Osland v Secretary, Department of Justice

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.