Case note: 'AWX' and Department of Defence (Freedom of information)

‘AWX’ and Department of Defence (Freedom of information) [2025] AICmr 109 (11 June 2025)

This recent decision by the Information Commissioner Toni Pirani provides an examination into the use of s 42 under the Freedom of Information Act 1982 (Cth) (FOI Act).

The decision under review concerned a request made to the Department of Defence (the Department) for access to document relating to specified investigations concerning the Australia Defence Force (ADF). The Department refused access to certain documents on the basis that they were exempt under s 42, being subject to legal professional privilege (LPP). The Applicant disputed this, arguing that the advice was not provided by independent legal professionals and should not be protected where it evidences maladministration.

Elements required to establish legal privilege

While an independent advisory relationship can exist between agency staff and an in-house lawyer, it is assessed on a case by case basis. The FOI Guidelines at [5.149] outline that in order to determine if a document would be privileged from production in legal proceedings, there are four elements to consider:

1. Whether there is a legal adviser-client relationship
2. Whether the communication was made for the dominant purpose of giving or receiving legal advice, or for use in connection with actual or anticipated litigation
3. Whether the advice was independent, and
4. Whether the advice given is confidential.

Further, the FOI Guidelines at [5.154] provide that the following factors are relevant in considering whether a legal adviser-client relationship exists:

• the legal adviser must be acting in their capacity as a professional legal adviser
• the dominant purpose test must be satisfied
• the giving of the advice must have the necessary degree of independence
• the advice must be confidential
• the fact that the advice arose out of a statutory duty does not preclude the privilege from applying, and
• whether the lawyer is subject to professional standards can be relevant.

Was there a legal adviser-client relationship?

In applying these principles, the Commissioner was satisfied that the relevant communications were between Department personnel and legally qualified in-house lawyers. While these lawyers were a part of the ADP and subject to military hierarchy, the Commissioner noted that the Department had provided submissions, which included the following information:

• The relevant legal officers held practising certificates and were bound by professional legal obligations. While having legal qualifications will not in itself establish that a privileged adviser-client relationship exists, whether the adviser holds a practising certificate is a relevant factor.
• Defence legal staff operated under a distinct legal command structure, which included policies to protect the integrity and legal independence of legal advisors.
• The relevant documents were marked “Sensitive: Legal”, reflecting a clear intention of confidentiality and to limit unintentional waiver of privilege.

As such, considering the above, the Commissioner found that the relevant documents were created in the context of a legal adviser-client relationship, in which the advice given was both independent and confidential.

Considering the dominant purpose

The Commissioner reviewed the contents of the documents and found they were prepared for the dominant purpose of legal advice. The Commissioner identified that the communications addressed legal risk and recommended legal responses to matters arising from the workplace investigation. The documents did not constitute administrative or operational records, nor did they appear to serve dual purposes inconsistent with legal advice.

The Commissioner considered whether privilege had been waived, either explicitly or through inconsistent conduct. The Commissioner found there was nothing to suggest that privilege had been waived.

The Applicant also argued that the documents should not attract privilege because they were used to justify conduct that allegedly constituted maladministration, citing Attorney-General (NT) v Kearney) [1985] HCA 60. In this case, the High Court considered whether privilege attaches to communications made to further an abuse of statutory power that would prevent others from exercising their rights under the law. The High Court found that the greater public interest was the better administration of justice and the need for the community to retain faith in the administration of justice.

Due to the Commissioner finding that the ‘illegal or improper purpose’ principle covered all forms of fraud and dishonesty, the Commissioner was inclined to consider that the principle was broad enough to extend to instances of maladministration. However, the Commissioner found that the documents failed to evidence maladministration or abuse of statutory power.

The Commissioner further noted that, as reflected in the FOI guidelines, the ‘real harm’ criteria is not an element of the common law doctrine of LPP and is therefore not a feature of s 42 of the FOI Act. While government has historically referenced the ‘real harm’ test as a relevant discretionary factor in determining FOI requests relating to s 42, the ‘real harm’ criterion is not an issue that can be addressed in IC review.

As such, considering the above, the documents were held to be exempt under s 42 of the FOI Act.

Key takeaways

• It is important to remember that LPP under the FOI Act is determined by applying the common law test rather than the test for LPP under the Evidence Act. Government in-house lawyers, including ADF legal officers, are capable of giving independent legal advice that may be subject to LPP, provided they maintain sufficient independence.
• Practical indicators such as the use of markings like ‘Sensitive: Legal’, internal legal frameworks, and established legal command structures may support arguments for LPP but will not in themselves be determinative.
• Finally, once LPP is established, the exemption under s 42 applies and is not subject to the public interest test.