British American Tobacco fails in bid to gain access to privileged documents

The Full Court of the Federal Court today handed down its decision in British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCAFC 107, denying the tobacco giant access to legal advice given to the government regarding plain packaging in 1995.

The motive behind British American Tobacco Australia’s (‘BATA’) attempt to gain access to the legal advice was that they believed it to contain information demonstrating that a mandatory plain packaging scheme was flawed.

The arguments proposed by BATA, who were represented by Corrs Chambers Westgarth, were that the Government had waived its client legal privilege in disclosing the advice provided to it by tabling it in Parliament, providing it to government committees and publishing the gist of the advice on its website.

The Full Court rejected all of these arguments, ruling that s 16(2) of the Parliamentary Privileges Act 1987 precluded evidence of parliamentary proceedings being used in court as evidence.

Section 16(2), as explained by the Administrative Appeals Tribunal from which this case was appealed was “to prevent .. proceedings in Parliament being “used against” a person”(per curiam, at 29).

With regard to the partial publication of the advice on the internet, the Court ruled that the “gist” of the advice which was published was not enough to waive legal privilege.  

The court affirmed the test for waiving privilege in Mann v Carnell and Osland v Secretary to the Department of Justice, which is that the party which receives the advice must act inconsistently with the maintenance of privilege. Ultimately, releasing some information regarding legal advice received was not enough to satisfy the test.

BATA has indicated that it will appeal the decision.

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