Osland v Secretary to the Department of Justice

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Heydon,Kiefel JJ,Kirby J.
• Judgment Date: 07 August 2008
• Neutral Citation: 2008-0807 HCA A,[2008] HCA 37
• Court: High Court
• Docket Number: M3/2008
• Date: 07 August 2008

Marjorie Heather Osland

Appellant

and

Secretary to the Department of Justice

Respondent

[2008] HCA 37

Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Kiefel JJ

M3/2008

HIGH COURT OF AUSTRALIA

Osland v Secretary to the Department of Justice

Administrative law — Freedom of information — Exempt documents — Freedom of Information Act 1982 (Vic), s 50(4) empowered Tribunal to decide access should be granted to exempt documents if of opinion that public interest required access to be granted — Whether, in circumstances of this matter, Court of Appeal erred in concluding no basis for Tribunal to exercise power, when Court of Appeal did not examine documents.

Practice and procedure — Legal professional privilege — Waiver — Legal advice obtained in relation to petition for exercise of prerogative of mercy — Whether issue of press release disclosing existence and effect of advice inconsistent with maintenance of confidentiality in content of advice.

Words and phrases — ‘legal professional privilege’, ‘mercy’, ‘pardon’, ‘public interest’, ‘public interest override’, ‘waiver’.

Freedom of Information Act 1982 (Vic), ss 30, 32, 50(4) ..

Representation

J B R Beach QC with R H M Attiwill and J D Pizer for the appellant (instructed by Hunt & Hunt)

P M Tate SC, Solicitor-General for the State of Victoria with S B McNicol and M J Richards for the respondent (instructed by FOI Solutions)

ORDER

• 1. Appeal allowed.

• 2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 May 2007.

• 3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further hearing in accordance with the reasons of this Court.

• 4. Respondent to pay the appellant's costs of the appeal to this Court.

1 Gleeson CJ, Gummow, Heydon and Kiefel JJ The appellant applied, under the Freedom of Information Act 1982 (Vic) (‘the Act’), for access to certain documents in the possession of the Department of Justice of the Government of Victoria. The documents were prepared by lawyers and departmental officials. They contain advice about a request by the appellant (who was convicted of murder) that she be granted an executive pardon. Access to all but two of 265 pages was refused by the Department, both initially and upon internal review. The documents were said to be exempt from disclosure by reason of s 30 (which relates to internal working documents) and s 32 (which relates to legal professional privilege) of the Act.

2 Pursuant to s 50 of the Act, the appellant applied to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for review of the decision. The Tribunal is established by s 8 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’) and has two types of jurisdiction, ‘original jurisdiction’ and ‘review jurisdiction’ (s 40). The application was heard by the President of the Tribunal, Morris J, who agreed that the documents fell within s 32, but applied in favour of the appellant what is described as the ‘public interest override’ provided by s 50(4) of the Act. He ordered that the appellant be given access to the documents 1. On appeal to the Court of Appeal of the Supreme Court of Victoria, the decision of the Tribunal was reversed 2. The Tribunal is empowered by s 80(3) of the VCAT Act to direct the production of documents by a party in a proceeding for review of a decision despite, among other things, ‘any rule of law relating to privilege or the public interest in relation to the production of documents.’

3 The Tribunal, after inspecting the documents, found that they were all the subject of legal professional privilege. It did not deal with the additional claim for exemption under s 30. In the Court of Appeal, the only ground of challenge to the Tribunal's conclusion that the documents were the subject of legal professional privilege was a contention that the privilege had been waived in relation to one of the documents, a joint advice of three senior counsel (referred to as document 9). There was no challenge to the conclusion that the other documents in question were covered by s 32, although the present respondent complained that the Tribunal should also have dealt with the s 30 ground of exemption. The Court of Appeal held that the Tribunal had been correct to decide that legal professional privilege had not been waived in respect of

document 9. The Court of Appeal also held that the Tribunal had erred in law in dealing with the public interest override and, further, that there could be no basis on which, on the material before the Tribunal, an opinion could be formed that the public interest required access to the documents (including document 9). It made that decision without itself having inspected the documents.

The issues in this appeal

4 Following a limited grant of special leave to appeal, the appellant propounded the following grounds of appeal:

• ‘1. The Court [of Appeal] erred in law in:

  • (a) finding that the Victorian Attorney-General did not waive and thereby lose legal professional privilege in respect of the joint memorandum of advice of Susan Crennan QC (as she then was), Jack Rush QC and Paul Holdenson QC to the Attorney-General dated 3 September 2001 being Document 9 (“the joint advice”) by publishing a press release on 6 September 2001 (“the press release”) that disclosed the substance and gist of the joint advice and the conclusions reached in it; and

  • (b) ordering that the decision of the Respondent to deny the Appellant access to the joint advice be affirmed.

• 2. The Court erred in law in finding that the learned President of the Victorian Civil and Administrative Tribunal (“the Tribunal”) correctly concluded that the Attorney-General did not waive legal professional privilege in respect of the joint advice.

• 3. The Court, without considering the content of Documents 1, 3, 4, 5, 6, 7, 8, 9 and 11 (which were inspected by the Tribunal but not the Court), erred in law in concluding that there could be no basis upon which, on the material before the Tribunal, an opinion could be formed under s 50(4) of the Freedom of Information Act 1982 (Vic) that the public interest requires that access to the said documents be granted under the Act.’

5 Grounds 1 and 2 relate only to document 9, and only to the question of waiver of privilege. As in the Court of Appeal, there is in this Court no challenge to the Tribunal's conclusion that the other documents were covered by s 32, and as to document 9 the only challenge is to the Tribunal's conclusion that privilege in that particular document was not waived.

6 Ground 3 relates to all the documents in dispute, and challenges the Court of Appeal's conclusion that there was no basis for applying the public interest override, bearing in mind that the Court of Appeal did not examine the documents for itself.

The petition to the Governor of Victoria and the consideration of the petition

7 On 2 October 1996, following a trial by jury in the Supreme Court of Victoria, the appellant was convicted of murdering her husband, who was beaten to death with an iron bar. The prosecution case, accepted by the jury, was that the appellant planned and assisted in the killing. The appellant had been subjected to violence by her husband, and relied, unsuccessfully, upon defences of self-defence and provocation. She was sentenced to imprisonment for fourteen and a half years, with a non-parole period of nine and a half years. She is now on parole. An application to the Court of Appeal for leave to appeal against conviction and sentence failed 3. A further appeal to this Court failed 4.

8 Having exhausted her rights of appeal, the appellant invoked the power of the Governor of Victoria to grant a pardon. Morris J gave the following account of the legal basis of that power, and the practice that is followed in matters where the power is invoked. This account was not disputed in argument, and may be accepted as accurate and sufficient for present purposes.

‘A petition for the exercise of the prerogative of mercy is a request made to the Crown by an individual seeking release from the effects of a conviction in circumstances where all avenues of appeal to the courts have been exhausted or where the courts have no jurisdiction. The Governor of Victoria has the power to exercise the prerogative of mercy as a representative of Her Majesty the Queen. The power derives from section 7 of the Australia Act 1986 (Commonwealth) which provides that the powers and functions of the Queen in respect of a State are exercisable only by the Governor of the State (subject to exceptions which are not presently relevant). Section 7(5) of that Act provides that advice to the Queen (and her representative) in relation to the exercise of the powers and functions of the Queen in respect of a State shall be tendered by the Premier of the State.

On 14 February 1986 the Queen issued Letters Patent relating to the Office of the Governor of Victoria. Clause III of the Letters Patent states, among other things, that the Premier shall tender advice to the Governor in relation to the exercise of powers and functions of the Governor not permitted or required to be exercised in Council. By convention, the accepted practice is and has been that the Premier seeks the advice of the Attorney-General in relation to whether the prerogative should be exercised. In turn, when the advice of the Attorney-General is sought, it is practice for the Attorney-General to ask his or her department to consider, evaluate and make recommendations in relation to the petition. Sometimes the advice of the Victorian Government Solicitor is sought. To the extent that a petition of mercy raises non-legal grounds (for example, compassionate grounds, meritorious conduct grounds, or other special grounds) the assessment of the petition on those...