Indigenous Law Bulletin
by R J Desiatnik
Prospect Media, Sydney, 1999. RRP $75
Reviewed by David Ritter
In the context of native title litigation, the application of legal professional privilege can be decidedly problematic. A claimant application for a determination of native title literally requires an evidentiary demonstration of the history and society of the native title claimant group in question. This will involve the presentation of encyclopaedic research data, compiled by multiple third party experts including historians, linguists and anthropologists. In these circumstances, a sickening feeling may afflict advisers to native title claimant groups out of a fear that legal professional privilege may be lost through inaccurate, poorly constructed or uncontextualised research data which may lead in the subsequent discovery process to disclosures of information which could prejudice the native title claim.
Given this context, native title technicians may have welcomed the recent publication of Dr Ronald Desiatnik’s book Legal Professional Privilege in Australia like the seasick receiving a dose of quell. The work is lucid, clear and informative and written with a flair and imagination rarely found in a law textbook. It deals in an easy-to-read yet entertaining manner with the key issues: how the doctrine works, when it applies, exceptions to the doctrine, express and implied waiver of privilege and the impact of the Evidence Act 1995 (Cth) ('the Evidence Act'). One of the key themes that emerges in the book is the anomalous nature of the doctrine of legal privilege which:
...in a legal system dedicated to the task of determining where the truth of a matter lies ...[and which] permits communications relevant to that task to be hidden, with the result that the ascertainment of the truth is certainly made harder, and may well be thwarted.
As such, Desiatnik derides legal professional privilege as 'grist for the cynic’s mill' and describes how a 'shift away from giving the doctrine paramountcy' has arisen as a result of the doctrine’s logical unsustainability.
Native title cases in this context of course make excellent ‘grist for the cynic’s mill’. The crude allegation is often made that anthropologists and the like, in effect, invent evidence and that native title claimant groups should have nothing to hide. However, what might be termed the ‘Hindmarsh thesis’ must be challenged and the counter-view must, at least in part, assert the notion that legal professional privilege is a crucial element in assuring native title claims receive a fair and equitable hearing.
One of the reasons cited by Desiatnik for the gradual submergence of the island of legal professional privilege as 'a discriminatory legal principle which can no longer be vindicated' into a sea of exceptions, is the modern imperative toward a level playing field.
In an age seeking to give equal values to all aspects of society, judges and legislators alike have increasingly considered the consequences of upholding a claim of legal professional privilege. In doing so they have openly recognised that...[c]learly, there are interests which the law holds as dearly as legal professional privilege.'
Equality, of course, is not a matter of the objective or the absolute and, to paraphrase the aphorism, to treat unequals with formal equality is to perpetuate inequality. This principle has resonance in the context of the application of legal professional privilege to native title litigation. Indigenous people are subjected to non-Indigenous systems of law and are required to prove their case according to non-Indigenous judicial formulae and non-Indigenous evidentiary standards. It is a scenario in which Indigenous law and culture must be made comprehensible to the non-Indigenous Court, or their case will fail. The dynamics of this cultural exchange, particularly in light of the evident power imbalance faced by Indigenous people, makes it essential for third party experts (anthropologists, etc) to be engaged by the native title claimants in order to render their cultural norms intelligible to the Courts.
However, cultural interpreters can get it wrong. Despite best endeavours, cultural information is prone to be misunderstood, not properly contextualised or simply wrongly translated. In these circumstances, Indigenous people should not be disadvantaged by having information gathered on their behalf by third party experts easily disclosed through the displacement of legal professional privilege. In such circumstances, what can appear as the playing out of the ‘task of determining where the truth of a matter lies’ can become just another incident of cross-cultural bullying. And like so many crusades, the quest for fuller evidentiary disclosure becomes more like bigotry than zealotry. In order for justice to be done in a native title case, the native title claimants should have the capacity to heavily influence what third party accounts of their law and custom reach the Court.
[A]lthough the doctrine of Aboriginal rights is a common law doctrine, Aboriginal rights are truly sui generis, and demand a unique approach to the treatment of evidence which accords due weight to the perspective of Aboriginal people.
There is an equality imperative at work in those courts which have showed a reluctance to hold that legal professional privilege has been involuntarily waived or lost by native title claimant groups. The rationale for a robust construction of legal professional privilege that is being put forward here is nothing more than a modern manifestation of historical thinking: that disclosure of client communications with their lawyers and third party advisers would be unfair.
Desiatnik does not, of course, specifically discuss the operation of legal professional privilege in the native title arena. He does, however, consider Towney v Minister for Land & Water Conservation, which was the first case to consider legal professional privilege in a native title context. To native title technicians, Towney illustrated the alarming ease with which privilege over third party communications can be inadvertently lost. In a non-native title context though, the case is about the relationship between the common law of legal professional privilege and the Evidence Act. One of the key questions in this respect has been whether it is the sole purpose test (Evidence Act) or the dominant purpose test (the common law) that should be applied in any given instance. That is, should the test be whether the communication in question came into existence for the sole purpose of contemplated litigation or giving legal advice, and thereby remains prima facie privileged ('the sole purpose test')? Alternatively, should the test be whether the communication in question came into existence for the dominant purpose of contemplated litigation or giving legal advice, and so is prima facie privileged ('the dominant purpose test')? When the Evidence Act was enacted in 1995, it appeared that the common law of Australia had settled on the sole purpose test. In contrast, the Evidence Act itself adopted the dominant purpose test – at least for disclosure of communications at trial even if not for disclosure of communications at the stage of subpoena or discovery.
The contrast between the common law and the statute is illustrated in a second case to consider legal professional privilege in native title, Daniel and Others v State of Western Australia and Others, which his Honour Justice Nicholson J of the Federal Court delivered on 25 October 1999 – well after the publication of Desiatnik’s book.
In the understated language of the High Court, the disjunction between the common law and the statute evident in cases like Daniel has 'given rise to a number of problems'. Desiatnik comments at length on the disjunction and also nominates the Australian common law’s reliance on the dominant purpose test as one of the chief doctrinal forces behind the historical restriction of the ambit of legal professional privilege. However, Desiatnik must have felt his own sinking feeling when, in Esso Australia Resources Ltd v Commissioner of Taxation, handed down on 21 December 1999 (only a few months after the publication of his book), the High Court abolished the sole purpose test. Rather, the High Court decided that the dominant purpose test is the appropriate test for legal professional privilege under the common law of Australia. In so doing, the Court brought the statutory and common law tests into line. Thus Desiatnik’s book must be read as subject to the High Court’s decision in Esso Australia. It is well worth considering whether, with respect, Daniel (or indeed Towney) would have been in any way decided differently, had either been heard after Esso Australia.
The High Court in Mabo emphatically acknowledged that native title is a unique set of rights that, to be justly dealt with, require judicial flexibility. The application of legal professional privilege to native title proceedings provides a critical opportunity to give force to that proposition. The law must be applied in order to ensure that legal professional privilege contributes to true justice and equity for native title claimants. The native title claim decisions about legal professional privilege thus far have been made under the sole purpose test. However, the freshly-imposed hegemony of the dominant purpose test in Australia offers new possibilities for maintaining the veil of legal professional privilege in a native title context. Hopefully this jurisprudential shift will increase the potential of legal professional privilege in a native title context to, true to its origins, fulfill its promise to 'protect the confidences of the client'.
David Ritter is Principal Legal Officer of the Yamatji Land & Sea Council.
 (1st ed, 1998).
 Ibid 3.
 Ibid 184.
 Ibid 15.
 Ibid 184, in part quoting A A S Zuckerman, 'Practice and Procedure' in The All England Reports Annual Review 1995 (1996) 416.
 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193, 229-30.
 (1997) 147 ALR 402. See Desiatnik, above n 1, 149 and 157-9.
 Ibid 23-26.
 See for example Daniel and Others on behalf of the Ngaluma and Injibandi Peoples v State of Western Australia and Others  FCA 1541 (Unreported, Nicholson J, 25 October 1999).
 The case is discussed in detail elsewhere in this issue of the Indigenous Law Bulletin.
 Esso Australia Resources Ltd v Commissioner of Taxation  HCA 67 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Callinan JJ, 21 December 1999), para 3.
 See generally Desiatnik, above n 1, chapter 10.
 Above, n 11. The result was by a majority of 4 – 2.
 Itself quoted in the High Court’s judgement: see for instance ibid n 100, 136 and 159.
 I think that there are very strong arguments in favor of public interest immunity – or even a separate head of privilege as was tantalizingly mentioned in the course of AG v Maurice  HCA 80; (1986) 161 CLR 475 – being extended to the work of third party consultants to native title claimants. However, there is not space for this discussion here.
 Commr of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, per McHugh J, 550, quoted in Desiatnik, above n 1, 6.