Osland v Secretary to the Department of Justice
[2010] HCATrans 91
[2010] HCATrans 091
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 WEDNESDAY, 14 APRIL 2010, AT 10.23 AM
Copyright in the High Court of Australia
MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MR J.B.R. BEACH, QC and MR R.H.M. ATTIWILL, for the appellant. (instructed by Hunt & Hunt)
MS P.M. TATE, SC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with my learned friends, MS S.B. McNICOL and MR C.P. YOUNG, for the respondent. (instructed by FOI Solutions)
MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR D.F. O’LEARY for the Attorney‑General of the Commonwealth, intervening under section 78A of the Judiciary Act. (instructed by Australian Government Solicitor Canberra)
FRENCH CJ: Solicitor for the State of Victoria, we have had the opportunity of reading your written submissions in support of the respondent’s summons. Is there anything you wish to add to those?
MS TATE: Yes, we do wish to add something further, your Honour. There is a summons that was dated 9 March. It is a summons for part of the hearing of this appeal to be heard in closed court. The appellant does not oppose the application. Might we address you first on the source of the Court’s power to direct that an appeal be heard in closed court?
FRENCH CJ: I wonder whether first we could just hear you on the merits of the application.
MS TATE: Yes, your Honour, most certainly. If I could turn then to the merits of the application. Your Honour, the appellant’s principal contention is that the press release issued by the Attorney‑General is misleading, lacking in candour, or incomplete. This is argued not just on the basis of the express words of the press release, but on what is said to be impliedly conveyed by it. In particular, it is argued that the press release lacked candour because it implied that the only advice obtained by the Attorney‑General was the joint advice and it failed to mention in particular the advice that had been obtained from Robert Redlich, QC.
To meet that argument, it is necessary for the respondent to refer to the contents of both the Redlich advice, as it is known, and the joint advice, and the contents of the earlier advices to support the proposition that in that context it was unnecessary for the Attorney‑General to make any reference to the Redlich advice, or to the earlier advices, and that the press release was not misleading by omitting any such reference.
We submit that the process to be undertaken by this Court in assessing the appellant’s argument is a process of comparison. On one side of the comparison is something that is in the public domain, namely the press release. It is alleged to be misleading. We need to be able to refer to the other side of the comparison to demonstrate that it was not misleading. That other side of the comparison is both confidential and legally professionally privileged. We also need to refer to comparisons within the confidential material to establish the proper background and context for the terms of the press release.
Unless this Court is closed, in part, we cannot refer to the other side of the comparison without destroying the confidentiality and privilege attached to the documents, but that would be to destroy the very subject matter of the proceeding. There would be no point in defending the appeal if the contents of the advices were to be revealed in open court.
It might be asked against us as to why it is, when we have filed extensive confidential submissions, we still need to have the Court closed in order to make oral submissions to your Honours. We would say that it still remains necessary for two reasons. Firstly, the purpose of convening the Court and conducting a hearing as opposed to determining matters only on the papers is so that the Court can interrogate counsel as to their submissions and counsel can at least attempt to provide an answer to meet your Honours’ concerns. At this point no such opportunity has been given to your Honours for that exchange.
But the additional reason goes directly to a question of procedural fairness for the parties. Unless counsel know what it is in their submissions that the Court is troubled by, or unpersuaded by, then we are not in a position to try and meet those concerns or to seek to persuade. At this stage we have no means of knowing whether your Honours judged the written submissions as either wholly inadequate, or totally persuasive, or as somewhere in between, and unless your Honours have an opportunity to test those submissions with counsel, and unless counsel have an opportunity to meet your Honours’ concerns and to attempt to persuade you, then there is a potential breach of procedural fairness in the case.
If the Court is not closed, your Honour, we would say that it ought to be made expressly clear that the contents of the documents are not to be revealed in open Court. On each occasion on which this matter has been contested in any court, there has been a certain slippage of the confidentiality that attaches to the advices and we would urge the Court to be vigilant that that does not occur here in this instance. Having made those submissions, your Honour, would it be of any use if I refer your Honours to ‑ ‑ ‑
FRENCH CJ: Just bear with me for a moment, Solicitor.
MS TATE: Yes, your Honour.
FRENCH CJ: Thank you, Solicitor, and the Court would not be assisted by any further submissions. We will not need to hear from the appellant or from the intervener.
MS TATE: Thank you, your Honour.
FRENCH CJ: The respondent applies for orders that part of the hearing of this appeal be conducted in camera. The respondent submits that it is necessary to prevent disclosure of the content of documents which the respondent asserts are protected by legal professional privilege and are exempt documents under the Freedom of Information Act 1982 (Vic).
The litigation between the parties which yields the present appeal arises out of the appellant’s application for access to documents related to her (unsuccessful) request that she be granted an executive pardon. In earlier proceedings in this Court, the Court held that there had been no waiver of legal professional privilege in respect of the communications constituted by the documents which are now in issue. A majority of the Court held, however, that the Court of Appeal of the Supreme Court of Victoria should have examined the documents for itself before deciding whether an aspect of the public interest could have required the disclosure of all or any of them pursuant to section 50(4) of the Act. The Court remitted the matter to the Court of Appeal for further hearing in accordance with the reasons of this Court.
The present appeal is against the orders made by the Court of Appeal on that remitter. Necessarily, the determination of the appeal will require consideration and examination of the documents whose disclosure is in issue. The respondent submits, in effect, that unless that part of the hearing of the present appeal in which either party makes submissions that reveal the contents of the documents that are in issue is conducted in camera the respondent’s claim to keep the documents from disclosure would, at least, be eroded and the very subject matter of the appeal be damaged, if not destroyed.
No sufficient reason is shown for the Court to take the highly unusual step of conducting any part of the hearing of this appeal in camera. More particularly, it is not demonstrated that argument of the appeal cannot proceed by counsel for the parties stating their arguments in a way which does not reveal the content of any of the disputed documents. The members of the Court have read written submissions prepared by counsel, which include references to the contents of the documents in question. Those references are not contained in the written submissions on the public record.
Oral argument can, and will, proceed by counsel formulating propositions which it is sought to advance in a form which does not reveal the content of the disputed documents. Those propositions can be coupled, to the extent necessary, with reference to those passages of the disputed documents (by identification of no more than the relevant page and line number of the confidential appeal book) which, it is said, either illustrate or make good the proposition that is advanced. Revelation of the content of the documents can thus be avoided without either party being prevented from making the arguments which it is sought to advance.
The orders sought in the summons are refused.
MS TATE: Thank you, your Honour.
FRENCH CJ: Yes, Mr Merkel.
MR MERKEL: If the Court pleases, can I go to the first aspect of our submissions which relates to the role of the Court of Appeal on the remitter. Our learned friends had raised the question of whether our appeal involves a House v The King question of discretion and that caused us to go back to the beginning of precisely what the Court of Appeal was doing on the remitter which, in fairness to all the parties and the Court of Appeal, was not really a matter that was given the consideration that, with hindsight, it ought to have been given, although I do not think any untoward result follows.
Can I take your Honours initially to the orders made in this matter starting with the VCAT order, which is at appeal book 285 behind tab 10. The VCAT order, which was made under section 50(4), was based upon an opinion by the Tribunal as to a matter that involved a balance of the public interest against the interest that gave the exempt documents their status. The opinion was that access be given to the exempt documents.
The next order was that of the Court of Appeal on what I may refer to as Osland (No 1) in the civil litigation and that is at tab 16 at page 341. The two orders there were that the appeal be allowed and paragraph 1 of the orders of VCAT, which gave access to the documents, be set aside and that the decision of the respondent refusing access be affirmed. I should say that leave to appeal was granted in this matter, so that hurdle was passed on 14 October 2005 and need not be revisited.
In this Court, at appeal book 407 at tab 19, both of the orders made in Osland (No 1) by the Court of Appeal were set aside – in this Court, paragraph 1, the appeal be allowed, the matter be remitted for hearing and the appellant’s costs of the appeal be paid. When the matter went back to the Court of Appeal, the position taken on behalf of the appellant was that there was an outstanding issue about section 30. Your Honours may recall that one of the errors found by the Court of Appeal in Osland (No 1) was that VCAT had not decided the section 30 point but said it was secondary to the section 32 legal professional privilege point and that was an error of law which stood independently of the actual documents.
We applied for the matter to be remitted to the Tribunal for the section 30 point to be considered as part of the overall remitter. At that point our learned friends indicated that they no longer wished to pursue the section 30 point, so that section 30 point was removed from the remitter and removed from the matter before the Court of Appeal. What then occurred on the remitter was that the Court of Appeal then read all the advices and ‑ ‑ ‑
FRENCH CJ: I am sorry to interrupt you for a moment, Mr Merkel. It just occurred to me that the Commonwealth Solicitor‑General should be given leave to depart, unless he is interested in being an innocent bystander.
MR MERKEL: Yes, your Honour.
MR GAGELER: May it please, your Honour.
FRENCH CJ: Thank you. Please go on, Mr Merkel.
MR MERKEL: I took your Honours to page 406, but at page 345 I should have taken your Honours to order No 2, which set aside all the orders of the Court of Appeal of the Supreme Court. That is at page 345. Both orders were set aside by the order of this Court. When the matter went back to the Court of Appeal the matter started afresh with my learned friends as the appellant and under section 148 the appeal was on a question of law, the section 30 point having been removed from the ring in our learned friends’ opposition to the remitter and that point having been dropped.
The question before the Court of Appeal was, was there an error of law in the reasons of the Tribunal on the basis of the material now before the Court of Appeal which had not previously been before the Court of Appeal, namely the content of the advices? The Court of Appeal, we say, started afresh in considering that question.
Can I take your Honours to how the Court of Appeal dealt with the matter. At page 410 of the appeal book, which is the Court of Appeal’s reasons, at tab 22, at paragraph 10, starting with the last two lines, their Honours said:
This Court disagreed with Morris J, holding that the ‘public interest override’ in s 50(4) of the Act was not capable of applying in these circumstances. The High Court held that this Court ought to have inspected the exempt documents before deciding whether s 50(4) could or would apply. The matter was remitted to this Court for a reconsideration of that question.
We say the Court properly stated whether it could apply as a question of law. In other words the question before it was whether it was open to the Tribunal to find that any public interest considerations that were in existence which could attract the override, then ‑ ‑ ‑
GUMMOW J: What was the section that founded the jurisdiction of the Supreme Court?
MR MERKEL: That is section 148 of the VCAT Act.
HAYNE J: More particularly section 148(1)(a), is it not?
MR MERKEL: Yes, your Honour, section 148(1)(a). If there is error identified then we go to section 148(7), which gives a range of remedies that are open to the Court of Appeal. But the remedies, other than affirming the decision, would only arise in the event that error is demonstrated.
HAYNE J: The relevant error asserted was that Justice Morris had acted on a wrong principle, was it not?
MR MERKEL: There were two kinds of errors that were asserted before the Court of Appeal – that the Court of Appeal found. The category of error which was section 30 – the section 30 error - but there were other errors about which their Honours said that certain of the matters were decided by his Honour at some level of abstraction. That was an error that had the Court of Appeal looking at his Honour’s judgment in the absence of the advices which his Honour was constrained to deal with in a way that was wholly unsatisfactory.
When the content of the written advices returned to the Court of Appeal the so‑called level of abstraction with which his Honour considered this matter could be understood for the first time not as a level of abstraction at all. His Honour was merely engaging in a balancing of public interest considerations as against the considerations that gave rise to the privilege status of the documents.
In that balance, his Honour referred to matters, all of which were relevant, that read as a whole in the context of the documents, none of which disclosed any error at all. But the important point we want to make is that when it went back to the Court of Appeal both orders had been set aside in the orders of this Court, the consequence of which is the appeal had to be heard afresh on the basis of the material then before the Court, which included all the advices.
One of the problems with this case which was picked up acutely between the difference in the plurality judgment and that of Justice Kirby, and that of your Honour Justice Hayne, is that his Honour used words that were totally inapposite to describe what he was really intending to do. He used words of possible differences to avoid disclosing what we now know the Court of Appeal has determined were material differences. Your Honour Justice Hayne said that there was no finding of actual differences.
HAYNE J: Yes, well my view was a dissenting view. There is not much point in ploughing that ground again, Mr Merkel, at all.
MR MERKEL: No, your Honour, the point I am wanting to make is that the problem with his Honour’s reasons was that they were expressed in a way that was so constrained they did not really make sense and cannot stand analysis in the absence of the documents. The documents then went back to the Court of Appeal and were considered for the first time and his reasons in that context do not withstand the criticism that they were at a level of abstraction. They were all an accumulating list of factors which his Honour took into account, we say, quite properly, in our submission, to consider whether or not the override was attracted.
FRENCH CJ: The Court of Appeal had identified error of law arising out of the application of general considerations of public interest. The term “level of abstraction” has been used, but considerations of a kind of universal application, and what they then did was to go straight to a substituted exercise in terms of a disposition of the appeal, and it was at that point that they erred because, as this Court held, they assumed it was not legally possible that there might be a public interest override arising out of the material differences to which reference had been made, and so the matter was remitted to them to look at that question.
Now, I suppose the question is then what are they doing when they are looking at that question? Are they still exercising a section 148 function, looking to see whether there has been some error of law in the approach taken to that issue by the Tribunal, and if not, is it simply a matter that falls within the Tribunal’s evaluative function, and not a question involving a matter of law?
MR MERKEL: Yes. Your Honour, what we say is, because the orders were set aside by the orders of this Court, the appeal was heard again and it had to found itself on error of law based upon the Tribunal’s reasons. One error was the failure to deal with section 30, which was not appealed and was not in dispute. That was not dependent upon, or related to, the content of the written advices in any way; it was a stand‑alone point.
When our learned friend no longer pursued that point to avoid a remitter and have the matter dealt with by the Court of Appeal as a matter of substance, their jurisdiction – the original order allowing the appeal having been set aside, and all the orders being set aside, they were there starting instanter, but there is no unfairness or injustice in that, because if there was a level of error, then it was still demonstrable after looking at the content of the advices.
KIEFEL J: What was the asserted error of law then that the Court of Appeal was left with after the others were not proceeded with?
MR MERKEL: The asserted error of law, we say, and the only one that could be demonstrated, is whether it was open to VCAT to determine that the public interest override could be attracted in this case. We say that that was a question of law.
FRENCH CJ: That was the further hearing contemplated by the order of this Court made on 7 August 2008 that the matter was remitted to the Court of Appeal to undertake.
MR MERKEL: Yes. What we say it was not within the purview of the Court of Appeal to do, and this is the narrow point that we are seeking to raise, is it was not open to it to find an error on the balancing process. The hurdle that had to be jumped for error of law – and I will cite some authority on this – was that there was nothing in the material or the content of the advices that had the capacity to attract the public interest override. In other words, it could not be attracted. It stated it in paragraph 10 in that way. It was only if there was that error that it would then get to the subsection (7) discretions about what it would do about it. Would it make its own balance and come up with its own conclusion and ask whether the override was attracted?
KIEFEL J: Are you putting this as a “no evidence” point, that is, whether or not there was, in the material it had not previously referred to, sufficient to support the findings of ‑ ‑ ‑
MR MERKEL: It comes down, your Honour - back to the press release, but we say it is important to look at what the Court of Appeal was doing. At the bottom line is this. If the press release did not convey any of the impressions for which we contend, then the public accountability of the Attorney was discharged by referring as he did to the joint advice. But if it carries any of the meanings for which we contend, or the impressions for which we contend, then it was open at that point to the Tribunal to say the public interest – because the press release was misleading down to materially incomplete – was capable of attracting the override by reason of the nature and extent of the differences in the advices.
KIEFEL J: But you cannot put aside – although there were difficulties with the approach of Judge Morris, you cannot put aside entirely the conclusions that were reached when you focus upon what the Court of Appeal’s function was, can you not?
MR MERKEL: No, your Honour, we do not put that to one side at all, but what we say is that the only error, the legal error that needed to be found by the Court of Appeal was that there were no public interest considerations that could attract the override. It framed it in those terms in paragraph 10.
KIEFEL J: Is that because you see that Judge Morris’ decision does not have a clear conclusion as to why the public interest justified the application of section 50(4)?
MR MERKEL: Yes, your Honour, because bearing in mind what, in fact, occurred, we had no access to the documents before his Honour and had no capacity to address argument, based on content. His Honour was careful to preserve the confidentiality of the documents ‑ ‑ ‑
KIEFEL J: Correct.
MR MERKEL: ‑ ‑ ‑and therefore stated reasons in half‑blown terms, in fairness to his Honour. That probably should never have happened because the effect ‑ ‑ ‑
KIEFEL J: But that is yesterday’s news, as they say.
MR MERKEL: That is yesterday’s problem, but what we say is ‑ ‑ ‑
KIEFEL J: But what do you say you can still maintain out of his Honour’s conclusions, for instance, as to the public interest override being attracted for the potential to mislead, whatever? How do you say you can state his Honour’s decision so that the Court of Appeal’s role can be more clearly ascertained?
MR MERKEL: What we say has evolved in this matter is the significance of the press release which his Honour pointed out was a particularly significant aspect of this matter, was accentuated by this Court’s reasoning on the political accountability attracted by the issue of the release to the Attorney. We say that accountability had the consequence that if the release was misleading down to materially incomplete, the nature of the differences and extent of differences in the advices therefore became public interest factors in favour of disclosure. That is the only logical analysis of what this Court did on the last occasion.
What we then say is that once the content of the documents are understood, his Honour’s reasoning can be looked at in the light of the material that was before him, there is no longer any level of abstraction of the kind criticised by the Court of Appeal.
HAYNE J: Well, would you accept that the question for the Court of Appeal can be expressed as being whether the reasoning in paragraphs 51 to 53 of Justice Morris’ reasons at 282 to 283, read in the light of the content of the documents in issue, revealed error of law?
MR MERKEL: What were the paragraphs, your Honour?
HAYNE J: Paragraphs 51 to 53.
MR MERKEL: I think we would say, your Honour, we would start at 39 through.
HAYNE J: No doubt you would want to read the whole in context, I understand that, Mr Merkel, but let us not barney about the particular points. The real question for the Court of Appeal was, was error of law shown, was it not?
MR MERKEL: Yes, in relation to his approach to the press release and that requires the answer to the question, could any of those factors attract the override, not would they attract the override. That is the only point we seek to make on the question before the Court of Appeal. What we would wish to say – and I will just indicate I will not take your Honours to it – but this Court did consider this very section in Roy Morgan v State Revenue (2001) 207 CLR 73 at 79 to 80 where it was observed that the essential character of the section is it provides for proceeding with a legal correctness of the decision can be put in issue.
We also want to make the additional point that in determining that question, it is important that section 50(4) involve the formation of an opinion on a question involving mixed questions of fact and law and questions of degree. In paragraph 29 of our submissions we have endeavoured to state what we say is the public interest balance which is engaged in under the subsection. In the first sentence we say the subsection is enlivened when the public interest considerations in favour of disclosure outweigh or override the considerations by reference to which the status of an exempt document has been acquired.
The parties have conducted the matter on the basis that that is the test that flows from the two decisions cited, Smith and Hulls. Can I give your Honours the reference in the appeal book where the Court of Appeal in Osland (No 2) essentially stated the same test at paragraphs 20 and 21 at appeal books 414 and 415. Can I just take your Honours briefly to two cases, if we could hand them up. It is Wu Shan Liang on the role of a reviewing court on a question of opinion and also the Attorney‑General for the State of New South Wales v X, a recent decision in the Court of Appeal in New South Wales where consideration was given to this balancing exercise where an appeal in respect of a balancing exercise is limited to a question of law.
The first case is Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and the relevant passages appear at page 275 to 276, with which your Honours are familiar. That relates to the reviewability of the decision based, in that case, on the state of satisfaction, and there was a reference in the judgment to Justice Gibbs in Buck v Bavone at the bottom of pages 275 to 276 about the grounds upon which such a decision can be challenged and going down about seven lines:
Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.
But it is this passage I rely on:
However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such case the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”
That is the opinion that subsection (4) provides for, but there is a further hurdle in respect of the nature of the opinion, which is essentially a balancing exercise of the public interest in favour of disclosure against the considerations, which inherently involve public interest considerations, that gave rise to the exemption, and that very question, an appeal in respect of that kind of balancing exercise under a statutory provision limited to appeal on a question of law was considered by Chief Justice Spigelman in Attorney‑General for New South Wales v X (2000) 49 NSWLR 653.
That involved an appeal from an acquittal which was limited to an appeal on a question of law and the question really was whether the balancing exercise under the Bread Manufacturers Case, the public interest in favour of disclosure as it weighed against the public interest in favour of a fair trial, should be weighed in favour of a contempt or freedom of communication. The person in question was acquitted, but the question came on appeal, and the issue with which we are concerned in this case was the balancing exercise.
His Honour discusses that question at pages 660 through to 667, but could I take your Honour to page 665. His Honour at 664 raises the question “Is balancing a question of law?” and his Honour refers at page 665 to Justice Brennan in Hinch where his Honour said at line 53:
“A decision founded on the balancing of competing public interests cannot be judicially reviewed if the Commission has not made an error of law in determining the nature of relevant competing interests and if the decision is not unreasonable in the Wednesbury sense . . .
In a subsequent joint judgment of Mason CJ, Brennan J and Gaudron J in Re Media, Entertainment & Arts Alliance . . . their Honours referred to the Queensland Electricity Commission case as authority for the proposition that: “. . . Ascertainment of where the public interest lies is very much a question of fact and degree . . .”
The identification of the “public interest” in the context of a statutory power to determine matters in accordance with a test so expressed, was also considered by the Court in O’Sullivan v Farrer –
and his Honour refers to the judgment.
“. . . the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable . . . given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’ . . .
In the present case the issues are not the same as have arisen in this line of authority. The Court is not concerned to construe the words “public interest” in the context of a discretionary statutory power. The issue in the present case is to determine whether the balancing exercise between two competing public interests itself constitutes a “question of law” within the statute under consideration. Nevertheless, the reasoning does offer assistance in the determination of the issue before the Court. It supports the conclusion that the balancing exercise required by the Bread Manufacturers defence is not, of itself, a question of law.
In my opinion, the process of balancing conflicting public interests and determining which should prevail in particular circumstance, is not of itself the determination of a question of law. The scope, range and nature of the considerations relevant to such a determination involve elements about which a wide range of legitimate opinion may exist. The formulations “matter of fact and degree”, “reasonably open” and “capable of decision either way” frequently appear in reasoning on this matter . . . There are, however, limits to the range of legitimate opinion. Question (v) –
which raises this as a question of law –
requires the Court to determine whether any such limits have been exceeded in this case.
Essentially, the question becomes not was there error of law in the balancing process, because that is not a question of law as such. The question is whether it was open to the Tribunal to find that the public interest consideration, any of the public interest considerations it found, were operative in the present case. If they were, then the balancing process is one that was not open to the court to review. We say the consequence of what we have put is that when the section 30 error was removed from the ring on the appeal when it was reheard on the basis of the documents now before the Court, the Court of Appeal was in the situation where it first had to determine whether section 148(1) was attracted and, if so, what it would do under section 148(7).
Now, the Court of Appeal did formulate the question correctly in that passage I took your Honours to and I go back to its decision firstly at 410 when it talked about at the top of page 411, could section 50(4) apply, that is a question of law, and it answered the question unequivocally at paragraph 19 at page 414, when it said:
nothing in the content of the advices, and in particular nothing in the revealed differences, that attracts the operation of s 54(4).
Then at paragraph 44 at page 424:
Having read the advices, we are quite satisfied that there is nothing about this petition, or these advices, or this process of decision-making, or this announcement, which compels disclosure of the advices in the public interest.
That is moving a step forward, but we say the proper question and the only question before the court before it got to the subsection (7) was not how it would weigh up matters in the balance but whether it was open as a matter of law to Justice Morris to find the public interest override could be attracted, and we emphasise ‑ ‑ ‑
HAYNE J: Reference to compelling disclosure at line 3 of paragraph 44 is also to be read in the light of the reference to “require disclosure” at line 2 of paragraph 43.
MR MERKEL: Yes, your Honour, although ‑ ‑ ‑
HAYNE J: The first sentence at paragraph 43 identifies the question as one of being whether circumstances required disclosure. It is not immediately apparent how that is related to the search for error of law.
MR MERKEL: We say that that is moving on to the subsection (7) question, your Honour, which is, should this Court find the section 50(4) override applies rather than whether it was open to Justice Morris to so find? The earlier statement of the question, could it apply, was a correct statement of a question of law; would it apply, has this Court involved in the balance. Having said all that, can I say to your Honours that the ‑ ‑ ‑
FRENCH CJ: Sorry, just going back to the question whether it was open to Justice Morris to reach the conclusion that he did. Once one has stripped away from his reasoning the general public policy considerations, reference to which was found to have constituted error of law, can one identify a discrete judgment that he has made based upon material differences which would, freestanding, justify the application of section 50(4) public interest override?
MR MERKEL: With respect, your Honour, that is an approach which we would urge the Court not to take because it offends that fundamental principle of taking reasons with some kind of fine tuning ‑ ‑ ‑
FRENCH CJ: I am just asking whether you can identify it. Go to its significance later. Is there a passage where one can identify some discrete judgment that he has made?
MR MERKEL: Your Honour, yes, we can. We say, your Honour, the key issue turns out in paragraph 52, but we say that fairly construing his Honour’s reasons, starting from paragraph 43, it is only the material differences his Honour discovered – material differences is the language or the dictionary – that underlines the reasoning from paragraph 43 through to paragraph 54. His Honour stated the test correctly in paragraphs 39 to 42. He gave emphasis in paragraphs 43 – I am jumping ahead of myself here – to where legal professional privilege should stand in the context of this case. None of this is at a level of abstraction. It is all related to the specific circumstances of this case.
Then his Honour dealt with the public interest factors. It is not put in the context of the circumstances of this case that any of those factors could be irrelevant when they are related to the circumstances of this case. Then his Honour goes to public interest factors favouring release. We would say from paragraph 48 onwards these are all factors which lay a foundation for the relevance of differences between the advice which attracted his Honour’s discretion. Absent the differences that his Honour noted, we would say that the override would not have had any factors going for it. We would say it is only the differences that attracted his Honour to the override.
We say to read these paragraphs as somehow disconnected rather than as flowing one to the other dealing with the same subject matter, we say, is to go through reasons with a fine tuning, which is particularly inapposite when his Honour is framing reasons unfortunately in a way that is designed to not really explain them properly, as we learnt at the last hearing before this Court where all of your Honours were left to speculate on the differences his Honour was referring to, but now we know what those differences are because the documents have been disclosed.
When one gets to paragraph 52, we get to the factors that swayed his Honour in their entirety. After talking in 51 to the press release and then going to its significance, his Honour in 52 raised the question of different advices, and the powerful reasons were the reasons that attracted the override in paragraph 53. They were either capable of being public interest considerations or they were not. If they were capable, then the Court of Appeal could not find the error of law in his Honour’s approach.
FRENCH CJ: Is it your position that you have what amounts to, on this issue of material differences, a merits judgment, as it were, in your favour from the Tribunal and that it was sufficient for the Court of Appeal to address the question whether such a judgment was open in the proper application of section 50(4) rather than to exercise a substitutive merits assessment of its own?
MR MERKEL: Yes, your Honour, that is precisely what we put, and we say that is what it is compelled to do under the section and the framework within which it was operated. May I say this, that we say it is important for that question to be understood and analysed and for the appeal to be dealt with within those parameters, but it all comes down to one point of difference. We do not contend and have not contended that the public interest override can be attracted absent the press release. The public interest override can only be attracted because of the press release and its content having regard to the nature and extent of the differences of opinion. We say that is clearly what activated his Honour to find the override applied.
There are no freestanding reasons that could stand for the decision that the override applies absent his Honour’s analysis in 51 to 53, the earlier paragraphs being under that umbrella as to where his Honour was leading because he was conscious of the differences that he had identified after having read them but was unable, for the reasons that this Court has already articulated, to explain in his reasons.
FRENCH CJ: In referring to the task to be undertaken by the Court of Appeal, in the majority judgment in this Court at page 371 of the appeal book, paragraph 58 of the judgment. It begins with the words:
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.
It refers to examination and so forth. That description of the function of the Court of Appeal, is that consistent with the formulation I just put to you, which you accept is what it should be doing?
MR MERKEL: Yes. At that stage it was, your Honour, because there was one error of law identified and not appealed which was totally unaffected by the content of the document ‑ ‑ ‑
FRENCH CJ: This was the section 30 question?
MR MERKEL: Yes. I cannot overstate the importance of that because that was an error which on balance may have not made a difference, but it was an error that was in theory correct, but its problem for our learned friends who wish this matter to be dealt with by the Court of Appeal and did not want a remitter, was that it required a remitter because there were no facts found in respect of the section 30 point which required, was it contrary to the public interest to reveal the internal working documents, and then to have to weigh that public interest in the public interest under section 50(4).
As that had not been done and that was an error, had my learned friends remained with that, there would have been a remitter to the Tribunal because error of law had been established which was unaffected by this Court’s decision. That is what we said to the court should be done. Then
when my learned friend withdrew the section 30 point, there was no error remaining that was unaffected by the content of the documents. So the court had to analyse the matter afresh in the light of the content of the documents which it had not had before.
Having done it, we say it went as far as was necessary, which were two steps; that the press release did not inaccurately, unfairly or inappropriately describe the process, which is a reference only to the joint advice and what consequence followed from it and therefore, nothing in the circumstances of this case attracted or was capable of attracting the override. We accept that reasoning, if it is correct, as being a question of law that entitled the court to go through to subsection (7). But if, as we have contended and we say must follow from this Court’s reasoning at the last hearing and the last judgment, the press release said something more that made the nature and extent of the differences relevant, then the Court of Appeal was in error, an error that we say is appealable no matter whether one looks at this as House v The King, but we say it is not a House v The King matter. We say that that is the situation we are confronted with on the current appeal.
HEYDON J: Do you need to go further, Mr Merkel, in view of what you have been saying? You have fully made your point, have you not?
MR MERKEL: I have made the conclusion, your Honour. I have not taken your Honours to all of the stepping stones as to why we say, if the Court was against me on that, that there was –
GUMMOW J: You seem to have lobbed a ball into the Solicitor’s court.
MR MERKEL: Yes, your Honour, but we say it is the ball that needs to be confronted. But we say that the point of substance on this is simply that the Court of Appeal – can I go straight to what we say would be an exercise in futility of this Court if it accepts what the Court of Appeal had done in this case.
FRENCH CJ: Mr Merkel, we might at this point stop you and just hear from the Solicitor in response to the points that have been made so far.
MR MERKEL: If your Honour pleases.
FRENCH CJ: Yes, Ms Tate.
MS TATE: Your Honour, might I say this point has only arisen now. I was informed a couple of minutes before the convening of the Court that my learned friend was going to rely upon this novel argument. So we have had no notice whatsoever of this argument until I asked my learned friend to describe it in at least some degree of detail about 10 minutes before the Court’s hearing this morning. We have had an opportunity over the last few months to exchange very extensive written submissions and that opportunity has not been availed of by my learned friend with respect to this point. There was no mention 10 minutes ago of either of the judgments that have been relied upon before the Court.
GUMMOW J: Are you asking for an adjournment?
MS TATE: Your Honour, I think in the circumstances it would be only fair that there be an adjournment when an entirely novel point which appears to go to a fundamental aspect of the proceeding has been raised for the very first time.
FRENCH CJ: Ultimately we are concerned with what was the proper function of the Court of Appeal and the limits of that function on the remitter and, having regard to section 148 of the VCAT Act, that must always, I would have thought, have been in play.
MS TATE: Yes, your Honour, but there was an opportunity to articulate what the special leave grounds were. Special leave grounds were articulated at some length. This did not appear as one of those special leave grounds. In the event, there was only a limited grant of special leave, so the appellant was not given a grant of special leave with respect to all of the grounds that had been relied upon. So it was not raised at all in relation to the grant of special leave or the application for special leave and it has not been raised through the course of the extensive exchange of written submissions and it has been raised, effectively, in this Court for the first time by my learned friend on his feet.
GUMMOW J: Are you saying that your opponent needs to broaden the grounds in the notice of appeal?
MS TATE: Yes, your Honour, we do.
GUMMOW J: At page 437. Well, broaden – I suppose, in a sense, contract, unless it is already covered by (a).
MS TATE: There has been no articulation that the ground of appeal, that there was a failure by the Court of Appeal to perform the task that was remitted to it, was based upon, as the learned Chief Justice said, the Court of Appeal engaging in a substitutive capacity rather than in a review capacity. There has been no articulation of that ground whatsoever, your Honours, with respect to the task of the remittal.
FRENCH CJ: How much time would you need, Ms Solicitor?
GUMMOW J: One is thinking of noon or 2.00 pm?
MS TATE: Well, your Honour, this is a difficult position because the appellant has argued and, in effect, given a concession that this question only arises if the press release is construed as conveying the implied representations that he says the press release does convey. Now, we are here prepared to meet that argument, your Honour, and if that is the foundation upon which this further argument is put, then we are in a position to attempt to meet that.
FRENCH CJ: That argument may answer the question, was it open to the Tribunal to find the public interest override engaged under section 50(4)?
MS TATE: Yes, your Honour.
FRENCH CJ: If it was open, then the question arises, is there a merits judgment on the part of the Tribunal?”
MS TATE: Yes, your Honour.
FRENCH CJ: You are ready to meet that aspect anyway.
MS TATE: Yes, we are ready to meet that aspect. Yes, your Honour. But it may be that the appellant actually wishes to articulate the argument in relation to the press release before we take the opportunity to respond to that, to precisely what it is are the implied representations said to be conveyed by the press release. Otherwise, your Honour, I can respond to it just with respect to the written submissions of the appellant, if that seems a more convenient course.
FRENCH CJ: Yes, all right, thank you. I will just hear from Mr Merkel briefly on the question of an application for an adjournment.
MS TATE: Thank you, your Honour.
MR MERKEL: Your Honour, we would say the appropriate way for the Court to proceed is to hear our submissions through, to have my learned friend’s submissions and then give such extra time as my learned friend would wish to deal with this point, because we say ultimately the point still comes down either way to the press release. We do not say it makes representations in the way my learned friend says, but we have accepted that, absent the press release, no public interest considerations could attract section 50(4). We say nothing found by his Honour Judge Morris was to any different effect.
KIEFEL J: Do you say that what you are raising falls within your first ground of appeal, or do you concede that it does not ‑ ‑ ‑
MR MERKEL: We say, your Honour, it probably more likely falls within the second ground, that it could also fall within the first ground because we say that the language used by the Court is within the error of law formulation that we have put - nothing in all the material before the Court attracted the operation, which means there was no public interest considerations in favour of release.
KIEFEL J: The difficulty is that the particulars given – if the first – 2(a) stopped and said it did not perform the task required of it, that might be as may, it might throw open the whole thing, but the particulars given of it perhaps detract attention from the proper role of the Court of Appeal which now seems to be the heart of your submissions.
MR MERKEL: When you say, your Honour, it is the heart, it is the starting point, but we say the finishing point is the same no matter how this matter is formulated, because the only pathway the Court of Appeal got to the words that nothing attracts the operation of section 50(4) is that it said the press release conveyed no more than what it said. We say that if that is right, our appeal fails, but if it is wrong – and we use the word “impression conveyed to the public” – this is not a section 52 case or a contractual case about representations, but if that is wrong, then the Court of Appeal has erred in its approach to the press release and once that error is identified, suddenly the nature and extent of the differences between the advices becomes the critical consideration.
What we say has happened here, your Honour – and this is the key part of our appeal – is that by the Court of Appeal saying that the press release was literally true, it thereby made the nature and extent of the differences in these advices irrelevant. It would not matter what the nature and extent of the differences were because the Court of Appeal said the press release had nothing to do with any earlier step.
HAYNE J: But the question becomes whether the Court of Appeal was acting as if it were conducting an appeal by way of general rehearing or, as its statutory jurisdiction required it to act, as an appeal on a question of law and unless one begins at the beginning with what the Court of Appeal’s task was, one will arrive at the wrong destination.
MR MERKEL: Your Honour, I have no hesitation in agreeing with your Honour because that is why we outlined that at the beginning, but it does not affect the subsequent argument, as long as my learned friend has an opportunity to fairly deal with the issue which we have raised at this late stage. I do not have any quibble with her having that opportunity, but we say that is a discrete point that can be considered as a discrete point, but it does not affect the other points.
GUMMOW J: Well, it controls everything.
MR MERKEL: Except for this, there are two elements, your Honour ‑ ‑ ‑
GUMMOW J: And if it does not, it should.
MR MERKEL: Your Honour, we, with respect, agree, but there are two questions, does it get through the eye of the needle that we say the case law has established at the subsection (1) level? If the answer is yes, it then falls upon it to decide what to do under subsection (7), which is to look at the public interest considerations itself. In our learned friend’s case, she says there was error and there was nothing that was sufficient to attract the override. We say there was no error and even if there was, there was sufficient to attract the override and the Court of Appeal erred in misconstruing the circumstances surrounding the press release.
GUMMOW J: The question for the Court of Appeal was – now knowing the material that was before the Tribunal – do the reasons of the Tribunal, when read with an appreciation of the material before the Tribunal, manifest an error of law?
MR MERKEL: Yes, your Honour.
GUMMOW J: In the construction and application of this phrase “public interest” and the so‑called override section.
MR MERKEL: Yes, your Honour, but, with respect, that is a correct formulation, that the difference between the parties ‑ ‑ ‑
GUMMOW J: Whether we have a particular view about the wisdom or lack or wisdom or the candour or lack of candour or the comprehensiveness or the lack of detail in the press release is not really here or there in determining whether there was this question of law which was erroneous.
MR MERKEL: That is correct, your Honour, but we say this. This Court concluded at the last hearing that the nature and extent of the differences can attract the override. We say that that was not in a vacuum. That was because of the political accountability the Attorney attracted by issuing the press release.
GUMMOW J: Of course, and it looks as if the Tribunal was very well aware of that.
MR MERKEL: Yes, your Honour. We say the reasons suddenly – as we said in our written submissions – the reasoning of the Tribunal becomes not only relevant but compelling when the nature and extent of the differences are understood and analysed. But the Court of Appeal here ‑ ‑ ‑
FRENCH CJ: Well, we are just discussing the question of your response to the adjournment at the moment, Mr Merkel. I do not want to get too far into the substance of the argument. It may be convenient now for the Court just to adjourn briefly to consider what course it should take.
AT 11.28 AM SHORT ADJOURNMENT
UPON RESUMING AT 12.13 PM:
FRENCH CJ: After considering the course of argument thus far, the Court would be assisted if argument were to be directed in the first instance to three questions, and a copy of these questions will be made available in printed form to counsel:
(a)whether on remitter the Court of Appeal performed the task required of it, namely to determine whether, in the circumstances found by the Tribunal, section 50(4) of the Freedom of Information Act 1982 (Vic) was incapable of application;
(b)whether, if the Court of Appeal did not perform that task, the respondent in this Court now asserts that error of law is nonetheless demonstrated in the decision of the Tribunal in the application of section 50(4); and
(c)what orders, including as to costs, should be made by this Court in the light of the answers to questions (a) and (b)?
We have heard the appellant on question (a). We will hear anything further the appellant wishes to say on the remaining questions now and we will hear from the Solicitor for Victoria on the questions we have identified not before 2.00 pm tomorrow.
MS TATE: Thank you, your Honour.
FRENCH CJ: Mr Merkel.
MR MERKEL: If the Court pleases, I am not sure I have fully grasped the second question. It should be the appellant in this Court? No.
HAYNE J: You do not say there is an error of law, do you?
MR MERKEL: No.
FRENCH CJ: You say there is none.
MR MERKEL: Then we cannot say much about that, your Honour, it would seem.
FRENCH CJ: You assert, as I understand it, that the Tribunal has made a merits judgment in the relevant area?
MR MERKEL: Yes, your Honour, and it was open to it to do so on the basis of the submissions that we put. We cannot say anything more about the second question, I think, your Honour. I think in fairness, your Honours, on (b) we can only put in reply what my learned friend would wish to contend. We are not sure what our learned friend would say if she asserts that error.
FRENCH CJ: You will be able to deal with that in reply, of course, yes.
MR MERKEL: Can I just say in respect of (c), the position of the parties, as I understand it, is that my learned friend is not seeking costs whatever the outcome is and we would seek costs follow the event.
HEYDON J: On that topic, Mr Merkel, on page 415 of the appeal book, which is paragraph 21 of the second judgment of the Court of Appeal, it says that:
it was common ground on the appeal that the task now confronting this Court involved a balancing process.
Does that mean it was common ground that the task confronting this Court involves merits decision as distinct from question (a) that has been handed down?
MR MERKEL: I appreciate what your Honours are putting. What, in fact, occurred, your Honours, as I indicated, that this point was not grappled with before the Court of Appeal. Initially it was approached on the basis that the section 30 point had raised an error that meant that it would be in the context of a balancing task. What then happened when the section 30 point was no longer proceeded with, I do not think any of the parties or the court grappled with the consequence of what the court was really doing on this initial question.
What then happened is the case was essentially argued not so much on any legal analysis, but what the court’s task was by reference to the reasons of this Court in the judgment it gave, namely, what consequences flowed from the material differences exposed by an inspection of the documents in the light of this Court’s discussion of the press release. We had put the case on the basis that this Court’s reasoning compelled only one answer, namely, that the material differences attracted section 50(4) and was sufficient to do so. Our learned friends contested that and that became the battleground.
HEYDON J: This question now defined as question (a) that the Chief Justice read out, was it submitted to the Court of Appeal that that was the task it had to do?
MR MERKEL: I could not give your Honour a precise answer to that. I think the submissions went in a sequence and while the section 30 point was alive that is the way the matter proceeded because there was error of law and it was for the court to determine. We asked for it to be remitted. When the section 30 point disappeared the court still dealt with the remitter that said we can deal with it. I do not think any of the parties grappled with the consequence of the section 30 point disappearing and the point that this now gives rise to.
I think I would have to look at how the matter was put in submissions in the transcript, but I think this question of law problem has really only emerged in the course of the lead up over the last few days when our learned friend raised a House v The King question against our submissions and that required us to turn our attention to precisely what was the jurisdiction and that is the issue we raised at the outset today. I do not think it could be fairly said against any of the parties that there was any concession on jurisdiction made consciously, although it was contested on the basis of this Court’s reasons and what this Court had directed was to be done on the remitter.
HEYDON J: What about the other orders? If question (a) is asked favourably to your interests it will follow that a necessary task was not performed by the Court of Appeal. Who should perform the necessary task, the Court of Appeal for the third time or this Court?
MR MERKEL: No, your Honour, we would say that the matter being fully ventilated twice before this Court it is sufficient – this Court can determine that there is no error of law – no purpose served in a remission
because no error of law is capable of being demonstrated on the proper principles.
HEYDON J: So the orders sought on page 437 of the appeal book are no longer sought by you. You ask that the appeal be allowed and that this Court do whatever is necessary to see whether the orders in paragraph (b) should be made?
MR MERKEL: Well, we would seek the order that the appeal from the order of the Tribunal be dismissed because we say that when this Court considers the matter there was no proper basis for finding any error of law, and therefore there is no purpose served in a remission and the ‑ ‑ ‑
HEYDON J: That is subject to (b), as to which obviously one has to await what the respondent says.
MR MERKEL: Yes, your Honour, but we would say that would be the end result if we are successful.
FRENCH CJ: Thank you, Mr Merkel. The Court will adjourn until 10.15 tomorrow.
AT 12.23 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 15 APRIL 2010
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