High Court FOI decision puts Osland case back for reconsideration

The High Court of Australia, by a 5-1 majority has allowed an appeal by Marjorie Osland against a decision of the Victorian Court of Appeal concerning access under the Victorian Freedom of Information Act to advice provided to the Attorney General by three prominent lawyers to deny her petition for pardon for a murder conviction.The Court held that legal professional privilege had not been waived in relation to the advice as a result of a press release issued by the Attorney General.However it decided that the Court of Appeal erred in law when it did not examine the documents in question before deciding that, in the circumstances of the case, there was no basis for the exercise of the "override discretion" to release a document where the public interest requires(Section 50(4) of the Act).The Court remitted the matter to the Court of Appeal for further hearing to enable it to inspect the documents to consider whether public interest overrode legal professional privilege.The Media Release summarises the facts and findings.

Readers of the fine print will be interested to see that the joint judgment of four judges in the majority was that waiver of privilege required " 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."[45].

In this case:

"The evident purpose of what was said in the(Attorney General's) 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."[48]

Justice Kirby, in a separate judgment in which he agreed with the majority used strong words on the importance of the objects of the Act, the "new"realities concerning disclosure of documents that arise as a result, and areas of significant disagreement on some of these issues with the sole dissenter, Justice Hayne:

"Repeated disparagement of the expression "transparency in government suggests an approach to the FOI Act that I cannot share. In so far as the Tribunal made reference to considerations of transparency, it was correct to do so. As the short title of the FOI Act suggests, as its long title affirms, and as its stated objects demonstrate, the public purpose of the FOI is precisely to enhance transparency in government to the extent provided. That object is critical given the oft-repeated instruction of this Court that statutes should be read, so far as their language permits, so as to fulfil their evident purposes. The Tribunal and the courts must bear in mind the distinctive and radical purposes of the FOI Act and take particular care when reaching conclusions that appear to frustrate them."[114]

There is more, including reasons why "producing controversy is legitimate", not contrary to the public interest[121-123], something government leaders and public servants everywhere might reflect upon.