Osland
Making public comments about legal advice
August 2008 - Client Newsletter
Summary : The High Court has handed down its decision in Osland. In this case, the High Court considered the test for waiver of legal professional privilege as it currently applies in Victoria. The High Court endorsed the decision of Maxwell P in the Victorian Court of Appeal, who had applied the test in Mann v Carnell.
The High Court also examined the public interest override in s 50(4) of the FOI Act, however ultimately the case has been remitted to the Court of Appeal for further decision on this issue.
In appropriate cases the conclusions of legal advice can be publicly revealed without waiving LPP. It is important for those communicating with the public to bear in mind that the FOI Act can operate to require the release of documents, even though they would otherwise be protected by LPP, where the public interest requires.
If maintenance of confidentiality of legal advice is important in the public interest, advice should be obtained prior to publicly commenting on legal advice to ensure there is no inadvertent waiver of LPP or enlivening of the public interest override power under the FOI Act.
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Making public statements about legal advice
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In this newsletter we provide an overview of the recent High Court decision in Osland v Secretary to the Department of Justice [2008] HCA 37 (Osland) and some practical advice regarding legal professional privilege (LPP) and the public interest override power under the Freedom of Information Act 1982 (FOI Act). In an earlier newsletter we examined the Court of Appeal’s judgment in this case. Osland concerned a freedom of information application for release of legal advice provided to government in relation to the applicant’s petition for mercy.
The decision emphasises that LPP is waived where the conduct of the client is inconsistent with the maintenance of LPP. The outcome will always depend on the circumstances and the purpose of disclosure is highly relevant. The decision acknowledges that government, in a non-litigious situation, may be able to disclose the existence and conclusions of legal advice for the purpose of justifying or informing the public of its actions without waiving LPP. Such disclosure is to be viewed differently from disclosure for the purposes of obtaining a strategic advantage in financial or commercial litigation.
In relation to the public interest override in s 50(4), the decision does not alter the high bar set in the Court of Appeal decision. The decision also does not determine whether s 50(4) applies in these circumstances, but unlike the Court of Appeal decision, suggests that the override might apply. The High Court held that the Court of Appeal was in error in not inspecting the documents and making a determination of whether the override applied upon examining the documents.
Mrs Osland (the applicant) was convicted of the murder of her husband in 1991 and was sentenced to 14 and a half years imprisonment. In July 1999, the applicant submitted a petition for mercy to the former Attorney-General, Ms Wade, seeking a pardon. The petition was refused in September 2001 by the new Attorney-General, Mr Hulls.
Upon refusal of the petition, the Attorney-General issued a press release stating that the applicant’s petition contained six grounds upon which it was requested the petition should be granted and that a memorandum of joint advice from three prominent Queen’s Counsel (the joint advice) had recommended that the petition be denied on each ground.
The applicant sought access to the joint advice under the FOI Act, together with further legal advices which had been provided to the Government in relation to the applicant’s petition for mercy.
The Secretary of the Department of Justice (the Secretary) refused access to the documents. The applicant sought review of the Secretary’s decision at the Tribunal. President Stuart Morris upheld the LPP exemption under s 32 of the FOI Act but determined that the documents should be released under the public interest override as he concluded that the public interest required access be granted to the documents.
The Secretary appealed to the Court of Appeal. On appeal, the applicant revived an argument that, by reason of the contents of the Attorney-General’s press release, there had been an implied waiver of LPP over the joint advice. The Court was thus required to determine and apply the correct test for both waiver of LPP and the public interest override under s 50(4) of the FOI Act.
In short, the Court decided that LPP had not been waived in respect of the joint advice, and that the public interest override did not operate in this case such that the documents should be released.
The applicant obtained special leave to appeal this decision to the High Court. The Court’s decision was handed down on 7 August 2008. In summary, in responding to the three grounds of appeal, the Court held that:
- the reasoning of President Maxwell of the Court of Appeal concerning the waiver of LPP was correct;
- the comments of the Attorney-General in his media release were not inconsistent with the maintenance of LPP; and
- the Court of Appeal was in error because it did not examine the documents when considering whether the public interest override power applied.
Waiver of Legal Professional Privelage
Test of Inconsistency
This case involved a consideration of whether an ‘implied waiver’ had occurred. The joint decision of Gleeson CJ, Gummow J, Heydon J and Kiefel J (joint decision) held that waiver will occur where the conduct of the party claiming the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
This is the test outlined in Mann v Carnell (1999) 201 CLR 1, [28] (Carnell) where the High Court had earlier stated:
Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.
Further, the joint decision held that the judgment as to whether LPP has been waived will depend upon the circumstances of the case, the purpose of the limited disclosure and the consequences of a limited rather than complete disclosure.
This judgment is also to be made in the light of considerations of fairness arising from the context of those circumstances. The Court discussed unfairness arising from inconsistency in a case where a client wanted to give her version of her communications with her lawyer and at the same time prevent the lawyer from giving her own version. This showed an inconsistency between her conduct in making certain kinds of allegation against her lawyer and holding her lawyer to obligations of confidentiality.
Application of test for implied waiver of LPP in this case
The High Court held that, in this case, there was no inconsistency between the disclosure of the existence and conclusions of the joint advice and the non-disclosure of the reasoning of the joint advice. The purpose of the Attorney-General’s disclosure 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 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. The joint decision held that this did not involve inconsistency; and it involved no unfairness to the appellant. As a result, privilege had not been waived in respect of the joint advice.
Hayne J agreed with the joint decision on this point. Kirby J agreed there had been no waiver of LPP in this case, but for slightly different reasons to the joint decision.
Kirby J went on to make further comments quite supportive of the disclosure of information by the Attorney-General in this case stating:
Given the purpose of the FOI Act to encourage greater openness in public administration, it would be undesirable, in effect, to require the Attorney-General to reveal nothing at all about procedures that had been followed, lest a description of them might result in loss of privilege. In earlier times, no press release would have been issued in respect of a petition to the Governor, save perhaps one containing an announcement of its rejection. I would not want to say anything in this appeal that would discourage the public revelation of the general course followed in such matters.
Disclosure of substance of legal advice may not waive LPP
In his press release, the Attorney-General referred to the fact that he had obtained legal advice, who he had obtained the advice from, what it related to, what the conclusion of the advice was and that he had made a recommendation after considering that advice.
The appellant didn’t seek to argue that all of these disclosures constituted a waiver of LPP. The High Court only considered whether the disclosure of the conclusion of that advice operated to waive LPP. The joint decision states that there was probably no issue of waiver with respect to the other comments in the Attorney-General’s press release.
The joint decision confirmed the view that, depending on the circumstances, it is possible to refer to legal advice without waiving privilege. Questions of waiver are matters of fact and degree. It endorsed the view of Maxwell P in the Court of Appeal, who said that 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.
However, care is needed when public statements are being made concerning legal advice received – see our comments at the end of the newsletter.
Victoria’s new Evidence Bill
The High Court noted that application of the Commonwealth’s Evidence Act has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law. A new Evidence Bill has been introduced into State Parliament. Should the Parliament pass this bill in its current form, Victoria will adopt the rules of what is called ‘client legal privilege’ which currently apply in the Commonwealth and NSW. This will undoubtedly change the principles that apply to the waiver of LPP, however it is likely that the common law rules will still have some relevance.
Public interest override in s 50(4) of the FOI Act
The Joint Decision
The joint decision did not depart from the high threshold set for the override by the Court of Appeal. The joint decision provides guidance as to what might constitute a public interest consideration that could enliven the override.
The joint decision turned on the comments of Morrris J which ‘appeared to raise… the possibility that there was some “difference” between the joint advice and other advices’ [paragraph 54] received by the Attorney-General. The joint decision held that ‘some material difference in the advices, or the facts on which they were based, depending on the nature and extent of that difference’ [paragraph 57], and as an aspect of the public interest, might enliven s 50(4). The joint decision also suggests that a determination regarding the operation of the override cannot be made without examining the documents in question. This would have enabled the Court of Appeal to consider firstly whether there were in fact any significant differences between the various advices received by the Attorney-General, and secondly, how this might impact on the public interest.
Also, the joint decision comments that the exercise by the Attorney-General of putting out a press release was an assumption by him of political accountability. This assumption of political accountability may, in the circumstances, enliven the operation of the public interest override.
Kirby J
Kirby J produced a separate decision which also upheld the appeal, and in general agreed with the joint reasons. The decision of Kirby J provides further guidance as to factors to consider in relation to the public interest and the triggering of the override. These factors include: the important public interest in ‘manifestly just outcomes in the administration of criminal justice’ [paragraph 120]; broad questions of law reform and public policy rather than individual legal rights; and public debate concerning the ambit and operation of present law.
The decision of Kirby J also warned against the Court concluding that legal professional privilege involved such important public interests that it was effectively quarantined from the operation of s 50(4), a situation which would not be in accordance with what the FOI Act provides.
Hayne J
The decision of Hayne J dismissed the appeal. Hayne J was in agreement with Maxwell P of the Court of Appeal who concluded that in the circumstances of the case, no public interest consideration had been identified so as to satisfy the test in s 50(4) to require the release of the legal advices. According to Hayne J, the public interest in ‘clearing the air’ and ‘transparency’ were not sufficient to require disclosure. Further, Hayne J held that the Tribunal had made no finding that there was any contrariety between the advices, and even if there had been, that alone would not be sufficient to require disclosure because legal professional privilege was not based on whether an advice was legally or factually sound.
Making public statements about legal advice
Osland supports the ability of Government to make limited disclosures concerning legal advice without waiving privilege. In fact, as an exercise in openness and accountability, the High Court was quite encouraging of the sort of disclosures made by the Attorney-General in this particular case.
It is important to bear in mind however that, although it didn’t occur in this case, the manner in which legal advice is disclosed in public can lead to a waiver of LPP.
It is less likely that LPP will be waived where reference is made only to the fact that legal advice has been obtained. Revealing the substance of that advice should generally be avoided. This includes summarising or describing the conclusion of legal advice, or giving the ‘gist’ of what it says.
Further, it is important for those communicating with the public to keep in mind that the FOI Act can operate to require the release of legal advice, even though it is protected by LPP, where the public interest requires it.
The issuing, for example, of a press release by a Minister can in effect be an assumption of political responsibility which may enliven the public interest override and necessitate the release of documents which might otherwise be exempt from release under the FOI Act.
If maintenance of the confidentiality of a particular legal advice is important in the public interest, advice should be obtained prior to publicly commenting on that legal advice to ensure there is no inadvertent waiver of LPP or enlivening of the public interest override in s 50(4) of the FOI Act.
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For further information
For further information or legal advice on any issues raised in this Newsletter contact:
Jonathan Smithers on 8684 0411
Assistant Victorian Government Solicitor
Joanne Kummrow on 8684 0479
Managing Principal Solicitor
Michele Rowland on 8684 0463
Senior Solicitor
Emily Sanders on 8684 0215
Senior Solicitor
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.
