Attorney-General for the State of South Australia v Seven Network (Operations) Ltd

[2019] SASCFC 36

Supreme Court of South Australia

(Full Court)

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v SEVEN NETWORK (OPERATIONS) LTD

[2019] SASCFC 36

Judgment of The Full Court

(The Honourable Auxiliary Justice Tate, The Honourable Auxiliary Justice Kyrou and The Honourable Auxiliary Justice Niall)

12 April 2019

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS SUBJECT TO LEGAL PROFESSIONAL PRIVILEGE

The President of the South Australian Civil and Administrative Tribunal, Justice Hughes, reserved questions of law, pursuant to s 72 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) for the Full Court of the Supreme Court of South Australia. The questions of law arise from the decision of the Ombudsman to grant access under the Freedom of Information Act 1991 (SA) (‘the Act’) to Seven Network (Operations) Ltd to an advice prepared by the then Solicitor-General, Mr Chris Kourakis QC, in respect of the third petition for mercy brought by Henry Vincent Keogh to Her Excellency Marjorie Jackson-Nelson Governor of South Australia.

The questions concern the operation of the exemption of documents that contain matter that would be privileged from production on the ground of legal professional privilege, under cl 10(1) of sch 1 to the Act. They raise the issue of whether the Ombudsman is permitted to consider waiver in determining the exemption under cl 10(1) and, if so, whether the Ombudsman is entitled to consider fairness to a person other than the person who makes the request for access under the Act. They also raise the issue of whether the Ombudsman is required to consider if part of a document may remain privileged despite waiver over another part. The questions also concern the internal working documents exemption under cl 9(1) of sch 1 to the Act. They raise the issue of whether the Ombudsman, in determining if disclosure would be contrary to the public interest, is required to take into account the nature and sensitivity of the document, the identity and seniority of office of the author and recipients of the document, and the preservation of confidentiality in respect of promotion of frankness and candour. They further raise the issue of whether the Ombudsman, in determining if disclosure under the Act would be contrary to the public interest, is entitled to give weight to the prosecutor’s duty of disclosure as a supposedly analogous obligation on the Crown.

Held by the Court in answer to the questions of law reserved:

Question:

1. Whether, on a proper construction of clause 10 of Schedule 1 to the Freedom of Information Act 1991, the words ‘would be privileged from production in legal proceedings’ have the effect that where a document is created in circumstances in which it would be privileged from production in legal proceedings:

(a) the Ombudsman is permitted to consider questions of waiver; and

(b) is required to determine that the document is exempt.

Answer:

(a) Yes; and

(b) No.

Question:

2. In the event that the Ombudsman is permitted to consider questions of waiver under clause 10 of Schedule 1 to the Freedom of Information Act 1991, is the Ombudsman entitled to take into account considerations of fairness to a person other than the applicant?

Answer:

Yes.

Question:

3. In the event that the Ombudsman is permitted to consider questions of waiver under clause 10 of Schedule 1 to the Freedom of Information Act 1991, and given the finding of the Ombudsman (at [90]) that ‘the document deals with a single subject-matter namely the approach that the Attorney-General should take to Mr Keogh’s third petition for mercy’, is the Ombudsman required to consider whether part of the document may remain privileged despite waiver over another part?

Answer:

Unnecessary to answer. The question is based on a false premise and is misconceived. 

Question:

4. Whether, on a proper construction of clause 9 of Schedule 1 to the Freedom of Information Act 1991 the Ombudsman, in determining whether the disclosure of the document would on balance be contrary to the public interest, is required to take into account:

(a) the nature and sensitivity of the document and its content;

(b) the identity and seniority of office of the author and recipients of the document; and

(c) the preservation of confidentiality in respect of the promotion of frankness and candour.

Answer:

No, but the Ombudsman may take into account the matters identified in (a), (b) and (c) and he did so. 

Question:

5. Whether, on a proper construction of clause 9 of Schedule 1 to the Freedom of Information Act 1991 the Ombudsman, in determining whether the disclosure of the document would, on balance, be contrary to the public interest, was entitled to give weight to a supposed analogous obligation on prosecutors to disclose documents containing legal advice on the prosecution as an aspect of the prosecutor’s duty of disclosure.

Answer:

Yes.

Freedom of Information Act 1991 ss 3, 3A, 12, 20, sch 1 cls 9 and 10, referred to.
Mann v Carnell (1999) 201 CLR 1; Osland v Secretary, Department of Justice (2008) 234 CLR 275, applied.
Alstom Power v Yokogawa Australia Pty Ltd [No 5] [2010] SASC 267; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Re Howard and Treasurer (Cth) (1985) 7 ALD 626; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; Waterford v Commonwealth (1987) 163 CLR 54, discussed.
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; Department of Housing and Works v Bowden [2005] WASC 123, considered.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v SEVEN NETWORK (OPERATIONS) LTD
[2019] SASCFC 36

Full Court: Tate AJ, Kyrou AJ and Niall AJ

table of contents

Introduction and summary..........................................................................................	2
The statutory scheme...................................................................................................	4
Statement of agreed facts...............................................................................................	7
Questions of law reserved..............................................................................................	8
The press release.........................................................................................................	9
The press conference...................................................................................................	12
The determination........................................................................................................	13
Question 1: In determining whether the exemption for legally professionally privileged documents under cl 10(1) applies, is it permissible to consider whether the privilege has been waived?	29
(1)             Text.........................................................................................................	29
(2)             Context...................................................................................................	37
(3)             Purpose..................................................................................................	39
Objects of the Act(i)       ............................................................................	39
(ii)     Limited waiver.................................................................................	44
Question 2: If waiver can be taken into account, may fairness to a person other than the applicant under the Act be relevant?..........................................................................................	46
Question 3: If waiver can be taken into account, and the document deals with a single subject-matter, is it necessary to consider whether part of the document remains privileged?	49
Question 4: In determining whether disclosure would be contrary to the public interest, in the context of the internal working documents exemption, are the ‘Howard factors’ mandatory?	58
Question 5: In determining whether disclosure would be contrary to the public interest, in the context of the internal working documents exemption, is it permissible to give weight to a supposedly analogous duty of disclosure by a prosecutor?...................................	61
Conclusion.....................................................................................................................	65

1. THE COURT: 

   Introduction and summary

2. The primary question raised in this proceeding is the scope of the exemption under the Freedom of Information Act 1991 (SA) (‘the Act’) for documents that ‘would be privileged from production in legal proceedings on the ground of legal professional privilege’.[1]  In determining if the legal professional privilege exemption applies, is it permissible to consider whether privilege has been waived?[2]  

   [1] Clause 10(1) of sch 1 to the Act. See [15] below.

   [2]    In what follows we refer to ‘legal professional privilege’ and ‘privilege’ interchangeably.

3. On 25 September 2017 the Ombudsman made a determination under the Act (‘the determination’)[3] to release an advice prepared by the Solicitor-General for South Australia, Mr Chris Kourakis QC,[4] in respect of the third petition for mercy brought by Henry Vincent Keogh (‘the advice’).  The advice was undated but provided to the then South Australian Acting Attorney-General, and Acting Premier, the Honourable Kevin Foley MP, sometime before August 2006.  On 10 August 2006 Mr Foley announced at a press conference that Mr Keogh’s third petition for mercy had been refused.  Mr Foley also issued a press release.  Mr Foley referred to details of the advice at both the press conference and in the press release. 

   [3]    Seven Network (Operations) Ltd and Attorney-General (SA) (Determination, Ombudsman SA, Ref No 2016/09259, 25 September 2017).       

   [4]    Mr Kourakis QC is now the Chief Justice of the Supreme Court of South Australia. 

4. Mr Keogh had been convicted of murder in 1995 but succeeded in his appeal against conviction in 2014.[5] In 2016 Seven Network (Operations) Ltd (‘Seven Network’), the respondent in this proceeding, made a request under the Act to the Attorney-General’s Department for a copy of the advice. The request was transferred to the office of the Attorney-General. A delegate of the Attorney-General refused access and, following an internal review, the refusal was confirmed by the Attorney-General (‘the agency’). Seven Network sought an external review by the Ombudsman. The Ombudsman reversed the decision made by the agency and he held, in particular, that the advice was not exempt from disclosure under the privilege exemption as references made by Mr Foley in the press release and at the press conference to the details of the advice had waived privilege in the advice. He also held that the advice was not protected by the ‘internal working documents’ exemption[6] because he was not satisfied that its disclosure would, on balance, be contrary to the public interest.  The operation of the internal working documents exemption is also raised in this proceeding.

   [5]    R v Keogh[No 2] (2014) 121 SASR 307 (Gray, Sulan and Nicholson JJ).

   [6] Clause 9 of sch 1 to the Act. See [15] below.

5. The Attorney-General, the applicant in this proceeding, applied to the South Australian Civil and Administrative Tribunal (‘SACAT’) for a review of the determination.  The President of SACAT (Hughes J) reserved questions of law[7] for the Full Court of the Supreme Court of South Australia[8] by reference to a statement of agreed facts. 

   [7] Pursuant to s 72 of the South Australian Civil and Administrative Tribunal Act 2013 (SA).

   [8]    The members of the Court were appointed pursuant to the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) as judges of the Supreme Court of South Australia on an auxiliary basis for the purpose of hearing the matter.

6. We set out the reserved questions of law in full below[9] and our answers to them.[10] The questions raise the permissibility of taking into account waiver in determining whether the privilege exemption applies, and, if so, whether fairness to a person other than the person who made the request for access under the Act can be considered in determining the exemption based on privilege. The questions also raise the issue of whether privilege can be waived over part of a document and not the whole where the document deals with a single subject-matter.

   [9] The questions are set out at [18] below.

   [10] The questions and our answers are set out at [152] below.

7. In summary, in our view, it is permissible to consider waiver when determining whether the exemption applies for documents that would be privileged from production in legal proceedings.  In Mann v Carnell[11] the High Court set out the governing principle by specifying that ‘[i]t is inconsistency between the conduct of the client and maintenance of the confidentiality [which privilege protects] which effects a waiver of the privilege’,[12] (‘the inconsistency test’).  If relevant, the inconsistency test is informed by considerations of fairness.  We consider that the Ombudsman was permitted to consider questions of waiver and was not required to hold that the advice is exempt.

   [11] (1999) 201 CLR 1.

   [12]   Mann v Carnell (1999) 201 CLR 1, 13 [28] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

8. We consider that, insofar as fairness is relevant to the inconsistency test, it can extend to considerations of fairness to a person other than the applicant for access to the document under the Act; specifically, here, fairness can extend to Mr Keogh. We consider that the Ombudsman did not err in the manner in which he dealt with the submission that part of the advice remained privileged.

9. The questions also seek to clarify whether three considerations must be taken into account in assessing whether, under the internal working documents exemption, disclosure of a document would be contrary to the public interest.  These include the nature and sensitivity of a document and its content;  the identity and seniority of the author and recipients;  and the promotion of frankness and candour by the preservation of confidentiality.  We consider that the considerations identified are not mandatory but may be taken into account, depending on the circumstances.  In any event, we consider that the Ombudsman took these considerations into account in the determination. 

10. The questions raise the issue of whether the Ombudsman was entitled to give weight to a supposedly analogous duty of disclosure borne by the prosecution in a criminal trial.  In our view, the analogy was not material to the Ombudsman’s reasoning and the public interest that supports the duty was referred to in a permissibly general way.

    The statutory scheme

11. The objects of the Act include the promotion of openness and accountability by government. This is reflected in s 3:

    3—Objects

    (1)The objects of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament—

    (a)     to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and

    (b)     to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.

    (2)The means by which it is intended to achieve these objects are as follows:

    (a)     ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and

    (b)     conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and

    (c)     enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.

    (3)Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.

12. Section 3A sets out the manner in which the Act is to be approached:

    3A—Principles of administration

    (1)It is the intention of the Parliament—

    (a)     that this Act should be interpreted and applied so as to further the objects of this Act; and

    (b)     that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.

    (2)Agencies are to give effect to this Act in a way that—

    (a)     assists members of the public and Members of Parliament to exercise rights given by this Act; and

    (b)     ensures that applications under this Act are dealt with promptly and efficiently.

13. The Act confers an enforceable right of access to documents of an agency:

    12—Right of access to agencies’ documents

    A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.

14. The definition of an ‘agency’ extends to a Minister of the Crown and an administrative unit of the Public Service.[13]  A ‘document’ includes ‘anything in which information is stored or from which information may be reproduced’.[14] An agency may refuse access to a document, pursuant to s 20(1) of the Act, ‘if it is an exempt document’.[15]  An ‘exempt document’ is defined to mean ‘a document that is an exempt document by virtue of Schedule 1’.[16]  Schedule 1 contains a number of exemptions including exemptions for Cabinet documents (cl 1);  Executive Council documents (cl 2);  documents affecting law enforcement and public safety (cl 4), amongst others, in addition to the privilege exemption (cl 10) and the internal working documents exemption (cl 9).

    [13]   The Act s 4.

    [14]   The Act s 4.

    [15] See [16] below.

    [16]   The Act s 4.

15. In the determination the Ombudsman held that the advice was not exempt from disclosure under the internal working documents exemption or the privilege exemption.  He also held that the advice was not exempt as an Executive Council document, a document affecting personal affairs, or a document affecting business affairs.[17]  The exemptions that are relevant to this proceeding are as follows:

    9—Internal working documents

    (1)A document is an exempt document if it contains matter—

    (a)     that relates to—

    (i)any opinion, advice or recommendation that has been obtained, prepared or recorded; or

    (ii)any consultation or deliberation that has taken place,

    [17] Clauses 2(1), 6(1) and 7(1) of sch 1 to the Act, respectively. These exemptions are no longer in dispute.

    in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and

    (b)     the disclosure of which would, on balance, be contrary to the public interest. 

    (2)A document is not an exempt document by virtue of this clause if it merely consists of—

    (a)matter that appears in an agency’s policy document; or

    (b)factual or statistical material.

    10—Documents subject to legal professional privilege

    (1)A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

    (2)A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.

1. Relevant to the question of severance is s 20 which provides:

   20—Refusal of access

   (1) An agency may refuse access to a document—

   (a)     if it is an exempt document; or

   …

   …

   (4)If—

   (a)     it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and

   (b)     it appears to the relevant agency (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy,

   the agency must not refuse to give access to the document to that limited extent.

   Statement of agreed facts

2. The statement of agreed facts was prepared by the parties and approved by the President of SACAT.  It records in chronological sequence the principal events relevant to this proceeding:

   1On 23 August 1995 Henry Vincent Keogh was convicted of murder by the Supreme Court of South Australia.  Mr Keogh’s appeal to the Court of Criminal Appeal was dismissed.

   2By petition to the Governor of South Australia dated 31 August 2003, Mr Keogh sought that the Attorney-General refer his case to the Full Court of the Supreme Court.  This was Mr Keogh’s third petition for mercy.

   3The petition was referred by the Premier to the then Attorney-General, the Honourable Michael Atkinson MP.

   4On 8 September 2003, the Attorney-General sought the advice of the then Solicitor-General, Chris Kourakis QC, in relation to the petition, in order to assist the Attorney-General to advise the Premier on the petition.

   5In response to the Attorney-General’s request for advice, the Solicitor-General prepared a report for the Attorney-General entitled ‘Third petition of Henry Vincent Keogh to Her Excellency Marjorie Jackson-Nelson Governor of South Australia’ (‘the Report’).

   6The Report was provided to the Acting Premier and Acting Attorney-General, the Honourable Kevin Foley MP.

   7On 10 August 2006, the Acting Premier and Acting Attorney-General announced that Mr Keogh’s third petition for mercy had been refused.  Annexure 1 to this Statement is a copy of the press release.  Annexure 2 to this Statement is a copy of the transcript of the press conference.

   8On 19 December 2014, the Court of Criminal Appeal of South Australia in R v Keogh [[No 2]] (2014) 121 SASR 307 allowed Mr Keogh’s subsequent appeal against conviction pursuant to the newly introduced s 353A of the Criminal Law Consolidation Act 1935.^[[18]] The Court found that there was a miscarriage of justice, set aside Mr Keogh’s conviction, and directed that he be re-tried.

   [18] Section 353A provides for the Full Court to hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. The Full Court may allow an appeal under s 353A if it thinks that there was a substantial miscarriage of justice.

   9On 13 November 2015, the Director of Public Prosecutions entered a nolle prosequi to end the prosecution on the re-trial.

   10On 19 July 2016, Seven Network (Operations) Ltd made an application under the Freedom of Information Act 1991 to the Attorney-General’s Department for ‘a copy of the report entitled “Third petition of Henry Vincent Keogh to Her Excellency Marjorie Jackson-Nelson Governor of South Australia”’.

   11On 1 August 2016, the application was transferred to the office of the Attorney-General.

   12On 14 September 2016, a delegate of the Attorney-General made a determination refusing access to the Report of the Solicitor-General.

   13On 14 October 2016, Seven Network (Operations) Ltd made an application for internal review of the determination of 14 September 2016.

   14On 28 October 2016, following internal review of the determination, the Attorney-General confirmed the determination to refuse access to the Report of the Solicitor-General.

   15On 24 November 2016, the Respondent applied to the Ombudsman for an external review of the internal review determination by the Attorney-General.

   16On 25 September 2017, the Ombudsman reversed the agency’s determination pursuant to s 39 of the Freedom of Information Act 1991.  Annexure 3 to this Statement is a copy of the Ombudsman’s determination.

   17On 25 October 2017, the Attorney-General applied to the South Australian Civil and Administrative Tribunal (‘SACAT’) for a review of the Ombudsman determination of 25 September 2017.

   18On 8 March 2018, SACAT granted permission to the Attorney-General to proceed with a review on the basis of the grounds and questions of law set out in the Attorney-General’s amended application for review.

   19On 9 April 2018, the President of SACAT Justice Hughes reserved the questions of law set out in the amended application for the determination of the Full Court.

   Questions of law reserved

3. The questions of law reserved by the President of SACAT for the consideration of this Court are as follows:

   1Whether, on a proper construction of clause 10 of Schedule 1 to the Freedom of Information Act 1991, the words ‘would be privileged from production in legal proceedings’ have the effect that where a document is created in circumstances in which it would be privileged from production in legal proceedings:

   a.the Ombudsman is permitted to consider questions of waiver; and

   b.is required to determine that the document is exempt.

   2In the event that the Ombudsman is permitted to consider questions of waiver under clause 10 of Schedule 1 to the Freedom of Information Act 1991, is the Ombudsman entitled to take into account considerations of fairness to a person other than the applicant?

   3In the event that the Ombudsman is permitted to consider questions of waiver under clause 10 of Schedule 1 to the Freedom of Information Act 1991, and given the finding of the Ombudsman (at [90]) that ‘the document deals with a single subject-matter namely the approach that the Attorney-General should take to Mr Keogh’s third petition for mercy’, is the Ombudsman required to consider whether part of the document may remain privileged despite waiver over another part?

   4Whether, on a proper construction of clause 9 of Schedule 1 to the Freedom of Information Act 1991 the Ombudsman, in determining whether the disclosure of the document would on balance be contrary to the public interest, is required to take into account:

   a.the nature and sensitivity of the document and its content;

   b.the identity and seniority of office of the author and recipients of the document; and

   c.the preservation of confidentiality in respect of the promotion of frankness and candour.

   5Whether, on a proper construction of clause 9 of Schedule 1 to the Freedom of Information Act 1991 the Ombudsman, in determining whether the disclosure of the document would, on balance, be contrary to the public interest, was entitled to give weight to a supposed analogous obligation on prosecutors to disclose documents containing legal advice on the prosecution as an aspect of the prosecutor’s duty of disclosure.

   The press release

4. The press release (dated 10 August 2006) announcing that Mr Keogh’s third petition for mercy was refused (Annexure 1 to the Statement of Agreed Facts) records a number of statements, attributed to Mr Foley, including that the advice does not disclose any arguable basis for a miscarriage of justice or reason to doubt Mr Keogh’s guilt.  Mr Foley also stated that the advice noted that various complaints made by Mr Keogh, relied upon in support of the petition for mercy, ‘were totally without merit’.[19]  The press release is set out in full below:

   [19]   In the press release and at the press conference, Mr Foley refers to the advice as ‘the report’.

   KEOGH’S THIRD PETITION FOR MERCY REFUSED

   Her Excellency the Governor has declined to exercise the prerogative of mercy, on advice, on the third petition of mercy from convicted murderer Henry Keogh and has today written to his lawyers to advise them.

   Acting Attorney General Kevin Foley says he has also declined to refer the petition to the Supreme Court, after considering advice received from the Solicitor General Chris Kourakis QC.

   Mr Foley says that after considering the report of the Solicitor General, delivered after an exhaustive examination over two and a half years of 37 complaints contained in Mr Keogh’s third petition, he formed the opinion that it did not disclose any arguable basis on which the Supreme Court could find that there had been a miscarriage of justice.

   ‘Nor does it disclose any reason to doubt Mr Keogh’s guilt of the murder in 1994 of Anna Jane Cheney’, Mr Foley said. 

   ‘It is important to understand that the case against Mr Keogh was never dependent on the pathology evidence alone.

   ‘For example, in his address to the jury, the prosecutor Paul Rofe QC said: “If this was just pathology evidence then Keogh should be acquitted.”

   ‘The trial judge too directed the jury that: “It is accepted by both sides that the pathology evidence, by itself, does not solve this case for you.”

   ‘Rather it was the overwhelming strength of the whole of the circumstantial evidence against Mr Keogh that led, and still leads, to a conclusion of guilt.

   ‘Some of the criticisms of the way in which Dr Manock conducted the autopsy of Ms Cheney may be valid.  However, those matters were known to the defendant’s lawyers or the expert pathologists they engaged at the time of trial.

   ‘There was no deficiency in the prosecution’s disclosure.  Nor is there any feature of the way in which the trial was conducted that shows any real risk that there was a miscarriage of justice on this ground.

   ‘Nothing that the petitioner, or his lobbyists through the media have raised, change the facts surrounding the awful death of Ms Cheney.’

   Mr Foley says on reading Mr Kourakis’ report, it reminds us of evidence at the trial which found Ms Cheney was found dead in her bath;

   ·       at a time when without her knowledge, her life was insured to a total value of $1.2 million under five policies that had been fraudulently obtained by Mr Keogh, by forging her signature on the policy applications;

   ·       the very day after she and Mr Keogh had attended on a wedding celebrant to register their intent to solemnise a relationship that Mr Keogh had betrayed by having affairs with two other women;

   ·       within 24 hours of her suffering up to 15 bruises to different parts of her body;

   ·       with two bruises at the very top of her head that are difficult to explain innocently.

   ‘The combined weight of the circumstances is more than enough to prove Mr Keogh’s guilt.

   ‘Moreover, the lies told by Mr Keogh to several people, including Ms Cheney’s father and the police shortly after her death can be viewed as an attempt to conceal the full value of the insurance he had taken out on her life, and therefore the amount he stood to gain from her death.

   ‘It is not arguable that there has been a miscarriage of justice,’ Mr Foley said.

   Mr Foley said the report notes that other complaints made in support of the petition were totally without merit, such as:

   ·       Ms Cheney’s car was missing on the night of her death suggesting that a person other than Mr Keogh was involved:  Police photographs taken on the night show that there was a car in the driveway of Ms Cheney’s home.  More importantly, Mr Keogh gave evidence on his trial that it was there.  This claim was either made without Mr Keogh’s instructions or, alternatively, it was raised and supported by Mr Keogh in the knowledge that it was contrary to his evidence.

   ·       It was not possible for Ms Cheney to have been drowned in the bath:  Strong criticisms were advanced of one possible scenario that was advanced at trial by Dr Manock.  Indeed the defence mounted a strong attack on Dr Manock’s hypothesis at trial.  However, Dr Manock’s theory was only ever presented as one possible way in which Mr Keogh might have drowned Ms Cheney.  Although the pathologists called by the defence at Mr Keogh’s trial strongly disagreed with Dr Manock’s theory, they all agreed that another could have deliberately drowned Ms Cheney.  That concession is obviously correct.  Apart from the specious suggestion that there was insufficient water in the bath, no other reason for doubting the possibility … was advanced by the petitioner.

   ·       There was not enough water in the bath for Ms Cheney to have drowned:  Mr Keogh’s own evidence was that he found Ms Cheney with her face under water.  The preponderance of eyewitness accounts establishes that the bath was one-half to three-quarters full.

   ·       A photograph of Mr Keogh’s left hand was reversed when it was developed so that it appeared to be his right hand:  The allegation is correct.  However, the photograph was never used at either of Mr Keogh’s trials.  It was an exhibit to a statement tendered at the committal hearing but was never tendered on his trial before a jury.  It was in all likelihood a photographic development error that could not possibly have affected Mr Keogh’s trial in any way.  An interview with Mr Rofe QC about this matter that was broadcast on the television current affairs program Today Tonight is reproduced in the petition.  The reporter asserted in that interview that the photographs had been admitted into evidence on Mr Keogh’s trial.  That assertion is patently wrong. 

   ·       A photograph of Ms Cheney’s legs shows an injection mark or insect sting:  Neither the police who carefully examined Ms Cheney’s body on the night, nor Dr Manock, saw any such mark.  If it had caused an allergic reaction it would have been obvious.  An independent expert has reported that there is no evidence upon which to conclude that Ms Cheney suffered an anaphylactic reaction.

   ·       Ms Cheney may have suffered an allergic reaction to Naprosyn tablets found in the home:  The Forensic Science Centre conducted tests of Ms Cheney’s blood and no trace of Naprosyn was found.

   ·       Some swelling of Ms Cheney’s face is apparent in photographs taken of her body on the night of her death:  Police officers who closely examined Ms Cheney’s body reported no swelling.  Importantly, neither did Mr Keogh.  Relying on the photographic appearances, it has been insinuated that the appearance of Ms Cheney’s face was deliberately altered after her death.  The allegation is inherently improbable.  No motive for any such conduct is given.  Moreover, Mr Keogh was present in the house at all relevant times.  He has certainly never suggested that he saw anyone at the house attempt to change Ms Cheney’s facial appearance. 

   The press conference

5. At the press conference of 10 August 2006, Mr Foley read the press release including the specific rebuttal in the advice about a number of particular complaints relied upon in support of the petition for mercy.  He then said, ‘End of statement, questions?’  The following exchange took place, including a statement by Mr Foley, based on his consideration of the advice, that there was no doubt in the mind of the Solicitor-General that Mr Keogh was guilty of the murder of Ms Cheney:

   ...

   03.11.46  The fact that Dr Manock has been held in disrepute on a number of points in this whole argument doesn’t that at the very least raise doubts that something is wrong somewhere?

   03.11.57  No. On the advice of the Solicitor General as I have stated here today that regardless of the hypothesis put by Dr Manock at the trial it is the opinion of the Solicitor General as it has been of the Court that overwhelming body and circumstantial evidence points to the guilt of Henry Keogh.

   ...

   03.13.48  The fact that Today Tonight has gone in hard on this story and put one would think fairly credible evidence at the time are they on a hiding to nothing ... Are you hell bent on discrediting anything Today Tonight have said?

   03.14.00  I think it is clear from the report of the Solicitor General that so-called evidence of Today Tonight has been totally rejected and is without foundation.  ... the people of South Australia can be comforted in the knowledge of a two and a half year exhaustive examination by the Solicitor General one of the most senior officers of this State has concluded that there is no doubt in his mind as to the guilt of Henry Keogh.  The overwhelming body of evidence shows Mr Keogh is guilty of a terrible, terrible crime ...

   ...

   03.14.26  The matter of Dr Manock is a separate issue. The overwhelming issue conclusions that the Solicitor General has presented in his report to me is that regardless of the theory put forward by Dr Manock the overwhelming body of evidence can only lead to one conclusion that Henry Keogh is guilty of the murder of Anna Jane Cheney.

   ...

   03.14.47  ... the case at hand here is so very clear to myself as the Acting Attorney General and I say to all South Australians on the evidence on the overwhelming body of evidence viewed by the Solicitor General over two and a half years, one of the State’s most senior legal officers concludes without doubt in his mind, without doubt in my mind Henry Keogh is guilty of a terrible, terrible murder ...

   The determination

6. Relevant to Questions 1, 2 and 3 of the reserved questions of law, in the determination the Ombudsman clarified that Seven Network’s primary position was that the advice was not privileged at all because the Solicitor-General was not providing legal advice in the ordinary course of government business but was acting as the agent of the Attorney-General.[20]  He rejected this submission and held that the advice satisfied the common law test for attracting legal professional privilege, namely, that it was a confidential communication between a client and their lawyer created for the dominant purpose of obtaining or giving legal advice or for the dominant purpose of use in existing or anticipated legal proceedings.[21]

   [20]   The Ombudsman dealt with the internal working documents exemption first before dealing with the privilege exemption.  We have set out the reasoning in the reverse sequence reflecting the reserved questions of law.

   [21]   Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.

7. The Ombudsman noted that Seven Network’s secondary position was that privilege had been waived on the ground that a significant portion of the advice had been made public due to the content revealed in the press release and at the press conference.[22] The agency had submitted that it was not permissible for the Ombudsman, in considering whether the advice was exempt under cl 10(1) of the Act, to take into account whether privilege had been waived. The Ombudsman referred to various authorities on the issue. He referred, on the one hand, to the decision of McKechnie J in Department of Housing and Works v Bowden (‘Bowden’)[23] that held that waiver ought not be taken into account in dealing with the privilege exemption the subject of that proceeding, and, on the other hand, the decisions of Williams J in Queensland Law Society Inc v Albietz (‘Albietz’)[24] and the High Court in Osland v Secretary, Department of Justice (‘Osland’)[25] that held, implicitly, that it was permissible to take into account questions of waiver in determining whether a document was exempt under the privilege exemptions the subject of those proceedings.  He rejected the view, expressed in Bowden, that determining a question of waiver requires skills that a person untrained in the law is unlikely to have, especially in isolation from particular legal proceedings.  He said:  

   62.Before considering whether in the present case the Acting Attorney-General did relinquish the benefit of the confidentiality attaching to the document, I address the agency’s submission that, when considering the application of clause 10(1) of Schedule 1 to the FOI Act, a decision-maker ought not consider whether legal professional privilege has been waived.

   63.In support of this submission, the Crown Solicitor cites the decision of McKechnie J of the Western Australian Supreme Court in Department of Housing and Works v Bowden.  In that case His Honour held that in general, it is only necessary for a decision-maker, including the WA Information Commissioner, to decide whether a document is prima facie privileged from production in legal proceedings.  The question of whether privilege has been waived may involve subtle questions of law and is often difficult to resolve.  Parliament could not have intended that such questions should be resolved in the context of FOI requests by persons untrained in the law and in a vacuum without the matrix of extant legal proceedings to resolve the question.

   64.In Bowden McKechnie J acknowledged that his decision was contrary to the decision of Williams J of the Queensland Supreme Court in Queensland Law Society Inc v Albietz and Anor.  In Albietz the court implicitly accepted that the question of waiver was legitimately considered in the context of deciding whether a document was an exempt document under FOI legislation on the ground that it would be privileged from production in legal proceedings.  This was also implicitly accepted by the High Court in Osland v Secretary to the Department of Justice.

   65.I note that my Queensland counterpart has recently affirmed that questions of waiver of legal professional privilege can be considered in the Freedom of Information context.

   66.Given the state of the authorities I am not persuaded that, having accepted that the document attracted legal professional privilege at the time it was prepared, I am unable to consider whether or not that privilege has been waived.

   67.In reaching this position, I note that a level of skill is required in order to correctly apply a number of exemption clauses in Schedule 1 to the FOI Act and FOI legislation in other jurisdictions.  For instance, in considering whether clause 17 applies to render a document exempt, an FOI officer^[[26]] would need to decide if a document contains matter the public disclosure of which would constitute contempt of court or infringe the privilege of Parliament.  Even the arguably more straightforward clauses such as clause 6(1) and 7(1) require a judgment as to what amounts to an unreasonable disclosure or a reasonable expectation.  Such concepts, like that of the waiver of a privilege, are also legal concepts.  With respect, I decline to follow Bowden which appears inconsistent with other authorities such as Albietz and Osland.[27]

   [22]   The Ombudsman also noted that Seven Network submitted that privilege had been waived in the advice because of statements made by Kourakis CJ during an ABC program and in his judgment in R v Van Beelen [2016] SASCFC 32 and the extensive discussion by the Full Court in R v Keogh [2014] SASCFC 20 and R v Keogh [No 2] (2014) 121 SASR 307 of a report provided by Professor Vernon-Roberts to the Solicitor-General on 22 November 2014. The Ombudsman rejected this on the ground that as privilege exists to protect the confidentiality of communications between a lawyer and their client, it is the client alone who may relinquish that entitlement.

   [23] [2005] WASC 123.

   [24] [2000] 1 Qd R 621.

   [25] (2008) 234 CLR 275.

   [26] That is, an accredited officer of an agency who deals with requests under the Act.

   [27]   Citations omitted.

1. He acknowledged that it is the inconsistency test from Mann v Carnell that governs the question whether privilege has been waived.  He also considered that it was arguable that treating the advice as privileged might be inconsistent with a duty of disclosure the prosecution owes to a person accused of a criminal offence:

   68.A client can waive legal professional privilege over an otherwise protected communication either expressly or by imputation.  In the present case, the issue for consideration is whether the Acting Attorney-General did the latter.  It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of privilege.^[[28]^]  The law recognises such inconsistency and determines its consequences, even though those consequences may not reflect the subjective intention of the party who has lost the privilege.

   69.As stated above^[[29]^] ... when a person is being prosecuted for the commission of a criminal offence, there is a duty on the Crown to disclose material in its possession or power which would tend to assist a defendant’s case.  This duty has been recognised as an important ingredient in a fair trial and is an aspect of the prosecution’s duty to ensure that the Crown case is presented with fairness to an accused.  In R v Bunting and Others Martin J held that the DPP’s duty to disclose relevant information and produce relevant documents was inconsistent with the maintenance of confidentiality over communications which would otherwise have been privileged.  If the duty of the Crown, as a model litigant, continues after a convicted person has exhausted all avenues of appeal, it could be argued in the present case that treating the document as privileged would be inconsistent with such a duty.[30]

   [28]   In support of this proposition, the Ombudsman cited Mann v Carnell (1999) 201 CLR 1 and the judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ at 13 [28]. See [7] and n 12 above.

   [29] The Ombudsman referred to the observation he made in the last bullet point at [53] of the determination that a prosecutor has a duty of disclosure. See [30] below.

   [30]   Citations omitted.

2. The Ombudsman set out in detail many of the statements made in the press release and at the press conference.  He then distinguished the circumstances before him from those in Osland where the High Court determined that the limited disclosure had not amounted to an implied or imputed waiver of privilege by the then Victorian Attorney-General:   

   73.In Osland v Secretary to the Department of Justice the High Court considered whether the Victorian Attorney-General had impliedly waived legal professional [privilege] over legal advice he had received from three eminent lawyers.  The Attorney had sought that advice in order to form a view about the advice that should be given to the Governor of Victoria in relation to a petition of mercy made by the appellant.  In announcing the Governor’s decision to deny the petition, the Attorney-General issued a press release, which read:

   On July 5, 1999, Mrs Osland submitted a petition for mercy to the then Attorney-General Jan Wade.  That petition set out six grounds on which the petition should be granted.

   Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland’s petition. 

   This week I received a memorandum of joint advice from the panel in relation to the petition.  The joint advice recommends on every ground that the petition should be denied.

   After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.

   The Governor has accepted this advice and denied the petition. 

   74.In concluding that, by making those statements, the Attorney-General had not waived legal professional privilege the plurality of the High Court said:

   The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations.  The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition.  They were external to the Department.  Their advice covered all the grounds upon which the petition was based.  They recommended denial of the petition.  Their advice was carefully considered and the petition was denied.  The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision.  This did not involve inconsistency; and it involved no unfairness to the appellant …

   Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case.  As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree …

   75.In Nine Films Tamberlin J said:

   While I accept that, in some circumstances, a clear disclosure of the ‘bottom line’ of the advice, and the course of conduct taken thereafter, may be sufficient to amount to waiver of legal professional privilege, I do not think these matters have been established in the present case.  On a fair and reasonable reading, the statement to the effect that senior counsel had been engaged and that he had reviewed matters in detail and that steps were being taken based on his recommendations is not sufficient to amount to a waiver of the legal advice.  The substance or content of the advice is not disclosed with specificity or clarity.  Questions of waiver are matters of fact and degree and, in this instance, I am not persuaded that the conduct, assertions or admissible evidence are sufficient to warrant the necessary implication that legal professional privilege has been waived.

   76.In my view the facts of the present case are distinguishable from those in Osland.  Unlike the Victorian Attorney-General, Mr Foley did not follow the ‘long-standing practice of not giving reasons’ for the Governor’s decision.  While he referred briefly to the process that had been followed in rejecting the petition for mercy, the evident intention of most of the statements made in the press release and during the press conference appears to have been to assure the public of Mr Keogh’s guilt of the offence.  Not only did Mr Foley have no doubt in his mind that Mr Keogh was guilty of a ‘terrible, terrible murder’, neither did the Solicitor-General.[31] 

   [31]   Citations omitted.

3. The Ombudsman referred to the existence of a report from a pathologist, Professor Vernon-Roberts, who had criticised the approach adopted by Dr Manock, the pathologist who gave evidence at the trial of Mr Keogh for murder.  The report from Professor Vernon-Roberts was not mentioned in the press release or at the press conference.  It was a central consideration in Mr Keogh’s successful appeal against conviction.[32]  The Ombudsman also noted that, after the trial, Dr Manock had recanted on material aspects of the evidence he gave at Mr Keogh’s trial on some of his evidence.  The Ombudsman observed, in the context of applying the inconsistency test, that the limited disclosure of the advice in the press release and at the press conference had the consequence that Mr Keogh was not aware of the criticisms of Dr Manock’s evidence until he was provided with the report of Professor Vernon-Roberts in 2013.  He said:

   [32]   R v Keogh [No 2] (2014) 121 SASR 307, 313–4 [18], 315 [25].

   77.In the present case, the document [the advice] refers to the existence of an expert report provided to the Solicitor-General for the purposes of preparing his advice.  The report was from the late Professor Vernon-Roberts.  In his judgment in R v Van Beelen, Kourakis CJ referred to this report, saying:

   In support of his application that I recuse myself, Mr Borick  QC relied on the fact that the press release [issued by Mr Foley] did not refer at all to a pathologist’s report which I, as Solicitor-General, had sought and received from Professor Vernon-Roberts.  Professor Vernon-Roberts’ report was subsequently disclosed to Mr Keogh in 2013.  Professor Vernon-Roberts criticised several aspects of the way in which Mr Manock had undertaken pathology tests on the autopsy and in particular the lack of histology testing of sections of tissue taken from sites of apparent bruising on the body of Ms Cheney.

   In particular, Professor Vernon-Roberts formed the opinion that:

   The sampling of only one of several ‘bruises’ on the right leg and only one of three on the left leg is, in my opinion, seriously inadequate as, taking account of Dr Manock’s subsequent conclusions as to the mode of death of Ms Cheney by assisted drowning and the importance of confirming the presence of bruising and assessing their age to sustain those conclusions each ‘bruise’ on both legs should have been adequately sampled.  The tissues between each bruise should also have been sampled to ascertain whether there were separate bruises, possibly of different ages, or a single extensive bruise on one or both legs with variable discolouration of the skin.

   Professor Vernon-Roberts also opined that:

   [T]he application of staining for the presence of iron in the cells should be undertaken on tissues from Miss Cheney’s medial left leg as confirmation of the presence of iron pigment would indicate bruising having occurred some days or longer prior to death.

   After the report of Professor Vernon-Roberts was released to Mr Keogh’s legal representatives, the analysis he recommended was undertaken. It showed the presence of iron, haemosiderin, in a bruise on the medial aspect of Ms Cheney’s leg. That result showed therefore that at least one of the bruises was older than opined by Dr Manock and inconsistent with the prosecution case that it was caused at about the time of death. The report of Professor Vernon-Roberts and the subsequent discovery of haemosiderin in the section of the left leg medial bruise was a central consideration in Mr Keogh’s subsequent appeal brought pursuant to s 353A of the [Criminal Law Consolidation Act 1935] to this Court. 

   78.It is noteworthy that at the time the Acting Attorney-General gave his advice that the petition for mercy should be denied, Dr Manock, who had given evidence at Mr Keogh’s trial that the mark on the medial aspect of Ms Cheney’s left leg was a bruise, had recanted on that evidence during a hearing by the Medical Board.  In addition, in 1995 the South Australian Coroner made searing criticisms of conclusions reached by Dr Manock after conducting autopsies on the bodies of three babies, who, he wrongly concluded had each died from bronchopneumonia.  These matters brought the reliability of Dr Manock’s evidence during Mr Keogh’s trial into stark relief.  Evidence contrary to that given by Dr Manock was available to the Acting Attorney-General on 10 August 2006.

   79.In determining whether there has been inconsistency between a disclosure of legal advice and the maintenance of confidentiality over that advice, one of the factors to be considered is the legal and practical consequences of limited rather than complete disclosure.  In the present case, one of the consequences of the limited disclosure by the Acting Attorney-General was that Mr Keogh was not aware of criticisms of important aspects of Dr Manock’s evidence.  Had he been so aware, he may well have pursued fruitful forensic lines of enquiry casting doubt on the reliability of that evidence and presented them in a subsequent petition for mercy.  It is reasonable to expect that he would have done so at a much earlier date than 5 December 2013 when Professor Vernon-Roberts’ report was released to Mr Keogh’s solicitors.[33]

   [33]   Citations omitted.

4. The Ombudsman specifically considered what role fairness should play in an application of the inconsistency test.  He concluded that the limited disclosure of the advice was inconsistent with the maintenance of the privilege because the statements made in the press release and at the press conference had the purpose of assuring the public of Mr Keogh’s guilt yet they failed to reveal that part of the advice that referred to an expert, Professor Vernon-Roberts, expressing doubts about the evidence of Dr Manock upon which the prosecution had relied.  According to the Ombudsman, a consequence of the limited disclosure was that Mr Keogh was placed at a forensic disadvantage because he was deprived of the opportunity to pursue a fruitful line of enquiry:

   80.In its submissions, the agency refers to statements made by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd.  In that case, the court said:

   According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege).  It may be express or implied … In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege.  The courts will impute an intention where the acts of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

   … In Mann v Carnell, it was said that it is considerations of fairness which inform the court’s view about an inconsistency which [may] be seen between the conduct of a party and the maintenance of confidentiality, though ‘not some overriding principle of fairness operating at large’.

   81.The agency observes that the principle that the issue of fairness does not operate at large but is to be considered in the context of particular curial proceedings creates difficulties when considering the operation of clause 10(1) of Schedule 1.  It is argued that in order to consider whether there has been waiver of legal professional privilege over the document, it is necessary to postulate the existence of legal proceedings and to determine who the parties would be to those proceedings and what the issues would be.  In Osland the High Court approached the issue on the basis that the appellant was the other party in hypothetical proceedings but in the present case the applicant is in a fundamentally different situation.  Its rights have not been affected, nor has it suffered any forensic disadvantage by virtue of Mr Foley’s statements.

   82.In Osland the High Court considered the issue of imputed waiver in circumstances where litigation was neither on foot nor anticipated.  As stated by the agency, the High Court appears to have approached the issue on the basis that the appellant in that case was involved in litigation with the Victorian Attorney-General.^[[34]]

   [34]   We do not read the High Court in Osland as hypothesising separate proceedings between the Victorian Attorney-General and Mrs Osland for the purpose of adjudging inconsistency as here the Attorney-General appears to have submitted to the Ombudsman.  Our reading of Osland is that the Court did not need to determine if there was a viable separate proceeding between the Victorian Attorney-General and Mrs Osland because it was irrelevant: Osland (2008) 234 CLR 275, 298 [47]. In any event, the Ombudsman did not adopt the approach of positing a hypothetical legal proceeding between the parties.

   83.In the present matter, I have not approached the issue of waiver as if the applicant is the other party to legal proceedings involving Mr Foley.  Rather, my primary approach has been to consider whether Mr Foley by his statements made on 10 August 2006 acted in a manner that was inconsistent with the maintenance of privilege over the document.  In doing so I have taken account of the considerations of fairness that arose in a context where:

   ·a convicted person, who had exhausted all avenues of appeal then available to him, had petitioned the Governor to exercise the prerogative of mercy

   ·it was the duty of the then Attorney-General to advise the Premier about whether the prerogative should be exercised

   ·for the purpose of so advising the Premier, the Attorney-General sought the advice of the Solicitor-General

   ·in the course of formulating his advice, the Solicitor-General sought and received a report of an expert who cast doubt on an important aspect of the evidence given at Mr Keogh’s trial by the prosecution witness Dr Manock

   ·the fact that this expert cast this doubt on an important aspect of Dr Manock’s evidence was communicated in the document and can be taken to have been known by the Acting Attorney-General

   ·after receiving the document, the Acting Attorney-General advised the Premier that he should advise the Governor to deny the petition for mercy

   ·in announcing the Governor’s decision to deny the petition, the Acting Attorney-General made statements the evident purpose of which was to assure the public that there was no reason to doubt Mr Keogh’s guilt

   ·the Acting Attorney-General did not refer to that part of the document in which the Solicitor-General referred to the fact that the expert had told him he doubted the accuracy of an important aspect of Dr Manock’s evidence

   ·by disclosing some parts of the document and failing to reveal other parts of it, the Acting Attorney-General put Mr Keogh at a forensic disadvantage in that he deprived him of the opportunity to pursue a fruitful line of enquiry before presenting any further petitions for mercy.

   84.I conclude that by issuing the press release and making the statements he did during the press conference held on 10 August 2006 the Acting Attorney-General should be imputed to have waived the legal professional privilege that otherwise protected the document.  The Acting Attorney-General’s conduct was inconsistent with maintenance of the privilege.[35]

   [35]   Citations omitted.

5. The Ombudsman considered whether, despite his conclusion on waiver, part of the advice could be severed from the rest and would remain privileged.  He concluded that severance was not possible for the following reasons:

   Severance

   85.The Crown Solicitor has submitted that even if the Acting Attorney-General did impliedly waive legal professional privilege (a proposition with which he does not agree), the content of paragraphs 56–95 of the document was not referred to in the press release or conference.  The Crown Solicitor submits that those paragraphs constitute a self-contained discussion of a discrete issue and are not necessary for an understanding of the balance of the report.  They should therefore be severed from any material disclosed to the applicant.

   86.In Great Atlantic Insurance Co v Home Insurance Co Templeman LJ said that ‘the simplest, safest and most straightforward rule’ is that if a document is subject to legal professional privilege the privilege must be asserted as to the whole document unless the document deals with separate subject matters so that it can be divided into two separate and distinct documents, each of which is complete.  This statement of principle was endorsed by Gibbs CJ in Attorney-General for the Northern Territory v Maurice. 

   87.It was observed by His Honour Justice Bleby of the South Australian Supreme Court in Alstom Power v Yokogawa Australia Pty Ltd (No 5) that, in reaching this conclusion, the English Court of Appeal did not refer to the principles of inconsistency set out by the High Court of Australia in Mann v Carnell.  Bleby J held that waiver of privilege in respect of the whole of a document can only be imputed when there is inconsistency or unfairness in waiving privilege as to only part of the document.  It is not only a matter of ascertaining whether the contentious document deals with separate subject matters.

   88.On the other hand, I note that the test set out by Templeman LJ in Great Atlantic was applied by the Federal Court in Bristol-Myers Squibb Company v Apotex Pty Ltd (No 3) and Schutz Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (No 18).  The judgments in both of these cases were handed down after the judgment in Alstom Power.

   89.Given the state of the authorities and, in particular, the Chief Justice’s statement in Maurice I have decided to apply the principle that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder.  The question is therefore whether the document in issue deals with one — or more — subject matters. 

   90.It is my view that the document deals with a single subject-matter namely the approach that the Attorney-General should take to Mr Keogh’s third petition for mercy.  While most of the advice contained in paragraphs 56–95 of the document comprises a neutral discussion of various options open to the Attorney and the ways in which courts have approached various issues, at both paragraphs 75 and 92, the Solicitor-General connects this discussion to matters raised by Mr Keogh in the petition.  Further, the content of paragraph 96 demonstrates the link between the material in paragraphs 56–95 and the remainder of the document.

   91.I conclude that the Acting Attorney-General should be taken as having impliedly waived legal professional privilege over the entire document.[36]

   [36]   Citations omitted.

1. Relevant to Questions 4 and 5 of the reserved questions of law, the Ombudsman noted that the advice clearly satisfied the first limb of the internal working documents exemption in cl 9(1), as it contained matter relating to an opinion or advice obtained for the purpose of the decision-making functions of a Minister, and that the only live issue was whether the second limb was satisfied, namely, whether the disclosure of the advice would, on balance, be contrary to the public interest. He referred to various factors identified in Re Howard and Treasurer (Cth) (‘Re Howard’),[37] (‘the Howard factors’) and commented on their applicability:

   [37] (1985) 7 ALD 626 (Administrative Appeals Tribunal).

   29.In its submissions to me about where the public interest might lie in the present case, the Crown Solicitor on behalf of the agency relies upon the judgment of Davies J in Re Howard and the Treasurer of the Commonwealth of Australia.  In that case, the Administrative Appeals Tribunal was considering section 36 of the Freedom of Information Act 1982 (CW), which was then in substantially similar terms to clause 9(1) of the South Australian Act. Davies J said:

   In considering the public interest element of s 36, the Tribunal may be called upon and in this review is called upon to have regard not only to the incidents of disclosure of the particular documents but also to the effect which availability for disclosure to the public under the FOI Act of like documents would have upon the decision-making processes of the Minister and of his Department … it is possible to postulate that in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought but that:

   (i)the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;

   (ii)disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;

   (iii)disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;

   (iv)disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;

   (v)disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.

   The FOI Act has been in operation since 1 December 1982.  As was said in Re Murtagh and Commissioner of Taxation, cited above, Re Chandra and Minister for Immigration and Ethnic Affairs, cited above, and Re Lianos and Secretary to the Department of Social Security, the Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must often be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act.

   30.The agency has previously conceded that the second and fifth of the ‘Howard factors’ are not of assistance in this matter.  The advice was not proffered by the then Solicitor-General for the purpose of developing government policy.  Nor could it be said that the document does not fairly disclose the reasons for the decision taken by the Acting Attorney-General and ultimately, the Governor.

   31.In my provisional determination I queried the applicability of the Howard factors to this matter.  I noted that in the former Ombudsman’s 2014 FOI audit report, he had:

   ·       drawn attention to Justice Davies’ comments about the lack of clarity in 1985 about whether disclosure of internal working documents was in the public interest; the element of conjecture involved in his decision; and the need to give weight to the objects of the FOI Act

   ·       noted that following the decision in Re Howard, a number of Australian jurisdictions had legislated so as to lessen its impact

   ·       further noted that State Records of South Australia had responded to the Ombudsman’s provisional audit report by preparing a guideline ‘FOI and the Public Interest’, which was endorsed by Senior Management Council.  This guideline states:

   Claiming that disclosure of certain information would not be in the public interest because it would prevent free and frank advice to government must be considered on a case by case basis and supported by factual evidence of the harm and damage it would cause to government.

   ·       stated that while the seniority of persons privy to a communication might increase the likelihood that the public interest will weigh against disclosure, that is only one of the public interest factors to be weighed.

   32.In response, the Crown Solicitor submits that the District Court of South Australia recently reaffirmed the applicability of the Re Howard factors in State of South Australia (Department of Planning, Transport and Infrastructure) v Brokenshire.  In that case, Her Honour McIntyre DJC accepted and adopted the factors outlined in the appellant’s written submissions as being ‘general indicators of where the public interest  may lie’.  The factors outlined by the appellant were the Re Howard factors.

   33.However, after having surveyed other District Court decisions considering clause 9(1), I have been unable to locate any in which the Howard factors are wholeheartedly endorsed.  In Treglown v SA Police, Herriman DCJ went so far as to characterise as a rebuttable proposition ‘that the prospect of disclosure will not ordinarily inhibit candour such as to be contrary to the public interest’.

   34.It should be noted that for clause 9(1) to apply the agency must establish that disclosure of the document would be contrary to the public interest; the question is not whether disclosure would be in the public interest.

   35.In considering whether disclosure of the document would be contrary to the public interest, I am mindful of the fact that, used in the context of the FOI Act, the term ‘public interest’ does not mean ‘that which gratifies curiosity or merely provides information or amusement’.  In addition, the term means the interest of the public as distinct from the interest of an individual or individuals, including Mr Keogh and the applicant in this matter.[38]

   [38]   Citations omitted.

2. The Ombudsman identified the particular considerations relied upon by the agency, in support of the exemption, commented upon each of them, and indicated that he was not persuaded that the disclosure of the advice would impair the integrity of government decision-making to a significant degree:

   36.The agency submits that consideration of the following factors lead to the conclusion that disclosure of the document would be contrary to the public interest:

   ·       the document contains legal and highly sensitive advice.  This sensitivity arises not only from the nature of the matter being discussed but also the contentiousness of the issues involved.  Release to the world at large of legal advice given to government on contentious issues has the potential to prejudice the capacity of the State to defend its interests

   ·       the document is a report from the second most senior law officer in the State to the acting first law officer, for the purpose of advising the Governor on exercising a Crown prerogative.  Communications and deliberations between senior officers of State are part of a class of documents that are entitled to a measure of protection by their nature, not just their content; there is a general prejudice or detriment in their release regardless of content

   ·       the matters addressed in the document are current and controversial and so are entitled to a high degree of confidentiality

   ·       decision-makers should be judged on their final decision and the reasons they give for it, rather than on what might have been considered or recommended to them by others

   ·       it is not necessary for the public to have access to legal advice in order for Ministers to be held politically accountable for their decisions

   ·       there is a danger in the prospect of people being able to trawl through advice in an effort to identify potential inconsistencies between the advice and the ultimate decision taken

   ·       release to the world at large of legal advice given to government on contentious issues has the potential to prejudice the capacity of the State to defend its interests.  While there are not presently any legal proceedings involving Mr Keogh, it has been reported that he intends to seek compensation for his imprisonment

   ·       the prerogative of mercy is not part of the criminal justice system.  Information about the operation of the criminal justice system can be obtained from sources other than the document so it is not necessary to disclose the document.

   37.The purpose of clause 9(1) is to protect the integrity and viability of the governmental decision-making process. It is only if the release of a document would impair this process to a significant or substantial degree, and there is no countervailing benefit to the public which outweighs that impairment, that it would be contrary to the public interest to grant access. In my view the fact that the discussion in the document concerns legal matters — rather than for example economic or security matters — does not necessarily lead to a conclusion that its disclosure would impair the governmental decision-making process.

   38.In my provisional determination, I noted that other advices provided by Chief Justice Kourakis to previous Attorneys-General have been made public.  In 2004 the then Attorney-General gave details to the House of Assembly of such an advice provided about the prosecution of Paul Habib Nemer by the Director of Public Prosecutions.

   39.In addition and according to the applicant’s solicitors, when the then Solicitor-General gave advice to the then Attorney-General in about 2002 about the sale of property belonging to the former magistrate, Peter Liddy, copies of that advice were provided to both the present applicant and their solicitors.

   40.In its submissions in response to the provisional determination, the Crown states that the fact that governmental legal advice has been publicly provided in different circumstances on different matters has little relevance to the circumstances of the present case.  However, I take a different view.  It is reasonable to assume that, if it had been anticipated that the release of documents discussing legal matters would have significantly impaired the Attorney-General’s decision-making process, such documents would not have been released.

   41.I do not agree with the agency’s assertion that communications between senior officers of State are entitled to a measure of protection by their very nature and regardless of their content.  The FOI Act identifies only limited classes of documents as exempt regardless of their contents such as Cabinet documents and Executive Council documents.  Most other classes of documents, including internal working documents, are only exempt if their disclosure would be contrary to the public interest.  This was noted by Deputy President Hall in Re Lianos and Secretary to the Department of Social Security.  Furthermore the FOI Act expressly applies to documents held by Ministers of the Crown, many of which could reasonably be expected to contain high level communications.

   42.I do not consider that there is a reasonable expectation that disclosure of the document would inhibit the frankness and candour of any future advice provided by a Solicitor-General in similar circumstances. In reaching this conclusion, I have taken into account the duties of the Solicitor-General, which are set out in section 6 of the Solicitor-General Act 1972:

   The Solicitor-General—

   (a)     shall at the request of the Attorney-General—

   (i)act as Her Majesty’s counsel; and

   (ii)     perform such other duties as are ordinarily performed by counsel; …

   43.The duties of legal practitioners in South Australia were considered by the Full Court in Legal Practitioners Conduct Board v Lind.  Justice Gray said:

   It is of the utmost importance that public confidence in the legal profession be maintained.  Legal practitioners play an integral part in the administration of justice.  The obligations which accompany a practitioner’s position are commensurate with the responsibility involved.  The duties of legal practitioners include a duty to uphold the law, a duty to the Court, a duty to clients and a more general duty to members of the public.  The Court and the public demand high standards from practitioners.  This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.

   Personal integrity is an essential attribute for a legal practitioner.  Practitioners must act honestly at all times.  There is an obligation of frankness and candour in dealings with clients …

   44.It is to be expected that a legal practitioner who is appointed Solicitor-General would be at the peak of their profession and highly and rightly respected for fulfilling their ethical and professional duties.  I consider it highly unlikely that a person in that role would provide the Attorney-General with less than frank and candid advice simply because that advice might be disclosed in the future.

   45.I am fortified in this view by the fact that previous reports by His Honour Chief Justice Kourakis, have been made publicly available, as discussed in paragraphs 38 and 39 above.

   46.The agency states that the matters addressed in the document are current and controversial and this is a factor weighing against disclosure.  I agree that there remains controversy surrounding Mr Keogh’s prosecution and conviction and the denial of his petitions to the Governor.  However, on 19 December 2014 the Court of Criminal Appeal set aside Mr Keogh’s conviction.  In these circumstances the currency of the views expressed in the document is questionable.

   47.While the agency points to the danger of people being able to ‘trawl through’ the document in an effort to identify potential inconsistencies between its contents and the ultimate decision taken, others might characterise as desirable the enabling of understanding and thoughtful discussion about the advice on which Mr Foley acted and those actions themselves.

   48.I acknowledge that in this case, release of the document to the applicant would in effect be release to the world at large.  There is no ability to set conditions on the publication of a document released under the FOI Act.  The agency submits that release of the document has the potential to prejudice the capacity of the State to defend its interests and that this would be contrary to the public interest.

   49.To my mind this argument is a double-edged sword for the agency.  While the expenditure of taxpayers’ money to meet an order for the payment of damages would be contrary to some facets of the public interest, it could also be argued that should a court determine that a person has been wronged by the State, it is in the public interest that such a person receives redress for that wrong.  The submission implies that the document contains information that would hamper the State in its defence if a claim for damages were to be made by Mr Keogh.  In my view, if this were to be the case, some facets of the public interest would favour disclosure of the document.

   50.The Crown Solicitor’s Office has submitted that the ordinary considerations of transparency and accountability do not apply to the exercise of the prerogative powers of the monarch’s representative.  The exercise of the prerogative of mercy is not a feature of the ordinary administration of government, nor is it a feature of the administration of the criminal justice system.  It is not subject to judicial review.  This must be borne in mind when considering whether disclosure of the document would be contrary to the public interest.

   51.I am not persuaded by this submission.  In my view, the ability of a person living in a constitutional monarchy to petition the monarch’s representative to exercise the prerogative of mercy is part of the criminal justice system.  The existence of the prerogative recognises, among other things, that all institutions, including courts, are capable of error.  Except in extreme circumstances other discretionary decisions made within the criminal justice system are similarly not subject to judicial review.  For instance, a police officer detecting the commission of an offence might decide to take no action in response to it or might decide to report the offender.

   52.The prerogative of mercy is expressly preserved by section 369 of the Criminal Law Consolidation Act 1935.  This illustrates the place that the prerogative continues to play in the criminal justice system.

   53.Taking the foregoing into account, I am not persuaded that the release of the document would impair the integrity and viability of the governmental decision-making process to a significant or substantial degree.  ...[39]

   [39]   Citations omitted.  Emphasis in original.

3. The Ombudsman also looked at further factors supporting disclosure and ultimately concluded that the advice did not attract the internal working documents exemption:

   53.... In addition, there are countervailing factors which weigh in favour of disclosure, such as:

   ·       meeting the objects of the FOI Act, which include the promotion of accountability of Ministers of the Crown, in this case the Attorney-General upon whose advice the Governor acted.  While the view could be taken that the ultimate decision to be made on the petition was that of the Governor, the convention is that the Governor will act on the advice of her Ministers.  The impact of this convention is that the Governor’s decision on the petition reflects the advice she received from Mr Foley via the Premier.

   ·       disclosure of the document would inform and positively contribute to the ongoing public debate concerning the reliability of important aspects of the evidence that was led to prove that Mr Keogh had murdered Ms Cheney, and the more general reliability of the witness who gave that evidence.

   ·       disclosure of the document would allow the public to scrutinise the quality and even-handedness of the information provided by the Acting Attorney-General in his press release.

   ·       the fact that the agency has not identified any specific detriment that might arise if the document were to be disclosed and that no detriment appears to have arisen from the release of earlier advices provided by the Solicitor-General.

   ·       a significant portion of the document was disclosed by Mr Foley in a press release issued 10 August 2006 and during a press conference he held on the same day.  During the press conference, Mr Foley said that neither he nor the Solicitor-General held any doubt in their minds that Mr Keogh was '‘guilty of a terrible, terrible murder’.  Yet, as noted, on 19 December 2014, the Court of Criminal Appeal set aside Mr Keogh’s conviction on the ground that there had been a substantial miscarriage of justice.  In reaching this decision, the court took into account an expert opinion that was canvassed in the document but was not mentioned by Mr Foley in his press release or press conference.

   ·       the public interest in the Crown’s duty to disclose material in its possession or power which would tend to assist a defendant’s case.  This duty has been recognised as an important ingredient in a fair trial and is an aspect of the prosecution’s duty to ensure that the Crown case is presented with fairness to an accused.  While I recognise that at the time his third petition for mercy was rejected Mr Keogh was not facing trial, it might reasonably be expected by members of the public that in circumstances where a convicted person continues to contest his conviction that the Crown would disclose any exculpatory material that might be in its possession.

   54.I conclude that the document is not exempt pursuant to clause 9(1) of Schedule 1 to the FOI Act.[40]

   [40]   Citations omitted.

1. We consider reserved Question 3 to be based on a false premise.  For convenience, we set out Question 3 again:

   In the event that the Ombudsman is permitted to consider questions of waiver under clause 10 of Schedule 1 to the Freedom of Information Act 1991, and given the finding of the Ombudsman (at [90]) that ‘the document deals with a single subject-matter namely the approach that the Attorney-General should take to Mr Keogh’s third petition for mercy’, is the Ombudsman required to consider whether part of the document may remain privileged despite waiver over another part?

2. The question is drafted as though the Ombudsman had engaged in the very reasoning which we have attempted to show does not accurately reflect the determination.  It proceeds as if the Ombudsman, having accepted the relevance of waiver to cl 10(1), moved directly to the question of whether the advice deals with a single subject-matter, as though an affirmative answer would be decisive of whether privilege had been waived in the entire advice, and then refused to consider whether part of the advice might remain privileged because of the affirmative answer he gave.  The premise of the question turns the Ombudsman’s reasoning on its head.  The premise is false.

3. Furthermore, the false premise of the question reveals a misconception of how the inconsistency test is intended to operate. 

4. The Attorney-General submits that the Ombudsman erred because, in considering the question of waiver, he failed to ask whether there would be inconsistency or unfairness if waiver operated in respect only of the part of the document disclosed.  We consider that this misconceives how the test of inconsistency is to apply.

5. It is not a matter of concluding that because part of a confidential communication is expressly disclosed, as here in a press release or at a press conference, the conduct of the privilege-holder is inconsistent with the maintenance of confidentiality in that part of the advice with the result that the privilege-holder has waived privilege in that part of the disclosed communication.  To the contrary, it is the express disclosure of part of a confidential communication that raises the question whether that disclosure is inconsistent with the maintenance of privilege in the entire communication.  It is not a matter of applying the inconsistency test to each segment of an advice.  Waiver over the whole of the communication may be the ‘price’ paid for choosing to disclose a part.[160] 

   [160] Subject to part of an advice potentially being severable because it deals with an entirely different topic or different transaction.  As the Ombudsman found, this was not the case here.

6. In the Court of Appeal’s decision in Secretary, Department of Justice v Osland, Maxwell P cited a number of authorities where, depending upon the circumstances, the application of the inconsistency test means that disclosure of part of a communication gives rise to a waiver of privilege in the whole of the communication:

   In Temwood Holdings Pty Ltd v Western Australia Planning Commission, Wheeler J said:

   …

   A partial or incomplete reference to the substance of the advice during the course of legal proceedings in open court, may … give rise to … waiver.  Where part only of advice is referred to, for example, during the course of submissions or evidence, the maintenance of the integrity of the proceedings and the need to ensure that the court is not misled by a reference which inadequately reveals the whole context of the advice, means that the party making partial reference to it may be compelled to reveal the whole.[161]

   …

   In Walker-Shipley v State of Victoria  Bongiorno J said:

   There is a basic inconsistency between maintaining legal professional privilege in respect of communications between a lawyer and a client and the client’s obtaining much of the information which informs her state of mind from that lawyer when that state of mind is central to the litigation being pursued. A client in that position cannot, as a matter of fairness, selectively report such communications for the purpose of demonstrating ignorance of certain facts at a particular time whilst maintaining the confidentiality of the rest of her communication with her lawyer.[162]

   [161] Secretary, Department of Justice v Osland (2007) 26 VAR 425, 433–4 [22] (italicised emphasis in Maxwell P’s judgment, additional emphasis added) (citations omitted).

   [162] Secretary, Department of Justice v Osland (2007) 26 VAR 425, 434 [25] (italicised emphasis in Maxwell P’s judgment, additional emphasis added) (citations omitted).

7. To the same effect, the plurality of the High Court said in Osland:

   Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case.[163]

   [163] (2008) 234 CLR 275, 298 [49] (emphasis added).

8. A similar observation has been made about waiver in the context of a dispute between a lawyer and a client.  Where a client chooses to disclose, from his or her perspective, part of a privileged communication, the lawyer, as the other party to the communication, may no longer be bound to retain confidentiality in respect of the balance of the communication, depending on whether the inconsistency test is satisfied in the circumstances of the case.  This is evident from the illustrations given by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell in explaining the inconsistency test:

   Legal professional privilege exists to protect the confidentiality of communications between lawyer and client.  It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement.  It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.  Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received.[164]  

   [164] (1999) CLR 1, 13 [28] (emphasis added) (citations omitted). For the examples, their Honours referred to Benecke v National Australia Bank (1993) 35 NSWLR 110 and Lillicrap v Nalder & Son (a firm) [1993] 1 WLR 94, respectively.

9. For these reasons, our answer to reserved Question 3 is ‘Unnecessary to answer.  The question is based on a false premise and is misconceived’.

10. We mention, for the sake of completeness, that we reject the qualification submitted by the Attorney-General, that, if Templeman LJ’s approach is construed as an inflexible rule, it should be confined to the context of litigation.  The observations of Gibbs CJ in Maurice, extracted above,[165] are contrary to such a qualification.  Moreover, it is now well accepted that privilege does not attach only to communications made in the context of actual or potential litigation and nor should the doctrine of waiver of privilege arising from disclosure of part of a document be so confined.  The decisive test is whether the privilege-holder’s conduct is inconsistent with the maintenance of confidentiality in the privileged communication and that conduct may occur in a variety of contexts.  In our view, the qualification proposed is artificial and lacks a principled basis for its application.       

    Question 4: In determining whether disclosure would be contrary to the public interest, in the context of the internal working documents exemption, are the ‘Howard factors’ mandatory?

    [165] See [102] above.

11. The Attorney-General submits that the Ombudsman erred by failing to take into account, in determining that it would not be contrary to the public interest to release the advice (the second limb of the exemption under cl 9(1)):[166]  (a) the nature and sensitivity of the advice and its content;  (b) the identity and seniority of office of the author and recipients of the advice;  and (c) the preservation of confidentiality in respect of the promotion of fairness and candour.  These are some of the Howard factors identified by Davies J, noted above.[167]  The Howard factors have been relevantly applied in South Australia in, for example, Ipex,[168] Daycorp,[169] and Brokenshire.[170]  They have also been applied in Victoria as relevant to the determination of the public interest.[171] 

    [166] That is, cl 9(1)(b) of sch 1 to the Act. See [15] above.

    [167] See [28] above.

    [168] (1997) 192 LSJS 54.

    [169] [2011] SADC 191.

    [170] [2015] SADC 68.

    [171] For example, in Secretary, Department of Justice v Osland (2007) 26 VAR 425 Maxwell P stated (at 447 [77]) that:

    [T]he public interest considerations underlying the exemption for internal working documents ... include the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice. 

    Bell J (sitting as President of VCAT) in Re McIntosh and Department of Premier and Cabinet (2009) 32 VAR 371, 376 [19] described ‘the purposes of the exemption’ as including the Howard factors, as mentioned by Maxwell P in Secretary, Department of Justice v Osland (2007) 26 VAR 425.

12. We note immediately that, although the Howard factors have been seen as relevant, courts have been careful not to treat them as mandatory or exhaustive of the public interest.  For example, in Ipex, relied upon by the Attorney-General, Judge Lunn, having set out the Howard factors, said:

    The concept of public interest cannot be exhaustively defined:  Conway v Rimmer.  The statements in Howard’s case are merely general indicators of where the public interest might lie, but they are neither necessarily definitive nor exhaustive. 

    ...

    Mr Bridge expressed a fear that public servants would be reluctant to write candid and frank documents if they believed they were likely to be made public. ... experience has shown that public servants and corporate officers still continue to write copiously and frankly in spite of this risk of disclosure in subsequent litigation.  While it cannot be ignored, little weight is to be put on it here in assessing what is in the public interest.[172]

    [172] (1997) 192 LSJS 54, 70 (emphasis added) (citation omitted).

13. In Daycorp Judge Millsteed commented that the Howard factors are not immutable or necessarily to be determined in every case.  He referred to those factors and said:

    At the outset, it must be remembered that the factors postulated by Davies J are not principles set in stone.  As his Honour remarked ‘in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought’.  It should also be observed that the ‘Howard factors’ have been extensively criticised on the basis that unless treated with caution they may permit the introduction of class-based claims for exemption which fail to adequately consider the content of documents and the reasons why their disclosure would be contrary to the public interest.  Other cases favour a more flexible approach focussing on the decision-making context in which the claim is made.[173]

    [173] [2011] SADC 191, [100].

14. He went on to apply the Howard factors and determined that the documents in issue were not exempt.

15. In Brokenshire Judge McIntyre referred to the Howard factors ‘as being general indicators of where the public interest may lie having regard to the documents under consideration in the whole of the circumstances’.[174]

    [174] [2015] SADC 68, [43] (emphasis added).

16. The Attorney-General also relies upon a number of legislative indicia from the Act that emphasise the need to protect from disclosure government decision-making: (1) the focus of cl 9 being on the decision-making functions of government, confidentiality encourages ‘creative debate and candid consideration of alternatives’[175] which in turn promotes good decision-making; (2) the importance of the recognition in s 3(2) of the Act that it is in the public interest to maintain effective conduct of public affairs through the free and frank expression of opinions;[176]  and (3) the existence of other exemptions that expressly provide for the protection of documents concerning particular kinds of high-level governmental decision-making (for example, Cabinet documents and Executive Council documents)[177] and particular kinds of sensitive information (for example, documents affecting personal affairs, documents subject to legal professional privilege and documents containing confidential material).[178]

    [175] Re Howard (1985) 7 ALD 626, 636, Davies J quoting with approval from Wilkey J in Jordan v Department of Justice, 591 F 2d 753, 772 (1978).

    [176] The Act s 3(2)(b). See [11] above.

    [177] The Act sch 1 cl 1, cl 2, respectively.

    [178] The Act sch 1 cl 6, cl 10, cl 13, respectively.

17. We accept that the legislative indicia support the importance of facilitating frankness and candour in governmental deliberations, at least as a means by which the objects of the Act, identified in s 3(1), are achieved. We also accept that the Howard factors provide useful guidance in determining whether disclosure of a document that satisfies the first limb of cl 9(1) would, on balance, be contrary to the public interest. However, we do not accept that the Howard factors are mandatory considerations that are required to be taken into account.  We endorse what Judge Lunn said in Ipex that the Howard factors are no more than general indicators to be used in the assessment of where the public interest might lie;  they are ‘neither necessarily definitive nor exhaustive’.[179]

    [179] (1997) 192 LSJS 54, 70.

18. Seven Network emphasises the broad evaluative nature of a decision involving an assessment of the public interest.  We consider that it is axiomatic, as Hayne J said in McKinnon v Secretary, Department of Treasury (‘McKinnon’),[180] in the context of the conclusive certificate provisions of the Commonwealth Freedom of Information Act 1982,[181] that ‘the public interest’ is multi-factorial and not susceptible to a mandatory fixed dimension:

    It may readily be accepted that most questions about what is in ‘the public interest’ will require consideration of a number of competing arguments about, or features or ‘facets’ of, the public interest.[182] 

    [180] McKinnon (2006) 228 CLR 423.

    [181] A conclusive certificate of a Minister is a certificate which certifies that it would be contrary to the public interest to disclose under the Act an internal working document of a government agency.

    [182] McKinnon (2006) 228 CLR 423, 443 [55]. See also O’Sullivan v Farrer (1989) 168 CLR 210, 216.

19. In any event, we consider that the Ombudsman did in fact take the Howard factors into account.  It is apparent from the extract of the determination we have set out above[183] that the Ombudsman was first concerned to identify each of the Howard factors (at [29]), then determine which of them was irrelevant (at [30]), record his earlier misgivings about the potential applicability of those factors in the circumstances here (at [31]), and note, based on Brokenshire[184] and other cases, that the Howard factors had not been wholeheartedly endorsed (at [32]–[33]).  That observation is supported by the authorities we have discussed above.

    [183] See [28] above.

    [184] See [130] above.

20. However, despite recognising that the Howard factors are not mandatory considerations, in the determination the Ombudsman goes on to isolate specifically:  (a) the nature and sensitivity of the advice;  (b) the identity of the author of the advice and its recipient;  and (c) the desirability of preserving confidentiality to ensure frankness and candour.[185]  He specifically rejects (at [44]) the proposition that someone of the calibre and standing of the Solicitor-General would be inhibited in the frankness and candour with which they give advice to government, especially the most senior echelons of government, because of a risk that the advice would be made public.  This reasoning squarely takes into account, and grapples with, the Howard factors identified as (b) and (c) in reserved Question 4.  Furthermore, he engages (at [46]–[49]) directly with the issue of the nature and sensitivity of the advice, the Howard factor identified as (a) in reserved Question 4.  

    [185] See [29] above.

21. Our answer to reserved Question 4 is ‘No, but the Ombudsman may take into account the matters identified in (a), (b) and (c) and he did so’. 

    Question 5: In determining whether disclosure would be contrary to the public interest, in the context of the internal working documents exemption, is it permissible to give weight to a supposedly analogous duty of disclosure by a prosecutor?

22. The Attorney-General submits that the Ombudsman drew a false analogy between the public interest subsisting in a prosecutor’s duty of disclosure and the public interest in favour of disclosure of the advice.  She submits that the Ombudsman proceeded on an erroneous understanding of the scope and extent of a prosecutor’s duty of disclosure and a misunderstanding and misapplication of the reasoning of Martin J in R v Bunting (‘Bunting’).[186]   

    [186] (2002) 84 SASR 378.

23. The Attorney-General accepts that the common law duty to ensure a fair trial includes, in respect of a prosecutor, a duty of disclosure of information relevant to the accused.  She insists, however, that the obligation to disclose relevant material does not require the handing over of all the material in the possession of the Crown.  In a decision of the Victorian Court of Appeal, R v TSR,[187] Chernov JA (with whom Phillips CJ and Phillips JA agreed) referred to the scope of the prosecutor’s duty of disclosure in terms which emphasised that the duty was limited:

    There is no doubt that it is the responsibility of the prosecutor to ensure that the Crown case is conducted with fairness: Richardson v R.  The learned Chief Justice, writing in his then capacity as the Director of Public Prosecutions on ‘The Responsibilities of the Prosecutor’ in Preparation of Criminal Trials in Victoria, said:

    It is the duty of the prosecution, save in exceptional circumstances, to disclose to the accused and the accused’s legal advisers — a reasonable time before trial — the admissible evidence which it is proposed to lead in furtherance of the prosecution.  This does not mean the handing of the contents of the prosecution file to the accused’s advisers in toto.  Nor does it mean that details of every interesting irrelevancy should go to the defence.  The whole basis of disclosure … is to enable an accused person and his advisers to understand the basis of the case that is being made against him.  The responsibility is honoured by the Crown when the evidence which will or may be admitted in court in furtherance of the prosecution is disclosed.[188] 

    [187] (2002) 5 VR 627.

    [188] R v TSR (2002) 5 VR 627, 650 [72] (citations omitted).

24. However, Chernov JA went on to acknowledge the importance of the obligation on the Crown to disclose information that is exculpatory to the accused:

    It has also been recognised by the Court of Criminal Appeal in R v Higgins that the Crown has an obligation to disclose to the defence material which would tend to assist the defence case, but the application of this duty of disclosure to a given case will depend upon the facts of the case and the significance of the material in question in light of the issues in the particular case.[189]

    [189] R v TSR (2002) 5 VR 627, 650 [73] (citations omitted).

25. The Attorney-General also submits that Bunting makes it plain that the duty of disclosure does not prevent the prosecution maintaining privilege over legal advice relating to criminal proceedings.  She contends that the advice is analogous to, for example, an advice on evidence, or an advice on the prospects of a successful prosecution or appeal, which would not require disclosure.  

1. In Bunting an accused charged with murder issued subpoenas directed to the Commissioner of Police and the Director of Public Prosecutions (‘Director’) seeking production of various documents relating to communications involving the Director or legal practitioners employed in the Director’s office.  The Director claimed that a number of the communications were protected from disclosure by legal professional privilege.  Martin J rejected the submission of the accused that legal professional privilege was incapable of applying to communications between persons carrying out prosecutorial functions because the prosecutor’s common law duty of disclosure was repugnant to the confidential nature of privileged communications.[190]  He held that legal professional privilege does attach to communications between prosecutors.  However, he acknowledged that, in accordance with the inconsistency test, certain circumstances would give rise to an imputed waiver of privilege, namely, when the prosecution commenced a proceeding against an accused to which the communication was relevant.  He said:

   When the Director institutes or maintains a prosecution, the Director does so in the knowledge that the prosecution carries with it an essential feature, namely, the duty of disclosure.  The Director is aware that the duty is inconsistent with the maintenance of confidentiality in respect of relevant information.  In those circumstances, consistent with principle, it can be said with considerable force that the conduct of the Director as the privilege holder in instituting or maintaining a prosecution is inconsistent with the maintenance of confidentiality in respect of relevant information which would otherwise be disclosed.  The relevant conduct is the institution or maintenance of a prosecution.  In such circumstances, it can be said that it is unfair for the Director to both institute or maintain a prosecution and to maintain the privilege in breach of the duty of disclosure that accompanies the prosecution.  In the words of the joint judgment in Mann v Carnell, ‘the law recognises the inconsistency and determines its consequences’ … .

   In my opinion, consistently with the principle identified in Mann v Carnell, at the point where the duty of disclosure requires disclosure of relevant information, if disclosure of the relevant information requires disclosure of a privileged communication, the conduct of the Director in instituting or maintaining a prosecution becomes inconsistent with the maintenance of the confidentiality of the communication by reason of legal professional privilege.  In those circumstances, in my view it would be unfair for the Director to maintain the privilege in respect of the communication.  Waiver of the privilege is, therefore, imputed.  In that sense the duty of disclosure ‘prevails’ over legal professional privilege.[191]

   [190] Bunting (2002) 84 SASR 378, 392 [46].

   [191] Bunting (2002) 84 SASR 378, 398–9 [73]–[74].

2. Martin J went on to explain the distinction between disclosure in criminal proceedings and discovery in civil proceedings, the former requiring disclosure of relevant information which may not necessitate the production of relevant documents:

   I have identified imputed waiver as applying to information contained in a privileged communication.  In this context it is necessary to distinguish between discovery in civil proceedings and the duty of disclosure.  Discovery in civil proceedings is concerned with the disclosure of relevant documents.  There is no right of discovery in criminal proceedings.  The duty of disclosure encompasses disclosure and production of documents if the documents themselves are relevant information.  However, the duty is not limited to requiring disclosure of relevant documents.  It extends to relevant information.  In some circumstances, disclosure of relevant information will require production of the document in which that information is recorded.  However, it will not always be necessary to produce such a document in order to comply with the duty of disclosure.  For example, if relevant information is received orally by an investigator who reports in a privileged written communication to the Director seeking advice, the duty is likely to be discharged by disclosure of the relevant information to the accused without production of the report.[192]

   [192] Bunting (2002) 84 SASR 378, 399 [75]. To the same effect see R v Tracey [No 2] [2005] SASC 356 [35]–[36] (Nyland J).

3. The Attorney-General submits that the Ombudsman construed the advice as constituting, or containing, exculpatory material to which the common law duty of disclosure would apply.  Drawing on the distinction made in Bunting between information and documents, she submits that the Ombudsman failed to appreciate the distinction between privileged legal advice (in relation to which no imputed waiver would arise) and other privileged communications (such as confidential witness statements) which may contain factual information relevant to the defence (in relation to which, applying Bunting, an imputed waiver might arise).

4. The Attorney-General submits that the factual information the Ombudsman considered relevant to the duty of disclosure appears to be the report of Professor Vernon-Roberts, referred to in the advice. To the extent that any analogy could be drawn with a prosecutor’s duty of disclosure, she submits, it is with that report not with the advice. She argues that the result is that the Ombudsman has effectively conflated Professor Vernon-Roberts’ report with the advice in his assessment of the public interest and that the conflation demonstrates an erroneous understanding and application of the relevant principles under the Act. This is especially so as Professor Vernon-Roberts’ report had been disclosed to Mr Keogh on 5 December 2013,[193] some considerable time before Seven Network made its request under the Act in July 2016.[194]  

   [193] See [25] above.

   [194] See [17] above.

5. Seven Network responds by submitting that it is necessary to be careful in analysing the determination.  The Ombudsman referred to Bunting, and its recognition of imputed waiver, in the context of examining the privilege exemption, cl 10(1), not the internal working documents exemption under cl 9(1). Putting the reliance on Bunting to one side, the question is raised as to why it would be inappropriate for the Ombudsman to refer to the prosecutor’s duty of disclosure in the context of the second limb of cl 9(1). Given the obvious public interest associated with the prosecutor’s duty of disclosure, and the absence of any indication in the Act that it is an irrelevant consideration, there is no reason to conclude that the Ombudsman was not entitled to take it into account in determining whether disclosure of the advice under the Act would be contrary to the public interest within the meaning of cl 9(1).

6. Moreover, Seven Network emphasises that the Ombudsman only took into account the prosecutor’s duty of disclosure by way of analogy;  he did not purport to apply the prosecutorial duty of disclosure in determining the public interest question under the second limb of cl 9(1).

7. We agree that the reliance the Ombudsman placed upon Bunting was confined to the context of cl 10(1).[195]  The inconsistency to which the Ombudsman referred in that context is that of maintaining confidentiality in a communication to which something analogous to the duty of disclosure attaches.  We note that the Ombudsman referred to this conclusion only as arguable;  that is, ‘it could be argued’.[196]  The conclusion was not material to his reasoning on waiver;  it is presented as no more than reinforcing a conclusion already reached.    

   [195] The determination [69]. See [23] above.

   [196] The determination [69]. See [23] above.

8. In our view, the Ombudsman was entitled to consider, within the context of an assessment of the public interest, by way of analogy, the prosecutor’s duty of disclosure.  More importantly, the Ombudsman was not precluded from doing so.  It was not an irrelevant consideration and its use did not betray any erroneous or fallacious reasoning.  He was aware that the duty had no direct application, ‘recognis[ing] that at the time his third petition for mercy was rejected Mr Keogh was not facing trial’.[197] We consider that the Ombudsman sought to do no more than indicate in a general way that, given that there is an acceptance that there is a public interest associated with the prosecutorial duty of disclosure, so too, in the context of a petition for mercy, there is a public interest in support of disclosure by the Crown. The duty on the prosecutor advances an aspect of the public interest, namely, the public interest in ensuring that an accused has a fair trial and that innocent people are not convicted, and, in a general sense, those same considerations support the public interest in disclosure when applying cl 9(1).

   [197] The determination [53]. See [30] above.

9. We do not consider that there was a conflation of the distinction between relevant information and documents. Under the Act the legally enforceable right of access is access to an agency’s ‘documents’.[198] Refusal of access by way of identified exemptions under the Act is refusal of access to an exempt ‘document’.[199]  ‘Documents’ has a broad definition.[200] The Ombudsman was exclusively concerned, appropriately, with the release of documents. Any analogy drawn between the principles governing the Act and the prosecutor’s duty of disclosure would necessarily be qualified by a focus only upon documents. Insofar as the public interest supports the prosecutorial duty to disclose relevant information, an analogous public interest, considered within the context of the Act, would by necessity support the release of documents. Nor does that limitation demonstrate that the analogy is ill-drawn. As we have said, we consider the analogy posed by the Ombudsman to be no more nor less than a general appreciation of similar public interest concerns.

   [198] The Act s 12. See [13] above.

   [199] The Act s 20(1). See [16] above.

   [200] The Act s 4. See [14] above.

10. We also reject the proposition that the Ombudsman conflated the advice with the report of Professor Vernon-Roberts.  The Ombudsman was not focused only upon what exculpatory material there might be in the advice but, more generally, on what information the advice might contain relevant to Mr Keogh’s third petition for mercy.  The advice might reveal, for example, how particular matters raised by Professor Vernon-Roberts in his report were dealt with by the then Solicitor-General, whether there was further answering material and why the matters raised were dismissed.  Release of the advice would assist in explaining (to the public, including Mr Keogh) why the third petition for mercy was rejected.      

11. Our answer to reserved Question 5 is ‘Yes’. 

    Conclusion

12. The reserved questions and our answers to them are as follows:

    Question:

    1Whether, on a proper construction of clause 10 of Schedule 1 to the Freedom of Information Act 1991, the words ‘would be privileged from production in legal proceedings’ have the effect that where a document is created in circumstances in which it would be privileged from production in legal proceedings:

    a.the Ombudsman is permitted to consider questions of waiver; and

    b.is required to determine that the document is exempt.

    Answer:

    a.Yes; and

    b.No.

    Question:

    2In the event that the Ombudsman is permitted to consider questions of waiver under clause 10 of Schedule 1 to the Freedom of Information Act 1991, is the Ombudsman entitled to take into account considerations of fairness to a person other than the applicant?

    Answer:

    Yes.

    Question:

    3In the event that the Ombudsman is permitted to consider questions of waiver under clause 10 of Schedule 1 to the Freedom of Information Act 1991, and given the finding of the Ombudsman (at [90]) that ‘the document deals with a single subject-matter namely the approach that the Attorney-General should take to Mr Keogh’s third petition for mercy’, is the Ombudsman required to consider whether part of the document may remain privileged despite waiver over another part?

    Answer:

    Unnecessary to answer.  The question is based on a false premise and is misconceived. 

    Question:

    4Whether, on a proper construction of clause 9 of Schedule 1 to the Freedom of Information Act 1991 the Ombudsman, in determining whether the disclosure of the document would on balance be contrary to the public interest, is required to take into account:

    a.the nature and sensitivity of the document and its content;

    b.the identity and seniority of office of the author and recipients of the document; and

    c.the preservation of confidentiality in respect of the promotion of frankness and candour.

    Answer:

    No, but the Ombudsman may take into account the matters identified in (a), (b) and (c) and he did so.

    Question:

    5Whether, on a proper construction of clause 9 of Schedule 1 to the Freedom of Information Act 1991 the Ombudsman, in determining whether the disclosure of the document would, on balance, be contrary to the public interest, was entitled to give weight to a supposed analogous obligation on prosecutors to disclose documents containing legal advice on the prosecution as an aspect of the prosecutor’s duty of disclosure.

    Answer:

    Yes.