Page 2796 - Week 08 - Thursday, 11 August 2016
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and consequently the public interest test set out in clause 17 applies to such information. There is a significant and very well-recognised public interest in the confidentiality of communications with a lawyer, and this of course is the basis for the existence of legal professional privilege. In reality, there would have to be something exceptional about the legal advice to require release under the bill.
I think this is symptomatic of some of the other categories of information we are talking about today, that is, the construct of the act and the way that it works. However, in Victoria there is a public interest override in the FOI Act that means that the VCAT, the civil tribunal in Victoria, can decide to release information that would otherwise be privileged. This is in section 50(4) of that act.
The most notable and I think only example of legal professional privilege information being released by VCAT was in the case of Osland v the Secretary to the Department of Justice, which went all the way to the High Court. In that case the High Court found legal advice received by the Attorney-General to be in the public interest to release. Chief Justice French and justices Gummow and Bell said:
When the Attorney-General received the advices which he did from various members of the legal profession, he did so on behalf of the public and not as a private citizen. Such continuing public interest as there was in the privilege attaching to the documents in the circumstances of this case was capable of being put to one side against the public interest in disclosure.
I believe that there is a significant distinction between individual citizens obtaining legal advice and the government obtaining legal advice. The scope of the matters that the government may obtain advice on and the purpose for which the advice may be obtained are very different from those of an individual. That is why I think there is a justifiable basis here, not that this should become a free-for-all but that there should be an assessment based on the public interest test, not on a blanket exemption of access to this information. I will be opposing Mr Corbell’s amendment on that basis.
MRS DUNNE (Ginninderra) (4.39): We will be supporting Mr Corbell’s amendment to insert “legal professional privilege” into schedule 1. This was a threshold question that had to be passed before the Canberra Liberals would agree to support this bill, and my resolution on this has just been reinforced by the arguments put forward by Mr Rattenbury why we should not do this. It does show that there is quite a disconnect between us and the Greens on some issues, and this is one of them. I am going to have to respectfully disagree with Mr Rattenbury. I think it is imperative that legal professional privilege is maintained. On this occasion I do agree with the attorney. This is fundamental to the rule of law.
Amendment agreed to.
MR CORBELL (Molonglo—Deputy Chief Minister, Attorney-General, Minister for Health, Minister for Police and Emergency Services and Minister for the Environment and Climate Change) (4.41): I move amendment No 50 circulated in my name [see schedule 2 at page 2854]. This deals with information obtained in confidence.
Amendment 50 inserts into schedule 1 new clause 1.1(b), information obtained in confidence. This amendment protects third-party information which was obtained in
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