Attorney-General (NT) v Kearney

158 CLR 500
61 ALR 55

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(Judgment by: MASON J., BRENNAN J.)

ATTORNEY-GENERAL v KEARNEY

Court:

Judges: Gibbs C.J.
Mason J.
Wilson J.
Brennan J.
Dawson J.

Subject References:
Evidence
Aboriginals

Hearing date: 6 February 1985; 7 February 1985
Judgment date: 25 September 1985

Canberra

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Judgment by:
MASON J.
BRENNAN J.

It has been assumed that Kearney J. sitting as the Aboriginal Land Commissioner had jurisdiction to make the orders for inspection of documents that are the subject of these proceedings. On that assumption, we agree with the Chief Justice that the appeals from the Orders of the Federal Court should be dismissed. We would dismiss the appeals for the reason which his Honour gives, namely, that it "would be contrary to the public interest which the privilege is designed to secure - the better administration of justice - to allow (legal professional privilege) to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law". That principle is applicable in this case because there is a prima facie finding that "the communications with the legal advisers came into being as part of a plan to defeat the land claims". The principle is expressed as an exception to the rule that communications which are the subject of legal professional privilege are exempt from inspection. Disposing of the case as one that falls within the exception in any event, it is not necessary to consider whether the general rule would otherwise apply.

It is therefore unnecessary to consider whether legal professional privilege covers communications between a public authority and its legal advisers in connection with the making of regulations in the exercise of its law-making powers. It is unnecessary to consider a second question of some importance that would otherwise have fallen for decision, namely, whether communications with a legal adviser who is not independent of the client are capable of attracting legal professional privilege. Nevertheless, it should be mentioned that the respondents did not argue that the Northern Territory Department of Law stood in any different position from the position occupied by Crown Solicitors of the States or the Australian Government Solicitor. The independence of State Crown Solicitors and the Australian Government Solicitor in the giving of legal advice is - or ought to be - protected by the respective Attorneys General as the first law officers of the Crown, and is buttressed by the laws relating to the public service and sometimes by specific legislation.

Without giving these two questions further consideration we should not wish to commit ourselves. Subject to these observations, we agree with the reasons for judgment of the Chief Justice.