In a recent decision of NCAT, CCB v Department of Education and Communities [2015] NSWCATAD 154, the Tribunal found that an agency wishing to assert client legal privilege as a basis for resisting disclosure of a communication with an in house lawyer was required to lead evidence as to the independence of the in house lawyer.
The Department of Education and Communities (DEC) had declined a GIPA request in relation to several categories of documents. The relevant parts of the decision concern two lines redacted in a diary note made by a school principal of a conversation with an in house lawyer employed by the DEC, in which legal advice was said to be recorded. The DEC had refused access to the redacted text on the basis that it was subject to a conclusive presumption of an overriding public interest against disclosure because that information would be privileged from production in legal proceedings on the ground of client legal privilege within clause 5 of Schedule 1 to the Government Information (Public Access) Act 2009 (GIPA Act).
The DEC did not provide any evidence in support of its submissions.
The approach that the Tribunal adopted was that the reference in the GIPA Act to client legal privilege was a reference to the concept as it appears in the Evidence Act 1995 (the Act). The Tribunal considered that whilst s.118 of the Act did not on its face require a client to establish the independence of the client's lawyer, it was necessary to consider whether all the elements of s.118 applied to an in house government lawyer in the absence of evidence as to the lawyer's independence.
With reference to Commonwealth v Vance (2006) 158 ACTR 47, the Tribunal considered that without evidence of independence, it may not be possible to find that the communication was confidential (i.e. that the lawyer was under an express or implied obligation not to disclose) or that the advice was legal advice.
The Tribunal was not prepared to infer independence without evidence to that effect. Accordingly the Tribunal could not be satisfied that when the communication was made the lawyer was under an express or implied obligation not to disclose its contents, or that the school principal was under such an obligation.
Further, the Tribunal was not persuaded that the communication was made for the dominant purpose of providing legal advice to the DEC.
The Tribunal set aside the DEC's decision to refuse access and substituted a decision to allow access to the redacted portion of the diary note.
With this decision in mind (and others previous), agencies will increasingly need to turn their minds to leading evidence on independence when making claims of client legal privilege under the Act.
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In the media
ICAC bid against Margaret Cunneen fails
CROWN prosecutor Margaret Cunneen will not be charged over
allegations raised by the ICAC, the Attorney-General has been
advised. The corruption watchdog had referred evidence to the NSW
Director of Public Prosecutions after its inquiry was aborted by
the High Court, which found the watchdog was acting outside its
statutory powers (24 July 2015).
More...
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Acting Australian Information Commissioner
appointed
On 31 July 2015, Professor John McMillan AO, will formally
resign as Australian Information Commissioner to take up his new
role as Acting NSW Ombudsman. Professor McMillan will be
taking leave from 20 July and Timothy Pilgrim will be acting
Australian Information Commissioner from this time (15 July
2015).
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In practice and courts
ICAC: Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public
Prosecutions, and outcomes of ICAC-related prosecutions, updated 21
July 2015 (21 July 2015).
More...
JUDCOM: Sentencing Bench Book: Release 31
The benchbook with latest cases, released on 24 July
2015.
More...
NSW Parliament: in Committees July 2015
Upcoming hearings
Local government in New South Wales, #1 (Mon 27).
Inquiries receiving submissions
Inquiry into the Regulation of Brothels, closes 19 August.
Inquiry into the 2015 NSW state election , closes 24 August.
Inquiry into Remedies for the serious invasion of privacy in New South Wales, closes 4 September.
Inquiry into Reparations for the Stolen Generations in New South Wales, closes 27 September.
Government responses
Loose fill asbestos insulation (response received) (Wed 15).
COAT NSW Annual Conference
Friday 28 August 2015 - Amora Hotel Jamison Sydney, to
cover improving your ability to question witnesses.
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Published – articles, papers, reports
Brothel regulation in NSW: NSW Parliamentary Research
Service,
The question of how to effectively regulate brothels has led to
considerable divergence in regulatory models used in both
Australian and overseas jurisdictions. The most decriminalised of
all Australian jurisdictions, NSW relies primarily on planning laws
to regulate brothels (July 2015).
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Cases
Field v Commissioner of Police, New South Wales
Police Force [2015] NSWCATAD 153
GOVERNMENT INFORMATION – access application –
CCTV footage –personal information – health information
-- public place –prior restraint.
More...
Gold and Copper Resources Pty Ltd v The Hon. Chris
Hartcher MP, Minister for Resources and Energy
[2015] NSWLEC 116
JUDICIAL REVIEW – validity of mining leases –
mining leases sought and granted for mining purposes only –
applications for exploration licences pending when mining lease
applications were made – no consent to mining leases by
applicant for exploration licences – whether consent required
– mining lease applications not accompanied by 'required
information' – whether failure to provide that
information engages the deemed refusal provision of cl 76(9)
of the Mining Regulation 2010 – whether the grant of mining
leases was manifestly unreasonable – Mining Act 1992
(NSW), ss 51(4) and (5); s 58(1)(c)(i).
More...
Khashashneh v Travel Compensation Fund
[2015] NSWCATAP 142
PROCEDURAL FAIRNESS – duty to provide a fair
hearing – apprehended bias – denial of reasonable
opportunity to present case – APPEAL - re-consideration of
merits of application for compensation from Travel Compensation
Fun.
More...
CCB v Department of Education and
Communities [2015] NSWCATAD 145
Non-publication order – Whether desirable to make
order in circumstances where child's identity would otherwise
be revealed in connection with an allegation of violence Government
information – Identity of applicant when application claimed
to be made on behalf of nine year old boy – Application to
respondent for access to information not expressed to be made on
behalf of child - Whether child has capacity – Whether child
is person aggrieved Government information – Scope of
application – Whether scope of application determined by
scope of application to agency or by internal review application
– Whether applicant applied to review the implicit decision
made by the agency that it did not hold any information sought,
other than that contained in the documents it identified in its
decision Government information – Client legal privilege
– In-house government lawyer – No evidence of
lawyer's independence – Whether evidence of independence
necessary to successfully claim privilege – Whether
respondent has established that advice provided was legal advice
Government information – Personal information – Whether
request for de-identified information changes character of personal
information – Whether information has been publicly revealed
– Whether disclosure could reasonably be expected to breach
information protection principle or health privacy principle.
More...
Boris Reznitsky v District Court of New South Wales
& State of New South Wales [2015] NSWCA
194
Administrative law – judicial review – costs
assessment – appeal to District Court – whether primary
judge denied applicant procedural
fairness – whether primary judge failed to take
relevant consideration into account – whether
primary judge made decision contrary to the evidence.
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Legislation
NSW
Regulations and other miscellaneous instruments
Civil Procedure Amendment (Fees) Regulation 2015 (2015-389) — published LW 17 July 2015
Crimes (Administration of Sentences) Amendment (Smoke-free Prisons) Regulation 2015 (2015-390) — published LW 17 July 2015
Criminal Procedure Amendment (Fees) Regulation 2015 (2015-386) — published LW 17 July 2015
Dust Diseases Tribunal Amendment (Fees) Regulation 2015 (2015-387) — published LW 17 July 2015
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