Australia: A whole of government approach to legal professional privilege

Key Points:

This decision on legal professional privilege will facilitate sharing of legal advice among NSW Government departments in the context of specific matters.

The NSW Land and Environment Court recently held that various departments within the State Government can be a single "client" under the rules for legal professional privilege, so that sharing advice among departments does not waive privilege.

The Court made these findings, and also outlined a three step test for applying public interest immunity, in Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44.

Documents relating to Council amalgamations

Woollahra Municipal Council is currently challenging the examination process for the State's proposal to amalgamate Woollahra, Waverley and Randwick Councils.

Woollahra Council issued subpoenas to the Minister for Local Government and the Government's consultant, KPMG, seeking documents relating to the proposed amalgamation. The Minister and, on his instruction, KPMG, claimed:

  • legal professional privilege for three emails from an officer in the Department of Premier and Cabinet (DPC) to the delegates of the Chief Executive of the Office of Local Government (OLG) who had been appointed to consider the amalgamation proposal under section 218F of the Local Government Act 1993; and
  • public interest immunity for various documents concerning options analysis, impacts analysis and the business case for the proposed local council amalgamations.

The emails for which legal professional privilege was claimed included confidential legal advice from the DPC's own in-house lawyers and from an external lawyer. It appears, from the judgment, that the relevant DPC officer was not acting as a lawyer in passing on the advice he had received to the OLG Executive's delegates.

The documents for which public interest immunity was claimed included reports which had been prepared by third parties (such as KPMG) for and provided to Cabinet, reports which had been prepared for Cabinet but ultimately not provided, and related documents.

The Council opposed the Minister's claims.

What is public interest immunity and legal professional privilege?

The Evidence Act 1995 provides several bases for not disclosing documents in response to calls for production, such as under a subpoena. These include documents which are subject to legal professional privilege or public interest immunity.

In summary:

  • legal professional privilege applies to documents which reveal a confidential communication between a client and a lawyer, communications between lawyers acting for the client or documents prepared by the client, lawyer or other person, for the dominant purpose of providing the client with legal advice; and
  • public interest immunity applies to government documents where the public interest in disclosing those documents is outweighed by the public interest in preserving their secrecy or confidentiality.

Who is the client for the purposes of legal professional privilege?

The Minister argued that, in this case, the "client" for the purposes of the claim for legal professional privilege was the State of NSW, and that included all of its various departments. So, the Minister argued, the emails in this case, from a non-legal officer for DPC to non-legal officers of the OLG, were privileged because they involved passing of legal advice to the State among officers of the State.

Chief Justice Preston agreed, saying:

"Legal advice provided by lawyers to one department (the Department of Premier and Cabinet), which was in turn communicated to another agency within a department (the Office of Local Government), did not waive legal professional privilege as the legal advice was kept within the confines of the one client."

The Council argued that communication between the DPC and the OLG delegates was actually outside the confines of the "client", because the delegates had been appointed to exercise a specific function under section 218F of the Local Government Act and they were, therefore, acting independently of the Government. However, Justice Preston disagreed.

As a result, the documents remained subject to legal professional privilege and were not disclosed.

What will the Court consider when deciding whether public interest immunity applies?

Justice Preston stated that, in determining a claim of public interest immunity, the Court must balance the public interest in withholding the disclosure of information or the production of a document against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence. "If, on balance, disclosure would be harmful, then it will not be permitted".

He then set out a three-step process for making this determination:

  1. demonstrating the harm (if any) that will flow from disclosure ‒ "if that is demonstrated, the Court will initially incline against disclosure";
  2. identifying the need of the party seeking access and indicating that disclosure would materially assist their case; and
  3. weighing up the public interest of withholding the documents with the conflicting public interest of ensuring that the court can serve justice with the relevant evidence.

In this case, he decided that the disclosure of the documents would be harmful to the public interest, presumably because it would reveal documents relating to the deliberations of Cabinet.

Justice Preston also decided that disclosure would not be likely materially to assist the Council's case in the litigation. However, he left open the possibility that the Council could ask the Court to revisit this finding if the Council's case changed during the lead-up to or in the hearing.

What does this mean for Government?

The NSW Land and Environment Court has provided a broad interpretation of the meaning of "client" in the test for legal professional privilege. This should help Government administration, because it will facilitate sharing of legal advice among departments in the context of specific matters.

It's not clear whether the Court's findings would extend to the sharing of legal advice among Government agencies who are separate legal bodies, such as different authorities or government corporations. If their enabling legislation says that they represent the State, there may be a basis for arguing that the decision applies to them too.

In all cases, we think the relationship of the government departments or agencies sharing the advice will be important. Although the interests of government departments or agencies are often aligned, this is not always the case. The specific circumstances of a disclosure may influence a decision as to whether the sharing of advice is protected by legal professional privilege.

Of course, it's still very important to ensure that the building blocks of legal professional privilege (ie. confidentiality, the relevant parties involved in the communication, and the proper purpose) are in place to establish legal professional privilege.

The Court's clear explanation of how the public interest immunity works is also very helpful for Government departments and agencies who are preparing material for Cabinet or are commissioning work from others for that purpose.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.