Section 32 – Document or information subject to legal professional privilege

Section 32 of the Freedom of Information Act 1982 (Vic) (the Act) exempts documents subject to legal privilege.

This Practice Note sets out the exemption, summarises the steps to take when applying it, and then discusses each element in detail. All legislative references are to the Act unless otherwise stated.

THE EXEMPTION

Section 32(1) exempts documents that would be privileged from production in legal proceedings on the grounds of either legal professional privilege (LPP) or client legal privilege (CLP).

Both LLP and CLP protect confidential communications between a lawyer and their client, to allow them to speak freely. The principles of LPP are found in common law, whereas CLP is codified in sections 118 and 119 of the Evidence Act 2008 (Vic) (Evidence Act). Consequently, CLP applies to evidence in Victorian Court proceedings,¹ whereas LPP applies in all other contexts (for example, in tribunals that do not apply the rules of evidence, or in response to the exercise of statutory powers requiring the production of documents). Nevertheless, where CLP applies, it overrides LPP to the extent of any inconsistency.²

To apply section 32(1) it is unnecessary to distinguish between LPP and CLP.³ In this Practice Note ‘legal privilege’ includes both LPP and CLP as well as advice and litigation privilege.

ADVICE PRIVILEGE AND LITIGATION PRIVILEGE

While it is not necessary to distinguish between LPP and CLP, both LLP and CLP have two streams:

confidential communications providing legal advice (advice privilege); and
confidential communications in relation to current or anticipated litigation (litigation privilege).

To apply section 32(1), an agency need only establish either advice privilege or litigation privilege. Nevertheless, an agency must be clear about which stream of legal privilege it relies on, and ensure each element is met.

Advice privilege

A document or information attracts advice privilege, and is exempt under section 32(1) if it would disclose:

a confidential communication between a client (or their agent) and their lawyer that was made for the dominant purpose of obtaining or providing legal advice; or
a confidential communication between two or more lawyers acting for their client that was made for the dominant purpose of obtaining or providing legal advice; or
the contents of a confidential document (whether delivered or not) prepared by a client, their lawyer or another person for the dominant purpose of obtaining or providing legal advice.

Litigation privilege

A document or information will attract litigation privilege, and is exempt under section 32(1) if it would disclose:

a confidential communication between the client and another person, or between a lawyer acting for the client and another person; or
the contents of a confidential document (whether delivered or not);

made or prepared for the dominant purpose of the client being provided with legal services about a current, anticipated or pending legal proceeding, where the client is or may be a party.

APPLYING THE EXEMPTION – A SUMMARY

To decide if information is exempt under section 32(1), an agency should apply one of the two streams.

Advice privilege

Identify the exempt communication or document, then identify the parties that created or received it.
Based on the identified parties, establish if:
1. A communication occurred between a client (or their agent) and their lawyer; or
2. A communication occurred between two or more lawyers acting for a client; or
3. A document was prepared by the client, their lawyer or another person.
Establish that the ‘dominant purpose’ for the communication being made or the document’s creation was for obtaining or providing legal advice.
Establish that the communication or document was intended to be, and remains, confidential.
Ensure the privilege has not been waived by either express or implied conduct of the client.
If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Litigation privilege

Identify the exempt communication or document, then identify the parties that created or received it.
Establish one of the following:
1. The communication occurred between the client and another person; or
2. The communication occurred between a lawyer acting for the client and another person; or
3. The document was prepared for the client.
Establish that the ‘dominant purpose’ for the communication or document is in relation to current, anticipated or pending litigation involving the client.
Establish that the communication or document was intended to be, and remains, confidential.
Ensure the privilege has not been waived by either express or implied conduct of the client.
If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

CONSIDERING EACH ELEMENT

The definitions in section 117 of the Evidence Act and case law provide guidance on each element of legal privilege.

An agency must be able to establish each element of advice privilege or litigation privilege (summarised above) to exempt a document or information under section 32(1).

Who is the client?

Section 117 of the Evidence Act defines ‘Client’ as including:

a person or body who engages a lawyer to provide legal services or who employs a lawyer
(including under a contract of service);
an employee or agent of a client; or
an employer of a lawyer if the employer is:
- the Commonwealth or a State or Territory; or
- a body established by a law of the Commonwealth or a State or Territory.

Who is the lawyer?

Section 117 of the Evidence Act defines a ‘lawyer’ as:

an Australian lawyer (as defined and licenced under the Legal Profession Uniform Law); and
a non-participant registered foreign lawyer; and
a foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and
an employee or agent of a lawyer referred to above.

Is there a confidential communication?

Section 117 of the Evidence Act defines a ‘confidential communication’ as a communication made in such circumstances that, when it was made:

the person who made it; or
the person to whom it was made:

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

Is there a confidential document?

Section 117 of the Evidence Act defines a ‘confidential document’ as a document where, when it was prepared:

the person who prepared it; or
the person for whom it was prepared:

was under an express or implied obligation not to disclose its contents.

What was the dominant purpose?

Identifying the ‘dominant purpose’ of a communication is an objective test determined by looking at the primary or substantial reason for the communication. In doing so, the starting point is to identify the intended use or uses of the document when it was brought into existence.⁴

Where there are mixed purposes, the paramount purpose of the communication is used.⁵

SOME KEY CONCEPTS

Key concepts about legal privilege were summarised by the Federal Court of Australia: ⁶

The purpose (why) a document is brought into existence is an objective question of fact – The intention of the author or the person who authorised the document is not conclusive.It is also necessary to consider the intentions of other persons involved in deciding to create and use the document.
Legal advice is broadly defined – It includes advice about what a client should do in the legal context, but it does not extend to advice that is purely commercial or of a public relations character.
Legal privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies, whether or not they are actually provided to the client.
Legal privilege extends to documents prepared by officers/employees of the client used to help the client’s lawyer to give advice, as long as that is the dominant purpose for creating the document. For example, chronologies that set out relevant facts and evidence.
Legal privilege can apply to documents that are not actually given to a lawyer including drafts, as long as they were created for the dominant purpose of communicating with the lawyer.
Legal privilege can apply to advice from in-house, salaried, lawyers. However, the communications must be in confidence and given as professional advice in a lawyer/client relationship.

LOSS OR WAIVER OF PRIVILEGE

Legal privilege can be lost or ‘waived’ where the client acts inconsistently with the confidentiality of legal privilege, for example, by disclosing the advice to outside parties.⁷ Privilege can be either expressly waived, or waiver can be implied from the circumstances.

Waiver of privilege by express words or conduct will generally be clear, for example, a client (the agency) intentionally disclosing the substance of advice to the media.

Implied waiver is more difficult to determine. Waiver can be implied where client acts inconsistently with the confidentiality required for legal privilege. Wavier can be unintended. For example, legal privilege is waived if an agency publishes an extract, or summary, of the advice on its website or forum outside of the agency.

The fine balance in implied wavier is demonstrated in Mann v Carnell⁸ where the High Court found disclosing of the substance of the legal advice for the purposes of ‘explaining and justifying’ the actions of a member of Parliament did not waive legal privilege but disclosing of the substance of the legal advice for a ‘forensic or commercial purposes’ did waive legal privilege.

PRIVILEGED COPIES

When copies of documents are attached to a request for legal advice, those attached document copies become privileged if the dominant purpose for which the copies were created was to seek legal advice. This is the case even if the original documents were not privileged.⁹

The original documents (as opposed to the copies attached to a request for legal advice) are not exempt under section 32(1) and may still be disclosed under the Act if they are not otherwise exempt.

For example, an agency creates a file note on their content management system of an incident, and subsequently sends a copy of the file note to their in-house lawyer for legal advice on the incident. The file note on the content management system does not attract legal privilege, however, the copy sent to the in-house lawyer will attract legal privilege.

MATERIAL UNLIKELY TO BE PRIVILEGED

Common examples of communications that do not ordinarily attract legal privilege include:

invoices merely showing the cost and not the substance of legal advice provided to an agency; note that in some instances, invoices can be edited to remove the detail of the services provided so that any privileged information is removed;
a letter from a client’s lawyer to another person, not being the client or agent;
witness statements or other investigative material, created for an agency’s routine administrative purposes, irrespective of possible future legal proceedings;
information that merely describes the topic that is the subject of legal advice, but does not disclose the advice itself;
documents to or from an agency’s lawyer that do not involve a request for legal advice or the response;
documents involving an agency’s lawyer that are of an administrative nature;

EXCEPTION IN SECTION 32(2)

Section 32(2) notes a document of the kind referred to in section 8(1) is not exempt under section 32(1) solely because it includes matter that is used or to be used for the purpose of making decisions or recommendations referred to in section 8(1).

Section 8(1) lists certain categories of documents that must be available for inspection and purchase by the agency. In particular, section 8(1) notes the following must be available – manuals, policies, records of decisions, letters of advice to persons outside the agency or guidance material used by the agency in making decisions or recommendations, interpreting legislation, and enforcing legislation or schemes.

Disclaimer: The information on this page is general in nature and does not constitute legal advice.

Version: June 2020 – D20/427

Including the Supreme Court, any other court created by Parliament and any person or body that exercises a function under a State law and is required to apply the laws of evidence: see section 3 and Schedule 2 of the Evidence Act for definitions of ‘court’ and ‘Victorian court’.
See section 9 of the Evidence Act 2008 (Vic).
This approach is also adopted by the Victorian Civil and Administrative Tribunal (VCAT). See for example, Coulson v Department of Premier and Cabinet [2018] VCAT 229.
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [44(6)].
Martin v Melbourne Health (Review and Regulation) [2019] VCAT 1190 at [35].
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [44].
Sections 121 to 126 in the Evidence Act deal with different circumstances in which CLP may be lost.
Mann v Carnell (1999) 201 CLR 1.
Frugtniet v Legal Services Board [2014] VCAT 1299; Birrell v Department of State and Regional Development and Department of Premier and Cabinet [2001] VCAT 50.