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Just v Department of Justice (1995/27499) [ 1995] VICCAT 3  (12 April 1995)

• THE DOCUMENTS
• THE PUBLIC INTEREST
• MR JUST'S CONTENTIONS
• CONCLUSION

IN THE ADMINISTRATIVE APPEALS NO. 1995/27499
TRIBUNAL OF VICTORIA
GENERAL DIVISION
AT MELBOURNE
APPLICANT : Alan Just
RESPONDENT : Department of Justice
BEFORE : M.F. Macnamara
Deputy President
DATE OF DECISION : The day of July 1996
THE DECISION OF THE TRIBUNAL IS THAT:
The respondent's decision is affirmed.
M.F. MACNAMARA
DEPUTY PRESIDENT
IN THE ADMINISTRATIVE APPEALS NO. 1995/27499
TRIBUNAL OF VICTORIA
GENERAL DIVISION
AT MELBOURNE
APPLICANT : Alan Just
RESPONDENT : Department of Justice
BEFORE : M.F. Macnamara
Deputy President
DECISION : The day of July 1996

THE DOCUMENTS

The first document is described as a fax sheet to R. Finkelstein QC, Acting Solicitor General. The document is a handwritten facsimile transmission from Ms Melanie Sloss, Barrister to Mr Finkelstein QC and dated the 14th of July 1992. Presumably it relates to the proceeding determined by Harper J. It includes an annotated draft and copy extracts from certain legal texts.
The second document is described as a memorandum to the Victorian Government Solicitor from Mr Finkelstein QC, Solicitor General. The memorandum deals with issues arising from the decision of Harper J. which was handed down on the 27th of October 1992.
The third document is described as a memorandum to the Attorney-General from the Victorian Government Solicitor. The memorandum appears to be addressed also to the Secretary of the Department of Justice, is dated the 17th of December 1992, and is a memorandum of advice relating to the proceeding commenced by the City of Collingwood with respect to the second statute, the Victoria Park Land Act 1992.
The fourth document is an outline of argument on behalf of the State of Victoria which appears to relate to arguments to be addressed to the Full Supreme Court in the proceeding seeking a declaration that the second statute was unconstitutional.
The last document is a draft by Ms Melanie Sloss, who it seems was the junior counsel to the Solicitor General, by then Mr Douglas Graham QC, in relation to the application for special leave to appeal to the High Court of Australia.

THE PUBLIC INTEREST

When Section 50(4) speaks of "the public interest" it refers to the benefit of the community in general, not the benefit of any individual, much less the curiosity of any individual; nevertheless where there has been widespread debate and disquiet as to a particular matter, the public interest may require release of documents which either confirm the grounds for public disquiet or dispel them. See Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63, 73-5; O'Sullivan v Health and Community Services (1995) 8 VAR 449, 457-8; Easdown v Director of Public Prosecutions (No. 1) (1987) 2 VAR 102.
In addition the imperative force of the word "requires" in the sub-section should not be ignored. The public interest will not require the release of otherwise exempt documents if the public benefit in view can be achieved by other means than by overriding exemptions otherwise available under the Freedom of Information Act. Likewise, the public interest will not require release, unless the release is clearly adapted to achieve the relevant public benefit. As Mr Galvin, Deputy President remarked
"In my opinion it is not sufficient for the Tribunal merely to be satisfied that some outweighing public interest suggests that access would be desirable or militates in favour of it. It must require it - that is, demand it."
Thomas v Royal Women's Hospital (1988) 2 VAR 618, 641

MR JUST'S CONTENTIONS

Mr Just filed ten grounds of public interest which he said required disclosure of the documents under Section 50(4) of the Freedom of Information Act. Those grounds are as follows
"1. It is an invalid argument for the Department of Justice to claim a total exemption of all legal documents under Section 32 of the Freedom of Information Act when the Department of Justice has already publicly released documents containing legal advice relevant to the case.
2. The "Smith" precedent, presented by the Department of Justice is irrelevant due to the altered circumstances of the case, which relates to the Independence of the Judiciary and the Separation of Powers.
3. The judgement by Justice Mason regarding the right for the public to have access to information sets a more appropriate precedent.
4. The use of Section 85 of the Victorian Constitution obliged the Attorney General to present reasons explaining why such legislation was in the public interest.
5. The status of a "Private Bill" and the allocation of costs creates further rights for the public to know the truth.
6. The Collingwood Councillors had a duty under Section 63 of the Local Government Act to have the matter resolved before the courts. The public have a right to know why their duty of care was restricted by legislation.
7. The Department of Justice had a responsibility to advise the Parliament via the Attorney General, of the intent of the entrenchment amendments to the Victorian Constitution, as it related to the independence of the Supreme Court.
8. The citizens of Collingwood have the right to know why, after their property rights had been eroded by the legislation lifting the covenant on the Victoria Park Land title, they then had legislation enacted which empowered an agent to enter into property contracts, which denied access to the Supreme Court.
9. The public documents record a flawed history of the Victorian Constitution and the development of the Victorian Supreme Court.
10. The processes have produced an outcome that are not consistent with the General Principles of International Law."
More generally he said that the Victoria Park saga showed Parliament usurping the role of the judiciary. When the Council issued proceedings in the Supreme Court it was submitting a private legal dispute for resolution to the proper authority, namely the Court system. Parliament, by passing the two challenged statutes sought to take that private dispute out of the hands of the Court and thereby exercise judicial power without complying with the rules of natural justice. This was in violation of the principle of the separation of powers which he said was enshrined in Victoria's constitutional and legal framework. He referred to a pamphlet handed to tourists at Parliament House in relation to "Victoria's constitution". The pamphlet states inter alia that the doctrine of separation of powers
"refers to the constitutional separation of the powers and responsibilities of the: legislature - the Parliament
judiciary - judges and the courts
executive - the Ministry or Government."
Mr Just said that the two proceedings in the Supreme Court had to some degree missed the major point. They concentrated upon the particular formalities laid down by Section 85 of the Constitution Act 1975. According to Mr Just, this provision was adopted not with the separation of powers in mind but rather as an attempt to block the Whitlam Commonwealth Government's attempts to abolish appeals from Victorian Courts to the Judicial Committee of the Privy Council. Mr Just said the doctrine of separation of powers became part of Victoria's law because it was "central to the framework of the English empire".
Mr Just observed that whilst the two statutes might perhaps have been treated as private bills, the Parliament elected to deal with them as public bills. Had they been dealt with as private bills, some measure of natural justice would have been accorded to opponents of the statutes. He drew attention to the standing orders relating to private bills adopted by the Legislative Council as at the 3rd of December 1981. Order 312 provides for the objects of private bills to be advertised. Order 313 permits objectors to lodge objections within 21 days and Order 314 provides for a panel appointed by the President of the Council "of not less than three temporary chairmen of committees" to consider the objections so lodged. These measures were adopted, he said, because in enacting a private statute, the Parliament was to some degree, exercising judicial power.
Mr Just further submitted that "this office" (I was not sure whether he was referring to the Victorian Government Solicitor's Office, the Solicitor General, or both) had a duty to advise Parliament when its actions entailed an infringement of the separation of powers doctrine.

CONCLUSION

As an administrative Tribunal sitting in Victoria, I am of course bound by the decision of the Full Supreme Court in the City of Collingwood litigation to the effect that a strict separation of powers forms no part of Victoria's constitution. In any event, I respectfully agree with what their Honours said. A strict separation of powers has never been observed in the English constitution. For instance, the Lord Chancellor is the presiding officer and (if a Peer) a member of the Upper House of the Legislature, the House of Lords. He is also one of the most senior Cabinet Ministers and therefore a member of the Executive and finally, he is the head of the Judiciary. It has never been doubted that the British Parliament and other legislatures deriving their authority from it, such as the Parliament of the Commonwealth of Australia and the Victorian Parliament have power to make retrospective laws. Clearly the making of a retrospective law has the same vices which Mr Just found in the actions of the Victorian Parliament in the Victoria Park dispute. Retrospective legislation (to use a football analogy which in the circumstances seems appropriate) entailed moving the goal posts after the game has begun.
There is nothing in the British tradition which would support Mr Just's contention that private disputes may not be taken out of the hands of the courts by statute. In 1942 the British Military authorities destroyed installations belonging to Burmah Oil Co Ltd at Rangoon ahead of the fall of the City to the invading Japanese. The House of Lords as the court of final appeal held the Crown liable to compensate the company. Burmah Oil Co Ltd v The Lord Advocate [1964] UKHL 6; [1965] AC 75. The British Parliament reversed this result by retrospective legislation - the War Damage Act 1965. The then Lord Chief Justice of England speaking in the Parliamentary debate deplored the destruction by statute "of not merely an accrued, but a confirmed, right to such damages as [a citizen] could prove ... without compensation". See the article by Professor Goodhart "The Burmah Oil Case and the War Damage Act 1965" (1966) 822 QR 97, 111.
Even accepting Mr Just's contentions, I do not believe that release of these documents would assist him in achieving his objectives. He says that the infringement of the Supreme Court's jurisdiction has become an even greater issue today than it was at the time of the Victoria Park dispute. He refers to recent statutes such as the Grand Prix legislation which have deprived citizens of a right to resort to the Courts. The merits of the doctrine of separation of powers and the constitutional propriety of what was done in the Victoria Park dispute is capable of complete debate by reference to what is already upon the public record. To the extent that any unfortunate precedent has been set (and Mr Just contends that one has been), that precedent is exhaustively constituted by the decisions of the Supreme Court and by the decision of the High Court of Australia to reject special leave. Those reasons are matter of public record. The documents in dispute here are arguments which either were addressed in that litigation on behalf of the State of Victoria or which the State considered addressing to the Courts. Anyone interested in what was actually said could have access to the transcript. What the State thought of submitting but did not submit, seems now to be of no significance whatsoever. Moreover, submissions which were made and not accepted by the Court are likewise of no significance to the extent that Mr Just's concern is that a precedent has been set. The documents in dispute here do not give an insight into the motivations of the Labor Government and then the Coalition Government which succeeded it in promoting these two statutes (assuming that such an insight is relevant to a debate of principle on the separation of powers anyway). What these documents do give is an insight into the preparation of arguments by the Government's professional legal adviser to defend what the Governments and Parliament had done. Release of these documents therefore, would not achieve the public benefits which Mr Just is seeking.
There are, moreover, strong countervailing public interests. In Chadwick v Department of Property and Services (1987) 1 VAR 444, 454, Judge Rowlands, then President of this Tribunal said that, it required public interest considerations of a high order to justify overriding legal professional privilege and the exemption created by Section 32 of the Freedom of Information Act. In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63, the Full Supreme Court accepted that His Honour Judge Higgins in this Tribunal had identified public interest considerations of that high order. In Smith's case it was alleged that a hotelier had been defrauded by his solicitor. Many years later, a police officer sought to charge another solicitor who had assisted the original solicitor as an articled clerk in the impugned transaction. The prosecuting authorities declined to lay charges and the officer secured the summoning of a grand jury for the first time in Victoria since 1940. The grand jury sent the solicitor for trial. The prosecuting authorities terminated the prosecution by nolle prosequi. In those exceptional circumstances Judge Higgins found that the public interest required disclosure of the legal advice which led the prosecuting authorities to act as they did. The Full Court upheld His Honour's decision. Clearly there was public disquiet as to the motivation of the Director of Public Prosecutions. Some citizens suspected that the legal profession was simply looking after itself. There was clearly a public interest in permitting anyone who wished to, to ascertain the advice which led to the discontinuation of the prosecution. The release of the documents therefore, was calculated to "clear the air".
Smith's case is significant, not only as throwing into relief the sort of public interest considerations that will lead to the release of otherwise exempt documents and thereby demonstrate the contrast with the present appeal, but also because of the remarks that the Full Court made as to legal professional privilege. The Court quoted the remarks of Dawson J. in Baker v Campbell (1983) 153 CLR 52 as to the enormous significance of legal professional privilege. His Honour said
"The privilege extends beyond communications made for the purpose of litigation to all communications made for the purpose of giving or receiving advice and this extension of principle makes it inappropriate to regard the doctrine as a new rule of evidence. It is a doctrine which is based upon the view that confidentiality is necessary for proper functioning of the legal system and not merely the proper conduct of particular litigation. It is inconsistent with that view to conclude that compulsory disclosure of communications between legal adviser and client is in the public interest merely because the compulsion is for administrative rather than judicial purposes."
(1983) 153 CLR 52, 129
His Honour continued on the following page of the report
"Speaking for myself and with the greatest of respect, I should have thought it evident that if communications between legal advisers and their clients were subject to compulsory disclosure in litigation, civil or criminal, there would be a restriction, serious in many cases, upon the freedom with which advice or representation could be given or sought. If a client cannot seek advice from his legal adviser confident that he is not acting to his disadvantage in doing so, then his lack of confidence is likely to be reflected in the instructions he gives, the advice he is given and ultimately in the legal process which the advice forms part. Moreover, the same reason must apply to the compulsory disclosure of the same communications in the course of administrative proceedings which may ultimately result in disadvantage to the client. As a matter of principle or practice it does not seem to me to matter whether the compulsion is at the hands of the executive or at the hands of the judiciary if what is placed in jeopardy is the right to seek guidance in the processes of the law without fear of harm as a consequence."
The Court in Smith's case, Kaye, Fullagar and Ormiston JJ, felt that these remarks were as apposite to the relationship between the State of Victoria and its legal advisers as to the relationship between a private citizen and his adviser. Since Smith's case, the High Court of Australia has further underlined the fundamental importance of legal professional privilege. In Carter v The Managing Partner Northmore Hale Davy and Leake (1995) 183 CLR 121, the Court held that a person subject to criminal prosecution could not by subpoena compel the production of documents which were the subject of a claim for legal professional privilege by a third party, even though those documents might establish the innocence of the accused or might materially assist his defence. Deane J. remarked
"Where legal professional privilege attaches, there is no question of balancing the considerations favouring the protection of confidentiality against any considerations favouring disclosure in the circumstances of the particular case."
(1985) 183 CLR 121, 133
Mr Just submitted that in deciding whether the public interest required disclosure of otherwise exempt documents, the Tribunal should be guided by views attributed to Sir Anthony Mason as a Justice of the High Court in a matter the Commonwealth of Australia v Fairfax as described by the well known businessman and lawyer, Mr Malcolm Turnbull, in his memoir of the Spy Catcher case. According to Mr Turnbull, Sir Anthony said
"That Governments could only restrain the publication of confidential information if they could establish that the information was still secret and most importantly that its publication would cause real detriment not just embarrassment and public debate and controversy."
Here, there is every reason to think that the disputed documents are still confidential to the State of Victoria. Moreover, the situation is not as in Fairfax's case where the documents had already been released (it seems by an illegal "leak") and the Commonwealth was seeking an injunction restraining their publication but rather whether documents which it is conceded are exempt, should be released because the public interest so requires.
In my view, the arguments relied upon by Mr Just do not establish that the public interest requires the release of these exempt documents and the arguments as to the importance of legal professional privilege which were advanced by Mr Harris on behalf of the respondent, fortify me in the view that the public interest does not require the release of these documents, rather it requires that they be held confidential.
In the circumstances the proper order is that the decision of the respondent is affirmed.