Secretary to the Department of Justice v Osland

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3761 of 2005

SECRETARY TO THE DEPARTMENT OF JUSTICE
	v
HEATHER MARJORIE OSLAND

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JUDGES:	MAXWELL P, ASHLEY JA and BONGIORNO AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2006
DATE OF JUDGMENT:	17 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 96

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ADMINISTRATIVE LAW – Freedom of Information – Exempt documents – Documents subject to legal professional privilege – Unsuccessful petition for mercy – Whether privilege waived – Whether public interest required disclosure – Whether general policy considerations relevant to public interest analysis – Distinction between public interest and interest of public – Freedom of Information Act 1982 ss 30, 32, 50(4).

PRACTICE AND PROCEDURE – Privilege – Legal professional privilege – Waiver – Whether disclosure of conclusion of legal advice waives privilege over content of advice – Test is inconsistency – Mann v Carnell (1999) 201 CLR 1 applied – Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 not followed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms P Tate SC, Solicitor-General for Victoria with Dr S B McNicol and Ms M J Richards	FOI Solutions
For the Respondent	Ms K McMillan SC with Mr R H M Attiwill and Mr J Pizer	Hunt & Hunt

MAXWELL P:

On 5 July 1999, the respondent, Mrs Osland, submitted a petition for mercy to the then Attorney-General, Mrs Wade. On 6 September 2001, following the change of Government, the new 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.”

In addition to the joint advice referred to in the press release, a number of other advices had been provided to the Government in connection with the petition. The nature of those advices, and the circumstances in which they were respectively provided, are set out in the schedule to this judgment.

Mrs Osland made application under the Freedom of Information Act 1982 (“the Act”) for access to these documents. The Department of Justice, the Secretary to which brings this appeal, denied access on the ground that the documents were exempt documents under the Act. Mrs Osland’s application for a review of the decision denying access was upheld by the Victorian Civil and Administrative Tribunal on 16 August 2005. The Tribunal ordered that Mrs Osland be given access to the nine documents which are in dispute. The Secretary appeals, by leave granted on 14 October 2005, against that order of the Tribunal.

The petition for mercy

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.[1] On 10 December 1998 a further appeal (by special leave) to the High Court of Australia was dismissed by a 3:2 majority.[2]
[1]R v Osland [1998] 2 VR 636.
[2]Osland v R (1998) 197 CLR 316.

On 5 July 1999 Mrs Osland lodged the petition of mercy, in which she sought a pardon from the Governor of Victoria. Various arguments were advanced in support of the grant of a pardon. These arguments were summarised by the 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.”

Legal professional privilege

The first ground on which the documents were claimed to be exempt was that they were subject to legal professional privilege and hence exempt under s 32(1) of the Act. The Tribunal concluded that:

(a) the documents were the subject of legal professional privilege;

(b) there had been no waiver of the privilege; but

(c) notwithstanding that they were exempt documents, access should be granted because it was of the opinion that the public interest required such access (s 50(4)).

The Tribunal rejected an argument advanced on behalf of Mrs Osland that, since a petition of mercy involved a departure from the law under which the person had been found guilty, the petition did not concern legal rights and hence the advice was not legal advice. In the Tribunal’s view, a decision on a petition of mercy is –

“a decision that affects legal rights: indeed it affects a fundamental legal right, the right to liberty. Thus it is entirely appropriate that advice be sought from lawyers: not only in relation to legal issues about process, but also about questions of justice.”[3]

[3]Osland v Department of Justice [2005] VCAT 1648 [33].

That conclusion is not challenged on this appeal. Mrs Osland has, however, filed a notice of contention in relation to the last of the nine documents, the memorandum of joint advice of the three senior counsel referred to in the press release. It is contended that the document was not exempt under s.32 of the Act because the Attorney-General had waived the privilege. I deal with that question first.

Waiver of legal professional privilege

Mrs Osland contends that, by issuing the press release, the Attorney-General waived privilege in the contents of the joint advice. This is said to be a case of implied (or imputed) waiver, resulting from the following statements in the press release:

“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.”

As mentioned earlier, the Tribunal held that there had been no waiver. Before considering whether the reasons given for that conclusion disclose any error of law, it is necessary to review the – very substantial – body of authority to which we were referred.

The test for determining whether there has been an implied waiver of privilege is a test of inconsistency, as explained by the High Court in Mann v Carnell.[4] The joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ stated:

“Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.”[5]

[4](1999) 201 CLR 1.

[5]At 13 [28], citing Cross on Evidence, 5^th Aust ed (1996), [25005]; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498. For a recent application of this test by the Court of Appeal, see Spotless Group Limited v Premier Building & Consulting Pty Ltd [2006] VSCA 20 at [27] per Chernov JA.

The Court illustrated these propositions with two examples. The first was the disclosure by a client of his/her version of a communication with a lawyer, entitling the lawyer to give his/her account of the communication. The case cited was Benecke v National Australia Bank,[6] in which Ms Benecke had given evidence concerning what had passed between her and senior counsel representing her in earlier proceedings. She sought to prevent evidence being led from the barrister in question, giving her version of those communications.
[6](1993) 35 NSWLR 110.

The New South Wales Court of Appeal held that she had waived privilege over those communications. In language which anticipated what was later to be said in Carnell, Gleeson CJ said:

“It would be inconsistent with the reason for the existence of the privilege to permit it to operate in the manner for which [Ms Benecke] contends. But for her own actions, the privilege would have enabled [her] to insist that nobody should be able to give evidence of the confidential communications between [herself] and her senior counsel about the settlement of the first proceedings, without [her] consent. … However, it did not enable [her] to make public her version of those communications and, at the same time, to enforce silence on the part of others who disagreed with that version.”[7]

The principal judgment was that of Clarke JA, who said that Ms Benecke:
“in making her assertions that her lawyers compromised the proceedings without her consent, opened up the question of the authority of the lawyers to act as they did and thereby waived her privilege. I take this to be clear as a matter of legal principle on grounds of basic fairness.”[8]

[7]At 111.

[8]At 116 (emphasis added). Both Gleeson CJ and Sheller JA agreed with Clarke JA.

The second example given by the High Court in Carnell was that of a client instituting proceedings against a lawyer for professional negligence, in which case the lawyer can give evidence as to advice given to the client. The case cited was Lillicrap v Nalder & Son (a firm),[9] in which Dillon LJ adopted the following formulation of the scope of the implied waiver:

“A client who sues his solicitor invites the court to adjudicate the dispute and thereby … waives privilege and confidence to the extent that is necessary to enable the court to do so fully and fairly in accordance with the law, including the law of evidence.”[10]

Russell LJ proposed the following test:
“ … by bringing civil proceedings against his solicitor, a client impliedly waives privilege in respect of all matters which are relevant to the suit he pursues and, most particularly, where the disclosure of privileged matters is required to enable justice to be done.”[11]

[9][1993] 1 WLR 94.

[10]At 99 (emphasis added).

[11]At 101 (emphasis added).

The reference in Benecke to principles of fairness was a reference to the decision in Attorney-General for the Northern Territory v Maurice & Ors,[12] in which the High Court identified fairness as the criterion for determining whether there has been an implied waiver. In Maurice, and again in Benecke, reference was made to the following passage from Wigmore, Evidence in Trials at Common Law:[13]

“ … [W]hen his 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.”[14]

[12](1986) 161 CLR 475.

[13](1961) Vol 8 [2327] at 636.

[14]Benecke at 116; Maurice at 488.

The joint judgment in Carnell made clear that the touchstone for determining whether there has been a waiver is “not some overriding principle of fairness operating at large” but –

“…the inconsistency which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality”[15].

[15]At 13 [29].

Notions of fairness would seem to be particularly relevant, nevertheless, in circumstances of the kind dealt with in Benecke and Lillicrap. Where the client makes partial disclosure of privileged communications in order to advance the client’s position in litigation, it is unfair to prevent disclosure of the balance – or the lawyer’s version – of the communications.

A similar situation arose in Bennett v Chief Executive Officer of the Australian Customs Service,[16] a decision relied on by counsel for Mrs Osland.Bennett had brought proceedings against Customs concerning disciplinary action taken against him. While those proceedings were on foot, Customs made a written proposal for settlement setting out the gist of advice received by Customs from the Australian Government Solicitor, which supported the position adopted by Customs in the litigation.
[16](2004) 140 FCR 101.

By majority, the Full Federal Court held that Customs had waived privilege over the full advice from the Australian Government Solicitor. Gyles J (with whose reasons Tamberlin J agreed[17]) referred to authorities which, in his Honour’s view, showed that –
[17]As to Tamberlin J’s own views, see paras [29] and [46]-[48] below.

“[I]t is well established that for a client to 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.”[18]

For his part, Tamberlin J said of the letter in question:
“It is apparent that the substance and effect of the advice was being communicated in order to emphasise and promote the strength and substance of the case to be made against Mr Bennett.”[19]

That is, Customs was seeking an advantage in the litigation by disclosing the effect of the advice from its solicitors. Tamberlin J went on:
“In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion.”[20]

[18]At 120 [68] (emphasis added). (For discussion of the authorities in question, see paras [30]-[34] below).

[19]At 103 [5].

[20]At 104 [6] (original emphasis).

The cases characterise in different ways the nature of the inconsistency – and unfairness – which can arise as between parties to litigation, when there is disclosure, or part disclosure, of privileged communications. In Temwood Holdings Pty Ltd v Western Australia Planning Commission,[21] Wheeler J said:

“In considering imputed waiver of the sort alleged here – that is, waiver which is said to arise because of reference made to legal advice during the course of proceedings in open court – it is easy to imagine circumstances in which there would be a clear inconsistency between reference to the material and maintenance of the privilege. The most obvious example would be either a reading of the advice or a recounting of its substance in open court. Since proceedings of that kind are open to the public at large, use of the legal advice in that way would plainly be inconsistent with any future maintenance of the privilege.
A partial or incomplete reference to the substance of the advice during the course of legal proceedings in open court, may also give rise to such waiver. Where part only of advice is referred to, for example during the course of submissions or evidence, the maintenance of the integrity of the proceedings and the need to ensure that the court is not misled by a reference which inadequately reveals the whole context of the advice, means that the party making partial reference to it may be compelled to reveal the whole. Again, because of the nature of proceedings in open court, a reference of that kind, together with the need to ensure the fairness of the proceedings, is necessarily inconsistent with future maintenance of the privilege.”[22]

[21][2003] WASCA 112 at [18]-[19].

[22]At [18]-[19] (emphasis added).

A series of single judge decisions in 2003 dealt with the inconsistency which can arise when a party’s state of mind is put in issue but that party seeks to maintain – in whole or part – privilege over communications relevant to that state of mind. (The implied waiver which can arise here is often referred to as “issue waiver”).[23] In DSE (Holdings) Pty Ltd v Intertan Inc,[24] Allsop J said of cases where a party’s state of mind is put in issue:

“The inconsistency or unfairness arises from the putting in issue of a state of mind and maintaining confidence in communications which were relevant to the formation of that state of mind. (Or, putting the matter as I would prefer to put it – the inconsistency or unfairness arises from laying open to scrutiny the communication and maintaining confidence in the communication.)”[25]

[23]For a discussion of the authorities dealing with issue waiver, see Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at 354-358, [47] – [59].

[24](2003) 127 FCR 499.

[25]At 532 [127].

In Liquorland (Australia) Pty Ltd & Anor v Anghie & Anor,[26] Byrne J said that determining the question of waiver in such a case involved –

“an examination of the precise nature of [the] pleaded state of mind and of the impact of the particular communication upon it. It is only where this examination shows that there will arise an unfair inconsistency between the position of the client setting up this state of mind and its maintenance of the privilege that waiver will arise and, then, only to the extent necessary to avoid the unfairness.[27]

[26](2003) 7 VR 27.

[27]At 42 [41] (emphasis added).

In Walker-Shipley v State of Victoria & Anor[28] Bongiorno J said:

“There is a basic inconsistency between maintaining legal professional privilege in respect of communications between a lawyer and a client and the client’s obtaining much of the information which informs her state of mind from that lawyer when that state of mind is central to the litigation being pursued. A client in that position cannot, as a matter of fairness, selectively report such communications for the purpose of demonstrating ignorance of certain facts at a particular time whilst maintaining the confidentiality of the rest of her communication with her lawyer.”[29]

[28] [2003] VSC 178.

[29]At [10] (emphasis added).

In Commissioner of Taxation v Rio Tinto Limited,[30] the Full Federal Court was concerned with a statement made by the Commissioner for the purposes of litigation concerning an objection decision, in which the matters taken into account by the decision-maker were said to be “evidenced by” certain documents listed in a schedule. The Commissioner subsequently refused to disclose several of the scheduled documents on the ground of legal professional privilege. The Full Court held that privilege had been impliedly waived. Their Honours said:

“[T]he authorities show that where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.”[31]

Adapting what Allsop J had said in DSE, their Honours said that the question was whether the privilege holder had –
“made an assertion as part of his or her case in the litigation that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege?”[32]

[30](2006) 151 FCR 341.

[31]At 356 [52] (emphasis added), referring to Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347; United States Surgical Corp v Hospital Products International Pty Ltd (unreported, SCNSW, McLelland J, 13 October 1981); Carnell; Benecke.

[32]At 360 [65] (emphasis added).

The present case is of a different character. The disclosure in question did not occur in the context of litigation. It did not have the effect of unfairly advantaging one party over another. The content of the legal advice was not “put in issue”. Nor was it in Carnell. There, although there was litigation on foot between Dr Mann and the ACT Government, the disclosure of the legal advice was unconnected with the respective positions of the parties in the litigation. The privileged documents were provided to a member of the Legislative Assembly of the Australian Capital Territory:

“for the purpose of seeking to satisfy him that the litigation, and the settlement, did not involve a waste of public funds, and that those who represented the Australian Capital Territory had acted responsibly and in accordance with legal advice.”[33]

[33]At 8 [14].

In those circumstances, the High Court concluded, there had been no waiver of privilege:

“The purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by the appellant, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation.”[34]
[34]At 15 [35]

Does disclosure of the conclusion of legal advice waive privilege over the whole advice?

Counsel for Mrs Osland relied on the following statement by Gyles J in Bennett:

“The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion.”[35]

As will appear, this statement has been applied subsequently as if it were a rule of general application. For reasons which follow, I am respectfully unable to accept that any such general rule is either justified by the authorities or compatible with the inconsistency test as enunciated in Carnell. (Although Tamberlin J expressed agreement with the reasons of Gyles J,[36] his Honour went on to express his own view in terms which are inconsistent with the generality of the proposition enunciated by Gyles J.[37])

[35]At 119 [65].

[36]At 102 [1].

[37]See [46]-[48] below.

Gyles J followed the decision of Goldberg J in Australian Unity Health Limited v Private Health Insurance Administration Council.[38] That case concerned a decision made by the Council adverse to Australian Unity. An affidavit filed on behalf of the Council by its Chief Executive Officer exhibited a recommendation she had made to the Council, which said in part:

“Separate legal advice supporting [the Council’s] view of this rule has been received. A copy of that advice is attached.”

Goldberg J held that there was –
“an implied or an imputed waiver because the recommendation sets out a justification for the policy and an explanation of it which is supported by legal advice. That recommendation is now before the Court and it seems to me that the fairness principle requires that that advice … be disclosed.”[39]

[38][1999] FCA 1770.

[39]At [19], referring to the High Court decisions in Maurice and Goldberg v Ng (1995) 185 CLR 83.

In Australian Unity, Goldberg J referred – as Gyles J subsequently did in Bennett – to the decision of Rolfe J in Ampolex Limited v Perpetual Trustee Co (Canberra) Limited.[40] In that case, Ampolex had made a public statement in response to a takeover bid. In part, the statement said:

“There is a dispute about the conversion ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position.”

Rolfe J held that this statement was a disclosure of the substance of the legal advice said to support its position.

[40](1996) 40 NSWLR 12.

That question arose, however, under s 122(2) of the Evidence Act 1995 (NSW). No question of implied or imputed waiver arose, as Rolfe J stated expressly in his reasons.[41] What Rolfe J had to decide was whether the statement made by Ampolex constituted a disclosure of the “substance” of the legal advice given to Ampolex, within the meaning of s 122(2). His Honour held that it did. His Honour said:

“In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process, is revealed. At that stage, there has been, in my opinion, a disclosure of the substance of the advice, that is, what the advice is. Further the ultimate conclusion, whilst it may be a ‘result’ or ‘consequence’ of the reasoning is more than that: in its own right it is the essence or vital part of the advice. Some advices may be very short and answer the question with a minimum of reasoning or, in some circumstances, without any.”[42]

[41]At 24.

[42]At 19.

Goldberg J in Australian Unity also referred – as Gyles J subsequently did in Bennett – to the refusal by Kirby J of an application for a stay of the Ampolex decision (following the dismissal of an appeal to the New South Wales Court of Appeal), pending the hearing of an application for special leave to appeal. Kirby J said that the ruling of Rolfe J “seems arguably correct”.[43] But, with respect, this was likewise a view – and a tentative view at that – about the application of s 122(2) of the Evidence Act to the facts of the case. No question arose – and nothing was said by either Rolfe J or Kirby J – as to the application of the common law principles of imputed waiver which are in issue here.
[43]Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd (1996) 70 ALJR 603 at 607 [10].

In Australian Unity, Goldberg J concluded that –

“by stating the [Council’s] view of the rule, and that legal advice supports that view, the existence of legal advice is being disclosed, the contents of which say that it supports the respondent’s view of the rule.”[44]

His Honour said that he reached that conclusion “by analogy with the reasoning of Rolfe J and Kirby J in the Ampolex cases.” With great respect, I do not see that there was any relevant analogy. The application of s 122(2) of the Evidence Act turns on whether the “substance” of the relevant evidence has been disclosed. No such criterion governs the application of the common law inconsistency principle. As Goldberg J noted, the Full Federal Court had earlier held[45] that the question of pre-trial waiver was governed by common law principles, not by the Evidence Act.

[44]At [18].

[45]Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 at 519-526. This aspect of the Full Court’s decision was upheld by the High Court: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at [13]-[17].

In Bennett, Gyles J also relied on the March 1998 decision of the Full Federal Court in Adelaide Steamship Co Ltd v Spalvins[46] and on two 1998 decisions of Sackville J which applied Spalvins.[47] The effect of the decision in Spalvins was that, at least in jurisdictions where the Evidence Act 1995 was in force, loss of privilege in pre-trial processes was to be determined in accordance with s 122 of that Act, not in accordance with the common law. This was so even though the Act only applied in terms to the adducing of evidence at trial, and even though, as the Full Court noted, the test of waiver established by s 122 “differs from and is inconsistent with” the common law of waiver[48].
[46](1998) 81 FCR 360 at 366-7.
[47]BT Australasia Pty Ltd v New South Wales (No 7) (1998) 153 ALR 722 at 743-4; BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 at 207.
[48]At 372.

The decision in Spalvins was, however, short-lived. It was overruled in December 1998 by the majority of a five-member Full Court of the Federal Court, in Esso Australia Ltd v Commissioner of Taxation.[49] On appeal from that decision, the High Court endorsed the majority of the Full Court’s conclusion and reasoning, emphatically rejecting any “derivative” use of the Evidence Act provisions to mould the common law governing legal professional privilege.[50] As at the date of the decision in Bennett, therefore, no reliance could be placed on any decision (such as Spalvins) which treated common law waiver as if it were governed by the (different) statutory test created by s 122.[51]
[49]At 526, per Black CJ and Sundberg J and at 572 per Finkelstein J.
[50]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 59-63, [18] – [28], per Gleeson CJ, Gaudron and Gummow JJ.
[51]See also Rio Tinto (supra) at 356 [53].

Counsel for Mrs Osland also relied on the decision of Whelan J in Switchcorp Pty Ltd v Multiemedia Limited.[52] In that case, Multiemedia had made a statement to the Australian Stock Exchange which stated in part:

“The Board’s lawyers have been instructed to vigorously defend the claim and have advised that the plaintiffs’ claim will not succeed.”

His Honour held that this statement had effected a waiver of privilege in the advice referred to.

[52][2005] VSC 425.

His Honour stated the following as a general proposition:

“A statement which reveals the contents of legal advice, even if it does so in a summary way or by reference only to a conclusion, will, or probably will, result in a waiver.”[53]

His Honour referred to Ampolex, Australian Unity and Bennett as supporting this proposition. The flaw in that line of authority has already been referred to.

[53]At [12] (emphasis added).

In relation to the disclosure by Multiemedia, his Honour said –

“[T]here was a clear and deliberate disclosure of the gist or the conclusion of legal advice received by Multiemedia from its lawyers about the outcome of the proceeding. I do perceive inconsistency between this statement and the maintenance of confidentiality of the advice to which it refers.
If fairness has a role to play it seems to me that the relevant unfairness arises from the inconsistency. It is unfair in this sense to permit Multiemedia to cast aside confidentiality of the advice in making the statement to the world at large so as to explain or justify its position and to then insist upon confidentiality when inspection is sought of an otherwise discoverable document.”[54]

[54]At [21]-[22].

In 2006, Sackville J in Seven Network Ltd v News Ltd[55] applied what he described as “the principle stated in Bennett”, citing the statement by Gyles J that the disclosure of the conclusion of legal advice amounted to waiver in respect of the whole advice.
[55][2006] FCA 348.

Reference should also be made to the following statement by Young J in AWB Limited v Cole (No 5),[56] a judgment handed down after the conclusion of argument in this appeal. After a review of the authorities, his Honour said:

“AWB submitted that the reasoning in Bennett was unsound, particularly the holding that the disclosure of the conclusion stated in legal advice will amount to a waiver of the whole of the advice. AWB did not refer to any authorities that supported this submission and I reject it. In my view, it is well-established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice.”[57]

[56](2006) 155 FCR 30.

[57]At [163] (emphasis added).

With great respect, I do not consider that the authorities establish - or are capable of sustaining - any general rule to the effect stated by Gyles J and, subsequently, by Whelan J and Young J. Whether there is imputed waiver in any given case is a question to be determined in the circumstances of that case.

So much is clear from Carnell itself. That decision turned on the application of the inconsistency principle to the particular facts, as the following passage makes clear –

“It is not difficult to imagine other circumstances in which the basis on which the communications were made available to [the Member of Assembly], even though limited, would have been inconsistent with the purpose of the privilege and thus would have resulted in waiver. Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.”[58]

[58]At 15 [34] (emphasis added).

The Full Federal Court made the point forcefully in Rio Tinto. Thus:

“Where, as here, one party alleges that another has impliedly waived legal professional privilege, a court is bound to analyse the acts or omissions of the privilege-holder that are said to be inconsistent with the maintenance of the privilege. … Plainly enough, the inquiry that [the ‘inconsistency’ principle] mandates focuses on the facts of the particular case. It follows that other cases in which implied waiver has been considered provide limited guidance unless they arise out of similar facts.”[59]

Again:
“… [I]n any case where implied waiver is alleged the outcome will depend on the particular circumstances.”[60]

The Full Court’s conclusion that there had been waiver in that case followed a close analysis of the precise use which the Commissioner had made of the privileged communications in providing particulars of the relevant decision.[61]

[59]At 354 [45].

[60]At 358 [58]. See also DSE at 520 [62] per Allsop J.

[61]At 360-363 [67]-[73].

Likewise, Emmett J, in Bennett described the task in the following way:

“[I]n determining whether there is inconsistency between disclosure of the substance of confidential legal advice and maintaining confidentiality in respect of the legal advice, considerations of fairness will be relevant. That is a matter of judgment for a court when called upon to rule on the question of whether privilege has effectively been waived.”[62]

His Honour dissented in the result but this statement is, with respect, clearly correct.

[62]At 111 [36].

In my respectful opinion, the correct position is as stated by Tamberlin J in Bennett, as follows:

“Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to “the substance”, “effect”, or “content” of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation ‘A’ is preferable to interpretation ‘B’ of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, including the factual premises and circumstances leading to that conclusion.”[63]

[63]At 105 [13] (emphasis added).

His Honour took the same approach in Nine Films and Television Pty Ltd v Ninox Television Limited,[64] in considering the effect of a statement by one of the officers of Ninox, reported in the press, to the effect that senior counsel had been engaged –
[64](2005) 65 IPR 442.

“… and he has reviewed everything in great detail and we’re moving forward based on his recommendations.”

His Honour noted that legal professional privilege was a rule of substantive law, not merely a rule of evidence. It was an important common law right or immunity.[65] It followed, his Honour said, that –
“such a right is not to be waived unless there is clear conduct or language which evidences an intention to waive the privilege either expressly or by necessary implication.”[66]

Later, his Honour said:
“The task for the Court is to determine whether this specific disclosure is so clear and inconsistent with the maintenance of the privilege as to be unfair.”[67]

[65]Citing Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 at [9]-[11].

[66]At 443-4 [5].

[67]At 444 [8].

Tamberlin J held that there had been no waiver.

“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 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.”[68]

[68]At 446-7 [26] (emphasis added).

Disclosure of the conclusion (or the gist, substance or effect) of legal advice may, or may not, amount to a waiver of privilege in respect of the advice as a whole. Whether it does in a particular case will depend on whether, in the circumstances of the case, the requisite inconsistency exists, between the disclosure on the one hand and the maintenance of confidentiality on the other. In Bennett, the majority of the Full Federal Court judged that there was inconsistency and hence waiver; in British American Tobacco[69] (discussed below), this Court judged that there was not. In each case, there was a disclosure of the gist or substance of advice given. That opposite conclusions were arrived at is simply a reflection of the different circumstances of the respective cases.
[69](2002) 7 VR 524.

The content of an advice will often include confidential information about instructions given by the client, or about evidence to be given by a witness, or about forensic investigations being or proposed to be undertaken. These examples are sufficient to demonstrate why it is simply not the case that the disclosure of the conclusions necessarily amounts to, or necessarily entails, the disclosure of the content. There is no necessary inconsistency between disclosure of the one and non-disclosure of the other.

As Carnell demonstrates, the inconsistency test readily accommodates the notion that, in appropriate circumstances, the privilege-holder may disclose the content of legal advice to a third party for a particular purpose without being held to have waived privilege in the advice.[70] Likewise, in my opinion, the test of inconsistency is well capable of accommodating the notion that, in appropriate circumstances, the privilege-holder should be able to disclose publicly that it is acting on advice and what the substance of that advice is, without being at risk of having to disclose the confidential content of the advice.
[70]See also Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2006] VSCA 201.

The decision in British American Tobacco Limited v Cowell

In support of the argument that there was no waiver, the Solicitor-General relied on the decision of this Court in British American Tobacco Limited v Cowell.[71] British American Tobacco had disclosed correspondence between itself and its lawyers, which referred to previous legal advice and, in one case, stated the substance of that advice. This Court held that there was no waiver of privilege over the earlier advice.
[71](2002) 7 VR 524.

The correspondence in question was exhibited to an affidavit by corporate counsel for British American Tobacco (“CC”). The argument related to two exhibits, the first of which was a letter from CC to law firm A, with which was enclosed a copy of an earlier advice from law firm B. The letter of advice from firm B itself made reference to an earlier advice “… previously provided in December 1985 [which] you requested … be updated and amended where required”. The Court held that the waiver of privilege in respect of the exhibited letter of advice from B did not serve to waive privilege in relation to the earlier advice referred to in the letter. The Court said:

“A reference in one letter of advice to an earlier letter of advice does not expose the latter to scrutiny by the other party to litigation merely because legal professional privilege is waived in relation to the former; implied waiver is not so generous a doctrine. As we apprehend it, where legal professional privilege is waived in relation to one piece (or part) of advice, the privilege is impliedly waived in relation to another if – and only if – that other is necessary to a proper understanding of the first. As established by the High Court (at least since Mann v Carnell) the test in such cases is whether it would be ‘inconsistent’ for a party to rely upon, and so to waive legal professional privilege in respect of, the one without also being taken to have waived privilege in respect of the other.”[72]

[72]At 564 [121] (emphasis added, footnotes omitted).

The letter from CC to firm A said:

“Previous legal advice received some time ago was to the effect that …”

Again, the Court concluded that there was no waiver of privilege in respect of the advice referred to. In the Court’s view –
“[T]here was no need, simply to understand the letter [from CC] to expose to scrutiny the terms of that previous legal advice. [Firm A] were being asked to advise in the context of the previous legal advice described in the letter …, and whether that description of it was accurate or not was of no immediate concern. Their brief was to advise on it as described, and mere reference to it did not amount to implied waiver of privilege in respect of the earlier advice itself.”[73]

[73]At 564 [122].

The letter of advice subsequently received from firm A contained this statement:

“I confirm that there is no specific obligation on you to retain documents for the purposes of legal proceedings where no proceedings have been commenced. You are entitled to destroy any documents subject to the legislative requirements but, as you have been advised previously, the Court may draw an adverse inference from the destruction of such documents, depending on the circumstances of the destruction.” (emphasis added)

The Court again rejected the argument that there had been a waiver in respect of the previous advice referred to. That advice related to the drawing of adverse inferences from the destruction of documents and –
“that was not the matter upon which advice was [now] being sought. The question put to [A] was whether there was any legal obligation of a company such as the defendant not to destroy documents even though no litigation was presently on foot. The advice was explicit: there was no specific obligation to retain documents in such a case and that was advice tendered by the solicitors in direct response to [CC’s] letter of request. Again, the mere reference by A to the defendants having ‘been advised previously’ to like effect was no more than a reiteration of [CC’s] own letter of instructions (at least in the absence of evidence that A had that advice). The exhibiting by [CC] of A’s letter to his affidavit and the reference in that letter to previous advice did not serve to waive, by implication or otherwise, legal professional privilege in respect of that earlier advice.”[74]

[74]At 565 [124].

The Solicitor-General argued that the approach adopted in British American Tobacco was unambiguous[75] and should be treated as binding for the purposes of this appeal. Counsel for Mrs Osland, on the other hand, argued that the principles enunciated in British American Tobacco were limited to “the unique facts of that case”. In particular, they argued, the present case did not involve waiver of privilege over a document containing reference to an earlier privileged communication, as was the case in British American Tobacco.
[75]See Anderson v Holding Redlich [2003] VSC 303 at [31].

In my opinion, the decision in British American Tobacco did not – and did not purport to – enunciate any new principle for determining when there has been imputed waiver. As the joint judgment made clear, the Court was expressly applying the inconsistency test enunciated in Carnell. The question for the Court was whether, in the particular circumstances of the case, the requisite inconsistency existed. The conclusion, in respect of each reference to previous legal advice, was that it did not. The Court’s consideration of whether reference to the earlier advice was necessary to understand the later advice reflected its approach to the application of the inconsistency test in those circumstances. It did not purport to be – nor could it properly have been - a restatement of the inconsistency test appropriate for all circumstances.

No inconsistency in the present case

In the present case, the Tribunal held that there was no waiver. The learned President said:

“[A] statement by a client to the effect that legal advice had been obtained or had been obtained from a particular lawyer or that the advice was to a certain effect does not amount to a waiver of privilege in relation to the detailed content of the advice or the reasoning used in the advice. A client is entitled to say ‘I have written legal advice from X which says Y’ without revealing the document containing the advice or revealing the reasons which might have led X to so advise.”[76]

[76]At [36] (emphasis added).

His Honour adopted the statement of Madgwick J at first instance in Bennett, as follows:

“To disclose the legal position or stance that a lawyer had advised a client to take is, in my view, not inconsistent with the maintenance of confidentiality in the communication giving the advice (which may have much detail or a lack of such detail) at least where oppression is not being essayed by such disclosure.”[77]

(Although the decision of Madgwick J was subsequently overturned by the Full Court in Bennett, his Honour – and in turn the Tribunal – was applying the correct test - the inconsistency test.)

[77]Bennett v Chief Executive Officer, Customs (2003) 77 ALD 375 at 385 [35].

It follows from what I have already said that these general statements by the Tribunal were erroneous. It is no more correct to say that a disclosure of the conclusion of legal advice never waives privilege over the content of the advice than to say that such a disclosure always waives the privilege.

What matters for present purposes, however, is the conclusion reached by his Honour on the effect of this disclosure, which was expressed in these terms:

“Likewise I do not regard the Attorney-General’s press release as inconsistent with the maintenance of confidentiality. The press release (accurately) disclosed the fact and the conclusions of the joint advice; but it did not disclose the reasoning process. Importantly the disclosure of the conclusions of the joint advice did not operate unfairly, in the sense that it distorted the advice or created a misleading impression. Hence I reject the applicant’s contention that the privileged character of the joint advice has been lost.”[78]

[78]At [37].

In my respectful opinion, it was well open to the learned President in this case to conclude that there was no inconsistency. I would go further and say that the conclusion was clearly correct. My reasons are as follows.

Amongst the circumstances relevant to determining inconsistency, it is clear from Carnell and Bennett that the purpose for which the privilege-holder made the disclosure is highly relevant. The question here was whether the use made by the Minister of the disclosed portion of the privileged communication – more particularly, the purpose for which the conclusion was disclosed – was inconsistent with the maintenance of confidentiality in respect of the content of the advice.

First it is necessary to restate the purpose of the confidentiality which the privilege preserves. In Grant v Downs, Stephen, Mason and Murphy JJ said:

“The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.”[79]

[79](1976) 135 CLR 674 at 685.

Later, in Baker v Campbell, Mason J noted that the underlying policy of the privilege covering legal advice –

“involved the promotion of freedom of consultation generally between lawyer and client.”[80]

In the same case, Deane J said that the principle underlying the privilege was that –
“a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by the subsequent disclosure of confidential communications.”[81]

[80](1983) 153 CLR 52 at 74.

[81]At 116. See also Carnell at 15 [34], explaining the purpose of the privilege.

The evident purpose of the Attorney-General’s disclosure was to inform the public that the recommendation he had made to the Governor – that the petition for mercy be denied – was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected. The Attorney-General evidently wished it to be known that, in considering whether or not the prerogative of mercy should be exercised, he had taken independent advice and was making a recommendation which accorded with that advice. In the language of Carnell, this was a disclosure “for the purpose of explaining or justifying” the Attorney-General’s actions. The purpose was similar to that of the disclosure in Carnell itself, where the Chief Minister wished to satisfy the relevant member of Parliament that the ACT Government “had acted responsibly and in accordance with legal advice”.[82]
[82]At 8 [14].

In my opinion, there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, and wishing to maintain the confidentiality of the advice itself. This was not a case of a party to litigation “deploying” a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication. Nor was it “the laying open of the confidential communication to necessary scrutiny”.[83]
[83]DSE at [58] and [ 61].

Counsel for Mrs Osland argued that the Minister’s position involved inconsistency and unfairness. According to the written submission:

“…
(f)the Attorney-General cannot be allowed, after disclosing as much of the joint advice as he pleased, to simply withhold the remainder of the joint advice … That would be unfair;
(g)the joint advice deals with a single subject-matter and it would be unfair to allow the Attorney-General to use part of the joint advice and claim privilege as to the remainder …;
(h)the terms of the press release make it plain that the Attorney-General disclosed the substance of the advice to explain and justify his decision to recommend to the Premier that the petition be denied … It would be unfair, in those circumstances, not to disclose the remainder of the joint advice. The Attorney-General issued the press release in circumstances where there was a significant level of public and media interest in the Respondent’s case and in the state of the law in relation to self defence and provocation … .”[84]

[84]Case references deleted.

For the reasons I have given, I do not consider that there was any relevant inconsistency or unfairness. Accordingly, I would dismiss the notice of contention.

The public interest override

Having concluded that each of the documents was exempt, the Tribunal nevertheless concluded that access should be granted. The Tribunal exercised the power conferred by 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”.[85]The Tribunal referred to the decision of the Appeal Division in DPP v Smith,[86] to the effect that the formation of an opinion under s 50(4) may involve “resolution of conflicting public interests.” On the one hand, there was 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. Hence a balancing process will be necessary and, for the override to operate, the factors favouring access will need to outweigh, or be given greater value, than the factors against access.
[85]The Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls said this description was “not inappropriate”: [1999] 3 VR 331 at 340 [20].
[86][1991] 1 VR 63.

The Solicitor-General accepts that the task for the Tribunal involved a balancing process. She relies on what was said by the Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls 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 override 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.”[87]

[87]At [41]. See Hulls at 340 [26] and 342 [31].

As to the first of these points, the Solicitor-General submits that, as a matter of logic, the determination of all claims for exemption must precede consideration of the public interest override in s 50(4). That is, where more than one exemption is relied upon, the Tribunal must consider each ground of exemption relied upon before considering the power under s 50(4). This is because the public interest considerations which support one exemption may well be different from those which support another.

With respect, this submission seems clearly correct. As the Court of Appeal (per Phillips JA) said in Hulls:

“The factors by which a document may be an ‘exempt document’ vary considerably. As already noted, [the exemptions] are referred to in s 3(1) as ‘necessary for the protection of’ either ‘essential public interests’ or ‘the private and business affairs of’ the persons in respect of whom information is gathered by the agencies…
Because ‘the public interest’ is referred to in many of the sections under which exemption is first granted and is also referred to in the ‘public interest override’ found in s 50(4), it must follow that what is ‘the public interest’ may wear different aspects.”[88]

[88]At 339 [25] and 340 [27].

In the present case, as in Hulls, there was a claim for exemption under s 30(1) of the Act. Under that provision, a document is exempt if its disclosure –

“(a)would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

(b) would be contrary to the public interest.”

In Hulls, the Court pointed out that the express reference to “the public interest” in s 30(1)(b) created an “apparent conflict with s 50(4)”, raising the need for the Tribunal first to consider whether the document was exempt because its disclosure would be contrary to the public interest, and then to proceed to consider whether the Tribunal was nevertheless of the opinion that “the public interest requires that access to the document should be granted”.[89]
[89]At 340 [28].

In the present case, the Tribunal referred to the claim for exemption under s 30 as “a secondary claim”. His Honour said:

“I cannot see how the documents could be exempt under s 30 if I was to form the opinion that the public interest requires that access be given to the document; and if I was not to form such an opinion, it is unnecessary to determine this question as I intend to uphold the claim under s 32.”[90]

With respect, to proceed in this way was to fail to take into account the public interest considerations underlying the exemption for internal working documents. These include the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice.[91]

[90]At [28].

[91]The relevant authorities are conveniently collected in Re Wells and Department of Premier and Cabinet (2001) 18 VAR 293 at [24]-[28].

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

The Solicitor-General advanced a number of criticisms of the Tribunal’s public interest analysis. First, it was submitted that in considering the public interest in maintaining legal professional privilege, his Honour confined his attention to the (more recent) view of the High Court that legal professional privilege is “a fundamental human or civil right”.[92] The Tribunal overlooked, so the argument went, what has been described as “the instrumental or utilitarian view of the privilege”. As characterised in the submission, the “instrumental rationale” for the privilege is that –

“absolute confidentiality and legal communications is necessary for the maintenance of good lawyer-client relations; a goal taken to be important for the effective administration of justice”.[93]

[92]At [43] of the Tribunal’s reasons. See Daniels Corporation International Pty Ltd v Australia Competition & Consumer Commission (2002) 213 CLR 543 at 553: “Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps more accurately, an important common law immunity.” [11] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[93]Reference is made to J Auburn, Legal Professional Privilege: Law and Theory (Hart Publishing, Oxford, 2000) at 13.

In my opinion, there was no error in this respect. In treating legal professional privilege as a matter of important common law rights and therefore as an end in itself, rather than a means to an end, his Honour could hardly be said to have undervalued the privilege. On the contrary, so to characterise the privilege was to accord it maximum weight.

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

(a) distinguishing between documents which contained legal advice “of historical interest” only and documents which were “under active consideration”, and in holding that maintenance of the privilege in relation to the former was likely to be less important than maintenance of the privilege in relation to the latter; and

(b) (thus) treating legal professional privilege as a privilege which was susceptible of degrees, in holding that –

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

The passages of the Tribunal’s reasons to which objection is taken are as follows:

“44. In my opinion, the nature and strength of the factors that warrant the non-disclosure of a document on the ground of legal professional privilege will vary from case to case. Although the maintenance of legal professional privilege will generally be a public interest of high order (and will also involve important matters of private interest), the strength of those interests will be greater in some cases than others. For example, maintaining the privilege in relation to a document containing legal advice which is no longer relevant to the decision making process, but is of historical interest, is likely to be less important than maintaining that privilege in relation to a document under active consideration. Thus in the balancing process it is necessary to consider the documents the subject of the privilege individually, and not generically as ‘section 32 documents’.
…
46. In my opinion it is significant that the documents do not contain advice that is likely to be directly relevant to any future government decision. At most access to the documents would enable discussion of the merits of the Government’s decision to refuse to grant the petition. In that sense, the documents could be properly characterised as historical documents.”

It was submitted for Mrs Osland that, read fairly and as a whole, the Tribunal’s reasons revealed that the Tribunal did not treat the privilege as “susceptible of degrees”. Rather, it was submitted, the Tribunal approached the matter on the basis that, when considering whether the public interest required the disclosure of a privileged document, each document had to be considered individually.

In my opinion, the Solicitor-General’s submission must be upheld. As the High Court has stated, the doctrine of privilege is itself the product of a balancing exercise between competing public interests, whereby the public interest in the “perfect administration of justice” is accorded paramountcy over the public interest that requires the admission in evidence of all relevant documents.[94] The public interest factors which underpin the privilege support all privileged documents uniformly. Those factors do not vary depending upon the particular content of a privileged document or upon whether the document has, or lacks, current relevance. As McHugh J said in Giannarelli v Wraith (No 2) said:

“[O]nce legal professional privilege attaches to a document … that privilege attaches for all time and in all circumstances.”[95]

[94]Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65 per Mason and Wilson JJ. See also Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128 per Brennan J: “There is no occasion for the Courts to undertake a balancing of public interests: the balance is already struck by the allowing of the privilege.”

[95](1991) 171 CLR 592 at 601, citing Hobbs v Hobbs and Cousens [1959] 3 All ER 827 at 829 per Stevenson J.

The Solicitor-General also submitted that the Tribunal mischaracterised the public interest favouring the grant of access to the documents. The first consideration adverted to was the desirability of transparency in decision-making within the executive branch of government, in the exercise of prerogative powers in general and of the prerogative of mercy in particular.[96] The Tribunal said:

“It is true that the decision to grant or refuse a pardon is of a different character to a judicial decision to convict or imprison a person. One difference is that the former does not require the provision of reasons. But both types of decision affect a basic human right; and, in current times, principles about the transparency required of the judicial process have some application to this type of executive decision-making.
There is a particular public interest in relation to the operation of the criminal justice system. Public confidence in the system is likely to be enhanced if decisions, which affect legal rights, are made in a transparent manner. The exercise of the prerogative of mercy – or the grant of a pardon – in circumstances which are not transparent or beyond question [has] the potential to undermine public confidence in the justice system. Two American examples illustrate the point. The first is the pardon of President Nixon by his successor President Ford. The second is the pardon offered by President Clinton, in the dying days of his administration, to Marc Rich.”[97]

[96]At [48]-[49] of the Tribunal’s reasons.

[97]At [48]-[49].

According to the Solicitor-General’s submission, it was an error to assimilate decision-making in the exercise of the prerogative of mercy with decision-making in the criminal justice system. According to the written submission:

“The process [by way of petition] is one whereby a person, whose legal rights (including all avenues of appeal within the criminal justice system[98]) are fully exhausted, petitions the Crown for mercy. The petition for the exercise of the prerogative of mercy is a separate and discrete process from the criminal justice process in the courts. The long standing practice is that no reasons are given by the Governor or the Government for a decision to grant or deny a petition for mercy. The decisions are final. The Attorney-General’s role in the context of a petition for mercy has been described as the ‘exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function.’[99] The hearing given to the applicant is the receipt of the petition itself and there is no right for the applicant to see any opinions or advice proffered after the petition is submitted.[100] Whether any material is in fact provided is a matter for the Attorney-General’s discretion.”

[98]Which excludes the petition of mercy process.

[99]De Freitas v Benny [1976] AC 239, 247 per Lord Diplock.

[100]Von Einem v Griffin & Anor (1998) 72 SASR 110, 116, per Prior J with whom Wicks J agreed.

In response, it was submitted for Mrs Osland that there was no error and that the Tribunal was saying no more than that there was a public interest in information being freely available to members of the public to enable them to consider and discuss intelligently decisions of the executive branch of government, “including decisions relating to petitions for mercy.”

For the reasons set out in the concluding section of this judgment, it is unnecessary to express any view on these matters. Put shortly, there was no occasion for the Tribunal, in considering whether to exercise the power under s 50(4) in relation to these documents, to address questions of general policy such as these. There is, likewise, no occasion on this appeal for the Court to address such questions.

The other aspect of the public interest analysis about which complaint is made is his Honour’s statement that –

“[T]he Osland case is clearly a unique case: not in the sense that it is on its own in a factual sense, but because of the publicity and concern it generated. I have outlined the reaction to the Osland case in more detail earlier in this decision. Those facts favour the revelation of the circumstances surrounding the refusal of the petition of mercy. Many members of the public wish to know whether justice was done in the Osland case, including in the consideration of the petition of mercy. Indeed, the fact that the Attorney-General issued a press release in relation to the Osland case is a sign that he regarded the decision as a matter that concerned the public interest. It is rare for a press release to be issued in relation to a decision to grant or deny a petition of mercy.”[101]

[101]At [50].

The Solicitor-General submitted that the Judge here fell into error by conflating “matters of public interest” with the phrase “in the public interest”. She drew attention to what was said by the Appeal Division in DPP v Smith, as follows:

“On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public: it follows that such form of interest per se is not a facet of the public interest.”[102]

The Solicitor-General argued that the issue of a press release did no more than indicate that the public were (believed to be) interested in the issue.

[102]At 75.

In my opinion, this complaint is well-founded. The extent to which the public are – or are believed to be – interested in a particular matter is not, by itself, relevant to the determination of whether disclosure of a document relating to that matter is in the public interest, within the meaning of s 50(4). Were it otherwise, the formation of the opinion which s 50(4) requires would depend upon the ascertainment of the extent to which the public had been shown to be interested in the topic. I pointed out in the course of argument the practical difficulties which this would create. But this is, in my view, an error of principle, not merely a question of practicability. Accordingly, in my respectful opinion, the Tribunal fell into error by taking into account an irrelevant consideration, being the Tribunal’s perception of the extent to which “the public” wished to know why the petition had been denied.

Did the public interest “require” disclosure?

The power conferred on the Tribunal by s 50(4), to grant access to an exempt document, is exercisable only if the Tribunal concludes that the public interest requires 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.” The public interest consideration(s) said to require the granting of access must be so strong as to override the public interest considerations underpinning the applicable exemption(s).[103] The case for access must, in effect, be irresistible.
[103]Hulls at 342-3.

I have had the benefit of reading in draft the reasons for judgment of Bongiorno AJA. Like his Honour, I have come to the conclusion that the test imposed by s 50(4) could not have been satisfied in the present case. My reasons for that conclusion are, however, somewhat different.

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. This is so because, at the level of general policy, the Act itself has already struck the 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.

At the level of general principle, so Parliament has determined, the public interest in the confidentiality of privileged documents prevails over the public interest in access. That is the effect of the s 32 exemption. It is not for the Tribunal to revisit that policy decision. It is not for the Tribunal to decide whether, having regard to the type of decision in issue, the public interest in transparency should by means of s 50(4) be elevated to the status of an overriding public interest.

Even if – contrary to my view – it had been open to the Tribunal to conclude, as a matter of policy, that such decision-making should be (more) transparent, it still would not follow that the public interest required disclosure of the legal opinions relied on. Under existing judicial review processes, a decision-maker must provide a statement of reasons if requested,[104] but that obligation has never been taken to require disclosure of privileged documents relied on by the decision-maker.[105]
[104]See Administrative Law Act1978 (Vic) s 8; Administrative Decisions (Judicial Review) Act1977 (Cth) s 13.
[105]cf Webb v Commissioner of Taxation (1993) 44 FCR 312.

It was, accordingly, outside the scope of s 50(4) for the Tribunal to consider, as a matter of principle, whether decisions made in the exercise of the prerogative of mercy should be open to public scrutiny. That question will fall to be considered, if and when it arises, by the executive or by the legislature or - perhaps - by the courts. Of course, the only form in which the question would be likely to arise before a court would be in connection with a proceeding seeking judicial review of a decision to refuse a petition or some form of related declaration.[106] What is certain is that this proceeding is not the occasion, nor is s 50(4) the vehicle, for a consideration of such issues.
[106]As to whether any such relief might be available, see Horwitz v Connor (1906) 6 CLR 38; Von Einem v Griffin (1998) 72 SASR 110; Lewis v Attorney-General of Jamaica [2001] AC 50.

Just as those matters of general principle were – as such – irrelevant, so too were considerations personal to Mrs Osland. That Mrs Osland has an intense personal interest in the content of the legal advice is self-evident, and wholly understandable. The refusal of the petition affected her in the most profound way possible, in that the possibility of release from jail was denied her. As the learned President pointed out, however, the interest with which s 50(4) is concerned is –

“the interest of the public as distinct from the interest of an individual or individuals”.[107]

[107]DPP v Smith at 75.

Counsel for Mrs Osland rely – as did the Tribunal – on the proposition from DPP v Smith that one feature of the public interest is that justice should be seen to be done. So much may, with respect, be accepted. But as a statement of principle it is of no more relevance to the s 50(4) question than the general proposition that decision-making by the executive should, so far as possible, be transparent. The general issue of how, and to what extent, justice can be “seen to be done” in connection with the exercise of the prerogative of mercy is not a question which falls for determination in this proceeding.

To the extent that the maxim had application to the present case – and that may be debated, given that the role of the executive is separate and distinct from the processes of the justice system – there was nothing in the circumstances to suggest that justice had not been “seen to be done” in the process of executive decision-making. The statement made by the Attorney-General, that he had made the decision on the basis of, and in accordance with, independent expert opinion, was an affirmation that due process had been followed.

There is a striking contrast between this case and the circumstances in DPP v Smith. There, the applicant for FOI access to the 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.”[108]

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.”[109]

[108]At 75.

[109]At 78.

Nothing of that kind occurred in the present case. The merits of the decision made by the Attorney-General were, as the Tribunal found, the subject of public debate, as were the wider criminal law reform issues which this and other like cases raised. Doubtless, some members of the community disagreed with the Government’s decision and would wish to know the reasoning on which the refusal of the petition was based. But those are not relevant considerations under s 50(4), for the reasons already given.

In my view, the circumstances of the present case give rise to no public interest consideration which would be capable of satisfying the test in s 50(4) so as to require disclosure of the legal advices. It follows that the Tribunal’s decision granting access should be quashed and, in its place, there should be substituted an order that the original decision refusing 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.

ASHLEY JA:

I have had the great advantage of reading in draft the reasons for judgment of Maxwell P and Bongiorno AJA. I agree with their Honours, for the reasons which follow, that the appeal should be allowed and an order made simply to the effect that the documents the subject of the request are of such a nature as to be exempt from disclosure under s 32(1) of the Freedom of Information Act 1982 (“the Act”).

Exemption

Section 32(1) of the Act deals with an hypothetical situation. A document is exempt if it is of such a nature that it would be privileged on the ground of legal professional privilege. The putative legal proceedings do not exist. The documents which are prima facie exempt are documents of such a nature that they would be privileged if there were legal proceedings. In the present case one has to conjecture a proceeding between Mrs Osland and the Attorney-General or the Secretary of the Department. It is difficult to imagine what proceedings there could be. There is no challenge available in this country to refusal of a petition for mercy.[110] Nor, as the law presently stands, could Mrs Osland bring a justiciable civil proceeding against the Attorney-General or the Secretary arising out of such refusal. Those matters emphasize the hypothetical nature of the enquiry mandated by s 32(1).
[110]Von Einem v Griffin & Anor (1998) 72 SASR 110.

Against that background, there is, I think, a question whether waiver, actual or implied, has any part to play in a s 32(1) enquiry. It would seem fair, in an abstract sense, that it should do so. But it is not easy, I think, to equate an enquiry, on the one hand, whether a document is of such a nature that it would be privileged with an enquiry, on the other hand, whether, a document being of that nature, the putative privilege has been waived. None of the many authorities concerning legal professional privilege and waiver to which the learned President refers in his reasons had cause to address that question.

If waiver was in truth irrelevant to the operation of s 32(1), it would be enough to conclude that the requested documents were, in the hypothetical situation set up by the sub-section, of the nature there described. Given such a conclusion, the focus would shift to whether disclosure of the documents should nonetheless be ordered in reliance on the so-called public interest override.

The parties proceeded, however, in the Tribunal and in this Court, on the footing that consideration of waiver was relevant. The Tribunal dealt with the s 32(1) exemption on that footing. It briefly referred to the question whether waiver had any part to play in the context of s 32(1), opining that it did.

The Tribunal referred in that connection to the annotations to s 32(1) of the Act in Kyrou and Pizer’s Victorian Administrative Law. Those annotations show that in Victoria it has long been assumed that common law waiver of privilege does apply; and that a similar view has been taken, in respect of similarly worded legislation, in Queensland and the Australia Capital Territory – but not in Western Australia. In the Federal arena, there are, it appears, decisions both ways, although more recent authorities stand in favour of the applicability of waiver.

It may be, as the authors opine, that waiver can be given operation within the language of s 32(1). But, having raised the issue, I prefer to express no concluded view about the matter, it being unnecessary to do so in order to resolve this appeal.

In the event, assuming but not deciding that the Tribunal was correct to approach the matter on the footing that waiver was pertinent, it needs to be remembered that this is not a general appeal. Its purview is confined by s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 to a question of law. That sub-section says nothing about a respondent’s right to raise a matter by way of notice of contention; but this Court and judges of the Trial Division have not questioned a respondent’s right to do so. A notice of contention, however, must surely be confined to an issue of the kind authorized, in the case of the appellant, by s 148(1).[111]
[111]There is an imperfect but useful analogy in the question whether, when leave to appeal is required, leave to cross-appeal must also be obtained: Commissioner of State Revenue v Muir Electrical Co Pty Ltd (2003) 8 VR 200 at 210-211 [26] per Callaway JA, with whom Ormiston and Eames JJA agreed.

Considering the issue raised by the notice of contention in that way, I agree with Maxwell P that the Tribunal did not err in holding that the Attorney-General did not impliedly waive privilege in respect of the joint advice. Whilst, in my opinion, it was an overstatement for the Tribunal to say that disclosure of the effect of advice “does not amount to a waiver of privilege in relation to the detailed content of the advice or the reasoning used in the advice,”[112] it appears to me that the Tribunal ultimately applied the inconsistency test in an orthodox way; and that the result at which it arrived did not bespeak some, though undisclosed, error of law. Indeed, as Maxwell P shows[113] the Tribunal’s conclusion was in accordance with the proper application of principle.
[112]My emphasis. In that connection, I respectfully agree with what Maxwell P has said at [60].
[113]At [63] – [69].

Section 50(4) of the Act. The public interest override

In my opinion, the Tribunal erred in law in its consideration of the public interest override in the ways identified by Maxwell P in his reasons at [74] - [77], [84] and [91]. I also respectfully agree with his Honour’s analysis at [92], [94] – [97] and [100] – [102], that analysis bespeaking further error by the Tribunal; and, subject to a rider, with the analysis at [85] – [88].

Concerning the last-mentioned matter, I agree with Maxwell P that what may be called abstract policy considerations are not within the purview of s 50(4) of the Act; and that the operation of the provision depends upon the particular circumstances of the case. But, and this is the rider, I am also of opinion that a particular public policy consideration identified by the Tribunal was not such as could have been relevant in the particular case; and that it infected the Tribunal’s reasons otherwise.

As I understand it, the Tribunal asserted, so far as is presently relevant, the desirability of the transparency of executive decision-making. It said in that connection that “there [was] no reason to distinguish between decisions which are made by the executive branch of government pursuant to statute and decisions which are made pursuant to prerogative powers”. It then treated the exercise of the prerogative of mercy as if it was an extension of, or akin to, the operation of the criminal justice system. Because the Attorney-General had referred to the conclusions expressed by the joint advice, there was, the Tribunal said, “a strong public interest in also making available any other advice that [had] been obtained in relation to the same question”. Otherwise, the public might be misled. Only if the conclusions, at least, of earlier-obtained advices were also made available would the public be in a position “to assess the merits of the Government’s decision to deny the petition of mercy”. In this case, however, the whole of the contents of the various advices – not just the conclusions - should be made available “(i)n order to clear the air and properly inform the public”.

I respectfully agree with Bongiorno AJA that the Tribunal overstated the position concerning transparency of decision-making by the executive. I also agree with his Honour that the Tribunal’s reasoning which commenced with the proposition that “there is a particular public interest in the operation of the criminal justice system”, and which then equated – to a degree at least – the exercise of the prerogative of mercy with the working out of the criminal justice system, was erroneous. As Lord Diplock observed De Freitas v Benny:[114]

“Mercy is not the subject of legal rights. It begins where legal rights end.”

[114][1976] AC 239 at 247.

The exercise of the prerogative of mercy, so understood, is separate from, and dissimilar to, the operation of the criminal justice system, the judicial aspects of which (save for jury deliberations) operate in the public gaze. The only point of connection between the two very different processes is that, in a temporal sense, one may begin when the other has ended.

The substantial starting point for the Tribunal’s conclusion that the entirety of all the advices tendered to the Attorney-General should be disclosed was its assertion about the desirability of transparency of executive decision-making - a fortiori “in relation to the operation of the criminal justice system”; and then its equating, to an extent, the exercise of the prerogative of mercy with the working-out of that system. In my opinion, because the starting point was wrong, the analysis which followed was flawed. It focused upon the examinability of the merits of the Attorney-General’s exercise of the prerogative.

Each of Maxwell P and Bongiorno AJA has concluded, although not for identical reasons, that there is no basis upon which, on the material before the Tribunal, an order could have been made under s 50(4) in the respondent’s favour. As I said at the outset of these reasons, I agree.

BONGIORNO AJA:

I agree with Maxwell P, for the reasons his Honour gives, that the Attorney‑General did not waive privilege with respect to the ninth of the documents to which the respondent sought access at VCAT by referring to its existence in his press release of 6 September 2001. I also agree with the President’s conclusion that the Tribunal was in error with respect to the public interest question raised by s 50(4) of the Freedom of Information Act 1982. Accepting his Honour’s reasons, I also consider that the Tribunal erred in concluding that the particular policy issues which it identified could have been relevant to its decision.

Section 50(4) of the Freedom of Information Act confers power on VCAT to override the exemption from access conferred upon documents otherwise exempt from such access. This provision applies to documents the subject of legal professional privilege which are exempt pursuant to s 32(1) of the Act. However to bring the override provision into play the Tribunal must be of the opinion that the public interest requires that access to the otherwise exempt document be granted.

The word “required” in the context of s 50(4) of the Freedom of Information Act connotes “obligation”, “necessity” or “compulsion”. It is not sufficient for the Tribunal to reach the opinion that it is in the public interest that access to a document, otherwise exempt, should be granted. The public interest must “require” such access. In Secretary to the Department of Premier and Cabinet v Hulls[115] JD Phillips JA accepted that “requires” in s 50(4) was synonymous with “demands” or “necessitates”. There is a notion of the imperative involved. Having regard to the fact that consideration of the application of s 50(4) to any particular document only arises after a determination has been made that another provision of the Act exempts that document from disclosure, it is not surprising that the legislature should set the criterion for the operation of the section by reference to a concept of necessity. A mere balancing exercise, particularly perhaps in the case of documents the subject of legal professional privilege, would present significant difficulties having regard to the already existing public interest considerations, referred to by the President, which support the existence of legal professional privilege.
[115][1999] 3 VR 331, 338-343 (JD Phillips, JA).

Legal professional privilege is itself a legally enforceable consequence of the application of a public interest of the highest order. If application of the override requires the Tribunal to determine whether considerations of “the public interest” are so strong as to outweigh or override those factors which make the document exempt, that outweighing or overriding must be compelled by the public interest consideration. It is only if the concept of compulsion is borne in mind that the exercise can be appropriately termed a balancing one. To have applied s 50(4) properly the Tribunal would have had to have been able to express itself in terms which conveyed that it had no practical alternative but to allow access. It would have to have been of the opinion that unless access was granted the public interest would suffer or be diminished in some way. Short of such a state of satisfaction the public interest would not require that there be access to the document.

The Tribunal identified two public interest considerations favouring release of the relevant documents. The first was couched in extremely wide terms: that democracy demands no less than that information should be freely available to enable members of the public to consider and discuss decisions of the executive government. Within that proposition the Tribunal treated the exercise of the prerogative of mercy as if it was part of, or closely analogous to, the operation of the criminal justice system, so that decisions by the executive government with respect to the prerogative of mercy should be viewed as decisions made in the course of the administration of criminal justice.

Whilst the proposition that transparency in decision-making by the executive is in the public interest may hold good for many government decisions, it certainly does not hold good for all such decisions. There are many, taken upon advice, where the release of that advice would be adverse to the public interest, even if the effect of such release made the executive process more transparent. It is not difficult to imagine cases in which advice given to executive government could provoke public panic, economic chaos or even societal instability if it was made public. Such release may well render transparent the government’s decision-making process, but would hardly be in the public interest. Much less would the release of such advice be required by the public interest.

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 – from the filing of a charge in the Magistrates’ Court to the dismissal of an appeal by the High Court. 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.[116] It is only when that process is complete that the Sovereign can be petitioned to extend mercy to the person convicted. Whether the prerogative is exercised or not is entirely within the province of the Sovereign advised by the executive government. 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 or the Trial Division of the Supreme Court in the process.[117] 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?
[116]The decision to prosecute or to enter ‘nolle prosequi’ are examples of unexaminable discretions within the criminal justice process: Barton v R (1980)147 CLR 75, 94 (Gibbs ACJ and Mason J), 107 (Murphy J), 109 (Aickin J and Wilson J).
[117]Horwitz v Connor (1908) 6 CLR 38; Von Einem v Griffin (1998) 72 SASR 110; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 186 (Gibbs, CJ), 260 (Aickin, J); Burt v Governor‑General [1989] 3 NZLR 64 (Greig, J) and in the Court of Appeal [1992] 3 NZLR 672.

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. If Parliament had intended that the exercise of the prerogative of mercy should be so fundamentally altered it could replace it with a statutory scheme with any review or appeal procedures it considered appropriate. It has not done so. Until it does there is no public interest, let alone a compelling public interest, in permitting access to the documents sought by the respondent.

The general proposition as to the desirability of information being made available to inform public discussion of the actions of the executive has no application in the case of the prerogative of mercy. Although the legal nature, boundaries and historical origins of the prerogatives of the Crown (of which the prerogative of mercy is but one) may not be susceptible of precise analysis,[118] for present purposes it is sufficient to recognise that the prerogative of mercy, at least in this country,[119] is not susceptible to judicial review. Why then should there be any public interest in the provision of access to legal opinions obtained by the relevant Minister before he advised the representative of the Crown to refuse the respondent’s petition? In this case, if the Attorney-General wished to publish the opinions he obtained before advising the Governor to reject the respondent’s petition he was, and remains, at liberty to do so. No public interest requires that he now make available those opinions to the respondent.
[118]Council of Civil Service Unions v Minister for Civil Service (the GCHQ case) [1985] AC 374, 409 (Lord Diplock).
[119]Horwitz v Connor (1908) 6 CLR 38. It is otherwise in the UK: R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349 (CA).

The second matter which the Tribunal referred to as justifying the application of the public interest override this case, was that the case was “unique” because of the large amount of publicity it has generated. But even if publicity suggests that the matter publicised is one in which the public is interested it does not, per se, demonstrate public interest in the sense that term is used in s 50(4) of the Act. It is in this respect that the Tribunal made the error of law to which the President has referred in his judgment. Even if the case is unique, which I take leave to doubt, that factor does not compel disclosure in the public interest.

In concluding its analysis of the public interest factors which it considered favoured release of the documents in question the Tribunal again referred to the desirability of transparency in decision-making in the context of the public’s right to compare the opinions obtained by the Attorney-General before recommending that the respondent’s petition be denied. But this proposition advances the case no further. It is erroneous because it commenced from the erroneous position that the function being performed by the Attorney-General involved a decision in the criminal justice process, rather than one of advising the Sovereign as to the exercise of an unexaminable prerogative of the Crown.

Errors of law having been demonstrated in the VCAT decision, that decision should be set aside pursuant to s 148(7)(a) of the Victorian Civil and Administrative Tribunal Act 1998. There is no point in the matter being again agitated before the Tribunal. There could be no justification, on any of the material before the Tribunal or before this Court, for an opinion that the public interest required that access to the documents she seeks be given to the respondent.

In lieu of the order made by the Victorian Civil and Administrative Tribunal on 16 August 2005 there should be an order that the respondent be refused access to documents numbered 1, 3, 4, 5, 6, 7, 8, 9 and 11 described in paragraph 1 of the Tribunal’s order.

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[2007] VSCA 96

17 May 2007