In 2002, Mrs Heather Osland made an FOI request under the Freedom of Information Act 1982 (Vic) (Act), seeking access to legal advice provided to the Victorian Attorney-General. The advice related to a petition for mercy submitted by Osland, seeking a pardon for her conviction for the 1996 murder of her husband, a murder committed in circumstances of serious domestic violence.

In September 2001, the Attorney-General had announced in a press release that Mrs Osland’s petition for mercy had been denied, the Attorney-General citing independent legal advice as the basis of the decision. In that press release, the Attorney-General stated that ‘a panel of three senior counsel’ had been appointed to consider the petition, and that their ‘joint advice recommend[ed] on every ground that the petition should be denied’.

Mrs Osland requested access to all advice provided to the Attorney-General, but the Department of Justice claimed the documents were exempt from disclosure under s 32(1) of the Act, on the grounds that the advice attracted legal professional privilege. Osland appealed to the Victorian Civil and Administrative Tribunal (VCAT), unsuccessfully arguing that the Attorney-General had waived privilege by referring to legal advice in a public press release.

VCAT nonetheless ordered that the advice should be released under section 50(4) of the Act, which allows release of documents otherwise exempted from disclosure where the ‘tribunal is of the opinion that the public interest requires … access to the document’. However, VCAT’s application of section 50(4) — the “over-ride” provision — was overturned by decision of the Victorian Court of Appeal, a decision which was itself overturned by the High Court. The High Court held that significant differences of substance between the advice relied upon and advice obtained previously could have been a sufficient public interest basis to require disclosure. This being so, the Court of Appeal ought to have inspected the documents — something they had failed to do. On remitter, the Court of Appeal again found that the over-ride provision should not apply because, even considering the differences between advices provided, it was outside the scope of this provision for the 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.

The case was again appealed to the High Court, on the grounds that the Court of Appeal did not perform the task required of it in accordance with the High Court’s remittal. The High Court again set aside the Court of Appeal’s decision because the ‘generality of the Court’s reasoning’ suggested they had in fact found that differences between legal advices provided to ministers would generally not be sufficient to require disclosure — answering, in the words of the High Court, a ‘question of law precluded by the terms of the remitter.’

The High Court held that the Court of Appeal had not considered that the different conclusions reached by counsel were based not on ‘arcane disagreements … about the interpretation of the relevant law’ but rather ‘normative judgments about the desirability of exercising the prerogative of mercy’. The former was likely to be misunderstood, while the latter was readily comprehensible by members of the public. According to the High Court, the different conclusions raised by the earlier advices raised issues of the ‘fairness and authority of the criminal justice system’ and ‘asserted inadequacies in the law in relation to domestic violence’, both issues of sufficient public interest to ‘put to one side’ the privilege attaching to the advices.

Given the failure by the Court of Appeal in the previous remitter, and in the interests of providing finality for Osland, the High Court reinstated the original decision of the Tribunal rather than remit the matter to the Court of Appeal once again, ending a near-decade long dispute and finally giving Osland access to legal advice relied upon in denying her petition for mercy.