Trotter v DOJ [2003] VCAT 394

4. I have read the documents and, in my view, the documents are accurately described by Mr Batskos in his submissions :

"(a) Document 1 is a copy of a memorandum dated 10 August 1998 from the Director of the Attorney-General's Policy Division of the Department to the Victorian Government Solicitor seeking on behalf of the Attorney-General legal advice in relation to the three petitions. It concludes with the words, "I would be pleased to receive your advice as to the merits of the three petitions".

(b) Document 2 is a letter dated 5 October 1998 from the Victorian Government Solicitor to the Director of the Attorney-General's Policy Division of the Department attaching a memorandum of legal advice and expressing a view (again itself legal advice) about the memorandum of legal advice. Document 3 is a copy of Document 2. Document 4 is a copy of the advice attached to documents 2 and 3. It comprises a memorandum of advice from a QC within the Office of the Victorian Government Solicitor which was sent to the Attorney-General's Policy Division.

(c) Document 5 is a memorandum of advice dated 28 October 1998 from the Director of the Attorney-General's Policy Division of the Department to the Attorney-General and the Deputy Secretary, Legal & Policy of the Department. The memorandum includes a summary, and in some places direct quotations of the legal advice obtained from the Victorian Government Solicitor. A summary of legal advice provided has been held to be exempt as privileged.

(d) Document 6 is a copy of a letter of advice dated 11 November 1998 from the Attorney-General to the Premier in relation to the applicant's petition for mercy. It enclosed two draft letters :

5. Mr Fletcher represented the applicant Mr Trotter at this hearing and he made it clear that what he is really seeking is the reasons for the refusal of the Petitions of Mercy.

6. The respondent relies on two sections of the Freedom of Information Act 1982 (the Act) to claim exemption in relation to these documents. The first section it relies on is s.30, ie the internal working documents exemption. That section reads as follows :

"Subject to this section a document is an exempt document if it is a document that the disclosure of which under this Act

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

7. I have seen the documents and I am convinced that they are in the nature of opinion, recommendation or advice and they are clearly prepared by an officer or the Minister. In my view, they disclose the nature of consultation or deliberative process that has taken place which occurred in the course of or for the purposes of the deliberative process involved in the function of the agency or Minister. Having made those findings, I am thus of the view that certainly paragraph (a) has been made out.

8. I then come to consider whether it would be contrary to the public interest to release these documents. Senior Member Preuss had to consider documents relating to a Petition of Mercy in Tilley v Victoria Police. It is an unreported decision of the Administrative Appeals Tribunal given on 31 January 1995. Ms Preuss described the process relating to a petition of mercy and stated :

"Mr Wortley's evidence in relation to Petitions of Mercy was that the Governor exercises his prerogative of mercy on the advice of the Premier and that the Premier in turn has established a protocol which requires the Attorney-General to examine a petition at first instance. The practice of the Attorney-General is to seek advice from the Victorian Government Solicitor and where legal grounds exit in the petition, the Attorney obtains advice on whether she should exercise her powers under s.584 of the Crimes Act 1958. That section enables the Attorney in considering any petition, having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted, to refer the case to the Full Court or to refer to judges of the Supreme Court a point arising in the case with a view to determination of the petition. The Attorney, after considering advice from the Victorian Government Solicitor, makes a recommendation to the Premier as to whether the petition warrants the exercise of the prerogative of Mercy. The Governor informs the petitioner as to the outcome of the Petition of Mercy but does not give reasons".

I pause here to state it has long been the practice both in this country and in the United Kingdom that when the Government is exercising the royal prerogative that no reasons be given.

9. Mr Fletcher, who appeared for Mr Trotter, suggested, in light of the decision of the High Court in the case of Kable v DPP (NSW) [1996] HCA 24; (1995) 189 CLR 51, the rules of natural justice should apply in relation to a petition of mercy. In particular, he relied upon the decision of Justice McHewitt p.115 where his Honour made it clear that when State courts that exercise Commonwealth jurisdiction are obliged to abide by s.35 of the constitution and thus afford natural justice in accordance with the constitution. He stated that failure to give reasons in matters like this (ie rejection of the petitions of mercy) is contrary to the constitution. However, in my view, the case of Kable does not have relevance here. The Government when it is exercising the prerogatives of the Crown is not acting judicially and, as a consequence, the principles of natural justice do not apply. It follows from that, that it is not bound to give reasons.

10. It is very important that Cabinet deliberations and deliberations of inter-Government communications between officers of Department and the Ministers remain confidential. If they were not confidential, then the decision-making process would almost grind to a halt. In this particular instance, as there is no obligation to give reasons and as the petition is for a private nature rather than a public nature, in my view, within the meaning of s.30(1)(b), it would be contrary to the public interest to release these documents.

11. Mr Trotter has stated, through Mr Fletcher, that the liberty of the subject is very important and save and except for matters of national security is one of the most important matters. I agree that liberty of the subject is a very important matter but nonetheless to override the prerogative of the Crown, it is, in my view, not sufficiently important. Also it must be remembered that, in this particular instance, the applicant has exhausted his remedies in trials through the Courts.

12. The other ground of exemption relied upon by the respondent is s.32 of the Act which reads as follows :

"A document is an exempt document if it is of such a nature that it would be privileged from the production of legal proceedings on the ground of legal professional privilege".

13. In this particular instance, in my view, these documents were clearly made as between lawyer and client. It was made clear by the High Court in Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 that the test is the dominant purpose test, that is, as to whether legal professional privilege attaches to that document. At p.67, it was stated that:

"A document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general it was produced or brought into existence of using it or its contents in order to obtain legal advice, or to conduct or aid in the conduct of litigation at the time of the production in reasonable prospect should be privileged and excluded from inspection".

Here, on looking at the documents and on reading the evidence of the background as supplied to me, it is quite clear that the dominant purpose for which these documents were brought into existence were to obtain legal advice. Thus, I am convinced that legal professional privilege attaches to them. I also note that legal professional privilege attaches to communication between professional communications between the Government agency and their salary legal officer and I refer there to the Attorney-General for the Northern Territory v Kearney (1985) 185 CLR 599. This is such a case. Thus I find, in this particular instance, these documents have legal professional privilege within the meaning of s.32 of the Act.

14. I am now required to look at s.50(4) of the Act to see whether the public interest requires that these documents be released. Sub-section (4) reads as follows :

"On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 31(3), or in section 33) where the Tribunal is of the opinion that the public interest requires that access to the document should be granted under this Act".

15. The word "requires" means that the applicant should show that the public interest requires that it should be granted. I refer to the Court of Appeal case of Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 15 VAR 360. Mr Batskos in his submissions summarized what the Court had to say there, and he correctly makes the following points :

"* 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.

* This is a question of fact for the Tribunal to determine and may only be determined in the affirmative if the considerations of the public interest are so strong as to override those factors that confer exempt status on the document in the first place.

* How strong the public interest considerations must be to prevail in a particular case depends upon the nature and strength of the facts that confer exempt status on the document in question".

16. Mr Fletcher, on behalf of Mr Trotter, said that in this particular case justice needs to be seen to be done. He said it is in the interests of justice that a Petition of Mercy which has the power to relieve someone of a custodial sentence should be brought to public view. The public should know what is going on. He further stated that his client is appealing the Petition of Mercy to the High Court and the High Court will want to know precisely the reason why the petition was refused. He said those documents may be put before the High Court and then his client would not know the reasons for the refusal of the Petitions of Mercy. Thus, natural justice would not be done. The position is that if the matter does go to the High Court, the High Court can then rule whether these documents should be produced not pursuant to the Act but pursuant to its own power to order production. In my view, the public interest does not in this instance require the documents to be released.

17. If documents of this nature were made public, it would make it difficult for governments to obtain legal advice, it would make difficult for candour for interdepartmental matters.

18. Mr Fletcher also said that if the advice is wrong, then his client has no chance to contradict it. That may be true but, on the other hand, one must remember that the Petition of Mercy is something that arises after all avenues of appeal to the judicial system have been exhausted and, in this particular instance, they are exhausted. To override the confidentiality of the exercise of the prerogative in the sense that, to require these documents to be released, in my view, would be a very large step for a Tribunal such as this to take - a step which would not be warranted on the law as it stands. Further, I note that the release of these documents would be at most private interest, not public interest.

19. Mr Fletcher, on behalf of Mr Trotter, referred to two academic articles, one called "Judicial Review of the Prerogative of Mercy" by B V Harris and the other entitled "Judicial Review of Prerogative Power in Australia : Issue and Prospects" by Fiona Wheeler. Both the learned authors in these articles argued that the reasons given for exercising prerogative power should be made public. Academically it may be very interesting to have reasons for the exercise of the prerogative made public and it may well be a good thing. I do not have to decide that. That is a matter for Parliament to decide but both authors do concede that the state of the law at the moment does not require the reasons to be made public. In the article "Judicial Review Of The Prerogative Of Mercy" the author stated in the second sentence of the article : "However, the courts continue to state clearly that they will not review the decision to exercise, or not to exercise, the prerogative of mercy" Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Likewise, in the article "Judicial Review of Prerogative Power in Australia : Issues and Prospects" the author Fiona Wheeler states : "To date, the courts have said that they will not review the manner of exercise of the prerogative of mercy" The Queen v Toohey Ex parte Northern Land Council (1981) 51 CLR 170 and at p.261 of that report, His Honour Aickin J countenanced the review of some (unspecified) prerogative powers, but expressly excluded the prerogative of mercy from this category. In my view, the decision in Kable does not override the decision that was given by the High Court in Toohey's case and I am bound by that decision being a superior place to this Tribunal. In considering the public interest override in s.50(4) I also have regard to matters which I have referred in relation to s.30(1)(b).

20. Release of the documents sought would not necessarily expose the reasons which moved the Attorney-General in tendering advice. Acceptance or refusal of the petitions of mercy was the Attorney's decision to make. He may have been led to that decision by wholly different considerations that those which appeared in the advice he received.

21. Thus, I find that public interest does not require that these documents be released pursuant to s.50(4). I will thus affirm the decision.