Adamas v Honourable Brendan O'Connor

Federal Court of Australia|2011-08-22|Before: Gilmour J

The applicant's oral application for the production of documents be dismissed.
The applicant pay the first respondent's costs to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 407 of 2010

IAN JOHNSON, THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES

JUDGE: GILMOUR J DATE: 22 August 2011 PLACE: PERTH

The contested material 1 The applicant seeks the production by the first respondent (Minister) of unredacted or plain copies of the following documents: (a) a three page advice dated 3 December 2010 prepared by officers of the Attorney-General's Department (AGD) for the Minister for Home Affairs for consideration of his determination under s 22(2) of the Extradition Act 1988 (Cth) (the Extradition Act) whether the applicant is to be surrendered to Indonesia (the s 22 Advice); (b) Attachment B to the s 22 Advice, being an analysis of grounds for refusal of surrender under the Extradition Act (Attachment B); (c) Attachment H to the s 22 Advice, being advice from Professor Tim Lindsey; and (d) Attachment I to the s 22 Advice, being advices from the Office of International Law (OIL), a Division within the Civil Justice and Legal Services Group of AGD. (the contested material) 2 The application was originally supported by the affidavit of the applicant's solicitor Mr John O'Connor sworn 5 May 2011. However, the ground supported by this affidavit was abandoned at the hearing of the application. 3 The s 22 Advice and Attachment B refer to requests for and legal advice from OIL, Professor Lindsey, the Office of the Commonwealth Director of Public Prosecutions (CDPP) and the Australian Government Solicitor (AGS). 4 The applicant has been provided with copies of the s 22 Advice and Attachment B in which privileged material has been redacted. The following table sets out the passages which have been redacted: Source of Advice Document Page & Paragraph Professor Lindsey Attachment B 16 [76]-[78], 37 [185] & [190], 41 [211], 45 [231] - 46 [235] & [239] OIL s 22 Advice 3 [10] Attachment B 15 [72], 30 [145] & [146], 31 [154], 37 [185], 40-41 [205]-[211] & [213]-[214] & footnotes, 43 [221] CDPP s 22 Advice 3 [10] Attachment B 5 [10]-[11], 22 [106], 47 [244] AGS s 22 Advice 2 [6] & [8], 3 [10] Attachment B 6 [18]

5 The first respondent contends that the whole of the advices from Professor Lindsey and OIL and the redacted parts of the s 22 Advice and Attachment B are communications that are subject to legal professional privilege. 6 The applicant does not contend that the relevant material is not privileged. Rather, he submits that the privilege has been implicitly waived. It remains nonetheless for the Court to be satisfied that privilege does indeed attach to this material.

Principles governing the claim for privilege 7 The present application does not relate to the adducing of evidence, but to the response to a notice to produce. It is governed by the common law, and not by Part 3.10 of the Evidence Act 1995 (Cth): Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 59-63; Mann v Carnell (1999) 201 CLR 1 at 12 [27]. 8 The contested advices, apart from Prof. Lindsey, were given by legal advisers within the Commonwealth: (a) lawyers in AGD (Judiciary Act 1903 (Cth) (Judiciary Act), ss 55E - 55G); (b) lawyers in AGS (Judiciary Act, ss 55I - 55R); and (c) lawyers in the Office of the CDPP (Director of Public Prosecutions Act 1983 (Cth), ss 5 and 16). The functions of the DPP, set out in s 6(1) and (2) of that Act, and the Director of Public Prosecutions Regulations 1983, reg 3(1), include giving advice to an authority of the Commonwealth. 9 Legal professional privilege attaches to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 54, Dawson J at 96; Deane J at 79-82. The salaried adviser must also be professionally independent or "detached": Rich v Harrington (2007) 245 ALR 106 and see generally Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649 at [64]-[71], [99]. The conditions under which the Commonwealth employs legal officers have been recognised as securing that independence: Waterford at 72-73 per Brennan J. 10 Legal advice and services by government lawyers attract privilege: Waterford (material submitted to Deputy Crown Solicitor's Office in relation to litigation), Bennett v CEO, Australian Customs Service (2004) 140 FCR 101 (advice by AGS); Spassked Pty Ltd v Commissioner of Taxation (No 4) (2002) 50 ATR 70 (material briefing expert by AGS); State of New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 (advice regarding drafting and preparation of legislation by Parliamentary Counsel). 11 Advice by OIL to AGD and the CDPP to the Australian Federal Police and others is privileged: Zentai v O'Connor (No 2) (2010) 183 FCR 180; Dunesky & Bay Wool Pty Ltd v Elder (1992) 35 FCR 429; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445; Austin v Attorney-General's Department (1986) 12 FCR 22; R v Dainer; Ex parte Pullen (1988) 78 ACTR 25. 12 The privilege attaches to confidential communications between a party and his or her legal adviser, in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court: Esso Australia Resources at 64- 65. A communication for the dominant purpose of obtaining legal advice or obtaining or providing legal services attracts privilege: Esso Australia Resources at 73 [61]. The privilege extends to documents that record confidential legal advice or confidential legal work, and to any document prepared by the lawyer or client from which the nature of the advice may be inferred: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 569, per Gummow J. The principles and cases are discussed by Young J in AWB Limited v Cole (2006) 152 FCR 382 at [127]-[132]. The advice from and the request for advice to the lawyer are privileged: Bolton v Liverpool Corporation (1833) 1 My & K 88 at 94; 39 ER 614 at 617. 13 When the relevant communication is set out in a document, the use made of a document is not determinative. The test is "anchored to the purpose for which the document was brought into existence": Propend Finance Pty Ltd at 508 per Brennan CJ. A compendious statement of the classes of documents to which privilege will attach was given by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244. Relevantly, they include not only the communication between a party and his or her legal adviser, including any note or record of that communication, but documents that would reveal the knowledge, information or belief of a client derived from privileged communications. The relevant question is "what was the intended use or uses of the document which accounted for it being brought into existence": Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at 366. The purpose for which a document is brought into existence is a question of fact to be determined objectively. 14 The existence of privilege is not subject to a balancing exercise in respect of some other public interest, such as the interests of justice. Unless privilege has been waived by the person entitled to it, or has been abrogated by statute, it is absolute: Waterford at 64-5; Attorney-General (NT) v Kearney & Northern Land Council (1985) 158 CLR 500, at 532; Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, at 128, 133, 163; Propend Finance at 552. 15 A claim of privilege will, if challenged, be determined upon a proper investigation of the circumstances: Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359; National Crime Authority v S (1991) 29 FCR 203. The onus of establishing that legal professional privilege applies is on the party claiming privilege: Grant v Downs (1976) 135 CLR 674 at 689. The party claiming privilege may point to the nature of the documents, or by evidence describe the circumstances in which they were brought into existence. In many instances "the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence": Grant v Downs at 689; Barnes v Commissioner of Taxation (2007) 242 ALR 601 at [22]. 16 However, where communications take place between a client and his or her legal advisers it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace (2004) 208 ALR 424 at 442 [65] affirmed on appeal, Kennedy v Wallace (2004) 142 FCR 185 at 191-192 [23]-[27]. See also Cross on Evidence, Online edition at [2570]. That is the case here. 17 The concept of legal advice is wide: DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 at [52]. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context: Balabel v Air India [1988] Ch 317 at 323 and 330; Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 at 983; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610 at 652-653 [43]-[44], 657-658 [59]-[60], 681 [114] and 683 [120]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-333; DSE (Holdings) Pty Ltd v InterTAN Inc at 161-173 [25]-[71].Where legal advice contains extraneous matter, which cannot be separated from it, the legal advice will not lose its privilege for that reason: Waterford at 66 and 103. 18 Where a document contains legal advice, it is permissible and has become common practice to redact the document and claim privilege as to the redacted part only: Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 at [14]- [18]; Candacal Pty Ltd at [53]-[54]; Assistant Treasurer & Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd (2009) 179 FCR 323 - the practice was also affirmed in Bailey v Department of Land and Water Conservation [2009] NSWCA 100. 19 The Court should uphold a claim of privilege where the relevant dominant purpose can be reasonably inferred from the content and on the face of the document on inspection: See Barnes at [38]. Otherwise, the court has, and will exercise, the power to examine a document for itself to assess whether the communication in it is privileged: Grant v Downs at 677 and 688-9; Trade Practices Commission v Sterling at 246-7; Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 541-2; Esso Australia Resources at [52]; AWB Ltd v Cole (2006) 152 FCR 382 at 391. Inspection is discretionary: Grant v Downs at 688-9; District Council of Mallala v Livestock Markets Ltd (2006) 94 SASR 258 at [30]. The Court cannot order disclosure to the party seeking disclosure for the purposes of enabling that party to make a submission on the point: Rayney v AW [2009] WASCA 203 at [36] and [40].

Application of the principles - The contested material is privileged 20 The Minister contends that it may properly be presumed that the contested material is privileged from the nature of the subject matter and the involvement of a client and its legal advisers. 21 The Minister further contends that privilege is, in any event, also established by the evidence about the circumstances in which the advice, in each case, was requested and given which were the subject of the affidavit of Belinda Barry, a Special Adviser in the International Crime Cooperation Division of the AGD, affirmed on 23 March 2011. Her relevant evidence is as follows: 3. On two separate occasions, the International Crime Cooperation Division requested legal advice from the Office of International Law (OIL) on Australia's international obligations in relation to Indonesia's request for the extradition of the applicant. 4. OIL is a Division within the Civil Justice and Legal Services Group of the Department. Its functions include providing legal advice on issues involving international law and it is responsible for assisting with the conduct of international litigation. OIL's role in providing legal advice on public international law matters is established by the Legal Services Directions 2005 made pursuant to section 55ZF of the Judiciary Act 1903. 5. The requests to OIL for legal advice were made in letters dated 17 July 2007 and 24 May 2010 by Ms Shannon Cuthbertson and Ms Alannah Fooks respectively of the International Crime Cooperation Division. Privilege is claimed in relation to the requests for advice. 6. OIL provided two written advices relating to the request by Indonesia for the extradition of the applicant in the form of formal letters dated 18 July 2007 and 19 July 2010. The advices were on the letterhead of OIL from Ms Julie Atwell addressed to Ms Cuthbertson and Ms Fooks respectively, Privilege is claimed for the letters of advice. 7 Ms Atwell was, at the relevant time, a lawyer employed as a Principal Legal Officer with OIL in the Department and admitted to practice in Queensland. 8. On 13 October 2009 the International Crime Cooperation Division also requested legal advice from OIL in relation to Australia's international obligations in another matter not concerning the applicant. 9. The advice was formally requested in an email sent on 13 October 2309 from Ms Elizabeth Boylan of the International Crime Cooperation Division to Mr Geoff Skillen of OIL. Privilege is claimed for the request for advice. 10. Mr Skillen provided advice on behalf of OIL in the form of an email to Ms Boylan dated 14 October 2009 and privilege is claimed for the advice. 11. Mr Skillen was, at the relevant time, a lawyer employed as a Principal Legal Officer with OIL in the Department and admitted to practice in New South Wales. 12. I have read: 12.1. the 3 page submission dated 3 December 2010 prepared by officers of the Department for the Minister for Home Affairs for consideration of his determination under s 22(2) of the Extradition Act 1988 (the Act) whether the applicant is to be surrendered to Indonesia (the s 22 submission); and 12.2. attachment B to the s 22 submission, being an analysis of grounds for refusal of surrender under the Act (Attachment B). 13. Paragraph 10 of the s 22 submission and paragraphs 72, 205 and 221 of Attachment B refer to the advice sought from OIL. The advice received from OIL is referred to at paragraphs 145, 146, 205-211, 213 and 214 of Attachment B and paragraphs 154 and 185 of Attachment B refer to conclusions based on the OIL advices. . . . Advice from the Office of the Commonwealth Director of Public Prosecutions 15. The International Crime Cooperation Division also requested legal advice from the Office of the Commonwealth Director of Public Prosecutions (CDPP) in relation to the offences for which the applicant's extradition was sought by Indonesia. 16. The advice was requested in an email sent by Ms Susan Williamson, a Senior Legal Officer with the Department, to Ms Patricia Summerell of the CDPP on 22 November 2008. Privilege is claimed in relation to the request for advice. 17. The nature of the advice sought from the CDPP is referred to in paragraph 10 of the s 22 submission. 18. The CDPP provided advice in the form of a formal letter dated 15 December 2008 on the letterhead of the CDPP signed by Ms Patricia Summerell on behalf of the Director and addressed to Ms Susanna Ford of the International Crime Cooperation Division of the Department. Privilege is claimed for the letter of advice. 19. Ms Summerell was, at the relevant time, employed by the CDFP as a legal officer and admitted to practice as a lawyer in the Australian Capital Territory. 20. The advice provided by the CDPP is referred to in paragraphs 10, 11, 106 and 244 of Attachment B. Advice from Professor Tim Lindsey 21. The International Crime Cooperation Division also requested legal advice from Professor Tim Lindsey on the law in Indonesia in relation to several issues relating to Indonesia's request for the extradition of the applicant. 22. Mr Lindsey was, at that relevant time, a Professor of Asian Law in the Faculty of Law at the University of Melbourne and admitted to practice as a lawyer in Victoria. 23. The advice from Professor Lindsey was formally requested in a letter dated 14 June 2007 from Ms Shannon Cuthbertson of the International Crime Cooperation Division and privilege is claimed in relation to the request for advice. 24. The nature of the advice sought from Professor Lindsey is referred to in paragraphs 76, 231 and 232 of Attachment B, 25. Professor Lindsey provided his advice in the form of a formal signed memorandum of opinion dated 16 July 2007 and privilege is claimed for the memorandum 26. The advice provided by Professor Lindsey is referred to in paragraphs 76-78, 190, 211, 232-235 and 239 of the Attachment B and paragraph 185 of Attachment B refers to a conclusion based on Professor Lindsey's advice. Advice from the Australian Government Solicitor 27. The International Crime Cooperation Division also requested legal advice from the Australian Government Solicitor (AGS) in relation to the s 22 submission and Attachment B. 28. The advice was originally requested orally by Ms Alannah Fooks a Senior Legal Officer with the Department, and Ms Williamson, to Mr Peter Corbould of AGS in a telephone conference on 5 August 2010 and at a meeting on 17 August 20 Subsequent requests for advice were made both orally and by email correspondence from Ms Fooks and Ms Williamson to Mr Corbould. Privilege is claimed in relation to the requests for advice. 29. The nature of the advice sought from AGS is referred to in paragraphs 8 and 10 of the s 22 submission. 30. AGS provided advice in the form of emails and oral communication from Mr Corbould to Ms Fooks and other officers of the Department. Privilege is claimed in relation to the communications. 31. Mr Corbould was, at the relevant time, a Senior Executive Lawyer in AGS and admitted to practice in Western Australia. 32. Advice provided by AGS is referred to in paragraph 6 of the s 22 submission and paragraph 18 of Attachment B. 22 Against that factual background I will now consider the question whether the contested material severally is privileged.

The advice from OIL 23 Legal Services Directions made under Part VIIIC of the Judiciary Act specify certain types of legal work as "tied work": Legal Services Direction clause 2 and Appendix A. Public international law work, including advice involving Australia's or another country's obligations under international law, is tied work. OIL has a specific role where such issues arise: Appendix A, clauses 6 and 7. 24 Disclosure of the redacted parts of paragraphs 145, 146, 205-211, 213 and 214 of Attachment B would reveal the content of legal advice from OIL. Disclosure of the redacted parts of para 10 of the s 22 Advice and paras 72, 205 and 221 of Attachment B would reveal the instructions for advice from OIL. 25 Paragraphs 154 and 185 of Attachment B refer to conclusions based on the OIL advices and disclosure would allow an inference as to the content of the privileged communication: AWB Limited v Cole at [127]-[132].

The CDPP advice 26 The redacted parts of paras 10, 11, 106 and 244 of Attachment B summarise the advice received from the CDPP. Disclosure of those parts would reveal the content of legal advice. 27 The nature of the advice sought from the CDPP is referred to in paragraph 10 of the s 22 Advice and disclosure would reveal the instructions seeking advice.

The advice from Professor Lindsey 28 The advice provided by Professor Lindsey is referred to in paras 76-78, 190, 211, 232-235 and 239 of Attachment B and disclosure of those parts would reveal the content of legal advice. 29 Disclosure of the redacted parts of paras 76, 231 and 232 of Attachment B would reveal the instructions seeking legal advice and disclosure of the redacted part of paragraph 185 of Attachment B would reveal the knowledge or belief of the recipient of a privileged communication derived from that communication.

The advice from AGS 30 Disclosure of the redacted parts of paras 8 and 10 of the s 22 Advice would reveal the instructions for advice from AGS. Disclosure of the redacted parts of para 6 of the s 22 Advice and paragraph 18 of Attachment B would reveal the content of AGS advice. 31 I am satisfied on the evidence that the privilege claimed has, in each case, been established.

Has the privilege been waived 32 Privilege may be waived where the person entitled to claim privilege does an act inconsistent with confidentiality of the information: Mann v Carnell at [28] Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [35], [44]-[46] and [48]-[50]. The inconsistency may be informed by considerations of fairness, but is not established by proof of unfairness. There is no overriding principle of fairness operating at large: Mann v Carnell at [29]. There is no waiver without that "inconsistency" so understood. 33 The High Court observed in Osland at [49]: Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell, has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law. 34 The onus of proof lies on the person asserting that privilege has been waived: State of New South Wales v Betfair Pty Ltd at [54]. 35 There is, in my view, no evidence of any disclosure or other conduct that is inconsistent with the confidentiality of the redacted legal advice. 36 The disclosure of the advice to or within the Department, and the use of the advice in briefing the Minister for the purposes of his determination under s 22 of the Extradition Act, is not inconsistent with the confidentiality of the information: Zentai v O'Connor (No 2) at [128]; those disclosures were to the "client", or their privies with the same interests, for the purposes of the tests for privilege. 37 When legal advice is given by one Commonwealth department to another Commonwealth agency or to a Minister, legal professional privilege is taken not to have been waived: s 55ZH Judiciary Act. 38 The applicant places considerable reliance upon the decision in Zentai v O'Connor (No 2) at [141]. That case turned on its own facts which are in substance distinguishable from the present case. Importantly at [140] his Honour held that most of the advice in question had been disclosed with the exception only of a relatively small amount of redacted material in two key areas. The relevant facts, contrary to the applicant's submissions are not identical with those in Zentai. McKerracher J no doubt had in mind the "fact and degree" considerations referred to in Osland at [49].

The applicants submissions 39 The applicant, correctly, observes that the s 22 determination reached by the Minister was based, at least in part, upon the content of the contested material and the conclusions contained therein. 40 Attachment B to the s 22 submission directly addresses representations made by the applicant as to why he should not be extradited and reaches conclusions as to why those representations should not be accepted. 41 The applicant submits that in those circumstances is it apparent that the contested materials contain conclusions or summaries that are derived from the redacted portions. He submits that it is inconsistent, within the full context of the materials, to disclose the conclusions contained in the contested materials, being the advice given to the respondent, while at the same time claiming privilege for the redacted portions. 42 One example of this is said to be evidence from para 185 of the s 22 submission (Attachment B). Departmental Comment Introduction 185. The analysis below addresses the right to a fair trial and fairness of Ariawan's conviction in absentia by reference to Indonesian law, Australian law (including case law on extradition to New Zealand) and international law. In summary, the analysis below concludes that: • Ariawan has not established that he has been prejudiced by reason of his race such that that his extradition would be unjust, oppressive or incompatible with humanitarian considerations • (redacted) • (redacted) • (redacted) • although you may take guidance from Australian case law relating to fair trial standards generally (including in the context of extradition to New Zealand), the Department considers it is open to you to conclude, taking into account the circumstances of Ariawan's conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations. 43 Referring to the last bullet point senior counsel for the applicant submitted that this was a statement of a conclusion based upon legal advice obtained but that it does not disclose the reasoning which underlies it. He sought to characterise the advice in this respect as pertaining to a question of fact. This, in my opinion, is not in those circumstances a basis for implying waiver of a privileged communication. 44 In any event these conclusions are not disclosures from any of the relevant legal advices. Rather it is the advice of a Departmental Officer to the Minister which quite possibly might be informed by part of the relevant legal advice but one cannot conclude that to be the case as a matter of probability. 45 So much is the case in relation to the other examples cited by the applicant. 46 I am satisfied that the respondent has been rigorous in redacting any advice or communications concerning that advice where waiver is asserted. There has been no relevant disclosure. 47 The applicant submits that it may well be the case that the advice contained in the redacted portions may advance arguments or propositions which have not yet been advanced, or may support existing grounds of review. This is mere speculation and in any event is not a basis for judicial review. 48 The applicant then submits that some of the redacted material is clearly comment upon or directed towards factual representations made by the applicant that go to the heart of the applicant's representations to the respondent in respect of the s 22 determination. It follows, he submits that it is not the legal advice that is sought to be reviewed but the conclusion arrived at as a consequence of considering that advice, and that if the advice is incorrect or is based upon incorrect facts, then fairness demands the applicant be permitted to view the redacted material to asses the merits of the s 22 determination. 49 The Minister submits, and I accept, that this contention seeks, in effect, a merits review as if the redacted legal advice, including the facts upon which that advice was based, formed part of reasons for the Minister's s 22 determination. The submission is misconceived for several reasons. 50 The proceedings comprise judicial review under s 39B of the Judiciary Act, and are founded on certiorari. Declaratory and injunctive relief are sought, but only consequential to the relief sought under certiorari, not pursuant to any cause of action outside judicial review. 51 Certiorari operates on the face of the record. The Minister is not required to give reasons: Administrative Decisions (Judicial Review) Act 1977 ss 13 and 4, Schedule 1 item (r). He has not done so. No reasons comprise the record. 52 The s 22 Advice and Attachment B are not be taken as the Minister's reasons, because they are advice to him, not necessarily his reasons: Zentai v Honourable Brendan O'Connor (No 3) (2010) 187 FCR 495 at [86]-[92]; Brock v Minister for Home Affairs [2010] FCA 1301 at [62]-[75]. They evidence what the Minister read, not what he took into consideration or failed to take into consideration in the course of making his determination. 53 Accordingly, the record does not include legal advice within the s 22 Advice and Attachment B. As was stated in Craig v State of South Australia (1995) 184 CLR 163 at pp 176-180 inclusion of the legal advice to a decision-maker as: part of "the record" would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law … upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. 54 Although Craig concerned inferior courts, not administrative bodies, the proposition nonetheless is apt. 55 A claim for certiorari is not amenable to discovery of documents from which errors of fact underpinning legal advice or error in that advice may be demonstrated. 56 Moreover, the applicant has failed to establish any relevant inconsistency. His submission in oral argument was that inconsistency arose not by reason of disclosure of any of the communications referrable to the advices, privilege in which it contends has been waived, but because of disclosure within the s 22 submission (Attachment B) of other legal advice from other lawyers. 57 This submission depends for its cogency upon treating the several advices received by the Minister as though they were from the same lawyer. No authority for such a proposition was cited by the applicant nor am I aware of any. I do not consider there is any basis in principle to support it. 58 For all these reasons I am not persuaded that the applicant has established waiver in respect of any of the impugned material. The application will be dismissed with costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Director of Public Prosecutions Regulations 1983(Cth)reg 3(1)

AGD (Judiciary Act 1903(Cth)

CDPP (Director of Public Prosecutions Act 1983(Cth)

Judiciary Act 1903(Cth)ss 39B, 55E-55G, 55I-55R, 55ZF, 55ZH, Part

of Taxation (2004) 136 FCR 357 R v Dainer; Ex parte Pullen (1988) 78 ACTR 25 Rayney v AW [2009] WASCA 203 Rich v Harrington (2007) 245 ALR 106 Spassked Pty Ltd v Commissioner of Taxation (No 4) (2002) 50 ATR 70 State of New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 Trade Practices Commission v Sterling (1979) 36 FLR 244 Waterford v Commonwealth (1987) 163 CLR 54 Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 Zentai v O'Connor (No 2) (2010) 183 FCR 180 Zentai v Honourable Brendan O'Connor (No 3) (2010) 187 FCR 495

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