In December 2008, D-Brief reported on the decision of the High Court in Osland v Secretary to the Department of Justice (2008) 234 CLR 275. The High Court had found that the Victorian Court of Appeal, in considering whether public interest overrode legal professional privilege attaching to legal advice commissioned for the purpose of making a Ministerial decision, should have inspected the documents in question before reaching its conclusion. The High Court remitted the matter to the Court of Appeal for inspection of the relevant documents. The Court of Appeal has now, in Secretary to the Department of Justice v Osland (No 2) (2009) 254 ALR 590, confi rmed that the mere existence of differences of opinion in legal advice received to support a Ministerial decision does not enliven the application of the “public interest override” provision in s 50(4) of the Freedom of Information Act 1982 (Vic) (the FOI Act).

Background

In 1996, Mrs Osland was sentenced to 14 ½ years’ imprisonment for the murder of her husband, with a nonparole period of 9 ½ years. Upon exhausting her appeal rights, Mrs Osland petitioned the Governor of Victoria for mercy. In 2007, the Victorian Attorney-General issued a press release stating that the petition had been denied on the basis of a joint advice prepared by a panel of senior counsel.

Mrs Osland applied under the FOI Act for access to the joint advice, which was refused on the basis that the advice was subject to legal professional privilege. Subsequently, Mrs Osland applied to the Victorian Civil and Administrative Tribunal (VCAT) for administrative review of that decision.

Section 50(4) of the FOI Act, the “public interest override” provision, permits VCAT to grant access to privileged documents if it is in the public interest. VCAT decided that although there had been no waiver of privilege in relation to the advice, it should nevertheless be made available on this basis. The Attorney-General appealed this decision.

The Victorian Court of Appeal allowed the appeal, fi nding that there was no reason before VCAT to justify access to the advice on the basis of public interest. However, the Court of Appeal’s failure to inspect the relevant documents before reaching this decision was later criticised by the High Court as an error of principle in the exercise of its discretion. The High Court allowed the appeal. It held that privilege in the joint advice had not been waived by the Attorney-General’s media release, but the Court of Appeal should have examined the documents in question before deciding that there was no basis for the application of the “public interest override” provision. The High Court remitted the matter back to the Court of Appeal for inspection of the documents to consider whether public interest overrode privilege.

Decision of the Court of Appeal on remittal

In the proceedings on remittal, Mrs Osland’s principal argument was that the Attorney-General’s press release created the inaccurate impression that the joint advice recommending the rejection of her petition was the only legal advice obtained, and therefore liable to mislead the public.

Counsel for Mrs Osland relied on s 52 of the Trade Practices Act 1974 (Cth) (TPA), which states that conduct by a corporation can be misleading where information is withheld, that is misleading by silence. The Court of Appeal was willing to assume that the body of law concerning misleading by silence by corporations could be applied analogously in the context of public announcements by government Ministers. However, the Court drew a distinction between the actions of the Attorney-General, that is to inform the public of his decision to reject Mrs Osland’s petition, and the s 52 cases referred to by Mrs Osland’s counsel, which were essentially representations made in the course of commercial negotiations intended to be relied on by the other party in the process of making a business decision.

Mrs Osland argued, in the alternative, that there was a public interest in accountability which warranted release of the advices to the general public. The Court of Appeal categorised this argument as a “proposition of a general – and potentially far-reaching – character”.

That is, that any Ministerial decision supported by legal advice would render the Minister “properly accountable” to disclose the existence and content of all relevant advices.

The Court of Appeal found nothing in the content of the advices that attracted the application of the public interest override provision. It commented that it was outside its mandate 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”. However, it held that upon inspection of the advices pertaining to Mrs Osland’s application, they could note nothing about “this petition, or these advices, or this process of decision-making, or this announcement, which compels disclosure of the advices in the public interest”. The Court made specifi c reference to the fact that the alternative advices were provided to the Attorney- General sequentially, allowing him to evaluate the material differences presented before him.

In reaching its conclusion, the Court held that the viewing of the documents revealed an “orthodox process of Government decision-making” which did not satisfy the exceptional circumstances required for documents to which legal professional privilege is attached to be disclosed to the public.

Implications

The Victorian Court of Appeal’s decision in this case illustrates that a high threshold must be met before documents to which privilege attaches will be disclosed “in the public interest”.

The Court of Appeal confi rmed that differences in opinion found in legal advice provided to support government decision-making was not considered unusual, but rather that the emergence of differences is benefi cial to creating a culture of quality decision-making. This case reiterates to those operating within the realms of executive decisionmaking that the key element to proper accountability is the demonstration of proper procedures being followed in the decision-making process.