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Tuesday, February 23, 2010

FOI in the High Court: Osland case raises soundness of mercy refusal

In the long-running Freedom of Information case that revolves around the circumstances that give rise to the exercise of the Victorian Civil and Administrative Tribunal's override discretion under Section 50(4) of the Freedom of Information Act to require disclosure of an otherwise exempt document where the public interest requires it, the central issue before the High Court will be the Victorian Court of Appeal's view of the proper application of the provision. However the case will also see issues raised relevant to the soundness of the Attorney General's decision to refuse Mrs Osland's petition for mercy.  The grounds for the High Court (Chief Justice French and Justice Keifel) granting special leave to Mrs Osland to appeal were something along these lines:

(a) The Court of Appeal did not perform the task required of it in accordance with the High Court's remittal in that it failed to determine that, in the circumstances of the present case, s 50(4) of the Freedom of Information Act 1982 (Vic) was enlivened as a result of material differences in the various legal advices the Attorney General received

(b) The Court of Appeal erred in concluding that, notwithstanding the content of the press release, there was nothing in the content of the legal advices  and nothing in the revealed differences and the extent between those advices, that attracted the operation of s.50(4) of the FOI Act.

(c) The Court of Appeal ought to have found that the Attorney General's press release announcing his decision was misleading, lacked candour or was otherwise materially inaccurate or incomplete and, as a consequence, s.50(4) was enlivened.

Former Federal Court judge Ron Merkel QC instructed by Nieva Connell of Hunt and Hunt appeared for Mrs Osland.The appeal is likely to be heard in April.

Perhaps it is easy to see from a government perspective why Commonwealth FOI Reform legislation leaves untouched the unique limitation on the Administrative Appeals Tribunal in the FOI area, compared to its powers in other areas of jurisdiction, to not extend to an override discretion. The Law Council of Australia's Mark Robinson argued the case for change at a recent Senate Committee hearing, asserting that full merits review of administrative decisions required that the external review body has all the powers of the original decision maker. Commonwealth FOI decision makers have always had a discretion to release a document found to be exempt. While Opposition Senator Brandis showed some interest, so far no-one in Canberra has been having any of this for the last 28 years.

Mrs Osland was convicted of the murder of her husband, after having endured years of domestic violence, but her son who committed the act was acquitted. She was sentenced to 14 years 6 months imprisonment with a non-parole period of 9 years 6 months and released on parole in July 2005.Mrs Osland initially won the right to access legal advice that formed the basis for the Attorney General's decision to refuse the mercy petition. Appeals have been running ever since.

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