Attorney-General (NT) v Kearney

158 CLR 500
61 ALR 55

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(Judgment by: DAWSON J)

ATTORNEY-GENERAL v KEARNEY

Court:

Judges: Gibbs C.J.
Mason J.
Wilson J.
Brennan J.
Dawson J.

Subject References:
Evidence
Aboriginals

Hearing date: 6 February 1985; 7 February 1985
Judgment date: 25 September 1985

Canberra

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Judgment by:
DAWSON J

These appeals arise from two applications made by the Northern Land Council to the Aboriginal Land Commissioner under s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The applications, which are made on behalf of Aboriginals asserting traditional land claims, have become known as the Jawoyn (Katherine Area) Land Claim and the Kenbi (Cox Peninsula) Land Claim. Under s 50(1)(a) the area of land to which a traditional land claim relates must be "unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". The terms "alienated Crown land" and "unalienated Crown land" are defined in s 3(1) of the Act so as not to include land in a town. The word "town" is defined in the same sub-section as having the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and as including any area that, by virtue of regulations in force under that law, is to be treated as a town.

The relevant regulations are the Town Planning Regulations, which were made on 22 December 1978 under the Town Planning Ordinance 1964 (NT), and the current Planning Regulations, which came into operation on 3 August 1979 under the Planning Act 1979 (NT) when that Act repealed the Town Planning Ordinance. They specify substantial areas of land near Katherine and Darwin which are to be treated as a town and, if the regulations were validly made, those areas may not be the subject of an application under s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act.

In the course of the Aboriginal Land Commissioner's inquiry into the Kenbi (Cox Peninsula) Land Claim, the Northern Land Council contended that the regulations were invalid because they were made for an ulterior purpose, namely, to frustrate the land claims over the land in question. The Aboriginal Land Commissioner (Toohey J.) held that the motives of the Administrator, whom he regarded as having made the relevant regulations as the representative of the Crown, could not be called in question and refused to make an order for the production of documents relevant to that issue. The Northern Land Council sought to test the Aboriginal Land Commissioner's ruling and in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 this Court held that it was open to it to challenge the relevant regulations on the ground that they were made for a purpose which was not a planning, or a town planning, purpose. Accordingly, in both land claims the Aboriginal Land Commissioner ordered that the Government of the Northern Territory and the Administrator of the Northern Territory discover documents relating to the making of the relevant regulations. Objection to the production of certain documents was made "on behalf of the Northern Territory" by the Director-General of the Chief Minister's Department of the Northern Territory on the ground that they were the subject of privilege. The privilege claimed was legal professional privilege, as it is somewhat inaccurately known, the privilege belonging to the client rather than the profession. No claim was made for Crown privilege, as a related branch of the law is, also inaccurately, known. (See Reg. v. Lewes Justices; Ex parte Home Secretary [1973] AC 388 .) The Northern Land Council applied to the Aboriginal Land Commissioner (by then Kearney J.) for an order that the documents for which privilege was claimed be produced for inspection.

Kearney J. took the view that the documents for which privilege was claimed were of the type to which legal professional privilege might attach but that the privilege had no application because it was prima facie established upon the material before him that the relevant communications came into being as part of a scheme to defeat the land claims. The communications were thus made, in his view, in preparation for or in furtherance of an evasion of the law. After referring to Varawa v. Howard Smith & Co. Ltd. (1910) 10 CLR 382 , at pp 389-390, Kearney J. ordered that the contested documents be produced for inspection by the Northern Land Council.

The Attorney-General for the Northern Territory then sought and obtained in the Federal Court orders nisi for writs of prohibition and certiorari directed to Kearney J. An application was also made for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to overcome anticipated jurisdictional problems. The Full Court of the Federal Court dismissed the application under the Act and discharged the orders nisi for prerogative relief. It is against those decisions that these appeals are brought.

Speaking for myself, I have some difficulty in seeing how the prima facie finding of the Aboriginal Land Commissioner extends to some of the documents which seem to be comprehended by his order. For example, those documents would appear to include documents comprising "preparation of the Northern Territory Government's case before the Aboriginal Land Commissioner in the land claim on matters arising out of the Regulations in question". In making his finding the Aboriginal Land Commissioner clearly had in mind the exception from legal professional privilege of communications which amount to participation in a crime or fraud. But however broadly one construes that exception, particularly with regard to what constitutes fraud, it is concerned with the furtherance of a crime or fraud and has never extended to communications for the legitimate purpose of being defended against a claim, even a claim of a crime or fraud. See Reg. v. Cox and Railton (1884) 14 QBD 153 , at p 175; O'Rourke v. Darbishire [1920] AC 581 , at p 632. However, any attack upon the prima facie finding of the Commissioner was expressly disclaimed before us and we must, therefore, proceed upon the basis that it properly extends to all the documents to which the order relates. The question is then whether the evasion of the law which the Commissioner describes is sufficient to defeat the claim for privilege for those documents.

The majority in the Full Court of the Federal Court below (Woodward and Neaves JJ.) thought that the exercise of a statutory power to make regulations with an ulterior purpose in mind does not involve fraudulent or illegal conduct within the meaning of the exception to legal professional privilege. That view finds support, I think, in the cases.

It is true that different expressions are to be found in the cases to explain what is meant by crime or fraud in the present context: "any unlawful or wicked act" (Annesley v. Anglesea (1743) 17 St. Tr. 1139, at p 1229); "a criminal or unlawful proceeding", "fraudulent contrivance, or ... any illegal proceeding", "an improper or an illegal act", "illegality or fraud or trickery" (Bullivant v. Attorney- General for Victoria [1901] AC 196 , at pp 201, 203, 205 and 206); "crime or civil fraud", "wrong-doing", "illegal object" (Varawa v. Howard Smith & Co. Ltd., at pp 386, 387 and 390); "any illegal or improper purpose", "to frustrate the processes of law", "taint of illegality", (Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141 , at pp 145, 156 and 162); "crime or fraud or civil offence" (Baker v. Campbell (1983) 153 CLR 52 , at p 86). Despite their apparent breadth, these expressions have, I think, been used more to explain the nature of the exception rather than to restrict the scope of the privilege.

In Reg. v. Cox and Railton at p 176, Stephen J. emphasized that "every precaution should be taken against compelling unnecessary disclosures" and in Varawa v. Howard Smith & Co. Ltd. at p 385, Griffith C.J. doubted whether the exception had ever been extended beyond crime or fraud. More recently in Crescent Farm Sports v. Sterling Offices (1972) Ch 553, at pp 564-565, Goff J. also expressed the view that the exception had always been confined to cases of crime or fraud. He did not consider it required any extension, saying:

" ... I think the wide submission of the plaintiffs would endanger the whole basis of legal professional privilege. It is clear that parties must be at liberty to take advice as to the ambit of their contractual obligations and liabilities in tort and what liability they will incur whether in contract or tort by a proposed course of action without thereby in every case losing professional privilege."

In Reg. v. Bell; Ex parte Lees privilege was claimed for an address which had confidentially been communicated by a wife to her solicitor when seeking advice to protect her interest in the matrimonial home. The wife was, however, concealing her whereabouts and those of a child in defiance of a custody order made in favour of her husband. This Court held that privilege did not attach to the wife's address, but it does not appear from my reading of the judgments in that case that the decision represents any extension of the crime or fraud exception. There was clear authority for the proposition that a solicitor is obliged to give to a court any information, including his client's address, which will enable the court to discover the whereabouts of a ward of court whose residence is being concealed from the court and that such information may not be the subject of a claim for professional privilege: Burton v. Earl of Darnley (1869) LR 8 Eq 576n.; Ramsbotham v. Senior (1869) LR 8 Eq 575. Gibbs J. decided the case upon this principle saying, at p 145, that as an exception to legal professional privilege he was inclined to think that it was not an extension of the rule in the case of crime or fraud, but rested upon an independent foundation. Wilson J., with whom Aickin J. agreed, also found support in Burton v. Earl of Darnley and Ramsbotham v. Senior, but nevertheless expressed the view that the confidential communication by the wife of her address was tainted with illegality. Stephen J. pointed to the fact that an address is ordinarily something which is not part of any professional confidence (Ex parte Campbell; In re Cathcart (1870) LR 5 Ch 703, at p 705) and declined to accept that in the circumstances of the case the communication of the address in confidence was sufficient to attract privilege. Murphy J. also appears to have thought for his part that privilege had no application because the child's welfare was paramount over the privilege. In this respect he also relied upon Burton v. Earl of Darnley and Ramsbotham v. Senior. It does not seem to me that any real support is to be found in Reg. v. Bell; Ex parte Lees for the extension of the exception to legal professional privilege to encompass evasions or infractions of the law other than crime or fraud.

For these reasons I think that the majority in the Court below were correct in concluding that the allegation of an ulterior purpose in the making of the relevant regulations amounts to no more than a claim that there was an ostensible but not a real exercise of the power to make the regulations which does not of itself involve even dishonesty. But that is not an end of the matter as the considerations to which I shall turn in a moment will show. Having regard to those considerations, it is unnecessary to do more than to flag the difficulties which may, in any event, be encountered in any attempt to establish dishonesty in the form of criminal or fraudulent conduct or a criminal or fraudulent purpose on the part of the client which in this case must ultimately be the Crown in right of the Northern Territory since the Northern Territory is, under s 5 of the Northern Territory (Self-Government) Act 1978 (Cth), "a body politic under the Crown". Whilst it may be possible, as Reg. v. Toohey; Ex parte Northern Land Council shows, to impute mala fides to individuals exercising executive functions in the name of the Crown, the imputation of mala fides, let alone dishonesty, to the Crown itself involves more fundamental considerations which require deeper analysis than is either necessary or desirable in this case.

Nevertheless the identity of the client for which privilege is claimed needs to be noticed for two reasons. The first, which may be dealt with briefly, is that the legal advisers in respect of whose advice privilege is claimed, are salaried employees in the Northern Territory Law Department. This is, however, no reason for denying privilege to communications passing between them and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. See Crompton Ltd. v. Customs and Excise Commissioners (No 2) (1972) 2 QB 102 , at pp 129, 136 and 138, on appeal [1974] AC 405 ; Geraghty v. Minister for Local Government (1975) IR 300, at p 312. Cf. A.M. & S. Europe v. Commission (ECJ) (1983) QB 878, at p 950.

However, there is another reason why the identity of the client is significant in this case. It is because the Northern Territory acts and was acting in this case in a governmental capacity, thus providing a basis for the operation of another aspect of the law of privilege, namely, that relating to the exclusion of evidence which is prejudicial to the public interest. Privilege of this kind which, despite the inaccuracy, continues to be called Crown privilege, is based upon the general rule that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. A document may be privileged upon this ground either because of its particular contents or because it belongs to a class of documents which should, whatever their individual contents, be immune from disclosure. The nature of Crown privilege has recently been examined by this Court in Sankey v. Whitlam (1978) 142 CLR 1 , but there are two aspects of it to which I would draw attention in this case. The first is that it is for the court to decide whether a document should be disclosed and in doing so it weighs the public interest in withholding disclosure against the public interest in the availability of all relevant evidence in order to facilitate the administration of justice.

The second aspect of Crown privilege to which I would draw attention is that although Crown privilege may not be claimed it must nevertheless be applied by a court where it is necessary to do so. Whether a claim for Crown privilege has or has not been made is not in any way conclusive. As Stephen J. put it in Sankey v. Whitlam at p 59, " ... the function of the court, once it becomes aware of the existence of material to which Crown privilege may apply, is always to determine what shall be done in the light of how best the public interest may be served, how least it will be injured."

With this may be contrasted legal professional privilege. It must be claimed and it is not for the court to claim it in the absence of any claim by a party. Cf. Great Atlantic Insurance v. Home Insurance [1981] 1 WLR 529 ; [1981] 2 All ER 485 . More importantly, once it is claimed it is conclusive, provided that the relevant communication does not fall within the recognized exceptions. It is not for the court to enter upon a balancing exercise as in the case of Crown privilege in order to determine where the public interest lies in the individual case. It is established that as a matter of principle the public interest lies in preserving the confidentiality of those communications falling within the ambit of the doctrine. As McMullin J. pointed out in Reg. v. Uljee (1982) 1 NZLR 561 , at pp 576-577:

"It is not now a question of weighing the public interest in each case to see whether the rule should be applied. Whether the principle operates as a bar to the emergence of the truth and to the overall public detriment is not now a relevant legal consideration. The rule is too well established - even if, as Wigmore ... says, its benefits are 'indirect and speculative', its obstruction is 'plain and concrete'."

Notwithstanding this aspect of legal professional privilege, the majority in the Court below thought that "where paramountcy is to be accorded to a higher public interest than that which supports the privilege, the privilege is displaced." They thought that a conclusion might be reached in this and, presumably, other cases, by weighing the respective considerations against each other and, in this respect, relied upon the observations of Stephen J. in Reg. v. Bell; Ex parte Lees.

I am unable to accept this approach. The whole purpose of legal professional privilege is to ensure that professional communications may take place in confidence which will not be violated by compulsory disclosure of them. The policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system. If inroads could be made upon the privilege in individual cases by involving a "higher public interest", its application would become uncertain and the policy behind it would be effectively undermined. Indeed, it may be questioned whether there can be a higher public interest than "the perfect administration of justice". See Bullivant v. Attorney-General for Victoria.

However, legal professional privilege is only one type of privilege and if a communication for which it is claimed is not only in the nature of a professional confidence but also contains information such that its disclosure may prejudice the proper functioning of government, a court may be called upon to determine whether the public interest is better served by its disclosure or non-disclosure. A determination of that kind does require a balancing of the interest which the proper administration of justice has in the availability of relevant evidence and the interest which the executive government has in the secrecy of some matters of state. It is clear, therefore, that if a document for which legal professional privilege is claimed has come into existence as part of the processes of government, the question of Crown privilege may arise and, if it does, a court may be required to determine that question by weighing the relevant considerations against each other.

It seems to me that in that situation there is no room for the application of legal professional privilege because the considerations which must be taken into account in deciding whether Crown privilege applies must include the desirability of preserving professional confidence between government and its legal advisers, not as a concluded issue, but as a matter to be weighed in the balance. If, on the other hand, the situation may be viewed as one of conflict between Crown privilege and legal professional privilege, then in my view the conflict must be resolved by the application of those principles which govern Crown privilege. Those principles require a court to determine where the public interest lies in each individual instance, an issue which in the case of legal professional privilege has been predetermined as a matter of law.

The number of cases in which the circumstances may call for consideration of Crown privilege will be limited in comparison with the number of cases in which, although governmental functions may be involved, the only question of privilege will be that of legal professional privilege. Crown privilege did not, for example, arise in a case such as Grant v. Downs (1976) 135 CLR 674 where a suit was brought against a nominal defendant under the Claims Against the Government and Crown Suits Act 1912 (NSW) although questions of legal professional privilege did. See also, e.g., Commonwealth v. Frost (1982) 41 ALR 626 , Geraghty v. Minister for Local Government; Waugh v. British Railways Board [1980] AC 521 . But the mere fact that the parties have not raised Crown privilege, as in this case, cannot relieve a court from the obligation of considering its application should the circumstances warrant it. There should, therefore, be no occasions when the disclosure of a communication is refused under the doctrine of legal professional privilege in circumstances where its disclosure would have been required as the result of a consideration of competing interests under the doctrine of Crown privilege. Moreover, if the individual consideration of a particular case under the doctrine of Crown privilege requires disclosure which would be withheld if legal professional privilege were applied, the result may be justified by the fact that professional confidences are less likely to be inhibited by the possibility of disclosure where the client is of a governmental character and the fact that there is, in any event, protection against disclosure under Crown privilege where it is required by some overriding public interest.

In this case, where privilege is claimed in relation to documents forming part of the law-making process, it is plain to my mind that, notwithstanding the absence of any claim by the parties, the Aboriginal Land Commissioner ought to have turned his attention to a consideration of the possible application of Crown privilege. If in so doing he found himself required to adjudicate the question whether public interest required the disclosure or continued secrecy of a particular document, then he should have determined the matter, thereby leaving no room for the application of legal professional privilege. If, however, legal professional privilege is the only applicable doctrine, the matters prima facie found by him do not bring the crime or fraud exception into play and the privilege ought to be upheld.

No point was raised concerning the availability of relief under the Administrative Decisions (Judicial Review) Act and the convenient course would be to allow the appeal and order under s 16(1)(b) of that Act that the matter be referred back to the Aboriginal Land Commissioner for further consideration.