FEDERAL COURT OF AUSTRALIA

 

Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252

Citation:		Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252
Parties:		CHARLES ZENTAI v THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL, BARBARA LANE and THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
File number:		WAD 220 of 2009
Judge:		MCKERRACHER J
Date of judgment:		19 March 2010
Catchwords:		LEGAL PROFESSIONAL PRIVILEGE - within the Attorney-General’s Department - advice concerning discretionary decision to surrender for extradition - whether the Attorney-General’s delegate is entitled to Legal Professional Privilege - whether disclosure of most, but not all, of the advice is unfair or inconsistent with a claim for legal professional privilege - whether legal professional privilege is waived
Legislation:		Director of Public Prosecutions Act 1983 (Cth) ss 5, 6(1), 6(2), 16 Extradition Act 1988 (Cth) ss 16, 19, 22, 23 Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1993 (Cth) ss 55E, 55F, 55G, 55ZF Extradition Treaty Between Australia and the Republic of Hungary 1997 Arts 2, 3 International Covenant on Civil and Political Rights 1966 Art 14
Cases cited:		Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd and Another (2009) 179 FCR 323 AWB Ltd v Cole (2006) 152 FCR 382 Baker v Campbell (1983) 153 CLR 52 Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101 Candacal Pty Ltd v Industry Research and Development Board (2005) 59 ATR 615 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 Dunesky v Elder (1992) 35 FCR 429 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445 Lane v Morrison (2009) 239 CLR 230 Mann v Carnell (1999) 201 CLR 1 New South Wales v Betfair Pty Ltd and Others (2009) 180 FCR 543 Osland v Secretary, Department of Justice (2008) 234 CLR 275 Rayney v AW [2009]WASCA 203 Rich v Harrington (2007) 245 ALR 106 Spassked Pty Ltd v Federal Commissioner of Taxation (No 4) (2002) 50 ATR 70 Waterford v Commonwealth (1987) 163 CLR 54 Zentai v Republic of Hungary [2008] FCA 1335 Zentai v Republic of Hungary [2009] FCA 284 Zentai v Republic of Hungary [2009] FCA 511 Zentai v Republic of Hungary (2009) 180 FCR 225 Zentai v Honourable Brendan O’Connor [2009] FCA 1597
Date of hearing:	5 March 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	145
Counsel for the Applicant:	MJ McCusker QC with PW Johnston
Solicitor for the Applicant:	Fiocco’s Lawyers
Counsel for the First and Second Respondents:	JD Allanson SC
Solicitor for the First and Second Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 220 of 2009

 

BETWEEN:

CHARLES ZENTAI Applicant

AND:	THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS First Respondent   COMMONWEALTH ATTORNEY-GENERAL Second Respondent   BARBARA LANE Third Respondent   THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON Fourth Respondent

 

JUDGE:	MCKERRACHER J
DATE OF ORDER:	19 MARCH 2010
WHERE MADE:	PERTH

 

THE COURT ORDERS THAT:

 

1.         Within 3 business days, if not sooner, the First and Second Respondents do comply with the Applicant’s Notice to Produce dated 17 December 2009.

2.         There be liberty to apply on short notice.

3.         The Applicant’s costs of the interlocutory hearing are to be paid by the First and Second Respondents, to be taxed or agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

 

 

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 220 of 2009

 

BETWEEN:

CHARLES ZENTAI Applicant

AND:	THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS First Respondent   COMMONWEALTH ATTORNEY-GENERAL Second Respondent   BARBARA LANE Third Respondent   THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON Fourth Respondent

 

JUDGE:	MCKERRACHER J
DATE:	19 march 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1                          The applicant (Mr Zentai) has been released from custody, having been committed to prison pending his surrender for extradition to the Republic of Hungary.  The proposed extradition relates to an alleged war crime which may have been committed in November 1944.  After exhausting the available challenges to rulings as to his eligibility for surrender, Mr Zentai now challenges the final Ministerial determination that he be surrendered.  He does so by way of an application for judicial review of the surrender determination.   He attacks, comprehensively, the process of reasoning (or lack of reasoning) supporting the determination.

2                          Mr Zentai has been provided with detailed material that was before the decision‑maker in relation to the determination but some of that material has been withheld. 

3                          Legal professional privilege is claimed by the first and second respondents (to whom I will refer as the Commonwealth).  The privilege is claimed in connection with certain redacted parts of a document entitled ‘Consideration of the Pre-conditions to Surrender and Grounds for Refusal of Surrender under the Extradition Act 1988’ (I will refer to this document as the Brief).  The Brief was prepared by lawyers within the Department of the second respondent (the Attorney-General) and given to the first respondent (the Minister) in relation to his decision concerning the surrender for extradition of Mr Zentai.  The Minister was acting as the delegate of the Attorney-General. 

4                          Although no written reasons were given by the Minister for his conclusion that Mr Zentai should be extradited (the Determination), the Brief itself is a comprehensive document (54 pages).  

5                          Mr Zentai contends that the portions redacted are not the subject of legal professional privilege.  Alternatively, he argues, that if there were any legal professional privilege, it has been waived.  On either basis, he argues the redacted portions should be disclosed.

6                          The particular material concerned (the redacted material) was the subject of a Notice to Produce relied upon by Mr Zentai.  By Notice of Objection to Production, immunity from disclosure of the redacted portion was claimed by the Commonwealth on the basis that disclosure would reveal communications protected by legal professional privilege. 

7                          No other form of privilege has been claimed by the Commonwealth. 

BACKGROUND

8                          On 8 July 2005, the former Minister for Justice and Customs (Minister for Justice) initially executed a Notice of Receipt of Extradition Request in relation to the extradition of Mr Zentai. 

9                          Material released pursuant to a Freedom of Information request made for Mr Zentai reveals (to the significant extent that disclosure has been made) that the Minister for Justice received the following information from the Attorney-General’s Department (the Department):

Zentai holds dual Australian and Hungarian citizenship.  He was born in Hungary on 8 October 1921.  He emigrated to Australia in the 1950s.

2.         Zentai is wanted in Hungary for prosecution for a war crime, violating to section 165 of Act IV of 1978 of the Hungarian Criminal Code in conjunction with section 11, paragraph 5 of Law-Decree No. 81/1945 (II.5) ME on People’s Jurisdiction enacted by Act VII of 1945, amended and complemented by Decree No. 1440/1945 (V.1.) ME.  The offence is described in the Hungarian extradition request as:

[a] person who seriously violated international legal rules applicable to war in respect of the treatment of the population of the occupied territories or prisoners of war, or treated the population of the reannexed territories barbarously, misusing the power granted to him, or who was an instigator, perpetrator or accomplice of the unlawful execution or torture of persons either in Hungary or abroad.

3.         The offence for which Zentai’s extradition is sought has retrospective application and is not subject to any statute of limitations.

4.         On 8 November 1944, it is alleged that Zentai, a reserve ensign in the Hungarian Royal Army, was patrolling in the territory of Budapest.  It is alleged that during the patrol Zentai arrested Peter Balazs, a man of Jewish origin, for not wearing a yellow star identifying him as Jewish.

5.         It is alleged that Zentai took Balazs to his army post.  At the army post it is alleged that Zentai and two accomplices, Captain Bela Mader, and First Lieutenant Lajos Nagy, assaulted Balazs in an office.  It is alleged that Balazs died from injuries caused by the assault. 

6.         It is also alleged that Zentai, and several fellow soldiers, took Balazs’s body from the army post and disposed of it in the Danube River.

7.         On 29 April 1948, an arrest warrant was issued against Zentai.  The Hungarian authorities were unable to locate Zentai and the file was closed in June 1948.  In 1948, Nagy was convicted of war crimes, including the murder of Balazs.

Prosecution in Australia under the War Crimes Act 1945

8.         On 11 November 2004, the Australian Federal Police (AFP) received a request from Israeli authorities for confirmation that Mr Zentai was a resident in Australia.  On 25 November 2004, the AFP responded to the request confirming that Zentai was a resident of Western Australia who acquired Australian citizenship on 29 May 1958.

9.         On 14 November 2004, the Director of the Simon Wiesenthal Centre, Dr Efraim Zuroff, referred an allegation of a war crime against Zentai to the Australian Embassy in Tel Aviv, Israel.

10.       On 14 December 2004, the AFP received the referral of this allegation from the Department of Foreign Affairs and Trade (DFAT).  On 17 January 2005, the AFP evaluated and accepted the referral for investigation.  On 2 March 2005, Zentai participated in a taped record of interview with the AFP.  Zentai made no comment in relation to the questions concerning the alleged offence.

…[not disclosed]

Hungarian extradition request

14.       The Hungarian authorities were informed in December 2004 that Zentai was residing in Australia.  Hungary reopened the criminal procedure and an arrest warrant was issued against Zentai on 3 March 2005 in Hungary.

15.       On 30 March 2005, the Hungarian authorities formally requested the extradition of Zentai from Australia.

16.       On 3 May 2005, [Section 42], the Department formally wrote to the Hungarian authorities requesting additional information required for the extradition request to meet the obligations of the Extradition Act and the Treaty on Extradition between Australia and the Republic of Hungary (the Treaty).  The Hungarian response was received on 8 June 2005.

…[not disclosed]

Relevant Law

19.       Section 16 of the Extradition Act empowers you to issue a notice to a magistrate stating that an extradition request has been received from an extradition country.  The notice confers jurisdiction upon the magistrate to conduct proceedings to determine whether the person is eligible for extradition.

20.       Subsection 16(2) of the Extradition Act provides that you shall not issue a notice unless you are satisfied that:

(a)        the person is an extraditable person in relation to an extradition country

(b)        if the alleged criminal conduct had taken place in Australia at the time the extradition request was received, it would have constituted an extradition offence in relation to Australia, and

(c)        there is no extradition objection in relation to the offence for which the person’s extradition is sought.

21.       In addition to the statutory criteria that must be addressed, you have a residual discretion to decline to issue a section 16 notice.

Comment

22.       The statutory preconditions for issue of a notice under subsection 16(2) of the Extradition Act, and the Department’s advice on whether they have been met is set out in Attachment B.

23.       The Department advise that:

 

·          Zentai is an extraditable person in relation to Hungary

·          the offence of which Zentai’s extradition is sought is an extradition offence

·          if Zentai’s conduct that comprised the offence for which extradition is sought had been committed in Australia at the time the request for his extradition was received from Hungary, it would have constituted an extradition offence in relation to Australia

·          there is no extradition objection in relation to the offence for which Zentai’s extradition is sought by Hungary (the Department advises that health and age are not extradition objections for the purpose of issuing a section 16 notice.  Health and age may be issues for your consideration at the section 22 stage)

·          there are no matters which would form a basis for you to decline to issue a section 16 notice in this matter, and

·          relevant treaty requirements have been met.

 

The Department considers that the statutory conditions have been met and recommends that you sign a notice under section 16(1) of the Extradition Act. (emphasis added).

STATUTORY FRAMEWORK

10                        Sections 16, 19, 22 and 23 of the Extradition Act 1988 (Cth) (the Act) relevantly provide, respectively:

16        Notice by Attorney General

 

(1)        Where the Attorney General receives an extradition request from an extradition country in relation to a person, the Attorney General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.

 

(2)        The Attorney General shall not give the notice:

(a)        unless the Attorney General is of the opinion:

(i)         that the person is an extraditable person in relation to the extradition country; and

(ii)        that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

(b)        if the Attorney General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

 

(3)        As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later:

(a)        a copy of the notice; and

(b)        copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);

shall be given to the person.

 

19        Determination of eligibility for surrender

(1)        Where:

(a)        …

(b)        the Attorney‑General has given a notice under subsection 16(1) in relation to the person;

(c)        an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d)        the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

…

(9)        Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a)        by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5);

(b)        inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and

(c)        record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney‑General.

22        Surrender determination by Attorney‑General

(1)        In this section:

eligible person means a person who has been committed to prison:

…

(b)        by order of a magistrate made under subsection 19(9) ...

qualifying extradition offence, in relation to an eligible person, means any extradition offence:

…

(b)        if paragraph (b) of the definition of eligible person applies—in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).

(2)        The Attorney‑General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.

(3)        For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:

(a)        the Attorney‑General is satisfied that there is no extradition objection in relation to the offence;

(b)        the Attorney‑General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;

(c)        where the offence is punishable by a penalty of death—by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:

(i)         the person will not be tried for the offence;

(ii)        if the person is tried for the offence, the death penalty will not be imposed on the person;

(iii)       if the death penalty is imposed on the person, it will not be carried out;

…

(e)        where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:

(i)         surrender of the person in relation to the offence shall be refused; or

(ii)        surrender of the person in relation to the offence may be refused;

in certain circumstances—the Attorney‑General is satisfied:

(iii)       where subparagraph (i) applies—that the circumstances do not exist; or

(iv)       where subparagraph (ii) applies—either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and

(f)        the Attorney‑General, in his or her discretion, considers that the person should be surrendered in relation to the offence.

…

23        Surrender warrants

Where the Attorney‑General determines under subsection 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney‑General shall, unless the Attorney‑General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section.

11                        There is a relevant treaty for extradition between Australia and Hungary.  Articles 2 and 3 of the Extradition Treaty Between Australia and the Republic of Hungary 1997 (the Treaty) relevantly provide:

ARTICLE 2

 

EXTRADITABLE OFFENCES

1.         For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty.  Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.

2.         For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:

(a)        it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;

(b)        the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.

3.         …

4.         …

5.         Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:

(a)        it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and

(b)        the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.

ARTICLE 3

 

EXCEPTIONS TO EXTRADITION

1.         Extradition shall not be granted in any of the following circumstances:

(a)        if the offence for which extradition is sought is a political offence.  Reference to a political offence shall not include:

(i)         an offence constituted by taking or endangering, attempting to take or endanger or participating in the taking or endangering of, the life of a person, being an offence committed in circumstances in which such conduct creates a collective danger, whether direct or indirect, to the lives of other persons;

(ii)        any offence in respect of which the Contracting States have assumed or will assume an obligation pursuant to an international agreement to which they are both Parties, to submit the case to their competent authorities for a decision as to prosecution if extradition is not granted; or

(iii)       an offence against the law relating to genocide;

(emphasis added)

 

(b)        if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality or political opinion or that that person’s position may be prejudiced for any of those reasons;

(c)        if the offence for which extradition is sought is an offence under military law, which is not an offence under the ordinary criminal law of the Contracting States;

(d)        if final judgement has been passed in the Requested State or in a third state in respect of the offence for which the person’s extradition is sought;

(e)        if the person whose extradition is sought has, according to the law of either Contracting State, become immune from prosecution or punishment by reason of lapse of time; or

(f)        if the person, on being extradited to the Requesting State, would be liable to be tried or sentenced in that State, by a court or tribunal:

(i)         that has been specially established for the purpose of trying the person’s case; or

(ii)        that is only occasionally, or under exceptional circumstances, authorised to try persons accused of the offence for which extradition is sought.

2.         Extradition may be refused in any of the following circumstances:

(a)        if the person whose extradition is sought is a national of the Requested State.  Where the Requested State refuses to extradite a national of that State it shall, if the other State so requests and the laws of the Requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been sought may be taken;

(b)        if the competent authorities of the Requested State have decided to refrain from prosecuting the person for the offence in respect of which extradition is sought;

(c)        if the offence with which the person sought is accused or convicted, or any other offence for which that person may be detained or tried in accordance with this Treaty, carries the death penalty under the law of the Requesting State unless that State undertakes that the death penalty will not be imposed or, if imposed, will not be carried out;

(d)        if the offence for which extradition is sought is regarded under the law of the Requested State as having been committed in whole or in part within that State;

(e)        if a prosecution in respect of the offence for which extradition is sought is pending in the Requested State against the person whose extradition is sought;

(f)        if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.

(emphasis added)

3.         This Article shall not affect any obligations which have been or shall in the future be assumed by the Contracting States under any multilateral Convention.

12                        Article 14 of the International Covenant on Civil and Political Rights 1966 (the ICCPR) provides:

Article 14

1.         All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2.         Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3.         In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a)        To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b)        To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c)        To be tried without undue delay;

(d)        To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e)        To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f)        To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g)        Not to be compelled to testify against himself or to confess guilt.

4.         …

5.         Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6.         …

7.         …

RELIEF SOUGHT AND GROUNDS OF REVIEW

13                        The primary relief now sought by Mr Zentai is review of the Determination of the Minister made on 12 November 2009 that Mr Zentai be surrendered for extradition to the Republic of Hungary pursuant to s 22 of the Act.  The application is made pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) together with s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth) (Judiciary Act).  Mr Zentai seeks a declaration that the Determination is invalid.  He also pursues consequential orders in the nature of certiorari, injunction and prohibition to quash the Determination, and orders restraining and prohibiting the Minister from implementing the Determination.   

14                        On 20 August 2008 Mr Zentai had been committed to prison to await surrender pursuant to s 19(9) of the Act.  On the same day, he was released on various conditions, including bail, pursuant to orders I made in Zentai v Republic of Hungary [2008] FCA 1335.

15                        Mr Zentai remained on bail until 31 March 2009 when Gilmour J dismissed Mr Zentai’s application (Zentai v Republic of Hungary [2009] FCA 284).  Nevertheless, Gilmour J ordered a stay of orders enabling Mr Zentai to pursue an appeal.  The appeal from the decision of Gilmour J was heard on 8 October 2009 by the Full Court which dismissed the appeal (Zentai v Republic of Hungary (2009) 180 FCR 225).  In the meantime, Mr Zentai was granted bail (on 12 May 2009) in Zentai v Republic of Hungary [2009] FCA 511. 

16                        Mr Zentai did not seek special leave to appeal to the High Court from the decision of the Full Federal Court.  On 22 October 2009 he presented himself to the Australian Federal Police (AFP) and was placed in custody at Hakea Prison in Western Australia. 

17                        On 4 December 2009, Mr Zentai filed this application for review, and on 16 December 2009 I made orders once again releasing him on bail (Zentai v Honourable Brendan O’Connor [2009] FCA 1597).

18                        It is necessary to say a little about the grounds of review as the content of the grounds of the primary relief bears upon considerations concerning the privilege claim.

19                        Mr Zentai contends that the Attorney-General acting through his delegate, the then Minister for Justice, erred in law and in fact and misdirected himself on a fundamental matter regarding whether Mr Zentai was ‘an extraditable person’ and made a jurisdictional error in both deciding to issue and issuing, pursuant to s 16 of the Act, a Notice of Receipt of Extradition Request on 8 July 2005. 

20                        The reason for this, it is said, is that according to information provided on 17 March 2009 by the leader of the Military Panel of the Budapest Municipal Court (Military Panel) and accepted as correct by the Hungarian Government, the extradition of Mr Zentai was sought only for the purposes of preliminary investigation about his involvement in an alleged war crime.  There is and has been no indictment before the Military Panel charging Mr Zentai with any offence. 

21                        Mr Zentai contends that as the proceedings in the Military Panel are investigative and preliminary and not at a more advanced stage involving the laying of any charge, he is not a person who is ‘accused’ (within the meaning of s 6(A) of the Act) of having committed the alleged offence of a war crime in relation to which the Republic of Hungary’s request for extradition was made.  Mr Zentai argues that the statutory requirement that an ‘extraditable person’ be ‘accused’ of a relevant extradition offence is not satisfied by expressions such as ‘wanted for prosecution’ or being ‘suspected of committing’ the relevant offence.  He contends that the s 16 notice was therefore unlawful and void.  It follows therefore, he argues, that the order made on 20 August 2008 by the third respondent (Western Australian State Magistrate, Barbara Lane), after conducting eligibility proceedings pursuant to s 19(9) of the Act, was beyond jurisdiction, unlawful and void.  Mr Zentai also claims that the Minister (as distinct from the Attorney-General) erred in law and in fact and misdirected himself on a fundamental matter in the same way. 

22                        From this, it is said that as Mr Zentai was not an extraditable person when the request for his extradition was made to the Australian Government, proceedings against him under the Act were and are contrary to the requirements of the Act and should not have been commenced. 

23                        There is a further contention that the Minister erred in law in determining that Mr Zentai was to be surrendered under s 22 of the Act in relation to a ‘qualifying extradition offence’ of war crime, as the alleged war crime was not an offence under Hungarian municipal law at the date when it is alleged the conduct constituting the offence occurred (8 November 1944). 

24                        Mr Zentai maintains that the Minister erred in law in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by Art 3 para 2(a) of the Treaty, he should refuse extradition having regard to the fact that Mr Zentai is a national of Australia and all other relevant factors.

25                        Mr Zentai asserts that the Minister erred in law in failing to conclude that Mr Zentai’s extradition would be unjust, oppressive and incompatible with humanitarian considerations as provided for in terms of Art 2 para 2(f) of the Treaty.  In relation to this argument, it is said that the Minister failed to satisfy himself as to the capacity of the Military Panel to provide procedures consistent with Australia and Hungary’s international obligations under Art 14 of the ICCPR to ensure a fair trial if the Military Panel were to charge and prosecute Mr Zentai for the offence of war crime.  It is said the Minister failed to take into account that the Republic of Hungary relies upon minutes and records of statements made in criminal proceedings before the Hungarian Peoples’ Court in 1946-1947 by the defendants and various witnesses in the trials of Captain Mader and Lieutenant Nagy.  Such statements by deceased persons will, it is said, apparently be the foundation on which any prosecution of Mr Zentai would be based.

26                        Those witnesses are said to be no longer alive or available for examination.

27                        The Minister, it is said, has given no adequate consideration to the fact that the Hungarian authorities have failed to give an assurance that statements recorded by the Peoples’ Court in 1946-1947 that were possibly ‘coerced by torture’ would not be produced as evidence in proceedings before the Military Panel.

28                        Extensive particulars are supplied in support of the contention that there could be no guarantee of a fair trial before the Military Panel.  This contention, though put in several ways, is at the heart of Mr Zentai’s complaint.  

29                        Several other grounds are advanced but the summary above suffices to gauge the relevance of the material in respect of which disclosure is sought. 

MR ZENTAI’S SUBMISSION TO THE MINISTER

30                        On 20 August 2009, Mr Zentai’s solicitors forwarded, by express post and email to officers within the Department, detailed submissions to the Minister in relation to s 22 of the Act.  The content of those submissions is also of some relevance to the determination of the privilege issue. 

31                        The preface to the submissions indicates that they were made in response to a request by the Department made on 1 April 2009 and amplified by a further letter of 22 April 2009 to enable the Minister, acting as delegate for the Attorney-General, to determine under s 22 of the Act ‘whether an Australian citizen resident in Western Australia, Mr Charles Zentai should be surrendered for extradition to the Republic of Hungary’ pursuant to the request of that country. 

32                        The purpose of the submissions was stated as being to advance grounds together with supporting materials to establish that the Minister on behalf of Australia was either obliged to refuse or should, in his discretion, refuse the request from the Republic of Hungary. 

33                        Significantly, it was said that in the main, the grounds for refusal were based on specific provisions of the Treaty.  Additionally, however, it was pointed out that the grounds include the preliminary issue of whether the request can be and should have been entertained.  According to information furnished to Mr Zentai, it was not directed initially with a view to his immediate prosecution and trial for an alleged offence of war crime against domestic Hungarian law.  Rather, it seemed that the request was ‘for the purpose of his interrogation about possible involvement in that offence’. 

34                        The submissions then canvassed, in considerable detail (some 26 further pages) contentions focussing on Art 2, para 5 of the Treaty and the question of whether the alleged offence of war crime having regard to its retroactive operation in Hungarian domestic criminal law qualified as an extraditable offence capable of founding the extradition request. 

35                        The submissions next focussed on Art 3, para (1)(f)(ii) requiring that extradition shall not be granted if the offence is triable by a court that is only occasionally or under exceptional circumstances authorised to try persons accused of the offence for which extradition is sought.  The contention raised was that the Military Panel in which proceedings for Mr Zentai’s trial would occur if he were tried, would fall within that description by virtue of its nature, composition and special jurisdiction with respect to war crimes. 

36                        The submissions then focussed on Art 3, para 2 which provided that extradition may be refused having regard to the circumstances of the case including the age, health and other personal circumstances of the person whose extradition is sought or whether the extradition of that person would be ‘unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment’. 

37                        There was a significant emphasis in the submissions on the unjust and oppressive nature of the proceedings in the Military Panel and the impossibility of the relevant procedures to afford Mr Zentai a fair trial consistently with human rights’ standards.  This was based, in the submissions in significant measure, on the inability of the Republic of Hungary to produce key prosecution witnesses for cross-examination. 

38                        Focus in the submissions also turned on the third aspect concerning Art 3, para 2 of the Treaty, namely, the severity of the mandatory sentence of imprisonment for 20 years under the Hungarian domestic criminal law having regard to Mr Zentai’s age and infirmity. 

39                        Mr Zentai’s solicitors also pointed to other factors as being relevant to the Minister’s consideration, including that Mr Zentai had lived openly and accessibly in Australia for over 59 years.

40                        Mr Zentai contended that while each of these objections provided grounds both individually and collectively justifying Australia’s refusal to surrender Mr Zentai for extradition, Australia’s potential violation of international human rights standards and particularly the ICCPR, it was said, should be considered as the most compelling.  The submissions focussed at some length on the provisions of Art 14 of the ICCPR including Art 14(1) which is to the effect that all persons should be equal before the Courts and Tribunals and be entitled to a fair and public hearing by a competent, independent and impartial Tribunal established by law; Art 14(2), dealing with the presumption of innocence; and, Art 14(3), protecting an entitlement to adequate time and facilities to prepare a defence and to communicate with counsel of one’s own choosing, to be tried without undue delay, to examine or have examined witnesses and to obtain the attendance and examination of witnesses on his behalf under the same conditions as opposing witnesses against him and not to be compelled to testify against himself or to confess guilt. 

41                        There was a detailed analysis of, and detailed submissions concerning, the apparent reliance by the Military Panel on depositions and statements made in the late 1940s by persons involved in proceedings before the Hungarian Peoples’ Court such that Mr Zentai was unable to confront his putative accusers in two respects.  The first was said to be that the history of the Peoples’ Court in Hungary was tainted by its political purposes and methods particularly with respect to its use of unlawfully obtained evidence such as coerced confessions.  It was said that such evidence as there was, was likely to have been corrupted by the notorious use of torture and coercion by the Security Police in procuring confessions. 

42                        The inability to cross-examine witnesses in circumstances where there were serious discrepancies and deficiencies even apparent on the face of the official records was a matter on which emphasis was also placed in the submissions. 

43                        It was submitted that the Australian Government should satisfy itself that the Military Panel should not have regard to incontestable hearsay evidence of witnesses whose truth could not be tested by cross-examination and in circumstances where the voluntary nature of the statements was questionable. 

44                        As a factual matter, Mr Zentai made the point that he was not in Budapest on the date in question but that attempts made on his behalf to locate the relevant archival documents which might corroborate his actual location had been unsuccessful.  He had been informed that such documents were probably destroyed in 1956.  He submitted that ‘Problems of this kind, which are endemic to events occurring 65 years ago in a zone of armed conflict, present formidable difficulties in according Mr Zentai a fair trial’.

45                        A number of alternative suggestions were advanced by Mr Zentai including a proposal to facilitate the Hungarian investigation being conducted in Australia with which Mr Zentai would cooperate. 

46                        Lengthy attachments were provided supporting various aspects of the submissions including submissions in relation to the nature of the ‘People’s Court’ which operated from 1945 to 1956. 

47                        The submissions were supplemented on 31 August 2009 following delivery of judgment by the High Court of Australia in Lane v Morrison (2009) 239 CLR 230.  The point was made, consistent with observations in that judgment that military judges would be considered independent if they were autonomous of their superiors in their judicial capacity notwithstanding the fact that they may remain subject to the hierarchical authority of their superiors in all but the administration of justice.  On the other hand, if in any way the Hungarian Military Panels were subject to influence of superior officers, it would entail a violation of Art 6 of the European Convention on Human Rights 1950 as to which remarks were made in the judgments of French CJ and Gummow J (at [12]-[13]). 

48                        In relation to this last point, Mr Zentai contended that he was (perhaps unsurprisingly) unable to provide specific information about the command structure operative in the Hungarian Military Court but maintained his contention that the Minister was obliged to satisfy himself on that count.

49                        Also submitted was an extensive analysis of the prosecution witness statements.

50                        As mentioned, by letter of 15 October 2009, Mr Zentai’s solicitors confirmed that they were instructed not to institute an application for special leave to appeal to the High Court from the judgment of the Full Federal Court delivered on 8 October 2009.  By a response on the following day, 16 October 2009, the Department explained that it considered the Minister was not entitled to make a s 22 determination until, in effect, time within which to pursue an application for special leave to appeal had expired and until Mr Zentai had been committed to prison pursuant to the Magistrate’s order.  Until these events occurred, the Department would not regard Mr Zentai as being a ‘eligible person’ within the meaning of s 22(1)(b) of the Act. 

51                        On 12 November 2009 the Department advised Mr Zentai’s solicitors that on that day the Minister had ‘determined under section 22 of the Extradition Act 1988 that [your client], Mr Charles Zentai should be extradited to Hungary’.  The Minister had issued a warrant under s 23 of the Act for Mr Zentai’s surrender. 

52                        The Department advised that Hungarian authorities had been requested to make arrangements to escort Mr Zentai from Australia as soon as possible and before 12 January 2010.  At that stage, Mr Zentai was in Hakea Prison in Western Australia. 

53                        In response on the same day, his solicitors requested that they be furnished forthwith with certain documents to enable them to institute judicial proceedings prohibiting the implementation of the Determination and to seek any necessary ancillary orders preventing Mr Zentai’s extradition and securing his release from prison.  They sought:

(a)        a copy of the Minister’s decision;

(b)        the Minister’s reasons for the decision;

(c)        all accompanying Departmental papers, correspondence and submissions provided to the Minister in relation to the decision;

(d)        submissions, documents and information provided by the Republic of Hungary to the Minister in relation to the decision;

(e)        any submissions, documents or information furnished by the Commonwealth Director of Public Prosecution relating to the decision; and

(f)        any other documents that the Minister took into account when making the decision.

54                        On 17 November 2009, confirmation was sought that the Minister had given no reasons for his Determination pursuant to s 22 of the Act.  As at that stage, Mr Zentai’s solicitors had still not received a copy of the Determination and of the warrant issued pursuant to s 23 of the Act. 

55                        The circumstances under which the redacted copy of the Brief was made available to Mr Zentai are then revealed in a letter from the Department to Mr Zentai’s solicitors dated 18 November 2009.

56                        In that letter, the Department, in response to the request for documents, noted that ‘the Department is not presently under any legal obligation to provide Mr Zentai with the documents requested’.  Nevertheless it enclosed a signed copy of the submission prepared by the Department for the Minister’s consideration in making the determination under s 22 of the Act whether or not to surrender Mr Zentai to Hungary.  The front page of the submission was signed by the Minister which recorded his determination made on 12 November 2009 that Mr Zentai should be surrendered to Hungary. 

57                        The letter noted that the Minister was not obliged under the Act or the Treaty to record in writing or provide reasons for the exercise of his executive discretion in relation to extradition matters.  As a matter of longstanding policy:

“… the Minister does not publicly disclose or provide detailed reasons for his decision.  The Minister arrived at this determination following careful consideration of the provisions of the Extradition Act and the Treaty and taking into account relevant representations and considerations including Mr Zentai’s age, health and other personal circumstances and relevant representations made on behalf of Mr Zentai about why he should not be surrendered (emphasis added).”

58                        The correspondence also enclosed attachments A-L, which had been included with the submissions, but not attachments D, F, G or J except JV1 as they had already been provided to or on behalf of Mr Zentai through his solicitors.  The Department also withheld attachment K which contained legal advice over which privilege was claimed and, advised similarly, ‘likewise, all references in attachment C to the content of this legal advice have been redacted on grounds of privilege’. 

59                        This correspondence also confirmed that the Commonwealth Director of Public Prosecutions (the CDPP) did not put before the Minister any submissions or documents for his consideration in making a s 22 determination.  References to the CDPP sourced information or advice contained in attachment C had been redacted where appropriate to protect claims of legal professional privilege. 

60                        The attachments with the Department’s communication were also extensive.  The first attachment is a memorandum from the First Assistant Secretary of the International Crime Cooperation Branch of the Department to the Minster.  It records, as indicated in the Department’s cover letter, very briefly, the Determination of the Minister.  It reads as follows:

CASEWORK-IN-CONFIDENCE

Sub No:            09/3540

File No:            09/26309

MINISTER FOR HOME AFFAIRS

Extradition to Hungary:  Charles (Kàroly) Zentai (formerly Steiner) – surrender determination under section 22 of the Extradition Act 1988 (Cth)

Deadline:  None, however subsection 22(2) of the Extradition Act 1988 (Cth) requires you to make your determination as soon as is reasonably practicable.  Mr Zentai was taken into custody on 22 October 2009 and has been in custody since that time.  It is desirable that you make your determination as soon as possible to minimise the time Mr Zentai spends in Australian custody. 

Key Issues:  In 2005 Hungary requested the extradition of Mr Charles Zentai to face prosecution for a war crime allegedly committed in Budapest during World War II.  On 8 July 2005, the then Minister for Justice and Customs Senator the Hon Christopher Ellison, issued a notice under section 16 of the Act receiving Hungary’s request and giving jurisdiction to a magistrate to conduct extradition proceedings.  Mr Zentai was arrested in Perth on that day.  He was granted conditional bail.  On 20 August 2008, a Western Australian magistrate determined Mr Zentai eligible for surrender to Hungary in relation to the war crimes offence.  This was affirmed on review by the Federal Court on 31 March 2009 and on appeal to the Full Federal Court on 8 October 2009.  The Full Federal Court ordered a stay of its orders for 14 days and Mr Zentai’s conditional bail continued.  Following expiration of the stay order on 22 October 2009, Mr Zentai was taken into and remains in custody.  It is no longer open to Mr Zentai to make an application to the High Court for special leave to appeal from the Full Federal Court’s decision as the statutory time period provided for in the Act expired on Friday 23 October 2009.  It is now a matter for you to determine under section 22 of the Act whether to surrender Mr Zentai to Hungary.  Mr Zentai has made representations for your consideration when determining whether he should be surrendered.  Representations have also been received from Mr Zentai’s son, Mr Ernie Steiner.  These representations are summarised and addressed in our analysis at Attachment C.  Finally significant correspondence has been received from the public raising matters both in support and in opposition to Zentai’s surrender which are reflected in our analysis at Attachment C.

AGD Analysis:  A person is only to be surrendered pursuant to section 22 of the Act if you are satisfied certain criteria are met and if in your discretion you consider that the person should be surrendered.  Our detailed advice on the statutory criteria is at Attachment C.  The Department considers that it is open to you to be satisfied that the requirements of section 22 for surrendering Mr Zentai to Hungary are met in this case.  The Department considers that none of the matters raised on behalf of Mr Zentai by his legal representations, son or supporters, taken singularly or collectively, warrant the exercise of your discretion to refuse surrender.  The Department is not aware of any other reason for you to exercise your general discretion not to surrender Mr Zentai to Hungary.

Financial Implications:  None.

Recommendation:  I recommend that:

(i)         you read the advice at Attachment C and determine under section 22(2) of the Act that Charles Zentai is to be surrendered to the Republic of Hungary; and

Approved/Not Approve/Discuss

(ii)        if you agree to (i), that you sign and date the warrant at Attachment A under section 23 of the Act for the surrender of Charles Zentai to the Republic of Hungary for the extradition offence stated in the warrant.

Signed/Not Signed/Discuss

[signature] …………………………………...	[signature] ………………………………..
Maggie Jackson First Assistant Secretary International Crime Cooperation Branch (02) 6141 3275           6  /11/  2009	Minister for Home Affairs   Action Officer: Jessica Robinson, (02) 6141 3304        /      / 2009

61                        On the current state of the evidence, there can be little doubt that the Department recommended to the Minister - on the basis of the advice in the Brief - that Mr Zentai was to be surrendered to the Republic of Hungary. 

62                        The sentence:

I recommend that:

(i)         you read the advice at Attachment C and determine under section 22(2) of the Act that Charles Zentai is to be surrendered to the Republic of Hungary …

appears, at least for present purposes in this debate, to make it plain that it was recommended that the Minister act on the advice contained in the Brief and determine that Mr Zentai was to be surrendered.  The Minister has circled the word ‘approved’ amongst the options ‘approved/not approved/discuss’.

63                        The Minister’s signature also appears under the second recommendation which reads:

If you agree to (i), [I recommend that] you sign and date the warrant at Attachment A under section 23 of the Act for the surrender of Charles Zentai to the Republic of Hungary for the extradition offence stated in the warrant. 

Below that, again, the Minister has circled the word ‘signed’ rather than ‘not signed’ or ‘discuss’.  The Minister’s signature appears below the circled word ‘signed’. 

64                        From all of this, it is a reasonable inference that the Minister in making the Determination, as recommended, acted on the advice in the Brief in accordance with the recommendation to him.  That this must be so is evident from the content of the Brief which I will soon discuss.

65                        Before turning to the Brief, one other exchange may be noted.  By letter of 19 November 2009 to the Department, Mr Zentai’s solicitors also confirmed advice received telephonically that the Minister was not obliged to record in writing or to provide reasons for the exercise of his executive discretion in relation to extradition matters and ‘that it is a matter of long standing policy that the Minister does not publicly disclose or provide detailed reasons for his decision’.  The letter continued to observe that having regard to the detailed terms of s 22(3) of the Act, particularly para (e), relating to specific matters and conditions arising under the Treaty about which the Minister must be satisfied, taken together with the drastic consequences for persons affected by the Minister’s decision to extradite, that there was an implied duty for the Minister to provide a statement of relevant findings and his reasons for determining that Mr Zentai should be surrendered for extradition.  A request for the statement of the Minister’s findings and reasons in relation to Mr Zentai was sought as a matter or urgency.  The request was made whether or not the Minister maintained that he was under no obligation to provide such material.

66                        The response to that correspondence was to this effect:

I refer to your letter to Ms Susanna Ford dated 19 November 2009 requesting the Minister for Home Affairs to provide a statement of his findings and reasons concerning his determination that Mr Zentai be surrendered to Hungary.

The Department has provided you with a copy of the submission that was before the Minister for the purposes of his determination under section 22 of the Extradition Act 1988 (Cth) and which records his determination. 

As we have previously indicated, the Minister is not obliged under the Extradition Act or the Treaty on Extradition Between Australia and Hungary to record in writing or provide reasons for the exercise of his executive discretion in extradition matters.  In these circumstances the Department does not consider it appropriate to request the Minister to provide a statement of findings and reasons.

PURPOSE AND CONTENT OF THE BRIEF

67                        It is then necessary to consider the contents of the Brief in order to understand what was before the Minister and to determine the issues raised in connection with the claim for legal professional privilege for the redacted material and the assertion that the privilege, if any, has been waived. 

68                        In this regard, Mr Zentai contends that the Brief, including the redacted materials, is not so much legal advice given from a legal practitioner to a client but, rather, the Attorney-General’s own Department informing the Attorney-General’s delegate (the Minister) of the history, background and reasons for the recommendation that the Minister determine that Mr Zentai be surrendered.  Of course, ultimately the decision in that regard was always to be that of the Minister (as the Attorney-General’s delegate), and not the Department. 

69                        The Brief, redacted or otherwise, is in my view almost entirely legal advice.  It commences with advice on what constitutes an eligible purpose for the purpose of s 22 of the Act.  There is then advice as to what constitutes an extradition offence and what is a qualifying extradition offence.  It points out that the Minister must be satisfied that there is no extradition objection in relation to the offence for which the extradition of Mr Zentai is sought (s 22(3)(a)).  Detailed advice is then given on what is an extradition objection.  In the course of this advice, the extradition objections alluded to and relied upon by Mr Zentai in his submissions in connection with the Determination are all analysed and rejected. 

70                        The entire 54 pages of the Brief constitutes advice of a legal nature in support of a submission from the Department that the Attorney-General (or his delegate, the Minister) may determine that Mr Zentai be surrendered in accordance with s 22(2) of the Act.  Amongst those 54 pages, the only portions that have been redacted (and as I perceive it consistently), are summaries of two previous relevant advices which I will identify.

71                        To explain the function of the Brief and more particularly its antecedent advices which are the subject of the redacted material, the Commonwealth relies upon two affidavits of its officers.  In an affidavit by Ms Shannon Cuthbertson, acting Assistant Secretary, International Crime Cooperation Central Authority, International Crime Cooperation Division, Attorney-Generals Department in Canberra, Ms Cuthbertson explains that the Principal Legal Officer in that Division at the Department in charge of the extradition request from Hungary for Mr Zentai is Ms Lisa Wyman. 

72                        On Thursday, 10 September 2009, the Extradition Unit of that authority within the Department requested advice from the Office of International Law of the Department (OIL).  OIL is another division within the Civil Justice and Legal Services Group of the Department.  Its functions include providing legal advice on issues involving international law.  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 pursuant to the Legal Services Directions 2005 made pursuant to s 55ZF of the Judiciary Act.  The advice was formally requested in an email sent on 10 September 2009 from Ms Wyman to Dr Sarah McCosker, Senior Legal Officer, OIL.  The email was sent after a brief discussion between Ms Wyman and Dr McCosker.  Privilege is claimed in relation to the requests for advice. 

73                        The request to OIL was for legal advice in relation to matters raised on behalf of Mr Zentai in representations made for Mr Zentai to the Minister.  The representations were made for the purposes of the Determination under s 22 of the Act as to whether or not Mr Zentai should be surrendered to the Republic of Hungary.  The advice from OIL was given on 5 November 2009 in the form of a letter on the letterhead of OIL marked ‘In-Confidence’.  It is addressed to Ms Wyman as Director of the Extradition Unit and signed by Dr McCosker.  Dr McCosker is a lawyer employed as a Senior Legal Officer with OIL within the Department. 

74                        Ms Cuthbertson notes that the Brief includes (at the redacted para 202) a summary of the request for advice.  A summary of the advice appears at redacted paras 84, 202, 203, 205, 291 and 295. 

75                        Additionally, the records within the Department indicate that on 29 June 2005, the AFP provided the Department with a copy of an advice dated 4 March 2005 from the Office of the CDPP to the AFP.  Legal professional privilege is claimed by the Attorney-General with respect to that advice.  The advice contained in the communication from CDPP to the AFP is said to be summarised at the redacted para 116 of the Brief. 

76                        In addition to the affidavit of Ms Cuthbertson, the Commonwealth relies on an affidavit of Mr Stephen Paynter who is a sworn member of the AFP holding the title of Federal Agent.  In January 2005, in the operations area of the Perth Office of the AFP, he was allocated an investigation pertaining to Mr Zentai. 

77                        On 31 January 2005, the AFP sought advice from the CDPP by a letter of that date addressed to Mr Martyn Plummer of the CDPP.  Legal professional privilege is claimed for the letter requesting advice but it is stated that the purpose of the request was to ask that a Case Officer from the CDPP be assigned to the matter and for the AFP to obtain advice. 

78                        Mr Paynter says that the redacted paras 112 and 115 of the Brief summarise the advice which was sought. 

79                        On 4 March 2005, the CDPP provided advice.  It is in the form of a letter of that date on letterhead of the CDPP.  It is signed for the Deputy Director by a Legal Officer and addressed to the General Manager of the AFP.  Legal professional privilege is claimed by the AFP for that advice.  What appears in the redacted para 116 of the Brief is a summary of that advice.  In each instance when that advice was given, it was given by a legal practitioner duly admitted to practice. 

THE PURPOSE OF THE REDACTED MATERIAL

80                        It is necessary to examine the context of the redacted material within the Brief to identify its purpose.  Although I have also had the benefit of examining the un-redacted portions, I do not, at least at this stage, propose describing them in detail as to do so would defeat the purpose of the claim for privilege.  Insofar as the OIL advice is concerned, the first redacted material is in para 84 which follows a paragraph dealing with Hungary’s response in relation to the Military Panel which was in these terms:

·    The Military Panel of the Metropolitan Court is a regularly constituted and permanent court within the Hungarian court system.

·    The Military Panel of the Metropolitan Court operates consistently with normal judicial procedures in that it complies with the Hungarian Criminal Procedure Code and is subject to appeal as other courts exercising criminal jurisdiction in Hungary.

·    The Military Panel does not apply special or exceptional procedures by virtue of it being a military panel with jurisdiction to try Zentai for a war crimes offence.

·    The Hungarian Criminal Procedure Code applied by the Military Panel of the Metropolitan Court is consistent with the international law standards set out in the ICCPR and ECHR.

·    The Military Panel is not authorised to proceed according to exceptional procedures that do not meet internationally accepted standards.

·    The Military judges are legally qualified professional officers and are autonomous of their superiors in a judicial capacity.  Their impartiality and integrity is not questioned. 

81                        It contains a little under four lines before a sentence which reads ‘an analysis of fair trial considerations, including Zentai’s representations regarding the capacity of Hungary to afford him a fair trial is at paragraphs 189-214 and 287-295 below’.  That section is headed ‘The Capacity of the Military Division to Provide a Fair Trial Consistent with International Human Rights Standards’.  Within this section is the passage in paras 202, 203 and 205 which, as the submissions from the Commonwealth correctly state but might not otherwise be directly ascertainable, do summarise the advice set out in detail in those paragraphs.  The Commonwealth complains that disclosure of paras 202, 203 and 205 would reveal the content of legal advice.  I can confirm that this submission is correct.  Those paragraphs do set out legal advice from OIL which has been, in turn, summarised in the obscured parts of the Brief in paras 84, 291 and 295.

82                        As to the CDPP advice, the submissions from the Commonwealth are that disclosure of para 112 (in part) and para 115 would reveal the instructions given to the CDPP whereas disclosure of para 116 would reveal the advice given and disclosure of para 117 and the obscured parts of paras 119, 126 and 316 would reveal the knowledge or belief of the recipient of a privileged communication derived from that communication.

83                        I can also confirm that the obliterated portion of para 112 does set out a summary of the advice sought from the CDPP.  Paragraph 115 and para 116 also clearly contain a summary of the advice given by the CDPP to the AFP but as the revealed portion in para 118 indicates, the CDPP had not reached a state at which a positive informed decision to refrain from prosecuting or to decide to prosecute could be advised.  The revealed portion at para 118 indicates that AFP investigations into the allegation were in only preliminary stages and had not sufficiently progressed so as to allow an informed decision by the prosecutors whether to proceed or to refrain from prosecuting Mr Zentai in Australia.  Therefore, the ground of refusal in Art 3(2)(b) of the Treaty did not arise. 

84                        The first sentence in para 119 which has been obliterated does touch on the same advice from the CDPP to the AFP but also contains internal advice within the Department.  There is a composite nature in the fifth sentence in para 119 which is also redacted.  It refers in very summary format to the CDPP advice but also comments on the significance or otherwise of the CDPP advice.  The redacted portion at para 126 goes a little further but accords with a portion of that which was redacted in para 116 in indicating the nature of the instructions from the AFP to the CDPP.  The content at para 316, where the last sentence of that paragraph was redacted, again, is of a composite nature.  It both reflects the advice given by the CDPP and how that advice should be characterised. 

85                        In relation to the CDPP, all of the passages which have been redacted either reflect the initial advice from the CDPP and/or go on to give advice as to the status which the CDPP advice should be accorded in relation to the Treaty provisions under analysis within the Brief.

86                        It is common ground that the Court should examine the document with a view to drawing from the redacted content taken in context, the dominant purpose for which the advices were provided and incorporated in the Brief.  Mr Zentai says that if the dominant purpose was to enable the making of the surrender determination under s 22 of the Act, this is an evaluative and discretionary process not a decision following the seeking and providing of legal advice in relation to legal proceedings or otherwise. 

87                        For the Commonwealth, it is contended that the redacted portions make it perfectly clear, when they are examined, that the materials redacted summarise legal advice given by the OIL and the CDPP. 

88                        It is obvious from the un-redacted version of the Brief that the CDPP advice related to the question of whether a prosecution should ensue in Australia.  It is obvious from the un‑redacted version of the advice that the OIL advice related to the question of whether or not the Military Panel was capable of affording Mr Zentai a fair trial.  In the case of the CDPP advice, it is equally obvious that no prosecution of Mr Zentai in Australia did ensue.  On the OIL advice, it is equally obvious that the OIL has advised that there is no reason to believe that a fair trial cannot be conducted by the Military Panel.  What is not disclosed, however, in each reason is the reasoning for the respective conclusions.

89                        As to the actual content of the redacted paragraphs, Mr Zentai accepts that in these proceedings, it is not appropriate that the redacted portions be revealed in order to enable Mr Zentai’s counsel to advance an argument as to whether or not they should attract privilege (see Rayney v AW [2009] WASCA 203 (at [36] and [40]) per McLure JA as her Honour then was with whom Buss and Newnes JJA agreed).

THE NATURE OF LEGAL PROFESSIONAL PRIVILEGE

90                        There is no doubt or debate that the confidentiality of legal advice or instructions transmitted in the course of client/lawyer relationships should be maintained in order to protect and secure access to legal advice (Baker v Campbell (1983) 153 CLR 52 per Gibbs CJ at 66).

91                        It is well established that a communication for the dominant purpose of obtaining legal advice or obtaining or providing legal services will attract privilege (Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49at [61]).  Privilege will also extend to documents that record confidential legal advice or confidential legal work and to any document prepared by the lawyer or client from which there might be inferred the nature of the advice sought or given.  Instructions given to the lawyer are also privileged as well as the advice of the lawyer.

92                        The relevant test is ‘anchored to the purpose for which the document was brought into existence’ (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 508 per Brennan J.

93                        The precise issue under consideration is to be governed by the common law rather than by Pt 3.10 of the Evidence Act 1995 (Cth):  Esso at 59-63 and Mann v Carnell (1999) 201 CLR 1 at [27]. 

94                        The concept of legal advice is reasonably wide and it extends to professional advice given as to what a party should prudently or sensibly do in the relevant legal context:  DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 (at [25]-[71]).  The Commonwealth contends that the redacted passages are self-evidently confidential communications recording and summarising instructions given to government legal advisors, together with advice provided, and to a more limited extent the knowledge or belief of the Department directly derived from that advice. 

95                        The Brief, while containing a great deal of legal advice itself, also records both legal advice and instructions seeking legal advice.  Insofar as the redacted secondary records are concerned, there is no doubt (in principle) that legal professional privilege may be claimed.  This has been expressed in many ways, as the authorities discussed by Young J in AWB Ltd v Cole (2006) 152 FCR 382 (at [127]-[131]) reveal:

Recording legal advice

[127]    As an adjunct to the first limb of the privilege, protection against disclosure has been extended to documents that record confidential legal advice or confidential legal work. Examples commonly given include legal research memoranda, draft pleadings, summaries of argument and draft agreements: see Daniels at [44] per McHugh J; Propend at 550 per McHugh J and at 569 per Gummow J; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 496 per Dawson J; Trade Practices Commission v Sterling at 246 per Lockhart J; Mostyn v West Mostyn Coal and Iron Co Ltd (1876) 34 LT 531; and Packer v Deputy Commissioner of Taxation (Qld) [1984] 1 Qd R 275 at 284-285.

[128]    Anderson J explained the scope of this protection and the reasons for it in Dalleagles (at 333-334):

What is protected, of course, is that which is communicated between solicitor and client. It is the communication that is privileged. But this is not to say that material that is not literally a communication or manifestly the record of a communication is never protected. There are many instances of protection being extended to such material. The examples of the draft letter that never leaves the solicitor's office, the draft agreement and the draft statement of claim have already been referred to. The reason why such material is protected is often stated to be that disclosure of it will, or will tend to, reveal the privileged communication: see Attorney-General (NT) v Maurice, per Dawson J (at 496). Thus a note made by a solicitor of a conference with his client will be privileged in so far as it is a record of the communication from the client (that communication being privileged) but also in so far as it might contain notes of the solicitor's own thoughts in regard to the matters communicated to him. Protection is afforded in the latter case on the ground that disclosure of that material might tend to reveal what had been communicated to the solicitor. There is much in the cases to support the view that this is the true basis upon which draft agreements, draft letters, draft pleadings and the like have long been accepted as privileged; that it is not so much because they are themselves "advice" or "communication" but because they will, if disclosed, reveal, or tend to reveal, the content of privileged communications. Material created by the solicitor in fulfilment of his engagement "is the result of the solicitor's mind working upon and acting as professional adviser with reference to" material communicated to him confidentially in his professional capacity (Kennedy v Lyell [1883] 23 Ch D 387 at 407) and, as such, will by its very nature tend to reveal the content of the communication in response to which it had been prepared.

Of course, there are limits and these have often been stated. The material must have been created solely for the purpose of fulfilling the engagement. The material must be confidential. No protection can extend to agreements in their final form intended to constitute the actual transaction between the parties or to records made for the purpose of evidencing an actual transaction, or to letters sent or to forms lodged at public offices or to pleadings filed in courts. This is because legal professional privilege exists to secure confidentiality and such material is no longer confidential.

[129]    Gummow J proffered a similar explanation in Propend (at 569):

It also is significant, as Beaumont J emphasised in the present case that the privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given. Examples include communications between the various legal advisers of the client, draft pleadings, draft correspondence with the client or the other party, and bills of costs.

This identification of the privilege with communications, rather than merely with documents, is important for the first issue on the grant of special leave.

[130]    This line of authorities was canvassed by Allsop J in DSE, and I have gained assistance from several of the cases he discusses. In Bank of Nova Scotia v Hellenic Mutual War Risks Assn (Bermuda) Ltd [1992] 2 Lloyd's Rep 540 (The Good Luck), Saville J said (at 540):

In my view if a lawyer-client communication falls within the principles set out in Lord Justice Taylor's judgment (that is to say, is covered by legal professional privilege) then internal documents or parts of documents of the client (or indeed the lawyer) reproducing or otherwise revealing those communications are also covered by the same privilege, whatever the purpose or motive (short of fraud) for which the document comes into existence. The principle justifying legal professional privilege is (as Lord Justice Taylor pointed out) that a client should be able to obtain legal advice in confidence.

See also Hellenic Mutual War Risks Assn (Bermuda) Ltd v Harrison [1997] 1 Lloyd's Rep 160 at 171 (The Sagheera).

[131]    In Wenkart, Branson J said that legal professional privilege extends to any document prepared either by the client or the legal adviser from which the nature of the advice sought, or given, might be inferred (eg a draft pleading, a solicitor's draft letter to the other side, or a bill of costs): see Williams NJ, "Four Questions of Privilege: the Litigation Aspects of Legal Professional Privilege", Civil Justice Quarterly, Vol 9, No 139, 1990, at p 142; and Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 236-237 per Beaumont J.

96                        Mr Zentai argues that the Minister’s function is essentially administrative and not judicial in nature although it must be performed in a manner which conforms to the requirements of natural justice and procedural fairness. 

97                        It is argued that the context of the Brief suggests that the advice of the CDPP and OIL were directed to addressing specific issues presented for the Attorney-General’s consideration by various submissions raised on behalf of Mr Zentai.  Such considerations cannot, it is submitted, raise any legitimate personal interest in not having the contents of the redacted materials disclosed.  Equally, as the Commonwealth has not sought to invoke public interest immunity, the interests of the Republic of Hungary cannot be a basis for non-disclosure of the redacted portions. 

98                        Of particular significance in Mr Zentai’s written submissions is that the administrative process entailed in making the Determination should not, therefore, be assimilated with any legal proceedings of the kind which would otherwise attract the automatic application of legal professional privilege to the advice included in the Brief which was initially provided by OIL and the CDPP.  This is notwithstanding the fact that legal proceedings being brought by Mr Zentai might have been anticipated in the event of a decision unfavourable to him. 

99                        Legal advice such as any provided by the Australian Government Solicitor (AGS) or the CDPP relating to legal proceedings in which other Commonwealth officers, statutory authorities or departments might be engaged is generally capable of attracting professional privilege.  As with in-house corporate counsel, this will be subject to the Government legal advisor acting in an independent and professional manner rather than in pursuit of any extraneous or improper purpose.  Again, this is subject to the caveat that, in the case of the CDPP for example, the Director must be providing legal advice rather than engaging in matters of administrative process. 

100                      An important consideration is that there must be a client and legal advisor relationship for the privilege to apply.  Mr Zentai contends that legal professional privilege is not applicable where, as in the present case, the Attorney-General is being provided with legal advice by a Commonwealth departmental officer such as the OIL which is in a direct relationship with him and which advice is provided only for the purpose of assisting him to lawfully discharge his public function and duty.  Mr Zentai contends that the redacted material was not advice given independently at arms length.

101                      In essence, Mr Zentai argues that the communications are constructively attributable to the Attorney-General as ‘his own advice’ and as such do not qualify within the lawyer/client relationship as being entitled to legal professional privilege.  This is in contrast, it is said, with the situations in the cases relied upon by the Commonwealth where officers, for example, of the AGS advise other Commonwealth government departments at arms length.  In cases where the internal advice is to the Attorney-General for the purpose of s 22 of the Act (or the Minister as his delegate), it is argued that that departmental advice is effectively internal and there is no ‘client’. 

102                      As to the legal advice provided by OIL within the Attorney-General’s Department Mr Zentai contends that this advice is in essence simply the Attorney-General informing himself as the material emanates from within his own Department and is provided to him.  In those circumstances, it is said, there can be no lawyer/client relationship necessary to attract legal professional privilege. 

103                      As to the legal advice from or instructions to the CDPP, Mr Zentai says that even if this information was originally privileged as to which there is no evidence, there is no evidence that the release of that advice to the Attorney-General who is now claiming the privilege was subject to any claim for legal professional privilege, and if it was subject to privilege, it was the privilege of the AFP, not the privilege of the Attorney-General.

104                      In the case of OIL, the Commonwealth, however, points to the fact that the Legal Services Directions made under Pt VIIC of the Judiciary Act specify certain types of legal work as ‘tied work’.  Public international law work including advice involving Australia’s or another country’s obligations under international law is included under the description of ‘tied work’.  OIL has a specific role when such issues arise.  In particular, in relation to paras 84, 291 and 295, there is a summary of the advice which has been set out in detail in paras 202, 203 and 205.  The Commonwealth complains that disclosure of those paragraphs or parts of paragraphs would reveal the content of legal advice.  Similarly, para 202 also summarises the instructions seeking advice. 

105                      A central plank to the Commonwealth’s claim for legal professional privilege is that advice obtained from Commonwealth legal advisors, whether they be in the Department or the CDPP attracts legal professional privilege. 

106                      In relation to lawyers within the Department, the position is covered by ss 55E-55G of the Judiciary Act which provides as follows:

55E     Attorney-General’s lawyers

(1)        In this section and in sections 55F and 55G:

Attorney-General’s lawyer means a person:

(a)        whose name is on a roll referred to in subsection 55D(1); and

(b)        who is either:

(i)         the Secretary to the Attorney-General’s Department; or

(ii)        a person in the Attorney-General’s Department who is engaged under the Public Service Act 1999.

(2)        An Attorney-General’s lawyer acting in that capacity is entitled:

(a)        to do everything necessary or convenient for that purpose; and

(b)        to practise as a barrister, solicitor, or barrister and solicitor in any court and in any State or Territory; and

(c)        to all the rights and privileges of so practising;

whether or not he or she is so entitled apart from this subsection.

(3)        An Attorney-General’s lawyer acting in that capacity in a State or Territory is not subject to a law of a State or Territory that relates to legal practitioners except to the extent that such laws:

(a)        impose rights, duties or obligations on legal practitioners in relation to their clients or to the courts; or

(b)        provide for disciplinary proceedings in relation to the misconduct of legal practitioners.

(4)        Subsection (3) is subject to subsection (6) and to section 55F (Attorney‑General’s lawyer may act for more than one party).

(5)        In considering the nature of the rights, duties and obligations of an Attorney‑General’s lawyer in relation to a client, regard must be had to the lawyer’s position as a person in the Attorney‑General’s Department engaged under the Public Service Act 1999.

(6)        An Attorney-General’s lawyer acting in that capacity is not subject to a law of a State or Territory that is prescribed for the purposes of this section.

55F      Attorney-General’s lawyer may act for more than one party

An Attorney-General’s lawyer may act in a matter for 2 or more parties who have conflicting interests in the matter if to do so has been approved by the Attorney‑General:

(a)        by way of approval in relation to the particular matter; or

(b)        by way of written arrangements covering the circumstances in which an Attorney-General’s lawyer may so act.

55G     Commonwealth may charge for services of Attorney-General’s lawyer

(1)        The Commonwealth may charge fees:

(a)        in relation to services of a legal professional nature provided by an Attorney-General’s lawyer in his or her capacity as a person in the Attorney-General’s Department engaged under the Public Service Act 1999; and

(b)        for disbursements incurred by the Commonwealth in the course of providing those services.

(2)        If the Commonwealth has charged a client an amount under subsection (1), the amount may be recovered by the client as costs incurred by the client.

107                      As to the CDPP, the position is covered by the Director of Public Prosecutions Act 1983 (Cth) s 5 and s 16 which respectively provide as follows:

5          Office of the Director of Public Prosecutions

(1)        There is established an Office to be known as the Office of the Director of Public Prosecutions.

(2)        There shall be a Director of Public Prosecutions and an Associate Director of Public Prosecutions.

(3)        The Office shall consist of the Director and the members of the staff of the Office.

(4)        The Director shall control the Office.

16        Right of Director and staff to practise in their official capacity

The Director, or a member of the staff of the Office who is a legal practitioner, is, in his or her official capacity:

(a)        entitled to practise as a barrister, solicitor, or barrister and solicitor, in a federal court or in a court of a State or Territory; and

(b)        entitled to all the rights and privileges of a barrister, solicitor, or barrister and solicitor, as the case may be, in that court;

whether or not he or she would, but for this section, be entitled to practise in that court.

108                      The functions of the CDPP which are set out in s 6(1) and s 6(2) of the Director of Public Prosecutions Act 1983 and the Director of Public Prosecutions Regulations 1984, reg 3(1) unsurprisingly include giving advice to an authority of the Commonwealth. 

109                      As a matter of principle, legal professional privilege can attach to communications between a salaried legal advisor and his or her employer.  It is the provisos and the application of the principle, subject to provisos, that give rise to the debate.  The Commonwealth accepts that it is a proviso to that principle that the legal advisor 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 per Dawson J at 96 and Deane J at 79-82). 

110                      In essence, the senior advisor must also be professionally independent or ‘detached’ (Rich v Harrington (2007) 245 ALR 106 and Candacal Pty Ltd v Industry Research and Development Board (2005) 59 ATR 615 at [64]-[71] and [99]).

111                      The Commonwealth relies heavily on the Waterford decision and the conclusion in that decision as authority for the contention that the Commonwealth employs legal officers who have been recognised as securing that degree of independence.  The fact that legal advice and services by Government lawyers have been held to attract privilege is not contentious.  Examples of this include Waterford which related to material submitted to a Deputy Crown Solicitor’s office in relation to litigation.  However, Mr Zentai stresses that the material concerned involved independent opinions from three Queen’s Counsel.  The contrast, Mr Zentai says with the present circumstances is that the advice is coming from within the Attorney-General’s own Department in one instance and from the CDPP to the AFP in another instance.

112                      In Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101, an advice from AGS to the respondent was also treated as being privileged.  Similarly, in Spassked Pty Ltd v Federal Commissioner of Taxation (No 4) (2002) 50 ATR 70 where material concerned in an expert brief prepared by the AGS was privileged.  So, also, in New South Wales v Betfair Pty Ltd and Others (2009) 180 FCR 543 where advice regarding the drafting and preparation of legislation by Parliamentary counsel was protected.  In a number of instances, advice by the CDPP to the AFP has expressly been privileged:  Dunesky v Elder (1992) 35 FCR 429 and Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445. 

113                      In Waterford, Waterford sought to obtain legal advice received by the Treasury Department from what is now the AGS.   In response to a claim for privilege the High Court concluded that there is no reason to place legal officers in Government employment outside the bounds of legal professional privilege providing there was a professional relationship securing to the advice an independent character notwithstanding employment within the Government.  The court concluded that as a general proposition, the participation of Government legal officers could entitle their clients to claim legal professional privilege.

114                      In Waterford at 63-64, in a joint judgment of Mason J (as his Honour then was) and Wilson J, the Court said:

In our opinion, neither limb of the appellant's argument can be supported. The common law, in the view that we have taken, recognizes that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connexion with anticipated or pending litigation. Provided that the sole purpose test enunciated in Grant v Downs is satisfied, there is no warrant to draw an arbitrary line through the functions of government in order to exclude the privilege from those described as of an administrative nature. All the functions of the executive government may be so described. No distinction can be drawn between a decision to grant a pension and a decision whether to defend a claim in tort or contract. The growing complexity of the legal framework within which government must be carried on renders the rationale of the privilege, as expressed in Grant v Downs, increasingly compelling when applied to decision-makers in the public sector. The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that this makes for a better legal system. Government officers need that encouragement, albeit, perhaps, for reasons different to those which might be expected to motivate the citizen.

115                      Subsequently in Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd and Another (2009) 179 FCR 323, in the judgment of Flick J with whom Spender and Lander JJ agreed (at [73]-[74]), his Honour said:

[73]      The purpose of the Minute was to place before the Assistant Treasurer material upon which he could make an informed decision. That material has been identified. The Assistant Treasurer has made his decision and made his findings, including his finding at paragraph 25 of his statement of reasons that he had regard to the legal advices before him "and the conflict between those legal advices" and that he "was not satisfied that all or any part of the alleged conduct was required or specifically authorised by the law of any of the countries the subject of the application for consent".

[74]      The withholding of the legal advice received from the Australian Government Solicitor, it is considered, has not occasioned any "ambiguity" or any "unfairness". Those parts of the Minute containing legal advice occur throughout the Minute, but each of those parts is considered to be severable from the balance of the document. The disclosure of that legal advice may well facilitate a greater understanding of the reasoning process pursued by the Assistant Treasurer, but the maintenance of the confidentiality in the legal advice operates no "unfairness". The maintenance of that confidentiality does not deny to Cathay Pacific the ability to know what material has or has not been taken into account.

116                      Nothing in s 55E of the Judiciary Act appears to expressly touch on the question of whether advice given by an Attorney-General’s lawyer to the Attorney-General attracts legal professional privilege, it is clear, nevertheless, from the authorities that advice given in that capacity is capable of attracting legal professional privilege.  Those cases do not address the submission made for Mr Zentai that because the Departmental advice to the Attorney-General (or his delegate) was purely internal, the Attorney-General was doing no more than advising himself and there was no independent relationship of lawyer and client.  Nothing in the statutory provisions or secondary material directly addresses this issue.

117                      The Commonwealth however, stresses that the statutory and real independence of the advisors suffices.  As in Waterford and Cathay Pacific,the purpose of advising was to provide legal material to assist with the exercise of a public duty under a statutory power or administrative or governmental function. 

THE ADVICE IS PRIVILEGED

118                      In my view, the redacted material is privileged.

119                      It is clearly legal advice or instruction.  It matters not that no litigation was pending.  Neither does it matter that the determination may be a discretionary administrative function.

120                      Legal professional privilege is a fundamentally important protection as no doubt Mr Zentai would be the first to recognise.

121                      The authorities also make it clear that legal professional privilege applies to those communications to ministers (or other Government decision-makers) in circumstances when it would have applied in private lawyer/client relationships.  Further, lest there be any doubt as to the role played by OIL or CDPP in relation to their advices, the statutory protection relied upon by the Court makes it clear that the relationship is to be equivalent to any lawyer/client relationships.

122                      The argument that the Attorney-General was, in effect, only advising himself, while creative, against the background of the statutory provisions, must give way to the paramount principles as reflected in the authorities.  There must be a facility for legal advice to be taken on which a Minister can act or not act as seen fit.  There can be no distinction in principle as to whether that advice is obtained internally or externally.

THE NATURE OF THE WAIVER

123                      To consider the argument that legal professional privilege has been waived, it is necessary to address the nature of waiver.  The waiver of one’s rights occurs, or may do so, in a variety of legal scenarios and in most of those scenarios, if not all, it may be imputed or intentional.

124                      The general principle concerning waiver of legal professional privilege is that privilege may be waived where the person entitled to claim privilege does an act inconsistent with confidentiality of the privileged information (Mann (at [28]) and Osland v Secretary, Department of Justice (2008) 234 CLR 275 (at [35], [44]-[46] and [48]-[50])). 

125                      Whereas the onus of establishing legal professional privilege is upon the party claiming the privilege, the onus of proof in relation to waiver lies on the person asserting that the privilege has been waived (Betfair (at [54])).

126                      Mr Zentai contends that the Brief which is a substantial document and does contain a substantial body of legal advice, contains, particularly in relation to the key passages to which reference has been made, conclusions or summaries which are derived from the redacted portions but do not include the reasons giving rise to the conclusions in respect of which privilege is claimed.  It is inconsistent, it is said, within the full context of the Brief, for the conclusions of the advice given to be released while at the same time claiming privilege for the redacted portions.  Also faintly asserted, at least in written submissions (but not orally) was the suggestion that the failure by CDPP to claim legal professional privilege at the time the redacted portions were supplied, was inconsistent with the claim subsequently advanced. 

127                      There is also a detailed argument as to fairness which I will address shortly. 

128                      The Commonwealth contends that there is no disclosure that is inconsistent with the confidentiality of the information.  It is argued that 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 decision under s 22 of the Act, is not inconsistent with the confidentiality of the information as there was no general disclosure and waiver cannot be established merely by voluntary disclosure to a third party for a limited and specific purpose (Mann (at [30]‑[32]) and Betfair).  The Commonwealth also argues that to the extent there was disclosure by release of the advisory material to the Attorney-General, the release was not to a third party but ‘within the Commonwealth’.  It is contended that when disclosure is given to another Commonwealth agency or to the Minister regard must also be had to the Judiciary Act and the Legal Services Directions made under Pt VIIC of that Act.  I accept all those arguments.

129                      The Commonwealth has recognised the fairness argument but contends that it is apparent on consideration of the document that there is no unfairness or inconsistency in the relevant sense in maintaining privilege for those parts which record legal advice while disclosing the remainder of the document to Mr Zentai.  That is the issue on which there is debate.

130                      Mr Zentai has contended that in the context of fairness the primary basis on which non-disclosure of the redacted material would be ‘unfair’ is that counsel’s inability to inspect the redacted material may deprive Mr Zentai of an opportunity to support existing grounds of review which would be evident from those materials.  Alternatively, that material may disclose arguments open to Mr Zentai which had not been addressed in original submissions advanced to the Minister and of which the Minister may now wish to take benefit.  In light of the apparent relevance of the redacted material, Mr Zentai says that his pursuit of disclosure is directly related to his possible grounds of review, which has been the subject of detailed exchanges between the parties.  I consider that this submission is correct for reasoning that I will develop.

131                      In Cathay Pacific, Flick J, with whom Spender and Lander JJ agreed, observed that as:

…a general proposition, it is accepted that privilege is not waived simply by reason of mere reference to legal advice: Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 per Gibbs CJ.

It was noted that to:

constitute a waiver of privilege, or to act inconsistently with maintaining the privilege, more is thus required than mere reference to the existence of advice.

132                      Flick J referred to Osland, in which a petition for mercy had been declined, and continued (at [56]):

Cathay Pacific did not contend that the substance of any legal advice provided by the Australian Government Solicitor was to be found partially disclosed in the Minute. Indeed, nowhere in the expurgated Minute is there any disclosure of the substance of the legal advice provided by the Australian Government Solicitor. The only thing which may be gleaned from the form of the Minute is that the legal advice provided was at least considered relevant to a number of discrete matters. The Minute identified a number of "Key Points" and also contained a segment directed to what it identified as "Additional Information". Under that heading there appeared, among others, the following subheadings:

Issues raised regarding the application

Whether relevant foreign country laws require or specifically authorise the alleged conduct

Correspondence from HKCAD

Applicant's submissions and respondent's countersubmissions

Comity

Identification of conduct

Preconditions to consent pursuant to subsection 5(4)

Under each of these subheadings, portions of the Minute had been deleted and the handwritten words inserted in lieu: "Redacted on the basis of LPP". There was a similar deletion of material under the heading "Key Points". It is pure speculation what the content of the legal advice relevant to each of those issues may have been.

133                      In Osland, in relation to the question of waiver of privilege the High Court (in a joint judgment of Gleeson CJ, Gummow, Hayden and Kiefel JJ) confirmed that release of the conclusion at which the legal advice of three independent Queen’s Counsel had arrived, without releasing the reasoning and substance of the advice, would not constitute a waiver of privilege.  In that case, it was held that the evident purpose of what was said in a press release was to satisfy the public that due process had been followed in the consideration of the petition and that the decision was not based on political considerations (at [48]).  The High Court said that whether in any given context, a limited disclosure of the existence and the effect of legal advice is inconsistent with maintaining confidentiality in the terms of the advice would depend upon the circumstances of the case.  Questions of waiver were matters of fact and degree.  Kirby J arrived at the same conclusion in a separate judgment and for reasons which I take to be slightly different.  His Honour said (at [91]), the question to be decided was whether, whatever the subjective intention of the Attorney-General in publishing the press release, the objective fact was incompatible with the continued insistence on legal professional privilege and made such insistence unwarranted and unfair in the circumstances.

134                      Whether there has been an inconsistency between an act of disclosure and maintaining the claim of privilege will be resolved by deciding whether maintenance of confidentiality would be fair in the circumstances (Mann (at [34]) per Gleeson CJ, Gaudron, Gummow and Callinan JJ and Osland at 297). 

135                      Fairness in this sense, as I understand it however, does not arise until it can be seen that there has been some inconsistent act.  Unless the substance and effect and content of the legal advice is adverted to some degree in the disclosed material, merely giving a conclusion as to its effect would usually not be sufficient to constitute a waiver.

136                      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.

THE PRIVILEGE HAS BEEN WAIVED

137                      The present circumstance is different from that in Osland.  In Osland just two pages of a 265 page advice were shown to the petitioner.  While it is important to note that the redacted material is a small portion only of the Brief, in this instance almost all the Brief has been disclosed.  Only a relatively small portion has been redacted.  Once it is acknowledged that virtually all the legal advice in the Brief to the Minister was disclosed to Mr Zentai, that all of the submissions of Mr Zentai are addressed, yet small but important parts of the reasoning for earlier advices are withheld, this constitutes a relevant inconsistency.

138                      Secondly, in Osland, the petition itself was a simple six item document which in significant measure addressed topics beyond pure law.  In the present situation, Mr Zentai’s submissions to the Minister were all anchored in legal principle.  Whether the arguments were right or not, they were principles related to Australia’s legal obligations under statute and treaty which were said to require that the Minister should not exercise a determination that Mr Zentai be surrendered, or at the least, must consider such matters.  Those are the issues on which the Minister was legally advised.

139                      As one would expect, the Brief to the Minister is almost entirely advice on law.  Because the submissions of Mr Zentai focussed on matters of law, the Brief to the Minister likewise addressed such issues.  Provision of the Brief to Mr Zentai was, but for the redacted material, a detailed response to his own submissions.  Whether or not the Brief – as a matter of legal obligation - had to be provided in the first instance, is no longer to the point on this issue. 

140                      This in turn leads to another difference between Osland and the present situation.  The High Court held in Osland that the purpose of releasing the very limited amount of material (which suggested that the three Queen’s Counsel had unanimously advised that the foundation for the petition for mercy should in every respect be rejected), was to demonstrate that there had been responsible advice before the decision-maker.  Secondly, that advice dealt with the topics which had been raised by the petitioner, and that the decision-maker acted in a manner which was consistent with the advice from those senior professionals.  However, in relation to Mr Zentai’s claims, the release of the Brief to him was a release essentially at a private level.  It was not the subject of a press release as was the information in Osland.  While it may well have also been intended to support the conclusion that the Minister had acted responsibly on sensible advice, it went substantially further in disclosing most of that advice.  It disclosed almost all the advice with the exception only of the relatively small amount of redacted material dealing with two key areas.  The two areas were important to Mr Zentai’s submission and may be to his future arguments.

141                      Within the meaning discussed in the authorities dealing with waiver of legal professional privilege, in my view, there was an unfair inconsistency in releasing the entirety of the Brief and the conclusions reached on the topics which were at the heart of the submissions by Mr Zentai while at the same time refusing to disclose the reason why the AFP had not sought to prosecute Mr Zentai within Australia or refusing to disclose the reasons at law why OIL considered there was no basis for a conclusion other than that Mr Zentai would be afforded a fair trial through the Military Panel in the Republic of Hungary. 

142                      Once the inconsistency is identified, in this particular case, remaining fairness considerations are in Mr Zentai’s favour.  As vitally important as Australia’s international Treaty obligations may be, the particular consequences of extradition in this instance are unusual.  Considering that Mr Zentai is not in robust health, is aged 88 years, has lived openly in Australia since 1955, and has raised what must be regarded at least on their face as serious issues on the fair trial topic, fairness in the Osland and Mann sense dictates that he should know why the Minister was advised and may have taken the view that there was no basis for doubt that Mr Zentai would be afforded a fair trial in the Military Panel and that prosecution within and by Australian authorities was not to be pursued.

143                      At the commencement of the hearing the Commonwealth made available for cross‑examination the two deponents of affidavits dealing with, amongst other things, the purpose for which the redacted material had originally been created.  Senior counsel for Mr Zentai accepted that if either of his grounds of argument were to succeed, cross-examination of the witnesses would appear to be unlikely.  Cross-examination was therefore deferred.  In light of the conclusion I have reached, it seems unnecessary for the witnesses to be cross-examined. 

144                      It would also follow that costs should follow the event to be taxed or agreed.

145                      I will Order:

1.         Within 3 business days, if not sooner, the First and Second Respondents do comply with the Applicant’s Notice to Produce dated 17 December 2009.

2.         There be liberty to apply on short notice.

3.         The Applicant’s costs are to be paid by the First and Second Respondents, to be taxed or agreed. 

I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: 

Dated:         19 March 2010