HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON AND KIEFEL JJMARJORIE HEATHER OSLAND APPELLANT
AND
SECRETARY TO THE DEPARTMENT OF JUSTICE RESPONDENT
Osland v Secretary to the Department of Justice [2008] HCA 37
7 August 2008
M3/2008ORDER
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.
On appeal from the Supreme Court of Victoria
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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).
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.
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."
[1]Re Osland and Department of Justice (2005) 23 VAR 378.
[2]Secretary, Department of Justice v Osland (2007) 95 ALD 380.
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
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."
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.
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
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].
[3]R v Osland [1998] 2 VR 636.
[4]Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75.
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 other grounds is usually conducted within the department. Clearly enough, though, there will often be an overlap between what might be described as legal grounds and what might be described as non-legal grounds.
Before tendering his advice to the Premier, the Attorney-General may wish to follow up the advice he or she has received in relation to the matter. Generally the Attorney-General advises the Premier and it is then a matter for the Premier to proffer advice to the Governor. On rare occasions the Attorney-General's advice may be considered by Cabinet before the Premier makes a recommendation to the Governor. However this did not apply in the present case."
The appellant's petition was lodged with the Attorney-General for Victoria on 5 July 1999. The arguments advanced in support of the petition were summarised 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."
While the petition was being considered, there was a State election and a change in Attorneys-General. In the course of consideration of the petition, the documents the subject of these proceedings were brought into existence. The general nature of the documents and the circumstances in which they were produced may be seen from the following edited extract from the Tribunal's reasons that was included by Maxwell P as a schedule to his reasons for judgment.
"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."
By the time of the Tribunal's decision, documents 2 and 10 were no longer the subject of dispute.
For the purpose of consideration of the issues to be decided by this Court, it is unnecessary to go into further detail about the nature of the petition. As Morris J recognised, and as is evident from the above summary of the matters relied upon by the appellant, reliance was placed on legal argument, wider questions of justice and public policy, including possible law reform, and compassionate grounds personal to the appellant and arising from the particular circumstances of her case. Although petitions of this kind ordinarily are considered by lawyers within the Department of Justice, or external lawyers retained for the purpose, they need not be, and frequently are not, limited to questions of strict law. In various contexts, legal professionals advise on matters of policy, their legal expertise being relevant to the weight to be attached to their opinions. The circumstance that a petition such as that of the appellant was put before lawyers within and outside the Department of Justice for their opinion is neither surprising nor unusual. As Morris J also observed, this Court has held that legal professional privilege may attach to advice given by lawyers, even though it includes advice on matters of policy as well as law[5].
[5]Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25.
In the course of explaining his reasons for deciding that all the disputed documents were the subject of legal professional privilege, Morris J dealt with the fact that some of them covered matters that went beyond purely legal issues. He also found that it was not practicable to provide an edited version of any of the documents. These aspects of his decision were not the subject of any ground of appeal or contention in the Court of Appeal or in this Court.
On 6 September 2001, the Attorney-General announced that the Governor had denied the appellant's petition.
The press release
The announcement of the denial of the petition was accompanied by a press release which said:
"On July 5, 1999, Mrs Osland submitted a petition for mercy to the then Attorney-General Jan Wade. That petition set out six grounds on which the petition should be granted.
Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland's petition.
This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied.
After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.
The Governor has accepted this advice and denied the petition."
The appellant's argument about waiver of privilege in respect of document 9 turns upon the second sentence in the third paragraph of the press release. It was acknowledged that, without that sentence, there would probably be no issue of waiver. Morris J said:
"The reason why the Attorney-General took this course seems clear enough. He wished to demonstrate to the public that the petition of mercy had been taken seriously and that the Government had taken high level advice before recommending that the petition be denied. Further, by naming the counsel and stating that the joint advice recommended on every ground that the petition should be denied, the Attorney-General was seeking to rely upon the reputation of the senior counsel to support the reasonableness of the Government's decision. I find that this was totally legitimate."
Morris J found as a fact that the press release did not distort the joint advice or create a misleading impression, by which, having regard to the context, he evidently meant a misleading impression about the contents of the joint advice.
The legislation
The Act is described in its long title as: "An Act to give the Members of the Public Rights of Access to Official Documents of the Government of Victoria and of its Agencies and for other purposes". Section 13, which is in Pt III, provides that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency, or an official document of a Minister, other than an exempt document. Part IV identifies exempt documents. It includes ss 30 and 32. Section 30 covers certain kinds of "internal working documents" (which, having regard to the definition of "officer" in s 5, includes documents that might not ordinarily be regarded as purely "internal") if their disclosure would be contrary to the public interest. Section 32 covers a document that "would be privileged from production in legal proceedings on the ground of legal professional privilege." The case has been conducted on the basis that s 32 would cease to apply to a document in respect of which privilege was waived. There appears to be no reason to doubt that premise.
Part VI of the Act deals with review, including review by the Tribunal, of decisions to refuse access to documents. It includes the following provision (the "public interest override") in s 50(4):
"On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act."
Several points concerning the construction of s 50(4) and its place in the Act may be made forthwith. First, the sub-section to some degree is a legislative response to considerations of the nature explored by Lord Wilberforce in British Steel Corporation v Granada Television Ltd[6]:
"Then there is the alleged right to a free flow of information, or the right to know. Your Lordships will perceive without any demonstration from me that use of the word 'right' here will not conduce to an understanding of the legal position. As to a free flow of information, it may be said that, in a general sense, it is in the public interest that this should be maintained and not curtailed. Investigatory journalism too in some cases may bring benefits to the public. But, granting this, one is a long way from establishing a right which the law will recognise in a particular case. Before then it is necessary to take account of the legitimate interest which others may have in limiting disclosure of information of a particular kind."
Secondly, the specific exclusions from the operation of s 50(4) – Cabinet documents (s 28), documents affecting security, defence or international relations (s 29A), certain law enforcement documents (s 31(3)), and documents affecting personal privacy (s 33) – indicate what otherwise is the scope of s 50(4). Thirdly, that a ground of general exemption, such as that exempting documents privileged from production on the ground of legal professional privilege (s 32), is not made good in a particular case does not deny the possible operation of s 50(4) in the circumstances of that case.
[6][1981] AC 1096 at 1168.
Section 50(4) is a unique provision in Australian freedom of information legislation. The Freedom of Information Act 2000 (UK)[7] provides for general rights with respect to access to information (s 1(1)) and for information which may be exempt. Some exemptions are absolute (s 2(3)). They include exemptions of the kind which the Victorian Act excludes from the operation of s 50(4)[8]. Other exemptions, such as that relating to information the subject of legal professional privilege, are not treated as absolute[9]. Whether such an exemption is maintained depends upon whether the public interest in maintaining it outweighs the public interest in disclosing the information (s 2(2)(b)). A point which arises from the United Kingdom Act, as relevant to s 50(4), is that it is not possible to approach an exemption such as that provided in s 32 with respect to documents subject to legal professional privilege as if it were absolute. To do so would deny the intended operation and effect of s 50(4).
[7]The relevant provisions of which came into effect on 1 January 2005.
[8]See s 2(3) and, for example, s 23 (corresponding, in part, to s 29A of the Act) and s 40 (corresponding, in part, to s 33 of the Act).
[9]See s 2(3) and s 42.
The VCAT Act, in Pt 5, provides for appeals from the Tribunal. So far as presently relevant, it provides, in s 148(1), that a party to a proceeding may appeal, on a question of law, from an order of the Tribunal to the Court of Appeal. Section 148(7) provides that the Court of Appeal may make any of the following orders:
"(a)an order affirming, varying or setting aside the order of the Tribunal;
(b)an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d) any other order the court thinks appropriate."
The decision of the Tribunal
Having concluded (for reasons that are not presently in issue) that all the disputed documents were the subject of legal professional privilege within s 32, Morris J went on to deal with the argument that, in relation to document 9, privilege had been waived by the disclosure, in the Attorney-General's press release, not only that advice had been taken from the authors of the joint advice, but also, and critically, that the advice "recommend[ed] on every ground that the petition should be denied." Applying what was said in this Court in Mann v Carnell[10], concerning implied or imputed waiver (it was not suggested that the present was a case of express waiver), Morris J held that such disclosure as was made in the press release was not inconsistent with the maintenance of the confidentiality which the privilege protects, and that there was no waiver.
[10](1999) 201 CLR 1 at 13 [28]-[29]; [1999] HCA 66.
As to s 30, Morris J said: "I cannot see how the documents could be exempt under section 30 if I was to form the opinion that the public interest requires that access be given to the documents; 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 section 32." He went on to consider s 50(4).
Morris J commenced what he described as a balancing process by making some observations about the general importance of maintaining legal professional privilege. In that context, he distinguished between "historical documents" and documents likely to be relevant to a future government decision. The documents in question, he said, fell into the former category. By "historical" he meant relating to a past decision as distinct from relating to a future decision. The decision in question was made in September 2001, about four years before the Tribunal's decision. However, as appears from other parts of the reasons of Morris J, there was an ongoing public controversy about the appellant's conviction and sentence, and about the refusal of the petition. In assessing the proposition that the documents were historical it is necessary to keep in mind the sense in which that term was being used.
Included in public interest factors favouring release, as they appeared to Morris J, were the public interest in free availability of information and democratic discussion of government decisions, and the public interest in the operation of the criminal justice system. The Osland case, he said, was unique because of the publicity and concern it generated.
Having remarked that it was "totally legitimate" for the Attorney-General to refer to the joint advice, Morris J went on:
"However in circumstances where a government decision is made in relation to a petition of mercy, relying upon particular advice which is specifically referred to, there will be a strong public interest in also making available any other advice that has been obtained in relation to the same question. If a decision maker obtains advice from two sources and receives different advice, the public might be misled if it is told that a decision has been made on the basis of advice (specifying the advice) without reference to the fact that there was also different advice. If only one advice is specified in such circumstances an impression may be created that the decision maker really had no choice; whereas if the two different advices are specified the public might think that there was a choice to be made by the decision maker and wish to know why a particular choice was made.
In my opinion, there are powerful reasons why the conclusions contained in the VGS advices and the Redlich advice should be made available to the public. It is only if these conclusions are publicly available that citizens will be in a position to put these conclusions beside the conclusions in the joint advice; and to assess the merits of the Government's decision to deny the petition of mercy. However the provision of access to just the conclusions contained in the VGS advice and the Redlich advice is likely to raise even more questions about the consideration of the petition of mercy, without answers. Are the reasons given in the joint advice more cogent than the reasons given in the Redlich advice? Was the same information available to each advisor? And so on. In order to clear the air and properly inform the public it would be necessary for the whole of these documents, not just the conclusions, to be made available." (emphasis in original)
It is difficult to know exactly what to make of the references to "different advice". Morris J examined the documents in question. From his description of document 2 (which was made available to the appellant) we know that it recommended that the petition be rejected. On the other hand, we do not know what document 7 recommended. For understandable reasons, Morris J was circumspect in what he said about the contested documents. Their availability was (and still is) the subject of dispute. They have not been seen by the appellant or by her lawyers. They do not know in what, if any, respects the advices are different. Morris J made no finding that they were materially different, but after referring to the potential significance of difference he spoke of "powerful reasons" for making the conclusions of the VGS advices and the Redlich advice available to the public. It is difficult (and would have been difficult for the Court of Appeal) to know whether he was merely referring to possible speculation by members of the public that there may have been significant differences, or whether he was indicating that his own examination of the documents revealed such differences. The reasoning in these two paragraphs is far from clear, but that may be the consequence of a desire not to say too much about the contents of the documents and thereby pre-empt the outcome of the entire dispute.
Morris J applied s 50(4) and ordered that access be given to documents 1, 3, 4, 5, 6, 7, 8, 9 and 11.
The decision of the Court of Appeal
The Secretary to the Department of Justice appealed to the Court of Appeal, claiming a number of errors of law in the Tribunal's approach to the exercise of the power conferred by s 50(4). The orders sought included an order that Mrs Osland be refused access to the documents in question or, alternatively, that the matter be remitted to the Tribunal to be heard and determined according to law. Mrs Osland filed a notice of contention which related only to document 9, and claimed that the order for access to that document should be affirmed on the further ground that privilege had been waived.
Maxwell P, with whom Ashley JA and Bongiorno AJA agreed on this point, dealt first with waiver. He recorded that there was no challenge to the Tribunal's conclusion that (subject to waiver in relation to document 9) all documents were within the scope of s 32.
He began by referring to the statement in Mann v Carnell[11]:
"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 [an implied or imputed] waiver of the privilege".
[11](1999) 201 CLR 1 at 13 [28].
The present, of course, was not said to be a case of express waiver. Maxwell P referred, as an example of inconsistency, to Benecke v National Australia Bank[12]. That case also exemplifies the fact that a person can waive privilege without intending that consequence. Mrs Benecke, in her pleadings and evidence in certain proceedings, asserted that her lawyer had compromised a claim without her consent. She attempted to rely on privilege to prevent the lawyer giving the lawyer's version of her instructions. Nobody suggested that Mrs Benecke intended a waiver of privilege to be the result of her conduct. It was quite likely that she never thought about the matter. As was said in the judgment in Mann v Carnell[13]: "[T]he law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege."
[12](1993) 35 NSWLR 110.
[13](1999) 201 CLR 1 at 13 [29].
Maxwell P considered a number of decisions dealing with the question whether a particular disclosure gave rise to a waiver of legal professional privilege. He compared the formulations of Gyles J and Tamberlin J (who were otherwise in agreement as to the outcome) in the Federal Court in Bennett v Chief Executive Officer of the Australian Customs Service[14], and expressed the view that, although what Gyles J said may have been apposite to the facts of the particular case, it did not express a rule of general application. Maxwell P considered that it was more accurate to say, as Tamberlin J said, that disclosure of a conclusion expressed in legal advice, without disclosing the reasons, may or may not result in waiver of privilege depending upon a consideration of the whole of the context in which that occurs.
[14](2004) 140 FCR 101.
After a discussion of a number of cases argued by the parties to be analogous, Maxwell P expressed his conclusion that the Tribunal's decision on waiver was not only open but was clearly correct. He gave his reasons 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.'[15]
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.'[16]
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.'[17]
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'.[18]
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'.[19]"
[15](1976) 135 CLR 674 at 685; [1976] HCA 63.
[16](1983) 153 CLR 52 at 74; [1983] HCA 39.
[17](1983) 153 CLR 52 at 115-116.
[18](1999) 201 CLR 1 at 8 [14].
[19]DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at 519 [58], 520 [61].
As to s 50(4), Maxwell P said that the way in which the Tribunal had dealt (or, rather, failed to deal) with the claim for exemption under s 30 (relating to internal working documents) involved an error of law, relevant to the public interest override, which alone would have been sufficient to justify allowing the Secretary's appeal. Section 30 treats a document as an exempt document if two conditions are satisfied. First, the document must answer a certain description. The second condition is that disclosure would be contrary to the public interest. The Tribunal had put the s 30 claim for exemption to one side, saying that if the Tribunal were to form an opinion, under s 50(4), that the public interest required that access be given to the documents, then the documents could not be exempt under s 30, because the second condition could not be satisfied. Maxwell P pointed out that, in the result, when the Tribunal dealt with s 50(4), it failed to take into account the particular public interest considerations underlying the exemption for internal working documents, including 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. Ashley JA agreed, as did Bongiorno AJA.
All three members of the Court of Appeal went on to consider what Maxwell P described as "the other grounds of attack on the Tribunal's conclusion that the public interest required that access be granted to the documents."
Maxwell P found legal error in the Tribunal's distinction between advice that was of historical interest only (in the sense earlier explained) and advice relating to action that was yet to be taken, and in the application of that distinction to the present case. He referred to the statement of Stevenson J in Hobbs v Hobbs and Cousens[20] to which McHugh J referred in Giannarelli v Wraith [No 2][21]:
"[O]nce legal professional privilege attaches to a document ... that privilege attaches for all time and in all circumstances."
[20][1960] P 112 at 117.
[21](1991) 171 CLR 592 at 601; [1991] HCA 2.
That observation, of course, is subject to the possibility of waiver. In the context of s 50(4), it is also subject to the possibility of supervening circumstances relevant to the public interest.
Maxwell P also concluded that the Tribunal, in discussing the public interest, had taken into account an irrelevant consideration, that is to say, the Tribunal's perception of the public's wish to know the reasons for denying the petition.
He then went on to consider whether, in the circumstances of this case, the test imposed by s 50(4) could have been satisfied, that is, whether it was open to the Tribunal to conclude that the public interest required that access to the documents be granted. He answered that question in the negative. He was prepared to leave unresolved the question whether there could be proceedings for judicial review of a decision to refuse a petition, pointing out that the proceedings before the Tribunal, and the Court of Appeal, were not of that character. It was, he said, 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. It was not open to the Tribunal to decide that, although legal professional privilege, and the Parliament's recognition of it in s 32, itself strikes a balance in favour of confidentiality of legal advice, there was an overriding public interest in exposing to public scrutiny decisions made in the exercise of the prerogative of mercy. He concluded:
"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."
Ashley JA and Bongiorno AJA both agreed with what Maxwell P said about further errors in the reasoning of the Tribunal on the s 50(4) issue. Bongiorno AJA, with whom Ashley JA agreed, gave somewhat different reasons for concluding that s 50(4) did not operate in favour of Mrs Osland, and that "[t]here could be no justification, on any of the material before the Tribunal or before [the Court of Appeal], for an opinion that the public interest required that access to the documents … be given".
Bongiorno AJA said that, in Victoria, the exercise of the prerogative of mercy was not subject to judicial review. He said:
"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. 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 [the Court of Appeal] or the Trial Division of the Supreme Court in the process. 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?
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 [Mrs Osland].
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, for present purposes it is sufficient to recognise that the prerogative of mercy, at least in this country, 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 [Mrs Osland's] petition? In this case, if the Attorney-General wished to publish the opinions he obtained before advising the Governor to reject [Mrs Osland's] petition he was, and remains, at liberty to do so. No public interest requires that he now make available those opinions to [Mrs Osland].
The second matter which the Tribunal referred to as justifying the application of the public interest override in 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 [Mrs Osland'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." (footnotes omitted)
Waiver of privilege
On the issue of waiver of privilege in document 9, an issue resolved adversely to the appellant by both the Tribunal and the Court of Appeal, both parties accepted that the principles to be applied were those stated in the joint reasons of four members of this Court[22] in Mann v Carnell[23]. The difference between the parties concerned their application to the circumstances of the present case.
[22]Gleeson CJ, Gaudron, Gummow and Callinan JJ.
[23](1999) 201 CLR 1.
Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver "imputed by operation of law"[24]. It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances. In the case of Benecke, referred to in Mann v Carnell, and discussed by Maxwell P in the present case, an appreciation of the unfairness if Mrs Benecke could give her version of her communications with her lawyer and at the same time prevent the lawyer from giving her own version was one aspect of the inconsistency between her conduct in making certain kinds of allegation against her lawyer and holding her lawyer to obligations of confidentiality. In the present case counsel for the appellant acknowledged that, if the press release had not included the sentence earlier identified as critical, privilege probably would not have been waived. This is undoubtedly correct, even though, upon that hypothesis, the press release would have made some disclosure concerning legal advice taken by the Department.
[24]Goldberg v Ng (1995) 185 CLR 83 at 95, 109, 116; [1995] HCA 39; Mann v Carnell (1999) 201 CLR 1 at 13 [29].
The conduct of the Attorney-General in issuing the press release and including in it certain information about the joint legal advice is to be considered in context, which includes the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure.
It is not necessary for present purposes to decide a question about which there was some division of opinion in the Court of Appeal, that is to say, whether it is possible to obtain judicial review of a decision to refuse an executive pardon, or the related question whether it is possible to compel reasons for such a decision[25]. Although the topic was raised, it was not the subject of substantial argument. The Victorian practice was described in a passage from the Tribunal's reasons set out above, and it is clear that the general practice is that reasons for such decisions are not made public. By hypothesis, a petitioner has exhausted his or her legal rights. The terms "pardon" and "mercy" may create a misleading impression. The power may be invoked in a case where it is alleged that there has been a miscarriage of justice, or in a case where the grounds relied upon are purely compassionate, or in some intermediate situation. The person in question may, or may not, claim to be technically and/or morally innocent. An application for a pardon does not imply an admission of guilt; on the contrary, it may be accompanied by an assertion that there has been a wrongful conviction. Nor does it necessarily imply an assertion of innocence; it may be based upon a contention that the law is unduly harsh either generally or in its application to the particular case, or that there are personal grounds for compassion. The pardon, if granted, may be absolute or conditional. In every case, however, the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative. The practice is not to give reasons for such a decision. Whether or not, in the circumstances of a particular case, or more generally, that practice is open to challenge is beside the present point. The practice formed part of the context in which the Attorney-General acted. If the appellant has a legal right to seek review of the Governor's decision, or to obtain the reasons for that decision, these present proceedings are not appropriately constituted to vindicate such a right. They are proceedings for review, and consequent appeal, in respect of a decision under the Act; and the point in question is whether the Attorney-General, being otherwise entitled to maintain the confidentiality of certain legal advice, waived that entitlement by his conduct. Whether the practice ought to be different, and whether it could be challenged in judicial review proceedings or otherwise, is not relevant to whether the Attorney-General waived privilege.
[25]cf Horwitz v Connor (1908) 6 CLR 38; [1908] HCA 33; Flynn v The King (1949) 79 CLR 1 at 7-9; [1949] HCA 38; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 261; [1981] HCA 74; Von Einem v Griffin (1998) 72 SASR 110; R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349; Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC 527; Lewis v Attorney General of Jamaica [2001] 2 AC 50.
The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant. If she had a legal right to reasons for the decision, then she still has it. If she had no such right, the press release did not deprive her of anything to which she was entitled. What the Attorney-General said did not prevent the appellant from making public her petition, or any part of it, as and when she desired.
Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd[26], questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell[27], has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law[28].
[26](2005) 65 IPR 442 at 447 [26].
[27](1999) 201 CLR 1 at 11 [23].
[28]See also Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67.
The reasoning of Maxwell P was correct.
Section 50(4)
Although there was an unsuccessful attempt to obtain special leave to appeal on wider grounds, the appellant's third ground of appeal is directed to a specific aspect of the way in which the Court of Appeal dealt with the "public interest override". Counsel for the appellant explained the ground as follows:
"Our short point is that the Court of Appeal, in the absence of reviewing these specific documents, could not have formed the view that necessarily section 50(4) could not apply."
It appears that the Court of Appeal was not invited by either party to inspect the documents in dispute. We were told in the course of argument that, at least on the appellant's side of the record, it was understood that, if the Court of Appeal found legal error in the Tribunal's decision on s 50(4), it would remit the proceedings to the Tribunal. This understanding was said to be supported by an announcement at the commencement of the proceedings in the Court of Appeal that the present respondent did not seek to have the Court of Appeal make a substantive order in relation to the application for access. In the events that occurred, the Court of Appeal made orders denying access, and it did so for the reasons recounted above. The question for this Court is whether, not having seen the documents, the Court of Appeal erred in deciding that, in the circumstances of the case, there was no basis upon which it could have been concluded that the case was one for the application of s 50(4).
The Court of Appeal had available to it the Tribunal's description of the documents and the Tribunal's reasons for applying s 50(4). The legal errors which the Court of Appeal found in the Tribunal's reasons (which are not presently in contest) did not turn upon the particular contents of the documents. The Court of Appeal was able to identify those errors without inspecting the documents. The same applies to the greater part of the Court of Appeal's reasoning on its own approach to the application of s 50(4). The public interest considerations in play were canvassed in the reasons of the Tribunal and the arguments of the parties. The appellant did not rely upon public interest considerations additional to those relied upon by Morris J. Save in one respect Morris J did not say, or suggest, that his decision concerning s 50(4) turned upon any aspect of the contents of the documents apart from their general character as outlined in his reasons.
The qualification to what is said in the previous sentence arises from the two paragraphs in the reasons of Morris J quoted above under the heading: "The decision of the Tribunal". As was noted, it is not clear from those paragraphs whether Morris J was saying, or suggesting, that there was some material inconsistency between the joint advice and the other advices received by the Attorney-General, or between the factual bases upon which the various advices were given. Yet he appeared to raise, as a matter for serious consideration, the possibility that there was some "difference" between the joint advice and other advices.
Unless particular considerations are identified as supporting the conclusion that the public interest requires disclosure of particular documents in respect of which legal professional privilege is maintained, the public interest in the maintenance of the client's privilege is not to be set aside. It is to be expected (at least in all but the most exceptional case) that any such countervailing consideration could be described with particularity and that it would be an interest of weight and substance. So much follows from the considerations of public interest that underpin the privilege, and from the fact that s 50(4) is not engaged unless the Tribunal is of the opinion that the public interest requires disclosure of the documents in question. But no countervailing interest was identified in the present case beyond the invocation of a general proposition about the desirability of clearing the air and a general assertion that there is a public interest in information being fully available.
In the Court of Appeal, Bongiorno AJA approached the question of public interest by examining whether an exercise of the prerogative of mercy was judicially reviewable. Having concluded that it was not, Bongiorno AJA held[130] that to release the documents now in question was not in the public interest because it "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 is not necessary to decide whether, or to what extent, the exercise of the prerogative of mercy may be subject to judicial review. It is sufficient to say that using documents to which access is obtained under the FOI Act to bring public or other forms of political pressure to bear upon the Executive Government will often be a purpose underpinning the making of a request under the Act. The possibility of such use of documents obtained under the FOI Act is not foreign to the purposes of the FOI Act; it is not a reason that weighs against disclosure of particular documents under the FOI Act, whether in exercise of the power given by s 50(4) or otherwise.
[130]Secretary, Department of Justice v Osland (2007) 95 ALD 380 at 411 [127].
In so far as the Tribunal's reasons in this case are to be understood as suggesting that there may have been some contrariety between the separate pieces of legal advice made available to the Attorney‑General in relation to the appellant's petition for mercy, two points must be made. First, as noted earlier, the Tribunal made no finding that there was any contrariety. Secondly, if there were, that fact, standing alone, would not support the conclusion that the public interest required disclosure of some or all of the advices in question. It would not support that conclusion because legal professional privilege is not confined to such advice as appears, on later examination, to be legally or factually sound and well‑based. And if conflicting advice was proffered to the Attorney‑General in the present matter, his adoption of one strand of advice, in preference to one or more different views, does not present any issue about public interest.
Whether questions of public interest could arise if there were some suggestion that the accuracy of what was said publicly about a matter could be disputed if access were to be provided to otherwise exempt documents is not a question that now arises. No suggestion of that kind was made in the Tribunal, or in the Court of Appeal, and there was no foundation for a suggestion of that kind. There was no foundation for such a suggestion because the little that was said publicly about the appellant's petition for mercy did no more than refer to the taking of the joint advice of senior counsel. No mention was made of any other advice.
It follows that Maxwell P was right to conclude[131] that "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". Apart from references to "clearing the air" and to "transparency", no consideration was identified, whether in the reasons of the Tribunal or in argument in this Court or below, which could be put against maintenance of the legal professional privilege found to attach to these documents. That being so, regardless of the particular contents of the documents in question, s 50(4) was not engaged. It also follows that, contrary to the appellant's submissions, it was not necessary in these circumstances for the Court of Appeal to examine the documents that were in issue.
[131](2007) 95 ALD 380 at 405 [103].
It is not necessary to consider the further questions touched on in oral argument in this Court about the ambit of the operation of the provisions of s 30 of the FOI Act concerning internal working documents.
The appeal to this Court should be dismissed. The respondent sought no order as to costs.