CATCHWORDS Evidence - Administrative Law - Legal professional privilege - Aboriginal land claim - issue whether regulations invalid as having been made for a purpose outside the regulation-making power - Discovery - Application to review order made by Aboriginal Land Commissioner directing production of documents - Communications between the Government of the Northern Territory and its legal advisers - Instructions for the preparation of subordinate legislation - Legal advisers full-time salaried officers in the public service - Limits on the extent of the privilege - Whether privilege protects documents relevant to the issue whether a statutory power has been exercised for an ulterior purpose. Practice and Procedure - Application for review - Circumstances in which a Full Court of the Federal Court of Australia may exercise original jurisdiction with respect to application under the Administrative Decisions (Judicial Review) Act 1977. Federal Court of Australia Act 1976, ss. 14, 15, 20 No.G78 of 1984 IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL D_COMMLSS TONER AND IN THE MATTER of the JAWOYN (KATHERINE AREA) LAND CLAIM Ex parte, the ATTORNEY-GENERAL FOR THE NORTHERN TERRLIORY OF AUSTRALIA ae No. G191 of 1984 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Vv. THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAd and IN THE MATTER an LAD OUNC TI of the JAWOYN (KATHERINE AREA) LAND CLAIM No. G79 of 1984 IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE AIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER and IN THE MATTER of the KENBI (COX PENINSULA) LAND CLAIM Ex parte, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA No. G190 of 1984 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA vy. THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER and NORTHERN LAND COUNCIL and IN THE MATTER of the RENBI (COX PENINSULA) LAND CLAIM CORAM: Woodward, Fisher and Neaves JJ. DATE: 14 September 1984 PLACE: Canberra IN THE FEDERAL COURT OF AUSTRALIA ) ————— NEW SOUTH WALES DISTRICT REGISTRY No G78 of 1384 SS, GENERAL OLVISION —_—- IN THE MATTER of an Application for Writs of Prohibition and Certiorari1 against THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ASORIGINAL LAND COMMISSIONER Respondent a IN THE MATTER of the JAWOYN —_—ea_e AREA) LAND CLAIM EX PARTE, THE ATTORNEY-GENERAL FOR THE NORTHERN ERRITORY OF AUSTRALIA Prosecutor ORDER JUDGES MAKING ORDER: Woodward, Fisher and Neaves JJ OATE OF ORDER: 14 September 1984 WHERE MADE: Canberra THE COURT ORDERS THAT: 1 The order made on 2 March 1984 calling upon the Aboriginal Land Commissioner to show cause why writs of prohibition and certiorari should not issue in relation to the order made by the said Commissioner on 3 February 1984 be discharged nm The prosecutor pay the costs of the Northern Land Council of the proceedings N THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES OISTRICT REGISTRY ) No GI191 of 1984 ) ) GENERAL DIVISION BETWEEN: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant AND: THE HONOURABLE SIR WILLIAM JOHN FRANCLS KEARNEY, ABORIGINAL LAND COMMISSTONER COMMISSTON NER First Respondent AND NORTHERN LAND COUNCIL Second Respondent ANO IN THE MATTER of the JAWOYN KATHERINE AREA) LAND CLAIM QRODER JUOGES MAKING ORDER: Woodward, Fisner and Neaves JJ. QATE OF ORDER: 14 September 1984 THE COURT ORDERS THAT: l. 2. The application be dismissed The applicant pay the costs of the second respondent of the application Ts IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No G79 of 1984 GENERAL OL[VISTON IN THE MATTER of an Application for Writs of Pronibition and Certiorari against THE HONQURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER Respondent ANDO IN THE MATTER OF THE KENBI (COX PENINSULA) LAND CLAIM EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor QRODER JUDGES MAKING ORDER: Woodward, Fisher and Neaves Jd DATE OF ORDER: 14 September 1984 WHERE MADE: Canberra THE COURT ORDERS THAT: The order made on 2 March 1984 calling upon the Aboriginal Land Commissioner to show cause why writs of prohibition and certiorari should not 1ssue in relation to the orders made by the said Commissioner on 3 and 6 February 1984 be discharged The prosecutor pay the costs of the Northern Land Council of the proceedings IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No G190 of 1984 GENERAL DIVISION BETWEEN: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY or AUSTRALIA Applicant : THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ASORIGINAL CAND COMMISSIONER First Respondent =a Oo NO: NORTHERN LAND COUNCIL Second Respondent ANO: IN THE MATTER of the KENS8I (COX PENINSULA) LAND CLAIM ORDER JUDGES MAKING ORDER; Woodward, Fisher and Neaves JJ DATE OF ORDER: 14 September 1984 THE COURT ORDERS THAT: 1 The application be dismissed 2 The applicant pay the costs of the second respondent of the application. IN THE FEDERAL COURT OF AUSTRALIA ) STRY ) No. G78 of 1984 GENERAL DIVISION = ©?) IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND C N Respondent AND IN THE MATTER of the JAWOYN (KATHERINE AREA) LAND CLAIM EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA. Prosecutor IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G19l0f 1984 i T G L ) BETWEEN : THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant AND: THE HONOURABLE STR WILLIAM JOHN FRANCIS KEARNEY, ABORLGINAL LAND COMMISSIONER First Respondent AND: NORTHERN LAND COUNCIL Second Respondent AND: IN THE MATTER of the JAWOYN (KATHERINE AREA) LAND CLAIM IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G79 of 1984 GISTR GENERAL DIVISION ) IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER Respondent AND IN THE MATTER of the KENBI (COX PENINSULA) LAND CLAIM" TO EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor IN THE FEDERAL COURT OF AUSTRALIA ) N U WALE Ic GISTRY ) No. G190 of 1984 GENERAL DIVISLON ) BETWEEN: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant AND: THE HONOURABLE SIR WILLIAM JOHN Y, A IGINAL LAND COMMISSIONER First Respondent AND: NORTHERN LAND COUNCIL Second Respondent AND: IN THE MATTER of the KENBI (COX PENINSULA) LAND CLAIM CORAM: Woodward, Fisher and Neaves JJ. DATE: 14 September 1984 REASONS FOR JUDGMENT WOODWARD and NEAVES JJ: The Aboriginal Land Commissioner appointed under section 52 of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act")}is conducting an inquiry pursuant to paragraph 50(1)(a) of that Act into each of two applications made by the Northern Land Council on behalf of Aboriginals claiming to have a traditional land claim to the areas of land described in those applications. One application relates to land in the Katherine area and is referred to as the Jawoyn (Katherine Area) Land Claim. The second application relates to land in the Cox Peninsula, Bynoe Harbour and Port Patterson area and is referred to as the Kenbi (Cox Peninsula) Land Claim. The land encompassed by each of the claims includes land which is said to be "land in a town" within the meaning of that expression in the definitions of "alienated Crown land" and "unalienated Crown land" in sub-section 3(1) of the Land Rights Act. ''Town" is defined in that sub-section as having the same meaning as in the law of the Northern Territory relating to the planning and development of towns and the use of land in or near towns, 3. and to include any area that, by virtue of regulations in force under that law, is to be treated as a town. The legislation at present in force which is said to achieve that result is the Planning Act of the Northern Territory and the Planning Regulations made thereunder. The Planning Act came into operation on 3 August 1979. Sub-section 4(1) of that Act defines "town'' to mean "(a) a town within the meaning of the Crown Lands Act; (6) a municipality; or (c) land specified by the regulations to be an area which is to be treated as a town." Regulation 5 of the Planning Regulations, which also came into operation on 3 August 1979, provides - "For the purposes of section 4 of the Act, the several areas of land specified in Schedule 3 are specified to be areas which are to be treated as towns." Part IV of Schedule 3 specifies by metes and bounds an area of 650 square kilometres described as being near Katherine. Part I of that Schedule specifies by metes and bounds an area of 4350 square kilometres which may be described, conveniently though not necessarily accurately, as being near the towns of Darwin, Nightcliff and Sanderson. - Reliance is also placed on earlier legislation which was repealed by the Planning Act. The earlier pro- visions are to be found in the Town Planning Ordinance 1964 as amended under which the Town Planning Regulations, being Regulations 1978, No. 53, had been made. Section 5 of the Town Planning Ordinance 1964 as amended provided, so far as material - "S5. The regulations may prescribe that a specified area of land - (a)... (b) being land adjacent to a town, shall be subject to the provisions of this Ordinance, but not including the provisions of sub-section (4) or (5) of section eight or sub-section (2) of section eleven of this Ordinance, as if it were part of that town." The Town Planning Regulations, which were made on 22 December 1978, specified an area of 4690 square kilometres which was described as being adjacent to the town of Katherine and an area of 4350 square kilometres which was described as being adjacent to the town of Darwin. Each area was prescribed under section 5(b) of the Town Planning Ordinance 1964 as amended to be subject to the provisions thereof as if the area were part of the town to which it was said to be adjacent. In the course of the inquiry into each of the land claims the Northern Land Council has asserted that the relevant provisions of the Town Planning Regulations were, and the relevant provisions of the Planning Regula- tions are, invalid on the ground that they were made other- wise than for a purpose authorised by the Town Planning Ordinance 1964 or the Planning Act (as the case might be). It is asserted that the regulations were made for the purpose of defeating the land claims made under paragraph 50(1)(a) of the Land Rights Act or of converting the Land relevantly described in the regulations into land that was not within the description contained in that paragraph so that the Commissioner could not entertain an application made with respect to it. That it was open to the Northern Land Council to raise that issue before the Commissioner was affirmed by the decision of the High Court in Re Toohey; Ex parte Northern Land Council (1981) 38 A.L.R. 439. In each inquiry the Commissioner, on the applica- tion of the Northern Land Council, ordered that the Northern Territory Covernment and the Administrator of the Northern Territory deliver to the Northern Land Council a ist veri- fied by affidavit of the documents which were or had been in its or his possession, custody or power relating to and incidental to the making and bringing into force of the regulations under the Town Planning Ordinance 1964 and the Planning Act to which reference has already been made. The Commissioner also ordered that the Northern Land Council or its representative be permitted to inspect and take copies of such documents as the Northern Territory Government and the Administrator of the Northern Territory did not object to producing. Affidavits were filed on behalf of the Northern Territory Government listing the documents in its possession or power relating to the matters the subject of the orders referred to above. The production of certain of the docu- ments was objected to on the ground "that those documents contain confidential communications passed between officers of the Northern Territory Department of Law who are legal practitioners and Northern Territory Ministers or servants of the Northern Territory for the purposes of giving legal advice or assistance or for the purpose of assisting the Northern Territory in proceedings before the Aboriginal Land Commissioner". The documents for which legal professional privilege was claimed were identified in the following manner - "Correspondence, memoranda, opinions and other documents by or to the Department of Law or officers thereof or relating to same, comprising - (a) (b) (d) (e) instructions for, and advice on, preparation and forwarding of the Regulations in question, including the various drafts of the Regula- tions; instructions for, and advice on, preparation and forwarding of the new Planning Bill, including the various drafts of the Bill; the provision of legal advice con- cerning the Regulations or proposed Regulations in question; preparation of the Northern Territory Government's case before the Aborigi- nal Land Commissioner in the land claim on matters arising out of the Regulations in question; advice to a Northern Territory Minister by officers of the Northern Territory in conveying the terms of legal advice received from the Department of Law or officers thereof." The reference in paragraph (a) to "the Regulations" was intended, so the Court was informed, to refer to the Town Planning Regulations while the reference to "the Regulations" in paragraph (c) was intended as a reference to the Planning Regulations. Subsequently the Northern Territory Government filed further affidavits identifying by number and title each departmental file which contained documents for which legal professional privilege was claimed and giving some particulars of those documents. It is unmmecessary to set out the whole of the list. It will suffice to note that, where the document consisted of a letter or memorandum, it was described by identifying, either by name or office, the sender and the addressee and, where it bore a date, the date. In the case of other documents a general description was given such as "Draft Regulations", "Drafts of Planning Bill", "Copy outline of Planning Act" and "Outcome of discussions with Minister". In a few instances the document was described simply as being a file note without further particularity except that in one case the mame of the author and the date of the note were given. The Northern Land Council applied to the Commis- sioner for an order for production to it of the documents for which legal professional privilege had been claimed on the ground that che claim had no sufficient foundation. The matter was argued before the Commissioner who by orders made on 3 and 6 February 1984 directed that the Government of the Northern Territory preduce all the documents for which legal professional privilege had been claimed and permit the Northern Land Council to inspect and peruse the same and to take copies thereof. Applications on behalf of the Attorney-General for the Northern Territory ("'the applicant") were then made ex parte to a judge of this Court for the issue of writs of prohibition and certiorari directed to the Com- missioner in relation to the orders made on 3 and 6 February 1984. On 2 March 1984 orders were made calling upon the Commissioner to show cause before the Court why writs of prohibition and certiorari should not issue. When the applications were called on for hearing counsel for the Northern Land Council foreshadowed that a number of procedural matters would be raised including matters going to the jurisdiction of the Court and the availability in the circumstances of the remedies which the applicant sought. It was suggested that the procedural difficulties would be avoided if the applicant were to seek relief under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), the Northern Land Council being prepared to consent to any extension of time 9. to bring such proceedings as might be necessary to allow the hearing to proceed on that basis. After due consideration counsel for the applicant embraced that suggestion and applications under the Judicial Review Act were filed. The Court, pursuant to section 11 of that Act, made an order appropriately extending the time within which such applications might be lodged. It is desirable, lest the matter should be thought to have escaped attention, to advert to the jurisdiction of the Court, constituted as it is as a Full Court, to entertain the applications made under the Judicial Review Act. The Federal Court of Australia established by the Federal Court of Australia Act 1976 ("the Federal Court Act") consists of a Chief Judge and such other Judges as from time to time hold office in accordance with the Act (sub-section 5(3)). The Court is a superior court of record (sub-section 5(2)). For the purposes of the organization and conduct of the business of the Court, the Court comprises two Divisions, the Industrial Division and the General Divi- sion (sub-section 13(1)). For the purposes of the exercise of its jurisdiction, the Court may be constituted, in either Division, by a single Judge or as a Full Court (sub- section 14(1)). The Chief Judge is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may, subject to the Act and to such consultation with the Judges as is appropriate and 10. practicable, make arrangements as to the Judge or Judges who is or are to constitute the Court in particular matters or classes of matters (sub-section 15(1)). Section 20 of the Federal Court Act provides - "(1) Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court in either Division shall be ex- ercised by a single Judge. (2) The jurisdiction of the Court in a matter coming before the Court from the tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court." The Commissioner, although a Judge of the Supreme Court of the Northern Territory, is not a Judge of this Court. Further, the Supreme Court of the Northern Territory, being established by a law passed by the Legislative Assembly of the Northern Territory, is not properly described as a court created by the Parliament. Sub-section 20(2), there- fore, has no application in the circumstances of these cases and the question arises whether sub-section 20(1) precludes this Court from exercising original jurisdiction with respect to the applications made under the Judicial Review Act. The obvious purpose of sub-section 20(1) is to give legislative sanction to the exercise by a single Judge of the Court of the Court's original jurisdiction. ll. A single Judge may do so except where the Parliament has expressed its intention to be that the jurisdiction is to be exercised only by the Court constituted as a Full Court. The Parliament has so expressed itself in sub~section 20(2) and in a number of other statutes of which sub-section 198(2) of the Income Tax Assessment Act 1936, sub-section 118A(4B) of the Conciliation and Arbitration Act 1904, sub-sections 44(3) and 45(2) of the Administrative Apveals Tribunal Act 1975 and sub-sections 79(3) and 80(2) of the Complaints (Australian Federal Police) Act 1981 are examples. In our opinion sub-section 20(1) of the Federal Court Act is not to be read as precluding the Court constitu- ted as a Full Court hearing an application under the Judicial Review Act where there are appropriate reasons why the Court should be so constituted and the Chief Judge of the Court, in the exercise of the power conferred upon him by sub- section 15(1) of the Federal Court Act, has so constituted the Court. The orders to show cause why writs of prohibi- tion and certiorari should not issue were directed to be heard by a Full Court. It would be an anomalous result if the Court so constituted has no jurisdiction to determine _ finally the substantive matters that are in dispute between the parties unless it resolves favourably to the applicant the procedural and jurisdictional questions to which the applications for writs of prohibition and certiorari give rise, when the applicants now seek relief in the first 12. instance under the Judicial Review Act, and do so at the express suggestion of the Northern Land Council. We do not think sub-section 20(1) requires such an anomalous result. We note also that it is entirely appropriate that an application to review the decision of a tribunal constituted by a Judge of the Northern Territory Supreme Court should be heard by a Full Court. Accordingly we have asked the Chief Judge of the Court to constitute this Full Court as the Court to hear these applications for judicial review and he has done so retrospectively. The first-named respondent, who was not represented at the hearing, has informed the Court that he submits to whatever order is made by the Court in relation to the applications for orders of review. On these bases, we now proceed to consider the substantive issues that arise for decision. The Court is here concerned with that aspect of legal professional privilege which, within its proper limits, protects from disclosure communications made in confidence by a person to his legal adviser for the purpose of obtaining legal advice. That the public interest requires that privilege attach to communications between a client and his solicitor for the purpose of obtaining legal advice has long been recognised. What has been the subject of much debate has been the relevant 13. principles of law defining the extent of the privilege. The rationale of the principle and the need to confine the privilege within strict limits were adverted to by Stephen, Mason and Murphy JJ. in Grant v. Downs (1976) 135 C.L.R. 674 in the following passage at p. 685 - "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 keep- ing secret their communications, thereby inducing the client <o 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 para- mountey 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 1s 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. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits." For the most part the case Law on che subject has been developed in relation to communications passing between a person or a corporation, usually described as "the client", and a solicitor practising on his own account or in partnership who has been retained for the purpose of giving legal advice or to conduct litigation existing or anticipated and who is remunerated by fees. But there is nothing in the rationale of the privilege which would deny 14. its applicability solely on the ground that the solicitor or legal adviser is a salaried employee of the client: see Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1972] 2Q.B. 102 at pp. 129, 136, 138; (1974} A.c. 405 at pp. 430-1. No doubt the circumstances of any particular case will require scrutiny to ensure that the relationship between such a salaried employee and his employer is such that the employee 1s acting as an independent legal adviser. Given such a relationship, however, the privilege will attach. So it is with legal advisers who are members of the public service employed to provide to Government legal services analogous to those that a solicitor in private practice provides for his client. Although there 1s a paucity of material before the Court on this aspect of the matter, 1t may be accepted that the Department of Law has been established as part of the executive government of the Northern Territory with the function of providing legal services to that government. It may also be accepted that those legal services are pro- vided, in the main, by legal practitioners who are full-time salaried officers. It does not follow, however, that every communication between the officers of that Department and Ministers or employees in other departments of the Northern Territory administration will be the subject of legal pro- fessional privilege. The Department of Law has, no doubt 15. a variety of functions of which the provision of legal advice and the conduct of litigation form part. Its functions extend to the administration of those laws which fall within the executive responsibility of the Attorney-General for the Northern Territory (a function indistinguishable from that performed by other executive departments) and, as this case demonstrates, the drafting of proposed laws to be submitted to the Legislative Assembly of the Territory and of subordinate legislation thereunder. Counsel for the Northern Land Council submitted that, in the case of governments, legal professional privilege may well attach only to documents brought into . .istence solely for the purpose of litigation existing or anticipated and not to communications made for the purpose of seeking legal advice, even legal advice related to the state of the existing law or the rights and obligations arising thereunder. The submission seems to accept that, where litigation involving the government is pending or anticipated, the government is to be, so far as legal professional privilege is concerned, in a position not less advantageous than that enjoyed by a citizen or a corporation. But if the submission were accepted a government would be placed at a serious disadvantage so far as the obtaining of legal advice is concerned, whether that advice were sought from its own salaried employees or from solicitors or counsel in private practice. We are unable to accept that the public 16. interest which 1n appropriate circumstances protects from disclosure sommunications made by a citizen or a corporation for the purpose of obtaining legal advice does not equally protect similar communications made by a government. Reference has already been made to the terms in wnich the claim for legal professional privilege was form- ulated 1n the affidavits filed on behalf of the Northern Territory Government. The claim was made in respect of a miscellany of documents compendiously described as "corres- pondence, memoranda, Opinions and other documents". The documents were said to include instructions to the draftsman for the preparation of the Town Planning Regulations, the Bill which became the Planning Act and the Planning Regulations mace thereunder, drafts of that legislation, documents forward- ing the drafts to the Government and advice on the various drafts. Stated in those terms the claim, 1f upheld, would extend to a communication to the draftsman, being a legal practitioner, which contained nothing beyond instructions for the preparation of legislation. Such a communication might well be described as a request for legal. assistance - the application of legal drafting skills in translating the instructions into legislative form - but 1t would hardly answer the description of a communication to a legal adviser for legal advice in the sense in which that phrase 1s used 17. un discussing legal professional privilege. The claim as formulated would also extend to drafts prepared by the draftsman and submitted, with or without comment as to their legal effect, to those who gave the instructions for their consideration and, where appropriate, the taking of policy decisions and the furnisning of further instructions. The affidavits also refer to "advice to a Northern Territory Minister by officers of the Northern Territory in conveying the terms of legal advice received from the Department of Law or officers thereof". The precise import of this description is sy no means clear but, in terms, it 1s wide enough to include advice (other than legal advice) given to a Minister by an officer of the department for which he has executive responsibility. It 1s difficult to see any legal foundation for such a claim. What 1s said above reflects the inadequacy of the affidavits on which the applicant relied to establish the facts necessary to warrant the conclusion that, prima facie, the documents are entitled to protection. The Commissioner, at the invitation of the parties, inspected the documents - no doubt for the purpose, amongst others, of satisfying himself that such a prima facie conclusion was warranted. However, in the result the Commissioner found it unnecessary to make a finding on that issue. Had 1t become necessary for this Court to give a definitive ruling on the issue, 18. the Court would have been faced with the need either to require further evidence to be placed before it concerning the documents or to inspect the documents itself so that a better apppreciation of their nature might be obtained. However, in view of the conclusion to which we have come zt 1S unnecessary to pursue this aspect. It should, however, be noted that, during the course of argument, counsel for the applicant conceded that the claim could not be sustained in respect of each and every document listed in the relevant parts of the affidavits on which the applicant relied; and after the argument had concluded counsel for the applicant furnished the Court with a revised list of the documents in respect of which legal professional privilege was claimed. In particular the claim for privi- lege in respect of drafts of the legislation and in respect of certain of the correspondence has been withdrawn. On the assumption, which we are prepared to make for the purpose of the further consideration of these matters, that the documents for which privilege is now claimed are properly described as communications between officers of the Northern Territory Government and the Government's legal advisers for the purpose of obtaining and giving legal advice, 1t 1s necessary to consider whether protection from disclosure 1s afforded to them. The resolution of that question requires an examination of some of the considerations which relevantly delimit the extent of the privilege. 19. The Commissioner after stating that "the doctrine (of legal professional privilege] has never extended to protect crime or fraud", accepted the contention of the Northern Land Council that the abuse of power on which it relied to invalidate the regulations fell within that principle. He referred to the principles enunciated by Isaacs J. in Varawa v. Howard Smith and Co. Ltd. (1910) 10 C.L.R. 382 at pp. 389-390 and went on - "Here there is a definite and distinct allegation by the Council that the matters sought to be discovered are matters that were used as a means to evade the law. I think it is necessary that the Council show two things: first, that prima facie there is a bona fide and reasonably tenable charge that the law was being evaded by the making of regulations not contemplated by the Act, that is, for the purpose of defeating a traditional land claim. Second, that prima facie the communications in question were made in preparation for, in furtherance of, or as part of, that evasion of the law." The Commissioner concluded that both those matters had been made out to his satisfaction and, in consequence, he made the orders which are now sought to be reviewed. For the applicant it was submitted that the Commissioner's conclusions involved errors of law. It was said that, in considering the question whether the Northern Land Council had shown, prima facie, that there was a reasonably tenable charge that the regulations were invalid as having been made for a purpose alien to that for which the regulation making power was conferred, the Commissioner 20. had misdirected himself in posing the question in terms that it was sufficient to show that one of the purposes in making the regulations was to frustrate traditional land claims under the Land Rights Act. It was erroneous, so it was said, to state the question in that way: to establish invalidity it must be shown that the ulterior purpose was the sole purpose or was so substantial and so predominant amongst other purposes that it can truly be said that but for the ulterior purpose the regulations would not have been made. Reference was made to Thompson v. Bandwick Corporation (1950) 81 C.L.R. 87 at pp. 103-107 and Samrein v. Metropolitan Water Sewerage and Drainage Board (1982) 41 A.L.R. 467 at pp. 468-9. It was also submitted that, even if the material before the Commissioner were sufficient to show, prima facie, a reasonably tenable charge that the regulations were invalid as having been made for an improper purpose, that allegation was not properly characterised as falling within the principle that legal professional privilege does not protect communi- cations made in the furtherance of crime or fraud. In relation to this latter submission the Court was referred to cases in which the limitation upon the extent of the privilege has been examined. Attention was drawn by counsel for the Northern Land Council to the variety of expressions which have been employed in formulating the limitation. 21. The courts have expressed themselves in terms of denying the privilege to communications criminal in themselves or intended to facilitate or guide the client in the commission of "a crime or fraud" (Reg. v. Cox and Railton (1884) 14 Q.B.D. 153 at pp.165, 167) or a crime or civil fraud (Williams v. Quebrada Railway, Land and Copper Company [1895] 2 Ch. 751 at p. 756), that is "the carrying out of a fraud not amounting to a crime" (Varawa v. Howard Smith & Ca. Ltd. (1910) 10 C.L.R. 382 at p. 386), or "crime or fraud or civil offence" (Baker v. Campbell (1983) 49 A.L.R. 385 at p. 409). It has also been said that the privilege does not extend to communications made in the furtherance of a criminal or fraudulent purpose (Reg. v. Cox and Railton, supra), communications made as part of carrying out an ""iliegal purpose" (Russell v. Jackson (1851) 68 E.R. 558 at p. 560: Varawa v. Howard Smith & Co. Ltd. supra at pp. 389-390) or an unlawful purvose or pro- ceeding (Bullivant v. Attorney-General for Victoria [1901] A.C. 196 at p. 201) or where there is an averment of fraud or illegality (ibid. at pp. 203, 204, 206) or trickery (ibid. at p. 206). Fraud in this connection has been said not to be limited to the tort of deceit but to include "all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances" (Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd. (1972] Ch. 553 at p. 565). 22. It is not a permissible approach, however, to consider the expressions - some of which are extremely gen- eral and of indefinite content - which have been used in those cases divorced from the context in which they were used and the issues with which the court was dealing. It is significant that, in those cases referred to above in which the court held that the privilege that would otherwise attach to the communication had been displaced, the allega- tions made were of criminal or fraudulent conduct. In reaching the decisions under review the Commissioner acce-sed that legal professional privilege had never extended to protect crime or fraud. He made no findings, however, that, prima facie, the communications in question were made in preparation for or in furtherance or as part of a crime or fraud but concluded that it was sufficient to bring the communications within the principle he had stated to find, as he did, that they were made in preparation for or in furtherance or as part of an "evasion of the law''. That expression when used in the context of considering the circumstances in which legal professional privilege may be displaced is an ambiguous one: Bullivant v. Attorney-General for Victoria (supra). In our opinion, the limitation upon the privilege of which the cases cited are illustrations, however it is to be expressed, is not apt to encompass a claim that a 23. statutory power to make regulations has been exercised for a purpose other than the purpose for which, on the proper construction of the relevant statute, the power was conferred. Such a claim does not involve fraudulent or illegal conduct in the sense in which those words are used in the cases referred to and this notwithstanding that the effect of upholding the claim would result in the regulations being invalid. To uphold such a claim means no more than that there has been an ostensible but not a real exercise of the power. It involves no finding even of dishonesty. It follows that, in our opinion, the Commissioner fell into error in accepting that the abuse of power on which the Northern Land Council relied fell within the principle that legal professional privilege does not extend to protect crime or fraud. But to conclude, as we do, that the limitation on the extent of the privilege which has been developed in considering cases of communications made in furtherance of erime or fraud has no application where the question is whether a statutory power has been exercised for an ulterior purpose does not resolve the question now before the Court. The question must be asked whether there are not other limitations upon the privilege which would displace its application in such circumstances. 24. The course which the Court should follow is charted for it by a consideration of what was said by the High Court in Grant v. Downs (1976) 135 C.L.R. 674 and the approach which that Court took in The Queen v. Bell; Ex parte Lees (1980) 146 C.L.R. 141 although those cases were concerned with sets of circumstances very different from those which give rise to the matters now before this Court. As was said in those cases the existence and extent of the privilege reflects the extent to which the law accords to the public interest in the due administration of Justice, secured by facilitating the representation of clients by legal advisers, paramountcy over tne nore general public interest that requires that all relevant documentary material be made available. The privilege is to be confined within the strict limits which the principles which underly ut require. So that, where paramountcy 1s to be accorded to a higher public interest than that which supports the privilege, the privilege is displaced. Which public interest 1s to be paramount is for the Court to resolve "by the familiar process of weighing the respective considerations against each other": The Queen v. Bell; Ex carte Lees (supra), per Stephen J. at p. 155. A clear appreciation of, and adherence to, the principles which underly the privilege will thus point the way to the solution to the question whether in any given case the privilege affords protection against disclosure. 25. Legal professional privilege must be seen as an important element in the protection of the rights of the individual and of corporations to have uninhibited access to legal advice and representation in the carrying on of their affairs. The puolic interest in the effective conduct of the activities of the modern state requires that the privilege extend to protect the confidential communications between the government and its professional legal advisers where those communications relate solely to the litigation, existing or anticipated, in which the state 1s or nay be engaged or to the obtaining or giving of legal advice. The Parliament has recognised as much: see the Freedom of Information Act 1982, section 42. But those con- siderations do not apply with the same force, 1f at all, to communications made in the course of the preparation and formulation of subordinate legislation. Even 1f the giving of advice can properly be said to be involved in that process, where a case is made that the statutory power *o promulgate such legislation has been exercised for an ulterior purpose, the public interest, in our opinion, requires tnat the privilege which might otherwise attach be displaced. The community's respect for and observance of the law will not be enhanced by the law itself casting a shroud of secrecy around the sub- ordinate law-making process, and to do so would be to subvert the principles upon which the privilege is founded. This, however, 1s not to say that the privilege 1s to be displaced by a mere assertion that a statutory power has been exercised for an ulterior purpose. A proper basis must be shown for such an assertion but, once it is shown, there is no scope for the principles of legal pro- fessional privilege to operate to protect from disclosure documents relevant to the proper resolution of that issue. In Bullivant v. Attorney-General for Victoria [1901] A.C. 196 the Earl of Halsbury L.C. said that there must be established to the Court's satisfaction ''some definite charge either by way of allegation or affidavit or what not". In O'Rourke v. Darbishire [1920] A.C. 581 Viscount Finlay put the matter thus at p. 604 - "But it is not enough to allege fraud. If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact. It is with reference to cases of this kind that it can be correctly said that the Court has a discretion as to ordering inspection of documents. It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud. The Court will exercise its discre- tion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications." See also per Lord Sumner at pp. 613-4, Lord Parmoor at pp. 622-3 and Lord Wrenbury at pp. 632-3, all to the same effect. 27. What 1s necessary 1n any given instance will, of course, depend upon the particular circumstances of the case. While 1t may be going too far to say that "something exceptional is called for" (see Buttes Gas and Oil Co. v. Hammer (No. 3) (1981] Q.B. 223 per Conaldson L.J. at p. 252), circumstances must be brought before the Court to establish, prima facze, a basis for displacing the privilege. In the present cases the Commissioner found, on the material put before him by the Northern Land Council, tnat the claim that the statutory power had been exercised for an ulterior purpose had been made bona fide and that it was, prima facie, reasonably tenable. There was material before the Commissioner upon which he could so find and we do not believe that the applicant has shown any sufficient basis which would warrant the Court's interference with that finding. We should add that we have not found 1t necessary to express a view upon the argument put by counsel for the applicant that the Commissioner misdirected himself as to the test to be applied in determining the validity of the -agulations. That 1s a matter appropriate for consideration, 1f necessary, when the validity of the regulations 1s the subject of substantive debate. In the result the applications under the Judicial Review Act are dismissed and the orders to show cause why 28. writs of prohibition and certiorari should not issue are discharged. The applicant must pay the costs of the Northern Land Council of the proceedings. I certify that this and the 2€ preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Woodward and his Honour Mr Justice Neaves. Associate Dated: I+ September 1984 29. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NO.G78 OF 1984 GENERAL DIVISION ) IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER Respondent AND _IN THE MATTER of the JAWOYN (KATHERINE AREA) LAND CLAIM EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY } GENERAL DIVISION DIVISION NO. G191 OF 1984 BETWEEN: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER First Respondent NORTHERN LAND COUNCIL Second Respondent IN THE MATTER of the JAWOYN (KATHERINE AREA) LAND CLAIM IN THE FEDERAL COURT OF AUSTRALIA ) NEW_SO WALES DISTRICT REG XY) GENERAL DIVIS ) No. G79 of 1984 IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE STR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER Respondent AND_IN THE MATTER of the KENBI (COX PENINSULA) LAND CLAIM EX PARTE, the ATTORNEY- GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALI Prosecutor IN THE ERAL COURT OF AUS IA ) NEW SOUTH WALES DISTRICT REGISTRY )} GENERAL DIVISTON ) NO. G190 OF L984 BETWEEN: THE ATTORNEY GE.-RAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant AND THE HONOURABLE SIR WILLIAM JOHN FRANCIS KEARNEY, ABORIGINAL LAND COMMISSIONER First Respondent AND: NORTHERN LAND COUNCIL Second Respondent AND: IN THE MATTER of the KENBI (COX PENINSULA) LAND CLAIM CORAM: Woodward, Fisher and Neaves JJ. 14 September 1984 REASONS FOR JUDGMENT EISHER J.: In this matter I have had the benefit of perusing the reasons for judgment of Woodward and Neaves J.J. I agree with their decision that the application under the Judicial Review Act be dismissed and that the orders to show cause be discharged, in each instance with costs. Subject to the observations which follow, I am in agreement with their reasons. It is proper tao note that the Northern Territory Government claimed that legal professional privilege protected the relevant communications from disclosure. It based no clain on Crown privilege, or public interest immunity as it is now called, as such. Moreover I prefer to defer a decision on the extent to which a government is entitled to claim legal professional privilege otherwise tHan in circumstances where the government is involved in litigation or litigation is pending. This point was not fully argued and is not necessary for the determination of this matter. It was assumed, for the purpose of argument, that legal professional privilege was generally available to the Northern Territory Government unless excluded in the particular circumstances of this matter. It is my opinion that the Commissioner correctly classified the abuse of power upon which the Northern Land Council relied as coming within what is labelled as the "crime or fraud" exclusion from privilege protection. It was an appropriate case for the application of this rule. If this he so, it tis unnecessary to engage in the more awkward exercise of balancing competing public interests in which exercise value judgments are necessarily involved. The courts have firmly said that legal professional privilege does not protect communications if they are made to facilitate the commission of a "crime or fraud" and the question is whether the conduct alleged is encompassed by this rule as it is presently understood. It is however unfortunate that the rule continues to carry this abrasive label. The expression "crime or fraud" has been extensively used as the convenient label to identify for this purpose conduct which extends well beyond what that expression would prima facie cover. I would with respect adopt without repeating all the case references in the reasons of the majority to the type of conduct which courts have found as justifying denial of protection under this rule. The adjectives and expressions used are as varied as they are wide ranging. These references indicate that it is not contemplated that the conduct is such as would normally be conceived as fraudulent or criminal conduct in the technical sense. Rather the expression is used conveniently to cover improper conduct which goes beyond the exercise of civil rights 5. (See per Gibbs C.J. in Re Bell, Ex parte Lees (1980) 30 A.L.R. 489 at page 494) and which is contrary to law, whether civil or criminal. The scope of the expression is capable of extension to apply to analagous situations (Cf Re Bell supra, per Gibbs C.J. at page 488), and in this case in my opinion to alleged improper conduct on the part of government. There is no doubt that the conduct alleged by the Northern Land Council, namely the knowing exercise of regulation making power for an alien and ulterior purpose, is an abuse of power and unlawful. To my mind such conduct on the part of the government would fairly, on the authorities, be seen as coming within the rule. However in the present circumstances no useful purpose will be served if I select and identify which of these adjectives and expressions it is most appropriate to use in relation to the alleged conduct. In my opinion the rule identified by the expression "crime or fraud" is wide enough to cover the conduct which is alleged against the Northern Territory Government and the Commissioner was correct in so finding. i certity that tnis ang tne 4 pracedi'y pages are a true copy of the Reasons for Judgment of | Mr. Justice Fisher. . [~~ ia Daet} |4-9-S4 7