The long-running case of domestic violence victim Heather Osland continues to raise legal questions 11 years after she was convicted of murdering her abusive husband.

The first set of legal challenges came with a series of appeals made by Ms Osland against her sentence, which led all the way to the High Court. Her defence of “battered woman’s syndrome” attracted huge public interest and, although unsuccessful in her case, subsequently became a vehicle for law reform in the crime of homicide. Heather Osland served 9½ years of a 14½ year prison sentence before she was released on parole in 2005.

During her imprisonment Ms Osland lodged a petition for mercy with the then Governor of Victoria, seeking a pardon and release from jail. More than a year later, in September 2001, a refusal of the petition was announced by Attorney-General Rob Hulls, who released a media statement that included the following:

“This week I received a memorandum of joint advice from the panel [three Queen’s Counsel] in relation to the petition. The joint advice recommended on every ground that the petition should be denied.

“After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.”

Keen to know exactly what advice the government had relied on to refuse her petition, Ms Osland applied for access to the relevant documents under the Freedom Of Information Act 1982 (Vic) (FOI Act). When the Department of Justice denied the application for access on the basis of the exemptions available under s32 (legal professional privilege) and s30 (1) (internal working documents) of the FOI Act, the matter was referred to the Victorian Civil and Administrative Tribunal (VCAT) for review. Ms Osland was not challenging the conclusion that the documents were exempt on the basis of legal professional privilege. Rather, she was alleging that privilege in relation to the joint advice had been waived by the press release published by the Attorney-General.

Then VCAT President, Justice Morris, acknowledged the s32 exemption but concluded that access should be granted because the public interest requirement outlined in s50 (4) of the FOI Act overrode the legal professional privilege in this instance.

The Secretary to the Justice Department promptly obtained leave to appeal the VCAT decision and the Court of Appeal recently heard the matter in Secretary, Department of Justice v Osland [2007] VSCA 96.

In the leading judgement of the Court of Appeal, President Maxwell examined the authorities in relation to the waiver of legal professional privilege and disagreed that any waiver had occurred. He concluded that there was no inconsistency or waiver by the Attorney-General in disclosing the presence of the legal advice in the press release as a means of explaining his decision while, at the same time, seeking to preserve the confidentiality of the contents of that advice. As a result, legal professional privilege still applied to the advice documents and they were subject to the exemption from release under the FOI Act.

Having determined that the exemption under s32 applied to the documents, the Court of Appeal then had to consider whether the ‘public interest override’ as provided in s50 (4) of the FOI Act applied. This section provides that exempt documents can still be the subject of an order for release if strong public interest requires disclosure.

After careful examination, the Court of Appeal concluded that, in this case, VCAT had erred in finding that the public interest override provided in s50(4) should apply in this case. The Court of Appeal agreed with the argument of the Solicitor-General that there is a difference between what the public is ‘interested in’ and what is ‘in the public interest’. The fact that Ms Osland’s case received media coverage and was ‘of interest’ to the public did not give rise to a requirement to release the documents ‘in the public interest’ under s50 (4).

Ms Osland’s case is not yet closed. At the time of writing, she is seeking a waiver of her parole along with leave to appeal the FOI decision to the High Court of Australia. Developments in the Osland case will be watched with great interest as the freedom of information provisions continue to be tested in the courts. n

More information

From the LIV Bookshop Freedom of Information and Privacy in Australia by M Paterson, $196
Useful web links To learn more about freedom of information, visit www.foi.vic.gov.au