Express law No. 10

20 September 2004

Limitations of legal professional privilege to communications
of in-house Defence lawyers

Claims of legal professional
privilege (LPP) for communications by lawyers serving in
the Australian Defence Force (ADF),
or employed in the Department of Defence, to their Defence
clients failed because, on the facts, the working environment
in which the communications were made was not that of a
professional relationship between lawyer and client necessary
for the attraction of LPP.

Supporting this position is the
fact that these lawyers, in the absence of a statutory
right to practise, do not
generally hold practising certificates. On the other hand,
communications with counsel at the private bar, who also
happened to be Defence Reservists, did attract LPP.

Vance
v Air Marshal McCormack in his capacity as Chief of the
Air Force and the Commonwealth

Supreme Court of the Australian
Capital Territory, 2 September 2004, Crispin J, [2004]
ACTSC 78 and [2004] ACTSC 85

On 8 September 2004, Crispin
J ordered that the judgment be recalled and certain portions
of its reasons be amended
(see [2004] ACTSC 85).

Also, Air Marshal McCormack and
the Commonwealth have since filed an application for leave
to appeal against Crispin
J's decision of 2 September. What is said in this
note is subject to the outcome of any appeal, if leave
is granted.

Background

The plaintiff had been a serving officer of
the RAAF. He instituted a claim for damages and other relief
against
the Chief of the Air Force and the Commonwealth for what
he alleges was unlawful termination of his employment in
the RAAF in August 1998.

He alleges, in essence, that the
termination, although purportedly made on medical grounds,
was motivated by a
desire to remove him from the RAAF, on account of allegations
in a report of a board of inquiry into his performance
of duties whilst an officer in charge of an overseas RAAF
base. Alternatively, the plaintiff alleges that the Commonwealth
was negligent in terminating his employment when it knew,
or ought to have known, that the recommendation to take
that step had not in fact been based upon medical grounds
and, or, that the Commonwealth failed to make enquiries
that would have revealed that fact.

LPP claim

On discovery, the defendants opposed production
for inspection of a number of documents on the ground of
LPP.

The LPP claim involved communications with:

  • lawyers who were part of the then Defence Legal Office,
    essentially the in-house lawyers of the Department
    of Defence; and
  • lawyers who were Reserve
    officers.

Categories of lawyer involved

The Defence Legal Office
comprised lawyers, generically referred to as Defence Legal
Officers (DLOs), who were
either serving in the ADF (military DLOs) or civilians
employed in the Department of Defence (civilian DLOs).
The Defence Legal Office also drew upon the services
of legal officers of the Reserve components of the Navy,
Army
and Air Force, many of whom were members of the private
bar (these being referred to here as Reserve officers).

The
military DLOs apparently did not have practising certificates,
and had no statutory right to practise.
According to the
evidence, they were expected to provide advice independently
of any influence from superior officers, but were employed
within an authoritarian structure in which obedience
could be enforced by penal sanctions.

The civilian DLOs
apparently, like the military DLOs, did not hold practising
certificates, and had no statutory
right to practise. (There was in fact only one civilian
DLO whose communications were involved.) They were not
open to prosecution for disobedience to superior orders.

The Reserve officers, Mr Hilton SC and Dr Renwick, were
both in private practice at the Sydney Bar, holding practising
certificates in that capacity. They had been briefed
to carry out what they later described as an 'independent'
review of the board of inquiry into the plaintiff's performance
of duties. (There were actually two other Reserve officers
from the private bar involved as well, though no mention
is made of them in the judgment.)

Documents covered by
the LPP claim

The documents in dispute essentially comprised:

  • the 'Hilton documents' – most of which consisted
    of communications between Mr Hilton SC and Dr Renwick
    (as Reserve officers), on the one hand, and military and
    civilian
    DLOs, on the other, in relation to advice given regarding
    the termination of the plaintiff's employment
    and the drafting of a termination notice; and
  • the 'DLO documents' – which consisted of communications
    with the military and civilian DLOs in connection
    with requests for, or the provision of, legal advice.

Decision
of Crispin J

Crispin J upheld the claim to LPP in relation
to the 'Hilton documents', but not the DLO documents. Only
the advice
of the Reserve Officers, Mr Hilton SC and Dr Renwick,
attracted LPP. The advice given by the military DLOs
or the civilian
DLO, on the other hand, among other things, lacked
the necessary independence for LPP to apply to their
advice.

Practising certificates

Crispin J noted statutory provisions
which conferred a limited right to practise on government
lawyers employed
by particular agencies. Sections 55E and 55Q of the
Judiciary Act 1903 were cited as examples of these.

Crispin
J rejected the suggestion that s 123 of the Defence
Act 1903 was such a provision. (Section 123
provides
that a member of the Defence Force is not bound by
any law of
a State or Territory that would require the member
to have permission, whether in the form of a licence
or
otherwise,
to do anything in the course of his or her duties as
a member of the Defence Force.) Crispin J saw s 123
as only
conferring an exemption from the need to obtain certain
permissions, not the professional standing necessary
to undertake professional practice.

Citing from earlier
decisions, Crispin J said that being:

  • qualified to practise law;
  • subject
    to the duty to observe professional standards; and
  • liable to professional discipline

were necessary requirements
for LPP to apply. He said (at para 36):

It is difficult
to see how these requirements could be regarded as having
been satisfied by legal advisers
who
did not hold practising certificates or, perhaps,
worked under the supervision of others with practising
certificates,
unless they enjoyed a statutory right to practise
such as that provided by s 55E or 55Q of the Judiciary
Act.
In the latter case the legislature might reasonably
be taken to have been satisfied that the circumstances
of
employment for those legal advisers would provide
alternative means of ensuring that they maintain
due professional
standards, keep abreast of developments in professional
ethics and
enjoy the necessary independence in the provision
of legal advice.

Crispin J considered that, while
LPP may arise even when the lawyers providing the relevant
advice are
employed
by government bodies (e.g., see Waterford v Commonwealth (1987) 163 CLR 54), it is nonetheless rooted in the
relationship of legal practitioner and client, rather
than the relationship
of legally qualified employee and employer, and that
it is justified by the public interest in 'facilitating
the representation' of the clients.

Crispin J emphasised
that the requirements for practising certificates
are not 'mere formalities', but are
an important part of the legislative scheme for the
regulation
of
the legal profession. He said (at para 47):

In my
opinion, [LPP] arises to protect the confidentiality of
communications with a legal adviser only when
he or she has an actual right to practise and not
merely
when
he or she has been admitted and joined the ADF, even
if permitted to carry out ADF legal duties without
holding a practising certificate by s 123 of the
Defence Act.
If
for this reason alone, the present claim to privilege
must fail, at least in relation to communications
with military
or civilian DLOs who did not hold practising certificates
and were not stationed at the relevant times in Queensland
or Western Australia [the legislation of which States
confers a limited right of practise on government
lawyers generally].

Independence

Crispin J turned his attention to the broader
issue of independence in the relationship between lawyer
and client.
He referred to the decision of the High Court in
Grant v Downs (1976) 135 CLR 674, as showing that
the legal
onus of proving the facts necessary to support LPP
rests upon
the party seeking to maintain a claim of LPP. He
said that, once the issue of entitlement to the claim
has
been properly
raised by sworn evidence (from the party challenging
the claim):

the claim must be rejected unless the
party seeking to maintain it is able to prove that the
communication
arose
from a relationship of lawyer and client attended
by the necessary independence. (see para 53)

In looking
at the situation of military DLOs, Crispin J referred to
seven factors, identified by the plaintiff's
counsel, which militated against them enjoying the
necessary independence. These were:

  • they did not have practising certificates and, unlike
    lawyers employed in some other government bodies, did
    not enjoy a statutory right to practise;
  • the evidence did not establish that their independence
    was protected by Attorneys-General and buttressed
    by laws relating to the public service and, or, other
    more specific
    legislation;
  • they are clearly
    employed within an authoritarian structure in which
    obedience may be enforced by penal sanctions;
  • many DLOs would be under the command of superior officers
    who were not legally qualified and could not
    be expected to have a full appreciation of the ethical
    and professional
    standards which practising lawyers are expected
    to maintain or of the need for their subordinates to
    maintain
    their
    own independent judgment;
  • there
    was no requirement for DLOs to be members of a Law
    Society or a Bar Association, no requirement that
    they keep abreast of developments in ethical rules
    or professional standards and no provision for peer review
    of their
    ethical
    standards;
  • the professional
    standards of DLOs could not be enforced to the same
    extent by disciplinary proceedings and
    sanctions; and
  • there was at least
    some evidence suggestive of an ADF culture within
    which DLOs clearly lacked the requisite independence.

These
factors, to the extent they were relevant to the position
of the Reserve officers and civilian
DLOs, would
also seem to have applied to an assessment of
whether they too enjoyed the necessary independence.

Findings

In relation to the Reserve officers, Mr Hilton
SC and Dr Renwick, Crispin J found that their
role manifested
the
necessary independence. He said (at para
93):

The officers in question presumably held
practising certificates and their duties
would have required
them to have been
involved in the ADF culture on only a part-time
basis. Furthermore, they maintained practices
at the private
bar and were apparently retained to advise
as counsel. In these
circumstances and in the absence of any
real evidence to the contrary I think that the
requisite independence
should
be presumed.

On the other hand, Crispin
J held, having regard to the seven factors listed above,
there could
be no presumption
that that the military DLOs had this
independence.

Similarly with the civilian DLO, independence
could not be presumed. He did not have
a right to practise
(such
as existed under s 55Q of the Judiciary
Act for AGS lawyers) and apparently
had no practising
certificate.

Text of the decision is
available at:
http://www.courts.act.gov.au/supreme/judgments/vance1.htm

This
is to be read in conjunction with the order of Crispin
J of 8 September
2004 which
made certain
amendments
to
the original judgment: see link: http://www.courts.act.gov.au/supreme/judgments/vance2.htm

For
further information on LPP, see AGS Legal Briefing No.
65
entitled Legal
Professional Privilege and
the Government dated 2 October
2002.

For further information
please contact:

Geetha Nair
Senior Executive Lawyer
T 02 6253 7422 F 02 6253 7383
geetha.nair@ags.gov.au

Important: The material in Express law is
provided as an early, interim view for general information
only and further analysis on the matter may be prepared
by AGS. The material should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this message.