Osland v Secretary to the Department of Justice

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Bell JJ.,Hayne,Kiefel JJ.
• Judgment Date: 23 June 2010
• Neutral Citation: 2010-0623 HCA B,[2010] HCA 24
• Docket Number: M11/2010
• Court: High Court
• Date: 23 June 2010

[2010] HCA 24

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Kiefel And Bell JJ

M11/2010

Heather Marjorie Osland

Appellant

and

Secretary to the Department of Justice

Respondent

Representation

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

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

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with D F O'Leary intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Osland v Secretary to the Department of Justice

Administrative law — Freedom of information — Exempt documents — Petition for mercy denied by Governor acting on advice of Attorney-General — Attorney-General had received legal advice from various sources — Attorney-General issued press release mentioning advice from one source that petition should be denied but did not mention advice from other sources — Freedom of information request by petitioner for all advices granted upon review by Victorian Civil and Administrative Tribunal (‘VCAT’) — VCAT of opinion that public interest required access to all advices to be granted — Whether open to VCAT to form opinion that public interest required access to be granted — Relevance of differences between advices.

Administrative law — Judicial review — Where Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘Act’) provided for appeal to Court of Appeal on a question of law and empowered Court of Appeal to make orders on appeal including orders VCAT ‘could have made’ — VCAT of opinion that public interest required disclosure of all advices — Court of Appeal examined advices and formed own view, without considering the correctness of VCAT's analysis, that public interest did not require access to be granted — Nature of ‘appeal’ under Act — Whether VCAT decision attended by error of law.

Words and phrases — ‘appeal’, ‘exempt documents’, ‘public interest’.

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

Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 148(1), 148(7).

ORDER

1. The appeal be allowed with costs.

2. The order of the Court of Appeal of the Supreme Court of Victoria made on 7 April 2009 be set aside and, in lieu thereof, it be ordered that the appeal from the order of the Victorian Civil and Administrative Tribunal made on 16 August 2005 be dismissed.

3. The following orders of this Court be vacated:

(a) par 6 of the orders made by Hayne J on 27 October 2009;

(b) par 2 of the orders made by Kiefel J on 4 February 2010; and

(c) par 6 of the orders made by Hayne J on 18 March 2010.

4. The appellant's counsel and solicitor and senior counsel's secretaries be released from the written undertakings they provided to the respondent in relation to this appeal.

French CJ, Gummow And Bell JJ.

Introduction

1 On 2 October 1996, the appellant, Mrs Osland, was convicted in the Supreme Court of Victoria of the murder of her husband. On 12 November 1996, she was sentenced to a term of 14 ¹/₂ years imprisonment with a non-parole period of nine and a half years. Applications for leave to appeal against her conviction and sentence were dismissed by the Court of Appeal of the Supreme Court of Victoria on 1 August 1997 1. An appeal to this Court was dismissed on 10 December 1998 2.

2 On 5 July 1999, Mrs Osland petitioned the Attorney-General for Victoria seeking a pardon in the exercise of the royal prerogative of mercy. That is a prerogative vested in the Queen and exercisable by the Governor of Victoria, acting on the advice of the Premier 3. As a matter of practice, the Premier acts on the advice of the Attorney-General 4. While the petition was under consideration there was a State election and a change of government with a new Attorney-General 5. In Mrs Osland's case, advice was received from, inter alia, the Victorian Government Solicitor (VGS), the Crown Prosecutors in the case, the Department of Justice, a senior counsel, Robert Redlich QC 6, and a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC.

3 On 6 September 2001, the Attorney-General issued a press release in the following terms:

‘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.’

4 Mrs Osland applied under the Freedom of Information Act 1982 (Vic) (‘the FOI Act’) for access to all of the advices provided to the Attorney-General and associated departmental correspondence. On 2 January 2002, access was denied by an officer of the Department of Justice and again, on 8 February 2002, by an authorised delegate of the Secretary to the Department of Justice (‘the Secretary’) making a fresh decision pursuant to an internal review 7. Access was denied on the basis, inter alia, that the documents attracted legal professional privilege 8.

5 Mrs Osland applied for review of the delegate's decision to the Victorian Civil and Administrative Tribunal (‘the Tribunal’). On 16 August 2005, the Tribunal, constituted by its President (Morris J), set aside the delegate's decision and ordered that Mrs Osland be given access to the relevant documents 9. In so doing, his Honour referred to the possible existence of differences between the advices 10. He did not, however, decide the case on the basis of those differences 11. The Secretary applied to the Court of Appeal, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), for leave to appeal on questions of law from the order of the Tribunal. Leave was granted on 14 October 2005, the appeal heard on 5 June 2006 and judgment

delivered on 17 May 2007 12. The Court of Appeal set aside the order of the Tribunal and affirmed the decision of the delegate. It did so without examining the disputed documents 13. Special leave to appeal to this Court against that decision was granted on 14 December 2007. On 7 August 2008, this Court allowed the appeal against the decision of the Court of Appeal, set aside the orders of the Court of Appeal and remitted the matter to that Court for further hearing in accordance with the reasons of this Court 14. It did so on the basis that the Court of Appeal had erred in holding, without examining the disputed documents, that differences between the advices could not support the application of s 50(4) of the FOI Act, which provides for the grant of access to documents otherwise exempt from disclosure where, in the opinion of the Tribunal, the public interest so requires 15. This provision establishes what has come to be known as the ‘public interest override’ 16.

6 On 7 April 2009, the Court of Appeal (Maxwell ACJ, Ashley JA and Bongiorno AJA) again allowed the appeal from the order of the Tribunal, directed that the order of the Tribunal be set aside and in lieu thereof ordered that the decision of the delegate be affirmed 17. Special leave to appeal against the decision of the Court of Appeal was granted by this Court on 12 February 2010. The appeal raises the question whether the Court of Appeal did what was required of it on the remitter. For the reasons that follow, that question must be answered in the negative and the appeal allowed. In essence, the Court of Appeal's reasoning on the remitter was independent of the actual contents of the disputed documents. It is necessary, before considering the nature of that Court's task on the remitter, to refer to the relevant statutory context.

The Freedom of Information Act 1982 (Vic)

7 The FOI Act creates a general, legally enforceable right to obtain access to documents of agencies and official documents of Ministers 18. The right does not extend to ‘exempt’ documents.

8 The stated object of the FOI Act, in s 3(1), is ‘to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes’. In s 3(2) it is said to be ‘the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1)’. Section 16(1) requires Ministers and agencies to administer the FOI Act with a view to making the maximum amount of government information available to the public. And, by s 16(2), nothing in the FOI Act is intended to prevent or discourage Ministers or agencies from publishing or giving access to documents, including exempt documents, otherwise than as required by the FOI Act, where they can properly do so or are required by law to do so 19.

9 Where a request is made by a person to an agency or a Minister for access to a document of the agency or an official document of the Minister and the relevant charge is paid, the person requesting shall be given access to the document in accordance with the FOI Act. But the obligation thus imposed on the agency or Minister does not extend to giving access to an exempt document 20.

10 The FOI Act sets out various classes of exempt documents. One such class is specified in s 32(1):

‘A document is an exempt document if it is of such a nature that...