High Court weighs waiver in FOI case

The Osland case and the issue of waiver of legal professional privilege in the context of the Victorian Freedom of Information Act had a full day in the High Court of Australia recently, with judges reserving their decision until later in the month.

Not many clues in the transcript about what the judges made of the Victorian Court of Appeal decision that a media release by the Attorney General announcing a petition for mercy had been rejected, based on the unanimous advice of three eminent lawyers, did not constitute waiver of legal professional privilege. However several, including the Chief Justice queried whether the advice about the six grounds put forward in the petition was legal advice, a point apparently not argued previously, and central to the exemption claim.

It also emerged that of all those involved in review of the decision to refuse Osland access to the advice, only the President of the Victorian Civil and Administrative Decisions Tribunal had seen the document.He decided that the public interest required its disclosure, a decision overruled by the Court of Appeal.