A challenge to the curfew imposed across metropolitan Melbourne

By way of background, the Supreme Court of Victoria has recently heard a claim by restaurant and café owner Michelle Loielo's challenge to the curfew imposed across metropolitan Melbourne by Deputy Public Health Commander (Associate Professor Giles). Ms Loielo has sought judicial review of the Stay at Home (Restricted Areas) Directions (No 15) (Directions) and orders under the Charter of Human Rights and Responsibilities Act 2006 (Charter).

One of the central issues in the case is the extent to which Associate Professor Giles had regard to the Charter in deciding to issue the Directions. The Court observed that legal advice on which she relied "may be directly relevant to deciding that issue".

In her affidavit, Associate Professor Giles deposed to considering, among other things, "11 individual assessments by the Legal Services Branch [of the Department of Health and Human Services] that each of the directions are likely to be compatible with the charter". The lawyers for Associate Professor Giles rejected Ms Loielo's attempt to inspect these documents, claiming legal professional privilege.

Over the Department's objection, the Court ruled that Ms Loielo was entitled to inspect unredacted copies these documents. In so ruling, Ginnane J:

• observed that Associate Professor Giles asserted the Directions were likely to be compatible with the Charter on the basis of the legal advice;
• in so doing, found that Associate Professor Giles had disclosed the substance of the legal advice within the meaning of section 122(3) of the Evidence Act 2008;
• accordingly, found that Associate Professor Giles had acted in a way inconsistent with objecting to the adducing of the legal advice as evidence within the meaning of section 122(2) of the Evidence Act 2008 (that is to say, legal professional privilege had been waived).

The Court also found the legal advice as described in Associate Professor Giles' evidence had clearly affected her "state of mind" about the making of the Directions. That state of mind (and specifically the manner in which Charter rights were taken into account against the effect of the curfew) was squarely at issue.

Takeaway

There are two overlapping circumstances in which a decision-makers' consideration of legal advice will be central to the validity of a decision under review:

• where the legal advice is a mandatory or relevant consideration under the terms of the statute pursuant to which the decision is made; and/or
• where, as here, the decision-maker relies on the legal advice as evidencing the legality of their decision.

A decision-maker should be attentive to the risks of describing the legal advice in their evidence. Particularly in the second scenario, where the decision-maker puts their consideration of legal advice into issue, this ruling indicates that the Court will readily find legal professional privilege has been waived.

The circumstance in which the question of waiver came up in this case arose by reason of the affidavit which Associate Professor Giles was required to swear, explaining the basis for the relevant direction. While the decision focused on Associate Professor Giles' affidavit as giving rise to the waiver, it is, in reality, the anterior decision to rely on that advice in making the Direction that set the issue in motion.

It is unavoidable for a decision-maker to rely on legal advice in making a decision. If that is the case, the next best protection is to ensure that the advice is described and framed with a potential need to disclose it later on in mind. For example, consider:

• eliminating unnecessary aspects to the advice from the document that ultimately forms part of the brief;
• ensure that the language expressed in the advice is clear and does not refer to other advice or documents (which could result in a waiver of privilege in those documents as well);
• avoid giving advice verbally – it creates the potential for imprecision in identification of what was relied on later on and could invite a more broad-ranging enquiry into advices generally received by the decision-maker; and
• if you or your department has previously given advice on the same or similar subject-matter to this decision maker, consider whether you want to obtain a 'fresh' advice from a different legal service provider, so that there is no direct link back to earlier advices your department may have given.

If you would like to understand how to better protect decision makers from waiving privilege in advice that forms part of their briefing material, please contact Ben Dodgshun