Federal Court. Does Waterford apply to legal advice sought to be covered by a s 438 certificate? Does s 418 expressly or by necessary implication abrogate legal professional privilege (LPP)? Did s 418(3) require the Secretary to provide to the Tribunal documents attracting legal professional privilege? Should a waiver of LPP be imputed to the Minister here? Was the fact that the Secretary considered the documents containing legal advice relevant to the review determinative of the question whether they were relevant pursuant to s 418(3)?
The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the Appellant a protection visa. On the basis of a jurisdictional error, Judge Street of the Federal Circuit Court (FCCA) then remitted the application to the Tribunal for determination according to law. Following remittal, a delegate placed a non-disclosure certificate on the Department’s file pursuant to s 438(1) of the Migration Act 1958 (Cth) in relation to certain documents, in the belief that s 418(3) required the Secretary to provide to the Tribunal documents attracting legal professional privilege. The Tribunal (differently constituted) then affirmed the delegate's decision again.
The Appellant applied to the FCCA for judicial review again, which dismissed that application held as follows at [33]:
… On the basis of my examination of those documents I am satisfied they all record communications that refer or relate to legal advice concerning the judgment of Judge Street or the orders his Honour made; the communications are confidential; and they pass between a lawyer employed by the Department, and an officer or officers of the Department. From these findings I further find that the communications recorded in the documents were made for the dominant purpose of the giving of legal advice to a delegate of the Minister for the purpose of the delegate exercising his powers under the Act in relation to the applicant, having regard to the orders Judge Street made. I am satisfied, therefore, that each of the 438 Documents is subject to legal professional privilege to which, at the time the documents were created, the Minister was entitled.
The Appellant eventually appealed the latest FCCA decision to the Federal Court (FCA), which held as follows:
20. ... In my opinion they are documents recording confidential communications that were made for the dominant purpose of obtaining and providing professional legal advice to the Minister and officers of the Department in relation to the judgment of Judge Street.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: According to the FCA, there was a "requirement that the relationship between a lawyer who works “in-house” and his or her employer “must be a professional relationship which secures to the advice an independent character notwithstanding the employment”: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 62 per Mason and Wilson JJ. Brennan J (at 70) reasoned that since the purpose of legal professional privilege is to facilitate the seeking and giving of advice and to ensure that the law is applied, and litigation is properly conducted, professional detachment was required in both giving advice and conducting litigation". Here, the content of the documents covered by the certificate contained legal advice provided by Senior Legal Officers working in the Legal Division of the Department to other members of the Department. Did the requirement discussed in Waterford apply to the advice sought to be covered by the s 438 certificate?
Question 2: Was the fact that the legal advice was provided by Senior Legal Officers working in the Legal Division of the Department to other members of the Department sufficient to establish that those Senior Legal Officers were "not acting independently or that they lacked the professional detachment necessary to give legal advice capable of attracting legal professional privilege"?
Question 3: Section 418(3) provided: "The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision". Does s 418 expressly or by necessary implication abrogate legal professional privilege?
Question 4: Did s 418(3) require the Secretary to provide to the Tribunal documents attracting legal professional privilege?
Question 5: In circumstances where "the Minister, by his Delegate, was aware that the Secretary would provide or had already provided the s 438 documents to the Tribunal", should it be inferred that "the Secretary was either authorised by the Minister through his Delegate to forward the s 438 documents to the Tribunal if the Secretary considered that he or she was required to do so or the Secretary’s actions in forwarding the documents to the Tribunal were subsequently ratified by the Minister’s Delegate"?
Question 6: If the answer to Question 5 is "yes", is that "the same as saying that the Secretary was authorised to waive the Minister’s legal professional privilege in the s 438 documents"?
Question 7: Should a waiver of legal professional privilege be imputed to the Minister in this case?
Question 8: Was the fact that the Secretary considered the documents containing legal advice relevant to the review determinative of the question whether they were relevant pursuant to s 418(3)?
Question 9: Should the following submissions by the Appellant to the FCA be accepted: the documents containing legal advice were "said by the Tribunal to relate to the legality of the very judgement which was the animating authority for the review, namely the Court’s order to the Tribunal for mandamus and to conduct the review according to law. Any issue of the legality of the court’s decision remitting the matter must necessarily be relevant to the Tribunal’s view of its obligation under those orders which are inextricably entwined with its task pursuant to orders of the court"?
The FCA answered those questions as follows: