University of Queensland Law Journal
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JOHN DEVEREUX AND HYDER GULAM[*]
The position of in-house counsel is a precarious one. Though often required to provide legal advice, he or she may also be performing significant non legal functions. In-house counsel may feel a tension between loyalty to an employer and providing ‘frank and fearless advice’ to his/her client. In order to claim privilege attaching to the practice of law, just how much independence from ‘the chain of command’ need the in house lawyer demonstrate? This issue came into sharp focus in the recent decision of the A.C.T. Court of Appeal in Vance’s case.[1]
The facts of the case were relatively straightforward. Squadron Leader Vance was a member of the Royal Australian Air Force (RAAF) serving at the air base in Butterworth, Malaysia. On 21st August 1998, his service was terminated, ostensibly on medical grounds. Squadron Leader Vance challenged the legality of his termination. His submission was that the termination notice was issued to him, not on medical grounds, but, in reality, as a result of findings made against him by a legally flawed Board of Inquiry. In order to challenge his termination, he sought discovery of documents prepared by lawyers in the Defence Legal Service (then known as the Defence Legal Office), the AGS and by counsel. Access to these documents was refused on the grounds that the documents were covered by legal professional privileged. Vance sought an order requiring disclosure of the documents.
Justice Crispin rejected the claim for privilege maintained by lawyers working in the Defence Legal Office. His Honour was of the opinion that such lawyers were not sufficiently independent of their ‘employer’ that they could be said to be truly exercising legal judgment.
His Honour noted a number of factors which pointed towards this conclusion. Defence Legal officers were employed in a chain of command where their superiors were often not lawyers. The superiors could order lawyers to do things which were in conflict with their legal training. This view his Honour gleaned from evidence provided by Ms Jacqui Kelly, then a Minister in the Federal Government and a former RAAF Legal Officer, to the Senate Joint Standing Committee on Foreign Affairs, Defence and Trade.
This was particularly worrying to his Honour, since obedience to a command of a superior, mandated by Commonwealth Statute (the Defence Force Discipline Act 1982) could clearly take precedence over a lawyer’s ethical obligations promoted by a Bar Association or Law Society.
His Honour also formed the view that there was an Australian Defence Force (ADF) culture within which Defence Legal Officers (DLOs) clearly lacked the requisite independence.
The DLOs lack of practising certificates was also seen as damning from the point of view of acting with sufficient independence. His Honour suggested that the failure of DLOs to hold practising certificates was, of itself, fatal to the DLOs claim for privilege. This was because a practising certificate was a means to ensure that those entitled to practise remained in good standing and continued to adhere to ethical and professional standards throughout their career. His Honour pointed out that military legal officers had no statutory right to practise, unlike lawyers in government offices in two states.[2]
His Honour ordered production of the documents retained by the DLO under a claim of privilege.
The Commonwealth appealed against Crispin J’s decision on two grounds.
First, that, in deciding that a claim for legal professional privilege was only maintainable if the creator of the document had a practising certificate, his Honour had erred in introducing a requirement not found in either the Evidence Act 1995 (Cth) or at common law.
Secondly, that his Honour had, in contravention of the Parliamentary Privileges Act (Cth) 1987, introduced into evidence before him evidence which was presented to a committee of parliament, namely the evidence of Ms Kelly.
In respect of the first ground of appeal, the Court of Appeal unanimously determined that the applicable law was not the common law, but rather the Evidence Act 1995 (Cth).[3]
Since section 118 of that Act provided that evidence was not to be adduced if it was a confidential document provided by a lawyer for the dominant purpose of providing legal advice, the key concern for the court was to explore the meaning of the terms ‘lawyer’ and ‘confidential’. The former term was defined in the dictionary to the Act as meaning a barrister or solicitor. The Court opined that ‘the point is that the occasion of the privilege described by the Evidence Act does not specifically require anything more than admission to the status of lawyer for its operation.’
As to the latter term, the Evidence Act defines it as ‘a document prepared in such circumstances that the person who prepared it was under an express or implied obligations not to disclose its contents, whether or not the obligation arises under law’. This obligation, the Court of Appeal considered could readily be answered in the affirmative in respect of a private practitioner—though, in respect of an in-house lawyer, carefully scrutiny would be needed. Their Honours suggested that ‘possession of a practising certificate might be a relevant fact to take into account in determining whether or not an employed lawyer, whether or not in government service, is employed in circumstances where he or she is acting in accordance with appropriate professional standards and providing the independent professional legal advice such that would attract a claim for privilege under the Evidence Act.’ The presence or absence or a practising certificate was not a matter, then which was conclusive as to whether a lawyer enjoyed privilege.
The Court also decided that section 16 of the Parliamentary Privileges Act prevented Ms Kelly’s evidence to a parliamentary proceedings being used as evidence in Court.
The Court of Appeal remitted the matter to Crispin J for determination in accordance with its instructions.
The law of privilege essentially involves a derogation from the general principle that all relevant evidence should be admitted in court. It is a test of whether one public interest, which may favour non–disclosure, outweighs the public interest in ensuring that all relevant information is available to the courts.
Legal professional privilege (under common law) or client legal privilege (as defined under the Evidence Act) is the most important of all the privileges. It attaches to the client and it is the client who may waive the privilege. Privilege protects confidential communications between a lawyer and client (or between two or more lawyers acting for a client), if made for either of the following purposes:
• enabling the client to receive legal advice (s 118); or
• in relation to litigation which was either underway or which was being contemplated at the time of the communication (s 119).
The justification for privilege is to ensure that all parties and the court have available to them all relevant information and to ensure that clients can confide in their lawyers without fear that any disclosed information will be passed onto their opponent. It is also seen as a fundamental aspect of human rights.[4]
Vance’s case needs to be understood within the context of increasing scrutiny of the provision of legal services in the Australian Defence Force. In July 2001, J C S Burchett QC presented a report entitled ‘An Inquiry into Military Justice in the ADF’. In June 2005, the report of a Senate Inquiry into the ‘Effectiveness of Australia’s Military Justice Inquiry’ was tabled in Parliament. The result of both of these reviews has been changes in the structure and operation of disciplinary and administrative proceedings carried out by the ADF. Last year, the High Court in Re: Colonel Alpert ex parte Aird[5] considered the scope of Defence’s extra territorial jurisdiction. Vance’s case is the latest foray into examining and formulating the roles and responsibilities of legal work in the ADF. It is significant not only for defence lawyers, but for all in-house lawyers.
Permanent and reserve lawyers in the ADF have an unusual existence. Section 123 of the Defence Act 1903 grants immunity for members of the defence force from any law of a state or territory which requires the member to seek any permission or licence to carry out functions as a member of the defence force. It is defence practice, however, to require legal officers to be admitted as practitioners of a State or Territory Supreme Court. It is not ADF practice to require such lawyers to maintain a practising certificate.
It is customary to speak of legal officers and other ADF officers being ‘employed’ in the ADF. Thus, at several points in the judgment in Vance, reference is made to ‘the termination of SQNLDR Vance’s employment in the RAAF.’ To be precise, legal officers are not employed by the ADF. They hold an appointment as an officer in the ADF, pursuant to commission. The grounds on which that appointment may be lawfully terminated are set out in the Defence (Personnel) Regulations 2002. This issue of whether such grounds are exclusive, or whether any residual crown prerogative would permit termination on other grounds, was the subject of a very recent High Court decision, Jarratt v Commissioner of Police for New South Wales.[6] The High Court held that when Parliament conferred a statutory power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, Parliament is taken to have intended that the power be exercised fairly and accordance with natural justice, unless it makes plain the contrary intention. Rights which the Commonwealth may enjoy in terminating an officer’s appointment in the defence force must be understood in that sense.
It is not correct to say that, post Vance, the position of an admitted lawyer in one of the jurisdictions covered by the uniform evidence act is that anything he or she prepares is protected by legal professional privilege. It is important that such a lawyer establish his or her independence in terms of the exercise of a legal discretion. To use the words of the Court of Appeal, ‘a vital concomitant of representation of clients [is] the ability to be in a position to exercise the right to do so.’
Moreover, the privilege extends only to the provision of legal advice or in relation to litigation. The Court of Appeal was at pains to point out that ‘legal advice does not mean any or all advice which may, in fact, be given by a lawyer.’ A similar point had been made by the English Court of Appeal in Three Rivers District Council and others v Governor and Company of the Bank of England No. 5).[7]
In summary, the authorities to which we have referred show that, where a solicitor-client relationship is formed for the purpose of obtaining advice or assistance in relation to rights and liabilities, broad protection will be given to communications passing between solicitor and client in the course of that relationship. In all the cases, however, the primary object of the relationship was to obtain assistance that required knowledge of the law. We do not consider that the same principle applies to communications between solicitor and client when the dominant purpose is not the obtaining of advice and assistance in relation to legal rights and obligations.
In some senses, the distinction between legal and non legal services poses a particular dilemma for defence lawyers. Permanent (as opposed to reserve) Legal Officers undertake significant legal functions, including the provision of advice to Commanders or to members of the ADF. In addition, however, they may be called upon to perform secondary roles of a more administrative or personnel nature. These may include counselling, supervision of legal or non legal staff, preparation of annual reports, reviews, or chairmanship of defence clubs or societies. Given that one of the roles of the defence lawyer may be to draft relevant documents for censures, formal warnings and termination notices, sometimes the line between legal and non-legal work becomes blurred. Defence lawyers will need to be careful to ensure that they claim privilege only in respect of the exercise of legal functions.
Justice Crispin’s point about a defence lawyer being subject to control and direction by non legally trained personnel is a valuable point—but needs to be understood in context. It is true that section 29 of the Defence Force Discipline Act (Cth) 1982 (DFDA) makes it an offence to not obey a (lawful) general order. Section 27 of the same Act makes it an offence to disobey a lawful command. Inherent in both these charges is the concept that the direction issued by a non legally qualified commander to a lawyer must be lawful. The scope of lawfulness depends upon two factors. The first is that the defence power is said to ‘wax and wane’ with the nature of the threat Australia faces.[8]
It is equally clear that the concept of lawfulness must have some reference to the employment or nature of the task undertaken. Thus, an instruction by a superior to one of lesser rank to ‘jump up and down’ may be perfectly lawful if issued prior to undertaking a patrol (the purpose being to ensure that no rattles or clanks are heard when personnel move around in a war zone); but would not be lawful if issued by a superior within the confines of a peace time base orderly room.[9]
Taking into account the above, it is questionable whether an order issued by a non legally qualified person to a defence lawyer to, for example, require the latter to break the law or act unethically, would be a lawful order. If this is correct, then the problem of command interference on pain of criminal sanction may be illusory. The answer might be less a question of real independence, and more one of a perception of interference more easily overcome with appropriate guidance or education of all concerned.
It is clear that holding a practising certificate is not a panacea for all ills relating to the claiming of privilege. Despite the outcome of Vance’s case, the devil (as is often said) is in the detail.
Tucked away in their Honours’ judgment is the following statement:
A legal adviser in government or commercial practice may hold a practising certificate, and yet in some aspects of his or her employment, that person may act in a manner inconsistent with the assertion of legal professional privilege. It would not be an answer to the complaint about the conduct of the defence legal officer who is said to have handed over the files of their advices to the respondent to their superior officer to say that their conduct met professional standards merely because they held a practising certificate. Equally, a legal adviser may act in an entirely professional manner, generating a claim to client legal privilege, in the absence of a practising certificate.
The decision of the Court of Appeal, at best, gives support for the view that, in those jurisdictions which use the Uniform Evidence Act, possession of a practising certificate is one factor a Court may look at in determining whether a practitioner is acting with sufficient independence. Arguably the same rule should apply to other jurisdictions where the common law on legal professional privilege still holds sway.
It might be thought surprising that, at first instance, Crispin J placed so much importance on a lawyer holding a practising certificate. In Australian Hospital Care (Pindarra) Pty Ltd v Duggan (No.2)[10] Gillard J opined that the holding of a practising certificate was not determinative as to whether that lawyer could claim legal profession privilege. Similarly was the decision of the Queensland Court of Appeal in Glengallan Investments Pty Ltd v Arthur Anderson.[11] As the Court of Appeal in Vance noted, admission to practise of itself carries with it an obligation to conform to the powers of the Court to remove or suspend a legal practitioner for conduct that the Court considers justifies such a determination.
An important issue post-Vance is the state of the law governing legal professional privilege in other jurisdictions. While Vance clarifies the law some what in New South Wales, the A.C.T., Tasmania and in Federal contexts, the law remains unclear in all other jurisdictions. This is obviously undesirable, especially in relation to in-house lawyers working for multi state companies. The matter awaits adjudication.
[*] The former is Professor of Law, T.C. Beirne School of Law, University of Queensland, the latter is Wing Legal Officer-HQ396CSW, RAAF Darwin, NT. The views expressed in this paper are solely those of the authors, and do not represent those of the Australian Defence Force or the Australian Government.
[1] Commonwealth of Australia and Air Marshall McCormack in his capacity as Chief of Air Force v Vance [2005] ACTCA 35 (23 August 2005).
[2] For example, whilst the States and Territories generally require the holding of a practising certificate, Queensland and Western Australia confer limited rights to practise upon government lawyers, see Legal Profession Act 2004 (Qld) s 47; Legal Practice Act 2003 (WA), s 35.
[3] In both Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 and Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, the High Court had held that the Evidence Act 1995 (Cth) applied only to the adducing of evidence in proceedings, it did not apply to matters arising from pre-trial applications including interrogatories and discovery. However, given that the dominant purpose test applies at both common law and with the UEA, it is unclear what, if anything, turns on this particular distinction.
[4] Carter v Managing Partner, Northmore Hales Davy & Leake (1995) 183 CLR 121.
[5] Re Colonel Aird; Ex parte Alpert [2004] HCA 44 (9 September 2004).
[6] [2005] HCA 50 (8 September 2005).
[7] [2004] EWCA Civ 218; [2004] 3 All ER 168, 173.
[8] R v Foster [1949] HCA 16; (1949) 79 CLR 43; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1.
[9] The authors gratefully acknowledge the assistance of Colonel I.D. Westwood, who helpfully provided this example.
[10] [1999] VSC 131 [111].
[11] [2001] QCA 115; [2002] 1 Qd R 233.
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