Osland v Secretary to the Department of Justice

The High Court of Australia heard an appeal concerning an application for access to legal advice under the *Freedom of Information Act 1982* (Vic). The appellant, who had been convicted of murdering her husband, sought access to legal advice provided to the Attorney-General regarding her Petition for Mercy, particularly advice that was not referred to in the Attorney-General's public announcement of his decision. The core dispute involved whether the Victorian Civil and Administrative Tribunal (VCAT) had erred in granting access to these documents under section 50(4) of the Act, which allows for access to exempt documents where the public interest requires it.

The High Court was required to determine several legal issues. These included whether the legal advice not referred to in the announcement was materially different in substance from the advice on which the decision was based, and whether the Attorney-General, by issuing a press release, had assumed an obligation of public accountability that would attract the operation of section 50(4). Furthermore, the Court had to consider whether the Court of Appeal, on a previous remitter from the High Court, had correctly identified an error of law in VCAT's decision and whether section 50(4) was capable of application in the circumstances.

The High Court reasoned that the Court of Appeal had erred in its previous determination. It held that the Court of Appeal's power to make substitutive orders under section 148(7) of the *Victorian Civil and Administrative Tribunal Act 1998* (Vic) was limited to situations where only one conclusion was open on the correct application of the law to the facts found by the Tribunal. The Court found that the previous appeal to the Court of Appeal had succeeded on grounds that did not depend on a consideration of the contents of the disputed documents, including errors in how VCAT distinguished the stringency of legal professional privilege, conflated "matters of public interest" with "in the public interest," and failed to determine exemption under section 30 of the *Freedom of Information Act 1982* (Vic) before considering section 50(4). The High Court concluded that the Court of Appeal should not have made substitutive orders but rather should have remitted the matter for determination of the public interest considerations, which involved a factual and evaluative judgment.

Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal, and ordered that the appeal from VCAT be dismissed. The Court also vacated certain previous orders made by individual High Court Justices and released counsel and solicitors from written undertakings provided to the respondent.