'a copy of all documents/letters sent by the Hon Rob Hulls, Attorney-General and/or the Department of Justice;

A copy of all documents/letters received by the Hon Rob Hulls, Attorney-General and/or the Department of Justice, in connection with [the applicant's] joint and several Petition and Application; and

A copy of documents/letters exchanged with other Government departments especially the Supreme Court of Victoria'.

On 15 October 2003, the Department notified the applicant of its decision in respect of the applicant's first request of August 2003. That decision was to release a number of documents in full or in part, with access denied in full to 46 pages. By a request dated 15 July 2010, the applicant sought access under the Act for those 46 pages (of which I am informed by Ms Stephanie Hamilton, FOI Officer within the Department and believe 13 pages were duplicates of other pages). The decision made on internal review in respect of that request has given rise to the present proceeding before the Tribunal.

I might say that in the Schedule of Documents, there are seven documents now in dispute and the grounds of exemption claimed pursuant to those documents are sections 30, 32 and 33.

1. The applicant concedes that the exemptions contained in those sections, which I have mentioned, exist and he did not argue otherwise. The sole matter before me today is whether the public interest override which is referred to in s 50(4) of the Freedom of Information Act 1982 (the Act) applies in this proceeding. Put a different way - whether I should set aside the Department's decision to not release these documents either in whole or in part depends solely on whether the public interest override can be established. That is, there are now 33 pages of these documents bearing in mind that there was duplication and there are seven documents in total which comprise those 33 pages.
2. There is no doubt that the applicant did in fact seek a petition of mercy and he also sought that his matter be referred to the Court of Appeal where he could argue that his appeal should succeed. The Governor as advised by the Premier, who was advised by the Attorney-General, decided that the petition should fail and there would be no referral to the Court of Appeal.
3. I understand from Ms Woodger's oral evidence that the Governor in Council could have referred the matter to the Court of Appeal as an appeal to consider setting aside the conviction or it could have referred it to the Court of Appeal for the Court of Appeal to give an opinion. However, neither of those things happened. It is clear at this particular time, the power of the royal prerogative in relation to this matter was clarified in s 584 of the Crimes Act which I understand has now been amended and a similar section in the Criminal Procedure Act 2009 applies. However, at the particular time of the application for a petition of mercy, it was the Crimes Act s 584 (the relevant section is now s 372 of the Criminal Procedure Act).
4. Ms Woodger then goes on to say :

When a petition is referred to the Attorney-General, it is in turn usually referred to Criminal Law Policy (formerly Legal Policy), to consider, evaluate and recommend how the issues raised should be dealt with. To the extent that any legal grounds are raised by a petition for mercy (for example a petition seeking a retrial or a pardon), it is generally forwarded to the Victorian Government Solicitor ('VGS') or barristers with relevant criminal law experience for assessment and advice. The advice was and is usually provided to the Attorney-General through Criminal Law Policy (or its predecessor).

And Ms Woodger then deposes to the fact that a decision is made, as it was in this case.

1. Ms Woodger then correctly describes the documents which are claimed to be the exempt documents in this proceeding. In her witness statement she states -

Document 1 is a letter dated 2 August 2001 from the Legal Policy and Court Services Branch of the Department to the VGS, enclosing copies of the applicant's petition of mercy, correspondence between the applicant and the Department and other documents. The letter sought legal advice on the applicant's petition of mercy.

Document 2 is a letter dated 17 August 2001 from the Legal Policy and Court Services Branch of the Department to the VGS, providing further instructions by way of enclosing additional correspondence received from the applicant in relation to his petition of mercy. The letter seeks legal advice in relation to the applicant's petition for mercy.

Document 3 is a further letter dated 24 October 2001 from the Legal Policy and Court Services Branch of the Department to the VGS (similar to Document 2), providing further instructions by way of enclosing additional correspondence in relation to the applicant's petition of mercy and seeking legal advice in relation to the petition.

Document 4 is a memorandum of legal advice dated 2 January 2002 from the VGS to the then Director of Legal Policy and Court Services Branch of the Department. It provides the legal advice sought in relation to the applicant's petition for mercy.

Document 5 is a memorandum of advice and recommendations from the Legal Policy Branch of the Department to the then Attorney-General dated 25 March 2003. In addition to providing advice and recommendations, the memorandum also summarises the legal advice obtained from the VGS in relation to the applicant's petition for mercy.

Document 6 is a letter from the then Attorney-General to the Premier dated 25 March 2003, providing legal advice and recommendations on the applicant's petition of mercy. It encloses draft letters prepared by the Legal Policy Branch of the Department.

Document 7 is an unsigned and undated earlier draft of Document 5, stamped 'Copy' and includes the draft letters enclosed in Document 6.

1. Ms Woodger then goes on to say that if there was disclosure, it would compromise full and frank advice in relation to the processing of a petition for mercy. She makes the point -

However, the content of the decision making processes involved in making recommendations as to the exercise of the discretion relating to petitions for mercy are always confidential and involve communications of the most sensitive kind at the highest levels of government.

Decisions on petitions often involve difficult, sensitive and controversial issues of a legal and policy nature. It would assist the decision-making process if advice to the Attorney-General, Premier and Governor on such matters remain confidential.

In assessing and providing recommendations about a petition for mercy, it is often necessary for candid legal or policy advice to be provided on important issues such as the veracity of a claim made in a petition, or the credibility of a person where that is relevant to the assessment of the petition.

1. She then states that there needs to be confidentiality and finality before a petition of mercy can be dealt with ie where all legal remedies of appeal need to be exhausted. She states that if documents, such as these, were to be released, there would be a difficulty in having people advise with candour on the prerogative of mercy. Disclosure may also compromise the decision-making process in that evidence which had not been able to be properly tested or considered as some people may or may not cooperate. Where confidentiality cannot be guaranteed, advice may not be given frankly out of concern arising from disclosure to a petitioner.
2. In this particular instance, the applicant refers to three matters as to why it is in the public interest for these documents to be released. Those matters are summarised by Mr Batskos, solicitor for the respondent, at paragraph 2.14 of his submissions, as follows -

The applicant has asserted the following matters as public interest matters which can be summarised as follows :

(a) The removal of immunity for barristers and solicitors.

(c) The administration of justice or miscarriage of justice and, more specifically, that the administration of the criminal justice system under Labor 'has been perverted'.

They are what the applicant says are the grounds that the public interest override should apply.

1. It is noteworthy that the applicant has brought this proceeding which goes over, to some extent, the same ground as was in his 2003 FOI proceeding. However, because of the decision of the High Court in Osland v Secretary, Department of Justice (No 2) [2010] HCA 24 23 June 2010, the applicant says that that decision enables him to argue new grounds. Mr Batskos did not suggest at any time, as far as I am aware, that this proceeding should be struck out as an abuse of process as the matter had already been dealt with. In Osland at paragraph 12, their Honours mentioned what is necessary in order for exercise of discretion in relation to documents being released under the Act where there was a petition of mercy involved as in the Osland case. At paragraph 12 it is stated -

Relevantly to this appeal, the exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decision-maker who correctly understands the meaning of the law under which that decision-maker acts. The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. If the Tribunal forms the requisite opinion, its power to grant access is enlivened. In the ordinary case, the exercise of the power will be subsumed in the formation of the necessary opinion.

1. I of course will follow what their Honours in the High Court said in deciding this case.
2. The first matter that I must consider is whether there is any public interest in the documents being released in this particular matter. Mr Arundell has argued that there is a public interest in this matter because the public have an interest in having justice done and in particular an interest in knowing that parties cannot have an action against their lawyers. Put a different way, he said that the question of whether there is immunity from suit by lawyers in court proceedings is a matter of public interest. He also referred to the decision of D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 (the decision was not produced). He said that decision makes it clear that the lawyers have immunity from suit in proceedings where allegations of negligence is made against them if the allegation relates to their conduct in the court hearings.
3. In this particular instance, I have looked at the documents and I am unable to find anything in the documents which would suggest that the public interest would be served by their release. Further, I agree with Mr Batskos' submission that while the matters that Mr Arundell brought forward, which I have referred to, may be something the public interest could debate - in fact nothing in these documents would enhance that debate in any way whatsoever. That is, the documents would not serve the purpose for which Mr Arundell is seeking them.
4. Further, I note that the documents would not benefit the community because if one examines the matters that I have referred to, that Ms Woodger mentioned in her witness statement, and matters which Mr Arundell referred to as public interest, it is clear, in doing the balancing process that I am required to do, that the matters of candour and frankness would be very much affected if documents such as these were released. That is, keeping the documents confidential in this instance is far more important to the public interest than matters referred to by the applicant.
5. Further, I accept Mr Batskos' submission that by and large these documents do refer to personal matters rather than public matters.
6. Also I refer to the first Osland case [2007] where his Honour Justice Hayne stated as follows [paras 94-95]:

References to clearing the air, or more general references of the kind made in oral argument in this Court to a need for 'transparency' in government are, at best, statements of the values that are to be understood as informing the structure and operation of the FOI Act. Neither reference to clearing the air, nor reference to a need for transparency in government, reveals the reasoning that supports the conclusion that the public interest requires disclosure of what otherwise is otherwise privileged communication.

His Honour's statement is equally appropriate in this proceeding.

1. The other matter that I must consider is that it has been found by courts for some very considerable time that the test here, ie pursuant to s 50(4), is of a very high threshold. Put a different way, the Act states that in order for the public interest to override the exemption, it requires that the public interest be invoked.
2. Mr Batskos stated in his submissions -

The Tribunal has held that : '[l]egal professional privilege is a common law right, and a fundamental human or civil right, and therefore may be displaced only by other public interest factors of the highest order'; it is 'clear law that there is a very strong public interest in the maintenance of legal professional privilege as it is fundamental to the operation of our legal system.

1. In this particular case, balancing the interest of the legal professional privilege, which is something that has been going on for many many years, if not centuries, is a very strong reason for it not to be overridden. However, I note in the Osland case, the Court did override the exemption pursuant to s 50(4) of the Act. But, in my view, the matters considered by the Court in that case are different to what I am considering here. There in the first instance Morris J sitting as President of this Tribunal made it clear that the documents would or would not be released on a case by case basis depending on what factors were involved. At paragraph 47 he said :

... I am persuaded that it would be undesirable if the effect of providing access to the documents in this case would be to create a precedent whereby legal advice in relation to future petitions of mercy would be, or would be expected to be, available under freedom of legislation laws.

1. Put differently, it does not follow that because the applicants in Osland were ultimately successful in the High Court and successful before Morris J that all applicants in petitions of mercy matters are going to be successful. His Honour at para 50 stated that -

.... case is clearly a unique case: not in the sense that it is on its own in a factual sense, but because of the publicity and concern it generated.

There was a high amount of publicity in the Osland case which to no small extent was fuelled by the Attorney-General making a statement. Here, there has been no statement by the Attorney-General and there has been no or no sufficient evidence of general public interest.

1. Morris J further at paragraph 52 makes the point that there was a strong public interest in making the documents available. In this case, in my view, that strong public interest does not exist. His Honour found that there were powerful reasons to make those documents available in Osland's case. Thus, I think this matter can be distinguished from that case as there is no such powerful reason.
2. In Tanner v Victoria Police [2005] VCAT 1757 at paragraphs 65 ff, it was stated by Megay SM -

... the question is whether there has been some sufficient injustice to the applicant so as to elevate his position to one where the public interest demands that injustice done to him (presumably the injustice arising by reason of his inability to clear his name) should be rectified by release of the document as opposed to his grievances as an individual.

... there was no evidence before the Tribunal to show that the applicant's concerns were part of a larger community controversy and frankly there was no evidence before me to convince me that any injustice had in fact occurred.

1. I make no finding as to whether injustice has occurred to the applicant except to say that he clearly believes it has. However, what I do find is that there is nothing in these documents which would, in any way, assist the applicant in proving that there was injustice to him. They do not go that far.
2. Mr Batskos in reply made a point when he said that the documents do give some consideration to the application which Mr Arundell was to bring to the Court of Appeal. However, it denied that ability for him to do that. What happened was that the Attorney-General upon receiving advice obviously decided not to grant Mr Arundell's wish.
3. At paragraph 2.29 of his submissions, Mr Batskos has further summarised what the High Court had to say in the Osland case -

From the following observations by the Court of Appeal in the Osland case (which were not disapproved by the High Court), it is clear that this aspect of the public interest override - namely that the public interest 'requires' disclosure - will only be satisfied in exceptional cases.

(He there referred to Currie v Building Commission [2008] VCAT 979 at [32].)

Mr Batskos correctly summarised relevant considerations in relation to invoking the public interest override.

(a) it is a 'stringent test' and the case for release 'must, in effect, be irresistible'.

(b) The word 'required' in the context of s 50(4) of the FOI Act connotes 'obligation', 'necessity' or 'compulsion'.

(c) There is a notion of the imperative involved. Having regard to the fact that consideration of s 50(4) only arises after a determination has been made that a document is exempt, it is not surprising that the legislature should set the criterion for the operation of the section by reference to concept of necessity.

(d) To apply s 50(4) properly the Tribunal has to be able to express itself in terms which conveyed that 'it had no practical alternative but to allow access' and that 'result has to be emphatic'.

(e) The Tribunal must be 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.

1. In this particular instance, I hold the view that none of those matters summarised by Mr Batskos in the decided cases have been satisfied. That is, the high threshold necessary to establish the public interest override does not exist in this matter.
2. Bearing in mind all these matters, I have come to the view that release of these documents is not required by s 50(4) and it would not be in the public interest for them to be released. In fact I come to the decision that it would be against the public interest for them to be released, not the least for the reasons that Ms Woodger mentioned in her witness statement and to which I have referred. On that basis the decision of the respondent will be affirmed.