Baker v. Campbell.
Members: Gibbs CJMason J
Murphy J
Wilson J
Brennan J
Deane J
Dawson J
Tribunal:
High Court of Australia
Deane J.
Mr. Robert O'Connor is a partner in a Perth firm of barristers and solicitors (``the firm''). His professional clients include the plaintiff who retained him to act as a solicitor to advise in relation to certain aspects of a scheme to minimize liability to tax under the Sales Tax Assessment Acts 1930 (Cth.). The firm holds a number of documents on the plaintiff's
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behalf. Those documents (``the documents'') were brought into existence for the purpose of obtaining or giving legal advice to the plaintiff otherwise than in relation to then existing or contemplated civil or criminal proceedings. They include opinions prepared for the tendering of advice to the plaintiff by Mr. O'Connor and by Victorian senior counsel. The stated case records that the firm ``holds no documents relating to any particular transaction entered into''.On 7 July 1982, the defendant, who is a member of the Federal Police, attempted to seize the documents from the firm. In so doing, he relied upon the terms of a ``Search Warrant'' issued in Perth over the hand of a stipendiary magistrate purportedly pursuant to sec. 10 of the Crimes Act 1914 (Cth.) (``the Act''). That warrant states that the magistrate, who was a justice of the peace for the purposes of sec. 10, was satisfied by information on oath that there were reasonable grounds for suspecting that there were in the firm's Perth premises ``things being the original or copies of: correspondence, prospectuses, notes, opinions of Counsel, contracts, agreements, and other documents and instruments all of which have been produced or held by, for, or in respect of'' the plaintiff ``and/or'' ten other named individuals and companies. The search warrant states that there were reasonable grounds for suspecting that the documents in question would afford evidence as to the commission of ``any'' offence against the Sales Tax legislation by the plaintiff and the other ``named persons jointly or severally'' and of offences against sec. 86(1)(b) and (e) of the Act by the plaintiff and the other ``named persons in any combination and with any other person or persons unknown''. It purported to authorize the defendant, with such assistance as he may think necessary, to enter the firm's premises at any time and to seize the said:
``correspondence, contracts, agreements, notes, opinions of counsel, and other documents and instruments as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence...''
The plaintiff asserts that the documents are protected from seizure under the search warrant for the reason that they are the subject of legal professional privilege which has not been lost by waiver or otherwise. The defendant asserts that he is entitled to seize all documents of the type described in the search warrant regardless of whether they are the subject of such privilege. The question asked by the stated case is whether, in the event that legal professional privilege attaches to and is maintained in repect of the documents held by the firm, those documents can property be made the subject of a search warrant issued under sec. 10 of the Act.
A person is obliged to disclose or yield his information or property only to the extent that he is compelled so to do by some applicable common law principle or statutory provision. Where no such compulsion exists, there is no need for any special privilege protecting particular types of information or property from disclosure or seizure. The ordinary entitlement to remain silent and to retain one's information or property only constitutes a special privilege where it is preserved as an exception in circumstances where disclosure or cession would otherwise be compelled. In the absence of any such general compulsion, that entitlement represents no more than the ordinary position of the ordinary citizen under the common law.
Until comparatively recent times, the main area in which the prima facie entitlement to silence and retention of information and documents had been significantly displaced was the arena of judicial proceedings. As the testimony of witnesses came to be a common source of proof in the Courts and testimonial compulsion and the compulsory production of documents became an accepted part of judicial proceedings, the occasion arose for the recognition of a special common law privilege exempting certain communications between a person and his legal advisers from the ordinary obligations to give evidence and to produce documents for inspection. This privilege, ordinarily described as legal professional privilege, protects a person from disclosure of oral or written confidential communications, between himself and his solicitor or barrister, made or brought into existence for the sole purpose of seeking or giving advice or for the sole purpose of use in existing or anticipated litigation (see
Grant
v.
Downs
(1976) 135 C.L.R. 674
at p. 688
;
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O'Reilly & Ors. v. Commr. of the State Bank of Victoria & Ors. 82 ATC 4671 at pp. 4680-4681; (1982) 57 A.L.J.R. 130 at p. 137 and, as to the absence of any requirement that advice be in the course of or anticipation of litigation,
Foster v. Hall (1831) 12 Pick. 39 at p. 98 ;
Greenough v. Gaskill (1833) 1 My. & K. 98 at p. 103; 39 E.R. 613 at p. 621 ; per Brett M.R. in
Pearce v. Foster (1885) 15 Q.B. 114 at p. 121 ). It is the privilege of the client and protects him from being compelled to make disclosure of such communications either in testimony or by the production of documents for inspection. It also protects him from such disclosure, in the absence of his consent, by his legal adviser. The privilege does not extend to protect communications which are in themselves part of a criminal or fraudulent proceeding or course of conduct or which constitute the whole or part of an actual dealing or transaction (see O'Reilly's case at ATC pp. 4682-4683; A.L.J.R. pp. 138-139). Nor does it extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production. The privilege may be lost by waiver and, arguably, by the content of the communication ceasing to be confidential (
Lloyd v. Mostyn (1842) 10 M. & W. 478 ; 152 E.R. 558 ,
Calcraft v. Guest (1898) 1 Q.B. 759 ; but cf.
Ashburton (Lord) v. Pape (1913) 2 Ch. 469 )
Much of the argument in the present case was directed to whether legal professional privilege is a mere rule of evidence restricted to judicial or quasi-judicial proceedings. In
O'Reilly's case, Mason
J. (at ATC pp. 4682-4683; A.L.J.R. pp. 138-139) and
Wilson
J. (at ATC p. 4687; A.L.J.R. p. 142), with whose judgments on the relevant questions the Chief Justice indicated his general agreement (at ATC p. 4675; A.L.J.R. p. 133), expressed a view that legal professional privilege was a rule of evidence which was restricted to such proceedings. Both quoted, with approval, the statement of
Diplock
L.J. in
Parry-Jones
v.
Law Society
(1969) 1 Ch. 1
at p. 9
that that ``privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a Court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence''. That statement of
Diplock
L.J. had been cited with approval in other cases in Australian Courts (see, e.g.,
Crowley
v.
Murphy
(1981) 52 F.L.R. 123
at pp. 127 and 145-149
;
Brayley
v.
Wilton
(1976) 2 N.S.W.L.R. 495
at p. 497
). On the other hand,
Murphy
J. dissented in
O'Reilly's case
(at ATC p. 4683; A.L.J.R. p. 139) from the majority view that legal professional privilege was confined to judicial or quasi-judicial proceedings. The view that the privilege is not so confined derives support from the decision of the New Zealand Court of Appeal in
Commr. of I.R. (N.Z.)
v.
West-Walker
(1953) 10 A.T.D. 337
;
(1954) N.Z.L.R. 191
and from a chain of Canadian cases (see
Solosky
v.
The Queen
(1979) 105 D.L.R. (3d) 745
at pp. 755-757
).
As has been mentioned, the doctrine of legal professional privilege arose and developed as a common law privilege protecting relevant communications between a person and his legal advisers from the consequences of the ordinary obligations of giving evidence and producing documents. In that context, the doctrine can properly be seen as a rule of evidence operating in judicial or quasi-judicial proceedings. So to see the doctrine does not, however, involve the conclusion that the fact that the confidentiality of a document or information would be protected by the doctrine of legal professional privilege in the Courts of the land is irrelevant when one is considering whether statutory administrative powers should be construed as authorizing the destruction or impairment of that confidentiality. To the contrary, it leads to the inquiry whether the doctrine of legal professional privilege is an emanation of a more fundamental and general common law principle.
The explanation of legal professional privilege was initially seen, when the doctrine was recognized during the reign of Elizabeth I, as being the professional obligation of the barrister or attorney to preserve the secrecy of the client's confidences (see Wigmore on Evidence (McNaughton rev. 1961), vol. 8, para. 2290; Radin, ``The Privilege of Confidential Communication Between Lawyer and Client'' (1928) 16 California Law Review 487). From at least the eighteenth century, however, it has been generally accepted that the explanation of the
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privilege is to be found in an underlying principle of the common law that, subject to the above-mentioned qualifications, a person should be entitled to seek and obtain legal advice in the conduct of his affairs and legal assistance in and for the purposes of the conduct of actual or anticipated litigation without the apprehension of being thereby prejudiced (see Wigmore, para. 2291). The fact that the privilege is not restricted to the particular legal proceedings for the purposes of which the relevant communication may have been made or, for that matter, to proceedings in which the party entitled to the privilege is a party plainly indicates that the underlying principle is concerned with the general preservation of confidentiality. That is also made clear by the rationale of the underlying principle which was explained by Stephen, Mason and Murphy JJ. in Grant v. Downs (at p. 685) in words which I would respectfully adopt:``The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.''
(See, also,
Greenough v. Gaskell
1 My.
&
K. at p. 103; 39 E.R. at pp. 620-621;
Russell v. Jackson
(1851) 9 Hare 387 at p. 391; 68 E.R. 558 at pp. 559-560;
Anderson
v.
Bank of British Columbia
(1876) 2 Ch.D. 644
at pp. 648-649
;
Pearce v. Foster
at pp. 119-120;
Jones
v.
Great Central Railway
(1910) A.C. 4
at p. 5
.)
The importance of the principle that a person should be able to seek relevant legal advice and assistance without apprehension of prejudice has been recognized in many cases. Thus in
Pearse
v.
Pearse
(1846) 1 De G.
&
Sm. 12
at pp. 28-29;
63 E.R. 950
at p. 957
,
Knight Bruce
V.-C. pointed out, in a judgment which Lord
Selborne
L.C. was subsequently to describe as ``one of the ablest judgments of one of the ablest Judges who ever sat in this Court'' (
Minet
v.
Morgan
(1873) 8 Ch. App. 361
at p. 368
), that it could not even be sacrificed to promote the main purpose of the existence of Courts of justice, namely, the discovery, vindication and establishment of truth. The Vice-Chancellor added:
``And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself.''
To the same effect was the comment made, in the same year by Lord
Langdale
M.R. in
Reece
v.
Trye
(1846) 9 Beav. 316
at p. 319;
50 E.R. 365
at p. 366
:
``The unrestricted communication between parties and their professional advisers, has been considered to be of such importance as to make it advisable to protect it even by the concealment of matter without the discovery of which the truth of the case cannot be ascertained.''
(emphasis added)
It is true that the above statements were made in cases which were concerned with an invocation of legal professional privilege in the context of legal proceedings. There is, however, no warrant for restricting the broad statements of the principle of the confidentiality of legal professional communications to the particular privilege against being compelled to give evidence or produce documents in judicial (or quasi-judicial) proceedings. That that is so appears clearly enough from what was said by
Fletcher Moulton
L.J. in
Rakusen
v.
Ellis, Munday
&
Clarke
(1912) 1 Ch. 831
at p. 840
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where, speaking generally and not in the context of compulsion to give evidence or produce documents in judicial or quasi-judicial proceedings, his Lordship described the confidentiality which the law accords to communications between solicitor and client as ``the very highest - so high that the solicitor is absolutely privileged and cannot be made to state what passed between him and his client. To that extent the solicitor is made, as it were, a part of his client for the purpose of those communications.'' Once one recognizes that the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice, common sense points to a conclusion that the principle should not be seen as restricted to compulsory disclosure in the course of such proceedings. Indeed, the doctrine of legal professional privilege would represent an aberration of the common law if it withheld from the Courts information or documents which were material in the search for truth in circumstances where the disclosure thereof could be compelled as a matter of course by any administrative officer with a relevant and general statutory mandate to require the provision of information or the production of documents. Moreover, if the privilege were confined to disclosure in judicial (or quasi-judicial) proceedings, it is difficult to explain why, logically, the lawyer who fails voluntarily to disclose the wrongdoing of his client to the appropriate administrative officer does not, in the absence of some particular justification, stand guilty of the felony of misprision of felony (seeR. v. King (Joseph) (1965) 1 W.L.R. 706 , where it was held that ``the cardinal principle of English law that a man is not bound to incriminate himself'' (per Lord Parker C.J. at p. 708) provided an overriding answer to a prosecution for misprision of felony and cf.
Sykes v. Director of Public Prosecutions (1962) A.C. 528 at p. 564 ; Gifford, Legal Profession Law and Practice in Victoria (1980) at p. 337;
Tuckiar v. The King (1934) 52 C.L.R. 335 at p. 346 ).
It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment. As has been seen, the underlying principle that a person should be entitled to preserve the confidentiality of relevant communications between himself and his attorney is regarded as of such importance by the common law that the Courts themselves do not require disclosure of the content of such communications even if it appears that such disclosure would be conducive to justice in a particular case and even if the proceedings be between parties neither of whom is entitled to claim the protection of the privilege as regards the relevant documents or information. Both logic and authority support the present-day acceptance of the preservation of that confidentiality as a fundamental and general principle of the common law. It is to be presumed that if the Parliament intended to authorize the impairment or destruction of that confidentiality by administrative action it would frame the relevant statutory mandate in express and unambiguous terms.
Section 10 of the Act provides:
``10. If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -
- (a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;
- (b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or
- (c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence.
he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if
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necessary by force, and to seize any such thing which he may find in the house, vessel, or place.''
In the context of the exclusion from legal professional privilege of communications which are themselves part of a criminal or fraudulent proceeding and of things lodged with a legal adviser for the purpose of obtaining immunity from production, it is unlikely that any valid claim to privilege could exist in relation to the matters mentioned in para. (a) and (c) of sec. 10. Any claim to legal professional privilege in respect of documents the subject of a search warrant will ordinarily be restricted to documents coming within para. (b). The claim to legal professional privilege is so limited in the present case since the search warrant was restricted to documents and instruments which were suggested to come within that paragraph.
As can be seen, sec. 10 contains no express reference to communications between a person and his legal advisers. It neither expressly includes them in, nor expressly excludes them from, the things to which it refers. There is nothing in either sec. 10 or in any other provision of the Act which indicates either that the Parliament directed its attention to the particular matter of modifying or destroying the confidentiality of relevant communications between a person and his legal advisers or that there existed a legislative intention to modify the common law principle that the confidentiality of such communications should be preserved. In accordance with the ordinary principles of construction, the section should be construed as not including, in the things which it authorizes to be inspected or seized, documents whose confidentiality would be protected in the Courts of the land by the doctrine of legal professional privilege. That construction of sec. 10 is also supported by the consideration that it is scarcely likely that Parliament would have intended to authorize an administrative seizure of documents on the ground that they would afford ``evidence as to the commission'' of an offence either in circumstances where legal professional privilege would be applicable to prevent the documents being received in evidence on a prosecution for that offence or in circumstances where the administrative seizure of the documents would destroy that privilege on the hearing of such a prosecution. The consequence of that construction of the section is that the search warrant in the present case should be read as not referring to documents to which legal professional privilege attaches.
I am conscious of the fact that my conclusion that the common law principle underlying legal professional privilege is not restricted to judicial or quasi-judicial proceedings does not lie well with the reasoning of the majority of the Court in O'Reilly's case or, possibly, with the actual decision on the relevant questions in that case. I have however come to a firm view on the matter and I consider that I should give effect to it. In that regard, I am influenced by the fact that the matter has been heard by a Court of seven Justices and that leave was given by the Court to senior counsel for the plaintiff to attack the correctness of the decision in O'Reilly's case on the relevant questions. I am also influenced by the fact that I am persuaded that the general and substantive principle underlying legal professional privilege is of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law in that it is a pre-condition of full and unreserved communication with his lawyer.
After the above had been written, the reports of the decisions of the Canadian Supreme Court in
Descoteaux
v.
Mierzwinski
(1982) 141 D.L.R. (3d) 590
and of the New Zealand Court of Appeal in
R.
v.
Uljee
(1982) 1 N.Z.L.R. 561
became available in this country. In each of those cases, a unanimous Full Court emphatically reaffirmed the fundamental nature and broad scope of the general and substantive principle underlying legal professional privilege. Of no less significance is the equally recent decision of the European Court of Justice in
A.M.
&
S. Europe Ltd.
v.
Commonwealth of the European Community
(1893) 3 W.L.R. 17
. The Report to the Court by the Advocate General (Sir Gordon
Slynn
) in that case contains (at pp. 26-28 a helpful summary of the laws of the member states of the European Economic Community in relation to legal professional privilege. As that summary indicates, there are significant variations between the laws of the member
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states as to the communications to which the privilege attaches. In the case of all of those states, however, the doctrine of legal professional privilege constitutes a general principle or rule which extends to protect privileged documents from production and seizure in the course of an administrative inquiry as distinct from being a mere rule of evidence restricted to judicial or quasi-judicial proceedings: ``there exists in all the member states a recognition that the public interest and the proper administration of justice demand as a general rule that a client should be able to speak freely, frankly and fully to his lawyer'' ( ibid., at p. 28, emphasis added). In their ``Decision'', the eleven Judges of the Court explained the Court's function as involving the identification of ``the principles and concepts common to the laws of [member] states concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client'' ( ibid., at p. 62). To some extent, that identification amounted to a search for the highest common factor in the various laws and resulted in the documents to which legal professional privilege was held to attach being restricted to documents ``made for the purposes and in the interests of the client's rights of defence'' ( ibid., at p. 62). Such a restriction is not acceptable in Australia (see above) or, indeed, in the law of most of the member European states (e.g., United Kingdom, Ireland, Germany, Belgium, Denmark and Greece) where the protection of the privilege is accepted as ordinarily attaching to confidential communications between a person and his lawyer for the purpose of obtaining or giving legal advice whether or not in connection with pending or contemplated legal proceedings and ``without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry'' (per Lord Brougham L.C., Greenough v. Gaskell, 1 My. & K. at p. 102; 39 E.R. at p. 620). What is important for present purposes, however, is that the doctrine of legal professional privilege was plainly accepted by the European Court as a general principle which effectively protects privileged documents from production or seizure by administrative compulsion or in the course of an administrative inquiry. In words reminiscent of what had been said by Knight Bruce V.-C. in Pearse v. Pearse (see above), the members of the Court explained (the A.M. & S. Europe case at p. 62) the rationale of the general principle which they held to be part of the law of all member states:``That confidentiality serves the requirement, the importance of which is recognized in all of the member states, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it.''
That general principle represents some protection of the citizen - particularly the weak, the unintelligent and the ill-informed citizen - against the leviathan of the modern state. Without it, there can be no assurance that those in need of independent legal advice to cope with the demands and intricacies of modern law will be able to obtain it without the risk of prejudice and damage by subsequent compulsory disclosure on the demand of any administrative officer with some general statutory authority to obtain information or seize documents.
The question in the stated case should be answered ``No.''
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