Complaint of 23 September to the Commonwealth Ombudsman

Dear Professor John McMillan

I complain about the decision made by Ms Julia Agostino. Her decision is irrelevant to my complaints. She fails to address my complaints, and does not provide any reasons for ignoring my complaints.

Ms Agostino’s conclusion is: ‘the documents are clearly subject to legal professional privilege.’ I have never doubted or complained that the documents should not be subject to legal professional privilege. My complaints have always been that the legal professional privilege should be waived. Ms Agostino fails to make any decision in term of what I have complained. Her decision is unprofessional or incompetent.

I expressly complained: ‘Mr Bluck did not try to investigate whether the reviewer had considered “the implied waiver of privilege” or to suggest the AGD to consider “the implied waiver of privilege” even though he wrote that he had power to do so.’

Ms Agostino viewed the documents. On face of it, she wanted, in response to my complaints, to identify whether the documents contain any grounds of the decision made by the Attorney-General’s Department, but she failed to disclose what she found. In my opinion if the documents did not contain any grounds of the decision, she would have declared it. Do you agree?

My complaints have always been that the “implied waiver of privilege” apples to the reasons of decision in accordance with Bennett v Australian Customs, in which Tamberlin J points out:

a. ‘Kirby J points out in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34: “I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents.”’ (paragraph 7, emphasis added)

b. ‘…the whole of the advice on which all those conclusions are based, must be considered to have been waived’. (paragraph 14, emphasis added)

If you do not have jurisdiction or power to deal with the decision made by the government, please inform us. For all concerned, could you please instruct the decision makers that they should not play around?

I request to disclose Ms Agostino’s finding in relation to whether the documents contain the reasons of the decision made by the Attorney-General’s Department. Furthermore, I request to investigate and decide what I have complained about:

1. whether the documents contain any reasons of the decision
2. whether the reasons of the decision should be disclosed in accordance with Bennett v Australian Customs?

My previous complaint and Ms Agostino’s decision are enclosed.

(file below is downloadable as doc. File)

My complaint of 11.12.2008 to the Ombudsman

(file below is downloadable as .jpg file)

Ms Agostino’s decision of 07.05.2008