Osland v Secretary to the Department of Justice [2010] HCA 24

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, KIEFEL AND BELL JJ

HEATHER MARJORIE OSLAND APPELLANT

AND

SECRETARY TO THE DEPARTMENT OF JUSTICE RESPONDENT

Osland v Secretary to the Department of Justice [2010] HCA 24

23 June 2010

M11/2010

ORDER

1. The appeal be allowed with costs.

2. The order of the Court of Appeal of the Supreme Court of Victoria made on 7 April 2009 be set aside and, in lieu thereof, it be ordered that the appeal from the order of the Victorian Civil and Administrative Tribunal made on 16 August 2005 be dismissed.

3. The following orders of this Court be vacated:

(a) par 6 of the orders made by Hayne J on 27 October 2009;

(b) par 2 of the orders made by Kiefel J on 4 February 2010; and

(c) par 6 of the orders made by Hayne J on 18 March 2010.

4. The appellant's counsel and solicitor and senior counsel's secretaries be released from the written undertakings they provided to the respondent in relation to this appeal.

On appeal from the Supreme Court of Victoria

Representation

R Merkel QC with J B R Beach QC and R H M Attiwill for the appellant (instructed by Hunt & Hunt)

P M Tate SC, Solicitor-General for the State of Victoria with S B McNicol and C P Young for the respondent (instructed by FOI Solutions)

Intervener

S J Gageler SC, Solicitor-General of the Commonwealth with D F O'Leary intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Osland v Secretary to the Department of Justice

Administrative law – Freedom of information – Exempt documents – Petition for mercy denied by Governor acting on advice of Attorney-General – Attorney-General had received legal advice from various sources – Attorney-General issued press release mentioning advice from one source that petition should be denied but did not mention advice from other sources – Freedom of information request by petitioner for all advices granted upon review by Victorian Civil and Administrative Tribunal ("VCAT") – VCAT of opinion that public interest required access to all advices to be granted – Whether open to VCAT to form opinion that public interest required access to be granted – Relevance of differences between advices.