Osland v Secretary, Department of Justice

[2010] HCATrans 27

[2010] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M41 of 2009

B e t w e e n -

HEATHER MARJORIE OSLAND

Applicant

and

SECRETARY TO THE DEPARTMENT OF JUSTICE

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 2010, AT 12.31 PM

Copyright in the High Court of Australia

MR R MERKEL, QC:   If the Court pleases, I appear with my learned friends, MR R.H.M. ATTIWILL and MR J.D. PIZER, on behalf of the applicant.  (instructed by Hunt & Hunt)

MS P.M. TATE, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friends, MS S.B. McNICOL and MR C.P. YOUNG, for the respondent.  (instructed by FOI Solutions)

FRENCH CJ:    Yes, Mr Merkel.

MR MERKEL:   Would your Honour excuse me?

MS TATE:   Your Honour, the respondent has filed a summons with the Court to apply that this hearing be partly heard in camera.  The summons was filed on 22 January and it is supported by two affidavits of Mick Batskos affirmed on 13 October 2009 and 22 January 2010.  I am informed by my learned friend that he supports this application.  Previously, there had been an indication that the application was not opposed.  He is now in support of the application and, if necessary, is willing to consent to it.  We have filed some submissions in support of the application, your Honour.

FRENCH CJ:   We have read the submissions and we have also read the confidential materials which are the exempt documents which are in contest.  At the moment I have some difficulty in seeing why, given that this is an application for special leave, and we are dealing with matters of principle rather than descending into detail, it would be necessary to present argument in terms of such particularity that it would compromise the very issue which is in debate.  It seems to us it should ‑ ‑ ‑

KIEFEL J:   I am also of that view.

MS TATE:   Your Honour, I take it, then, that it is accepted that in principle there is the power in the Court with respect to the common law exception for the preservation of the subject matter of the proceeding for a proceeding to be heard in camera and what your Honours are asking me is why it would be necessary in this case?

FRENCH CJ:   I am assuming we have that power, but why is it necessary?

MS TATE:   Your Honour, it is necessary, we say, for this purpose, that this proceeding has arisen by way of a remittal from this Court to the Court of Appeal.  The remittal consisted in a direction, in effect, to the Court of Appeal to inspect a set of exempt documents and to analyse the extent and

significance of any material differences between the advices.  It is our submission that the Court of Appeal understood its task and faithfully and fully discharged that task and in order to make good that proposition, it is necessary to take your Honours to those parts of the exempt documents which support the conclusions reached by the Court of Appeal.

Your Honour, there is an awkwardness, and I am sure your Honours appreciate this, about seeking to elaborate in any way upon questions that your Honours might ask us in relation to any differences between the advices without trespassing upon the confidential content of those documents.  My learned friend and I have both discussed this and have both discussed the awkwardness that this case brings about in that regard.

KIEFEL J:   These submissions are, with respect, often made and the situation often arises in relation to any question of public interest immunity in documents and it is really a rare thing for a court to be closed to the public.  It is invariably the case that counsel are able to make their submissions because they have the facility to be able to translate them in a way which avoids specific identification of matter which would affect the privilege.

FRENCH CJ:   It is not as though you are going to be telling us about things which we have not read.

MS TATE:   No, your Honour, indeed.  Already, the exempt documents have been provided for inspection to this Court and there have been folders of confidential submissions also provided to this Court with particular identification of chapter and verse in relation to the exempt documents on each of the matters that we wish to put.  In those circumstances, your Honour, we do not press the application.

FRENCH CJ:   Yes, very well.  Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, there are two special leave questions raised by the case.  The first relates to the public accountability assumed when a public announcement is made concerning a matter in the public interest and the question is whether section 50(4), if I could refer to it as the public interest override, is enlivened if the announcement is misleading, lacking in candour or materially incomplete or inaccurate and we derive a great deal of support on that approach from section 3(2) of the FOI Act and the discussion of the Act in the judgments on the last Osland hearing.

The second question which we say is important also is whether the remitter was carried out in accordance with this Court’s reasons.  We contend, for reasons we will briefly come to, that it was not.  Can I just explain how we get to both special leave questions.  The Osland Case and the battered wife syndrome issues associated with it attracted unprecedented public interest in the law relating to provocation and self‑defence and the book before the AAT contained an extraordinary number of articles in law journals, law reform requests and op-ed articles and included comments by the Chief Justice of Victoria which are set out at application book 8, paragraph 26 where his Honour had raised the question of whether there had been an injustice in the present case.  So the level of public concern about this topic was an unusual and important feature of the case.

The applicant’s petition for mercy raised those and other issues that ran the whole gamut from miscarriage of justice to compassion.  At application book 101 in the plurality judgment at paragraph 47 their Honours recognised a petition for mercy, in effect, running from, at the high point, miscarriage of justice, down to compassion at another high point and raising any subject matter that might be appropriate under either heading in between. 

Miscarriage of justice has to be qualified in one important respect.  In Eastman’s Case Justice Heydon’s judgment, with which other member’s of the Court agreed, distinguished between where you say there was a miscarriage of justice and an unjust conviction, in which case the conviction is to be set aside by the Court, which is one path, or you seek a pardon or remission, which are different sides of the same coin, where the conviction is accepted but from the date of the pardon or remission the pains and penalties flowing from it are brought to an end.

It is quite important in the context of what happened under the heading “Material differences” that pardon versus remission is a distinction without a difference and there is authority of Justice Wilson in…..and also Justice Heydon to that effect.

FRENCH CJ:   The practical consequence of it in this case is that were a pardon or remission to be granted – I take it, Ms Osland is on parole, is that right?

MR MERKEL:   Yes.

FRENCH CJ:   So it would be really a cessation of the parole, really the balance of the – all the liabilities to which that exposes her?

MR MERKEL:   Yes although, I think at the time your Honour that this occurred it would have meant something like nine years ‑ ‑ ‑

FRENCH CJ:   Yes, she was still serving her term.

MR MERKEL:   She was still serving and it would have brought her sentence to an immediate end and that would have been some nine or 10 years less of the sentence but the same result would have occurred whether it be a pardon or a remission.

FRENCH CJ:   Yes.

MR MERKEL:   Nothing turns on that.  Inherent in any such petition, but particularly in this petition, is that it involves a range of questions on which – or some or all of which reasonable minds may differ.  That is precisely what could happen here, by the nature of the very inquiry.  The key fact here is that the Attorney‑General in his role as the number one law officer of the State, and contrary to well‑established practice, issued a press release announcing the outcome of the petition.  That release is at page 6 of the application book, paragraph 20.  That referred to the joint advice.

We wanted to make two comments.  It is clear in the context that the Attorney‑General saw it as in the public interest to depart from the well‑established practice and the basis on which he did so was explored in the plurality judgment at application book 102 at paragraph 48.  There are two points that their Honours made in that joint judgment:

The evident purpose of what was said in the press release was to satisfy the public that due process had been followed –

but significantly for our purposes, halfway down the paragraph:

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.

FRENCH CJ:   In this context, when we speak of legal advice in the general sense, once we have got beyond the question of the actual scope of that prerogative, it is not an advice – at least, the decision that he has made is not one informed by or constituting a determination of legal rights or liabilities, or as you have rightly accepted, the correctness of the conviction as a matter of law, so, essentially it is what one might broadly call public policy considerations, is it not, which inform the decision that is made, albeit focused upon the circumstances of the particular person?

MR MERKEL:   Your Honour, that is right, but to say public policy considerations conceals rather than reveals the subtext which in this petition and other petitions runs the whole gamut.  You could take one view at one extreme of saying that the grounds for the petition undermine the authority of the High Court judgment.  At the other end you might say that compassion can never undermine the authority of the law and it is not really a question of undermining the High Court judgment and views may differ in between.  The relevant point in the present case is that the gamut of views that your Honours have seen in the exempt documents runs that full extent and one can argue about where the emphasis should be.  In the end it is a matter of judgment and public policy.

FRENCH CJ:   There are normative arguments involved, are there not?

MR MERKEL:   Yes, but critically, your Honour, the arguments raised questions that go – because of the public interest – and I am very conscious of not meaning interesting to the public but because of the public interest issues raised about this case and the concept of battered wife syndrome and provocation and self‑defence and law reform the Attorney made this announcement, we say self‑evidently, to quell fears about this case and the circumstances concerning it that all factors had been taken into account.  When their Honours said the fullest information was to be given that was the evident purpose of the announcement.

If I could take your Honours to pages 4 and 5 where in the AAT decision the relevant steps were set out.  The steps at paragraphs 9 through to 16 were not disclosed in the press release.  In fact, no hint of them was given.  The exempt documents show, using the pseudonym adopted in the Court of Appeal, the material differences and the nature and extent of the material differences, that emerged in those steps referred to in paragraphs 9 to 14.

KIEFEL J:   Is this relevant to identifying error in the Court of Appeal’s decision?

MR MERKEL:   Yes, it is, your Honour, because we say that the non‑disclosure was of its nature to such an extent that the press release was materially misleading, lacked candour or materially incomplete or inaccurate.

FRENCH CJ:   What was the task which the Court of Appeal was, in effect, set by the High Court?  I am just looking a paragraph 57 in the joint judgment at 105 of the application book.

MR MERKEL:   Your Honour, before I answer that question can I just draw your Honour’s attention – it was only paragraph 17 that was disclosed in the press release.

FRENCH CJ:   Yes, all right.

MR MERKEL:   The court had these steps before it but not the content of them.

KIEFEL J:   On remitter, this Court, as appears by paragraph 57, as the Chief Justice has pointed out, said that it was necessary for the Court of Appeal to consider the advices, to identify whether there was some material difference in the advices and if there were the extent of them and then to consider the public interest overriding that ‑ ‑ ‑

MR MERKEL:   Yes, that is right, your Honour.  We would say that paragraph 57 has two critical factors underlying it.  One, is the assumption of political accountability by putting out the press release, thereby raising its content and, secondly, that material differences between the advices thereby became relevant.  The subtext of that was necessarily that depending on the nature and extent of the material differences the public interest override can be enlivened but the enlivenment of it ‑ ‑ ‑

KIEFEL J:   It was not impossible that there was a public interest question was, I think, the highest the Court put it.

MR MERKEL:   Yes, it was not impossible but that, with respect, fails to recognise that the High Court had no idea of what the content was.  We are talking about material differences on a view relating to a matter of compassion but not outcome.

KIEFEL J:   No, but material differences was the basis upon which the argument proceeded in the High Court.

MR MERKEL:   Yes, your Honour, but in the absence of any knowledge on the part of the applicant’s counsel, or representatives, as to the content of the documents.  Now, we come back in a different situation.  Before the Court of Appeal we had knowledge of the content of the documents and what we say is that it is a necessary subtext for paragraph 57 for two factors to arise.  Because of the significance of the press release – it was not put the press release misdescribed the joint advice.  That was not a question.  The question is, what were the material differences in the earlier advices?

The only relevance of those difference we would say must be that the greater the nature and extent of the differences the more likely the press release was not a full disclosure of the processes followed and as a consequence the press release may thereby have been misleading, lacking in candour or materially incomplete and inaccurate, so we ‑ ‑ ‑

KIEFEL J:   That sounds awfully like saying there has to be disclosure of the advices in question to meet the public interest identified ‑ ‑ ‑

FRENCH CJ:   There is only one right answer.

KIEFEL J:   Yes, you have answered your own question.

MR MERKEL:   No, your Honour.  Depending on the nature and extent – we have the whole gamut, and I am constrained by saying what it is, but there can be material differences of approach or outlook on different points but not outcome.  The ultimate material difference would necessarily be on outcome.  That would be the ultimate case of enlivening section 50(4) otherwise the remitter would have been futile because it was not suggested and it was not suggested by Justice Morris at the AAT that this was a case of malpractice or impropriety.

It was a case that arose because of the press release and material differences he had observed between the different advices at different stages.  Answering your Honour the Chief Justice’s question earlier, we say that what the remitter required the court to do is identify the nature and extent of the differences, analyse them and determine whether they made the press release – I will use the word “misleading” but it gave it a characterisation that justified the public – enlivened the public interest.  It sidestepped that question but I will come back to that because it reverted to a view that this was a proper process of decision making and governments always get different opinions on different matters and they are not obliged to publicly announce them.  That is not the issue.

The real issue is if the government, through its Attorney-General in a prerogative matter or through a Minister or a government agency in any other matter, makes a public announcement of a decision in a matter of public interest, relies on legal advice or material in other exempt documents it thereby runs the risk of enlivening section 50(4) if – I can not use the whole phrase - “the announcement is misleading”.  That was, we say, a necessary precondition for this Court’s remission, otherwise the remission would have been futile because this Court was not asking the Court of Appeal to go back and find that no matter how much the difference it could not enliven section 50(4).  This Court of course talked in language of possibility because at that stage it was entirely speculative as to what the nature and extent of the differences are.

Your Honours, can we go to volume 2.  I have taken your Honours to the steps that were not disclosed.  At volume 2, pages 193 to 194, but particularly at 194 we set out at the top by taking the step that the Attorney did and I ask your Honours just to read down to what we have said there.

KIEFEL J:   I am sorry.  Where are you, Mr Merkel?

MR MERKEL:   At 194 in the confidential volume, your Honour.  It is the small – confidential volume 2.  It is not in the main volume.  Your Honour, because these were confidential documents they ‑ ‑ ‑

FRENCH CJ:   I have a volume here but there was a small volume which contained the – I am sorry.

MR MERKEL:   It contains the confidential submissions the parties put on the content of the document, your Honours.

FRENCH CJ:   Yes.

MR MERKEL:   The press release is set out at paragraph 7, but it is paragraphs 8, 9 and 10 I would ask your Honours to read.

FRENCH CJ:   Yes.

MR MERKEL:   Can we say also we make the point at footnote 21.  When your Honours see what is set out in paragraphs 9 and 10 Justice Morris’ reasoning at the Tribunal which is at application book 92 to 93, paragraphs 27 to 28, which their Honours had to speculate about, suddenly takes on a whole different meaning.  What we say, going back to our non‑confidential submissions in paragraph 11, that the material differences we have disclosed, and when one sees where they are in the spectrum, were therefore misleading, lacking in candour or materially incomplete or inaccurate and what we say is that that is an a fortiori case of the public accountability requiring disclosure of the relevant documents pursuant to the override.  What we want to add is the Court of Appeal’s approach to that question effectively immunises Ministers and other public agencies from disclosure in those circumstances.

KIEFEL J:   Mr Merkel, speaking for myself, I would be more assisted if you could identify the error in the reasoning of the Court of Appeal, particularly given the time constraints that we have, rather than speaking in generalities.

MR MERKEL:   Your Honour, the Court of Appeal took the view that the press release was literally accurate, it did not misrepresent any fact and therefore rejected that it may be misleading by omission.  It was driven, we would say, by a view that government is not required to disclose different and contrary views.  We say that this is a case where the fullest disclosure of the process followed which results in a disclosure of only the very last step and not the earlier steps which were materially different in content.

KIEFEL J:   Which are the passages in the Court of Appeal’s judgment that you say contain the error?

FRENCH CJ:   There is no doubt that the Court of Appeal examined the document and adverted to the existence of the differences.

MR MERKEL:   I think it starts at paragraph 19, your Honour, at page 147 and the submission was put at paragraph 23 and we add “misleading, lack of candour” and so forth here.  They discuss the cases we relied upon, “misleading conduct by omission” and then the key paragraph is at 31:

There was nothing in the language of the press release, or in the surrounding circumstances, which would warrant this Court finding – as a fact – that the Attorney-General had thereby represented to the public either that the joint advice was the only advice he had received on the topic or that he had received no advice to the contrary.  On a fair reading, the announcement was not intended to enable – and did not invite – members of the public to make an assessment of whether the Minister had made the right decision.  It was not a statement of reasons for the decision.  The announcement was intended to convey – and in fact conveyed – no more than the decision had been based on, and accorded with independent ‑ ‑ ‑

FRENCH CJ:   Is that anything other than a conclusion with which you disagree?

MR MERKEL:   No, your Honour.  We say it is a conclusion which is inconsistent with the basis of this Court’s decision that the Attorney‑General was intending to give the fullest information about the process followed to quell concern of the public about it.  This was the minimal amount of the information of the process.  That was the key element of this Court’s decision.  There were two key elements in paragraph 57, public accountability by issuing it and the evident purpose of giving the fullest information about the process followed.

FRENCH CJ:   I think your time is up, Mr Merkel.

MR MERKEL:   Thank you, your Honour.

FRENCH CJ:   Yes, Ms Tate.

MS TATE:   Is it a convenient time, your Honour.  I am certainly prepared to push ahead.  I am in your Honour’s hand.

FRENCH CJ:   Yes, I think you should proceed.

MS TATE:   Yes, your Honour.  Your Honour, we oppose a grant of special leave in this proceeding on two grounds, firstly, that the remitter was undertaken by the Court of Appeal in accordance with the direction of this Court without error and, secondly, that there is no new question of law that arises in this proceeding of public importance.

We submit more generally that the Court of Appeal properly understood its task and faithfully discharged that task.  We submit that the task remitted to the Court of Appeal was fourfold.  Firstly, it was to inspect the documents; secondly, to ascertain whether there were any material differences between the advices; thirdly, to analyse the nature and extent of those differences; and, fourthly, to draw a conclusion whether in the specific circumstances of the case the nature and extent of any differences between the advices would be such as would require disclosure by an exercise of the discretion under section 50(4) in the context of the press release.

We submit that all of these tasks were premised on an understanding by the Court of Appeal that it depended on what it found in the contents of the documents.  Depending upon that content it might exercise the power under section 50(4) on the ground that the public interest required that the documents be released.  Ultimately, we say in short, the judgment of the Court of Appeal records that they did not find anything in the contents of the documents that required their release.

It is important, in our submission, to identify what were the findings of the Court of Appeal.  Perhaps if I could mention just in summary, the Court of Appeal found, having inspected the documents, that there were material differences between the advices.  They characterised those material differences as no more than differences of opinion, not of fact and differences of opinion on important and complex matters, matters on which reasonable minds might differ and which required the exercise of judgment.  As your Honour the Chief Justice noted earlier, they were matters which gave rise to normative issues. 

It also found that the advices were obtained sequentially and not simultaneously and that the advices were successive, that is, in effect, that each advice built upon and dealt with issues in the advices that came earlier in the sequence.  Being provided in such a sequence the advices then permitted the Attorney‑General to evaluate the material differences between the advices, that evaluation also being a matter of normative judgment.

In substance, in our submission, the findings of the Court of Appeal were that the material differences were benign and not unexpected in such a process.  One can also negatively infer that the court did not find that there were any differences in the factual material on which the advices were based - this was identified by the High Court as something they should look for – nor that the advices revealed, for instance, any breach of integrity in the trial process.

The material differences, the Court of Appeal said, were differences of opinion which were reasonably arrived at.  Those specific findings on the contents of the documents quite properly set the background against which the Court of Appeal considered the allegation made by the applicant that the press release was misleading.

The Court of Appeal did not say, as my learned friend has suggested, simply that the terms of the press release were strictly accurate.  The Court of Appeal went further than that to say that judged against the background of the content of the documents there was no misleading impression created by referring only to the final advice in the sequence, especially in the context where there was no obligation to give reasons, the press release was not to be read as a statement of reasons and the doctrine of legal professional privilege protected the documents in dispute.

More particularly, we submit that the judgment of the Court of Appeal reveals that it well understood that it had previously been in error and concluding, without having inspected the documents, that there could be no basis upon which the public interest required release.  It understood that the High Court had corrected that error and it indicated that it was not legally impossible for public interest to require release in the circumstances.  This is a matter to which Justice Kiefel has already adverted. 

They accepted that the question of the release turned on the nature and extent of the material differences between the advices and having inspected the content of the advices they considered the argument as to whether the press release was misleading and whether in the context of the political accountability assumed by the Attorney‑General the public interest override ought to be exercised.

Now, if I could take your Honours to the particular passages in the judgment of the Court of Appeal to make good each of those propositions?  Firstly, your Honours, if I could refer you to application book 143 at paragraph 10.  There their Honours say, “The remaining issue” – that is the balance of the appeal having been decided in favour of the respondent, there had been no waiver of legal professional privilege with respect to the joint advice:

The remaining issue concerned the Tribunal’s conclusion that access should be granted to all of the legal opinions, notwithstanding that they were exempt . . . This Court disagreed with Morris J, holding that the ‘public interest override’ in s 50(4) of the Act was not capable of applying in these circumstances.

That is the previous determination of the Court of Appeal.  Then on page 146 at paragraph 16 their Honours take up this language again about the legal impossibility of there being a basis for release and they, in referring to the decision of the High Court and the reasons of the High Court, say in the second line at paragraph 16:

It was not ‘legally impossible’, their Honours said, that there might be such differences between the advices as might require disclosure in the public interest.  Without an examination of the advices, that possibility could not be excluded.

In our submission, that shows that the Court of Appeal well understood that it had been an error on the previous occasion and that it accepted that this Court had stated that section 50(4) was capable of applying in the circumstances but that it all depended upon the nature and extent of any material differences between the advices.  For that purpose it was necessary for the court to inspect the documents, which they did, and there is a record of that at paragraph 17, “We have read the advices.”

They also say that repeatedly at paragraph 44 and at paragraph 46 and I will not take your Honours to that but they state that they have read the advices and then at paragraph 18 they set out that they have determined that there were some “material differences of opinion”, that is they were differences of opinion, not differences of fact.  They state the advices between which they say there were differences of opinion or differences of “shades of opinion”.

They then at paragraph 46 on application book158 identify with some particularity the nature and extent and significance of the material differences.  I say with some particularity only because of course the court was also constrained by the fact that the subject matter of the proceeding is the confidentiality of the contents of the documents.

Not wanting to pre-empt the ultimate disposition of the proceeding, the court was clearly coy and guarded about what it could say in relation to the nature of the differences.  Nevertheless, they say at paragraph 46 that, as I have mentioned, the advices were successive, they were on matters of considerable complexity and high importance.  They were informed but not governed by legal considerations, that is, it was not exclusively a matter of applying a legal principle.  They were matters on which ‑ ‑ ‑

FRENCH CJ:   It did not involve any application of a legal principle, did it?

MS TATE:   In some degree, your Honour.  Some of the grounds of the petition did make reference to questions of new evidence and also, to a degree, severity of the sentence.  These were matters which were dealt with in the advices by many of the advisers.  Ultimately, what their Honours say is that the type of differences to be found between these advices are differences upon which reasonable minds might differ.  There is nothing more to be found that would in itself ground an exercise of the public interest override.  As I say, the differences were benign and not unexpected in the context of the application for mercy.

On the basis of that examination, your Honours, we make three points.  Firstly, we say that those passages in the judgment demonstrate that the court was not simply concerned with the process of decision making and whether it had been orthodox or not.  Rather, the focus of the court’s findings relates specifically to the contents of the documents.  Moreover, it is wrong to suggest, as the applicants have done in their submissions at application book 174 to 175 that the Court of Appeal inappropriately eschewed an analysis of the extent of the significance of the differences.  It is our submission that the court identified within certain constraints precisely what those differences were.

Thirdly, we submit that the court was correct in considering the allegation that the press release was misleading to do so against the specific findings it had made in relation to the extent and nature of the material differences between the advices.  It is our submission that in that context it was not misleading for the Attorney‑General to refer only to the final advice in a sequence of advices which takes account of and grapples with any of the issues that are raised in the previous advices.

It is our submission that the Court of Appeal was not intending here to lay down any point of general principle as to when a press release might be misleading nor indeed was it intending to lay down any general principle as to the political accountability that might flow from the issuing of a press release.  It was focused only upon discharging the task remitted to it from this Court which, in our submission, it did faithfully.  If your Honours please, they are the submissions for the respondent.

FRENCH CJ:   Thank you.  Yes, Mr Merkel.

MR MERKEL:   Could I take your Honours to the bottom of page 92 where the plurality judgment set out by Justice Morris had said – bearing in mind, your Honours, no differences that are material relate to not just shades of difference on matters of issue but in relation to the end result:

If only one advice is specified in such circumstances an impression may be created that the decision maker really had no choice; whereas if the two different advices are specified the public might think that there was a choice to be made by the decision maker and wish to know why a particular choice was made.

In my opinion, there are powerful reasons why the conclusions contained in the VGS advices and the Redlich advice should be made available –

When one superimposes on that the High Court’s approach in the plurality judgment at paragraph 48 at page 102 that to allay public concern, the Attorney was given “the fullest information as to the process”.  One adds on to that not only no reference to the earlier advice but only a reference to very last step in the process.  We say it is a classic case of “misleading, lack of candour or materially incomplete” in the context of the public interest override and this Court’s discussion of public accountability assumed by the press release.

We say that no matter how material and absolute the differences were the Full Court’s reasoning says the differences are necessarily irrelevant but if these differences cannot be relevant then we do not know, in this context or any other similar context, what differences are.  That is why we say the point of importance is that this Full Court decision effectively immunises government decision making from the candour and the transparency and accountability which the public interest override was designed to secure.

We say this is a classic case for raising that issue and it is a very important point because it is not just this press release, it is not just this legal advice, it extends not only to a prerogative power but any decision made in the public interest in which a government announcement is made and says it is based on legal advice or advice in other exempt documents.  The public interest override is there to attract a duty of candour, the lack of which will expose the government to the risk of a section 50(4) override.

The Court’s approach in this case denudes that section of any real operation, other than as the court indicated, in the event of malpractice or impropriety in the process rather than the government’s accountability to the public as to how it announces the outcome of the process.  We would say anyone tuned into the well‑travelled paths of misleading conduct by silence or omission – and we do not need to say this was an unlawful release – would appreciate the impression created.

As Justice Morris had indicated, there was no real choice to be made.  We say that is not a correct impression in the circumstances which

your Honours have seen.  We do say that had the remitter been carried out in accordance with this Court’s reasons one of the reasons would have to be that at the extreme end of nature and extent of difference the override can and will be attracted but the Court of Appeal has said nothing in these circumstances enlivens section 50(4).

We say it would be quite erroneous if courts were to take the view this Court took of why this Court would remit a matter to it because as I said, your Honour, this Court must have necessarily remitted it on the basis that some difference at an extreme end would attract the override and it could only be because that difference would make the press release misleading or lacking in candour, otherwise, what was the purpose of the remission – we would say none.

The fact that the court talked in terms of possibility made the Court of Appeal direct its attention to form, not substance, but the substance had two steps in the High Court’s reasons.  One is that the nature and extent of the difference can attract the override and the reason for that is that taking it at its extreme if the nature and extent is such that it makes the press release misleading it will attract the override as that is the only occasion for a remitter.

Justice Hayne’s view was that there should be no remitter and in effect – because his Honour was not satisfied of the material differences or the material difference would make a difference.  We say it is necessarily inherent in the different reasoning of Justice Hayne’s dissent and the plurality judgment that differences can and would make a difference depending on the nature and extent.  That course was not undertaken and not followed.

FRENCH CJ:   Thank you, Mr Merkel.  The Court will adjourn briefly to consider its decision.

AT 1.18 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.33 PM:

FRENCH CJ:   The Court is of the view that there should be a grant of special leave in this matter limited to grounds 2(a)(ii), (c) and (d) in the draft notice of appeal at page 169 of the application book.  The applicant may wish to consider whether 2(a)(ii) should be amended by the addition of the words “and their extent”.  This should not take more than one day, I would think, Mr Merkel?

MR MERKEL:   Yes, your Honour.

MS TATE:   I would agree with that, your Honour.

FRENCH CJ:   Yes, all right.  We will now adjourn until 2.15.

AT 1.34 PM THE MATTER WAS CONCLUDED