FEDERAL COURT OF AUSTRALIA

Levick v Attorney-General [2018] FCA 1609

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated and filed 23 August 2018 be dismissed,

2.    The applicant pay the respondent’s costs of and incidental to the interlocutory application as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an interlocutory application seeking the production of unredacted copies of documents, the redactions being the subject of a claim of legal professional privilege. The live issue is whether a waiver of privilege has taken place. I heard the interlocutory application on the morning of 24 October 2018 and made orders and gave oral reasons later that day. These are the reasons for the orders that I made, with minor revisions.

2    In the substantive proceeding, the applicant, Mr David Russell Levick, challenges, by way of judicial review, a decision made on 8 June 2018 by the respondent, the Attorney-General of the Commonwealth of Australia, to surrender him to the United States of America (USA). That surrender decision was made under s 22 of the Extradition Act 1988 (Cth). Mr Levick’s application is brought by way of an originating application for relief under s 39B of the Judiciary Act 1903 (Cth). The judicial review application has been set down for a final hearing on 30 November 2018, with a timetable fixed for any amended originating application, any further evidence and submissions to be filed and served.

3    By way of procedural orders made by consent on 2 August 2018, the Attorney-General was required to serve on Mr Levick a copy of the Departmental brief to him, including attachments, in respect of the surrender decision, subject to any claims of legal professional privilege or public interest immunity. The brief to the Attorney-General was duly served, but with portions redacted by reason of claims of legal professional privilege.

4    The brief comprised a short, one-page minute recommending that Mr Levick be surrendered, and the following six attachments (as listed in the affidavit of Ms Lisa Hemingway affirmed 2 October 2018, emphasis in original):

Attachment A – Surrender warrant in the statutory form

Attachment B – Magistrate’s report and order committing Mr Levick to bail to await a surrender determination

Attachment C – Representations from Mr Levick

Attachment D - Advice on the preconditions to, and grounds for refusal of surrender under the Extradition Act

Attachment E – Advice received from external counsel on dual criminality

Attachment F – Extradition request from the United States

5    It may be seen from the above list that Attachment D to the Departmental brief to the Attorney-General was advice on the surrender provisions of s 22 of the Extradition Act (Departmental advice) and that Attachment E was counsel’s advice on dual criminality. As will be seen, the Departmental advice contained in Attachment D did not in terms address the dual criminality requirement ordinarily dealt with at an earlier stage of the extradition process: see s 19(2)(c) of the Extradition Act. An issue at the final hearing may well be whether consideration of dual criminality, or some version of it, was required for the purposes of making the surrender decision. For present purposes, I will assume that such an issue will be raised at the final hearing.

6    The parts of the Departmental advice which gave rise to the redactions upon the basis of a claim of legal professional privilege referred to:

(1)    the issue as to whether the conduct underlying the alleged USA offences for which extradition was sought would involve only military offences in Australia (which would give rise to an extradition objection); and

(2)    the issue of whether those USA offences were wholly extraterritorial.

7    The Departmental advice comprising Attachment D that was provided to Mr Levick was redacted at the points at which the contents of Attachment E were referred to on the two topics listed in the preceding paragraph. Counsel’s advice comprising Attachment E that was provided to Mr Levick was redacted in its entirety. The Court does not have before it the redacted portions.

8    By an interlocutory application, Mr Levick seeks an order compelling the Attorney-General to provide the redacted material in unredacted form. Mr Levick’s grounds for seeking that order were set out in his interlocutory application as follows:

1.    The Attorney General’s Department has provided to the Applicant the material provided to the Minister which he relied upon to make his decision under s 22 of the Extradition Act 1988 (Cth), but claimed legal professional privilege over paragraphs [29] and [54] of Attachment D and the whole of Attachment E within that material. Those portions are redacted in the copy of the material provided to the Applicant.

2.    The advice reproduced at Attachment D at paragraphs [29] and [54] contains conclusions that appear to depend upon content redacted at paragraphs (28] and [54].

3.    The redacted portions are summaries of legal advice contained within Attachment E.

4.    The provision of the conclusion gives rise to a waiver of the redacted passages upon which the conclusion is based.

5.    If privilege has been waived over the redacted passages at [29] and [54], it follows that privilege is waived over the advice at Attachment E which those passages purport to summarise.

6.    It would be unfair for the Respondent to rely upon the conclusions without disclosing the basis for the conclusions.

9    There is no dispute as to the existence of legal professional privilege. Rather, the dispute is as to whether or not that privilege has been waived. Mr Levick contends that a waiver has taken place. The Attorney-General maintains that no such waiver has occurred.

10    After an introduction, the Departmental advice provided an analysis of the conditions for surrender contained in s 22(2) and (3) of the Extradition Act. Section 22(3) provided the content for the decision as to whether or not Mr Levick was to be surrendered under s 22(2). The Departmental advice was organised under headings referring to each of paragraphs (a) to (f) of s 22(3).

11    The first topic in relation to which redactions took place in the Departmental advice, referred to above at [6(1)], was the surrender issue in s 22(3)(a) of there being any extradition objection. Extradition objections are set out in s 7 of the Extradition Act. The advice in Attachment D addresses each of the possible extradition objections in s 7. The extradition objection in s 7(d) is that the extradition offences are military offences only. The advice in Attachment D on that topic was as follows (emphasis in original):

(iv) Paragraph 7(d) – the extradition offences are military offences only

26.     Pursuant to paragraph 7(d) of the Extradition Act, an extradition objection arises in relation to a qualifying extradition offence for which Mr Levick’s extradition is sought if the conduct constituting the offence would, if it had taken place in Australia at the time the extradition request was received, have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia.

27.     The United States has sought Mr Levick’s extradition in relation to the following qualifying extradition offences:

a.    one offence of conspiracy to commit offences against the United States and to defraud the United States, in violation of Title 18, United States Code, Section 371, and

b.    four counts of exports and attempted exports to embargoed countries, in violation of Title 50, United States Code, Sections 1702 and 1705; Title 31, Code of Federal Regulations, Parts 560.203 and 560.204; and Title 18, United States Code, Section 2.

28.     If Mr Levick’s alleged conduct underlying the above offences had occurred in Australia at the time the extradition request was received, that conduct would have constituted offences against the ordinary criminal law. [REDACTED]

29.     Accordingly, as the conduct underlying the qualifying extradition offences is not conduct which is known only to the military law of Australia, but conduct constituting offences under the ordinary criminal law of Australia, the Department considers you may be satisfied that the qualifying extradition offences in relation to Mr Levick do not fall within the scope of this extradition objection.

12    The second topic in relation to which redactions took place in the Departmental advice, referred to above at [6(2)], concerned s 22(3)(e), which deals with grounds for refusal to surrender arising under the regulations to the Extradition Act (in this case, the Extradition (United States of America) Regulations). Section 11 of the Extradition Act provides for that Act to be modified by regulation, such that the Extradition Act applies subject to any variation by way of stipulated “limitations, conditions, exceptions or qualifications”. A live question for determination at the final hearing may be whether certain provisions in the Regulations amount to a variation in the operation of the Extradition Act of a kind that may be relied upon by Mr Levick. In any event, the evident purpose of s 22(3)(e) is to ensure that any restrictions on surrender contained in regulations pertaining to a requesting State are observed to the extent that they vary the operation of the Extradition Act.

13    The redactions that took place in relation to the part of the Departmental advice addressing s 22(3)(e) were as follows (emphasis in original):

(i) Article II(4) - discretionary ground - extraterritoriality of conduct

50.    Article II(4) of the Treaty provides that you have a discretion whether to grant extradition where the offence for which the person is wanted occurred outside the territory of the United States, and the laws of Australia do not provide for punishment of an offence committed outside its territory in similar circumstances.

Representations

51.    In his representations (Attachment C), Mr Levick seeks to argue that your discretion is enlivened under Article II(4) of the Treaty in relation to the extra-territorial application of the offences for which Mr Levick is wanted in the United States.

52.    In his representations Mr Levick states that Australia had not ratified the treaty banning certain goods from being exported to Iran at the time the offences took place. Therefore, as there were no criminal provisions in place in Australia that possessed the extra-territorial application necessary, the Minister's discretion is enlivened under this article.

Departmental comment

53.    The Department notes that, in the circumstances of this matter, the extradition request states the conduct constituting the offences for which extradition is requested occurred in the United States and elsewhere (Attachment F). As such, Art II(4) arguably does not arise as the offences are not ones that have been committed “outside” the territory of the United States.

54.    In any event, the Department submits that, even if it were to be found that the extraterritorial effect of the US provisions enlivens your discretion under Art II(4) of the treaty, it is open to you to exercise your discretion to extradite Mr Levick. [REDACTED]

Conclusion

55.    Accordingly, the Department does not consider this discretionary ground of refusal to be enlivened by the circumstances of this matter. However, even if it does apply, the Department considers that, as the conduct constituting the offences would have been criminalised in Australia at the time it was committed, and at the time the extradition request was received, you are not precluded from exercising your discretion to surrender Mr Levick.

14    Mr Levick bears the onus of showing that the Attorney-General has waived privilege. He endeavours to do so by citing well-established authority to the effect that such privilege may not be maintained when there has been conduct in reliance on legal advice by the party asserting privilege that is inconsistent with the maintenance of that privilege and that, in all the circumstances, it would be unfair to allow the owner of the privilege to maintain it. Mr Levick asserts that that is what has taken place in this case.

15    The basis for Mr Levick’s assertion of a waiver is that he claims that the Attorney-General has relied upon the Departmental advice in Attachment D, which apparently summarises or refer to parts of counsel’s advice in Attachment E, and that when the sentences surrounding the redacted portions are read, and the redactions are put in that context and the reasons read as a whole, it is “apparent that the conclusion which would follow from the legal advice over which privilege is claimed is disclosed, but neither the whole of the conclusion is disclosed, nor the advice upon which the conclusion is based”. It is further asserted that the partial disclosure of conclusions which follow from the legal advice obtained is inconsistent with the maintenance of the privilege asserted. Thus, the substance of the waiver claimed by Mr Levick turns on the way in which references to the advice have been redacted so as to constitute inconsistency between relying on upon the unredacted portions and maintaining privilege over the redacted portions.

16    Mr Levick further submits that because the redacted areas are relevant to one of his two grounds of review and could also be relevant to or give rise to further grounds of review, this case is on all fours with the decision of this Court in Zentai v O'Connor (No 2) [2010] FCA 252; 183 FCR 180. For the purpose of these reasons only, I will assume that the redacted portions may in some way be relevant as asserted, although I was far from convinced that this is so, based on the arguments advanced on behalf of Mr Levick at the hearing of the interlocutory application.

17    The written and oral submissions for Mr Levick sought to demonstrate how the redacted portions were inconsistently relied upon, analysing the text surrounding the redacted portions reproduced above. The Attorney-General submits that no such inconsistency has taken place. Both parties rely upon what was said by the Full Court in O’Connor v Adamas [2013] FCAFC 14; 210 FCR 364 at [245]-[250]. Mr Levick relies upon those passages in support of the assertion that it is a reasonable inference to draw that the Attorney-General accepted the law, facts and evaluative judgments contained in the Departmental advice in Attachment D. The Attorney-General counters by pointing out that such an assertion in not supported, and in particular that Barker J (with whom McKerracher J agreed and Lander J disagreed) found no more than that the Minister in that case had relied upon the advice given. It is not necessary to resolve that conflict, although I am inclined to prefer the interpretation of Adamas urged upon me by the Attorney-General. Resolution of that conflict is not necessary because, even if the Attorney-General accepted the advice he was given in the manner that Mr Levick asserts, that is not sufficient, without more, to constitute a waiver of legal professional privilege for two separate reasons.

18    First, the use of legal advice to make an administrative decision is not inherently inconsistent with maintaining confidentiality of that advice. It would defeat the purpose of cloaking such advice in legal professional privilege if the privilege was lost simply because the advice was used: NSW Council for Civil Liberties v Classification Review Board [2006] FCA 1409; 236 ALR 313 at [19], [27], citing Commissioner of Taxation v Rio Tinto [2006] FCAFC 86; 151 FCR 341 at [67]. That passage in Commissioner of Taxation v Rio Tinto establishes authoritatively that a decision-maker does not put legal advice in issue merely by saying that the advice was relevant or contributed to the decision. In such circumstances, without more, there is no waiver because the decision-maker would not have done anything inconsistent with the maintenance of privilege.

19    Secondly, waiver will only occur if the extent of the disclosure of legal advice that has taken place is inconsistent with maintaining legal professional privilege in the particular circumstances of the case at hand, being a matter of fact and degree: Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275 at [49]. It was incumbent on Mr Levick to satisfy me that this has happened in the present case. He has failed to do so. In my opinion, the unredacted portions of the Departmental advice, reproduced above, that surround the redacted portions, do no more than indicate that the redacted portions were of some assistance in the Attorney-General being reassured:

(1)    that Mr Levick’s conduct, if it had occurred in Australia, would have constituted offences against the ordinary criminal law, rather than only military offences, a matter that has not at any time been raised as an issue in this proceeding; and

(2)    that the alleged USA extradition offences were not extraterritorial offences, but, rather, offences that were said to have occurred in the USA and elsewhere, again a matter that has not at any time been raised as an issue in this proceeding.

20    There is no suggestion in any part of the Departmental advice in Attachment D that counsel’s advice in Attachment E as to the dual criminality required by s 19(2)(c) of the Extradition Act was being relied upon at all. It was, at most, a collateral reliance of a quite different kind. There was no inconsistency arising from the partial redactions.

21    Even if the issue of solely military offences or the issue of solely extraterritorial offences is in some way in issue in this proceeding, any challenge that might be made to that would not be assisted by counsel’s advice in Attachment E, by a reference to that advice in Attachment D or by any other redacted legal advice forming part of the Departmental advice. As senior counsel for the Attorney-General pointed out, if the collateral reliance upon that advice was sound, it can only harm Mr Levick’s case. If that reliance was misplaced, for that to be of any use, Mr Levick would have to demonstrate that if the alleged USA extradition offence conduct had taken place in Australia, it would constituted a purely military offence and/or that the alleged USA extradition offences were wholly extraterritorial offences. In those circumstances, even if there was collateral reliance by the Attorney-General upon the redacted advice from counsel or the redacted reference to that counsel’s advice, or indeed upon any redacted legal advice that appears only in the Departmental advice, there would not be anything relevantly unfair in the context of this proceeding, let alone such a degree of unfairness as to warrant depriving the Attorney-General of the benefit of retaining the privilege.

22    Mr Levick has failed to establish waiver of legal professional privilege. It follows that the interlocutory application must be dismissed with costs.

Associate:

Dated:    25 October 2018