Osland v Secretary to the Department of Justice

[2008] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M3 of 2008

B e t w e e n -
MARJORIE HEATHER OSLAND
Appellant
and
SECRETARY TO THE DEPARTMENT OF JUSTICE
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 24 APRIL 2008, AT 10.05 AM

MR J.B.R. BEACH, QC: If the Court pleases, I appear for the appellant with MR R.H.M. ATTIWILL and MR J.D. PIZER. (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 MS M.J. RICHARDS for the respondent. (instructed by FOI Solutions)

GLEESON CJ: Yes, Mr Beach.

HAYNE J: Just before you begin, Mr Beach, I understand the attention of the parties has been drawn to the fact that I sat in the Court of Appeal of Victoria in Ms Osland’s appeal and I understand the parties do not object to my sitting in this matter.

MR BEACH: That is so, and also we do not object to Justice Kirby sitting, given his position in Osland v The Queen decision. Now, your Honours, what I propose to do in terms of the structure of my submissions is to give your Honours a very brief statement of some of the factual material, then to take you through the statutory provisions of the FOI Act and the VCAT legislation, and then I want to come to the crux of the matter, which is the question of waiver of legal professional privilege, the section 50 override, and then the question of whether there needs to be remittal even if we win on waiver to deal with the section 30 exemption.

Now, your Honours, pleasantly for all concerned there is no dispute as to the facts of this matter. The decision of the Tribunal that appears in the appeal book beginning at page 18 sets out from page 19 and following a detailed statement of facts, and I obviously will not read that. Also in the President’s reasons in the Court of Appeal, he also deals with a chronology of events or authorities that are a little bit more truncated than what was said by the Tribunal.

One additional piece of material that I did want to give to the Court is the actual witness statement of Christa Momot that attaches the actual petition and also, amongst other things, the actual text of the media release that the Attorney-General published on 6 September 2001. We have also, in the chronology that we attached to our submissions, referred to other annexures to the Momot statements. So without ado, perhaps I could hand to each of your Honours a copy of that statement with selected annexures, so that if your Honours need to actually consider the form of the petition itself or the text of the media release, rather than rely upon what has been stated in the reasons below, you will have that material handy. Perhaps I could hand that up and leave it at that.

GLEESON CJ: Yes, thank you.

MR BEACH: One matter that is obviously of central significance in terms of the facts is the media release itself, what can be gleaned from it and the context within which it was published. What I would like to do is just briefly make some points on the media release. You will find that in this material that I have had handed to you, under annexure I, which is the last of the annexures. I should say that this set is not a complete copy of all annexures; that is very voluminous and irrelevant for present purposes. We have only copied those annexures that we need to see in terms of the petition, which you will find under annexure C tab. The other annexures deal with the course of the submissions that were made as to the petition, and then ultimately you have annexure I, which is the media release referring to the decision that had been made by the Governor.

KIRBY J: No doubt you will deal with this in substance later, but do we have in this case to consider how a person in the position of the Attorney‑General can make public the result and outcome – conclusion - of such an inquiry as was commenced in this matter and reveal it to the electors and the public generally without losing the privilege of legal professional privilege that would ordinarily attach to it. Is that the ultimate policy issue?

MR BEACH: It is the ultimate nub of our waiver argument and, accordingly, whether the section 32 exemption under the FOI Act applies. In terms of questions of policy, there were, as I understand it, no guidelines published by the Attorney‑General or anybody else within government about the form of these types of applications or petitions, nor any guidelines or documents setting out any structure, procedure or policy for how a decision is to be announced and, in this case, whether or not a media release was the norm. In fact, on one view of the matter this case may be unique in the sense that you have a decision made but in this case it was coupled with a media release that – there does not seem to be evidence that that was the standard practice to put out a media release of this type. No doubt my friend ‑ ‑ ‑

KIRBY J: My question was not really directed to the standard practice. It was directed to what seems to me to be the desirable feature of the Attorney‑General first announcing the conclusion and result of the inquiry that has been set in train on the petition and, secondly, saying as much as may prudently and lawfully be said without losing legal professional privilege because that would be a worry if the Attorney‑General either (a) could not reveal the thing at all, or (b) had to reveal it at a price of losing legal professional privilege.

MR BEACH: I will come to that question later, but can I give you the short answer now. It is one thing for the Attorney‑General to announce publicly that there had been a decision made to refuse the petition, we have no quibble with that. We would not have a quibble with the Attorney‑General saying that that decision was based upon his recommendation to the Premier that in turn – with a recommendation made to the Governor. There is no difficulty on questions of waiver there. There would also be no difficulty if the Attorney‑General said, “In terms of making the recommendation and how I came to that decision, I took into account various matters including legal advice without disclosing the content or the substance of legal advice”. That would be unremarkable and we would have no difficulty there.

We say that the distinguishing feature here is that he went beyond really saying, “I’ve made a recommendation that has, inter alia, been based on legal advice”. We say he went beyond that in this case, we say, for his own reasons, and that is where we draw the boundary line between no waiver and the question of waiver in this case, but I do want to develop that.

GLEESON CJ: Well, another matter that perhaps goes a step behind the question of the procedure that you might need to address at some stage at a time convenient to yourself in your argument is what any such legal advice would be about. In other words, what principles or guidelines govern the exercise of this power of pardon? The very word “pardon” in its colloquial sense, which I think is different from its legal sense in this context, implies guilt, whereas if you look at that English case ‑ ‑ ‑

MR BEACH: Bentley?

GLEESON CJ: Bentley.

MR BEACH: Yes.

GLEESON CJ: There was a practice in England apparently for a long time under which the Home Secretary would only issue a pardon if the person - at least a full pardon – if the person who sought the pardon was both morally and technically innocent. In that New Zealand case quoted in Bentley the procedure was described as one to correct errors, and it would be too late for them to be corrected in the other way.

In this context, what would be the legal question, what would be the question upon which one would seek legal advice in deciding whether to grant a pardon? Would it be whether there was an error in a decision of one of the courts, or whether there was later evidence that showed that there had been a miscarriage of justice, or would it really be what is meant by mercy in its colloquial sense?

MR BEACH: Well, my submission would be that it would be broad enough to encompass all those matters. Certainly, the starting point would be to look at the actual grounds for the petition that had been lodged by the applicant, so if those grounds raised issues such as fresh evidence or that there had been a wrongful denial of admission of, say, hearsay material on prior consistent statements, if there were those sorts of forensic or legal issues that came out of the trial and were the subject of the grounds, or some of the grounds that the petition has in the present case, you would expect going off to three silks would be for the purpose I suppose of getting advice on those questions ‑ ‑ ‑

GLEESON CJ: I have to say that it is not immediately apparent to me from this press statement exactly what it was that the Attorney‑General sought legal advice about.

MR BEACH: That is very unclear. All that you can glean from the statement is that he refers to the fact that there were six grounds in the petition and that the joint advice of the three silks was unanimous as to the outcome as to why the petition should be refused, and also unanimous as to the dismissal of each of the six grounds. So, without any further material it would be fair enough to infer that the joint advice had actually opined upon the six grounds of the petition that are essentially set out in annexure C to that bundle that I handed you too in the ‑ ‑ ‑

GLEESON CJ: You mean they would have opined about ground 4 in the petition, which is set out on page 3 of your written submissions?

MR BEACH: If one takes the media release at its word, it would seem that they did. You then have a nice question, of course, if they did whether or not that was legal advice. In other words, were the silks being asked to opine on a legal question or legal advice and I suppose your Honour is coming to the question, perhaps, of whether – put aside the question of waiver – all of the joint advice was the subject of privilege or only as to part.

GLEESON CJ: No, I was thinking of a rather different question. You may be able to explain it in due course but reading that Attorney-General’s announcement I do not feel that I understand the gist or substance of the advice he received.

MR BEACH: This is why I was going to start with the media release.

GLEESON CJ: Or to put it another way, it is not self‑evidence to me that he disclosed it.

MR BEACH: Let us perhaps turn to the text of the release itself. He discloses that the joint advice recommends on every ground that the petition should be denied and that every ground is a reference to the six grounds in the petition. So, he is not just saying, “I have received legal advice and based upon that legal advice I am going to recommend the dismissal”, he has actually gone further, talked not only about unanimity of the three silks’ views as to the result, but also each and every ground, so he has descended well into the territory of stating the conclusion but does seem to be on a fair reading a statement as to the conclusion.

There are all sorts of semantic arguments being put forward as to whether it is disclosing the gist or the substance or the conclusion. In my respectful submission, the distinction between each of those three concepts is more illusory than otherwise. “Gist” or “substance” are synonyms, and a conclusion can disclose the substance. The substance is not confined to 50 pages of reasons. The substance is what I would describe to be the essence and the essence is what is found in the conclusion and the conclusion is what the Attorney has actually stated in the media release.

In my submission, it is has travelled well into that, but just step back from that for a moment. Can I just talk contextually about the media release because this might also be quite important. This is a media release that is volunteered by the Attorney. It is published without any statutory ethical or other obligation or in anticipation of such an obligation. It is truly a voluntary disclosure.

KIRBY J: That is a little bit unreal in the world of accountable politicians, accountable to Parliament, answerable to the electorate. There is a very real obligation and, indeed, one would think it is a desirable obligation that they should reveal matters of public interest, public concern.

MR BEACH: I understand where your Honour is coming from ‑ ‑ ‑

KIRBY J: As far as they can.

MR BEACH: What your Honour says, of course, feeds into our public interest in section 50 override and, of course, there is a little bit of a tension between ‑ ‑ ‑

KIRBY J: It does. I am trying to suggest there is a bit of a tension in your case.

MR BEACH: There is. There is a bit of a tension in everybody’s case on that question, but I suppose the point on voluntariness that I was trying to convey was something a bit different to what I think Justice Gummow in dissent in Mann v Carnell was dealing with, where it was voluntary strictly but there was an ethical or other obligation on the solicitor in that case to disclose material to the Law Society here. There is no question that this was something done by the Attorney without any obligation. It is not said that this was following a precedent of longstanding ‑ ‑ ‑

KIRBY J: You do not have to have a precedent for everything; only lawyers think that way. A Member of Parliament may think, “As far as I can, I have an ethical and moral obligation. So far as I can, without disclosing the private advice of the lawyers for the Crown, I have a moral obligation to inform the community about the outcome of this case, which has been a matter of public controversy”.

MR BEACH: I accept all of that for the purposes of the section 50(4) argument, gratefully.

KIRBY J: You cannot have it both ways.

MR BEACH: I am going to try and steer a middle course, which is to say I can have what your Honour says in generality in terms of section 50(4) but say consistently with that when the media release here was being put out that he did not need to go further and state the unanimity of view on the dismissal of each of the six grounds. It would have been consistent with the public interest to come out and say, “I’ve made a recommendation, it’s been based upon the advice of counsel, among other things, and taking all relevant considerations into account I recommend to the Premier that the petition should be dismissed”. He could have stopped there ‑ ‑ ‑

KIRBY J: His Excellency the Governor, I think.

MR BEACH: The Attorney-General made a recommendation to the Premier; the Premier then seems to have made a back‑to‑back recommendation to the Governor, although there is no direct evidence about that.

KIRBY J: No, it is in the release.

MR BEACH: So I can accept everything your Honour says about the general public interest in making a press release, and I gratefully accept that for section 50, but he did not need to go on and disclose what was done here. Can I just say this. In terms of the timing, there is another element being conveyed here. Do not forget that the joint advice was given on 3 September 2001. Within a few days he has reviewed the advice, made a recommendation to the Premier, the Premier has obviously looked at that, considered it, the Premier has then made a recommendation to the Governor and the Governor has made his decision, all within the space of three days. It is pretty clear from the message that the Attorney is saying, essentially, “I have delegated this task to three silks, they have given me a joint advice which is unanimous as to the result, unanimous as to the grounds” – because there is no further time allowed for anything else ‑ ‑ ‑

GUMMOW J: What was the source of the Attorney-General’s authority, the statute?

MR BEACH: That goes – it is more an informal arrangement. You have the Governor drawing on the advice of the Premier, and that is referred to, I think, at section 7 of the Australia Act – that when the State Governor is exercising the prerogative, section 7 of the Australia Act requires him to take into account advice of the Premier. Now, in terms of ‑ ‑ ‑

GUMMOW J: Just a minute. There was no specific statutory regime supplementing or displacing the prerogative in this situation.

MR BEACH: There is a provision of the Crimes Act, section 584, which allows the Attorney‑General to actually refer a matter to the Court of Appeal or, indeed, to seek the assistance of the judges of the Trial Division of the Supreme Court. That is section ‑ ‑ ‑

GUMMOW J: Yes, that is what happened in Ratten’s Case.

MR BEACH: Yes, but here, because – and I am just inferring – because the matter had gone all the way to the High Court, the Attorney‑General here must have for his own reasons decided not to make a reference under section 584 but ‑ ‑ ‑

KIRBY J: That did not stop them in Mallard. In Mallard it had come up to the High Court, we had refused special leave and then subsequently a petition on new material was referred to the Court of Appeal and then it came up here again.

MR BEACH: Well, I do not know why the Attorney decided not to refer it under section 584. Perhaps he might have thought that there were grounds other than purely legal grounds or grounds for error or new evidence. He might have thought that there were other policy issues that perhaps justified him keeping it to himself, getting the joint advice ‑ ‑ ‑

KIRBY J: This was done by his predecessor, I think, was it not?

MR BEACH: Well, it was Jan Wade who received the application first, but it was actually Mr Hulls who ultimately made the decision because I think there was a changeover in Attorney at the end of 1999. Of course, we are talking about this joint advice on 3 September 2001.

KIRBY J: It says in the press release that he consulted with the State Opposition and then he, Mr Hulls, appointed a panel of three senior counsel.

MR BEACH: Yes. So he did not use the procedure under section 584. Whether that was because he thought it had gone to the High Court and they had already looked at the legal errors ‑ ‑ ‑

GUMMOW J: But the petition did not ask that he do so.

MR BEACH: No, that is true.

GUMMOW J: The petition seems to be directed purely to an exercise of the prerogative.

MR BEACH: That is so, but under section 584 ‑ ‑ ‑

GUMMOW J: Section 584 says, “Nothing in this Part shall affect the prerogative”.

MR BEACH:

but the Attorney‑General on the consideration of any petition –

so we did not have to ask for it. He could have actually of his own motion.

GUMMOW J: You do not complain that he did not?

MR BEACH: No, no. You asked me the question as to the statutory provision. I was just saying there was 584. It was not ‑ ‑ ‑

GUMMOW J: So we are purely in the realm of the prerogative.

MR BEACH: Yes.

GUMMOW J: The Governor is acting on advice, where do we go from there? The advice of the responsible Minister, I suppose, who is the Attorney. What then follows from that?

MR BEACH: You get back to the media release which is the Attorney saying, “Based upon my recommendation”, which seems to have been a necessary but a sufficient condition, “I ‑ ‑ ‑

GUMMOW J: It is not clear that the Attorney was seeking legal advice in respect of anything but ground 2.

MR BEACH: He purports to say, “I have an advice from silk on six grounds”.

GUMMOW J: I know that, but if you look at the petition, only ground 2 looks like law. That may be debatable even as to ground 2, but 1, 3, 4, 5 and 6 do not look lawyers’ area.

MR BEACH: Well, ground 1 is a little grey. There might have been some opining about it was unrealistic to look at this in terms of law reform. All that you can say is you have three silks, they clearly opined upon each of the six grounds. You would have thought they would not be opining on each of the six grounds unless they could discern some legal question there otherwise you would have had him saying, “I’ve received joint advice as to grounds X and Y and I’ve taken into account other considerations for the other matters and I’ve decided to decline or recommended ‑ ‑ ‑

HAYNE J: But what is wrong with the Attorney‑General saying to counsel, leading counsel, “You work in the courts, you understand about these things, I’m presented with some social issues, what do you think about that?” That is not legal advice. It may be good government, bad government, good administration, bad administration to do those things, but why do we jump to the conclusion that the subject of the advice is legal advice?

MR BEACH: Well, I suppose you had the Tribunal at first instance here - it seems that the Tribunal reviewed the exempt documents, including the joint advice, and seems to have found that it was properly the basis of a section 32 exemption as to whole. There does not seem to be a suggestion in the reasons of the Tribunal that only part was legal advice and the other not. Of course, we cannot say because we have never had access to that document.

KIRBY J: The Tribunal did have access to the document.

MR BEACH: Yes, it did, so ‑ ‑ ‑

KIRBY J: Does one draw an inference from (a) the petition, (b) the persons who were asked to advise, and (c) that the Tribunal had the document, that when it said that this was legal advice that we can accept that as being factually accurate?

MR BEACH: For these purposes, yes. I mean, the ‑ ‑ ‑

HAYNE J: Well, that needs elaboration, does it not, according to what appears at page 25 of the appeal book, paragraph 30, the second sentence of that paragraph?

MR BEACH: Yes. Well, that is right.

HAYNE J: But it is two things. It is proffering legal advice, or summarising legal advice. So we need to elaborate the answer that you earlier gave that one simply assumes, or one can take it that the Tribunal found that the memorandum of advice from counsel was the tendering of legal advice. The finding is a little more subtle than that, is it not?

MR BEACH: Well, I agree with that, but the Tribunal, they did have the power if it found that some parts were exempt and some not exempt. But, your Honour, you are focusing on the content of the document itself ‑ ‑ ‑

GLEESON CJ: But the foundation of your argument is that what the Attorney‑General said discloses the substance of the legal advice he received.

MR BEACH: That is right, but in terms of privilege you are looking at the purpose for the advice in the first place, so the question of privilege would be dependent upon that purpose, which would be a little bit more general than going through each item of the content of the document. So that is why ‑ ‑ ‑

KIRBY J: The respondent needs it to be legal advice in order to claim the exemption.

MR BEACH: That is right, otherwise the Tribunal would have said after inspection the exemption does not apply to any part of the document or only as to part, so the foundation ‑ ‑ ‑

KIRBY J: There is no issue before us that is relevant that this is exempt under some other ground of exemption such as sensitive public Cabinet information or matters going to the Cabinet or anything like that.

MR BEACH: There is another exemption, the section 30 exemption ‑ ‑ ‑

KIRBY J: There is 30, yes.

MR BEACH: ‑ ‑ ‑ which the respondent wants to agitate if we win on the waiver question and have that sent back to the Tribunal. I have some submissions to say about that later.

KIRBY J: So far we are concentrating on what has been accepted by the Tribunal and so far that this is a category of legal advice exemption.

MR BEACH: Yes, there was no issue between us at the moment that the whole of that joint advice and the purpose for which it was created, its communication to the Attorney, that is relevantly what founds the privilege. The whole of the joint advice is property, the subject of a claim, and it is privileged, so you then ‑ ‑ ‑

GLEESON CJ: If there is no ground of appeal that calls in question that conclusion of the Tribunal.

MR BEACH: No, that is right. So we are into an assumption that you have joint advice, that is the subject of a claim for legal professional privilege, where no part of that joint advice has been held by the Tribunal that inspected the document to be non‑privileged, ought you not assume, all else being equal, that the entire contents of the joint advice is what it is, what it purported to be, what the Tribunal expected it to be and what the Attorney said it was.

GLEESON CJ: But then accepting that this document was the subject of legal professional privilege, your argument depends upon the proposition that what the Attorney-General said about it disclosed the gist and substance of the legal advice that he received.

MR BEACH: Can I just shift what your Honour says – our first point is that it discloses the conclusion. That is the first point.

KIRBY J: But you do not argue that in disclosing the conclusion - as I understand it, you do not now argue that disclosing the conclusion is waiver or is inconsistent with the claim later of the privilege.

MR BEACH: No. We do say that disclosure of the conclusion amounts to a waiver, without anything else, but if your Honours take me ‑ ‑ ‑

KIRBY J: The respondent says that you do not argue that, but you do say you argue it.

MR BEACH: Of course, we do.

KIRBY J: I see, all right.

MR BEACH: I will leave my friend, she is ‑ ‑ ‑

KIRBY J: She is trying to be helpful.

MR BEACH: I am not sure, yes.

GLEESON CJ: You may need to say that because apart from the disclosure of the conclusion I find it very difficult to see that it discloses anything to me.

MR BEACH: Your Honour, if we were an inter partes litigation between the appellant and the respondent and I had a document that had six grounds in it and my opponent says to me, “I have received the joint advice of three eminent silks that dismisses unanimously each one of those grounds”, that is telling me the opponent that – what the actual substance of the advice is.

GLEESON CJ: Let me test that by reference to one of the grounds. The ground is:

Her cumulative suffering has been and continues to be so profound that executive intervention is now warranted in ending it.

What has been disclosed by this statement as to the legal advice that was received about that?

MR BEACH: You would infer that if they have opined on it, and that they have, that is either misconceived or not established factually, or if it is established factually it has no relevant legal significance, or if it has legal significance it does not have any policy or other significance going to the question of how the exercise of the prerogative should be used. I come back to my question, if we were an inter‑partes litigation and I gave your Honour, as my opponent in litigation, a document which had six grounds and you said to me, “I’ve got three silks’ opinions that each of your grounds is hopeless or should be dismissed and it is unanimous”, you are telling me the substance and, of course, everybody on my side of the Bar table and every person who had a hand in putting the petition – your Honours know the six grounds.

KIRBY J: The first thing you would look at are who are these people who are giving this advice and then you would see there is Crennan, the Chairman of the Bar, various others.

MR BEACH: You could not get three more eminent silks. There was a reason why he discloses the names and the unanimity. He was delivering the media message that these were three people of the highest calibre who have independently and unanimously come to a view. “I, the Attorney, have carefully considered it and it dismisses each of the six grounds”. That, with respect, to me discloses the substance. I do not really see much of a difference between the concept of substance and conclusion. You tell somebody the conclusion, you are telling them the substance. Substance does not mean 50 pages with a half a page conclusion. Substance I would look at in terms more of its content. It means essence. It does not mean the detail, articulation of the reasons. It actually means, in my respectful submission, the actual essence of the document. That is why I say I see just substance, conclusion all as being nice but different words for the same concept.

With respect to the respondent’s position, it does seem to have gone into the substance in that sense. As I say, everybody on my side of the Bar table, everybody today who can look at the petition can match it up. The Attorney‑General must have reasonably foreseen that it was not just people who might have looked at the six grounds before his advice was received or his recommendation made. He must have known that anybody at any stage, even in the future, could put together his media release and the six grounds of the petition and match it up to disclose what, in my submission, was the ‑ ‑ ‑

KIRBY J: I think you have to bite on the Chief Justice’s question though, that the nature of the grounds in the petition, or at least some of them, are of such a social content that they are not pure legal questions and the issue is, where does that then run? On one view, well, they must be relevant to the petition, the prerogative power, therefore, why are they saying that the petition should be rejected? But they are not purely legal questions and I do not quite know where that runs, whether that helps you or does not help you.

MR BEACH: I do not think it can harm me, because if they are not pure legal questions, then on one view that might undermine the total or partial section 32 exemption in the first place.

KIRBY J: You have not argued that so far, so I think we have to ‑ ‑ ‑

MR BEACH: No, but then nobody has argued at any stage up the line, and certainly not the respondent, that the joint advice is full of nebulous policy and other considerations that eminent silks should not be opining on except as anybody else might. So nobody has argued that point. But let us accept that it goes beyond legal matters. My point is still good. Whether it is legal or non‑legal or if some of them are hybrids, you are still disclosing the substance in terms of essence, and certainly the conclusion, by reference to what the Attorney has said in the media release.

I will come back to waiver shortly. In terms of the documents as part of the FOI process, look, I probably do not need to take your Honours through that, they are fairly self-evidently contained in the appeal book itself, and I may pass over that given the time allocation my friend and I have agreed to on the argument. Perhaps what I would like to do now is pass to the text of the FOI Act itself and section 32.

Now, section 32 is the relevant exemption for the purposes of the present argument. It is curiously worded. Section 32(1) focuses on the nature of the document. You might think, well, two things about that.

GUMMOW J: Is this drawn from the, or inspired by the federal Act?

MR BEACH: Yes.

GUMMOW J: Is there an equivalent provision in these terms in the federal Act?

MR BEACH: Yes, it is section 42 of the Commonwealth Act. There are a few things to note. It talks about:

it would be privileged from production in legal proceedings -

Justice Ashley below asked, well, what did that mean, a hypothetical proceedings and between which parties? It may be that because this was drawn in 1982 and Baker v Campbell was a year later that the draftsman narrowed the focus to the question of legal proceedings. I do not know that – it does not seem that in terms of how the section has been construed that that in any way affects my waiver argument.

It does focus on the nature of the document rather than on the purpose of the communication, a little bit curiously. The words “a nature” and focusing on a nature of the document have given rise previously to arguments as to whether or not waiver is at all a concept that can be utilised or embodied in this provision.

GUMMOW J: Well, it is badly drawn because the privilege is about communications, is it not, which may or may not be reduced to a document?

MR BEACH: Yes. Certainly, the parties below did agree that section 32(1) carried within it the concept of waiver, and unless your Honours want me to develop any arguments on that further I am content to leave that where it is. Perhaps just going back a little bit into other relevant provisions, I would ask your Honours also to note section 3(1), which are the objects, and subsection (2) being Parliament’s intent to facilitate and promote access, of course, leading to a reading up of those provisions which facilitate and a reading down of those provisions which are exempt.

You have definitions in section 5. There is a definition of “exempt document” and “exempt matter”. You also have the right of access under section 13, although it is not for an exempt document. Then you have under section 16(1) a provision dealing with how Ministers shall administer the Act to make the maximum amount of information available and subsection (2), which is quite interesting because it can be married up a little bit with section 50(4), although not completely, is that nothing in the Act is intended to prevent or discourage Ministers from giving access to documents, including even exempt documents.

KIRBY J: Now this is section 16(2)?

MR BEACH: Yes.

KIRBY J: We do not have that in the print that you handed up. It leaps from 7 to 29.

MR BEACH: I did not realise that I had handed a print up to your Honours.

KIRBY J: I am sorry, it may have been in the respondent’s – where do we find the statutes that you are referring to? Is that annexed to your submissions?

MR BEACH: No, that is not. I had been advised that your Honours would have had Reprint No 5, but I was not clear that you had only been given extracts.

KIRBY J: I have a tiny expurgated Reprint No 5. It does not include 16. Never mind, we will have a look at it later.

MR BEACH: Your Honours should be using Reprint No 5 which incorporated amendments as at 1 January 2000. Reprint No 6 incorporated amendments up to 12 December 2005, which is beyond the date of the FOI request, beyond the date of the application to the Tribunal and beyond the date of VCAT’s order. So it ought be Reprint No 5 ‑ ‑ ‑

KIRBY J: The document we have is from our library, apparently. It must have been that you put on your list the sections and they have sent us – you did not have 16.

MR BEACH: Perhaps we might ‑ ‑ ‑

KIRBY J: However, you have told us what it contains and it is pretty familiar.

MR BEACH: Yes. Section 17 is the provision dealing with the application document. Section 20 is that access is to be given, unless the document is exempt. Your Honours should note section 30 – and I will have to come back to that at the end of my argument – about the exemption dealing with internal working documents. That is the argument as to whether, if we succeed on waiver, it has to go back to the Tribunal to deal with section 30.

Then, if your Honours go forward to section 50, subsection (4) is the principal provision for present purposes. I should say this. That subsection talks about including “power to decide that access should be granted”, but there does not seem to be express powers given to an agency or a Minister to apply the public interest override, so the word “including” is not to be a supplement or carry with it that Ministers have that power – it is just to indicate that the Tribunal has powers, including that power.

I referred your Honours to section 16 which, outside the Act, allows Ministers to give access to otherwise exempt documents, but that seems to be a little bit different. There is provision in section 51 for internal review.

KIRBY J: The Tribunal is the State equivalent of the Administrative Appeals Tribunal.

MR BEACH: That is right.

KIRBY J: It is a merits review tribunal.

MR BEACH: It is.

KIRBY J: It can review decisions of Ministers. Is there a convention in Victoria that where a Minister’s decision is the subject of an application for review that the Tribunal is then constituted by a judicial member or by the President, who is a judge?

MR BEACH: I am not sure of that; I might check that. I do want to take you to the VCAT Act because there are two different types of jurisdiction – original jurisdiction and review jurisdiction. Review jurisdiction is where a review is allowed under an enabling enactment, and the FOI Act is one such, so the VCAT jurisdiction is divided into two. For review jurisdiction I am not sure what the protocol is ‑ ‑ ‑

KIRBY J: The Solicitor might be able to tell us on that.

MR BEACH: Yes. I might ask questions of my expert juniors over the lunch hour on that. Some of them are more familiar with that than I am. Section 55 is an onus provision and subsection (2) – it is the agency that:

has the onus of establishing that a decision given in respect of the request was justified –

that is, it was an exempt document –

or that the Tribunal should give a decision adverse to the applicant.

That would carry with it section 50(4). So on one view of the onus provision it is the Minister that carries the onus, or the agency, as to why the section 50(4) override does not apply. That is a little bit tricky, but that is one thing that can be inferred from the text of subsection (2).

There is a provision, section 56, allowing the inspection of exempt documents by the Tribunal, as occurred in the present case. Indeed, under subsection (3), if this matter goes back to the Tribunal, it may be that an application is made to the Tribunal that some of the legal practitioners later involved be allowed to inspect the exempt document and that is something that is permitted.

KIRBY J: It would be helpful, in future, if you do not mind, if when you come here you add to any set of documents the statutory provisions because they after often more important than some of the stuff that is in this document.

MR BEACH: No, I apologise. I had asked the question whether your Honours have Reprint 5 and did not ask any further questions, I just assumed that ‑ ‑ ‑

KIRBY J: We have a tiny little extract, and in your list of legislation you put Freedom of Information Act sections 30, 32, 50(4). Anyway, I am just mentioning that. We will overcome.

MR BEACH: Yes. Now, the VCAT legislation - your Honours, for that you ought have Reprint 2 because that was what applied as at the time the application to VCAT was filed which was 5 April 2002 and that reprint 2 incorporates amendments as at 15 July 2001.

KIRBY J: You are looking at section 9(2), are you? What are you looking at?

MR BEACH: None. I was just looking at my own written note.

KIRBY J: You see, this is another case where the only section of that Act which is on your list is 148(7).

MR BEACH: Yes.

KIRBY J: If you are going to refer to others – most cases nowadays turn on statutes, so if they are relevant it is better that we have the text.

MR BEACH: What I will do is I will give your Honours these sections so that they appear on the transcript and then we will make sure we will have a full text sent to your Honours of both statutes. The definitions – I talked about review jurisdictions being under an enabling enactment. Section 3 deals with that. In terms of the distinction between the general jurisdiction in its division into original and review your Honours will see that in Part 3 beginning at section 40. I will not linger over that. In terms of the jurisdiction of the Tribunal and how review jurisdiction is invoked that is dealt with in section 48.

The functions of the Tribunal on review are dealt with in section 51. Then, going forward you will see there are provisions dealing with how the Tribunal can be constituted in section 64, a directions provision under section 80. More relevantly, for present purposes, section 148 that allows a party aggrieved, essentially, to seek leave to appeal to the Supreme Court “on a question of law” if it has come from a presidential or vice presidential member then, the leave to appeal on any appeal goes straight to a Court of Appeal. If it has come from a Tribunal constituted otherwise than by president or vice president then that leave to appeal would go to the trial division.

But, relevantly, for the section 50(4) argument and what the Court of Appeal was doing in the present case, section 148(7) is the provision which talks about the Court of Appeal’s powers. It includes the power to remit and also to make an order that the Tribunal could have made in the proceeding.

There are variations to the VCAT Act provisions in terms of any Freedom of Information Act aspect and they are set out in Schedule 1 to the VCAT Act, Part 8, but those amendments to the VCAT legislation are not relevant to the present exercise or those provisions that I have just taken your Honours to and in particular section 148. Can I turn back then to the question of waiver?

GLEESON CJ: Before you do that, can I draw your attention to two findings of fact made by the Tribunal, one on page 26 of the appeal book at line 20 where there is a finding of fact about the contents of this document. Then there is a further finding at the bottom of page 27 in the last complete sentence which was that what the Attorney said about it did not distort the advice or create a misleading impression. There is a third finding of fact on page 28 in paragraph 38 summarised in the heading which was that “Editing is not practicable”.

MR BEACH: We would say, with respect, that does not relate to the question of waiver. That may relate to the section 50 question.

GLEESON CJ: None of those findings was capable of being disputed, I presume, in the Court of Appeal?

MR BEACH: That is so, and your Honour uses the expression that I would agree with. It was not capable for us to dispute that because we ourselves never had access to the documents.

GLEESON CJ: But also the legal nature of what was going on in the Court of Appeal did not permit that, did it? The appeal was on a question of law.

MR BEACH: That is right. The Court of Appeal did not look at the content of these documents. They were focused on questions of legal error in terms of the Tribunal’s findings on the section 50(4) point and they were also focused on our argument on waiver. We had filed a notice of contention in the Court of Appeal because the Tribunal had said that there was no waiver. The Tribunal had made a distinction between the conclusion and the detail or the reasons. So the respondent appealed on the section 50 question and we filed a notice of contention saying that we should get the joint advice on a different point than section 50 which was the waiver of privilege point.

GLEESON CJ: When the Tribunal said on page 26 that the document, the joint advice, dealt with questions of legal process and matters of justice, that may be consistent, may it not, with what I have understood to have been a common practice in the past, that is, that it was common to consult the trial judge about the trial judge’s opinion on whether mercy should be shown, especially when hanging was in question in that case that you referred us to of Bentley. Unfortunately for Mr Bentley the trial judge, Lord Chief Justice Goddard, thought that hanging was a very suitable outcome.

MR BEACH: Golden age of the 1950s.

KIRBY J: I think it is revealed in the Tait special leave application that there had been a consultation with the trial judge who, although himself personally opposed to executions, said that he could not recommend that Mr Tait not be executed. Of course, that had not reached the stage of the prerogative of mercy, but the consultation with the trial judge went on. It was common practice in those days.

MR BEACH: Let me pick that up. You see, I do not see a distinction. If you are asking three lawyers to sit there as de facto judges to opine on a question of justice, where is the dividing line? I mean, that is what he was doing. He was not referring it to the Court of Appeal again. If they were being asked to go beyond a strictly legal question that silks normally advise upon into questions of justice, I still do not see that that creates a bright line which makes their opining on the question of justice and the broader policy considerations that might inform those opinions as taking it outside the purview of legal advice.

KIRBY J: But you have not argued that up till now. That might be a good point. I mean, I can understand that that might be relevant to some of the grounds of the petition.

MR BEACH: I was putting it in a slightly different point. I was I suppose saying that the content of the three silks’ opinion was legal advice so expanded out into questions of justice, rather than something that was some extraneous or different policy consideration, so I suppose I was just going back to the Chief Justice’s line of questioning to me earlier rather than dealing with the section 50 argument at the moment.

KIRBY J: Whilst we are back in the facts, the list of documents is on appeal book page 17, schedule of exempt documents. That runs to 11 documents.

MR BEACH: Yes.

KIRBY J: I gather that there are only nine in issue?

MR BEACH: That is right. If your Honours go to that schedule at page 17, document 2 we have actually been given access to, and also document 10, but without the draft letters of attachment. Now, that was outside, as I understand it, any debate or argument before the Tribunal. Somehow they came into our possession independently, so your Honours can excise documents 2 and 10.

KIRBY J: Your reference in the orders that you are seeking this Court to make to document 9 is still the three Queen’s Counsels’ advice?

MR BEACH: That is right.

KIRBY J: So that the other documents now are 1, 3, et cetera down to 11, are they?

MR BEACH: Yes, if we win on the section 50 argument, we say it ought to go back to the Tribunal on those documents, and we should get access now to the joint advice, which is document 9. But if my friend’s argument succeeds, and the respondent says, “Well, we want to apply the section 30 exemption even if you, Beach, win on the waiver question”, then if your Honours accept that document 9 should go back to look at another exemption, the section 30 exemption, then all of these documents have to go back to the Tribunal and that is why we formulated the alternative order at the end of our submissions to cover off that possibility. Now, can I go then to the question of waiver. There has been a lot of ink spilt ‑ ‑ ‑

KIRBY J: Is waiver the correct category or does Mann v O’Neill not establish a category of inconsistency? I mean, how do you advance waiver in relation to inconsistency with the future claim of the privilege? Waiver seems to imply that you agree. Inconsistency is whatever you agree, it is just inconsistent, objectively.

MR BEACH: Sorry, perhaps I was putting it loosely. I was really going to come onto this argument that Mann v Carnell talks about implied waiver or imputed waiver; we have used the words “implied waiver”. Implied waiver arises if and only if the Mann v Carnell test of inconsistency arises, there is inconsistency between the conduct of the privileged holder matched up against the maintenance of confidentiality in the otherwise privileged communication, so I was equating inconsistency à la Mann v Carnell with the implied waiver that we are arguing about here.

We are not arguing for a different test than Mann v Carnell. We are not arguing that there was some adjunct or new rule brought into existence of the type that Justice Maxwell has spent time discussing, that is, where there has been a voluntary disclosure of the gist, substance or conclusion of advice, that amounts to a waiver. There is a lot of imprecision and perhaps this has given rise to the reasons of the President on this, a lot of imprecision used as to whether people are arguing for this separate rule or whether people are really saying, no, the rule or the test is Mann v Carnell. Its output, where you have a voluntary public disclosure of the gist, substance or conclusion, is a satisfaction of the Mann v Carnell test, particularly where the privileged holder has not sought to maintain confidentiality and where there has been voluntary behaviour in the context of which I have started off with, which is there is no statutory ethical or other obligation and this was a completely free decision of the privilege holder.

KIRBY J: When you served up the statute, you did not give us the uniform Evidence Act and there is a provision in the uniform Evidence Act which expressly deals with waiver of legal professional privilege and the respondent says that we have to be very careful looking at some of these cases, many of them in the Federal Court, where presumably they would be applying the uniform Evidence Act as it applies in Federal Courts.

MR BEACH: Yes. No, well, can I perhaps deal with that at the start then. The provision is section 122(2). It does use the expression “disclosing the substance of legal advice”. We say that none of the cases that deal with what was said by the Full Federal Court in Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 are applying in substance the statutory test. Can I just make this point. It is not as if there is mutually exclusive operation between the common law test and the statutory test.

KIRBY J: Did the ALRC say that when it recommended 122 that it was endeavouring to express the common law? Have you looked at that?

MR BEACH: Can I say this. I have not looked at that recently – I have looked at this many years ago – but I have a vague feeling that there was nothing in the Law Reform Commission Act that was expressly stated to change what was then the substance ‑ ‑ ‑

KIRBY J: You might get one of your vast team to have a look at this.

MR BEACH: I will have a look at that. I might also have to look back at what your Honour said in the Esso Case.

GUMMOW J: This debate was all skewed really in this sense. We now know, and we did not fully appreciate it at some earlier times, that legal professional privilege is more than a mere rule of evidence in Australia. It is treated as a substantive common law doctrine, is it not?

MR BEACH: Yes, and your Honours have had a debate, I think, in Propend, about whether it is an immunity or a right. Baker v Campbell said it travelled well beyond legal or quasi‑legal proceedings, so instantly you were getting beyond the rule of mere evidence. So, yes, the common law doctrine is ‑ ‑ ‑

GUMMOW J: That must give some colour as to what we are talking about when we talk about waiving it, I think.

MR BEACH: I, with respect, agree but I thought that your Honours had encapsulated that in Mann v Carnell because Mann v Carnell, from recollection, was a year later than Propend. I thought Propend was 1998 and Mann v Carnell was 1999. Anyway, I will have to look at that. We accept that it is an important immunity. Your Honour Justice Kirby has gone on and said it is a right, but whether it is an immunity is an adjunct to more fundamental rights or a right in and of itself. I am not sure whether it is a human right or applies to unnatural persons. I do not know whether we need to get into that sort of territory.

I suppose what I was saying is it is a nice piece of advocacy of my learned friends to say what you are really doing and what this Bennett line of authority is doing is taking really the statutory test and trying to craft it onto the common law test. That presupposes that there is not greatly overlapping areas, particularly where you are dealing with the question of voluntary public disclosure, where you are dealing with voluntary public disclosure of the substance of advice where no confidentiality is sought to be maintained and, as I say, there is no statutory or other obligation to come out and say something. You may satisfy both the statutory test and also the Mann v Carnell test of inconsistency. That is what all of these cases are saying. They are not trying to create a new rule or to be unfaithful to what your Honours said in Mann v Carnell. They are just applying Mann v Carnell.

There are lots of single judge decisions. There is Justice Whelan in the Switchcorp case – that is, Switchcorp v Multiemedia Ltd [2005] VSC 425 – where he is just unremarkably applying Mann v Carnell in a straightforward way to say that revealing the contents, even in a summary way, of legal advice where there is no obligation to do so and where confidentiality is not sought to be preserved will probably result in a waiver.

As I understand what your Honours said in Mann v Carnell, your Honours did accept that voluntary disclosure could amount to a waiver, although your Honours were careful to say, by reference to the decision in Goldberg, that it was not in every case that a voluntary public disclosure would amount to a waiver. No doubt your Honours were careful to say that because there may be cases of voluntary disclosure where confidentiality is sought to be preserved or, based upon Justice Gummow’s dissent in Mann v Carnell, it may be where Goldberg or the solicitor was a case where there was some ethical or other obligation to give information to the Law Society. So even though in a sense he was making a voluntary disclosure to a third party, because of the context of that, on one view it may not have been truly voluntary but on another view you can understand why you would not want to have an absolute rule. But he went nowhere near those types of caveats.

GLEESON CJ: Justice Gummow did not dissent in Mann v Carnell; Justice McHugh dissented in Mann v Carnell.

MR BEACH: I am sorry, your Honour; that is so. I was really ‑ ‑ ‑

GLEESON CJ: The outcome, however, in Mann v Carnell was that it was held that the disclosure of the advice in the circumstances, in the context, did not amount to a waiver. That was what the case actually decided.

MR BEACH: That is so, yes.

GLEESON CJ: So Mann v Carnell is actually an example of a case in which a voluntary disclosure of the contents of a privileged communication did not waive the privilege.

MR BEACH: Yes, but that was because your Honours did not accept that there had truly been in substance disclosure to a third party. Justice Kirby, I think, essentially took even a stronger position, which was you have the body politic – it was just one organ disclosing to another. Justice McHugh did not say that. He said that the Territory Executive was like the board of directors of a company and the Member of the Legislative Assembly was like the shareholder, so they were different. But your Honours were very clearly saying in that case that it was an overstatement to talk about this as a third party disclosure.

We rely upon Mann v Carnell. If you have voluntary disclosure, but it is not in substance to a third party and/or where there has been voluntary disclosure that confidentiality is sought to be preserved, as the Chief Minister sought to preserve in giving advice to the Legislative Assembly Member, then you can understand why that did not amount to waiver, but neither of those impediments exist here.

GLEESON CJ: What happens in an ordinary case – if you disclose, on a confidential basis, a legal opinion that you have received to your accountant for the purpose of preparing your income tax return, does that give rise to a waiver?

MR BEACH: No, there are two points. One, you are seeking to preserve the confidentiality, you are giving it to your accountant, and you might say you are giving it to him as your agent anyway so it is all in-house, but at least you are preserving confidentiality. Moreover, if it is for the purposes of ultimately complying with the income tax assessment legislation, then you might say, yes, I suppose it is voluntary in one sense, but in a real sense you are into what Justice Gummow was describing in terms of the Goldberg Case where the solicitor gave a statement to the Law Society, but it was really not truly under compulsion but he had to do so to discharge his ethical obligations, and if he had not done it that way the Law Society would have insisted on it in another form anyway.

So the accountant case is completely distinguishable from this present case because of the fact that here when Mr Hulls went out and published his media release he was not maintaining confidentiality in anything, he was putting the conclusion out into the marketplace, and he was doing so otherwise and under any statutory, ethical or other moral obligation, a completely different type of scenario.

KIRBY J: I do need your help on this, Mr Beach. I asked you earlier and I do not think I got an answer. Mann v Carnell seems to stand for the fact that the test is whether there is inconsistency in the conduct of the holder of the privilege in what that person has done. I want to know how that principle relates to waiver. Is waiver, or an imputed waiver, what happens where the court comes to the conclusion that what has happened is inconsistent? In other words, that the genus is inconsistency and the evidentiary proof of – or that the consequence of inconsistency, as you say, well, that has either been an actual or an imputed waiver.

MR BEACH: Let us confine ourselves to implied waiver rather than expressed waiver. In my submission, Mann v Carnell stands for the proposition that if there is factual inconsistency of the type that we are talking about, that the necessary output of that is waiver. It is interesting, in Wigmore, which was referred to in Attorney‑General v Maurice and also ‑ ‑ ‑

GUMMOW J: I referred to it in Goldberg v Ng ‑ ‑ ‑

MR BEACH: Yes.

GUMMOW J: ‑ ‑ ‑ at page 120 of 185 CLR.

MR BEACH: Yes, and what Wigmore seems to be saying is where you have inconsistency, then you have unfairness, then you have waiver. In other words, unfairness – in other words, where there is inconsistency, fairness requires that there be a waiver. So, fairness is not an add on or a modification, it is actually the output or a conclusion reached once there is inconsistency. Now, the latest new Wigmore that my juniors have uncovered for me ‑ ‑ ‑

KIRBY J: Mann v Carnell said something like it is not just a broad fairness discretion.

MR BEACH: That is right, and perhaps we should go on to that. There are different ways of looking at fairness. If you looked at how Wigmore previously expressed it you might say fairness is just the output of inconsistency, but there is no further operation for it. Your Honours in Mann v Carnell did not quite say that. What your Honours in Mann v Carnell said was – or you were careful not to exclude the concept of fairness, but you seem to have relegated that to a potential factor that may need to be looked at, not a factor that should drive the analysis because the analysis should be the application of inconsistency. Yet, with respect to the President below, it seems that purpose and fairness seems to have had new life breathed into it.

KIRBY J: You have been a bit critical of President Maxwell for not, as it were, focusing on the precise issues, but unless we have the precise issues in mind we may not focus on them. The question is, is the precise issue - was there inconsistency with Mr Hulls’ later claim of the privilege that he went out and made a press statement? One answer, one point of view might be, well, there is not inconsistency because he was then acting as Attorney‑General, a public officer, a minister accountable to Parliament, to the people, and he was giving a very broad‑brush statement in that capacity of the fact that all grounds had been rejected by this panel, that he was not giving away the detail, substance, argument, confidential matters that might arise in the course of doing it of those three expert lawyers and that therefore there is not inconsistency of the kind that Mann v Carnell talk of.

MR BEACH: Let me put the point of principle and then I will come to what the Attorney did. I say the point of principle is where there has been voluntary public disclosure of the gist, substance or conclusion of legal advice in circumstances where there has been no attempt made to preserve the confidentiality of that gist, substance or conclusion and in circumstances where there is no statutory or ethical or other type obligation to make that disclosure, then I say a paradigm application of the Mann v Carnell inconsistency test ought to lead to waiver in the balance of the advice.

That is the principle for which I contend. I am not trying to create a new rule. I am not trying to get into what Justice Maxwell spent 20 pages analysing or what my friends for the respondents try to recreate as my argument. That is the statement of principle which is the Mann v Carnell test and its output is inconsistency. That is not at all inconsistent with what your Honours said in ‑ ‑ ‑

KIRBY J: Except that you take a very narrow view of what is an ethical, moral or – because one could at least arguably add to that – an obligation of officers or public office holder to disclose what can be said but without thereby losing forever the privilege which is designed to protect confidential sources and other matters of that kind.

MR BEACH: But why, your Honour, should we be bound by this type of supposition? There was no statement or evidence put before the Tribunal from the Attorney‑General seeking to justify any of what your Honour said. What the respondent did ‑ ‑ ‑

KIRBY J: We are looking at a principle here. I mean, of course we have to apply it to this case, but in terms of principle, legal professional privilege is protective of the right of clients to exchange all sorts of information with a lawyer so that they get frank, candid, accurate, detailed advice when they are in a position of possible conflict in courts.

MR BEACH: That is so and that is why the privilege exists, but we are moving beyond that and saying you have now sought to do something inconsistent with the maintenance of that confidentiality. There is no evidence that the Attorney‑General put out the media release – and you can understand why they would not go into such evidence because that feeds into my section 50 argument. So it is silent. All that you have is a statement from, I think, a Mr Byrne, a bureaucrat, just setting out the procedure as to how these applications for the exercise of the real prerogative are dealt with, but not descending at all into where the media release fits into it, more importantly, where disclosure of the substance of the advice fits into it.

You ask yourself this. This is all about Mrs Osland. They have made a decision. He puts out this media release after the Governor has made a decision. What other public interest or confidentiality could further exist in relation to that material so far as the Attorney‑General is concerned?

GLEESON CJ: Is there an unresolved question as to whether there is any way of getting the reasons for a Governor’s decision on an application for the exercise of this power?

MR BEACH: This is something that I was wondering about myself. In a sense, that goes back to something more fundamental which is the reviewability of the prerogative, perhaps. It seems that the Tribunal and the Court of Appeal said that the exercise of the prerogative was not reviewable and they relied upon a statement of this Court in a 1908 case which is Horwitz v Connor (1908) 6 CLR 38.

KIRBY J: What volume of the CLRs?

MR BEACH: Volume 6.

KIRBY J: Volume 6, but there has been a little bit of water flowed under the bridge since then like a decision involving Governor Winneke.

MR BEACH: The Court has not looked at the matter. There was a Full Federal Court decision, Minister for Arts Heritage and Environment v Peko‑Wallsend (1987) 75 ALR 218. That seems to have accepted what the House of Lords said in the Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 that there was reviewability of the prerogative power. Putting it another way, something does not become unreviewable just because it is an exercise of the prerogative power. You have to look at the nature of the power concerned to determine whether it is reviewable or not. It is not a knockout blow that it is ‑ ‑ ‑

GUMMOW J: What was the nature of the power in the English Civil Service Case?

MR BEACH: I do not have that to hand, your Honour.

GUMMOW J: The English have, I think until very recently, not descended to have a public service Act. Public servants have been employed under the prerogative. We might well see that in modern times that is susceptible to some form of review.

MR BEACH: Yes, but then you have the Bentley decision of the English Court of Appeal. This is R v Secretary of State for the Home Department, Ex parte Bentley [1994] QB 349 at ‑ ‑ ‑

HAYNE J: That was a statutory scheme, was it not? Bentley was one of the petitions that was engaged under a statutory scheme, I thought.

MR BEACH: They were talking about the prerogative of mercy which was exercisable by the Home Secretary, so I am not sure about – it was the royal prerogative of mercy so I am not sure about the question of the statutory ‑ ‑ ‑

KIRBY J: I know you are answering the Chief Justice’s question, but where does this all lead?

MR BEACH: It is a long way around, but I ‑ ‑ ‑

KIRBY J: We are not here dealing with an application to review the Governor’s decision; we are dealing with an application directed at the Minister.

MR BEACH: Yes, but I suppose ‑ ‑ ‑

KIRBY J: Are you saying to us that you are not giving anything away, that you might be back here later in respect of the Governor, if you lose this one?

MR BEACH: Putting it another way, let us assume that the decision is reviewable. You might say that may carry with it some obligation to give reasons and that may be then relevant to the public interest element under section 50(4). It is not relevant, as I said, to the waiver argument ‑ ‑ ‑

GLEESON CJ: Except that your opponent puts against you, rightly or wrongly, the proposition that the context in which this is going on is relevant to questions of inconsistency and, to the extent to which one gets into it, unfairness, and your opponent also puts against you that this is going on in a context in which historically the absence of any obligation to give reasons is of importance.

Now, I am prompted to ask the question because we had a special leave application in a South Australian case a few weeks ago in which there was some discussion in the course of argument about whether it is possible to get reasons. That was a case in which a person convicted of murder had exhausted – and had exhausted on a couple of occasions, if you can do that – his rights of appeal but had made repeated unsuccessful applications for the exercise of the prerogative of mercy on the ground of fresh evidence and there was hanging around behind that a question whether that person or a person in that position would ever be entitled to reasons for the refusal.

MR BEACH: I would see the anterior question as being the question of reviewability, your Honour.

GLEESON CJ: Yes, they are related, certainly.

MR BEACH: We have waxed and waned but my position today is – when I say “we”, the figurative “we” – that arguably it is reviewable. If you accept that as a foundation ‑ ‑ ‑

HAYNE J: But what is “it”? Let us get more precise ‑ ‑ ‑

MR BEACH: The Governor’s ‑ ‑ ‑

HAYNE J: What is reviewable, by what process, in what court?

MR BEACH: The Governor’s exercise of prerogative to refuse the position. That would be the decision, because the rest is just anterior. It is nebulous; it is not reviewable. It is the Governor’s decision that is the exercise. Presumably, that would be the Supreme Court.

HAYNE J: You say “presumably”, Mr Beach. You bandy these ideas about with no content and that simply does not assist me. What is the proposition you are advancing and what is its content?

MR BEACH: I go back. The Chief Justice asked me the question: could you get reasons, and I said the anterior question was reviewability. My first proposition is that the exercise of the prerogative to decline the petition is reviewable. I am not sure I need to go further than that, to then say that it is then arguable that you would be entitled to reasons. The stepping stone from that is if the first two propositions are right that would then impact on the question of the public interest override under section 50(4). I was not seeking to take it any further than that, with respect.

KIRBY J: I have a belief that there was a case came before me in the Court of Appeal of New South Wales about challenges to the Governor’s decision on prerogative mercy and I think the court divided and it was a two/one decision that there was no such review in New South Wales. But there is of course a statutory provision allowing prisoners to seek a prerogative of mercy in that State and that was the anchor for my decision that it was reviewable, but that required examination of Winneke, but since then there has been the decision of this Court in Quin about the appointment of magistrates, and that was held to be not reviewable. So there is a whole bundle of law and I fear we are getting off into a tangent which is not central to the issues which are before us now.

MR BEACH: I suppose all I wanted to do is keep the position open. I do not agree that there is no arguable position for saying that we could get reasons. That was really it. I am not sure I can take that further. Can I go back to the question ‑ ‑ ‑

KIRBY J: I am sorry to ask another question. Can I take it that there is no issue as to the standing of Mrs Osland to bring these proceedings now that she has been released? Nobody has said, “This is a purely hypothetical question”, because, as the Chief Justice pointed out, the prerogative of mercy rather is directed to acceptance of the conviction and if the person is at large then the issue would be what point is there in these proceedings, except a social point.

MR BEACH: She is still under parole and will be under parole until July 2010, so there is that practical aspect. There is also the more fundamental aspect of her reputation. I think the Court of Appeal in Bentley said there are different types of pardons. Re‑establishing her reputation is not an insignificant point. I know it was looked up by the court in a different context of Ainsworth v Criminal Justice Commission coming out of the Queensland case. Reputational issue is for her very significant even though the conviction cannot be overturned and the sentence is spent in terms of the period of actual imprisonment and nobody has taken the ‑ ‑ ‑

KIRBY J: I am just making a list of the matters that are not in contention and that is a matter that is not in contention.

MR BEACH: No, it is not. I have put to your Honours essentially what I wanted to say in terms of the positive disclosure case which is where elements of a disclosure would give rise to inconsistency, that is, voluntary public disclosure where there is no obligation and confidentiality is not sought to be maintained, but your Honours are probably interested in the other area which is, where is the boundary line between a disclosure which would amount to inconsistency and a disclosure which would not amount to inconsistency.

If I merely said as the Attorney‑General, “I’ve received legal advice”, we do not say that gives rise to an inconsistency and implied waiver. If the Attorney also said, “I’ve had regard to legal advice”, we say that that does not amount to any inconsistency or waiver. If the Attorney said, “Here are my own views, that this is what I had regard to” and listed a few things including the legal advice and said nothing further, we say that that type of statement would not amount to inconsistency. The Attorney here, and if he was acting purportedly in a public interest in making the media release, could have discharged his perceived obligation by stating that in the media release and going no further, but he did go further and crossing over into the boundary of what we say was inconsistency.

KIRBY J: Would he have crossed the line if he had revealed only that he had referred the matter to three counsel whom he named and received advice.

MR BEACH: And took that into account.

KIRBY J: Yes.

MR BEACH: I do not like to make any concessions but that is probably on the other side, that it would not amount to inconsistency of the Mann v Carnell type.

KIRBY J: You say it is inconsistent?

MR BEACH: No, I said that would not amount to inconsistency of the Mann v Carnell type. If I said in a set of statutory accounts, say I am the company and I am being sued and I have to put a note to the accounts to set out a contingent liability and I have to make a distinction between whether it should be a contingent liability or a reserve – if I have to make a reserve in a set of accounts it is because it is perceived to be some economic outflow, contingent liability does not carry with it – so if I think I am being sued, I have to make disclosure on the accounts of a contingent liability and I say this is the company’s view after taking into account legal advice, that would not amount to an inconsistency and a waiver.

Take the takeover situation, if I am a target company and I am obliged in what was the old Part B statement, now a target statement, to disclose material events since balance date, and I said, “I have a statutory obligation to make disclosure of the material event, and to do so I had to refer to legal advice”, you might say, that is not inconsistent because that is under some statutory obligation to make that disclosure, that is why I – I want to be very careful here that I am adding two things to the voluntary public disclosure, and the first is not seeking to preserve confidentiality and the second is not seeking to act in accordance with some obligation.

If you take those examples, and it is difficult to work this out, but if you take those examples of some which fall into the inconsistency basket and those not, the dividing line is moving beyond describing the legal advice into its just substance or conclusion.

Now, can I deal more with the question of unfairness? In my respectful submission, although your Honours kept the position open about whether fairness or unfairness ought to be taken into account, it has no room to operate in a case such as the present. We say that the concept of fairness or unfairness – and this is what has been said by Justice McHugh in Mann v Carnell and also by ‑ ‑ ‑

GLEESON CJ: That was a dissenting judgment.

MR BEACH: Yes, it was.

GLEESON CJ: Justice McHugh’s opinion on waiver in Mann v Carnell was expressly rejected by the majority.

MR BEACH: Yes, because he was taking a more rigid approach; if there is voluntary disclosure to a third party, that is it, and he took the position there that there was a true third party and divided up the Chief Minister from the Member of the Legislative Assembly. That is where he was coming from. But in terms of the question of fairness or unfairness, your Honours never in the joint reasons expressed a detailed view about that. All that your Honours said is that it was a potential factor that could be taken into account.

Then you ask yourself, well, where or in what context, and the answer to that is, we say, provided by what Justice McHugh said. The concept of fairness or unfairness arises in adversarial proceedings where one party seeks to deploy part of a privileged document for his own tactical purposes and then seeks to maintain confidentiality in the balance, and that is ‑ ‑ ‑

GLEESON CJ: That is why the case of Benecke that is referred to in the plurality judgment in Mann v Carnell explains where this implied or imputed waiver fits in in relation to express waiver. Mrs Benecke in making public some complaints about her lawyer stated her version of some advice that she had received from her lawyer and heavily criticised her lawyer. Mrs Benecke probably did not even know that there was such a thing as legal professional privilege, let alone intend to waive it, but the Court of Appeal of New South Wales held in Benecke that she had waived legal professional privilege because what she did in attributing to her lawyer that advice was inconsistent with maintaining confidentiality in the advice because it just gave one side of the conversation without giving the other party to the conversation an opportunity to contradict it.

MR BEACH: Your Honour makes my point. Your Honour’s reasons in Benecke, that seems to be the one genesis for the inconsistency test, your Honour was not interested in fairness, or I do not recall any detailed discussion by your Honour.

GLEESON CJ: That is probably overstating it.

MR BEACH: Your Honour was interested in fairness, but you were not putting fairness into the language of the test you were using for it.

GLEESON CJ: No, it was an attempt to get away from a standard or a test, just fairness, as it were, in the abstract to make it a little more concrete, but it was a good example of a form of inconsistency that produced a manifest unfairness, as it happened, in the case.

MR BEACH: Yes. I have already said that inconsistency in and of itself produces the output that it is fair to disclose or it produces waiver which is what the earlier edition of Wigmore said, although the new edition says something a little bit different but when you come to Mann v Carnell itself, your Honours were not putting the facts in Mann v Carnell into any fairness basket. You could have expressed yourselves that it was not unfair to maintain the privilege because it was really not in substance a third party disclosure and in any event the Chief Minister had sought to preserve confidentiality but your Honours were – you could have said that in Mann v Carnell and you deliberately chose not to because you do not like the nebulous subjective characteristics of unfairness.

Although you preserved a little bit of flexibility in terms of fairness as perhaps being a factor, it certainly was not the sort of fairness that has been inflated in the reasoning below. I come back to the question of fairness. The paradigm case of that is where there is inter partes litigation, but I think Justice Young in the AWB v Cole Case (No 5) (2006) 155 FCR 30 - and we have given your Honours a reference to that there is well, how does fairness arise outside the context of inter partes litigation where you just have a party and an organ of government. It just does not seem to operate. He makes these statements in paragraph 130:

Fairness has become a subsidiary consideration; it may be relevant to the court’s assessment of inconsistency in some contexts but not in others.

KIRBY J: What is the proposition you are advancing by reading this?

MR BEACH: The proposition is that fairness is only a subsidiary consideration to inconsistency. The second point is if it does apply as a subsidiary consideration, it is usually used in the context where you have inter partes litigation, but beyond that it has little if any room to operate. What your Honour has said in Mann v Carnell is a good example of it. You could have expressed yourself in a more general way about fairness because that was outside inter partes litigation, and you did not.

So we put as a point against the Court of Appeal’s analysis that they have sought to breathe new life into the concept of fairness and new life into the flexibility that your Honours were trying to preserve in Mann v Carnell.

I come back to the point that you did want to keep some flexibility in Mann v Carnell because I think in paragraph 30 of Mann v Carnell you refer to Goldberg and you are careful to say there was no majority ruling that voluntary disclosure necessarily amounts to waiver, so you were keeping flexibility – and the question is for what, and the what is, well, perhaps where there has been a reservation of confidentiality or there has not, that might be an additional factor to look at. Fairness might be looked at in that context but it does not operate in this case. Or, you might look at it in terms of whether there were statutory or ethical obligations which may have explained or underpinned why the disclosure was made or not. That is why you keep a bit of flexibility in the Mann v Carnell test but, again, that is not this case either.

KIRBY J: But to the extent that fairness is a factor to be taken into account in determining inconsistency, which I find a little bit awkward conceptually, but to that extent why could one not say here, “Well, the fairness of it lies in the fact that the Attorney-General made a statement but he did not say very much and he did not reveal the details, he did not even reveal the gist on the complex six points that were put in the petition and though he had no legal or moral obligation he had a political obligation to be as forthcoming as he could be to the citizenry of Victoria and that he fulfilled”?

MR BEACH: Your Honour understands why I downplay this political obligation. I actually put the Attorney-General – this was deliberately done by him for his own political purposes to show that he had essentially delegated the role of the analysis ‑ ‑ ‑

KIRBY J: You are saying he is trying to have it both ways.

MR BEACH: Yes.

KIRBY J: He is trying to get the kudos of revealing but not in fact.

MR BEACH: And then saying, “It’s three silks over there, they’re the ones that I got the advice on 3 September, it’s definitive and I’ve acted on it”. He was trying to do this for his own purpose, not for some higher public interest. The second thing is – and I will not go over this old territory – but, your Honour, with respect, has downplayed what I say about what was disclosed, and we have had that debate about whether the label is gist, substance or conclusion. I say, “Well, you look at it”, particularly to the opposite party who well knows what is in the six grounds he was disclosing and then you say, “Well, what other fairness is there?”

It is not as if this is a matter of current controversy; it is not as if he has given that there are things in that advice which had a more general precedential application to any future exercise of the prerogative in similar applications. This is all, in a sense, historic and it is all focused on the position of Mrs Osland.

KIRBY J: We do know that the only person in the independent decision‑making process – namely, the President of the Tribunal – who has actually looked at the document concluded that they should be disclosed.

MR BEACH: Yes, that was for a section 50 purpose, yes. He ruled against us on the waiver because he took the point that there was a distinction between the conclusion on the one hand and the detailed reasoning on the other hand. So what he took away with one hand he gave us back on the other. But then you come back to fairness. Justice Maxwell refers to “while it was his intent to maintain confidentiality in the balance”, where does that come from? It is subjective intention. Your Honours said in Mann v Carnell that that was largely irrelevant. Your Honour the Chief Justice has said to me, by reference to the Benecke Case, that of course the woman would not have had any idea what she was doing. So subjective intention about wishing to maintain the confidentiality in the balance is an inference Justice Maxwell has drawn, but from what? There is just no evidence of that. In fact, a disclosure, you would think, would point the other way, but in any event, subjective intention is irrelevant.

Then he asks himself, what was the purpose of the Attorney‑General’s disclosure and puts a cloak on it that is a description that I have not quite agreed with in our written submissions, but you say, well, in terms of purpose for putting out the media release, where does that come into play in the Mann v Carnell inconsistency test? It is more in the basket of subjective intention than into the basket of the sort of factors of Mann v Carnell. Of course, we make the other criticism, well, if you are going to take into account fairness to the Attorney-General, what about fairness to my client? What about her? Let us assume what the State says, that this is unreviewable. He goes into the media and says, “We’ve got the definitive opinion of three silks dismissing each of your grounds”, where does that leave her either in a reputational sense or with any other sense as to how she can proceed forward?

GLEESON CJ: Mr Beach, I am not sure whether this question is relevant to your waiver argument or your later argument about public interest, but as a matter of fact, was the petition for mercy in the public arena?

MR BEACH: That is something that I looked at. It does not seem to have been. Can I make this point. Your Honour has a copy of the petition in these annexures under annexure C but it does not seem that there is anything in that document that expressly sought to reserve confidentiality, but there were – certainly for the vast majority of it – later submissions made by Mrs Osland and you will see those, for example, in annexure F where confidentiality was sought to be preserved in that later material. So the first point is there was no express restraint of confidentiality imposed on the original petition but it is fair enough to say, from what I have seen of the material, that the petition itself was not in the public arena and, in fairness to the respondent, the respondent does seem to have treated that as being confidential. You see, there is a difficulty with going down that track because it is not confidential against us. It is what I said to you before ‑ ‑ ‑

GLEESON CJ: That was what prompted my question. You said at least Mrs Osland knew what was being referred to by the grounds, but apart from Mrs Osland and her advisers who would have known what was being referred to in the press release when the Attorney referred to the grounds.

MR BEACH: It is not clear from the evidence. I do not think there is any evidence to suggest any broader dissemination. There were lots of newspaper articles which were exhibited to some of the material before the Tribunal but they do not seem to have referred to the grounds of the petition. Apparently that was all before the Attorney‑General’s press release, but my instructions are that immediately after the press release was issued my client’s supporters released the petition. That is coming back to a point that I was saying to you earlier, it does not matter whether we can show whether the petition and the grounds were in the marketplace before the media release. The Attorney‑General when he put out the media release must have reasonably anticipated that the petition could be published at a later stage. He must have reasonably included that as one of the potential consequences of this behaviour.

GLEESON CJ: So the sequence of events is that at the time the Attorney made his press release, the grounds of the petition were not publicly known or available. After and apparently in response to the Attorney‑General’s press release, your client or people acting with her interests in mind made public the grounds.

MR BEACH: That is what you can assume at the moment. I will take some further instructions over lunch on that. But I come back to – if you are the Attorney‑General and you have put out a media release saying there has been a definitive dismissal of the six grounds ought you not going to anticipate that it is not just whether the grounds were in the marketplace before then but it was going to happen as a natural consequence of your behaviour to descend into the detail in the media release.

But I come back to the point that I put to your Honour the Chief Justice earlier. We do not have to show that it was in the marketplace generally either before or after the media release. It is sufficient that if we are essentially the opposing party to the government or the Attorney, there is waiver against us; the exemption cannot be claimed against us. It may be that if somebody else, some stranger applies one day for the same document, perhaps there would be a different analysis of the section 32 exemption.

Now, the trouble is, of course, it is not clear how the language of the exemption could apply, but one way it could apply is that you cannot raise the section 32 exemption against us because it is not privileged as against us. Anyway, that is as far as I can take that. Now, I see the time, it is probably appropriate to move on to the next issue which was the section 50(4) ‑ ‑ ‑

KIRBY J: Just before you do that, can I ask you, in the respondent’s submission there is a great deal of attention to the decision of Justice Young and the decisions of Justice Gyles and so on on pith and substance and various other formulae that had been used. Do you have a formula that you urge upon us other than inconsistency and with a little bit of unfairness tacked on or is there any other way you can express the test because we have to try to express it for the judges below?

MR BEACH: The respondent has this nice dividing line between just substance and conclusion. I do not make those divisions. I say to you voluntary public disclosure of the gist, substance or conclusion of advice ‑ ‑ ‑

KIRBY J: Or any of the above.

MR BEACH: Exactly.

KIRBY J: Conclusion alone is enough, in your submission?

MR BEACH: Yes, that is right. That is so because the conclusion carries with it the essence and essence is another word for substance.

KIRBY J: But you do not need that to win your case because here your submission is that it was not just the conclusion, it went a little bit further than that. It revealed the names of the people who had looked, the grounds of the petition, the unanimity of the decision below and therefore by inference the rejection of each of those grounds.

MR BEACH: But it also was the sole factor that the Attorney seems to have taken into account. It is not as if he sort of broadened out the pool of factors he took into account, that seems to have been the sole factor with his statement of carefully considering to give it that sort of flavour.

KIRBY J: I am just wondering why you tack your flag to such an extreme mask when you do not have to in the case, but anyway.

MR BEACH: Well, the reason is because if your Honours say that it is just the conclusion that has been disclosed, then I am going to have to deal with that in the alternative.

KIRBY J: Yes, all right.

MR BEACH: So the first point is it discloses more than the conclusion. The second point is it only discloses the conclusion. In either case inconsistency is established because there was no endeavour to maintain confidentiality and no obligation for what the Attorney was doing. So it is rather the respondent that, in my submission, is injecting these types of distinctions which, with respect, ought not to be made.

Let me turn to the section 50(4) question. Our short point is that the Court of Appeal, in the absence of reviewing these specific documents, could not have formed the view that necessarily section 50(4) could not apply. Of course, that then takes you to the question of the proper construction of section 50(4). I think it is worth just going back to that. It talks about:

including power to decide that access should be granted . . . where the Tribunal is of opinion that the public interest requires –

We do not take issue with what has been said about require means need or a necessitation, so put that to one side. We also do not take issue with the proposition that you first need to work out whether the exemption applies before you are into the subsection (4) territory. The real question for debate, I suppose, is what does the expression “the public interest” require? Everybody makes the point, well, if you look at the section 32 exemption, any balancing of public interest has already been struck when you come to determine that there has been a privileged communication. So we all accept that the very claim for privilege is underpinned by public interest considerations and that it can strike at really the time that the purpose for the communication arises and we can all agree upon that.

When you get to section 50(4) though, that is looking not at all at the time when the purpose for the communication is formed, but rather at a later time. There is no reason why as a matter of statutory language you could not unhinge the competing public interest considerations that we have struck to find the privilege and reorder or rebalance or however you like to deal with the matter under section 50(4). So you do not have to necessarily come up with different public interest considerations that underpin section 32. You could come up with the same but say at a later time and for the purposes of section 50(4) you can re-weight or deal with them in a different fashion.

GLEESON CJ: You mean, for example, that events might occur which cast a different light on the public interest aspect, something that happened after the communication?

MR BEACH: Waiver here is classically the case. I mean, if one of the public interests underpinning privilege in the first place is to encourage confidential communications between a client and legal adviser for the purposes of the client knowing how to conduct himself, that public interest in maintaining confidentiality is looked at in a different timeframe and after the waiver when you come to section 50(4). It is not struck for all time at the time that you look at the original formulation of purpose. So it is wrong to say that merely – and this is what I think what the Court of Appeal did below – well, the competing public interest considerations that underpin privilege are struck at the time of the purpose for the communication. You cannot look at them again later under section 50. We say you can because they are looked at in a different timeframe and in a different context and the relevant context here is the Attorney‑General’s behaviour.

GLEESON CJ: Is it the case that ordinarily applications, petitions for mercy of this kind would come across the desk of the Solicitor‑General?

MR BEACH: I am not sure she has admitted that it did come across her desk, your Honour.

GLEESON CJ: I think that there are some jurisdictions at least in which ‑ ‑ ‑

MS TATE: Perhaps I could interrupt here to say, your Honour, it is not the case that petitions for mercy either come to the desk of the Solicitor‑General either as a matter of regular practice or, indeed, on any curious or exceptional occasion. In particular, this one did not come across the desk of the Solicitor‑General.

GLEESON CJ: Thank you, Ms Solicitor‑General.

MS TATE: I am sorry, your Honour.

GLEESON CJ: I only had in mind, Mr Beach, this, that if you substituted, for example, the Solicitor‑General for Ms Crennan, et cetera, you would have an original confidentiality in the Solicitor‑General’s advice, perhaps under section 32, perhaps under some other section as well, but then might you have a supervening event that could open up a line of argument under section 50?

MR BEACH: A supervening event that changes the nature of the question of the need to continue to preserve confidentiality because at the time of the privilege claim, you are looking at the purpose and the public interest struck then, but confidentiality and the purpose of it as to maintenance is not a once and for all proposition and that is of course what waiver is all about. So you come forward to today, there is no reason why we cannot re‑look at that public interest that originally underpinned the maintenance of confidentiality at the time the purpose for the communication arose. There is no reason why we cannot unhinge it and look at that in a different timeframe and with the benefit of looking at the conduct.

HAYNE J: You mention only one factor as bearing upon this rebalancing at a different time and that is the question of conduct. The hypothesis for consideration is that the conduct does not amount to a waiver because you never get to this question if there has been a waiver.

MR BEACH: Right. Let us assume that we lose on waiver so that we have to come up with ‑ ‑ ‑

HAYNE J: Yes.

MR BEACH: Let us assume, though, that underpinning our loss on waiver is implicitly a finding by the Court that the same public interest considerations that were struck at the time of the original purpose of the communication that that has not shifted. In other words, finding waiver means that you have the same balance that has been struck at the time of the original purpose. So let us make that assumption because it seems to be a good one. So we then have to find other public interest considerations and we do. We say the first one is the question of the transparency of the process that has been undertaken here by the Attorney-General.

So let us assume that under a view about waiver there is no waiver. Your public interest – and for the reasons that Justice Kirby was putting to me at the outset there is a public interest in having made this media release about the joint advice because it was perceived that there was a public interest in being transparent about this process – we say the disclosure may not have amounted to a waiver but it does relate to the question of transparency and what public interest is there in having incomplete transparency as opposed to complete transparency?

HAYNE J: Well, deal with it or not as you choose, it seems to me that you simply slide from the proposition that legal professional privilege is properly engaged, that is the consequence of a particular balancing of public interests, and then you assert through the use of the loaded expression “transparency” that somehow some other public interest balance is to be struck.

MR BEACH: Let me put greater content onto it then. We all accept that there has to be transparency in terms of the administration of criminal justice. It seems to have been a given by all of us and it seems to be what is the foundation of the Court of Appeal’s decision in DPP v Smith that we have given your Honours a reference to. Justice Ashley and Justice Bongiorno and Justice Maxwell said this process involving the exercise of the prerogative doesn’t involve the administration of criminal justice, therefore the types of public interest factors and transparency that go with that process can’t be carried here. In fact, I think Justice Ashley says, “Our process begins where the administration of criminal justice ends”. I think that is one of the expressions used.

HAYNE J: Prerogative mercy begins where justice, according to law, has ended.

MR BEACH: That is right. Now, you ask yourself though, so what? The fact that you might have transparency in the administration of criminal justice does not deny that you could, for similar reasons, even though it is not the same, have transparency when you come to the question of an exercise of royal prerogative for mercy, particularly when, as the respondent would have it, the process is unreviewable. If you do not accept that as a correct abstraction, focus on the facts of the present case. You have the Attorney-General actually putting out a media release.

So forget whether my abstraction is good or not; it seems that what underpins his media release is his own perception that it was in the public interest that people ought to know; one, the fact that the petition had been refused; two, that it was on the unanimous opinion of three silks; three, that it was unanimous as to all grounds; four, that that was the sole repository of his recommendation; five, a back-to-back recommendation from him to the Premier, Premier up to the Governor. So do not accept my abstraction about it. Why ought you not say that there was a public interest? If transparency is partly underpinning his behaviour, why ought there not be transparency for the balance?

KIEFEL J: But that is really by way of saying that there is no public interest in maintaining the privilege. That is really all it comes to, is it not?

MR BEACH: No, it is a separate point here.

KIEFEL J: It seems the same thing if you are relying upon the Attorney‑General’s conduct.

MR BEACH: I think it is, with respect, different because Mann v Carnell was only striking at two public interest considerations in dealing with waiver and I am adding a third factor which is the question of transparency introduced by the process by the Attorney‑General. So I am adding a third public interest factor which is none of the business of waiver.

KIEFEL J: Is that how you would describe the positive – if you transferred from a negative description of maintaining privilege as going to the public interest question under section 50 and converted it to a positive public interest, you would say transparency is that public interest?

MR BEACH: Yes, I have moved outside the main tenants of confidentiality which is one of the things underpinning the original waiver.

KIEFEL J: Is there a competing public interest in the seeking of confidential advice in the considerations going to the exercise of the prerogative?

MR BEACH: That goes to a contents question. It may be that there is something still within that advice that is sensitive or contemporary or something for the future which may counterbalance public interest in transparency ‑ ‑ ‑

KIEFEL J: I will put it another way, it might be easier to answer. It would not be in the public interest for the Attorney not to wish consideration to be given to petitions or recommendations.

MR BEACH: We can all agree with that.

KIEFEL J: It would be in the public interest for the Attorney to seek appropriate advice in relation to any legal issues that were raised.

MR BEACH: I agree with that, but where does that take you?

KIEFEL J: Then the question is, how does one maintain that public interest and is it not maintained in the same way as legal professional privilege is? Public interest continues, it cannot be eroded.

MR BEACH: I am putting it back to you the other way, and I hope I am not being evasive about it. I understand where you are coming from. You are saying if no waiver, then there is no additional room for the transparency argument. That seems to be what underpins that line of question and I suppose my point is, what underpins a no waiver finding has nothing to do with questions of transparency or good public administration.

KIEFEL J: No, I suppose what I am really saying to you, Mr Beach, is that your argument really does not suggest much more than that there is no public interest in maintaining confidentiality.

MR BEACH: I am saying that there is a public interest ‑ ‑ ‑

KIEFEL J: Because of the Attorney’s and therefore your argument about waiver is the same thing.

MR BEACH: Well, I do not think it is the same thing because they are looked at in different times and in different contexts. But, look, I have put that point. But I suppose we are coming back to an anterior point which is, how can the Court of Appeal decide for itself the no public interest override without looking at the documents?

HAYNE J: Was there anything else in play in the Court of Appeal other than the Attorney‑General’s conduct as relevant to the application of section 50(4)?

MR BEACH: Yes, there was the historic as opposed to future. So that when you come forward to the time the Tribunal was dealing with section 50(4), or come forward today, you are looking about matters potentially all historic, whereas if you are looking at section 50(4) during the process where the exercise of the prerogative had not occurred, you would be looking at it differently. So the historic, contemporary or future divide is one factor from the contents that would impact upon how the section 50(4) override works and, of course, that is what the Tribunal said.

Now, the Court of Appeal has disagreed with that, but they seem to have disagreed with that at a more general level on the privilege exemption that it does not matter whether something is historic, contemporary or future, if one is privileged, always privileged, so they seem to have taken that particular approach. So that is the first point.

The second point is – and we said this to the Tribunal and this is one of the rulings of the Tribunal – we have an advice, the conclusion of which is disclosed, and you have other advices. I suppose it is another way of putting the transparency argument that you should have at least the advice there to be looked at and you should see – and this is probably more an associated waiver argument – the totality of all advices which are, of course, some of the other documents that we are looking at. To determine conflicts or not or whether the joint advice is, as what the Attorney‑General has said it is, you need to look at the content.

We had assumed below that when the Court of Appeal found an error of law by the Tribunal on the section 50 point, that it would all go back to the Tribunal to be looked at again on remitter with the documents to be analysed in that context.

KIRBY J: The fact that the Court of Appeal itself did not look at the documents, was that in any way connected with their view that that was a limitation on them because they were only looking at whether there was an error of law?

MR BEACH: They seem to have taken the view that if they the Court could dismiss each of the Tribunal’s findings on the public interest factor under section 50(4), then QED there was no other argument that could ever possibly be put, and so they were in as good a position as the Tribunal to decide the matter and to do so without inspecting the documents.

KIRBY J: Part of the public interest is the legal professional privilege; that is clear.

MR BEACH: At the time the purpose is ‑ ‑ ‑

KIRBY J: Yes, but you have added this second one about the public interest in transparency of decision‑making processes in a modern society. Is there anything else? Are there any other public interests?

MR BEACH: I am not putting it in the ether like that. That was something that actually Justice Ashley did. I am putting it targeted to here. The Attorney‑General has publicised aspects of this particular process for Mrs Osland. I say there is a public interest in having complete transparency for the process involving Mrs Osland. I am not saying that in all cases but I am saying in this case on these facts.

KIRBY J: The closer you get to Mrs Osland, the closer you get to the public interest in legal professional privilege, whereas if there is another public interest, as at least I would be inclined to think there may be in the transparency of government in contemporary society, then, where a matter has been a subject of public controversy, where there are grounds of petition which touch on that controversy, quite apart from what the Attorney‑General said, at least it is arguable, it seems to me, that there is a public interest in transparency. It is a question of whether you approach these problems asking why should it be so or whether you ask them asking why should it not be so? I am inclined to the latter view myself.

MR BEACH: We say that they had the onus from the section that I was pointing out earlier. We accept what you say. On another view you might say the actual finding of privilege or waiver is very much an individual thing, although the concept of privilege is underpinned by public interest considerations. When you are looking at a particular communication, it is very much a private thing between the party claiming the privilege and the party said to waive, whereas the public interest in transparency is much broader than even though ‑ ‑ ‑

GUMMOW J: This is where transparency is a political slogan and the Act obviously gives with one hand the objectives and takes it away.

MR BEACH: But can I say, you must though give room to section 50(4) because ‑ ‑ ‑

GUMMOW J: That is what I am trying to get to. Are you saying that there is a public interest in the administration of the prerogative of mercy?

MR BEACH: Yes.

GUMMOW J: Which may prevail or be given greater weight in the public interest in the observance of the legal professional privilege of the Minister upon whom rests the task of advising the Crown in relation to a particular implication of the prerogative of mercy.

MR BEACH: On the facts of this case, yes. I do not have to put it more generally. I will put it more generally.

GUMMOW J: You are then getting into a State constitutional law question, are you not, as to the reviewability of the prerogative of mercy? We are in Bentley territory, are we not?

MR BEACH: Not necessarily. That is why I say on the facts of this case ‑ ‑ ‑

GUMMOW J: I am not putting it adversely to you, but I think maybe you have to face up to it.

MR BEACH: I do put that it is reviewable and so I do accept the broader public interest factor, but I do not need to put all my eggs in that basket. I can say it is unreviewable but on the facts of this case, because of what the Attorney did in descending into the marketplace with his media release, there ought be transparency for this particular process and it matters not that it only ultimately affects one member of the public.

GUMMOW J: We have to find a principle. You do not usually talk about the public interest in relation to (a) and (b). It is usually something above that.

MR BEACH: If I was to say the public interest in the administration of justice, it still exists for one prosecution.

GUMMOW J: It is not justice. Justice has stopped. That is the problem.

MR BEACH: It can still exist for one person is what I am saying and I am saying the public interest in the proper administration of these applications can be as it affects one person here. I will put that general principle and I will put that the prerogative is reviewable, but I do not have to put all my eggs in that. I can say it is unreviewable and I can still put that point in relation to this case because of the Attorney‑General’s behaviour in publishing the media release.

HAYNE J: As to reviewability and Bentley, Bentley yielded no order. Bentley was a classical advisory opinion and nothing more.

MR BEACH: That is true and it was designed, I think, to encourage the then Home Secretary to take a practical view and craft the pardon to ‑ ‑ ‑

GUMMOW J: To be specific, there was no declaration of right.

MR BEACH: No, but what they did say was that there was ‑ ‑ ‑

GUMMOW J: I do not know what they were doing.

KIRBY J: This was under United Kingdom legislation.

GUMMOW J: No.

MR BEACH: No.

KIRBY J: I thought it was.

MR BEACH: I did not think so. But what they did say was ‑ ‑ ‑

KIRBY J: I looked at this case once. I think you should check that. Do not do it now, you do not have the time.

MR BEACH: I have a copy of it, because Justice Hayne was asking me that same question and I looked at it and I thought the answer to that was no, but I will look at it again.

KIRBY J: I thought that they created a special sort of tribunal to deal with it and Lord Bingham I think then in the Court of Appeal, I am not sure, dealt with it. He sat on the Bentley Case, did he not?

GLEESON CJ: No, Lord Justice Watkins gave the leading judgment in the Bentley Case.

KIRBY J: I am pretty sure that there was something that Lord Bingham sat on – in Bentley.

MR BEACH: It was Lord Justice Watkins.

KIRBY J: We might be talking about different matters.

MR BEACH: Your Honour, they do not talk about any statutory regime, they talk about it as being reviewable. They would not set out what the criteria was but they were suggesting to the Home Secretary that there are different ways to ‑ ‑ ‑

KIRBY J: What year is that review?

MR BEACH: This is 1993 the decision was handed down.

KIRBY J: No, I think there is a later one where Lord Bingham sat in it. Bentley was the man who was shot by the police in – or rather, he was the person who did not fire the shot, is that correct, but he was hanged?

MR BEACH: That is right.

KIRBY J: Whereas the one who fired the shot, being under age, was not hanged?

MR BEACH: That is right.

KIRBY J: Yes, I am pretty sure Lord Bingham dealt with that.

GUMMOW J: Anyhow, I am just reading from the Law Report at page 351 and it said, “Iris Pamela Bentley” – who I think was Bentley’s mother – “pursuant to leave granted by the Divisional Court” – and you need leave under the English Rules of Court to seek judicial review – “sought judicial review by way of (i) a declaration”, et cetera. They do not actually seem to have made a declaration.

MR BEACH: No, what they seem to have done is given a bit of off‑the‑cuff advice to the Home Secretary that he could tailor the pardon to recognise something to do with there may not have been moral culpability or something. I think he ‑ ‑ ‑

HAYNE J: A pardon was subsequently issued as to the sentence; comment “Oh”.

MR BEACH: Yes.

GLEESON CJ: There is a passage from a New Zealand judgment that is quoted with approval in Bentley that seems to suggest reviewability, is there not?

GUMMOW J: Burt v Governor-General [1989] 3 NZLR 64; [1992] 3 NZLR 672?

MR BEACH: Yes, that is right. Going back to what Justice Gummow asked me, I put the question on those two bases.

GLEESON CJ: Mr Beach, I asked you earlier about the extent to which the petition was in the public arena at the time of the press release. To what extent, if at all, were the contents of what is described by the Tribunal as the VGS advice and the Redlich advice in the public arena at the time of the press release?

MR BEACH: It is not. The Redlich advice of course preceded the joint advice and seems to have been a very – I think it is described by the Tribunal as a set of options. That is one of the exempt documents; that is not in the public arena, and neither is the VGS advice.

GLEESON CJ: Rightly or wrongly, the Tribunal said, “This is a unique case and one of the unique aspects of it”, said the Tribunal, “was the need to clear the air”, and the existence of those other advices – the VGS advice and the Redlich advice – seems to have been regarded by the Tribunal as part of what was in the air that needed clearing.

MR BEACH: Your Honour was making a point that I was going to make too, which is the Tribunal was very careful to express them itself but it seems that it did read the contents of all of these other documents and then held that there should be a clearing of the air, and you say, well, what is implied within that? What is implied within that is that the Tribunal is likely to have read these other documents and saw that there was a lot more doubt and uncertainty and differences in the advice given to the Government, because that was the only way he could then justify his conclusion that you need to clear the air, all of the advices should be put into the public arena if the Attorney-General is going to rely upon one. It is a type of associated waiver argument, I suppose, of the type that the Court of Appeal dealt with in the British American Tobacco Limited v Cowell context.

So that is what I would read in when it said, “Beach, you are fishing and you don’t know anything”, or you have the Tribunal saying, “I’ve read all the documents, the contents seem to be pretty historic and also it may be a good idea to clear the air and put all this material into the public arena, given the media release is there”. That just demonstrates that I do not have to deal with civil litigation concepts of fishing. They are irrelevant. But if I had to, go back to what the Tribunal has gleaned from the contents of the documents, at the end of the day it may be that the Court here does not have to express a view about all the ins and outs of the proper construction of section 50(4) because our short point is they did not look at the documents.

They arrogated to themselves the task that should have been left to the Tribunal, which was to find legal error and send it back to the Tribunal to look at the matter. That is what we say ought to have been done. That is what we assumed and that is why the Court of Appeal were never asked to actually look at the contents of the documents because, so far as we were concerned, we thought we were there for legal error in terms of the Court of Appeal looking at any legal errors, points of law that had been made by the Tribunal in dealing with the section 50(4) question.

I do not know whether I need to go through anything your Honour said in McKinnon v Secretary Department of Treasury (2006) 228 CLR 423. I know that your Honour the Chief Justice and Justice Kirby criticised the use of the language “balancing public interest” when you had the foundation of the statutory purposes, but I do submit that section 50(4) is a little bit different in terms of its context.

Put aside the question of balancing, you are looking at section 50(4) as public interest considerations beyond those underpinning the privilege or the waiver because section 32 was not a provision that was excluded from section 50(4). Parliament must have intended that for a privileged document that there would be some public interest considerations that would override, but we have given a few.

But if your Honour Justice Kiefel says to me, well, you are really no more than trying to express nicely another language by transparency the sort of argument that underpins waiver, then you ask yourself, well, if I am wrong and your Honour is right on that, well, where is the additional dimension to be given to section 50(4)? How is the intention of the legislature to be looked at because it does intend that there would be public interest considerations beyond those underpinning the section 32 privilege.

Indeed, there are other exemptions that only apply where disclosure is contrary to the public interest and yet you also have the public interest override apply, so it is quite clear that the public interest considerations in section 50(4) are quite different to the contextual public interest considerations that underpin the particular exemptions. That must be the case otherwise you could not neatly fit these provisions together.

KIRBY J: Does the discussion in DPP v Smith throw any light upon any extra dimensions of public interest that section 50(4) is protecting, because there is, I think, a little strength in your last submission that if there is no other public interest, then the logical thing would perhaps have been to exclude review?

MR BEACH: Yes, in Director of Public Prosecutions v Smith [1991] 1 VR 63 ‑ ‑ ‑

KIRBY J: Which, by the way, the respondent appears to accept as stating the law.

MR BEACH: Well, one of the public interests that they say is:

a term embracing matters, among others, of standards of human conduct and of functioning of government and government instrumentalities –

wellbeing of those governed, but relevant to the present case, they were relevant to the Smith Case, they were saying that it was the appearance of justice, because in that case ‑ ‑ ‑

KIRBY J: What is the critical page, do you know, where this is dealt with? It is 75, I think.

MR BEACH: Yes. If you go to page 75 between lines 10 and 35, and also ‑ ‑ ‑

KIRBY J: Is that something you rely on, the point that the interest is the interest of the public as distinct from the interest of the individual because the conventional doctrine is that legal professional privilege belongs to the holder of the privilege, the individual?

MR BEACH: Yes. The fact that it is just an individual that is the subject of this process here does not foreclose that it is in the broader public interests that there be the transparency, like the administration of criminal justice you are looking at the broader public interest even though it might only relate to one person. At page 77, lines 5 to 29 there it was the factor of the appearance of justice because what had happened is that the documents being sought related to a decision of the DPP to enter a nolle prosequi against McArdle and there had been advices obtained from a Crown Prosecutor and Crown counsel and there was a suggestion that they were less than independent and so it was thought that the public interest override should operate to explain transparently why it was that the nolle prosequi had been entered and even though those advices were the subject as a section 32 exemption, there was a higher public interest in the impartiality and the appearance of justice.

That is not too far away from what we are doing here. It is not so much a question of impartiality; it is more a question of transparency. I agree it is not the administration of the justice but it is not too far away by analogy. I think the respondent is careful to say it is completely irrelevant dealing with two different processes and all the rest of it but, in my submission, it actually provides more support for our argument than the contrary.

There are also some passages in the Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331. That was not dealing with a section 32 exemption. I will give your Honours the passages. Paragraphs 21 through to 24 deal with the process that you ought undertake under section 50(4). That is not controversial. Paragraph 29, “That the ‘public interest’ may wear different aspects” and there is a reference to Director of Public Prosecutions v Smith.

GUMMOW J: Have you come across a Western Australian case called Manly v Ministry of Premier & Cabinet (1995) 14 WAR 550.

MR BEACH: No, I have not, your Honour.

GUMMOW J: It is supposed to apply Smith. I just want a better look at it.

MR BEACH: Then, paragraphs 34 to 35 about the meaning of the word “requires”. I am just wondering about the time. Probably it is appropriate for me to finish by saying something about section 30 just for a couple of minutes, if that is convenient to the Court. The respondent says, “Well, look, even if we win on the waiver argument, we have to go back and deal with section 30.” If your Honours go to section 30.

HEYDON J: Is section 30 dealt with in your written submissions?

MR BEACH: It is referred too in our reply submissions at the very last paragraph. We first made the point that the three silks are not officers as defined under the Act and that takes you back to the definition of “officer”. Can I make some other points. If your Honours just focus for a moment on section 30(6), it says that after 10 years we get the document automatically. So let us assume that we win on waiver but we are sent back to the Tribunal for the section 30 exemption. With respect, what an exercise in futility. We are more than seven years down the track – not quite seven years – from the time of the joint advice ‑ ‑ ‑

KIRBY J: You are here on a point of principle and you are taking the point of principle on your second argument and now you are raising an issue of pragmatics. If we are going to deal with it, I would have thought we would have to deal with it as a matter of principle and what is good for you is good for the other side. If there is a matter that is outstanding, it is better that they all be sent back to the Tribunal.

MR BEACH: Well, let us then go back to section 30(1) and the elements. If your Honours have found that there would be a waiver, this is a predicate that the section 32 exemption does not apply, then how would subsection (1)(b) second limb operate?

KIRBY J: Would this only go to document 9?

MR BEACH: Yes.

KIRBY J: Would the point on “officer” be relevant to answer the other matters going back?

MR BEACH: No, no, this is all relating to the one document, document 9, the joint advice. If we win on waiver, they say section 30 applies to that one document,, and we have three responses. The first two are questions of principle and the third is a pragmatic one. The first one is, well, the silks are not officers as defined and, secondly, if we had won on waiver, how would (1)(b) operate? How could they go back and seriously argue to the Tribunal when they have lost on waiver that disclosure would be contrary to the public interest? I have not heard how that is to be articulated. The third point was a practical one. Obviously, this process has been very tortuous for the appellant.

KIRBY J: Where is the 10‑year rule?

MR BEACH: Subsection (6).

GLEESON CJ: Is that a convenient time, Mr Beach?

MR BEACH: Yes, it is, your Honour.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GLEESON CJ: Yes, Mr Beach.

MR BEACH: There is just one matter and then I will sit down. We were discussing section 30 before lunch and I have had a further consideration of it over lunch. I think we want to withdraw our position on section 30 because it may apply to others of the exempt documents. So if we win on waiver, we accept that the document would have to go back to be dealt with under section 30. And the other documents, if we win on the section 50 point, we would also have to go back not only on section 50 but on the section 30 exemption. There just seems little utility in separating out document 9. So we withdraw what I said before lunch and in the last paragraph of our reply on section 30 and take that off the table.

GLEESON CJ: Thank you. Solicitor‑General.

MS TATE: May it please the Court. It is our submission that it was open to the Court of Appeal to apply the Mann v Carnell inconsistency test in the manner in which it did so as to conclude that it was not inconsistent with the maintenance of legal professional privilege for the Attorney‑General to disclose the fact of the joint advice and the conclusion of the joint advice that the appellant’s petition for mercy should be denied.

Might I begin by identifying the area which we submit is common ground between the parties. First, the appellant does not contend that there is an invariable rule at common law that the voluntary public disclosure of the gist or conclusion of a legal advice amounts to an imputed waiver of legal professional privilege in the whole advice.

In particular, the appellant is not heard to contend that the approach adopted in Bennett v Chief Executive Officer of Customs [2004] 140 FCR 101 is to be read as a rule of general application. Accordingly, they do not and cannot contend that the judgment of the Court of Appeal fell into error in failing to follow an invariable rule or what has sometimes been called the Bennett principle.

Second, the appellant accepts, as she must, that at common law imputed waiver of legal professional privilege is governed by the test of inconsistency articulated in Mann v Carnell (1999) 201 CLR 1, and that is an inconsistency between the conduct of the client and the maintenance of confidentiality in the communication. It is sometimes described as an inconsistency between the conduct of the client and the purpose of the privilege in the circumstances of the case.

Thirdly, the appellant also accepts that while nebulous or overriding principles of fairness are not the touchstone for determining inconsistency, considerations of fairness may yet be a relevant factor in determining whether there is an inconsistency but whether fairness will be relevant will depend upon the circumstances of the case, and with that we agree.

The errors of law for which the appellant contends on the question of waiver appear now to be reducible to three. The first amounts to a claim that there was a misapplication of the Mann v Carnell test by the learned President because his Honour injected more flexibility into the inconsistency test than is warranted. We describe this as the flexibility objection and it was reformulated and reinforced today.

The second error alleged to have been made is that his Honour focused upon and emphasised the Attorney‑General’s subjective purpose in making the disclosure rather than upon his conduct objectively considered. The third error alleged is that while the appellant concedes that the circumstances of the case made fairness a relevant consideration, it is alleged that the analysis by his Honour centred upon fairness to the disclosing party and not fairness from the perspective of the appellant.

We will seek to rebut each of those three contentions and after dealing with each of those contentions on the question of waiver, we will turn then to the question of section 50(4) of the Freedom of Information Act (Vic), the public interest override, and whether it was open to the Court of Appeal, without inspecting the exempt documents for itself, to find that the remittal to the Tribunal would be futile because there was no basis upon which the Tribunal could find that in the circumstances of this case public interest required that access be given.

Before turning to the flexibility objection, however, might I make some general observations by way of background. There is no general right at common law to have access to documents including legal advices obtained by the Government in the course of public administration. So absent the statutory right conferred by the Freedom of Information Act to have access to documents that are not exempt, the appellant would have no right of access to the legal advice obtained by the Attorney‑General in the course of considering her petition for mercy.

We contend that decisions made in the exercise of the prerogative power of mercy are judicially unreviewable and we are aware that, by the comments made by my learned friend this morning, that issue is directly in contention. Now, the support for our proposition is firstly to be found in the judgment of Justice Bongiorno at pages 87 to 88 of the appeal book at paragraphs 126 and 127 where his Honour considers this very point. His Honour there says:

If the prerogative of mercy is indeed part of the criminal justice system at all, it is a part distinct in function and process from all that goes before it . . . The function of the criminal justice system is to determine guilt or non‑guilt, and, if applicable, to impose sentence; its process is open, public and examinable at almost every point. It is only when that process is complete that the Sovereign can be petitioned to extend mercy to the person convicted . . . No question of legal rights is involved. No reasons need be given for the decision taken, whether that decision is to exercise or not exercise the prerogative or to invoke or not invoke s 584 of the Crimes Act 1958 to involve this Court [the Supreme Court of the Court of Appeal] or the Trial Division of the Supreme Court in the process. The decision itself is not reviewable, nor are the reasons, motives, or intentions of the Crown’s representative. Why then should the advice the Attorney‑General received before advising the Crown’s representative to deny the petition be placed in the public domain?

Now, your Honours will see at footnote 117 Justice Bongiorno sets out a line of authority in support of the proposition that a decision made in the exercise of the prerogative of mercy is not judicially reviewable and that there is no obligation to provide reasons and though that line of authority, while it starts with the decision of Horwitz v Connor 6 CLR, also considers Full Court decisions of the South Australian Supreme Court and decisions of this Court as well.

Now, his Honour Justice Bongiorno having considered the non‑reviewability of decisions made in the exercise of the prerogative of mercy, then goes on in paragraph 127 to talk about a situation in which the opinions might be disclosed into the public domain and, in particular, he considers whether there might be any difference of shade of disagreement between the opinions. He says:

If, in this case, the opinions received by the Attorney‑General were not all in agreement or they, or some of them, advised a course other than that which the Attorney‑General finally took, the release of those opinions would enable a political collateral attack on the exercise of the prerogative of mercy which would have the effect of changing its fundamental nature. It would cease to be the exercise of the unexaminable power of the Sovereign to pardon or not (or to take any other course) but would become merely another administrative decision of government, which the Attorney‑General would have to defend in the public arena.

KIRBY J: But if it is an unexaminable prerogative of the Sovereign. why then did the Attorney‑General think it necessary to explain it in his press release? Why bother telling the people anything? I mean, why not just say, “Well, the Queen has decided” or “The Governor has decided. That’s it. Don’t trouble us.”?

MS TATE: Your Honour, we would submit that the Attorney‑General clearly made a decision that he would disclose at least the fact of the advice and the conclusions where even if one considers that in the narrow aspect, the conclusions of the advice, as a means of demonstrating that the Government had acted in a non‑arbitrary and reasonable way in that it had acted upon advice given by independent counsel and indeed ‑ ‑ ‑

KIRBY J: I am not criticising him for revealing that. On the contrary, I think that is an attribute of modern government but once he does that, he is signalling that this is not a secret enclave of Crown servants meeting in the privy chamber of the Sovereign, it is a part of the process of modern government. He is putting it into the public domain himself.

MS TATE: We would say, your Honour, that simply because the prerogative of mercy is not reviewable does not preclude, of course, a decision being taken by the Attorney‑General as first law officer of the Crown to disclose a portion of an advice with the purpose of demonstrating that the Government had acted in a responsible fashion. We say that the unreviewability of the exercise of the prerogative of mercy does not preclude that stance.

We would also say, your Honour, that the stature of the counsel from whom the Attorney sought the advice was mentioned really in order to reinforce the demonstration that the actions taken by the Government had been reasonable and responsible.

GLEESON CJ: Was this a disclosure of process?

MS TATE: In part it is a disclosure of process, your Honour. Indeed, your Honours were taken to the full press release earlier today and in that full press release it is made clear that, in a sense, much more of the process in that the petition for mercy had originally been filed with the former Attorney‑General. The current Attorney‑General then approached the opposition. After approaching the opposition he had determined that a panel of Queen’s counsel should consider the questions, what one might consider to be, as it were, a Full Court to consider those questions and then on receiving the advice, he had given careful consideration to it. Indeed, it is in part a disclosure of the general process.

KIRBY J: It would be fair to say, would it not, that Mrs Osland’s case over the past 10 years or so has been a lively matter of public discussion. I have seen myself many items in the newspapers and so on. So the Attorney‑General’s response was doubtless, in part, because of the fact that there was a public interest in the sense of an interested public out there watching it.

MS TATE: Your Honour, within the context of the Freedom of Information Act and section 50(4) a distinction has been drawn between what is in the public interest and what it is that the public is interested in.

KIRBY J: I realise that, but the more the public is interested, the more likely it is that the public is not stupid but has some interest because it affects their perceptions of their polity, their nation, their State.

MS TATE: Your Honour, we would say that there could be no inference drawn from the press release that the Attorney‑General considered that it was in the public interest for there to be, as it were, disclosure of the whole of the advice. Clearly, no such assessment had been made. There was interest from the public in the matter and we would say that that would be the full sum of the inference that could be drawn.

GLEESON CJ: I think it is common ground, but if the Attorney had simply disclosed the process and said, “I’ve set up a panel of independent barristers and I’ve taken an opinion from them and having received their opinion, I’ve decided to disallow” et cetera, there would be no question of waiver. The question arises because he said what he said about their response to the petition. At the time he said what he said, the contents of the petition, and in particular the grounds to which he referred, were not known to the public.

MS TATE: Yes, your Honour.

GLEESON CJ: Although they later became known because Mrs Osland or her friends made them public. That being so, would someone who read the Attorney‑General’s press statement know or, indeed, have any inkling of the reasons for the Attorney‑General’s decision?

MS TATE: We would say no, your Honour. We would say that there would be no inkling as to the basis of the legal advice, what the consideration was, for example, of the ground in relation to the fresh evidence or the ground that your Honour has referred to, ground 4, with respect to the treatment of the appellant by the community.

GLEESON CJ: But if someone said, why did the petition fail, what would a reading of the press release tell you in answer to that question?

MS TATE: We would say the press release would really tell you nothing, other than the general process that had been engaged in, including the engagement of legal counsel.

KIRBY J: No, but it tells you one extra fact of great importance, namely, that the petition set out six grounds and which grounds had been rejected by the panel of distinguished lawyers and, therefore, that if you really wanted to know what had happened, if only you could get your hands on them – the six grounds and the negative response to them – would give you a pretty good clue as to the reasons for rejection. That has been volunteered into the public domain by the press release of the Attorney‑General.

MS TATE: But, your Honour, we would say that there would be no additional information content if the press release had said that there were 48 grounds that the appellant relied upon in her petition for mercy and each of the 48 grounds had been rejected or, indeed, if the press release had not mentioned that there were any particular grounds, simply that there was the fact of the petition of mercy and that the advice was that the petition for mercy should be rejected. We would say that there is no additional incremental information content conveyed by the fact that there were a particular number of grounds that the appellant relied upon.

KIRBY J: You see, I am torn here between on the one hand appreciating the Attorney‑General as having made the statement but on the other hand feeling – and I would not want to force things back to simply announcements – a petition was lodged, it has been rejected, the Governor has been advised to dismiss it. That would not be a good development, I think, but once the Attorney does put it into the public domain that there were six grounds, that they later came out apparently, and that must have been thought as a possibility, then he in a sense is opening it up.

MS TATE: We would say no, with respect, your Honour. In fact, my learned friend said this morning that had the Attorney‑General simply referred to the advice that he had obtained and if he had said that he had taken that advice into account, that that would not constitute the inconsistency on the basis of which there would be an imputed waiver by operation of law.

KIRBY J: We could not draw any inference from the fact that everything happened within three days; advice, Premier, Governor?

MS TATE: No, your Honour. Your Honour, we would say that the press release only stated a further piece of information to a very small increment beyond that to which my learned friend gave a concession, and reading from the press release at page 43 of the appeal books, and that was that the Attorney said:

This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied.

I have dealt with that. Then he goes on to say:

After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.

Now, as my learned friend said, if there had only been a reference to the advice and a statement that the Attorney‑General had taken that advice into account then there would have been no waiver on his analysis. We would say that all that is added to that hypothetical is that the Attorney has said that he has carefully considered the advice, not simply taken the advice into account, but carefully considered the advice. We would say that on no analysis ought that to provide the additional increment from which one can infer inconsistency and then waiver.

But if I could just complete the point in relation to Justice Bongiorno’s consideration of the unreviewability of the prerogative of mercy. Justice Bongiorno makes the point that if these opinions could be released, then the vice that that might carry with it would be that it could enable, or would enable, a political collateral attack on the exercise of the prerogative of mercy.

Now, if your Honours consider paragraph 9 of the appellant’s reply submissions, it is at paragraph 9 that the appellant sets out precisely why it is that the appellant seeks access to the advice. In the second half of paragraph 9 in the appellant’s submissions they say that:

In such circumstances, it was unfair not to permit the Appellant to have access to that advice –

and then they say “to”, so this is their intention –

to:
(a)verify whether it was unanimous or not, and on each separate ground;
(b)ascertain whether it proceeded on any misconception of any evidentiary or legal question –

that is, a potential challenge to the legal integrity of the advice. And thirdly, the third objective is to:

(c)ascertain whether it raised any doubt or uncertainty inconsistent with the Attorney’s media message.

GLEESON CJ: Solicitor‑General, take a hypothetical case, not the present.

MS TATE: Yes, your Honour.

GLEESON CJ: What would you say if an Attorney‑General made a press release in which he said, “There has been a petition for a pardon on the ground that fresh evidence not available to the Court of Criminal Appeal has demonstrated there was a miscarriage of justice. I’ve taken advice from senior counsel and have been advised that there is no substance in that and, accordingly, I have recommended to the Premier that the petition be rejected”? What would you say about that case in terms of waiver?

MS TATE: We would say, your Honour, that if there was no specificity as to the fresh evidence which the petitioner was relying upon that one would not be able to read that press release and ascertain from the press release itself what was the basis of the advice. We would say in those circumstances that there was no disclosure of the gist or substance of the advice. I will return to that question perhaps later when I am considering the terms of the Evidence Act which, of course, does use the expression “substance” and there is an unresolved question in the authorities as to precisely what the degree of disclosure has to be before one can infer that the substance has been disclosed.

We would say here, your Honour, that the three objectives that have been identified by the appellants as objectives that they would seek to pursue if they obtained access to the advice are objectives which amount to a political collateral attack on the exercise of the prerogative of mercy.

HAYNE J: This notion of political collateral attack appears to merge two radically separate ideas. A political accountability of a responsible Minister in the system of responsible government, political accountability on the one hand and collateral attack being a concept concerned with attack in legal proceedings. Now, what do you mean by this combined concept “political collateral attack”?

MS TATE: Your Honour, the expression of the combined concept “political collateral attack” is an expression used by Justice Bongiorno.

HAYNE J: I understand that.

MS TATE: To that extent I was depending upon ‑ ‑ ‑

HAYNE J: Just so, and his Honour goes on in the paragraphs to which you have taken us to speak of matters of political responsibility and the like and my question to you is, apart from what his Honour has said, is there not a merger of radically separate and distinct ideas?

MS TATE: There is perhaps a merger of distinct ideas, your Honour, in that the objectives that the appellants have identified are objectives which we would say are clearly one political objective, certainly in relation to casting doubt or uncertainty on the Attorney’s message. We would also say there is the curial or legal form of challenge which seems to be contemplated by the first two objectives and which would no doubt be supported by my learned friend’s assertion that there be an attempt at the judicial reviewability of the advice.

HAYNE J: As to political accountability, if the Attorney said nothing, made no press release he would still be amenable to questions in the House designed to elicit whether the petition had been dealt with and then be amendable to the processes of a House of the Parliament in consequence of whatever answer he gave, would he not?

MS TATE: Yes, your Honour.

HAYNE J: So we come then to the notion of collateral attack suggesting that there are engaged some legal criteria which are relevant to the exercise of the prerogative of mercy and that, I would have thought, was a much more disputable proposition than that a Minister in this system of government is accountable to Parliament.

MS TATE: We certainly accept that the Minister is accountable to Parliament, your Honour, and we dispute the assertion that there is any legal criteria which attach to an exercise of the prerogative of mercy. We would say, indeed ‑ ‑ ‑

GUMMOW J: There might be a question as to the content to the prerogative in Bentley but the hook on which Bentley seems to have hung was some apparent view taken by the Home Secretary as to how far the prerogative extended. So that is a sort of a constitutional question.

MS TATE: Yes, your Honour.

GUMMOW J: But if you are not in that area, you say, well, so be it?

MS TATE: We would say, yes, so be it, your Honour. And, of course, we accept that merely because the power that is being exercised is a prerogative power does not in itself preclude that exercise of the power from being judicially reviewed and, of course, we accept what was said in FAI Insurance v Winneke and we accept what was said in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374. But in Bentley, your Honour, there was the further question as to whether a particular exercise of the prerogative power of mercy could be susceptible to the judicial process.

KIRBY J: Which Bentley are you referring to because my memory of Bentley was right. There was a later matter that came before the Court of Appeal Criminal Division in England. It is R v Bentley (Deceased) [2001] 1 Cr App R 307 and it arose under a new section of the Criminal Appeal Act 1995 of England which set up a Criminal Cases Review Commission which in turn had a power to refer certain matters of conviction in cases considered possibility unsafe to the Court of Criminal Appeal. So it was not under the prerogative at all it was under – at least the later Bentley – the provisions of the statute established in that respect in the United Kingdom.

MS TATE: Yes. If I could hand to your Honours a copy of Bentley [1994] QB 349. The first Bentley Case, anyway, your Honour, was a case where it was an exercise of a prerogative power. If I could hand copies to my learned friends. It is at page 363, the top of that page, at about point 2 after referring to the CCSU Case, where the court said that:

The C.C.S.U. case [1985] A.C. 374 made it clear that the powers of the court cannot be ousted merely by invoking the word “prerogative.” The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill‑equipped to do so? Looked at in this way there must be cases in which the exercise of the Royal Prerogative is reviewable, in our judgment . . .

We conclude therefore that some aspects of exercise of the Royal Prerogative are amenable to the judicial process. We do not think that it is necessary for us to say more than this in the instant case. It will be for other courts to decide on a case by case basis whether the matter in question is reviewable or not.

Of course, as was mentioned earlier today, in Bentley there was no declaration of right issued by the court and, in effect, it was simply the making of an advisory opinion.

KIRBY J: But if the three person panel had come to a different view, then presumably the Minister would have invoked the powers under the Crimes Act (Vic), section 584, and referred the matter to the Court of Appeal, I assume. I do not know.

MS TATE: Indeed, that may be the case but ‑ ‑ ‑

HAYNE J: Why? Why would it have been the case? What justiciable question could have gone forward to a Court of Appeal for determination as on appeal, given the grounds for the petition? The petition contained within it one ground that may or may not have generated some justiciable issue. The rest of the grounds were wholly appeals to mercy. What does the Court of Appeal do about that?

MS TATE: Indeed, your Honour, one can only speculate but one might imagine that there is always scope for taking a question that appears to be a non‑legal question and extracting some legal core to the question, whether it depends upon some form of assumption and then addressing whether or not that assumption had been made out. But there is a particular statutory scheme for the Supreme Court to undertake such tasks, your Honour.

HAYNE J: Exactly, and it was engaged in Ratten, but there the issue was a fresh evidence issue.

MS TATE: Yes, your Honour.

KIRBY J: No 2 is the fresh evidence ground here.

MS TATE: Yes, that is right, your Honour. There is at least one issue which would seem to be something upon which there could be a proper judicial determination. But simply to reinforce the contention we make there is that the very vice that Justice Bongiorno foresaw as following the disclosure of legal advice given for this purpose may, indeed, occur here if we accept what the appellant says in their reply submissions. Might I turn then to the ‑ ‑ ‑

KIRBY J: Give me a clue. I mean, Justice Bongiorno served as the Director of Public Prosecution and he no doubt has a lot of knowledge about the background of this, but what is this? This sounds a little bit like nanny knows best. Without going into the facts of this case, what is the sort of thing you are talking about here?

MS TATE: In terms of the type of advice that might be given?

KIRBY J: That makes it so contrary to our modern notions of administrative judicial review that it is just outside the pale.

MS TATE: Indeed, your Honour, Justice Bongiorno makes the point that if there is to be a change to the regime to make such decisions reviewable, then that change ought to occur by the legislature, but as the law currently stands, it is not the case that such decisions are reviewable. Your Honour, if I could turn to the flexibility objection because this amounted to the claim that the judgment of President Maxwell failed to adopt a presumption that the voluntary and public disclosure of the conclusion of the legal advice will in all but rare cases amount to a waiver of legal professional privilege in the whole of the advice.

This morning my learned friend added two additional features to the form of the presumption which he has argued for. What he now says is that any voluntary disclosure of the conclusion of a legal advice, where it is made in the absence of any undertaking of confidentiality and in the absence of any legal or moral obligation to disclose, will ipso facto constitute an inconsistency on the basis of which the law can impute a waiver. We would say that there is no such presumption at common law, not even the presumption that was reformulated by my learned friend this morning.

We do not accept that Mann v Carnell envisaged that there was to be any such presumption. Indeed, we would say that any such presumption is at odds with the test favoured by the High Court in Mann v Carnell which invited a factual inquiry of the particular circumstances of the case, a consideration of the context and the objective purpose of the disclosure and the use of the disclosure before any assessment of inconsistency.

It is our submission that the approach of the appellant better reflects the terms of the Evidence Act and specifically section 122 of the Evidence Act and, indeed, we would say that the two additional conditions that were inserted this morning into the formulation of the appellant’s presumption are also exceptions that find their place within the terms of the Evidence Act. Indeed, under section 122(2)(a) there is an exception for disclosures of the substance that are voluntarily made in the course of making a confidential communication. So if it is made in the course of making a confidential communication, then it falls outside of the provision.

Similarly, under 122(2)(c), if the disclosure is made under compulsion of law, again that is accepted as an exception to the provision. We would say even the way in which it was formulated today reflects the fact that the position of the appellant is closer to the Evidence Act provisions than it is to the common law.

Moreover, we would say and submit that the authorities on which the appellant relies are either authorities in which the statutory test is applicable, such as Ampolex v Perpetual Trustee (1996) 40 NSWLR 12, or they are authorities which improperly conflate the statutory and the common law tests and, in particular, the judgment of Justice Gyles in Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101. We would say that is a judgment which improperly conflates the statutory and common law tests.

GLEESON CJ: I think in fairness to the decision in Bennett, you would need to take account of the actual disclosure that was made and with which they were dealing.

MS TATE: Yes, your Honour.

GLEESON CJ: There was a letter written by the government solicitor which said that the solicitor has advised that a particular public service regulation bears a certain construction.

MS TATE: Yes, your Honour.

GLEESON CJ: That the construction that Mr Bennett was trying to put on it was erroneous.

MS TATE: Yes, your Honour.

GLEESON CJ: That appears at the top of the page 104 of 140 FCR. So that what was actually disclosed on a non‑confidential basis was advice about a proposition of law.

MS TATE: Yes, your Honour.

GLEESON CJ: It was not just, for example, “I’ve been advised I’ve got a good case”, or, “I’ve been advised if we go to court we will win”. It was, “We have been advised that this regulation bears this particular meaning”.

MS TATE: Construction. Yes, your Honour. It may be, your Honour, that the judgment of Justice Gyles in Bennett has to be read clearly in the context of the particular disclosure that was made there. However, it has been relied upon in a line of authority as setting down a general rule for the determination of when an inconsistency can be found to exist. We would say that it has been interpreted as setting down a general rule in terms which better reflect the requirements of the Evidence Act and are at odds with the common law test as set down in Mann v Carnell.

KIRBY J: Did their Honours in Bennett refer to the Evidence Act? It is not in the head note.

MS TATE: No, it is not our submission that the line of authority – and it includes Justice Sundberg in the Seven Network v News Limited Case, it includes Justice Young in the AWB v Cole Case, it includes Justice Whelan in the Switchcorp Case – and I will give your Honour the citations to these – and it includes Justice Sackville in the Seven Network v News Limited Case and the Justice Sundberg in the Rio Tinto Case, where there is no express reference to the Evidence Act or to section 122.

We say that they give lip service to the common law test. They recite as a verbal incantation the test of inconsistency from Mann v Carnell. But then in truth the application of that test is an application of the section 122 test derivatively to circumstances which are governed by the common law.

GLEESON CJ: I am not sure that you are not being a little hard on him. As I say, if you look at the actual advice that was – if the information that was disclosed in Bennett, personally I would have no problem with the proposition that that is a disclosure of the substance of legal advice. It says, “We’ve been advised that this regulation bears this construction”.

MS TATE: Yes, your Honour.

GLEESON CJ: I do not find it easy at the moment in the press release to see what legal advice the Attorney‑General of Victoria was given.

MS TATE: Yes, your Honour. We accept, of course, that in Bennett there has to be a recognition of precisely the terms of the disclosure, but ‑ ‑ ‑

KIRBY J: Do you submit that the actual advice has to be set out in order to be waived or is it enough that its substance or gist is referred to or it is sufficiently referred to that the interested person can track down the substance and gist?

MS TATE: We would say, your Honour, that the term “substance or gist” has itself no role within the common law test of inconsistency.

KIRBY J: You say the common law is that you have got to reveal the actual advice?

MS TATE: No, your Honour, we would say that the common law test is a determination of whether the conduct of the privilege holder was inconsistent with the maintenance of the privilege in the circumstances of the case.

KIRBY J: Yes, but that is a very broad overarching requirement, then courts to try and make it practical, have said, well, when does that happen? When a party has inconsistently with its claim of privilege revealed, disclosed, the substance or gist of the advice that it has received. What is wrong with that?

MS TATE: We would say, your Honour, that not only did Mann v Carnell ‑ ‑ ‑

GUMMOW J: All distinctions between form and substance are slippery. That is what you are saying, I guess.

MS TATE: Yes, your Honour. We would say also that ‑ ‑ ‑

GUMMOW J: And conclusory, with the temptation of being conclusory.

MS TATE: Yes, precisely, your Honour.

KIRBY J: But there is an awful lot of judicial dicta on form and substance. I mean, it is a category that is often referred to in the cases. One has to be careful, but there is a distinction lurking behind the formula.

MS TATE: But in Mann v Carnell, your Honour, we would say there is not only the provision of a test given at a high level of abstraction. It is our submission that it also provides guidance as to the features that will be important to determine in any particular case whether there has been the required inconsistency and ‑ ‑ ‑

KIRBY J: But what is your answer to the suggestion that the Attorney had no moral or legal obligation to disclose anything, but that once he did it was basically and inconsistent with his stance of privilege and unfair to Mrs Osland that those who are interested in her case and the things she says will know that the six grounds of the petition have been rejected and that that is on the basis of advice from three very distinguished senior counsel.

MS TATE: We would say, your Honour, that the assessment of inconsistency depends upon considering the particular conduct and we would say that conduct must be construed broadly and ought not to be construed as simply the fact of the disclosure alone, which is really in truth the way the appellant construes the term. There is a need to look at the conduct of the Attorney. That means looking at the context in which he made the disclosure, the purpose, objectively construed, for which he made that disclosure, whether there are any considerations of fairness that need to be considered and so on.

We would say that the temptation to look at a situation such as the Attorney’s disclosure and apply to it a rigid rule or an almost rigid rule which says that one only considers whether the substance or gist of the advice has been disclosed and if one finds that that disclosure has occurred voluntarily and publicly, then one can infer that there has been waiver. We say that is not the approach that is endorsed by Mann v Carnell. It is an approach which invites the consideration of the particular factual circumstances of the case and, by doing so, the test is one which permits a considerable degree of flexibility.

KIRBY J: In answer to the suggestion that Mr Beach put before us that this is unfair to his client on the basis that the advice to the Governor and the Governor’s decision closes off the legal right to a petition of mercy, but that the Attorney‑General’s statement represents an unfair attempt to close off any public debate about it on the basis of advice to the Attorney‑General of three very eminent senior counsel but a refusal to reveal what they said.

MS TATE: Your Honour, we would say that the submissions of the appellant with respect to the fairness of the circumstances and their alleged ‑ ‑ ‑

KIRBY J: Is that not a bit unfair to say, “Well, don’t you trouble about this, don’t you worry your brains about this. This is three very clever and senior and respectable and distinguished Queen’s Counsel giving this advice, I have acted on that, so go away and do not keep causing trouble”.

MS TATE: We would say, your Honour, that it is not a question of the disclosure being tantamount to a direction that there is to be no further public debate about the matter. Clearly that was not the effect of the disclosure and we would say nor was it the intention. But, your Honour, the debate as to the degree of flexibility that Mann v Carnell envisaged is best understood by reference first to the decision of the Full Federal Court in Carnell v Mann (1998) 89 FCR 247. This is a decision by Justices Higgins, Lehane and Weinberg and the court was considering an appeal from the trial judge who had held that in the circumstances privilege had been waived.

The Full Court allowed the appeal and in doing so it applied derivatively the terms of section 122(2) of the Evidence Act to circumstances which it recognised as being governed by the common law at that stage. The principle test was the test enunciated in Attorney‑General v Maurice. Your Honours will see at page 250 of the judgment there is a reference at the top of the page to the difficulty with his Honour’s analysis. That is a difficulty in the primary trial judge’s analysis and the court says it is a difficulty in:

that it fails to take into account the effect of the Evidence Act upon the doctrine of waiver. Though his Honour used the expression “client legal privilege” on several occasions in his reasons for judgment (this being the terminology used in the Evidence Act), he did not refer specifically to any of the provisions which deal with that form of privilege or, more importantly, with the loss of that form of privilege.

HEYDON J: I think you meant page 256.

MS TATE: Yes, 256, I am sorry, your Honour. Did I give the wrong page number? It is 256 and the judgment continues at 257 at about point ‑ ‑ ‑

GLEESON CJ: That approach raised a problem that I think was dealt with in the decision – did we hand down our decision in Esso on the same day?

MS TATE: Yes, precisely, your Honour.

GLEESON CJ: Yes, well, the small problem conceptually that this approach raised was that there is not an Evidence Act in all States of Australia and the problem of the common law being affected derivatively by the Evidence Act, for example, of the Commonwealth or of New South Wales – in Victoria was one that we dealt with in Esso.

MS TATE: Yes, your Honour. Esso, which is Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, was delivered on the same day as Mann v Carnell. Indeed, it was the judgment of this Court to say that because the Evidence Act had not been enacted in all the jurisdictions throughout Australia, there was simply no uniformity of legislative framework to which the common law could be modified and it made it clear that in ancillary proceedings, even in the Federal Court where the common law applied, those proceedings were not to be governed by the Evidence Act test.

Now, as I say, that decision was handed down on the same day as Mann v Carnell, and if I might just summarise the five propositions that we take Mann v Carnell to be authority for. They are these propositions; that in the circumstances in which the waiver of legal professional privilege is governed by the common law it is an error to apply derivatively the test under section 122 prescribed under the Evidence Act, see Esso. The second proposition, the test for waiver at common law is inconsistency between the conduct of the client and the maintenance of the confidentiality in the communication.

GLEESON CJ: Yes, for imputed or implied waiver.

MS TATE: Yes, your Honour.

GLEESON CJ: You can always waive privilege by saying, “I waive privilege”.

MS TATE: Yes. Yes, of course. Not in those circumstances of express waiver. But the third proposition that we say Mann v Carnell is authority for is that in assessing the conduct of the client, the client’s purposes in making the disclosure will be relevant, in particular, the client’s purpose in seeking to explain and justify his or her actions or demonstrate the reasonableness of the conduct. The fourth proposition that depending upon the circumstances of the case, fairness may be relevant; in particular, if the client’s disclosure is made to obtain an unfair advantage, then waiver may be imputed by operation of law.

The fifth proposition is that the type of inconsistency adverted to is most clearly recognised in those circumstances where the disclosure of a confidential communication occurs between parties to the communication where one party seeks to disclose a version of the communication in litigation while yet enforcing the silence of the other party under an obligation of confidentiality. So, in particular, inconsistency can be recognised in those cases where a former client brings a complaint or a suit against a lawyer, be it senior counsel or a solicitor, and Benecke is clearly authority also for that proposition.

KIRBY J: Why does this case not fall within three and four, namely, that a client through the Attorney‑General is trying to explain and demonstrate his reasonableness by invoking the three counsel and their consideration and his consideration of what they have said and he is trying, as it is put to us, to get an unfair advantage by disclosing that he has got this, that they have addressed the six grounds, but he will not say what they have said, that that is basically unfair.

MS TATE: Your Honour, we would say that the propositions from Mann v Carnell can be applied directly to the circumstances here and we would say in particular that the context and purpose of the disclosure is of relevance here, particularly the fact that the purpose objectively construed of the disclosure was to explain the reasonableness of the Government’s conduct. Now, we would say if that was an improper purpose and if it was an improper purpose here, then we would say similarly it ought not to have been recognised in Mann v Carnell. We would say that that purpose is on all fours in the circumstances here as it was in Mann v Carnell.

We would also say that there is a need to consider what the purpose of the privilege was here and we would say the purpose of the privilege here was to enable the Attorney‑General and, one might say, the State of Victoria to seek and obtain legal advice in relation to the petition of mercy without the apprehension of being prejudiced by subsequent disclosure of that advice.

KIRBY J: It is not without for the fear that the three senior counsel will not give their true and honest opinion on the matters referred to them. That is hardly likely to happen, is it?

MS TATE: No, your Honour. There was never any suggestion that that might be the case.

KIRBY J: What is the concern?

MS TATE: We would say that the purpose for which Mrs Carnell on behalf of the ACT sought and obtained legal advice in those circumstances, which was to determine the prospects of success of litigation brought by Dr Mann, that that purpose was for that polity to obtain legal advice without the apprehension of being prejudiced by the subsequent disclosure of that advice.

KIRBY J: That is absolutely and directly relevant to litigation which is pending.

MS TATE: Yes, we would say the privilege had the same purpose here. We would then say that the purpose of the disclosure against which the purpose of the privilege is to be compared, that the purpose of the disclosure was also analogous to Mann v Carnell, as I have said, to explain the reasonableness of the public administration and the performance of public functions by a government official. With respect to the question of fairness, we would say here that it is relevant to an assessment of fairness, and insofar as fairness and forms inconsistency, that the disclosure was not made here to obtain an unfair advantage over a person with whom the client was an illegal, litigious or forensic relationship.

We noted this morning that my learned friend drew a number of hypothetical pictures for this Court about the forms of disclosure that might be made in a context of litigation and when the inference of inconsistency might be drawn. We would say that it is a relevant aspect of the circumstances here that this was not a context of litigation, this was not a context ‑ ‑ ‑

KIRBY J: Is that not against you? I mean, one can understand in Dr Mann’s case that you cannot have somebody who has a case against another governmental party getting the inside advice on what they say is the risk of losing the case. That would not be fair. But, here there was no litigation pending.

MS TATE: There was not only no litigation, your Honour, but there was no legal or forensic relationship between the parties and, in particular, it was not a circumstance in which one party to the communication sought to lift the veil of secrecy in relation to the communication and yet sought to enforce the obligation of confidentiality against the other party.

We would say here that those four factors are relevant to any assessment of inconsistency and we would say that it was open to the Court of Appeal to consider on the basis of those factors that there was no inconsistency with the reason or purpose of the privilege for the Attorney to disclose both the fact of the advice and the conclusion of the advice for the purpose of demonstrating the reasonableness of the Attorney and of the State in relation to the petition.

Before turning further to questions about whether there had been a conflation between the common law test and the Evidence Act test in a stream of authorities upon which Justice Gyles and others have relied, might I turn to the question of whether in this circumstance the Court of Appeal concentrated upon the Attorney‑General’s subjective purpose and not his objective purpose or the objective purpose of the disclosure. We would say that, again in reliance upon Mann v Carnell, just as it was considered by this Court, that if the purpose of the disclosure was to explain the reasonableness of the conduct by the Government, then we would say if that was considered an objective purpose in that case, then analogously here that ought to be considered an objective purpose as well.

GLEESON CJ: By the expression “the reasonableness of the conduct of the Government” do you mean the fairness of the process adopted by the Government or do you mean the substantive reasonableness of the ultimate decision made by the Government?

MS TATE: We would say the former, your Honour, that it is the reasonableness of the process, the acting in a non‑random and non‑arbitrary fashion because acting on the basis of independent legal advice. There is no disclosure or comment made as to the reasonableness of the ultimate advice that was given. We would say, your Honour, that it is clear from the judgment of Justice Maxwell, particularly at page 66 of the appeal book in paragraph 66 that the learned President was considering the objective purpose of the disclosure. He uses the expression:

The evident purpose of the Attorney‑General’s disclosure was to inform the public . . . 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 –

that is, he had acted with due process. We would say, your Honour, that it is significant that there was no evidence whatsoever at the Tribunal as to the subjective motivations or purposes, subjective purposes of the Attorney. There was no inquiry of any kind made as to what particular subjective purpose the Attorney may have had in mind. We would submit, indeed, that the appellant really fails to draw a distinction between the purpose of the disclosure and the Attorney‑General’s purpose in disclosing.

We would say there are at times, when the appellant considers the Attorney‑General’s purpose in disclosing, as though it were some form of personal purpose rather than the objective purpose of the disclosure itself. Your Honours, I will seek to make these submissions quite brief in relation to what we say is a misplaced reliance by the appellant on Bennett, certainly in the Court of Appeal.

KIRBY J: This did not seem to emerge very strongly in the oral submissions today unless I have missed that part?

MS TATE: No, your Honour.

KIRBY J: It can happen.

MS TATE: Your Honour, we would say that the position that is adopted by the appellant here is quite a different position than the position that was adopted by the appellant in the Court of Appeal.

KIRBY J: But there are the references in the written submissions criticising the subjective against objective.

MS TATE: Yes, that is right.

KIRBY J: That really was not developed in oral submissions.

MS TATE: The subjective purpose objection was not developed particularly this morning, your Honour, but it is there in the written submissions of the appellant.

KIRBY J: It is enough for the appellant to succeed, at least subject to section 30, if she succeeds on either the waiver point or the public interest point, is it not? If she has waiver, she does not need to worry about the public interest.

MS TATE: No. If the appellant succeeds on waiver, then the document is not an exempt document, so it is not a document to which the public interest override in section 50(4) would attach.

KIRBY J: The public interest only arises if she loses on the waiver.

MS TATE: The public interest only arises with respect to document 9 if the appellant loses on the waiver issue, save for this qualification, your Honour – and now my learned friend has conceded this – that there would, in any event, be a need for the matter to be remitted to the Tribunal for the Tribunal to consider whether the document 9, although not exempt under section 32 because the appellant had been successful on waiver, was nevertheless a document which was protected by the exemption under section 30 which is the internal working documents exemption.

Because that has now being conceded, I will not trouble the Court with the definition of “officer” or the authorities which suggest that it can extend to external consultants and can at time extend to barristers. So this Court need not be troubled with any of that authority. So, in any event, it cannot be a conclusion of this proceeding that the appellant is granted access to document number nine, the joint advice.

But, your Honours, if I could turn then to our argument in relation to what we say is the misplaced reliance upon perhaps the way in which Bennett has been construed. Could I refer your Honours first to the decision in Adelaide Steamship v Spalvins ‑ ‑ ‑

GUMMOW J: Just before you do that, can you just tell me shortly what your response is to paragraph 54 of the appellant’s submissions, namely, the Court of Appeal could not really have applied section 54 because it did not know what was in the documents?

MS TATE: We would say, your Honour, this forms the basis of the second point, that it was not a proper determination of the Court of Appeal to arrive at the view that there would be no public interest which could override any of the exemptions ‑ ‑ ‑

GUMMOW J: The Court of Appeal was trying to work out though whether there had been an error of law by the Tribunal, were they not?

MS TATE: Yes, that is right, your Honour. Yes, that is right.

GUMMOW J: So how does the nature of the jurisdiction under 148 of the Victorian Civil and Administrative Appeal Tribunal Act, how does that fit with the complaint in that paragraph of your opponent’s submissions?

MS TATE: This is paragraph 54, your Honour?

GUMMOW J: Yes.

MS TATE: My learned friend seeks to formulate an error of law into which the Court of Appeal fell by saying that the Court of Appeal could not determine that there would be no basis on which the public interest override could operate without first inspecting the documents. So it is now formulated as an error of law, your Honour, and in that sense it would fall within the jurisdiction under section 148 of the Victorian Civil and Administrative Tribunal Act.

GLEESON CJ: So far you have won all the way along the line on the question of waiver.

MS TATE: Yes, that is right, your Honour, yes.

GLEESON CJ: But what happened in the Tribunal was that the ultimate decision went against you apparently without section 30 being examined.

MS TATE: Yes, without the Tribunal determining the section 30 point at all.

GLEESON CJ: It went against you on the override?

MS TATE: Yes, your Honour.

GLEESON CJ: The Court of Appeal held that there had been an error of law on the part of the Tribunal in applying the override?

MS TATE: Yes, your Honour.

GLEESON CJ: The error of law being what?

MS TATE: The error of law, your Honour – and your Honours can perhaps see best from the notice of appeal in the Court of Appeal, which is to be found in the appeal book here. It is the amended notice of appeal which starts at page 36. You will see we set out the grounds of appeal. There were eight grounds of appeal. They all related to the exercise of the discretion under section 50(4). So there was no ground of appeal in relation to any of the exemptions itself, save for the failure to determine the section 30 point, but the grounds of appeal related to the exercise of discretion under section 50(4).

Perhaps your Honours will see at page 37 that the principal ground of appeal was that the Tribunal, Justice Morris, in the exercise of his discretion when determining that the public interest did override the legal professional privilege exemption, returned to the factors underlying the exemption and effectively held that the exemption itself, or the factors supporting that exemption, could be impugned.

So while on the one hand his Honour held that the legal advices were exempt under section 32, that is, that they had the character which would attract the protection of legal professional privilege, he then said that under section 50(4) the fact that the documents were about matters that were not contemporary matters but were matters of past time, meant that the significance of the exemption was to that degree undermined or to be given less weight so that the other public interest factors could more easily override that exemption.

Now, I must say that matter has been adverted to here parenthetically, despite the fact that we were successful in the Court of Appeal on that ground, and that ground has not been challenged before this Court, nor was special leave granted with respect to that ground, but nevertheless it has found its way both in the oral and written submissions.

HEYDON J: But how can you assess whether public interest requires access to a document without looking at the document?

MS TATE: Well, your Honour, it simply may depend upon the circumstances. If it is the case, as in DDP v Smith, that there was an allegation that there was a conspiracy between the Attorney‑General and the DPP and officers of the Department of Justice, that there was a conspiracy to try to avoid the criminal prosecution of a solicitor, then one could see that those external and specific factors of considerable public importance could override the public interest factors that support legal professional privilege.

KIRBY J: Is there any way that one can blank out matters on public interest, because there must be occasions when there are, for example, revelation of informants or things of that kind? Is there a power to do edit?

MS TATE: Yes, there is a power to edit, your Honour, and indeed ‑ ‑ ‑

KIRBY J: So it is not all or nothing?

MS TATE: It is not all or nothing, and, indeed, the Chief Justice adverted this morning to the paragraph of the Tribunal’s reasons in which there is a hidden editing not practicable in these circumstances. So, of course, documents can be partially exempt and on occasion documents will be disclosed to an applicant with various parts of the document removed.

But perhaps if I could elaborate on my response to Justice Heydon. The public interest override invites a consideration of the public interest which is not simply at large. The public interest to be considered by a Tribunal will be particular public interest factors which have been identified by the applicant. Now, it may be the case that it is for the respondent to actually defeat the sufficiency of the public interest grounds, but it is for the applicant to identify what those public interest grounds are.

Now, it may be the case that there will be a public interest ground of the type relied upon in DPP v Smith which makes it clear that there is a need to disclose the advices in order to clear the air in relation to a particular public controversy.

KIEFEL J: The expression “clear the air” in the Tribunal rather hints, does it not, that there is not a particular issue that has been identified or an explanation that is necessary? It is rather deliberately nebulous, I think.

MS TATE: Well, we would say, your Honour, that the expression “clear the air” is typically used within a freedom of information context to say that there is a particular point of contention or a particular controversy that exists and it is necessary for there to be disclosure or access to the documents granted so that that controversy can be put to rest.

KIEFEL J: The Tribunal does not identify any such question nor the need for any explanation.

MS TATE: Indeed, no, your Honour. The Tribunal does not identify any such public interest ground and, in fact, we would say that here there was no air to be cleared. It was not the case that the Robert Redlich advice was in the public domain. It was not the case that the advices from the Victorian Government Solicitor were in the public domain. There was no controversy or ground that could be identified as a public interest ground sufficient to necessitate access to the legal advice.

Now, of course there was controversy about the trial itself and the circumstances of the appellant and the degree of sympathy that members of the community had for the appellant and so on, but there was no controversy in relation to the obtaining of advice by the Attorney or the content of what that advice might be. We would say here that there was simply no air to be cleared and the appellant was unable to identify any particular point of controversy which access to the documents would meet. Perhaps if I could refer your Honours here to the judgment of Justice Maxwell at paragraphs 94 and 95 where his Honour considers whether the public interest grounds could be of the form of “the desirability of greater transparency”. He says:

In my opinion, abstract policy considerations, such as the desirability of greater transparency in decision‑making by the executive, have no place in the s 50(4) analysis – in this or any other case.

HEYDON J: My trouble is that to weigh competing public interests in the abstract should not really have much ground in it when you have actually a document there you can read to see whether the public interest requires that access be added to it.

MS TATE: Your Honour, we would say that if it is a matter of considering whether there will be some sort of novel public interest issue that arises upon reading the documents, we would say that that amounts to nothing more than a fishing expedition, as it clearly is not the case then that there is anything in the public domain which warrants a privilege of the high stature of legal professional privilege being overridden and a grant of access being made.

HEYDON J: Is “fishing” an appropriate term to use under the Freedom of Information Act? Lots of requests for documents are designed to conduct fishing.

GUMMOW J: That is what it is all about really.

MS TATE: Yes. In part it is what it is all about. Clearly, people want to see what the contents of particular documents are, but we would say when it comes to section 50(4), and it is unique within Australia and it is, in a sense, a rather curious provision in that it has to be read against the selection by the legislature of a particular range of exemptions which are themselves based on policy considerations about the need to protect the public interest. We would say that it is the legislature that struck the balance in relation to each of the exemptions – for each of the exemptions.

Whether it now be national security or Cabinet confidentiality or internal working documents or whatever, if a document has the character that it satisfies the requirements of any of those exemptions, then the legislature has determined that the public interest falls on the side of non‑disclosure, with one exception, namely, when there are other public interest considerations of a sufficient magnitude that they can override those considerations which support the exemption.

GLEESON CJ: I am just trying to understand how this subsection works. Why was it wrong for the Tribunal not to consider your section 30 argument? The Tribunal decided in your favour that this was an exempt document on one particular ground but that the public interest required that access to the document should be granted? Is there some suggestion that if they had decided that it was exempt on an additional ground or a different ground, they might have taken a different approach to the override?

MS TATE: Yes, your Honour, because there is a two stage procedure to the determination of any freedom of information application under the Act by the Tribunal or by a court and the first stage of that procedure is to determine whether any of the exemptions apply. Each of those exemptions need to be determined, and there will be considerations in some of the exemptions as to whether there is an express public interest requirement, such as in the internal working documents exemption.

Now, because the public interest may have different facets, if one has considered that section 30 protected the document, then the public interest considerations under section 50 to be sufficient to override that exemption, might be public interest considerations of a different nature. The Full Court in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 consider just these points.

GLEESON CJ: Thank you.

GUMMOW J: Was the Court of Appeal equipped with the full record that had been before the Tribunal? In other words, were these documents in the court record?

MS TATE: The documents were not in the court record, your Honour. The documents were there to be made available to the Court of Appeal if the Court of Appeal wished to inspect them.

GUMMOW J: I see.

MS TATE: There was no request by the appellant for the Court of Appeal to inspect those documents and, in fact, the appellant sought to ground one of the special leave grounds as a question relating to their expectation that the matter would be remitted and that ground was rejected by Justice Kirby and Justice Hayne.

HAYNE J: But your notice of appeal to the Court of Appeal asserted a number of discretionary errors by the Tribunal.

MS TATE: Yes, your Honour.

HAYNE J: Your notice of appeal in the Court of Appeal, does not, as I read it, assert at least clearly that on the record as it stood in VCAT, the only answer available under 50(4) was that it was not engaged?

MS TATE: No, your Honour.

HAYNE J: Is that right?

MS TATE: Yes, your Honour, that was not a ground of appeal before the Court of Appeal.

HAYNE J: Is the appellant in this Court right in her notice of appeal to this Court to characterise the Court of Appeal’s decision as being, in this respect, that there could be no basis on the material before the Tribunal for engaging 50(4)?

MS TATE: Yes, that is an accurate statement of the finding by the Court of Appeal. The Court of Appeal considered ‑ ‑ ‑

HAYNE J: And is it a finding which you seek to support?

MS TATE: Yes, we do, your Honour.

GUMMOW J: Does it come down in the Court of Appeal in the President’s judgment to paragraphs 96 and 97 of his reasons?

MS TATE: It is dealt with, certainly, your Honour, in those passages.

GUMMOW J: Paragraph 97 says, “It was, accordingly, outside the scope of s50(4)”. I think that is complained of as an error of law in construing the section, I suppose – complained in this Court as an error of construction.

MS TATE: I do not think there is a complaint in this Court as to the construction of section 50(4) in that regard, your Honour. The ground, as it is articulated in the notice of appeal to this Court, relates to the failure of the Court of Appeal to inspect the documents and whether ‑ ‑ ‑

GUMMOW J: They were not asked to.

MS TATE: No, it was not asked to.

GUMMOW J: You say they were not asked.

MS TATE: Yes, precisely, your Honour.

GLEESON CJ: I am afraid I have not understood what you said about what went on in the special leave application in this case and what the outcome of that application was. Could you just go over that again, please?

MS TATE: Yes, certainly, your Honour. The special leave grounds were threefold and one of those grounds was that the Court of Appeal had been in error to make an order that was other than an order remitting the matter back to the Tribunal. The applicant for special leave argued that there had been an assumption during the course of the proceeding that whatever orders the Court of Appeal might make, those orders would include remittal to the Tribunal. There was then an argument put by us that if that had been the assumption on which the proceeding had been based, then it ought to have been clear to the applicant for special leave at the time the judgment was delivered, that the assumption on which the proceeding had been based was misplaced because immediately on seeing the judgment from the Court of Appeal it would be clear that there was no remittal.

We argued that they ought to have then returned to the Court of Appeal and sought an order for remittal if that, indeed, had been their assumption. Now, they did not do that. It was only several months later when other senior counsel was engaged that they then claimed that the assumption of the proceeding in the Court of Appeal was that any order would include an order for remittal. In the special leave application I was able to take Justices Kirby and Hayne to the transcript before the Court of Appeal to show that whatever initial assumption there had been in the hearing before the Court of Appeal that the matter might be remitted to the Tribunal.

By the end of the hearing all of the judges had made it plain, in particular Justice Ashley, that the court wished to determine the whole of the matters for itself and that it would be unlikely to be granting any form of remittal.

HAYNE J: But without rehearsing the whole of the leave application, proposed grounds 3 and 4, which were grounds asserting, in effect, a want of natural justice in the Court of Appeal, were refused and a new ground, which I regret I had some part in formulating – see line 846 and following of the leave transcript – became ground 3.

MS TATE: Yes, your Honour.

GLEESON CJ: I understand. Thank you.

GUMMOW J: Perhaps I should have made clear, too, that I understand that your opponent’s senior counsel today is not one of the dramatis personae in the Court of Appeal.

MS TATE: No, senior counsel here was not one of the counsel retained in the Court of Appeal.

KIRBY J: But there is no doubt that the question of remitter is before us.

MS TATE: Yes, the question of remitter is before you, your Honour, yes. If I could return perhaps to the question about whether the test that has been formulated by the appellants is in truth a test which better reflects the terms of the Evidence Act rather than the terms of the common law test under Mann v Carnell. It is our submission, your Honour, that ‑ ‑ ‑

HEYDON J: Is this the material which in paragraphs 16 to 25 of your written submissions and then 26?

MS TATE: Yes, it is largely that material, your Honour. Perhaps if I could just summarise it very quickly.

HEYDON J: We have read it.

MS TATE: Thank you, your Honour. We would say that Adelaide Steamship v Spalvins, while it was an error in suggesting that there could be a derivative application of the Evidence Act to those stages of the proceeding which are governed by the common law, that is ancillary proceedings, nevertheless, it was correct to say and it remains good law that there is a distinction to be drawn between the type of test under section 122(2) and the type of test at common law. In particular, under 122 the inquiry that is invited is an inquiry which is confined to whether there is a knowing and voluntary disclosure of the substance of the evidence. Moreover, the test under 122(2) is wholly a quantitative test. It depends only upon the degree of disclosure. It asks this question, namely, whether there has been sufficient disclosure to warrant loss of the privilege.

GUMMOW J: These cases on 122, as Justice Heydon points out, seem to ignore the decision of Justice Drummond in Southern Cross Airlines in 84 FCR 472. In that case, as appears at 478, the liquidator disclosed to creditors:

My solicitors have advised me that the Company has potential claims against . . . pursuant to Section 205 of the Corporations Law –

okay, and the judge held:

I do not accept that such a brief general summary of the advice obtained by the liquidator concerning the potentiality for claims . . . is sufficient to amount to a disclosure of “the substance –

I do not think that case is – it does not seem to be given a great deal of attention in the later Federal Court cases.

MS TATE: Yes, indeed, your Honour.

GUMMOW J: Sir Harry Gibbs might have said there was a wrong turning.

MS TATE: Yes, your Honour. We have copies here of the Southern Cross Case, if I could hand those to your Honours. Indeed, we would embrace that test of Justice Drummond’s, that one looks not only to see whether the bare fact of the conclusion has been exposed but whether the critical steps leadings to that conclusion have been exposed.

HEYDON J: Which is the first two lines of page 480.

MS TATE: Yes, and including 479 to 480, your Honour. Indeed, Justice Tamberlin and Nine Films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 also discusses this question of substance at pages 446 to 447, paragraph [26] in similar terms to Justice Drummond in the Southern Cross Case. Indeed, at paragraph [26] Justice Tamberlin says that:

While I accept that, in some circumstances, a clear disclosure of the “bottom line” of the advice, and the course of conduct taken thereafter, may be sufficient to amount to waiver of legal professional privilege, I do not think these matters have been established in the present case. On a fair and reasonable reading, the statement to the effect that senior counsel had been engaged and that he had reviewed matters in detail and that steps were being taken based on his recommendations is not sufficient to amount to a waiver of the legal advice. The substance or content of the advice is not disclosed with specificity or clarity. Questions of waiver are matters of fact and degree and, in this instance, I am not persuaded that the conduct, assertions or admissible evidence are sufficient to warrant the necessary implication that legal professional privilege has been waived.

That is much to the same effect as Justice Drummond at 479 to 480 of the Southern Cross Airlines Case.

HEYDON J: Your submission is if 122(2) is to be considered at all, it is Nine Films and Southern Cross that is to be used as the correct account of the construction and if for some reason that is not the case, the common law is simply different from section 122(2)?

MS TATE: Yes, precisely, your Honour.

GLEESON CJ: And that the common law is different from section 122 is what this Court actually said in Mann v Carnell.

MS TATE: Yes, exactly, your Honour. It was also said, of course, in the Federal Court in Adelaide Steamship v Spalvins and, in particular, it was said that section 122(2) is not concerned with any principle of fairness. So there are two, we would say, quite different tests.

KIRBY J: What do you say are the most important differences from the common law test?

MS TATE: We would say the most important difference, your Honour, is the difference adverted to by President Maxwell in the Court of Appeal, namely, that the question of inconsistency will depend upon the circumstances of the case, that it is not ‑ ‑ ‑

KIRBY J: I thought that was common ground in both tests, that it all depends on the circumstances and all the facts of the case.

MS TATE: We would say that the circumstances of the case under section 122(2) – and of course one needs to look at the particular disclosure in any case, so to that extent the circumstances of the case are relevant, but we would say that under 122(2) one approaches the circumstances by asking simply a question about the degree of disclosure or the sufficiency of disclosure. One is not concerned with fairness, one is not concerned with the purpose or context in which the advice was given or in which the disclosure was made, one is simply looking quantitatively about the degree of disclosure in the particular circumstances.

We would say here the most important difference between the common law test and the Evidence Act test is that the circumstances of the case under the common law test need to be considered for all of those features, including particularly the purpose for which the disclosure was made, the context in which it was made, the relationship between the parties if there is any, whether there is an attempt to deploy the disclosure for the purpose of obtaining an unfair advantage against someone with whom one is involved in litigation, all of those considerations become relevant so that one cannot derive any general rule which one can use simply as ipso facto giving rise to an imputed waiver, that it will depend upon the circumstances of the case.

GLEESON CJ: If, as appears to be the case, the parties in this Court are in heated agreement about the common law test to be applied to the question of waiver and were in agreement in the Court of Appeal in Victoria and before the Tribunal, how did the problem of waiver, if I can use that expression, come to be before the Court of Appeal at all? It was not the subject of any appeal of yours.

MS TATE: No, your Honour.

GLEESON CJ: And the Court of Appeal could only deal with issues of law and, provided you got the principle right, questions of waiver or questions of fact and degree, how did the issue of waiver come to be being debated in the Court of Appeal at all?

MS TATE: Well, your Honour, there was a notice of contention filed by the appellant, and that is to be found at page 41 of the appeal book, and that notice is to the effect that the respondent and the respondent to that appeal:

Proposes to contend that the order of the learned President made on 16 August 2005 granting access to document 9, being the memorandum of joint advice of three senior counsel to the Attorney‑General dated 3 September 2001, should be affirmed upon the further ground that the document was not an exempt document pursuant to section 32 of the Freedom of Information Act 1982 (Vic) as the Attorney‑General had waived the privilege.

GLEESON CJ: What is the issue of law raised by that notice of contention?

MS TATE: Yes, precisely, your Honour. I might say, your Honour, the learned President there is, of course, the learned President of the Tribunal, that is, Justice Morris.

HAYNE J: Did you contend in the Court of Appeal that no question of law was thus tendered?

MS TATE: We communicated with the respondent to the appeal, we sent an open letter to the respondent to the appeal and in that letter we contended that there was no error of law alleged in the notice of contention.

HAYNE J: Yes, I am not asking you about communications between parties, I am asking you whether you submitted to the Court of Appeal that the notice of contention raised no point that could be determined by the court?

MS TATE: Your Honour, by the time the Court of Appeal hearing commenced, the respondent to the appeal had reformulated in its submissions the notice of contention, or the point of contention, to the effect that the wrong test had been applied in the determination by the President of VCAT, that the test that the President of VCAT ought to have followed, the Full Federal Court judgment in Bennett, and that although it seemed to be accepted that Mann v Carnell enunciated an overriding test, they said that when the circumstances were such that there was a voluntary disclosure of the conclusion of a legal advice, then the court was to apply the principle from Bennett, and it was there formulated as an error of law.

HAYNE J: Do I take your answer therefore to be no?

MS TATE: We did not argue in the Court of Appeal that the respondent to the appeal was not relying upon an error of law. No, your Honour. We sought to permit them to ventilate that issue. But as I say, it was an issue with respect to whether the Tribunal ought to have applied the principle from Bennett really as an invariable rule. But, your Honours, I have made the observations that the test under the common law is a distinct and different test from the test under section 122(2) of the Evidence Act and, if I could refer your Honours again to the case of Bennett and to the judgment of Justice Gyles at paragraph 68 which is on page 120 of the judgment. It is 140 FCR 101. At paragraph 68 Justice Gyles says:

A decision as to whether privilege in a particular document is waived will normally be a question of fact. However, an error on a question of law may be bound up with the question of fact. That has occurred here. Each of the Tribunal and the primary judge correctly identified the decision in Mann v Carnell as providing appropriate guidance as to the law to be applied. However, in my respectful opinion, the test has been misunderstood at least in part. The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to be deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.

Now, when his Honour spoke of the authorities upon which he relied he is speaking of the authorities which are set out at paragraph 64 on the preceding page. There he refers first of all to the decision of Justice Goldberg in Australian Unity Health Ltd v Private Health Insurance Administration Council. There Justice Goldberg was confronted also with the circumstance where the disclosure was, in effect, a construction of a particular rule and the construction at the end of the statement setting out the construction of the particular rule. It was then said at about point 4:

Separate legal advice supporting PHIAC’s view of this rule has been received. A copy of that advice is attached.

Now, Justice Goldberg held that the statement made did waive legal professional privilege. If I could refer your Honours to that case. It is not reported. It is [1999] FCA 1770 and it was on our list of authorities. It may be the case that your Honours do not have that. Perhaps I could just paraphrase by saying that Justice Goldberg himself, after setting out the form of the disclosure, acknowledged that it was a circumstance which was governed by the common law and that it was not governed ‑ ‑ ‑

GLEESON CJ: Just a minute. Hang on. Just before you go past that decision of Justice Goldberg, they actually said not only that a particular construction of rule was right, they said “A copy of the advice is attached”. In other words, they tried to disclose a copy of the advice and then later claimed privilege.

MS TATE: There was not any copy actually attached, your Honour, and your Honours would see that at paragraph [6] of the judgment of Justice Goldberg where he says, despite that being included in the disclosure, “A copy of the advice was not in fact attached to the recommendation”.

GLEESON CJ: Yes, they unsuccessfully tried to discredit it.

MS TATE: Yes, perhaps that is right, your Honour. But, your Honours, Justice Goldberg acknowledged that this circumstance was governed by the common law, it was not governed by the Evidence Act. Nevertheless, he relied upon Ampolex v Perpetual Trustee Co Ltd (1996) 137 ALR 28 which was a refusal of a stay by Justice Kirby in relation to a matter in which Justice Rolfe had held that a particular disclosure had amounted to a waiver. There the disclosure was that the conversion ratio of certain shares was one to one and that they had legal advice which supported that position. But Justice Goldberg relies upon Ampolex. He then refers to section 122 of the Evidence Act. He says it is not directly relevant here. He goes on to say:

Nevertheless, I consider that it is of assistance by way of analogy in determining whether there has been either a disclosure of the legal advice or a waiver of privilege in the circumstances of the case.

Then effectively he goes on to apply the test under the Evidence Act. Now, this judgment was delivered before the High Court delivered its judgment in Esso.

HAYNE J: What am I meant to get out of it, Solicitor? What is the value I am meant to take from this?

MS TATE: The value, your Honour, is this, that Justice Gyles in Bennett either purports to formulate a general principle or has been interpreted as formulating a general principle, and it has been relied upon as a general principle by the appellant, certainly in the Court of Appeal. Justice Gyles’ judgment itself says that the authorities to which he refers supports the formulation of that principle. Then the authorities to which he refers are either section 122 Evidence Act cases, as Ampolex was, or are cases which themselves conflate the Evidence Act test with the common law test. That is the value that we identify in referring your Honours to these cases. But perhaps if I could just mention the other ones ‑ ‑ ‑

HEYDON J: All these points are made extremely clearly in paragraphs 16 to 25 of your written submissions, which we have read.

MS TATE: Thank you, your Honour. I will not trouble your Honours further with that point. Might I make then an alternative response to the flexibility objection that is argued by the appellant? We would say here that even if there was a presumption to be adopted by a court in circumstances of the voluntary and public disclosure of the conclusion of a legal advice we would say that the appellant has acknowledged that that presumption can be defeated in a rare or exceptional case.

Now, our alternative argument is that the circumstances that are before this Court amount to circumstances of a rare and exceptional case and for that reason the principle in Bennett, if there is such a principle, ought not be applied here. We say that on the basis that this is a circumstance in which the advice was sought in relation to the exercise of an unreviewable prerogative power for the grant or refusal of a petition of mercy, and I have already addressed your Honours on that.

We would say that this context distinguishes this case from those cases in which the disclosure is deployed for a forensic or commercial advantage, as it was in Adelaide Steamship v Spalvins where the disclosure was used to explain a delay in amending a statement of claim, or in Ampolex where it was used to persuade its own shareholders not to accept a takeover offer, or in Bennett where it was used to disclose the strength of a case against Mr Bennett, or in Esso Australia v BHP Billiton [2007] VSCA 224, where the disclosure was made in the context of Esso mounting a counter‑claim for reimbursement of its legal costs, and ‑ ‑ ‑

KIRBY J: All of those are cases where it is in the course of litigation and a party has used it for their own advantage one way or the other. But where the disclosure is that of the Crown as the client and is made by a person who is a Minister of the Crown, arguably, as it has been put for the advantage of the Minister to close off criticism of the Crown or to stop political criticism, why is that not in the same category?

MS TATE: Your Honour, I only repeat the response I gave to your Honour before that in Mann v Carnell there was an acceptance that that form of purpose by a government officer to demonstrate the reasonableness of the public administration by the Government ‑ ‑ ‑

KIRBY J: There was in that case the actual element of pending litigation which is not here.

MS TATE: It was post litigation, your Honour, in that it had been the compromise of a former proceeding. There was no further proceeding on foot. In fact, Mann v Carnell was an application by Dr Mann for preliminary discovery in order to see whether another proceeding could be brought if the advices that had been disclosed to the member of the Legislative Assembly contained defamatory implications against him.

KIRBY J: Your statement earlier about the danger of allegations of conspiracy and allegations against solicitors and so on, was that, as it were, giving us a clue as to the type of vice that is involved or was it specific to this case and something in the papers?

MS TATE: No, it was really to identify the type of vice involved. We would say that the inconsistency test really has its clearest illustration in Benecke, even though that preceded Mann v Carnell, that really if one wants to identify a contradiction between the lifting of the veil of secrecy and yet maintaining that the other party to the communication is under an obligation of confidence, then one sees it best in the Benecke situation and one has to then infer whether other situations are at all similar to that.

Your Honour, we put that as an alternative response to the flexibility objection. The third response we make to the flexibility objection is that in any event we say that the substance or gist of the advice was not disclosed and I have already address your Honours on that and we rely upon the judgment of Justice Drummond in Southern Cross Airlines and Justice Tamberlin in Nine News.

Could I make just some final brief submissions on the question of fairness, and this is the argument that is put by the appellant on the basis that the Court of Appeal failed to consider fairness from the appellant’s perspective. We would say that there are deficiencies in that argument and the first deficiency is that there is a failure to distinguish between the impact of the refusal of the petition upon the appellant and the impact of the disclosure of the conclusion of the joint advice.

We would say of course it is no doubt that the refusal of the petition had a profound impact on the appellant and indeed her position and her standing in the public arena, or amongst her community of supporters, may have been diminished because of the refusal, but we would say that has to be distinguished from the impact of the disclosure of the conclusion of the advice. We would say, indeed, that the Attorney could have disclosed the whole of the advice and it would have had the same adverse impact on the appellant and on her standing in the community because, ultimately, the advice recommended that the petition be rejected. We would say it is not the partial nature of the disclosure that caused the appellant detriment.

We also refer your Honours to the judgment of the learned President at the appeal book page 67 in paragraph 68 where his Honour considers the submissions made on unfairness from the appellant’s perspective and those submissions that had been made were either really no more than assertions, as one can see from (f) on page 67, paragraph 68, or submissions made with respect to the single subject matter of the advice or, indeed, submissions made based upon the significant level of interest by the public in the appellant’s conviction and circumstances. We would say that the learned President was correct to dismiss each of those bases of unfairness in relation to the appellant. May it please the Court, they are the submissions for the respondent.

GLEESON CJ: Thank you. Yes, Mr Beach.

MR BEACH: Could I first deal with two matters in relation to what took place before the Court of Appeal. I think it is said in the written submissions that we did not ask the Court of Appeal to actually inspect the documents. That is so, but the reason is because the respondent in this Court put general errors of law on the public interest question. We assumed that if those general errors of law were upheld, then the usual situation is that the matter would then be remitted to the Tribunal to look at the matter again, taking into account what the Court of Appeal had said on errors of law and that is why the documents were not asked to be inspected and why you see such a level of generality in the reasoning of each member of the Court of Appeal rather than anything specifically attaching to specific documents.

At the very outset of the hearing in the Court of Appeal, at transcript page 1, line 27 the learned solicitor said, “We do not seek to have this Court make a substantive order in relation to the application for access to those documents”. The President at line 30, “Thank you for that”.

HAYNE J: Are you seeking to revive the matters for which leave is refused?

MR BEACH: No, I am not. I am just trying to explain. There was a debate in the special leave application as to who had said what to whom and it was all put under the umbrella of natural justice. I thought we had actually moved on from there, but it seems to be put by the learned solicitor that suddenly we are back into the territory we never asked the court below to look at the documents and that is somehow some disqualifying factor. When you understand how the matter progressed in the Court of Appeal you can understand why we did not ask those documents ‑ ‑ ‑

KIRBY J: Where is that page? I remember seeing it on the special leave application. The transcript, where is that in the appeal book?

MR BEACH: You do not have the transcript in this appeal book.

KIRBY J: So where is it?

MR BEACH: In the application book for the special leave.

KIRBY J: We do not get that.

MR BEACH: No. We can give you a copy of the transcript. It is only at the very end of the hearing was there a ‑ ‑ ‑

KIRBY J: Was this to rebut any suggestion that it was a failure on the part of the present appellant to ask the Court of Appeal to examine the issues of public interest that ‑ ‑ ‑

MR BEACH: By reference to the specific contents of the documents?

KIRBY J: Yes, to inspect the documents, really.

MR BEACH: That is right. The whole debate was left at this level of abstraction. The Court of Appeal criticised the Tribunal for dealing with it at a level of abstraction. They, themselves, particularly Justice Bongiorno, in terms of political collateral attacks, deal with it at a level of abstraction and that is where it started and finished. There is equivocation at various bits of the transcript as to what people thought the process was. That was all, as I understand the matter, and I was not there to debate it on the special leave application and it was all moved beyond that sort of question into the question of the pure point of law that we have raised which is without looking at the documents how can the Court of Appeal come to a view that on no basis could section 50(4) be invoked.

That is the ground of appeal and we still put that point. Accepting everything that the Court of Appeal has said, how does it follow that the contents of the specific documents could not inform the question of how section 50(4) is to be utilised. That is really the short point. There is no such thing as fishing. Your Honours said in the Wang Case that we will go back to the Tribunal. We can argue the matter afresh. We are not bound by the previous public interest considerations. I can actually, if I bother to turn it up that VCAT, ask for the documents to be made available to me.

Perhaps counsel, who ultimately goes back to VCAT, can make that application to the Tribunal and actually get inspection of the documents because there is a specific provision that allows the Tribunal to release them to the legal practitioner, even though they are exempt documents. I think I gave your Honours that provision this morning. From recollection it is section 56 of the FOI Act.

KIRBY J: But what is the point of that?

MR BEACH: I am just saying that you get back to the matter, how parties argued the public interest considerations in the abstract in the Court of Appeal can have nothing to do with whether it is a good or bad point that we make that you need to look at the documents – the actual contents – that is a starting point – before you can ever opine or any broad or let alone an abstract question on public interest.

KIRBY J: What is the section of the FOI Act or the VCAT Act that allows the masking out of particular parts?

MR BEACH: There is a provision in the FOI Act, section 25.

KIRBY J: Thank you.

MR BEACH: Now, the second point made was that somehow we had not raised an error of law below in relation to the Tribunal’s decision on waiver. That is incorrect. In fact, what we had said below was that the Tribunal took an inflexible approach by adopting what Justice Madgwick had said in Bennett at first instance, and we actually said, no, the Mann v Carnell test was more inconsistent, and there is a lot of discussion in the outline of written submissions that we put below. I can make available to the Court if necessary copies of those submissions, but they clearly raise legal points.

KIRBY J: I thought that ultimately the Solicitor agreed that that was not argued and that there was some exchange of correspondence but it was not a point that was argued on the return of the hearing of the appeal.

MR BEACH: No. It is wrong to say that we were saying that there was an inflexible rule. We were saying there was flexibility in the Mann v Carnell test and it was the Tribunal who had got it wrong by inflexibly saying there was a complete distinction between the conclusion on the one hand and detailed reasons on the other.

The next point is it said there is no ground of appeal dealing with the historic contemporary point. There are two reasons for that. First, one or perhaps two of the members of the court actually dealt with that issue and they dealt with it by way of obiter because ‑ ‑ ‑

KIRBY J: I am not hearing you because you are standing away from the microphone.

MR BEACH: Sorry. They dealt with it by way of obiter because Justice Maxwell said that the error made by the Tribunal on the section 30 point was a knock out punch and so the rest of it on one view is obiter. It had to go back to the Tribunal on the section 30 point to work out the exemption before you could then proceed to deal with the section 50(4) question.

The other point is that the Court of Appeal below was not looking at it in terms of a document by document contents analysis, they were saying something a bit more general, that this historic contemporary distinction does not operate for legal professional privilege and they were looking at it in that sort of context, that we were somehow trying to rewrite the basis for legal professional privilege by taking that approach.

KIRBY J: Does this Court have to deal with both the waiver point and the public interest override point or could this Court properly go just to the public interest override point on the basis that you have not succeeded anywhere on the first point and, therefore, we should concentrate our attention on the matter which you did succeed on and which was reversed?

MR BEACH: Well, put aside document 9, all of the other documents give rise to the section 50(4) point, so whatever happens with the waiver point you need to deal with the section 50(4) in relation to the other eight documents. The only additional feature of document 9 is the waiver point, which if we succeed on does not have to go back on section 50(4) but it would go back on the question of the section 30 exemption, although perhaps the section 50(4) point is reinvigorated again if the section 30 exemption is found not to exist if it goes back. So you do certainly need to deal with the section 50(4) point and we say you need to deal with the waiver point.

Just moving on to the waiver. There were two points. The Southern Cross Airlines Case, if you look at the facts of that rather than statements of the principle, the relevant disclosure in that case at page 478, lines F and G it says:

My solicitors have advised me that the Company has potential claims against Apogee –

That is far and away different to this case. Potential claims is almost puffery. It does not say whether they are good claims, whether they are going to succeed. It is nowhere near the sort of disclosure here. In relation to the Nine Films Case. The Nine Films Case has a statement by Justice Tamberlin at paragraph [5]:

a right is not to be waived unless there is clear conduct or language which evidences an intention to waive –

That appears in my learned friend’s submission but it is not correct ‑ ‑ ‑

GUMMOW J: I am not going to decide this case on waiver by scratching around amongst these various decisions. I am going to try and decide it according to principle.

MR BEACH: No, but my point is he made that statement because I think he mixed the statutory abrogation point where you talk about the clear legislative intent point. Anyway, you can see that. But in terms of the actual disclosure of advice, it was not there because his Honour said that the disclosure of Littlemore QC’s advice was the Sydney Morning Herald and that was hearsay. So it fell away on an evidentiary basis so it is less of a case than we have here because the only other statement was that, “we have taken independent advice”. Anyway, your Honours can perhaps look at that.

Reference was made to paragraphs 127 and 128 of Justice Bongiorno’s reasoning on this, no public interest would allow political collateral attack. We are not making a political attack, we are just trying to get the story from my client’s position. So to label it with political we say is wrong. Collateral attack carries with it all of the baggage of something inappropriate. That is wrong. We say that both levels as a distraction in Justice Bongiorno’s decision are just wrong because what we are looking at here is not abstraction but what was happening in the instant case where there had been publication of the media release.

Two other points. The first is, Justice Kiefel asked about this clear the air point. It may not have been a clear the air in the public arena but it was certainly a clear the air in terms of the appellant and her support group because his Honour in the Tribunal set out a detailed chronology where there were all of these advices, including an options advice by Mr Redlich and the clear the air can be looked at in the light of that chronological sequence of the advices at different times and then suddenly it culminates in this definitive position right at the end and you say, well, how definitive could it be when you have these advices going back two years, including an advice of Mr Redlich which purports to be an options paper?

That is, in part, the context for these clear the air observations. The other part of that is that he has read the documents, he doesn’t want to disclose the contents of the documents in his reasons but it is a fair inference that he looked at all of these documents and himself thought there was a less than definitive position in terms of the grounds for dismissal.

KIRBY J: Is there a text book on the Freedom of Information Act 1982 (Vic)?

MR BEACH: Yes, there is.

KIRBY J: What is the name of the text book? He does not seem to be helping you to bring it to our notice, this undue modesty.

MR BEACH: No. Victorian Administrative Law is a loose leaf service which contains great detail on the Freedom of Information Act 1982. It is Victorian Administrative Law by Kyrou and Pizer.

KIRBY J: Have there been any case notes on this case because of its meandering course?

MR BEACH: I am not aware of any, but the Law Reform Commission in the report published in December of last year had three paragraphs on waiver and did refer to this case, but, of course, the Commonwealth Law Reform Commission report was more about federal legislation and the need to abrogate and the question of whether tax advice should be the subject of privilege, so it had a slightly different emphasis. In fact, we do have copies of that if you want but I do not think it is going to assist you very much.

Your Honours asked me before lunch what was the position in relation to publication of the grounds of the petition before the media release. I took instructions over lunch. There is no evidence before your Honours about this but my instructions are, first, that there was a public meeting held in Bendigo in late 1999 at which a hundred people attended at which the petition was discussed.

The second aspect is that there were 40,000 postcards printed after the petition that were then circulated to people and the idea was that they would demonstrate support for my client by writing to the Government. Those postcards had the six grounds of petition on it but, your Honours, there is no evidence and I understand how your Honours cannot receive obviously fresh evidence. So unless there is anything else, your Honours, those are my submissions.

GLEESON CJ: Thank you, Mr Beach. We will reserve our decision in this matter and we will adjourn until 10.15 on Tuesday, 13 May 2008.

AT 4.13 PM THE MATTER WAS ADJOURNED

[2008] HCATrans 175

24 April 2008