Waiver of legal professional privilege

The following is a follow-up article on a recent Crown Law publication on legal professional privilege (LPP) and in-house government lawyers.

This article aims to provide practical assistance on the complicated topic of waiver of LPP.

Legal professional privilege is a common law right

A common law right attaches to confidential communications between a lawyer and client and protects such communications from disclosure. See: Baker v Campbell (1983) 153 CLR 52, 85. It is also well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. See: Daniels Corporation International Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 553 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

Who can claim LPP?

LPP belongs to the client. If you work in a Queensland Government department or agency, the client is the State of Queensland. This means if a confidential legal advice is provided to a department, then the Director-General is not the ‘holder’ of the LPP. The State holds or owns the LPP.

Waiver of LPP

Only the client may claim and waive privilege.

Privilege may be waived expressly or impliedly (that is, unintentional or inadvertent waiver). Only the Attorney-General can expressly waive privilege on behalf of the State. Examples of unintentional waiver and some suggestions to protect the LPP include –

1. Sharing a legal advice broadly, without safeguards to maintain its confidential character, may result in a court deciding that the privilege has been waived. To ensure LPP is not lost, any disclosure should provide for confidential use, storage and return or destruction of the legal advice. It should be made clear that a person is given access to the advice because of the work they are performing for the State;
2. Disclosure of legal advice should be limited to those who need to see it. It is more difficult to establish the confidential nature of legal advice if it has been broadly distributed in a department and where there are no proper procedures in place to ensure the document is not distributed or communicated outside the department;
3. Avoid paraphrasing or summarising legal advice in another document such as a briefing note;
4. Attach a copy of a legal advice to a briefing note or other document rather than summarising its contents in the briefing note/document;
5. Legal advice should be kept secure;
6. Those persons who are provided with a copy of legal advice should be instructed that they must not disclose it to anyone else without the approval of the department’s Legal Services Branch;
7. The privilege may be lost where the ‘substance’ of legal advice is disclosed to another person. For example, if a departmental officer informed a former member of staff who had lodged an unfair dismissal application in the Queensland Industrial Relations Commission that the department had received ‘legal advice to the effect that you were not a departmental employee’, then this could amount to an unintentional waiver of the privilege in the legal advice.

A recent topical example where implied waiver of LPP occurred is Loielo v Giles [2020] VSC 619. This involved a challenge by a Victorian restaurant owner to a ‘stay at home’ health direction due to COVID-19:

• The restaurant owner, Ms Michelle Loielo, challenged the Stay at Home (Restricted Areas) Directions (No 15) (Vic);
• Ms Loielo sought orders under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’);
• The relevant issue for consideration by the court was ‘to what extent did the Deputy Public Health Commander, Associate Professor Giles, take into account human rights under the Charter when making the Directions’? Section 38(1) of the Charter makes it unlawful for a public authority, in making a decision, to fail to give proper consideration to a relevant human right.
• Ms Loielo sought to inspect documents held by Associate Professor Giles;
• Lawyers for Associate Professor Giles claimed privilege over some of the documents;
• One document was a legal advice from the department’s Director of Legal Services concerning Professor Giles’ obligations under s 38 of the Charter;
• Associate Professor Giles’ affidavit contained the human rights considerations relevant to her decision to make the Directions, including some relevant contents of the legal advice;
• Associate Professor Giles’ affidavit stated that she considered the 11 individual assessments by the Legal Services Branch that each of the directions (i.e. the 11 draft public health directions) were likely to be compatible with the Charter;
• The court considered that Associate Professor Giles’ affidavit may be taken as her statement of reasons;
• Ginnane J held that privilege in the legal advice had been waived as:
  • in stating the subject of the assessments on the basis of the legal advice obtained, Associate Professor Giles had acted in a way that was inconsistent with objecting to the adducing of evidence of those legal assessments or advices;
  • the legal advices had influenced her ‘state of mind’ about the making of the Directions; and
  • the substance of the legal advice had been disclosed;
• Ms Loielo was therefore entitled to inspect an unredacted copy of the legal advice.

Under s 58(1) of the Human Rights Act 2019, Queensland government employees must give proper consideration to human rights when making a decision. Loielo v Giles demonstrates that legal advice provided to a decision-maker on human rights compatibility will often be privileged. Where this advice is provided as part of a decision maker’s statement of reasons as evidence to satisfy this procedural requirement, inadvertent waiver may result.

Role of Attorney-General

Only the Attorney-General can waive LPP on behalf of the State of Queensland.

The State may have an interest in waiving privilege, for example, to explain the basis for a government decision.

The following are some relevant factors which tend against approving waiver –

1. Whether there is a risk the legitimate interests of the State may be harmed by the waiver, for example, if waiver would impede the ability of the State to defend possible legal action;
2. Whether waiver would expose matters which are ‘commercial in confidence’;
3. Whether waiver might create an expectation in the future that other legal advices will be released;
4. Whether waiver might disclose confidential Cabinet decisions.

Relevant factors which may tend towards the approval of waiver include –

1. Whether waiver might advance a legitimate interest of the State in relation to a particular issue;
2. Whether advice is old and its release would not have adverse consequences for the State;
3. Whether it is possible to release the advice in such a way that confidentiality can be preserved by conditions attached to its release.

If your department/government agency requests waiver of LPP by the Attorney-General, please include a statement in the request to confirm that your minister agrees with the request for waiver.

If you have any queries arising from this article, please contact Public Law, Deputy Crown Solicitor Karen Watson on 3031 5810 or at karen.watson@crownlaw.qld.gov.au. This article was prepared by Karen Watson and Lauren Causer of Crown Law.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}