJ (317) that a certificate or affidavit making
a claim to public interest immunity is received not as evidence in the
lis but for the purpose of enabling the court to rule on the claim, so
that any cross-examination going beyond the issue of the claim to
immunity is impermissible (318). Further, in cases of defence secrets,
(310) Follett vletteryes (1850) 1 Sim (NS) 3 [61 ER I].
(311) [1901] AC 196.
(312) [1971] Ch 680.
(313) Butler [1971] Ch 680 at 687.
(314) Bullivant [1901] AC 196 at 207.
(315) Lyellv Kennedy (1884) 27 Ch D I; Brambles Holdings Ltd v Trade Practices
Commission [No 3] (1981) 58 FLR 452 at 454; Fruehauf Finance Pty Ltd v
Zurich AustralianInsurance Ltd (1990) 20 NSWLR 359 at 366; Bray on
Discovery (1885) p 21I. Other authority decides that there is a discretion in the
courttopermit cross-examination: National Crime Authority v S (1991) 29 FCR
203 at 211; Hartogen Energy LvAGL Co (1992) 36 FCR 557 at 560-561.
(316) (1959) 103 CLR 341 at 343.
(317) Young v Quin (1985) 4 FCR 483 at 485-486.
(318) See also Zarro v Australian Securities Commission (1992) 36 FCR 40 at 60-61. 188 CLR SOl]
OF AUSTRALIA 575
matters of diplomatic relations, or affairs of government at the highest HCOFA
level it may so readily appear to the court that the balance of public 1996-1997
interest is against disclosure, that of its own motion the court should COMMIS
enjoin disclosure and do so even in the absence before it of any claim SiONER OF
to Crown privilege; the Crown may not be a party or may be unaware AUSTRALIAN
FEDERAL
of what is afoot (319). But no such special considerations attended the POLICE
adjudication of the privilege claimed in the present proceeding. V
PROPEND
The existence of the privilege may be denied in response to an FINANCE
obligation to allow inspection upon discovery. In such instances, much PTvLTD
will turn upon the particular statute or rules of court regulating
Gummuw J
discovery. Thus, in O'Rourke v Darbishire (320), in the course of a
passage partly extracted by Gibbs CJ in Attorney-General (NT) v
Kearney (321) and in which the phrase "prima facie case" is used,
Viscount Finlay said:
"It is with reference to cases of this kind that it can be correctly
said that the Court has a discretion as to ordering inspection of
documents. It is obvious that it would be absurd to say that the
privilege could be got rid of merely by making a charge of fraud.
The Court will exercise its discretion, not merely as to the terms in
which the allegation is made, but also as to the surrounding
circumstances, for the purpose of seeing whether the charge is made
honestly and with sufficient probability of its truth to make it right
to disallow the privilege of professional communications. In the
present case it seems to me clear that the appellant has not shown
such a prima facie case as would make it right to treat the claim of
professional privilege as unfounded."
These discretionary considerations do not enter into the matter
where one of the issues being tried on the hearing of an action is the
existence of the privilege or where the determination of the existence
of the privilege is a necessary step to the admission of evidence at a
trial. The present case is in the former category, and the decision of the
Court for Crown Cases Reserved in R v Cox and Railton (322) is in
the latter. Cox and Railton had been tried and convicted upon a charge
of conspiring to defraud one Munster. At the trial, a solicitor was
called on behalf of the prosecution to testify that, after Munster had
obtained a judgment against Railton, Cox and Railton had consulted
him as to how they could defeat the judgment. Objection was taken to
the reception of that evidence. The evidence was received but the
question whether this had been properly done was reserved after the
verdict of the jury. The Court for Crown Cases Reserved proceeded on
(319) Sankey v Whit/am (1978) 142 CLR I at 44,58-59.
(320) [1920] AC 581 at 604.
(321) (1985) 158 CLR 500 at 516.
(322) (1884) 14 QBD 153.576 HIGH COURT [1996-1997
HCOFA the footing (323) that the jury had found that, as far as Cox and
1996-1997 . Railton were concerned, their communication with the solicitor was a
COM'-US step preparatory to the commission of a criminal offence, namely, a
SIONER OF conspiracy to defraud.
AUSTRALIAN In the present case, the question for decision bY'the trial judge was
FEDERAL
POlICE whether the appellants had made out a good answer to what otherwise
v would be a claim of privilege. It was not whether there were prima
PROPEND facie grounds to the satisfaction of the Justice of the Peace, before
FINANCE
Pry LTD issuing the warrants, that there was the reasonable ground of suspicion
referred to in s 10 of the Crimes Act. The issue did not arise upon
GummowJ judicial review of the decision of the Justice of the Peace. It arose at
trial, in the manner I have described. Attempts to put glosses upon the
ordinary civil standard of proof which applied at the trial are to be
discouraged.
The best overall guide remains the following statement by Dixon J
in Briginshaw v Briginshaw (324):
"Except upon criminal issues to be proved by the prosecution, it is
enough that the affirmative of an allegation is made out to the
reasonable satisfaction of the tribunal. But reasonable satisfaction is
not a state of mind that is attained or established independently of
the nature and consequence of the fact or facts to be proved. The
seriousness of an allegation made, the inherent unlikelihood of an
occurrence of a given description, or the gravity of the conse
quences flowing from a particular finding are considerations which
must affect the answer to the question whether the issue has been
proved to the reasonable satisfaction of the tribunal. In such matters
'reasonable satisfaction' should not be produced by inexact proofs,
indefinite testimony, or indirect inferences."
In the present case, quite apart from the failure accurately to frame
the relevant issue, the inexactitude, indefiniteness and indirection
referred to by Dixon J crippled the attempt of the appellants to take the
documents in question out of the operation of the doctrine of legal
professional privilege. The result achieved in the Full Court on this
aspect of the case should not be disturbed.
Orders
The course taken at the trial is referable to the somewhat confused
fashion in which the respondents framed their case in the application
and to the absence of any cross-application by the appellants. In all the
circumstances, there should be no fresh hearing on the respondents'
claims to privilege.
Rather, there should be a declaration that those copies of documents,
being copies made for the sole purpose of obtaining or giving legal
(323) Rv Cox and Railto(1884) 14QBD 153 at 165.
(324) (1938) 60 CLR 336 at 361-362. 188 CLR 501] OF AUSTRALIA 577
advice or solely for use in legal proceedings and seized upon execution H COFA
of the warrant, issued 2 September 1993, at the premises of the ninth 1996-1997
respondent, were the subject of legal professional privilege. The
CoMMIS
question of the identification of which particular documents (if any) SIONER OF
fall within the terms of that declaration should be remitted to a single AUSTRALIAN
judge of the Federal Court, for determination, together with any FEDERAL
POvICE
reserved questions of costs of the proceedings at first instance. There PROPEND
was no appeal to the Full Court against Order 7 which reserved those FINANCE
costs. PrvLTD
The appeal should be dismissed. The cross-appeal should be
allowed and upon the cross-appeal, Order 3 of the Full Court should KirbyJ
be varied so as to set aside Orders 4, 5, 6 and 8 of the orders made by
Davies J and provide for a declaration to the above effect and for
remitter of outstanding issues to a single judge of the Federal Court.
The respondents should have their costs in this Court. The Full
Court made no order as to the costs of the appeal to it. That had raised
issues in addition to those which came to this Court. I would not
disturb that costs order.
KIRBY J. In this appeal and cross-appeal from the Full Court of the
Federal Court of Australia (325), special leave was granted to permit
the consideration of two questions of law: I. Whether legal
professional privilege may apply to a communication in a copy
document when no privilege attaches to the original; and 2. Whether
hearsay material may be relied on to displace legal professional
privilege where that privilege is claimed for a communication in the
form of a document alleged to have been made in furtherance of an
illegal or improper purpose.
Allowing an appeal from a single judge of the Federal Court (326)
the Full Court determined the questions adversely to the police who
now appeal to this Court.
A challenge to search warrants and access to documents
The proceedings arise out of an allegation that certain companies in
partnership had made false claims for deductions from income
declared for income tax. The deductions were claimed in respect of the
costs of testing of garments allegedly performed by an overseas
company. It is suggested that only a small part of the moneys remitted
for garment testing actually went to that company. The balance is said
to have found its way to companies in Luxembourg and the Cook
Islands, thence to a local company, Propend Finance Pty Ltd, which
was the financier of the corporate partnership. The prosecution claims
(325) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FeR 224.
(326) Propend Finance Pry Ltd v Commissioner. Australian Federal Police INo 2J
(1994) 35 ALD 25, per Davies J.578 HIGH COURT [1996-1997
1996-1997 that a solicitor was a director of the financier and of the corporate
recipient of funds in Luxembourg and the Cook Islands. By the round
robin arrangement described, it is alleged that the moneys sent
COMMIS
AUSTRALIAN overseas found their way back to Australia in the form of a loan to the
FEDERAL financier under an agreement settled by the solicitor. The police,
POLICE represented by the appellant, the Commissioner of Australian Federal
V
PRoPEND Police, came to suspect that offences had been committed against the
FINANCE Crimes Act 1914 (Cth), ss 86(l)(e) and 86A, involving income tax
PTYLID fraud. Offences against ss 5 and 13 of the Crimes (Taxation Offences)
Kirby J Act 1980 (Cth) were also suspected.
In September 1993, members of the Australian Federal Police
obtained nine search warrants pursuant to s 10 of the Crimes Act.
These warrants, on their face, authorised nominated police officers to
search residential and office premises connected with the respondents
who were, in turn, connected with the companies allegedly involved in
the round-robin. One of the premises so nominated was the offices of
the solicitor. The search of those offices resulted in a number of
challenges to the validity of the search warrant and the lawfulness of
its execution. Some of these challenges were rejected by
Davies J (327). One of them was the subject of earlier proceedings
before the Full Court of the Federal Court, differently
constituted (328). Davies J rejected all of the arguments contesting the
initial validityof the warrants and the manner of their execution. The
correctness of those decisions is not now in question.
In respect of documents for which legal professional privilege was
claimed, the police conformed to a practice established by agreement
with the Law Council of Australia as to the execution of search
warrants on lawyers' premises. Documents which had been seized and
which fell within a claim of legal professional privilege were lodged,
ultimately, in the registry of the Federal Court. Undertakings were
given by the police not to inspect those documents until the resolution
of all of the respondents' legal challenges. Relevantly, those
challenges claimed a return to the solicitor of the documents in respect
of which legal professional privilege was claimed by him on behalf of
his clients.
Decisions in the Federal Court
The point concerning legal professional privilege, now in issue,
arose before Davies J in this way. The respondents (being relevantly
the solicitor and the clients) prepared a schedule of documents in
respect of which they claimed privilege. A group of these comprised
copies of documents the originals of which would not themselves be
privileged in the possession of the clients. The respondents argued that
(327) Propend Finance (1994) 35 ALD 25 at 27-37.
(328) Propend Finance Pty Ltd v Commissioner. Australian Federal Police [NJ 1
(1994) 94 ATC 4399. 188 CLR SOl] OF AUSTRALIA 579
legal professional privilege attached to the communications in those HCoFA
copy documents because the copies had been made for the sole 1996-1997
purpose of obtaining legal advice for the clients in connection with --
SIONEROF
anticipated litigation. There was no evidence or suggestion that the AUSTRALIAN
documents were in any way marked, annotated or organised in ways FEDERAL
different from the non-privileged originals. The police asserted that POLICE
v
privilege did not, in law, attach to the copies as such. They contended PRoPEND
that it did not attach because the original documents were created in FINANCE
furtherance of the illegal schemes the subject of the anticipated PIT LTD
criminal charges. The latter contention was expressed, otherwise, that, Kirby!
if privilege did in law attach, it was displaced by the "exception"
applicable to communications in the furtherance of a crime or
fraud (329). In this way the two issues now before this Court were
presented for decision.
Davies J upheld the police submission in respect of those
communications constituted by copy documents (330). However he
left it to the parties, a judge, registrar, or other agreed independent
person to determine which of the remaining documents were prima
facie entitled to legal professional privilege and which were not (331).
As to these, he was obliged to resolve the suggested taint of illegality
or fraud which either prevented the privilege attaching or resulted in
its loss. Contrary to the submissions of the respondents, Davies J held
that there had been "a sufficient particularisation of and verification of
the allegations of crimes" under the Crimes Act to "overcome the
privilege which would otherwise attach" (332). As to the suspected
offences against the Crimes (Taxation Offences) Act Davies J accepted
that there was no evidence tending to show criminal involvement of
the respondents. In respect of this category of documents, Davies J
rejected the contention that the privilege, which would otherwise
attach, had been lost.
The respondents' appeal wholly succeeded on the point concerning
the communications with the solicitor by way of copy documents. All
Judges comprising the Full Federal Court (Beaumont (333), Hill (334)
and Lindgren (335) 11), for different reasons, rejected any general
(329) R v Cox and Railton (1884) 14 QBD 153 at 165; Carter v Northmore Hale Davy
& Leake (1995) 183 CLR 121 at 130.
(330) Propend Finance Pty Ltd v Commissioner, Australian Federal Police [No 21
(1994) 35 ALD 25 at 37-46, per Davies J.
(331) Propend Finance Pty Ltd v Commissioner, Australian Federal Police [No 21
(1994) 35 ALD 25 at 42, per Davies J.
(332) Propend Finance Pty Ltd v Commissioner, Australian Federal Police [No 21
(1994) 35 ALD 25 at 44.
(333) Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 238.
(334) Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 259.
(335) Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 263.580 HIGH COURT [1996-1997
HCOFA proposition that, in law, legal professional privilege could not attach to
1996-1997 communications by a client with a lawyer by way of the copy of
--- documents which were not themselves privileged. All held that such
COMMIS
SIONER OF communications could, depending on the circumstances in which they
AUSTRALIAN came into existence, be entitled to the privilege if the copies of
FEDERAL documents by which the communication was effected were shown to
POVICE
PROPEND have been made for the sole purpose of obtaining legal advice.
FINANCE Lindgren J was inclined to confine the privilege to copy documents
f>rLTD only if inspection of them would reveal the confidential communi
cation or line of thought of the client or the lawyer which was
KirbyJ privileged from disclosure (336).
All Judges in the Full Court agreed that, in respect of communi
cations by way of other documents which were claimed to have
forfeited or lost legal professional privilege, because created or used in
the furtherance of a crime or fraud, the primary Judge had erred in
relying, in effect, on the police allegation of such wrongdoing without
having any admissible evidence to support it (337). Accordingly, to
that extent, the Full Court set aside Davies 1's orders and directed that
there should be a fresh hearing on the claims for privilege. Those are
the orders of the Full Court which are under challenge in the present
appeal and cross-appeal.
Legal professional privilege and its importance
I address myself first to the question concerning the suggestion that
legal professional privilege may attach to communications by way of
copies of documents held by lawyers for the sole purpose of giving
legal advice, where the original material would not itself be privileged
in the hands of the client or some other person. A number of
considerations inform my approach:
I. The point in issue is the subject of a great deal of conflicting
judicial, academic and other legal opinion. Many (but by no means all)
of the relevant English and Australian cases are collected in a helpful
appendix annexed to the reasons of Lindgren J in the Full Federal
Court (338). It is not suggested that the point now before us is
determined by earlier authority binding on this Court. The respondents
(including the solicitor) urged that the logic of this Court's decision in
Grant v Downs (339), by focusing attention on the purpose for which
the particular communication was brought into existence, provided the
answer to the first question in the form of a simple test, sufficient in
itself. If the "sole purpose" for creating the copies was to
(336) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 268.
(337) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 238-239, per Beaumont J; at 260, per Hill J; at 270, per Lindgren J.
(338) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 270-273.
(339) (1976) 135 CLR 674. 188 CLR 501] OF AUSTRALIA 581
communicate them in order to secure legal advice, then the copies had HCOFA
19%-1997
an existence and a relevant "sole purpose" of their own, separate
from the originals (340). By the common law, they were therefore COMMIS
SIONER OF
entitled to legal professional privilege under the authority of this AUSTRALIAN
Court's decision. But nowhere in Grant v Downs did the Court address FEDERAL
its attention to the precise controversy now before it. In the absence of POLICE
V
a clear statutory provision or of a binding rule of the common law, this
Court must resolve the problem now presented by reference to relevant PROPEND
FINANCE
decided authority, extended by logic and analogous reasoning, and to PTYLTD
legal principle and policy (341).
2. The starting point for the resolution of what the law is, must be a KirbJ
recognition of the importance, for the proper administration of justice,
of having all relevant evidence available to the decision-maker (342).
This is as true in the investigation by police of suspected crime as it is
in the conduct of pre-trial and trial proceedings, criminal and civil.
Especially in the proof of crimes of a complex character, the facility to
have access to relevant contemporaneous materials, is an extremely
important one to confirm or dispel suspicion on the part of police and,
where confirmed, to assist in the accurate proof of the offence to a
court of law. Increasingly, in recent years, including, to some extent,
in criminal proceedings, the Australian legal system has moved away
from trial by ambush. The limits imposed by the common law upon
essential procedural facilities such as search warrants, discovery,
subpoenas, etc, are generally to be fixed in such a way as not unduly
to impede the beneficial operation of these facilities where appli
cable (343). A realisation of this consideration has contributed to a
tendency in Australia to define narrowly the applicability of legal
professional privilege (344). Indeed, it has been suggested that a brake
on the application of legal professional privilege is needed to prevent
its operation bringing the law into "disrepute" (345), principaIly
because it frustrates access to communications which would otherwise
help courts to determine, with accuracy and efficiency, where the truth
lies in disputed matters.
3. Where the power to secure access to documents is provided by or
(340) Grant v Downs (1976) 135 CLR 674 at 688; National Employers' Mutual General
Insurance Association Ltd v Waind (1979) 141 CLR 648 at 656; O'Reilly v State
Bank of Victoria Commissioners (1983) 153 CLR I at 22-23; cf Grant v Downs
(1976) 135 CLR 674 at 677.
(341) Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252.
(342) See, eg, Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128;
Waugh v British Railways Board [1980] AC 521.
(343) Row: v Australian Broadcasting Commission [1992] 2 VR 577 at 600, per
Byrne J.
(344) Ligertwood, Australian Evidence, 2nd ed (1993), pp 226-227, 228-229; Cross and
Tapper on Evidence, 8th ed (1995), p 472; cf United States of America v
Mammoth Oil Co [1925] 2 DLR 966.
(345) Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth",
Modern Law Review, vol 53 (1990) 381.582 HIGH COURT [1996-1997
HCOFA under a statute, the limitations upon the right of access thereby
1996-1997 conferred are any that have been expressed by, or are implied in, the
COMMIS legislative grant of power. The common law principles governing the
SIONER OF ambit of legal professional privilege may be over-ridden by the
AUSTRALIAN legislative grant of power. Each statutory provision must be construed
FEDERAL
POLICE according to its own language and to achieve its expressed purposes.
V Sometimes, legislation has been held to indicate a purpose of
PROPEND
FINANCE extinguishing legal professional privilege (346). But in respect of s 10
PTYLTD of the Crimes Act, which is here in issue, a majority of this Court held
that the Act did not manifest a legislative purpose to oust the privilege,
Kirby! so important is it (347). Any such ouster must be made plain because
of the high public interest which the privilege defends. This principle,
and the decision which supports it, were not called into question in
these proceedings.
4. The fundamental basis of legal professional privilege, which has
been upheld by the common law since at least the sixteenth century,
has been variously described. Early cases suggested that it belonged to
a solicitor and derived from his Honour as a "professional man and a
gentleman (348)". However, this explanation gave way to the current
understanding that the privilege belongs to the client. It protects the
client's interests; but also the interests of the entire community in the
proper administration of justice. In some jurisdictions of the common
law, notably England, the doctrine has, at least until lately, been seen
as no more than a rule of evidence (349). However, in other
jurisdictions, itis described as resting upon a more fundamental basis.
In Canada it has been suggested that, in criminal proceedings at least,
its character may now be derived from the Canadian Charter of Rights
and Freedoms, which guarantees to accused persons access to
counsel (350). It has therefore been characterised as a basic civil
(346) See, eg, O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR I in
respect of the Income Tax Assessment Act 1936 (Cth), s 264(1) (now in part
overruled by Baker v Campbell (1983) 153 CLR 52). See also Corporate Affairs
Commission (NSW) v Yuill (1991) 172CLR 319 in respect of the Companies (New
South Wales) Code, s 295(1); Pyneboard Pty Ltd v Trade Practices Commission
(1983) 152 CLR 328 at 341; Mortimer v Brown (1970) 122 CLR 493 at 499;
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156
CLR 385.
(347) Baker v Campbell (1983) 153 CLR 52, per Murphy, Wilson, Deane and
Dawson 11;Gibbs CJ, Mason and Brennan 11dissenting.
(348) Discussed in Sopinka, Lederman and Bryant, The Law of Evidence in Canada,
2nd ed (1992), p 635. Remnants of this view persist in the United States of
America, as Gummow J points out.
(349) The English position appearso be in the process of change. See R v Derby
Magistrates' Court; Ex parte B [1996] 487 at 507; but cf In re L (A Minor)
[1997]AC 16 at 24-25.
(350) Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992),
p672.188 CLR 501] OF AUSTRALIA 583
right (351). Similar language has been used in New Zealand (352). In HCoFA
this Court, the language has been, if anything, even more emphatic. In t996-1997
Attorney-General (NT) v Maurice (353), Deane J described the COMMIS
doctrine as "a substantive general principle of the common law and SIONER OF
AUSTRALIAN
not a mere rule of evidence". It is "of great importance to the FEDERAL
protection and preservation of the rights, dignity and freedom of the POLICE
ordinary citizen under the law and to the administration of justice and V
PRoPEND
law". It defends the right of the individual to consult a lawyer and that FINANCE
is "a bulwark against tyranny and oppression". For these reasons it is Pry LTD
not "to be sacrificed even to promote the search for justice or truth in
Kirby J
the individual case" (354). No more vivid illustration of the strength
of the principle in this country, and of its rigorous application by this
Court could be found than in Carter v Northmore Hale Davy &
Leake (355). A practical consideration called to notice by McHugh J in
Carter needs to be kept in mind. A great deal of material in the
possession of legal advisers (and clients) would not be admissible at
common law as hearsay. But, under legislation for the admission of
business records and other documentary evidence now applicable in
most Australian jurisdictions, it would be admissible in defined cases.
If that legislation were available, it might be necessary to call the legal
adviser or some other person, to give evidence concerning the fact or
matter referred to in the communication. That, in turn, could open up
the nature and existence of the communication which would display
the secret, contrary to the client's wishes and interests.
5. Once the doctrine applies and is not excluded by the various
derogations and exceptions recognised by the common law, it attaches
to the communications concerned. No further balancing of public
interests, for example between that of protecting the privilege and that
of securing the truth, is either necessary or possible (356). Legal
professional privilege is itself the product of a balancing exercise
between competing public interests. The derogations and exceptions
are sufficient to express the competing public interests (357). Thus the
search, where the doctrine is invoked, concerns solely whether, given
its definition, it applies to the communications in question or not.
6. Various reasons of a practical character have been suggested as to
(351) Solosky v Canada (1980) 105 DLR (3d) 745 at 760, per Dickson J.
(352) R v Uljee [1982] I NZLR 561 at 569, per Cooke J. See also the position in the
European Court of Justice in A M & S Europe v Commission [1983] QB 878
at 913, noted in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121
at 145; cf Saunders v United Kingdom (unreported; European Court of Human
Rights; 17 December 1996).
(353) (1986) 161 CLR 475.
(354) Maurice (1986) 161 CLR 475 at 490; cited in Goldberg v Ng (1994) 33 NSWLR
639 at 654-655.
(355) (1995) 183 CLR 121.
(356) Waterford v The Commonwealth (1987) 163 CLR 54.
(357) Waterford v The Commonwealth (1987) 163 CLR 54 at 64; Carter v Northmore
Hale Davy& Leake (1995) 183 CLR 121 at 134-135.584
HIGH COURT [1996-1997
HCOFA why the common law developed such a strong principle which would
1996-1997 be "accorded paramountcy over the public interest that requires, in the
COMMIS interests of a fair trial, the admission in evidence of all relevant
SIONER OF documentary evidence" (358). Many of these reasons refer to the need
AUSTRALIAN to provide to every person a protected zone for completely candid
FEDERAL
POLICE communication with a lawyer concerning civil or criminal proceedings
v commenced or apprehended. The doctrine's practical object is thus to
I'ROP£ND
FINANCE remove from the client's concerns an apprehension that matters
J>ryTD communicated to the lawyer for the purpose of securing such advice
might thereafter be used against the interests of the client (359). If that
Kirby)
were a possibility, and the rule were not simple and clear in its
operation, clients might not frankly and fully communicate their
problems to lawyers and produce all documents and other evidence
relevant to the provision of proper legal advice. This would be
counter-productive to the efficient and accurate provision of advice,
the best available presentation of the client's case (if need be) and the
achievement of well-informed settlements in civil litigation or pleas in
criminal trials. Other authorities view the doctrine as an outgrowth of
the adversary system of trial observed by the common law (360). That
system may have defects and be in need of reform (361). But whilst it
is maintained, the boundaries of the doctrine of legal professional
privilege must take into account the fundamental assumption of the
system that parties should ordinarily be able to communicate with their
lawyers without fear that the confidentiality of their communication
will be invaded except in clear, limited and defined circumstances.
Respecting that fundamental assumption has been said to contribute to
community respect for the law (362).
7. In considering the boundaries of the operation of the doctrine of
legal professional privilege, it is essential both to fulfil the purposes
upheld by the doctrine, as described above, and to confine its operation
to the extent strictly necessary for the fulfilment of those purposes. In
Australia, two relevant limitations in the expression of the ambit of the
common law doctrine of legal professional privilege may be
mentioned. The first is that it is now settled that the privilege, at
common law, extends only to communications brought into existence
for the sole purpose of submission to legal advisers for advice or for
(358) Wateryordv The Commonwealth (1987) 163 CLR 54 at 65.
(359) Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128.
(360) Hobbs v Hobbs and Cousens [1960) P 112 at 116; Regional Municipality of
Ottawa-Carleton v Consumers' Gas CoLtd (1990) 74 DLR (4th) 742 at 748-749.
(361) Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 133, per Deane J.
The Australian Law Refonn Commission is examining aspects of the suggested
defects of the adversarial system: see Australian Law Reform Commission,
Background Paper No 3 - Adversarial - Judicial and Case Management (1996).
(362) Miller, "The Challenges to the Attorney-Client Privilege", Virginia Law Review,
vol 49 (1963) 262; noted in Yuill v Corporate Affairs Commission (NSW) (1990)
20 NSWLR 386 at 405. See also Baker v Campbell (1983) 153 CLR 52 at 86,
112;Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490.188 CLR 501] OF AUSTRALIA 585
use in legal proceedings (363). In England, Canada and other common HCOF A
law jurisdictions, a test of "dominant purpose" was adopted (364). 1996-1997
But not by the Australian common law (365). Secondly, it is COMMIS
repeatedly emphasised that what is protected is communication SiONER OF
between lawyer and client and with a third party in connection with AUSTRALIAN
FEDERAL
the giving of legal advice. It is not the documents, as such, which POLICE
attract the privilege, still less the information within them. It is the v
PROPEND
communication to and by the lawyer (366). However, for practical FINANCE
purposes, in response to search warrants, orders of discovery and Pry LTD
subpoenas, proof of the communication in the past would ordinarily
Kirby!
involve documents. Because of advances in information technology,
compulsory process will now, increasingly, involve the multitude of
material forms used in effecting communication: ranging from
photocopies of original documents to audio/video tapes and computer
software. Necessarily, the doctrine of legal professional privilege must
adapt to a world in which these media are the stuff of disputes
concerning criminal and civil obligations and the rights of clients.
8. A large controversy exists in respect of the duration of legal
professional privilege. Some authorities support the proposition that,
once it attaches, it endures for all time, unless waived or otherwise lost
by the operation of the doctrine (367). Other authorities suggest that
communications with third parties (as distinct from with the client
itself) may not continue to enjoy privilege beyond the end of the
relevant litigation or dispute (368). Other authorities (including the
opinion of Hill J in the Full Court in the present case) are prepared to
accept that the privilege may be spent in time (369). In the
circumstances of this case, it is unnecessary to explore that issue as the
proceedings are still current.
Legal professional privilege and copies - four possible approaches
Various responses have been expressed in judicial opinions in
respect of communications constituted by copies of evidentiary
materials not themselves entitled to privilege but which are submitted
to legal advisers for advice or for use in legal proceedings and for that
(363) Grant v Downs (1976) 135 CLR 674 at 688.
(364) See now Evidence Act 1995 (Cth), s 118; Gillies, Law ()f Evidence in Australia,
2nd ed (1991), P 448.
(365) See, eg, National Employers' Mutual General Insurance Association Ltd v Waind
(1979) 141 CLR 648 at 648; O'Reilly v State Bank of Victoria Commissioners
(1983) 153 CLR I at 22-23.
(366) Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 238, per Beaumont J; at 253, 258, per Hill J; at 264, per Lindgren J.
(367) See Hobbs v Hobbs and Cousens [1960) P 112 at 117; Re Goodman and Carr and
Minister of National Revenue (1968) 70 DLR (2d) 670.
(368) Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992),
p 659.
(369) See, eg, R v Ata(JU[1988) QB 798 at 807, per French J; citing R v Craig [1975)
1 NZLR 597 at 598, per Cooke J.586 HIGH COURT [1996-1997
H COFA use only. Four different responses can be discerned. It will be helpful
1996-1997
to conceptualise the competing possibilities by mentioning the
COMMIS approaches hitherto endorsed by courts.
SIONER OF I. First, there are the cases which have held that no copy acquires
AUSTRALIAN
FEDERAL the protection of legal professional privilege, in whatever circum
POLICE stances, if the original is not itself privileged. The contrary view has
V
PROPEND been described as "absurd and anomalous" (370) and
FINANCE "suspect" (371). It has been said that, to accept it, is to defy
PTyLm commonsense (372). Various hypotheses have been paraded to
demonstrate the unacceptability of extending the privilege, notably the
KirbyJ possibility that the client could destroy the original documents, give a
copy to its lawyer for advice and then shelter behind the privi
lege (373). Since the advent of photography, it is argued, the copy is
but the mirror image of the original. So it is with electronic
reproductions. The original, held in the lawyer's office would not be
entitled to protection of legal professional privilege simply because of
its locus (374). Accordingly, the facsimile or photographic copy could
not do so. This view probably commands majority judicial assent in
common law countries and much support in academic writing,
including in Australia (375).
2. Then there are the authorities which disclaim a universal rule for
communications with lawyers by copies but would allow, in certain
circumstances, that copies might aUract the protection of legal
professional privilege. Thus, if copy documents bore the notes of a
lawyer they would, to that extent, be privileged (376); if selective
copying revealed the line of the client's concerns or the lawyer's
advice, the copies to that extent would be privileged (377); if the
copies come into the hands of the lawyers after the compulsory
process in question and are placed in counsel's brief, they may be
exempt from production (378).
3. A third approach suggests that copies may be the subject of the
(370) Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652 at 660, per
Clarke J.
(371) Bulles Gas & Oil Co v Hammer [No 3[ [1981] QB 223 at 244.
(372) Ligertwood, Australian Evidence, 2nd ed (1993), p 218; Zuckennan"Legal
Professional Privilege and the Ascertainment of Truth", Modern Law Review,
vol 53 (1990) 381, at p 383.
(373) Zuckennan, "Legal Professional Privilege and the Ascertainment of Truth",
Modern Law Review, vol 53 (1990) 381.
(374) See, eg,odgkinson v Simms (1988) 55 DLR (4th) 577 at 594, per Craig JA.
(375) Ligertwood, Aust Evidence, 2nd ed (1988), p 218; Heydon, Cross on Evidence,
5th Aust ed (1996), par 25275.
(376) McCaskill v Mirror Newspapers Ltd [1984] I NSWLR 66, per Hunt J; Water
Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 139.
(377) Dubai Bank Ltd v Galadari [1990] Ch 98; J N Taylor Holdings Ltd (In liq) v Bond
(1992) 57 SASR 21; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd
(1985) 3 NSWLR 44 at 61-62, per Wood J.
(378) TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693
at 699.188 CLR 501] OF AUSTRALIA 587
privilege but not in respect of documents available in public registers H COF A
1996-1997
or otherwise legally exempt (379).
4. A fourth group of cases supports the proposition that, in every COMMIS
SIONER OF
disputed instance, a simple task of characterisation must be performed. AUSTRALIAN
If the sole purpose of the production of the particular medium of FEDERAL
communication (original or copy) is for submission of that medium to POLICE
v
legal advisers for advice or for use in actual or apprehended legal
proceedings, that is enough. The privilege attaches to it. If those with PROPEND
FINANCE
access to compulsory process wish to enforce that process, they must PTYLm
do so by directing that process to the holder of the original, if they
can. They cannot invade the confidentiality of the communication KirbyJ
between the client and the legal advisers unless, for other legal
reasons, the privilege is excluded or lost.
Legal professional privilege may attach to copies
In my view, the Full Federal Court was right to conclude that legal
professional privilege may attach to the copies of communications
provided to a lawyer for the sole purpose of advice or use in actual or
apprehended legal proceedings. Legal authority on this point has, until
now, been unclear, at least in this country. Here, as in England and
elsewhere, it has vacillated. To resolve the difference, it is necessary to
recall the basic reason for legal professional privilege. The trend in
English judicial authority, generally supporting the limits which the
appellant has urged on this Court, is to be understood by viewing the
doctrine of legal professional privilege as a mere rule of evidence.
Until recently, that is how the English Courts have seen it (380). But
as repeated and recent authority of this Court has made plain, in
Australia it is more than that. In its modern understanding, it is a
fundamental feature of our system for the administration of justice. It
is essential to the defence of rights and freedoms and for the protection
of the individual who is, or apprehends that he or she may be, in legal
difficulties. It is true that, sometimes, hiding behind the privilege, are
powerful wrong-doers. But the law protects them because the privilege
is deeply embedded in our society's notions as to how the rule of law
can best be achieved for all. The privilege protects the weak, the
frightened, the unpopular and the disadvantaged.
Having regard to the way in which this Court has lately portrayed
the privilege, and explained its purposes, it should defend the right of
the individual to provide to legal advisers all relevant copy material
necessary to obtain accurate legal advice. It would be artificial, absurd
(379) See, eg, Watson v Cammell Lai&dCo (Shipbuilders and EnRineers) Ltd [1959]
1 WLR 702; [1959] 2 All ER 757; R v Board of Inland Revenue; Ex parte
Goldberg [1989] QB 267; Shaw v David Syme & Co [1912] VLR 336; Davis v
Lambert-Bain Pty Ltd [1989] Tas R 274.
(380) See now R v Derby Magistrates' Court; Ex parte B [1996] I AC 487 at 507; cf
discussion of the Police Bill 1996 (UK) in House of Lords, Parliamentary
Debates (Hansard), 26 November 1996, pp 203-242.588 HIGH COURT [1996-1997
HCOF A and anomalous if a client were forced to seek advice by oral
1996-1997
communications, rote learning of documents or summaries, only or
COMMIS mainly, to avoid the peril that the provision of actual copy documents,
SIONER OF and copies of like evidentiary material, would be susceptible to
AUSTRALIAN
FEDERAL compulsory process. Far from reducing the argument for extending the
POLICE privilege to copies because of technological developments, such
v advances make it essential that the law acknowledges their existence
PROPEND and that they need to be provided to lawyers in the course of a client's
FINANCE
PTYLTD securing appropriate legal advice.
If the task of characterising the "sole purpose" of bringing the
KirbJ material communication into existence is properly performed, it
affords a sufficient answer to the first question before the Court in the
appeal. Thus, if, properly characterised, a copy document was brought
into existence to permit the original to be destroyed and not solely for
the purpose of securing legal advice, it would fall outside the
protection of the privilege. If the destruction of the original were done
in pursuance of a crime or fraud, the privilege could be lost.
Conceding that there are some anomalies whichever view the Court
adopts, there are fewer artificialities if the Court insists upon the logic
of the principle established by it in Grant v Downs (381). Only by
doing so will the Court safeguard the zone of professional
confidentiality which serves the high purposes which have repeatedly
and rightly been upheld. Only in this way will we offer a principle
appropriate to the adversary system which is a cardinal feature of the
administration of justice in this country.
The view to which I have come was well expressed by a Canadian
judge (382):
"[A]ny benefit that might flow to the parties and the court in this
case by ordering such production would be gained at the expense of
serious interference with our adversarial system of justice and would
reduce the likelihood of full and early disclosure in future cases.
The adversarial system is based on the assumption that if each
side presents its case in the strongest light the court will be best able
to determine the truth. Counsel must be free to make the fullest
investigation and research without risking disclosure of his opinions,
strategies and conclusions to opposing counsel. The invasion of the
privacy of counsel's trial preparation might well lead to counsel
postponing research and other preparation until the eve of or during
the trial, so as to avoid early disclosure of harmful information. This
result will be counter-productive to the present goal that early and
thorough investigation by counsel will encourage an early settlement
of the case. Indeed, if counsel knows he must turn over to the other
(381) (1976) 135 CLR 674.
(382) Regional Municipality of Ottawa-CarveConsumers' Gas Co Ltd (1990) 74
DLR (4th) 742 at 748-749, per O'Leary J.188 CLR 501] OF AUSTRALIA 589
HCOFA
side the fruits of his work, he may be tempted to forgo 1996-1997
conscientiously investigating his own case in the hope he will obtain
disclosure of the research, investigations and thought processes COMMIS
compiled in the trial brief of opposing counsel ... SIONER OF
AUSTRALIAN
[Although statute may derogate] I believe, that the ... privilege is FEDERAL
required to preserve the integrity of the adversarial system." POLICE
v
With some adaptation, the same comments apply to the search PROPEND
warrant in issue here. Test it further thus. If copies of original FINANCE
documents could be secured by the simple expedient of executing PTvLTD
search warrants in complex criminal cases, upon offices of the known Kirby)
legal advisers of the accused, various consequences might follow.
Certainly, documents and other materials would in some cases be
secured under search warrant which may help to win cases, prove
difficult points, bring the guilty to justice and establish their wrong
doing. But these consequences would be bought at too high a price.
Clients would lose their faith in their supposed entitlement to consult
legal advisers with copies of all relevant materials produced for their
advice. The legal advisers themselves would doubtless advise the
client not to provide copy documents or other materials and to store
them elsewhere than in the legal offices. The disruption to solicitors'
offices and the orderly provision of advice, including advice to other,
unconnected, clients, would be considerable. Lazy prosecution
practices would be encouraged so that instead of going to the source,
for the original medium, police and other investigators would be
tempted to seek copies from suspects' or accuseds' legal advisers. An
undesirable practice of "trawling", to use the word of the Director of
Public Prosecutions, in the offices of legal advisers might become the
norm. Evidentiary materials, the originals of which are outside the
jurisdiction, could be obtained by this expedient whereas the originals
could not. Such consequences would undermine not only the adversary
system, as it has heretofore operated, but also respect for the rule of
law. Of course, it is said that these extreme possibilities would never,
in practice, occur. Perhaps not. But the legal proposition advanced for
the appellants must be tested by the consequences that would follow if
it became a general rule and a common occurrence. Following the
logic of Baker v Campbell (383), if it is to become such in respect of
search warrants such as those here in question, it must happen with the
express authority of Parliament.
In every case, it is for the lawyer whose materials are seized, and
who believes them to be the subject of legal professional privilege to
claim that privilege on behalf of the client. If the materials apparently
fall within the warrant, and there is a dispute as to excepting them, it is
then necessary to invoke the process of differentiation in which
Davies J became engaged in the present case. Neither the assertion of
(383) (1983) 153 CLR 52.590 HIGH COURT [1996-1997
HCOFA the privilege, nor an allegation that it is lost, will establish those
1996-1997 propositions if they are disputed. It is for a judicial officer or other
........,
COMMIS appropriate decision-maker, if it goes so far, to examine the materials
SIONER OF and to rule upon them seriatim (384). There is thus a safeguard which
AUSTRALIAN
FEDERAL permits the conflicting public interests at stake to be evaluated and the
POLICE law to be upheld in deciding a contested claim for legal professional
y privilege.
PROPEND
FINANCE The question as to whether legal professional privilege can apply to
PTyLm a copy document when no privilege attaches to the original should
therefore be answered in the affirmative. To that extent, the appeal
KirbJ
from the orders of the Full Court of the Federal Court should be
dismissed. To clarify what should now happen I agree in the course
which Gaudron J has proposed for the disposal of the appeal and
cross-appeal.
Attempt to overcome the privilege
A second point was argued, upon which it is convenient to make
some comments. Davies J determined that the material provided to
him by the police was sufficiently persuasive of the existence of a
disqualifying crime or fraud, as to displace any legal professional
privilege in relation to documents allegedly connected with offences
against the Crimes Act, but not the Crimes (Taxation Offences) Act.
In respect of the documents falling into the latter class, the police
relied upon the sworn information which was placed before the
primary Judge as an annexure to an affidavit of an Assistant
Commissioner of Federal Police read in an early interlocutory stage of
the proceedings. That affidavit had been produced in connection with a
claim of public interest immunity made in respect of part of the
information no longer relevant. The Assistant Commissioner was
neither the informant who had sworn the original information for the
purpose of securing the search warrant. Nor was he able personally to
swear to the truth of the matters contained in the information or even
his belief in such truth. When the question arose before Davies J as to
whether identified documents were covered by legal professional
privilege, no affidavit was supplied by the police officer who had
sworn the information, viz, the then Detective Sergeant Alan Taciak,
the second appellant before this Court. Nor was Mr Taciak called to
give oral evidence before Davies J. The police representative simply
read again, over objection, the affidavit of the Assistant Com
missioner.
In these circumstances, the respondents contend that Davies J erred
in upholding (385) the submission that any part of the material, the
subject of the claim for legal professional privilege, lost that privilege
(384) GrantvDowns (1976) 135 CLR 674 at689.
(385) Propend Finance Ply Ltd v Commissioner. Australian Federal Police lN2J
(1994) 35 ALD 25at 42. 188 CLR 501] OF AUSTRALIA 591
on the ground that it had been shown to have come into existence in HCOF A
1996-1997
furtherance of a disqualifying purpose, ie a crime or fraud. In the Full
Court, Beaumont J (386) sustained this complaint. He found that, in
COMMIS
the absence of "some admissible evidence to show why the Court SIONER OF
should disallow the privilege", Davies J had erred in upholding the AUSTRALIAN
police contention that any privilege had been lost. Hill J (387) FEDERAL
POLICE
concluded that, absent any evidence as to the truth of its contents, the v
copy information did not prove the truth of the matters stated in it, so PROPEND
FINANCE
that the objection for the respondents to its being read should have PryLm
been upheld. Lindgren J (388) agreed.
Kirby!
The appellant argued that it was permissible to rely on the
information itself to prove that there was evidence supporting the truth
of the allegations made (389) and that Davies J had been entitled to
look at its contents to see whether, on its face, a case had been made
for displacement of legal professional privilege on the ground,
relevantly, of illegality. In support of this argument it was urged that
search warrants are, of their nature, investigative facilities. They are
secured to ascertain if a suspected criminal offence has occurred and if
there is sufficient evidence to lay criminal charges against identified
persons. In these circumstances, it would defeat the achievement of
their lawful purpose to require the informant, seeking the issue of a
search warrant, to establish in every case, with particularity, proof that
illegality had in fact occurred when the investigation of such illegality
was the very subject matter of the proposed search.
Displacement of the privilege for crime or fraud
The principles applicable to the resolution of these conflicting
arguments are not in doubt, although their application sometimes gives
rise to difficulty:
1. The person alleging that legal professional privilege is lost for
illegality must state clearly the charge of illegality made for the
purpose of showing, with some precision, what it is (390). Vague or
generalised contentions of crimes or improper purposes will not
suffice.
2. The mere making of an allegation of a crime or of fraud is not
sufficient to "get rid of privilege" (391). Something more must be
(386) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 238-239.
(387) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 260.
(388) Propend Finance Pry Ltd v Commissioner of Australian Federal Police (1995) 58
FCR 224 at 270.
(389) cf R v Cox and Railton (1884) 14 QBD 153 at 175-176.
(390) Bullivant v Attorney-General (Viet) [1901] AC 196 at 201; applied Attorney
General (NT) v Kearney (1985) 158 CLR 500 at 516.
(391) O'Rourke v Darbishire [1920] AC 581 at 604. See also K-West Estates Ltd v
Linemayr, McCandless and Zacharias; Westcoast Savings Credit Union v
Linemayr [1984] 4 WWR 375 at 379.592 HIGH COURT [1996-1997
HCOFA added, as it has been described, to "give colour to the charge" (392).
1996-1997 The reason for this requirement is simple enough. It is a serious thing
to override legal professional privilege where it would otherwise be
COMMIS
SIONER OF applicable. Once overridden, it is difficult, or impossible, to restore the
AUSTRALIAN status quo ante. That is why, where a contest arises, it is important that
FEDERAL it be resolved accurately and lawfully because the situation can rarely,
POvICE
PRoPEND if ever, be retrieved. Where, as is sometimes the case, it is suggested
FINANCE that the lawyer has been a party to the relevant crime or fraud, the
PTyLTD allegation, if made good, will ordinarily have extremely serious
consequences for the person so accused. This is another reason why a
Kirby! mere allegation, without more, is insufficient to displace the
privilege (393).
3. Some decisional authority suggests that evidence, even "strong
evidence" is required to "do away with the privilege" (394). Whilst
what is required will depend upon the particular facts of each
case (395) and although sunnise and conjecture will never be
sufficient, something less than the full proof of illegality by admissible
evidence must suffice. This is because of the nature and purposes of
the compulsory process, the interlocutory stage at which the
consideration of this issue typically takes place and the complete
unacceptability of turning that stage into a full-scale trial of the
suggested illegality (396). The primary decision-maker is certainly
entitled to look at the sworn infonnation (397). But something more is
required, by way of "admission or affidavit allegations of
facts" (398). Otherwise, the infonnation amounts to no more than the
prosecutor's assertion of what it is hoped may be proved. When some
evidence is supplied then, "the seal of secrecy is broken" (399). But
not before.
Loss of privilege: conclusions
When the foregoing principles are applied to the facts of this case, I
come to the same conclusion as did the Judges in the Full Court of the
Federal Court. Something more was required than the infonnation
attached to an affidavit, prepared for a different purpose by a deponent
who could not be questioned on it and who did not even swear to his
infonnation and belief.
It is impossible to fix with precision the material that will be
required. But it is such as would' 'lead a reasonable person to see" a
(392) O'Rourke v Darbishire [1920] AC 581 at 604.
(393) Attorney-General (NT) v Kearney (1985) 158 CLR at516, per Gibbs CJ.
(394) Buttes Gas & Oil Co v Hammer INo 3J [1981] QB 223 at 246; Carter v
Northmore Hale Davy & Leake (1995) 183 CLR 121 at 165-166.
(395) O'Rourke v Darbishire [1920] AC 581 at 623.
(396) O'Rourke v Darbishire [1920] AC 581 at 614.
(397) cf Baker v Evans (1987) 77 ALR 565.
(398) O'Rourke v Darbishire [1920] AC 581 at 633.
(399) Clark v United States (1933) 289 US 1 at 15.188 CLR 501] OF AUSTRALIA 593
strong probability that there was a disqualifying crime or fraud (400), HCOF A
although not necessarily that the lawyer was a party to it (401). The 1996-1997
line lies short of the full trial of the issue, for that would be COMMIS
inappropriate to the process invoked. Indeed, in many cases it would SIONER OF
defeat or frustrate the achievement of its purpose. Equally, it falls short AUSTRALIAN
FEDERAL
of the requirement to make out with "strong evidence" a prima facie POLICE
case of crime or fraud. But it also goes beyond an unchallengeable V
allegation by hearsay evidence such as was offered in this case. PRoPEND
FINANCE
The second question upon which special leave to appeal was granted PTv Lm
therefore requires an elaborated answer. Hearsay evidence may be
relied upon to displace legal professional privilege where that privilege Kirby)
is claimed for materials alleged to have come into existence in
furtherance of crime or fraud. But hearsay evidence alone, which
amounts to no more than the assertion of what is suspected and sought
to be proved, will not be sufficient to displace the privilege. Something
more will be required to warrant the serious step of overriding the
legal professional privilege and thus of depriving the client of the
protections of such privilege. Something more was required in the
facts of this case.
This was especially so because the proceedings in this case were not
conducted upon the basis that the copy documents in question were
provided by the lawyer in furtherance of a fraud or to frustrate the
processes of the law. What was suggested was that the originals were
the means of effecting the fraud or illegality and that the copies were,
for that reason, equally tainted by the illegality of the original. Once
that view is rejected, the documents were properly seen as
communications prima facie entitled to the shield of legal professional
privilege. To penetrate that shield the police needed more than a mere
assertion about the originals, and that based upon untestable hearsay
evidence.
Future cases must be decided on their own facts taking into account
the preliminary character of the decision as well as its serious
consequences for the various interests involved. But in this case the
Full Court rightly exposed a defect in the procedure followed by the
primary Judge. The challenge to that finding fails.
Orders
I agree in the orders proposed by Gaudron J.
1. Appeal dismissed.
2. Cross-appeal allowed.
3. Vary Order 3 of the Orders of the Full Federal
Court to read:
"Orders 4, 5, 6 and 8 be set aside; and
(400) O'Rourke v Darbishire [1920] AC 5at633.
(401) ClarkvUnited States (1933) 289 USat15.594 HIGH COURT [1996-1997
HCOF A (a) declare that legal professional privilege
1996-1997 attaches to those copy documents (if any)
which were made solely for the purpose of
COMMIS
SIONER OF obtaining or giving legal advice or solely for
AUSTRALIAN use in legal proceedings and which were in
FEDERAL
POLICE the possession of the ninth respondent and
V were seized upon execution of the warrant,
PROPEND
FINANCE issued 2 September 1993, at the premises of
PTyLTD the ninth respondent; and
(b) order that the matter be remitted to a single
judge of the Federal Court for determination
of the application in accordance with that
declaration and for determination of the
question of costs reserved by Davies J. "
4. The appellants pay the respondents' costs in this
Court.
Solicitor for the appellants, Director of Public Prosecutions (Cth).
Solicitors for the respondents, Minter Ellison.
CMC FEDERAL COURT OF AUSTRALIA
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5)
(2006) 155 FCR 30, [2006] FCA 1234
EVIDENCE – legal professional privilege – documents required to be produced by notice
under Royal Commissions Act 1902 (Cth) – whether documents brought into existence for the
dominant purpose of giving or obtaining legal advice – whether documents brought into
existence in furtherance of fraud or improper purpose – waiver of privilege – imputed waiver
– associated material waiver – whether privilege has been waived by disclosures made by
applicant to Independent Inquiry Committee into the United Nations Oil-For-Food Program,
Australian Government and royal commission
Royal Commissions Act 1902 (Cth) ss 2(3A), 6AA(2)
Royal Commissions Amendment Act 2006 (Cth)
Judiciary Act 1903 (Cth) s 39B
Evidence Act 1995 (Cth) ss 69, 78, 79, 135
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 discussed
Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 approved
Daniels Corporations International Pty Ltd v Australian Competition & Consumer
Commission (2002) 213 CLR 543 approved
Waterford v Commonwealth (1987) 163 CLR 54 cited
Grant v Downs (1976) 135 CLR 674 cited
Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 cited
National Crime Authority v S (1991) 29 FCR 203 cited
Candacal Pty Ltd v Industry Research & Development Board (2005) 223 ALR 284 cited
Seven Network Limited v News Limited [2005] FCA 142 cited
Kennedy v Wallace (2004) 142 FCR 185 applied
Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (No 6) [2001] SASC 398
cited
Kennedy v Wallace (2004) 208 ALR 424 considered
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 considered
Balabel v Air India [1988] 1 Ch 317 approved
Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow [1995] 1 All ER 976
cited
Three Rivers District Council v Governor and Company of the Bank of England (No 6)
[2005] 1 AC 610 cited
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 considered
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151 cited
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
applied
Trade Practices Commission v Sterling (1979) 36 FLR 244 cited
Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224
considered - 2 -
Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469 cited
GSA Industries (Aust) Pty Ltd v Constable (2002) 2 Qd R 146 cited
Glengallan Investments Pty Ltd v Arthur Andersen (2002) 1 Qd R 233 cited
Commonwealth v Vance (2005) 158 ACTR 47 cited
Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority (2002) 4 VR 332 cited
Mann v Carnell (1999) 201 CLR 1 applied
Attorney-General (NT) v Maurice (1986) 161 CLR 475 discussed
Goldberg v Ng (1995) 185 CLR 83 considered
Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 distinguished
Goldman v Hesper [1988] 1 WLR 1238 cited th
Trans America Computer Co Inc v IBM Corporation 573 F2d 646 (9 Cir 1978) cited
Baker v Campbell (1983) 153 CLR 52 approved
Restom v Battenberg [2006] FCA 781 considered
Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 cited
Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253 considered
British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113 considered
Gotha City v Southeby’s (No 1) [1988] 1 WLR 1114 cited
Giannarelli v Wraith (No 2) (1991) 171 CLR 592 considered
Weil v Investment/Indicators Research and Management, Inc 647 F2d 18, 24 (9 Cir 1981)
cited
United States v Aronoff 466 FSupp 855 (DC NY 1979) cited
In re Sealed Case 676 F2d 793 (DC Cir 1982) considered
United States v AT & T Co 642 F2d 1285 (DC Cir 1980) cited
Diversified Industries Inc v Meredith 572 F2d 596 (8 Cir 1977) questioned
Permian Corp v United States 665 F2d 1215 (DC Cir 1981) cited
th
In re Weiss 596 F2d 1185 (4 Cir 1979) cited
S & K Processors Ltd v Campbell Ave Herring Producers Ltd (1983) CPC 146 (BCSC) cited
Professional Institute of the Public Service of Canada v Canada (Director of the Canadian
Museum of Nature) [1995] 3 FC 643 cited
British Columbia (Securities Commission) v BDS (2000) BCJ No 2111 (BCSC); (2003) 226
th
DLR (4 ) 393 cited
Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 cited
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
followed
Nine Films and Television Pty Ltd v NINOX Television Ltd (2005) 65 IPR 442 considered
Seven Network Ltd v News Ltd (No 12) [2006] FCA 348 cited
Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299 considered
British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 questioned
Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
discussed
Thomas v New South Wales [2006] NSWSC 380 applied
Newcrest Mining (WA) Limited v Commonwealth (1993) 40 FCR 507 considered
Dunlop Slazenger International Ltd v Joe Bloggs Sports Limited [2003] EDWCA Civ 901
cited
Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2)
[1981] Com LR 138 approved
R v Secretary of State for Transport; Ex parte Factortame (1997) 9 Admin LR 591
considered
Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] 2 All ER 599 applied - 3 -
Attorney-General (NT) v Kearney (1985) 158 CLR 500 considered
Clements, Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police (2001) 188
ALR 515 considered
R v Cox and Railton (1884) 14 QBD 153 cited
Bullivant v Attorney-General (Vic) [1901] AC 196 cited
Annesley v Anglesea (1743) 17 St Tr 1139 cited
Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 cited
Gartner v Carter [2004] FCA 258 cited
Australian Securities & Investments Commission v Mercorella (No 3) [2006] FCA 772
considered
Barclays Bank plc v Eustice [1995] 4 All ER 511 considered
R v Bell; Ex parte Lees (1980) 146 CLR 141 cited
Butler v Board of Trade [1971] 1 Ch 680 applied
O’Rourke v Darbishire [1920] AC 581 approved
Briginshaw v Briginshaw (1938) 60 CLR 336 cited
T Harman, Fairness and the Doctrine of Subject Matter Waiver of the Attorney-Client
Privilege in Extrajudicial Disclosure Situations (1988) University of Illinois Law Review
999
AM Pinto, Cooperation and Self-Interest are Strange Bedfellows: Limited Waiver of the
Attorney-Client Privilege through Production of Privileged Documents in a Government
Investigation (2004) 106 West Virginia Law Review 359
RH Porter, Voluntary Disclosures to Federal Agencies – Their Impact on the Ability of
Corporations to Protect from Discovery Materials Developed During the Course of Internal
Investigations (1990) 39 Catholic University Law Review 1007
RD Manes and MP Silver, Solicitorthlient Privilege in Canadian Law, Butterworths, 1993
S Odgers, Uniform Evidence Law, 7 edn, Lawbook, 2006
AWB LIMITED v THE HONOURABLE TERENCE RHODERIC HUDSON COLE
AO RFD QC AND COMMONWEALTH OF AUSTRALIA
VID 594 OF 2006
YOUNG J
18 SEPTEMBER 2006
MELBOURNE GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 594 OF 2006
BETWEEN: AWB LIMITED
Applicant
AND: THE HONOURABLE TERENCE RHODERIC HUDSON
COLE AO RFD QC
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE: YOUNG J
DATE OF ORDER: 18 SEPTEMBER 2006
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. Within 3 business days AWB and the Commonwealth file an agreed minute of orders
that give effect to these reasons for judgment. If AWB and the Commonwealth are
unable to agree upon appropriate orders, within 3 business days AWB and the
Commonwealth shall each file and serve a minute of the orders that it contends are
necessary and appropriate to give effect to these reasons for judgment.
2. The proceeding be adjourned to Monday 25 September 2006 at 10.15am for any
argument as to the orders.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 594 OF 2006
BETWEEN: AWB LIMITED
Applicant
AND: THE HONOURABLE TERENCE RHODERIC HUDSON
COLE AO RFD QC
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE: YOUNG J
DATE: 18 SEPTEMBER 2006
PLACE: MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
1 Iraq has been a major export market for Australian wheat for many years. Prior to
1999, the overseas marketing and export of wheat from Australia was controlled by the
Australian Wheat Board (‘Board’), which was a Commonwealth statutory authority. The
Board was first established during the second world war under the Wheat Acquisition
Regulations 1939 (Cth). After the war, the Board was established by the Wheat Industry
Stabilization Act 1948 (Cth) and it has continued in existence under later Commonwealth
legislation including, most recently, the Wheat Marketing Act 1989 (Cth) (‘WMA’).
2 As a result of amendments made to the WMA by the Wheat Marketing Amendment
Act 1997 (Cth) and the Wheat Marketing Legislation Amendment Act 1998 (Cth), the control
of wheat exports from Australia was transferred to AWB Limited (‘AWB’). Since 1 July
1999, AWB has carried on business as the exclusive manager and marketer of bulk wheat
exports from Australia. It is required to purchase all wheat that is offered to it by Australian
growers for inclusion in a pool operated by AWB, provided that the wheat meets standards
set by AWB. Growers are paid a purchase price that must be calculated by reference to the - 2 -
net return for the pool in which the wheat is included: s 84 of the WMA. AWB carries out
these functions under the general supervision of the Wheat Export Authority which is the
successor to the Board: see ss 5, 5D, 57 and 84 of the WMA.
3 By Letters Patent dated 10 November 2005, the Governor-General appointed the
Honourable Terence Rhoderic Hudson Cole AO RFD QC (‘the Commissioner’) to inquire
into, and report on, inter alia:
(a) whether any decision, action, conduct, payment or writing of AWB, or any person
associated with it, might have constituted a breach of any law of the Commonwealth,
a State or Territory;
(b) whether any decision, action, conduct, payment or writing of BHP Limited (now BHP
Billiton Limited), BHP Billiton Petroleum Pty Limited, BHP Petroleum Limited, The
Tigris Petroleum Corporation Pty Limited or The Tigris Petroleum Corporation
Limited, or any person associated with one of those companies, in relation to specified
shipments of Australian wheat to the Grain Board of Iraq, might have constituted a
breach of any law of the Commonwealth, a State or a Territory; and
(c) if the answer to either paragraph (a) or (b) above is in the affirmative – whether the
question of criminal or other legal proceedings should be referred to the relevant
Commonwealth, State or Territory agency.
4 Between 23 November 2005 and 20 March 2006, the Commissioner issued twelve
notices to produce documents to AWB pursuant to s 2(3A) of the Royal Commissions Act
1902 (Cth) (‘RCA’). In addition, various notices to produce documents were directed by the
Commissioner to employees of AWB. From early 2006, AWB has maintained that a large
number of documents falling within the scope of these notices are the subject of legal
professional privilege.
5 These proceedings were instituted on 30 May 2006, shortly before the Royal
Commissions Amendment Act 2006 (Cth) (‘the Amending Act’) came into force on 15 June
2006. It is common ground that nothing in the RCA, as amended by the Amending Act,
abrogates AWB’s right to withhold documents caught by the notices to produce if they are - 3 -
properly the subject of legal professional privilege.
6 The Commissioner is named as the first respondent. He has advised the Court that he
intends to take no part in the proceedings and will abide any order made by the Court. The
second respondent, the Commonwealth of Australia, has acted as AWB’s contradictor.
7 The principal relief sought by AWB in this proceeding is a declaration that the
documents specified in revised lists of documents that have been filed with the Court are, or
record, confidential communications that are protected from production to the Commissioner
by legal professional privilege. This claim falls squarely within the Court’s jurisdiction under
s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth). The Commonwealth does not suggest
that the Amending Act deprives this Court of its jurisdiction to hear and determine AWB’s
claims for relief; on the contrary, it accepts that the Court has jurisdiction to determine
whether the documents attract legal professional privilege.
8 At the commencement of the hearing, some 1,450 original documents were in issue.
During the course of the hearing, AWB withdrew its claim for a declaration that various
documents were privileged and the Commonwealth accepted that other documents were the
subject of legal professional privilege. As a result, the number of contested original
documents was reduced by some 550 to approximately 900 documents occupying 28 lever
arch folders.
9 The trial of this proceeding was conducted on affidavit. In support of its privilege
claims, AWB relied upon thirty-two affidavits. In addition, AWB relied upon specified
exhibits to two affidavits sworn by Leonie Thompson of Arnold Bloch Leibler (‘ABL’) on 30
May 2006 and 19 June 2006 and certain background documents contained in Exhibit
SMXD17 to the affidavit of Simon Daley, a solicitor acting for the Commonwealth, sworn 3
July 2006. The deponents included AWB executives and employees, AWB’s in-house
lawyers, and lawyers from three Melbourne law firms, Blake Dawson Waldron (‘Blakes’),
Minter Ellison (‘Minters’) and ABL, that were retained to advise AWB in connection with
issues arising from AWB’s supply of wheat to Iraq. None of the deponents were cross-
examined.
10 The Commonwealth did not rely upon any affidavit evidence. However, it tendered a - 4 -
substantial volume of documents and passages from the transcript of evidence given to the
Commission.
11 The documents at issue in this proceeding span a period of years from about 2002 to
2006. Over that period, AWB was involved in a number of investigations concerning its sale
of wheat to Iraq under the United Nations’ Oil-For-Food Programme (‘OFF Programme’).
AWB conducted two internal investigations, known as Project Rose and Project Water. In
addition, AWB was exposed to investigations by the United States Senate, the Independent
Inquiry Committee of the United Nations and ultimately the Commission. As many of the
documents arise out of these investigations, it is necessary to describe their nature and scope
in general terms.
THE OIL-FOR-FOOD PROGRAMME
12 Following the invasion of Kuwait by Iraq, the United Nations Security Council
determined on 2 August 1990 that trade sanctions should be imposed on Iraq. In particular,
the Security Council adopted Resolution 661 of 6 August 1990 (‘Resolution 661’) which
provided, inter alia, that all States:
(a) shall prevent the sale or supply by their nationals of any commodities or products to
any person or body in Iraq or for the purposes of any business carried on in or
operated from Iraq, ‘but not including supplies intended strictly for medical purposes,
and, in humanitarian circumstances, foodstuffs’; and
(b) shall prevent their nationals and any persons within their territory from removing or
otherwise making available any funds or other financial or economic resources to the
Government of Iraq or to persons or bodies within Iraq, ‘except payments exclusively
for strictly medical or humanitarian purposes and, in humanitarian circumstances,
foodstuffs’.
13 In April 1991, the Security Council passed Resolution 687 which provided that the
prohibition against the sale or supply to Iraq of commodities or products other than medicine
and health supplies would not apply to foodstuffs notified to the Committee established by
Resolution 661. - 5 -
14 On 14 April 1995, the Security Council adopted Resolution 986 which established the
OFF Programme. Specifically, by that resolution:
(a) the Security Council authorised States to purchase petroleum and petroleum products
originating in Iraq;
(b) provided that full payment for each purchase was to be made directly into the escrow
account to be established in accordance with the Resolution; and
(c) decided that funds in the escrow account:
‘… shall be used to meet the humanitarian needs of the Iraqi population and
for the following other purposes, and requests the Secretary-General to use
the funds deposited in the escrow account:
(a) To finance the export to Iraq, in accordance with the procedures of the
Committee established by resolution 661 (1990), of medicine, health
supplies, foodstuffs, and materials and supplies for essential civilian
needs, … provided that:
(i) Each export of goods is at the request of the Government of Iraq;
(ii) Iraq effectively guarantees their equitable distribution, on the
basis of a plan submitted to and approved by the Secretary-
General, including a description of the goods to be purchased;
(iii) The Secretary-General receives authenticated confirmation that
the exported goods concerned have arrived in Iraq’.
15 The escrow account was under the control of the United Nations in New York. Funds
standing to the credit of the escrow account were available to be used by Iraq for the purchase
of humanitarian goods and services, including the purchase of food, in accordance with the
conditions and procedures laid down by the United Nations.
16 On 20 May 1996, the United Nations and the Government of Iraq entered into a
Memorandum of Understanding in relation to the implementation of Resolution 986.
Section II of that Memorandum provided for the Government of Iraq to adopt a distribution
plan that was designed to achieve an equitable distribution of medicine, health supplies,
foodstuffs and other materials to the Iraqi population throughout the various Governates of
Iraq. - 6 -
THE INDEPENDENT INQUIRY COMMITTEE
17 On 21 April 2004, following allegations of fraud and corruption in relation to the
administration of the OFF Programme, the Secretary-General of the United Nations
appointed an Independent Inquiry Committee (‘the IIC’) to investigate the administration of
the OFF Programme. The chairman of the IIC was Paul Volcker, a former chairman of the
United States Federal Reserve. The other members of the IIC were Mark Pieth of
Switzerland, an expert on money laundering in the Organisation for Economic Co-operation
and Development, and Justice Richard Goldstone of South Africa, a former chief prosecutor
of the United Nations International Criminal Tribunals for the former Yugoslavia and
Rwanda. The IIC’s terms of reference were as follows:
‘The independent inquiry shall collect and examine information relating to the
administration and management of the Oil-for-Food Programme, including
allegations of fraud and corruption on the part of United Nations officials,
personnel and agents, as well as contractors, including entities that have
entered into contracts with the United Nations or with Iraq under the
Programme:
(a) to determine whether the procedures established by the Organization,
including the Security Council and the Security Council Committee
Established by Resolution 661 (1990) Concerning the Situation between
Iraq and Kuwait (hereinafter referred to as the “661 Committee”) for
the processing and approval of contracts under the Programme, and the
monitoring of the sale and delivery of petroleum and petroleum products
and the purchase and delivery of humanitarian goods, were violated,
bearing in mind the respective roles of United Nations officials,
personnel and agents, as well as entities that have entered into contracts
with the United Nations or with Iraq under the Programme;
(b) to determine whether any United Nations officials, personnel, agents or
contractors engaged in any illicit or corrupt activities in the carrying
out of their respective roles in relation to the Programme, including, for
example, bribery in relation to oil sales, abuses in regard to surcharges
on oil sales and illicit payments in regard to purchases of humanitarian
goods;
(c) to determine whether the accounts of the Programme were in order and
were maintained in accordance with the relevant Financial Regulations
and Rules of the United Nations.’
18 By Security Council Resolution 1538, the Security Council called upon the Coalition
Provisional Authority, Iraq, and all Member States of the United Nations, including their
national regulatory authorities, to cooperate fully by all appropriate means with the IIC. - 7 -
19 The IIC issued its final report, entitled ‘Manipulation of the Oil-for-Food Programme
by the Iraqi Regime’, on 27 October 2005 (‘the Final Report’). The IIC found that Iraq had
received illicit income totalling about US$1.8 billion from companies that obtained oil and
humanitarian goods contracts. It also found that the largest source of illicit income for the
Iraqi regime came from payments made by companies that Iraq selected to receive contracts
for humanitarian goods under the OFF Programme. These payments were disguised by
various subterfuges and were not reported to the United Nations by Iraq or by the
participating contractors.
20 In its Final Report, the IIC said that the illicit payments developed in mid-1999 from
Iraq’s effort to recoup the costs it incurred to transport goods to inland destinations after their
arrival by sea at the Persian Gulf port of Umm Qasr. The IIC said that, rather than seeking
approval from the United Nations for compensation for such costs from the OFF
Programme’s escrow account, Iraq required humanitarian contractors to make such payments
directly to Iraqi-controlled bank accounts or to front companies outside Iraq that in turn
forwarded the payments to the Government of Iraq. The IIC observed that, not only were
these side payments unauthorised, it was also an easy matter for Iraq to impose ‘inland
transportation’ fees that far exceeded the actual transportation costs. The IIC also stated that,
by mid 2000, Iraq instituted a broader policy that applied a 10 per cent surcharge on all
humanitarian contracts, in addition to any requirement that contractors pay inland
transportation fees. The surcharge was described in most cases as an ‘after sales service fee’.
21 The IIC said that one conduit for the payment of inland transportation fees to the Iraqi
regime was a Jordanian company called Alia for Transportation and General Trade Co
(‘Alia’). The IIC stated that Alia was owned partly by Iraq’s Ministry of Transportation and
acted as a collection agent for the Government of Iraq to receive inland transportation
payments from certain humanitarian goods suppliers. The IIC found that the actual
transportation of goods from the port of Umm Qasr to inland destinations in Iraq was in fact
provided by Iraqi Government employees, and not by Alia.
22 In its Final Report, the IIC made a number of specific findings in relation to AWB. It
found that AWB paid transportation fees to Alia from December 1999 through until about
May 2003 when the OFF Programme came to an end as a result of the invasion of Iraq by US - 8 -
and coalition forces. In connection with AWB’s first three contracts from late 1999 to mid
2000, inland transport fees ranged between $10.80 and $12.00 per metric tonne (‘pmt’). The
rates rose to between $14.00 and $15.00 pmt in 2000 and then sharply increased in contracts
from 2001 to 2003 to between $45.00 and $56.00 pmt. The IIC also found that AWB did not
advise the United Nations that it was making payments to Alia for inland transportation costs.
23 The IIC summed up its conclusions in relation to AWB in the following passage of its
Final Report:
‘In summary, based on the available evidence, AWB paid to Alia over $221.7
million for what it termed inland transport or trucking fees. These payments
were channeled to the Government of Iraq by Alia. Both AWB and Alia deny
that AWB knew of Iraq’s partial ownership of Alia, and there is no evidence to
contradict these denials. AWB also denies knowing that Alia did not actually
transport its wheat from Umm Qasr and that Alia remitted the money paid by
AWB to the Government of Iraq. On the one hand, there is no evidence that
Alia told AWB that it was not performing transport services for AWB’s wheat
or that it was channeling AWB’s payments to the Government of Iraq. On the
other hand, numerous aspects of the AWB-Alia relationship, as well as the
nature of many of the documents received by AWB and discussed above,
suggest that some employees of AWB were placed on notice of facts strongly
suggesting that AWB’s payments were in whole or in part for the benefit of the
Government of Iraq. Of particular significance is the degree to which Alia’s
trucking prices rose sharply beyond what would apparently be a reasonable
transportation fee and without other apparent justification. Such increases, in
conjunction with AWB’s knowledge that Alia had been nominated in the first
place by the Government of Iraq, should have signaled AWB officials to the
probability that the Government of Iraq stood to illicitly benefit financially
from AWB’s payments to Alia. In addition, IGB [the Iraqi Grain Board] and
ISCWT [the Iraqi State Company for Water Transport – ie the port authority]
initiated or were party to communications concerning AWB’s payment of
Alias fees, and AWB was warned that the Government of Iraq would not allow
its ships to unload until Alia was paid.’
24 It is relevant to note that, in February 2005, investigators from the IIC travelled to
Australia and interviewed a number of senior officers of AWB. In addition, AWB made a
large number of documents available to the IIC investigators. Certain disclosures by AWB to
the IIC represent one ground upon which the Commonwealth contends that there has been a
waiver of legal professional privilege by AWB over some of the documents at issue in these
proceedings. - 9 -
PROJECT ROSE
25 Project Rose commenced in about June 2003 when James Cooper (‘Cooper’), the then
general counsel of AWB, was asked to initiate an internal investigation of AWB’s trading
activities in Iraq. The internal investigation began following the publication of a letter dated
3 June 2003 from Alan Tracey (‘Tracey’), president of a lobby group known as US Wheat
Associates, to Colin Powell, then the US Secretary of State, in which Tracey alleged that
prices in contracts for the sale of wheat under the OFF Programme had been inflated and that
some of the sale proceeds might have gone into the accounts of Saddam Hussein’s family.
Cooper engaged Christopher Quennell (‘Quennell’), a consultant employed by Blakes in its
Melbourne office, to advise in relation to AWB’s internal investigations.
26 In evidence before the Commission, Cooper described the scope of Project Rose in
these terms:
‘The subject matter was all of … AWB’s dealings with Iraq during the
operation of the Oil-for-Food Program. …
… The issues that were raised were the underlying collection of information
to understand the company’s position and, secondly, the understanding of the
requirement for AWB to be involved in an inquiry in the United States, which
involved many, … fairly complex legal issues, particularly over jurisdiction.’
27 Later in his evidence to the Commission, Cooper described his retainer of Quennell
and Blakes in these terms:
‘What initially happened in June 2003 was that Chris Quennell came in and
took instructions and was told to undertake a review of all of the facts and his
assessment of the allegations made by the US Wheat Associates, and he did
that by obtaining email records, … he got paper files, he interviewed staff
members and conducted quite a large review.
… it was an open-ended instruction to him to come into the company and
undertake this review and report back on his findings from time to time.’
On this evidence, Cooper plainly contemplated that Quennell would assess the evidence and
the allegations and report back his findings.
28 In this proceeding, Quennell gave evidence on affidavit that his understanding of his
instructions was to review available evidence and interview potential witnesses for the - 10 -
purpose of advising AWB as to its legal position in respect of its sale of wheat to the Grain
Board of Iraq (‘GBI’) under the OFF Programme. He added that the scope of his task and
instructions evolved as the matter progressed, particularly following the announcement by the
Permanent Investigations Committee of the United States Senate (‘PSI’) of its intention to
conduct an investigation and then the appointment of the IIC by the United Nations to
conduct an independent inquiry into the OFF Programme.
29 In due course, the board of AWB received a briefing on Project Rose on 25 May
2004. The board minutes record the following:
‘Project Rose
The Board noted it had received a briefing on Project Rose (attended also by
directors of AWB (International) Limited) on Tuesday 25 May 2004 and had
also received a memorandum on this matter from the Managing Director on 6
May 2004. Project Rose is the code-name for the AWB Group’s internal
investigation of AWB’s wheat exports to Iraq and AWB’s involvement in the
United Nations Oil for Food Program (OFF) in regard to which allegations of
impropriety had been made in the public arena.
The briefing session was addressed by Mr Jim Cooper, General Counsel, and
Mr Chris Quennell, trade and transport lawyer of Blake Dawson Waldron.
(The Board noted that a copy of the briefing presentation would be filed with
the Board papers).
The Board noted the following with regard to the Project Rose briefing:
(a) The allegations of impropriety had commenced with correspondence from
the US Wheat Associates to the US Secretary of State, Mr Colin Powell,
on 3 June 2003. There had been sporadic media commentary since that
time, and a number of inquiries (all of which remain unconfirmed) had
been reported as follows: UN independent inquiry into the OFF program;
Interim Iraqi Governing Council Investigation (reportedly to be
conducted by KPMG); US House of Representatives Investigation; and a
US Senate Committee on Foreign Relations Investigation.
(b) The Project Rose investigation commenced in June 2003 and has involved
a comprehensive review of all contract arrangements for the export of
wheat by AWB to Iraq from mid 1999 to 2002, including the inland freight
arrangements within Iraq.
(c) The findings to date of the Project Rose Investigation are as follows:
1. all AWB contracts were approved by the Office of the Iraq Program
at the United Nations;
3. no evidence has been identified of any AWB knowledge that money - 11 -
paid to the Jordanian transport firm, Alia, was onpaid to the Iraq
regime;
4. no evidence has been identified of payment of funds by AWB to any
other person in relation to the OFF shipments; and
5. no evidence has been identified of payment of funds to any AWB
employee or any other person in relation to OFF shipments.’
30 Blakes made a power point presentation to the board concerning the outcome of its
investigations. The presentation said that Blakes had taken a ‘factual snapshot’ by reviewing
14 international sales and marketing ring binders, 100 chartering files and more than 30,000
AWB emails for 1999 and 2000, interviewing AWB personnel and conducting an audit of
documents held by AWB (USA). It set out Blakes’ findings in terms similar to those
recorded in the board minutes. In addition, it referred to findings that wheat contracts from
July 1999 to December 2002 included a trucking fee payable to Alia that had been nominated
by GBI; that the same trucking fee was payable under each contract regardless of the
destination of the cargo or the distance transported; and that the trucking fee increased from
time to time for no apparent reason. The presentation also stated that Richard Tracey QC (as
his Honour then was) had given legal advice in conference on 25 May 2004 that there was no
evidence of breach of the relevant United Nations resolution on sanctions and no evidence of
breach of Australian domestic law.
31 The evidence before this Court makes it clear that Project Rose was a continuing
process of review and reporting that extended beyond the board meeting of 25 May 2004 and
throughout 2004 and 2005. For instance, Mr Tracey QC provided memoranda of advice on
31 March 2005 and 12 August 2005 in relation to Project Rose and the question whether
AWB had paid inflated prices for transport or port charges in breach of the United Nations’
sanctions or Australian domestic law. Its scope also broadened to include the provision of
legal advice and assistance in connection with the PSI investigation, the inquiry undertaken
by the IIC and, lastly, the inquiry that is being undertaken by the Commission.
32 As time passed, Blakes, Minters and ABL each provided advice and assistance to
AWB under the umbrella of Project Rose. Although the immediate focus of Project Rose
shifted from time to time between allegations that were publicly made against AWB, the PSI
investigation, the IIC investigation, and the Commission, it always involved an ongoing
review and investigation of documents and other evidence to determine whether AWB, or - 12 -
any of its employees, had made payments to the Iraqi regime in breach of the United Nations’
sanctions or engaged in any other wrongdoing in connection with the sale of wheat to Iraq
under the OFF Programme.
PROJECT WATER
33 Cooper instructed Quennell to commence the investigation known as Project Water
on 12 August 2004. It involved a review of all matters concerning The Tigris Petroleum
Corporation Limited (‘Tigris’). The Commonwealth contends that AWB and Tigris entered
into a transaction whereby AWB agreed to inflate the prices in two contracts (A1670 and
A1680) for the supply of 1,000,000 mt of wheat to GBI, as a means of extracting funds from
the United Nations’ escrow account to repay a debt of approximately US$8 million which
GBI owed to Tigris and to provide AWB with the funds required to make a rebate payment to
GBI of approximately US$2 million (‘the Tigris transaction’).
34 Before the Commission, Cooper gave evidence that on or shortly before 12 August
2004 he was asked, either by Andrew Lindberg (‘Lindberg’) or Sarah Scales (‘Scales’), to
undertake a review of AWB’s dealings with Tigris. Lindberg was AWB’s managing director,
and Scales was the general manager of AWB (International) Limited (‘AWBI’). AWBI is the
subsidiary of AWB that is responsible for international wheat sales and marketing. He said
that Scales wanted the review undertaken because a sum of money of over US$8 million was
being held in an account of AWBI, and she was not comfortable in approving the payment of
that sum to Tigris without understanding all of the circumstances of its receipt by AWBI. As
a result, on 12 August 2004 Cooper and two members of his legal division, Rosemary Peavey
(‘Peavey’) and Rosalyn Santen (‘Santen’), initiated a telephone call to Quennell. In the
course of that telephone conversation, Cooper asked Quennell to commence a review of all
dealings with Tigris, with particular focus on whether it was proper to make a payment to
Tigris of the money held in AWBI’s account. Quennell’s review took about three months.
Then in December 2004, AWB paid the sum of US$7,087,202.24 to Tigris and retained a fee
of US$500,000.00 for assisting in the repayment of the debt.
35 Some evidence suggests that Project Water, as such, came to an end in December
2004, while other evidence suggests it was an ongoing investigation. But, whether or not the
description of Project Water strictly applied, AWB and its legal advisers continued to - 13 -
investigate and review the facts and circumstances of the Tigris transaction during 2005 in
order to determine whether it involved any wrongdoing by AWB or any of its employees.
THE INQUIRY BY THE UNITED STATES SENATE PERMANENT SUB-
COMMITTEE ON INVESTIGATIONS
36 In mid 2004, the PSI announced that it proposed to conduct an investigation into the
OFF Programme. AWB retained Minters and several US law firms to advise it in relation to
the PSI investigation. The evidence indicates that Blakes also provided some advice to AWB
in connection with this investigation.
THE MAIN ISSUES
37 As argued before me, the case focused on three issues. The first issue is whether
AWB has established its claim that legal professional privilege attaches to each of the
documents that remain in contest. The only head of privilege that AWB relies on is the
privilege that attaches to documents brought into existence for the dominant purpose of
obtaining or giving legal advice. In AWB Limited v Honourable Terence Rhoderic Hudson
Cole [2006] FCA 571 (‘AWB v Cole’), I held that litigation privilege was not available to
protect documents brought into existence in contemplation of the Commission and none of
the parties has disputed that decision. AWB has not contended that legal professional
privilege is available solely because documents were brought into existence in contemplation
of inquiries being undertaken by the PSI or by the IIC.
38 The second issue is whether, assuming privilege attaches, that privilege has been
waived by virtue of AWB’s disclosure of the gist or substance of certain legal advices which
it obtained. I will have to determine whether waiver should be imputed to AWB as a matter
of law and, if so, what is the extent of that waiver. The Commonwealth contends that the
waiver extends to all documents that relate to Project Rose and Project Water.
39 The third issue is whether legal professional privilege attaches to documents that
came into existence in connection with AWB’s settlement of a claim by GBI for a rebate of
approximately US$2 million on account of the fact that earlier shipments of wheat by AWB
had been contaminated by iron filings (‘the iron filings claim’). The Commonwealth
contends that the iron filings claim is inextricably linked with the Tigris transaction, in that - 14 -
the prices for wheat contracts A1670 and A1680 were inflated to cover both the amount of
the iron filings claim and the repayment by GBI of the debt which it owed to Tigris. It said
that AWB proposed to pay the iron filings claim directly to Alia as an addition to inland
transport fees, but spread over several contracts. The Commonwealth argued that the
inflation of the contract prices to cover the iron filings claim was concealed from the United
Nations and that it involved a contravention of the United Nations’ sanctions. In these
circumstances, the Commonwealth contends that AWB cannot maintain its claim to privilege
over the legal advice it obtained in relation to the iron filings claim as that advice was
obtained in furtherance of a fraud, wrongful conduct or sham transaction.
40 AWB contends that there is no evidence which would permit this Court to conclude
that the arrangements for payment of the iron filings claim involved a breach of the United
Nations’ sanctions or any breach of Australian law, or that the relevant advice was given in
furtherance of any improper conduct. It submitted that the documents relating to the iron
filings claim over which privilege is claimed go to the issue of the legality of the payment
and were not created in furtherance of any sham or fraud.
LEGAL ADVICE PRIVILEGE – GENERAL PRINCIPLES PRIVILEGE
41 Under the legal advice limb of legal professional privilege, a document will attract
privilege if it was brought into existence for the dominant purpose of giving or obtaining
legal advice: Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR
49 (‘Esso’) at 64-65 [35]; Daniels Corporations International Pty Ltd v Australian
Competition & Consumer Commission (2002) 213 CLR 543 (‘Daniels’) at 552 [9].
42 AWB placed particular reliance on Dawson J’s formulation of the scope of legal
advice privilege in Waterford v Commonwealth (1987) 163 CLR 54 at 95:
‘The legal professional privilege relied upon in this case is that which
attaches to communications between a legal adviser and his client for the
purpose of giving or receiving legal advice and to documents recording those
communications or containing information for the purpose of enabling the
advice to be given. In order to attract that privilege, the communications
must be confidential and the legal adviser must be acting in his professional
capacity: see Minet v Morgan; Wheeler v Le Marchant; Smith v Daniell;
Bullivant v Attorney-General (Vict.); Jones v Great Central Railway Co;
O'Rourke v Darbishire’. - 15 -
There is nothing controversial about this formulation of the principle.
43 I reviewed the relevant authorities and extracted the principles which govern legal
advice privilege in my decision in AWB v Cole at [60]-[63] and [85]-[110]. I adhere to what I
said in that case. I do not propose to engage in a lengthy discussion of the authorities
concerning legal advice privilege in these reasons for judgment, other than to the extent
necessary to address the arguments advanced by the parties.
44 The general principles that I consider relevant to the disposition of this case can be
summarised as follows:
(1) The party claiming privilege carries the onus of proving that the communication was
undertaken, or the document was brought into existence, for the dominant purpose of
giving or obtaining legal advice. The onus might be discharged by evidence as to the
circumstances and context in which the communications occurred or the documents
were brought into existence, or by evidence as to the purposes of the person who
made the communication, or authored the document, or procured its creation. It might
also be discharged by reference to the nature of the documents, supported by
argument or submissions: see Grant v Downs (1976) 135 CLR 674 (‘Grant v Downs’)
at 689; Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at
278 [30] (‘FCT v Pratt Holdings’); and AWB v Cole at [63].
(2) The purpose for which a document is brought into existence is a question of fact that
must be determined objectively. Evidence of the intention of the document’s maker,
or of the person who authorised or procured it, is not necessarily conclusive. It may
be necessary to examine the evidence concerning the purpose of other persons
involved in the hierarchy of decision-making or consultation that led to the creation of
the document and its subsequent communication: see AWB v Cole at [110].
(3) The existence of legal professional privilege is not established merely by the use of
verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ. Nor is a
claim of privilege established by mere assertion that privilege applies to particular
communications or that communications are undertaken for the purpose of obtaining
or giving ‘legal advice’: National Crime Authority v S (1991) 29 FCR 203 at 211–212 - 16 -
per Lockhart J; Candacal Pty Ltd v Industry Research & Development Board (2005)
223 ALR 284 (‘Candacal’) at 298 [70]; Seven Network Limited v News Limited
[2005] FCA 142 at [6]–[8]. If assertions of that kind are received in evidence in
support of the privilege claim, their conclusionary nature can leave unclear what
advice was really being sought. There will be cases in which a claim of privilege will
not be sustainable in the absence of evidence identifying the circumstances in which
the relevant communication took place and the topics to which the instructions or
advice were directed: Kennedy v Wallace (2004) 142 FCR 185 (‘Kennedy v Wallace’)
at 189–190 [12]–[17] per Black CJ and Emmett J and at 211–212 [144]–[145] and at
215–216 [166]–[171] per Allsop J; see also Southern Equities Corporation Ltd (in liq)
v Arthur Andersen & Co (No 6) [2001] SASC 398.
(4) Where communications take place between a client and his or her independent legal
advisers, or between a client’s in-house lawyers and those legal advisers, it may be
appropriate to assume that legitimate legal advice was being sought, absent any
contrary indications: Kennedy v Wallace (2004) 208 ALR 424 at 442 [65] per Gyles J;
affirmed on appeal, Kennedy v Wallace at 191-192 [23]-[27] per Black CJ and
Emmett J. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in
the ordinary case of a client consulting a lawyer about a legal problem in
uncontroversial circumstances, proof of those facts alone will provide a sufficient
basis for a conclusion that legitimate legal advice is being sought or given.
(5) A ‘dominant purpose’ is one that predominates over other purposes; it is the
prevailing or paramount purpose: AWB v Cole at [105]-[106]; FCT v Pratt Holdings at
279-280 [30] per Kenny J.
(6) An appropriate starting point when applying the dominant purpose test is to ask what
was the intended use or uses of the document which accounted for it being brought
into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR
357 at 366 [35] per Finn J.
(7) The concept of legal advice is fairly wide. It extends to professional advice as to what
a party should prudently or sensibly do in the relevant legal context; but it does not
extend to advice that is purely commercial or of a public relations character: Balabel v - 17 -
Air India [1988] 1 Ch 317 (‘Balabel’) at 323 and 330; Nederlandse Reassurantie
Groep Holding NV v Bacon and Woodrow [1995] 1 All ER 976 (‘Nederlandse’) at
983; Three Rivers District Council v Governor and Company of the Bank of England
(No 6) [2005] 1 AC 610 (‘Three Rivers’) at 652-653 [43]-[44], 657-658 [59]-[60], 681
[114] and 683 [120]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4
WAR 325 (‘Dalleagles’) at 332-333; DSE (Holdings) Pty Ltd v Intertan Inc (2003)
135 FCR 151 (‘DSE’) at 161-173 [25]–[71]; and AWB v Cole at [100]-[101].
(8) Legal professional privilege protects the disclosure of documents that record legal
work carried out by the lawyer for the benefit of the client, such as research
memoranda, collations and summaries of documents, chronologies and the like,
whether or not they are actually provided to the client: Daniels at 563 [44] per
McHugh J; Commissioner of Australian Federal Police v Propend Finance Pty Ltd
(1997) 188 CLR 501 (‘Propend’) at 550 per McHugh J; Dalleagles at 333–334 per
Anderson J; Trade Practices Commission v Sterling (1979) 36 FLR 244 (‘Stirling’) at
245–246 per Lockhart J; and Kennedy v Lyell (1883) 23 Ch D 387 at 407; Lyell v
Kennedy (1884) 27 Ch D 1 at 31 per Bowen LJ; Propend Finance Pty Ltd v
Commissioner of Australian Federal Police (1995) 58 FCR 224 at 266 per Lindgren J.
(9) Subject to meeting the dominant purpose test, legal professional privilege extends to
notes, memoranda or other documents made by officers or employees of the client that
relate to information sought by the client’s legal adviser to enable him or her to
advise: Stirling at 246. The privilege extends to drafts, notes and other material
brought into existence by the client for the purpose of communication to the lawyer,
whether or not they are themselves actually communicated to the lawyer: Saunders v
Commissioner of Australian Federal Police (1998) 160 ALR 469 at 472.
(10) Legal professional privilege is capable of attaching to communications between a
salaried legal adviser and his or her employer, provided that the legal adviser is
consulted in a professional capacity in relation to a professional matter and the
communications are made in confidence and arise from the relationship of lawyer and
client: Waterford v Commonwealth (1987) 163 CLR 54 at 96 per Dawson J; see also
Deane J at 79–82. Some cases have added a requirement that the lawyer who - 18 -
provided the advice must be admitted to practice: see Dawson J in Waterford at 96;
GSA Industries (Aust) Pty Ltd v Constable (2002) 2 Qd R 146 at 150; Glengallan
Investments Pty Ltd v Arthur Andersen (2002) 1 Qd R 233 at 245. However, in
Commonwealth v Vance (2005) 158 ACTR 47, the Full Court (Gray, Connolly and
Tamberlin JJ) did not regard the possession of a current practising certificate as an
essential precondition to the availability of legal professional privilege: at [23]–[35].
The same view was taken by Lee J in Candacal at 303 [99], by Gillard J in Australian
Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by
Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade
(2004) 86 ALD 780 at 785 [51].
(11) Legal professional privilege protects communications rather than documents, as the
test for privilege is anchored to the purpose for which the document was brought into
existence. Consequently, legal professional privilege can attach to copies of non-
privileged documents if the purpose of bringing the copy into existence satisfies the
dominant purpose test: Propend at 507 per Brennan CJ, 544 per Gaudron J, 553-554
per McHugh J, 571-572 per Gummow J, and 587 per Kirby J. In Propend at 512,
Brennan CJ added a qualification to this principle: if an original unprivileged
document is not in existence or its location is not disclosed or is not accessible to the
persons seeking to execute the warrant, and if no unprivileged copy or other
admissible evidence is made available to prove the contents of the original, the
otherwise privileged copy loses its protection.
(12) The Court has power to examine documents over which legal professional privilege is
claimed. Where there is a disputed claim, the High Court has said that the court
should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689.
If the power is exercised, the court will need to recognise that it does not have the
benefit of submissions or evidence that might place the document in its proper
context. The essential purpose of such an inspection is to determine whether, on its
face, the nature and content of the document supports the claim for legal professional
privilege. - 19 -
AWB’S LAWYERS AND THEIR RETAINERS
45 The Commonwealth contended that Project Rose and Project Water were purely
factual investigations and therefore should not be regarded as attracting any legal professional
privilege. In advancing this contention, the Commonwealth tended to assume that factual
investigations by lawyers, such as a review of documents and interviews of persons involved
in the matter under investigation, can be separated from the ultimate legal advice given by the
lawyers as a result of their factual investigation. Leaving aside any question of waiver, this
seems to be an unduly narrow approach to the scope of legal advice privilege. In my view, it
finds no support in the authorities.
46 In recognition of the fact that legal professional privilege is a fundamental common
law right, the courts have eschewed an overly narrow or technical approach to the
identification of communications or documents that fall within the scope of legal advice
privilege. As I said in AWB v Cole at [127]–[133], the legal advice limb of the privilege
extends beyond material that is literally a communication, or a record of a communication, of
legal advice or instructions. In Propend at 569, Gummow J said that the privilege extends to
any document prepared by a lawyer or client from which one might infer the nature of the
advice sought or given. The principle extends to internal documents or parts of documents of
the client, or of the lawyer, reproducing or otherwise revealing communications which would
be covered by privilege: Bank of Nova Scotia v Hellenic Mutual War Risks Association
(Bermuda) Ltd [1992] 2 Lloyd’s Rep 540 at 540 per Saville J.
47 Where a lawyer has been retained for the purposes of providing legal advice in
relation to a particular transaction or series of transactions, communications between the
lawyer and the client relating to that transaction will be privileged, notwithstanding that they
do not contain advice on matters of law; it is enough that they are directly related to the
performance by the lawyer of his or her professional duty as legal adviser to the client:
Minter v Priest [1930] AC 558 at 581–586; Balabel at 330; Nederlandse at 983 and
Dalleagles at 332–333. In Dalleagles, Anderson J said at 332–333 that professional
discourse in a professional capacity between a solicitor and his client with reference to the
transactions covered by his instructions should be regarded as prima facie for the purpose of
giving and receiving advice. In his Honour’s view, this would apply to any communication
that is on its face a communication of a professional nature from the solicitor to the client or - 20 -
his agent touching the subject matter of the solicitor’s engagement and any communication
from the client to the solicitor in connection with that engagement. These propositions were
referred to, with approval, by Allsop J in DSE at [51]-[52] and by Branson J in Wenkart v
Commissioner of Federal Police (unreported, Federal Court, Branson J, 11 November 1996).
48 In DSE, Allsop J said that there was no substantive difference between the views
expressed in Balabel and Dalleagles: at [51], [52] and [71]. Allsop J also observed that what
underlies the expression of opinion in those cases is the recognition that the obligation of the
lawyer to advise, once retained, is pervasive. In his Honour’s view, it would be rare that one
could, with any degree of confidence, say that a communication between client and lawyer, in
the circumstances of a retainer requiring legal advice and the directing of the client by a legal
adviser, was not connected with the provision or requesting of legal advice. Indeed, too
literal a requirement of identifying legal advice as express advice about the law would place
undue emphasis on formalism and undermine the privilege. Rix J (as his Lordship then was)
expressed much the same view in Hellenic Mutual War Risks Associated (Bermuda) Ltd v
Harrison [1997] 1 Lloyd’s Rep 160 at 168.
49 In Three Rivers, the relevant legal context consisted of a commission of inquiry into
the part played by the Bank of England in the collapse of the Bank of Credit and Commerce
International SA. The House of Lords upheld the Bank of England’s claim that legal advice
privilege attached to documents that had been generated for the purposes of providing
information to the Bank’s legal advisers to enable them to prepare submissions and evidence,
and to advise on the nature, presentation, timing and content of the Bank’s responses to the
inquiry. Relevant passages from the speeches in the House of Lords are extracted in my
decision in AWB v Cole at [92]–[96].
50 In this case, the relevant legal context consisted, initially, of public allegations that
AWB had acted in breach of United Nations’ sanctions by making improper payments to the
Iraqi regime. Those public allegations were soon followed by a series of investigations by
the IIC, the PSI and the Commission. Blakes was retained for the purpose of advising
whether, as a matter of law, there was any substance in the allegations of improper conduct
by AWB.
51 As the various investigations were announced, Blakes’ retainer was extended to the - 21 -
provision of advice in connection with them. AWB specifically extended Blakes’ retainer to
include the provision of advice in relation to AWB’s dealings with Tigris. It is unclear
whether Blakes provided any substantial advice to AWB in connection with the Commission.
52 The catalyst for AWB’s engagement of Minters appears to have been the
announcement of the PSI investigation. From about 1 July 2004, Minters advised AWB in
relation to the PSI investigation. However, Minter’s engagement extended more widely than
the provision of advice concerning the actual conduct of the PSI investigation; it included a
comprehensive review by Minters of all of the documents and other evidence surrounding
AWB’s sales of wheat to Iraq under the OFF Programme. A key objective of this review was
to determine whether there was any evidence that AWB or any of its employees had made
payments to Iraq that contravened the United Nations’ sanctions or engaged in any other
wrongdoing in connection with the OFF Programme.
53 Minter’s engagement was subsequently extended to the provision of advice and
assistance to AWB in connection with the IIC investigation. Minters’ wider role in reviewing
and analysing the available documents and evidence, which included interviewing employees
or former employees, continued during the period of the IIC investigation. Minters played a
prominent role in liaising with the US law firms which AWB retained to act for it in
connection with the PSI and IIC investigations.
54 Minters and Blakes acted in tandem in providing advice in connection with the PSI
and IIC investigations and in their ongoing review and investigation of the facts and
circumstances surrounding AWB’s wheat exports to Iraq. Both law firms were involved in
interviewing present and former employees of AWB and AWBI.
55 In about February 2005, AWB retained ABL to act for it in relation to the IIC
investigation and subsequently in relation to the Commission. Throughout 2005, ABL
worked closely in conjunction with Blakes and Minters. All three firms were involved in
analysing and reviewing the facts and obtaining evidence from potential witnesses, with a
view to determining whether there was any evidence that AWB or its employees had made
payments to Iraq in breach of the United Nations’ sanctions or engaged in any other
wrongdoing in connection with the OFF Programme. - 22 -
56 The evidence does not contain any letters of retainer, or any other documentary record
of the precise scope of the retainers, under which the three firms acted for AWB. The
affidavit evidence contains the briefest description of each retainer. The work performed by
the three firms overlapped very substantially and, if there were any lines of demarcation, they
were very blurred. Nonetheless, the scope of the work performed by each firm can be
discerned with reasonable clarity from the affidavit evidence and the documents referred to in
AWB’s revised list of documents. I am satisfied that Blakes, Minters and ABL were engaged
professionally to provide legal advice and assistance within the scope of their respective
retainers as described above. In each relevant context, I consider that it would be
inappropriate and artificial to attempt to sever the factual investigations carried out by the
lawyers from the legal advice they provided under their retainers. As I have said, a key
purpose of those factual investigations was to enable Blakes, Minters and ABL to determine
whether there was any evidence that AWB, or any of its employees, had made payments to
Iraq in breach of the sanctions or engaged in any other wrongdoing in connection with its sale
of wheat to Iraq. By that means, the three law firms placed themselves in a position to advise
AWB as to the risks it confronted and the course of action it should take in relation to the
investigations.
57 I do not see any reason why professional communications between AWB and its
lawyers concerning the investigations by the IIC, the PSI, and the Commission should be
incapable of attracting legal advice privilege. In these contexts, the concept of legal advice
includes advice as to what AWB should prudently and sensibly do in connection with the
relevant investigation. Advice of this kind is capable of attracting legal advice privilege,
notwithstanding that a particular communication is part of a continuum and does itself
contain any specific advice on matters of law or any specific request for such advice.
AWB’S AFFIDAVIT EVIDENCE
58 The Commonwealth contended that AWB had failed in its attempt to prove legal
professional privilege because it had not adduced any proof as to AWB’s dominant purpose
in seeking or obtaining legal advice. AWB largely relied upon evidence given by in-house
and external lawyers involved in the particular communications at issue. The
Commonwealth submitted that evidence proving the lawyer’s understanding of the purpose
of the particular communication and that he or she was giving legal advice affords no - 23 -
evidence of the client’s dominant purpose. There is no real substance in this criticism.
Dominant purpose must be determined objectively, but it is not uncommon for the relevant
purpose to be established by evidence given by the maker of the statement or another person
responsible for commissioning the relevant document or bringing it into existence, such as a
solicitor: see Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority (2002) 4
VR 332 at [14]; Grant v Downs at 677 and AWB v Cole at [110].
59 The Commonwealth objected to the admissibility of statements in AWB’s affidavits
where the deponent asserted that particular documents recorded ‘legal’ advice or were
brought into existence for the purpose of obtaining, or giving, ‘legal’ advice. It submitted
that the description ‘legal’ was a conclusionary assertion or opinion based on other facts and
circumstances that were not disclosed by the deponent. AWB argued that the word ‘legal’
ought to be received on the ground that it was an opinion or description about the relevant
facts and circumstances as perceived by the deponent. Alternatively, where the deponent was
legally qualified, AWB argued that the description represented an opinion that was based on
the deponent’s specialised knowledge, training and experience within the meaning of s 79 of
the Evidence Act 1995 (Cth).
60 After hearing submissions from counsel, I ruled that I would not exclude the word
‘legal’ where it was used by a lawyer to characterise the relevant advice or communication.
In those circumstances, the presumption referred to in Kennedy v Wallace would be available:
see [44] (4) above. In addition, the description would, I think, be admissible as an opinion,
based on specialised knowledge, within the meaning of s 79 of the Evidence Act. On the
other hand, I rejected the term ‘legal’ in affidavits where the deponent was not legally
qualified. In those affidavits, the use of the term amounted simply to a conclusion or opinion
by a lay person that was based, in most instances, on facts which were not fully disclosed in
the affidavit. Further, I held that the evidence was not admissible under s 78 of the Evidence
Act; that provision is concerned with lay perceptions of things or events, such as a person’s
apparent age or state of intoxication: see S Odgers, Uniform Evidence Law, 7 th edn,
Lawbook, 2006, pp 281-282.
61 At the time I made this ruling, I observed that where I had not struck the expression
‘legal’ from the affidavits, the weight that would be attached to that description in any - 24 -
particular affidavit would depend on the circumstances in which the communication took
place; the description might be entitled to little or no weight in the absence of further
evidence as to the circumstances surrounding the relevant communications or the topics to
which the advice was directed: see Kennedy v Wallace at 189–190 [12]–[17] and 211–212
[144]–[145] and 215–216 [166]–[171].
DOES PRIVILEGE ATTACH?
62 During the course of the hearing, AWB and the Commonwealth reduced the number
of documents which are in contest.
63 On the first day of the hearing, AWB announced that it no longer pressed for a
declaration of privilege in respect of a significant number of documents in its list. In doing
so, AWB did not concede that the documents are not protected by legal professional
privilege. As finally revised, those documents are as follows: 27-29, 37-39A, 43, 53, 54, 61,
73-76, 109, 118, 119A, 125, 134, 141, 142, 146A-149, 153, 191-193, 195, 198, 202, 203,
212, 214, 216, 223, 236, 242-244, 248, 249, 272, 287, 289, 312, 314, 325, 328, 329, 335, 360,
363, 364, 366, 367, 369-373, 383, 396, 397, 409, 411, 415, 429, 458, 466, 469, 474, 489, 512,
528, 531, 532, 535, 540A, 545, 546, 597, 598, 604, 606-670, 673, 674, 676, 677, 678, 680,
682-689, 690, 692, 693, 695, 697, 698, 705, 716-720, 723, 726, 728, 734, 735, 746, 750, 767,
774, 776, 778, 782, 783, 786, 789, 791, 793, 795, 796, 803, 805, 825, 832-834, 836, 838, 839,
841-846, 848, 853-855, 858, 859, 862, 864, 871, 874, 875, 878, 880, 884, 886, 890, 890AO,
896, 897, 916, 917, 920, 922, 926, 927, 937, 938-941, 943-946, 949, 954-955, 967-969, 993,
993A, 996, 999, 1007-1008, 1010, 1014-1024, 1027, 1034-1050, 1052-1055, 1057-1058,
1060-1069, 1072, 1082, 1084-1085, 1102-1111, 1113B, 1122, 1125-1143, 1153, 1154, 1156,
1157, 1164-1182, 1188, 1189, 1203, 1205, 1208, 1210, 1211, 1220, 1223, 1224, 1241, 1242,
1263-1292, 1294, 1295 and 1298.
64 Both AWB and the Commonwealth submitted that the consequence of AWB’s
announcement was that the Court need not made any ruling as to the status of these
documents. Many of the documents relate to the Tigris transaction. In paragraphs [90]-[108]
of its written submissions, which were filed shortly before the commencement of the trial, the
Commonwealth argued that all of the documents in AWB’s revised list that recorded any
legal advice in relation to the Tigris transaction attracted the fraud exception to legal - 25 -
professional privilege. Alternatively, it submitted that any privilege attaching to those
documents had been waived by AWB. Following AWB’s announcement, the
Commonwealth and AWB also submitted that the Court need not consider or rule upon any
of the arguments raised in paragraphs [90]-[108] of its written submissions. On the joint
submission of AWB and the Commonwealth, I made an order that paragraphs [90]-[108]
should be excised from the Commonwealth’s written submissions when those submissions
were made available by the Court for public inspection.
65 The Commonwealth accepted AWB’s claim to legal professional privilege over a
number of the documents in the list. The documents are as follows: 1-11, 13, 16-19, 23-25,
34-36, 40, 42, 44-52, 57-60, 62-72, 80, 86-88, 99, 128, 511, 891-895, 898-915, 918, 919, 921,
923-925, 928-936, 937AA-937AI, 937AK-937AO, 1100, 1101, 1191-1194, 1197-1199,
1201, 1202, 1204, 1207, 1209, 1212, 1216, 1217, 1219, 1227, 1228, 1230, 1233, 1235, 1236,
1238, 1244, 1245, 1251, 1253, 1254, 1257-1259, 1296 and 1302-1304.
66 The remainder of the documents in AWB’s revised list are in issue. The
Commonwealth submitted that in respect of a number of documents (eg 1190 and following),
it understood AWB to be contending those documents were listed as privileged documents in
error because they are not within the scope of existing notices to produce. Although the basis
for this ‘understanding’ was never identified, the Commonwealth submitted that the question
whether these documents fall within the scope of the notices is not before the Court and,
accordingly, the privileged status of those documents does not arise for determination in these
proceedings. I do not agree. On the material before the Court, I am bound to proceed on the
basis that, but for the documents that are no longer pressed and those that are conceded,
AWB seeks a declaration over all of the documents in its list because they fall, or may fall,
within the scope of notices to produce issued by the first respondent.
67 In determining claims of legal professional privilege, the Court will look to the
substance of the matter, having regard to the context, the nature of the document, the
evidence that is led in support of the claim of privilege, any cross-examination of the
claimant’s witnesses and, if necessary, the content of the document as revealed by inspection.
68 The documents over which AWB claims privilege can be categorised in various ways,
such as communications to and from Blakes, or Minters, or ABL containing legal advice; - 26 -
information obtained from AWB’s records and employees by AWB’s in-house counsel for
the purpose of giving or obtaining legal advice; instructions provided by the in-house lawyers
to external lawyers for the purpose of obtaining legal advice; and documents brought into
existence by lawyers so as to assist them in the provision of legal advice. But, ultimately, the
categories provide limited assistance. It is necessary to examine the evidence concerning
each relevant document over which privilege is claimed and to examine that evidence in the
light of the relevant context. I have also inspected each of the original documents over which
AWB has claimed privilege.
69 Applying the legal principles discussed above, I have identified the documents which,
in my view, have not been proven to be the subject of legal professional privilege. I will
defer listing these documents at this stage, as many of them are affected by the waiver issue.
I will need to consider waiver and the fraud exception before I express any view about the
remaining documents. My conclusions, listing each affected document, are set out towards
the end of these reasons.
AWB’S DISCLOSURES IN RELATION TO PROJECT ROSE
70 The Commonwealth contends that AWB has waived privilege in relation to its Project
Rose documentation by reason of:
(1) the disclosures by Hargreaves and other AWB executives to the Australian
Government from 24 March 2005 onwards;
(2) the disclosures by Lindberg to the IIC in the course of his interview with IIC
investigators on 28 February 2005;
(3) its production of various documents to the Commission under notices to produce after
waiving claims of legal professional privilege, including legal advice that Blakes gave
to AWB’s board of directors on 25 May 2004, instructions given to, and advices
obtained from, Mr Tracey QC in the period from May 2004 to August 2005, and the
instructions given to, and the expert opinion obtained from, Sir Anthony Mason AC
KBE in relation to the applicability of Resolution 661; and - 27 -
(4) the evidence that Lindberg gave to the Commission in the course of its public
hearings.
71 In the paragraphs that follow, I have set out my factual findings concerning these
disclosures.
DISCLOSURESBYHARGREAVES
72 Peter Hargreaves (‘Hargreaves’) was a senior executive of AWB who acted as the
manager of Project Rose. On 24 March 2005, Hargreaves made a power point presentation to
officers of the Department of Foreign Affairs and Trade (‘the Department’) in Canberra that
reported on the IIC visit to AWB in February 2005. It contained references to the results of
AWB’s own legal review:
‘AWB’s Response
AWB interviewees told the IIC that we believe our trade with Iraq was
undertaken in accordance with UN guidelines throughout the life of the
OFF Program they had no knowledge that Alia might have an ownership
connection back to the old regime.
Alia was regarded as a company providing a genuine service which saved
Australian wheat growers considerable demurrage costs, and
They only became aware of a possible connection when the allegations
were raised in the media well after the OFF Program ended.
Advised IIC that AWB’s own legal review had found no evidence of:
corruption by AWB or individuals
side payments or after sales payments to individuals of the former
regime, or
payments by the regime to former or existing AWB representatives
IIC advised they had found no evidence to the contrary.
…
Focus – inland trucking arrangements
Questioning seems designed to establish whether, through the use of Alia,
AWB had wittingly or unwittingly paid money to the Government of Iraq in
violation of the Security Council Resolutions 661 and 986.
Questioning also sought to establish:
How much did AWB know about the background of Alia?
AWB representatives assured the IIC they knew nothing of any connection
between Alia and the former regime until well after the OFF Program
ended and allegations first began to appear in the media - 28 -
Unreasonable expectation should AWB have known or inquired of any
connection with the former regime?
AWB saw nothing untoward – paying for a service that was genuinely
needed to improve efficiency of humanitarian program – also reduced
demurrage – a big cost to growers
It was no secret the Iraqis were paying for inland trucking – it was stated
on the contracts
UN contractors Contechna were inspecting the port operation including
the discharge into Alia trucks
No concerns were raised with AWB by the UN, Contechna or any other
body throughout the life of the OFF Program
Was AWB aware of any payments being channelled from Alia to the old
regime?
No and subsequent legal review has found no evidence to the contrary
…
Allegations of Corrupt Payments:
AWB’s legal review had found no evidence of:
Corruption by AWB or individuals
Side payments or after sales payments to individuals of the former regime,
or
Payments by the regime to former or existing AWB representatives
Importantly, IIC advised they had found no evidence to the contrary’.
73 On 20 April 2005, Hargreaves attended at the Australian Embassy in Washington DC
to brief Ambassador Michael Thawley and members of his staff. The uncontested evidence
before me includes a statutory declaration by Anastasia Carayanides, a Minister Counsellor
(Commercial) at the Embassy in Washington, who attended the briefing by Hargreaves. The
statutory declaration records that Hargreaves made statements to the following effect:
‘… “I think that AWB has cooperated with the IIC and that the IIC now has a
better appreciation of AWB operations under OFF. AWB has not been
involved in paying bribes in Iraq. I think the IIC will conclude that AWB was
not knowingly involved in breaching sanctions, or at worst that it was
unwittingly involved.” When someone asked what he meant by that statement,
he replied in words to the following effect: “The IIC is looking at the use of a
fictitious trucking company. But I’m confident that AWB does not fall in that
category.” To my knowledge, Mr Hargreaves referred to Alia by name for the
first time either in this meeting or in the meeting on 15 June 2005 (see paras
36-37 below).’ - 29 -
74 Hargreaves made a further presentation to Embassy staff on 15 June 2005 at which
Hargreaves told Ms Carayanides and others that:
‘… “I can assure you that AWB has not been involved in any illicit payments
to the Iraqi regime or breaches of sanctions. AWB has conducted an internal
audit and an independent legal review by a law firm, and both had found no
wrongdoing.”
…
“AWB has done nothing wrong. It has not been involved in breaking
sanctions. All of AWB’s contracts were approved by the UN. No-one in AWB
is aware of paying kickbacks to Iraq.”
…
“Alia is a Jordanian trucking company that provided real trucking services to
AWB in Iraq. Alia unloaded ships at Umm Qasr directly on to its trucks and
delivered the wheat throughout the country. As far as AWB knew Alia was not
a front company. AWB was not aware of Alia channelling money to Iraq”.’
75 On 25 June 2005, in consultation with AWB’s legal advisers, Hargreaves prepared a
memorandum for Lindberg to speak to at a board meeting of AWB that was scheduled for 28
June 2005. The memorandum apprised board members of meetings which AWB had held
with key elements of the Federal Government, including the Australian Embassy in
Washington, and expanded on those meetings as follows:
‘Meetings with Federal Government
Chairman and MD met with
o PM’s office – senior Foreign Affairs Advisor
o John Anderson and his chief of staff
o Alexander Downer
o Warren Truss
o Heads and other officials of DFAT and DAFF
Provided briefing on progress so far with IIC and our deep concern over
AWB’s treatment so far and that AWB might become victim of its
cooperation
Alerted them to possibility of adverse [findings] including possibility of
finding AWB has wilfully breached sanctions through the trucking
arrangements
Sought their advice on impact if AWB withdrew from process
Reassured them that:
o AWB has QC’s opinion it has not breached sanctions
o AWB complied with the guidelines laid down by the relevant - 30 -
authorities
o AWB had no knowledge of any connection between the trucking
company and the former regime during the OFF program
o AWB has found no evidence of fraud or corrupt payments etc
Overall the meetings were very satisfactory for AWB
While there is concern over damage to reputation of Australia and AWB,
the feedback from all parties was:
o AWB should continue to engage in the process
o That Fed Gov’t is ready to back AWB but this would be difficult if
AWB withdraws from process
o No indication from any individual or any meeting that Fed Gov’t
was distancing itself from AWB in this process
o Strong support came from Minister Downer who indicated he saw it
as his responsibility to defend AWB
o Their view of the facts was that:
AWB had followed the process
AWB did what it was instructed to do
AWB did not know, could not have known of any connection
between the trucking company and the former regime.’
76 Later in the memorandum, Hargreaves identified the commercial objectives which
AWB was pursuing:
‘Our objectives
1. Protect and defend the reputation of AWB both within Australia and
overseas
2. To minimize any attack by US wheat interests on the single desk selling
system arising from this report
3. To manage the media, politics in Canberra and domestic stakeholders in
order to avoid any need for a further inquiry into AWB’s role in OFF
4. To manage the media and politics in the United States with the aim of
containing this issue and preventing our involvement in the OFF Program
from becoming the subject of inquiry by Congressional Committees
5. Avoiding any impact on our relationship with Iraq or other customers.’
77 Hargreaves had a further meeting in Washington DC with Ms Carayanides at some
time in the period between 16 June 2005 and September 2005. In the course of this meeting,
Hargreaves was asked whether the amount paid by AWB to Alia for trucking services was
reasonable. Ms Carayanides said that he responded in words to the following effect:
‘“Yes, he thought it was reasonable, because it reflected the costs of
insurance and transportation throughout the country in difficult
circumstances. Alia was providing a real service, and AWB was paying for - 31 -
that service. It was the only trucking company that was reliable and that
AWB could use to off load wheat into trucks at Umm Qasr. No one in AWB
knew of any money being channeled to the Iraqi regime through Alia. AWB
had conducted an independent legal review which hadn’t turned up any
wrongdoing”.’
DISCLOSURES TO THE IIC
78 On 28 February 2005, Lindberg was interviewed by several investigators from the
IIC. The interview was also attended by Cooper and Leonie Thompson of ABL. The record
of interview, as subsequently revised by Lindberg and AWB’s lawyers, sets out the following
exchange between Lindberg and an IIC investigator:
[The investigator said] ‘that it appeared that AWB had “dismissed” media
reports that accused the company of engaging in sanctions-busting. [No basis
was given for the assumption that AWB had been dismissive as alleged]. He
asked LINDBERG what actions AWB had taken to determine if there existed
any truth to these allegations. LINDBERG said that he had asked COOPER to
conduct a “legal review” and that COOPER had assembled a team to look
into the matter. The review, LINDBERG said, had found nothing that would
substantiate claims of fraud or corruption and had identified no payments to
individuals in the Government of Iraq by AWB or vice-versa. LINDBERG said
that AWB would “obviously” have been concerned had COOPER’s team
uncovered evidence of improper or unlawful conduct.’
Later in the interview, Lindberg said that AWB would certainly have taken corrective action
had it uncovered evidence suggesting possible fraud or corruption, but no such evidence had
come to light.
79 Apparently, the IIC investigators interviewed a number of other AWB officers and
employees, but their records of interview have not been tendered in evidence before me.
80 AWB made its executives available for interview by the IIC, and also made
documents available for inspection by the IIC, under the terms of a Memorandum of
Understanding between the IIC and AWB dated 25/26 February 2005. The Memorandum
records that AWB agreed to cooperate with the IIC and to disclose information in accordance
with its terms. Relevantly, the Memorandum provided:
‘2. Document Production and Confidentiality – AWB will provide the IIC
with access to the scheduled AWB documents (see attached). The IIC
may request, in writing, further documents that it considers relevant. In
responding to the IIC’s document requests, AWB has advised that it may - 32 -
take into account that certain documents may be commercially sensitive,
subject to legal professional privilege, or expose AWB or its employees,
officers, or representatives (past or present) to breaches of Australian
law. In the event that AWB decides to withhold documents for any of the
aforementioned reasons, it will so advise the IIC in writing, and the
parties may agree to additional terms for production. The IIC’s review
of all documents provided by AWB will be governed by the AWB Data
Room Protocol, a copy of which is attached to this memorandum. At the
IIC’s request, except in exceptional circumstances (addressed further in
paragraph 7), AWB will furnish the IIC with copies of documents that
the IIC reviews in the AWB Data Room and determines are necessary
for purposes of its inquiry. The IIC will maintain in strict confidence the
documents provided by AWB, and it will not provide copies of the
documents to third parties. However, AWB agrees that the IIC may use
documents provided by AWB for the purposes of its investigation and for
any report. ...
3. Witness Interviews and Confidentiality – The IIC will maintain in strict
confidence the information gathered in the course of these interviews,
and it will not provide any records of this information to third parties.
However, AWB agrees that the IIC may use information that it gathers
in the course of AWB interviews as well as the fact of these interviews
for the purposes of its investigation and for any report. The IIC will
provide AWB with reasonable notice of its request to interview any
current AWB employee, officer, or representative as well as reasonable
notice of any former AWB employee, officer, or representative for whom
the IIC desires AWB’s assistance in locating and interviewing. With
respect to the IIC’s interview of a person who worked for AWB in
connection with the Programme, the parties understand that each
interview will be on the record and for attribution. In advance of the
interview, the IIC will submit a list of the subject areas to be addressed
with the witness. At each interview, two representatives of the IIC will
be present. A witness may have – at the witness’s choosing – a personal
legal counsel. In addition, if the witness agrees, up to two
representatives of AWB may be present at each interview. A witness will
advise the IIC prior to the interview who will be present on his behalf.’
DISCLOSURES TO THE MINISTER FOR FOREIGN AFFAIRS
81 On 4 October 2005, a conversation took place between Lindberg, the Minister for
Foreign Affairs, the Honourable Alexander Downer MP, Brendan Stewart, the chairman of
AWB, and others. A minute of this meeting prepared by the Department states:
‘2. Mr Downer said the IIC allegations were worse than he had thought.
There was evidence presented by the IIC in the most recent letter.
Mr Downer noted the letter claimed that Alia was a front company. He
enquired what was the role of the Iraqi State Company for Water - 33 -
Transport (ISCWT). Mr Lindberg replied it was the port authority,
which had responsibility for discharging goods from ships. Alia was not
a front company and had provided transportation services. The AWB
had been unaware of any wrongdoing and had used its services in good
faith. Mr Downer said AWB needed to provide evidence. Mr Lindberg
said AWB had been seeking additional information from the IIC about
the claims, before providing a written response to the
26 September letter. The so-called evidence did not support the facts.
AWB had provided explanations to the IIC which had been ignored.
AWB could demonstrate that it had paid no kickbacks. Nor had AWB
breached the sanctions regime. This had been confirmed by
independent legal advice both in Australia and overseas (Richard Tracy
in Australia and a Cornell University Professor who had previously
participated in drafting the sanctions regime).’
The minute also records that later in the meeting Lindberg reiterated that ‘as far as AWB was
aware, no one had been paid off nor any personal gain. AWB had acted in accordance with
the sanctions regime and that this had been supported by legal advice.’
82 AWB objected to the admissibility of the Department’s minute on the ground that the
statements contained in it were hearsay. There is, in my view, no substance in this objection.
The document constitutes a business record which is admissible under s 69 of the Evidence
Act. The definition of ‘business’ in clause 1(1) of Part 2 of the Schedule to the Evidence Act
includes an activity engaged in or carried on by the Crown in any of its capacities. The
document was tendered by the Commonwealth as evidence of the fact that the statements it
records were made by Lindberg. The minute was prepared by Marc Innes-Brown, the head
of the Department’s Iraq Task Force, who was present at the meeting. The representation in
the minute that Lindberg made the statements attributed to him was therefore made by a
person who had personal knowledge of what statements were made by Lindberg. Lindberg
was questioned about the minute at the Commission and did not dispute its accuracy in any
respect.
BLAKES ’SLIDE PRESENTATION
83 I have already referred to the presentation which Blakes made to AWB’s board on
25 May 2004. The slides recording Blakes’ presentation were originally withheld from
production to the Commission on grounds of legal professional privilege. The objection was
withdrawn in two stages. First, on or shortly before 6 April 2006, AWB withdrew its claim
for legal professional privilege over the presentation, other than one page headed ‘Legal - 34 -
advice’. This page set out the advice given by Mr Tracey QC in conference on 25 May 2004.
On 7 April 2006, AWB withdrew the balance of the claim, basically because of the
presentations which Hargreaves made to the Australian Government.
SENIOR COUNSEL ’S ADVICE
84 When AWB revised its privilege claims and produced Blakes’ presentation to the
Commission, it also produced a memorandum of advice by Mr Tracey QC dated
12 August 2005 confirming the advice he gave in conference on 25 May 2004, together with
the instructions and bundle of documents on which he founded that advice. Mr Judd, senior
counsel for AWB, informed the Commission that AWB had taken the view that, as
Mr Tracey QC’s advice was based upon a review of documents, and turned on the question
whether or not the documents disclosed evidence, the advice could not be separated from the
documents. Therefore, AWB had determined to produce the bundle of material on which
Mr Tracey QC had based his advice.
85 Mr Tracey QC’s instructions from Blakes were dated 12 May 2000 but this appears to
be an obvious error; the date should have read 12 May 2004. They requested him to advise
whether, based on the documents and information provided to him, AWB and AWBI may
have contributed to a contravention by Australia of its obligations under Resolution 661 or
contravened any Commonwealth or State legislation.
86 In the instructions to counsel, Blakes said that it had deliberately included a
significant number of AWB’s documents for 1999 and 2000 as this was the key period during
which the trucking fee was discussed. The documents included correspondence between
AWB and GBI, AWB and other participants in the Iraqi wheat market, AWB and various
shipping companies engaged to perform the ocean carriage of the wheat, and AWB and the
Department. The instructions set out extracts from a number of AWB documents which,
according to Blakes, contained comments as to the validity or otherwise of AWB’s payment
of trucking fees to Alia.
87 The instructions discussed the genesis of AWB’s payment of trucking fees to Alia.
GBI’s invitation to AWB to tender dated 16 July 1999 requested a new price provision in the
following terms: - 35 -
‘“10 – PRICE
CIF free on truck to silo at all Governarate [sic]. Cost of discharge at Umm
Qaser and land transport will be USD 12 per metric ton to be paid to the land
transport co. For more details contact Iraqi Maritin [sic] in Basrah.”’
88 The instructions noted that AWB included a clause in broadly this form in its
contracts A4653, A4654 and A4655 (all dated 14 July 1999) and A4822 (dated
14 October 1999). For instance, contract A4653 included the following terms as to shipment
and price:
‘SHIPMENT To be shipped during 01 October 1999 to 31 December 1999
subject to receipt of appropriate UN approval.
…
The cargo will be discharged Free in to Truck to all silos
within all Governates of Iraq at the average rate of … The
discharge cost will be a maximum of US$12.00 and shall be
paid by sellers to the nominated Maritime Agents in Iraq.
This clause is subject to UN approval of the Iraq distribution
plan.
PRICE The CIF, Free in Truck price per tonne of 1,000 kilos is …
UNITED [States] of America dollars as follows:’
In these contracts, the discharge cost of US$12 pmt was added to the sale price of the wheat
but the contract made no specific reference to ‘land transport’.
89 The instructions also stated that subsequent contracts between AWB and GBI
(eg A4970, A4971 and A4972 dated 20 January 2000) continued to include a provision to the
effect that the discharge costs would be a maximum amount (eg US$15 pmt) and was to be
paid by the sellers to the nominated maritime agents in Iraq. However, the signed contracts
that were submitted to the United Nations (eg A4970, A4971 and A4972) did not include the
above provision. Omitting any reference to discharge costs, the shipment clause in the
contract submitted to the United Nations merely stated that the ‘cargo will be discharged free
into truck to all silos within all Governates of Iraq at the average rate of 3,000 mt per day.’
90 From January 2000, all AWB contracts submitted to the United Nations followed the
same format and made no specific reference to the payment of a discharge cost or a trucking - 36 -
fee.
91 The instructions also said that the trucking fee in respect of contracts A4653, A4654,
A4655 and A4822 was paid directly by AWB to Alia. For a time thereafter, payment of the
trucking fee was effected by whichever shipping company had undertaken to provide the
ocean carriage. However, after 25 July 2000 the procedure was then changed so that AWB
remitted the funds direct to Alia. The instructions then set out the following observations:
‘8. Comments on the “trucking fee”
The documents which instructing solicitors have examined do not indicate
whether the trucking fees paid by AWB to Alia can be regarded as a genuine
payment for the provision of inland freight services actually provided by Alia.
We have not seen any contract between AWB and Alia. We have seen no
evidence to indicate whether or not the trucks used to transport wheat after its
discharge at Umm Qasr were provided by Alia. We have seen no explanation
as to how the trucking fee was calculated or the basis upon which the trucking
fee was subsequently increased. The trucking fee does not appear to have
been calculated with regard to the differing distances between Umm Qasr and
the various Governorates [sic] (cf. Tab 14).’
92 In his memorandum of 12 August 2005 confirming his oral advice given in
conference on 25 May 2004, Mr Tracey QC discussed his instructions and the documentary
evidence provided to him. Mr Tracey QC concluded as follows:
‘Ultimately, however, the question that I was asked to advise on was whether
there was evidence that AWB may have contributed to a contravention by
Australia of its obligations under Resolution 661. A breach of that resolution
would only have occurred if the trucking fees had been paid to the IGB or the
Iraqi Government and then only if it was not paid for a legitimate commercial
purpose. Whilst some of the material with which I have been briefed raises
suspicions that there may have been a perception within the AWB that any
payment of the trucking fee may have contravened Resolution 661 and that it
was necessary to make the payment to Alia in order to avoid any suggestion
that the payments, if made directly to the IGB, would have been in breach of
the Resolution, there is absolutely no evidence in the material provided to me
that any of the money paid by the AWB to Alia was ever forwarded to the IGB
or any other arm of the Iraqi government. It was for this reason, that, despite
some misgivings I answered the question posed for advice in the negative.’
93 Additional advice was sought from Mr Tracey QC in about June 2004. On this
occasion, Blakes instructed Mr Tracey QC that it had now ascertained the basis of calculation
of the increase in trucking fees that was applied to AWB’s contracts after 2 November 2000. - 37 -
Specifically, Blakes instructed Mr Tracey QC that an additional 10 per cent had been added
to the price of wheat by way of an increase in the trucking fee. All subsequent contracts were
priced on the same basis, ie a base price inclusive of a trucking fee, with 10 per cent of the
base price then being added to the trucking fee. Mr Tracey QC was asked to advise whether
his previous advice, to the effect that there was no evidence of a breach of the relevant UN
resolution on sanctions, and no evidence of a breach by AWB of Australian domestic law,
remained unchanged.
94 After Mr Tracey QC raised some queries, Quennell provided supplementary
instructions as follows:
‘(a) each and every contract pursuant to which AWB supplied wheat to the
Grain Board of Iraq under the Oil for Food Program was approved by
the UN Committee; however, the price of the wheat as expressed in the
contract was not broken down so as to identify the different components
of the price, eg ocean freight and inland transport costs;
(b) there was no apparent commercial justification for the increase;
(c) …
In the circumstances please advise on the above basis.’
95 On 8 June 2004, Mr Tracey QC provided the following advice by email to Quennell:
‘In the absence of commercial justification for the introduction, increases and
decreases in the trucking fee and the lack of specific approval for the fee and
its quantum by the UN there is reason to suspect that the fee (or part of it) was
used as a kick-back to the IGB or persons associated with it. Whether the
money was so used can only be determined by an investigation of the finances
of the Jordianian trucking company which was the recipient of the trucking
fees.
A further reason for suspecting the efficacy of the fee is Hogan’s assertion
that UN approval for its payment had been obtained. If this was not the case
then a question arises as to why the assertion was made. Was it a deliberate
attempt to mislead AWB management or did he make an honest mistake?
None of this establishes that the AWB or any of its employees is guilty of any
offence or of breaching UN resolutions. What it does suggest is the need for
further enquiries (if this is possible) to determine all the facts surrounding the
payment of the trucking fee and, in particular, whether any part of it found its
way to the IGB or any Iraqi officials.’
96 These communications between Blakes and senior counsel were marked ‘RE: Project
Rose’. They were produced to the Commission after AWB determined that privilege over the - 38 -
documents had been waived by Hargreaves’ disclosures to the Australian Government.
97 Mr Tracey QC provided a further memorandum of advice on 31 March 2005
confirming oral advice which he provided to his instructors the previous day. This
memorandum is headed ‘Re AWB Limited – Project Rose’, and states:
‘1. This memorandum confirms oral advice provided to my instructor
yesterday.
2. I have been briefed with a series of documents which evidence various
transactions and arrangements entered into by AWB Limited relating to
the sale by it of wheat to Iraq. I have been asked to examine these
documents with a view to advising whether the contents of any of them
lead me to change [my] earlier advice that, on material earlier
examined, there was no evidence of a breach by Australia (as a result of
conduct by AWB) of UN Resolution 661 and no evidence of a breach by
AWB, its officers and/or employees of Australian domestic law.
3. I confirm that there is nothing in the documents which causes me to vary
advice earlier given.
4. There are some documents (for example the emails under tab 8A) which
suggest that AWB paid port fees at the rate of US$1,500 per vessel in
2001 and that such payments were “technically in breach of sanctions”.
The payments were known to the UN Sanctions Committee and to the
Australian Mission to the United Nations. AWB was advised by the
Australian Mission that this fee for normal port agency services did not
violate current sanctions procedures. In confirming my earlier advice
about breaches of Security Council Resolution 661 I have assumed that
this advice was correct.
5. Some of the documents also contain evidence of attempts by Iraqi
Government agencies to obtain direct payment for port fees and
payments through Alia for inland transportation (for example, faxes
under tabs 8, 9 and 14). The terms of these communications add to the
concern which I expressed in my email of 8 June 2004. However, I note
my instructions that there is no evidence of any payments of the kind
contemplated in the documents briefed having been made. There is also
some comfort for AWB in the repeated refusals of its officers to agree to
the paying of US50¢ per metric ton port fees as demanded by Iraqi
authorities (for example, documents collected under tabs 8 and 8A) but
AWB’s position was subsequently undermined by its agreement to
incorporate the port fees into the inland transport fee which it paid to
Alia (see under tab 11A).’
98 The evidence tendered in this Court does not include any written instructions or other - 39 -
documents supplied to Mr Tracey QC in relation to this request for advice, and it is unclear
whether that material has been produced to the Commission.
FURTHER REPORTS TO AWB ’S BOARD OF DIRECTORS
99 After 25 May 2004, the board of AWB received further reports concerning Project
Rose. The evidence includes the redacted minutes of a meeting of the joint board committee
of AWB and AWBI held on 27 April 2005 which is headed ‘Project Rose – Joint Board
Committee’. The minutes note that the managing director briefed the committee on Project
Rose, but the balance of this entry has been excised on the ground that it is protected by legal
professional privilege. There was no suggestion before me that the complete minutes have
been produced to the Commission.
100 Cooper and Quennell exchanged emails on 27 July 2004. Scott Chesterman
(‘Chesterman’) of Minters was copied into the exchange of emails. The subject matter of the
emails was ‘RE: Project Rose – AWB Board briefing for tomorrow’. The emails show that
Cooper consulted both Quennell and Chesterman about the contents of the proposed AWB
board briefing. Two passages have been excised from Quennell’s email to Cooper of
27 July 2004 on the ground of legal professional privilege. The remaining passage states:
‘One suggestion which was made at the last Board meeting was that we
should conduct an investigation of Alia’s structure, shareholding etc (I think
the idea may have come from Chris Moffatt). The decision was subsequently
taken (by management) not to go down that route.’
101 The evidence in this Court includes a slide presentation entitled ‘Project Rose – AWB
Limited Board Briefing – 28 July 2004’. The document includes a page headed ‘Initial Legal
Advice’ which is otherwise blank, presumably on the ground that it is still the subject of a
claim for legal professional privilege. It also includes a page relating to Alia which states:
‘Alia for Transportation and General Trade Company
A Jordanian company based in Amman, Jordan
Owned 51% by the Al-Khawam family based in Iraq
Chairman is Mr Hussain Al-Khawam
Directly reporting to him is the General Manager, Mr Othman Al-Absi
(AWB’s most frequent contact)
Apparently 49% owned by the Iraqi Ministry of Transport
The company was formed in 1995 as a joint venture with the Iraqi - 40 -
Ministry of Transport
Al-Khawam’s clan is prominent in southern Iraq and in Jordan. His
father led a rebellion against the British mandate in Iraq in 1920 and
against a British-backed government in 1935.’
The document concludes with a statement that AWB’s strategy includes the full engagement
of Australian Government support.
102 The evidence in this Court also includes a handwritten note dated 10 March 2005 of a
joint meeting of directors of AWB and AWBI. The note is headed ‘Project Rose’ and it
shows that the joint boards were briefed on matters relating to the payment of trucking fees to
Alia and the question of any breach by AWB of Resolution 661.
LEGAL ADVICE CONCERNING RESOLUTION 661
103 AWB also produced to the Commission the instructions which ABL gave to
Sir Anthony Mason on 16 September and 20 October 2005, and Sir Anthony Mason’s expert
opinion dated 24 October 2005. The specific questions upon which Sir Anthony Mason was
asked to express an expert opinion were:
‘(i) Did the inclusion, on the insistence of the Iraqi Grain Board, of an inland
delivery payment term in its wheat contracts with AWB violate the UN
sanctions against Iraq that started with Resolution 661 in 1990 and
continued until the Oil-for-Food Program ended in 2003?
(ii) Did the UN sanctions Resolutions prohibit AWB from paying fees for the
inland delivery of wheat to a transport company?’
The instructions summarised legal advice which AWB had already obtained both in Australia
and in the United States as to the applicability of Resolution 661 and concluded with the
following statement:
‘In summary, AWB’s payment of the trucking fees to Alia, as directed by the
IGB, was consistent with the 661 Resolution exemption for payments to
commercial enterprises in Iraq in humanitarian circumstances for foodstuffs,
and also with the overall humanitarian purposes of the OFF Program
reflected in Resolution 986. That the IGB negotiated the trucking fees directly
with Alia, without any involvement on AWB’s part, was also consistent with
the IGB’s responsibility, on behalf of the MOT [Ministry of Transport], to
ensure the equitable distribution of wheat throughout the country, in
accordance with the state-controlled PDS [Public Distribution System]
administered by MOT.’ - 41 -
104 AWB’s revised list of documents includes two opinions dealing with the applicability
of Resolution 661, namely Mr Tracey QC’s memorandum of advice dated 22 September
2005 (documents 541 and 543) and Professor David Wippman’s advice dated 27 September
2005 (document 544). I infer that Professor Wippman is the Cornell University professor
who Lindberg identified in the course of his meeting with Minister Downer on 4 October
2005. AWB has maintained its claim that privilege attaches to these documents.
105 The instructions to Sir Anthony Mason did not contain any specific reference to legal
advice that AWB had obtained in the course of Project Rose. They did, however, state that
there was no evidence available to AWB during the currency of the OFF Programme to
suggest that payments made to Alia were, or might have been, remitted to the Iraqi regime or
to individuals in the regime.
LINDBERG ’S EVIDENCE TO THE COMMISSION
106 The Commonwealth contended that in the course of his evidence to the Commission,
Lindberg voluntarily, repeatedly and at times non-responsively disclosed the gist or substance
of legal advice that AWB had obtained in the course of its Project Rose investigations.
107 In support of this submission, the Commonwealth tendered relevant extracts from the
transcript of Lindberg’s evidence to the Commission. AWB initially objected to the tender of
any passages from the Commission transcript on the ground that it was hearsay, or irrelevant,
or alternatively it reflected evidence given under compulsion that ought to be excluded by the
Court in the exercise of its discretion under s 135 of the Evidence Act. However, AWB
withdrew its objection during the course of the hearing.
108 The transcript shows that Lindberg explained the origins of the Project Rose review,
and the conclusions it reached, without any objection being raised by AWB’s counsel that the
evidence intruded into areas protected by AWB’s legal professional privilege.
109 Lindberg told the Commission that, following public allegations that AWB had paid
kickbacks to the Iraqi regime, he asked Cooper to institute inquiries to ascertain whether any
of those allegations could be substantiated. Lindberg said he understood that the review
commenced in mid 2003 and that Cooper was assisted by legal advisers. The purpose of the - 42 -
review was to determine whether the allegations had any substance in fact, that is to say
whether they were true. When asked when the review concluded, Lindberg said:
‘A. Well, it concluded in the – it concluded in the lead–up or as part of the
overall inquiry process and, in fact, it continued through that process. So I’m
not sure it’s accurate to say that it concluded; it undertook certain
investigations and it reported periodically, and it didn’t find any evidence to
substantiate the allegations.’
110 When asked by the Commissioner whether there were any records concerning the
establishment of the Project Rose review or its periodical reports to the board of AWB,
Lindberg answered as follows:
‘A. My evidence is that I don’t recall there being a written record of the
brief. There certainly were reports, oral reports, quite extensive reports given
to both the boards of AWB International and AWB Limited and there were a
number of reports, and the findings of those reports are recorded in the
minutes and the basis of those findings has been communicated in letters that
have been sent to the government and elsewhere.
Q. But all of the reports to the two boards you mentioned were oral; is that
right ?
A. To the best of my knowledge, that is so.
[MR AGIUS:] Q. Can you recall whether or not, in the course of any of
these oral reports, anything was said about whether or not the AWB had
engaged in conduct in breach of the UN sanctions ?
A. I can’t recall. Clearly we found nothing that led us to believe that we
weren’t operating through the authorised process.
Q. The “authorised process” being the process which --
A. To get UN approval for contracts into Iraq.’
111 Lindberg gave evidence that Project Rose had concluded that AWB’s contracts for the
sale of wheat had been approved by the United Nations. He also said that he became aware
during the course of Cooper’s legal review that trucking fees were incorporated into the
contract price and paid to the trucking company.
112 When asked about the allegation in the draft report by the IIC that contracts had been
inflated by 10 per cent because of a direction from the Iraqi regime, Lindberg said he only
became aware of that fact as a result of the IIC investigation and in preparation for the
Commission. He said that Cooper’s review did not reveal the 10 per cent addition to the - 43 -
contract prices:
‘Well, as I say, we had made inquiries and we found no evidence of that and
no-one told me’.
113 In the same context, Lindberg said that as the IIC had commented on the imposition
of after sales service fees, he asked Cooper, who obtained the assistance of Ferrier Hodgson,
to review all the payments. Lindberg said that ‘[t]hey found no evidence of payments being
made by AWB so characterised … There were inland transport payments, but no 10 per cent
service fee payments’.
114 Later in his evidence, Lindberg was asked about the findings recorded in AWB’s
board minute of 26 May 2004:
‘Q. Were you satisfied with those findings as at 26 May 2004?
A. Yes.
Q. Were you satisfied that, as at the date of that report, 26 May 2004, the
transportation fee had never been used as a conduit for the payment of money
by the AWB to any Iraqi entity?
A. Well, that was the finding.
Q. Were you satisfied with that?
A. I had no reason to question it.’
115 The evidence tendered to this Court concerning Project Rose is obviously far from
complete. It is likely to represent a fraction of the evidence available to the Commission.
Nonetheless, it represents the evidence that the Commonwealth has relied upon for its
contention that there has been a wholesale waiver by AWB of legal professional privilege in
relation to the Project Rose investigations. The Commissioner has not adduced any
additional evidence in this Court. Consequently, I must determine whether legal professional
privilege has been waived in relation to Project Rose documents on the basis of the evidence
before me.
AWB’S DISCLOSURES IN RELATION TO PROJECT WATER
116 The Commonwealth contends that AWB has disclosed the gist of legal advice which
it obtained in connection with Project Water and, consequently, it should be taken to have
waived privilege over other documents associated with Project Water. It relies upon: - 44 -
(a) the broad terms in which AWB made disclosures to the IIC and to the Australian
Government in the course of 2005, as discussed above; and
(b) the disclosures which AWB made to the Commission through oral evidence given by
its officers and employees and the production of documents.
117 I have already described the general nature and scope of Project Water. Acting on
Cooper’s instruction, Quennell commenced the investigations known as Project Water on
12 August 2004 and those investigations resulted in a report to AWB’s board on
14 December 2004.
118 In his evidence to the Commission, Cooper said that Quennell briefed him on his
findings and that he relied on Quennell’s advice. On 10 September 2004, Cooper gave
Lindberg a report on the state of the Project Water investigation. Cooper also said that, as a
result of Quennell’s investigations, he learnt that wheat contracts had been inflated to
incorporate an amount relating to the debt owed to Tigris by GBI.
119 Cooper attended a board meeting of AWB on 14 December 2004 at which the board
was briefed as to the results of the investigation of the Tigris matter. Cooper’s handwritten
note of proceedings at the board meeting on 14 December 2004 includes a statement that:
‘I have checked compliance with all necessary laws and confirm there have
been no breaches.’
Cooper’s evidence to the Commission was that this statement recorded something that was
said by Lindberg. On the other hand, the evidence given by Lindberg and Scales to the
Commission attributed this statement to Cooper.
120 Lindberg’s evidence to the Commission was that he asked Cooper to institute a legal
review to determine how AWB should deal with the money it had received. Lindberg was
cross-examined on the basis that the file note of 14 December 2004 recorded a statement
made by Cooper. Lindberg told the Commission he could not recall who made the statement.
121 Lindberg told the Commission that the contract price of wheat was inflated in certain
contracts to allow for the recovery of the Tigris debt from GBI. The contracts were sent to - 45 -
the United Nations for approval and approval was obtained. Lindberg then referred to the
legal advice that had been obtained after the money had been collected from the United
Nations’ escrow account:
‘The next time we considered the Tigris matter was when the money had been
collected and the Oil-for-Food Program had ceased; that’s when the money
was there. And the question arose what to do with that money. After taking
advice, it was decided that the money should be paid because, after all, it was
for a wheat debt and a wheat cargo delivered under the sanctions program,
and people will say that that was done with the full knowledge … of the
United Nations and the government at the time.’
122 Lindberg expanded somewhat on the legal advice that AWB obtained. He said that
AWB took advice as to whether or not it was legal to make the payment to Tigris. He also
said that the legal advice did not relate to the lawfulness or otherwise of the conduct of the
AWB employees who had inflated the prices which were reflected in the contracts. When
asked what he did when he found out that the United Nations had been deceived into
approving contracts which had inflated prices for wheat, Lindberg answered:
‘Well, the Oil-for-Food Program had ceased. Having a view that it was for
the payment – basically the delayed payment for a wheat shipment, having the
understanding that that had occurred - … with the understanding of the UN
and our government in the first place going in – we recovered the money and,
having recovered the money, and there were various options talked about, and
I wasn’t aware of what the final option was or how it occurred, the detail of
how it occurred – having recovered the money, we took advice about what to
do about it and it was decided to pay it.’
123 Lindberg also confirmed in his evidence to the Commission that the payment to Tigris
was only made after the matter had been reviewed by Cooper, legal advice had been
considered, and the matter had been taken to AWB’s board.
124 In her evidence to the Commission, Scales said that she went to see Cooper because
she wanted to make sure that everything was legal and there was an agreement to support the
payment to Tigris of the money that was sitting in AWBI’s account. She said that she wanted
external legal advice because she was concerned about whether any United Nations’
sanctions had been breached and whether it was therefore appropriate for her to authorise
payment to Tigris. She confirmed that Cooper set in train a process of obtaining external
legal advice that involved a review of the whole Tigris event. She said that she believed that - 46 -
it was Cooper who made the statement to the AWB board that is recorded in Cooper’s file
note of 14 December 2004.
125 After legal advice had been obtained, Scales and Cooper signed the authorisation for
the sum of US$7,087,202.24 to be paid out of AWBI’s account to Tigris on
6 December 2004. Scales’ evidence to the Commission was that:
‘I authorised the payment because the recommendation from senior counsel
was to do so, and I believe there was a period of time where there was some –
I don’t know – confusion, certainly in my mind, as to whether it was a debt
recovery or for services rendered, because of the half million to one million
tonnes issue, and I was assured during that process that, you know, it was fine
to authorise payment.’
126 In the course of 2005, AWB made numerous disclosures concerning the outcome of
the legal review which it had undertaken. The Commonwealth submits that these disclosures
(which are discussed at [72] to [115] above) were expressed in such broad terms that they
should be regarded as encompassing both the outcome of the Project Rose investigations and
the outcome of Project Water.
IMPUTED WAIVER
127 The crux of the Commonwealth’s case is that AWB has disclosed the gist or
substance, and in some cases the entirety, of legal advices it obtained as a result of the Project
Water and Project Rose investigations. In these circumstances, the Commonwealth contends
that the law will impute a waiver of privilege over associated documents. It argues that the
associated documents comprise documents that were brought into existence as a result of the
Project Rose and Project Water investigations respectively or, at the very least, all of the
investigatory reports, documents and communications that directly or indirectly represented
the foundation for the advices that have been disclosed by AWB.
128 The kind of waiver that is in issue in this case is commonly referred to as imputed or
implied waiver. The former expression is preferable, as it reflects the way in which the High
Court expressed the governing legal principles in Mann v Carnell (1999) 201 CLR 1
(‘Mann’).
129 In Mann at 13 [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ said: - 47 -
‘Waiver may be express or implied. Disputes as to implied waiver usually
arise from the need to decide whether particular conduct is inconsistent with
the maintenance of the confidentiality which the privilege is intended to
protect. When an affirmative answer is given to such a question, it is
sometimes said that waiver is “imputed by operation of law”. This means
that the law recognises the inconsistency and determines its consequences,
even though such consequences may not reflect the subjective intention of the
party who has lost the privilege. Thus, in Benecke v National Australia Bank,
the client was held to have waived privilege by giving evidence, in legal
proceedings, concerning her instructions to a barrister in related
proceedings, even though she apparently believed she could prevent the
barrister from giving the barrister's version of those instructions. She did not
subjectively intend to abandon the privilege. She may not even have turned
her mind to the question. However, her intentional act was inconsistent with
the maintenance of the confidentiality of the communication. What brings
about the waiver is the inconsistency, which the courts, where necessary
informed by considerations of fairness, perceive, between the conduct of the
client and maintenance of the confidentiality; not some overriding principle of
fairness operating at large.’
130 The concluding part of this passage draws attention to the fact that the test for
imputed waiver had previously been expressed in terms of fairness: see Attorney-General
(NT) v Maurice (1986) 161 CLR 475 (‘Maurice’) at 481 per Gibbs CJ, 487–488 per Mason
and Brennan JJ, 492–493 per Deane J, and 497–498 per Dawson J. Under the test
propounded in Mann, it is inconsistency between the conduct of the client and the
maintenance of the confidentiality that the privilege is intended to protect which effects a
waiver of the privilege. Fairness has become a subsidiary consideration; it may be relevant to
the court’s assessment of inconsistency in some contexts but not in others.
131 In Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 (‘Rio Tinto’) at
[44], the Full Court (Kenny, Stone and Edmonds JJ) said that there was a good deal of doubt
whether the language used by the majority in Mann worked any real change in the principle
which governs imputed waiver. This observation was made somewhat tentatively and was
not material to the Court’s decision. My own view is that a test expressed in terms of
inconsistency more readily accommodates the variety of situations in which questions of
imputed waiver can arise than a test expressed in terms of fairness. The criterion of fairness
is readily understandable in the context of inter partes litigation, but it is difficult to apply
sensibly in other contexts: see the observations by McHugh J in Mann at 40 [128] and
Toohey J in Goldberg v Ng (1995) 185 CLR 83 (‘Goldberg v Ng’) at 110. - 48 -
132 AWB submitted that this Court should hold that there has been no imputed waiver
because the Commonwealth has made no attempt to identify why it would be unfair or
inequitable for AWB to maintain privilege in the underlying investigations. This submission
immediately raises the question – unfair or inequitable to whom? I doubt that any question
arises of fairness to the Commission – it is an arm of the executive government charged with
the investigation of specified matters. Nor does any question arise of fairness to the
Commonwealth. Fairness presupposes a balancing of interests between parties who are in
dispute. In that context, partial disclosures raise a question of fairness because there is the
capacity to mislead one party to the dispute to his or her detriment. These concepts do not
translate easily to the present case: cf McHugh J in Mann at 40 [127]-[128]. There is also the
difficulty that, outside the framework of an inter partes dispute, fairness is truly a term of
‘indeterminate reference’: Mann at 40 [129] per McHugh J, citing RJ Desiatnik, Legal
Professional Privilege in Australia, 1999, p 122.
133 Mann anticipated that there will be cases in which considerations of fairness have
little or no role to play. This is such a case. The broad question posed by Mann is whether,
and to what extent, AWB’s disclosures are inconsistent with the maintenance of
confidentiality in the documents which are at issue in these proceedings. This question wraps
up several subsidiary issues, in particular whether AWB’s disclosures involved, on each
occasion, a disclosure of the gist or substance of its legal advice, whether AWB consciously
deployed that advice so as to advance its own commercial or other interests, and, if so,
whether that disclosure has resulted in an imputed waiver of privilege over any and what
associated materials.
134 In any application of Mann, the starting point must be an analysis of the disclosures or
other acts or omissions of the party claiming privilege that are said to be inconsistent with the
maintenance of confidentiality in the privileged material: see Rio Tinto at [45]. The
disclosures in question here were made variously to the IIC, to the Australian Government, to
the Commission and in some instances via the procedures of the Commission to the public at
large. In my opinion, there is no reason why these disclosures cannot support a finding that
AWB has waived legal professional privilege over associated material.
135 AWB submitted that imputed waiver cannot arise in the context of a commission - 49 -
established under the RCA. Alternatively, it submitted that the coercive and inquisitorial
context in which the alleged waiver has taken place is an important factor which strongly
militates against waiver. These submissions ignore the voluntary disclosures that AWB made
to the Australian Government. In any event, I am not persuaded that AWB’s disclosures to
the Commission and the IIC are incapable of giving rise to an imputed waiver.
136 Leaving aside any question of waiver, AWB was entitled to maintain legal
professional privilege in the course of proceedings before the Commission and, by and large,
it sought to do so. To the extent that AWB has already produced documents to the
Commission containing legal advice or instructions, it did so because it recognised that
actions it had taken outside the Commission had the consequence of waiving privilege over
those documents. As for the oral evidence that the Commonwealth now relies upon,
Lindberg, Cooper and Scales were senior executives of AWB when they gave that evidence
to the Commission. There is nothing before me to suggest that they were not speaking as
executives of AWB when they gave their evidence, or that their evidence fell outside the
scope of their authority from AWB. Further, their evidence was given in the presence of
AWB’s legal representatives, without any objection being raised on grounds of legal
professional privilege. Lindberg, Cooper and Scales may have been compelled to give
evidence at the Commission, but they were under no compulsion to reveal the gist or
substance of legal advice that had been obtained by AWB.
137 In these circumstances, I infer that the relevant evidence given by Lindberg, Cooper
and Scales was given with the authority or acquiescence of AWB. I also infer that AWB was
content for the evidence to be given at public hearings of the Commission, having regard to
its own commercial interests. The evidence before me makes it clear that AWB was
concerned to defend its integrity and commercial reputation in the course of the
Commission’s hearings. I infer that AWB made the assessment that it would advance its
commercial interests if it were to be known publicly that it had undertaken extensive legal
reviews and that, as a result, it had obtained legal advice that there was no evidence that it
had engaged in any improper or unlawful conduct in breach of the United Nations’ sanctions.
AWB was content for information of this character to be disclosed publicly in relation to both
Project Rose and Project Water. - 50 -
138 It would, of course, be a different case if the documents and information that the
Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact
that documents and information were disclosed under compulsion would be very relevant to
the question whether the person claiming privilege had engaged in inconsistent conduct.
There is, moreover, authority to the effect that a production of documents or evidence under
compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 1 WLR 1238
th
(‘Goldman’); Trans America Computer Co Inc v IBM Corporation 573 F2d 646 (9 Cir
1978) (‘Trans America’) at 651.
139 AWB’s disclosures to the IIC were not made under legal compulsion. They were
made by choice under a confidentiality regime negotiated by AWB. The Memorandum of
Understanding between AWB and the IIC provided that AWB could withhold documents
from the IIC on grounds of commercial sensitivity or legal professional privilege, or if there
was a risk that AWB, its officers or employees would be exposed to breaches of Australian
law. It also provided that any interviews conducted by the IIC of AWB officers or employees
could be undertaken in the presence of a personal legal counsel and/or up to two
representatives of AWB. AWB thereby retained the right to object to any question that
intruded into areas protected by legal professional privilege. On the evidence before me,
including in particular the various briefings which Hargreaves gave to the Australian
Government, it is clear that AWB decided that it needed to cooperate, and be seen to
cooperate, with the IIC so as to retain the support of the Australian Government and to
protect and defend its commercial reputation.
140 I do not agree with AWB’s submission that, even if its disclosures were not
compelled by law, the inquisitorial context in which they took place is a factor which strongly
militates against waiver. In Australia, legal professional privilege is a fundamental common
law right that can be asserted outside the context of adversarial litigation. It can, for instance,
be invoked to resist the production of documents in answer to a search warrant or the giving
of information or the production of documents pursuant to coercive statutory powers or
notices: Daniels at 552-553 [9]–[11] and 563 [44]; Baker v Campbell (1983) 153 CLR 52.
As legal professional privilege can be invoked outside the context of judicial or quasi-judicial
proceedings, logic suggests that it should be capable of being waived if the claimant engages
in conduct that is inconsistent with the maintenance of the confidentiality that the privilege is - 51 -
intended to protect. It should not matter whether the conduct takes place within, or outside,
the framework of the proceedings or investigatory process in which a demand has been made
for the production of privileged documents or information. The crucial question is whether
the conduct is inconsistent with the maintenance of confidentiality.
141 The disclosure of privileged communications to a third party can result in an imputed
waiver of privilege, even if there is no intention of waiving privilege and the disclosure is for
a limited and specific purpose. In Mann, the Chief Minister of the Australian Capital
Territory conveyed legal advice, on a confidential basis, to a member of the Territory’s
Legislative Assembly to enable him to consider the reasonableness of the Government’s
decision to settle certain legal proceedings. The majority decision turned on the fact that the
disclosure to a member of the Legislative Assembly was not regarded as disclosure to a third
party. In their joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 15
[35] that:
‘The purpose of the privilege being to protect the Territory from subsequent
disclosure of the legal advice it received concerning the litigation instituted by
the appellant, there was nothing inconsistent with that purpose in the Chief
Minister conveying the terms of that advice, on a confidential basis, to a
member of the Legislative Assembly who wished to consider the
reasonableness of the conduct of the Territory in relation to the litigation.’
However, their Honours also observed that, while the voluntary disclosure of privileged legal
advice to a third party will not necessarily waive privilege, it can do so. They said that
Goldberg v Ng illustrates that, depending on the circumstances, the disclosure of a privileged
communication to a third party for a limited and specific purpose, and on terms as to
confidentiality, can have the consequence of waiving privilege.
142 McHugh J dissented. In his view, any disclosure of privileged material to a third
party who is a stranger to the privileged relationship (ie to a person who is not the lawyer or
the client) should have the consequence that privilege in that material is waived as against the
world: at 34 [108], 37-38 [118], 42 [133]-[134]. As I read his Honour’s judgment, the key
reason why his Honour preferred a bright line rule of this kind is that it would ensure that
legal professional privilege was not extended beyond the rationales that support it (at 37
[117]-[118]):
‘Ensuring candid communications between a lawyer and a client is unlikely to - 52 -
be endangered if a privilege holder is held to waive privilege because he or
she has voluntarily disclosed the communication to a stranger. Whether the
communication will be disclosed in the future to a stranger to the privilege is
entirely within the control of the client. At that stage, the client will determine
whether his or her interests are best served by retaining the privilege or
disclosing the communication. But it is difficult to see how the possibility of
voluntary disclosure will prevent the client being candid with his or her
lawyer. …
A client who voluntarily discloses privileged information to a stranger to the
privileged relationship has made a choice, based no doubt on considerations
personal to him or her, that the purpose for which the communication is
disclosed to the stranger is more important than protecting the absolute
confidentiality of the communication by preventing the stranger from having
knowledge of it. The person may be encouraged to do so, as in Goldberg v
Ng, by an expectation that the stranger will not further disclose the
communication. But in my opinion, if privileged material is voluntarily
disclosed to a stranger to the privileged relationship, the fact that it may be
received under an obligation of confidence should not be relevant to whether
privileged is waived.’
On the facts, McHugh J considered that disclosure to a member of the Legislative Assembly
who was not a member of the Executive Government was relevantly a disclosure to a stranger
to the privileged relationship: at 44 [139].
143 In Goldberg v Ng, the respondents sued their solicitor, Goldberg, for failure to
account for monies received and disbursed by him as their solicitor. They also made a
professional conduct complaint against him to the Law Society of New South Wales. In
answer to the complaint, Goldberg prepared statements, with annexures that included a draft
brief to counsel, and submitted them to the Society’s professional conduct department. In
doing so, Goldberg told the Society that the statements and the annexures were confidential
and he wished to retain his legal professional privilege in them. The Society dismissed the
complaint on the ground that there was no evidence of professional misconduct or
unsatisfactory professional conduct. Subsequently, in the course of the Supreme Court
proceedings instituted by the respondents against Goldberg, the respondents served a
subpoena on the Society requiring it to produce documents relating to the complaint against
Goldberg.
144 All of the members of the High Court held that there had been no express or
intentional waiver by Goldberg of his legal professional privilege in the statements and - 53 -
annexures. The issue that divided the Court was whether waiver should be imputed by
operation of law. Deane, Dawson and Gaudron JJ held at 100-102 that it should because the
professional complaint and the Supreme Court proceedings were but different emanations of
the one dispute, and Goldberg’s provision of the statements to the Society was voluntary and
for the calculated purpose of demonstrating the reliability of his denial of the alleged failure
to account. Their Honours analysed the issue in terms of ‘fairness’, but they could equally,
and perhaps more appropriately, have done so in terms of inconsistency.
145 Toohey and Gummow JJ dissented in separate judgments. Each expressed the view
that waiver should not be imputed because the disclosures by Goldberg were made to a third
party for a limited and specific purpose. Toohey J said at 110 that the following factors
militated strongly against any implied or imputed waiver: first, Goldberg disclosed material
to the Society because of a complaint against him on an undertaking by the Society that the
contents would be kept confidential; secondly, the disclosure was made in the context of the
Society’s investigation of a complaint in pursuance of its statutory powers and, consequently,
it could be regarded as having been made for the purposes of the Act; and thirdly, the
disclosure was confined to the Society. Gummow J said at 123 that, as the disclosures were
made in the context of compulsory statutory processes, the circumstances of the case supplied
no sufficient reason for depriving Goldberg of privilege, even allowing for the advantage he
sought to gain by making the disclosure.
146 The case of Restom v Battenberg [2006] FCA 781 provides an example of a case
where disclosures to a third party triggered a waiver of legal professional privilege. In the
course of bankruptcy proceedings, the debtor claimed privilege over a letter that passed
between his Australian and Scottish solicitors. Stone J held that the disclosure of the contents
of the letter to the Scottish Employment Tribunal was inconsistent with the maintenance of
confidentiality in the letter and constituted a waiver of privilege.
147 In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, which
predated Goldberg v Ng and Mann, Giles J held that a limited and specific disclosure of
privileged material, on terms of confidentiality, did not result in a loss of privilege. In
Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253, Sackville J
said that it follows from Goldberg v Ng that the disclosure of a privileged communication for - 54 -
a limited purpose and subject to a confidentiality requirement may, or may not, amount to a
waiver of privilege, depending on the circumstances of the case: at 262-263 [42]-[43]. On
the facts of that case, Sackville J held that a disclosure of legal advice to the solicitors and
representatives of two other companies, on strict terms as to confidentiality and for the
purpose of those other companies obtaining legal advice, did not result in an imputed waiver.
His Honour distinguished Goldberg v Ng as a case in which the disclosure was made to gain
an advantage over the opposing party in related litigation: at 263 [45].
148 There are several English cases in which disclosure to a third party for a limited and
specific purpose has not resulted in a loss of privilege: British Coal Corporation v Dennis
Rye Ltd (No 2) [1988] 1 WLR 1113 (‘British Coal’); Goldman; and Gotha City v Southeby’s
(No 1) [1988] 1 WLR 1114.
149 In British Coal, Neill LJ (with whom Stocker LJ and Dillon LJ agreed) held that the
disclosure of documents by the plaintiff to the police to assist in a criminal investigation and
criminal trial did not constitute a waiver of the privilege. Neill LJ said at 822:
‘In my judgment the action of the plaintiff in making documents available for
the purpose of the criminal trial did not constitute a waiver of the privilege to
which it was entitled in the present civil proceedings. Its action in regard to
both the category A and the category B documents was in accordance with its
duty to assist in the conduct of the criminal proceedings, and could not
properly be construed as an express or implied waiver of its rights in its own
civil litigation. Indeed, it would in my view be contrary to public policy if the
plaintiff’s action in making the documents available in the criminal
proceedings had the effect of automatically removing the cloak of privilege
which would otherwise be available to them in the civil litigation for which
the cloak was designed.’
150 In Goldman, the Court of Appeal considered the effect of a statutory requirement that
a claimant for costs must disclose privileged materials to the Court’s taxing officers.
Taylor LJ (with whom Woolf LJ and Lord Donaldson MR agreed) said that once a party puts
forward privileged documents as part of his case for costs, the privilege is relaxed
temporarily and pro hac vice. If the taxing officers felt compelled by natural justice
considerations to disclose part or all of the contents of a privileged document to the opposite
party, that disclosure would be for the purposes of the taxation only and would not amount to
a waiver that prevented the owner of the document from reasserting privilege in any - 55 -
subsequent context: at 102. McHugh J took a stricter view in Giannarelli v Wraith (No 2)
(1991) 171 CLR 592. His Honour noted that in Victoria, unlike in England, a litigant can
refuse to produce documents to the taxing master on the grounds of legal professional
privilege. However, McHugh J said that if the litigant choses to produce privileged
documents to the taxing master, then the litigant will be taken to have waived privilege and
must let the opposing parties see the documents. His Honour did not countenance any middle
course under which privilege could be waived solely for the purposes of the taxation and then
re-asserted in some other context: at 607.
151 The general rule adopted in the United States is that any voluntary disclosure of
privileged communications by a client to a third party breaches the confidentiality of the
attorney-client relationship and therefore waives the privilege, not only as to the specific
communication disclosed but as to all other communications relating to the same subject
matter: see Weil v Investment/Indicators Research and Management Inc 647 F2d 18
th
(9 Cir 1981) at 24; United States v Aronoff 466 FSupp 855 (DC NY 1979) at 862 [9]-[10];
In re Sealed Case 676 F2d 793 (DC Cir 1982) (‘re Sealed Case’) at 809 [6]–[7]; United
States v AT & T Co 642 F2d 1285 (DC Cir 1980) at 1299; cf Diotima Shipping Corp v Chase,
Leavitt & Co., 102 F.R.D. 532 (D Me 1984); von Bulow v von Bulow, 114 F.R.D. 71
(SD NY 1987); and T Harman, Fairness and the Doctrine of Subject Matter Waiver of the
Attorney-Client Privilege in Extrajudicial Disclosure Situations (1988) University of Illinois
Law Review 999.
152 The US courts have also considered whether a disclosure of privileged material to
government investigators will have the consequence of waiving privilege. In re Sealed Case,
the United States Court of Appeals for the District of Columbia considered whether a
corporation that had submitted its own investigating counsel’s report into alleged bribes and
improper payments to the Internal Revenue Service and the Securities and Exchange
Commission (‘SEC’) pursuant to voluntary disclosure programs had thereby impliedly
waived its privilege over documents which were clearly identified in the report. The Court
held that, by revealing part of privileged communications to the agencies to gain a
commercial advantage, the corporation had made a disclosure which was inconsistent with
the maintenance of confidentiality. Accordingly, the Court held that the corporation had
waived privilege as to all other communications relating to the same subject matter. - 56 -
153 The principle applied by the Court was that (at 818 [29]):
‘Courts need not allow a claim of privilege when the party claiming the
privilege seeks to use it in a way that is not consistent with the purpose of the
privilege. Thus, since the purpose of the attorney-client privilege is to protect
the confidentiality of attorney-client communications in order to foster candor
within the attorney-client relationship, voluntary breach of confidence or
selective disclosure for tactical purposes waives the privilege. Disclosure is
inconsistent with confidentiality, and courts need not permit hide-and-seek
manipulation of confidences in order to foster candor.’
154 The Court rejected an argument that waiver should not be imputed because the
corporation had disclosed the investigating counsel’s report for specific and limited purposes
only. In doing so, it declined to follow the decision in Diversified Industries Inc v Meredith
th
572 F2d 596 (8 Cir 1977) (‘Diversified Industries’) at 611 in which the Eighth Circuit Court
of Appeals held that disclosures to the SEC under a voluntary disclosure program did not
constitute a waiver to anyone but the SEC. It noted that the decision in Diversified Industries
was rejected in Permian Corp v United States 665 F2d 1215 (DC Cir 1981) at 1220-1222 on
the ground that it unnecessarily expanded the scope of attorney-client privilege: see also In re
th
Weiss 596 F2d 1185 (4 Cir 1979) at 1186. Like the District Columbia Circuit, the First,
Third, Fourth, Sixth and Federal Circuit Courts of Appeal have rejected the approach adopted
by the Eighth Circuit in Diversified Industries: see AM Pinto, Cooperation and Self-Interest
are Strange Bedfellows: Limited Waiver of the Attorney-Client Privilege through Production
of Privileged Documents in a Government Investigation (2004) 106 West Virginia Law
Review 359, p 372; RH Porter, Voluntary Disclosures to Federal Agencies – Their Impact on
the Ability of Corporations to Protect from Discovery Materials Developed During the
Course of Internal Investigations (1990) 39 Catholic University Law Review 1007, pp 1029-
1052.
155 The US courts have accepted that there will be no imputed or implied waiver of
privilege if the disclosure of the privileged material is involuntary and compelled by law: see
eg Trans America.
156 The Canadian courts apply a waiver test that is based on considerations of fairness
and consistency: see S & K Processors Ltd v Campbell Ave Herring Producers Ltd (1983)
CPC 146 (BCSC) at 150; Professional Institute of the Public Service of Canada v Canada - 57 -
(Director of the Canadian Museum of Nature) [1995] 3 FC 643; British Columbia (Securities
th
Commission) v BDS (2000) BCJ No 2111 (BCSC), affirmed (2003) 226 DLR (4 ) 393; and
RD Manes and MP Silver, Solicitor-Client Privilege in Canadian Law, Butterworths, 1993, p
207. As in the United States, waiver will not be imputed if privileged material is produced to
a government regulator under compulsion of law.
157 Putting to one side its provision of Mr Tracey QC’s advices and instructions and its
briefings to the Australian Government, AWB disputed that the disclosures it made to the IIC
and the Commission disclosed the gist or substance of legal advice that AWB obtained as a
result of Project Rose or Project Water. It contended that these disclosures did no more than
refer to the existence of legal advice, without disclosing its substance. Alternatively, AWB
argued that the record of Lindberg’s interview with the IIC, and the evidence given to the
Commission by Lindberg, Cooper and Scales, cannot be related to any particular piece of
legal advice, other than that provided by Mr Tracey QC.
158 The applicable principles are set out in my decision in AWB v Cole at [135]–[139].
The authorities draw a distinction between a mere reference to the existence of legal advice,
which will not usually amount to a waiver, and cases in which the gist or substance of the
legal advice has been disclosed: see Maurice at 481, 488 and 493; Ampolex Ltd v Perpetual
Trustee Co (Canberra) Ltd (1996) 70 ALJR 603 at 607; Ampolex Ltd v Perpetual Trustee Co
(Canberra) Ltd (1996) 40 NSWLR 12; Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR
360 at 376-377; and Bennett v Chief Executive Officer of the Australian Customs Service
(2004) 140 FCR 101 (‘Bennett’) at 104-105 [6]–[9].
159 In Bennett, the Full Court (Tamberlin, Emmett and Gyles JJ) held that legal
representatives of the Australian Customs Service had waived privilege in legal advice by
stating openly that they had given advice to Customs that a particular regulation did not
prohibit public comment by an officer on matters of public administration. The trial judge
had held that a disclosure of the legal position or stance that a lawyer had advised a client to
take was not inconsistent with the maintenance of confidentiality in the communication
giving the advice. The trial judge also appeared to draw a distinction between statements
which disclose the conclusion or logical result of legal advice, and statements which disclose
the content of the legal advice and its reasoning: see Tamberlin J at 105 [10] and Gyles J at - 58 -
118 [61]. The Full Court rejected this approach. Gyles J stated at 119 [65] that the voluntary
disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the
whole of the advice to which reference is made, including the reasons for the conclusion.
Tamberlin J said at 104 [6]:
‘In my view, it would be inconsistent and unfair, having disclosed and used
the substance of the advice in this way, to now seek to maintain privilege in
respect of the relevant parts of that advice which pertain to the expressed
conclusion. It may perhaps have been different if it had been simply asserted
that the client has taken legal advice and that the position which was adopted
having considered the advice, is that certain action will be taken or not taken.
In those circumstances, the substance of the advice is not disclosed but merely
the fact that there was some advice and that it was considered. However, once
the conclusion in the advice is stated, together with the effect of it, then in my
view, there is imputed waiver of the privilege. The whole point of an advice is
the final conclusion. This is the situation in this case.’
160 Subsequently, Tamberlin J was confronted with a case that was very similar to the one
he hypothesised in Bennett. In Nine Films and Television Pty Ltd v NINOX Television Ltd
(2005) 65 IPR 442, the applicant contended that the respondents had waived privilege in
various legal advices because of the way in which the respondents had publicly referred to
the advice. Tamberlin J held that there had been no waiver. He concluded that the mere
assertion that advice had been taken, and the fact that action is then taken by the client, is not
sufficient, unless the two are linked in such a way that it is apparent that the advice is that
specified action should be taken. His Honour also made the following observations at 446-
447 [26]:
‘Whilst I accept that, in some circumstances, a clear disclosure of the “bottom
line” of the advice, and the course of conduct taken thereafter, may be
sufficient to amount to waiver of legal professional privilege, I do not think
these matters have been established in the present case. On a fair and
reasonable reading, the statement to the effect that senior counsel had been
engaged and that he had reviewed matters in detail and that steps were being
taken based on his recommendations is not sufficient to amount to a waiver of
the legal advice. The substance or content of the advice is not disclosed with
specificity or clarity. Questions of waiver are matters of fact and degree and,
in this instance, I am not persuaded that the conduct, assertions or admissible
evidence are sufficient to warrant the necessary implication that legal
professional privilege has been waived.’
161 The principles discussed in Bennett were applied in Seven Network Ltd v News Ltd
(No 12) [2006] FCA 348. The issue was whether a statement in a discovered document that - 59 -
‘[o]ur legal advice is that the risk of damages being awarded against Optus is low’ had the
consequence of waiving privilege in the legal advice that it referred to. Sackville J held that
it did; the statement voluntarily disclosed the gist or conclusion of the legal advice: at [12].
162 In Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299, the Commissioner
of Taxation filed particulars with the Court stating that the Commissioner would be relying
on specified grounds ‘which have been confirmed by Senior Tax Counsel… and supported by
AGS… and opinions obtained from counsel’. The taxpayer contended that the Commissioner
had thereby waived privilege in the legal advice of the Australian Government Solicitor and
the opinions of counsel. Sundberg J held that these references voluntarily disclosed the
conclusion or substance of the advice and consequently privilege had been waived.
Sundberg J’s decision went on appeal to the Full Court, but the Full Court’s decision turned
on the alternative ground of issue waiver: Rio Tinto at [72]. The Full Court considered that,
in the particulars, the Commissioner had made an assertion that put the contents of the
documents containing legal advice in issue, or necessarily laid them open to scrutiny, with the
consequence that there was an inconsistency between the making of the assertion and the
maintenance of the privilege.
163 AWB submitted that the reasoning in Bennett was unsound, particularly the holding
that the disclosure of the conclusion stated in legal advice will amount to a waiver of the
whole of the advice. AWB did not refer to any authorities that supported this submission and
I reject it. In my view, it is well established that a voluntary disclosure of the gist, substance
or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant
advice.
ASSOCIATED MATERIAL
164 Turning to the scope of any imputed waiver, it is well established that a voluntary
disclosure of privileged documents can result in a waiver of privilege over those documents
and associated material. The test applied to determine the scope of any waiver of associated
material is whether the material that the party has chosen to release from privilege represents
the whole of the material relevant to the same issue or subject matter: Maurice at 482 and 484
per Gibbs CJ, 488 per Mason and Brennan JJ, and 498–499 per Dawson J. - 60 -
165 In Maurice, Gibbs CJ said at 482:
‘… Similarly, where a party disclosed a document which contained part only
of a memorandum which dealt with a single subject-matter, and then read the
document to the judge in the course of opening the case, it was held that
privilege was waived as to the whole memorandum: Great Atlantic Insurance
Co v Home Insurance Co. In that case Templeman LJ said:
“ ... the rule that privilege relating to a document which deals with one
subject matter cannot be waived as to part and asserted as to the
remainder is based on the possibility that any use of part of a document
may be unfair or misleading, that the party who possesses the document is
clearly not the person who can decide whether a partial disclosure is
misleading or not, nor can the judge decide without hearing argument,
nor can he hear argument unless the document is disclosed as a whole to
the other side. Once disclosure has taken place by introducing part of the
document into evidence or using it in court it cannot be erased.”
The same test must be applied in deciding whether the use in legal
proceedings of one document impliedly waives privilege in associated
material. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes
Steamship Corporation [No 2] Mustill J dealt with this question and suggested
the following test:
“ ... where a party is deploying in court material which would otherwise
be privileged, the opposite party and the court must have an opportunity
of satisfying themselves that what the party has chosen to release from
privilege represents the whole of the material relevant to the issue in
question. To allow an individual item to be plucked out of context would
be to risk injustice through its real weight or meaning being
misunderstood.”’
166 Dawson J discussed the authorities at 498-499:
‘In Geo. Doland Ltd v Blackburn Robson Coates & Co waiver of privilege
with respect to a conversation between solicitor and client, which took place
before litigation was contemplated, was held to extend to any other
communications in relation to the subject-matters of the conversation,
although the implied waiver was held not to cover similar documents which
came into existence for the purpose of prosecuting the litigation. This
decision was not followed in General Accident Corporation Ltd v Tanter
where a distinction was drawn between the waiver of privilege before a trial
and the further waiver of privilege by calling evidence in a trial. In the latter
situation the waiver was held to extend to the transaction constituted by the
privileged communication but not to the subject-matter of that communication
arising upon other privileged occasions. General Accident Corporation Ltd v
Tanter has been criticized for the distinction which it draws between waiver
by the tender of evidence of a privileged communication and waiver by the - 61 -
disclosure of the communication in some other way and for the restriction
which it places upon the extent of associative waiver: see Phipson on
Evidence, par 15-20. In Nea Karteria Maritime Co Ltd v Atlantic & Great
Lakes Steamship Corporation [No 2], a broader view was taken by Mustill J
that “ ... where a party chooses to deploy evidence which would otherwise be
privileged the court and the opposition must, in relation to the issue in
question, be given the opportunity to satisfy themselves that they have the
whole of the material and not merely a fragment”. This view was approved
by the Court of Appeal in Great Atlantic Insurance Co v Home Insurance Co.
In the United States it has been widely held that voluntary disclosure of the
content of a privileged attorney communication constitutes waiver of the
privilege with respect to all other such communications upon the same
subject-matter: Weil v Investment/Indicators, Research and Management and
the cases there cited; Diotima Shipping Corp v Chase, Leavitt & Co; United
States v Aronoff; In re Sealed Case.’
167 AWB relied upon the way in which the principle was formulated by the Court of
Appeal in British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 at 564
[121]:
‘A reference in one letter of advice to an earlier letter of advice does not
expose the latter to scrutiny by the other party to litigation merely because
legal professional privilege is waived in relation to the former: implied
waiver is not so generous a doctrine. As we apprehend it, where legal
professional privilege is waived in relation to one piece (or part) of advice,
the privilege is impliedly waived in relation to another if - and only if - that
other is necessary to a proper understanding of the first. As established by
the High Court (at least since Mann v. Carnell) the test in such cases is
whether it would be “inconsistent” for a party to rely upon, and so to waive
legal professional privilege in respect of, the one without also being taken to
have waived privilege in respect of the other.’
It is no doubt correct that a mere reference to the existence of legal advice in a disclosed
document will not be regarded as a waiver of its contents, albeit a different conclusion would
follow if the gist, substance or conclusion of the legal advice is voluntarily disclosed. But,
with great respect to their Honours, the proposition concerning waiver of associated material
is expressed too narrowly and in a way that is not consistent with the test propounded by the
High Court in Maurice. The principle propounded by the Court of Appeal may work
adequately enough in some circumstances, particularly where privilege is sought to be
maintained over one part of a single piece of legal advice, but in other circumstances it will
not give effect to the principles explained in Maurice.
168 A common application of associated material waiver relates to the case where an - 62 -
expert report has been prepared in reliance upon other documents. In Australian Securities &
Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 at 441-442 [21], Lindgren J
summarised the applicable principles:
‘1. Ordinarily the confidential briefing or instructing by a prospective
litigant’s lawyers of an expert to provide a report of his or her opinion
to be used in the anticipated litigation attracts client legal privilege: cf
Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices
Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd
(in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141
(Interchase) at 151 per Pincus JA, at 160 per Thomas J.
2. Copies of documents, whether the originals are privileged or not, where
the copies were made for the purpose of forming part of confidential
communications between the client’s lawyers and the expert witness,
ordinarily attract the privilege: Commissioner of Australian Federal
Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend)…;
Interchase, per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4)
(2002) 50 ATR 70 at [17].
3. Documents generated unilaterally by the expert witness, such as
working notes, field notes, and the witness’s own drafts of his or her
report, do not attract privilege because they are not in the nature of, and
would not expose, communications: cf Interchase at 161-2 per
Thomas J.
4. Ordinarily disclosure of the expert’s report for the purpose of reliance
on it in the litigation will result in an implied waiver of the privilege in
respect of the brief or instructions or documents referred to in (1) and
(2) above, at least if the appropriate inference to be drawn is that they
were used in a way that could be said to influence the content of the
report, because, in these circumstances, it would be unfair for the client
to rely on the report without disclosure of the brief, instructions or
documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475
at 481… per Gibbs CJ, CLR 487—488… per Mason and Brennan JJ,
CLR 492-493… per Deane J, CLR 497—498… per Dawson J; Goldberg
v Ng (1995) 185 CLR 83 at 98… per Deane, Dawson and Gaudron JJ,
CLR 109… per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty
Ltd [1995] FCA 870…; Australian Competition and Consumer
Commission v Lux Pty Ltd [2003] FCA 89… at [46].
5. Similarly, privilege cannot be maintained in respect of documents used
by an expert to form an opinion or write a report, regardless of how the
expert came by the documents; Interchase at 148—150 per Pincus JA,
at 161 per Thomas J.
6. It may be difficult to establish at an early stage whether documents
which were before an expert witness influenced the content of his or her - 63 -
report, in the absence of any reference to them in the report: cf Dingwall
v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees
Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400;…
ACCC v Lux at [46].’
169 In Thomas v New South Wales [2006] NSWSC 380 (‘Thomas’), McClellan CJ at
Common Law applied these principles to the documents which underpinned or supported the
advice of counsel. His Honour stated at [17]:
‘Although in the present case the primary document for which privilege was
expressly waived was the advice of counsel, I can discern no difference in
principle between such an advice and the advice or report of an expert
retained for the purpose of the litigation. As I have indicated, I am satisfied
that counsel relied upon instructions which they were given and, it would
appear, relied upon medical reports in a way which influenced the content of
the advice which they gave. Accordingly, insofar as there are documents
which were relied upon in the preparation of the advice falling within
categories 1, 2, 3 and 5 of the notice to produce, the service of the affidavit
impliedly waived privilege in those documents.’
Later at [20] his Honour said:
‘… In the present case the plaintiff disclosed the advice in these proceedings
for the purpose of obtaining whatever assistance he could from that advice in
pursuit of his claim. To my mind, that disclosure waived his privilege both in
the advice itself and the documents which were used by counsel and which
influenced the content of the advice. Waiver having occurred, the fact that the
advice was not ultimately tendered is, to my mind, not relevant. Having sought
an advantage, the plaintiff was bound by the course he had taken and
accordingly is amenable to producing the relevant documents in response to
an appropriate notice to produce.’
170 In Newcrest Mining (WA) Limited v Commonwealth (1993) 40 FCR 507, French J
applied the principle of associated material waiver in a case where one joint venturer
disclosed significant elements of legal advice it had obtained in relation to mining leases held
by the joint venture partners. His Honour held that the disclosure brought about an implied
waiver of other legal advices obtained by the other joint venturers in relation to the mining
leases. His Honour said at 509 that it was significant that the disclosures were made for the
benefit of the joint venture as a whole and, although there was no direct evidence on the
point, he considered that it was difficult to imagine that the disclosures would have occurred
against the wishes of the other joint venturers or indeed without their consent. - 64 -
171 In England, the principle has been applied to documents which underpin or support
expert evidence: see Dunlop Slazenger International Ltd v Joe Bloggs Sports Limited [2003]
EDWCA Civ 901; Mayne Pharma Pty Ltd v Debiopharm SA [2006] EWHC 164 (Pat); and
L’Oreal SA v Bellure NV [2006] EWHC 1503 (Ch).
172 Several English cases illustrate the practical operation of the principle. In Nea
Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2) [1981]
Com LR 138 (‘Nea Karteria’), a lawyer gave evidence that he had conducted an interview on
the basis of a list of questions prepared by the plaintiffs’ lawyers. While privilege was
waived with respect to the witnesses’ answers, the plaintiffs sought to maintain privilege with
respect to the list of questions: at 139-140.
173 Mustill J (as his Lordship then was) held at 140 that privilege over the list of
questions had been waived by implication:
‘It seems to me that the written questions were, so to speak, part of the
meeting. They were in a sense an agenda for the meeting. They formed the
basis for one-half of the exchange between the lawyer and [the witness].
Evidence to that effect having been given by the lawyer, it seems to me that
privilege must have been waived for those questions. And I think the interests
of justice, which I believe to underlie the authorities on this part of the case,
demand that the opposition and the court should have an opportunity to
satisfy itself as to the accuracy of the evidence given to the lawyer as to the
way in which he conducted the interview.’
174 Mustill J drew a distinction at 140 between the instructions to the lawyer who carried
out the questioning and the questions themselves; the instructions did not play a part in the
meeting, did not form part of the body of events upon which the Court had to reach
conclusions of fact, and were merely part of the prior history of those events.
175 In R v Secretary of State for Transport; Ex parte Factortame (1997) 9 Admin LR 591
at 599, Auld LJ made the following observations concerning the application of the test stated
in Nea Karteria:
‘Much depends on whether the party making partial disclosure seeks to
represent by so doing that the disclosed documents go to part or the whole of
an “issue in question”, the expression used by Mustill, J in the passage from
his judgment in Nea Karteria that I have cited. The issue may be confined to
what was said or done in a single transaction or it may be more complex than - 65 -
that and extend over a series of connected events or transactions. In each
case the question for the court is whether the matters in issue and the
document or documents in respect of which partial disclosure has been made
are respectively severable so that the partially disclosed material clearly does
not bear on matters in issue in respect of which material is withheld. The
more confined the issue, for example as to the content of a single document or
conversation, the more difficult it is likely to be to withhold, by severance,
part of the document or other documents relevant to the document or
conversation.’
176 In Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] 2 All ER 599
(‘Fulham’) at 604 [11], Mann J suggested that it was helpful to approach the application of
the test stated in Nea Karteria in three steps: first, identify the transaction in respect of which
the disclosure has been made; secondly, ascertain from the nature of the disclosure or other
evidence whether the transaction is wider than an advice given on a single occasion, if so, the
whole of the wider transaction must be disclosed; and thirdly, the disclosure of the whole
transaction may make it plain that further disclosure is necessary to avoid unfairness or
misunderstanding of what has been disclosed. Mann J added at 607 [18] that once the
transaction has been identified the cases show that the whole of the material relevant to that
transaction must be disclosed. It is not open to a waiving party to say that the transaction is
simply what the party has chosen to disclose; the court will determine objectively what the
real transaction is so that the scope of the waiver can be determined. His Lordship also said
that the application of these principles will be very fact sensitive and will vary from case to
case: at 607 [19].
WAIVER HAS BEEN ESTABLISHED
177 At [70] to [126] above, I set out my findings as to the precise terms in which AWB
disclosed the results of its legal reviews and legal advice it had obtained to the Australian
Government, the IIC and the Commission.
178 Overall, I am satisfied that by means of these disclosures, AWB deployed the gist or
substance of legal advice it had obtained. Moreover, I am satisfied that AWB made a
conscious and voluntary decision to deploy this legal advice in its dealings with the
Australian Government, the IIC and the Commission because it considered that it was in its
commercial interests to do so. These actions are inconsistent with the maintenance of
confidentiality in the legal advice. Having regard to the nature, purpose, terms and extent of - 66 -
its disclosures, I am also satisfied that AWB acted inconsistently with the maintenance of
confidentiality over the associated material which underpinned the legal advice.
179 While these overall conclusions are relevant and important, I have taken the view that
it is necessary and appropriate for me to make specific findings as to the nature and
consequences of each such disclosure. I turn to that task.
180 In his various statements to the Australian Government, Hargreaves did not merely
refer to the existence of legal advice. Nor did he simply disclose the legal advice which had
been obtained by AWB from Mr Tracey QC. He described in some detail the findings and
conclusions that had been arrived at by AWB’s own legal review. In my opinion, Hargreaves
thereby disclosed to the Australian Government the gist or substance of legal advice that
AWB had obtained (as at the relevant dates at which he made his disclosures) that there was
no evidence of:
corruption by AWB
side payments or after sales payments by AWB to the former Iraqi regime
any knowledge on the part of AWB that Alia was connected with the Iraqi regime or
that payments were being channelled by Alia to that regime
any conduct by AWB that resulted in breaches of the United Nations’ sanctions
any other wrongdoing or improper conduct by AWB in connection with the supply of
wheat to Iraq under the OFF Programme.
181 When Hargreaves gave his briefings to officers of the Australian Government, he
expressed himself in terms that were apt to refer, and which a reasonable listener would have
understood as referring, to the combined effect of all of the legal advice that AWB had
received as at the date of the relevant briefing. Hargreaves would not have been understood
as referring only to a particular piece of historical advice, regardless of whether it was
overtaken, or qualified, or supported by later advice. His assertions purported to represent
the current state of affairs.
182 Hargreaves’ memorandum of 25 June 2005 makes it quite clear that his statements to
the Australian Government were based upon all of the legal advice AWB had obtained, and
not simply the advice it had obtained from Mr Tracey QC. It cannot be disputed that - 67 -
Hargreaves disclosed the substance of the legal advice which Blakes provided to AWB’s
board on 25 May 2004. AWB has already formed that view and acted on it by producing
Blakes’ power point presentation to the Commission. But in my view the consequence of
Hargreaves’ disclosures cannot be confined to Blakes’ advice of 25 May 2004 and Mr Tracey
QC’s advices. Through the remainder of 2004 and until Hargreaves had his last meeting with
Ms Carayanides in the period between 16 June 2005 and September 2005, Hargreaves met
with Australian Government representatives several times and continued to make assertions
that AWB’s independent legal review had not identified any wrongdoing by AWB. The
evidence shows that Blakes and Minters continued the legal review in 2004 and 2005 and
provided ongoing legal advice to AWB. It is not open to a waiving party to say that the
disclosures relate simply to one advice and not others, or that the relevant transaction is
simply what the party has chosen to disclose; the Court will determine objectively what has
been disclosed: see Fulham at 607 [18].
183 Hargreaves’ memorandum of 25 June 2005 makes it plain that he deliberately
deployed AWB’s legal advice in his dealings with the Australian Government. He did so as
part of AWB’s strategy to secure the continued support of the Federal Government, both
generally and in relation to AWB’s dealings with the IIC and the United States Government.
Hargreaves also deployed the advice in pursuit of the objectives that he set out in his
memorandum; they included protecting and defending the reputation of AWB both within
Australia and overseas, and minimising any attack by US wheat interests on AWB’s position
as the exclusive manager of wheat exports from Australia. Given these strategic objectives, it
was important for AWB to disclose, indeed to stress, that it had conducted an extensive
independent legal review which had found no evidence of any wrongdoing by AWB in
connection with its exports of wheat to Iraq. By disclosing its legal advice to secure these
objectives, AWB assumed the risk that it would be held to have waived legal professional
privilege in connection with legal advices it obtained in the course of the legal review.
184 Having regard to the legal principles governing waiver, I consider that any legal
advice that AWB obtained from Blakes or Minters prior to Hargreaves’ last meeting with Ms
Carayanides on any of the subject matters, or relating to any of the issues, described at [180]
above, has been waived by reason of the disclosures made by Hargreaves. Those subject
matters and issues are wide enough to encompass the Tigris transaction and the iron filings - 68 -
claim. If AWB obtained legal advice during this period on those subject matters, or relating
to those issues, from persons other than Blakes or Minters such as ABL, Mr Tracey QC or
others, that advice has also been waived by Hargreaves’ disclosures.
185 I am satisfied that the disclosures to the IIC involved a disclosure by AWB of the gist
or substance of legal advice that it had obtained by 28 February 2005. The disclosure
occurred at two points. First, when Lindberg was interviewed on 28 February 2005, the
interview took place in the presence of AWB’s legal representative. AWB had the ability to
object to any statements by Lindberg that intruded into areas covered by legal professional
privilege. No objection was raised to Lindberg’s statement that the legal review conducted
by Cooper had found nothing that would substantiate claims of fraud or corruption by AWB
or payments by AWB to individuals in the Government of Iraq. Secondly, AWB was directly
involved in providing the record of interview, as revised by Lindberg and AWB’s lawyers, to
the IIC. In my opinion, the record of interview describes the gist or substance of legal advice
which AWB had obtained as a result of its legal review. As with Hargreaves, Lindberg’s
assertions purported to describe the current state of affairs, ie, as at 28 February 2005. There
is no reason to read his assertions as if they were confined to legal advice obtained from
Mr Tracey QC. It extends, in my view, to any legal advice obtained by AWB from Blakes,
Minters and Mr Tracey QC, and any advice from others, prior to 28 February 2005 that deals
with the same subject matters or relates to the same issues as the advice that Lindberg
described.
186 I am satisfied that the disclosures to the IIC were made deliberately and consciously
by AWB with a view to obtaining a finding from the IIC that AWB had not engaged, or at
least had not knowingly engaged, in conduct that involved making payments to the Iraqi
regime in breach of the United Nations’ sanctions. Lindberg and AWB went out of their way
to stress that the company had undertaken a legal review which had found nothing to
substantiate claims of fraud, corruption or improper payments to the Iraqi regime. The
disclosures were made with the knowledge and intention that they would be referred to by the
IIC in its final published report. Accordingly, I find that AWB consciously and voluntarily
deployed its legal advice with the object and intention of furthering the company’s
commercial and other interests. - 69 -
187 AWB contended that the disclosures which Lindberg made at his meeting with the
Minister for Foreign Affairs on 4 October 2005 were confined to the advice given by
Mr Tracey QC. This is a possible interpretation of the Department’s minute, but in my view
Lindberg’s statements are not to be read, and would not have been understood, so narrowly.
Later in the meeting, Lindberg said that AWB had acted in accordance with the sanctions
regime and that this had been supported by legal advice. This statement was expressed
broadly and was not confined to ‘independent legal advice’. In my view, Lindberg disclosed,
and a reasonable listener would have understood that Lindberg was disclosing, the gist or
substance of all of the legal advice that AWB had obtained up to 4 October 2005 in relation
to the question whether AWB had acted in accordance with the sanctions regime. The
disclosure extends to Mr Tracey QC’s memorandum of advice dated 22 September 2005 and
Professor Wippman’s advice dated 27 September 2005.
188 At the meeting with the Minister for Foreign Affairs, Lindberg, Stewart and other
representatives of AWB were providing AWB’s answer to the IIC’s draft findings, as
communicated to AWB in the IIC’s letter of 26 September 2005. The minute shows that
AWB’s representatives were very concerned to explain AWB’s claims of innocence and to
secure the Government’s ongoing support. Lindberg told the meeting that the IIC had
ignored AWB’s explanations and that the so-called evidence relied on by the IIC did not
support its factual findings. In support of these contentions, Lindberg asserted that AWB had
legal advice confirming that AWB had not acted in contravention of the sanctions regime. I
infer that AWB made a conscious and voluntary decision to deploy this legal advice at the
meeting with the Minister so as to secure the ongoing support of the Australian Government.
In doing so, it assumed the risk of any consequential waiver of legal professional privilege.
189 In my opinion, Blakes’ presentation to AWB’s board on 25 May 2004 constituted
legal advice for the purposes of the doctrine of legal professional privilege. AWB withdrew
its claim of privilege and produced the complete presentation to the Commissioner in April
this year. The presentation not only discloses the substance of the legal advice from Blakes,
but also some of its detail and foundations. In my opinion, one consequence of this
disclosure is that AWB has waived privilege over any other legal advice that it obtained prior
to 25 May 2004 in relation to the same subject matters or the same issues as Blakes addressed
in its presentation. - 70 -
190 AWB contends that Lindberg’s evidence to the Commission on 17 January 2006 did
not disclose the gist or conclusion of any legal advice. I disagree. In my opinion, it disclosed
the gist or substance of legal advice that AWB had previously obtained as to whether AWB
had engaged in conduct in breach of the United Nations’ sanctions and whether AWB had
paid inland transportation fees to Alia as a conduit for the payment of money to the Iraqi
regime. In the course of his evidence, Lindberg went out of his way to assert that the legal
review that Cooper had instituted, assisted by external legal advisers, had reported
periodically and did not find any evidence to substantiate the allegations that AWB had made
payments in breach of the sanctions. In one instance at least, Lindberg’s assertions to this
effect were not directly responsive to the question asked of him by counsel assisting the
Commission. Lindberg gave these answers in the presence of counsel for AWB without any
objection being raised on grounds of legal professional privilege. I am satisfied that, by
means of this evidence, AWB voluntarily deployed the legal advice that it had obtained prior
to 17 January 2006. I infer that it did so because it considered it was in its interests for it to
be publicly known that AWB had conducted an extensive legal review which had found no
evidence of any wrongdoing.
191 In his evidence, Lindberg specifically referred to a series of periodical reports from
those undertaking the legal review: ‘there were a number of reports, and the findings of those
reports are recorded in the minutes and the basis of those findings has been communicated in
letters that have been sent to the government and elsewhere’. I find that in his evidence to the
Commission Lindberg was referring to the combined effect of all of the legal advice that
AWB received during the course of the internal review as periodical reports were made to the
boards of AWB and AWBI. It follows, in my view, that Lindberg’s evidence has the
consequence that AWB has waived privilege over any legal advice that it obtained in the
course of the review that goes to the same subject matters, or relates to the same issues, as the
legal advice that Lindberg described in the course of his evidence.
192 In relation to Mr Tracey QC’s advices, AWB produced his written advices of
8 June 2004, 31 March 2005 and 12 August 2005 to the Commission early in April 2006. In
my view, the consequence of this production is that AWB must be taken to have waived legal
professional privilege in any other legal advices that it obtained prior to Mr Tracey QC’s last
advice of 12 August 2005 in relation to the same subjects or issues. As already mentioned, I - 71 -
also consider that, quite separately, AWB has waived privilege over the advice it obtained
from Mr Tracey QC on 22 September 2005 in relation to Resolution 661.
193 As a result of the Project Water investigations, the directors of AWB obtained legal
advice from Cooper at the board meeting on 14 December 2004 that the Tigris transaction
complied with all necessary laws and involved no breaches of law. A handwritten note of
that advice has been produced to the Commission. AWB was entitled to claim that this note
was protected from production to the Commission by legal professional privilege. It did not
claim privilege. I infer that it did not do so because it wanted it to be known publicly that
AWB had advice as of 14 December 2004 to the effect that the Tigris transaction complied
with all necessary laws and involved no breaches by AWB. Having disclosed the gist or
substance of its legal advice in this manner, it would be inconsistent to allow AWB to
maintain confidentiality and privilege in any other legal advices that AWB obtained prior to
14 December 2004 dealing with the same subject matter or the same issues.
194 The advice that Cooper gave to AWB’s board on 14 December 2004 related
specifically to the Tigris transaction. However, I consider that the other disclosures that I
have already discussed were expressed in such broad terms that they encompassed any
advices concerning the Tigris transaction and/or the iron filings claim. As a result, I consider
that there has been a waiver of other advices about the Tigris transaction, such as Mr Tracey
QC’s memorandum of 26 October 2004 (document 353A).
195 The cumulative effect of AWB’s disclosures is that, down to 17 January 2006 when
Lindberg gave evidence to the Commission, AWB was openly claiming that its legal advice
showed that there was no evidence that it had engaged in any wrongdoing in connection with
its supply of wheat to Iraq under the OFF Programme, including wrongdoing of the kind
described at [180] above. I find that AWB made these claims to advance its commercial
interests. AWB’s conduct is inconsistent with the maintenance of confidentiality in any
advices dealing with the same subjects or issues.
196 In addition, Lindberg, Cooper and Scales gave evidence to the Commission that AWB
obtained legal advice that the proceeds of the inflated prices in contracts A1670 and A1680
should be disbursed to Tigris to the extent of approximately US$7 million. That evidence
was given in the presence of AWB’s legal representatives without any objection being raised - 72 -
on grounds of legal professional privilege. Again, I infer that AWB was content for it to be
publicly known that it had obtained that legal advice. Having disclosed the gist or substance
of that advice, AWB is bound to disclose any other legal advices it obtained in relation to the
same subject or same issue.
197 AWB’s revised list of privileged documents contains several advices relating to the
Tigris payment. They include documents 337 and 385. Documents 1088, 1089, 1092, 1093
and 1094 record the substance of those advices in minutes of meetings held by the AWB and
AWBI boards in December 2004 and February 2005 and the chairman’s running sheets for
the February 2005 meetings. The evidence which Lindberg, Cooper and Scales gave in
public before the Commission is inconsistent with AWB’s attempt to maintain privilege in
these documents.
198 One question which remains to be dealt with is whether the scope of the waiver that
must, in my view, be imputed to AWB is to be confined to any other legal advice that AWB
obtained prior to the date of the relevant disclosures that addressed the same subject matters
or issues as the advice that AWB voluntarily disclosed. In my opinion, the waiver is not so
confined. It extends to the documents and information which were taken into account in
formulating, or which otherwise underpinned or influenced, the legal advice that AWB has
chosen to disclose.
199 The Commonwealth argued that AWB’s disclosures are broad enough to encompass
any legal advice which AWB obtained, and any documents which AWB’s lawyers reviewed
or created, in the course of the Project Rose and Project Water investigations. The difficulty
with this way of approaching the boundaries of the waiver of associated material is that the
terms ‘Project Rose’ and ‘Project Water’ have an indefinite and imprecise ambit.
200 According to the authorities discussed above, the limits of any waiver of associated
material depend upon the nature of the advice that has been disclosed, what was represented
by means of the disclosure, and the character of the transaction that gave rise to the disclosed
legal advice. Regard must also be had to the way in which AWB’s legal advice was
described in the various disclosures. Essentially, by means of the disclosures, AWB was
asserting that a detailed legal review had been undertaken, and that it had concluded that
there was no evidence of any wrongdoing or other improper conduct by AWB in connection - 73 -
with its sale of wheat to Iraq under the OFF Programme. In my opinion, the nature and
character of this disclosure is inconsistent with the maintenance of confidentiality in those
documents which were taken into account by AWB’s legal advisers in arriving at the advice
they gave. To adapt the language used by McClellan CJ at Common Law in Thomas at [17]
and [20], AWB’s disclosures of its legal advice effect a waiver of privilege in the documents
which were reviewed for the purposes of that advice or which influenced its content.
Furthermore, AWB emphasised the breadth of its internal review in its various disclosures.
In my view, AWB thereby waived privilege in documents which define the scope of the
review or which reveal what investigations were in fact undertaken in the course of the
review.
201 Much the same answer follows if one asks what was the legal exercise or transaction
that gave rise to the disclosed legal advice: see Factortame at 598-599; and Fulham at 604
[11] and 607 [18]. Having regard to the form of the legal advice disclosed by AWB, the
relevant legal exercise or transaction encompassed a review of original documents and
witness interviews, as well as summaries, chronologies or other analytical documents
prepared by the lawyers, with a view to determining whether there was any improper or
wrongful conduct by AWB. Material of this kind underpinned or influenced the legal advice
which AWB has chosen to disclose, and it is not severable from that advice.
202 There is a certain symmetry in defining the boundaries of the waiver of associated
material in this way. Documents brought into existence in the course of a lawyer’s factual
investigation are, prima facie, capable of attracting legal professional privilege where the
investigation is being undertaken for the dominant purpose of providing legal advice. If the
client voluntarily discloses the gist or substance of the legal advice that is founded upon such
investigations, the rationale for according privilege to the investigative material will have
disappeared.
203 While I would go further, the approach that I have described is not unlike the
approach that AWB has already taken in connection with the production to the Commission
of Mr Tracey QC’s memoranda of advice and instructions. In the case of Mr Tracey QC’s
oral advice of 25 May 2004 and his confirmatory memorandum of 12 August 2005, AWB
determined, correctly in my view, that the underlying documents supplied to Mr Tracey QC - 74 -
must also be produced. AWB considered that the form of Mr Tracey QC’s advice (ie there
was no evidence of wrongdoing) meant that it was impossible to separate his legal advice
from the copy documents that were supplied to him as part of his instructions.
204 The evidence before me does not reveal whether AWB adopted the same approach to
Mr Tracey QC’s advice of 31 March 2005. When he was asked to provide this advice, copy
documents were supplied to Mr Tracey QC as part of his instructions but there is no
evidence, one way or the other, as to whether those copy documents have been produced to
the Commission. The substance of Mr Tracey QC’s advice was that nothing in the
documents supplied to him as of 31 March 2005 had caused him to vary his earlier advice of
25 May 2004. This advice cannot be separated from the documents that were supplied to him
and, accordingly, AWB’s express waiver of privilege in his advice extends to all of the
documents and instructions supplied to him.
205 The applicable principle can also be illustrated by reference to the advice that Blakes
gave in its presentation of 25 May 2004. The advice that there was no evidence of any
wrongdoing by AWB that involved a breach of the United Nations’ sanctions was explicitly
founded upon a review of a large number of documents and interviews of AWB personnel.
Having regard to the form of its advice, it is impossible to separate Blakes’ advice from the
underlying documentation and interviews. However, the witness interviews and other
materials that Blakes relied upon to formulate its advice have not been produced to the
Commission and are still the subject of claims for legal professional privilege. In my
opinion, those claims of privilege are not maintainable; privilege has been waived by
(inter alia) the production of Blakes’ advice. The same approach must be adopted to any
advices that Blakes provided after 25 May 2004 on the question whether any evidence had
emerged of any wrongdoing or improper conduct on the part of AWB.
206 Another question which remains to be dealt with is the extent of any waiver that arises
from AWB’s production to the Commission of the instructions to Sir Anthony Mason. In its
particulars setting forth its objections to AWB’s privilege claims, the Commonwealth
contended that these disclosures had brought about a waiver of legal professional privilege in
relation to Project Rose. It tendered the instructions which ABL provided to
Sir Anthony Mason on 16 September and 20 October 2005 and the expert opinion which - 75 -
Sir Anthony Mason provided dated 24 October 2005. However, the Commonwealth did not
direct any submissions to this aspect of its waiver case, either orally or in its written
submissions. Nor did AWB address any oral or written submissions to the consequences
which flowed from its production to the Commission of the instructions to, and the advice
obtained from, Sir Anthony Mason.
207 It must be borne in mind that AWB is seeking a declaration that all of the documents
set forth in its revised list of privileged documents are the subject of legal professional
privilege. These documents include documents by which AWB obtained legal advice both in
Australia and in the United States concerning the applicability of Resolution 661. The
instructions to Sir Anthony Mason summarised the gist or substance of the very same legal
advice. In these circumstances, I have concluded that the Court must take account of the
evidence that has been placed before it. By disclosing the instructions given to Sir Anthony
Mason, AWB has in my opinion disclosed the substance of legal advice it had obtained, as at
20 October 2005, both in Australia and in the United States, as to the applicability of
Resolution 661. This disclosure encompasses Mr Tracey QC’s memorandum of
22 September 2005 and Professor Wippman’s advice of 27 September 2005.
208 Thus far, I have identified the principles which define the boundaries of the waiver
that is to be imputed to AWB, including the boundaries of any waiver of associated material.
The remaining task in disposing of the waiver arguments is to determine precisely what
documents fall within these boundaries. I have carried out that task by inspecting the
documents over which claims of privilege have been made, reviewing the evidence
concerning each document, and applying the principles identified above.
209 As a result, I have determined that AWB has waived any legal professional privilege
that would otherwise attach to the documents as listed under the heading ‘Conclusions’
below.
THE IRON FILINGS CLAIM
210 Communications between a lawyer and client which facilitate a crime or fraud are not
protected by legal professional privilege. This principle is often referred to as the ‘fraud
exception’ to legal professional privilege, but this does not capture its full reach: Attorney- - 76 -
General (NT) v Kearney (1985) 158 CLR 500 (‘Kearney’) at 515; Propend at 546; Clements,
Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police (2001) 188 ALR 515
(‘Clements’) at 521-522 [30].
211 The principle encompasses a wide species of fraud, criminal activity or actions taken
for illegal or improper purposes: see North J’s review of the authorities in Clements at 522-
526 [35]-[44]. The scope of conduct caught by the principle has been articulated in a variety
of ways, often without particular precision: Propend at 545. Classic formulations have
spoken of communications in furtherance of a ‘crime or fraud’: R v Cox and Railton (1884)
14 QBD 153 (‘R v Cox’) at 165; a ‘criminal or unlawful proceeding’: Bullivant v Attorney-
General (Vic) [1901] AC 196 (‘Bullivant’) at 201; ‘any unlawful or wicked act’: Annesley v
Anglesea (1743) 17 St Tr 1139 at 1229; and ‘all forms of fraud and dishonesty such as
fraudulent breach of trust, fraudulent conspiracy, trickery, and sham contrivances’: Crescent
Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 at 565. In Kearney, the High
Court applied the principle to deny legal professional privilege to legal advice obtained by the
Northern Territory Government which was prima facie a ‘deliberate abuse of statutory
power’ to defeat a land claim under the Aboriginal Land Rights (Northern Territory) Act
1976 (Cth). In his reasons for judgment, Gibbs CJ (with whom Mason and Brennan JJ
agreed) stated at 515 that ‘legal professional privilege will be denied to a communication
which is made for the purpose of frustrating the processes of the law itself, even though no
crime or fraud is contemplated.’ Some authorities have expressed the principle as applicable
to prevent a ‘fraud on justice’ in a broad sense. The concept of a ‘fraud on justice’ was
adopted by Lander J in Gartner v Carter [2004] FCA 258 (‘Gartner v Carter’) to deny
protection to a communication between a lawyer and client for the purpose of the client
putting assets beyond the reach of the legitimate claims of secured creditors: at [130] and
[139]-[140].
212 The principle extends to ‘trickery’ and ‘shams’. A ‘sham’ refers to steps which take
the form of a legally effective transaction but which the parties intend should not have the
apparent, or any, legal consequences: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd
(2004) 218 CLR 471; see also Beazley v Steinhardt (1999) 106 A Crim R 21; affirmed on
appeal in [1999] FCA 1255 (‘Beazley’). The recent case of Australian Securities &
Investments Commission v Mercorella (No 3) [2006] FCA 772 provides an example of the - 77 -
denial of legal professional privilege to documents in furtherance of a sham transaction. In
that case, creditors of a managed investment scheme claimed privilege over documents
relating to securities obtained from the defendant and certain companies in the scheme. The
transactions were allegedly entered into so as to advance those creditors’ interests over the
interests of other creditors to the scheme. Mansfield J found that the communications were
prima facie in furtherance of a sham and, as such, were not privileged. After referring to
Lander J’s decision in Gartner v Carter and Barclays Bank plc v Eustice [1995] 4 All ER 511
(‘Barclays Bank’), his Honour stated at [95]:
‘It is a short step from those decisions to the present facts, as prima facie
found. The [creditors] engaged in the transactions reflected in the Deed, and
the granting of the securities within the structures it created, to secure or
advance their interests over others who had advanced money to [the first
defendant] or to the Scheme. There is a prima facie case that the
“restructure” of the advances so that they appear as advances to the
partnership of Ajay and Opey is a sham.’
213 Mansfield J drew a distinction at [96]-[100] between communications to obtain advice
in relation to what, if anything, could lawfully be done to improve the prospects of being
repaid or of obtaining the interest to which the client was entitled (which were privileged),
and communications which have the effect of concealing the true nature of a transaction and
which enable a client to present a picture which is not true (which were not privileged).
214 Where a client is engaged in fraudulent conduct, communications with his or her
lawyer in furtherance of the fraud are not privileged, regardless of whether the lawyer is a
party to the fraud or not: Clements at 562 [213]. The principle applies to communications
passing between a client and lawyer where the lawyer is innocent of the fraud or improper
purpose: R v Bell; Ex parte Lees (1980) 146 CLR 141 at 145. Further, the fraud need not be
that of the client or the lawyer; it may be that of a third party: Capar v Commissioner of
Police (1994) 34 NSWLR 715; R v Central Criminal Court; Ex parte Francis & Francis
[1989] AC 346, cited with approval in Clements at 562-565 [217]-[218].
215 It is important to bear in mind that the fraud exception is based on public policy
grounds. The principle is sufficiently flexible to capture a range of situations where the
protection of confidential communications between lawyer and client would be contrary to
the public interest: see Kearney at 514-515; R v Cox at 614. This aspect of the principle is - 78 -
reflected in the statement that ‘[t]he privilege takes flight if the relationship between lawyer
and client is abused’: Clark v United States (1933) 289 US 1 at 15; see also Kearney at 514
and 524.
216 In Barclays Bank, communications between the client and his lawyer in relation to the
setting up of transactions at an undervalue so as to prejudice the bank were held to be
‘sufficiently iniquitous for public policy’ to require those communications to be discoverable.
Schiemann LJ (with whom Aldous and Butler-Sloss LJJ agreed) stated at 524:
‘If that view be correct, then it matters not whether either the client or the
solicitor shared that view. They may well have thought that the transactions
would not fall to be set aside … either because they thought that the
transactions were not at an undervalue or because they thought that the court
would not find that the purpose of the transactions was to prejudice the bank.
But if this is what they thought then there is a strong prima facie case that
they were wrong. Public policy does not require the communications of those
who misapprehend the law to be privileged in circumstances where no
privilege attaches to those who correctly understand the situation.’
217 For the principle to apply, there must be more than a mere assertion or allegation of
fraud or impropriety: Bullivant at 201, 203 and 204-205. In Propend at 514, Brennan CJ
expressed the test as being one of ‘reasonable grounds for believing’ that the relevant
communication was for an improper purpose. The requirement has also been described as
one of a ‘prima facie case’: Butler v Board of Trade [1971] 1 Ch 680 (‘Butler’) at 689;
cf Baker v Evans (1987) 77 ALR 565 at 574. In Kearney at 516, Gibbs CJ approved the test
formulated in O’Rourke v Darbishire [1920] AC 581 at 604, namely that ‘there must be
something to give colour to the charge’; ‘the statement must be made in clear and definite
terms, and there must further be some prima facie evidence that it has some foundation in
fact’. The High Court in Propend applied this test: at 514 per Brennan CJ, at 521 per
Dawson J, 534 per Toohey J, 546 per Gaudron J, 556 per McHugh J, and 592 per Kirby J.
218 It is not necessary to prove an improper purpose on the balance of probabilities. The
‘prima facie’ test arguably reflects the fact that issues of legal professional privilege are
usually dealt with in the interlocutory stages of a proceeding, but the authorities have not
departed from that formulation where a declaration is sought in relation to privilege issues:
Butler; Propend; Beazley. It must also be established, on the same prima facie basis, that the
communication which is the subject of the claim for privilege was made in furtherance of, or - 79 -
as a step preparatory to, the commission of the fraud or wrongdoing. In Butler, Goff J found
at 687 that a letter written by the plaintiff’s lawyer which volunteered a warning that the
plaintiff may incur serious consequences if he did not take care was not shown to be ‘in
preparation for or in furtherance of or as part of any criminal designs on the part of the
plaintiff’: see also Zemanek v Commonwealth Bank of Australia (unreported, Federal Court,
Hill J, 2 October 1997).
219 In Propend, the High Court considered whether a charge of improper purpose must be
based on evidence that is admissible in the proceeding. The only evidence of alleged
illegality before the trial judge in Propend was the sworn information which supported the
issue of a search warrant for the relevant documents. The Court held that, while the sworn
information was admissible to establish the basis upon which the warrant was issued, it was
not admissible to show that the copy documents were not privileged: see at 514 per
Brennan CJ, 557 per McHugh J, 576 per Gummow J, 547 per Gaudron J, and 593 per
Kirby J.
220 The iron filings claim refers to a claim by GBI for a rebate of US$2,016,133.00 on
account of the fact that earlier shipments of wheat by AWB to GBI had been contaminated by
iron filings. Lindberg agreed to pay this sum to GBI in settlement of the iron filings claim in
about October 2002 during the course of a visit to Bagdad. An email dated 7 November 2002
from Chris Whitwell of AWB (‘Whitwell’) to Lindberg and others reporting on the trip to
Iraq in October 2002 stated that the responsible Iraqi Minister had asked for repayment of the
iron filings rebate through the ‘inland transport mechanism’. The same email referred to the
fact that the Iraqi Minister was seeking cabinet approval for repayment of the Tigris debt.
221 At the outset of this case, the Commonwealth contended that any legal advice that
AWB obtained in connection with the Tigris transaction was waived by virtue of AWB’s
production to the Commission of a partly masked memorandum of 7 February 2003 dealing
with the subject of the iron filings payment and Tigris petroleum fee. On the first day of the
hearing, AWB announced that it was no longer seeking a declaration of privilege in respect of
documents connected with the Tigris transaction which the Commonwealth sought to
challenge on the basis of the fraud exception. Subsequently, AWB made it clear that this
concession did not extend to six documents relating to the iron filings rebate payment. - 80 -
222 During the course of the hearing in this Court, AWB produced an unmasked copy of
the memorandum of 7 February 2003 and provided it to the Commonwealth. The
Commonwealth tendered the memorandum as an exhibit in this proceeding, without any
objection from AWB. The memorandum contains a fairly full description of the way in
which AWB planned to pay the iron filings claim to GBI.
223 The memorandum, which was sent by Whitwell to Messrs Geary and Long, with
copies to Scales, Johnson, Hogan, Johnstone, Cooper, Lyons, Hockey and Thomas, states:
‘PRIVATE AND CONFIDENTIAL
This memo is in respect to refunding the Grain Board of Iraq the quality rebate of
approx USD 2,016,133 through the inland transport payments for the new contract
as requested by the Minister of Trade, Iraq. In addition, for the record IS & M has
negotiated (through an uplift in price] the recovery of a USD 8.375 million
outstanding debt to Tigris byIGB throughthis contract. AWBwill repay this debt back
to Tigris lessan agreed recovery fee of USD 500 K on a pro rata basis as tonnage is
shipped.
Overview
Delegation led by Andrew Lindberg (August 2002) to Baghdad agreed to settle the
contamination of the‘Iron Filings’vessels bypayingthemUSD6pmt for each vessel
total=USD2,016,133
After being approached by Tigris Petroleum AWB and IGB have agreed to allow the
newcontractto be the conduit for a repayment of USD 8,375,000 owed to Tigris
by IGB for a cargo of wheat shipped in 1996. IGB have agreed to raising the
contract price by the debt amount and when payments are made under the Letter of
CreditAWBwillpayTigrisitsdebtlessAWBsrecoveryfee.
Wehavesuggestedthefollowingduringourlasttwovisits.
Offsetting the debt against the Outstanding debt to 'Tigris petroleum'
(approx USD 8.35 million)
Reducing the any new contract price [sic] by the amount of the rebate on a
pmt basis
Repaying the debt through the provision of aid in some form - Wheat, Health
supplies etc.
However, in discussion with the Minister of Trade he has continually insisted on
repayment directly as an addition to the inland transport and said that this was his
understanding of the agreement with Andrew Lindberg - Michael Long was
present and confirms that this was discussed. Now that the new contracthasbeen - 81 -
concludedISMneedasignofftoorganisethispaymentwhenshipmentsstart.
Issues
Possible implications for AWB on a corporate governance basis ie/ direct
payment to a company with links to the Iraqi regime may be construed to be in
contraventionoftheUN Sanctions.
The relevant UN Security Council Resolution is 661 (1990). This resolution
provides at clause 4:
“...All States shall not make available to the Government of Iraq or to any
commercial, industrialorpublicutilityundertakinginIraqanyfundsoranyother
financial or economic resources and shall prevent their nationals and any
persons within their territories from removing from their territories or otherwise
making available tothat Government or to any suchundertakinganysuchfunds
or resources and from remitting any other funds to persons or bodies within
Iraq.... except payments exclusively for strictly medical or humanitarian
purposes and, in humanitarian circumstances, foodstuffs.”
In summary, this means that the Government of the Commonwealth of
Australia would be obliged to prevent AWB Limited from making any
remittance of funds to the IGB.
AWB Legal opinioninthis regardis set out below.
Thisdoesnotmean,however,thatapaymentmightnotbeabletobemadewhichwill
comply with the terms of the UN Resolutions. As a minimum, if AWB
management determines to make the payment, then it should be made in the
following circumstances:
1. The payment is made in installments over time and coincides with
payments for future shipments of wheat (ie not a lump sum payment);
2. The payments preferably be made to a company other than the IGB and in a
jurisdictionother than Iraq; and
3. The payments be recorded as being made as a part of a settlement reached
between AWB and IGB, the terms of which contemplated that IGB would agree not
to takeanyaction againstAWBfortheallegedcontaminationofthe8vesselsin2002
with iron filings AND would agree to enter into contracts for the purchase of
Australian bulk wheat in the future in exchange for a renegotiation of the price
on the 8 vessels.
If we ensure that the above requirements are met, then Legal consider it will
be at least arguable that we are not ‘making funds or financial resources available
to the Iraqi Government’. Instead, we are repaying part of the contract price
for the 8 vessels following a re-negotiation of the sale price due to a
downgrading of the grain (which potentially contained iron filings). - 82 -
In additiontotheabovetheUN SecurityCouncil resolutions alsorequire (resolution
986 (1995) clause 8) that the cost of food exports to Iraq must be met by draw
down from the UN “escrow account”. Furthermore draw down from the escrow
account is only allowable under strict conditions. Those conditions include, at
clause 8(a)(iii) that the goods to which payment is referable shall have arrived
in Iraq. In this case, the goods have already arrived in Iraq and HAVE been paid
for in full. However, the Resolutions are SILENT on the procedure for any
repayment of part of the price in circumstances where there has been a quality
complaint(and a subsequent renegotiation of price).
Thismaythereforegiveus morescopetomaketherepaymenttoIGB.
Even if we make payment as outlined above, there is still a risk that the Australian
Government and/or the United Nations will take a contrary view on the
interpretation of the above mentioned resolutions and declare that AWB has
breached the terms of those resolutions by making the payment. This is a
commercial and political issue, which AWB's management will need to
consider.
According to an informal discussion with DFAT any repayment of a quality
rebate should be either re-payed through UN ESCROW account or as a
contract price reduction however they have not had a full legal argument put in
front of them or been told officially. In Public affairs opinion as long as the
repayment is legal and could not be seen to be breaking UN Sanctions then we
should proceed (with the proviso that we have an independent legal opinion to
thateffect - see above legal opinion).
Public Affairs also expressed concern that this would not be well received by
the UN OIP office and that there was a reasonable chance of them finding
out. IS & M on the other hand do not want them involved and feel
confident that this issue could be handled without the need for the OIP to
be consulted. It has been articulated to us and we have circumstantial
evidence that other participants in the OIP program (Russian and Pakistani
companies) have had to sort out quality problems in a similar way and it is
unlikelyeither their national governments or the OIP were consulted
IS & M feel strongly that a failure to repay the IGB as discussed will lead to
serious consequences for AWBs relationship with the IGB. IS & M also
believe that failure to refund this agreed debt in this way would have
serious implications for the execution of the new contracts. AWBI are
aware of all the issues laid out above and in light of the commercial
imperative of this situation agree with the recommendation as laid out below.
They do however insist that the Managing Director is appraised of the
situation.
Actions
Whilst IS & M have received a number of different opinions from different - 83 -
areas of AWB and an informal opinionfrom DFAT we still feel this issueis a grey
area with no prescriptive answers. Based on the opinions we do have and the
commercial circumstances surrounding this issue IS & M recommend and
seek approval for the following:
IS & M is to repay debt as per method outlined in AWBs legal opinion (and
requested by the Minister of Trade) directly to Alia Transport in Jordan in
instalments. IS & M will also look to obtain written agreement from IGB to
the payment in the format agreed by legal however it is not guaranteed.
Managing Director only to convey our intentions to the Australian Government
at the appropriate time prior to Shipment. The timing of such a disclosure
is important and we would recommend that nothing be done until at least
Letters of Credit are in place for these contracts. Given that this is unlikely to
happen until after a war with Iraq it may allow us a further chance of
renegotiationwithanewregime.
IS & M to finalise as soon as possible a written agreement with Tigris with
regardtothesettlement of their debt.’ [Original emphasis omitted]
224 The evidence before me establishes to the requisite prima facie standard that the price
in contracts A1670 and A1680 was inflated to cover both the amount of the iron filings claim
and the repayment by GBI of the debt which it owed to Tigris. A surcharge of US$8.375 pmt
was added to each contract in respect of the Tigris debt, as shown by an email from Nigel
Edmonds-Wilson to Scales and others at AWB dated 12 December 2002. The same email
shows that in each contract the inland transportation fee was set at US$51.15 pmt. At the
Commission, Mr Geary of AWB gave evidence that the prices in these two contracts were
inflated to cover a component for the Tigris debt and a component for the US$2 million iron
filings rebate. He also said that the United Nations was not advised at any stage that the
prices for wheat in these two contracts had been inflated in this way so as to cover the Tigris
debt and the iron filings claim. To adopt the words of Viscount Finlay in O’Rourke, the
evidence gives ample ‘colour to the charge’ that the prices in these two contracts were falsely
misrepresented.
225 The evidence shows that the prices in the two wheat contracts were inflated as a
means of extracting money from the United Nations’ escrow account. Having regard to the
terms of the memorandum of 7 February 2003, there are reasonable grounds for believing
that, having extracted approximately US$2 million from the escrow account to meet the iron
filings claim, AWB planned to pay that money in instalments to GBI via the mechanism of - 84 -
inland transportation fees. The material before me, including Whitwell’s email of
7 November 2002 and his memorandum of 7 February 2003, indicates clearly that AWB
knew that paying inland transportation fees to Alia was a means of making payments to the
Iraqi Government. This plan was concealed from the United Nations.
226 The planned payments of the iron filings claim were never carried into effect because
the invasion of Iraq intervened. Scales gave evidence to the Commission that the iron filings
money has never been paid and remains in AWBI’s accounts. However, the fact that the
payments were never made to the GBI will not prevent the application of the fraud exception
so long as there is sufficient evidence that the communications were in furtherance of, or
preparatory to, the commission of the fraud or impropriety in the broad sense described
above: see Butler; and Clements at 562 [213].
227 In my view, the evidence establishes a more than adequate prima facie case that AWB
knowingly and deliberately disguised the true nature of the prices in contracts A1670 and
A1680. If it be relevant, I also consider that the evidence establishes the foregoing matters on
the balance of probabilities and to a level of satisfaction commensurate with the seriousness
of the allegation: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J. No
question arises here of evidence which would not be admissible in a final hearing:
cf Propend.
228 AWB argued that there was no evidence that the transaction furthered any particular
fraud, iniquity or illegality. It submitted that it is common ground that the United Nations’
resolutions were not in terms incorporated into Australian law. AWB submitted that,
consequently, the fraud exception is not available to take the documents out of the operation
of the doctrine of legal professional privilege. This narrow approach is at odds with the
authorities that stress the wide range of fraudulent or iniquitous activities that fall within the
principle.
229 I have inspected the six documents that were said to relate to the iron filings claim.
My inspection of AWB’s documents revealed a further four documents that fall within this
category and are still the subject of a privilege claim. I am satisfied that these 10 documents
are not privileged. The documents were, prima facie, brought into existence in furtherance of
an improper and dishonest purpose, viz inflating the prices of contracts A1670 and A1680 so - 85 -
as to extract payments out of the United Nations’ escrow account that would then be utilised,
in part, to satisfy a compensation claim by GBI. Prima facie, the evidence establishes that the
transaction was deliberately and dishonestly structured by AWB so as to misrepresent the
true nature and purpose of the trucking fees and to work a trickery on the United Nations. It
would be contrary to public policy for the privilege to enure in communications of this kind.
230 The 10 documents in question are listed below in my conclusions.
231 There is an alternative basis for rejecting AWB’s claim for privilege over the 10 iron
filings documents. AWB’s disclosure of the memorandum of 7 February 2003 and its tender
by the Commonwealth as an exhibit in these proceedings, without any objection or claim to
confidentiality by AWB, effects a waiver over the subject matter of the legal advice set out in
the memorandum. My inspection of the 10 documents relating to the iron filings claim
confirms my view that those documents relate to the subjects and issues that are canvassed in
the memorandum of 7 February 2003. If, contrary to my view, any privilege subsisted in any
of the documents, it has been waived by AWB.
232 When the Commonwealth tendered the unmasked version of the memorandum of
7 February 2003, I asked Mr Judd why AWB’s production of that document did not waive
any privilege that subsisted in documents relating to the iron filings claim. Mr Judd’s
response was that the Commonwealth did not put its case on that basis. I do not think that is
entirely correct. In the particulars of its case, the Commonwealth contended that AWB’s
disclosure of the masked version of the memorandum of 7 February 2003 worked a waiver of
any privilege in documents relating to Project Water and the Tigris transaction. The
Commonwealth has never varied from the position that the iron filings claim was an integral
part of the Tigris transaction. However, the Commonwealth did not in its closing address
make any submission that privilege over the six documents had been waived by the
production of the unmasked memorandum. To that extent, Mr Judd’s response was correct.
233 Despite these matters, I have concluded that the Court cannot ignore the effect of the
evidence before it, especially as AWB is seeking a declaration that the 10 documents are
privileged. - 86 -
CONCLUSIONS
234 It is not feasible in these reasons for judgment, when so many documents are at issue,
to set out separate reasons for the decision I have reached on each particular document. I
have reached the conclusions set forth hereunder after inspecting all of the documents in
AWB’s revised list of privileged documents and by applying the legal principles and factual
findings identified above.
235 AWB has not made out its claim for privilege in respect of the following documents:
229, 245-247, 279, 280, 362B, 469A, 495, 542, 565, 586, 675, 784, 867, 872, 890AN, 1090,
1091, 1095, 1096, 1098, 1099, 1118 and 1262. These documents fall into the following
categories:
(a) documents for which there is no evidence of purpose to satisfy the dominant purpose
test (documents 229, 469A, 542 and 565);
(b) documents where the evidence does not satisfy the dominant purpose test, having
regard to the nature and content of the document and the vague and formulaic
evidence contained in the relevant segments of the affidavit evidence (documents 279,
280, 495, 675, 784, 867, 872, 890AN, 1095, 1096, 1098, 1099, 1118 and 1262);
(c) a document that was provided to a third party and therefore was not a confidential
communication for the dominant purpose of obtaining or giving legal advice
(document 362B);
(d) documents which are partly not proven and partly waived (documents 245-247, 586,
1090, 1091 which are discussed further below).
If, contrary to my view, privilege does attach to any of these documents, there has been a
waiver of privilege in respect of all of them, other than documents 362B, 784, 872 and 1118.
The waived documents are included in the list at [237] below.
236 In addition, there are 10 documents relating to the iron filings claims. They are as
follows: 30, 31, 32, 32A, 33, 41, 594, 595, 595A and 596. Privilege does not attach to these
documents as they were brought into existence in furtherance of a fraud or other impropriety.
Alternatively, any privilege has been waived by AWB. These documents are included in the
list at [237] below. - 87 -
237 AWB has waived any legal professional privilege that subsisted in the following
documents: 12, 301-33, 41, 56, 77-79, 81-85, 100-106, 110-117, 120-124, 126, 127, 129-132,
136, 137, 139, 140, 161, 213, 229, 235, 240, 241, 245-247, 250, 252, 253, 257-259, 263, 265-
268, 271, 279, 280, 283, 284, 290, 292, 294-301, 308-310, 313, 326, 327, 330-333, 335A-
342, 344, 348, 353A, 355-357, 359, 361, 362A, 365, 375, 377-380, 385, 386, 394, 422, 423,
424, 425, 432, 443, 445-449, 455, 461, 463, 465, 469A, 486, 487, 495, 507, 508, 513, 523,
524, 533, 534, 541-544, 547, 548, 553-555, 557, 563, 565, 568-579, 582-590, 592, 594-596,
599, 601-603, 675, 681, 681A, 689A, 689B, 699-704D, 704J-704P, 704T, 704X, 704AA,
704FF, 704KK, 711-715, 721, 722, 725, 729-733, 736-739, 749, 753, 755-757, 762, 771,
788, 794, 798, 815, 817, 820, 823, 824, 837, 840, 847, 867, 890AA, 890AD, 890AE, 890AH,
890AI, 890AJ, 890AK, 890AM, 890AN, 890AP, 890AQ, 1005, 1006, 1009, 1011-1013,
1025, 1026, 1028-1030, 1032, 1033, 1051, 1056, 1059, 1070, 1088-1096, 1098, 1099, 1119-
1121, 1123, 1124, 1144-1152, 1161-1163, 1183-1187, 1221, 1222, 1262 and 1297.
238 In broad terms, the documents over which privilege has been waived comprise
documents falling within the following categories: documents which define the scope of
AWB’s internal review or which identify what investigations were carried out; summaries,
chronologies and other documents which record or analyse the results of those investigations;
witness statements and other notes or records of interviews of AWB personnel; records of
meetings and periodical reports concerning the findings of the review; and documents
seeking advice, or comprising or recording advice provided to AWB, as to whether AWB or
any of its employees engaged in wrongdoing in connection with wheat sales to Iraq under the
OFF Programme, including any wrongdoing in connection with the Tigris transaction.
239 As I have explained, waiver does not turn on whether the documents attracted the
description ‘Project Rose’ or ‘Project Water’. On inspection, I determined that numerous
documents marked ‘Re: Project Rose’ or the equivalent fall outside the scope of any waiver
as they related to distinct matters about which AWB sought or obtained legal advice, such as
the powers and jurisdiction of the PSI and IIC investigators, other US legal issues, the
memorandum of understanding between the IIC and AWB, representation of AWB
employees at IIC hearings, the powers of the Wheat Export Authority, and issues of directors’
and officers’ insurance and corporate governance. - 88 -
240 There are a number of documents where, on inspection, I have determined that the
document is only capable of attracting privilege as to part (the balance of the claim for
privilege not having been proved), but that such privilege has been waived. These documents
require some further explanation:
(a) Documents 245 and 246 are drafts of an information paper dated 13 August 2004.
Document 247 substantially replicates the draft information paper in a power point
presentation format. AWB claims privilege in two parts of each of these documents,
as indicated on the face of the documents. In substance, AWB contended that these
parts attracted privilege because they recorded legal advice. On inspection I
concluded that the claim is not established in respect of the first part of the
documents. I have determined that the second part claimed attracts privilege but
AWB has waived privilege in respect of that second part.
(b) Document 586 is a table of various legal advices in the possession of Blakes. AWB
contended that the table recorded legal advice. On inspection I concluded that this
claim is not sustainable, save for the entries listed at 23, 24 and 25 of the table which
disclose the substance of legal advice given by Mr Tracey QC. I have determined that
AWB has waived privilege in respect of entries 23, 24 and 25 of the table.
(c) Documents 1090 and 1091 are, respectively, the minutes of AWB and AWBI board
meetings dated 22 February 2005. AWB claims privilege in two parts of each of
these documents, as indicated on the face of the documents. It contended that these
parts recorded legal advice. As to the first part claimed, this is not borne out by my
inspection. I have determined that the second part claimed attracts privilege but AWB
has waived privilege in respect of that second part.
241 There are also a number of documents which I have determined to be privileged only
as to part of the claim made by AWB. After inspecting the documents and applying the
principles I have discussed, I have determined that certain parts of the documents are
privileged, while privilege in another part or parts of the documents has not been proved or it
has been waived. It is necessary to deal with each of these documents:
(a) Document 138 contains three pages of handwritten file notes. Privilege has not been
established in respect of the first page of the document. If (contrary to my view)
privilege is attracted, it has been waived. Privilege is established in respect of the - 89 -
second page of the document. Privilege has not been established in respect of the
third page of the document; or if privilege is attracted, contrary to my view, it has
been waived.
(b) Document 251 is a document consisting of a number of entries in a spreadsheet.
AWB claims privilege in certain parts of the document, as indicated on the face of the
document. AWB has waived privilege in respect of the parts claimed on pages 367,
368, 380, 390, and the first of the two parts claimed on each of pages 388 and 395.
The page numbering refers to the system that AWB has adopted for its document
control purposes. Otherwise, the document attracts privilege to the extent claimed.
(c) Document 376 is a handwritten file note headed ‘Iraq Report for JIS’. I have
determined that the document attracts privilege, but that AWB has waived privilege in
respect of the part of the document that relates to the Tigris transaction, namely the
second entry commencing with the words ‘completion of Iraq mkt. access
arrangements’ and concluding with the words ‘confirm there is compliance’.
(d) Documents 503, 520, 522, 526, 527 and 965 contain various drafts of a briefing paper
initially prepared by ABL. I have determined that each of the documents attracts
privilege, but that AWB has waived privilege in respect of the part of each document
under the headings ‘Legal Review’ and ‘Key Messages’.
(e) Document 516 is another draft of the briefing paper referred to in the preceding
subparagraph. I have determined that the document attracts privilege, but that AWB
has waived privilege in respect of the part of the document under the heading ‘Legal
Review’.
(f) Document 691 is a record of a meeting attended by various internal AWB employees
and external lawyers. AWB said that the document attracted privilege in part. Dr
Fuller gave evidence that it recorded legal advice of Leonie Thompson. I have
determined that the passage on page 028 of the document opposite the entry ‘Leonie
T’ is privileged. As to the remainder of the document, it does not record any legal
advice and is not privileged.
(g) Document 696 is a record of a meeting attended by various internal AWB employees
and external lawyers. AWB claimed that the document was part privileged, and relied
on Dr Fuller’s evidence that it recorded legal advice given by Leon Zwier. I have
determined that the passage on page 037 of the document opposite the heading ‘Leon
Zwier’ (to the balance of the page) is privileged. Privilege has not been established in - 90 -
respect of the remainder of the document. If any privilege attached to the remainder,
it has been waived.
(h) Document 704S is a record of various matters discussed between AWB’s external and
internal lawyers. I have determined that AWB has waived privilege over the six lines
commencing with the entry which includes the words ‘iron filings case’. The balance
of the document is privileged.
(i) Document 704II is a handwritten record of various conversations on 20 and
28 September 2004. On the face of the document, it appears that a claim for privilege
is made only over the part of the document which is dated 28 September 2004.
Privilege has been established over the entry dated 28 September 2004. However the
evidence of Ms Peavey in relation to document 704II addresses the entry of 20
September 2004. If privilege is claimed over the part of the document which is dated
20 September 2004, it has not been established.
(j) Document 1097 is the minutes of a meeting of the AWB and AWBI joint board
committee. There are two parts of the document over which a claim for privilege is
made on the ground that they record legal advice. On inspection I determined that the
part of the document consisting of the first bullet point under the heading ‘Project
Rose’ is privileged. However, privilege has not been established over the third bullet
point. If privilege is attracted over that part of the document, it has been waived.
242 Document 1297 is a redacted copy of an email from Cooper to Lindberg and Scales,
copied to Quennell, dated 16 November 2004. It appears that the redactions mask those parts
of the document over which a claim for privilege is made. Prima facie, the document appears
to be within the scope of the waiver I have identified and applied in these reasons for
judgment. However, I propose to invite further submissions from the parties as to whether
document 1297 is in contest and, if so, I will direct that an unredacted version of the
document be filed with the Court for its inspection.
243 As for the remaining documents, AWB has in some instances claimed privilege over
the entire document and in other instances it has only claimed privilege over a designated part
or parts of the document. AWB has established that legal professional privilege attaches to
the following documents to the extent claimed by it: 20, 21, 55, 89-98, 107, 108, 119, 133,
135, 143-146, 150-152, 154-160, 162-190, 194, 196, 197, 199-201, 204-211A, 215, 217-222,
224-228, 230-234, 237-239, 254-256, 260-262, 264, 269, 270, 273-278, 281, 282, 285, 286, - 91 -
288, 293, 302-306, 311, 315-324, 334, 343, 345-347, 349-353, 354, 358, 362, 368, 374, 381,
382, 384, 387, 388-393, 395, 398-408, 410, 412-414, 416-421, 423A, 426-428, 430, 431,
433-442, 444, 450-454, 456, 457, 459, 460, 462, 464, 465A, 467, 468, 470-473, 475-485,
488, 490-494, 496-502, 504-506, 509, 510, 514, 515, 517-519, 521, 525, 529, 530, 536-540,
549-552, 556, 558-562, 564, 566, 567, 581, 591, 593, 600, 605, 671, 672, 673A, 679, 694,
696A, 704E – 704I, 704Q, 704R, 704U-704W, 704Y, 704Z, 704BB-704EE, 704GG, 704HH,
704JJ, 706-710, 724, 727, 740-745, 747, 748, 751, 752, 754, 758-761, 763-766, 768-770,
772, 773, 775, 777, 779-781, 785, 787, 790, 792, 797, 799-802A, 804, 806-814, 816, 818,
819, 821, 822, 826-831, 835, 849-852, 856, 857, 860, 861, 863, 865, 866, 868-870, 873, 876,
877, 879, 881-883, 885, 887-889, 890AB, 890AC, 890AG, 890AIA, 890AL, 890AR-AZ,
890BA-890BG, 937AJ, 937AP, 942, 947, 948, 950-953, 956-964, 966, 970-992, 994, 995,
997, 998, 1000-1004, 1071, 1073-1081, 1082A, 1083, 1086, 1087, 1112-1113A, 1114-1117,
1118A, 1152A, 1155, 1158-1160, 1190, 1195, 1196, 1200, 1206, 1213-1215, 1218, 1225,
1226, 1229, 1231, 1232, 1234, 1237, 1239, 1240, 1243, 1246-1250, 1252, 1255, 1256, 1260,
1261, 1293 and 1299-1301.
COPY DOCUMENTS
244 AWB has filed a list of duplicate privileged documents. The list is Exhibit JM5 to the
affidavit of John Mitchell sworn 28 July 2002. Each document in the list is a duplicate of an
identified document in AWB’s list of privileged documents. The duplicates fill 17 lever arch
folders. AWB has sought a declaration that the documents in this list are, or record,
confidential communications that are protected from production to the Commissioner by
legal professional privilege.
245 At the hearing, neither AWB nor the Commonwealth directed any substantive
submissions to the status of these duplicate documents. In its written submissions, AWB
referred to the principles enunciated in Propend as to the circumstances in which a copy of an
unprivileged document can itself attract legal professional privilege. In those written
submissions, AWB contended that the qualification which Brennan CJ expressed in Propend
at 512 does not represent the law. The Chief Justice’s qualification was that if the original
unprivileged document is not in existence or its location is not disclosed or it is not produced,
and if no unprivileged copy or other admissible evidence is available to prove the contents of
the original document, then privilege cannot be maintained over the copy. However, AWB - 92 -
did not make any submissions as to how, or why, this qualification might be relevant to its
claims.
246 AWB adopted the position that the status of the duplicate documents depends on my
decision as to the status of the corresponding original document. The Commonwealth did not
make any submission to the contrary at the hearing, although its written submissions
contended that AWB had failed to identify the purpose for which particular duplicates were
created, or to establish that they were kept confidential. It would seem a harsh result if AWB
were to lose the benefit of privilege in original documents simply because it has not
explained or is unable to explain the circumstances in which copies were made. In large
organisations and within law firms, it is hardly unexpected that multiple copies of privileged
documents will be brought into existence and that, long after the event, it may be difficult to
adduce evidence as to the circumstances in which the copies were made.
247 The submissions of the parties were so cursory that I did not gain any meaningful
assistance from them. However, I have reached the following conclusions. Where I have
held that specified original documents do not attract legal professional privilege, no case has
been made out that duplicates of those documents are entitled to privilege. Where I have held
that specified original documents attract legal professional privilege, I have concluded that
privilege attaches to the duplicates. The duplicates come from the custody of AWB, and
there is nothing to suggest that the duplicates were dealt with, or communicated, in ways that
would deny the privilege claim. Furthermore, the material before me does not identify any
specific grounds for concluding that the duplicates do not attract privilege.
248 A number of documents in AWB’s revised list of privileged documents are said to be
duplicates of other documents in the list. There is no evidence as to some of those documents
(documents 291, 307 and 580) and others have been removed (documents 26 and 1031).
Consequently, I have not made any findings about those documents; it is unclear whether
they remain in contest. It is necessary to make specific reference to a number of other
duplicate documents in the list:
(a) Document 582 is a copy of document 140. I have determined that AWB has waived
any privilege attaching to the documents.
(b) Document 998 is a copy of document 995 and document 1001 is a copy of part of - 93 -
document 1000. I have determined that the originals are privileged. For the reasons
given at [247] above, privilege attaches to the copy documents.
(c) Document 1006 is said by Chesterman to be a copy of document 1005. My inspection
of the documents has revealed that this is not the case. There is therefore no evidence
capable of supporting the claim for privilege in respect of document 1006. However,
even if there were evidence that document 1006 attracted privilege, I am satisfied that
AWB has waived the privilege.
RELIEF
249 I have determined that specified documents are not the subject of legal professional
privilege and that other documents attract legal professional privilege. The Court has power
to make declarations to this effect. I propose to give AWB and the Commonwealth an
opportunity to make submissions as to the form of any declarations that should be made to
give effect to these reasons for judgment.
250 AWB’s second further amended application also sought declarations relating to the
construction and validity of the Amending Act. In addition, AWB sought a declaration that
the exercise of powers by the Commissioner under s 6AA(2) of the RCA, while these
proceedings are pending before this Court, would constitute a contempt of Court, and
injunctions restraining the Commissioner from making a decision under s 6AA(2) of the
RCA. No live issues arise concerning these claims for relief: see AWB Ltd v Honourable
Terence Rhoderic Hudson Cole (No 2) [2006] FCA 913. Neither AWB nor the
Commonwealth put any submissions to me, whether orally or in writing, concerning these
claims for relief. It is unnecessary to address them further.
251 Accordingly, the only orders I propose to make at this stage are as follows:
(1) Within 3 business days AWB and the Commonwealth file an agreed minute of orders
that give effect to these reasons for judgment. If AWB and the Commonwealth are
unable to agree upon appropriate orders, within 3 business days AWB and the
Commonwealth shall each file and serve a minute of the orders that it contends are
necessary and appropriate to give effect to these reasons for judgment. - 94 -
(2) The proceeding be adjourned to Monday 25 September 2006 at 10.15am for any
argument as to the orders.
I certify that the preceding two
hundred and fifty-one (251)
numbered paragraphs are a true copy
of the Reasons for Judgment herein
of the Honourable Justice Young.
Associate:
Dated: 18 September 2006
Counsel for the Applicant: J Judd QC, P Corbett and Dr S McNicol
Solicitor for the Applicant: Arnold Bloch Leibler
Counsel for the First The First Respondent did not appear
Respondent:
Counsel for the Second I Harrison SC, R Newlinds SC and NJ Beaumont
Respondent:
Solicitor for the Second Australian Government Solicitor
Respondent:
Date of Hearing: 7, 9, 10, 11 August 2006
Date of Judgment: 18 September 2006 Our ref. 13209380
19 December 2013
Mr Scott McDonald
Partner
DLA Piper
Level 38
201 Elizabeth Street
Sydney NSW 2000
Email: [email protected]
Dear Mr McDonald
Execution of ASIO search warrants
1. We refer to your letter of 18 December 2013 in which you provided, as a courtesy, a
copy of documents submitted to the International Court of Justice on 17 December
2013.
2. We are instructed that the President of the International Court of Justice has since
indicated that your client’s request for the indication of provisional measures will be
heard in the period 20-22 January 2014.
3. Our client is considering its position in relation to the Seized Material in light of the
proceedings in the International Court of Justice and will take no steps in relation to
the Seized Material whilst that consideration is taking place.
4. If your client proposes to make any claim under domestic law with respect to any of
the Seized Material it should do so in the manner set out in paragraph 8 of our letter
of 16 December 2013, but by no later than 5:30pm on Friday, 20 December 2013.
You should not expect that our client will extend further opportunity to make any
claim.
5. Please do not hesitate to contact the writer in relation to the matter.
Yours sincerely
Irene Sekler
Senior Executive Lawyer
T 02 6253 7155 F 02 6253 7383
M 0447 130 813
[email protected]
A2711227 Our ref. 13209380
24 December 2013
Mr Scott McDonald
Partner
DLA Piper
Level 38
201 Elizabeth Street
Sydney NSW 2000
Email: [email protected]
Dear Mr McDonald
Execution of ASIO search warrants
No steps to be taken in relation to the material seized from the premises of
Mr Collaery
1. We refer to the request of the President of the International Court of Justice made
on 18 December 2013 that the Commonwealth refrain from any act which might
cause prejudice to the rights claimed by the Democratic Republic of Timor-Leste in
the proceedings it has commenced before the International Court of Justice.
2. The Commonwealth will take no steps in relation to the material which is the subject
of those proceedings, (namely, the material seized from Mr Collaery’s premises on
3 December 2013) until the International Court of Justice has heard the request for
provisional measures on 20-22 January 2014. Specifically, unless necessary to
comply with the requirements of the International Court of Justice, the material
seized from Mr Collaery’s premises will not be accessed, used or inspected by ASIO
prior to 22 January 2013. ASIO will also ensure that it is not communicated to,
inspected or accessed by any other person prior to that time.
3. In addition, as we have previously noted, the material seized from Mr Collaery’s
premises has not been and will not be communicated in any way to any person
conducting the Arbitration under the Timor Sea Treaty on behalf of the
Commonwealth. The Attorney-General has given directions to ASIO and an
undertaking to the Arbitral Tribunal to this effect.
Any domestic law claim in relation to the material seized from Mr Collaery’s premises
4. We refer to your letter dated 21 December 2013. The material seized from
Mr Collaery’s premises was explicitly identified in the property seizure record
provided to his staff for him. He was the appropriate recipient of that record as he,
not the Government of Timor-Leste, was the occupier of the premises. Given his
knowledge of both the property seizure record and his knowledge of contents of the
A2748719 information held by him, he would be in a position to make informed judgments
about the content of anything seized. The Government of Timor-Leste has therefore
been well placed to obtain from its legal representatives information and advice to
identify any claim it may have. You have not suggested any reason why your client
has been unable to inform itself in this way. In the circumstances, our client rejects
the complaint that it has not provided you with particular information or opportunities.
5. The Government of Timor-Leste has had ample opportunity to commence domestic
proceedings to make any claims it wishes to make and has not done so despite 20
days having passed since the execution of the warrant on 3 December 2013. If it
does intend to make any claim under domestic law it should do so well prior to 22
January 2014.
Material seized from the premises of the other person
6. Your client has had ample opportunity to make any claim it wished over material
seized from the premises of the other person on 3 December 2013. Your client was
asked to make any such claim by 5:30pm on 19 December 2013, extended to
5:30pm on 20 December 2013. As no claim has been made, our client will from 28
December 2013 take such steps as it considers appropriate in relation to materials
seized from that person’s premises (as was foreshadowed in our letter of 16
December 2013).
7. Please do not hesitate to contact the writer in relation to the matter.
Yours sincerely
Irene Sekler
Senior Executive Lawyer
T 02 6253 7155 F 02 6253 7383
M 0447 130 813
[email protected]
Execution of ASIO search warrants
24 December 2013 Page 2
A2748719 SUMMARY OF MUNICIPAL LAWS ON LEGAL PROFESSIONAL PRIVILEGE/CONFIDENTIALITY: SCOPE AND EXCEPTIONS
The following table sets out in summary form the legal professional privilege or confidentiality obligations applicable under the municipal laws of the
following States: Australia, the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, the Republic of
India, the Republic of Indonesia, the United Mexican States, the Kingdom of Morocco, New Zealand, the Russian Federation, the Slovak Republic, the Swiss
Confederation, the Democratic Republic of Timor-Leste, the Republic of Uganda, the United Kingdom of Great Britain and Northern Ireland, and the United
States of America.
State Scope of privilege Exceptions
1. Australia Confidential communications between clients and lawyers A communication will not be privileged if made or prepared
made for the dominant purpose of giving and receiving legal in furtherance of a fraud, an offence, an act attracting a
advice, or for use in existing or anticipated litigation are penalty, or a deliberate abuse of a power conferred by an
1 2
protected from disclosure by privilege. Australian law.
2. Kingdom of Belgium Persons cannot disclose secrets entrusted to them by reason The rule of professional secrecy yields when necessity
3
of their position or profession. requires it, or when a value considered superior is in conflict
with it. 4 The waiver of privilege must, however, be
compatible with the fundamental principles of Belgian law,
be justified by an overriding purpose, and be strictly
5
proportionate.
3. Kingdom of Denmark Lawyers cannot be required to disclose matters which have The court can require that lawyers, other than defence
come to their knowledge through the practise of their attorneys in criminal proceedings, give evidence when it is
profession without the consent of their client. 6 considered crucial to the outcome of a case and the nature of
the case and its importance to a party to the case or to
society justify that the evidence be required. In civil cases,
1This privilege is a right subject to abrogation by statute where a contrary intention exists. Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49;
Evidence Act 1995 (Cth), ss118 and 119 (available at: http://www.comlaw.gov.au/Details/C2012C00518).
2Evidence Act 1995 (Cth), s125 (available at: http://www.comlaw.gov.au/Details/C2012C00518); R v Bell; Ex parte Lees (1980) 146 CLR 141 at 156 (Stephen J); Attorney-
3eneral (NT) v Kearney (1985) 158 CLR 500 at 515 (Gibbs CJ).
Criminal Code 1867, Article 458 (available at: http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&…).
4Constitutional Court, 23 January 2008, JLMB 2008, B.7.2.
5Constitutional Court, 23 January 2008, JLMB 2008, B.7.2.
6Administration of Justice Act (Code of Procedure), s170(1) (available at: https://www.retsinformation.dk/Forms/r0710.aspx?id=157953).
Page 1 of 6 State Scope of privilege Exceptions
this exception does not extend to information the lawyer has
been provided with in order to conduct the proceedings on
behalf of their client, or to information in respect of which
the lawyer’s advice has been sought. 7
4. French Republic Correspondence exchanged between the client and lawyer Both the Conseil d’Etat and European Court of Human
and amongst lawyers, notes of interviews and all items on file Rights have upheld regulations abrogating these
8
are covered by professional secrecy. The disclosure of such confidentiality obligations in order to enable lawyers to
secrets is a criminal offence (except where the law authorises report suspicious transactions (pertaining to money
9 10
the disclosure of the secret). laundering). In so doing, the Conseil d’Etat observed that
the rule of professional confidentiality can be derogated
from when necessary in the interests of public safety or for
the prevention of disorder or crime. 11
5. Federal Republic of Lawyers are under an obligation not to disclose information The obligation, and attendant immunity from testimony,
Germany learnt in the exercise of their profession. 12 The lawyer may will not apply where the person entitled to refuse to testify
rely upon this obligation to decline to give evidence in civil participated in the criminal offence, or as an accessory after
or criminal proceedings. 13 The disclosure of secret the fact, in cases of obstruction of justice or handling stolen
information without authorisation constitutes a criminal goods, or where the objects concerned have been obtained
offence.14 by means of a criminal offence or have been used or are
intended for use in perpetrating a criminal offence, or where
they emanate from a criminal offence. 15
7
8Administration of Justice Act (Code of Procedure), s170(2) (available at: https://www.retsinformation.dk/Forms/r0710.aspx?id=157953).
9Loi no 71-1130, Article 66-5 (available at: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006068…).
Penal Code, Article 226-13 (available at: http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT0000060707…).
10Conseil d’Etat 10 April 2008 (available at: http://legifrance.com/affichJuriAdmin.do?oldAction=rechJuriAdmin&idText…
=811689189&fastPos=1); Michaud v France, ECHR, 6 December 2012, Request Number 12323/11
11Conseil d’Etat 10 April 2008.
12
13Criminal Code of 13 November 1998, Article 203 (available at : http://www.gesetze-im-internet.de/englisch_stgb/german_criminal_code.pdf).
Code of Civil Procedure, ss383 and 385 (available at: http://www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html); Code of Criminal Procedure, s53 (available at:
http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html).
14Criminal Code of 13 November 1998, Article 203 (available at: http://www.gesetze-im-internet.de/englisch_stgb/german_criminal_code.pdf).
15Code of Criminal Procedure, s97 (available at: http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html).
Page 2 of 6 State Scope of privilege Exceptions
6. Republic of India Attorneys are not permitted, except with the client’s express The privilege does not protect from disclosure any such
17
consent, to disclose any communication made to them in the communication made in furtherance of any illegal purpose.
course and for the purpose of their employment, by or on
behalf of their client, or to state the contents or condition of
any document with which they have become acquainted in
the course and for the purpose of their employment, or to
disclose any advice given by them to their client in the course
and for the purpose of such employment. 16
7. Republic of Indonesia Lawyers are under an obligation not to disclose information The obligation pertains unless it is regulated otherwise by
learnt in the exercise of their profession, and can rely upon law. 19 Context-specific exceptions appear in a number of
20
this obligation to resist compulsory disclosure of that other statutes.
information. 18
8. United Mexican States Persons who receive confidential information in the course of The lawyer is only prohibited from making disclosures
their employment are obliged to maintain confidentiality where such disclosure is without just cause. 23
21
regarding the subjects entrusted to them by their client. The
disclosure of such information without just cause is a
criminal offence. 22
9. Kingdom of Morocco Lawyers are not permitted to reveal any matter which touches The lawyer is permitted to make such disclosures to provide
upon professional secrecy in any case and must not, in evidence as to abortions, abuse or neglect perpetrated
particular, disclose information from their client’s file or against minors or by one spouse against another or against a
16Evidence Act 1872, s126 (available at: http://daman.nic.in/acts-rules/Police-department/documents/Indian%20Evi…).
17
18Evidence Act 1872, s126 (available at: http://daman.nic.in/acts-rules/Police-department/documents/Indian%20Evi…).
Advocates Law, No 18 of 2003, Article 19 (available at: http://www.bpkp.go.id/uu/file/2/40.bpkp).
19Advocate Law, No 18 of 2003, Article 19 (available at: http://www.bpkp.go.id/uu/file/2/40.bpkp).
20See, for example: Corruption Law, No 31 of 1999, Article 36 (available at: http://riau.kemenag.go.id/file/file/produkhukum/lgkf1360853450.pdf); Anti-Money Laundering
Law, No 8 of 2010 (available at: http://www.riau.kemenag.go.id/file/file/.../lgkf1360853450.pdf)
21
22Federal Penal Code, Articles 210-211 (available at: http://www.edomex.gob.mx/legistelfon/doc/pdf/cod/vig/codvig006.pdf).
Federal Penal Code, Articles 210-211 (available at: http://www.edomex.gob.mx/legistelfon/doc/pdf/cod/vig/codvig006.pdf).
23Federal Penal Code, Articles 210-211 (available at: http://www.edomex.gob.mx/legistelfon/doc/pdf/cod/vig/codvig006.pdf).
Page 3 of 6 State Scope of privilege Exceptions
26
disclose papers, documents or letters relating to a current woman.
investigation. 24 The disclosure of such information is a
25
punishable offence.
10. New Zealand New Zealand law provides for a privilege akin to that Privilege will not apply to information compiled or prepared
recognised under Australian law. 27 for a dishonest purpose or to enable or aid anyone to
commit or plan to commit what the person claiming the
privilege knew, or reasonably should have known, to be an
offence. 28
11. Russian Federation Any information relating to the provision of legal services by Weapons used in the commission of a crime or substances
a client to their lawyer is legally privileged. 29 The lawyer banned or controlled in accordance with Russian law will
31
cannot be questioned or required to produce evidence in not be protected by the privilege.
30
respect of these matters.
12. Slovak Republic Lawyers are obliged not to reveal any information learnt in The duty of confidentiality does not apply to any cases of
33
connection with the practice of law and must treat such lawful disclosure that would prevent a crime.
32
information as strictly confidential.
13. Swiss Confederation Lawyers are under an obligation not to disclose information The obligation (and ability to rely on that obligation to
34
learnt in the exercise of their profession. Lawyers may rely decline to testify or provide evidence) will not apply where
24
Law No 1-93-162, Article 36 (available at: http://adala.justice.gov.ma/AR/Legislation/TextesJuridiques.aspx).
25Penal Code, Dahir No. 1-59-413, Article 446 (available at: http://adala.justice.gov.ma/production/legislation/fr/penal/Code%20Pena… and
http://www.mmsp.gov.ma/ar/documents.aspx?t=3).
26
Penal Code, Dahir No. 1-59-413, 26 November 1962, Article 446(2) (available at: http://adala.justice.gov.ma/production/legislation/fr/penal/Code%20Pena… and
http://www.mmsp.gov.ma/ar/documents.aspx?t=3).
27Evidence Act 2006, ss53-56 (available at: http://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393463.ht…).
28
29Evidence Act 2006, s67 (available at: http://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393463.ht…).
Federal Law on Advocatory Activity and Advocacy in the Russian Federation (available at: http://www.akdi.ru/gd/proekt/088160GD.SHTM), Article 8(1).
30Federal Law on Advocatory Activity and Advocacy in the Russian Federation (available at: http://www.akdi.ru/gd/proekt/088160GD.SHTM), Article 8(2).
31Federal Law on Advocatory Activity and Advocacy in the Russian Federation (available at: http://www.akdi.ru/gd/proekt/088160GD.SHTM), Article 8(3).
32
Act No 586/2003 Coll on Advocates, Collection of Laws (Zbierka zákonov), Vol. 239 (2003) Section 23(1) (available at: http://www.ccbe.org/fileadmin/user_
upload/NTCdocument/en_slovak_rep_parlia1_1188889665.pdf and http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/SK_transposition_s…).
33Act No 586/2003 Coll on Advocates, Collection of Laws (Zbierka zákonov), Vol. 239 (2003), Section 23(1) (available at: http://www.ccbe.org/fileadmin/user_upload/
NTCdocument/en_slovak_rep_parlia1_1188889665.pdf and http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/SK_transposition_s…).
34
Penal Code, Article 321 (available at: http://www.admin.ch/opc/fr/classified-compilation/19370083/index.html).
Page 4 of 6 State Scope of privilege Exceptions
37
upon this obligation to decline to give evidence in civil or there is a statutory duty to disclose. Cantonal law provides
criminal proceedings. 35 Disclosure of such information a number of exceptions, a number of Cantons appearing to
36
without consent is a criminal offence. recognise an exception where higher public or private
interests warrant disclosure. 38
14. Democratic Republic of Lawyers are permitted to refuse to give a deposition on facts Courts are able to require that a deposition be given by
39
Timor-Leste covered by their professional secrecy obligations. The breaking professional secrecy where this proves to be
provisions imposing specific confidentiality requirements for justifiable in the face of the applicable provisions and
lawyers are contained in a number of practice-specific laws, principles of the criminal law, particularly in view of the
including those pertaining to public defenders and to lawyers principle of prevalence of the predominant interest. 41
40
in the civil service.
15. Republic of Uganda Advocates are not permitted to disclose any communication Communications made in furtherance of any illegal purpose
made to them in the course and for the purpose of their are excepted from protection, as is any fact observed by any
employment as an advocate by or on behalf of their client, or advocate in the course of their employment showing that
to state the contents or condition of any document with which any crime or fraud has been committed since the
43
they have become acquainted in the course and for the commencement of their employment.
purpose of their professional employment, or to disclose any
advice given by them to their client in the course and for the
42
purpose of that employment.
35
Federal Law on Civil Procedure, Article 163 (available at: http://www.admin.ch/opc/fr/classified-compilation/20061121/index.html); Federal Law on Criminal Procedure,
Article 171 (available at: http://www.admin.ch/opc/fr/classified-compilation/20052319/index.html).
36Penal Code, Article 321 (available at: http://www.admin.ch/opc/fr/classified-compilation/19370083/index.html).
37
38See, for example, Federal Law on Criminal Procedure, Article 171 (available at: http://www.admin.ch/opc/fr/classified-compilation/20052319/index.html).
See, for example: Caton of Zurich, Anwaltsgesetz of 17 November 2003 (OS Zurich Bd 59 S 144), s34(3) (available at:
http://www.zh.ch/internet/de/rechtliche_grundlagen/gesetze/erlass.html?…; Canton of Geneva, Loi sur la profession d'avocat of 26 April 2002 (RSG E 6
10) , s12 (available at: http://www.geneve.ch/legislation/rsg/f/s/rsg_E6_10.html).
39
40Criminal Procedure Code, Article 126(1) (available at: http://www.jornal.gov.tl/lawsTL/RDTL-Law/index-e.htm).
See, for example, Public Defender’s Office Statute, Articles 46 and 48; Statute of the Civil Service, Article 5 (both available at: http://www.jornal.gov.tl/lawsTL/RDTL-
Law/index-e.htm).
41Criminal Procedure Code, Article 126(2)-(3) (available at: http://www.jornal.gov.tl/lawsTL/RDTL-Law/index-e.htm).
42
43Evidence Act 1909, s125. (available at: http://www.opm.go.ug/resource-center/legislation.html)
Evidence Act 1909, s125. (available at: http://www.opm.go.ug/resource-center/legislation.html)
Page 5 of 6 State Scope of privilege Exceptions
16. United Kingdom of A privilege akin to that recognised under Australian law is Privilege cannot be claimed if the communication is made
44 45
Great Britain and recognised under the common law. or prepared in furtherance of a crime or fraud. ‘Fraud’ in
Northern Ireland this context has been interpreted broadly, such that
communications will not be privileged where they are
sufficiently iniquitous for public policy to require that the
46
confidentiality no longer apply.
17. United States of A privilege akin to that recognised under Australian law is At the State and Federal level, many jurisdictions recognise
America recognised under Federal and State statutory and common an exception to privilege where the communication in
47
law. question was made in furtherance of a future crime or
fraud. 48
44R v Derby Magistrates' Court, ex p B [1996] 1 AC 487; R v Special Commissioner of Income Tax, [2003] 1 AC 563.
45R v Cox and Railton [1884] 14 QBD 153; R v Derby Magistrates' Court, ex p B [1996] 1 AC 487.
46
47Barclays Bank v Eustace [1995] 4 All ER 511, CA.
See, for example: Federal Rules of Evidence, Rules 501 and 502 (available at: http://www.gpo.gov/fdsys/pkg/CPRT-112HPRT70817/html/CPRT-112HPRT70817.h…);
American Bar Association, Model Rules of Professional Conduct, Rule 1.6 (available at:
http://www.americanbar.org/groups/professional_responsibility/publicati….
html); Hickman v Taylor, 329 US 495 (1947).
48
See, for example: Federal Rules of Evidence, Rules 501 and US v Zolin (1989) 491 US 554, 562-563 (at the Federal level); American Bar Association, Model Rules of
Professional Conduct, Rule 1.6 (where the criminal conduct or fraud is reasonably certain to result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer’s services).
Page 6 of 6 MUNICIPAL OFFENCES FOR THE UNAUTHORISED DISCLOSURE OF CLASSIFIED INFORMATION
The following table extracts legislation criminalising the unauthorised disclosure of classified information of the following States: Australia, the Kingdom of
Belgium, the Federative Republic of Brazil, the People’s Republic of China, the Kingdom of Denmark, the French Republic, the Federal Republic of
Germany, the Republic of India, the Italian Republic, Japan, the United Mexican States, the Kingdom of Morocco, New Zealand, the Russian Federation, the
Slovak Republic, the Swiss Confederation, the Democratic Republic of Timor-Leste, the Republic of Uganda, the United Kingdom of Great Britain and
Northern Ireland, and the United States of America.
The following extracts have in some cases been translated from the original language in which the law was promulgated. In all such cases, a citation to the
official version of the law (in the original language) is provided by way of footnote.
State Offences for the Unauthorised Disclosure of Intelligence Information
1. Australia Intelligence Services Act 2001 (Commonwealth) 1
Section 39 - Communication of certain information—ASIS
(1) A person is guilty of an offence if:
(a) the person communicates any information or matter that was prepared by or behalf of ASIS in connection with its functions
or relates to the performance by ASIS of its functions; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member of agent of ASIS; […] and
(c) the communication was not made:
(i) to the Director-General or a staff member by the person in the course of the person’s duties as a staff member; or […]
(iii) by the person in the course of the person’s duties as a staff member or agent, within the limits of authority conferred
on the person by the Director-General; or
(iv) with the approval of the Director-General or of a staff member having the authority of the Director-General to give
such an approval.
Section 41 - Publication of identity of staff
(1) A person is guilty of an offence:
(a) if: (i) the person identifies a person as being, or having been, an agent or staff member of ASIS; and (ii) the identification is
1Available at: http://www.comlaw.gov.au/Details/C2011C00145.
Page 1 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
not of the Director-General or such other persons as the Director-General determines; or
(b) if: (i) the person makes public any information from which the identity of such a person could reasonably be inferred, or any
information that could reasonably lead to the identity of such a person being established; and (ii) the Minister or Director-
General has not consented in writing to the information being made public; and (iii) the information has not been made public by
means of broadcasting or reporting proceedings of the Parliament (other than proceedings of the Committee) as authorised by the
Parliament. Penalty: Imprisonment for 1 year or 60 penalty units, or both.
Note: For staff member see section 3.
(2) A prosecution for an offence against subsection (1) may be instituted only by the Attorney-General or with the Attorney-General’s
consent.
Crimes Act 1914 (Commonwealth), Section 70
A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorised to
publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a
Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.
Criminal Code Act 1995 (Commonwealth), Section 91.1 of Schedule 1
(1) A person commits an offence if:
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth's security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired
(whether directly or indirectly) from the Commonwealth; and
(b) the person does so intending to prejudice the Commonwealth's security or defence; and
(c) the person's act results in, or is likely to result in, the information being communicated or made available to another country
or a foreign organisation, or to a person acting on behalf of such a country or organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
2
3Available at: http://www.comlaw.gov.au/Details/C2013C00369.
Available at: http://www.comlaw.gov.au/Details/C2014C00011.
Page 2 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth's security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired
(whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending to give an advantage to another country's security or defence; and
(c) the person's act results in, or is likely to result in, the information being communicated or made available to another country
or a foreign organisation, or to a person acting on behalf of such a country or organisation.
Penalty: Imprisonment for 25 years.
(3) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form) of:
(i) information concerning the Commonwealth's security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired
(whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on
behalf of such a country or organisation; and
(ii) intending to prejudice the Commonwealth's security or defence.
Penalty: Imprisonment for 25 years.
(4) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form) of:
(i) information concerning the Commonwealth's security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired
(whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on
Page 3 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
behalf of such a country or organisation; and
(iii) intending to give an advantage to another country's security or defence.
Penalty: Imprisonment for 25 years.
(5) For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the person concerned does not need to have a particular country, foreign
organisation or person in mind at the time when the person makes, obtains or copies the record….
2. Kingdom of Belgium Penal Code, 8 June 1867 4
Article 116: Whomsoever has knowingly delivered or communicated in whole or in part, in original form or as a reproduction, to an
enemy power or to any person acting in the interests of an enemy power, objects, plans, written materials, documents or information of
which the secret, in respect of the enemy, concerns the defence of the State’s territory or the safety of the State, will be punished (with
detention for life).
Article 118: Whomsoever has knowingly delivered or communicated in whole or in part, in original form or as a reproduction, to an
enemy power or to any person acting in the interests of an enemy power, objects, plans, written materials, documents or information of
which the secret, in respect of the enemy, concerns the defence of the State’s territory or the safety outside of the State, will be punished
(with detention of ten to fifteen years). If the guilty person held a public function or mandate where they were fulfilling a mission or
accomplishing a task conferred on them by the Government, they will be punished with (detention of fifteen to twenty years).
Article 119: Whomsoever has knowingly delivered or communicated in whole or in part, in original form or as a reproduction, to any
person not qualified to take delivery or have knowledge, of objects, plans, written materials, documents or information covered by article
118, will be punished with imprisonment of six months to five years and a fine of 500 to 5 000 euros. Whomsoever, without
authorisation of the competent authority, has reproduced, published, or disclosed, in whole or in part, by whatever method objects, plans,
written materials, documents or information covered by article 118, will be punished with the same penalties.
3. Federative Republic of Brazil Act that establishes the Brazilian System of Intelligence and Creates the Brazilian Agency of Intelligence – ABIN, Law No
9.883/1999, 7 December 1999 5
Article 9A - Any information or documents about intelligence activities and matters produced in the course of [ABIN carrying out its
activities] or in ABIN’s possession can only be provided by the head of the Office of Institutional Security of the President of the
4
5Available at : http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&…
Available at: http://www.planalto.gov.br/ccivil_03/Leis/L9883.htm.
Page 4 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
Republic to authorities which have legal competence to request them, taking into account the respective level of secrecy conferred by the
legislation in force, excluding those [information or documents] whose secrecy is indispensable to the security of society and of the
State. (Amendments were made to the Article by Provisionary Measure no 2.216-37 of 2001).
6
Penal Code, Decree Law No 2.848, 7 December 1940
Article 153 (Divulging of secrets) – Divulging to anyone, without just cause, the contents of a particular document or confidential
correspondence of which he/she is the recipient or the holder, and the divulgence of which could bring harm to others: Penalty- detention
from one to six months, or a fine….(1)(a) Divulging, without just cause, secret or private information defined that way in law, whether or
not it is stored on the information systems or databases of the Public Administration: Penalty – detention from one to four years, and a
fine…
Article 154 (Violation of professional secrets) Revealing to anyone, without just cause, a secret of which he/she has knowledge by reason
of his/her position, ministry, office or profession, and the revelation of which could bring harm to others: Penalty- detention from three
months to one year, or a fine
Article 325 (Violation of secrecy in respect of a public servant’s position) Revealing to anyone a fact of which a person has knowledge
of by reason of his/her position and that should have remained secret, or facilitating its revelation: Penalty- detention from six months to
two years. or a fine if the fact did not constitute a more serious crime.
(1) The same penalties that apply to this article apply to those who:
(i) permit or facilitate, through the assignment, supply or loan of a password or any other means, the access of
unauthorised people to the information systems or databases of the Public Administration.
(ii) improperly take advantage of their restricted access.
(2) If the action or omission results in harm to the Public Administration or to others:
Penalty- imprisonment from 2 to 6 years, and a fine.
4. People’s Republic of China Law of the People’s Republic of China on Guarding State Secrets 1988 7
Article 31: Persons who, in violation of the provisions of this Law, divulge State secrets intentionally or through negligence, if the
consequences are serious, shall be investigated for criminal responsibility in accordance with the provisions of Article 186 of the
6
7Available at: http://www.planalto.gov.br/ccivil_03/decreto-lei/del2848.htm.
Available at: http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383925.htm.
Page 5 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
Criminal Law. Persons who, in violation of the provisions of this Law, divulge State secrets, if the consequences are not serious enough
for criminal punishment, may be given disciplinary sanction in light of the specific circumstances of each case.
Article 32: Persons who steal, spy on, buy or illegally provide State secrets for institutions, organisations and people outside the country
shall be investigated for criminal responsibility in accordance with law.
8
State Security Law 1993
Article 19: Any citizen or organisation shall keep confidential the State secrets that have come to his knowledge or its possession
regarding State security.
Article 20: No individual or organisation may unlawfully hold any document, material or other articles classified as State secrets.
Article 28: Whoever intentionally or negligently divulges State secrets concerning State security shall be given a detention of not more
than 15 days by the State security organ; in case the offence constitutes a crime, the offender shall be investigated for criminal
responsibility according to law.
Article 29: A State security organ may search the body, articles, residence and other related places of anyone who unlawfully holds
documents, materials or other articles classified as State secrets, or who unlawfully holds or uses equipment and materials specially for
espionage purposes, and may confiscate such documents, materials and other articles, as well as such equipment and materials. Anyone,
who unlawfully holds documents, materials or other articles classified as State secrets, if the case constitutes the crime of divulging State
secrets, shall be investigated for criminal responsibility according to law.
Criminal Law of the People’s Republic of China 1979 9
Article 111: Whoever steals, spies on, buys or illegally provides state secrets or intelligence for an agency or organisation or people
outside China shall be sentenced to fixed-term imprisonment of not less than five years and not more than ten years; if the circumstances
are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment; if the
circumstances are relatively minor, the offender shall be sentenced to fixed-term imprisonment of not more than five years, criminal
8
9Available at: http://www.gov.cn/ziliao/flfg/2005-08/05/content_20927.htm.
Available at: http://www.npc.gov.cn/englishnpc/Law/2007-12/13/content_1384075.htm.
Page 6 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
detention, public surveillance or deprivation of political rights.
10
5. Kingdom of Denmark Penal Code Consolidation Act No 607, 6 September 1986
§ 107: A person who, in the service of a foreign power or organization, or for the use by persons working for them, explores or
communicates matters that must be kept secret in the Danish state or public interest will be punished for espionage, whether or not the
matter communicated is correct, by a term of imprisonment of up to 16 years.
Stk. 2 If it concerns the matters named in § 109, or it takes place during a war or occupation the penalty may be increased up to a term of
imprisonment for life.
§ 108: A person who, excluding the matters falling under § 107, does something by which a foreign intelligence service is made capable
or helped directly or indirectly to operate within the territory of the Danish State may be punished by a term of imprisonment of up to 6
years.
Stk. 2 If it concerns intelligence related to military matters, or it takes place during war or occupation, the penalty may increase up to a
term of imprisonment for 12 years.
§ 109: A person who divulges or passes on communications about the State’s secret operations, deliberations or decisions in cases on
which the state’s security or rights in relation to foreign states depend or which concern significant state socio-economic interests in
relation to foreign countries may be punished by a term of imprisonment of up to 12 years.
Stk. 2 If these acts are done negligently, the penalty may be a fine or imprisonment for up to 3 years.
6. French Republic Penal Code of the French Republic 11
Article 411-6: The fact of delivering or rendering accessible to a foreign power, a foreign company or organisation or a company or
organisation under foreign control, or to their agents, information, devices, objects, documents, electronic data or files where the use,
disclosure or collection is of a nature to damage fundamental interests of the Nation is punished with fifteen years of criminal detention
and with a fine of 225 000 euros.
Article 411-7: The fact of collating or gathering, in view of delivering them to a foreign power, a foreign company or organisation or a
company or organisation under foreign control, or to their agents, information, devices, objects, documents, electronic data or files where
the use, disclosure or collection is of a nature to damage fundamental interests of the Nation is punished with ten years of criminal
10
11Available at: https://www.retsinformation.dk/Forms/R0710.aspx?id=152827.
Available at: http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT0000060707….
Page 7 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
detention and with a fine of 150 000 euros.
Article 411-8: The fact of conducting, for the benefit of a foreign power, a foreign company or organisation or a company or organisation
under foreign control, or their agents, an activity aimed at obtaining or delivering systems, information, devices, objects, documents,
electronic data or files where the use, disclosure or collection is of a nature to damage fundamental interests of the Nation is punished
with ten years of criminal detention and with a fine of 150 000 euros.
7. Federal Republic of Criminal Code of 13 November 1998 12
Germany Section 93 (Definition of state secret)
(1) State secrets are facts, objects or knowledge which are only accessible to a limited category of persons and must be kept secret from
foreign powers in order to avert a danger of serious prejudice to the external security of the Federal Republic of Germany.
(2) Facts which constitute violations of the independent, democratic constitutional order or of international arms control agreements, kept
secret from the treaty partners of the Federal Republic of Germany, are not state secrets.
Section 94 (Treason)
(1) Whosoever
1. communicates a state secret to a foreign power or one of its intermediaries; or
2. otherwise allows a state secret to come to the attention of an unauthorised person or to become known to the public in order to
prejudice the Federal Republic of Germany or benefit a foreign power and thereby creates a danger of serious prejudice to the
external security of the Federal Republic of Germany, shall be liable to imprisonment of not less than one year.
(2) In especially serious cases the penalty shall be imprisonment for life or of not less than five years. An especially serious case will
typically occur if the offender
1. abuses a position of responsibility which especially obliges him to safeguard state secrets; or
2. through the offence creates the danger of an especially serious prejudice to the external security of the Federal Republic of
Germany.
Section 95 (Disclosure of state secrets with intent to cause damage)
(1) Whosoever allows a state secret which has been kept secret by an official authority or at its behest to come to the attention of an
unauthorised person or become known to the public, and thereby creates the danger of serious prejudice to the external security of the
1Available at: http://www.gesetze-im-internet.de/englisch_stgb/german_criminal_code.pdf.
Page 8 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
Federal Republic of Germany, shall be liable to imprisonment from six months to five years unless the offence is punishable under
section 94.
(2) The attempt shall be punishable.
(3) In especially serious cases the penalty shall be imprisonment from one to ten years. Section 94(2) shall apply.
Section 96 (Treasonous espionage; spying on state secrets)
(1) Whosoever obtains a state secret in order to disclose it (section 94) shall be liable to imprisonment from one to ten years.
(2) Whosoever obtains a state secret which has been kept secret by an official agency or at its behest in order to disclose it (section 95)
shall be liable to imprisonment from six months to five years. The attempt shall be punishable.
Section 97 (Disclosure of state secrets and negligently causing danger)
(1) Whosoever allows a state secret which has been kept secret by an official agency or at its behest to come to the attention of an
unauthorised person or become known to the public, and thereby negligently causes the danger of serious prejudice to the external
security of the Federal Republic of Germany, shall be liable to imprisonment not exceeding five years or a fine.
(2) Whosoever by gross negligence allows a state secret which has been kept secret by an official agency or at its behest and which was
accessible to him by reason of his public office, government position or assignment given by an official authority, to come to the
attention of an unauthorised person, and thereby negligently causes the danger of serious prejudice to the external security of the Federal
Republic of Germany, shall be liable to imprisonment not exceeding three years or a fine.
(3) The offence may only be prosecuted upon the authorisation of the Federal Government.
Section 97a (Disclosure of illegal secrets)
Whosoever communicates a secret, which is not a state secret because of one of the violations indicated in section 93(2), to a foreign
power or one of its intermediaries and thereby creates the danger of serious prejudice to the external security of the Federal Republic of
Germany, shall be punished as if he had committed treason (section 94). Section 96(1), in conjunction with section 94(1) No 1 shall
apply mutatis mutandis to secrets of the kind indicated in the 1st sentence above.
Section 98 (Treasonous activity as an agent)
(1) Whosoever
1. engages in activity for a foreign power which is directed towards the acquisition or communication of state secrets; or
2. declares to a foreign power or one of its intermediaries his willingness to engage in such activity, shall be liable to
Page 9 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
imprisonment not exceeding five years or a fine unless the offence is punishable pursuant to section 94 or section 96(1). In
especially serious cases the penalty shall be imprisonment from one to ten years; section 94(2) 2nd sentence No 1 shall apply
mutatis mutandis.
(2) The court in its discretion may mitigate the sentence (section 49(2)) or order a discharge under these provisions if the offender
voluntarily gives up his activity and discloses his knowledge to a government authority. If the offender in cases under subsection (2) 1st
sentence above has been forced into the activity by the foreign power or its intermediaries, he shall not be liable under this provision if he
voluntarily gives up his activity and discloses his knowledge to a government authority without unnecessary delay.
8. Republic of India Official Secrets Act 1923 13
Section 3 (Penalties for spying)
(1) If any person for any purpose prejudicial to the safety or interests of the State-
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly; or indirectly,
useful to an enemy or
(c) obtains collects, records or publishes or communicates to any other person any secret official code or pass word, or any
sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be,
directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty
and integrity of India, the security of the State or friendly relations with foreign States; he shall be punishable with imprisonment
for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air
force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval,
military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other case to three
years.
(2) On a prosecution for an offence punishable under this section, it shall not be necessary to show that the accused person was guilty of
any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is
proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it
appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note,
document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or
pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful
authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a
13Available at: www.archive.india.gov.in/allimpfrms/allacts/3314.pdf.
Page 10 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, information, code or pass
word shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the
safety or interests of the State.
9. Italian Republic Intelligence System for the Security of the Republic and new Provisions Governing Secrecy, Law no 124 of 8 March 2007 14
Section 41 (Prohibition against relating facts having State-secret status)
1. Public officials, public employees and public service providers are forbidden to relate facts having State-secret status. If State-secret
status has been invoked at any stage of criminal proceedings then, without prejudice to the provisions contained in article 202 of the
Code of Criminal Procedure (as substituted by section 40 of this Act), the judicial authority shall inform the President of the Council of
Ministers (in his/her capacity as National Security Authority), so that the necessary decisions falling within his/her competence may be
taken.
2. If the judicial authority considers that knowledge of the matters having State-secret status is essential for the conclusion of the
proceedings, he/she shall suspend every initiative directed at acquiring the information having State-secret status and ask the President of
the Council of Ministers to confirm the existence of State-secret status.
3. Should State-secret status be confirmed and should knowledge of the matters having State-secret status be shown to be essential for
the conclusion of the proceedings, the judge shall state that he/she cannot proceed on account of the existence of a State secret.
4. If the President of the Council of Ministers fails to confirm State-secret status within thirty days of receiving notification of the
request, the judicial authority shall acquire the information and make provision for the proceedings to continue.
5. An invocation of State-secret status that is confirmed by the President of the Council of Ministers in a document stating reasons shall
bar the judicial authority from acquiring or using the information having State-secret status even indirectly.
6. It shall, in any case, remain open to the judicial authority to proceed on the basis of elements existing separately and independently of
the records, documents or matters having State-secret status.
7. Where a conflict of competence issue is raised against the President of the Council of Ministers, should the conflict result in a finding
that no State secret exists, the President of the Council of Ministers shall not have the power to invoke State-secret status again in
relation to the same material. Should the conflict result in a finding that a State secret does exist, the judicial authority shall have no
power either to acquire or to use (whether directly or indirectly) records or documents in relation to which State-secret status has been
invoked.
8. In no circumstances may State-secret status be invoked against the Constitutional Court. The Court shall adopt the necessary measures
to guarantee the secrecy of its proceedings.
14Available: http://www.sicurezzanazionale.gov.it/sisr.nsf/english/law-no-124-2007.h….
Page 11 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
9. The President of the Council of Ministers shall be bound both to communicate to the Parliamentary Committee referred to under
section 30 every case where an invocation of State-secret status is confirmed pursuant to this section, and to give the essential reasons for
such confirmation. At the request of the Parliamentary Oversight Committee, the President of the Council of Ministers shall provide, in a
secret ad hoc session, the information necessary to review the merits of the confirmation of the invocation of State-secret status. If the
Parliamentary Committee considers the invocation of State-secret status to be groundless, it shall report the matter to both Houses of
Parliament for their assessment of the situation.
10. Japan Bill on the Protection of Specially Designated Secrets 15
Article 1, Clause 1: This law is designed to prevent the disclosure of information related to Japan’s national security or information
concerning the maintenance of Japan’s or its peoples’ safety.
Article 22
Clause 1: When a person, engaged in work involving the handling of specially designated secrets, leaks specially designated secrets
which they have come to know through their work, they will be sentenced to no more than 10 years jail, or, according to the
circumstances, be sentenced to no more than 10 years jail and fined no more than 10 million yen. The same will apply even after a person
stops work involving the handling of designated secrets.
…Clause 4: Those who commit the crime outlined in clause 1 (above) through negligence will be imprisoned for no more than 2 years
jail or fined no more than 500,000 yen.
11. United Mexican States National Security Act, 31 January 2005 16
Article 54: A person who for any reason participates or has knowledge of the products, sources, methods, means, intelligence operations,
records or information derived from planned actions under the current law, should not disclose it, by any means and take the necessary
measures to avoid it becoming public.
17
Federal Penal Code, 14 August 1931
Article 210: A person who reveals any secret or confidential communication known or received through the course of employment,
without just cause, to the detriment of someone, without consent in a manner which could result in harm shall receive thirty to two
15
Available at:http://www.shugiin.go.jp/itdb_gian.nsf/html/gian/honbun/houan/g18505009… , see alsohttp://www.shugiin.go.jp/itdb_gian.nsf/html/
gian/honbun/syuuseian/1_53D2.htm .
16Available at: http://www.diputados.gob.mx/LeyesBiblio/pdf/LSegNac.pdf.
17
Available at: http://www.edomex.gob.mx/legistelfon/doc/pdf/cod/vig/codvig006.pdf.
Page 12 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
hundred days of community service.
Article 211: When the punishable disclosure is made by a person who performs professional or technical services or is a public official or
employee or when the secret that is revealed or published has an industrial character, the penalty is one to five years, a fine of fifty to five
hundred pesos and suspension from employment, if applicable, of two months to one year.
12. Kingdom of Morocco General Civil Service Regulation Act, Dahir No. 1-58-008 of 4 Shaban 1377, 24 February 1958 18
Chapter 18: Notwithstanding the enacted criminal law regulation relating to information security, every employee in the Moroccan
public service is required to protect classified information relating to tasks or information that the employee learns during the
performance or exercise of their duties.
It is also forbidden to embezzle work papers and documents or to reveal their content to others in an unauthorised way. Except in
circumstances specified in current regulations, only the authority of the Minister to whom the employee reports can authorise this
employee to reveal any professional secrets or to remove the requirement of the regulation above.
Penal Code, Dahir No. 1-59-413, 26 November 1962 19
Article 181: Whether in time of peace or war, any Moroccan is guilty of treason and punishable with death if they commit the following
acts…4 delivering to a foreign authority or its agents, under whatever form and by whatever means, a national defence secret, or who
has, by whatever means whatsoever, possession of a secret of this nature with the intention of delivering it to a foreign authority or its
agents is, in times of peace or in times of war, guilty of treason and punished with death.
Article 187: [Things that] Are considered national defence secrets for the application of the present code :
1° Military, diplomatic, economic or industrial information that, by its nature, must only be known by people qualified to utilise or
maintain it, and must, in the interest of national defence, be held secret from to all other persons.
2° Objects, materials, written information, drawings, plans, maps, field maps, photographs or any other reproductions, and all other
documents whatsoever which, by their nature, must only be known by people qualified utilise or maintain it, and must, in the interests of
national defence, be held secret from to all other persons for the reason they are capable of leading to the discovery of information
belonging to the categories referred to in the preceding paragraph.
3° military information of whatever nature, not previously published by the government, and not listed in the categories above, and
18
19Available at: http://www.mmsp.gov.ma/ar/documents.aspx?t=3.
Available at: http://adala.justice.gov.ma/production/legislation/fr/penal/Code%20Pena… and http://www.mmsp.gov.ma/ar/documents.aspx?t=3.
Page 13 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
whose publication, broadcast, disclosure or copying was prohibited by decree or a ministerial cabinet decree.
…
When the offenses in the preceding paragraphs are committed in times of war, the penalty is imprisonment from five to thirty years.
When committed in time of peace, the penalty is imprisonment of one to five years and a fine from 1 000 to 10 000 dirhams.
Article 193: Is guilty of an offense against the external security of the State: any Moroccan or foreigner who commits the following: ….
2° organising any means of correspondence or transmission which can harm national defence, in a clandestine manner and regardless of
whether they used a disguise, or concealed their names, positions or nationalities.…
If the offenses in the preceding paragraphs are committed in times of war, the penalty is imprisonment from five to thirty years. If
committed in times of peace, the penalty is imprisonment of one to five years and a fine from 1000 to 10000 dirhams.
13. New Zealand New Zealand Security Intelligence Service Act 1996 20
Article 12A (Prohibition on unauthorised disclosure of information
(1) An officer or employee of the Security Intelligence Service, or a former officer or employee of the Service, shall not disclose or
use any information gained by or conveyed to him through his connection with the Service otherwise than in the strict course of his
official duties or as authorised by the Minister.
(2) A person who, by any intelligence warrant, is authorised to intercept or seize any communication or to undertake electronic
tracking, or is requested to give any assistance in making any such interception or seizure or electronic tracking, or to make the
services of other persons available to the Security Intelligence Service, shall not disclose the existence of the warrant, or disclose or
use any information gained by or conveyed to him when acting pursuant to the warrant, otherwise than as authorised by the warrant or
by the Minister or the Director.
(3) A person who acquires knowledge of any information knowing that it was gained as a result of any interception or seizure, or
electronic tracking, in accordance with an intelligence warrant shall not knowingly disclose that information otherwise than in the
course of his duty.
(4) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 2 years or a fine not
exceeding $2,000 who fails to comply with or acts in contravention of the foregoing provisions of this section.
Crimes Act 1961
Section 78A (Wrongful Communication, Retention, or Copying of Official Information)
20Available: http://www.legislation.govt.nz/act/public/1969/0024/latest/whole.html.
Page 14 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
(1) Every one is liable to imprisonment for a term not exceeding 3 years who, being a person who owes allegiance to the Sovereign in
right of New Zealand, within or outside New Zealand,—
(a) knowingly or recklessly, and with knowledge that he or she is acting without proper authority, communicates any official
information or delivers any object to any other person knowing that such communication or delivery is likely to prejudice the
security or defence of New Zealand; or
(b) with intent to prejudice the security or defence of New Zealand, retains or copies any official document—
(i) which he or she knows he or she does not have proper authority to retain or copy; and
(ii) which he or she knows relates to the security or defence of New Zealand; and
(iii) which would, by its unauthorised disclosure, be likely to prejudice the security or defence of New Zealand; or
(c) knowingly fails to comply with any directions issued by a lawful authority for the return of an official document—
(i) which is in his or her possession or under his or her control; and
(ii) which he or she knows relates to the security or defence of New Zealand; and
(iii) which would, by its unauthorised disclosure, be likely to prejudice seriously the security or defence of New
Zealand.
(2) In this section,—
department means a government department named in Part 1 of Schedule 1 of the Ombudsmen Act 1975
object means any object which—
(a) a department; or
(b) a Minister of the Crown in his or her official capacity; or
(c) an organisation; or
(d) an officer or employee of any department or organisation in his or her capacity as such an officer or employee or in his or
her capacity as a statutory officer; or
(e) an independent contractor engaged by any department or Minister of the Crown or organisation in his or her capacity as
such contractor; or
(f) a branch or post, outside New Zealand, of a department or organisation; or
(g) an unincorporated body (being a board, council, committee, subcommittee, or other body)—
(i) which is established for the purpose of assisting or advising, or performing functions connected with, any
department or Minister of the Crown or organisation; and
(ii) which is so established in accordance with the provisions of any enactment or by any department or Minister of
Page 15 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
the Crown or organisation,—
is entitled to have in its or his or her possession by virtue of its or his or her rights as the owner, hirer, lessee, bailee, or
custodian of that object
official information—
(a) means any information held by—
(i) a department; or
(ii) a Minister of the Crown in his or her official capacity; or
(iii) an organisation; or
(iv) an officer or employee of any department or organisation in his or her capacity as such an officer or employee or
in his or her capacity as a statutory officer; or
(v) an independent contractor engaged by any department or Minister of the Crown or organisation in his or her
capacity as such contractor; and
(b) includes any information held outside New Zealand by any branch or post of—
(i) a department; or
(ii) an organisation; and
(c) includes any information held by an unincorporated body (being a board, council, committee, subcommittee, or other
body)—
(i) which is established for the purpose of assisting or advising, or performing functions connected with, any
department or Minister of the Crown or organisation; and
(ii) which is so established in accordance with the provisions of any enactment or by any department or Minister of
the Crown or organisation
organisation means—
(a) an organisation named in Part 2 of Schedule 1 of the Ombudsmen Act 1975:
(b) an organisation named in Schedule 1 of the Official Information Act 1982
statutory officer means a person—
(a) holding or performing the duties of an office established by an enactment; or
(b) performing duties expressly conferred on him or her by virtue of his or her office by an enactment
Page 16 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
Summary Offences Act 1981 21
Section 20A (Unauthorised disclosure of certain official information)
(1) Every person commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding
$2,000 who knowingly communicates to any other person any official information as defined in section 78A(2) of the Crimes Act
1961 (not being official information that is publicly available) or delivers to any other person any object as defined in section 78A(2)
of the Crimes Act 1961 knowing that he does not have proper authority to effect the communication or delivery and that the
communication of that information or the delivery of that object is likely—
(a) to endanger the safety of any person:
(b) to prejudice the maintenance of confidential sources of information in relation to the prevention, investigation, or detection
of offences; or
(c) to prejudice the effectiveness of operational plans for the prevention, investigation, or detection of offences or the
maintenance of public order, either generally or in a particular case; or
(d) to prejudice the safeguarding of life or property in a disaster or emergency; or
(e) to prejudice the safe custody of offenders or of persons charged with offences; or
(f) to damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue Government
economic or financial policies relating to—
(i) exchange rates or the control of overseas exchange transactions:
(ii) the regulation of banking or credit:
(iii) taxation:
(iv) the stability, control, and adjustment of prices of goods and services, rents, and other costs, and rates of
wages, salaries, and other incomes:
(v) the borrowing of money by the Government of New Zealand:
(vi) the entering into of overseas trade agreements.
(2) No charging document may be filed against any person for—
(a) an offence against this section; or
(b) the offence of conspiring to commit an offence against this section; or
(c) the offence of attempting to commit an offence against this section,—
21Available at: http://www.legislation.govt.nz/act/public/1981/0113/latest/DLM53348.html.
Page 17 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
except with the consent of the Attorney-General:
provided that a person alleged to have committed any offence mentioned in this subsection may be arrested, or a warrant for his arrest
may be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that the consent of the
Attorney-General to the filing of a charging document for the offence has not been obtained, but no further or other proceedings shall be
taken until that consent has been obtained.
(3) The Attorney-General may, before deciding whether or not to give his consent under subsection (2), make such inquiries as he
thinks fit.
14. Russian Federation Criminal Code of the Russian Federation 22
Article 283 (Disclosure of a State Secret)
1. Disclosure of information comprising a state secret, by a person to whom it has been entrusted or to whom it has become known
through his office or work, if this information has become the property of other persons, in the absence of the characteristic features of
high treason, Shall be punishable by arrest for a term of four to six months, or by deprivation of liberty for up to four years, with
disqualification from holding specific offices or engaging in specified activities for a term of up to three years, or without such
disqualification.
2. The same deed, which involved through negligence grave consequences,
Shall be punishable by deprivation of liberty for a term of three to seven years, with disqualification from holding specific offices or
engaging in specified activities for a term of up to three years.
Russian Federation Federal Law No 5 on Foreign Intelligence, 8 December 1995 23
Article 8 (Protection of information about the Russian Federation foreign intelligence organs)
Any person to be given access to information about the Russian Federation foreign intelligence organs undergoes the procedure for
permitting access to information constituting state secrets, unless a different procedure is prescribed by federal laws. This procedure
includes the signing of a written pledge not to disseminate this information. Any breach of the aforementioned pledge results in liability
as prescribed by federal law. Documents from the archives of Russian Federation foreign intelligence organs, which are of historical and
scientific value and are declassified according to the federal law, are transferred for permanent storage at Russia's State Archive Service.
Documents of the Russian Federation foreign intelligence organs which contain information about their staff members, about individuals
who are (have been) rendering confidential assistance to Russian Federation foreign intelligence organs, or about the methods and means
22
23Available at: http://www.genproc.gov.ru/documents/legal-base/document-597/.
Available at: http://svr.gov.ru/svr_today/doc02.htm.
Page 18 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
used by these organs are stored in the archives of the Russian Federation foreign intelligence organs.
Article 18 (Staff of the Russian Federation foreign intelligence organs)
Information about specific individuals being on the staff of Russian Federation foreign intelligence organs, including former staffers of
these organs, constitutes a state secret and can be disseminated only with permission from the leader of the Russian Federation foreign
intelligence organ and, in cases not involving any official necessity, subject to mandatory written consent by the individuals in question...
15. Slovak Republic Protection of Classified Information, Act of 11 March 2004 24
Article 38: Obligations of authorised persons
An authorised person is obliged to
(a) keep secret on information and objects containing classified information, while they are classified, before unauthorised persons and
foreign powers, including after the lapsing of the authorisation to be acquainted with classified information,
(b) comply with generally binding legal regulations governing the protection of classified information,
(c) notify the head without delay of any unauthorised handling of classified information and any interest of unauthorised persons in
classified information, and to cooperate with the Authority as regards clarifying the causes of the unauthorised handling of the classified
information; authorised persons having special status shall notify the Authority of any unauthorised handling of classified information
and any interest of unauthorised persons in classified information,
(d) notify the head without delay of a change of name and surname, marital status, residence, state nationality and integrity,
(e) notify the head without delay of any fact potentially influencing his/her authorisation to be acquainted with classified information,
and of any fact potentially influencing such authorisation of another authorised person.
Article 78: Transgressions
(1) An authorised person violating an obligation specified in Article 38 commits a transgression in the field of the protection of classified
information.
(2) In addition, a person who as an unauthorised person
(a) fails to maintain confidentiality on classified information of which he/she has learnt,
(b) fails to comply with the obligation to give notice of information that has become known to him/her, or the obligation to
surrender a object found containing classified information, (c) breaches the prohibition of photographing, filming or making
other records of buildings, premises or facilities,
24Available at: http://www.nbusr.sk/ipublisher/files/nbusr.sk/english/215_2004_eng.pdf.
Page 19 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
(d) uses technical devices at variance with the provisions of this Act,
(e) Performs unauthorised aerial photographing of the territory of the Slovak Republic, commits a transgression in the field of
the protection of classified information.
(3) A fine may be imposed for a transgression
(a) pursuant to paragraph 1, of up to SKK 50 000 or the prohibition to conduct activities,
(b) pursuant to paragraph 2(a) and (b), of up to SKK 15 000,
(c) pursuant to paragraph 2(c), (d) and (e), of up to SKK 50 000.
(4) Transgressions in the field of the protection of classified information shall be dealt with by the Authority.
(5) Transgressions and their resolution shall be governed by a specific regulation.
16. Swiss Confederation Swiss Criminal Code, 12 December 1937 25
Art. 267: Diplomatic Treason
1. Whoever intentionally revealed or rendered accessible to a foreign State or one of its agents a secret that the Interests of the
Confederation commanded to be kept,
Whoever has falsified, destroyed, wiped or stolen official documents or evidence relating to legal relations between the
Confederation or a Canton and a foreign State and has thus intentionally compromised the interests of the Confederation or Canton,
Whoever, in their capacity as representative of the Confederation, has intentionally conducted negotiations with a foreign
government to the detriment of the Confederation,
will be punished by a custodial sentence of at least one year.
2. Whoever intentionally revealed or rendered accessible to the public a secret that the Interests of the Confederation commanded to be
kept, will be punished by a custodial sentence of a maximum of five years or a fine.
3. The penalty will be a custodial sentence of a maximum of three years or a monetary penalty if the offender has acted negligently.
Article 320: Violation of a public secret
1. Whoever revealed secret information confided in them in their capacity as a member of an authority or as a public official or which
has come to his knowledge in the execution of his official duties or employment, will be punished by a custodial sentence of a maximum
of three years or a fine. A breach of official secrecy remains an offence following termination of employment as a member of an
authority or as a public official.
2. Revealing the secret will not be punishable if it is done with the written consent of a superior authority.
25Available at: http://www.admin.ch/opc/fr/classified-compilation/19370083/index.html.
Page 20 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
17. Democratic Republic of Penal Code, Decree Law No 19/2009 26
Timor-Leste Article 200 - Breach of State secrets
1. Any person who, jeopardizing interests of the Timorese State concerning its foreign security or conduct of its foreign policy, conveys
or renders accessible to an unauthorized person or makes public any fact, document, plan, object, knowledge or any other information
that should, due to said interest, have been maintained in secret, is punishable with 3 to 10 years imprisonment.
2. Any person who collaborates with a foreign government or group with intent to commit any of the acts referred to in the previous
subarticle or to enlist or aid another person charged with committing the same, is punishable with the same penalty provided for in the
previous subarticle.
3. If the perpetrator of any of the acts described in the previous subarticles holds any political, public or military office who should have,
due to the nature thereof, refrained said person from committing such an act more than any ordinary citizen, the same is punishable with
5 to 15 years imprisonment.
National Intelligence Service, Decree Law No 3/2009 27
Article 21 - Disciplinary offences
1. Disciplinary offence shall mean the violation, by SNI functionaries or agents, of their respective functional duties, namely:
a) The commission of an act that is outside of the functions and competences of SNI;
b) The access to, use, or communication of data or intelligence in violation of rules relating to such activities.
c) Attempt and negligence are punishable.
Article 29 - Security rules
1. Activities of SNI shall for all purposes be considered classified and of interest for national security.
2. All documents relating to matters referred to in article 3 shall be covered by the State Secrecy.
3. The activity of research, collection, analysis, interpretation, classification and storage of intelligence relating to the competences
of SNI, including the respective results, shall be subject to the duty of secrecy.
Article 30 - Depositions or statements
1. No member of SNI summoned to depose or to make statements before judicial authorities may disclose facts covered by the State
26
27Available at: http://www.jornal.gov.tl/lawsTL/RDTL-Law/index-e.htm.
Available at: http://www.jornal.gov.tl/lawsTL/RDTL-Law/index-e.htm.
Page 21 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
Secrecy or be subjected to enquiries on the same matters.
2. Where the judicial authority considers that the refusal to depose or make statements pursuant to the preceding paragraph is unjustified,
it may request confirmation with the Prime Minister.
18. Republic of Uganda Official Secrets Act 1964 28
(1) Any person who, having in his or her possession or control, any secret official code word, or password, or any sketch, plan, model,
article, note, document or information that relates to or is used in a prohibited place or anything in such a place, or that has been made or
obtained in contravention of this Act, or that has been entrusted in confidence to him or her by any person holding office under the
Government or owing to his or her position as a person who holds or has held office under the Government, or as a person who holds or
has held a contract made on behalf of the Government, or a contract the performance of which in whole or in part is carried out in a
prohibited place, or as a person who is or has been employed under a person who holds or has held such an office or contract—
1. communicates the code word, password, sketch, plan, model, article, note, document or information to any person, other than a
person to whom he or she is authorised to communicate with, or a person to whom it is in the interests of Uganda his or her duty to
communicate it;
2. uses the information in his or her possession for the benefit of any foreign power or in any other manner;
3. retains the sketch, plan, model, article, note or document in his or her possession or control when he or she has no right to retain it
or when it is contrary to his or her duty to retain it or fails to comply with all directions issued by lawful authority with regard to its
return or disposal; or (d) fails to take reasonable care of, or so conducts himself or herself as to endanger the safety of, the sketch, plan,
model, article, note, document, secret official code word or password or information, commits an offence under this Act.
2. Any person who, having in his or her possession or control any sketch, plan, model, article, note, document or information that
relates to munitions of war, communicates it directly or indirectly, to any foreign power, or in any other manner prejudicial to the
safety or interests of Uganda, commits an offence under this Act.
3. Any person who receives any secret official code word, or password, or sketch, plan, model, article, note, document or information,
knowing or having reasonable grounds to believe, at the time when he or she receives it, that the code word, password, sketch, plan,
model, article, note, document or information is communicated to him or her in contravention of this Act, commits an offence under
this Act, unless he or she proves that the communication to him or her of the code word, password, sketch, plan, model, article,
note, document or information was contrary to his or her desire.
Any person who—
28Available at: http://www.opm.go.ug/resource-center/legislation.html.
Page 22 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
retains for any purpose prejudicial to the safety or interests of Uganda any official document, whether or not completed or issued
for use, when he or she has no right to retain it, or when it is contrary to his or her duty to retain it, or fails to comply with any
directions issued by any Government department or any person authorised by such department with regard to the return or
disposal of the official document; or
allows any other person to have possession of any official document issued for his or her use alone, or communicates any secret
official code word or password so issued, or, without lawful authority or excuse, has in his or her possession any official
document or secret official code word or password issued for the use of some person other than himself or herself, or on
obtaining possession of any official document by finding or otherwise, neglects or fails to restore it to the person or authority by
whom or for whose use it was issued, or to a police officer,
commits an offence under this Act.
19. United Kingdom of Great Official Secrets Act 1989 29
Britain and Northern Ireland Section 1 (Security and Intelligence)
(1) A person who is or has been – (a) a member of the security and intelligence services; or (b) a person notified that he is subject to the
provisions of this subsection, is guilty of an offence if without lawful authority he discloses any information, document or other article
relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or
in the course of his work while the notification is or was in force.
(2) The reference in subsection (1) above to disclosing information relating to security or intelligence includes a reference to making any
statement which purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such
a disclosure
(3) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a
damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his
possession by virtue of his position as such but otherwise than as mentioned in subsection (1) above.
(4) For the purposes of subsection (3) above a disclosure is damaging if – (a) it causes damage to the work of, or of any part of, the
security and intelligence services; or (b) it is of information or a document or other article which is such that its unauthorised disclosure
would be likely to cause damage or which falls within a class or description of information, documents or articles the unauthorised
disclosure of which would be likely to have that effect…
20. United States of America 18 USC (Crimes and Criminal Procedure) 30
29Available at: http://www.legislation.gov.uk/ukpga/1989/6/contents.
Page 23 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
Chapter 37 (Espionage and Censorship)
Section 793 (Gathering, Transmitting or Losing Defense Information)
(a)Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information
is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise
obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort,
battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building,
office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of
construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within
the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or
instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any
contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or
otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case
of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored,
information as to which prohibited place the President has determined would be prejudicial to the national defense; or
(b)Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy,
take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document,
writing, or note of anything connected with the national defense; or
(c)Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source
whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he
receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any
person contrary to the provisions of this chapter; or
(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national
defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury
of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to
30Available at: http://www.gpo.gov/fdsys/pkg/USCODE-2009-title18/html/USCODE-2009-title….
Page 24 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the
United States entitled to receive it; or
(e)Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or
information relating to the national defense which information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same
to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States
entitled to receive it; or
(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national
defense,
(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his
trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its
trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his
superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act
to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense
which is the object of such conspiracy.
(h)
(1)Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any
property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any
faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the
result of such violation. For the purposes of this subsection, the term “State” includes a State of the United States, the District of
Columbia, and any commonwealth, territory, or possession of the United States.
(2)The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to
the United States all property described in paragraph (1) of this subsection…
Page 25 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
Section 794 (Gathering or Delivering Defense Information to Aid Foreign Government)
(a)Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation,
communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or
party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any
representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the
national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall
not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign
power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the
United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites,
early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or
cryptographic information; or any other major weapons system or major element of defense strategy.
(b)Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates,
or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed
Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any
naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification
or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by
death or by imprisonment for any term of years or for life.
(c)If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the
conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such
conspiracy.
(d) (1)Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—
(A)any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation, and
(B)any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such
violation.
For the purposes of this subsection, the term “State” includes a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
(2)The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to
Page 26 of 29 State Offences for the Unauthorised Disclosure of Intelligence Information
the United States all property described in paragraph (1) of this subsection…
Chapter 47 (Fraud and False Statements)
Section 1030 (Fraud and Related Activity in Connection with Computers: (a)(1) having knowingly accessed a computer without
authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by
the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons
of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954,
with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any
foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to
communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it,
or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it…
Chapter 93 (Public Officers and Employees)
Section 1924 (Unauthorized Removal and Retention of Classified Documents or Material)
(a)Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position,
or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes
such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall
be fined under this title or imprisoned for not more than one year, or both.
(b)For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection
(a).
(c)In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United
States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or
Executive order to require protection against unauthorized disclosure in the interests of national security
50 USC (War and National Defense), Chapter 23 (Internal Security) 31
Section 783 (Offenses):
31Available at: http://www.gpo.gov/fdsys/granule/USCODE-2011-title50/USCODE-2011-title5….
Page 27 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
(a) Communication of classified information by Government officer or employee
It shall be unlawful for any officer or employee of the United States or of any department or agency thereof, or of any corporation the
stock of which is owned in whole or in major part by the United States or any department or agency thereof, to communicate in any
manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or
representative of any foreign government, any information of a kind which shall have been classified by the President (or by the head of
any such department, agency, or corporation with the approval of the President) as affecting the security of the United States, knowing or
having reason to know that such information has been so classified, unless such officer or employee shall have been specifically
authorized by the President, or by the head of the department, agency, or corporation by which this officer or employee is employed, to
make such disclosure of such information.
(b) Receipt of, or attempt to receive, by foreign agent or member of Communist organization, classified information
It shall be unlawful for any agent or representative of any foreign government knowingly to obtain or receive, or attempt to obtain or
receive, directly or indirectly, from any officer or employee of the United States or of any department or agency thereof or of any
corporation the stock of which is owned in whole or in major part by the United States or any department or agency thereof, any
information of a kind which shall have been classified by the President (or by the head of any such department, agency, or corporation
with the approval of the President) as affecting the security of the United States, unless special authorization for such communication
shall first have been obtained from the head of the department, agency, or corporation having custody of or control over such
information.
(c) Penalties for violation
Any person who violates any provision of this section shall, upon conviction thereof, be punished by a fine of not more than $10,000, or
imprisonment for not more than ten years, or by both such fine and such imprisonment, and shall, moreover, be thereafter ineligible to
hold any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.
…
(e) Forfeiture of property
(1)Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—
(A)any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
(B)any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such
violation.
(2)The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to
the United States all property described in paragraph (1)…
Page 28 of 29State Offences for the Unauthorised Disclosure of Intelligence Information
(5)As used in this subsection, the term “State” means any State of the United States, the District of Columbia, the Commonwealth of
Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
Page 29 of 29UNCLASSIFIED
From: Conolly, Alan [mailto:[email protected]]
Sent: Friday, December 20, 2013 9:42 AM
To: Sekler, Irene
Cc: FileNotes; McDonald, Catherine
Subject: Execution of ASIO search warrants (your ref: 13209380; our ref:
234853)
Dear Ms Sekler
1. We have been instructed to act for Bernard Collaery, and to respond to
your letter of 16 December 2013, which the writer has read for the first
time this morning.
2. We are instructed that the attendance of ASIO at our client’s premises
on 3 December 2013 was, in many respects, videoed.
3. We request you provide us with a copy of the video as a matter of
urgency. We request you do so by 5pm today.
4. The deadlines you stipulate for a claim for privilege are impracticable.
5. We believe, when you examine the video, you will understand that the
fashion in which Mr Collaery’s clerk was informed concerning what was taken
from the premises was unsatisfactory to a high degree.
6. Mr Collaery does not know what was taken in sufficient detail to provide
us with adequate instructions on the issue of privilege.
7. Please provide us with details of each and every document and piece of
data ASIO took, document by document, and piece of data by piece of data.
8. Mr Collaery’s position is that he does not know what ASIO has taken. He
accordingly cannot obtain instructions until you provide that information.
9. We must consider, not only the preservation of privilege that may vest
in Mr Collaery’s clients, but also the protection of the privacy of all
data that may have been taken illegally.
10. It may also be that the entry into the premises was illegal, and the
taking of material was illegal. One possibility is your client will be
required by court order to return all the material taken without copying.
11. We ask for an undertaking by your client not, in any way, to copy or
deal with what was taken from Mr Collaery’s premises until we have had a
response to this letter, and the opportunity thereafter, if need be, to
institute proceedings.
12. Our instructions are the warrant was not served, in that it was not
left with Mr Collaery’s clerk, and nor was she given time to properly read
it. Further, there were portions of the warrant that were blacked out.
13. We ask that you provide us with a copy of the warrant that was shown to
Mr Collaery’s clerk, and that we receive that by 5pm today.
14. We also request that you deliver to us by 5pm on Monday, at our Sydney
offices, the original warrant, which was shown to Mr Collaery’s clerk.15. We also ask that you provide us with a copy of the warrant without any
blacking out, so that the full warrant can be read.
16. Please provide us with a copy of the seizure record.
17. Please advise:
a. why portions of the warrant were blacked out;
b. why the ASIO officer who spoke with Mr Collaery’s clerk refused to give
the warrant to her and allow her to retain it;
c. the identity of each of the persons who entered the premises;
d. the identity of each person’s employer; and
e. the instructions each person had from his or her employer in relation to
the entry onto the premises.
18. We also ask that you identify the documents which the Attorney-General
considered when determining whether he should issue the warrant under
section 25 of the Australian Security Intelligence Organisation Act 1979.
19. We also ask that you advise which of those documents your client is
prepared to allow us to inspect.
20. Please inform us of the Attorney-General’s grounds for believing that
access by ASIO to records or things on the premises will substantially
assist the collection of intelligence with respect to a matter that is
important in relation to security.
Yours faithfully
Alan Conolly
__________________________________________________
ALAN CONOLLY
SENIOR PARTNER
AR Conolly & Company Lawyers Phone: 02 9333 3600
11/275 George Street Fax: 02 9333 3601
SYDNEY NSW 2000 DX 10207 Sydney Stock Exchange
__________________________________________________
Please note: AGS offices will be closed from COB 24 December 2013 until 2
January 2014. If you need advice or assistance during that time, please
contact 0409 320 713 until 27 December, then 0407 464 028 until 2 January.
_____If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.
_____ Our ref. 13209380
Your ref. 234853
20 December 2013
Mr AR Conolly
AR Conolly Lawyers and Co
Level 11
275 George Street
Sydney NSW 2000
Email: [email protected]
Dear Mr Conolly
Execution of ASIO search warrant
1. We refer to your email of 20 December 2013 and a request of the President of the
International Court of Justice made on 18 December 2013 that the Commonwealth
refrain from any act which might cause prejudice to the rights claimed by the
Democratic Republic of Timor-Leste in the proceedings it has commenced before
the International Court of Justice.
2. As a consequence of the President’s request, the Commonwealth will take no steps
in relation to the material seized from Mr Collaery’s premises on 3 December 2013
until the International Court of Justice has heard the request for provisional
measures on 20-22 January 2014.
3. We are seeking instructions on the other matters raised in your email and will
respond as soon as we are able to do so.
4. Please do not hesitate to contact the writer in relation to the matter.
Yours sincerely
Irene Sekler
Senior Executive Lawyer
T 02 6253 7155 F 02 6253 7383
M 0447 130 813
A2748720 H.E. Mr. Joaquim da Fonseca Mr. John Reid
Ambassador and Agent First Assistant Secretary
Embassy of the International Law and Human Rights Division
Repœblica DemocrÆtica de Timor-Leste Attorney-General’s Department
4 Beauchamp Road Australian Government
London SW11 1PQ 3-5 National Circuit
United Kingdom Barton ACT 2600
Australia
BY E MAIL :RUSSO @ MINIHUB .ORG
BY E-MAIL :JOHN REID @ AG.GOV AU
Ms. Amy McMullen
Counselor (Legal Affairs) and Co-Agent
Embassy of the
Repœblica DemocrÆtica de Timor-Leste
4 Beauchamp Road
London SW11 1PQ
United Kingdom
BY E-MAIL :AMY MCMULLEN @ CCLAW COM AU
AMY .MCMULLEN @ COLLAERYLAWYERS .CO UK
TL-AU 110015 30 December 2013
DIRECT DIA: +31 70 302 4280
E-MAILGSCHOFIELD@ PCA-CPAORG
RE: ARBITRATION UNDER THE TIMOR SEA TREATY (TIMOR -LESTE V.AUSTRALIA )
Dear Madam, dear Sirs,
On behalf of the Tribunal in the above-captioned matter, I acknowledge receipt of Australia’s letter of
today’s date, requesting a variance of Article 26 of the Rules of Procedure concerning confidentiality.
I further acknowledge receipt of Timor-Leste’s letter of today’s date, regarding the same subject.
Copies of both letters are enclosed for the attention of all concerned.
Timor-Leste is invited to provide any further comments it may have regarding Australia’s request by
Friday, 3 January 2013 . Please do not hesitate to contact me should you have any questions
concerning this letter.
Yours sincerely,
Garth Schofield
Legal Counsel
Encl.: Letter from Australia dated 30 December 2013
Letter from Timor-Leste dated 30 December 2013
cc: Arbitral Tribunal:
Professor Tullio Treves (by e-mail: [email protected])
Lord Collins of Mapesbury (by e-mail: [email protected])
Professor W. Michael Reisman (by e-mail: [email protected]) TL-AU 110015
30 December 2013
Page 2 of 2
Counsel for Timor-Leste:
Sir Elihu Lauterpacht CBE QC (by e-mail: [email protected])
Professor Vaughan Lowe QC (by e-mail: [email protected])
Mr. Bernard Collaery (by e-mail: [email protected])
Counsel for Australia:
Mr. Justin Gleeson SC (by e-mail: [email protected])
Professor James Crawford AC SC (by e-mail: [email protected], [email protected]) H.E. Mr. Joaquim da Fonseca Mr. John Reid
Ambassador and Agent First Assistant Secretary
Embassy of the International Law and Human Rights Division
Repœblica DemocrÆtica de Timor-Leste Attorney-General’s Department
4 Beauchamp Road Australian Government
London SW11 1PQ 3-5 National Circuit
United Kingdom Barton ACT 2600
Australia
BY E-MAIL :RUSSO @ MINIHUB ORG
BY E MAIL :JOHN .REID@ AG GOV .AU
Ms. Amy McMullen
Counselor (Legal Affairs) and Co-Agent
Embassy of the
Repœblica DemocrÆtica de Timor-Leste
4 Beauchamp Road
London SW11 1PQ
United Kingdom
BY E-MAIL: AMY MCMULLEN @ CCLAW COM .AU
AMY .MCMULLEN @ COLLAERYLAWYERS .CO.UK
TL-AU 110536 7 January 2014
DIRECT DIA: +31 70 302 4280
E-MAI:GSCHOFIELD@ PCACPA.ORG
RE: ARBITRATION UNDER THE TIMOR SEA TREATY TIMOR LESTE V .AUSTRALIA )
Dear Madam, dear Sirs,
Please find enclosed the Tribunal’s Procedural Order N” 2in the above-captioned matter.
Yours sincerely,
Garth Schofield
Legal Counsel
Encl.: Procedural Order N” 2
cc: Arbitral Tribunal:
Professor Tullio Treves (by e-mail: [email protected])
Lord Collins of Mapesbury (by e-mail: [email protected])
Professor W. Michael Reisman (by e-mail: [email protected])
Counsel for Timor-Leste:
Sir Elihu Lauterpacht CBE QC (by e-mail: [email protected])
Professor Vaughan Lowe QC (by e-mail: [email protected])
Mr. Bernard Collaery (by e-mail: [email protected])
Ms. Jolan Draaisma (by e-mail: [email protected]) TL-AU 110536
7 January 2014
Page 2 of 2
Counsel for Australia:
Mr. Justin Gleeson SC (by e-mail: [email protected])
Professor James Crawford AC SC (by e-mail: [email protected], [email protected])
Annexes