Secretary, Department of Justice V Osland 2007 VSCA 96
CASE NOTE
By Mick Batskos
Executive Director, FOI Solutions[1]
Secretary, Department of Justice v Osland [2007] VSCA 96
Maxwell P, Ashley JA and Bongiorno AJA
17 May 2007
This case considers two important aspect of the law. First, it deals with legal professional privilege and, more particularly, with implied waiver of that privilege at common law. Secondly, it deals with the interpretation and application of the public interest override in section 50(4) of the Freedom of Information Act 1982 (Vic) (“FOI Act”). This note deals with each in turn.
Factual background
Mrs Osland was convicted of killing her husband and, after exhausting all legal avenues of appeal up to the High Court, lodged a petition for mercy with the then Attorney General in July 1999. In September 2001, the Attorney General announced that the Governor had refused the petition and issued a press release which stated, among other things:
“This week I received a memorandum of joint advice from the panel [ie of 3 QCs] 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.”
In addition to that joint advice, there were a number of other legal advices that had been provided in connection with the petition.
Mrs Osland applied for access to the documents under the FOI Act. Access was denied by the Department of Justice on the basis of s.32 (legal professional privilege) and s.30(1) (internal working documents). When the matter was heard by the then President of the Victorian Civil and Administrative Tribunal, Morris J, he concluded that:
(a)the documents were exempt from disclosure under s.32 of the FOI Act on the basis of legal professional privilege;
(b)there had been no waiver of that privilege;
(c)even though the documents were exempt, access should be granted because the public interest required disclosure under s.50(4) of the FOI Act.
The Secretary to the Department, by leave, appealed that decision to the Court of Appeal.
Legal professional privilege
The conclusion that the documents were exempt under s.32 on the basis of legal professional privilege was not challenged by Mrs Osland on appeal. However, she filed a notice of contention alleging that privilege had been waived in relation to the joint advice by the press release published by the Attorney-General.
1
The leading judgment was that of the President. He engaged in a comprehensive analysis of recent authorities after the High Court decision in Mann v Carnell (1999) 201 CLR 1. He referred in particular to the decision of Gyles J in the Full Federal Court decision of Bennett v Chief Executive Officer of the Australian Customs Service (204) 140 FCR 101 which “has been applied subsequently as if it were a rule of general application.”[2] In Bennett, Gyles J stated:[3]
“The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reason for the conclusion.”
Maxwell P stated that he was “respectfully unable to accept that any general rule is either justified by the authorities or compatible with the inconsistency test enunciated in Carnell”.[4] He then proceeded to review the chain of authorities from which the statement of Gyles J was derived and referred to the statement of Young J in AWB Limited v Cole (No 5)[5] which was made after the Osland case was argued:
“In my view, it is well-established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice.”
Maxwell P pointed out that the line of cases stem from earlier decisions considering the effect of s.122(2) of the Evidence Act 1995 (NSW) which turns on whether the “substance” of the relevant evidence has been disclosed. He makes the point that no such criterion governs the application of the common law inconsistency principle.[6]
His Honour pointed out in the High Court decision of Esso Resources Australia Ltd v Federal Commissioner of Taxation[7] which endorsed the Full Federal Court’s conclusion and reasoning emphatically rejecting any derivative use of the Evidence Act provisions to mould the common law governing legal professional privilege. He concluded that:
“As at the date of the decision in Bennett, therefore, no reliance could be placed on any decision…which treated common law waiver as if it were governed by the (different) statutory test created by s122 [of the Evidence Act 1995 (NSW)].”[8]
His Honour went on to conclude:
“With the greatest respect, I do not consider that the authorities establish – or are capable of sustaining – any general rule to the effect stated by Gyles J and, subsequently, by Whelan J and Young J. Whether there is imputed waiver in any given case is a question to be determined in the circumstances of that case.”[9]
Finally, in describing the test to be applied to determine whether there has been imputed or implied waiver, His Honour stated the following:
“Disclosure of the conclusion (or the gist, substance or effect) of legal advice may, or may not, amount to a waiver of privilege in respect of the advice as a whole. Whether it does in a particular case will depend on whether, in the circumstances of the case, the requisite inconsistency exists, between the disclosure on the one hand and the maintenance of confidentiality on the other. In Bennett, the majority of the Full Federal Court judged that there was inconsistency and hence waiver; in British American Tobacco[10](discussed below), this Court judged that there was not. In each case, there was a disclosure of the gist or substance of advice given. That opposite conclusions were arrived at is simply a reflection of the different circumstances of the respective cases.
…
As Carnell demonstrates, the inconsistency test readily accommodates the notion that, in appropriate circumstances, the privilege-holder may disclose the content of legal advice to a third party for a particular purpose without being held to have waived privilege in the advice.[11] Likewise, in my opinion, the test of inconsistency is well capable of accommodating the notion that, in appropriate circumstances, the privilege-holder should be able to disclose publicly that it is acting on advice and what the substance of that advice is, without being at risk of having to disclose the confidential content of the advice.”[12]
In the present case, he found that:
“The evident purpose of the Attorney-General’s disclosure was to inform the public that the recommendation he had made to the Governor – that the petition for mercy be denied – was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected. The Attorney-General evidently wished it to be known that, in considering whether or not the prerogative of mercy should be exercised, he had taken independent advice and was making a recommendation which accorded with that advice. In the language of Carnell, this was a disclosure “for the purpose of explaining or justifying” the Attorney-General’s actions. The purpose was similar to that of the disclosure in Carnell itself, where the Chief Minister wished to satisfy the relevant member of Parliament that the ACT Government “had acted responsibly and in accordance with legal advice”.
In my opinion, there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice for that purpose, and wishing to maintain the confidentiality of the advice itself. This was not a case of a party to litigation “deploying” a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication. Nor was it “the laying open of the confidential communication to necessary scrutiny”.”[13]
Public interest override
The Court also considered the operation of section 50(4) of the FOI Act. It provides in effect, subject to 4 exceptions, that the Tribunal can nevertheless order the release of otherwise exempt documents if it is satisfied that the public interest “requires” disclosure.
Maxwell P accepted as “clearly correct” the Solicitor-General’s submission that where more than one exemption is claimed by a respondent agency, all of the claimsfor exemption must be determined before the Tribunal can consider whether the public interest override in section 50(4) applies. This is because the public interest considerations which support one exemption may well be different from those which support another exemption.[14]
In Secretary to the Department of Premier and Cabinet v Hulls[15]in relation to the public interest override, the Court of Appeal described the public interest override as requiring that:
•In each case the Tribunal must determine whether considerations of the public interest are so strong as to outweigh, or override, those factors by which the documents are exempt documents.
•The override cannot be invoked simply because the Tribunal holds the opinion that it is in the public interest that the exempt document be released; rather, the question is whether the public interest requires the release of the document: that is, demands or necessitates disclosure.[16]
This was accepted by the Court. Maxwell P stated:
“The power conferred on the Tribunal by s 50(4), to grant access to an exempt document, is exercisable only if the Tribunal concludes that the public interest requires that access be granted. That is a stringent test. As this Court said in Hulls, “requires” in this context is synonymous with “demands” or “necessitates”. There is “a sense of the imperative.” The public interest consideration(s) said to require the granting of access must be so strong as to override the public interest considerations underpinning the applicable exemption(s).[17] The case for access must, in effect, be irresistible.”[18]
His Honour Bongiorno AJA appeared to raise the public interest bar that little bit further in making some very strong comments about what must be satisfied before the public interest override applies to require disclosure. He expressed the operation of the test in the following way:
“The word “required” in the context of s 50(4) of the Freedom of Information Act connotes “obligation”, “necessity” or “compulsion”. It is not sufficient for the Tribunal to reach the opinion that it is in the public interest that access to a document, otherwise exempt, should be granted. The public interest must “require” such access. In Secretary to the Department of Premier and Cabinet v Hulls[19]JDPhillipsJA accepted that “requires” in s 50(4) was synonymous with “demands” or “necessitates”. There is a notion of the imperative involved. Having regard to the fact that consideration of the application of s 50(4) to any particular document only arises after a determination has been made that another provision of the Act exempts that document from disclosure, it is not surprising that the legislature should set the criterion for the operation of the section by reference to a concept of necessity. A mere balancing exercise, particularly perhaps in the case of documents the subject of legal professional privilege, would present significant difficulties having regard to the already existing public interest considerations, referred to by the President, which support the existence of legal professional privilege.
Legal professional privilege is itself a legally enforceable consequence of the application of a public interest of the highest order. If application of the override requires the Tribunal to determine whether considerations of “the public interest” are so strong as to outweigh or override those factors which make the document exempt, that outweighing or overriding must be compelled by the public interest consideration. It is only if the concept of compulsion is borne in mind that the exercise can be appropriately termed a balancing one. To have applied s 50(4) properly the Tribunal would have had to have been able to express itself in terms which conveyed that it had no practical alternative but to allow access. It would have to have been of the opinion that unless access was granted the public interest would suffer or be diminished in some way. Short of such a state of satisfaction the public interest would not require that there be access to the document.”[20]
Misapplication by the VCAT
The Secretary to the Department had submitted that the Tribunal had fallen into error in distinguishing between documents which contained legal advice “of historical interest” and those which were “under active consideration” in holding that maintaining legal professional privilege in relation to the former was likely to be less important than in relation to the latter. It was also argued that that Tribunal had therefore treated legal professional privilege as one which was susceptible to degrees.
The Court concluded that the Tribunal had erred in so finding. The public interest factors which underpin legal professional privilege support all privileged documents uniformly. They do not vary depending on the particular content of a privileged document or upon whether or not it has or lacks current relevance. Once legal professional privilege attaches to a document, it attaches for all time and in all circumstances.[21]
The Court also accepted the submission that the Tribunal had fallen into error by conflating “matters of public interest” with the phrase “in the public interest” in section 50(4). Maxwell P stated that this submission was well founded and continued:
“The extent to which the public are – or are believed to be – interested in a particular matter is not, by itself, relevant to the determination of whether disclosure of a document relating to that matter is in the public interest, within the meaning of s 50(4). Were it otherwise, the formation of the opinion which s 50(4) requires would depend upon the ascertainment of the extent to which the public had been shown to be interested in the topic. I pointed out in the course of argument the practical difficulties which this would create. But this is, in my view, an error of principle, not merely a question of practicability. Accordingly, in my respectful opinion, the Tribunal fell into error by taking into account an irrelevant consideration, being the Tribunal’s perception of the extent to which “the public” wished to know why the petition had been denied.”[22] (emphasis added)
Bongiornio AJA stated his views about publicity and the public interest in the following terms:
“The second matter which the Tribunal referred to as justifying the application of the public interest override this case, was that the case was “unique” because of the large amount of publicity it has generated. But even if publicity suggests that the matter publicised is one in which the public is interested it does not, per se, demonstrate public interest in the sense that term is used in s 50(4) of the Act. It is in this respect that the Tribunal made the error of law to which the President has referred in his judgment. Even if the case is unique, which I take leave to doubt, that factor does not compel disclosure in the public interest.”[23]
Conclusion
In the circumstances, the Court found that the present case gave rise to no public interest consideration which would be capable of satisfying the test in section 50(4) so as to require disclosure of the legal advice. Accordingly the Tribunal’s decision was quashed and an order made in substitution ordering that the original decision of the Department to refuse access be affirmed.[24]
At the time of writing, Mrs Osland was reported to be considering whether or not to seek leave to appeal the decision to the High Court of Australia.
[1]Mick Batskos was the instructing solicitor in the Osland case.
[2][2007] VSCA 96 at [29].
[3] At 119, [65].
[4][2007] VSCA 96 at [29].
[5](2006) 155 FCR 30, at [163].
[6][2007] VSCA 96 at [34].
[7](1999) 201 CLR 49, 59-63 at [18] – [28].
[8][2007] VSCA 96 at [36].
[9][2007] VSCA 96 at [42].
[10] (2002) 7 VR 524.
[11] See also Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2006] VSCA 201.
[12][2007] VSCA 96 at [49] and [51].
[13][2007] VSCA 96 at [66] – [67].
[14]Id at [73].
[15][1999] 3 VR 331.
[16]Hulls at 340 [26] and 342 [31].
[17]Hulls at 342-3.
[18][2007] VSCA 96 at [92]. See also Ashley JA at [113] and Bongiorno AJA at [122].
[19] [1999] 3 VR 331, 338-343 (JD Phillips, JA).
[20]Secretary, Department of Justice v Osland [2007] VSCA 96 at [122] – [123].
[21]Id at [84]. See also Ashley JA at [113].
[22]Id at [91]. See Ashley JA at [113].
[23]Id at [129].
[24]Id at [103]. See also Bongiorno AJA at [131].