Practice


COURT
High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(3), Brennan(2) and Dawson(4) JJ.

HRNG
1985, February 6, 7; September 25. #DATE 25:9:1985

JUDGE1

GIBBS C.J.:   These four appeals from the Federal Court raise the question
whether certain documents are privileged from production on the ground that
they were confidential communications which passed between Ministers or
officers of the Northern Territory and legal practitioners who were the
salaried legal advisers of the Territory for the purpose of seeking and giving
legal advice in connexion with the preparation and drafting of certain
regulations made by the Administrator of the Territory.

2.  The Northern Land Council has made to the Aboriginal Land Commissioner two
applications on behalf of Aboriginals claiming to have a traditional land
claim to the areas of land in the Northern Territory respectively described in
the applications.  One application, lodged on 31 March 1978, relates to land
in the Katherine area and is referred to as the Jawoyn (Katherine Area) Land
Claim; the other, made on 20 March 1979, relates to land in the Darwin area
and is referred to as the Kenbi (Cox Peninsula) Land Claim.  The applications
were made under s.50(1) of the Aboriginal Land Rights (Northern Territory) Act
1976 (Cth), as amended ("the Act").  The effect of the relevant provisions of
the Act was discussed in Reg. v. Toohey; Ex parte Northern Land Council (1981)
151 CLR 170. Under s.50(1)(a) of the Act the Commissioner may inquire and
report only in connexion with a traditional land claim to an area of land
which is "unalienated Crown land or alienated Crown land in which all estates
and interests not held by the Crown are held by, or on behalf of,
Aboriginals".  Land in a town is neither "unalienated Crown land" nor
"alienated Crown land" within the meaning given to those expressions by the
definitions in s.3(1) of the Act.  "Town" is defined by s.3(1) as follows:

        "'town' has the same meaning as in the law of the
    Northern Territory relating to the planning
    and developing of towns and the use of land in
    or near towns, and includes any area that, by
    virtue of regulations in force under that law,
    is to be treated as a town".

On 22 December 1978 regulations made by the Administrator of the Northern
Territory in intended exercise of the powers conferred by the Town Planning
Ordinance 1964 (N.T.), as amended, prescribed that certain specified areas of
land should be subject to the provisions of that Ordinance as if they were
parts of the towns of Darwin and Katherine respectively.  The Town Planning
Ordinance was repealed by the Planning Act 1979 (N.T.) and regulations made by
the Administrator in intended exercise of the powers conferred by that Act
specified areas of land to be areas treated as the towns of Darwin and
Katherine respectively.  Those regulations took effect on 3 August 1979.  The
details of these Acts and regulations appear more completely from the
judgments in Reg. v. Toohey; Ex parte Northern Land Council. The areas
specified under the current Planning Regulations include, and those specified
under the repealed Town Planning Regulations included, lands which form part
of the areas claimed in the two applications made by the Northern Land
Council.  If these regulations were validly made part of the land claimed was
land in a town and could not be the subject of a claim of the kind to which
s.50(1) refers.  In the course of the hearing of the Kenbi (Cox Peninsula)
Land Claim, the Northern Land Council wished to challenge the validity of the
Town Planning Regulations and, when the Planning Regulations came into
operation, of the latter regulations also, on the ground that they were made
for an extraneous purpose, namely to defeat an actual or apprehended claim
under the Act, but the Aboriginal Land Commissioner, then Toohey J., held that
the Administrator is the representative of the Crown, and that it was not
possible to inquire into the motives with which he made the regulations.  He
held, on 20 December 1979, that a large part of the land the subject of the
claim was land in a town and was therefore not available to be claimed under
s.50(1)(a).  However in Reg. v. Toohey; Ex parte Northern Land Council this
Court ordered that a writ of mandamus issue to the Commissioner directing him
to proceed to deal with the application in accordance with law. The Court held
that the Northern Land Council is entitled to challenge the Planning
Regulations, and if necessary also the Town Planning Regulations, on the
ground, inter alia, that they were made for the purpose of defeating the
traditional land claims of Aboriginals.  The Court held that it was not
necessary to decide whether the Administrator was the representative of the
Crown, but Aickin and Wilson JJ. expressed the opinion that he was; I held
that he was not.

3.  After that decision Toohey J. proceeded to deal with the Kenbi (Cox
Peninsula) Land Claim, and on 2 April 1982, in reliance on the powers
conferred by s.54 of the Act, ordered that the Northern Territory Government
and the Administrator of the Northern Territory of Australia make and deliver
to the Northern Land Council a list verified by affidavit of the documents
which are or have been in its or his possession, custody or power relating to
and incidental to the making and bringing into force of the relevant
Regulations under the Planning Act and the Town Planning Ordinance.  On 9
March 1983 a similar order was made by the Commissioner in the matter of the
Jawoyn (Katherine Area) Land Claim.  In compliance with these orders
affidavits of discovery were filed by Mr Martyn Rudolph Finger, the
Director-General of the Chief Minister's Department of the Northern Territory,
who objected "on behalf of the Northern Territory" to producing certain
documents described under the heading "Legal Professional Privilege" "on the
grounds that those documents contained confidential communications passed
between officers of the Northern Territory Department of Law who are legal
practitioners and Northern Territory Ministers or servants of the Northern
Territory for the purposes of giving legal advice or assistance or for the
purpose of assisting the Northern Territory in proceedings before the
Aboriginal Land Commissioner".

4.  Subsequently the Northern Land Council made applications in both matters
to the Aboriginal Land Commissioner, Kearney J., for orders that the
Government of the Northern Territory produce for inspection such of the
documents for which legal professional privilege was claimed as are not
privileged from production on that ground.  The applications were heard
together, and on 3 February 1984 the Commissioner ordered that certain
documents be produced for inspection. He made a supplementary order for the
production of those documents on 6 February 1984.

5.  On 2 March 1984, on the application of the Attorney-General for the
Northern Territory, a judge of the Federal Court (Beaumont J.) granted two
orders nisi requiring the Commissioner to show cause before the Full Court of
the Federal Court why writs of prohibition and certiorari should not be issued
prohibiting further proceedings for the production of the documents and
quashing the orders of 3 and 6 February 1984.

6.  Before the return of these orders nisi, this Court gave judgment in Re
Kearney; Ex parte Northern Land Council (1984) 58 ALJR 218; 52 ALR 1 in which
it was held that even if the regulations were validly made, the functions of
the Commissioner in relation to the Jawoyn (Katherine Area) Land Claim were
not affected, because the application in that matter was made before any
regulations came into force, and at a time when the land claimed was
"unalienated Crown land".  The effect of this decision on the present
proceedings was not debated before us or, so far as appears, before the Full
Court of the Federal Court. The Commissioner will be required by s.50(3)(c) of
the Act to comment on the planning or zoning implications of acceding to the
claim (see Re Kearney; Ex parte Northern Land Council at pp 222, 230; pp 6, 22
of ALR) although he will not be bound to take those matters into account in
making his recommendation: Re Toohey; Ex parte Meneling Station Pty. Ltd.
(1982) 57 ALJR 58; 44 ALR 63. The Commissioner may therefore still be
indirectly concerned with the question whether the lands subject to the Jawoyn
(Katherine Area) Land Claim have become lands in a town but it is doubtful
whether he would be entitled to require discovery of documents relevant only
to the validity of the regulations once the question of their validity ceased
to be of any direct importance in the proceedings before him. However the
validity of the regulations remains of critical importance in the Kenbi (Cox
Peninsula) Land Claim.  The question of principle is of course the same in
both matters and since no point has been taken before us as to the effect on
the present proceedings of Re Kearney; Ex parte Northern Land Council I need
not consider that question further.

7.  At the outset of the proceedings in the Full Court of the Federal Court
questions were raised as to the jurisdiction of that Court to grant the
prerogative writs and the Attorney-General accepted the suggestion that he
should apply for relief under the Administrative Decisions (Judicial Review)
Act 1977 (Cth).  The four applications - two for prerogative relief and two
for judicial review - were heard together.

8.  During the course of the proceedings in the Full Court counsel for the
Attorney-General indicated that the Northern Territory did not wish to press
its claim to privilege in respect of certain of the documents and an amended
and consolidated list of the documents in respect of which the claim to
privilege was made was subsequently delivered to the Court.  Woodward and
Neaves JJ. expressed in their judgment in the Full Court their dissatisfaction
at the inadequacy of the affidavits to disclose fully and precisely the nature
of the documents in question.  Their Honours were however prepared to assume
that the documents for which privilege was finally claimed were properly
described as communications between officers of the Northern Territory
Government and the Government's legal officers for the purpose of obtaining
and giving legal advice.  The judgments in the Full Court proceeded on the
footing that the advice related to the making of the two sets of regulations.
It was on that assumption that the matter was argued before us. No attempt was
made in argument to support the assertion made in the affidavits that the
documents came into existence for the purpose of giving advice or assistance
to the Northern Territory in proceedings before the Commissioner, except in so
far as such assistance may have been provided by the making of the
regulations.

9.  The reasons given by Kearney J. for making the order on 3 February 1984
were that legal professional privilege does not extend to protect crime or
fraud and that there was a prima facie case that the communications came into
being as part of a scheme to defeat the land claims.  In the Full Court Fisher
J. held that "the Commissioner correctly classified the abuse of power upon
which the Northern Land Council relied as coming within what is labelled as
the 'crime or fraud' exclusion from privilege protection".  The majority of
the Full Court disagreed with that view.  They held that the principle that
the privilege does not extend to protect crime or fraud has no application to
a case in which it is claimed that a statutory power to make regulations has
been exercised for a purpose other than that for which, on the proper
construction of the relevant statute, the power was conferred.  In their
opinion, however, the privilege protection, which is granted in the public
interest, to secure the due administration of justice, is displaced when a
higher public interest requires it.  They held that where a case has been made
that a statutory power to promulgate subordinate legislation has been
exercised for an ulterior purpose the public interest requires that the
privilege which might otherwise attach should be displaced.  The Full Court
accordingly discharged the order nisi and dismissed the application for
judicial review in each case.

10.  The order for production made by Kearney J. was directed to the
Government of the Northern Territory, and the Full Court appears to have
assumed that the Government was the person entitled to claim the privilege if
it existed.  The Government of the Northern Territory is not a legal person
and for that reason could not be entitled to any privilege of this kind.  The
affidavits of Mr Finger claimed privilege on behalf of the Northern Territory.
There has been no discussion of the question whether the claim was correctly
made on behalf of the Northern Territory, or whether it should have been made
on behalf of the Administrator.  Since the question has not been raised, and
either the Northern Territory or the Administrator would be sufficiently
represented by the Attorney-General, it is unnecessary to pursue the question.
It is unnecessary, also, to decide whether the Administrator represents the
Crown in the Northern Territory.  There is no reason why a claim for legal
professional privilege should not be made in a proper case by or on behalf of
the Administrator, whether or not he represents the Crown, or by or on behalf
of the Northern Territory.  If the Crown is rendered liable to make discovery
by s.54 of the Act in the same way as an ordinary citizen, there is no reason
why it should not be able to object to making discovery on any ground that is
available to an ordinary citizen.  Of course it may, in addition, be able to
claim what used to be called "Crown privilege", and is now often called
"public interest immunity", but the fact that the latter ground of objection
is available does not exclude the former.  Further, it was not argued that
legal professional privilege does not extend to communications with legal
advisers who are salaried employees.  I do not doubt the correctness of the
decision of the Court of Appeal in Crompton Ltd. v. Customs and Excise
Commissioners (No. 2) (1972) 2 QB 102 that the privilege extends to legal
advice given by such employees provided that in giving the advice they are
acting in their capacity as legal advisers.  The decision of the Court of
Appeal on that point was not challenged when the case went to the House of
Lords ((1974) A.C. 405) and has been followed by the Supreme Court of Ireland
in Geraghty v. Minister for Local Government (1975) IR 300.  In the United
States, also, it appears that legal professional privilege attaches to
communications between a government agency and the lawyers on its staff for
the purpose of giving or receiving legal advice:  see Coastal Corporation v.
Duncan (1980) 86 FRD 514, at p 520 and cases there cited, Hearn v. Rhay (1975)
68 FRD 574, at p 579, and the article by Ronald I. Keller in (1982) 62 Boston
University Law Review, at pp 1003 et seq.  The European Court of Justice has
limited the privilege to communications exchanged between an independent
lawyer (i.e. one not bound to his client by a relationship of employment) and
his client (A.M. & S. Europe v. Commission (1983) QB 878, at p 951) but that
of course is not a decision on the common law.  The advice will not be
privileged if the legal adviser gives it in some other capacity (e.g. as an
officer of a non-legal department) and will be privileged only if the lawyer
who gives it has been admitted to practice and (I incline to think) remains
subject to the duty to observe professional standards and the liability to
professional discipline.  However, these matters were not explored in argument
before us.

11.  On the assumptions made, the communications in the present case appear to
come within the rule relating to legal professional privilege unless they fall
within an exception to that rule.  There is no reason why communications
passing between a public authority invested with power to make subordinate
legislation, such as regulations, and the legal advisers of that authority,
for the purpose of seeking and giving legal advice relating to the making of
proposed regulations, should not be privileged from production.  The reason
for granting the privilege has been explained in many cases from Greenough v.
Gaskell (1833) 1 My. & K. 98 (39 ER 618) to Baker v. Campbell (1983) 57 ALJR
749; 49 ALR 385. It is that the proper functioning of the legal system depends
on a freedom of consultation between legal advisers and their clients, and, to
use the words of Wigmore on Evidence, McNaughton Revision (1961), vol.8,
par.2291, at p.545:

    "In order to promote freedom of consultation of
    legal advisers by clients, the apprehension of
    compelled disclosure by the legal advisers must be
    removed; hence the law must prohibit such
    disclosure except on the client's consent."

The principle was more fully stated in Grant v. Downs (1976) 135 CLR 674, at p
685, where Stephen, Mason and Murphy JJ. said:

        "The rationale of this head of privilege,
    according to traditional doctrine, is that it
    promotes the public interest because it assists and
    enhances the administration of justice by
    facilitating the representation of clients by legal
    advisers, the law being a complex and complicated
    discipline.  This it does by keeping secret their
    communications, thereby inducing the client to
    retain the solicitor and seek his advice, and
    encouraging the client to make a full and frank
    disclosure of the relevant circumstances to the
    solicitor.  The existence of the privilege
    reflects, to the extent to which it is accorded,
    the paramountcy of this public interest over a more
    general public interest, that which requires that
    in the interests of a fair trial litigation should
    be conducted on the footing that all relevant
    documentary evidence is available."

The reasons justifying the privilege apply when a public authority preparing
regulations which will have the force of law seeks legal advice from its legal
advisers.  It is in the interest of the public as well as that of the
authority that the latter should make full and candid disclosure to its
advisers so that it may obtain sound legal advice.

12.  One exception to which the general rule is subject is that communications
by a client for the purpose of being guided or helped in the commission of a
crime or fraud are not privileged from discovery.  This exception is
frequently stated as though it were confined to crime and fraud.  In Varawa v.
Howard Smith & Co. Ltd. (1910) 10 CLR 382, at p 385, Griffith C.J. said:

    "The point is taken now that the objection of
    privilege does not apply to a case of fraud, or
    intended fraud, or of intended crime.  I am not
    sure that the exception has ever been extended
    beyond these two cases.  But I am sure that it has
    never been held to apply to a case where all that
    is alleged is that the evidence will show that the
    plaintiff knew he had not a good cause of action."

In Crescent Farm Sports v. Sterling Offices (1972) Ch 553 Goff J. held that
communications made between solicitor and client for the purpose of committing
a breach of contract or furthering a conspiracy to commit a breach of contract
did not cease to be privileged.  He said, at p.565:

    "I agree that fraud in this connection is not
    limited to the tort of deceit and includes all
    forms of fraud and dishonesty such as fraudulent
    breach of trust, fraudulent conspiracy, trickery
    and sham contrivances, but I cannot feel that the
    tort of inducing a breach of contract or the narrow
    form of conspiracy pleaded in this case come within
    that ambit."

In Wigmore, op.cit., par.2298, at p.573, it is said that the reasons for the
protection given by the privilege "cease to operate ... where the desired
advice refers not to prior wrongdoing, but to future wrongdoing", and the
question is then asked, amongst others, "Must not that unlawfulness (the
unlawfulness of the end for which the advice is sought) be either a crime or a
civil wrong involving moral turpitude?" The learned author states, at p.577,
that this question should be answered in the negative, but goes on to
acknowledge that the decisions show "an inclination to mark the line at crime
and civil fraud".  He adds:

    "Yet it is difficult to see how any moral line can
    properly be drawn at that crude boundary, or how
    the law can protect a deliberate plan to defy the
    law and oust another person of his rights, whatever
    the precise nature of those rights may be."


13.  Mr Bennett, who appeared for the Attorney-General for the Northern
Territory, submitted that since a public body which makes regulations for an
extraneous purpose does not commit a crime or a fraud, and is not guilty of
dishonesty, communications between such a body and its legal advisers for the
purpose of obtaining and giving legal advice in furtherance of the
unauthorized exercise of the statutory powers remain within the ambit of the
privilege.  The statement that a public body exercising statutory powers has
acted in bad faith does not necessarily import fraud or dishonesty; it may
mean no more than that the body has exercised its powers for an ulterior
purpose.  It was therefore submitted that it would be an unjustified extension
of the existing exception which relates to communications in furtherance of
crime or fraud to include within it a case in which the communications were
made to seek and give assistance in the exercise of statutory powers for an
ulterior purpose.

14.  However not all the authorities state the principle of the exception in a
way that would confine it to crime or fraud.  In Russell v. Jackson (1851) 9
Ha. 387, at pp 392-393 (68 ER 558, at p 560) Turner V.C. said:

        "Can it then be said that the communication
    should be protected because it may lead to the
    disclosure of an illegal purpose?  I think that it
    cannot; and that evidence which would otherwise be
    admissible cannot be rejected upon such a ground.
    On the contrary, I am very much disposed to think
    that the existence of the illegal purpose would
    prevent any privilege attaching to the
    communication.  Where a solicitor is party to a
    fraud no privilege attaches to the communications
    with him upon the subject because the contriving of
    a fraud is no part of his duty as solicitor; and I
    think it can as little be said that it is part of
    the duty of a solicitor to advise his client as to
    the means of evading the law."


15.  This passage has frequently been cited with apparent approval - for
example by Isaacs J. in Varawa v. Howard Smith & Co. Ltd., at p 389 and by
Stephen J. in Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141, at p 152.  There
are other authorities in which the principle is stated with equal width.  One
of them, Gartside v. Outram (1856) 26 L.J. Ch 113, is cited in Reg. v. Cox and
Railton (1884) 14 QBD 153, at pp 169-170, together with Russell v. Jackson. In
another, Bullivant v. Attorney-General for Victoria (1901) AC 196, the Earl of
Halsbury L.C. said, at p 201 "that no Court can be called upon to protect
communications which are in themselves parts of a criminal or unlawful
proceeding".  In the same case Lord Shand and Lord Davey spoke of "fraud or
illegality" (see at pp.203, 204-205).  It is plain from the judgment of Lord
Lindley, at p.207, that he considered that a communication with a solicitor by
a client who says:  "Tell me how to escape from the consequences of the Act of
Parliament, although I am brought within it" would indicate an intention to
seek help to evade the law by illegal conduct and would not be privileged,
although if the client asked how he could do something which would not bring
him within the scope of the Act, there would be evasion in another sense, but
no illegality, and the communication would be privileged.

16.  The explanation given by Turner V.C. for the principle on which the
exception rests, namely that a communication in furtherance of an illegal
purpose is not within the ordinary scope of professional employment, was in
substance accepted as correct in Reg. v. Cox and Railton, at pp 168-169 and is
now generally accepted.  Cardozo J. put it shortly in Clark v. United States
(1933) 289 US 1, at p 15 (77 Law Ed 993, at p 1000):

    "The privilege takes flight if the relation is
    abused."


17.  These statements of the principle, and the reason on which it is based,
suggest that the exception is not confined to cases of crime and fraud, even
in the wide sense in which "fraud" has been used in this context, unless the
meaning of that word is extended to include anything that might be described
as a fraud on justice.  In the United States some cases decided since the
edition of Wigmore to which I have referred have held that a communication for
the purpose of committing a crime or tort is not protected: Diamond v.
Stratton (1982) 95 FRD 503, at p 505; Irving Trust Co. v. Gomez (1983) 100 FRD
273, at p 277. However, the leading authority for present purposes is the
decision of this Court in Reg. v. Bell; Ex parte Lees.  In that case, after an
order had been made giving custody of a child to a husband, the wife
disappeared taking the child with her.  Later she instructed a solicitor to
take steps to protect her interest in the matrimonial home, and gave him her
address, asking that it be kept secret.  It was held that her communication to
her solicitor was not privileged. Stephen J. said, at p.153, that the
principle revealed in such cases as Russell v. Jackson pointed the answer to
the question before the court.  He continued:

                "It is true that the quite limited
    professional assistance sought by (the wife) from
    the applicant was not itself to be used by her so
    as to further any illegal purpose.  But there was
    absent from her relationship with the applicant
    that reposing of professional confidence of which
    Stephen J. spoke in Reg. v. Cox and Railton."

He concluded by saying, at p 156:

       "One thing is clear. It is that privilege for an
    address cannot be claimed when its confidentiality
    was sought, as here, in order to frustrate the
    processes of law."

Wilson J. (with whom Aickin J. agreed) said, at p.161, that "it would be odd
if the privilege extended to protect communications which were directed
against the public interest".  He held that to extend the privilege to such a
communication as that made by the wife in that case "enables the continuance
of a contempt of court, and bears on its face the taint of illegality":  see
at p.162.  I considered that the privilege would not apply when the
communication was made in furtherance of an illegal object, but doubted
whether the case came within that exception because the wife did not
communicate her address to the solicitor for any illegal or improper purpose:
see at p.145.  However, I considered that the case came within another
exception, which might possibly be regarded as an extension of the rule which
excludes privilege in the case of crime or fraud, but which I inclined to
think rested upon an independent foundation.  I added, at p.147:

    "The privilege, which arises only because the
    public interest requires it, does not exist when it
    is seen that it would be contrary to a higher
    public interest to give effect to it."

Murphy J. said, at p.159, that "it would be curious if the child's welfare
were not paramount over legal professional privilege in circumstances such as
those in this case".  The case is authority for the view that legal
professional privilege will be denied to a communication which is made for the
purpose of frustrating the processes of the law itself, even though no crime
or fraud is contemplated.

18.  In my opinion the present case comes within the principle which forms the
basis of the rule that denies privilege to communications made to further an
illegal purpose.  It would be contrary to the public interest which the
privilege is designed to secure - the better administration of justice - to
allow it 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.  It would shake public confidence in the law if
there was reasonable ground for believing that a regulation had been enacted
for an unauthorized purpose and with the intent of frustrating legitimate
claims, and yet the law protected from disclosure the communications made to
seek and give advice in carrying out that purpose.  It is unnecessary to
consider whether the decision in Crescent Farm Sports v. Sterling Offices was
too restrictive, or whether the view expressed in the modern United States
cases that the principle extends to communications made for the purpose of
committing a tort is too wide. The law strikes a balance between securing
proper representation by encouraging full disclosure on the one hand, and
requiring the production of all relevant evidence on the other, but the
balance more readily inclines in favour of disclosure where privilege from
disclosure might conceal an abuse of delegated powers to enact legislation,
and thus obstruct a proper challenge to the validity of part of the law
itself.  The basis of the privilege is not endangered if it is held that it
does not protect communications made by a public authority for the purpose of
obtaining advice or assistance to exceed its statutory powers.

19.  The privilege is of course not displaced by making a mere charge of crime
or fraud or, as in the present case, a charge that powers have been exercised
for an ulterior purpose.  This was made clear in Bullivant v. Attorney-
General for Victoria, at pp 201, 203, 205, and in O'Rourke v. Darbishire
(1920) AC 581, at pp 604, 613-614, 622-623, 632-633.  As Viscount Finlay said
in the latter case, at p 604, "there must be something to give colour to the
charge".  His Lordship continued:

    "The statement must be made in clear and definite
    terms, and there must further be some prima facie
    evidence that it has some foundation in fact ...
    The Court will exercise its discretion, not merely
    as to the terms in which the allegation is made,
    but also as to the surrounding circumstances, for
    the purpose of seeing whether the charge is made
    honestly and with sufficient probability of its
    truth to make it right to disallow the privilege of
    professional communications."


20.  In the present case the finding of Kearney J., confirmed in the Full
Court, that there was prima facie evidence that the communications with the
legal advisers came into being as part of a plan to defeat the land claims was
plainly sustainable.  The charge that the power was used for an ulterior
purpose was clearly made, and it has sufficient colour to displace the
privilege.  It should be emphasized, as Kearney J. himself emphasized, that
this is no more than a prima facie finding on the present material and
reflects in no way any view as to the probable outcome of the litigation.

21.  For these reasons each of the four appeals should be dismissed.
JUDGE2
MASON AND BRENNAN JJ.:  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.

2.  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.

3.  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.
JUDGE3
WILSON J.:    These proceedings raise an issue of the scope and application of
legal professional privilege in relation to the hearing by the Aboriginal Land
Commissioner ("the Commissioner") of two land claims lodged by the Northern
Land Council ("the Land Council") pursuant to s.50(1)(a) of the Aboriginal
Land Rights (Northern Territory) Act 1976 (Cth) as amended ("the Land Rights
Act"). One claim relates to land including the Cox Peninsula near the city of
Darwin and is known as Kenbi (Cox Peninsula) Land Claim; the other relates to
land in the vicinity of the town of Katherine and is known as the Jawoyn
(Katherine Area) Land Claim.  The former claim was lodged with the
Commissioner in March 1979, the latter in March 1978.  The history of the two
claims demonstrates all too clearly that whatever hopes of land justice the
passage of the Act may have generated in some Aboriginals, those hopes have
been deferred, if not dissipated, in these instances, in the sands of time.

2.  A question which is material to each of the claims is whether any part of
the land the subject of a claim is land in a town and consequently outside the
definition of "unalienated Crown land" as the term is used in s.50(1) of the
Land Rights Act.  "Town" is defined in s.3(1) of that Act as having the same
meaning as the word has in

    "the law of the Northern Territory relating to the
    planning and developing of towns and the use of
    land in or near towns, and includes any area that,
    by virtue of regulations in force under that law,
    is to be treated as a town".

Regulations were made in December 1978 under the Town Planning Ordinance 1964
(N.T.) and were replaced in August 1979 by regulations made under the new
Planning Act 1979 (N.T.).  For the purposes of this case no distinction need
be drawn between these two sets of regulations and I shall simply refer to
them as "the regulations".  The practical effect of the regulations was to
extend very substantially the area of the "towns", inter alia, of Darwin and
Katherine and thereby to incorporate in those towns much of the land which was
the subject of the respective claims.  The result of the making of the
regulations, if they be found to be valid, is to deny the character of
unalienated Crown land to that land.

3.  It is in this situation that the Land Council has asserted that the
original regulations were, and the present regulations are, invalid on the
ground that they were not made for the purpose of advancing the policy and
objects of the planning legislation but for the ulterior purpose of defeating
the two land claims by placing the subject lands beyond their reach.  The
question whether it was open to the Land Council to raise such an issue in
relation to the Kenbi (Cox Peninsula) Land Claim was determined in its favour
in earlier proceedings in this Court:  Reg. v. Toohey; Ex parte Northern Land
Council (1981) 151 CLR 170.

4.  Following on this decision the Commissioner, on 2 April 1982, ordered the
Northern Territory Government and the Administrator of the Territory to
disclose on affidavit the documents which were or had been in its or his
possession, custody or power relating to and incidental to the making and
bringing into force of the regulations and to allow the Land Council to
inspect and copy such of the documents as to which there was no objection to
their production.  I pause here to mention that neither of the parties raises
any question touching the precise identity of the Northern Territory
Government in this context.  The Government itself has no legal existence but
it would seem to have been adopted as a convenient form of reference to the
body politic which is established in the name of the "Northern Territory" by
the Northern Territory (Self-Government) Act 1978 (Cth) and which is properly
represented in litigation by the Attorney-General.  It is convenient in
tracing the history of these proceedings to use the expression "the
Government" to identify both the body politic and the Administrator.  The case
as it has been presented and argued does not require any distinction to be
drawn between them.

5.  In due course the Government identified a number of documents in its
possession which it claimed to be the subject of legal professional privilege.
The list of such documents has been refined from time to time by subsequent
affidavits during the course of the litigation and there remains some
contention between the parties as to whether some of the documents that still
remain on the list would qualify for the privilege even if it were found to be
theoretically available in the circumstances of this case. But we are
concerned only with the latter question.

6.  On 24 January 1983 the Land Council applied to the Commissioner for an
order overruling the privilege claim and following argument on 6 May 1983 the
Commissioner reserved his decision.  He delivered that decision on 3 February
1984, holding in favour of the Land Council.  Although the Commissioner was
inclined to the view that the law relating to legal professional privilege did
not apply to legal advice to a government from its lawyers on the scope and
drafting of subordinate legislation, he nevertheless proceeded on the basis
that the law did apply in such circumstances.  Having inspected the documents
in question, the Commissioner concluded prima facie that they had come into
existence in furtherance of a scheme to defeat the land claims and so to evade
the operation of the Land Rights Act through an abuse of the power to make
regulations conferred by the Northern Territory's planning legislation.  He
held that a prima facie showing of such an abuse of power fell within the
recognized exception that the privilege did not extend to communications in
preparation for or in furtherance of crime or fraud.  He therefore ordered
their disclosure to the Land Council.

7.  The Government proceeded to challenge the decision in the Federal Court.
It first secured the issue of orders nisi for writs of prohibition and
certiorari and later moved to avoid suspected jurisdictional problems by
applying for review of the decision pursuant to the Administrative Decisions
(Judicial Review) Act 1977 (Cth) as amended.  It is unnecessary to explore any
further the practical implications of these procedures.

8.  The Full Court of the Federal Court (Woodward, Fisher and Neaves JJ.)
unanimously discharged the orders nisi and refused the applications for
review. However, the reasons of their Honours differed.  Fisher J. held that
the Commissioner

    "correctly classified the abuse of power upon which
    the Northern Land Council relied as coming within
    what is labelled as the "crime or fraud" exclusion
    from privilege protection",

saying that the expression "crime or fraud"

    "is used conveniently to cover improper conduct
    which goes beyond the exercise of civil rights ...
    and which is contrary to law, whether civil or
    criminal".

In this case it includes alleged improper conduct on the part of government.

9.  On the other hand, Woodward and Neaves JJ., in a joint judgment, concluded
that the Commissioner fell into error in accepting that the alleged abuse of
power fell within the "crime or fraud" exception, observing that to find a
prima facie case of such abuse means no more than that there has been prima
facie an ostensible but not a real exercise of the power, involving no finding
even of dishonesty.  Their Honours continued:

        "The course which the Court should follow is
    charted for it by a consideration of what was said
    by the High Court in Grant v. Downs (1976) 135
    CLR 674 and the approach which that Court took
    in The Queen v. Bell; Ex parte Lees (1980) 146
    CLR 141 although those cases were concerned with
    sets of circumstances very different from those
    which give rise to the matters now before this
    Court.  As was said in those cases the existence
    and extent of the privilege reflects the extent to
    which the law accords to the public interest in the
    due administration of justice, secured by
    facilitating the representation of clients by legal
    advisers, paramountcy over the more general public
    interest that requires that all relevant
    documentary material be made available.  The
    privilege is to be confined within the strict
    limits which the principles which underly it
    require.  So that, where paramountcy is to be
    accorded to a higher public interest than that
    which supports the privilege, the privilege is
    displaced.  Which public interest is to be
    paramount is for the Court to resolve 'by the
    familiar process of weighing the respective
    considerations against each other':  The Queen v.
    Bell; Ex parte Lees (supra), per Stephen J. at
    p 155.  A clear appreciation of, and adherence to,
    the principles which underly the privilege will
    thus point the way to the solution to the question
    whether in any given case the privilege affords
    protection against disclosure".

Their Honours then proceeded to refine the principle in its application to the
relationship existing between a government and its employed legal advisers and
with particular reference to the subordinate law-making activities of
government, saying:

    "The public interest in the effective conduct of
    the activities of the modern state requires that
    the privilege extend to protect the confidential
    communications between the government and its
    professional legal advisers where those
    communications relate solely to the litigation,
    existing or anticipated, in which the state is or
    may be engaged or to the obtaining or giving of
    legal advice.  The parliament has recognized as
    much:  see the Freedom of Information Act 1982,
    section 42.  But those considerations do not apply
    with the same force, if at all, to communications
    made in the course of the preparation and
    formulation of subordinate legislation.  Even if
    the giving of advice can properly be said to be
    involved in that process, where a case is made that
    the statutory power to promulgate such legislation
    has been exercised for an ulterior purpose, the
    public interest, in our opinion, requires that the
    privilege which might otherwise attach be
    displaced.  The community's respect for and
    observance of the law will not be enhanced by the
    law itself casting a shroud of secrecy around the
    subordinate law-making process, and to do so would
    be to subvert the principles upon which the
    privilege is founded".


10.  Undoubtedly, if it be right to adopt the test of balancing in each case
the competing public interests, there may be special considerations attaching
to confidential communications for the purpose of obtaining legal advice
relative to the promulgation of subordinate legislation. The Land Council
takes the matter further and argues that legal professional privilege can have
no operation at all in the context of subordinate law-making.  If secrecy is
justified in particular circumstances by reference to the public interest then
privilege from disclosure should be claimed by way of Crown privilege or
public interest immunity as it is now commonly described.  As at present
advised, I am unable to accept the submission.  In substance, it is an
argument for denying the application of legal professional privilege in any
guise to the relationship of government to its professional legal advisers,
leaving the entire field to be determined by reference to the more limited
field of public interest immunity. But it has been held that the rationale
underlying legal professional privilege is relevant and applicable to a
government's relationship with its employed legal advisers:  Alfred Crompton
Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) (1972) 2
QB 102 (accepted without challenge in the House of Lords:  (1974) AC 405) and
followed by Jackett C.J. in In re Shell Canada Ltd. (1975) FC 184 at p 192;
cf. also Geraghty v. Minister for Local Government (1975) IR 300.  Woodward
and Neaves JJ., in the passage which I have quoted, explain why this should be
so.  I do not appreciate why legal advice touching the subordinate law-making
process should fall in a different category.  If a local government authority
were to seek professional legal advice as to the ambit of its statutory powers
with respect to proposed by-laws there would appear to be no difficulty in
principle in placing such communications within the privilege.  However,
having regard to the conclusion to which I have come on the one ground of
appeal urged for the appellant, I find it unnecessary to express a concluded
view on the question.

11.  The submission advanced for the appellant is that communications between
a government and its legal advisers which are found prima facie to have been
in furtherance of the making of delegated legislation for a purpose outside
the enabling Act are nevertheless protected by legal professional privilege.
It is immaterial whether the purpose is deliberately pursued with knowledge
that it is beyond power.  The principal thrust of the submission is to focus
on the so-called exceptions to the privilege in the case of communications in
furtherance of crime or fraud in an endeavour to show that the purported
exercise of a statutory power for an ulterior purpose is neither a crime nor a
fraud within the technical meaning of those words strictly construed and that
consequently there was nothing to obstruct the application of the privilege to
such a case.

12.  Such an approach is open to question.  It takes from the circumstances of
decided cases instances where the privilege has been held not to be available
and attempts to elevate those instances into rules of law which exhaustively
determine when the privilege will not apply.  It fails to recognize the
importance of flexibility in the operation of a rule which is grounded in
public policy.  There is support for the view that the first requirement when
dealing with a problem such as is raised in the present case is to keep
steadily in mind the important purpose which the rule is intended to serve;
the second requirement is then to take the circumstances which it is claimed
give rise to the privilege and measure those circumstances against the purpose
of the rule in order to determine whether or not the operation of the
privilege in the circumstances serves that purpose.  As I had occasion to say
in Reg. v. Bell at p 161:

    "But it would be odd if the privilege extended to
    protect communications which were directed against
    the public interest".

See also the reasons for judgment of Stephen J. in the same case at
pp.152-156. However, it should be remembered that the context of those remarks
was a case where the strict confidentiality with which the client sought to
surround the communication of her address to her solicitor was intended to
facilitate her continued defiance of an order of the Court.

13.  The learned editor of Wigmore on Evidence (8 Wigmore, Evidence
(McNaughton rev. 1961)) 2298 at p.577 notes that there is an inclination in
the decided cases to limit the exception to crime and civil fraud and
continues:

    "Yet it is difficult to see how any moral line can
    properly be drawn at that crude boundary, or how
    the law can protect a deliberate plan to defy the
    law and oust another person of his rights, whatever
    the precise nature of those rights may be".

On the other hand, it has been asserted that there may be great danger to the
public interest that the privilege is designed to serve if the exception were
construed too widely.  In Crescent Farm (Sidcup) Sports Ltd. v. Sterling
Offices Ltd. (1972) Ch 553, at pp 564-565, Goff J. (as he then was) said:

        "The principle of the exception is that the
    communication in such circumstances is not in truth
    within the scope of professional privilege at all,
    and the plaintiffs submit that it is no part of a
    solicitor's duty innocently or otherwise to further
    any breach of duty or wrongful act.  In my judgment
    that is far too wide.  Apart possibly from Williams
    v. Quebrada Railway, Land and Copper Co. (1895) 2
    Ch 751 the exception has always been stated as
    confined to cases of crime or fraud:  see for
    example O'Rourke v. Darbishire (1920) AC 581 and
    Reg. v. Cox and Railton (1884) 14 QBD 153
    particularly at p 170 where Stephen J. quoted from
    Cockburn C.J. in Tichborne v. Lushington (1872) ...

        I do not consider the principle requires any
    extension.  On the contrary, I think the wide
    submission of the plaintiffs would endanger the
    whole basis of legal professional privilege.  It is
    clear that parties must be at liberty to take
    advice as to the ambit of their contractual
    obligations and liabilities in tort and what
    liability they will incur whether in contract or
    tort by a proposed course of action without thereby
    in every case losing professional privilege.  I
    agree that fraud in this connection is not limited
    to the tort of deceit and includes all forms of
    fraud and dishonesty such as fraudulent breach of
    trust, fraudulent conspiracy, trickery and sham
    contrivances, but I cannot feel that the tort of
    inducing a breach of contract or the narrow form of
    conspiracy pleaded in this case come within that
    ambit".


14.  In my opinion, the approach outlined by Goff J. and the views expressed
in Reg. v. Bell are capable of reconciliation.  The principle may be expressed
by saying that, generally speaking, the public interest in the protection of
alleged confidential professional communications will not be outweighed by the
public interest in ensuring that all relevant evidence is admissible save when
the professional relation is abused in a manner involving dishonesty that goes
to the heart of the relationship.  The presence of such dishonesty is enough
to cause the privilege to "take flight", to use the words of Cardozo J. in
Clark v. United States (1933) 289 US 1, at p 15, because it precludes a true
professional relationship from arising.  See the remarks of Stephen J. in Cox
and Railton at p.168.  A passage from the judgment of Isaacs J. in Varawa v.
Howard Smith & Co. Ltd. (1910) 10 CLR 382 is in point.  His Honour said, at p
389:

    "The words 'for the perfect administration of
    justice' are all important, because, as was pointed
    out by Turner V.C. in Russell v. Jackson (9 Ha.,
    387), the privilege which protects any confidential
    disclosure between solicitor and client is not
    intended simply to protect that confidence, but it
    rests upon the necessity of carrying it out.
    Otherwise justice could not be administered, as the
    Courts would not have the proper opportunity and
    means of administering the law between the
    litigants.  That being the foundation of the rule,
    says the learned Vice-Chancellor, the Court must,
    of course, have regard to the foundation on which
    it rests, and not extend it to cases which do not
    fall within the mischief which it is designed to
    protect".


15.  I turn now to consider whether the conclusion I have expressed with
respect to the privilege of the citizen is entirely apposite in the case of a
claim of privilege by a government in respect of legal advice sought in
connection with the making of regulations.  Woodward and Neaves JJ., in the
passage I have cited, express the view that any exercise of the
regulation-making power for an ulterior purpose would displace the privilege.
With all respect, I think that is too wide.  Where legal advice is sought with
reference to the making of regulations for a purpose which is believed to be
consistent with the scope and objects of the enabling legislation, in my
opinion the privilege should attach to those communications notwithstanding
that it is alleged that the regulations are beyond power and notwithstanding
that some secondary motive unrelated to the statutory power is also present.
The purpose which the privilege is designed to serve is in no way denied when
legal advice is taken in those circumstances.  In my view, the implications
for the privilege would be serious if an allegation of ultra vires, based on a
genuine but mistaken view of the scope of the power, were sufficient to expose
a government to discovery of confidential professional communications.  It
must be remembered that whatever rule is found to apply to government
law-making will find a close parallel in the case of the exercise of a local
government's power to make by-laws.  Conversely, if the advice is sought in
the deliberate pursuit of a purpose which is known to be beyond power, then in
those circumstances the public interest cannot concede to a government any
right to withhold relevant material from scrutiny in the courts.  The
distinction between a deliberate and a mistaken misuse of power is to my mind
of crucial significance.

16.  Counsel for the appellant argues against the drawing of such a
distinction on the ground that there is a single category by reference to
which regulations will be held invalid because made for an ulterior purpose.
The test is an objective one.  That may be so when testing regulations for
validity but the question is a different one when the issue is whether legal
professional privilege may be claimed in respect of certain communications.
The test goes to the professional quality of the relationship.  That quality
depends on the good faith, the integrity that the client brings to the
consultation, not upon the correctness or otherwise of the advice that may be
given.

17.  Applying these principles to the present case, I think the appeals must
be dismissed.  The appellant does not challenge the Commissioner's prima facie
finding that "there is a bona fide and reasonably tenable charge that the law
was being evaded by the making of regulations not contemplated by the Act".
He spoke of the communications coming into being "as part of a scheme to
defeat the land claim".  With some hesitation, I conclude that the prima facie
finding is that the communications were undertaken with the knowledge that the
planning legislation was being resorted to otherwise than for a bona fide
planning purpose. That this is so is borne out by the fact that counsel's
argument was directed strongly to the point that the only recognized exception
to the privilege is in respect of communications in furtherance of crime or
fraud and that that exception has no application to an abuse of statutory
power even if that abuse be deliberate.  For the reasons I have given, the
submission fails, with the consequence that the appeals must fail also.  I
think it wholly inconsistent with the reason for the privilege that it should
protect a government's deliberate abuse of its statutory powers.  In this
regard, the exception for fraud should be understood in the broad manner
described by Goff J. in Crescent Farm.  It includes all forms of dishonesty,
including "trickery and sham contrivances".

18.  Of course the validity of the regulations is not determined by the result
of these appeals.  It will remain for the Commissioner to consider, on the
hearing of the claim, whether in fact the regulations were made for a bona
fide town planning purpose based on the future urban needs of the towns in
question and if so the consequences that flow from such a conclusion.

19.  I would dismiss the appeals.
JUDGE4
DAWSON J.:    These appeals arise from two applications made by the Northern
Land Council to the Aboriginal Land Commissioner under s.50(1)(a) of the
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).  The applications,
which are made on behalf of Aboriginals asserting traditional land claims,
have become known as the Jawoyn (Katherine Area) Land Claim and the Kenbi (Cox
Peninsula) Land Claim.  Under s.50(1)(a) the area of land to which a
traditional land claim relates must be "unalienated Crown land or alienated
Crown land in which all estates and interests not held by the Crown are held
by, or on behalf of, Aboriginals".  The terms "alienated Crown land" and
"unalienated Crown land" are defined in s.3(1) of the Act so as not to include
land in a town.  The word "town" is defined in the same sub-section as having
the same meaning as in the law of the Northern Territory relating to the
planning and developing of towns and the use of land in or near towns, and as
including any area that, by virtue of regulations in force under that law, is
to be treated as a town.

2.  The relevant regulations are the Town Planning Regulations, which were
made on 22 December 1978 under the Town Planning Ordinance 1964 (N.T.), and
the current Planning Regulations, which came into operation on 3 August 1979
under the Planning Act 1979 (N.T.) when that Act repealed the Town Planning
Ordinance. They specify substantial areas of land near Katherine and Darwin
which are to be treated as a town and, if the regulations were validly made,
those areas may not be the subject of an application under s.50(1)(a) of the
Aboriginal Land Rights (Northern Territory) Act.

3.  In the course of the Aboriginal Land Commissioner's inquiry into the Kenbi
(Cox Peninsula) Land Claim, the Northern Land Council contended that the
regulations were invalid because they were made for an ulterior purpose,
namely, to frustrate the land claims over the land in question.  The
Aboriginal Land Commissioner (Toohey J.) held that the motives of the
Administrator, whom he regarded as having made the relevant regulations as the
representative of the Crown, could not be called in question and refused to
make an order for the production of documents relevant to that issue.  The
Northern Land Council sought to test the Aboriginal Land Commissioner's ruling
and in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 this
Court held that it was open to it to challenge the relevant regulations on the
ground that they were made for a purpose which was not a planning, or a town
planning, purpose. Accordingly, in both land claims the Aboriginal Land
Commissioner ordered that the Government of the Northern Territory and the
Administrator of the Northern Territory discover documents relating to the
making of the relevant regulations. Objection to the production of certain
documents was made "on behalf of the Northern Territory" by the
Director-General of the Chief Minister's Department of the Northern Territory
on the ground that they were the subject of privilege. The privilege claimed
was legal professional privilege, as it is somewhat inaccurately known, the
privilege belonging to the client rather than the profession.  No claim was
made for Crown privilege, as a related branch of the law is, also
inaccurately, known. (See Reg. v. Lewes Justices;  Ex parte Home Secretary
(1973) AC 388.)  The Northern Land Council applied to the Aboriginal Land
Commissioner (by then Kearney J.) for an order that the documents for which
privilege was claimed be produced for inspection.

4.  Kearney J. took the view that the documents for which privilege was
claimed were of the type to which legal professional privilege might attach
but that the privilege had no application because it was prima facie
established upon the material before him that the relevant communications came
into being as part of a scheme to defeat the land claims.  The communications
were thus made, in his view, in preparation for or in furtherance of an
evasion of the law.  After referring to Varawa v. Howard Smith & Co. Ltd.
(1910) 10 CLR 382, at pp 389-390, Kearney J. ordered that the contested
documents be produced for inspection by the Northern Land Council.

5.  The Attorney-General for the Northern Territory then sought and obtained
in the Federal Court orders nisi for writs of prohibition and certiorari
directed to Kearney J. An application was also made for relief under the
Administrative Decisions (Judicial Review) Act 1977 (Cth) to overcome
anticipated jurisdictional problems.  The Full Court of the Federal Court
dismissed the application under the Act and discharged the orders nisi for
prerogative relief. It is against those decisions that these appeals are
brought.

6.  Speaking for myself, I have some difficulty in seeing how the prima facie
finding of the Aboriginal Land Commissioner extends to some of the documents
which seem to be comprehended by his order.  For example, those documents
would appear to include documents comprising "preparation of the Northern
Territory Government's case before the Aboriginal Land Commissioner in the
land claim on matters arising out of the Regulations in question".  In making
his finding the Aboriginal Land Commissioner clearly had in mind the exception
from legal professional privilege of communications which amount to
participation in a crime or fraud.  But however broadly one construes that
exception, particularly with regard to what constitutes fraud, it is concerned
with the furtherance of a crime or fraud and has never extended to
communications for the legitimate purpose of being defended against a claim,
even a claim of a crime or fraud. See Reg. v. Cox and Railton (1884) 14 QBD
153, at p 175;  O'Rourke v. Darbishire (1920) AC 581, at p 632. However, any
attack upon the prima facie finding of the Commissioner was expressly
disclaimed before us and we must, therefore, proceed upon the basis that it
properly extends to all the documents to which the order relates.  The
question is then whether the evasion of the law which the Commissioner
describes is sufficient to defeat the claim for privilege for those documents.

7.  The majority in the Full Court of the Federal Court below (Woodward and
Neaves JJ.) thought that the exercise of a statutory power to make regulations
with an ulterior purpose in mind does not involve fraudulent or illegal
conduct within the meaning of the exception to legal professional privilege.
That view finds support, I think, in the cases.

8.  It is true that different expressions are to be found in the cases to
explain what is meant by crime or fraud in the present context: "any unlawful
or wicked act" (Annesley v. Anglesea (1743) 17 St. Tr. 1139, at p 1229); "a
criminal or unlawful proceeding", "fraudulent contrivance, or ... any illegal
proceeding", "an improper or an illegal act", "illegality or fraud or
trickery" (Bullivant v. Attorney- General for Victoria (1901) AC 196, at pp
201, 203, 205 and 206); "crime or civil fraud", "wrong-doing", "illegal
object" (Varawa v. Howard Smith & Co. Ltd., at pp 386, 387 and 390);  "any
illegal or improper purpose", "to frustrate the processes of law", "taint of
illegality", (Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141, at pp 145, 156
and 162); "crime or fraud or civil offence" (Baker v. Campbell (1983) 153 CLR
52, at p 86).  Despite their apparent breadth, these expressions have, I
think, been used more to explain the nature of the exception rather than to
restrict the scope of the privilege.

9.  In Reg. v. Cox and Railton at p 176, Stephen J. emphasized that "every
precaution should be taken against compelling unnecessary disclosures" and in
Varawa v. Howard Smith & Co. Ltd. at p 385, Griffith C.J. doubted whether the
exception had ever been extended beyond crime or fraud. More recently in
Crescent Farm Sports v. Sterling Offices (1972) Ch 553, at pp 564-565, Goff J.
also expressed the view that the exception had always been confined to cases
of crime or fraud.  He did not consider it required any extension, saying:

    " ... I think the wide submission of the plaintiffs
    would endanger the whole basis of legal
    professional privilege.  It is clear that parties
    must be at liberty to take advice as to the ambit
    of their contractual obligations and liabilities in
    tort and what liability they will incur whether in
    contract or tort by a proposed course of action
    without thereby in every case losing professional
    privilege."


10.  In Reg. v. Bell;  Ex parte Lees privilege was claimed for an address
which had confidentially been communicated by a wife to her solicitor when
seeking advice to protect her interest in the matrimonial home.  The wife was,
however, concealing her whereabouts and those of a child in defiance of a
custody order made in favour of her husband.  This Court held that privilege
did not attach to the wife's address, but it does not appear from my reading
of the judgments in that case that the decision represents any extension of
the crime or fraud exception.  There was clear authority for the proposition
that a solicitor is obliged to give to a court any information, including his
client's address, which will enable the court to discover the whereabouts of a
ward of court whose residence is being concealed from the court and that such
information may not be the subject of a claim for professional privilege:
Burton v. Earl of Darnley (1869) LR 8 Eq 576n.; Ramsbotham v. Senior (1869) LR
8 Eq 575.  Gibbs J. decided the case upon this principle saying, at p 145,
that as an exception to legal professional privilege he was inclined to think
that it was not an extension of the rule in the case of crime or fraud, but
rested upon an independent foundation.  Wilson J., with whom Aickin J. agreed,
also found support in Burton v. Earl of Darnley and Ramsbotham v. Senior, but
nevertheless expressed the view that the confidential communication by the
wife of her address was tainted with illegality.  Stephen J. pointed to the
fact that an address is ordinarily something which is not part of any
professional confidence (Ex parte Campbell; In re Cathcart (1870) LR 5 Ch 703,
at p 705) and declined to accept that in the circumstances of the case the
communication of the address in confidence was sufficient to attract
privilege.  Murphy J. also appears to have thought for his part that privilege
had no application because the child's welfare was paramount over the
privilege.  In this respect he also relied upon Burton v. Earl of Darnley and
Ramsbotham v. Senior.  It does not seem to me that any real support is to be
found in Reg. v. Bell;  Ex parte Lees for the extension of the exception to
legal professional privilege to encompass evasions or infractions of the law
other than crime or fraud.

11.  For these reasons I think that the majority in the Court below were
correct in concluding that the allegation of an ulterior purpose in the making
of the relevant regulations amounts to no more than a claim that there was an
ostensible but not a real exercise of the power to make the regulations which
does not of itself involve even dishonesty.  But that is not an end of the
matter as the considerations to which I shall turn in a moment will show.
Having regard to those considerations, it is unnecessary to do more than to
flag the difficulties which may, in any event, be encountered in any attempt
to establish dishonesty in the form of criminal or fraudulent conduct or a
criminal or fraudulent purpose on the part of the client which in this case
must ultimately be the Crown in right of the Northern Territory since the
Northern Territory is, under s.5 of the Northern Territory (Self-Government)
Act 1978 (Cth), "a body politic under the Crown".  Whilst it may be possible,
as Reg. v. Toohey;  Ex parte Northern Land Council shows, to impute mala fides
to individuals exercising executive functions in the name of the Crown, the
imputation of mala fides, let alone dishonesty, to the Crown itself involves
more fundamental considerations which require deeper analysis than is either
necessary or desirable in this case.

12.  Nevertheless the identity of the client for which privilege is claimed
needs to be noticed for two reasons. The first, which may be dealt with
briefly, is that the legal advisers in respect of whose advice privilege is
claimed, are salaried employees in the Northern Territory Law Department.
This is, however, no reason for denying privilege to communications passing
between them and their client provided that they are consulted in a
professional capacity in relation to a professional matter and the
communications are made in confidence and arise from the relationship of
lawyer and client.  See Crompton Ltd. v. Customs and Excise Commissioners
(No.2) (1972) 2 QB 102, at pp 129, 136 and 138, on appeal (1974) AC 405;
Geraghty v. Minister for Local Government (1975) IR 300, at p 312. Cf. A.M. &
S. Europe v. Commission (ECJ) (1983) QB 878, at p 950.

13.  However, there is another reason why the identity of the client is
significant in this case.  It is because the Northern Territory acts and was
acting in this case in a governmental capacity, thus providing a basis for the
operation of another aspect of the law of privilege, namely, that relating to
the exclusion of evidence which is prejudicial to the public interest.
Privilege of this kind which, despite the inaccuracy, continues to be called
Crown privilege, is based upon the general rule that a court will not order
the production of a document, although relevant and otherwise admissible, if
it would be injurious to the public interest to disclose it.  A document may
be privileged upon this ground either because of its particular contents or
because it belongs to a class of documents which should, whatever their
individual contents, be immune from disclosure.  The nature of Crown privilege
has recently been examined by this Court in Sankey v. Whitlam (1978) 142 CLR
1, but there are two aspects of it to which I would draw attention in this
case.  The first is that it is for the court to decide whether a document
should be disclosed and in doing so it weighs the public interest in
withholding disclosure against the public interest in the availability of all
relevant evidence in order to facilitate the administration of justice.

14.  The second aspect of Crown privilege to which I would draw attention is
that although Crown privilege may not be claimed it must nevertheless be
applied by a court where it is necessary to do so.  Whether a claim for Crown
privilege has or has not been made is not in any way conclusive.  As Stephen
J. put it in Sankey v. Whitlam at p 59, " ... the function of the court, once
it becomes aware of the existence of material to which Crown privilege may
apply, is always to determine what shall be done in the light of how best the
public interest may be served, how least it will be injured."

15.  With this may be contrasted legal professional privilege.  It must be
claimed and it is not for the court to claim it in the absence of any claim by
a party.  Cf. Great Atlantic Insurance v. Home Insurance (1981) 1 WLR 529;
(1981) 2 All ER 485.  More importantly, once it is claimed it is conclusive,
provided that the relevant communication does not fall within the recognized
exceptions. It is not for the court to enter upon a balancing exercise as in
the case of Crown privilege in order to determine where the public interest
lies in the individual case.  It is established that as a matter of principle
the public interest lies in preserving the confidentiality of those
communications falling within the ambit of the doctrine.  As McMullin J.
pointed out in Reg. v. Uljee (1982) 1 NZLR 561, at pp 576-577:

    "It is not now a question of weighing the public
    interest in each case to see whether the rule
    should be applied.  Whether the principle operates
    as a bar to the emergence of the truth and to the
    overall public detriment is not now a relevant
    legal consideration.  The rule is too well
    established - even if, as Wigmore ... says, its
    benefits are 'indirect and speculative', its
    obstruction is 'plain and concrete'."

Notwithstanding this aspect of legal professional privilege, the majority in
the Court below thought that "where paramountcy is to be accorded to a higher
public interest than that which supports the privilege, the privilege is
displaced." They thought that a conclusion might be reached in this and,
presumably, other cases, by weighing the respective considerations against
each other and, in this respect, relied upon the observations of Stephen J. in
Reg. v. Bell;  Ex parte Lees, at p 155.

16.  I am unable to accept this approach.  The whole purpose of legal
professional privilege is to ensure that professional communications may take
place in confidence which will not be violated by compulsory disclosure of
them. The policy which lies behind the doctrine views unrestricted
communication between lawyer and client upon professional matters as being
necessary for the proper functioning of our legal system.  If inroads could be
made upon the privilege in individual cases by involving a "higher public
interest", its application would become uncertain and the policy behind it
would be effectively undermined.  Indeed, it may be questioned whether there
can be a higher public interest than "the perfect administration of justice".
See Bullivant v. Attorney-General for Victoria, at p 200.

17.  However, legal professional privilege is only one type of privilege and
if a communication for which it is claimed is not only in the nature of a
professional confidence but also contains information such that its disclosure
may prejudice the proper functioning of government, a court may be called upon
to determine whether the public interest is better served by its disclosure or
non-disclosure.  A determination of that kind does require a balancing of the
interest which the proper administration of justice has in the availability of
relevant evidence and the interest which the executive government has in the
secrecy of some matters of state.  It is clear, therefore, that if a document
for which legal professional privilege is claimed has come into existence as
part of the processes of government, the question of Crown privilege may arise
and, if it does, a court may be required to determine that question by
weighing the relevant considerations against each other.

18.  It seems to me that in that situation there is no room for the
application of legal professional privilege because the considerations which
must be taken into account in deciding whether Crown privilege applies must
include the desirability of preserving professional confidence between
government and its legal advisers, not as a concluded issue, but as a matter
to be weighed in the balance.  If, on the other hand, the situation may be
viewed as one of conflict between Crown privilege and legal professional
privilege, then in my view the conflict must be resolved by the application of
those principles which govern Crown privilege.  Those principles require a
court to determine where the public interest lies in each individual instance,
an issue which in the case of legal professional privilege has been
predetermined as a matter of law.

19.  The number of cases in which the circumstances may call for consideration
of Crown privilege will be limited in comparison with the number of cases in
which, although governmental functions may be involved, the only question of
privilege will be that of legal professional privilege. Crown privilege did
not, for example, arise in a case such as Grant v. Downs (1976) 135 CLR 674
where a suit was brought against a nominal defendant under the Claims Against
the Government and Crown Suits Act 1912 (N.S.W.) although questions of legal
professional privilege did.  See also, e.g., Commonwealth v. Frost (1982) 41
ALR 626, Geraghty v. Minister for Local Government;  Waugh v. British Railways
Board (1980) AC 521.  But the mere fact that the parties have not raised Crown
privilege, as in this case, cannot relieve a court from the obligation of
considering its application should the circumstances warrant it.  There
should, therefore, be no occasions when the disclosure of a communication is
refused under the doctrine of legal professional privilege in circumstances
where its disclosure would have been required as the result of a consideration
of competing interests under the doctrine of Crown privilege. Moreover, if the
individual consideration of a particular case under the doctrine of Crown
privilege requires disclosure which would be withheld if legal professional
privilege were applied, the result may be justified by the fact that
professional confidences are less likely to be inhibited by the possibility of
disclosure where the client is of a governmental character and the fact that
there is, in any event, protection against disclosure under Crown privilege
where it is required by some overriding public interest.

20.  In this case, where privilege is claimed in relation to documents forming
part of the law-making process, it is plain to my mind that, notwithstanding
the absence of any claim by the parties, the Aboriginal Land Commissioner
ought to have turned his attention to a consideration of the possible
application of Crown privilege.  If in so doing he found himself required to
adjudicate the question whether public interest required the disclosure or
continued secrecy of a particular document, then he should have determined the
matter, thereby leaving no room for the application of legal professional
privilege.  If, however, legal professional privilege is the only applicable
doctrine, the matters prima facie found by him do not bring the crime or fraud
exception into play and the privilege ought to be upheld.

21.  No point was raised concerning the availability of relief under the
Administrative Decisions (Judicial Review) Act and the convenient course would
be to allow the appeal and order under s.16(1)(b) of that Act that the matter
be referred back to the Aboriginal Land Commissioner for further
consideration.

ORDER
    Appeals dismissed with costs.