In October 1996, Heather Osland was convicted of the murder of her violent husband and was thereafter sentenced to a term of 14½ years imprisonment (para. 1). After multiple appeal applications were dismissed, Mrs. Osland submitted a petition for mercy to then-Attorney General. The petition was later denied by a newly elected Attorney General after consulting with the State Opposition and a panel of three senior counsels (paras. 2-3). Thereafter, Mrs. Osland applied under the Freedom of Information Act 1982 (FOIA) for access to all of the advices provided to the Attorney General and associated departmental correspondence (para. 4). The FOIA application was denied on the basis that the documents fell under legal professional privilege (para. 4). After the denial was set aside by an administrative tribunual (Tribunal), the Tribunal’s decision was initially overturned by the Court of Appeal without examining the advices that apparently reflected different views. On review, the High Court remitted the matter to the Court of Appeal requiring that the advices be examined. Having examined the advices, the Court of Appeal again set aside the Tribunal’s order, and the High Court subsequently granted a further appeal (paras. 5-6).
The Court noted that while the public interest override of section 50(4) has been called a “significant and exceptional” power and “a most extraordinary provision,” this does not justify its characterisation as a power to be exercised only in “exceptional circumstances”(para.14). Such an approach would conflict the aim of the FOI Act, which is to "further, rather than hinder, free access to information" (para. 14). Rather, the Court reasoned that the decision-maker must “identify a high-threshold public interest before the power can be exercised ... The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power.” (para. 14). Ultimately, the Court ruled that two conditions must be satisfied before such power can be exercised: (i) the evidence must be capable of supporting an opinion that the public interest requires that access to the documents be granted; and (ii) the Tribunal forms the opinion that that is what the public interest requires (para. 12).
Taking into account the circumstances of this case, in particular the nature of the differences between the advices, the question of fairness and authority of the criminal justice system, and asserted inadequacies in the law in relation to domestic violence, the Court decided that the high-threshold public interest standard was met and public interest considerations overrode the exemption of legal professional privilege, and granted access to the documents (para. 48).
The court added that against such considerations, the interests protected by legal professional privilege were of diminished importance. “When the Attorney-General received the advices which he did from various members of the legal profession, he did so on behalf of the public and not as a private citizen. Such continuing public interest as there was in the privilege attaching to the documents in the circumstances of this case was capable of being put to one side against the public interest in disclosure.” (para. 48).
According to Peter Timmins’ Open and Shut Blog, “the decision is an important precedent on how factors particular to the applicant can be highly relevant to the public interest in disclosure, and on the interpretation and application of the almost unique override discretion conferred on [Victorian Civil and Administrative Tribunal] by s 50(4) of the Victorian Freedom of Information Act.
Judgment of the Court.
Commentary from the Victorian Government Solicitor’s Office.