Osland v Secretary to the Department of Justice

[2010] HCATrans 93

[2010] HCATrans 093

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2010

B e t w e e n -

HEATHER MARJORIE OSLAND

Applicant

and

SECRETARY TO THE DEPARTMENT OF JUSTICE

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 APRIL 2010, AT 2.03 PM

(Continued from 14/4/10)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Solicitor‑General.

MS TATE:   May it please the Court.  Your Honours, we have prepared written submissions in response to each of the three questions that were raised by the Court yesterday.  May I hand them to the Court.

FRENCH CJ:   Thank you.

MS TATE:   May I hand three copies of the submissions to my learned friend.  We submit that the material comprised in those submissions provides a complete answer to the issues that were raised by the appellant yesterday and we have sought to give exact references to the appeal book to support that proposition.  Would your Honours wish to have an opportunity to read those submissions?

FRENCH CJ:   Yes, I think it might assist.  Just take a seat for the moment, Solicitor.

MS TATE:   Yes, thank you, your Honour.

FRENCH CJ:   Yes, Solicitor.

MS TATE:   Your Honours will have seen from the submissions that in short we say that the Court of Appeal on remitter continued to exercise its error of law jurisdiction under section 148(1)(a) of the VCAT Act because it had identified several errors of law in the Tribunal’s application of section 50(4) and those several errors had never been contested by the appellant.  Accordingly, when the matter was remitted to the Court of Appeal, the decision of the Tribunal remained infected by errors of law which have never been corrected, and thus the Court of Appeal remains seized of jurisdiction.  The complaint to this Court ‑ ‑ ‑

HAYNE J:   You said, Solicitor, that the errors were never contested.  Can we go, please, to appeal book 342?  Is that the notice of appeal to this Court which lay behind the first judgment of the Court?

MS TATE:   Yes, it is, your Honour.

HAYNE J:   Is not ground 3 putting in contest the conclusion that there could be no basis upon which, on the material before the Tribunal, an opinion could be formed?

MS TATE:   Yes, your Honour.

HAYNE J:   How do you maintain the proposition which you advanced, as I understood it, that there was no contest in this Court on that matter?

MS TATE:   Your Honour, it might be illuminating for the Court to consider the notice of appeal that was before the Victorian Court of Appeal, which is at pages 286 to 289.  There were eight separate grounds of appeal and, in short response to your Honour Justice Hayne, we would say that the ground relating to the failure to inspect was not a ground that sought to contest the grounds of appeal on which we had been successful in the Court of Appeal.  It was the ground in this Court relating to inspection was only a ground which sought to vitiate the exercise of the power by the Court of Appeal, having found various errors of law in the Tribunal’s decision and having gone on to exercise the public interest override without having inspected, and it was confined to that narrow point.

KIEFEL J:   How does that square with paragraph 52 in this Court’s judgment, 234 CLR 275, page 299, the last sentence:

The question for this Court is whether, not having seen the documents, the Court of Appeal erred in deciding that, in the circumstances of the case, there was no basis upon which it could have been concluded that the case was one for the application of s 50(4).

Not section 50(7).

MS TATE:   I am sorry, your Honour.  I will just find the reference in the appeal book.  That is at 369.

KIEFEL J:   I am sorry, I am reading from the Commonwealth Law Report, paragraph 52, the last sentence.

MS TATE:  

The question for this Court is whether, not having seen the documents, the Court of Appeal erred in deciding that, in the circumstances of the case, there was no basis upon which it could have been concluded that the case was one for the application of s 50(4).

KIEFEL J:   Subsection (4), not subsection (7).

MS TATE:   Well, your Honour, the power under section 148(7) – and perhaps if I could take your Honours to the terms of that power.  Section 148(7) of the Victorian Civil and Administrative Tribunal Act – subsection (7) has a number of different paragraphs.  Paragraph (a) is conferring a power on the Court of Appeal to make:

an order affirming, varying or setting aside the order of the Tribunal –

Under (b) they have the power to make –

an order that that Tribunal could have made in the proceeding.

So it is only ever, your Honour, by virtue of 148(7) that the Court of Appeal can exercise the discretion under section 50(4).  Section 50(4) does not confer a power on the Court of Appeal to exercise the discretion of the public interest override.  It is only by reason of section 148(7).

KIEFEL J:   But there is a gateway through error of law to subsection (7), is there not, of section 148?  They are the remedies, the orders that can be made, consequent upon error.  You have to find the error first.

MS TATE:   Yes, you have to find – 148 is unquestionably an error of law jurisdiction.  The Court has to find an error of law in the Tribunal’s decision, but having found that error of law, it can not only affirm, vary or set aside the order of the Tribunal, but it also has a power to exercise a substitutory function under 148(7)(b), namely, it can do whatever the Tribunal could have done.

One of the things that the Tribunal could have done is under section 50(4) it could stand in the shoes of the Minister and despite the fact that a document is exempt, it can defeat that exemption and release the document because it determines in its own discretion that the public interest requires that access be given to the document.

FRENCH CJ:   That is not actually in the shoes of the Minister, is it?  That is an additional power conferred on the Tribunal.  I mean, the Minister, of course, always has the power to waive that any person could, but ‑ ‑ ‑

MS TATE:   Section 50(4), your Honour, is a power to stand in the shoes of the Minister.

FRENCH CJ:   Yes, but the public interest override goes beyond that, does it not?

MS TATE:   Your Honour, there is a reference in section 50(4) to having the powers of the Minister, including being able to defeat an exemption.

FRENCH CJ:   Yes, but I think it has been construed the other way in the Court of Appeal in Victoria in an earlier case.  Anyway, it does not detain us at the moment.

MS TATE:   No, but, your Honour, our submission there is that the Court of Appeal could only ever exercise the overrides because of 148(7).  If 148(7)(b) was not in the VCAT Act, it would not be possible for the Court of Appeal to exercise a substitutionary function.

KIEFEL J:   But the gateway to 148(7) is subsection (1) of that section.  The appeal is on a question of law.

MS TATE:   It is an error of law jurisdiction, yes, your Honour.  Our point is that there were multiple errors of law that were found by the Court of Appeal in the Tribunal’s application of the override.  There were multiple errors of law.  I will take your Honours to that.

But first if I could take your Honours back to the notice of appeal in the Court of Appeal which is behind tab 11 and it is pages 286 to 289.  Your Honours will see there that there are eight separate grounds of appeal.  The first ground of appeal related to the application by the Tribunal of section 50(4) in such a manner that although Justice Morris had found a document to be exempt by reason of legal professional privilege, he considered that the stringency of the protection provided by legal professional privilege depended upon the historical recency, if one can put it that way, of the subject matter of the document.  So if the advice concerned a matter of historical interest only, he considered that the stringency of the protection afforded by legal professional privilege was diminished.

That ground was upheld by the Court of Appeal and your Honours will see that at tab 15 in the first judgment of the Court of Appeal, and if I could refer your Honours to the judgment of President Maxwell after he has considered the question of waiver when he begins to consider section 50(4).

GUMMOW J:   Paragraph?

MS TATE:   It is 321, and your Honours will see, indeed, it begins at 321 at the top of the page where there is a reference of:

the Solicitor-General submitted that the Tribunal had fallen into error in –

(a)distinguishing between documents which contained legal advice “of historical interest” only, and documents which were “under active consideration” -

That was essentially the argument that we made before the Court of Appeal.  Then at 322 at about line 7, paragraph 84, President Maxwell says:

In my opinion, the Solicitor-General’s submission must be upheld.

So ground 1 was upheld by the Court of Appeal.  Justice Ashley at 113 on page 333 says that he agrees with President Maxwell’s reasons at paragraph [84], and Justice Bongiorno indicates his agreement with the President at paragraph 120.  So ground 1 of the appeal was successful and that has never been contested.  It has never been the subject of a special leave application.  It has never been contested in this Court.  It remains as an error of law which infects the decision of Justice Morris in the Tribunal.

With respect to the second ground, which was concerned with the types of interest that are protected by legal professional privilege, we were unsuccessful on that ground.  With respect to ground 3, the Court of Appeal effectively construed that as, in substance, the same as ground 1.  Then in relation to ground 4, which was an argument based on the conflation between what it is the public is interested in knowing on the one hand, and on the other hand, what is in the public interest, that was another ground on which we were successful, and I will take your Honours to the parts of the Court of Appeal’s judgment where that was made clear.

The conflation argument, as it was called, was – 324, it is upheld, and perhaps that is enough to say at the moment, but the reasons indicate the argument.  But at paragraph 91, President Maxwell upholds that complaint as “well‑founded”.  Your Honours will also see on that same page that at paragraph 88, at the top of the page, he also indicates that it was “unnecessary” for the Court to consider matters relating to policy, and they were questions relating to the need for transparency in the exercise of the executive discretion.  But the fourth ground, as I say, the conflation ground was upheld by President Maxwell, and then Justice Ashley again at paragraph 133, page 333, agreed with President Maxwell in his reasons at 91, and again, Justice Bongiorno at paragraph 120 at page 335 was also in agreement.

That ground of appeal has never been challenged.  That upholding by the Court of Appeal of that ground of appeal has never been challenged.  It has never been the basis of an application for special leave; it has never been ventilated in this Court.  It simply stands outside the range of challenge that was brought by the appellant.  With respect to the other grounds of appeal they were either considered to be essentially policy based and unnecessary for the Court to decide, or they were regarded as relating to the two grounds, on which we were successful.

Now, there was a third ground of appeal on which we were successful and that was the ground in relation to the section 30 exemption, which was relied on by my learned friend yesterday.  The section 30 exemption is an internal working documents exemption and our argument was that Justice Morris had erred in his application of the override by failing to consider the section 30 exemption before going to section 50.  He determined the section 32 exemption, the legal professional privilege, but he did not determine the section 30 exemption.

KIEFEL J:   Does the section 30 exemption appear in the grounds of appeal?

MS TATE:   It was a ground of appeal on which we were given leave during the course of the hearing in the Court of Appeal.  It is then upheld in the Court of Appeal’s reasons.  It appears – and we looked exhaustively last night – but it appears as though there was no consolidated further amended notice of appeal, as there should have been, but it appears that that was not done.  But that ground, which we would call ground 9, was argued in the court and upheld by President Maxwell at paragraph 74 on page 318.  At paragraph 73 he says the argument was:

where more than one exemption is relied upon, the Tribunal must consider each ground of exemption relied upon before considering the power under s 50(4).

Then in 74 he says:

With respect, this submission seems clearly correct.

In fact, on page 320 at paragraph 78 he says:

That point alone would be sufficient to justify upholding the Secretary’s appeal.  Since they were fully argued, however, it is appropriate to proceed to consider the other grounds of attack on the Tribunal’s conclusion that the public interest required that access be granted to the documents.

Those very words are mentioned by this Court on its reasons on the last occasion, the other grounds of attack.  Now, not only did President Maxwell uphold the section 30 ground, but Justice Bongiorno agreed with him on that, again at page 335 at paragraph 120.  Justice Ashley in paragraph 113 does refer to paragraph 74, so again there is agreement by all three judges.

This means that when this matter came to the Court of Appeal it came, of course, by means of an application for special leave and special leave was granted on limited grounds and those grounds then reappear in the notice of appeal that was before this Court, which is behind tab 17 at pages 342 to 344.

The first two grounds related to the question of waiver of legal professional privilege, whether the attorney by exposing the conclusion of the advice in the press release by the panel of three QCs had in fact waived legal professional privilege.  They are the first two grounds of appeal, and I note the appellant was wholly unsuccessful in relation to that.  The third ground of appeal was the ground of appeal on which the appellant was solely successful, and this was a ground of appeal confined to the failure by the Court of Appeal, having found error in Justice Morris’ decision, so having been ceased of jurisdiction under section 148(1)(a), having found that error and gone on to exercise the power under 148(7), that is the power under section 54 as, as it were, uplifted and conferred upon the Court of Appeal by 148(7)(b), the failure by the Court of Appeal to inspect the documents before it made its determination that the public interest did not require release. 

That was found to be an error by this Court and the reasons of this Court make it plain that they recognised that there were still errors remaining in the Tribunal’s decision.  That is to be found, first of all, at paragraph 53 where – this is the judgment of Chief Justice Gleeson, Justices Gummow, Heydon and Kiefel – said:

The Court of Appeal had available to it the Tribunal’s description of the documents and the Tribunal’s reasons for applying s 50(4).  The legal errors which the Court of Appeal found in the Tribunal’s reasons (which are not presently in contest) did not turn upon the particular contents of the documents.  The Court of Appeal was able to identify those errors without inspecting the documents.

Then their Honours go on to say at paragraph 56:

Regardless of whether the advice given by the Attorney‑General to the Governor was legally unexaminable, the conduct of the Attorney‑General was not unaccountable.  The very exercise in which the Attorney‑General was engaged in putting out his press release assumed political accountability.  Political attack on a decision not to exercise the prerogative of mercy in a particular case . . . is not alien to the process.  That does not mean abrogating legal professional privilege and other statutorily recognised grounds of confidentiality.

Paragraph 56 is still concerned with waiver.  At 58 then on page 371 it says:

The Court of Appeal was not obliged to remit the matter to the Tribunal.  It was empowered to deal with the s 50(4) issue itself.

as we say, by reason of 148(7) –

In doing so, because of what Morris J had said about the possibility of inconsistency, the Court of Appeal should have examined the documents for itself.  Having done so, it may well have concluded that the public interest did not require access to the documents and that either there were no material differences or that such differences did not require disclosure of the documents.

We rely upon that passage, your Honours, to say that this Court understood that the task that was being remitted to the Court of Appeal was a task for it to engage in the balancing exercise of considering whether the override should be exercised.

FRENCH CJ:   Had there been a consideration at this point by anyone of whether, in terms of the question I put to Mr Merkel yesterday, there was a judgment or determination of the Tribunal by reference to its examination of the documents which was independent of those considerations which were found to be erroneous in the Court of Appeal and which are not later contested?

MS TATE:   We were certainly apprised of the matter, your Honour.  We were well aware that the only ground of appeal which put in issue the Court of Appeal’s reasons in relation to section 50(4), as opposed to waiver, was a ground of appeal relating to the exercise of its power, having found errors that were uncontested.  Your Honour, whether it was considered by the appellants that this matter would always be remitted back so that it went back to the Tribunal itself so that there would be a fresh opportunity for consideration is a matter for them.

KIEFEL J:   How would the override provision in section 50(4) inform the exercise of the court’s power?

MS TATE:   I am sorry, your Honour?

KIEFEL J:   How would a determination in relation to the override provision inform the exercise of the court’s power under section 148(7)?

MS TATE:   This Court was unequivocal in directing the Court of Appeal’s exercise of the section 50(4) power.

KIEFEL J:   How do you say it works?

MS TATE:   It was unequivocal in saying that the error had been the failure to inspect, that what it had to do was to look at each of the documents, look at each of the advices, determine whether there were material differences, determine the significance of those material differences, determine whether there was an inconsistency and determine what the relationship was of any material difference to the terms of the press release.  In our submission, it was unequivocal that this Court had told it it had committed an error and that error was a failure to inspect.  The Court of Appeal was then very mindful of what its task was.  I will take your Honours to the Court of Appeal’s judgment, but before I do so, can I just refer your Honours to page 394, paragraph 127, which is the judgment of Justice Kirby, a separate judgment in this Court, where he says at 127:

However, as the joint reasons point out, the Court of Appeal was not obliged to remit the proceedings to the Tribunal.  It was empowered to deal with the s50(4) issue for itself.

FRENCH CJ:   The choice which confronted the Court of Appeal on remitter as foreshadowed in paragraph 58 in the joint judgment at 371 and 372 was to dispose of the matter finally or to remit it to the Tribunal.  That would presumably be informed in part by its determination whether upon an examination of the documents the application of the override was open.  If the application of the override was open, there was therefore no legal error on the part of the Tribunal that it would be addressing in making that decision.

Then the question would arise, well, has the Tribunal, in effect, made its determination of a balancing exercise on the assumption that the override would turn out correctly on this hypothesis was open? .  If so, no remitter would be necessary, but it would be an acceptance of the merits decision of the Tribunal which would be consistent, would it not, with the function of the Court of Appeal under section 148?  Not the only path, but a path it could have taken.

MS TATE:   Well, your Honour, the manner in which the Court of Appeal understood what it was to do was to perform that very function which it had erroneously performed before and performed that very function and no other function.  Your Honour, I am not sure if this is a completely direct answer to your Honour’s question, I will return to it if it is not satisfactory, but at paragraph 12 of the Court of Appeal’s reasons at page 411, when the Court of Appeal was faced with an application for a remitter back to the Tribunal, this matter having come back to the Court of Appeal pursuant to your Honour’s reasons, the Court of Appeal was faced with an application by the appellant that it should go back to the Tribunal altogether.  The Court said at paragraph 12:

We rejected that submission, for the following reasons.  First, the Tribunal has already exercised the s 50(4) discretion.  For reasons given by this Court on the last occasion, that exercise of discretion was vitiated by error.  There was no appeal from that part of the decision, and we see no particular reason why the Tribunal should be called on to consider the exercise of the discretion for a second time.  The appellant’s abandonment of the other ground of exemption originally relied on (s 30(1) of the Act) means that there is no longer any ‘unfinished business’ in the Tribunal.

My learned friend relied upon the respondent’s abandonment of the section 30 ground yesterday, in effect, to suggest that that meant that there was no legal error in the Tribunal’s decision that remained live before the Court of Appeal when the matter was remitted to it, so that it had failed to any longer be seized of jurisdiction and it had to set about finding an additional error in the Tribunal’s reasons and the Tribunal’s application of section 50.  We say, no, the abandonment of the section 30 ground meant that the matter did not have to go back to the Tribunal for further evidence and the Court of Appeal could do what it ought to have done in the first place, which is to exercise the power under section 148(7) properly – the discretionary power – without error.  We also submit that that is what it did and we submit that for all of the reasons we have in our written submissions. 

So, your Honours, we consider that there was simply no reason here for the Court of Appeal to find an additional error in the Tribunal’s decisions and, indeed, as Justice Heydon pointed out yesterday, it was common ground between the parties that what it was to engage in was to engage in the balancing exercise and to ensure that the power it was exercising was exercised correctly.  Your Honour alerted my learned friend to paragraph 21 of the Court of Appeal’s judgment at page 415 where their Honours say:

Moreover, it was common ground on the appeal that the task now confronting this Court involved a balancing process.

Then they go on to set out the standard formula that has arisen from the earlier cases.  They then, of course, inspect the documents, determine that there are some material differences, take a view on the significance of those differences and ultimately find that the public interest does not require release.  Your Honours, we say there was no mistake here that it considered, I think as Justice Hayne said yesterday, that its jurisdiction was a general appeal by way of rehearing.  It was not that, it understood that it was an error of law jurisdiction, but the errors of law had been found and all that was left was the component of exercising the power correctly. 

So, your Honours, we say that those submissions have the effect that the question as formulated under (a) is not the correct question because that was not the task required of it.  It was not being asked as to whether the override was incapable of application.  It was just being asked to exercise

the discretionary power correctly and on the basis of the inspection of the documents.

With respect to the second question raised by the Court, we say in the light of our submissions to question (a) and the existing errors of law, we would say that those errors of law are nonetheless demonstrated in the decision of the Tribunal now and it is otherwise unnecessary for the respondent to answer (b).  We do not have to find any further additional errors. 

The third question, which is the question about what orders ought to be made, including orders as to costs, we would say that if the Court accepts the respondent’s answers to questions (a) and (b) or the submissions in relation to them, that the hearing of the appeal should simply proceed as it was intended to proceed a day ago.  The respondent does not seek costs of the appeal, but if the Court is not with us on this, if the Court accepts the appellant’s answers to questions (a) and (b), then we submit that this Court’s order for remitter of 7 August 2008, which is at appeal book 406, paragraph 2 of your Honours’ orders, we submit that that order has not yet been complied with.  That is paragraph 2 on page 406:

The matter be remitted to the Court of Appeal of the Supreme Court of Victoria for further hearing in accordance with the reasons of this Court.

That has not yet been complied with if the appellant is right, and we say that the appropriate orders, if the appellant’s arguments are successful, is that this appeal be allowed, set aside the orders of the Court of Appeal made on 7 April 2009 and on the remitter from this Court to the Court of Appeal, as ordered on 7 August 2008, the further hearing be conducted in accordance with the reasons of this Court on 7 August 2008 and your Honours’ reasons in relation to today’s proceedings, if there were to be reasons.

We would submit that there ought be no order as to costs because, as we have mentioned, it was common ground between the parties to the Court of Appeal that the task facing it was a balancing exercise and thus, to that extent, it was the appellant who also contributed to the cause of that error along with the respondent, if indeed there was error.  They are the submissions for the respondent, your Honour.

FRENCH CJ:   Thank you, Solicitor.  Yes, Mr Merkel.

MR MERKEL:   If the Court pleases.  If I can deal with the questions asked by the Court.  My learned friend does not appear to contest question (a).  I understand I will deal with her submission that the question should not be asked of her but it is very clear that on question (a) the court did not perform that task.  That seems to be not in dispute.  It is clear from any fair reading of the decision that it proceeded to go to the public interest override afresh and we say there was no consideration by the Court of Appeal of any question of law that was before it at that point of time.

In relation to question (b), my learned friend answered your Honours’ question by merely saying that the Court of Appeal found two errors of law but she did not put any argument whatsoever to your Honours as to why they may constitute errors of law as that term is understood within section 148.

Indeed, when one looks at what the Court of Appeal found to be errors of law, it is simply an untenable proposition that the two errors relied upon - putting section 30 to one side - were ever capable of being errors of law.  But more importantly we say that any discussion of errors of law in relation to the public interest override based upon the merits under the override provision fell with ground of appeal number 3, with this Court’s reasons and most importantly with the order of this Court, setting aside the order of the Court of Appeal allowing the appeal.

So that when the matter went back before the Court of Appeal, it had to start afresh as a matter of law in respect of establishing its jurisdiction under section 148, and it never did so.  Had the section 30 point remained a live point, it would be fairly said that it could have said that in its opening sentence that that was the error of law, and because that was not challenged, either at the earlier stage in this Court or before it on the rehearing, that would have established a jurisdictional basis for it to move to subsection (7).  But the withdrawal of the section 30 point meant that under the override aspect of the case, relating to section 32, there had to be found an error of law in relation to a question of law arising, and at no point has the Court of Appeal ever formulated that question of law, nor did it on the remitter identify why that was a question of law and where there was error of law.  Now, we say that follows from ‑ ‑ ‑

HAYNE J:   What do you say then as to page 325 in the last sentence of paragraph 91 of the first Court of Appeal judgment?

MR MERKEL:   Yes, your Honour.

HAYNE J:   Would “taking into account an irrelevant consideration” fall within the 147 jurisdiction?

MR MERKEL:   No, your Honour.  The taking into account of an irrelevant consideration could only be one of the evaluative factors that of itself could not establish an error of law in the balancing exercise.  Can I just indicate, your Honour, on the aspect of the merits, what the Court of Appeal failed to do and what my learned friend failed to point out is that the reasoning of Justice Morris – can I take your Honour back to his Honour’s decision – commencing at paragraph 39 established the test in accordance with principle, namely, a balancing process.  Then at paragraph 43 said, “It is convenient to start the balancing process”.

Everything that his Honour considered from paragraph 43 through to the remainder of that decision at paragraph 54 was his Honour’s consideration of the balancing process.  No consideration which his Honour had regard to in that process was capable of being described as an irrelevant consideration because it is nowhere being pointed out that any factor that his Honour had regard to was an irrelevant supervening circumstance.  That is the first point.  So that the principles I took your Honours to yesterday would not countenance that if one factor was found to be something he should not take into account, if one factor was, that means there is one factor in the balance that should not have been there, but that is not an error of law.  I just means he got the balance wrong and that is a question of fact, not a question of law.

HEYDON J:   If you take into account an irrelevant consideration, is that not a sign you are asking the wrong question?

MR MERKEL:   Your Honour, if that be the error – it can be, your Honour, but need not necessarily be, because what his Honour was doing here was putting in the balance everything that he discussed from paragraph 43 on.

HAYNE J:   I would have thought that proposition might require a little reformulation of what is said in Avon Downs 78 CLR 360.

MR MERKEL:   Your Honour, with respect, I took your Honour to the decisions of this Court where there is a balancing process in relation to the public interest, in respect of a matter of opinion.

HAYNE J:   Yes, those decisions begin with Avon Downs, I think, Mr Merkel, if you remember immediately before the passage you read to us there was an extensive citation from Avon Downs.  That is why I started there.

MR MERKEL:   I cannot recall Avon Downs.  Your Honour, I am not sure where your Honour is referring to it in the judgment of the Court of Appeal.

HAYNE J:   I am talking about the decision in Wu Shan Liang that you took us to yesterday.

MR MERKEL:   Sorry, your Honour.

HAYNE J:   Let us not delay on this, Mr Merkel, let us come to the substance of what you have to say.

MR MERKEL:   Your Honour, can I go to the two errors that were said to be relied on, but the important point we wanted to make at the outset was that the two errors relied upon were errors that fell under the heading of the Court’s examination of the public interest override cannot apply.  That was within the ground of appeal number 3.  We had not seen the documents and the whole of the reasoning in the balancing process of Justice Morris was under the umbrella of the public override and was necessarily affected by the inspection of the documents.  That is why we say, and can be the only reason why, this Court, when it made its orders, set aside all of the orders of the Court of Appeal, for the Court of Appeal had to have to deal with section 50(4) override afresh.  The passages my learned friend took your Honours to had the assumption that the section 30 error of law, which was unaffected by the documents, remained as an error and that was the basis on which the matter was remitted to the Court of Appeal. 

BELL J:   Mr Merkel, how does that sit with the plurality reasons at 370, paragraph 53, that the legal errors, which were not in contest before this Court, did not turn upon the contents of the documents?

MR MERKEL:   We say, your Honour, that the legal errors, once the documents had been seen and that whole passage from paragraph 43 onwards is understood, necessarily depend upon the contents of the documents.  What we had before this Court and was never contested were their Honours’ findings in a vacuum without inspection of the documents.  Now we have seen the documents and we can read his Honour’s reasons in the light of the documents, it is clear that there is no finding within any of those paragraphs that can be unaffected by the documents. 

But can I go to what my learned friend contends were errors of law, because we say they now, in the light of the documents and an understanding of his Honour’s reasons, are not capable of constituting errors of law.  Really, what my learned friend has done has answered that question by reference to the two grounds which the Court of Appeal found.  We say they are not capable of constituting errors of law, and can I go to those two grounds, your Honours. 

The first ground my learned friend put forward was ground 1 at paragraph 17.  His Honour discussed the relevance of the historical aspect starting at paragraph 43.  Do your Honours have Justice Morris’ reasons at page 280 of the appeal book?  His Honour said – and this was not referred to by the Court of Appeal, but it is the context in which the discussion at paragraphs 44 and 45 appear:

It is convenient to start the balancing process by making some observations about the importance of maintaining legal professional privilege generally.

Then his Honour acknowledges it as “a fundamental human right” of the highest order.  But then his Honour refers to Judge Rowlands, at the top of page 281:

this fact does not absolve a document subject to legal professional privilege from the balancing process where public interest considerations might require disclosure.

In my opinion, the nature and strength of the factors that warrant the non-disclosure of a document on the ground of legal professional privilege will vary from case to case.

This is in the balance –

Although the maintenance of legal professional privilege will generally be a public interest of high order (and will also involve important matters of private interest), the strength of those interests will be greater in some cases than others.  For example, maintaining the privilege in relation to a document containing legal advice which is no longer relevant to the decision making process, but is of historical interest, is likely to be less important than maintaining that privilege in relation to a document under active consideration.  Thus in the balancing process it is necessary to consider the documents the subject of the privilege individually, and not generically as “section 32 documents”.

His Honour’s observation there is self‑evidently correct.  It is self‑evidently a relevant consideration.  If the release is of an advice in respect of a court proceeding beginning tomorrow, it must have greater weight in the balance than the release of a document concerning an advice given 20 years ago that has nothing to do with any current matter.  His Honour is not devaluing legal professional privilege, rather his Honour said it is a value of the highest order, but in respect of these documents - which only his Honour had seen, we had not – it is relevant to the balancing process.  That is not an irrelevant consideration.  It is a relevant supervening circumstance.  His Honour does not say, “I will release it because of that consideration”, but it is commencing fact.  Then his Honour says:

In the present case the documents in question contain legal advice . . . from senior lawyers.  The client is (effectively) the Attorney‑General, the first law officer.  The subject matter is the possible exercise of an executive discretion -

and then goes on.  Now, that historical interest aspect was said to be an error of law.  It is not even an error that is capable of being identified as contributing, ultimately, to the decision.  It is one factor, and it is a factual factor in the balancing process, not capable or tenable, having seen the documents, of being an error of law, but importantly, his Honour said, in the balancing process ‑ ‑ ‑

FRENCH CJ:   Just a minute, Mr Merkel.

HEYDON J:   Your submission may be correct, but was it put to the first Court of Appeal, if I can use that expression?  Was it part of the grounds of appeal to the Court of Appeal decision in 2007?

MR MERKEL:   It was a ground that my learned friend relied upon and succeeded on.

HEYDON J:   Well, the Court of Appeal having said that it is not self‑evidently correct, what Justice Morris said, should there not have been a ground of appeal to us challenging what, for example, the President said in paragraphs 81 and 84 of his judgment?

MR MERKEL:   Your Honour, we say ground 3 encapsulates the entirety of the reasoning, starting from paragraph 43 onwards, which was dependent critically on the content of the documents, which we had not seen.  If ground 3 succeeded, as it did, the Court of Appeal – that is this Court – set aside the order allowing the appeal.  The whole of the judgment on section 50(4) fell with that order.  It is the orders, not the reasons or not the grounds of appeal before the Court of Appeal that count.  Under ground 3 and the order of this Court the section 50(4) reasoning fell in its entirety.

If this Court had not set aside the order allowing the appeal, what your Honour would say would have greater force against us.  But the reason why it was not a big issue and why this Court assumed and discussed the remitter in terms of the balancing exercise is there was no contest about section 30.  This problem has only arisen because my learned friend, in an endeavour to stop a remitter or prevent any remitter, withdrew section 30.  She contested it strongly up till then as a separate ground on which disclosure should not be made.

What had not been appreciated by herself, by ourselves and by the court is that when that ground was removed the one established error that would form jurisdiction was removed because the Court of Appeal could not deal with that question without fact finding on the public interest considerations that go to internal documents.  The Court of Appeal only had jurisdiction on a question of law by reason of the order of this Court if it found such a question or if such an error existed.

HEYDON J:   There may be some technical force in your submission but is there not a bit of nemo debet bis vexari in the court system of this country?

MR MERKEL:   Your Honour, the problem in this case has stemmed from the Court of Appeal’s judgment on section 50(4) without inspecting the documents.  The real criticism we make of our learned friend’s grounds why there cannot be an error of law is the reasoning of Justice Morris was at each stage in two steps.  His Honour stated some general principle and then applied it to the facts.  The facts were the content of the advices.  The second so‑called error which was a paragraph 4, conflating matters in the public interest, we say is equally untenable as an error of law now that we know what the contents of the documents are.

His Honour discussed the public interest, which he was criticised for doing, starting at paragraph 26 to 27 about matters of public concern about this case - that is at page 275 at the bottom of the page, after discussing the public concern about this case in no sense by reference to the individual interest of any member of the public, let alone Mrs Osland’s interest, then set out at the bottom of page 275:

But the report, and the recommendations made in the report, demonstrate that there is a genuine community concern about the justness of existing laws . . . 

But then his Honour made the point consciously:

It does not follow automatically that this concern is relevant to the applicant’s circumstances.  However, on the basis of information currently available to the community, some members of the public might reach that conclusion.

His Honour’s discussion at 26 and 27 is a classic discussion of the public interest in the way that term is used in the cases such as Smith.  His Honour then goes to discuss the public interest factors favouring release at page 48 and he talks in general terms about public interest in information being available, and then goes to paragraph 49:

There is a particular public interest in relation to the operation of the criminal justice system.  Public confidence in the system is likely to be enhanced –

and so forth.  Then his Honour does not talk in terms of any individual interests such as that that is sought to be made out in ground 4, matters of public interest.  His Honour applied that to the circumstances of Mrs Osland’s case.  The Court of Appeal, in this aspect of its reasoning, referred to paragraph 50 about the Osland Case and his Honour said:

the Osland case is clearly a unique case:  not in the sense that it is on its own in a factual sense, but because of the publicity and concern it generated.  I have outlined the reaction to the Osland case in more detail earlier in this decision –

Which is paragraphs 26 and 27, which was the background to this discussion –

Those facts favour the revelation of the circumstances surrounding the refusal of the petition of mercy.  Many members of the public wish to know whether justice was done in the Osland case, including in the consideration of the petition of mercy.  Indeed, the fact that the Attorney-General issued a press release in relation to the Osland case is a sign that he regarded the decision as a matter that concerned the public interest.  It is rare for a press release to be issued –

Your Honours commented on the political accountability assumed by the Attorney in issuing the press release.

BELL J:   Mr Merkel, these submissions go to ground 4 of the grounds of appeal before the Court of Appeal on the first occasion?

MR MERKEL:   Yes, your Honour.

BELL J:   Are they submissions covered by the observation of the plurality at paragraph 51, appeal book 369, that:

there was an unsuccessful attempt to obtain special leave to appeal on wider grounds –

concerning the section 50(4) aspect.

MR MERKEL:   I may stand corrected on this, because I am talking now from memory, but my understanding was that the wider ground that was not proceeded with, because it was not permitted by the Court, was the ground that natural justice was denied to the appellant – and this was adverted to the reasons – because the appeal was conducted on the basis that if error of law was established, it was assumed the matter would go back to the Tribunal because when my learned friend opened at the Court of Appeal, she said that if the error is established, it would go back to the Tribunal.

We said there was natural justice denied.  That was a ground which, if I recall correctly, was refused, but it was all encapsulated under ground 3, your Honour, which is that the Court could not have meaningfully come to a conclusion about section 50(4), or even discussed it as it did.  So the Court of Appeal could not meaningfully have come to a conclusion without inspecting the documents.  So that ground, in effect, made the natural justice ground irrelevant.

FRENCH CJ:   The general thrust of these submissions that you have been making about the characterisation of the matters dealt with in these grounds is, am I correct in saying, that we no longer have errors of law, as it were, hanging around this case left over from the decision of the Court of Appeal because once one gets into the examination of the documents one sees that these are just part of some evaluative process.  Is that how you are putting it?

MR MERKEL:   Yes, your Honour.

FRENCH CJ:   But they are not - somehow the errors of law have gone.

MR MERKEL:   The errors of law are not errors at all when understood in the context of the content of the documents.  The Court of Appeal treated these errors in isolation and in an abstract sense.  His Honour’s reasoning, from paragraph 43 on, denies that anything his Honour said was said in any abstract sense.  So that when you look at the content of the documents and you look at what led his Honour to exercise the override power, it was critically the content of the documents, nothing else.

None of these factors were any more than the background setting to the key to his Honour’s reasoning which is set out at paragraph 51 when it came to the press release.  There is not a sense in the world that this override would have been attracted but for the paragraphs 51 to 53.  Everything said anterior to it was a lead up to an explanation why those paragraphs assumed such importance.

FRENCH CJ:   And to return to the question I put to you yesterday, is it on that basis that you say you have, in effect, the benefit of a discrete judgment on the merits unaffected by error of law?

MR MERKEL:   Yes, your Honour, unequivocally, and it was on that issue that this Court found that, depending on the nature and extent of the differences, the override could be attracted.  Your Honours now have before you the nature and the extent of the differences which, within the realm of what your Honours were considering, must attract an answer that makes those differences relevant to the override.  At one level it has the consequence of the line of ‑ ‑ ‑

FRENCH CJ:   You are saying, are you not, dealing as you do with question (a), that you have the benefit of that judgment from the Tribunal that such a judgment was open in the proper application of section 50(4), end of story?

MR MERKEL:   Yes, your Honour, and that my learned friend’s reliance on ground (b) on the findings of the Court of Appeal on the public interest and on historical documents, that is, her answer to (b) are simply not tenable errors of law in the context of this area of discourse.

HAYNE J:   Can the argument be articulated in this fashion, Mr Merkel?  Once the appeal to this Court was allowed and the matter remitted to the Court of Appeal, the reasoning of the Court of Appeal which led to the orders set aside by this Court was necessarily open to further consideration against the measure provided by section 148(1)?

MR MERKEL:   Yes, your Honour.

HAYNE J:   In the particular circumstances of the case, argument on remitter focused upon the singular question, could section 50(4) apply?  It did not proceed as it had at the earlier hearing by reference to considerations or questions of relevant or irrelevant considerations or wrong question, but simply, was the decision one which could have been reached?  Is that the essence of what you say?

MR MERKEL:   That is the essence of what I say, your Honour, but we cannot shy away from paragraph 10 where the Court of Appeal said could and would apply and leap straight into the balancing exercise in the circumstances I have outlined, but it had no jurisdiction to do so, absent it finding an error of law which would have been no problem at all had section 30 remained in the ring.  What our learned friend is, in effect, submitting, because she put no argument in support of the public interest and the historical so‑called errors, they were untenable in terms of authority but untenable in terms of ‑ ‑ ‑

GUMMOW J:   But they had vanished.  The first set of reasons of the Court of Appeal had gone because the order in this Court was made setting aside those orders.  The question then is, what happened when it went back?  When it went back, the argument was confined to section 50(4).

MR MERKEL:   Correct, your Honour.

GUMMOW J:   You complain about the conclusion reached at paragraph 48, amongst other things, I think, of the Court of Appeal reasons, and it is not open to the Solicitor to try and do here what she did not do back in the Court of Appeal, which is run the first Court of Appeal proceeding again in the second Court of Appeal proceeding.

MR MERKEL:   Yes, your Honour.  She had an opportunity, your Honour, today to answer question (b), but she put no argument in support of question (b).  She merely said the Court of Appeal found an error.  So what she is, in effect, trying to do – I do not criticise her for it – but what she is, in effect, contending before your Honours is that by omission the Court had jurisdiction, and it cannot be right.  It ignores this Court’s order setting aside the Court of Appeal order allowing the appeal. 

We say, with respect, that the consequence of her failure to convince your Honours of the answers to questions (a) and (b) must necessarily be that this is a matter where no error of law has been demonstrated in the Court of Appeal where it was required to be demonstrated, but no injustice could be suffered from that consequence because she has got the opportunity to now demonstrate to your Honours why there was error of law within the principles that we cited yesterday, but she has not sought to do so.  She has sought to, in effect, say that this appellant has fallen between two cracks, but they are not cracks at all.  We say that any fair reading of Justice Morris, any fair reading would show that he was not talking in any abstract sense about any principle that was unrelated to the content of these documents.

The driving force of his Honour’s reasoning was entirely based upon differences, differences which your Honours are now acquainted with, differences which led your Honour to say, depending on their materiality, they could attract the override, and my learned friend has not been able to identify an error in those passages, nor, with respect, did the Court of Appeal in the first judgment or the second judgment, draw on any error in paragraphs 51 to 53.

They are the driving force about the override; everything was a lead up to that, so we say that on no basis could – even if I am wrong on some comment made by his Honour by way of background – those background comments infect what his Honour determined critically in paragraphs 51 to 53.  Absent error being disclosed in those paragraphs, and my learned friend’s submissions do not touch them, the Court of Appeal twice has never touched them, absent error in those paragraphs we say the Court of Appeal had no jurisdiction to move to 148(7) other than to affirm the decision of the Tribunal on the material before it.

Any other finding would be an ignoring - with respect to your Honour Justice Heydon, we say this is not a technical argument; it goes to the substance of the whole matter.  We could not get the benefit of this argument if our learned friend could have answered question (b).  On the substance of the matter it is our learned friend that is seeking to get the benefit of a technicality which we say does not exist.  It does not exist because the orders made by this Court do not permit it to exist, but she is trying to say errors of law which she is relying on are errors that your Honour should accept found jurisdiction in a court when they are not tenable or even arguable errors now that we understand what his Honour’s reasoning was in the light of the documents.

GUMMOW J:   Could we just look at paragraph 44 in the Court of Appeal’s reasons.  I mentioned 48, but it is really 44.  We looked at these yesterday.  The first sentence in 44 is it not:

Having read the advices –

which they had not done before –

we are quite satisfied that there is nothing about this petition . . . which compels disclosure –

and you say that use of the phrase “which compels disclosure” is a misapprehension of the powers and role of the Tribunal?

MR MERKEL:   Yes, your Honour.

GUMMOW J:   The question is whether it was relevantly open to the Tribunal to do what it did, not whether it had to do what it did?

MR MERKEL:   Yes, your Honour.  We say they have gone straight to merits’ review without going through the subsection (1) part on any view of the ‑ ‑ ‑

GUMMOW J:   The first sentence of 44 looks like perhaps an error of law by the Court of Appeal in construing the nature of its jurisdiction.

MR MERKEL:   Yes, your Honour.  We would say further, your Honour, that what the Court of Appeal did was say that the press release meant no more than that which it said which this Court had acknowledged Justice Morris had said.  Therefore, it necessarily had to regard the differences between the advices as a relevant consideration.  It treated them as an irrelevant consideration.

FRENCH CJ:   The court’s use of that language to which Justice Gummow just took you compels disclosure of the advices in the public interest would appear to be a translation of the criterion in section 50(4) that the public interest requires that access should be granted.

MR MERKEL:   Yes, your Honour, which is the last question on the merits.  So the effect of what has happened here, and by no means a technical transgression, is this Court of Appeal has moved to merits review in respect of an administrative decision without having jurisdiction to do so.

BELL J:   The Court of Appeal clearly, if one goes back to paragraph 12 at appeal book 411, understood, in light of the absence of an appeal from that part of the decision in which it had earlier held the Tribunal’s exercise of the discretion was vitiated by error, that it was exercising the jurisdiction under 148(7).  It may be wrong about that, but it explains the approach that the court took in paragraph 44.

MR MERKEL:   Yes, your Honour.  We do not have any quibble with that, your Honour, but we say as a matter of law it was not entitled to take that approach.  We say that the problem is exacerbated by the fact that the jurisdictional step that it took was one that was never open to it in the absence of finding error in paragraphs 51 to 53 of the Tribunal’s reasons.

GUMMOW J:   There is another problem in the Court of Appeal’s approach too.  It seems to have regarded what was done in this Court as some sort of interlocutory appeal.

MR MERKEL:   Yes, your Honour.

GUMMOW J:   It was not.

MR MERKEL:   No.

GUMMOW J:   Because their earlier order was set aside.

MR MERKEL:   Yes, your Honour.

GUMMOW J:   The earlier order purported to be a final order, and it has gone.

MR MERKEL:   Yes, your Honour.

HAYNE J:   It is perhaps unfortunate that the order as taken out, as at page 406, is, I think, deficient.

GUMMOW J:   It is accurately set out at page 329 of the Commonwealth Law Reports.

HAYNE J:   And at 345 in the appeal book, but the order as recorded is, I think, deficient by omission of paragraph 2 and should be corrected, I would have thought, under the slip rule.

MR MERKEL:   Yes, your Honour.

HAYNE J:   Perhaps the parties themselves might have given some attention to that when the order was made, but there we are.

MR MERKEL:   I think, your Honour - I do not think my learned friend takes any point of it.  I noticed that ‑ ‑ ‑

HAYNE J:   I understand any point to be taken of it.

MR MERKEL:   Yes.  We will attend to that.  I understand, your Honour, when this was done – I will not go into it – I understood the orders were set up in the form they were in and came back in this form.  The view was taken the judgment meant the judgment and all of the orders, but I take your Honour’s point, and we will attend to that.  It seems clear what has happened.

KIEFEL J:   The conclusion actually expressed by the Court of Appeal would appear to be in paragraph 19.  What follows are the reasons, that:

there is nothing in the content of the advices . . . that attracts the operation ‑ ‑ ‑

MR MERKEL:   Yes.

KIEFEL J:   That suggests two things, I think.  One is that it was undertaking the task for itself.  Secondly, that even in what follows, it is not going to be addressing whether or not there was an error of law in the approach that Justice Morris took.  Perhaps in that regard paragraph 46 of the Court of Appeal’s decision at page 425 is relevant, the last sentence because Justice Morris had been concerned, as had been discussed in this Court on the earlier occasion, with the extent of the differences as potentially misleading the public.  The furthest the Court of Appeal would appear to have gone in relation to considering whether or not there was some error of law in his Honour’s approach was to say that the existence of the differences does not compel disclosure, which is not to consider his approach at all.

MR MERKEL:   Yes, your Honour, with respect that is plainly correct.  We would, with respect, add that it is an inescapable conclusion from this Court’s reasons at the last occasion that the nature and extent of the differences had the capacity to enliven – depending on them – to enliven section 50(4), but more importantly, were plainly relevant to whether that power was enlivened. 

This judgment fairly read on any view must lead to the conclusion that the nature and extent of the differences are not capable of enlivening section 50(4).  These differences were of a nature and extent of a kind that this Court could only contemplate in accordance with its reasons, would have or could have enlivened it, which is sufficient for our purposes.

KIEFEL J:   If it be correct that the task of the Court of Appeal was to consider whether there was no basis for his Honour’s decision in relation to the public interest override on the basis his Honour had outlined, the Court of Appeal would not be required to look at whether or not the differences were to be weighed in a particular way as in merits review, but the matter that emerges from the Court of Appeal’s approach is that no error was identified in the way in which his Honour did approach that question and the conclusion reached.

MR MERKEL:   Yes, your Honour.  We say, with respect, that is correct. 

KIEFEL J:   That was in part because, on the way towards considering it, the consideration, as high as it gets, has to be, I think, in paragraphs 43 to 46, their Honours determined that the press release itself was not misleading and therefore distract attention from the question his Honour addressed in relation to the ‑ ‑ ‑

MR MERKEL:   Yes, because his Honour never said it was misleading and, indeed, at paragraph 17 of this Court’s reasons it was said:

Morris J found as a fact that the press release did not distort the joint advice or create a misleading impression –

and your Honour said –

by which, having regard to the context, he evidently meant a misleading impression about the contents of the joint advice.

This Court said exactly the same thing and therefore discarded the press release entirely in its reasoning because of that factor.  That would have made your Honours’ discussion of the differences as a potentially relevant factor totally redundant and the remitter totally unnecessary and futile.

We say that that is an untenable position for the Court of Appeal to be in and it is clear that it is regarding itself – as your Honour Justice Gummow said to me, this is no more than an interlocutory opinion of this Court and it was really open to the Court of Appeal, unaffected by anything that has happened here, just to look at the whole thing afresh and, we say, unrepentant as it was, come to exactly the same conclusion as it did having not read the advices, because the advices to it, the content of them, were totally irrelevant to this issue, and in that alternative case reasoning, essentially they said the Attorney had no obligation to disclose the advices.  Well, no one could possibly submit that he did have an obligation.

The question is, did he run the risk of disclosure by assuming political accountability?  Their Honours then talked of political accountability which this Court talked of in terms of issuing the press release, therefore accountability in the context of section 50(4) to the public – and their Honours in the Court of Appeal said, your Honours could not have really meant that because he had accountability to Parliament and as a Minister.  That had nothing to do with what the press release was about.  It was a communication to the public. 

So it is self‑evident that this Court of Appeal went on a foray of its own starting the matter afresh, afresh from your Honours’ judgment and afresh from Justice Morris’ judgment.  We say that no view of administrative law entitles a Court of Appeal to treat a matter like that as a rehearing and they have treated, in substance and on any fair view of the facts, themselves as having a jurisdiction to deal with this matter as an appeal on a rehearing.

FRENCH CJ:   They are your answers to questions (a) and (b), is that right?

MR MERKEL:   Yes, your Honour.

FRENCH CJ:   What do you say about (c)?

MR MERKEL:   Your Honour, we have a number of submissions to say about (c).  First, your Honour, we outlined the background yesterday at transcript pages 24 to 25, and I will not repeat what I said there.  When section 30 was no longer pursued, it is clear that there was not an appreciation of the full consequences of that decision, having regard to section 148, and also there was not a full consciousness of the orders of this Court having set aside all of the orders of the Court of Appeal, including the order allowing the appeal.

Thirdly, we say the focus in that context was on paragraph 58 of this Court’s reasons as to the remission, which essentially related to the section 50(4) balancing task.  We say that is the background.  We say in respect of what has happened, we say ultimately costs should follow the event in the circumstances, if the appellant is successful.  We say to depart from that order, there must be some special circumstances warranting that departure.  We say that the respondent cannot absolve herself of responsibility because it was her conduct in withdrawing the section 30 point which formed the basis for this Court’s reasoning at paragraph 58 that raised again the question what was the jurisdiction in the question of law?  It was incumbent upon my learned friend and the Secretary as appellant to satisfy the Court it had jurisdiction.

It needed to do so because the appeal being allowed had been set aside.  It never did so.  A failure to answer questions (a) and (b) establishes, if they are answered adversely to my learned friend, that there was no such jurisdiction.  So it was a culpability on their part as well as a failure in the circumstances that I have identified to your Honours on the part of ourselves and on the part of the Court of Appeal, but it was the appellant that was the appellant that was seeking relief under section 148(7). 

So in the first instance it was incumbent upon the appellant to establish jurisdiction of the court and ensure that it was acting on a sound basis within jurisdiction, not on a merits review without jurisdiction.  No effort was made to do so.  It was not suggested that we had said anything that amounted to a concession or had misled our learned friends as to this issue.  It was there and it was incumbent upon them to establish.  So we say on that ground you should not depart from the usual order. 

The other point we say is that the appellant’s other grounds have not failed, so it is not a contest between us having failed on some grounds but slipped through on a jurisdictional ground.  We say that this Court, if it accepts us on (a) and (b), there is no need to go to the merits but not having determined the merits against us, should be a reason, a very powerful reason why we should not be penalised on costs.  We go even further.  We say that the circumstances found by the Tribunal and the reasoning of this Court demonstrate sufficient to show that the public interest override could and was enlivened in the usual course, that finding would be made and we would get the entirety of our costs. 

So we say absent a finding that we are misconceived on any part of our case on the merits, if that case has not yet been determined, we say it is because of error on the part of the Court of Appeal, failure by our learned friends to establish jurisdiction and therefore the usual order should apply.

FRENCH CJ:   Well, as to the balance of the appeal and what you referred to as the merits, which includes, I would imagine, the redacted material – Mr Merkel – the redacted material, which is contained in the confidential submissions which we have all read, is there anything that you would wish to add to the written submissions in relation to those matters?

MR MERKEL:   No, I think we have endeavoured to comprehensively set out those matters in sufficient detail with transcript references, your Honour.

FRENCH CJ:   And if there is anything you wish to add you should say so now.

MR MERKEL:   I will do so, your Honour, but could I just finish the two final submissions on costs?  The first was that on any view our submissions on the merits were a necessary part of the appeal and even if that is not determined we should not be penalised by having put those submissions in, because no finding has been made that makes those submissions redundant or irrelevant.  Finally, if we were to be penalised the only penalty that would be fair and appropriate is that we do not get the costs of the hearing before the Court of Appeal, as a result of our failure to have raised the jurisdictional point. 

It would be quite erroneous, we say, and unfair to have us not get the costs of the hearing before this Court, if we are successful in the outcome, both on an appeal being allowed and on an outcome which would have the order of the Tribunal stand, which is what we have sought from the outset. 

Could I hand up to your Honours – before I address your Honour the Chief Justice’s question, could I hand up to your Honours the proposed orders we would say should be made if the appeal is allowed.  I have discussed these with our learned friend and, apart from the argument on costs, which our learned friend has put; I understand there is no difference between us on these orders being made.

HAYNE J:   The consequence of vacating of the orders in paragraphs 4 and 5 would be, would it not, that all of the information filed in the court would be open to search in the ordinary fashion, is that right?

MR MERKEL:   Yes, your Honour.  Your Honour, on the substantive question of the merits, can I just give your Honour brief references.  I am conscious of the time, but matters that I would have taken your Honours to.  Your Honour, the executive summary is at 76 to 78, that is the petition and following.  What occurred is, after the meeting with the Attorney‑General in June, a further submission was put in which was ‑ ‑ ‑

HAYNE J:   What is this in aid of, Mr Merkel?  The history is set out at several points in the papers.  What is the particular point to which you want to us to get?

MR MERKEL:   Your Honour, what I wanted to get to is simply this, that the Attorney‑General on the material took charge of this process, supervised and gave personal instruction in relation to it throughout.  Every step in the process was a step which he was party to and involved in, including the disclosure of the Crown Prosecutor’s advice to the petitioner to respond to.  He also was a party to instructing in respect of the Redlich advice and was a party to instructions at later points of time.  So he was fully aware of every stage of the process when he issued his press release.

The press release, as we pointed out, only disclosed the last two steps of the process.  The second thing we wanted to say is the Court of Appeal in its concluding sentiment said, or observations, that this was an orthodox process.  Our explanation of what happened here shows that there was nothing orthodox about this process whatsoever.  It was a very unorthodox process.  No step like this had ever been taken before and ‑ ‑ ‑

KIEFEL J:   What is the relevance of this though, Mr Merkel?

MR MERKEL:   Your Honour, it goes in support of our submissions about what the Attorney‑General did not reveal or concealed in respect of the full information as to the process ‑ ‑ ‑

KIEFEL J:   The documents speak for themselves.  Is that not what we are concerned with?

FRENCH CJ:   We have read the submissions.

MR MERKEL:   Yes, your Honour.  Would your Honours just excuse me for a minute?  Can I formulate in the way we would wish this Court to see it the criticism we make of the press release because I would like to formulate it in a way that is not quite as stipulated in the written documents.  It does not depart from the substance of it.

MS TATE:   Excuse me, your Honour, I am loath to rise to my feet, but I am afraid it is unclear to me whether we have now embarked upon the appeal, because I would have to have an opportunity to respond in detail to any argument relating to whether or not the press release was misleading, lacking in frankness or incomplete.

FRENCH CJ:   Solicitor, I have invited Mr Merkel to address us on the substantive - the balance of the appeal, having regard to the fact that we have all read the submissions.  Now, as I understand it, he is endeavouring to do that at the moment.  If there is some issue you wish to raise in reply, you will of course have the opportunity to do that.

MS TATE:   I am sorry, your Honour.  I had not appreciated that you had invited Mr Merkel to address you on the appeal.

FRENCH CJ:   That was the question I put to him specifically.

MS TATE:   Yes.  Thank you, your Honour.

MR MERKEL:   I will be very brief, your Honours.

FRENCH CJ:   Yes.

MR MERKEL:   What we wanted to say in respect of the press release when we put it was misleading, lacking in candour or materially incomplete or inaccurate as to giving details of the following matters – and these are the matters we rely upon (a) the fullest information as to the process followed by the Attorney‑General, (b) as to the process followed by the Attorney‑General, (c) as to the legal advice received by the Attorney‑General, (d) as to the merits of the petition, (e) as to the choices available to the Attorney‑General in relation to the petition during the course of those processes, and (f) as to the process that had been followed in that it was not due process, as we have pointed out in our submissions, but was undue process and that was in order to deflect criticism.

Could we hand up one case that we would wish your Honours to have before you which we had not referred to.  I will not read the passages.  It is CCP Australian Airships v Primus Telecommunications (2005) Australian Sales and Fair Trading Law Reporter.  It is a decision of the Court of Appeal, but Justice Nettle at paragraphs 24 and 34 discusses how a document such as a press release is to be viewed in the context of its impression on the public, which is totally inconsistent with the way the Court of Appeal gave a literal translation to it.  I think I have said all the other matters I would wish to say on the merits, other than rely on our written submissions, your Honour.

FRENCH CJ:   Yes, thank you, Mr Merkel.  Yes, Solicitor.

MS TATE:   Your Honour, the fundamental contention of the appellant is that the press release is misleading, lacking in candour or incomplete.  It is our argument that the appellant has misconstrued this Court’s reasons and, in particular, this Court’s understanding of the purpose of the press release both as to the due process that it was said to convey and also as to the statement that the Attorney‑General was seeking to give the fullest information as to the process that had occurred.  Might I take your Honours to your Honours’ reasons in the appeal book on which the appellant relies.  The appellant relies most particularly on paragraph 48 of your Honours’ reasons where your Honours say, in the judgment of the plurality:

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.

GUMMOW J:   This is under the heading “Waiver of privilege” which began at paragraph 44.

MS TATE:   Yes, your Honour.  This is one of the first points that we make, your Honour, is that this paragraph, which was concerned with identifying the purpose of the press release, is a paragraph which occurs in your Honours’ reasons in the context of discussing waiver.  Clearly, to determine whether or not there had been a waiver of legal professional privilege, there is a need to determine the purpose of the disclosure and its context and the general circumstances, and it was in that context that your Honours made both the statement in relation to the conveying of an impression that due process had been followed, but also the statement that the Attorney‑General was seeking to give the fullest information as to the process.

Your Honours,  the appellant having relied upon that passage in paragraph 48 then seeks to give what are, in effect, particulars of breach, both as to due process and as to the fullest information that can be given.  These particulars are to be found in the confidential submissions of the appellant at paragraphs 50 and 51.

GUMMOW J:   You have to look at paragraph 57, Solicitor.

MS TATE:   Yes, your Honour, we accept in paragraph ‑ ‑ ‑

GUMMOW J:   Which is under the heading “Section 50(4)”.

MS TATE:   Yes, your Honour.  Our submission is not that your Honour has resiled from the identification of the purpose of the press release.  Clearly, in paragraph 57 there is a reference back to it having been made, at about point 8 of the page, for an obvious and legitimate purpose.

We simply make the point there that the starting point for the appellant is a passage in relation to the purpose of the press release that occurs within the context of discussing waiver.  We do not say that your Honours resile from that but that is its context.  In paragraphs 50 and 51 of the appellant’s submissions, the confidential submissions, and I will not recite any of the questions that are set out in those paragraphs but there are a set of questions and I would invite your Honours’ attention particularly to the questions that are put at the bottom of page 17 and that continue on to page 18 and paragraph 51 is concerned with one particular breach that is alleged.

Your Honours, we submit that the appellant’s argument can, in effect, be reduced to this.  They say that the press release impliedly represented that the Attorney‑General had assumed and discharged an obligation to the appellant that is tantamount to according procedural fairness at common law.  They then say the Attorney‑General had not complied with the duty of procedural fairness to the applicant, see the particulars in paragraphs 50 and 51.  The conclusion they draw from that is therefore that the press release was misleading, lacking in candour or incomplete.

We argue that the flaw lies in misconstruing this Court’s reasons.  In particular, it lies in misconstruing the Court’s statement that the purpose of the press release was to satisfy the public that due process had been followed, a misconstrue of that statement as a statement that meant that the purpose of the press release was to convey that procedural fairness, as understood at common law, had been observed. 

We say that the appellant’s understanding of this Court’s reference to due process cannot be correct.  Neither the terms of the press release, nor what was said by this Court can bear the logical nor legal weight of representing that the Attorney‑General had both assumed and discharged a common law obligation of procedural fairness to the appellant that otherwise had no foundation at law.

Now, your Honours set out at paragraph 48 what your Honours take to be the evident purpose of the press release.  We say that in that context what your Honours were seeking to do was to distinguish the purpose that a press release might have that could have carried a real risk of a waiver of legal professional privilege.  Thus it was clearly to distinguish a statement made in this context from a statement that may be made in the context where a party was seeking to gain a forensic advantage in litigation, or indeed, to obtain a commercial advantage of one sort, the sort of thing that one can see in Commissioner of Taxation v Rio Tinto Limited (2006) 151 FCR 341.

We submit that what the plurality must have been taken to mean by due process is to be found in the very examples that it gave in paragraph 48, that is, that the petition had not been decided on political considerations but it was based on advice from eminent lawyers external to the department and that the advice covered all the grounds of the petition, that is, nothing had been left out, and that the advice had been carefully considered.  In other words, due process in this context reflected essentially that the process was one of a responsible procuring of independent non‑political advice directed to all the grounds relied by the petitioner and receiving appropriate consideration.

On this construction the press release was not misleading because this is precisely the form of due process that had occurred.  So it is our submission that it is a misconstruction of the words “due process” to read them as tantamount to compliance with procedural fairness as understood at administrative law.  We submit that that places a strain on the language of paragraph 48 considered in context and it is artificial, far‑fetched and untenable.  We submit that this is also apparent from the immediately preceding passage of the plurality’s reasons in paragraph 47. 

There your Honours were considering the question of whether judicial review might be available in Australia and your Honours say at paragraph 47, page 368 at about point 4 of the page when you are discussing the question of whether there was any obligation on the Attorney to give reasons and you have recognised that there is a practice that reasons not be given, your Honours say:

The practice is not to give reasons for such a decision.  Whether or not, in the circumstances of a particular case, or more generally, that practice is open to challenge is beside the present point.  The practice formed part of the context ‑ ‑ ‑

GUMMOW J:   That was because we had been taken to some Privy Council cases, you may remember.

MS TATE:   Yes, your Honour.  Your Honours make the point there that:

these present proceedings are not appropriately constituted to vindicate such a right –

even if there was such a right to be acknowledged perhaps in some other case in Australia.  Your Honours point out that:

They are proceedings for review, and consequent appeal, in respect of a decision under the Act –

That is, a decision by a public officer under the Freedom of Information Act.  Your Honours, it is our submission that your Honours having just disposed of what might have been, as it were, potentially judicial review questions by saying that there is not such a right to judicial review in Australia and if that was ever to be challenged, this is not the case that would be an appropriate vehicle to challenge it.  Our submission is that your Honours having disposed of that argument, it would be curious for your Honours in the next passage to reintroduce what would be tantamount to judicial review obligations or obligations at administrative law covertly by means of a reference to “due process”.

Our submission is that your Honours’ reasons must be read in that context.  A further reason to adopt our construction of paragraph 48 is because the plurality’s characterisation of the evident purpose of the press release reflects, in many respects, the characterisation of the evident purpose of the press release adopted by the Court of Appeal in the 2007 judgment.  The relevant extract is at page 362, paragraph 35, where your Honours set out what the Court of Appeal took the purpose to be.  There, at page 362, at about line 10 - and this is quoting from the Court of Appeal, the Court of Appeal said:

The evident purpose of the Attorney‑General’s disclosure was to inform the public that the recommendation he had made to the Governor – that the petition for mercy be denied – was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected.  The Attorney‑General evidently wished it to be known that, in considering whether or not the prerogative of mercy should be exercised, he had taken independent advice and was making a recommendation which accorded with that advice.  In the language of Carnell, this was a disclosure ‘for the purpose of explaining or justifying’ the Attorney‑General’s actions.  The purpose was similar to that of the disclosure in Carnell itself, where the Chief Minister wished to satisfy the relevant member of Parliament that the ACT Government ‘had acted responsibly and in accordance with legal advice’.

In our submission, the closeness of language between your Honours’ identification of the evident purpose at paragraph 48 and the evident purpose as articulated by the Court of Appeal, as extracted on page 362, indicates that what was meant by “due process”, was simply, in effect, that process that had been followed; the process of obtaining non‑political independent advice, external of government and proceeding to carefully consider the advice once it had been obtained.

We further say that the similarity in the manner in which both courts characterised that press release should also be considered in relation to the way in which the Court of Appeal disposed of the misleading argument when the proceeding returned to it on the remitter.  This relevant passage is to be found at appeal book 417 where, at paragraphs 29 to 31, they first of all again identify the evident purpose, again by contrasts to some of the other waiver cases.  Then at 31, they say:

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 that the decision had been based on, and accorded with, independent legal advice from eminent counsel.

Our submission is, your Honour, that the Court of Appeal rejected the argument of the appellant that the press release was misleading on the basis of saying that the press release did not represent that the joint advice was the only advice.  It did not represent that there was no other advice obtained.  It was not intended to enable the public to make a merits assessment of decision to deny the petition.  It was not a statement of reasons and it was intended to convey simply that the decision was based on and accorded with independent legal advice from eminent counsel.

We say that has to be read in the context also of the evident purpose that had been identified earlier, namely, that this was the Attorney‑General representing that he had acted responsibly and was seeking to explain and justify his actions just as the Chief Minister of the ACT did in the Mann v Carnell decision.  We say that is all that could be meant by the expression “due process” in your Honours’ reasons at paragraph 48 and that it is simply untenable to construe from your Honour’s reasons that the representation was a representation that common law obligations of procedural fairness had been voluntarily assumed, there being no obligation at law to assume them, and discharged.  It is only if the appellant can make out that his or her construction of the words “due process” that the submissions based on the misleading nature of the press release can be generated.

If I could turn then to the strand of the appellant’s argument in relation to the statement that the Attorney‑General was seeking to give the fullest information as to the process, and this is also contained in paragraph 48.  It is our submission that the appellant reads this to suggest that the Attorney‑General impliedly represented in the press release that he was providing a complete statement of each stage in the process of decision‑making.  It is then argued that because the press release failed to mention the earlier advices, most particularly the Redlich advice, it was lacking in candour or incomplete such that the override should be exercised.  Again, the particulars of breach are in those paragraphs 50 and 51.  We make a number of responses to the appellant’s argument.  First, we submit that the statement that:

The Attorney‑General was seeking to give the fullest information as to the process –

in paragraph 48 must be read as qualified by the following sentence which is at paragraph 48 at about halfway down the paragraph where your Honours say –

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 –

Your Honours then go on to say –

while at the same time following the long‑standing practice of not giving the reasons for the decision.

So our first submission is that the appellant’s construction of the statement about fullest information cannot be right when one considers that your Honour’s statement is qualified by a distinction between the statement that was made and the type of statement that might constitute reasons.  Clearly something less was intended than a statement of reasons, something less, that is, than a complete statement of all the steps in the process. 

Secondly, we submit that the plurality judgment itself identifies in paragraph 48 what is meant by the process that had been followed and as to which the fullest information was given, namely, that after “consultation with the State Opposition” – clearly a significant part of the process – “three eminent lawyers . . . were appointed” to advise.  The lawyers:

were external to the Department.  Their advice covered all the grounds upon which the petition was based.

They made a recommendation which was considered and a decision was ultimately taken.  It is our submission that when your Honours stated that the Attorney‑General was seeking to give the fullest information as to the process it was that particular process that your Honours intended to refer to and, of course, the press release was entirely accurate in relation to a statement about that process.

Thirdly, we argued that the passage in paragraph 48 must be read against the caveat that the Attorney‑General must be taken to have understood that to maintain legal professional privilege any public statement would need to be constrained.  The statement of the plurality that there was the fullest information that was to be given cannot be read, as the appellants seek to do, by saying that the Attorney‑General was unfettered in the disclosure that he could make and nor could the reasons of this Court be properly interpreted in that way ‑ ‑ ‑

FRENCH CJ:   You simply contend that the Attorney-General said everything he had to say in order to justify his decision.

MS TATE:   And explain his decision.

FRENCH CJ:   That is what it boils down to, does it not?

MS TATE:   Yes, your Honour, precisely.  Your Honour, the very subject matter of the previous proceeding had been a challenge to the protection of the privilege of the joint advice simply on the basis of a very brief statement which summarised the conclusion of the advice.  So this Court was intensely alert to the fact that any statement could lead to a challenge that legal professional privilege had been waived.  Read against that context, it is our submission that the reasons in paragraph 48 cannot be read as suggesting that by the press release the Attorney-General was seeking to give an unconstrained statement as to every step that had taken place in the process.

Fourthly, your Honours, it is our submission that the court’s rejection of the proposition that the Attorney-General had waived legal professional privilege in the joint advice was in part based upon a conclusion that he had not sought voluntarily to lay open each part of the process to public scrutiny.  This was one of the very examples of waiver that had been referred to by Justice Maxwell.  There is an extract of his Honour’s reasons at page 362 in paragraph 35 in the last lines where his Honour is setting out the various cases where waiver has been inferred.  He says there that:

This was not a case of a party to litigation ‘deploying’ a partial disclosure for forensic advantage . . . Nor was it ‘the laying open of the confidential communication to necessary scrutiny’.

Now, had your Honours considered, and had their Honours in the Court of Appeal considered, that that was what the Attorney‑General was intending to do by the press release, they may well have found that that disclosure was sufficient to have waived legal professional privilege.  It is our submission that for the High Court to have found that there was no waiver must implicitly entail that your Honours found that the

Attorney‑General did not intend to lay open each part of the process to public scrutiny.  If that is the case, then the statement that by the press release:

The Attorney‑General was seeking to give the fullest information as to the process –

must be qualified by an understanding that what he was not intending to do was to lay open each part of the process to public scrutiny, because had he intended to do that he would have been at real risk of waiving privilege.  So it is our submission that the appellant’s argument is inconsistent with your Honours’ findings in relation to waiver.  Your Honours, they are the submissions for the respondent with respect to the misleading argument in the appeal.

FRENCH CJ:   Thank you.

MS TATE:   Thank you, your Honour.

FRENCH CJ:   Mr Merkel, do you have anything in reply?

MR MERKEL:   Just two very short matters, your Honours.  Can I just point out that the reference to due process appears at paragraph 50 of our principal submissions and we do not put it in terms of a legal obligation, we put it in terms of a fair obligation beyond question, and in the context of your Honours’ conclusion at paragraph 48, in order to deflect criticism of the Attorney’s decision.

Can I also point out to your Honours that the passage at page 418 of the appeal book, paragraph 48 is cited by the Court of Appeal in the context of section 50(4).  That is at paragraph 30.  Our learned friend sought to treat that passage as relevant only to the waiver.  We say it was correctly treated by the Court of Appeal as relevant to the public interest override question.  The only quarrel we would have is that we would suggest that paragraph 44 was not a similar view, but a substantially different view than that expressed and acted upon by the Court of Appeal in its earlier decision.  We have no other submissions to put to your Honours, if your Honours please.

FRENCH CJ:   Thank you, Mr Merkel.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 4.06 PM THE MATTER WAS ADJOURNED