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Sunday, May 27, 2007

Victorian decision illustrates conservative FOI law

In a recent blog we mentioned the Victorian Court of Appeal decision that overruled a Tribunal judgment that would have granted a woman access under the Freedom of Information Act, to advice received by the Attorney General who rejected her mercy petition following a finding of guilt in a murder trial.

The decision in the case, (Secretary, Department of Justice v Osland (2007) VSCA96) illustrates the conservative nature of the legislation, and the very limited circumstances in which the Victorian Civil and Administrative Tribunal has powers to require disclosure of an otherwise exempt document on public interest grounds.

In the lead judgment, President Maxwell was able to distinguish other decisions that formed the basis of the Tribunal finding that legal professional privilege had been waived because the Attorney General publicly referred to the advice provided and what it recommended in a media release. Waiver, not having been found, the legal professional privilege exemption remained, and will remain forever. The Tribunal had committed an error of law in deciding that the public interest justified disclosure. It can only do so where it concluded that the public interest required disclosure and, the meaning of "require" is much narrower than the test applied by the Tribunal.

For further analysis of the decision by Rachel Walsh of Phillips Fox solicitors see here.

In an interesting development, given the fact that Victoria (and the Australian Capital Territory) are the only Australian jurisdictions with a Charter of Human Rights, the Ontario Court of Appeal ruled last week that sections of their FOI Act imposed "unjustifiable limits" on the right to free expression under the Charter of Rights and Freedoms. It's a case involving a request for details of the process that led the wrongful convictions of two men for murder in 1991.

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