Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)
LEE J:
[2]
A INTRODUCTION
In this proceeding, the applicant, Ms Adriana Rivas, seeks various forms of relief in relation to a determination by the Minister for Finance (Minister) (on behalf of the Attorney-General of the Commonwealth), that Ms Rivas be extradited to the Republic of Chile pursuant to s 22(2) of the Extradition Act 1988 (Cth) (Extradition Act). Although there are two respondents, for convenience, where appropriate, I will refer to the respondents collectively as the Minister.
The current interlocutory application made by Ms Rivas concerns the narrow issue as to whether some claims of legal professional privilege can be maintained (or, put another way, whether various documents and unredacted copies of other documents are required to be produced to Ms Rivas).
It is appropriate to start with three important and related matters of context.
The first is that this is not an application in which there is any allegation that the claims made for legal professional privilege based on the provision of legal advice could not have been properly made. Rather, notwithstanding that privilege was able to be initially claimed, the issue is whether there has now been a waiver of privilege in circumstances to which I will return.
The second is that the relevant decision sought to be impugned was a surrender determination under s 22(2) of the Extradition Act. The decision itself is recorded in a document signed by the Minister on 28 August 2024. In this document, the Minister is recorded as having adopted a recommendation that she "Note the Advice at Attachment A" being "Legal Advice on the Preconditions to Surrender and Grounds for Refusal of Surrender Under the [Extradition Act]" (underlining added). The document also records that the Minister agreed to exercise the discretion usually residing in the Attorney-General under s 22(2) of the Extradition Act to determine that the applicant be surrendered to Chile, and to sign and date the surrender warrant under s 23 of the Extradition Act.
The third related matter is that, properly analysed, and despite the notation made, the departmental brief does not purport to constitute a statement of the Minister's reasons and, of course, no reasons are required pursuant to the terms of the Extradition Act for a s 22 determination.
[3]
B THE RELEVANT LAW
It is appropriate to then turn to the relevant law. There was no dispute as to the applicable principles: they have been stated and restated in many cases. Relevantly, both parties did not dispute the following four matters, which I will put in propositional form:
Even if the Minister accepted the advice she was given as contained in the departmental advice, this in and of itself is insufficient to constitute waiver of legal professional privilege.
The use of legal advice to make an administrative decision is not necessarily inconsistent with maintaining the confidentiality of that advice.
Waiver will only occur to the extent "that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect": Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 (at 297 [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).
Whether a limited disclosure of the existence and effect of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case; questions of waiver are matters of fact and degree: Osland (at 298-299 [49] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).
Given the need to resolve this issue promptly given the pending hearing, I do not propose to set out in extensive detail the arguments of the parties. Detailed written submissions were filed in advance of the hearing, and the oral argument essentially repeated those contentions (however, much of the Minister's written submission were rendered irrelevant by reason of the fact that there was no dispute concerning the relevant principles, the relevant background, and the fact that there was no contention that the relevant communications were, absent waiver, legally professionally privileged).
As noted above, the key and determinative issue was whether there was conduct which was inconsistent with the maintenance of the confidentiality over the communications the subject of the interlocutory application, with the question of waiver being determined "in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances": Osland (at 297 [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).
[4]
C CONSIDERATION
Although the application was made in respect of aspects of Attachment A and the documents that constituted Attachments F, K, L1 and L2 of the Ministerial submission, oral argument focussed on Attachment A which, as the affidavit of discovery makes clear, contains redactions applied to parts of the Ministerial submission summarising or otherwise stating the purpose of the legal advice recorded in the other attachments. This was accepted to be the highwater mark of the contentions of Ms Rivas. Hence, argument proceeded on the basis that the ruling that I would make in relation to redactions in Attachment A would be determinative of the whole of the interlocutory application.
Given the need to have regard to context, it is worth commencing my consideration of waiver by setting out, in some detail, two sections of the Ministerial submission and its title, which received focus in oral submissions.
The first deals with non-refoulement obligations, and is in the following terms:
iv. Departmental analysis
Although Ms Rivas González's representations do not explicitly allege that she is at risk of torture within the Chilean prison system, they do raise interrelated concerns which are relevant to your consideration of the risks of both torture and other harms. Ms Rivas González's representations fall within your consideration of paragraph 22(3)(b) only insofar as they relate to a risk of torture of a kind recognised in de Bruyn. Accordingly, we address this aspect of the representations in this section. Aspects of the representations which relate to the risk of harm that may constitute cruel, inhuman or degrading treatment or punishment will be addressed below as part of the exercise of your general discretion under paragraph 22(3)(f) of the Act.
We consider that, in order to determine whether or not there are substantial grounds for believing that Ms Rivas González would be in danger of being subjected to torture if surrendered to Chile, it is necessary to assess whether Australia's non-refoulement obligations under the CAT are engaged with respect to Ms Rivas González as a matter of both domestic and international law.
[REDACTED] [REDACTED] [REDACTED].
[REDACTED] [REDACTED] [REDACTED].
…
While Ms Rivas González has raised concerns that she might be particularly vulnerable, due to the political nature of the crimes with which she is charged, Chile has advised that Ms Rivas González will be housed in a purpose-built section of the prison, 'Esperanza', with other female inmates with chronic disease and of advanced age but who have been convicted of human rights violations (as opposed to being accused of such). Accordingly, Ms Rivas González will not be at personal risk under Article 1 of the CAT due to the political nature of her crimes, given she will be housed with others who have been convicted of the types of offences she is accused of.
While there is no guarantee that Ms Rivas González will remain in that facility for the duration of her pre-trial detention, or if convicted, when considered in totality and at their highest, the described prison conditions in Chile are unlikely to meet the high threshold of torture (that is, causing severe pain or suffering, intentionally inflicted for a particular purpose and involving a public official). Instead, the conditions described may indicate generalised sub-standard prison management. Accordingly, the department does not consider that these issues reach either [REDACTED] [REDACTED] [REDACTED] or the 'real chance' test outlined in Francuziak to establish that Australia owes non-refoulement obligations to Ms Rivas González.
…
i. Australia's non-refoulement obligations under the ICCPR
As outlined above, Ms Rivas González has made a series of representations relating to prison conditions in Chile. For the reasons outlined at paragraphs [90] to [111] above, the department considers that these representations do not rise to the threshold of torture under the CAT or relevant domestic law for the purposes of paragraph 22(3)(b) of the Extradition Act (as set out by the Full Federal Court in de Bruyn).
…
The second extract deals with issues of double criminality and is in the following terms:
Departmental analysis
The department does not agree with Ms Rivas González interpretation of the High Court's decision in Zentai. Her representations appear to conflate the High Court's strict approach to the definition of the 'offence' for which extradition was requested with an assessment of whether the double criminality requirement is met in Australia. [REDACTED] [REDACTED] [REDACTED].
In Zentai, the dispute before the High Court turned on whether 'it' in Article 2(5)(a) of the Hungarian Treaty was a reference to the offence for which extradition was requested or the conduct constituting the offence. A majority of the High Court held that Article 2(5)(a) of the Hungarian Treaty referred to the relevant offence, not the conduct as alleged, and could not be satisfied by any other form of criminal liability arising from the conduct. Namely, the offence for which Mr Zentai was sought was a war crime offence which was not in existence in Hungary at the time of Mr Zentai's alleged conduct. Accordingly, Article 2(5)(a) was not satisfied.
In Ms Rivas González's case, the offence of 'aggravated kidnapping' existed in Chile at the time of her alleged conduct and at the time when Chile presented her extradition request to Australia. [REDACTED] [REDACTED] [REDACTED].
[REDACTED] [REDACTED] [REDACTED].
In her representations, Ms Rivas González submits that her conduct was in 'good faith' as part of a government agency and thereby excluded within the meaning of kidnapping in under section 90A of the Crimes Act as it existed at the time. [REDACTED] [REDACTED] [REDACTED].
As outlined above, under the Extradition Act, dual criminality is considered at the surrender eligibility proceedings. The assessment by a magistrate at those proceedings is to determine whether the alleged conduct, based on the information contained in the extradition request, would constitute an equivalent offence or offences in Australia at the time an extradition request is received. The dual criminality requirement under paragraph 19(2)(c) of the Extradition Act is the same as the requirement of Article II(4)(b) of the Treaty.
In this case, the NSW magistrate found that substantive dual criminality in relation to Ms Rivas González's alleged conduct was satisfied on the basis of participation in a criminal group pursuant to section 93T of the NSW Crimes Act and relevant offences under the Commonwealth Criminal Code. His Honour independently concluded that dual criminality would also be met for the substantive offence of kidnapping under section 86 of the NSW Crimes Act. This meets the requirement under Article II(4)(b) of the Treaty.
Therefore, Chile's extradition request for Ms Rivas González contains sufficient information for dual criminality to be established both at the time of her alleged conduct and at the time the request was received. Ms Rivas González's claims that there is insufficient evidence of her alleged offending is considered further at paragraphs [200] to [205], in relation to the general discretion to refuse extradition under paragraph 23(3)(f) of the Extradition Act.
The department therefore considers you may be satisfied that, even if Article II(4) of the Treaty is considered as imposing a mandatory ground for refusal of extradition, Ms Rivas González's alleged conduct would nonetheless meet the double criminality requirement pursuant to Article II(4) of the Treaty.
(Footnotes omitted)
As would already be evident, the above two extracts are contained in the Ministerial submission, which is headed throughout:
OFFICIAL: Sensitive to Legal privilege
And has a title as follows:
LEGAL ADVICE ON THE PRECONDITIONS TO SURRENDER AND GROUNDS FOR REFUSAL OF SURRENDER UNDER THE EXTRADITION ACT 1988 (CTH)
This title is accompanied by a footnote which says:
This document contains legal advice. A claim for legal professional privilege over its contents may be made.
It is clear from a review of the whole of the Ministerial submission, that it is, as its name would suggest, the record of departmental advice to be noted by the Minister in the course of making her decision. Unsurprisingly in those circumstances, it is not a document over which legal professional privilege could be claimed in whole. Appropriately, those acting for the Minister have conscientiously restricted their claims for privilege only to those confidential communications recorded which truly constitute legal advice given by lawyers. This discrimination in making the claim can be seen from the above extracts.
Needless to say, in accordance with the propositions identified above, the mere fact that legal advice is contained in the Ministerial submission is insufficient to constitute a waiver without the Court being satisfied by Ms Rivas that the continued maintenance of the present claim for privilege is inconsistent with the extent of the legal advice that has been disclosed.
Counsel for the applicant, during the course of his able submissions, placed great reliance on the decision of McKerracher J in Zentai v O'Connor (No 2) [2010] FCA 252; (2010) 183 FCR 180, where his Honour held that, in the circumstances of that case, legal professional privilege in redacted material had been waived as it was unfairly inconsistent to release to the applicant, at a private level, the conclusions reached on topics which were at the heart of the applicant's legal submissions, while at the same time claiming privilege for the reasoning of earlier advices (at 212 [137]-[138] and 213 [140]-[141]). In that case, his Honour found that virtually all the legal advice in the Ministerial brief had been disclosed to Mr Zentai, yet that small but important parts of the reasoning for earlier advices were withheld (at 212 [137] and 212-213 [140]). Relevantly, his Honour also noted the importance of the fact that almost all the advice had been disclosed except for a relatively small amount of redacted material dealing with two key areas (at 212-213 [140]). This led to what his Honour described as an "unfair inconsistency in releasing the entirety of the Brief and the conclusions reached …" (at 213 [141]).
As Gilmour J observed in Adamas v O'Connor [2011] FCA 948; (2011) 282 ALR 302 (at 310 [38]), Zentai was a case that turned on its own facts, with McKerracher J no doubt having in mind the "fact and degree" considerations referred to by the High Court in Osland.
Here, Ms Rivas has failed to make out any relevant inconsistency, let alone an inconsistency which could be accurately described as being unfair. In this regard, it is worth returning to the two extracts set out above (at [12]-[13]).
The first redaction (at [92]-[93]), although described in [178] as part of the reasoning process to which a conclusion was reached as to Australia's non-refoulement obligations, does not involve the disclosure of the gist or substance of the legal advice. Even if one was to assume (without deciding) that the legal advice was consistent with the ultimate view expressed by the author of the Ministerial brief (and this departmental advice informed the Ministerial decision), without more, this is insufficient. Put another way, leaving aside the fact that the Ministerial brief does not constitute a statement of the Minister's reasons, the use of legal advice that in some way contributes to a decision does not itself constitute a waiver of privilege.
When one deals with the second extract set out above (at [13]), the same points can be made. Further, the artificiality of any argument based on unfairness is brought into sharp focus.
As I currently understand it, an important aspect of Ms Rivas' argument at the final hearing will be based on submissions concerning double criminality. It is worth referring to the nature of this argument.
Chile has requested the extradition of Ms Rivas to face prosecution for seven counts of aggravated kidnapping, contrary to Article 141 No. 3 of the Criminal Code (Chile), which relate to the kidnapping and disappearance of seven people in the mid to late 1970s. Each count is punishable by a maximum penalty between five and 20 years of imprisonment.
Article II(4) of the Treaty on Extradition between Australia and the Republic of Chile [1996] ATS 7 is in the following terms:
Extradition may be granted pursuant to the provisions of this Treaty provided that:
(a) the offence for which extradition is requested was an offence in both Contracting States at the time the acts or omissions constituting the offence took place, and
(b) it was an offence in both Contracting States at the time the request for extradition is submitted.
Although it is unnecessary to determine these matters for present purposes, argument proceeded before me on the basis that this provision sets out two cumulative requirements (as reflected in the fact that subparagraphs (a) and (b) are joined by a conjunction). Hence, the Article II(4) proviso requires that the offence for which the extradition is requested was an offence both at the time of the alleged contraventions of Article 141 No. 3 of the Criminal Code (Chile) in the 1970s, and also at the time at which the request for extradition was submitted.
At the hearing, it will be contended on behalf of Ms Rivas that it was simply not open to conclude that the first of these conditions was made out, and that a jurisdictional error occurred by reason of the fact that the Minister, in making her decision, was satisfied this aspect of the double criminality requirement was met.
As I further understand it, the position of the Minister at the hearing will be that the first element of the double criminality requirement is made out because the substantive offence of kidnapping under s 86 of the Crimes Act 1900 (NSW) was an offence "at the time the acts or omissions constituting the offence took place".
I do not propose to comment on the merits or otherwise of this argument. What matters for present purposes is that I do not accept the applicant's repeated submission that there is any real unfairness in the Commonwealth resisting the applicant's argument while continuing to maintain privilege in relation to whatever advice it obtained concerning this double criminality requirement. As a matter of objective fact, the cumulative requirements were either made out, or they were not made out, and I will hear argument concerning the existence or otherwise of that objective fact at the hearing.
In my view, this case is very similar to the position which confronted Bromwich J in Levick v Attorney-General (Cth) [2018] FCA 1609; (2018) 162 ALD 169. In the present circumstances, I do not consider that whatever use was made of the legal advice in preparing the Ministerial submission is inherently inconsistent with maintaining the confidentiality of that advice. Although one can guess at the content of the advice, the substance of the advice has been redacted and, as a matter of fact and degree, nothing about the continued maintenance of the claim arising from the redactions gives rise to any unfair inconsistency.
[5]
D CONCLUSION AND ORDERS
In the circumstances, the interlocutory application must be dismissed. The application was not made irrationally, and although it has been unsuccessful, in the exercise of my discretion, the appropriate course would be to reserve costs presently so that the costs of this application will follow the event, subject to any further order. Accordingly, the only orders I will make are that the interlocutory application be dismissed and costs be reserved.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.