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Friday, June 25, 2010

Freedom of Information: High Court Osland decision

The High Court in Osland v Secretary to the Department of Justice [2010] HCA 24 decided that the Victorian Court of Appeal had failed to do what the High Court in an earlier decision had ordered, and stepped in to do the job itself. In a unanimous decision ( three separate judgments) the six judges found there was no error of law in the decision of the President of the Victorian Civil and Administrative Tribunal Justice Morris in August 2005 that the differences between the advices from senior counsel to the Victorian Attorney General whether to grant a petition of mercy on behalf of Mrs Osland provided the "powerful reasons" for requiring access to the documents in the public interest. In the circumstances of this case, the Court decided public interest considerations overrode the valid claim of legal professional privilege, and granted access to the 300 pages of advice received by the Attorney General from all sources . The decision is an important precedent on how factors particular to the applicant can be highly relevant to the public interest in disclosure, and on the interpretation and application of the almost unique override discretion conferred on VCAT by s 50(4) of the Victorian Freedom of Information Act. "Almost" because the NSW Administrative Decisions Tribunal has some capacity to override an exemption in dealing with FOI matters, but not in respect of legal privilege, and the GIPA act to commence this week will have the effect of winding back the the discretion in some respects as well.

Since Justice Morris made his decision five years ago this matter has been the subject of a Court of Appeal decision, a High Court decision, a further Court of Appeal decision and finally this decision in favour of Mrs Osland. There is an interesting question about what all this cost the Victorian taxpayer, also stuck with an order to pay her costs in the High Court. She will now get to see, nine years after her Freedom of Information application, that there was more to the advice received by the Attorney General than indicated in this media statement in 2001:
"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."
While not mentioned in the release, advice had been received from the Victorian Government Solicitor, and a senior counsel, Robert Redlich QC, among others, in addition to the three counsel referred to in the statement. Differences between advices, the basis of the decision by Justice Morris, turned out to be a crucial point in the case in the High Court.

Crennan QC, now Justice Crennan of the High Court did not sit in proceedings for obvious reasons.

The nub of the issue

While the decision turned on the way the Court of Appeal interpreted the remit in an earlier High Court decision, and considered relevant issues, the broader question was the application of Section 50(4) of the Victorian Freedom of Information Act, generally and in the circumstances of this case:
"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.
The override discretion generally

In earlier decisions and in other recent cases the courts have emphasised the narrow scope of the words "the public interest requires". High Court Chief Justice French, and Justices Gummow and Bell in a joint judgment said:
  1. The power to grant access on public interest grounds is not, in terms, vested in the relevant Minister or agency. By virtue of s 16 they retain their freedom to grant access to exempt documents. Rather, it is a power included in the powers conferred on the Tribunal. In this respect it is unique in freedom of information legislation in Australia. It has been called a "significant and exceptional" power and "a most extraordinary provision". These epithets do not justify its characterisation, propounded by the Secretary, as a power to be exercised only in "exceptional circumstances" Those words are not in the statutory text. Their use may misdirect the inquiry required by s 50(4). They may be taken erroneously to limit the range of matters relevant to the public interest. Nor do they sit easily with the proper approach to the construction of the FOI Act, which is to "further, rather than hinder, free access to information" under it Having said that, it must be accepted that the word "requires" which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, "predicated on fact-value complexes, not on mere facts" to be applied by the decision-maker.
Victorian Court of Appeal missed the point

The earlier High Court decision had ordered the Court of Appeal to decide whether there was an error of law in the decision of Justice Morris. The Court of Appeal seemed to assume that its earlier finding of an error of law stood, and proceeded accordingly. The joint judgment summarised the Court's errors [45]:
 .....the Court of Appeal did not do, on the remitter, what this Court had required it to do. Putting to one side the debate about whether it could justify its exercise of power under s 148(7) by reference to errors of law identified in its first decision, the Court of Appeal did not consider the question of law raised by s 50(4), nor did it consider the exercise of the discretion under that sub-section, by reference to the content of the disputed documents and the differences between them. Nor did it appear to give any real consideration to the limited nature of its jurisdiction under s 148.
Justices Hayne and Keifel said:
 75. The task which the Court of Appeal set for itself on remitter may be seen from the first question it posed for determination following its findings that there were material differences in the advices: "Does the public interest require that access be given?" This was followed by a consideration of "The public interest in accountability". The Court concluded with an inquiry as to whether "the particular circumstances of the case require disclosure". By posing the question it did and undertaking the inquiries identified, the Court of Appeal did not review what the Tribunal had done, and had said in its reasons, for error of law. Rather, it impermissibly assumed the role of the Tribunal and substituted its own decision.
 The public interest in this case

In doing so, the Court of Appeal had also erred in its consideration of relevant public interest factor, as outlined in the joint judgment:
38. It acknowledged that there might be public interest factors favouring access. In the event it identified none. Nevertheless, it said that the task confronting it involved "a balancing process".What was balanced against what did not emerge. It was common ground that the power to grant access under s 50(4) was exercisable "only if the tribunal (or, in this case, the court) concluded that the public interest required that access be granted" The Court held that nothing in the language of the press release warranted a finding that the Attorney-General had represented to the public either that the joint advice was the only advice he received on the topic or that he had received no advice to the contrary. The announcement was intended to convey, and in fact conveyed, no more than that the decision had been based on, and accorded with, independent legal advice from eminent counsel. Mrs Osland's alternative argument, that the Attorney-General's "assumption" of political accountability for his decision required that the documents be released in the public interest, was also rejected.
Chief Justice French, and Justices Gummow and Bell however found a compelling public interest arising from the nature of the case:
  1. The exercise of the prerogative of mercy in relation to a person convicted of murder engages the public interest at a high level of importance. That importance is all the greater when, as was accepted by all of the authors of the advices in this case, the legal correctness of the conviction is not in issue, nor is it able to be put in issue. A decision for or against the exercise of the prerogative in such a case involves considerations of fundamental importance to the whole community relating to the right to life and the community's treatment of those who violate that right by killing another without legal justification or excuse. In this case, the Attorney-General recognised the importance of that public interest by disclosing, in his press release, that the recommendation which he made to the Premier was based upon independent advice from persons of high standing and reputation in the legal profession and in the wider community. The press release did not, however, disclose that the joint advice was based substantially upon normative judgments about the desirability of exercising the prerogative of mercy on grounds which did not impugn the correctness of the conviction. It did not disclose that differing judgments had also been proffered.
  2. The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland's situation, and asserted inadequacies in the law in relation to chronic domestic violence, was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney-General had before him when he recommended that Mrs Osland's petition be denied. The differences between the authors of the advices were on questions readily comprehensible by members of the public. They did not turn upon arcane disagreements, likely to be misunderstood, about the interpretation of the relevant law. Against the weight of such considerations, in applying s 50(4) of the FOI Act the interests protected by legal professional privilege, and recognised by s 32(1) of that Act, in the particular case were arguably of diminished importance. When the Attorney-General received the advices which he did from various members of the legal profession, he did so on behalf of the public and not as a private citizen. Such continuing public interest as there was in the privilege attaching to the documents in the circumstances of this case was capable of being put to one side against the public interest in disclosure.
  3. The preceding conclusions are sufficient to answer the question of law implicit in s 50(4) in favour of Mrs Osland...
Justices Hayne and Keifel said:
    82. In order to apply s 50(4), it was necessary for Morris J to form the opinion that the public interest required access to the documents, given the circumstances surrounding the making of the press release. Whether access was required might depend, to a large extent, on the nature of the public interest identified by his Honour. It was recognised in the joint reasons on the earlier appeal to this Court that "there are obvious difficulties in giving the phrase 'public interest' as it appears in s 50(4) a fixed and precise content."Nevertheless it was said that the assumption by the Attorney-General of political accountability, by putting out the press release, might be sufficient to enliven s 50(4). There is no reason why, given the inconsistency in the advices, this should not be so and the view expressed by Morris J as to the public interest seen as one within the purview of the sub-section.
    Was justice done?

     As to what to make of the Attorney General's decision to refuse the mercy petition, opinions range from Mrs Osland as reported in the Bendigo Advertiser  to James Campbell in the Herald Sun. I'm just pleased some of the earlier views of the Victorian Court of Appeal, such as this, don't stand:
    "(i)t is.. outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability… Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature


    1. Anonymous11:42 am

      The essence of Osland is that the High Court found that public interest can prevail over legal professional privilege - at least where the holder of that privilege is the executive government.
      Unfortunately, the principles relating to legal professional privilege, which developed in the context of communications between 'real' persons and their lawyers, have been extended to circumstances where those principles are of dubious applicability.
      The situation is exacerbated by the fact that most (if not all) lawyers have a strong vested interest in ensuring that they are not held accountable to the public for their advice - only to their client. This enables 'dodgy' lawyers to give 'dodgy' advice with impunity - provided it is what their client wants to hear.

    2. Peter Timmins12:36 pm

      Unfortunately there are many instances where a legal privilege claim is technically available, but either no harm would result from disclosure or there is a competing public interest in disclosure, neither of which are relevant factors in most jurisdictions.Privilege is an absolute exemption even in our four recent reform jurisdictions.And bodies like the Commonwealth AAT don't have an override discretion in any event. I'm in favour of a public interest test for all categories of information, but no-one shows any interest in going that far.

    3. Anonymous8:12 pm

      The fundamental importance of Osland is yet to be understood by the legal profession (and perhaps by the High Court itself).

      Before Osland the common law of Australia 'decreed' that the 'right' of a client to claim legal professional privilege in respect of a communication with his or her lawyer - whether the client was an individual or a corporation (including a statutory corporation) or the executive government itself - was entirely determinative of 'the issue': i.e. whether or not such communication would be 'privileged from production in legal proceedings on the ground of legal professional privilege'.

      Under the common law prior to Osland, ‘public interest’ could never override the ‘entitlement’ of a client - whether or not that client was a public body - to absolute confidentiality, even before a court of law, in its communications with its lawyers.
      There was always of course the Cox v Railton exception – reflected in the Australian context by the decision of the High Court in Attorney General (NT) v Maurice (1986) 161 CLR 475 (and discussed by former Justice Neil Young in the AWB case) – but the ‘golden rule’ which so many lawyers (whether ‘dodgy’ or not – refer previous comment by Anonymous) relied upon was that any communication between themselves and their clients was ‘untouchable’.

      [Those who watched the program on the ‘Walsh Street Killings’ on Channel 7 on Wednesday 30 June 2010 may be surprised to learn this. That program revealed that the Victorian Police Force ‘listened in’ on conversations between Andrew Fraser and one of the suspects in the ‘Walsh Street Killings’. Client legal privilege?]

      The common law prior to Osland was stated by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 449 at 64-65 as follows:

      “Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell, and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication.”
      The key passage in the above is:
      “… legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required.”

      This approach was rejected by the High Court in Osland.

      Simply put, public interest in the disclosure of a communication between a public authority (which includes the executive branch of the government) and its lawyers may – under certain circumstances – override the ‘public interest’ in client legal privilege. (The decision of the High Court does not affect the right of an individual to claim ‘client legal privilege’ – it applies only to public authorities.)

      One looks forward to the time when – if ever – the ‘public authorities’ of New South Wales realise that they are ‘not above the law’.

    4. The Osland decision needs to be seen in the context of the unique and broad VCAT statutory override discretion that empowers VCAT to grant access to any document even one subject to legal privilege, where the public interest requires it. And, separately from FOI,the public interest in the administration of justice gets considered and can trump legal privilege in public interest immunity cases, for example