British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCAFC 107

FEDERAL COURT OF AUSTRALIA

British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCAFC 107 Citation: British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCAFC 107

Appeal from: Philip Morris Limited and British American Tobacco Australia Limited and Department of Health and Ageing [2011] AATA 215

Parties: BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED v SECRETARY, DEPARTMENT OF HEALTH AND AGEING

File number(s): VID 314 of 2011

Judges: KEANE CJ, DOWNES AND BESANKO JJ

Date of judgment: 23 August 2011

Catchwords: Freedom of Information – legal professional privilege – whether impliedly waived – whether acts of disclosure are inconsistent with the maintenance of the privilege – legal advice referred to in Government Response – tabling of Government Response in Senate and publication on government website – summary of legal advice to committee members – voluntary disclosure of summary in course of proceedings – advantage to person seeking to maintain the privilege or disadvantage to others which gives rise to possibility of inconsistency - no waiver of the privilege. PRACTICE AND PROCEDURE – whether the disclosures are proceedings in parliament and precluded from being considered for the purpose of determining waiver of legal professional privilege – whether issues on appeal raise errors of law or fact.

Legislation: Administrative Appeals Tribunal Act 1975 s 44 Bill of Rights 1688 art 9 Evidence Act 1995 s 122 Freedom of Information Act 1982 ss 15, 42 Freedom of Information Amendment (Reform) Act 2010 National Health and Medical Research Council Act 1992 Parliamentary Privileges Act 1987 s 16