BRR: We are joined by Elena Arduca. She is a Senior Executive Lawyer in the Dispute Resolution group at the Australian Government Solicitor and she is located in Melbourne. Elena, a warm welcome to Boardroom Radio.
EA: Thank you.
BRR: Now Elena, generally government agencies do not have to release legal advice to the public when a freedom of information application is made, unless they’ve done something to waive the privilege to keep that advice private. What actions by a government agency might force them to release supposedly confidential legal advice?
EA: Well, the general rule is that confidentiality or privilege will be waived if a person intentionally discloses a confidential communication, for example if they file and serve an affidavit in a proceeding. The other way that waiver may occur is where a person engages in conduct that is inconsistent with the maintenance of the confidentiality. An example of acting inconsistently, which is otherwise known as implied waiver, can occur when the content of the legal advice is put into issue in legal proceedings or is relied on to support or indicate a position in the proceedings.
BRR: Would reference to legal advice or partial disclosure of what the advice contains constitute a waiver?
EA: Well, whether privilege has been waived will always depend on the facts and the circumstances of each case. Generally the mere reference to legal advice won't result in waiver of the privilege in the whole of the advice – particularly where the documents simply state that regards – that we have had legal advice. In some cases reference is made to a bit more than just the fact that legal advice has been taken, and include references made to the substance of the legal advice or the conclusion that was reached in the legal advice. Whether or not waiver will occur will depend on the way those references have been made and the reasons for making that disclosure. For example, where the substance of the legal advice is disclosed for the purposes of assuring the public that due process has been followed, that's unlikely to waive privilege. On the other hand, waiver may result if the partial disclosure of the legal advice is made in the context of litigation or where the advice or part of the advice is included in a evidential sense – and what I mean by that is where if used or referred to or relied on for the purposes of advancing your position, say for example either in legal proceedings or as part of a decision-making process. In those circumstances, particularly if there is some basis for finding that the partial disclosure of the legal advice in a legal proceeding might either mislead a party or cause some sort of detriment to that party, then it is most likely that waiver will have occurred.
BRR: And just finally Elena, what are your top tips for the public service sector to ensure that confidential advice remains confidential?
EA: Well, the most important thing is to ensure that you have in place within your agency proper processes for the dissemination of legal advices. So, for example, where you do need to send legal advice to the organisation or to a part of the organisation, caveats ought to be placed on the legal advice stating that it is subject to legal professional privilege and is confidential and that it should not be disseminated outside the organisation. If, for example, you are sending advice or including legal advice in an email, you should make sure that the email includes a disclaimer stating that the information is confidential or legally privileged, so that the recipient of the advice understands the nature of the email.
BRR: Some good tips for the public service sector there. Once again, thank you for joining us on Boardroom Radio.
EA: Thank you.
BRR: That was Elena Arduca. She is a Senior Executive Lawyer in the Dispute Resolution group at the Australian Government Solicitor.