Secretary, Department of Justice v Osland (No 2)
[2009] VSCA 69
•7 April 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3761 of 2005
| SECRETARY TO THE DEPARTMENT OF JUSTICE | |
| Appellant | |
| v | |
| HEATHER MARJORIE OSLAND (NO 2) | Respondent |
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JUDGES: | MAXWELL ACJ, ASHLEY JA and BONGIORNO AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 March 2009 | |
DATE OF JUDGMENT: | 7 April 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 69 | |
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ADMINISTRATIVE LAW – Freedom of information – Exempt documents – Documents subject to legal professional privilege – Unsuccessful petition for mercy – Whether public interest required disclosure of advices relied on by Attorney-General – Announcement of decision referred to only one of numerous advices – Material differences between advices – Whether announcement misleading – Whether political accountability required disclosure of all advices – Whether general policy considerations relevant to public interest analysis – Freedom of Information Act 1982 (Vic) ss 32, 50(4).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms P Tate SC, Solicitor-General for Victoria | FOI Solutions |
| For the Respondent | Mr R Merkel QC with Mr R H M Attiwill and Mr J Pizer | Hunt & Hunt |
MAXWELL ACJ,
ASHLEY JA ,
BONGIORNO AJA:
The further hearing of this appeal follows a remitter by the High Court of Australia. The circumstances giving rise to the remitter are fully set out in the judgment of the High Court[1] and in the previous decision of this Court.[2] For present purposes, the following summary will suffice.
[1]Osland v Secretary, Department of Justice (2008) 234 CLR 275.
[2]Secretary, Department of Justice v Osland [2007] VSCA 96; (2007) 95 ALD 380.
Background
On 2 October 1996 a jury of the Supreme Court of Victoria found Mrs Osland guilty of murdering her husband on 30 July 1991. The same jury could not reach a verdict with respect to her son, David Albion, who was also charged with the murder. Both Mrs Osland and Mr Albion had relied upon the defences of self-defence and provocation. The evidence was that Mr Albion actually wielded the iron bar that killed Mr Osland and that Mrs Osland had planned the killing and assisted in carrying it out. Subsequently Mr Albion was retried on the charge of murder, but was acquitted.
On 12 November 1996 Hedigan J sentenced Mrs Osland to a term of imprisonment of 14 and a half years, with a non-parole period of nine and a half years. In delivering his sentence Hedigan J noted that, in the period leading up to the murder, Mrs Osland had been subjected to repeated violence, and threats of violence, from her husband.
Mrs Osland appealed against her conviction and sentence, but was unsuccessful. On 1 August 1997 the Court of Appeal dismissed her application for leave to appeal against conviction and sentence.[3] On 10 December 1998, a further appeal (by special leave) to the High Court of Australia was dismissed by a 3:2 majority.[4]
[3]R v Osland [1998] 2 VR 636.
[4]Osland v R (1998) 197 CLR 316.
On 5 July 1999 Mrs Osland submitted a petition for mercy to the Attorney-General, in which she sought a pardon from the Governor of Victoria. The grounds relied on in support of the grant of a pardon were summarised by the Victorian Civil and Administrative Tribunal as follows:
1.There is strong evidence that with appropriate law reform which acknowledged gender difference in provocation and self defence, Mrs Osland would have been found to have acted in self-defence when Frank Osland was killed.
2.Additional and new evidence strongly supports Mrs Osland’s claim that she acted in self-defence when her husband died.
3.Mrs Osland’s sentence is very severe when weighed in the context of her life experience and, if served in full, will significantly exceed the terms served by women in recent comparable cases which we have been able to identify. Mrs Osland lived in a prison of domestic violence for 13 years before entering her current prison. Her cumulative suffering has been and continues to be so profound that executive intervention is now warranted in ending it.
4.Even if it is accepted that Mrs Osland committed an offence, she and her family were so offended against by the wider community in its failure to protect her and her children from sustained torture, terror and trauma, that it is appropriate that the community’s representative should now temper Mrs Osland’s justice with compassion.
5.None of the reasons for which we as a community imprison people – to punish, to reform, to deter others from offending – apply in her case any longer.
6.Mrs Osland’s continuing imprisonment is corrosive of people’s faith in the justice system because it shows the law failing.[5]
[5]Re Osland and Department of Justice [2005] VCAT 1648, [8]; (2005) 23 VAR 378, 382.
On 6 September 2001, the Attorney-General, Mr Hulls, announced that the Governor had refused the petition. In a press release issued that day, the Attorney-General said:
On July 5, 1999, Mrs Osland submitted a petition for mercy to the then Attorney-General Jan Wade. That petition set out six grounds on which the petition should be granted.
Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland’s petition.
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.
After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.
The Governor has accepted this advice and denied the petition.
The joint advice referred to in the press release was the last in a series of advices and memoranda provided to the Government in connection with its consideration of Mrs Osland’s petition. Those advices and memoranda are listed in chronological order in the schedule to this judgment. One of the advices – from the Crown prosecutors – and one memorandum (document 10) had already been provided to Mrs Osland.
Mrs Osland made application under the Freedom of Information Act 1982 (Vic) (‘the Act’) for access to the other advices. The Department of Justice (the Secretary of which is the appellant in this proceeding) denied access on the ground that the documents were exempt documents under the Act. Mrs Osland’s application for review of the decision denying access was upheld by the Victorian Civil and Administrative Tribunal (‘the Tribunal’) on 16 August 2005. The Tribunal ordered that Mrs Osland be given access to the nine documents in dispute.
On 17 May 2007, this Court upheld the Secretary’s appeal against the Tribunal’s order granting access to the documents. The Court held that the Attorney-General had not, by issuing the press release, waived privilege in the contents of the joint advice. That conclusion was upheld by the High Court.
The remaining issue concerned the Tribunal’s conclusion that access should be granted to all of the legal opinions, notwithstanding that they were exempt documents, on the ground that the public interest required that access be granted. This Court disagreed with Morris J, holding that the ‘public interest override’ in s 50(4) of the Act was not capable of applying in these circumstances. The High Court held that this Court ought to have inspected the exempt documents before deciding whether s 50(4) could or would apply. The matter was remitted to this Court for a reconsideration of that question.
No remitter to the Tribunal
Counsel for Mrs Osland argued at the outset that, although this Court had power to decide the s 50(4) question,[6] we should remit that question to the Tribunal for determination. It was said that the requisite balancing of public interests was the very kind of task which the Tribunal, as the fact-finding body, should undertake.
[6]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(7)(b).
We rejected that submission, for the following reasons. First, the Tribunal has already exercised the s 50(4) discretion. For reasons given by this Court on the last occasion, that exercise of discretion was vitiated by error. There was no appeal from that part of the decision, and we see no particular reason why the Tribunal should be called on to consider the exercise of the discretion for a second time. The appellant’s abandonment of the other ground of exemption originally relied on (s 30(1) of the Act) means that there is no longer any ‘unfinished business’ in the Tribunal.
Secondly, as already noted, what has brought the matter back is this Court’s failure on the last occasion to inspect the advices before concluding consideration of the s 50(4) question. We have now completed that task. As our further reasons will show, there is no difficulty in this Court’s considering and deciding that question. Finally, and in any event, there must be an end of litigation. The original decision on Mrs Osland’s request for access to the documents was made seven and a half years ago. The remaining issue is clear and it should be decided here and now.
Differences between the opinions
What prompted the remitter from the High Court was the implication, conveyed by the following parts of the Tribunal’s reasons, that there were differences of opinion between the joint advice and the earlier advices, including the advice provided a year earlier by Mr Redlich QC and a junior barrister, Ms Riddell. (Morris J referred to this as ‘the Redlich advice’, and we shall do likewise).
However in circumstances where a government decision is made in relation to a petition of mercy, relying upon particular advice which is specifically referred to, there will be a strong public interest in also making available any other advice that has been obtained in relation to the same question. If a decision-maker obtains advice from two sources and receives different advice, the public might be misled if it is told that a decision has been made on the basis of advice (specifying the advice) without reference to the fact that there was also different advice. If only one advice is specified in such circumstances an impression may be created that the decision-maker really had no choice; whereas if the two different advices are specified the public might think that there was a choice to be made by the decision-maker and wish to know why a particular choice was made.
In my opinion, there are powerful reasons why the conclusions contained in the VGS advices and the Redlich advice should be make (sic) available to the public. It is only if these conclusions are publicly available that citizens will be in a position to put these conclusions beside the conclusions in the joint advice; and to assess the merits of the Government’s decision to deny the petition of mercy. However the provision of access to just the conclusions contained in the VGS advice and the Redlich advice is likely to raise even more questions about the consideration of the petition of mercy, without answers. Are the reasons given in the joint advice more cogent than the reasons given in the Redlich advice? Was the same information available to each advisor? And so on. In order to clear the air and properly inform the public it would be necessary for the whole of these documents, not just the conclusions, to be made available.[7]
[7]Re Osland and Department of Justice [2005] VCAT 1648, [52]–[53]; (2005) 23 VAR 378, 392-3 (emphasis added).
As to these paragraphs, the plurality judgment in the High Court (Gleeson CJ, Gummow, Heydon and Keifel JJ) said:
[I]t is not clear from those paragraphs whether Morris J was saying, or suggesting, that there was some material inconsistency between the joint advice and the other advices received by the Attorney-General, or between the factual bases upon which the various advices were given. Yet he appeared to raise, as a matter for serious consideration, the possibility that there was some “difference” between the joint advice and other advices.
…
There are obvious difficulties in giving the phrase “public interest” as it appears in s 50(4) a fixed and precise content. It is sufficient to say here that the assumption by the Attorney-General of political accountability by the putting out of the press release may, in the circumstances, enliven s 50(4). If there were nothing more to it than that Morris J was saying that the very existence of a number of advices meant that, in order to “clear the air” and dispel any speculation about possible inconsistency, they should all be released then the Court of Appeal should have rejected that reasoning. If, however, there were some material difference in the advices, or the facts on which they were based, then, depending on the nature and extent of that difference, it is not impossible that an aspect of the public interest could require its revelation … It could not be said that, as a matter of principle, no inconsistency between the various advices could possibly have required the disclosure of all or any of them. The Attorney-General, in his press release, referred, for an obvious and legitimate purpose, to certain legal advice as recommending the course that was finally taken. If it had been the case that the Government had received other and materially different legal advice then, depending on the nature and extent of the difference, it is possible that this could have been a relevant consideration in deciding the requirements of the public interest under s 50(4). This is not to say that the existence of differences would necessarily require disclosure. Rather, the existence of such differences as might require disclosure, having been raised obliquely by Morris J, could not be disregarded as legally impossible …
The Court of Appeal was not obliged to remit the matter to the Tribunal. It was empowered to deal with the s 50(4) issue itself. In doing so, because of what Morris J had said about the possibility of inconsistency, the Court of Appeal should have examined the documents for itself. Having done so, it may well have concluded that the public interest did not require access to the documents and that either there were no material differences or that such differences did not require disclosure of the documents …[8]
[8]Osland v Secretary, Department of Justice (2008) 234 CLR 275, 300-1 (emphasis added).
We have highlighted certain passages in this extract to draw attention to their Honours’ careful use of the language of possibility. It was not ‘legally impossible’, their Honours said, that there might be such differences between the advices as might require disclosure in the public interest. Without an examination of the advices, that possibility could not be excluded. Contrary to the submission advanced for Mrs Osland, however, their Honours did not express any view about the kind of difference which might be relevant to the s 50(4) question.
We have read the advices. Counsel for Mrs Osland were also given access to the advices, on a confidential basis, in order that they be able to make full submissions on the s 50(4) issue. It is necessary that we take care in giving our reasons ‘not to say too much about the contents of the documents and thereby pre-empt the outcome of the entire dispute.’[9] (We were invited by counsel for Mrs Osland to provide, in confidential reasons, a detailed account of the content of the advices. As will appear, we have not found it necessary to do so.)
[9]Ibid 291.
In the circumstances, we think it both necessary and sufficient to state that there were material differences of opinion[10] between the Redlich advice and the joint advice, and that there were different shades of opinion within the two VGS advices, and between those advices and the DOJ advice. As the members of the High Court majority noted, so much might have been inferred from what Morris J said in the passages set out above. We think it important – and the parties to the appeal did not oppose this course – to put an end to the speculation on that aspect of the matter. For reasons which follow, however, it is unnecessary to say more about the nature or extent of the differences of opinion.
[10]We use the term ‘material’ in the sense identified by the Solicitor-General in her submissions, that is, as meaning relevant and of substance.
Does the public interest require that access be given?
In our view, there is nothing in the content of the advices, and in particular nothing in the revealed differences, that attracts the operation of s 50(4). Our reasons are as follows.
The Tribunal has power under s 50(4) of the Act, to grant access to an exempt document ‘where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.’ As the Tribunal noted, this provision is known as the ‘public interest override’.[11]The Appeal Division held in Director of Public Prosecutions v Smith[12] that the formation of an opinion under s 50(4) may involve ‘resolution of conflicting public interests.’ On the one hand, there is a public interest against access inherent in the reason for the document being exempt (in that case, legal professional privilege); and, on the other hand, there may be public interest factors favouring access.
[11]The Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117 [26]; [1999] 3 VR 331, 340 (‘Hulls’) said this description was ‘not inappropriate’.
[12][1991] 1 VR 63, 72.
Moreover, it was common ground on the appeal that the task now confronting this Court involved a balancing process. Both sides relied on what was said by the Court of Appeal in Hulls[13] in relation to the public interest override. As summarised by the Tribunal, the Court in Hulls said:
•In each case the tribunal must determine whether considerations of the public interest are so strong as to outweigh, or override, those factors by which the documents are exempt documents.
•The over-ride cannot be invoked simply because the tribunal holds the opinion that it is in the public interest that the exempt document be released; rather, the question is whether the public interest requires the release of the document: that is, demands or necessitates disclosure.[14]
[13][1999] VSCA 117; [1999] 3 VR 331.
[14]Re Osland and Department of Justice [2005] VCAT 1648 [41]; (2005) 23 VAR 378, 389-90. See Hulls [1999] VSCA 117, [26] and [31]; [1999] 3 VR 331, 340 and 342.
It was also common ground that the power conferred by s 50(4), to grant access to an exempt document, was exercisable only if the Tribunal (or, in this case, the Court) concluded that the public interest required that access be granted. That is a stringent test. As this Court said in Hulls, ‘requires’ in this context is synonymous with ‘demands’ or ‘necessitates’. There is ‘a sense of the imperative.’[15]
[15][1999] VSCA 117 [33]; [1999] 3 VR 331, 342-3.
The principal argument for Mrs Osland was that the Attorney-General’s press release was liable to mislead the public because it
created the misleading impression that the only legal advice the Attorney-General had obtained on [Mrs Osland’s] petition had advised the Attorney-General to deny the petition. The Attorney-General had obtained other and materially different advice … [T]he disclosure of this other advice is required by s 50(4) in order to make the Attorney-General politically accountable and correct the misleading impression created by the voluntary publication of the press release.
Alternatively, it was said, the misleading impression conveyed was that the joint advice was ‘the’ advice the Attorney-General had received. But, as counsel acknowledged, this was really a distinction without a difference.
Reliance was placed on a line of authority concerning s 52 of the Trade Practices Act 1974 (Cth), to the effect that conduct by a corporation can be misleading where information is withheld – ‘misleading by silence’.[16] Thus, in Fraser v NRMA Holdings Ltd,[17] the Full Court of the Federal Court said:
Whilst s 52 does not by its terms impose an independent duty of disclosure which would require a corporation or its directors to give any particular information to members … where information for that purpose is promulgated, unless the information given constitutes a full and fair disclosure of all the facts which are material to enable the members to make a properly informed decision, the combination of what is said and what is left unsaid may, depending on the full circumstances, be likely to mislead or deceive the membership.
[16]See, for example, Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, 41; CCP Australian Airships Ltd v Primus Communications [2004] VSCA 232, [34] (Nettle JA).
[17](1995) 55 FCR 452, 467 (‘Fraser’) (emphasis added).
Counsel for Mrs Osland cited what Gummow J said in Demagogue Pty Ltd v Ramensky,[18] as follows:
[18](1992) 39 FCR 31, 41.
[T]he question is whether in the light of all relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is likely to be misleading or deceptive.
According to their submission, the relevant circumstances of the present case
compel the conclusion that disclosure of the materially differing advices is required in the public interest in order to satisfy the public political accountability the Attorney-General assumed in publishing his press release.
We point out in passing that this last proposition is not, in fact, a contention that the press release was, in the circumstances, misleading. Rather, it is a contention about what was necessary, in the circumstances, ‘to satisfy the public political accountability the Attorney-General assumed …’. At the hearing, this was presented as an alternative argument, and we deal with it as such below.
In argument, senior counsel for Mrs Osland referred to the decision of the High Court in Krakowski v Eurolynx Property Ltd.[19] In that case, Eurolynx, the vendor of certain shop premises, had represented to Mr and Mrs Krakowski, the potential purchasers, that it had leased the shop in question to a tenant (S) at a commencing rent of $156,000 per annum. A lease in those terms had indeed been entered into. There was, however, an undisclosed side agreement between Eurolynx and S, by which Eurolynx agreed to grant S an initial three months rent-free period and to pay the tenant a sum equivalent to a year’s rent for fitting out and stocking the shop.
[19](1995) 183 CLR 563, 575-7 (‘Krakowski’).
Eurolynx contended that the only representation it had made was that the instrument of lease entered into contained a covenant for the payment of a rental of $156,000 per annum. The Krakowskis contended – and the High Court agreed[20] – that Eurolynx had represented that ‘the lease contained the whole of the agreement between Eurolynx and the tenant’.[21] This representation was false because, as already noted, the agreement between Eurolynx and the tenant included the side agreement, which had not been mentioned.
[20]As had the Appeal Division of this Court – see Krakowski v Eurolynx Property Ltd (1995) ATPR 41-419.
[21]Krakowski (1995) 183 CLR 563, 576.
Though there may be room for argument on the point, we are content to assume that this body of law, developed in the application of a consumer protection statute to the behaviour of corporations, can be applied by analogy to the – quite different – context of public announcements by Ministers. These authorities emphasise the obvious truth that whether a particular statement is misleading will depend on the circumstances of the case. The occasion for the making of the relevant statement, and the purpose for which it can be seen to have been made, are obviously relevant circumstances. In Fraser, for example, what was seen to be critical was that the information disclosed by the company should ‘enable the members to make a properly informed decision’.[22]
[22](1995) 55 FCR 452, 467.
The present circumstances could hardly be more different from those under consideration in Krakowski. There the court was concerned with a representation made in the course of commercial negotiations, intended to be relied on – and in fact relied on – by the other party to the negotiations in making a significant commercial decision. The evident purpose of the Attorney-General’s announcement, by contrast, was to provide information to the public at large. As Maxwell P said in his earlier judgment in this proceeding, its purpose was
to inform the public that the recommendation [the Attorney-General] had made to the governor – that the petition for mercy be denied – was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected. The Attorney-General evidently wished it to be known that, in considering whether or not the prerogative of mercy should be exercised, he had taken independent advice and was making a recommendation which accorded with that advice. In the language of Carnell, this was a disclosure “for the purpose of explaining or justifying” the Attorney-General’s actions. The purpose was similar to that of the disclosure in Carnell itself, where the Chief Minister wished to satisfy the relevant member of Parliament that the ACT Government “had acted responsibly and in accordance with legal advice”.[23]
[23]Secretary, Department of Justice v Osland [2007] VSCA 96 [66]; (2007) 95 ALD 380, 397. The references to Carnell are references to the High Court decision in Mann v Carnell (1999) 201 CLR 1.
The plurality judgment of the High Court expressed a similar view, though in slightly different terms:
The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision.[24]
[24]Osland v Secretary, Department of Justice (2008) 234 CLR 275, 298.
There was nothing in the language of the press release, or in the surrounding circumstances, which would warrant this Court finding – as a fact – that the Attorney-General had thereby represented to the public either that the joint advice was the only advice he had received on the topic or that he had received no advice to the contrary. On a fair reading, the announcement was not intended to enable – and did not invite – members of the public to make an assessment of whether the Minister had made the right decision. It was not a statement of reasons for the decision. The announcement was intended to convey – and in fact conveyed – no more than that the decision had been based on, and accorded with, independent legal advice from eminent counsel.
The public interest in accountability
It was argued in the alternative for Mrs Osland that, even if the press release was not misleading, the Attorney-General’s ‘assumption’ of political accountability for his decision nevertheless entailed that the advices be released in the public interest. The starting-point of the argument was the statement in the plurality judgment of the High Court that, by putting out his press release, the Attorney-General ‘assumed political accountability’ for the decision he was announcing.[25]
[25]See [15] above.
As it was developed orally, the steps in the argument were as follows:
1. By thus ‘entering the fray’ of political accountability, and seeking to justify the decision by reference to one of a number of (exempt) legal advices, the Attorney-General ‘exposed himself to the risk’ that s 50(4) would come into play and access would be granted in the public interest to other – and, in particular, any different – advices he had received on the subject.
2. In the present case, it was in the public interest for the Attorney-General to be required (by an order for access under s 50(4)) to disclose that he had received contrary advice, and to disclose all of the advices.
3. Otherwise, the Attorney-General would not be ‘properly accountable’ for his decision. On the contrary, he would be ‘immunised against accountability’ in respect of the decision.
With respect, we do not understand the members of the High Court to have been suggesting that it was only by virtue of the issue of the press release that the Attorney-General became politically accountable for his decision. Plainly enough, the Attorney-General was accountable ex officio (though not, on the present state of the law, subject to any of the legal processes of accountability which now attach to most decisions by public officials).[26] That is, as the substantive repository of the executive discretion,[27] the Attorney-General was politically accountable for any decision he might make, however that decision might be announced or communicated. For example, had the adverse decision simply been communicated by letter to Mrs Osland and not otherwise announced, the Minister could readily have been called to account[28] politically, whether in the Parliament or in the media or by supporters of Mrs Osland seeking to generate public debate about the decision. As the plurality judgment pointed out,[29] there was nothing to prevent Mrs Osland from making public her petition, as and when she desired. Likewise she would have been free to publicise the Attorney-General’s refusal of her petition in any way she chose.
[26]See Chris Horan, ‘Judicial Review of Non-Statutory Executive Powers’ (2003) 31 Federal Law Review 551.
[27]As to what recommendation he should convey through the Premier to the Governor.
[28]‘Accountable’ means ‘liable to be called to account’: The New Shorter Oxford English Dictionary (1993) Vol 1, 15.
[29]Osland v Secretary, Department of Justice (2008) 234 CLR 275, 298.
So much was accepted by senior counsel for Mrs Osland. As appears from the summary set out above,[30] however, the essential argument for Mrs Osland was that the issue of the press release, and its reference to the joint advice, somehow enlarged the content of the Attorney-General’s obligation of accountability. The taking of that step meant that the demands of accountability could no longer be satisfied by the Minister being questioned or criticised in Parliament or by journalists and commentators. Because he had chosen to justify himself by referring publicly to the joint advice, so it was said, he had assumed an obligation of accountability which could only be discharged by his disclosing also that he had had other, and different, advice. That disclosure not having been made, so the argument went, the public interest in political accountability required that access be given to all of the advices under s 50(4).
[30]See [33].
Although senior counsel initially insisted that his accountability argument depended upon the particular facts of this case, he later conceded – properly, in our view – that the same accountability analysis would apply to other Ministerial announcements of this character. In answer to a question from the Court, he agreed that the same reasoning would have been applicable, for example, to the public statement by the Commonwealth Attorney-General in 2003 that the Federal Government had received legal advice confirming the legality of the Iraq War.[31] He further conceded that, if the particular advice said by a Minister to justify a decision were itself heavily qualified or equivocal, accountability would – on this argument – oblige the Minister to disclose those matters.
[31]There is, of course, no equivalent in the Freedom of Information Act 1981 (Cth) to s 50(4) of the Victorian Act.
What underpins the submission, therefore, is a proposition of a general – and potentially far-reaching – character. The proposition is that if, in announcing a government decision, a Minister states that the decision accords with legal advice which the Government has received, the Minister must – in order to be ‘properly accountable’ – disclose the existence of any advice received which is contrary to the decision arrived at and must disclose the content of all relevant advices. That is what the public interest is said to require. Translated into the language of the Freedom of Information Act 1982 (Vic), this means that if a ministerial decision is stated to be supported by legal advice, and contrary advice has been received by the Minister relevant to the decision but is not referred to, the public interest under s 50(4) of the Act is enlivened so as to require that access be granted to all relevant advices. (As a matter of principle, the same theory of accountability would extend to advices of all kinds, whether legal or not, on which Ministers rely in arriving at their decisions.)
Why is such disclosure necessary to make the Minister ‘properly’ accountable? By what criterion is accountability in a particular case to be adjudged ‘proper’? The nature and extent of ministerial accountability is a large topic, involving large questions of political theory and constitutional law and practice. Some indication of its scope may be gleaned from the discussion by Matthew Groves in his article ‘Judicial Review and Ministerial Responsibility’.[32] Relevantly for present purposes, Dr Groves notes that it is the accountability of a Minister to Parliament which has been recognised as the defining feature of responsible government.[33] As earlier mentioned, the Attorney-General was, and remains, accountable to Parliament for his refusal of Mrs Osland’s petition.
[32]In Matthew Groves (ed), Law and Government in Australia (2005) 82. For a discussion of political accountability generally in Australia, see Marian Simms, “Models of Political Accountability and Concepts of Australian Government” (1999) 58 Australian Journal of Public Administration 34. For a discussion of accountability in the context of judicial review, see Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action (4th ed, 2009) 1. For a discussion of the meaning of accountability, see Jerry Mashaw, “Accountability and Institutional Design: Some Thoughts on the Grammar of Governance”, in Michael Dowdle (ed), Public Accountability: Designs, Dilemmas and Experience (2006) 118.
[33]See Egan v Willis (1998) 195 CLR 242, 451 (Gaudron, Gummow and Hayne JJ).
In the course of his submissions, senior counsel for Mrs Osland said: ‘This case is about what the public is entitled to know about this topic, which has come into the public arena in this way.’ Thus encapsulated, the accountability argument can be seen to proceed from much the same premise as did Morris J in the Tribunal, when he held that the granting of access to the advices was in the public interest. It was only if the advices were made publicly available, his Honour said, that
citizens will be in a position to put [the] conclusions [in the Redlich and other advices] beside the conclusions in the joint advice; and to assess the merits of the government’s decision to deny the petition of mercy.[34]
In the same way, it is now argued that in order for the Attorney-General to be ‘properly’ accountable, the public must be able to see both the joint advice and any contrary advice, in order to evaluate the merits of the decision in the light of the counter-arguments.
[34]Re Osland and Department of Justice [2005] VCAT 1648, [53]; (2005) 23 VAR 378, 393.
As Maxwell P said on the last occasion, abstract policy considerations such as these have no place in the s 50(4) analysis – in this or any other case. As Kirby J pointed out in the High Court appeal, FOI legislation is itself a mechanism by which the public interest in transparency and accountability is intended to be advanced.[35] But at the level of general policy, the Act itself has already struck a balance between the public interest in the maintenance of legal professional privilege, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other. The potential application of s 50(4) in a particular case falls to be considered in that legislative context.
[35]Osland v Secretary, Department of Justice (2008) 234 CLR 275, 302 (Kirby J).
It is, accordingly, outside the scope of s 50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability.[36] (The question of principle is no different when – as here – the Minister in announcing the decision refers publicly, without waiving privilege, to the conclusions of one such advice.) Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature.
[36]Ibid 326-7 (Hayne J).
As the Solicitor-General argued in her reply, the accountability submission also appeared to embody elements of the proposition, relevant to implied waiver of privilege, that disclosure of part of a (body of) legal advice may involuntarily oblige the privilege-holder to disclose the rest of the advice(s). As expressed by Wigmore,[37] the proposition is that when the privilege-holder’s conduct
touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.
[37]Wigmore, Evidence in Trials at Common Law (1961) vol 8, 636. See Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475, 488; Secretary, Department of Justice v Osland [2007] VSCA 96, [17]; (2007) 95 ALD 380, 386 (Maxwell P).
Whether that rule of fairness should be translated into a maxim of political accountability is, as we have said, beyond the scope of a proceeding such as this, in which the application of s 50(4) falls to be considered in relation to particular exempt documents.
Nothing in the particular circumstances of the case
The critical question which arises when an exercise of discretion under s 50(4) is sought is whether the particular circumstances of the case require disclosure of the exempt document(s) in the public interest. As Hayne J said in the High Court appeal:
Unless particular considerations are identified as supporting the conclusion that the public interest requires disclosure of particular documents in respect of which legal professional privilege is maintained, the public interest in the maintenance of the client’s privilege is not to be set aside. It is to be expected (at least in all but the most exceptional case) that any such countervailing consideration could be described with particularity and that it would be an interest of weight and substance.[38]
[38]Osland v Secretary, Department of Justice (2008) 234 CLR 275, 327. His Honour was in the minority in the result, but nothing said in this passage was at odds with the plurality judgment.
Having read the advices, we are quite satisfied that there is nothing about this petition, or these advices, or this process of decision-making, or this announcement, which compels disclosure of the advices in the public interest. In reaching that conclusion, we have not overlooked the context in which these events took place. As identified by senior counsel for Mrs Osland, the relevant context was the ‘public concern and controversy’ about what is referred to as ‘battered wives syndrome’, it being contended that Mrs Osland’s circumstances, and conduct, exemplified that syndrome. Whether that contention was correct was one of the issues under consideration in the advices. But assuming it was correct, that context did not, in our view, create or impose on the Attorney-General any new or different obligation of accountability which s 50(4) could be invoked to enforce.
An examination of the sequence of advices, both external and Departmental, confirms that a proper process was followed from start to finish. It is not unusual for a client to seek more than one legal opinion on a particular question. The more significant the question to be answered, the more likely it is that multiple opinions will be sought. Nor is it unusual for differences of opinion to emerge in the course of such a process. That they do emerge warrants no inference of impropriety or malpractice. On the contrary, the emergence of differences is likely to enhance the quality of the decision-making.
The question on which the Attorney-General sought and received the successive advices was of high importance and of considerable complexity. A reading of the advices confirms that the decision whether or not to exercise mercy – and, if so, how it should be exercised[39] - is informed, but not governed, by legal considerations. As Lord Diplock observed in De Freitas v Benny,[40] mercy ‘is not the subject of legal rights. It begins where legal rights end.’ The ultimate decision is a matter of judgment, not of law. It involves a range of questions, on some or all of which reasonable minds may well differ, as senior counsel for Mrs Osland acknowledged. The obtaining of the advices sequentially, rather than simultaneously, ensured that the Attorney-General was in a position to evaluate the material differences between them. But the existence of those differences does not compel disclosure in the public interest.
[39]There are many possible outcomes of a petition of mercy, ranging from outright refusal to the granting of a full pardon. They include full or partial remission of sentence.
[40][1976] AC 239, 247.
It is necessary to refer again[41] to the striking contrast between this case and the circumstances in Director of Public Prosecutions v Smith.[42] There, the applicant for FOI access to a legal opinion was said by the Appeal Division to have
provoked public concern that the administration of the criminal justice system had been perverted, thereby causing interest in the functioning of the system by members of the public. Consequently, it was a matter within the sphere of the public interest whether the termination of [the relevant] prosecution was seen to have been brought about according to law and regular legal procedure.[43]
Their Honours concluded that it had been open to the Tribunal in that case
under the very exceptional and regrettable circumstances giving rise to the review proceedings … to form the opinion that the public interest required disclosure of documents to which legal professional privilege attached.[44]
[41]As Maxwell P did on the last occasion: Secretary, Department of Justice v Osland [2007] VSCA 96, [101]; (2007) 95 ALD 380, 404-5.
[42][1991] 1 VR 63.
[43][1991] 1 VR 63, 75.
[44]Ibid 78.
Nothing of that kind occurred in the present case. This was an orthodox process of Government decision-making. The seeking of more than one advice was unexceptional, and the preferring of one view over another unexceptionable. There is no occasion for an exercise of the discretion under s 50(4).
It follows that the appeal must be allowed and the decision of the Tribunal (granting access to the exempt documents) set aside, and in lieu thereof it should be ordered that the decision under review, refusing Mrs Osland’s request for access, be affirmed.
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SCHEDULE
[Edited version of paragraphs 9-19 of the Tribunal’s reasons]
At the time of the State election in 1999 the petition for mercy was still being considered by the then Attorney-General, the Honourable Jan Wade MP. By that time Document 1 had been created, being a memorandum of legal advice dated 17 August 1999 from the Victorian Government Solicitor to the Attorney-General (‘the first VGS advice’).
Following the election, and the appointment of a new Attorney-General (the Honourable Rob Hulls MP), Document 2 was created. This is a memorandum of advice from Mr W H Morgan-Payler QC and Mr Boris Kayser, both Crown prosecutors, to the Director of Public Prosecutions. This document (‘the Crown prosecutors’ advice’) is dated 2 December 1999, and provides advice that the petition be rejected. (It transpired, on the eve of the Tribunal hearing, that the applicant had already received a copy of the Crown prosecutors’ advice; and, as a result, the respondent no longer maintained that this document was an exempt document.)
Following the preparation of the Crown prosecutors’ advice, Document 3 was created: this is a memorandum of advice, dated 8 December 1999, from the Victorian Government Solicitor to the Attorney-General (‘the second VGS advice’). This memorandum provided further advice to the Attorney-General in relation to the petition and made a recommendation in the light of the advice received from the Crown prosecutors.
Document 4 is a memorandum of advice dated 22 February 2000 from the then Acting Director of Legal Policy to the Attorney-General and the Deputy Secretary, Legal, of the department. This document, which is in the form of a short briefing note, also contains a hand written notation by the Attorney-General.
Document 5 is a memorandum of advice from the then Director of Legal Policy to the Attorney-General, the Secretary to the department and the Deputy Secretary, Legal, of the department. This memorandum includes a summary of the legal advice which had been obtained at the time of that memorandum. Although this memorandum made certain recommendations, it would appear that no final decision was made as a result of these recommendations.
On 9 May 2000 a meeting was held between, among others, the Attorney-General, former Premier Joan Kirner, and representatives of the applicant. During that meeting the Attorney-General stated that an opinion would be obtained from senior counsel on the merits of the petition. The name Robert Redlich QC was mentioned as a member of counsel who may be engaged to provide the advice. Document 6, which is a memorandum dated 10 May 2000 from the Director of the Legal Policy Unit of the department to the Attorney-General and Deputy Secretary, Legal, of the department, sets out issues upon which the opinion from senior counsel was to be obtained.
Document 7 is a letter dated 25 August 2000 and a lengthy and detailed memorandum of advice of the same date prepared by Robert Redlich QC and a junior barrister. The memorandum contains very detailed advice in relation to the petition and includes a number of annexures.
On 6 December 2000 Document 8 was created. This is a memorandum of advice from the then Director of Legal Policy to the Attorney-General and the Acting Deputy Secretary, Legal, of the department. This memorandum summarises the Redlich advice and sets out options available to the Attorney-General in the light of that advice.
After Document 8 was prepared discussions were held between the Attorney-General and the Premier. Following these discussions the Attorney-General requested his department to obtain a further joint advice from three senior counsel. The senior counsel asked to give that advice were Ms Susan Crennan QC, Mr Jack Rush QC and Mr Paul Holdenson QC. Document 9, which is dated 3 September 2001, is a memorandum of joint advice from these three barristers (‘the joint advice’). The joint advice is a comprehensive memorandum which canvasses essentially the same issues as those canvassed in the Redlich advice.
After receipt of the joint advice the department prepared Document 10. This is a memorandum dated 5 September 2001 from the Director of Legal Policy to the Deputy Secretary, Legal and Equity and the Attorney-General in which it is recommended that a letter be signed recommending that the petition be denied. A copy of this memorandum has already been released. Three draft letters were attached to this memorandum, generally giving effect to the recommendation in the memorandum. (The applicant no longer pursues her request in relation to these draft letters.)
Document 11 is a copy of a letter of advice which is undated and which was sent from the Attorney-General to the Premier in relation to the applicant’s petition of mercy. This letter enclosed a draft letter of advice from the Premier to the Governor and a draft letter of advice from the Governor to Mrs Osland.
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