FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Dutton [2000] FCA 1466

FREEDOM OF INFORMATION – extradition proceedings – legal professional privilege.

Freedom of Information Act 1982 (Cth) s 42

Extradition Act 1988 (Cth) ss 12, 15, 18, 19, 22, 23, 50

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 considered

Pasini v Vanstone [1999] FCA 1271 considered

Trade Practices Commission v Sterling (1979) 36 FLR 244 applied

COMMONWEALTH OF AUSTRALIA v EDWARD I DUTTON

N 576 OF 2000

WILCOX, SPENDER AND MOORE JJ

20 OCTOBER 2000

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B J MCMAHON, DEPUTY PRESIDENT

THE COURT ORDERS THAT:

1.      The decision of the Administrative Appeals Tribunal be set aside.

2.      The matter be remitted to the Administrative Appeals Tribunal with a direction that the documents to which the proceedings relate are not privileged except the following documents which are privileged:

(i)                  the documents set out in the schedule to this judgment;

(ii)                the documents numbered 11, 44, 51 and 52 in schedule B of the affidavit of Ms Jackson of 7 April 2000 which are privileged; and

(iii)               any other document that the Tribunal earlier decided was privileged.

3.  The cross-appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B J MCMAHON, DEPUTY PRESIDENT

REASONS FOR JUDGMENT

1                     WILCOX J:  I have read in draft form the reasons for judgment of Moore J.  I respectfully agree with them and the orders his Honour proposes.

2                     Although other issues were raised at earlier points of time, the only question at the hearing of the appeal was the extent (if any) to which the subject documents were rendered exempt from production to the respondent by s42 of the Freedom of Information Act 1982, read with s50 of the Extradition Act 1988.  As Moore J points out, both parties accepted that the concept of legal professional privilege embodied in s42(1) of the Freedom of Information Act is that developed by the common law, not that (called  “client legal privilege”) covered by Division 1 of Part 3.10 (ss117 to 126) of the Evidence Act 1995.  It seems to me this is correct.  That Division 1 is concerned only with the adduction of evidence in legal proceedings is inherent in the approach taken by the High Court of Australia in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 168 ALR 123.

3                     The common ground on this issue means that the only question of principle involved in the appeal is the reach of the words “proceedings or contemplated proceedings” in s50 of the Extradition Act.  Notwithstanding the appellant’s submission to the contrary, I agree with Moore J that these words do not extend to the issue of a notice under s16 of the Extradition Act or a decision of the Attorney General under s22.  I agree with the view expressed by Finn J in Pasini v Vanstone [1999] FCA 1271 at para 47 that, while communications between officials of the requesting State and officers of the Australian Attorney General’s Department regarding the issue of a s16 notice “might be characterised as having been made for the ultimate purpose of securing proceedings under s19, they should properly be characterised as communications made for the purpose of enlivening the Minister’s discretion under s16, and, as such, not made for the sole purpose of the contemplated proceedings”.  I would similarly describe any communications concerning the exercise of discretion under s22.

4                     Nothing in the Extradition Act compels a requesting State to use the services of officers of the Department of the Attorney General in connection with its application for an arrest warrant under s12 of the Extradition Act  or its participation in proceedings under s19 of the Act.  The requesting State could use private solicitors for those purposes, in which case there would plainly be a solicitor-client relationship that would attract common law legal professional privilege.  I think s50 of the Extradition Act was intended to put the requesting State in a no-worse position if it elected to use officers of the Attorney General’s Department for the same purposes.  But I see no reason to read s50 as extending to actions that a private solicitor could not take, such as the provision of advice to the Attorney General about the exercise of his or her functions under s16 or s22 of the Act.  That area is covered by the principles enunciated in Waterford v The Commonwealth of Australia (1987) 163 CLR 54. 

5                     There are reasons of principle for making this distinction.  I agree with Finn J that “Parliament would not have intended the Department’s officers to be cast in a solicitor-client relationship with Mexican” (or, I add, South African) “officials in respect of communications inter se relating to a prospective s16 decision with the consequential inconsistent duties to the Minister and to the Mexican officials this would entail”.

6                     It follows that I agree with the point made by Finn J, in para 49 of Pasini v Vanstone, about the “two distinct functions” of officers of the Attorney General Department - “one in aid of Mexico in relation at least to the s12 and s19 proceedings; the other in aid of the Attorney General in relation to the Minister’s s16 and … s22 functions”.  I agree with what his Honour goes on to say about the nature of that distinction.

7                     My only other comment is that I share the doubt expressed by Finn J, in para 50 of Pasini v Vanstone, about the appropriateness of the same officers serving both the Minister and the requesting State.  As Finn J says, the public is entitled to reassurance “that the integrity of the advisory function in the public sector does not appear to be compromised through an adviser in a given instance being in a position of conflicting responsibilities”.

Associate:

Dated:              20 October 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B J MCMAHON, DEPUTY PRESIDENT

REASONS FOR JUDGMENT

8                     SPENDER J:   I agree with the reasons for judgment of Moore J and the orders which his Honour proposes.

Associate:

Dated:              20 October 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B J MCMAHON, DEPUTY PRESIDENT

REASONS FOR JUDGMENT

MOORE J:

Introduction

9                     This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 4 May 2000 concerning the production of documents under the Freedom of Information Act 1982 (Cth) (“the FOI Act”).  The Tribunal set aside a decision of an officer of the Attorney-General’s Department not to release under the FOI Act certain documents to Mr Edward Dutton and remitted the matter with a direction that Mr Dutton was entitled to access to a considerable number of specified documents.  Mr Dutton, whose extradition is being sought by the Republic of South Africa, had originally sought copies “of the documents which you (Attorney-General’s Department) hold which constitute (my) file”.

Background

10                  It is unnecessary to detail the steps initially taken by the Attorney-General’s Department to deal with Mr Dutton’s request.  However by letter dated 4 November 1999 the effective decision concerning release of the requested documents was communicated to Mr Dutton by Ms M Jackson, then the First Assistant Secretary of the Criminal Law Division of the Department.  In the letter Ms Jackson identified documents which would be released and those that would not be released or released only in part.  She also identified the provisions of the FOI Act relied on in deciding not to release documents in whole or part, including s 42 which relates to documents attracting legal professional privilege.  As I will discuss shortly, the claim for legal professional privilege was underpinned by s 50 of the Extradition Act 1988 (Cth) (“the Extradition Act”).

11                  The request for access under the FOI Act arose against a background in which Mr Dutton had challenged, in various ways, steps taken under the Extradition Act to extradite him to South Africa.  The following account is drawn from the decision of the Tribunal which set out extracts of an affidavit of Ms Jackson detailing the litigation concerning Mr Dutton’s extradition.

12                  In 1995 the Republic of South Africa requested the provisional arrest of Mr Dutton for the purposes of extraditing him to South Africa (“the initial request”).  The initial request was governed by the Extradition Act and the Extradition (Commonwealth Countries) Regulations 1988 (Cth).  Mr Dutton was provisionally arrested in November 1995.  An extradition hearing under s 19 of the Extradition Act took place before Syme SM in November 1996.  On 29 November 1996 Syme SM ordered Mr Dutton’s release under s 19 after having found that he was not eligible to be returned to South Africa.  The Republic of South Africa then applied under s 21 for a review in this Court of Syme SM’s decision. 

13                  The application was heard by Hill J who gave judgment in relation to a number of preliminary issues in June 1997: Republic of South Africa v Dutton (1997) 77 FCR 128.  Mr Dutton sought leave to appeal to a Full Court.  In January 1998, the Republic of South Africa made another request for Mr Dutton’s extradition (“the second request”). On 21 January 1998 the Minister for Justice, Senator Amanda Vanstone, issued a notice under s 16 directing a magistrate to conduct a s 19 hearing for the purposes of determining Mr Dutton’s eligibility for surrender to South Africa.  At this time the application for leave to appeal to the Full Court of the Federal Court was still pending. 

14                  Because it had made the second request, the Republic of South Africa did not continue with its application before Hill J and, in due course, his Honour dismissed the application.  After the second request was received by the Commonwealth and following the issue of the s 16 notice referred to above, officers of the Attorney-General’s Department instructed the Commonwealth Director of Public Prosecutions (“the DPP”) to obtain an arrest warrant in respect of the applicant under s 12 of the Extradition Act.  The warrant was obtained and Mr Dutton was arrested on 17 February 1998.  Following his arrest Mr Dutton commenced further proceedings in this Court to prevent the second request from being acted on.  These proceedings came on for hearing before Madgwick J.  The proceedings were subsequently withdrawn with the consent of the parties. 

15                  Before the extradition hearing under s 19 was listed for hearing before a magistrate in the Local Court of New South Wales, Mr Dutton brought another application in this Court challenging the second request as an abuse of process.  The application came on for hearing in June 1998 before Burchett J.  His Honour gave judgment dismissing the application on 7 January 1999: Dutton v Republic of South Africa (1999) 84 FCR 291.  Mr Dutton did not appeal against the judgment of Burchett J.  However, in March 1999 Mr Dutton filed fresh proceedings in this Court challenging the second request as an abuse of process.  These proceedings were dismissed by Branson J on 23 April 1999: Dutton v Republic of South Africa (1999) 162 ALR 625.  Mr Dutton appealed against the judgment of Branson J.  A Full Court dismissed the appeal on 22 June 1999: Dutton v Republic of South Africa [1999] FCA 1016.  As a result of the various challenges in this Court the extradition hearing under s 19 was adjourned from time to time until after the Full Court dismissed Mr Dutton’s appeal on 22 June 1999.  On 29 June 1999 the extradition hearing under s 19 commenced before O’Shane SM of the Local Court in New South Wales.  The extradition hearing is presently part heard.

The legislative framework

16                  It is convenient first to refer to s 42 of the FOI Act which provides:

“(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).”

17                  It can be seen that a document which is privileged (because of legal professional privilege) is an exempt document.  Access need not be given to an exempt document: see ss 11(1)(a) and 18(2) of the FOI Act.

18                  In the present case the contentious documents are said to be exempt documents by operation of s 42 because they are privileged.  This claim depends, in part, on the scope of s 50 of the Extradition Act which provides:

“Where communications take place between officers of the Attorney-General’s Department, on behalf of Australia, and officers of an extradition country or New Zealand, on behalf of that country or New Zealand, in relation to any proceedings or contemplated proceedings for the surrender of a person, there shall be taken, for the purposes of this Act and any other Act, to be a relationship of solicitor and client between the officers of Australia and the officers of the extradition country or New Zealand in relation to those communications.”

19                  This section deems there to be a solicitor-client relationship between officers of (at least) the Attorney-General’s Department and officers of the country seeking extradition in relation to “any proceedings or contemplated proceedings”. 

20                  It is desirable to set out, in a summary way, the principal steps that can be taken to extradite a person under the Extradition Act.  First, a country seeking the extradition of a person applies to a magistrate for the arrest of that person, and the magistrate, if satisfied that the person is extraditable to that country, issues an arrest warrant: s 12.  Second, the person is arrested, brought before a magistrate, and remanded in custody or on bail as long as is necessary for proceedings under ss 18 and/or 19 to be conducted: s 15.  Third (though this may happen before the person is arrested or remanded), the Attorney-General, having received an extradition request from the country seeking the extradition, may issue a notice to a magistrate stating that the request has been received: s 16.  Fourth, a magistrate conducts proceedings to determine whether the person is eligible for surrender in relation to the offence(s) for which extradition is sought to the country seeking extradition: s 19.  And fifth, if the magistrate determines that the person is so eligible, the Attorney-General then determines whether the person is to be surrendered: s 22. The proceedings under s 19 are not necessary if the person voluntarily consents to being surrendered in which case the matter is dealt with under s 18 and the magistrate advises the Attorney-General of the offences in respect of which the person has consented to be surrendered.  If the Attorney-General determines that the person is to be surrendered, (after the steps in ss 18 or 19 have been taken) the Attorney-General issues a warrant for the person’s surrender to the country seeking extradition: s 23.

The Decision of the Tribunal

21                  In the affidavit of Ms Jackson before the Tribunal, there was not only a description of the events resulting from the request for the extradition of Mr Dutton but also an explanation of the grounds upon which the release of various classes of documents had been refused.  The documents were grouped into nine groups and Groups 1 to 4 were documents for which a claim of privilege was made under s 42.  The Tribunal had before it copies of the documents and also a schedule annexed to the affidavit of Ms Jackson identifying the relevant documents, a description of the documents and the grounds upon which release of each of the documents was resisted. 

22                  As these proceedings ultimately only concern documents in respect of which legal professional privilege was claimed, it is unnecessary to detail the approach taken by the Tribunal to other documents whose release was resisted on other grounds.  At the time the Tribunal considered the matter, there were 146 documents said to be exempted under s 42.  In its reasons the Tribunal observed that s 42 concerned legal professional privilege which was not, for the Tribunal’s purposes, to be treated as the same as client legal privilege arising under ss 117-126 of the Evidence Act 1995 (Cth).  The Tribunal went on to say that the relevant privilege was common law legal professional privilege where regard was had to the purpose for which the documents were brought into existence.  The Tribunal noted the approach of the majority of the High Court in Grant v Downs (1976) 135 CLR 674 that the sole purpose test was the applicable test.  It also noted the revision of this approach in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123 and that now the test is whether the documents contain communications made for the dominant purpose of obtaining legal advice or assistance, or for use in legal proceedings.  There has been no suggestion in these proceedings that the Tribunal erred in adopting this approach. 

23                  The Tribunal then discussed what had occurred in the attempts to secure Mr Dutton’s extradition and referred to the various steps contemplated by the Act. It then considered the effect of s 50.  It noted that there had been a division of opinion within the Tribunal in Re Stolpe and Department of Foreign Affairs (1985) 9 ALD 104 as to whether there had existed a relationship of solicitor and client between the Commonwealth Attorney-General and the Government of Spain in relation to the extradition of a Mr Stolpe.  It noted that since that decision s 50 had been enacted.  The Tribunal referred to the decision of Finn J in Pasini v Vanstone [1999] FCA 1271 in which the effect of s 50 had been considered.  The Tribunal noted that Finn J, though dealing with an application to set aside subpoenas, had discussed the operation of the section and had observed that not all communications that came into existence in the course of extradition proceedings, or proposed proceedings, would be subject to privilege claims.  The Tribunal set out pars 45-55 of His Honour’s reasons.  The Tribunal then considered the specific claims by reference to the documents in the various groups.

24                  The Commonwealth has, during the proceedings in this Court, either abandoned or waived the claim of privilege in relation to a number of the documents which the Tribunal concluded should be released.  Accordingly it is necessary to refer briefly to the treatment by the Tribunal of only the documents which remain contentious.  In Group 1 there are two such documents.  They were described by the Tribunal as communications to and from a Mr Helm in 1996.  The Tribunal noted that Mr Dutton asserted, and there was no evidence to the contrary, that Mr Helm was not in the employment of the South African Department of Justice at the time the documents were sent by Mr Helm. Documents sent by him were on the letterhead of Ernst & Young, Accountants, Johannesburg.  The Tribunal rejected the claim for legal professional privilege, apparently on the basis that Mr Helm was not an “officer of an extradition country” for the purposes of s 50.

25                  The Tribunal then dealt with Group 2 documents and noted that there were 38 such documents.  It also noted that these documents had been described by Ms Jackson as:

“Confidential internal communications within AGD or within Commonwealth DPP or between AGD and the Attorney-General’s Office created for the sole purpose of proceedings contemplated or contemplated proceedings for the surrender of the applicant under the Extradition Act 1988.”

26                  The Tribunal said it was unable to see how documents of this nature, consisting of mostly e-mails between various officers in the Attorney-General’s Department, can constitute communications in respect of which privilege can be claimed.  It noted that there was not a relationship of a solicitor and client between the various officers and referred to Re Proudfoot and Human Rights and Equal Opportunity Commission (1992) 16 AAR 411.  The Tribunal said the communications were administrative in nature and of the type Finn J had in mind in par 53 of his judgment in Pasini.  The Tribunal noted there was no evidence of a “Chinese wall” between the officers and that the documents simply showed the various officers were conferring between themselves by way of e-mail as to the best way to handle certain situations.  The Tribunal noted that one of the documents was clearly a submission to the Minister in which the question of whether the Minister should issue a s 16 notice was canvassed.  The Tribunal concluded there were only two documents in this group over which a claim of legal professional privilege could be maintained. 

27                  In relation to the 36 documents constituting Group 3, the Tribunal concluded there were only three documents for which a claim for legal professional privilege could be maintained.  Two of them, documents 21 and 22, were viewed by the Tribunal as being of the same nature as the documents in Group 2.  The Tribunal indicated that, while it accepted communications between officers of the Attorney-General’s Department and officers of the Commonwealth Director of Public Prosecutions (“the DPP”) were privileged, communications between officers of the Department as such, were not. 

Conclusions in the Appeal

28                  As noted earlier, the Commonwealth has abandoned or waived the claim of privilege in relation to a number of the documents. By the conclusion of the hearing of the appeal, privilege was claimed in relation to two documents in Group 1, 27 in Group 2 and two in Group 3. The documents in Group 2 were divided into three subgroups. The first contained 18 documents said to be confidential internal communications within the Attorney-General's Department, the second contained copies of confidential internal communications (eight documents) within the office of the DPP sent to the Department and the third contained one document, which was said to be a confidential communication between the Department and the office of the Attorney-General.

29                  Before considering the status of each document, it is desirable to deal with the scope of s 50. It refers to “communications … in relation to any proceedings or contemplated proceedings for the surrender of a person …”  Counsel for the Commonwealth submitted that the word “proceedings” comprehends all steps taken under Part II of the Extradition Act, commencing with s 12 and including the steps described in par 20 above. Reference was made to the following passage in the judgment of Gummow J in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 547:

In order to assess these submissions, it is appropriate first to refer to the various stages in extradition proceedings under the Act. In Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389, the Full Federal Court said:

“The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered …”

(Emphasis added.)

30                  It can be seen that both Gummow J and the Full Court used the word “proceedings” to describe the various steps in Part II, though plainly not in the context of considering the language and proper construction of s 50.

31                   The reach of s 50 is not as great, in my view, as suggested by the Commonwealth. It is clear that the investigation undertaken by the magistrate under s 19 are "proceedings". Not only is the investigation described as proceedings repeatedly in the section, but the word is apt to describe the process of investigation in any event. The issue of a warrant under s 12 and its execution is in aid of the proceedings under s 19 (or s 18). So much is apparent from s 15, which deals with the remand of a person (who has been arrested) in custody or on bail pending the conduct of the proceedings under s18 or s 19: see s 15(2). Thus the steps provided for in ss 12, 15 and 18 or 19 are steps which are proceedings or a necessary incident of them. It is relatively plain that, to the extent that officers of the Attorney-General's Department are involved in those steps and communicate with officers of the state seeking extradition, those communications are in relation to any proceedings or contemplated proceedings as that expression appears  in s 50.

32                  But what of the step contemplated by s 16? Unlike the steps referred to in the preceding paragraph, the function of the Attorney-General under that section, and the role of those advising him, is not in aid of the extradition request. Rather, it involves the Attorney-General acting as, in a sense, a contradictor to the claim of the requesting country. The Attorney-General must be satisfied about several matters, including whether there is an extradition objection in relation to the extradition offence: see s 16(2)(b). What is an extradition objection is dealt with in s 7 and there is an objection if, amongst other grounds, the extradition offence is a political offence (s 7(a)) or surrender is already sought for the purpose of prosecuting or punishing the person involved on account of his or her race, religion, nationality or political opinion (s 7(b)). It is difficult to view this process as being part of proceedings or contemplated proceedings for surrender initiated by the requesting country on whose behalf officers of the Attorney-General's Department might be acting in this deemed relationship of solicitor and client with the country requesting arising from s 50.

33                  This aspect of the function of the Attorney-General provides an important safeguard against the abuse of the extradition process by the country seeking extradition and involves the Attorney-General scrutinizing the request independently of the requesting country and, potentially, against the interests of that country.

34                  Several additional matters suggest that s 50 is not concerned with the duty of the Attorney-General arising under s 16. The first is that the legislature has, in s 50, fastened on legal professional privilege in relation to proceedings as the means of ensuring communications with the country seeking extradition remain confidential. Parliament did not simply declare that any communication concerning the extradition process was confidential. Thus it is appropriate to focus on processes analogous to legal proceedings in which officers of the Attorney-General’s Department might perform functions similar to that of a solicitor when representing the interests of the country seeking extradition. It should be noted that we are not concerned in this appeal with legal professional privilege arising between officers of the Attorney-General’s Department (providing legal advice) and the Attorney-General of the type discussed in Waterford v Commonwealth (1987) 163 CLR 54, as no claim of that type was made before the Tribunal. While raised at one point in this appeal, it was ultimately not pressed as it had not been raised earlier.

35                  Another relevant matter is the apparent purpose of s 50 evident from the explanatory memorandum for the 1987 Extradition Bill. It stated:

The clause implements the standard provision in extradition treaties which states that the requested State will represent, advise and assist the requesting State in relation to extradition requests.

36                  It can be seen that the section was intended to implement the standard provision in extradition treaties. A copy of such a clause was provided by counsel for the Commonwealth in this appeal. It reads:

The Requested State shall make all necessary arrangements for and meet the cost of any proceedings arising out of a request for extradition and shall otherwise represent the interest of the Requesting State.

37                  This clause speaks of “represent[ing] the interest of the Requesting State” and, as earlier discussed, that can be reasonably viewed as including the steps provided for in ss 12,15 and 18 or 19, but not the steps contemplated by s 16. In my opinion, the approach of Finn J in Pasini, referred to by the Tribunal, is correct. His Honour said (from par 47) (the country seeking extradition was Mexico):

Thirdly, there may well have been communications between Mexican officials and Attorney-General's Department officers in relation to the making of an extradition request so as to activate the discretion of the Attorney-General under s 16 of the Act.  Such communications would not, in my view, attract legal professional privilege.  While they might be characterised as having been made for the ultimate purpose of securing proceedings under s 19, they should properly be characterised as communications made for the purpose of enlivening the Minister's discretion under s 16 and, as such, not made for the sole purpose of the contemplated proceedings.  The Minister, I would note, has submitted that the various steps in the extradition process ought not be so fragmented:  s 16 related communications are merely a step on the way to, and derive their purpose from, contemplated s 19 proceedings.  The Minister's s 16 decision, in my view, should be seen as having its own function in the extradition process - and a function in which Parliament would not have intended the Department's officers to be cast in a solicitor-client relationship with Mexican officials in respect of communications inter se relating to a prospective s 16 decision with the consequential inconsistent duties to the Minister and to the Mexican officials this would entail …

It follows from what I have said so far that the Attorney-General's Department officials acting in the extradition process perform two distinct functions - one in aid of Mexico in relation at least to the s 12 and s 19 proceedings;  the other in aid of the Attorney-General in relation to the Minister's s 16 and, let it be said, s 22 functions.  In acting in the performance of each of these functions, the officers concerned are acting in furtherance of an interest that is in each case separate and distinct from the other.  In the solicitor-client relationship the officers concerned are acting in the interests of, and owe duties to, the Mexican officials.  In the officer-Minister relationship, the officers concerned are acting in aid of the Minister to further the relevant public interest and public purposes served by the statutory power conferred on the Attorney.  The respective interests so served I re-emphasise are separate, not common, interests.

I mention the above matter for the purpose of calling into question the appropriateness of the practice apparently adopted by the Attorney-General's Department in this case of having the same officers serving both the Minister and the Mexican officials (hence Mexico). There well may be good reason for not translating in an unmodified form to the public sector the common law's objection to a person serving "two masters" in the same or related matters - an objection affecting lawyers in the private sector with increasing stringency:  see eg Wan v McDonald (1992) 33 FCR 491;  Dal Pont, Lawyers' Professional Responsibility, Chs 8, 9.  Nonetheless the public still is entitled to appropriate reassurance that the integrity of the advisory function in the public sector does not appear to be compromised through an adviser in a given instance being in a position of conflicting responsibilities.

Furthermore, in a case such as the present, where the adviser obtains and makes communications in the performance of separate functions that give rise, potentially, to separate claims of privilege by the adviser's several "clients", it is important that there be practical segregation of documents embodying those communications so as to facilitate the precise identification of the documents to which a privilege claim can be made by one or other of the clients.  I would simply note that, in the present case, the affidavit that asserts the claim of legal professional privilege does not differentiate between documents that may be privileged in the s 50 solicitor-client relationship and those in the departmental officer-Minister relationship.  That differentiation is the more necessary for the reason that documents relating to the latter relationship are less likely to be proper subjects of a privilege claim for reasons to which I now turn.

38                  It should be noted that the role of the Attorney-General under s 23, and the status of communications concerning the exercise of the powers conferred by that section, does not directly arise in these proceedings. However, there appears little to distinguish, for present purposes, that role and the Attorney-General’s role under s 16.

39                  I now turn to consider the specific documents in contention. A summary of them appears in a schedule to this judgment. As to Group 1, I am satisfied those parts of documents 48 and 49 for which the claim of privilege is now maintained are privileged. It should be said that in relation to the documents in subgroup 1 of Group 2, there is no reason in principle why communications internal to the Attorney-General’s Department cannot be privileged. It is instructive to recall the well known passage from the judgment of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-6 concerning the circumstances in which legal professional privilege can arise:

Legal professional privilege extends to various classes of documents including the following:

(a)   Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant (1881) 17 Ch D 675; Smith v. Daniell (1874) LR 18 Eq 649; Bullivant v. Attorney-General for Victoria [1901] AC 196; Jones v. Great Central Railway Co. [1910] AC 4, and O'Rourke v. Darbishire [1920] AC 581.

(b)    Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick (1878) 3 QBD 315.

(c)    Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph (1827) 4 Russ 190; 38 ER 777.

(d)   Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co. (1869) LR 4 CP 602, at p 604; Greenough v. Gaskell (1833) 1 My & K 98, at p 102; 39 ER 618, at p 620; Corporation of Bristol v. Cox (1884) 26 Ch D 678, at pp 681-682; Woolley v. Pole (1863) 14 CBNS 538; 143 ER 556; Seabrook v. British Transport Commission [1959] 1 WLR 509; Grant v. Downs (1976) 135 CLR 674, and Bray, Principles and Practice of Discovery (1885) pp. 388-389.

(e)     Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant (1881) 17 Ch D 675; Laurenson v. Wellington City Corporation [1927] NZLR 510, and O'Sullivan v. Morton [1911] VLR 70.

(f)      Communications passing between the party and a third person (who is not the agent  of the solicitor to receive the communication from the party) if they are made  with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant (1881) 17 Ch D 675; Cork v. Union Steamship Co. (1904) 23 NZULR 933, and In Re Holloway (1887) 12 PD 167.

(g)    Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v. Lyell (1883) 23 Ch D 387 and Lyell v. Kennedy (No. 2) (1883) 9 AC 81.

40                  The circumstances referred to in par (c) are apt to describe  communications internal to the Attorney-General’s Department if they are in aid of arrest  or proceedings arising under s 18 or 19 but not if they concern the Attorney-General’s role under s 16.

41                  In the present case the internal communications constituting the first subgroup in Group 2 concern the arrest of Mr Dutton, the s 19 proceedings before the magistrate, an appeal from the decision of the magistrate or proceedings in this Court. They are privileged documents.

42                  Similarly, the documents in the second subgroup are, as copies in the hands of the Attorney-General’s Department, privileged communications concerning the s 19 proceedings and proceedings in this Court.

43                  There is one document in the third subgroup which raises different issues. It is a fax to the Attorney-General enclosing a copy of a letter. The letter is plainly privileged and I do not understand it has been suggested this privilege has been waived. The claim of privilege for the fax itself is not pressed. Accordingly, it should be released though not the correspondence that accompanied it.

44                  The two documents in Group 3 were created in November and December 1995. They do not directly concern the extradition request or the arrest of Mr Dutton. These do relate indirectly to the extradition of Mr Dutton and, in my opinion, fall within the expression “in relation to” proceedings for the extradition proceedings. They concern steps that might be taken as steps ancillary to the extradition proceedings and deal with legal issues that might be raised with the Republic of South Africa. They are privileged.

45                  For these reasons (and having regard to the concessions made by counsel for the Commonwealth during the hearing of the appeal) it is only the documents in the schedule to this judgment which are privileged.  Mr Dutton also cross appealed contending that four other documents were not privileged, namely documents numbered 11, 44, 51 and 52 in schedule B to the affidavit of Ms Jackson.  Mr Dutton was content for us to inspect the documents in order to form a view about their status.  They are, firstly, correspondence between an officer of the Attorney-General's Department and Interpol concerning the initial arrest of Mr Dutton in late 1995 and, secondly, correspondence with the DPP concerning the proceedings before Syme SM and his decision in November 1996.  The documents are privileged.  Accordingly the cross appeal should be dismissed.

46                  While the Commonwealth has had some success in this appeal, it has also abandoned, in response to questions from the Bench, a number of the issues it originally sought to raise. In these circumstances it is appropriate that no order be made as to costs.

Associate:

Dated:              20 October 2000

SCHEDULE OF CONTENTIOUS DOCUMENTS

Group 1

Group 2

Subgroup 1 — Confidential internal communications within the Attorney-Generals’ Department

Subgroup 2

 Subgroup 3

Group 3