GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON AND KIEFEL JJ
MARJORIE HEATHER OSLAND APPELLANT
AND
SECRETARY TO THE DEPARTMENT OF JUSTICE RESPONDENT
Osland v Secretary to the Department of Justice [2008] HCA 37 7 August 2008 M3/2008
ORDER
1. Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 May 2007.
3.Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further hearing in accordance with the reasons of this Court.
4.Respondent to pay the appellant's costs of the appeal to this Court.
On appeal from the Supreme Court of Victoria
Representation
J B R Beach QC with R H M Attiwill and J D Pizer for the appellant (instructed by Hunt & Hunt)
P M Tate SC, Solicitor-General for the State of Victoria with S B McNicol and M J Richards for the respondent (instructed by FOI Solutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Osland v Secretary to the Department of Justice
Administrative law – Freedom of information – Exempt documents – Freedom of Information Act 1982 (Vic), s 50(4) empowered Tribunal to decide access should be granted to exempt documents if of opinion that public interest required access to be granted – Whether, in circumstances of this matter, Court of Appeal erred in concluding no basis for Tribunal to exercise power, when Court of Appeal did not examine documents.
Practice and procedure – Legal professional privilege – Waiver – Legal advice obtained in relation to petition for exercise of prerogative of mercy – Whether issue of press release disclosing existence and effect of advice inconsistent with maintenance of confidentiality in content of advice.
Words and phrases – "legal professional privilege", "mercy", "pardon", "public interest", "public interest override", "waiver".
GLEESON CJ, GUMMOW, HEYDON AND KIEFEL JJ. The appellant applied, under the Freedom of Information Act 1982 (Vic) ("the Act"), for access to certain documents in the possession of the Department of Justice of the Government of Victoria. The documents were prepared by lawyers and departmental officials. They contain advice about a request by the appellant (who was convicted of murder) that she be granted an executive pardon. Access to all but two of 265 pages was refused by the Department, both initially and upon internal review. The documents were said to be exempt from disclosure by reason of s 30 (which relates to internal working documents) and s 32 (which relates to legal professional privilege) of the Act.
Pursuant to s 50 of the Act, the appellant applied to the Victorian Civil and Administrative Tribunal ("the Tribunal") for review of the decision. The Tribunal is established by s 8 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) ("the VCAT Act") and has two types of jurisdiction, "original jurisdiction" and "review jurisdiction"…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Osland v Secretary, Department of Justice [2008] HCA 37
Case
[2008] HCA 37
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of Victoria concerning the disclosure of documents subject to legal professional privilege. The appellant, Ms. Osland, had been convicted of murder and, after exhausting her avenues of appeal, petitioned the Governor of Victoria for a pardon. The Secretary of the Department of Justice resisted disclosure of certain documents, claiming legal professional privilege. The dispute ultimately centred on whether the public interest override provisions of the *Freedom of Information Act 1982* (Vic) could compel the disclosure of these privileged documents.
The primary legal issues before the High Court were whether the Court of Appeal erred in concluding that there was no basis for the Victorian Civil and Administrative Tribunal (VCAT) to exercise its power under section 50(4) of the *Freedom of Information Act 1982* (Vic) to grant access to exempt documents, particularly given that the Court of Appeal had not itself examined the documents. A related issue concerned whether the disclosure of certain information in a press release by the Attorney-General constituted a waiver of legal professional privilege over the content of the advice received.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal. The majority reasoned that the Court of Appeal had erred by concluding there was no basis for the Tribunal to exercise its public interest override power without having examined the documents in question. The Court emphasised that the Tribunal's assessment under section 50(4) involved a balancing exercise, and the Court of Appeal should not have preempted that assessment. The Court also indicated that the question of waiver of privilege required further consideration. Consequently, the matter was remitted to the Court of Appeal for further hearing.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 May 2007.
3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further hearing in accordance with the reasons of this Court.
4. Respondent to pay the appellant's costs of the appeal to this Court. (Majority decision)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GUMMOW, HEYDON AND KIEFEL JJ
The VCAT Act, in Pt 5, provides for appeals from the Tribunal. So far as presently relevant, it provides, in s 148(1), that a party to a proceeding may appeal, on a question of law, from an order of the Tribunal to the Court of Appeal. Section 148(7) provides that the Court of Appeal may make any of the following orders:"(a)an order affirming, varying or setting aside the order of the Tribunal;(b)an order that the Tribunal could have made in the proceeding;(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;(d) any other order the court thinks appropriate."The decision of the Tribunal Having concluded (for reasons that are not presently in issue) that all the disputed documents were the subject of legal professional privilege within s 32, Morris J went on to deal with the argument that, in relation to document 9, privilege had been waived by the disclosure, in the Attorney-General's press release, not only that advice had been taken from the authors of the joint advice, but also, and critically, that the advice "recommend[ed] on every ground that the petition should be denied." Applying what was said in this Court in Mann v Carnell[10], concerning implied or imputed waiver (it was not suggested that the present was a case of express waiver), Morris J held that such disclosure as was made in the press release was not inconsistent with the maintenance of the confidentiality which the privilege protects, and that there was no waiver.[10](1999) 201 CLR 1 at 13 [28]-[29]; [1999] HCA 66. As to s 30, Morris J said: "I cannot see how the documents could be exempt under section 30 if I was to form the opinion that the public interest requires that access be given to the documents; and if I was not to form such an opinion, it is unnecessary to determine this question as I intend to uphold the claim under section 32." He went on to consider s 50(4). Morris J commenced what he described as a balancing process by making some observations about the general importance of maintaining legal professional privilege. In that context, he distinguished between "historical documents" and documents likely to be relevant to a future government decision. The documents in question, he said, fell into the former category. By "historical" he meant relating to a past decision as distinct from relating to a future decision. The decision in question was made in September 2001, about four years before the Tribunal's decision. However, as appears from other parts of the reasons of Morris J, there was an ongoing public controversy about the appellant's conviction and sentence, and about the refusal of the petition. In assessing the proposition that the documents were historical it is necessary to keep in mind the sense in which that term was being used. Included in public interest factors favouring release, as they appeared to Morris J, were the public interest in free availability of information and democratic discussion of government decisions, and the public interest in the operation of the criminal justice system. The Osland case, he said, was unique because of the publicity and concern it generated.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, HEYDON AND KIEFEL JJ
Ground 3 relates to all the documents in dispute, and challenges the Court of Appeal's conclusion that there was no basis for applying the public interest override, bearing in mind that the Court of Appeal did not examine the documents for itself.The petition to the Governor of Victoria and the consideration of the petition On 2 October 1996, following a trial by jury in the Supreme Court of Victoria, the appellant was convicted of murdering her husband, who was beaten to death with an iron bar. The prosecution case, accepted by the jury, was that the appellant planned and assisted in the killing. The appellant had been subjected to violence by her husband, and relied, unsuccessfully, upon defences of self-defence and provocation. She was sentenced to imprisonment for fourteen and a half years, with a non-parole period of nine and a half years. She is now on parole. An application to the Court of Appeal for leave to appeal against conviction and sentence failed[3]. A further appeal to this Court failed[4].[3]R v Osland [1998] 2 VR 636.[4]Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75. Having exhausted her rights of appeal, the appellant invoked the power of the Governor of Victoria to grant a pardon. Morris J gave the following account of the legal basis of that power, and the practice that is followed in matters where the power is invoked. This account was not disputed in argument, and may be accepted as accurate and sufficient for present purposes."A petition for the exercise of the prerogative of mercy is a request made to the Crown by an individual seeking release from the effects of a conviction in circumstances where all avenues of appeal to the courts have been exhausted or where the courts have no jurisdiction. The Governor of Victoria has the power to exercise the prerogative of mercy as a representative of Her Majesty the Queen. The power derives from section 7 of the Australia Act 1986 (Commonwealth) which provides that the powers and functions of the Queen in respect of a State are exercisable only by the Governor of the State (subject to exceptions which are not presently relevant). Section 7(5) of that Act provides that advice to the Queen (and her representative) in relation to the exercise of the powers and functions of the Queen in respect of a State shall be tendered by the Premier of the State.On 14 February 1986 the Queen issued Letters Patent relating to the Office of the Governor of Victoria. Clause III of the Letters Patent states, among other things, that the Premier shall tender advice to the Governor in relation to the exercise of powers and functions of the Governor not permitted or required to be exercised in Council. By convention, the accepted practice is and has been that the Premier seeks the advice of the Attorney-General in relation to whether the prerogative should be exercised. In turn, when the advice of the Attorney-General is sought, it is practice for the Attorney-General to ask his or her department to consider, evaluate and make recommendations in relation to the petition. Sometimes the advice of the Victorian Government Solicitor is sought. To the extent that a petition of mercy raises non-legal grounds (for example, compassionate grounds, meritorious conduct grounds, or other special grounds) the assessment of the petition on those other grounds is usually conducted within the department. Clearly enough, though, there will often be an overlap between what might be described as legal grounds and what might be described as non-legal grounds.Before tendering his advice to the Premier, the Attorney-General may wish to follow up the advice he or she has received in relation to the matter. Generally the Attorney-General advises the Premier and it is then a matter for the Premier to proffer advice to the Governor. On rare occasions the Attorney-General's advice may be considered by Cabinet before the Premier makes a recommendation to the Governor. However this did not apply in the present case."