The Federal Court of Australia’s (the Court) decision in Henderson v Commonwealth Broadcasting Corporation Pty Ltd (Legal Professional Privilege) [2026] FCA 1632 (Henderson Decision) confirms employers can explain termination decisions and rely on legal advice without waiving privilege.
In issue
- Henderson v Commonwealth Broadcasting Corporation Pty Ltd (Legal Professional Privilege) [2026] FCA 1632 (Henderson Decision) considered whether documents created during an employer’s workplace investigation were privileged, and whether decision makers’ evidence of their reasons for termination, including reliance on legal advice, led to the waiver of privilege.
The background
Ms Jacqueline Henderson had co-presented The Kyle and Jackie O Show on KIIS 1065 radio since 2013. She did so under a multi-million dollar contract with Commonwealth Broadcasting Corporation Pty Ltd (CBC), a subsidiary of ARN Media Ltd (ARN).
On 20 February 2026, Ms Henderson and Mr Kyle Sandilands argued on air. Six days later, Ms Henderson’s lawyers sent CBC a letter raising complaints under work health and safety laws and the Fair Work Act 2009 (Cth) (FW Act). The letter asserted that she would no longer present with Mr Sandilands and asked for a different time slot.
ARN investigated the incident and obtained legal advice. On 3 March 2026, its board resolved for CBC to terminate the contract on the basis that Ms Henderson had repudiated it.
Ms Henderson then brought general protections proceedings, alleging the contract was terminated because she exercised workplace rights. Under s 361 of the FW Act, the Court presumes that allegation is true unless ARN and CBC prove otherwise (i.e. a reverse onus of proof).
ARN's directors and CEO filed affidavits explaining their commercial reasons for termination including reliance on legal advice. Ms Henderson sought access to 810 documents over which ARN and CBC claimed privilege.
The decision
Justice Jackman inspected the documents and upheld every privilege claim. In doing so, Justice Jackman considered:
- whether the documents were privileged at the time of creation, and if so
- whether privilege had been waived.
The documents were privileged
In assessing whether privilege applied, the Court highlighted that legal professional privilege applies to documents created for the dominant purpose of obtaining legal advice or for use in litigation.
In respect of the workplace investigation documents, ARN's Chief Legal Officer gave unchallenged evidence that the investigation was arranged so that external lawyers could obtain the information they needed to give advice. The investigation began shortly before those lawyers were engaged, which the Court described as 'unremarkable' and insufficient to defeat privilege.
The Chief People Officer had written an email describing the investigation's aims as including workplace culture and psychological safety. That email also did not defeat privilege because the Chief People Officer did not ultimately claim to have decided the purpose of the investigation. The Court noted that the hierarchy of decision-making can be significant in deciding why a document was created.
The Court also extended privilege to the following documents created for the dominant purpose of legal advice:
- communications with in-house counsel (provided the lawyer acted in a professional capacity, the communications were confidential and they arose from a genuine lawyer–client relationship), but noted that simply copying a lawyer into an email is not enough
- internal communications between non-lawyers made to seek or pass on legal advice
- communications with public and investor relations advisers who were bound by confidentiality, and
- unsent drafts.
Privilege was not waived
Ms Henderson argued that ARN waived privilege because its decision makers' evidence about why they terminated her contract referred to legal advice. In turn, CBC and ARN argued that the decision makers’ state of mind was put in issue because of the reverse onus of proof.
The Court held that the question is not whether a party has put its decision makers' state of mind in issue. It is whether the party has put the contents of its legal advice in issue. Applying that test, the Court found obtaining legal advice and acting on it is to be expected, and arguably necessary for board directors to meet their duties in disputes of this size. Accordingly, the Court found that mere reliance did not expose the contents of the legal advice and waive privilege.
In other words, the reverse onus of proof made no material difference to whether privilege was waived.
Implications for you
The decision is reassuring for employers defending general protections claims, highlighting several important takeaways.
- Set the legal purpose at the outset of a workplace investigation. In particular, senior decision makers (ideally with legal involvement) should record that an investigation is being run to obtain legal advice.
- Engage lawyers early. A short gap before lawyers are engaged is not fatal, but early engagement strengthens the privilege claim.
- Manage mixed messages. Internal communications that describe wider cultural or wellbeing aims can be used to challenge the investigation's purpose.
- Don't rely on copying in-house counsel. Privilege depends on the dominant purpose of a communication, not on who receives it.
- Keep third-party advisers within confidentiality arrangements and ensure any input is sought for a legal purpose.
- Draft evidence carefully. Witnesses should explain the commercial reasons for a decision in their own terms without describing, summarising or relying on what the legal advice said.
Taking these steps gives employers the best chance of keeping their legal advice confidential. As this case shows, careful planning means decision makers can explain their reasons with confidence without exposing the advice behind them.
