Australia: Loose Lips Sink Ships - But When Will They Waive Privilege In Legal Advice?

Last Updated: 23 September 2008
Article by Luke Buchanan

Key Points

  • Disclosing the conclusion of legal advice is not always a common-law waiver of privilege.
  • It depends on the circumstances of the case, but should not be done without a great deal of thought!

When you have legal advice that supports your position, it can be very tempting to tell the world about it, or at least use it as a negotiating tool, but that temptation is usually curbed by the knowledge that this will waive privilege in the advice. What about merely stating the conclusion or gist of the advice?

There has been a divergence of opinion in the courts as to whether any disclosure of the conclusion or gist will be enough to waive privilege (we've looked at this before here). Some of that confusion has been cleared away by the High Court decision in Osland v Secretary to the Department of Justice [2008] HCA 37 (7 August 2008) on the common-law implications of a disclosure of the gist or conclusion.

The press release and the privilege

In 1996, Mrs Osland was convicted of murdering her husband in what has become a very high-profile case in Victoria. Having exhausted the appeals process, she petitioned the Governor of Victoria for a pardon.

On 6 September 2001, the Victorian Attorney-General announced that the Governor had denied Mrs Osland's petition. The usual practice with petitions for pardon is not to release any reasons for the decision, but the Attorney-General noted in the press release that:

"Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland's petition.
This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied."

The question for the High Court was whether this had waived privilege in the advice.

Is the gist enough to lose privilege?

The High Court went back to basics to answer this question. Why do we have a rule at common-law that privilege can be waived? The rule exists to cover the cases where the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

In other words, you can't have your cake and eat it too.

In turn, a finding of inconsistency can only be made "in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances".

In this case, that meant looking at:

  • the nature of the matter in respect of which the advice was received;
  • the evident purpose of the Attorney-General in making the disclosure; and
  • the legal and practical consequences of limited rather than complete disclosure.

The matter here was the denial of a petition for a pardon by Mrs Osland. The Attorney-General traditionally does not explain these decisions.

What was the evident purpose of the disclosure? This was a very high-profile case with a great deal of public interest. The press release was intended to satisfy the public that due process had been followed in Mrs Osland's petition for a pardon and that the decision was not based on political considerations, but without giving reasons.

The net effect of the disclosure was not to cause any inconsistency or unfairness to Mrs Osland and accordingly, there had been no waiver of legal professional privilege.

Proceed with caution!

In some ways this isn't a surprising decision - it applies Mann v Carnell (1999) 201 CLR 1, which has been the law for nearly a decade. As noted above, however, there has been a divergence of views on the effect of disclosure, so this does restore some clarity.

It doesn't mean however that you can start telling the world about the gist of your legal advice, if you want to maintain privilege in the advice. The key issues will always be the context and the effect of the disclosure. Are you setting up a situation in which you're trying to have it both ways?

It's also important to remember that this decision was dealing with the common-law position. Different considerations might arise if the disclosure is under the Commonwealth Evidence Act or its State equivalents (just to add to the confusion, you also need to remember that the Act applies in the Federal Court at final trial but not to interlocutory proceedings).

In short, extreme caution should be exercised before disclosing the substance or gist of legal advice in respect of which there is no desire to waive privilege.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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